State v. Banuelos-Arambula

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NOT DESIGNATED FOR PUBLICATION

No. 114,109

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

PERLA A. BANUELOS-ARAMBULA,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; BILL L. KLAPPER, judge. Opinion filed May 26, 2017.
Appeal dismissed.

Ian D. Tomasic, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellant.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and HEBERT, S.J.

Per Curiam: The State appeals the district court's order of judgment acquitting
Perla A. Banuelos-Arambula of the criminal charge filed against her: dealing in false
identification documents. But the district court's judgment of acquittal resolved the
factual elements of the offense charged after jeopardy attached; accordingly, we have no
jurisdiction to hear the State's appeal. Accordingly, we must dismiss.



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FACTS

On September 26, 2013, Kansas City, Kansas, Detective Nathan Doleshal received
a tip from a confidential informant (CI) that a woman known as "Perla" was potentially
selling false identification documents. Based on the tip, Doleshal worked with the CI to
set up a controlled purchase of documents from Perla. On September 27, 2013, the CI
contacted Perla and negotiated a price of $100 for the purchase of false identification
documents to be picked up later that day at an address on Baltimore Avenue in Kansas
City, Wyandotte County, Kansas. Doleshal outfitted the CI with a recording device and
provided a $100 bill, the serial number of which he recorded for the purchase. The CI
drove to the address and met with an older Hispanic woman, with whom he exchanged
the $100 bill for the documents. The CI then provided the documents—a Social Security
card and an identification card—to Kansas City Police Officer Jeff Miskec.

Detective Doleshal set up a second controlled purchase between the CI and Perla
using the same information on October 1, 2013. Doleshal again outfitted the CI with a
recording device and provided the CI with two $50 bills, the serial numbers of which he
recorded. Doleshal drove the CI to the same address as provided for the first purchase.
Doleshal parked on the street and observed as the CI exchanged the money for the
documents with a younger woman at the front door of the residence and returned to
Doleshal's vehicle, where the CI handed Doleshal a Social Security card and
identification card.

Based on the evidence obtained from the controlled purchases, Detective Doleshal
obtained a search warrant for the residence on Baltimore Avenue, which was executed on
October 2, 2013. When the police arrived, they made contact with Mayela Arambula-
Perez, whom Doleshal identified as the seller from the first controlled exchange.
Suspecting that Perla was Arambula-Perez' daughter, the officers asked Arambula-Perez
to contact her daughter and ask her to return home. A short time later Banuelos-Arambula
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arrived. Doleshal identified Banuelos-Arambula as the seller from the second controlled
purchase.

Police took Banuelos-Arambula into custody and confiscated her cell phone as
evidence. When the police placed a phone call to the number the CI had used to contact
Perla to set up the controlled purchases, Banuelos-Arambula's phone rang. The officers
also searched Banuelos-Arambula's wallet and discovered two $50 bills with serial
numbers matching those that Doleshal recorded prior to the second controlled purchase.

The State ultimately charged Banuelos-Arambula with dealing in false
identification documents in violation of K.S.A. 2016 Supp. 21-5918(a), a severity level 8,
nonperson felony. At the preliminary hearing, the State's only witness was Detective
Doleshal. Banuelos-Arambula moved to dismiss on grounds that Doleshal could not
testify about information he received from the CI because such testimony was
inadmissible hearsay. The State responded that Doleshal's testimony provided sufficient
evidence for a probable cause hearing and that "although we were not able to produce the
CI today, the CI would obviously testify to what happened and what he said." The district
court agreed that the State presented probable cause and bound Banuelos-Arambula over
for trial.

The case proceeded to jury trial. After presenting three witnesses, the State
advised the district court that, contrary to its assurance at the preliminary hearing, the CI
would not testify at trial. The State then rested its case. Defense counsel moved for a
directed verdict of acquittal, arguing that because counsel had relied on the State's
assurance that the CI would testify at trial, counsel did not object to evidence or
testimony that would now be deemed inadmissible without the CI's testimony. Counsel
also argued the State presented insufficient evidence to establish the crime charged
without the testimony of the CI. Finally, counsel argued that the State's failure to present
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the CI as a witness prejudiced Banuelos-Arambula's substantial rights by completely
eliminating the ability to cross-examine the CI about statements implicating her.

The district court directed a verdict of acquittal in Banuelos-Arambula's favor. The
court held that it was "extremely prejudicial" for Banuelos-Arambula to have prepared
for and proceeded in trial with the understanding that the CI would testify. In a written
order, the district court made the following findings:

"1. The State presented sufficient evidence, in the light most favorable to the State, that
a reasonable fact finder could find the defendant guilty of the crime charged beyond
a reasonable doubt.
"2. The State did not present testimony from the confidential informant used to make
the controlled buy in this case;
"3. The Court allowed in certain evidence that it otherwise may not have admitted had it
known the confidential informant was not going to be called as a witness;
"4. The defendant was denied an opportunity to cross-examine a key witness to the
crimes charged and was, therefore, unduly prejudiced."

Based on those findings, the district court granted Banuelos-Arambula's motion,
dismissed the case against her, and discharged her from custody. After dismissal, the
State moved the district court to reconsider or clarify its decision to grant directed
verdict. The court held a hearing on the motion, at which the judge stated his rulings
throughout the case were based on the assumption that the CI would be present and the
defense would have the opportunity to cross-examine the CI, but that the basis for some
of those decisions "had been substantially wiped off the table." The judge indicated that
without the CI's testimony, there was not enough evidence to meet the State's burden in
this case. The court denied the State's motion to reconsider the directed verdict of
acquittal in a written order following the hearing, which stated:


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"1. The original position of the court has not changed.
"2. Sufficient evidence was presented by the State, so that a reasonable jury could have
found the defendant guilty beyond a reasonable doubt.
"3. The defendant was unduly prejudiced by the failure of the State to call the
confidential informant in the case.
"4. Evidence was admitted that the court may not have otherwise admitted had it known
the State was not going to present testimony from the confidential informant."

ANALYSIS

On appeal, the State alleges the district court erred in granting Banuelos-
Arambula's motion for a directed verdict of acquittal. Banuelos-Arambula asserts we do
not have jurisdiction because the State is appealing from a judgment of acquittal.
Whether the State has jurisdiction to appeal a district court's order presents a purely legal
question over which this court exercises unlimited review. See State v. Burnett, 297 Kan.
447, 451, 301 P.3d 698 (2013).

Subject to certain exceptions, Kansas appellate courts only have jurisdiction over
appeals taken in a manner prescribed by statute. State v. Roberts, 293 Kan. 29, 33, 259
P.3d 691 (2011). The State brought its appeal pursuant to K.S.A. 2013 Supp. 22-3602(b),
which provides in relevant part:

"(b) Appeals to the court of appeals may be taken by the prosecution from cases
before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or B felony
or for crimes committed on or after July 1, 1993, in any case involving an off-grid
crime."

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The State may not appeal a judgment of acquittal because such appellate review
would constitute double jeopardy. See Roberts, 293 Kan. 29, Syl. ¶ 1; State v. Whorton,
225 Kan. 251, 254, 589 P.2d 610 (1979); State v. Crozier, 225 Kan. 120, 122, 587 P.2d
331 (1978); State v. Gustin, 212 Kan. 475, 479-80, 510 P.2d 1290 (1973). The State
argues, however, that we should not characterize the district court's judgment as an
acquittal but instead as a dismissal, which would make appellate jurisdiction proper under
K.S.A. 2013 Supp. 22-3602(b)(1). "The distinction between a judgment of acquittal [and]
of dismissal is often not easily determined." State v. Beerbower, 262 Kan. 248, 252, 936
P.2d 248 (1997). While the district court issued a judgment of acquittal here, a trial
court's characterization of its own order does not control how appellate courts view it.
See Whorton, 225 Kan. at 254.

The Kansas statute that authorizes judgments of acquittal, K.S.A. 22-3419,
provides in pertinent part:

"(1) The court on motion of a defendant or on its own motion shall order the
entry of judgment of acquittal of one or more crimes charged in the complaint, indictment
or information after the evidence on either side is closed if the evidence is insufficient to
sustain a conviction of such crime or crimes. If a defendant's motion for judgment of
acquittal at the close of the evidence offered by the prosecution is not granted, the
defendant may offer evidence without having reserved the right."

Kansas courts have similarly stated that for an order to be a nonappealable
judgment of acquittal, it must (1) resolve a factual element (2) after jeopardy has
attached. E.g., State v. Barlow, 303 Kan. 804, 808, 368 P.3d 331 (2016); Roberts, 293
Kan. at 35. So the first inquiry is whether the district judge's order resolved some or all of
the factual elements of the offense charged. A judgment of acquittal is "'a resolution,
correct or not, of some or all of the factual elements of the offense charged.'" Whorton,
225 Kan. at 254 (quoting United States v. Scott, 437 U.S. 82, 97, 98 S. Ct. 2187, 57 L.
Ed. 2d 65 [1978]); see also Barlow, 303 Kan. at 809 ("[T]he path taken by a district judge
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to arrive at . . . an acquittal order may be flawed, but, regardless, it is not subject to
reversal on appeal."). A challenge to the sufficiency of the evidence is properly viewed as
a motion for judgment of acquittal. Whorton, 225 Kan. at 254.

Here, as the State points out, the district court's written order on its judgment of
acquittal stated that "[t]he State presented sufficient evidence, in the light most favorable
to the State, that a reasonable fact finder could find the defendant guilty beyond a
reasonable doubt." But the court also stated in the same order that it "may not have
admitted" certain of the State's evidence "had it known the [CI] was not going to be
called as a witness." Finally, the court held that Banuelos-Arambula was "unduly
prejudiced" because she was denied an opportunity to cross-examine the CI, who was a
key witness to the crimes charged.

At the hearing on the State's motion to reconsider the judgment of acquittal, the
district court more fully explained why it had ruled that the failure of the CI to testify
created evidentiary issues:

"The Court had made previous rulings throughout the nature of this case that the
CI would be present and the defense counsel would have an opportunity to cross-examine
the [CI]. When the [CI] failed to appear, the basis for some of the Court's original
decisions in allowing testimony in had been substantially wiped off the table."

And most importantly, the court then concluded that without the CI's testimony, the court
no longer considered the evidence that the State relied upon sufficient to meet its burden:

"The State certainly has evidence that Detective Doleshal, who again, the Court
finds to be a credible witness, was able to observe the CI go to the door, see some
transaction take place, return to the vehicle having previously been searched and having
been delivered the items that the detective testified, the false ID documents, to him but to
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me that's just not enough without the CI being present to meet the State's burden in this
case. And for those reasons, I will deny the motion to reconsider."

The district court made factual findings when it determined that the State had
failed to meet its burden to prove the charges against Banuelos-Arambula. Specifically,
the district court found that, without the CI's testimony, the State did not present
sufficient evidence to support the charges in that case. Such a holding is proper grounds
for a judgment of acquittal. See Barlow, 303 Kan. at 810 (district judge's factual finding
that defendant was entitled to immunity eliminated possibility that State could meet
evidentiary burden to prove offense charged, and qualified as resolution of factual
elements of charged offense); see also State v. Coppage, 34 Kan. App. 2d 776, 779, 124
P.3d 511 (2005) ("Because the trial court resolved factual issues in finding that the State
could not meet its burden of proof, the trial court's dismissal of the charge amounted to a
judgment of acquittal."). The record confirms that the district court did resolve factual
issues in the instant case; thus a judgment of acquittal occurred.

The second aspect of a judgment of acquittal is the requirement that jeopardy has
attached. Jeopardy attached against Banuelos-Arambula when her jury was impaneled
and sworn. See K.S.A. 2016 Supp. 21-5110(f); State v. Ruden, 245 Kan. 95, 99, 774 P.2d
972 (1989). The court granted the acquittal after the close of the State's evidence. See
K.S.A. 22-3419(1) (judgment of acquittal may be entered "after the evidence on either
side is closed"); Roberts, 293 Kan. at 37 ("[I]f the order is entered after the close of one
party's evidence, jeopardy would have attached."). The district court resolved a factual
element of the offense after jeopardy had attached. Accordingly, double jeopardy bars
further prosecution of Banuelos-Arambula for dealing in false identification documents.

Alternatively, the State argues that the appellate court has jurisdiction pursuant to
K.S.A. 2013 Supp. 22-3602(b)(3), under which the State may obtain an appellate ruling
on a question reserved. A question reserved "presuppose[s] that the case at hand has
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concluded but that an answer is necessary for proper disposition of future cases which
may arise." State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). Kansas appellate
courts may consider a question reserved by the prosecution if the issue presented is of
"statewide interest important to the correct and uniform administration of criminal law."
State v. Berreth, 294 Kan. 98, 121, 273 P.3d 752 (2012). Resolution of a question
reserved must provide helpful precedent; it is not appropriate to merely determine
whether the district court committed error. 294 Kan. at 121-22.

The question reserved as set forth in the State's brief is "whether a district court is
permitted to grant a judgment of acquittal on a basis wholly unrelated to sufficiency of
the evidence." However, as discussed above, the district court's judgment of acquittal was
based on, and therefore related to, the sufficiency of the evidence: the court concluded
that without the CI's trial testimony, the State had not met its burden of proof.

Dismissed.