City of Hutchinson v. Jackson

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NOT DESIGNATE FOR PUBLICATION

No. 112,756

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF HUTCHINSON,
Appellee,

v.

DANIEL JACKSON,
Appellant.


MEMORANDUM OPINION


Appeal from Reno District Court; TRISH Rose, judge. Opinion filed December 23, 2015.
Reversed.

Shannon S. Crane, of Hutchinson, for appellant.

Michael C. Robinson, of Forker, Suter, Robinson & Bell LLC, and for appellee.

Before ATCHESON, P.J., GARDNER, J., and BURGESS, S.J.

Per Curiam: On August 26, 2013, Jackson was stopped by a Hutchinson police
officer because the officer believed Jackson's driver's license was suspended. The officer
cited Jackson for driving while suspended. The municipal court found Jackson not guilty
of driving while suspended but guilty of driving without a license, which it believed was
a lesser included offense of driving while suspended. Jackson appealed to the district
court.

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On July 14, 2014, the district court conducted a bench trial. Jackson's certified
driving record, which was not included in the record of this appeal, was admitted at trial.
At trial, the officer who issued the citation testified that while Jackson's driving privileges
had been suspended, Jackson did not actually have a driver's license. See K.S.A. 2014
Supp. 8-262(a)(1) (driving while suspended requires proof that defendant previously held
a driver's license that has since been suspended or proof that the defendant's ability to
obtain a driver's license has been suspended). Jackson claimed that he had never obtained
a Kansas driver's license. The district court found Jackson guilty of driving without a
license and ordered him to pay a $100 fine, plus $76 in court costs. Jackson was also
sentenced to 5 days in jail which was suspended for 180 days conditioned on his paying
the fines and not incurring new citations.

Jackson argues that the district court erred in convicting him of driving without a
license. Jackson claims that (1) the district court tried the case de novo, which required it
to consider the charges in the original complaint; (2) the amendment of the complaint was
improper because it resulted in him being charged and convicted with a different crime;
and (3) the Double Jeopardy Clause precludes him from being prosecuted again for
driving while suspended. We agree.

Our scope of review

We use an abuse of discretion standard in reviewing a district court's decision to
allow a complaint or information to be amended. State v. Bischoff, 281 Kan. 195, 205,
131 P.3d 531 (2006). Generally, the district court abuses its discretion if its decision is
arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact.
State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594
(2012). But the district court may also abuse its discretion when its decision "goes outside
the framework of or fails to properly consider statutory limitations or legal standards."
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State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007). The burden of establishing
that the district court abused its discretion is on the appellant. Bischoff, 281 Kan. at 205.

The charge at the trial de novo

We begin by reviewing the nature of Jackson's appeal from the municipal court's
finding that Jackson violated a traffic ordinance. When a municipal court finds a
defendant guilty of violating an ordinance of a Kansas municipality, the defendant has the
right to appeal to the district court of that county. K.S.A. 2014 Supp. 22-3609(1). The
relevant statute establishes that on "appeal," the case shall be tried de novo in the district
court:

"When a case is appealed to the district court, such court shall hear and determine
the cause on the original complaint, unless the complaint shall be found defective, in
which case the court may order a new complaint to be filed and the case shall proceed as
if the original complaint had not been set aside. The case shall be tried de novo in the
district court." K.S.A. 22-3610(a).

When the district court conducts a trial de novo, "the municipal court conviction appealed
from is vacated." City of Salina v. Amador, 279 Kan. 266, 274, 106 P.3d 1139 (2005).
Under K.S.A. 22-3609 there is no appellate review of previous orders or judgments, and
the prosecution, for practical purposes, starts over. State v. Legero, 278 Kan. 109, 114, 91
P.3d 1216 (2004).

But the prosecution starts over based upon the original complaint. See K.S.A. 22-
3610(a) (providing that the court shall hear and determine the cause on the original
complaint). Because the original complaint against Jackson was never found to be
defective, and the record does not reflect that the court ordered a new complaint to be
filed, the charge against Jackson at the trial de novo before the district court was the
original charge of driving while suspended.
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The City argues that the charge at the trial de novo was driving without a license,
citing State v. Derusseau, 25 Kan. App. 2d 544, 966 P.2d 694 (1998). We find Derusseau
not on point. There, a district magistrate judge convicted the defendant of driving under
the influence and acquitted him of fleeing or attempting to elude a police officer. The
district court, however, held a trial de novo on both charges, to which the defendant
objected. On appeal, the defendant claimed his double jeopardy right was violated when
he was tried in district court on the fleeing and eluding charge. The panel determined that
the trial de novo provisions applied only to charges of which the defendant had not been
acquitted. 25 Kan. App. 2d at 550

Here, as noted, the municipal court acquitted Jackson of driving while suspended
and convicted him driving without a license. Although he appealed the conviction to the
district court, the proper procedure was a trial de novo, which would vacate the municipal
court's judgment and start the prosecution over. But the prosecution could not start over
on that charge because Jackson had been acquitted of driving while suspended. See
K.S.A. 21-3108(1) (providing that a prosecution is barred if the defendant was formerly
prosecuted for the same crime, based on the same facts, if that former prosecution
resulted in an acquittal). And even though Jackson was convicted of driving without a
license, Jackson had never been charged with that offense. The district court also could
not review the municipal court's judgment because there is no appellate review under
K.S.A. 2014 Supp. 22-3609. Legero, 278 Kan. at 114.

The City's attempt to amend the charge in district court

The record indicates, however, that the City may have orally amended the charge,
or have attempted to do so. After the city attorney, Mr. Robinson, notified the court that
he had finished examining his first witness, the following colloquy occurred:


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"MR. ROBINSON: I think that's all the questions I have, Your Honor.
"THE COURT: Okay. Mr. Kepfield.
"MR. ROBINSON: Other than I guess, Your Honor, I think I told you prior to
coming in here; I told Mr. Kepfield this started out as a driving while suspended
but Judge Dower found him guilty of driving without a license. So that's what the
charge is here today.
"THE COURT: Okay.
"MR. KEPFIELD: Thank you, Judge."

This conversation may indicate that the city attorney had told the judge before the
trial de novo that the charge was driving without a license and had told the defense
attorney the same at some point. And it reflects no objection by the defense attorney to
that course of action.

Nonetheless, we cannot find this to be a proper amendment under the facts shown
of record. "The charging instrument must set out the specific offense alleged against the
defendant in order to inform the defendant of the nature of the accusation against him or
her and to protect the defendant from being convicted on the basis of facts that were not
contemplated in the initial charges." State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15
(2009). A complaint can be amended orally, State v. Rasch, 243 Kan. 495, 501, 758 P.2d
214 (1988), but generally a writing is required. State v. Davis, 283 Kan. 767, 768, 156
P.3d 665 (2007). An amendment "'may be shown by interlineation on the complaint or
information, by the filing of an amended complaint or information, or by a journal entry
stating the amendment to the complaint or information.'" 283 Kan. at 768 (quoting Rasch,
243 Kan. at 501). Failure to memorialize an amendment is harmless error when the
defendant is not prejudiced by the failure to memorialize the amendment and had notice
of it being made on the record. See State v. Switzer, 244 Kan. 449, 457, 769 P.2d 645
(1989).

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But here, the documents before us fail to reflect that any amendment to the charge
was ever made on the record. The district court's journal entry does not indicate that the
complaint was amended; the record reflects that no amended complaint was filed; and no
interlineation appears on the citation itself. Further, the record is silent as to any oral
amendment of the charge, but for the colloquy set forth above. That conversation, itself,
does not constitute an amendment on the record but merely alludes to prior conversations
about an amendment, and those prior conversations are not reflected in the record.

De facto amendment

The prosecution seems to suggest that the very fact that Jackson was convicted in
municipal court of driving without a license necessarily means that his appeal was from
that charge. It concedes that the parties and the district court "erroneously proceeded"
under the belief that the charged offense was driving while suspended, noting that
Jackson could not be retried on that charge in district court since he had been acquitted of
it in municipal court.

This argument would have a certain logical appeal were the district court
proceedings in the nature of a typical appeal rather than a trial de novo, but we reject it as
contrary to the statute, which specifically provides that when a case is appealed to the
district court, such court shall hear and determine the cause de novo on the original
complaint. K.S.A. 22-3610(a). Because the stated exceptions to that rule are not present
here, and no amendment on the record has been shown, we apply the plain language of
the statute.

The district court's attempt to amend the complaint to conform to the evidence

District courts have the power to amend a complaint to conform to the evidence
admitted at trial. The relevant statute provides that a complaint or information may be
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amended "at any time before verdict or finding if no additional or different crime is
charged and if substantial rights of the defendant are not prejudiced." K.S.A. 22-3201(e).

But here, an additional or different crime was charged. Jackson was cited for
violating Hutchinson Standard Traffic Offense (STO) 194, which is the same as K.S.A.
2014 Supp. 8-262, driving while suspended. The district court convicted Jackson of
violating Hutchinson STO 192, or K.S.A. 2014 Supp. 8-235, driving without a license.
K.S.A. 2014 Supp. 8-235 requires proof that the defendant was driving without a license,
and K.S.A. 2014 Supp. 8-262 requires proof that the defendant at one point had a license
that is now canceled, suspended, or revoked or proof that the defendant's privilege to
obtain a license is suspended or revoked. State v. Armstead, No. 108,533, 2014 WL
349561, at *5. (Kan. App. 2014) (unpublished opinion).

Thus driving without a license and driving while suspended are different crimes.
See State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000). One is not a lesser included
offense of the other. See Armstead, 2014 WL 349561, at *4-5. "[T]he district court's
discretion to amend the complaint before the verdict is statutorily limited under K.S.A.
22-3201(e) to circumstances where no additional or different crime is charged and no
prejudice is suffered." Armstead, 2014 WL 349561, at *4.

Under these circumstances, we find that the district court abused its discretion and
exceeded its jurisdiction in making this amendment to conform to the evidence, which
amendment charged a new crime. See State v. Ramirez, 299 Kan. 224, 227-28, 328 P.3d
1075 (2014); State v. Gonzales, 289 Kan. 351, 367, 212 P.3d 215 (2009); State v.
Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000).

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Invited error

The prosecution contends that Jackson's attorney in closing argument invited the
district court to err by arguing for a "lesser included" offense. But the record reveals that
Jackson's attorney did not get what he requested. He invited the court to find Jackson
guilty of failing to display a valid license in violation of STO section 193 or K.S.A. 8-
244. Jackson was convicted, however, of driving without a license in violation of STO
192. Under these circumstances, the invited error doctrine is inapplicable.

Double jeopardy

Finally, Jackson argues that the Double Jeopardy Clause prevents him from being
prosecuted again for driving while suspended.

Although the district court did not make a specific finding as to the charge of
driving while suspended, it stated that it was duplicating the municipal court's order. That
order clearly states that it found Jackson not guilty of driving while suspended.
Accordingly, the district court's finding is equivalent to an acquittal on the charge of
driving while suspended, and Jackson cannot be prosecuted again for that charge. See
K.S.A. 2014 Supp. 21-5110 (a)(1).

Reversed.