State v. Jenkins ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,800
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
VICTORIA L. JENKINS,
Appellant.
MEMORANDUM OPINION
Appeal from Jackson District Court; NORBERT C. MAREK JR, judge. Opinion filed October 1,
2021. Reversed.
Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON P.J., BRUNS and ISHERWOOD, JJ.
PER CURIAM: As a Jackson County District Court judge deliberated on the
evidence the State had presented in a bench trial prosecuting Victoria L. Jenkins for
obstructing sheriff's officers who sought to apprehend her boyfriend, he decided to
change the theory of the case and entered a judgment of conviction accordingly. Jenkins
has appealed on multiple grounds. Among them, she argues the evidence does not
support her conviction on the theory the judge ultimately considered. We agree. The
appropriate remedy requires we reverse Jenkins' conviction, vacate the sentence, and
enter a judgment of acquittal.
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The State charged Jenkins with obstruction, a felony violation of K.S.A. 2020
Supp. 21-5913, for hiding Shawn Duble in her home in October 2019 as the sheriff's
officers sought to take him into custody on an arrest warrant issued because he had failed
to report to his probation officer earlier in the day. We dispense with a protracted
discussion of the procedural and factual history of the case. The State and Jenkins tried
the case to the district court in January 2020 on stipulated facts. We glean the
circumstances from the stipulation that consisted of a 10-paragraph narrative of the
events, the arrest warrant for Duble, a search warrant for Jenkins' home, and two
bodycam videos of the officers' interaction with Jenkins at her home as they attempted to
find Duble.
In an amended complaint, the State again charged Jenkins with one count of
"obstructing apprehension or prosecution," a crime proscribed in K.S.A. 2020 Supp. 21-
5913(a)(1) as "knowingly harboring, concealing or aiding any person who . . . [h]as
committed or who has been charged with committing a felony or misdemeanor under the
laws of this state." The amended complaint specifically identified Duble as the person
Jenkins aided and the arrest warrant for the probation violation as the crime Duble had
committed. The officers had reason to believe Duble was at Jenkins' house. As we
indicated, Jenkins refused to allow the officers to look for Duble because they did not
have a search warrant. In one of the bodycam videos, Jenkins unequivocally tells the
officers Duble is not there.
The officers withdrew from the house and promptly obtained a search warrant to
enter the house to look for and seize Duble. They found Duble hiding under a bed in a
backroom. The State then charged Duble in a separate case with interference with law
enforcement in violation of K.S.A. 2020 Supp. 21-5904(a)(3) for "obstructing, resisting,
or opposing" the execution of the arrest warrant for him by hiding under the bed. And the
State charged Jenkins in this case.
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After the district court judge received the stipulated evidence and heard the
arguments of the lawyers in this case, he apparently concluded the charge against Jenkins
in the amended complaint would not support a conviction because an arrest warrant for a
probation violation does not itself reflect or entail a crime as contemplated in K.S.A.
2020 Supp. 21-5913. We can discern the judge's thinking from the written order he
entered explaining his reasoning in finding Jenkins guilty. Confronted with that legal
obstacle during his deliberations, the judge then took judicial notice of the charge against
Duble for interference and substituted it for the arrest warrant as the predicate crime for
the obstruction charge against Jenkins. Neither party had asked the judge to take judicial
notice of the case against Duble or of anything filed in that case, and the complaint
against Duble was not otherwise included in the stipulated evidence. Having revamped
the charge against Jenkins, the district court judge found her guilty.
The district court later imposed a standard guidelines sentence of 10 months in
prison on Jenkins with postrelease supervision for 12 months and placed her on probation
for 12 months. Jenkins has appealed.
On appeal, Jenkins has challenged her conviction on multiple bases, including the
district court judge's use of judicial notice to revise the factual underpinning of the charge
as outlined in the amended complaint and the sufficiency of the evidence to support the
revised charge. She contends the revision entailed an impermissible use of judicial notice
and implicated her constitutional due process right to fair notice of the charge against her.
Although we entertain substantial reservations about what the district court judge did
during his deliberation of the case, we put them to one side and focus on the sufficiency
challenge Jenkins has asserted.
To be guilty of obstruction under K.S.A. 2020 Supp. 21-5913, a defendant must
harbor, conceal, or aid a person who has already committed a crime. In other words, the
predicate crime of the other person must have been completed at the time the defendant's
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obstruction occurs. The Kansas Supreme Court so recognized in State v. Busse, 252 Kan.
695, 696, 847 P.2d 1304 (1993). In Busse, the court simply carried forward an established
principle of Kansas criminal law. While the court considered what was then labeled as
"aiding a felon," the proscribed conduct matches the prohibition in the current obstruction
statute, K.S.A. 2020 Supp. 21-5913. The rule outlined in Busse, therefore, remains good
law and governs here.
We need not delve into the historical foundations for the crimes of aiding a felon
or obstruction. Basically, they criminalize as a distinct offense helping someone who has
already committed a crime to evade capture. By contrast, under the statutory principles of
criminal liability in Kansas, if one person aids or assists another person who is in the
process of committing a crime, the person rendering the aid or assistance is guilty of that
crime. K.S.A. 2020 Supp. 21-5210(a). So someone who acts as lookout or a getaway
driver for a pair of armed robbers is guilty of aggravated robbery rather than obstruction,
especially since successful flight from the immediate scene is part of the crime. See State
v. Gleason, 277 Kan. 624, 634-35, 88 P.3d 218 (2004) (lookout); State v. Hearron, 228
Kan. 693, 694-95, 619 P.2d 1157 (1980) (immediate flight part of crime); State v. Burton,
35 Kan. App. 2d 876, 880-81, 136 P.3d 945 (2006) (getaway driver).
Duble's interference with the law enforcement officers looking to take him into
custody for the probation violation continued throughout the time he hid in Jenkins' house
and was ongoing when Jenkins told the officers he was not there. In short, Duble's crime
had not been completed at the time Jenkins misled the officers. Jenkins, therefore, could
not be guilty of obstruction in violation of K.S.A. 2020 Supp. 21-5913 on the stipulated
evidence and the charge as the district court revised it.
When insufficient evidence supports the crime of conviction, we are obligated to
reverse the conviction, vacate the sentence, and enter a judgment of acquittal. State v.
Baumgarner, 59 Kan. App. 2d 330, 341, 481 P.3d 170 (2021). We do so here. Given our
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resolution of this issue, we need not and do not consider the other points Jenkins has
raised on appeal.
Conviction reversed, sentence vacated, and judgment of acquittal entered.
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