State v. Frye

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,292

STATE OF KANSAS,
Appellee,

v.

ANTHONY R. FRYE,
Appellant.


SYLLABUS BY THE COURT

1.

Ordinarily, constitutional grounds for reversal asserted for the first time on appeal
are not properly before an appellate court for review. But the Kansas Supreme Court has
recognized certain exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal, one of which is where consideration of the new
theory is necessary to serve the ends of justice or to prevent a denial of fundamental
rights.

2.
An appellate court does not have discretion to create equitable exceptions to
jurisdictional requirements. Accordingly, the general preservation rule, which prevents
the assertion of a new legal theory for the first time on appeal, is a prudential rule, rather
than a jurisdictional requirement.

3.
In a felony prosecution, a jury trial waiver will not be valid unless the court
advises the defendant of his or her right to a trial by jury and the defendant personally
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waives his or her right in writing or in open court for the record. The presiding judge is
burdened with assuring that a defendant's rights have been adequately protected.

4.
The severity level 7 version of aggravated battery, defined in K.S.A. 21-
3414(a)(1)(C), makes it unlawful to intentionally cause physical contact with another
person when done in a rude, insulting, or angry manner with a deadly weapon or in any
manner whereby great bodily harm, disfigurement, or death can be inflicted. The crime
does not require that the defendant intend to inflict great bodily harm, disfigurement, or
death, but rather the defendant need only intend to commit the act of physical conduct.
Whether defendant used a deadly weapon or a method of contact that could cause great
bodily harm, disfigurement, or death is a factual question that is separate and apart from
the question of defendant's intent.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 26,
2010. Appeal from Riley District Court; PAUL E. MILLER, judge. Opinion filed May 4, 2012. Judgment of
the Court of Appeals reversing and remanding the district court is affirmed. Judgment of the district court
is reversed and remanded.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.

Bethany C. Fields, deputy county attorney, argued the cause, and Kevin W. Martin, legal intern,
Barry R. Wilkerson, county attorney, and Steve Six, attorney general, were with her on the brief for
appellee.

The opinion of the court was delivered by

JOHNSON, J.: Anthony Frye was convicted of aggravated battery at a bench trial.
He appealed to the Court of Appeals, claiming that (1) the district court failed to insure a
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valid waiver of Frye's right to a trial by jury; and (2) the evidence was insufficient to
support Frye's conviction for severity level 7 aggravated battery. The Court of Appeals
reversed on the jury trial issue and declined to decide the sufficiency of the evidence
challenge. State v. Frye, No. 101,292, 2010 WL 744799 (Kan. App. 2010) (unpublished
opinion). The State petitions for review, arguing that the Court of Appeals decision was
erroneous because the jury trial issue was not properly preserved for appeal and, in the
alternative, because the handwritten waiver Frye signed at trial was sufficient to establish
a knowing and voluntary waiver of the right to a jury trial. The State also asks us to find
that the evidence was sufficient to support the district court's guilty verdict. Finding that
the Court of Appeals had jurisdiction to consider the validity of Frye's jury trial waiver;
that the district court did not advise Frye of his right to a jury trial or effectively accept a
jury trial waiver; and that the evidence was sufficient to support the district court's verdict
of guilty of severity level 7 aggravated battery, we affirm the Court of Appeals and
remand the case to the district court for a new trial.

FACTUAL AND PROCEDURAL OVERVIEW

The incident giving rise to Frye's charges occurred in the early morning hours of
August 8, 2007, at a party hosted by Frye's neighbor. After arriving home about 2 a.m.,
Frye crashed his neighbor's party and spent the next 30 minutes or so drinking and talking
with Jared Lund, who would become the victim in this case.

Frye began walking home, after being asked to leave because the party was
winding down. En route home, he heard some of the partygoers talking about his strange
behavior and heard James Stewart say, "We should have whooped his ass." That
comment prompted Frye to return to the party in an agitated state, with clenched fists and
breathing heavily, where he had a heated exchange with Stewart.

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Believing that he had developed a rapport with Frye, Lund stepped in to try to
diffuse the situation. Frye testified that he felt crowded by Lund and some of the others,
and he repeatedly asked them to back away. One of Lund's friends encouraged him to
step away because he feared that Frye was about to hit Lund. When Lund looked back
from addressing the friend, Frye struck him in the face with an elbow. The blow knocked
out two of Lund's teeth and severely damaged two others—injuries that required
extensive orthodontic work to repair.

Frye was initially charged with misdemeanor battery and, at a scheduling
conference, Frye's attorney informed the court that he would prefer a bench trial. But the
complaint was subsequently amended to charge a felony, and after a preliminary hearing
on March 4, 2008, Frye was bound over for trial on a count of level 4 aggravated battery.
At the arraignment 6 days later, Frye requested a "jury trial setting," and the court set a
pretrial conference for May 19, 2008.

The record is silent as to what happened in the case thereafter, until the district
court conducted a bench trial on May 30, 2008. The only explanation as to why the case
was tried to the bench is the prosecutor's statement, at the beginning of the bench trial,
that defense counsel "and her client have signed a waiver of jury trial that was originally
scheduled at this time," and the prosecutor's later statement that he "thought this was
going to be a jury trial until late yesterday afternoon." The transcript does not reflect that
the trial court advised Frye of his right to a jury trial or made any further inquiry into the
purported waiver. Likewise, the record contains no defense objection to the bench trial.

At the conclusion of the bench trial, the court found that the State had failed to
prove beyond a reasonable doubt that Frye intended to cause Lund great bodily harm, as
required for the charge of severity level 4 aggravated battery. Instead, the court found that
the evidence established that Frye was guilty of the lesser included offense of severity
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level 7 aggravated battery for having intentionally caused physical contact in a rude,
insulting, or angry manner and in a manner whereby great bodily harm, disfigurement, or
death could have been inflicted.

Notwithstanding that the issue was raised for the first time on appeal, the Court of
Appeals considered Frye's challenge to his jury trial waiver because a resolution of the
issue was "necessary to serve the ends of justice or to prevent a denial of fundamental
rights." Frye, 2010 WL 744799, at *1. The panel reversed Frye's conviction and
remanded the case, finding that the trial court had erred in failing to specifically advise
Frye on the record of his right to jury trial before proceeding with the bench trial. 2010
WL 744799, at *2. Specifically, the panel concluded that the trial court had not complied
with the waiver requirements set forth in State v. Irving, 216 Kan. 588, 589, 533 P.2d
1225 (1975). The panel also concluded that its reversal rendered unnecessary any
consideration of the sufficiency of the evidence issue. Frye, 2010 WL 744799, at *2. This
court granted the State's petition for review, which raised both the issue of the jury trial
waiver and the sufficiency of the evidence issue.

PRESERVATION OF THE JURY TRIAL WAIVER ISSUE

As part of its challenge to the Court of Appeals holding on the jury trial waiver
issue, the State contends that the panel should not have considered the issue because
appellate courts lack jurisdiction to determine the validity of a jury trial waiver when the
argument was not raised before the district court. The State suggests that this court's
decision in State v. Luna, 271 Kan. 573, 577, 24 P.3d 125 (2001), prohibited the Court of
Appeals' review of Frye's jury trial waiver. We disagree.

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Standard of Review

The State does not favor us with a standard of review for the preservation portion
of its jury trial waiver argument. It simply contends, erroneously as will be discussed
later, that the question of whether a defendant effectively waived jury trial is a question
of fact, which would be reviewed for substantial competent evidence. To the contrary, the
question of whether appellate courts lack jurisdiction to determine the validity of a jury
trial waiver when the issue is raised for the first time on appeal is a question of law
subject to our unlimited review. See State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275
(2007) (whether jurisdiction exists is a question of law subject to unlimited review).

Analysis

The Court of Appeals acknowledged that "[o]rdinarily, constitutional grounds for
reversal asserted for the first time on appeal are not properly before an appellate court for
review. State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009)." Frye, 2010 WL 744799, at
*1. In turn, the State acknowledges that the Court of Appeals cited to State v. Hawkins,
285 Kan. 842, 176 P.3d 174 (2008), for the proposition that there are exceptions to the
general rule that a new legal theory may not be asserted for the first time on appeal, one
of which is where "consideration of the theory is necessary to serve the ends of justice or
to prevent a denial of fundamental rights." Frye, 2010 WL 744799, at 1.

The State responds to the Hawkins citation with an apparent non sequitur. The
State's petition for review asserts that Frye's attorney is presumed to be competent
because he was a member in good standing of the bar and that Frye has not proved his
attorney to be ineffective under the test from Strickland v. Washington, 466 U.S. 668,
688, 104 S. Ct. 2502, 80 L. Ed. 2d 674 (1984). The issue on appeal is not a claim of
ineffective assistance of counsel. Perhaps the State was attempting to counter any notion
that Frye was denied his fundamental right to counsel, albeit the Court of Appeals was
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quite explicit in finding that a preservation exception applied because of "the denial of
the right to a jury trial." Frye, 2010 WL 744799, at *1.

Regardless of which fundamental right needed to be protected on appeal in this
case, the point is that this court continues to apply exceptions to the general rule that
issues not raised before the district court cannot be raised on appeal, i.e., we continue to
apply exceptions to the preservation rule. See, e.g., State v. Foster, 290 Kan. 696, 702,
233 P.3d 265 (2010) (reciting three exceptions to general preservation rule, including
"consideration of the theory is necessary to serve the ends of justice or to prevent denial
of fundamental rights"). And, the very fact that exceptions exist establishes the character
of the preservation rule as being prudential, rather than jurisdictional. An appellate court
does not have discretionary power to entertain an appeal over which it lacks jurisdiction.
Cf. Flores Rentals v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007) ("Kansas appellate
courts may exercise jurisdiction only under circumstances allowed by statute; the
appellate courts do not have discretionary power to entertain appeals from all district
court orders."). Likewise, an appellate court cannot create equitable exceptions to
jurisdictional requirements. Board of Sedgwick County Comm'rs v. City of Park City, 293
Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011). Accordingly, this court could not create and
apply exceptions to the preservation rule if it were a jurisdictional requirement for
appellate review.

The State relies heavily on the holding in Luna. There, a juvenile challenged his
certification to be tried as an adult and asserted that he had not knowingly and voluntarily
waived his constitutional right to a jury trial. Then Chief Justice McFarland, writing for
the court, summarized the facts relevant to the jury trial waiver in a few sentences, which
we will edit only slightly. The day before his jury trial was to begin, Luna appeared
before the district court to request a waiver of trial by jury. After Luna advised the court
that it was his decision to waive a jury trial and that his choice was not the result of
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pressure, promises, or threats, the district court accepted the waiver. A bench trial was
commenced on June 30, 1999, but part way through the trial, it was continued at defense
counsel's request until August 10, 1999.

The next short paragraph of the Chief Justice's opinion related that Luna had not
sought to withdraw his jury trial waiver or otherwise object in the district court. Further,
the jury trial waiver did not appear in Luna's docketing statement, but rather "[t]he issue
first appears in the defendant's appellate brief, filed April 21, 2000." 271 Kan. at 577.

The next paragraph contained the court's holding and rationale, which we will set
out in its entirety:

"Where constitutional grounds are asserted for the first time on appeal, they are
not properly before the appellate court for review, and the exceptions to that rule do not
apply in this case. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999). Under the
circumstances, we conclude the waiver of the jury trial issue is not properly before us,
nor was it properly before the Court of Appeals." 271 Kan. at 577.

In State v. Mason, 268 Kan. 37, 986 P.2d 387 (1999), to which Luna referred, the
court recited the general preservation rule with respect to constitutional grounds raised
for the first time on appeal and described the "exceptional circumstances" which would
allow an appellate court to nevertheless consider such issues. Then, Mason court
disagreed with the defendant's contention that his case involved such an exceptional
circumstance, explaining its decision in the following sentence: "Although the issue is a
legal one, Mason's argument is without merit and his cited authority neither relevant nor
applicable." 268 Kan. at 39.

Both Luna and Mason acknowledged that there are exceptions to the general
preservation rule. As noted above, the very existence of court-made exceptional
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circumstances precludes our interpreting Luna as impliedly holding that the preservation
rule is jurisdictional. Moreover, we cannot divine from Luna's cursory holding that the
decision intended to establish a bright-line rule that the general preservation rule is
always to be strictly applied without exception in cases involving a challenge to a jury
trial waiver.

To the contrary, an opinion that recites scarcely more rationale than the equivalent
of "because we say so" is arguably of marginal precedential value and certainly should
not be the foundation for a watershed change in our law. Moreover, the issue presented in
this case—whether the court has advised a defendant of his or her right to a jury trial—
should be one of the last to be denied the opportunity for exceptional treatment. If the
district court fails to properly advise a defendant of the nature and extent of his or her
constitutional right to a jury trial, how does that defendant know to object to the court's
failure to inform, i.e., how does the defendant know what the defendant does not know?
Granted, defense counsel should know, but the ability to waive the fundamental right to a
trial by jury rests solely with the defendant and Irving informs us that the responsibility to
inform a defendant of his or her jury trial right rests squarely with the presiding judge.

From the record before us in this appeal, it appears as if the district court made no
effort to ascertain the validity of the rather unusual handwritten jury trial waiver. Nor
does the record reflect that the court advised Frye of his right to a trial by jury. Under
those circumstances, we can find no error in the Court of Appeals' determination to apply
an exception to the general preservation rule.

VALIDITY OF HANDWRITTEN WAIVER

The State argues in the alternative that the district court was correct to accept the
handwritten waiver because Frye knowingly and voluntarily waived his right to a jury
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trial. That declaration assumes a great deal of information that is not in the record on
appeal, and we must reject it.

Standard of Review

As noted earlier, the State contends that the question of whether a defendant
waived the right to jury trial is purely a factual question, subject to a substantial
competent evidence standard of review. That contention is incomplete. We do employ a
substantial competent evidence standard to examine the factual underpinnings of a
district court's decision to accept a jury trial waiver. But the question of whether those
settled or undisputed facts constitute a voluntary and knowing waiver of defendant's right
to a jury trial is a legal question subject to unlimited appellate review. See State v.
Barnes, 293 Kan. 240, 260, 262 P.3d 297 (2011).

Analysis

The parties' recitations concerning a jury trial were somewhat curious throughout
this proceeding. In its petition for review, the State declares that Frye's attorney "first
indicated a preference for a bench trial setting at a scheduling hearing on December 17,
2007." But the dates related by the State indicate that, at the time of the first purported
statement of preference, Frye was charged with a misdemeanor. K.S.A. 22-3404(1)
provides that "[t]he trial of misdemeanor cases shall be to the court unless a jury trial is
requested in writing by the defendant not later than seven days after first notice of trial
assignment is given to the defendant or such defendant's counsel." In other words,
defense counsel's oral statement of preferred method of trial was of no avail at that point.

Later, after the complaint was amended to charge a felony and Frye was bound
over at preliminary hearing and subsequently arraigned, his counsel requested a "jury trial
setting." At this point, however, the defendant did not need to take any action to receive a
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jury trial; the default in a felony case is a jury trial. As the Court of Appeals correctly
observed:

"K.S.A. 22-3403(1) requires all felony cases be tried to a jury unless the
defendant and the State, with the district court's consent, submit the matter to a bench
trial. The right to a jury trial is guaranteed to a criminal defendant under the United States
Constitution and the Kansas Constitution. U.S. Const. Amend. VI; Kan. Const. Bill of
Rights §§ 5, 10." Frye, 2010 WL 744799, at *1.

In other words, not only was Frye entitled to a jury trial under the federal and state
Constitutions, but, pursuant to Kansas statutory law, a bench trial required the explicit
approval of all concerned: the defendant, the prosecutor, and the court. K.S.A. 22-
3403(1). So, again, defense counsel's request for a jury trial setting was superfluous.

The Court of Appeals assessed the validity of Frye's purported jury trial waiver
under the requirements set forth by the Kansas Supreme Court nearly 40 years ago, in
State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Irving required that a jury trial
waiver cannot be accepted "'unless the defendant, after being advised by the court of his
[or her] right to trial by jury, personally waives his [or her] right . . . in writing or in open
court for the record.'" (Emphasis added.) 216 Kan. at 590 (quoting American Bar
Association Standards for Criminal Justice, Trial by Jury, Section 1.2[b], p. 7).

The State contends that Frye did effect a waiver through the handwritten document
filed with the court. That document is in the record on appeal and, quite frankly, it raises
more questions than it answers. First, it is not dated. We cannot rule out the possibility
that Frye executed the waiver when he was charged with a misdemeanor and not
constitutionally entitled to a jury trial. In that event, the waiver would have been
ineffectual, or at least unnecessary, when executed.

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Next, the alleged waiver contains a purported signature for the "Attorney for Mr.
Frye," albeit that signature follows the word, "Approved," i.e., the attorney did not attest
that the above signature on the waiver is that of his client, Anthony R. Frye. We do not
know for certain who handwrote the waiver—Frye or his attorney or someone else.
Finally, the text of the waiver, in its entirety, reads: "I, Anthony R. Frye, do hereby
waive (give up) my right to a Jury Trial in the above captioned case and desire to try the
case to the Court." Pointedly, the document does not even hint that Frye may actually
know what his "right to a Jury Trial" may be or understand what it means to "try the case
to the Court." In the context of a defendant's right to counsel, we have said that it is not
up to the defendant to know what "fully advised" means, but rather "[i]t is the judge who
is burdened with assuring that [the defendant's] rights have been adequately protected."
State v. Hughes, 290 Kan. 159, 171, 224 P.3d 1149 (2010).

Notwithstanding the efficacy of the handwritten waiver, however, the State fails to
clear the Irving hurdle that requires that the written waiver be after the defendant is
"advised by the court of his right to a jury trial." (Emphasis added.) 216 Kan. at 590.
There is absolutely nothing in the record indicating that the district court made any
attempt to advise Frye of the nature and extent of his constitutional right to a trial by jury.

The State attempts to side-step the requirement that the court advise the defendant
of his or her jury trial right by arguing that the totality of the circumstances indicate that
Frye really wanted a bench trial. One of the "circumstances" relied upon by the State is
the statement by Frye's counsel that he preferred a bench trial, way back when he was
charged with a misdemeanor. Of course, that argument is totally unavailing because, at
the time of the stated preference, Frye did not have a constitutional right to a jury trial for
the misdemeanor with which he was charged. Actually, the State's argument accentuates
the reason for the requirement that the district court advise a criminal defendant of his or
her rights under the circumstances in which the defendant is placed. Here, Frye's rights
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changed during the course of his prosecution, when the charges were elevated from a
misdemeanor to a felony.

In short, the district court did not comply with the 37-year-old Irving requirements
to accept a valid waiver of a defendant's right to a trial by jury. The bench trial verdict
must be reversed and the matter remanded to afford Frye his constitutional right to a trial
by jury or to effect a valid waiver of the same.

SUFFICIENCY OF THE EVIDENCE

The State also petitioned for review on the issue of the sufficiency of the evidence
to support the district court's guilty verdict on the severity level 7 version of aggravated
battery. The Court of Appeals opined that it was unnecessary to consider the sufficiency
of the evidence issue, given that it was reversing on the jury trial issue. Frye, 2010 WL
744799, at *2. We must respectfully disagree with that determination. If Frye were to
successfully challenge the sufficiency of the evidence to support his conviction, the
remedy is an outright reversal, rather than a remand for a new trial. See State v. Scott, 285
Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007) ("If an appellate court holds that evidence to
support a conviction is insufficient as a matter of law, the conviction must be reversed;
and no retrial on the same crime is possible."). Therefore, we discern that we must
consider whether the district court's verdict was supported by substantial competent
evidence in order to determine the appropriate disposition of the case, after appeal.

Standard of Review

The State suggests that we apply a clearly erroneous standard of review because
this was a bench trial. But we have said that convictions arising from bench trials and
those arising from jury trials are reviewed by this court utilizing the same standards on
appeal. See State v. Houpt, 210 Kan. 778, 780, 504 P.2d 570 (1972). Under that standard,
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this court reviews sufficiency of the evidence claims by looking at all the evidence in a
light most favorable to the prosecution and determining whether a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. State v. Martinez, 290
Kan. 992, 1003, 236 P.3d 481 (2010); State v. Johnson, 258 Kan. 61, 67, 899 P.2d 1050
(1995) (applying standard to appeal from a bench trial conviction).

"'In reviewing the sufficiency of the evidence, this court will not reweigh the
evidence. It is the jury's function, not ours, to weigh the evidence and determine the
credibility of witnesses.'" State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011)
(quoting State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 [2002]).

Analysis

The version of aggravated battery for which the district court convicted Frye is
defined in K.S.A. 21-3414(a)(1)(C) as follows: "[I]ntentionally causing physical contact
with another person when done in a rude, insulting or angry manner with a deadly
weapon, or in any manner whereby great bodily harm, disfigurement or death can be
inflicted." Before the Court of Appeals, Frye did not dispute the physical aspects of the
crime, i.e., that he elbowed Lund in the mouth. Rather, he contended that the State had
failed to prove that he possessed the requisite intent.

The State tried Frye on the severity level 4 version of aggravated battery which
required the State to prove that defendant intentionally caused great bodily harm to or
disfigurement of another person. K.S.A. 21-3414(a)(1)(A). The district court found that
the State had failed to prove that Frye intended to cause the serious injuries that resulted
from his act. But the district court found that "the evidence does substantiate a claim that
there was an intentionally caused physical contact in a rude, insulting, or angry manner or
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in a manner whereby great bodily harm, disfigurement or death could have been
inflicted." We agree.

In his brief to the Court of Appeals, Frye appears to suggest that the intent
required for the severity level 7 version of aggravated battery is something more than just
an intentional contact with another in a rude, insulting, or angry manner. He argues that
the defendant must intend to make the contact in a manner that could cause great bodily
harm. That argument tends to conflate the severity level 7 intent to make contact with the
severity level 4 intent to cause great bodily harm. We do not discern that the intent
provisions overlap in that way.

The severity level 7 version addresses the defendant's intention to act. The manner
in which the act occurred, i.e., the instrument or manner used to make contact, is simply
another fact to be proved, but it is not part of the mens rea of that offense. In contrast, the
severity level 4 version does require an intent to do the harm that results. Cf. State v.
Deal, 293 Kan. 872, 269 P.3d 1282, 1284 (2012) (focusing on the distinction between an
intention to act, i.e., to hit, and an intention to obtain a result , i.e., to kill).

Essentially, then, to uphold Frye's conviction for the severity level 7 version of
aggravated battery, we must find that there was sufficient evidence from which the trial
court could reasonably infer that Frye intended to hit Lund with his elbow; that the
contact was not accidental. There was testimony from a number of eyewitnesses
indicating that Frye returned to the party, looking as though he was ready to fight. But we
really need look no further than Frye's own testimony.

The prosecutor gave Frye an opportunity to clarify his intent by inquiring on
cross-examination whether he hit Lund because he felt crowded or whether the contact
was unintentional. Yet, Frye did not say that the contact was unintentional. Instead, he
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responded: "The damage was not intended. I did not want him to get hurt. I just wanted
him to get back from me. That's all I wanted. That's it."

Obviously, the trial court took Frye at his word. The court refused to convict Frye
of severity level 4 aggravated battery because "[t]he damage was not intended." On the
other hand, Frye's refusal to say that the act was accidental or unintentional, especially
when coupled with the other circumstantial evidence, supported the trial court's finding
that Frye intended to make contact with Lund in a rude, insulting, or angry manner. The
evidence was sufficient to support the conviction.

Reversed and remanded for a new trial.