Opinion
No. 110579.
03-06-2015
STATE of Kansas, Appellee, v. John R. MILLS, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted John R. Mills of possession of cocaine and possession of drug paraphernalia. During trial, defense counsel elicited evidence of Mills' good character from a witness thereby opening the door for evidence of his prior crimes. A limiting instructions was neither requested nor given after the introduction of Mills' criminal history. After the jury convicted him, Mills filed a motion for new trial claiming insufficient evidence supported conviction. At sentencing, the trial court denied Mills' motion for a new trial before pronouncing sentence. Defense counsel filed a notice of appeal indicating the intent to appeal “the judgment entered at [Mills'] sentencing.”
On appeal, Mills contends his conviction should be reversed because the trial court erred in failing to provide a limiting instruction after evidence of his prior crimes was introduced.
The State charged Mills with possession of cocaine and possession of drug paraphernalia following a routine traffic stop in which he was a passenger. Officers Chuck Huen and Aaron Carswell of the Salina Police Department were both involved. The driver was arrested for driving under the influence after he failed sobriety tests. While Officer Huen was handling the driver, Officer Carswell approached Mills, who was sitting in the passenger seat. While Carswell was walking near the passenger side of the vehicle, he observed a small plastic baggie containing a white substance on the ground. The contents of the bag were later determined to be cocaine. Neither officer had seen Mills throw the baggie out of the vehicle. Officer Huen returned to his vehicle to review the dash cam video. On the video, Officer Huen saw an object come out of the passenger side window and land near the area where Carswell had found the plastic baggie.
At trial, Mills maintained his innocence. Defense counsel called one witness, Amber Burge. She and her five sons lived with Mills. Burge testified at length regarding Mills' good character, including that Mills was a good role model to her sons, he did not tolerate drug use by the kids, he spent time with her sons, she did not know him to use drugs, and cocaine use did not conform with his character. The State objected to the relevance of Burge's testimony. Defense counsel responded, “I think it is relevant, Your Honor, the circumstances. I mean, the question here is possession of these drugs. My client has maintained his innocence throughout the entire case, throughout the entire investigation. I think this is important .” The State requested counsel approach the bench, and the following conversation was outside the hearing of the jury:
“[DEFENSE COUNSEL]: I would make the argument that he has maintained his innocence throughout this investigation, throughout this case, that this is totally out of character and out of place for him to be in possession of drugs, and I would submit that this character evidence would be important to show that.
“[PROSECUTOR]: That's fine if they want to introduce it, but that's going to open the door for cross-examination, prior conviction, prior arrests, everything like that. I'm going there; they're inviting that.
“[DEFENSE COUNSEL]: His criminal worksheet, he just has two misdemeanors on it that are like theft and criminal restraint, so ...
“[THE COURT]: Okay. Allow it, counsel.”
Burge continued discussing positive aspects of Mills' character. Once she finished testifying, the defense rested.
The State immediately called its investigator to testify regarding Mills' prior convictions. Outside the presence of the jury, the prosecutor argued defense counsel had opened the door for evidence of Mills' prior convictions to come in. Defense counsel objected, stating, “I would think that if they were crimes regarding dishonesty, which I really don't even think trespass would be, I would believe that those wouldn't be able to be allowed. I didn't realize we got in to the character question.” The trial court allowed the evidence of past convictions to come in, noting it was inadmissible until defense put on character evidence. Specifically, the court said: “[C]learly the testimony of [Burge] was that this is out of [Mills] character ... there was testimony regarding that, put squarely into play. So I'm going to let the State get into it. Otherwise, would not have happened, but I'm going to allow it to happen.”
The State then introduced evidence of the following prior convictions: battery, trespassing, obstruction, trespassing, disorderly conduct, driving under the influence, possession of marijuana, and distributing a controlled substance. Defense counsel did not request a limiting instruction, and the trial court did not give one.
During the initial closing argument, the State did not refer to these convictions. Defense counsel did, however, telling the jury the prior convictions were many years old, and Burge, the woman who knew him best, did not think he had done it. On February 19, 2013, the jury convicted Mills.
On February 25, 2013, Mills filed a motion for a new trial claiming insufficient evidence. On May 3, 2013, the trial court held a hearing on Mills' motion and sentencing. The court denied Mills' motion, finding the evidence presented at trial was “sufficient, competent evidence for a reasonable jury to find beyond a reasonable doubt the defendant was guilty.” The court sentenced Mills to a term of 17 months but suspended it and placed him on probation. Defense counsel indicated on the record she would file a notice of appeal and a motion to appoint the public defender.
Mills filed a notice of appeal expressing his intent to appeal “the judgment entered at his sentencing on May 3, 2013.” Mills' docketing statement indicated the issue he intended to raise was sufficiency of the evidence, the same basis as his motion for a new trial.
The State first argues we lack jurisdiction to consider Mills' appeal because his notice of appeal did not encompass his conviction. Mills did not file a reply brief. See Supreme Court Rule 6.05 (2014 Kan. Ct. R. Annot. 48).
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343 (2013).
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. 48 Kan.App.2d at 458.
The Kansas Code of Criminal Procedure sets out what a criminal defendant may appeal. A defendant generally has the right to appeal any judgment rendered against that defendant,
“[e]xcept as otherwise provided, an appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court and upon appeal any decision of the district court or intermediate order in the progress of the case may be reviewed.” K.S.A.2013 Supp. 22–3602(a).
Therefore, a defendant may appeal any ruling, decision, order, or judgment in any conviction. See K.S.A.2013 Supp. 22–3601 ; K.S.A.2013 Supp. 22–3602.
The Kansas Code of Civil Procedure and the Supreme Court Rules govern how to raise an appeal. K.S.A.2013 Supp. 60–2103(b) provides that the notice of appeal “shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.” Consequently, an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. State v. Garza, 295 Kan. 326, 329, 286 P.3d 554 (2012).
In State v. Boyd, 268 Kan. 600, 603–04, 999 P.2d 265 (2000), our Supreme Court explained the history of notice of appeal requirements, noting that prior to the codification of the rules of appellate procedure, appellate courts frequently declined jurisdiction due to appellant's lack of specificity in the notice of appeal. However, with the codification of the appellate rules of procedure, it was clear “the legislature intended it to be easier to take an appeal to an appellate court in Kansas. The process was simplified, with the goal being to afford every criminal defendant at least one appeal.” 268 Kan. at 604.
In Boyd, the notice of appeal simply stated Boyd was appealing his conviction. The court held that, consistent with the legislature's intent, Boyd's notice was sufficient to give the Court of Appeals jurisdiction to consider his claim of substantive trial errors, emphasizing the limited role the notice of appeal plays in the appellate process. 268 Kan. at 606 (“The notice of appeal is not a device to alert the parties to all possible arguments on appeal.”).
That same day, in State v. Ransom, 268 Kan. 653, 655, 999 P.2d 272 (2000), our Supreme Court again reinforced the liberal construction of notices of appeal. The Ransom court found the Court of Appeals had jurisdiction over a defendant's issue regarding certification as an adult even though the defendant's attorney limited the notice of appeal to the judgment and conviction entered on a specific date. The court reasoned “Ransom's court-appointed attorney made a basic error” by including the date and stated that without the inclusion of the date, “the Court of Appeals would unquestionably have had jurisdiction to entertain Ransom's being certified to stand trial as an adult.” 268 Kan. at 655. The court determined it was “of no consequence that Ransom added the words ‘on November 6, 1997’ “ (Emphasis added.) and construed the notice of appeal to be sufficient to appeal the issue of certification entered on a date other than the date included on Ransom's notice. 268 Kan. at 655.
In State v. Wilkins, 269 Kan. 256, 269–70, 7 P.3d 252 (2000), our Supreme Court ruled appellate courts should be mindful that criminal notices of appeal do not need to be overly technical, and appellate courts should construe such notices of appeal liberally to ensure justice is done in every proceeding. In Wilkins, the defendant alleged the notice of appeal included a typo. Wilkins claimed the notice should have read “judgment and sentence” instead of “judgment of sentence.” 269 Kan. at 270. The court held that “Wilkins' notice of appeal sufficiently conferred jurisdiction on the Court of Appeals to determine the substantive issues raised.” 269 Kan. at 270.
More recently, however, in State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012), our Supreme Court indicated the liberal construction of notices of appeal is not limitless. In Coman, the court explained the jurisdictional aspect of the notice of appeal: “ ‘It is a fundamental proposition of Kansas appellate procedure that an appellate court obtains jurisdiction over the rulings identified in the notice of appeal.’ [Citations omitted.]” 294 Kan. at 90. The court stated that the words of the notice of appeal should not be stretched beyond their normal meanings: “Although our appellate courts have, at times, liberally construed a notice of appeal to retain jurisdiction, one simply cannot construe a notice that appellant is appealing his or her sentence to mean that he or she is appealing the conviction.” 294 Kan. at 90.
In State v. Laurel, 299 Kan. 668, 673–74, 325 P.3d 1154 (2014), our Supreme Court provided the substantive minimum for a notice of appeal
“K.S.A.2011 Supp. 60–2103(b) provides that ‘[t]he notice of appeal shall specify the parties taking the appeal; shall designate the judgment or part thereof appealed from, and shall name the appellate court to which the appeal is taken.’ We liberally construe K.S.A. 60–2103(b) “ ‘to assure justice in every proceeding,’ “ [citations omitted] but there is still a substantive minimum below which a notice cannot fall and still support jurisdiction. See, e.g., State v. Coman, 294 Kan. 84, 90, 273 P .3d 701 (2012). [citations omitted].”
In other words, an appellate court must not rewrite a notice of appeal for a defendant.
Our Court of Appeals has addressed whether a notice of appeal confers jurisdiction on this court multiple times since our Supreme Court decided Coman and Laurel. Time and again, this court has determined that a notice of appeal indicating the intent to appeal the sentence does not grant jurisdiction for our court to review a conviction. See State v. Rocheleau, No. 110,243, 2014 WL 5347173 (Kan.App.2014) (unpublished opinion) (appellant's notice of appeal stated he was appealing only from his sentence, so appellate court lacked jurisdiction to reach argument regarding offender registration, which is not part of the sentence); State v.. Gomez, No. 110,302, 2014 WL 4723736 (Kan.App.2014) (unpublished opinion) (when appellant's notice of appeal gives “no hint he is raising any issue in his notice other than that of his sentence,” this court lacks jurisdiction to review the denial of appellant's motion to withdraw his pleas); State v. Walker, 50 Kan.App.2d ––––, ––––, 334 P.3d 901 (2014) (notice of appeal indicating appellant's intent to “appeal [ ] from the sentencing before this Honorable Court” limited appellate review to the sentence; claims of trial errors are dismissed); State v. Wilburn, 50 Kan. ap.2d 663, 674, 332 P.3d 199 (2014) (notice of appeal specifically appealed “Judge Sara Welch's order entered on June 26, 2013 suppressing evidence” and was therefore too specific for appellate court to consider a different ruling made by a different judge in the same case); State v. Lopez, No. 110,286, 2014 WL 3843293 (Kan.App.2014) (unpublished opinion) (because appellant's notice of appeal only indicates an intent to appeal the sentence, the issues raised pertaining to his convictions are dismissed).
This brings us back to the notice of appeal filed here. Mills' notice of appeal states in its entirety the following: “COMES NOW the Defendant, John R. Mills, and hereby gives notice of his appeal to the Kansas Court of Appeals of the judgment entered at his sentencing on May 3, 2013.” Following Boyd, Ransom, and Wilkins, we must not, in the interest of justice, judicial expedience, and cost, read his notice of appeal too technically. Mills did attempt to appeal more than just his sentence. He appealed all decisions entered that date, including the denial of a motion for new trial. Because the filing of a motion for new trial is not a prerequisite to appealing trial errors, we can see no reason to limit Mills to the issues raised in his motion for new trial. See State v. Hills, 24 Kan.App.2d 1, Syl. ¶ 2, 941 P .2d 404 (1997) (“[T]o preserve issues for appeal, a defendant is not required to raise those issues in a motion for a new trial.”), aff'd 264 Kan. 437, 957 P.2d 496 (1998) ; State v. White, No. 109,953, 2014 WL 5312873, at *12 (Kan.App.2014) (unpublished opinion); Parker v. State, No. 92,252, 2005 WL 1089049, at *4 (Kan.App.2005) (unpublished opinion).
We believe that this notice adequately covers all issues that were addressed at the time of the sentencing hearing including the issue of whether a new trial should have been granted because a limiting instruction should have been given.
However, even if we assume that failure to give a limiting instruction in this case was error, it was harmless. “When the complaining party neither requested the instruction nor objected to its omission, the failure to give the instruction will be reversible only if clearly erroneous.” State v. Gunby, 282 Kan. 39, 58–59, 144 P.3d 647 (2006) (citing State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 [2002] ). “ ‘Instruction are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occured.’ [Citation omitted.]” Gunby, 282 Kan. at 59 (citing State v. Shirley, 277 Kan. 659, 666, 89 P.3d 649 [2004], disapproved on other grounds in State v. Tapia, 295 Kan. 978, 287 P.3d 879 [2012] ). Here, the evidence was overwhelming as the act of disposing of the drugs was caught on video. The only defense Mills had was the character evidence provided by Burge. It does not appear that a limiting instruction would have been that important in light of the video evidence. The jury had the task of evaluating Burge's testimony and obviously found it not to be strong enough to overcome the State's evidence. For these reasons, we affirm.
Affirmed.