Opinion
Nos. 106,584 106,585.
2012-05-25
CITY OF ATCHISON, Appellee, v. Jerome BRATTON, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge. John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant. J. David Farris, of J. David Farris Law Offices, of Atchison, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant. J. David Farris, of J. David Farris Law Offices, of Atchison, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jerome Bratton appeals after two convictions for unlawfully storing junk or scrap metals in violation of § 17–17 of the Atchison Municipal Code (M.C. § 17–17). Bratton contends that because he had been issued a license under M.C. § 17–17, his conduct was not unlawful as a matter of law. He also contends the evidence was insufficient to prove beyond a reasonable doubt he was storing junk or scrap metals contrary to M.C. § 17–17.
We affirm Bratton's convictions. First, the license issued by the City of Atchison (City) did not authorize the storage of junk or scrap metals on a residential lot. Bratton does not dispute the materials in question were located on a residential lot. Second, we conclude the evidence presented at trial was sufficient to support Bratton's convictions.
This case began when the City cited Bratton with nine counts of violating M.C. § 17–17 and zoning regulations that prohibit maintaining a junkyard in the City unless the operator has the required license and the lot is zoned industrial. Bratton had a scrapping license from the City that was tied to a business address in the county and allowed him to pick up junk or scrap. That license did not, however, authorize him to store those materials on a lot that was zoned for residential use only.
Nine citations for violating M.C. § 17–17 were issued by the City's code enforcement officer, Curtis Wheeler. The citations resulted from observations purportedly made by Wheeler for the period of July 6, 2010, through October 13, 2010. Wheeler testified that on nine different occasions he observed and photographed trailers—some parked, others hitched to a pickup truck—filled with various items of junk or scrap materials and several lawnmowers sitting in a patch of tall weeds or grass on one of Bratton's residential properties. At trial in the municipal court Bratton was convicted on eight of the counts. He appealed his convictions to the district court.
Following a bench trial, the district court issued its memorandum decision acquitting Bratton of six of those charges and convicting him of two. In support of the acquittals, the district court found the State's evidence that Bratton parked a pickup truck and attached trailer filled with varying loads of scrap metal on his lot for short periods of time did not constitute storage of scrap. However, as to the charges Bratton was in violation of M.C. § 17–17 on September 13, 2010, and October 13, 2010, the court found him guilty and imposed a fine of $250 for each charge. Bratton has presented a timely appeal for our consideration.
“When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence 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. [Citations omitted.] The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citation omitted.]” State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268(2012).
To the extent that Bratton's arguments call for the interpretation of M.C. § 17–17, “interpretation of municipal ordinances is a question of law over which appellate courts exercise unlimited review.” Frich v. City of Salina, 290 Kan. 869, Syl. ¶ 13, 235 P.3d 1211(2010).
M.C. § 17–17 provides in material part:
“It shall be unlawful for any person to create, extend, install, establish or maintain any junkyard or storage yard upon any lot, block, tract or parcel of land within the city on which the storage, parking or dumping of junk shall be outside of a completely enclosed building without having first obtained a city license so to do.”
The City's zoning regulations define “junkyard” as:
“A lot, land, or structure or part thereof, used primarily for the collecting, storage, and sale of waste paper, rags, scrap metal, or discarded material, or for the collecting, dismantling, storage, and salvaging of two (2) or more machines or vehicles not in running order, and for the sale of parts thereof.” City of Atchison Zoning Reg. § 109.51.
Bratton argues that he complied with the plain language of M.C. § 17–17 because he had previously obtained the license to maintain a junk or scrap business. His argument is without legal persuasiveness because of an erroneous assumption that the mere issuance of a license gave him carte blanche to maintain a junkyard or scrapping business anywhere within the City. This argument ignores the uncontroverted testimony of Wheeler, who testified that although Bratton did have a scrapping license issued by the City, the license did not authorize him to store or otherwise maintain a junkyard on a lot zoned for residential use. Indeed, Bratton did not contend at trial that the zoning ordinances of the City authorized the issuance of a junk or scrapping license that would permit storage on a residential lot. We conclude Bratton's argument is without legal merit.
Bratton next argues that the evidence was insufficient to sustain his convictions because “the evidence was clear that Mr. Bratton was not storing these items but was moving and selling the same almost on a daily basis.” In support, Bratton cites to a “scale check register” he admitted at trial that showed he made deliveries to a scrap yard on both September 14, 2010, and October 14, 2010—both of which were 1 day after each of the days for which Bratton was cited with and ultimately convicted of violating M.C. § 17–17. Bratton further maintains his storage of the lawnmowers could not support his conviction of violating M.C. § 17–17 on either of these occasions because of his testimony that the lawnmowers were operable—hence taking them outside of the definition of a “junkyard”—was uncontroverted by the City.
However, there was also evidence at trial that supported the City's contentions. Wheeler testified that on the dates in question there were unattached trailers containing scrap material or junk and at least a dozen lawnmowers remained in a patch of tall weeds or grass on one of Bratton's residential properties. His testimony was also corroborated by photographs he had taken that were introduced in evidence.
In its memorandum decision, the district court made detailed findings that included:
“The two other cases present a different set of facts. In those cases, in addition to the trailers of scrap there were at least a dozen lawn mowers parked on the property. The violations are a month apart. It appears that at least some of the lawnmowers are the same. The lot appears to be a vacant lot with no other discernable purpose. The lawn mowers are in a patch of weeds or tall grass. In those cases the Court finds that the City has met its burden and proven that the lot is used primarily for the collecting or storage of discarded material or scrap metal. The Court finds the defendant guilty in cases 2011CR54 and 2011CR56. The Court imposes a fine of $250 in each case plus court costs.”
We are not persuaded that Bratton's deliveries at or near the time of each violation or his testimony that the lawnmowers were operable negate the district court's findings in support of the convictions. The district court could reasonably infer from the totality of circumstances shown by the evidence that such deliveries did not include the items it found to be stored or parked on the property in violation of M.C. § 17–17. Likewise, the determination of functionality or purpose of the numerous lawnmowers sitting in tall weeds was contested and presented an issue of fact for the district court. As we have already stated, we are precluded from reweighing the evidence, assessing the credibility of the witnesses, or resolving conflicting evidence. See Raskie, 293 Kan. at 919–20, 269 P.3d 1268.
We conclude under our standard of review that Bratton has not demonstrated error in the district court proceeding. We affirm both of his convictions for violating M.C. § 17–17 of the Atchison Municipal Code.
Affirmed.