Opinion
Nos. 112 509 112 510.
12-18-2015
STATE of Kansas, Appellee, v. Tracey Jerome TOLIVER, Appellant.
Wesley M. Webber, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Wesley M. Webber, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
This appeal is the consolidation of three cases. In one of the cases, the State charged Tracey Jerome Toliver with felony battery against a law enforcement officer. After a bench trial, the district court found Toliver guilty of several offenses, including felony battery against a law enforcement officer. Toliver now appeals.
Factual and Procedural Background
In February 2014, the Riley County Police Department searched a house in Manhattan, Kansas. Toliver was detained during the search, placed in handcuffs, and seated in a police car. Detective Brian Johnson was tasked with guarding Toliver. Detective Johnson tried to placate Toliver and answer his questions. For ease of communication, Detective Johnson left open the plexiglass partition separating the back and fronts seats of the police car. As Detective Johnson continued to try to answer his questions, Toliver got upset and started shouting profanities. Toliver then lean forward, put his face at the open partition, and spit. The spit hit Detective Johnson's hand.
Sometime after he spit on Detective Johnson, Toliver was transported to the Riley County Jail. Once in the jail's sally port, Toliver refused to get out of the police car. Toliver demanded to be told what his charges were. Detective Johnson told Toliver what he was being charged with and tried to answer his questions. Toliver then spit on Detective Johnson again and said to him, “Now I spit on you, bitch.” Toliver's spit struck Detective Johnson in the face.
Because he spit on Detective Johnson's face, Toliver was ordered to undergo infectious disease testing, which consisted of a blood draw at a local hospital. Two corrections officers and two detectives transported Toliver to the hospital. At the hospital, Toliver threatened one of the detectives.
Based on what was discovered during the search of the house where he was initially detained, Toliver was charged with possession of marijuana and possession of drug paraphernalia. The possession of drug paraphernalia charge was dismissed before trial. For the spitting incident that occurred in the police car, Toliver was charged with misdemeanor battery against a law enforcement officer. And for the spitting incident in the sally port, Toliver was charged with felony battery against a law enforcement officer. Toliver was charged in a separate case with criminal threat for the statements he made at the hospital.
The two cases were consolidated for trial. After a bench trial, the district court found Toliver guilty on the misdemeanor and felony battery against a law enforcement officer charges and the criminal threat charge but not the possession of marijuana charge.
Analysis
On appeal, Toliver claims the evidence presented at trial regarding the spitting incident in the sally port was insufficient to support a felony conviction for battery against a law enforcement officer. When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in a light most favorable to the prosecution and decides whether we are 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). Toliver's argument also implicates the applicability of a statute; interpretation of a statute is a question of law over which we have unlimited review. See State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.Ct. 91 (2014).
Classification of a battery against law enforcement officer charge as a felony or misdemeanor depends, in part, on the type of officer against whom the battery was committed. K.S.A.2013 Supp. 21–5413(g). In his position as a detective with Riley County, Detective Johnson falls squarely within K.S.A.2013 Supp. 21–5413(c)(1)(B), the subsection of the statute governing battery against a law enforcement officer:
“(1) Battery, as defined in subsection (a)(2) [knowingly causing physical contact with another person when done in a rude, insulting or angry manner], [when] committed against a:
....
“(B) uniformed or properly identified state, county or city law enforcement officer, other than a state correctional officer or employee, a city or county correctional officer or employee, a juvenile correctional facility officer or employee or a juvenile detention facility officer, or employee, while such officer is engaged in the performance of such officer's duty.”
Battery against a law enforcement officer as defined above is a class A person misdemeanor. K.S.A.2013 Supp. 21–5413(g)(3)(A).
Despite the specific language of K.S.A.2013 Supp. 21–5431(c)(1)(B), the prosecution charged Toliver with battery against a law enforcement officer under K.S.A.2013 Supp. 21–5413(c)(3)(D). This subsection of the statute governs battery committed against a correctional officer or employee of the correctional facility:
“(3) battery, as defined in subsection (a)(2) [knowingly causing physical contact with another person when done in a rude, insulting or angry manner when,] committed against a:
....
“(D) city or county correctional officer or employee by a person confined in a city holding facility or county jail facility, while such officer or employee is engaged in the performance of such officer's or employee's duty.” K.S.A.2013 Supp. 21–5413(c)(3)(D).
Battery against a correctional officer or employee of the correctional facility as defined above is a severity level 5 person felony. K.S.A.2013 Supp. 21–5413(g)(3)(C).
The State argued that the correctional officer or employee of the correctional facility subsection of the statute, which is a felony, applied to Detective Johnson because the legislature intended the phrase “county correctional officer or employee” to encompass both (1) a county correctional officer and (2) any other individual who is employed by the county, no matter what the job duties. The crux of the State's argument is that the adjective “correctional” in the phrase “county correctional officer or employee” modifies the word “officer” but not the word “employee.” Although Detective Johnson was clearly not a correctional officer or other individual employed by the correctional facility, the State argues Detective Johnson still falls within the scope of K.S.A.2013 Supp. 21–5413(c)(3)(D) because he was a county employee when Toliver spit on him in the sally port.
To construe the phrase “correctional officer or employee” as proposed by the State effectively renders meaningless the term “correctional officer” as used in that subsection of the statute. See State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012) (courts must presume legislature does not intend to enact meaningless legislation). If the legislature meant for this subsection of the statute to extend to battery against any county employee battered at the correctional facility, then there would be no need to include the term “correctional officer” at all because under this interpretation, a county correctional officer necessarily falls within the scope of the statute based on his or her general employment by the county. If the legislature did not want “correctional” to modify both “officer” and “employee,” it could have—and presumably would have—reversed the order: any employee or correctional officer.
Moreover, the State's interpretation of the phrase “correctional officer or employee” yields an unintended and absurd result when applied to another subsection of the same statute. See Turner, 293 Kan. at 1088 (courts must construe statutes to avoid unreasonable or absurd results). In this case, Toliver was convicted under K.S.A.2013 Supp. 21–5413(c)(1)(B) for a separate instance of spitting on Detective Johnson's hand in the police car before arriving at the sally port of the jail facility. This subsection applies when a battery is committed against a “uniformed or properly identified state, county or city law enforcement officer, other than a ... county correctional officer or employee.” (Emphasis added.) K.S.A.2013 Supp. 21–5413(c)(1)(B). The language of subsection (c)(1)(B) plainly reflects it was meant to apply to battery against a properly identified law enforcement officer. This extraordinarily broad interpretation of the phrase “county correctional officer or employee” to include “any county employee” means that battery against a properly identified county law enforcement officer—a county employee—is specifically excluded from protection under this subsection of the statute. Under this overly broad interpretation, the sentence Toliver received as a result of his separate conviction under K.S.A.2013 Supp. 21–5413(c)(1)(B) for spitting on Detective Johnson's hand in the police car would be illegal. See State v. Barnes, 278 Kan. 121, 123–24, 92 P.3d 578 (2004) (defining illegal sentence as “ ‘a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served”).
In addition to rendering K.S.A.2013 Supp. 21–5413(c)(1)(B) meaningless and producing an absurd and unreasonable result, the State's legal analysis is wholly inconsistent with our Supreme Court's legal analysis of the distinctions between the different types of battery against a law enforcement officer under K.S.A.2013 Supp. 215413:
“Examining the statute in its entirety, it is evident that the legislature wanted to discourage confined persons from committing battery against law enforcement officers in correctional facilities by elevating the severity level of the crime to a felony.... [T]he structure of the statute demonstrates an intent to promote order and safety in prisons, juvenile facilities, and jails by providing a stronger deterrent to inmates contemplating battering an officer or employee.” State v. Perez–Moran, 276 Kan. 830, 839–40, 80 P.3d 361 (2003).
In comparing the misdemeanor offense of attempted battery against a law enforcement officer with the felony offense of battery against a correctional officer, the court in Perez–Moran held that “[t]he misdemeanor offense of attempted battery against a law enforcement officer is a completely separate offense involving a completely different status of the offender and the victim.” 276 Kan. at 840. In this case, Detective Johnson stated he was not wearing a corrections officer uniform but instead was wearing the standard law enforcement attire for serving search warrants including a raid vest. When asked if he switched from being a detective to a jailer, Detective Johnson stated he did not. For all practical purposes, Detective Johnson was a detective working for the county and transporting an arrestee; he was not a corrections officer or employee of the correctional facility.
For all of the reasons stated above, it is clear that the legislature intended the phrase “correctional officer or employee” to limit the scope of its reach to correctional officers and correctional employees. Because Detective Johnson was neither a correctional officer nor a correctional employee when Toliver spit on him in the sally port, there is insufficient evidence in the record to convict Toliver of felony battery and his conviction for that crime must be vacated. Even if there were a colorable argument to the contrary, the resulting ambiguity as to the meaning of “correctional officer or employee” as used in the battery statute requires that the statute be strictly construed in favor of Toliver as the accused. See State v. Horn, 288 Kan. 690, 693–94, 206 P.3d 526 (2009) (under the rule of lenity any reasonable doubt about meaning of penal statute must be decided in favor of defendant).
Toliver's felony conviction for battery against a law enforcement officer under K.S.A.2013 Supp. 21–5413(c)(3)(D) is reversed and his sentence for this conviction is vacated. Since this felony conviction was designated by the district court as the primary crime for purposes of calculating Toliver's base sentence, this case is remanded for sentencing with directions to recalculate the sentence by using the next highest severity level conviction to calculate the base sentence.
Sentence vacated and case remanded with directions.