State v. Warren ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,209
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 July 17, 2020.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., HILL and GARDNER, JJ.
PER CURIAM: Edward Arnold Warren Jr. appeals his convictions for 21 counts of
violating a protective order. Warren claims there was insufficient evidence and that he
was covered by a statutory exception that permitted him to have contact with the party
who was protected by the order. We disagree and affirm his convictions.
In 2018, Warren appeared in court on a criminal charge of domestic battery. At
that time, the court entered a protective order preventing him from making direct or
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indirect contact with A.H. The order contains language that prohibited him from making
contact directly or through an intermediary.
Undeterred by this initial order, Warren was charged about a month later in a
second criminal case with domestic battery. The court issued another protective order in
that prosecution. This time, while sitting in his cell in the county jail, Warren called A.H.
78 times. On occasion, he called her seven times in one day. All of these calls were
recorded by the jail staff. Large notices are placed in the jail to inform prisoners that the
calls are recorded. Based largely on these calls, the state charged Warren with 21 counts
of violating a protective order. Each count is a Class A misdemeanor. With these new
charges, the court issued a third protective order which contained the same prohibitions
as the first two orders.
Warren, acting as his own counsel, demanded a jury trial on these charges. In a
pretrial motion, Warren asked the court to rule that since he was acting as his own
attorney, his conduct fell under a statutory exception that allowed attorneys and those
working on behalf of the defendant's counsel to contact the subject of a protective order.
The court denied this motion. In this appeal, Warren uses the same argument that the
statutory exemption applied to him.
There was ample evidence admitted at trial.
At Warren's trial, the records custodian at the county jail testified about how
inmates made telephone calls from jail. Each inmate is given a unique personal
identification number to use when beginning a call. A recording informs both parties at
the beginning of the call that the calls are recorded and monitored and can be turned over
to law enforcement. The records custodian also testified that large red signs are fixed
above all inmate phones informing them their calls are recorded and monitored. Warren's
call log from the jail was admitted into evidence without objection. Warren's call log
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showed that he called A.H.'s telephone number on the dates that corresponded to the
charges.
A.H. testified that the telephone number listed in Warren's call log was her
number. She said that Warren called her from jail between July 17 and August 13, 2018,
and that he called her almost daily.
The detective who investigated the first domestic battery case filed against Warren
testified that he monitored calls from the jail when there was a protective order. The
detective examined the jail's inmate phone records by searching under the inmate's name
and related phone numbers. He searched for Warren's name and A.H.'s phone number
and discovered Warren was calling her. The detective listened to some of the calls and
recognized Warren's and A.H.'s voices.
The State offered into evidence a recorded collection of Warren's calls to A.H.,
which corresponded to Warren's call log. The recording contained "snippets" of the calls
to identify voices, but it did not include Warren's and A.H.'s entire conversations. The
detective testified that the recording contained 22 calls, one of which was on the morning
before Warren's first appearance, and 21 that were after Warren received notice of the
protective order at that first appearance.
Warren testified on his own behalf. He acknowledged that the first call on the
recording was him telling A.H., "After I see the judge, I'm not going to be able to call you
anymore." Warren also admitted that even after seeing the judge that day and learning of
the protective order, he continued to call A.H. from jail. Warren testified he was not the
attorney of record when he made the calls, so his defense was "no longer that I was my
own attorney," but also that he was "any person acting on such attorney's behalf," under
the statutory exception. He maintained that he called A.H. to defend himself. Warren told
the jury, "I played the dangerous game to clear my name."
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The jury found Warren guilty on all counts.
Warren claims insufficient evidence and a statutory exemption.
To us, Warren argues that there was insufficient evidence to convict him of
violating the protective order. He also contends that he was an exception to the protective
order because he was representing himself and he was also "any person" working on
behalf of his defense. He asks that his convictions be reversed.
The State contends the evidence at trial was enough to convict him of violating the
protective order. The State also contends that Warren's interpretation of K.S.A. 2019
Supp. 21-5924(c) is without foundation, inapplicable to him because he was represented
by an attorney at the time, and the jury did not have to accept his theory of defense.
A review of some fundamental points of law is helpful at this point. When the
sufficiency of the evidence is challenged in a criminal case, the standard of review is
whether, after reviewing all the evidence in a light most favorable to the prosecution, the
appellate court is convinced a rational fact-finder could have found the defendant guilty
beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary
conflicts, or make witness credibility determinations. State v. Chandler, 307 Kan. 657,
668, 414 P.3d 713 (2018).
Under K.S.A. 2019 Supp. 21-5924(a)(4), for the State to establish a defendant
violated a protective order, it must prove beyond a reasonable doubt that a defendant
knowingly violated an order issued as a condition of:
• pretrial release;
• diversion;
• probation;
• suspended sentence;
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• postrelease supervision; or
• at any other time during the criminal case that orders the person to refrain from
having any direct or indirect contact with another person.
A person acts knowingly "when such person is aware of the nature of such
person's conduct or that the circumstances exist." K.S.A. 2019 Supp. 21-5202(i).
Knowledge of the protective order is required. State v. Hunter, No. 113,865, 2017 WL
383384, at *3 (Kan. App. 2017) (unpublished opinion).
There was ample evidence to support his convictions.
Without restating all of the evidence that we reviewed above, we hold there was
sufficient evidence admitted at trial to convince a jury beyond a reasonable doubt that
Warren knew about the protective order, and violated it when he continued to call A.H.
We turn to Warren's claim of being exempt from the order.
Basically, Warren argues an exception for attorneys found in K.S.A. 21-5924(c)
applies to him.
"No protective order, as set forth in this section, shall be construed to prohibit an
attorney, or any person acting on such attorney's behalf who is representing the defendant
in any civil or criminal proceeding, from contacting the protected party for a legitimate
purpose within the scope of the civil or criminal proceeding. The attorney, or person
acting on such attorney's behalf shall be identified in such contact."
Warren argues that he was "any person" because he was acting on his own behalf
in trying to formulate a defense to the charges in the domestic assault and battery cases.
In assessing this argument, we must examine the statute that Warren relies on.
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The rules that guide us.
Statutory interpretation presents a question of law over which appellate courts
have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). And
the most fundamental rule of statutory construction is that the intent of the Legislature
governs if that intent can be ascertained. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d
850 (2019).
An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. When a
statute is plain and unambiguous, an appellate court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. State v. Ayers, 309 Kan. 162, 163-
64, 432 P.3d 663 (2019). With 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 to construe the Legislature's intent. State
v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018). "This court may correct clerical
errors or inadvertent errors in terminology if the intent of the legislature is plain and
unmistakable." Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs., 290 Kan.
446, 464, 228 P.3d 403 (2010).
In our view, the general purpose of these statutes permitting protective orders is to
provide some relief to people harassed verbally, physically, and emotionally by others
who are intent upon intruding themselves into the protected person's life. The statute
recognizes that we have a right to be left alone. Violation of such orders have penal
consequences. The order issued here is a clear example of an attempt to provide such
protection. With this general purpose in mind, we view the aim of these statutes is to
provide protection and not prevent protection. In other words, we interpret this statute to
provide protection to A.H. and not deny her protection.
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Here, the language Warren suggests is ambiguous is "any person" in subparagraph
(c). He claims he is "any person" representing the defendant. He argues even defendants
who are represented by counsel represent themselves because attorneys cannot act
without their clients' permission. Warren oversimplifies and misreads subparagraph (c).
We hold that Warren's argument fails.
We first note that subparagraph (c) does not except from the prohibitions of a
protective order any person acting on behalf of the defendant. It provides an exception for
an attorney representing the defendant, or "any person" acting on that attorney's behalf.
Even then, the attorney or the agent for the attorney may only contact the protected
subject of the order for a legitimate purpose within the scope of the proceeding. See
K.S.A. 2019 Supp. 21-5924(c).
We must point out that in an attorney-client relationship, the client is the principal
and the attorney is the agent. Someone acting on behalf of the attorney is the agent of the
agent. A client cannot be an agent of the agent since the client is the principal. Warren
therefore cannot be an attorney's agent. In Golden Rule Insurance Company v.
Tomlinson, 300 Kan. 944, 953-58, 335 P.3d 1178 (2014), the Kansas Supreme Court
relied upon the Third Restatement of Agency which defines agency as the
"fiduciary relationship that arises when one person (a 'principal') manifests assent to
another person (an 'agent') that the agent shall act on the principal's behalf and subject to
the principal's control, and the agent manifests assent or otherwise consents so to act."
Restatement (Third) of Agency § 1.01 (2005).
Under that definition, a defendant could not be the agent of his defense attorney because
the defendant does not act on behalf of the attorney and is not subject to the attorney's
control. Warren is not "any person" as contemplated by the statutory exemption.
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Warren admits he was not the attorney of record when he was calling A.H. from
jail. He provided no testimony nor other evidence at his trial that he was acting on behalf
of, or at the request of, his court-appointed attorney for a legitimate purpose when he
called A.H. He also knew that he would likely be notified of a protective order at his first
appearance because he told A.H. that after he saw the judge, he would not be allowed to
call her anymore.
The record does not show that he made any claims then that the order did not
apply to him because he planned to represent himself or he was assisting his attorney. To
the contrary, he believed he would be ordered to not have any contact with A.H. and told
her as much, but after learning of the protective order, he continued to call her. We note
with interest that in a pretrial hearing, Warren stated, "This [interpretation of
subparagraph (c)] allows me to get away with it."
The protective order was issued against Warren in one domestic battery case and
then later, in another case. The charges Warren faced in those two cases included
criminal possession of a weapon by a felon, criminal threat, domestic battery, aggravated
domestic battery, criminal restraint, and aggravated assault. The district court also issued
the protective order to protect A.H. from Warren and to protect the State's case against
Warren's potential influence on A.H.—a witness for the State.
To construe K.S.A. 2019 Supp. 21-5924(c) to allow a defendant to contact the
protected subject of such an order because the defendant has elected in that moment or
during the case to represent himself undermines the Legislature's intent and the purpose
of the order. In other words, Warren's interpretation of subparagraph (c) leads to an
unreasonable and absurd result and renders the entire statute meaningless.
The statute reasonably allows a defendant's attorney or a person working on the
attorney's behalf to contact the subject for a legitimate purpose related to the scope of the
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proceeding. Had the Legislature intended to create an exception for pro se defendants, it
would have clearly stated as much. We see no reason to interpret this statute in a way that
allows an exception for attorneys and their agents to include defendants.
In the light most favorable to the prosecution, there was sufficient evidence for the
jurors to find beyond a reasonable doubt that Warren knowingly violated the protective
order. His statutory interpretation is flawed. We affirm his convictions.
Affirmed.
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