Opinion
No. 107,574.
2013-06-7
CITY OF WICHITA, Kansas, Appellee, v. Gregory L. WALLACE, Appellant.
Appeal from Sedgwick District Court; Erica. Commer, Judge. Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant. Michael J. Hoelscher, assistant city attorney, and Gary E. Rebenstorf, city attorney, for appellee.
Appeal from Sedgwick District Court; Erica. Commer, Judge.
Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant. Michael J. Hoelscher, assistant city attorney, and Gary E. Rebenstorf, city attorney, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gregory L. Wallace appeals his conviction for false impersonation under section § 5.40.010 of the City of Wichita Municipal Code. Two issues are presented: (1) Did the district court err in its instruction to the jury as to the elements of false impersonation and (2) did the district court err in refusing to instruct the jury on the defense of voluntary intoxication?
We conclude the issues presented are without legal merit and affirm Wallace's conviction. Principles of statutory construction are controlling
The parties agree that Wallace was charged with impersonating a police officer. On appeal, he argues the district court did not properly instruct the jury as to the elements of the offense. However, it is clear to us that the controlling issue is whether the district court correctly interpreted § 5.40.010.
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). In interpreting a statute or ordinance, we are charged to first attempt to determine legislative intent through the language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Section 5.40.010 states:
“Any person who represents oneself to be a public officer or public employee or a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the State of Kansas, with knowledge that such representation is false, within the corporate limits of the city shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or one year imprisonment, or both such fine and imprisonment.” (Emphasis added .)
It is Wallace's contention that the above emphasized phrase from § 5.40.010 applies to a false representation of being a police officer. Thus, Wallace urged the district court to instruct that Wallace represented himself to be a police officer “for which a license is required by the laws of the State of Kansas.”
Declining Wallace's invitation, the district gave the following instruction to the jury:
“The Defendant is charged in Count 1 with the crime of impersonating an officer. The Defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the Defendant represented himself to be a public officer;
“2. That the Defendant knew the representation was false; [and]
“3. That this act occurred on or about the 27th day of June, 2009, in Wichita, Sedgwick County, Kansas.”
The language of § 5.40.010 prohibits the impersonation of three separate classes of people—(1) a public officer, (2) a public employee, or (3) a person licensed to practice or engage in any profession or vocation for which a license is required by the laws of the State of Kansas. The phrase “for which a license is required by the laws of the State of Kansas” is directly tied to the third class of persons licensed to practice a profession or vocation. The phrase does not modify or refer to the first two classes of persons. As the City points out, under Wallace's interpretation, it would be legal to impersonate a public officer and public employee because these two classes of persons generally are not licensed.
Additionally, K.S.A. 21–3824(a) describes the offense of false impersonation in virtually identical language as § 5.40.010 and PIK Crim.3d 60.25 recommends a pattern instruction consistent with the district judge's instruction given in this proceeding.
Accordingly, we conclude the district court properly instructed the jury as to the elements for the offense of impersonating a police officer. Wallace's claim of error fails. Section 5.40.010 is not a specific intent crime
Wallace next contends the district court erred in denying his request to instruct the jury on voluntary intoxication. According to Wallace, because § 5.40.010 requires “knowledge that such representation is false,” it implies the specific intent to deceive the party to whom the statement is made. Wallace maintains there was ample evidence to support the defense of voluntary intoxication, a jury instruction on voluntary intoxication was thus mandatory, and the district court's failure to give the instruction was reversible error.
Wallace argues a denial of his theory of defense. However, before we would be obligated to consider the merits of Wallace's argument, we must decide whether § 5.40.010 is a specific intent crime.
K.S.A. 21–3208(2), which was in effect at the time of Wallace's offense, explains the defense of voluntary intoxication.
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
In State v. Messer, 278 Kan. 161, 164, 91 P.3d 1191 (2004), the Kansas Supreme Court held K.S.A. 21–3824 did not require proof of a specific intent to deceive. The decision in Messer provides persuasive authority to find that impersonating a public officer under § 5.40.010 does not require a specific intent to deceive. Accordingly, the district court's refusal to instruct on the defense of voluntary intoxication was not error. Thus we decline Wallace's invitation to consider the extent of his intoxication as it was not a viable defense to the charge of impersonating a police officer.
Affirmed.