Opinion
No. 106,337.
2012-07-27
CITY OF JUNCTION CITY, Kansas, Appellant, v. Verlin TARVER, Appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Ralph J. De Zago, city prosecutor, for appellant. Thomas D. Addair, of Addair Thurston, Chtd., of Manhattan, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Ralph J. De Zago, city prosecutor, for appellant. Thomas D. Addair, of Addair Thurston, Chtd., of Manhattan, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The City of Junction City, Kansas (City), appeals the district court's decision finding Verlin Tarver not guilty of violating Ordinance No. 300.030 (driving under the influence) (DUI) because the City failed to introduce into evidence at the bench trial a copy of the ordinance. But the City failed to provide a factual or legal basis upon which we can rely to exercise appellate jurisdiction. Accordingly, we dismiss the appeal in its entirety.
Facts
On April 1, 2009, Tarver received a citation for violating Ordinance Nos. 300.030(DUI), 300.125 (driving across a lawn), and 300.195 (driving in violation of restrictions). Thereafter, Tarver pled no contest in municipal court to the charges. He appealed his convictions to the district court. As part of the appeal process, the record of the municipal court proceedings was forwarded to the district court. The municipal court judge who presided over the proceedings certified that the record included the original citation issued to Tarver. This citation, however, was not included in the record that the district court received.
The case eventually proceeded to a bench trial before the district court. At the beginning of the trial, the district court noted that the citation showing the specific ordinances that Tarver allegedly violated was not in the record that it received from municipal court. Accordingly, the district court asked for and received copies of the ordinances from the City so that it could determine whether the evidence presented at the bench trial established violations of the ordinances.
After the evidence was presented, the City dismissed the driving across a lawn charge, concluding that the evidence failed to establish that Tarver intentionally damaged the property at issue—an essential element of the ordinance. Because no evidence was presented regarding what driving restrictions were placed on Tarver's license, the district court found Tarver not guilty of violating Ordinance No. 300.195. With regard to the DUI charge, the district court voiced concerns about the legal significance of the citation not being included in the record received from the municipal court. The court wondered whether this situation caused the court not to have jurisdiction over Tarver or, if the court did have jurisdiction, whether it was forced to find Tarver not guilty of DUI because evidence of the citation was necessary to convict Tarver. Thus, the court postponed deciding the issue until it received briefs from the parties.
The City subsequently filed a copy of the citation issued to Tarver. The City also filed a brief arguing that, because the citation was filed in municipal court, the district court had jurisdiction over Tarver's appeal. The district court ultimately issued a written decision in which it found that it had jurisdiction over Tarver's appeal. The court noted, however, that although it had received a copy of Ordinance No. 300.030 from the City at trial, the ordinance was never admitted into evidence at trial nor was the court asked to take judicial notice of the ordinance. Thus, the court concluded that the City failed to present sufficient evidence to convict Tarver of DUI in violation of Ordinance No. 300.030. The City filed an appeal from this decision.
In the notice of appeal filed with the district court and the docketing statement filed with this court, the City cited K.S.A. 22–3602(b)(3) as authority for its appeal of the district court's decision. In its brief, however, the City did not include any facts or legal argument to justify review of the district court's decision as a question reserved and did not provide any other jurisdictional basis for exercising jurisdiction over the appeal. Instead, the State focused its brief entirely on the merits of the district court's decision.
Analysis
On appeal, the City asks this court to determine whether a copy of Ordinance No. 300.030 had to be admitted into evidence in order to convict Tarver of DUI in violation of that ordinance.
“Kansas courts accept appeals on questions reserved when the issues are matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes but will not consider such appeals when the resolution of the question would not provide helpful precedent.” State v. Finch, 291 Kan. 665, Syl. ¶ 1, 244 P.3d 673 (2011); see also State v. Adee, 241 Kan. 825, 826, 740 P.2d 611 (1987). (Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to determine whether error has been committed by the trial court in its rulings adverse to the State.). If the standard for exercising jurisdiction over a question reserved is not satisfied, then an appellate court will not exercise jurisdiction under K.S.A. 22–3602(b)(3). State v. Skolaut, 286 Kan. 219, 224–26, 182 P.3d 1231 (2008); State v. Tremble, 279 Kan. 391, 393–94, 109 P.3d 1188 (2005).
The City failed to brief whether the issue raised in its appeal should be addressed as a question reserved under K.S.A. 22–3602(b)(3). We construe the City's failure to brief an issue essential to jurisdiction as an issue waived and abandoned on appeal. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (An issue not briefed by the appellant is deemed waived and abandoned.). Because K.S.A. 22–3602(b)(3) was the only jurisdictional basis the City ever provided for exercising jurisdiction over its appeal, we decline jurisdiction and dismiss the City's appeal. See State v. Attwood, No. 100,748, 2009 WL 1766514, at *2 (Kan.App.2009) (unpublished opinion) (panel held that by failing to brief whether question raised in its appeal should be a addressed as question reserved, State abandoned its appeal under K .S.A. 22–3602[b][3]; but, because State raised K.S.A. 22–3602[b][1] as another jurisdictional basis for its appeal, court proceeded to address merits of its argument).
Dismissed.