State v. Warren ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,207
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
EDWARD ARNOLD WARREN JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed March 4, 2022.
Appeal dismissed.
Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before POWELL, P.J., SCHROEDER, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Edward Arnold Warren Jr. challenges his conviction for criminal
possession of a firearm by a convicted felon under K.S.A. 2018 Supp. 21-6304(a)(2),
arguing for the first time on appeal that this statute violates his individual right to keep
and bear arms as provided by section 4 of the Kansas Constitution Bill of Rights. Having
failed to properly raise this issue in the district court, we decline to address the merits and
dismiss this appeal.
1
FACTUAL AND PROCEDURAL BACKGROUND
After a domestic violence incident involving Warren and his girlfriend in July
2018, the State charged Warren with—among other offenses—criminal possession of a
firearm by a convicted felon in violation of K.S.A. 2018 Supp. 21-6304(a)(2). The case
proceeded to a jury trial in July 2019, where Warrant represented himself. At trial, the
parties stipulated:
"1) Defendant was convicted of a felony in 18th Judicial District Court case
2011CR002527 on July 17, 2012.
"2) Defendant was not found to be in possession of a firearm at the time of the prior
crime in 2011CR002527.
"3) Defendant was released from imprisonment for the felony in 11CR002527 on
November 8, 2013."
During trial, the State presented evidence that Warren possessed a .38 caliber
Bersa handgun owned by his roommate during the domestic violence incident, including
officer testimony that they found the gun during a search of Warren's house and
laboratory testing of DNA found on the weapon was consistent with Warren. The jury
found Warren guilty of criminal possession of a firearm but acquitted him of all other
charges. At sentencing, the district court imposed the presumptive sentence of 21 months
in prison based on Warren's criminal history score of A.
Warren timely appealed.
IS K.S.A. 2018 SUPP. 21-6304(a)(2) CONSTITUTIONAL?
In his sole issue raised on appeal, Warren argues that K.S.A. 2018 Supp. 21-
6304(a)(2) violates his state constitutional rights because it criminalizes possession of a
firearm by persons convicted of a felony. He contends section 4 of the Kansas
2
Constitution Bill of Rights only allows the Legislature to prohibit use of a firearm and
otherwise guarantees all Kansans—regardless of past criminal activity—a fundamental
right to possess firearms.
Warren did not challenge the constitutionality of K.S.A. 2018 Supp. 21-6304(a)(2) in
district court.
Warren concedes that he did not challenge the constitutionality of the criminal
possession of a firearm statute before the district court, but nevertheless asserts this court
should address his claim. Generally, constitutional issues not raised before the district
court are not properly before this court when raised for the first time on appeal. There are
exceptions to this rule, which include: (1) The newly asserted theory involves only a
question of law arising on proved or admitted facts and is finally determinative of the
case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent
denial of fundamental rights, and (3) the district court was right for the wrong
reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
Kansas Supreme Court Rule 6.02(a)(5) (2022 Kan. S. Ct. R. at 36) also requires an
appellant who did not raise an argument below, to "expla[in] why the issue is properly
before the court." Our Supreme Court has determined that when an appellant violates
Rule 6.02(a)(5), the appellant abandons his or her argument because failing to explain
why an argument was not raised below is tantamount to inadequately briefing the issue.
See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Even if an exception
applies, as both parties note, the decision to review an unpreserved claim under one of the
recognized exceptions is a prudential one. This court has no obligation to consider an
issue being raised for the first time on appeal. State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459
P.3d 165 (2020).
3
Warren asserts the first two exceptions apply here. Regarding the first exception,
Warren claims his constitutional challenge presents a pure question of law that "arises
from unchanging facts, the facts submitted at trial, and is finally determinative of this
case." Contrary to Warren's assertion, this court has recently been unwilling to review an
identical challenge for the first time on appeal based on an understanding that a proper
analysis would also require a developed factual record and historical considerations not
articulated in the district court below. See State v. Valdez, No. 121,053, 2021 WL
1324023, at *3 (Kan. App. (unpublished opinion) (noting that "evaluating such a
challenge for the first time on appeal would require factual, legal, and historical analysis
not found in this record"), rev. granted 314 Kan. ___ (August 27, 2021); State v. Miner,
No. 122,372, 2021 WL 401282, at *2 (Kan. App.) (unpublished opinion) (noting failure
to challenge constitutionality of probation condition prohibiting possession of a firearm
below "deprived the trial judge of the opportunity to address the issue in the context of
this case" which "analysis would have benefitted [appellate] review"), rev. denied 314
Kan. ___ (August 27, 2021); State v. Pugh, No. 120,929, 2021 WL 218900, at *5 (Kan.
App. 2021) (unpublished opinion) ("Because Pugh failed to raise this issue at trial, there
is a lack of evidence in the record to supply this court a sound foundation for meaningful
review."); State v. Tucker, No. 121,260, 2020 WL 7293619, at *7 (Kan. App. 2020)
(unpublished opinion), petition for rev. filed January 11, 2021; State v. Johnson, No.
121,187, 2020 WL 5587083, at *5 (Kan. App. 2020) (unpublished opinion) ("Though the
ultimate decision as to whether a law infringes some constitutional provision is a question
of law, constitutional questions—especially novel claims that have not been before
considered—often involve considerable factual development and require the
determination of multiple legal questions along the way."), rev. denied 313 Kan. 1044(2021). We decline to consider the merits of Warren's constitutional challenge under the
first exception for the same reason.
Regarding the second exception, Warren argues it applies for two reasons: (1) His
challenge implicates an "explicit, textual protection of the right to bear arms," as provided
4
by both the federal and state Constitutions; and (2) reaching the merits would serve the
ends of justice by providing him an opportunity to be heard while also promoting judicial
economy by clarifying the issue for future litigants who may raise it in the district courts.
The State contests both of these points, arguing Warren fails to provide legal support that
section 4 describes a fundamental right and suggesting that judicial economy would be
better served by defendants raising issues like this before the district court.
Contrary to the State's view, Warren's argument clearly involves a fundamental
right because he is claiming that the criminal possession of a firearm statute violates
section 4 of the Kansas Constitution Bill of Rights. That provision states, in relevant part:
"A person has the right to keep and bear arms for the defense of self, family, home and
state, for lawful hunting and recreational use, and for any other lawful purpose." Kan.
Const. Bill of Rights, § 4 (2020 Supp.). This provision's counterpart is the Second
Amendment to the United States Constitution: "A well regulated Militia, being necessary
to the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed." U.S. Const. amend. II. Warren's challenge is framed in the denial of a
fundamental right. See State v. McKinney, 59 Kan. App. 2d 345, 354, 481 P.3d 806(addressing similar challenge to K.S.A. 2020 Supp. 21-6301[a][13] on the merits), rev.
denied 313 Kan. 1044 (2021). However, Warren does nothing to overcome the total lack
of development of a proper record at the district court level.
Likewise, Warren argues that consideration on the merits may be necessary to
serve the ends of justice because the only issue at stake is the constitutionality of the
statute he was convicted of violating. Although Warren suggests judicial economy would
be served by reaching a decision on the merits because it would provide clarity, that is
not a driving force for applying this exception. Rather, deciding this issue in Warren's
favor would mean his sole conviction gets reversed. That necessarily means he must be
able to show the statute violates the constitution in order to show that considering the
issue serves the ends of justice or would prevent the denial of a fundamental right. See
5
State v. Ortega-Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 (2008) ("The difficulty with
this argument, as we have noted before, is that we must be able to consider the merits of
the issue to determine if justice demands its resolution: '[T]o serve the ends of justice or
to prevent the denial of fundamental rights, it follows that, on consideration, we must find
reversible error occurred.' State v. Williams, 275 Kan. 284, 289-90, 64 P.3d 353[2003].").
Regardless of whether this exception applies, this court is not obligated to consider
the claim because the decision is a prudential one. See Gray, 311 Kan. 164, Syl. ¶ 1.
Without a developed factual, legal, or historical record for this claim, we decline to reach
the merits of Warren's constitutional challenge.
Appeal dismissed.
6