City of Mission v. Folkers

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NOT DESIGNATED FOR PUBLICATION

Nos. 113,781
114,111

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF MISSION, KANSAS,
Appellee,

v.

CHRIS FOLKERS,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed December 2,
2016. Affirmed.

Chris Folkers, appellant pro se.

Laurel R. Kupka, of Payne & Jones, Chartered, of Overland Park, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

Per Curiam: Chris Folkers, pro se, appeals two convictions for traffic infractions.
The cases were consolidated on appeal. He contends the district court was without
jurisdiction to convict him and that his constitutional rights were violated. Folkers is
incorrect, and we affirm.

On April 26, 2014, Officer Roy Castle of the Mission Police Department observed
Folkers operating a motor vehicle in excess of the speed limit in Mission. Officer Castle
cited Folkers for speeding 68 miles per hour in a 55 miles-per-hour zone in violation of
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Mission Municipal Code Section 310.010. Officer Castle served on Folkers a uniform
complaint and notice to appear.

Then, on September 4, 2014, Officer Jeremy Assal, of the Mission Police
Department, observed Folkers operating a motor vehicle in excess of the speed limit in
Mission. Officer Assal cited Folkers for speeding 34 miles per hour in a 20 miles-per-
hour zone in violation of Mission Municipal Code Section 310.010. Officer Assal served
on Folkers a uniform complaint and notice to appear.

Folkers entered no contest pleas to both charges. Judge Robert G. Scott of the
Mission Municipal Court found Folkers guilty in each case. Folkers appealed to the
Johnson County District Court. The cases were assigned to Judge Thomas Kelly Ryan.

In March 2015, Folkers filed a motion to disqualify Judge Ryan. Judge Ryan heard
and denied the motion on March 6, 2015. After that, Chief Judge Kevin Moriarty of the
Johnson County District Court also reviewed and denied the motion.

Both cases proceeded to trial. The April 2014 infraction was tried to the court on
April 13, 2015. Officer Castle testified that he observed Folkers operating a motor
vehicle traveling 68 miles per hour in a 55 miles-per-hour zone. Officer Castle testified
the violation occurred within the city limits of Mission. The district court found Folkers
guilty of speeding. The court imposed a fine of $95 plus court costs.

The September 2014 citation was tried to the court on June 11, 2015. Officer Assal
testified that he observed Folkers operating a motor vehicle traveling 34 miles per hour in
a 20 miles-per-hour zone. Officer Assal testified the violation occurred within the city
limits of Mission. The district court found Folkers guilty of speeding. The court imposed
a $150 fine.

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Folkers filed a notice of appeal in both cases claiming a lack of jurisdiction,
violation of due process, denial of the right to a jury trial, lack of a legally competent
administrator, and obstruction of constitutional rights.

The district court had jurisdiction.

Folkers contends that the district court was without subject matter jurisdiction
primarily because no one testified on the record to establish all jurisdictional facts.

Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. State v. Dull, 302 Kan. 32, 61, 351 P.3d 641 (2015), cert. denied 136
S. Ct. 1364 (2016).

K.S.A. 2015 Supp. 12-4104 provides that the municipal court of each city "shall
have jurisdiction to hear and determine cases involving violations of the ordinances of the
city." A prosecution for violation of a municipal ordinance is commenced by the filing of
a complaint with the municipal court. K.S.A. 12-4201. The requirements of the complaint
are set forth in K.S.A. 12-4202. A law enforcement officer serves the complaint together
with a notice to appear on the accused. K.S.A. 2015 Supp. 12-4203.

A defendant then has the right to appeal to the district court any conviction in
municipal court for violations of municipal ordinances within 14 days from the date of
the judgment appealed. K.S.A. 2015 Supp. 12-4601; K.S.A. 2015 Supp. 22-3609(a)-(b).
An appeal to the district court is taken by the filing of a notice of appeal. K.S.A. 2015
Supp. 22-3609(b). A district court judge is assigned to hear the case. K.S.A. 2015 Supp.
22-3609(a). The district court hears and determines the case on the original complaint.
K.S.A. 22-3610.

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Police officers properly served a complaint and notice to appear on Folkers for
violations of Mission Municipal Code Section 310.010. The Mission Municipal Court
had jurisdiction to hear and determine the cases. See K.S.A. 2015 Supp. 12-4104. Folkers
filed notices of appeal in both cases. The cases were then properly within the jurisdiction
of the Johnson County District Court.

The district court did not violate Folkers' constitutional right to a jury trial.

Folkers contends that his right to a jury trial was violated. He argues the denial of
a jury trial violated his substantive and procedural due process rights.

Whether a defendant's constitutional rights were violated is a question of law over
which this court's review is unlimited. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853
(2014).

Kansas statutes provide that appeals from municipal judges in traffic infraction
cases "shall be tried by the court." K.S.A. 2015 Supp. 22-3609(d); K.S.A. 22-3404(5).
These Kansas statutes do not violate the right to a jury trial under the Kansas or United
States Constitutions. The Kansas Supreme Court interprets the jury-trial right under the
Kansas Constitution consistent with the United States Supreme Court's interpretation of
the Sixth Amendment. State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 (2014), rev'd in part
on other grounds 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016).

It is well settled that there are a class of "petty offenses" to which no jury trial
right attaches. Blanton v. City of North Las Vegas, 489 U.S. 538, 541, 109 S. Ct. 1289,
103 L. Ed. 2d 550 (1989); State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975); State
v. Woolverton, 52 Kan. App. 2d 700, 701, 371 P.3d 941 (2016), petition for rev. filed
May 31, 2016. In determining whether an offense is petty, primary emphasis is placed on
the maximum period of incarceration. A crime in which the maximum term of
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imprisonment is 6 months is presumptively a petty offense. In such case, a defendant is
entitled to a jury trial only if the defendant can demonstrate the additional statutory
penalties are so severe that they "clearly reflect a legislative determination that the
offense in question is a 'serious' one." Blanton, 489 U.S. at 542-43; Woolverton, 52 Kan.
App. 2d at 702.

In United States v. Nachtigal, the United States Supreme Court held that a traffic
offense with a maximum term of 6 months' imprisonment and a maximum fine of $5,000
was a petty offense to which the constitutional right to a jury trial did not apply. 507 U.S.
1, 4-6, 113 S. Ct. 1072, 122 L. Ed. 2d 374 (1993); see Southern Union Co. v. United
States, 132 S. Ct. 2344, 2351-52, 183 L. Ed. 2d 318 (2012). In Southern Union Co., the
Court held that insubstantial fines do not trigger the right to a jury trial. In Woolverton,
this court held that an offense with a maximum punishment of 6 months' incarceration
and a fine of $500 was a petty offense to which no jury trial right attaches. 52 Kan. App.
2d 700, Syl. ¶ 3.

Folkers was charged with speeding offenses in violation of Mission Municipal
Code Section 310.010. The maximum penalty for the traffic infractions was a fine. The
fines for the offenses were less than $200. Thus, the infractions were petty offenses, and
Folkers was not entitled to a jury trial.

There is no evidence that Judge Ryan was biased or prejudiced against Folkers.

Folkers contends that Judge Ryan intentionally and knowingly obstructed his
credibility examination of witnesses and introduction of evidence. Folkers argues Judge
Ryan and others were biased against him and deprived him of his constitutional rights.

Folkers does not explain how any of Judge Ryan's evidentiary rulings were in
violation of the rules of evidence, and we find no basis in the record for such a
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conclusion. Folkers was permitted to cross-examine the prosecution's witnesses. The
court did admit into evidence copies of Officer Castle's and Officer Assal's oaths of
office. The court did not abuse its discretion in determining the oath of office of a
nonwitness was not relevant and excluding the same. See State v. Page, 303 Kan. 548,
550-51, 363 P.3d 391 (2015). Moreover, any erroneous admission or exclusion of
evidence was harmless error. See K.S.A. 2015 Supp. 60-261; State v. Longstaff, 296 Kan.
884, 895, 299 P.3d 268 (2013). Folkers' questioning of the witnesses did not have any
bearing on the officers' credibility or Folkers' guilt to the charged infractions.

There was no violation of Folkers' constitutional rights because Judge Ryan
presided over his trial. Folkers filed a pretrial motion to disqualify Judge Ryan. The
motion is not in the record. Judge Ryan heard the motion on March 6, 2015. Folkers
primarily complained that Judge Ryan had denied his demand for a jury trial. Judge Ryan
considered and denied the motion. Chief Judge Kevin Moriarty of the Johnson County
District Court also reviewed and denied the motion. The district court found that the
arguments in Folkers' motion were meritless and frivolous. The court found that Folkers
"did not provide an Affidavit setting forth specific facts showing that Judge Ryan is in
any way biased or prejudiced against Defendant. Defendant's misunderstanding of his
right to a jury trial on a speeding ticket, does not warrant a recusal." Folkers contends he
filed an affidavit on March 13, 2015. But there is no affidavit in the record on appeal.
Regardless, Folkers still has not stated any facts that support a finding of bias or
prejudice.

There is no evidence of bias or prejudice in the record. The court's denial of
Folkers' motion to dismiss and his request for a jury trial do not amount to bias or
prejudice. Rather, Folkers merely disagrees with the court's rulings. But Folkers is wrong
on the law.


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The district court did not err by relying on the testimony of Officers Castle and Assal.

Folkers contends that the court erred by determining Officers Castle and Assal
were police officers. He contends that Officers Castle's and Assal's oaths of office do not
match the statutorily prescribed oath of office. The defense exhibits that Folkers refers to
are not part of the record on appeal. Folkers, as the party claiming an error occurred, had
the burden to designate a record that affirmatively showed an error occurred. Without
such a record, this court presumes the action of the trial court was proper. See State v.
Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015).

Folkers contends that the district court was not permitted to make fact
determinations or decide the credibility of the witnesses.

However, the judge is the finder of fact in a bench trial. State v. Pratt, 255 Kan.
767, 769, 876 P.2d 1390 (1994); State v. Dority, 50 Kan. App. 2d 336, Syl. ¶ 3, 324 P.3d
1146 (2014), rev. denied 301 Kan. 1048 (2015). On review, the appellate court does not
reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of
witnesses. State v. Lewis, 301 Kan. 349, Syl. ¶ 2, 344 P.3d 928 (2015).

Officers Castle and Assal were fact witnesses. Officer Castle testified that he was
employed as a police officer with the City of Mission. He testified he observed Folkers
speeding within the city limits of Mission. On cross-examination, he testified he took the
oath of office administered by the City of Mission. The court admitted a copy of Officer
Castle's oath of office into evidence.

Officer Assal testified that he was employed as a police officer with the City of
Mission. He testified he observed Folkers speeding within the city limits of Mission. On
cross-examination, he testified he took an oath of office. The court admitted Officer
Assal's oath of office into evidence.
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The district court did not err by making fact or credibility determinations based on
the officers' testimony.

Folkers also makes various other unexplained claims that are unsupported by the
law or the record. A point raised incidentally in a brief and not argued therein is deemed
abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). Failure to support
a point with pertinent authority or show why it is sound despite a lack of supporting
authority is akin to failing to brief the issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d
1158 (2015).

Affirmed.