State v. Kendall , 300 Kan. 515 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 106,960
STATE OF KANSAS,
Appellee,
v.
MARK KENDALL,
Appellant.
SYLLABUS BY THE COURT
1.
In order to establish that a perpetrator committed an "act of communication" under
Kansas' stalking statute, K.S.A. 2010 Supp. 21-3438, the State must show that the
perpetrator sent or transmitted a communication to the victim and the victim received the
communication.
2.
Under the specific facts of this case, the defendant violated the stalking statute by
calling the victim's cell phone in violation of a protective order and, in turn, the victim
seeing on her phone's caller ID that the defendant was calling her cell phone. A
reasonable factfinder could infer that the defendant, by calling the victim's phone, was
communicating to the victim—just as he had previously promised her—that he would
contact her no matter what, regardless of the protective order put in place or the fact that
he was in prison, and that this message was received by the victim.
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3.
Unless specified in the statute defining the crime charged, the location of where
the crime was committed is generally not an element of the crime; however, venue is a
necessary jurisdictional fact that must be proven along with the elements of the crime.
4.
K.S.A. 22-2602 authorizes the State to prosecute a crime in the county where the
crime was committed. But, when two or more acts are requisite to the commission of the
crime charged and such acts occur in different counties, K.S.A. 22-2603 authorizes the
State to prosecute the crime in any county in which any of such acts occur.
5.
Unessential facts alleged in a complaint, information, or indictment constitute
surplusage and may be disregarded by a court.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 16, 2013.
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed August 8, 2014. Judgment of the
Court of Appeals affirming in part, reversing in part, and remanding to the district court is affirmed in part
and reversed in part. Judgment of the district court is affirmed.
Rick Kittel, of Kansas Appellate Defender Office, was on the brief for appellant.
Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and
Derek Schmidt, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Following a bench trial, the Reno County District Court found Mark
Kendall guilty of stalking and violating a protective order based on his July 7, 2010, acts
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of placing telephone calls from the State prison in El Dorado, where he was an inmate, to
his former wife, D.K. Notably, D.K. and Kendall never spoke over the telephone, but
based on her phone's caller ID, D.K. knew that Kendall was calling her from the prison.
On appeal, a majority of the Court of Appeals panel agreed with Kendall that
insufficient evidence was presented at trial showing that Kendall had committed an "act
of communication" as proscribed by the stalking statute. As a result, the majority
reversed Kendall's conviction for stalking and remanded the case to the district court with
instructions that Kendall be convicted of attempted stalking and sentenced accordingly.
State v. Kendall, No. 106,960, 2013 WL 4404174, at *3-5 (Kan. App. 2013) (unpublished
opinion).
With regard to Kendall's conviction for violating a protective order, the entire
panel rejected Kendall's argument that the State was required to prove that he was in
Reno County when he placed the telephone calls to D.K.'s cell phone—as alleged in the
complaint. The panel also rejected Kendall's argument that the district court judge,
despite finding him guilty of violating a protective order—a crime that prohibits knowing
or intentional conduct—found that his conduct in violation of the order was reckless and,
thus, the finding was contrary to the verdict. Kendall, 2013 WL 4404174, at *5-7.
We granted the State's petition for review to determine whether a majority of the
Court of Appeals erred in construing the phrase "act of communication" and whether the
majority's construction of the phrase led it to erroneously conclude that the State
presented insufficient evidence to convict Kendall of stalking. We also granted Kendall's
cross-petition for review to determine whether the Court of Appeals erred in affirming
Kendall's conviction for violating a protective order.
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FACTS
A review of the record confirms the accuracy of the Court of Appeals' summation
of the factual and procedural history of this case. Accordingly, that section of the opinion
is quoted below.
"Kendall and D.K., his ex-wife, had a difficult marriage. D.K. obtained a
protective order against Kendall. He was in prison for convictions arising from earlier
incidents in which he stalked D.K., violated that protective order, and victimized her
through computer crimes. [Prior to Kendall going to prison,] the two maintained a
relationship of sorts because they have a young daughter A.K. For example,
notwithstanding the protective order, they had an arrangement by which Kendall would
call D.K.'s cell phone to speak with A.K. When D.K. saw Kendall's phone number come
up on her phone, she would answer and simply hand the phone to A.K.
"Kendall pled guilty to the crimes for which he was imprisoned in El Dorado on
February 1, 2010, and was sentenced on March 5, 2010. Between the plea and
sentencing, D.K. obtained a new protective order against Kendall from the Reno County
District Court. The protective order, among other restrictions, directed Kendall not to
'telephone, contact or otherwise communicate with' D.K. and not to 'contact' her 'either
directly or indirectly.' The protective order went into effect on February 22, 2010, and
remained valid for a year. A sergeant with the Hutchinson Police Department testified
that he informed Kendall of the new protective order and the restrictions it imposed.
"When he arrived at the prison in El Dorado, Kendall listed D.K.'s cell phone
number for inclusion on his approved call list. But he identified the number as his
daughter's. At trial, Kendall testified he knew he was not supposed to call D.K. and listed
the number that way so he could talk with A.K.
"The prison telephone system inmates use tracks the calls placed. Those records
show Kendall dialed D.K.'s cell phone number once on May 23, four times on July 6,
three times on July 7, and once on July 8, 2010. The records indicate each of the calls as a
'[n]o [a]nswer' with a time of '0.00.' The Reno County District Attorney charged Kendall
with one count of stalking, a felony under K.S.A. 2010 Supp. 21-3438(a)(3) and (b)(3),
and one count of violating a protective order, a misdemeanor under K.S.A. 2010 Supp.
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21-3843, for each date. At Kendall's preliminary hearing, the district court dismissed the
charges based on the July 6 calls for lack of venue in Reno County. The State did not
appeal that ruling. At the bench trial, the district court acquitted Kendall of the charges
related to the calls on May 23 and July 8 without giving a detailed explanation. The
district court mentioned D.K.'s failure to report those calls in her initial contact with law
enforcement about Kendall's violation of the February 2010 protective order. The State
may not appeal the acquittals. That leaves the two charges based on the July 7 calls
Kendall placed.
"D.K.'s testimony about all of the calls, including those on July 7, is less than
clear. Based on the identification information that appeared on her cell phone, she
initially believed they were from a collection agency. D.K. said she tried to return one of
the calls and found she was contacting ICS. She investigated the acronym on the internet
and determined it to be 'Inmate Correctional Solution' and, coupled with the area code for
the calls, deduced they came from the El Dorado prison and, thus, Kendall. The
testimony suggests D.K. determined the calls came from Kendall on or before July 6.
D.K. testified that meant Kendall 'was trying to prove to me he would still find me no
matter what and he could get through the system no matter what.' D.K. said, as a result,
she was 'scared' and 'sad' because 'it just pretty well showed he would find me and my
daughter.' Nonetheless, D.K. said she answered at least one of the calls on July 7, but she
did not testify that she heard anything or anyone when she did. Kendall testified that he
heard a clicking sound when he placed the calls and nobody answered." Kendall, 2013
WL 4404174, at *1-2.
At the conclusion of the bench trial, the district court found Kendall guilty of both
counts arising from July 7, 2010. The district court sentenced Kendall to a controlling 60-
month prison sentence and ordered that the sentence be served consecutive to the prison
sentence Kendall was already serving.
Pertinent to the issues now before us, Kendall argued before the Court of Appeals
that the stalking statute, K.S.A. 2010 Supp. 21-3438(a)(3), required the State to show that
he engaged in an "act of communication" resulting in a specific message being imparted
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to D.K. Kendall contended that merely placing multiple calls to D.K.'s cell phone without
ever speaking to her was insufficient to show that he engaged in an act of
communication.
With regard to his conviction for violating a protective order, Kendall raised two
issues arguing for reversal. First, he maintained that the district court judge, in explaining
the verdict, found that he recklessly violated the protective order. Accordingly, he argued
that the district court's finding of reckless conduct was essentially an acquittal because
the applicable statute proscribed the act of "knowingly or intentionally" violating a
protective order. See K.S.A. 2010 Supp. 21-3843(a)(1). Second, he claimed that because
the State alleged in the complaint that he was in Reno County on July 7, 2010, when he
violated the protective order, the State was required to prove this fact at trial. Kendall
contended that because the evidence clearly showed that he was in prison in Butler
County at the time of the crime, the State failed to prove all the elements necessary to
convict him of violating a protective order as charged in the complaint.
A majority of the Court of Appeals agreed with Kendall that his conviction for
stalking had to be reversed, construing the stalking statute as requiring the delivery or
communication of a message to the victim (i.e., D.K. answered her phone and Kendall
spoke to her). Accordingly, the majority believed that Kendall's act of placing calls to
D.K.'s cell phone without ever speaking to her was insufficient to show that he engaged
in an "act of communication"—an essential element of stalking as charged by the State in
this case. Furthermore, the majority rejected the notion that the inference D.K. drew from
receiving phone calls from Kendall (i.e., that Kendall would contact her despite being in
prison) constituted evidence of Kendall imparting a message to her for purposes of the
stalking statute. Kendall, 2013 WL 4404174, at *3-4.
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As a result, the majority reversed Kendall's conviction for stalking. But, because
the majority found that Kendall committed an overt act towards perpetration of stalking
(i.e., placing phone calls to D.K.'s cell phone), the majority remanded the case to the
district court with instructions that Kendall be convicted of attempted stalking and
sentenced accordingly. Kendall, 2013 WL 4404174, at *4-5. Judge Buser dissented,
concluding that based on the evidence presented at trial, a reasonable factfinder could
conclude that Kendall's act of placing a phone call to D.K.'s cell phone and D.K. realizing
that Kendall was calling her constituted an act of communication under the stalking
statute. Kendall, 2013 WL 4404174, at *8-9.
With regard to Kendall's conviction for violating a protective order, the entire
panel agreed that sufficient evidence was presented at the bench trial to sustain the
conviction. The panel concluded that Kendall was misconstruing the district court's
findings at the conclusion of the bench trial. According to the panel, the district court did
not find that Kendall's actions in dialing D.K.'s phone number were reckless and, thus,
not intentional or knowing for purposes of K.S.A. 2010 Supp. 21-3843(a)(1). Instead, the
panel construed the district court's statements as explaining that it was reckless or, stated
another way, foolhardy for Kendall to rely on his prior arrangement with D.K. (i.e.,
calling D.K.'s phone so Kendall could speak to their daughter) as a legal excuse or
defense for his actions in calling D.K.'s cell phone in violation of the protective order.
Kendall, 2013 WL 4404174, at *6-7.
Additionally, the panel found that it was insignificant that the complaint charging
Kendall with violating a protective order alleged that Kendall was in Reno County at the
time of the offense and that no evidence was presented at trial establishing this fact. The
panel reasoned that because Kendall had failed to raise the issue before the district court,
he had likely waived the issue. Regardless, the panel noted that Reno County was the
proper venue for prosecuting Kendall's violation of the protective order due to D.K.'s
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presence within Reno County on July 7, 2010, when she received Kendall's telephone
calls. Kendall, 2013 WL 4404174, at *5-6.
STALKING
The State contends that Kendall's act of calling D.K.'s cell phone numerous times
on July 7, 2010, and, in turn, D.K.'s recognition that Kendall was calling her was
sufficient to show that Kendall committed an "act of communication" under the stalking
statute. In order to resolve this issue, we must first construe the phrase "act of
communication" to determine what actions are encompassed within this phrase. Our
determination of this issue will shape the analysis of the second issue: Whether the
evidence presented at trial was sufficient to show that Kendall committed an act of
communication which violated the stalking statute as charged by the State.
"Interpretation of a statute is a question of law over which appellate courts have
unlimited review." State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most
fundamental rule of statutory construction is that the intent of the legislature governs if
that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Furthermore, in State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010), we stated:
"An appellate court must first attempt to ascertain legislative intent through the statutory
language enacted, giving common words their ordinary meanings. [Citation omitted.]
When a statute is plain and unambiguous, an appellate court does not speculate as to the
legislative intent behind it and will not read into the statute something not readily found
in it. Where there is no ambiguity, the court need not resort to statutory construction.
Only if the statute's language or text is unclear or ambiguous does the court use canons of
construction or legislative history or other background considerations to construe the
legislature's intent. [Citation omitted.]"
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A. Construction of the Phrase "Any [A]ct of [C]ommunication"
As mentioned above, the State charged Kendall with stalking in violation of
K.S.A. 2010 Supp. 21-3438(a)(3). That particular subsection of the statute defines
stalking as:
"[A]fter being served with, or otherwise provided notice of, any protective order
included in K.S.A. 21-3843, and amendments thereto, that prohibits contact with a
targeted person, intentionally or recklessly engaging in at least one act listed in
subsection (f)(1) that violates the provisions of the order and would cause a reasonable
person to fear for such person's safety, or the safety of a member of such person's
immediate family and the targeted person is actually placed in such fear." (Emphasis
added.) K.S.A. 2010 Supp. 21-3438(a)(3).
K.S.A. 2010 Supp. 21-3438(f)(1) of the statute proscribes a "'[c]ourse of conduct,'"
which is defined as
"two or more acts over a period of time, however short, which evidence a continuity of
purpose. A course of conduct shall not include constitutionally protected activity nor
conduct that was necessary to accomplish a legitimate purpose independent of making
contact with the targeted person. A course of conduct shall include, but not be limited to,
any of the following acts or a combination thereof:
....
"(G) Any act of communication."
K.S.A. 2010 Supp. 21-3438(f)(2) of the statute defines "'[c]ommunication'" as
"to impart a message by any method of transmission, including, but not limited to:
Telephoning, personally delivering, sending or having delivered, any information or
material by written or printed note or letter, package, mail, courier service or electronic
9
transmission, including electronic transmissions generated or communicated via a
computer." (Emphasis added.)
Construing the entire statute as a whole, we conclude that the phrase "act of
communication" requires a showing that the perpetrator transmitted a communication to
the victim. The word "act" is modified by the prepositional phrase "of communication."
As used in the stalking statute, "communication" is defined as "to impart a message by
any method of transmission . . . ." K.S.A. 2010 Supp. 21-3438(f)(2). Thus, an act which
falls under the umbrella of K.S.A. 2010 Supp. 21-3438(f)(1)(G) ("A course of conduct
shall include . . . [a]ny act of communication.") must result in the impartation of a
communication or message to the victim by any method of transmission. See Webster's
Third New International Dictionary 1131 (1993) (defining "impart" as "to give or grant
. . . communicate, transmit" or "to communicate the knowledge of . . . disclose" or "to
give utterance to . . . reveal in writing or speaking . . . ."); Webster's Third New
International Dictionary 460 (1993) (defining "communicate" in part as "to make known .
. . inform a person of . . . convey the knowledge or information of . . . ."). The statutory
definition of "communication" indicates that an "act of communication" is more than a
mere attempt at communicating with a victim; the act must entail the perpetrator sending
a communication that is received by the victim.
K.S.A. 2010 Supp. 21-3438(a)(3) supports this conclusion. In addition to proof
that the defendant engaged in a course of conduct (in this case, "[a]ny act of
communication") that violates a protective order, subsection (a)(3) requires a showing
that the course of conduct "would cause a reasonable person to fear for such person's
safety, or the safety of a member of such person's immediate family and the targeted
person is actually placed in such fear." K.S.A. 2010 Supp. 21-3438(a)(3). The
requirement that the victim be placed in fear and that such fear be reasonable suggests
that attempted forms of communication where the victim is never made aware that the
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perpetrator tried contacting him or her would not constitute an "act of communication"
or, in turn, a course of conduct sufficient to violate the statute.
Thus, we conclude that the phrase "act of communication" as used in the stalking
statute requires evidence that a perpetrator transmitted a communication to a victim.
Now, we must determine whether there was sufficient evidence presented at trial to
establish this element.
B. Did the State Present Sufficient Evidence to Establish That Kendall Imparted a
Communication to D.K.?
When the sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after review of all the evidence, viewed in the light most favorable
to the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt. State v. Stafford, 296 Kan. 25, 53,
290 P.3d 562 (2012); see State v. Frye, 294 Kan. 364, 374, 277 P.3d 1091 (2012)
("[C]onvictions arising from bench trials and those arising from jury trials are reviewed
by this court utilizing the same standards on appeal."). In making a sufficiency
determination, the appellate court does not reweigh evidence, resolve evidentiary
conflicts, or make determinations regarding witness credibility. Stafford, 296 Kan. at 53.
Furthermore, this court has recognized that there is no distinction between direct and
circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62
P.3d 220 (2003). "A conviction of even the gravest offense can be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom." State v. McCaslin,
291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 (2011).
The evidence presented at trial clearly showed that D.K. had an abusive
relationship with Kendall. Based on Kendall's conduct towards her, D.K. testified that she
had a general fear of him. The evidence showed that Kendall routinely disregarded
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protective orders that were put in place to prevent him from contacting D.K. Journal
entries introduced into evidence at trial showed that on September 9, 2009, Kendall
pleaded no contest to violating a protective order in Hutchinson Municipal Court and that
on February 1, 2010, he entered guilty pleas in four separate cases originating in Reno
County District Court: (1) 09-CR-819, two counts of stalking and one count of violating
a protective order; (2) 09-CR-982, violating a protective order and eavesdropping; (3) 09-
CR-907, three counts of stalking and one count of violating a protective order; and (4)
09-CR-1005, two counts of computer crime and one count of stalking. D.K. was the
victim of all these crimes. Kendall was sentenced on March 5 for the four separate district
court cases.
The protective order at issue in this case was established on February 22, 2010.
Part of the basis for this new order was that D.K. had learned that Kendall had
surreptitiously filmed and photographed her while she was bathing, undressing, and while
she was unconscious (at trial, D.K. indicated that Kendall may have drugged her). Most
disturbing, Kendall filmed himself sexually fondling D.K. and filmed himself
masturbating until ejaculation while standing over her—all the while she was
unconscious. According to the police officer who discovered the videos and pictures and
later showed them to D.K., D.K. was very emotional upon seeing the material.
As noted above, the protective order, among other restrictions, directed Kendall
not to "telephone, contact or otherwise communicate with" D.K. and not to "contact" her
"either directly or indirectly."
D.K. indicated at trial that she determined on July 6 that the calls she was
receiving on her cell phone from ICS were actually from Kendall. The record shows that
on July 7—the date on which the charges now at issue arose—Kendall called D.K.'s cell
phone three times. D.K. stated that when she realized the calls were from Kendall, she
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was scared and in fear. During D.K.'s direct examination, the prosecutor asked her about
her reaction upon receiving the telephone calls from Kendall.
"Q. How did receiving these nine phone calls from the defendant make you feel
personally?
"A. He had said during sentencing and even before that, that he would always
find me. No matter what he would contact me. He would never leave me alone regardless
of what I would do, and he would follow me across the country if he had to. He told me
before he would hunt me down and kill me.
"Q. Hunt you down and what?
"A. Hunt me down and kill me.
"Q. Kill you?
"A. Yes.
"Q. How did these phone calls make you feel when you got them from the
prison?
"A. That he was trying to prove to me he would still find me no matter what and
he could get through the system no matter what.
"Q. Did they cause emotional reaction on your part?
"A. Yes.
"Q. What was that?
"A. I was afraid. I was scared. I was sad. I—it just pretty well showed he would
find me and my daughter." (Emphasis added.)
As mentioned above, the Court of Appeals majority believed that Kendall's act of
simply placing calls to D.K.'s cell phone without ever speaking to her was insufficient to
show that he engaged in an act of communication. Furthermore, the majority rejected the
notion that the inference D.K. drew from receiving telephone calls from Kendall (i.e., that
Kendall would contact her no matter what she did) could constitute evidence of Kendall
imparting a message to D.K. for purposes of the stalking statute. The majority stated:
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"The evidence fails to show that was an established or common message they attached to
his act of calling her. Again by way of illustration, a person untrained in semaphore
might nonetheless recognize that someone was using that code and, thus, conclude he or
she had learned the skill in the military. Whatever the accuracy of that conclusion, it
would not be a communication in the sense that the semaphorist was imparting that
message unless he or she actually was signaling, 'This is semaphore, and I learned to do
this in the Navy.'
"The record evidence indicates D.K. had not changed telephone numbers, so
Kendall had called what he already knew to be her number. He did not independently
track down a new number D.K. intended to keep secret from him. That undercuts the
notion that Kendall meant the calls to communicate the idea he could find D.K. even if
she didn't want to be found. The State's position, at best, overtaxes the statutory language
and imputes an unusual meaning to 'communication.' Again, even if that position were
remotely plausible, it could not be reconciled with the rule of lenity." Kendall, 2013 WL
4404174, at *4.
Judge Buser disagreed with the majority's assessment of the evidence. He believed
that a reasonable factfinder could conclude that actual communication occurred between
Kendall and D.K. Judge Buser wrote:
"At trial, D.K. testified that prior to and during Kendall's March 5, 2010,
sentencing for stalking, violation of a protective order, and computer crimes, he told her:
"'he would always find me. No matter what he would contact me. He
would never leave me alone regardless of what I would do, and he would
follow me across the country if he had to. He told me before he would
hunt me down and kill me.'
"When D.K. later received the offending calls from Kendall in prison, she
understood this to mean that Kendall 'was trying to prove to me he would still find me no
matter what and he could get through the system no matter what.' In D.K.'s view, the
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telephone calls communicated that, although he was in prison, Kendall could still contact
D.K. and in this way threaten her or cause her to fear for her and her family's safety.
"Given D.K.'s past victimization by Kendall for exactly the same offense—
stalking, there was a factual basis for an objective factfinder to conclude that the simple
act of placing the call and its receipt by D.K. constituted a powerful and threatening
communication, indeed. By placing the calls, Kendall had made good on his promise to
continue stalking D.K. Upon receipt of the calls, D.K. understood that Kendall was, once
again sending her a message. Spoken words or signals were unnecessary in this context.
And D.K.'s reaction bolsters the conclusion that Kendall had very effectively
communicated with her. She testified that she 'was afraid. I was scared. I was sad. I—it
just pretty well showed he would find me and my daughter.'" Kendall, 2013 WL
4404174, at *8-9.
We find Judge Buser's review of the evidence compelling. Kendall's acts of
placing calls to D.K.'s cell phone on July 7 and, in turn, D.K. realizing that Kendall was
calling her from prison were sufficient to show that Kendall engaged in an act of
communication. Based on D.K.'s testimony, a reasonable factfinder could infer that by
calling D.K.'s cell phone, Kendall was communicating to D.K.—just as he promised her
at sentencing—that he would contact her no matter what, regardless of the protective
order put in place or the fact that he was in prison, and that this message was received by
D.K. Accordingly, we conclude that Kendall committed an act of communication towards
D.K. sufficient to find him guilty of stalking in violation of K.S.A. 2010 Supp. 21-
3438(a)(3).
VIOLATION OF THE PROTECTIVE ORDER
Kendall raises two arguments for why the Court of Appeals erred in affirming his
conviction for violating a protective order. First, he notes that in order to be convicted of
this offense, there must be evidence showing that he "knowingly or intentionally"
violated the protective order. See K.S.A. 2010 Supp. 21-3843(a)(1). Though he does not
15
dispute that he knowingly and intentionally called D.K.'s cell phone, that such conduct
was in violation of the protective order, and that the district court found him guilty of
violating the protective order, he argues that the judge, in announcing the verdict, found
that he had recklessly violated the protective order. Kendall contends that the judge's
finding of recklessness was the equivalent of an acquittal and that his conviction for
violating a protective order should be reversed as a result.
Second, Kendall argues that because the State alleged in the complaint that he was
in Reno County on July 7, 2010, when he violated the protective order, the State was
required to prove this fact at trial. Kendall argues that because the evidence clearly
showed that he was in Butler County at the time of the crime, the State failed to prove all
the elements necessary to convict him of violating a protective order as charged in the
complaint. Kendall's arguments will be addressed in turn.
A. Did the District Court Find That Kendall's Act of Dialing D.K.'s Phone Number Was
Reckless?
The State charged Kendall with violating K.S.A. 2010 Supp. 21-3843(a)(1), which
defines the crime of violating a protective order as "knowingly or intentionally violating:
(1) A protection from abuse order issued pursuant to K.S.A. 60-3105, 60-3106 and 60-
3107, and amendments thereto."
As noted above, the protective order at issue here directed Kendall not to
"telephone, contact or otherwise communicate with" D.K. and not to "contact" her "either
directly or indirectly." Kendall admitted to knowing about the restrictions put in place by
the protective order. Despite this knowledge, however, Kendall conceded that he placed
multiple calls to D.K.'s cell phone on July 7. He stated that his intent for doing so was to
speak to their daughter, A.K. According to Kendall, he believed that a prior custody
agreement with D.K. allowed him to call her in order to speak to A.K.
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During closing arguments, the prosecutor noted that the stalking statute prohibited
both intentional and reckless conduct and that Kendall's conduct, as it related to the
stalking charge, could be considered either intentional or reckless. See K.S.A. 2010
Supp. 21-3438(a)(3) (prohibiting both intentional and reckless conduct). In response,
defense counsel argued in part that Kendall's acts in calling D.K.'s cell phone were
justified because he was trying to contact his daughter. See K.S.A. 2010 Supp. 21-
3438(f)(1) ("A course of conduct shall not include constitutionally protected activity nor
conduct that was necessary to accomplish a legitimate purpose independent of making
contact with the targeted person.").
After finding Kendall guilty of stalking and violating a protective order, the
district court explained its reasoning:
"As to the July 7th phone call I do find that the State has shown that the defendant at least
recklessly disobeyed a protective order. The defendant, I'm certain that he is genuine in
his effort to continue contact with his daughter. I don't believe the defendant was
dishonest with the Court in that statement, but when you have created a situation which
was of the defendant's own creation where you are under a protective order as to the
child's mother, you are going to be limited in your contact with that child, and that
protective order does not exempt any contact with the child. It does not say it's okay to
contact [D.K.] if it's their daughter. It says the defendant is not to contact [D.K.]. Period.
If, if it said otherwise, I might consider this case differently, but it doesn't and the contact
was made with [D.K.]. That was the only way that the defendant could reach his
daughter, I understand that, but again, the defendant, this situation is due to the
defendant's actions. Most fathers don't have protective orders against them as to their
child's mother. And whether the defendant had in mind, I hope [D.K.] answers this call
and I wanted to talk to her, or I hope [D.K.] will hand the phone to [A.K.], I don't find, I
don't know. But at any rate, I find sufficient evidence to say the defendant was reckless in
making that call because he knew that was [D.K.'s] phone number, and she testified that
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that focusing on the call on July 7th scared her, and I find she had good reason to be
scared. No contact means no contact. Not having your phone number or your place of
residence show up . . . on a victim's phone, or have some way for the victim to find out
that, that you are the one making that call. So I am finding the defendant guilty as to
Counts III and Count VII."
As mentioned above, the entire Court of Appeals panel concluded that Kendall
was misconstruing the district court's findings at the conclusion of the bench trial.
According to the panel, the district court did not find that Kendall's actions in calling
D.K.'s cell phone were reckless and, thus, not intentional or knowing for purposes of the
crime of violating a protective order. Instead, the panel construed the district court's
statements as explaining that it was reckless or, stated another way, foolhardy for Kendall
to rely on his prior arrangement with D.K. (i.e., calling D.K.'s phone so Kendall could
speak to their daughter) as a legal excuse or defense for his actions in calling D.K.'s cell
phone. Kendall, 2013 WL 4404174, at *6.
Based on the evidence presented at the bench trial and the parties' closing
arguments, we conclude that the Court of Appeals' interpretation of the judge's statements
was correct. The judge was merely trying to explain why Kendall's explanation for
calling D.K.'s cell phone did not prevent him from being convicted of stalking. The judge
certainly did not find that Kendall's actions were reckless. Instead, the judge found that it
was foolhardy or imprudent (i.e., reckless) for Kendall to think that his intentional actions
were justified by the custody agreement or whatever prior arrangement he had with D.K.
for contacting their daughter.
Regardless of the district court's statements after finding Kendall guilty of both
stalking and violating a protective order, in a criminal case, a district court is not required
to explain its decision and may render the equivalent of a general verdict of guilty or not
guilty. See State v. Scott, 201 Kan. 134, 137, 439 P.2d 78 (1968). We conclude that there
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was sufficient evidence presented at the bench trial to show that Kendall intentionally and
knowingly violated the protective order by calling D.K.'s cell phone.
B. Was the State Required to Prove That Kendall Was in Reno County on July 7 in Order
to Convict Him of Violating a Protective Order?
Count VII of the complaint charging Kendall with violating a protective order
stated:
"That on or about the 7th day of July, 2010, in Reno County, Kansas, one Mark R.
Kendall then and there being present did unlawfully, intentionally, and knowingly violate
a protective order and/or restraining order, to wit: 10 DM 156, issued pursuant to K.S.A.
60-3105, 60-[31]06, and 60-3107, and amendments thereto." (Emphasis added.)
Kendall argues that because the State alleged in the complaint that he was in Reno
County on July 7, 2010, when he violated the protective order, the State was required to
prove that specific allegation in order to convict him of violating a protective order. He
contends that because the evidence presented at the bench trial clearly showed that
Kendall was incarcerated at the El Dorado Correctional Facility (located in Butler
County) on July 7 when he called D.K.'s cell phone, his conviction for violating the
protective order must be reversed.
Because the location of where Kendall violated the protective order is not an
element of the crime, Kendall's argument essentially raises the question of whether Reno
County was the proper venue for prosecuting him for the crime. See K.S.A. 2010 Supp.
21-3843(a)(1) (defining the crime of violating a protective order); State v. Rivera, 42
Kan. App. 2d 1005, 1008-10, 219 P.3d 1231 (2009) (unless specified in statute defining
the crime, location of where the crime was committed is generally not an element of the
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crime; however, venue is a necessary jurisdictional fact that must be proven along with
the elements of the actual crime), rev. denied 290 Kan. 1102 (2010).
Because venue is jurisdictional and implicates the district court's subject matter
jurisdiction, our standard of review is de novo. State v. Jackson, 280 Kan. 16, 20, 118
P.3d 1238 (2005), cert. denied 546 U.S. 1184 (2006). In this case, resolution of the venue
issue also involves interpretation of K.S.A. 2010 Supp. 21-3843, which is subject to de
novo review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 22-2602 authorizes the State to prosecute a crime in the county where the
crime was committed. But, when two or more acts are requisite to the commission of the
crime charged and such acts occur in different counties, K.S.A. 22-2603 authorizes the
State to prosecute the crime "in any county in which any of such acts occur."
Again, K.S.A. 2010 Supp. 21-3843(a)(1) defines the crime of violating a
protective order as "knowingly or intentionally violating: (1) A protection from abuse
order issued pursuant to K.S.A. 60-3105, 60-3106 and 60-3107, and amendments
thereto." As noted above, the protective order, among other restrictions, directed Kendall
not to "telephone, contact or otherwise communicate with" D.K. and not to "contact" her
"either directly or indirectly." At the bench trial, the State argued that Kendall violated
the protective order by making three calls to D.K.'s cell phone on July 7 which placed her
in fear. D.K. testified that she was in Reno County on July 7 when she received the calls
on her cell phone and that the calls placed her in fear.
Based on the restrictions within the protective order preventing Kendall from
communicating with or contacting D.K., we conclude that pursuant to K.S.A. 22-2603, a
violation of this particular protective order could be prosecuted in the county where
Kendall initiated the contact (i.e., Butler County) or the county where D.K. received the
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contact (i.e., Reno County). See Webster's Third New International Dictionary 490
(1993) (defining "contact" in part as "an instance of establishing communication with
someone . . . or of observing or receiving a significant signal from a person or object
. . . ."). D.K.'s testimony at trial established that she was in Reno County on July 7 when
she received Kendall's telephone calls in violation of the protective order. Accordingly,
the State satisfied the requirement of showing that Reno County was a proper venue for
prosecuting Kendall's crime. The language within the complaint suggesting that Kendall
was in Reno County on July 7 when he made the phone calls is mere surplusage that can
be disregarded. See K.S.A. 22-3201(d) ("The court may strike surplusage from the
complaint, information or indictment."); State v. Glazer, 223 Kan. 351, 359, 574 P.2d 942
(1978) ("Surplusage in the information may be disregarded. We do not feel that
defendant was prejudiced in his defense even though the information set forth many
unessential facts.").
Judgment of the Court of Appeals affirming in part, reversing in part, and
remanding to the district court is affirmed in part and reversed in part. Judgment of the
district court is affirmed.
MORITZ, J., not participating.
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