State v. Appelhanz

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NOT DESIGNATED FOR PUBLICATION

No. 119,178


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN CHRISTOPHER APPELHANZ,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; JEAN M. SCHMIDT, judge. Opinion filed March 15, 2019.
Affirmed.

Brian Christopher Appelhanz, appellant pro se.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before ATCHESON, P.J., MALONE and LEBEN, JJ.

PER CURIAM: While driving his pickup truck in downtown Topeka in March
2018, Brian Christopher Appelhanz received a citation for failing to wear a seatbelt—a
violation of K.S.A. 2017 Supp. 8-2503(a)(1). Rather than pay the $30 fine, Appelhanz
exercised his right to fight and requested a jury trial in Shawnee County District Court.
The jury convicted him a little over a month later. Appelhanz now brings his fight to us.
Representing himself, Appelhanz has offered a diffuse set of arguments ranging from the
notion the seatbelt violation isn't a crime at all to a claimed right to tell the jurors they
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could have and should have disregarded the law to find him not guilty. We find nothing
in the offering requiring reversal of the conviction, notwithstanding Appelhanz' industry,
and therefore affirm the verdict and the fine.

Kansas Highway Patrol Trooper Michael Rice saw Appelhanz driving without a
seatbelt and signaled him to pull over. According to Trooper Rice, Appelhanz put on the
seatbelt as he stopped. Trooper Rice asked Appelhanz why he hadn't been wearing a
seatbelt. He replied that he "guessed" he was anti-seatbelt. Trooper Rice issued
Appelhanz a citation for a violation of K.S.A. 2017 Supp. 8-2503(a)(1).

Under K.S.A. 2017 Supp. 8-2503(a)(1), anyone more than 18 years old riding in
"a passenger car manufactured with safety belts" must use those seatbelts if they conform
to specified federal safety standards. Separate statutory provisions apply to persons
younger than 18 years old. See K.S.A. 2017 Supp. 8-1344; K.S.A. 2017 Supp. 8-
2503(a)(2). A pickup truck is considered a passenger car. K.S.A. 8-1445. Appelhanz
doesn't argue otherwise. Nor does he contend the seatbelts in his pickup truck were
nonconforming under the federal standards. As provided in K.S.A. 2017 Supp. 8-
2504(a)(1), "[p]ersons violating K.S.A. 8-2503(a)(1) shall be fined $30 and no court
costs." In short, the fine is the sole penalty a district court can impose on an adult for
failing to wear a seatbelt.

Appelhanz requested a jury trial and filed a motion to dismiss on the grounds that
failure to wear a seatbelt is not actually a crime. The district court denied the motion. The
State presented Trooper Rice as its only witness at the jury trial. Appelhanz did not cross-
examine the officer and offered no evidence of his own. The district court largely rejected
Appelhanz' proposed jury instruction and entered an order precluding Appelhanz from
arguing to the jurors that they could find him not guilty if they believed a person should
not be punished for refusing to wear a seatbelt. The jurors found Appelhanz guilty. The
district court fined Appelhanz $30. Appelhanz has appealed.
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On appeal, Appelhanz argues that a violation of K.S.A. 2017 Supp. 8-2504(a)(1)
should not be treated as an unclassified misdemeanor, properly should be considered a
traffic infraction, or really shouldn't be criminalized at all. The arguments blend together
in his brief, although Appelhanz suggests a singular remedy—his conviction should be
reversed. We disagree. For the most part, those arguments attack the Legislature's
prerogative to define crimes and their punishments. See State v. Sexton, 232 Kan. 539,
542-43, 657 P.2d 43 (1983). And the fix for a perceived misclassification is to lobby the
Legislature to change the law. We now examine the components of Appelhanz' argument
more closely.

The Legislature has identified "traffic infractions" and the fines to be imposed for
them in K.S.A. 2017 Supp. 8-2118(c). A seatbelt violation is not among them. Nearly all
of the traffic offenses have scheduled fines of more than $30, suggesting they are
considered more serious than a seatbelt violation.

The Legislature has classified and defined state crimes in K.S.A. 2017 Supp. 21-
5102. There are three defined categories of crimes in K.S.A. 2017 Supp. 21-5102: (1)
Felonies, generally those crimes punishable by incarceration in a state prison; (2) traffic
infractions, as listed in K.S.A. 2017 Supp. 8-2118(c); and (3) cigarette or tobacco
infractions identified in enumerated statutes. The fourth category entails a catchall for
everything else and provides that "[a]ll other crimes are misdemeanors." K.S.A. 2017
Supp. 21-5102(d).

A seatbelt violation is plainly not a felony, a traffic infraction, or a cigarette or
tobacco infraction. By process of elimination, it must be a misdemeanor.

In turn, the Legislature has statutorily divided and defined misdemeanors in
K.S.A. 2017 Supp. 21-6602 essentially by the penalties that may be imposed. The statute
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identifies class A, B, and C misdemeanors based on the decreasing terms of incarceration
in a county jail that may be imposed as punishment for each class and then provides a
catchall category of "unclassified misdemeanors" that "shall include all crimes declared
to be misdemeanors without specification as to class." Pertinent here, an unclassified
misdemeanor carries the penalty contained in the statute or statutes criminalizing the
conduct. Again, a seatbelt violation falls in the unclassified misdemeanor category, since
the only punishment is a fine.

At a granular level, Appelhanz points out that neither K.S.A. 2017 Supp. 8-2503
nor K.S.A. 2017 Supp. 8-2504 expressly identifies a seatbelt violation as a misdemeanor,
so it shouldn't be considered one. But K.S.A. 2017 Supp. 21-6602(a)(4) simply provides
that unclassified misdemeanors "include" crimes designated as misdemeanors without
identifying a class but does not limit the category to only those offenses. As a catchall,
the statutory language also covers crimes that do not have penalties making them class A,
B, or C misdemeanors, even if they omit the word "misdemeanor." Those offenses would
still be misdemeanors within the meaning of K.S.A. 2017 Supp. 21-5102(d). In that
respect, Appelhanz' argument fails.

More broadly, Appelhanz says a seatbelt violation more logically ought to be
considered a traffic infraction rather than an unclassified misdemeanor. That may be true
in the sense it is akin to the statutorily designated traffic infractions. But the Legislature
needn't be that tidy in how it pigeonholes crimes. And although Appelhanz arguably wins
his pitch as to what may be logical, that does not provide any sort of legal basis for
voiding his conviction merely because the Legislature reasonably might have labeled the
offense a traffic infraction and didn't.

Similarly, Appelhanz submits that K.S.A. 2017 Supp. 8-2503 and K.S.A. 2017
Supp. 8-2504 do not establish a criminal offense at all. He notes the absence of a
reference to the violation being a misdemeanor and its omission from the list of traffic
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infractions, and he mentions the history of the seatbelt violations in Kansas. At one time,
law enforcement officers could not stop a vehicle because an occupant was not wearing a
seatbelt. If an officer had another reason for the stop, he or she could issue a warning
about the safety implications of not wearing a seatbelt. The Legislature later imposed a
minimal fine plus court costs for a violation and has tinkered with the amount of the fine
over the years and whether court costs should be assessed. The Legislature also
eventually amended K.S.A. 2017 Supp. 8-2503 to allow law enforcement officers to
make stops specifically for seatbelt violations by drivers or front seat passengers. The
version of K.S.A. 2017 Supp. 8-2504 setting the fine at $30 with no assessment of court
costs went into effect July 1, 2017, and applies to Appelhanz.

The legislative history of seatbelt violations in Kansas may be interesting and even
curious, especially severed from federal programs and regulations aimed at promoting
highway safety, including seatbelt use. But that history is essentially irrelevant to whether
a violation of K.S.A. 2017 Supp. 8-2503(a)(1) constitutes a crime. As we have already
outlined, the statute defines conduct that fits within the classification for misdemeanors in
K.S.A. 2017 Supp. 21-5102(d) based on the fine imposed for a violation in K.S.A. 2017
Supp. 8-2504.

The Legislature's use of the word "fine" to describe the punishment for a violation
is telling. As set out in K.S.A. 2017 Supp. 21-5102, a crime is a defined act for which "a
sentence of . . . imprisonment or fine[] or both . . . is authorized." So the statutory
definition of a crime extends to a seatbelt violation because the punishment entails a fine.
More generally, a fine is considered a form of punishment commonly attached to a wrong
considered criminal in nature. See Webster's New World College Dictionary 542 (5th ed.
2016) (defining "fine" as "a sum required to be paid as punishment or penalty");
Merriam-Webster's Collegiate Dictionary 469 (11th ed. 2003) (defining "fine" as "a sum
imposed as punishment for an offense"). We presume the words of a statute should be
given their ordinary meaning unless the context plainly conveys something different. See
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Walters v. Metropolitan Educational Enterprises, Inc., 519 U.S. 202, 207, 117 S. Ct. 660,
136 L. Ed. 2d 644 (1997); Bennett v. CMH Homes, Inc., 770 F.3d 511, 515 (6th Cir.
2014); Garetson Brothers v. American Warrior, Inc., 51 Kan. App. 2d 370, 383, 347 P.3d
687 (2015). Had the Legislature intended to treat a violation of K.S.A. 2017 Supp. 8-
2503(a)(1) as a noncriminal matter, it would have designated the amount to be paid for
noncompliance as a civil penalty rather than as a fine. The Legislature regularly uses the
term "civil penalty" to identify noncriminal sanctions. See, e.g., K.S.A. 8-1342 (civil
penalty for gross weight violations for certain vehicles); K.S.A. 2017 Supp. 8-2426 (civil
penalty for misuse of dealer license plates); K.S.A. 50-636 (civil penalties for violation of
Kansas Consumer Protection Act, K.S.A. 50-623 et seq.).

We find no statutory basis to conclude the Legislature intended a seatbelt violation
to be something other than a criminal wrong. Given the classification system the
Legislature has adopted for criminal wrongs, the violation is an unclassified
misdemeanor.

Finally, in this respect, Appelhanz suggests compelling public policy favors
handling seatbelt violations as something other than criminal offenses. He makes a
complementary argument that treating persons convicted of seatbelt violations as
misdemeanants subjects them to undue and undeserved public opprobrium. We are
unmoved. As we have indicated, public policy determinations in defining and punishing
criminal conduct lie with the Legislature rather than the courts. See State v. Spencer
Gifts, LLC, 304 Kan. 755, Syl. ¶ 4, 374 P.3d 680 (2016) ("Questions of public policy are
for legislative and not judicial determination, and where the legislature declares a policy,
and there is no constitutional impediment, the question of the wisdom, justice, or
expediency of the legislation is for that body and not for the courts."); In re Marriage of
Hall, 295 Kan. 776, 784, 286 P.3d 210 (2012) (recognizing paramount roll of Legislature
in identifying and implementing public policy). So Appelhanz should present his policy
concerns to the Kansas House and Senate.
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Appelhanz has not shown just what ignominy he has suffered as a convicted
misdemeanant. Misdemeanants are not required to walk around wearing prominently
displayed scarlet Ms, and they typically suffer no civil disabilities of the sort imposed on
convicted felons. See State v. Dugan, 47 Kan. App. 2d 582, 600-01, 276 P.3d 819 (2012)
(outlining civil disabilities resulting from felony convictions). No collateral legal
disabilities attach to a seatbelt violation. More to the point, perhaps, even if Appelhanz
had factually established some adverse reaction to his conviction because it is considered
a misdemeanor rather than a traffic offense or a civil wrong, that also falls within the
realm of public policy considerations entrusted to the legislative branch.

For his other issue on appeal, Appelhanz argues the district court impermissibly
prohibited him from arguing to the jurors that they could (and should) find him not guilty
because criminalizing the failure to wear seatbelts is a dumb idea or, more
euphemistically, poor public policy. Basically, Appelhanz wanted to tell the jurors they
had the ability to bring back a not guilty verdict even if the law and the evidence fully
supported a conviction—as appeared to be the case here. In criminal cases, juries have
that unchecked power known as nullification. State v. McClanahan, 212 Kan. 208,
Syl. ¶ 3, 510 P.2d 153 (1973). But a criminal defendant has no legal right to a verdict
based on jury nullification.

Accordingly, district courts should not instruct jurors that they may render a
nullification verdict. 212 Kan. 208, Syl. ¶ 3; see PIK Crim. 4th 68.010 (instruction
informs jurors: "Your verdict must be founded entirely upon the evidence admitted and
the law as given in these instructions."); State v. Shay, 56 Kan. App. 2d ___, ___ P.3d
___, 2019 WL 492671, at *6-7 (No. 118,303, filed February 8, 2019) (holding PIK Crim.
4th 68.010 does not impermissibly diminish power of jury nullification). Consistent with
McClanahan and authority from numerous other jurisdictions, this court has regularly
recognized that neither the prosecutor nor the defendant may suggest to jurors that they
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can disregard the law and the evidence to return a renegade verdict. State v. Bradford,
No. 115,008, 2016 WL 7429318, at *4 (Kan. App. 2016) (unpublished opinion)
("Lawyers may not speak of that power [of nullification] in the presence of the jurors,
and district courts do not inform jurors about it."); State v. Stinson, No. 112,655, 2016
WL 3031216, at *3 (Kan. App. 2016) (unpublished opinion) (Atcheson, J., concurring)
(lawyer for defendant may not "in closing argument ask the jurors to acquit the defendant
in disregard of the law or the evidence"); State v. Chambers, No. 111,390, 2015 WL
967595, at *8 (Kan. App. 2015) (unpublished opinion) (recognizing lawyer may not
argue nullification to jury and collecting supporting caselaw). We see no good reason to
deviate from those decisions.

The district court committed no error in declining to instruct the jury on
nullification and in prohibiting Appelhanz from discussing nullification in his closing
argument or otherwise in front of the jury.

Affirmed.