Opinion
No. 111346.
2015-03-13
STATE of Kansas, Appellee, v. William GEHRING, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Mary E. Kuckelman, assistant county attorney, Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Mary E. Kuckelman, assistant county attorney, Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
William Gehring appeals his conviction for felony interference with law enforcement. Gehring asserts that there was insufficient evidence to find him guilty of the crime and that prior to accepting a stipulation from his attorney regarding the existence of a felony warrant for his arrest, the court was required to inquire of Gehring to insure that the stipulation was knowingly and voluntarily made by him. Because we find that when viewed in the light most favorable to the prosecution there was sufficient evidence to support Gehring's conviction, his claim as to sufficiency of the evidence fails. And because we find that existing Kansas caselaw is clear that a trial court is not required to advise a defendant, who is represented by counsel, of anything before accepting and approving stipulations to the evidence, other than a stipulation to the status of the defendant, his second claim of error also fails.
Factual and Procedural History
The State charged William Gehring with felony interference with law enforcement.
At trial, the State presented evidence that an off-duty police officer identified Gehring riding in a van and knew that Gehring had a warrant out for his arrest. The off-duty officer informed Officer Brian Johnson, who was on duty, and informed him of Gehring's location.
After patrolling and searching for Gehring, Johnson observed three men standing near a car. One of the men appeared to be Gehring. Upon approaching the group, Johnson was able to positively identify Gehring. At the time of approach, Johnson was in uniform and driving a marked patrol vehicle.
Johnson got out of the patrol car and told Gehring to show his hands. After the third time Johnson asked to see Gehring's hands, Gehring looked up, told Johnson to “fuck you,” and began to run. Johnson informed the other units that Gehring was running, and he ran after Gehring and yelled at him to stop and that he was under arrest. He told Gehring to stop and that he was under arrest at least twice. Johnson ended his pursuit when Gehring went down an embankment. Later, a different officer was able to apprehend Gehring and arrest him.
Gehring testified that he heard Johnson order him to put his hands up three times but never heard Johnson say he was under arrest or that there was an arrest warrant out for him. Gehring ran from Johnson because Gehring thought he was going to be involuntarily committed to the state hospital again.
Before the trial started, the State asked whether Gehring wanted to stipulate that a felony warrant was issued for his arrest. The State indicated this it had witnesses ready to testify as such but wanted to give defense counsel a chance to avoid it being brought up at trial. Defense counsel indicated that he had discussed such a strategy with Gehring and they agreed that there should be some sort of agreement between Gehring and the State that there was a warrant issued for Gehring's arrest for a parole violation. Gehring verbally agreed with this assessment on the record. The State agreed and indicated that its witnesses would just say a warrant was out for Gehring's arrest but would not specify what type of warrant.
During the jury instruction conference, the State asked the court whether there should be an instruction that Gehring stipulated to the fact that a felony warrant was issued for Gehring's arrest. The court indicated that there was no need for a stipulation since evidence was presented to support the fact that there was a warrant. Defense counsel indicated that he did not care one way or another and stated that he had already stipulated to the warrant. Defense counsel further stated, “I'm comfortable with the way the Instructions are.”
The jury was given the following instruction on interference with law enforcement by obstructing legal process:
“To establish this charge, each of the following claims must be proved:
“1. Officer Brian Johnson was authorized by law to serve a warrant. “2. The defendant knowingly obstructed, resisted, or opposed Officer Brian Johnson in the service of or attempt to serve the warrant.
“3. At the time the defendant knew or should have known that Officer Brian Johnson was authorized by law to serve a warrant. “4. This act occurred on or about the 30th day of July, 2013, in Atchison County, Kansas.”
The jury found Gehring guilty of interference with law enforcement by obstructing legal process.
Gehring was subsequently sentenced to 16 months' imprisonment with a 12–month term of postrelease supervision.
Analysis
Gehring raises two issues on appeal. In his first issue, he argues that the evidence was insufficient to convict him because (1) there was no evidence that he knew officers were attempting to serve a felony warrant and (2) his stipulation that the warrant was a felony warrant was never read to the jury and in the absence of evidence it was a felony warrant, the evidence was insufficient. In his second issue, he argues that the court was required to insure that his stipulation that officers were attempting to serve a felony warrant was knowingly and voluntarily made. In the absence of such a colloquy, his constitutional right to a jury trial on each element was violated. We address each issue in turn. There was sufficient evidence presented for the jury to convict Gehring of the crime charged.
Gehring raises two arguments to show that there was insufficient evidence to support his conviction for felony interference with law enforcement. First, he could not have knowingly interfered with law enforcement because he was unaware that Johnson was attempting to execute a felony arrest warrant. Second, while Gehring stipulated that Johnson was attempting to execute a felony arrest warrant at the time of his arrest, that stipulation was not admitted into evidence and the jury was never informed of the stipulation; thus, without the presentation of the stipulation, there was insufficient evidence for the jury to find Gehring guilty.
When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014).
In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525.
Knowingly obstructing, resisting, or opposing an officer in the attempt to serve a warrant does not require that the person being pursued knew there was a warrant.
Under K.S.A.2013 Supp. 21–5904(a)(3), felony interference with law enforcement is “knowingly obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.”
The jury was given the following instruction on interference with law enforcement by obstructing legal process:
“To establish this charge, each of the following claims must be proved: “1. Officer Brian Johnson was authorized by law to serve a warrant.
“2. The defendant knowingly obstructed, resisted, or opposed Officer Brian Johnson in the service of or attempt to serve the warrant. “3. At the time the defendant knew or should have known that Officer Brian Johnson was authorized by law to serve a warrant. “4. This act occurred on or about the 30th day of July, 2013, in Atchison County, Kansas.”
Gehring argues that because he was not told there was a warrant out for his arrest, then he could not have knowingly obstructed Johnson in the process of executing the warrant when he ran in the opposite direction after Johnson told him to put his hands up. He does not dispute that the officer was authorized to serve the warrant.
In support, he argues that although Gehring's charge included the language of the last clause of the statute—“or in the discharge of any official duty”—the instruction limited the jury's consideration to whether Gehring obstructed the officer in serving an arrest warrant. He argues there could be little doubt that his actions obstructed the officer in discharging his official duties. But, he contends, obstructing legal process and obstructing official duties are two different offenses. He points to the PIK Crim. 4th 59.030 instruction which, in the Notes on Use, suggests that K.S.A.2013 Supp. 21–5904(a)(3) actually describes two different kinds of interference, obstructing in the service of a court order or warrant or obstructing in the discharge of official duties. Accordingly, the jury, he argues, did not have sufficient evidence to convict him of obstructing the service of a warrant because there was no evidence that Gehring knew the officer was attempting to serve a warrant. When insufficient evidence supports a crime on which a jury was instructed, Gehring argues we must reverse the conviction. He cites State v. Brown, 295 Kan. 181, 188–90, 284 P.3d 977 (2012), essentially arguing that K.S.A.2013 Supp. 21–5904(a)(3) is an alternative means crime and there was insufficient evidence to support the means selected by the State in the instruction.
The State counters that it is no defense to the charge that Gehring did not know the precise order, process, or instruction under which the uniformed officer was performing his duties as long as he was aware that the officer was acting in apparent pursuit of his duty. We agree. As this court stated in State v. Lyne, 17 Kan.App.2d 761, 766, 844 P.2d 734 (1992):
“It is no defense to a charge of obstruction of official duties that a defendant is unaware of the precise order, process, or instruction under which the uniformed law enforcement officer is performing his duties. If a defendant knows or should have known that the individual being obstructed is a properly uniformed and identified law enforcement officer acting in the apparent pursuit of his official duties, then such obstruction is a crime under K.S.A. 21–3808.”
If this were the law, the court opined, it “would create chaos in our system of law enforcement.” 17 Kan.App.2d at 766. The crime is the obstruction, and as long as the officer is performing an official duty, whether that be serving a writ, a warrant, process, any order of the court, or any other official duty, it is not a defense that the defendant did not know which particular process was involved.
Upon approaching Gehring, Johnson called out his name numerous times and told him to put his hands up. Moreover, Johnson was in his uniform and driving a marked patrol vehicle. Gehring acknowledged that Johnson was talking to him and ran away. As Gehring was running away, Johnson told him to stop and that he was under arrest at least twice. Gehring believed the officer was trying to involuntarily commit him, which would have involved a court order of commitment. He admittedly ran from Johnson in order to avoid such an arrest. He does not claim the officer lacked authority to arrest him, only that he did not know it was a warrant instead of an involuntary commitment order. Accordingly, we find that there was sufficient evidence for rational factfinder to find that Gehring was guilty beyond a reasonable doubt of obstructing, resisting, or opposing the officer's valid attempt to arrest him.
Failure to admit the defendant's stipulation that the officer was attempting to serve a felony warrant was invited error.
If obstruction of legal process involves obstructing any authorized disposition in the case of a felony, it is a felony. K.S .A.2013 Supp. 21–5904(b)(6)(A). If it involves the disposition of a misdemeanor, it is a misdemeanor. K.S.A.2013 Supp. 21–5904(b)(6)(B). In this case, Gehring was charged with a felony because the warrant officers were attempting to serve was a felony warrant. The jury was instructed that Gehring was to be found guilty if there was evidence to support that he interfered with the execution of an arrest warrant. The jury was not told that the warrant had to be a felony warrant. There was evidence admitted at trial that Johnson was attempting to execute an arrest warrant but no evidence that it was a felony warrant.
Before the trial started, the State asked whether Gehring wanted to stipulate that a felony warrant was issued for his arrest. The State indicated this it had witnesses ready to testify as such but wanted to give defense counsel a chance to avoid it being brought up at trial. Defense counsel indicated that he had discussed such a strategy with Gehring and they agreed that there should be some sort of agreement between Gehring and the State that there was a warrant issued for Gehring's arrest for a parole violation. Gehring verbally agreed with this assessment on the record. The State agreed and indicated that its witnesses would just say a warrant was out for Gehring's arrest but would not specify what type of warrant.
Gehring now argues that the State should have admitted the stipulation into evidence and the district court should have informed the jury that the stipulation existed. However, the entire purpose of the stipulation was to keep that information from the jury. This is what Gehring wanted, and the prosecution was agreeable.
We recognize as have other courts that it may be an unwise trial practice not to present the stipulation to the jury; “[h]owever, nothing in either law or logic compels us to reverse a conviction when the defendant enters into a stipulation on an element and then seeks a windfall from the government's failure to formally read the stipulation to the jury.” United States v. Harrison, 204 F.3d 236, 242 (D.C.Cir.2000).
Even if it was error, and the State should have admitted the stipulation into evidence, a litigant may not invite error and then complain of the error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). The State was ready and willing to present evidence that the warrant was a felony warrant, but based on Gehring's agreement, which was on the record, that the State did not need to present the evidence, Gehring invited this error. He cannot now complain of the sufficiency of the evidence when his agreement and stipulation were the cause. Gehring was not deprived of his right to a jury trial by acceptance of a stipulation that he claims was not knowingly and voluntarily made.
Gehring asserts that his stipulation that the warrant was a felony warrant was, in fact, a stipulation to an element of the crime. Gehring contends that he was denied the right to have the State prove each element of the crime because there was no showing that his stipulation was knowingly and voluntarily made. Gehring's argument is based on the fact that he was not required to personally acknowledge the stipulation in writing or in open court and the district court did not inform him of the rights he was waiving by making the stipulation.
Gehring relies on State v. Lee, 266 Kan. 804, 977 P.2d 263 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); however, Gehring's reliance on these cases is misplaced. In Lee, our Supreme Court held that a district court must take steps before accepting a stipulation as to the status of the defendant; however, the court specifically limited its holding to cases where a stipulation as to the status of the defendant as a convicted felon was involved. Lee, 266 Kan. at 814–16. In Gehring's case, the stipulation was not to his status as a convicted felon, but to the status of the arrest warrant as a felony arrest warrant. Thus, Lee is inapplicable.
In addition, Apprendi does not apply to Gehring's case. Apprendi requires that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. Here, Gehring is not appealing the enhancement of his sentence, he is only arguing that his right to a jury trial was violated because the district court relied on his stipulation rather than a jury verdict with respect to the statutory requirement of his charge that the warrant was a felony arrest warrant.
Our Supreme Court has previously determined an issue nearly identical to the one presented by Gehring. In White v. State, 222 Kan. 709, 713, 568 P.2d 112 (1977), the defendant pleaded not guilty but stipulated to facts constituting the elements of the crime charged. The defendant argued that his stipulation essentially constituted a guilty plea; thus, the district court was required to advise him of the consequences of his stipulation and determine that the stipulation was made knowingly and voluntarily.
Our Supreme Court, in White, stated: “We know of no case or statute holding that a trial court must interrogate and advise a defendant, who is represented by counsel, before accepting and approving stipulations as to the evidence, and we are not prepared to initiate such a requirement.” 222 Kan. at 713.
Moreover, as in White, Gehring does not allege that he
“misunderstood the stipulation, or that he had insufficient time to discuss it with counsel, or that he was unaware of its effect, or that he entered into it other than freely, understandingly and voluntarily. He does not contend that he was uninformed, overreached, coerced, defrauded, or victimized in any way.” 222 Kan. at 714.
Based on the above, Gehring's argument fails because there is no requirement that the district court advise Gehring of his rights before accepting a stipulation to evidence. Moreover, Gehring fails to argue that the stipulation was actually unknowingly and involuntarily made.
Accordingly, the decision of the district court is affirmed.