Opinion
No. 107,739.
2013-03-8
STATE of Kansas, Appellant, v. Nicholas Raffaele BURGESS, Appellee.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge. Peter R. Glasser, assistant district attorney, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. Carol Cline, deputy public defender, for appellee.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge.
Peter R. Glasser, assistant district attorney, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. Carol Cline, deputy public defender, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM:
The State of Kansas appeals from the district court's order dismissing a felony charge of battery against a correctional officer filed against Nicholas Burgess under K.S.A. 21–3413(a)(3)(D). After a preliminary hearing, the court concluded that Burgess was not “confined” in a “county jail facility” within the meaning of the statute when he allegedly struck a deputy sheriff in the booking area of the New Century Adult Detention Facility.
Facts
On June 1, 2011, the State filed a complaint charging Nicholas Burgess with one count of battery against a law enforcement officer under K.S.A. 21–3413(a)(3)(D), a severity level 5 person felony, based on an incident which had occurred the previous evening.
On May 31, 2011, an officer of the Olathe Police Department had taken Burgess to the New Century Adult Detention Facility on a municipal charge. Deputy Sheriff Larry Wilkins was working at the correctional facility as the lead booking officer. Burgess was brought into the booking lounge of the facility where Wilkins was at an intake window processing another inmate. While waiting to be processed, Burgess approached Wilkins and swung his fist at him. Wilkins was able to partially block the blow, but Burgess' fist still made contact with the deputy's face. Although Wilkins did not require medical treatment, his face was sore.
Wilkins testified at the preliminary hearing that Burgess was in the process of being photographed and fingerprinted and having his information entered into the computer. Burgess had not yet been assigned to a cell or given an inmate number at the time of the attack.
Following Wilkins' testimony, Burgess' attorney argued that the State had failed to establish that Burgess was “confined” in the facility at the time of the battery, although he conceded that Burgess was “in custody.” After taking the matter under advisement, the court found sufficient evidence to bind Burgess over on the felony charge.
Burgess filed a motion for reconsideration, and a subsequent hearing was held. Deputy Wilkins testified regarding the booking process. The booking lounge is the portion of the county jail where the initial intake of prisoners is completed. The arresting officer brings the arrestee to the booking lounge and provides the booking officer with paperwork regarding the arrest. Both the officer and jail personnel inventory the detainee's property. Jail officials photograph and fingerprint the detainee and ultimately issue an inmate identification number. There is no specific point in the process where the arresting officer is deemed to have transferred the detainee over to jail officials.
A videotape from the booking area on the evening of the incident showed that Burgess was the only person in the booking lounge at the time other than Wilkins and three other unarmed deputies. Burgess had been in the lounge for just under an hour and was wearing a jail-issued uniform. He had not yet been photographed or fingerprinted or assigned an inmate number or cell. Burgess was not allowed access to any other area of the jail, and he was not free to leave.
At the conclusion of this hearing, the district court reversed its prior ruling and found insufficient evidence to bind Burgess over on the felony charge. In a subsequent written ruling, the court found that (1) Burgess was not “confined” within the meaning of the statute and that (2) the booking room of the New Century Adult Detention Center was not part of a “county jail facility.” The court found that Burgess could only be charged with misdemeanor battery against a law enforcement officer. The State declined to amend the complaint, whereupon the court dismissed the case without prejudice. The State timely appeals.
Standard of Review
This appeal requires this court to interpret a statute, K.S.A. 21–3413(a)(3)(D).
Interpretation of a statute is a question of law over which the appellate court has unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). In interpreting statutes, the intent of the legislature governs if that intent can be determined. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). The court's first source for determining legislative intent is to review the statutory language enacted and to give common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Analysis
The State contends the district court erred in refusing to bind Burgess over on the felony of battery against a correctional officer, relying on the dictionary definition of “confined.” Burgess contends that the statute should be strictly construed in favor of the accused and that “confined” should be interpreted to be distinguishable from the term “in custody.”
The relevant provision of K.S.A. 21–3413(a)(3)(D) defines battery against a law enforcement officer as a battery “committed against a city or county correctional officer or employee by a person confined in a city holding facility or county jail facility.” (Emphasis added.)
With all due respect to the district court's suggestion that “confine” is a “special word,” we would find that “confine” is a common word which must be accorded its ordinary meaning. Webster's New Riverside University Dictionary 298 (1988) variously defines “confine” as meaning “[t]o keep within bounds,” “[t]o keep shut up” and “[t]o restrict in movement.” The State cites the Merriam–Webster online dictionary, www.merriam-webster.com, defining “confined” as meaning “to hold within a location,” “imprison,” and “to keep within limits.” Similarly, Black's Law Dictionary 340 (Deluxe 9th ed.2009) is cited as defining “confinement” as “[t]he act of imprisoning or restraining someone; the state of being imprisoned or restrained ” (Emphasis added.) Burgess also cites Black's Law Dictionary 298 (6th ed.1990) as defining “confined” as including “detention in [a] penal institution” and Webster's Online Dictionary, www.websters-online-dictionary.org, as defining “confined” as including being “[d]eprived of liberty.”
Under any of these ordinary meanings of the common word, Burgess was clearly “confined.” He was within the “brick and mortar” of a jail facility and his movements were restricted. He was in the booking lounge, not the pubic lounge area. He was already in jail clothing as the booking officer was preparing to process his admission. He was under arrest and, clearly and admittedly, he was not free to leave the facility.
The district court opined that the statute was intended to protect jailers in the situation where they were substantially outnumbered by inmates, such as when there is one deputy in a pod with up to 64 inmates. This would seem to suggest that when several correctional officers respond to a disturbance caused by an individual inmate in solitary confinement, they would not enjoy the protection of the felony statute.
Burgess similarly contends that because various sections of a jail—administrative offices, employee locker area, kitchen facilities—are not areas where inmates are normally located, the felony provisions should only apply to the portions of the jail where inmates are housed. We would point out that in many jail facilities inmates are routinely assigned to kitchen duty or to clean-up and maintenance duty. Applying Burgess' rationale, it would be questionable whether correctional officers supervising such inmates would come within the purview of the felony statute. Since, as we shall discuss below, correctional officers are specifically excluded from the provisions of K.S.A. 21–3413(a)(1) and (a)(2), adopting Burgess' interpretation could leave such supervising officers with inadequate protection from an inmate battery.
More importantly, the plain language of the statute simply refers to being “confined in a ... county jail facility.” K.S.A. 21–3413(a)(3)(D). Nothing in the statutory language requires or indicates the limitation suggested by the district court or urged by Burgess. Asking this court to read such limiting language into the statute runs afoul of the principle that an appellate court “cannot read into the statute language not readily found there.” Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 940, 218 P.3d 400 (2009).
K.S.A. 21–3413 codifies three different crimes. Subsection (a)(1) prohibits simple battery—intentional physical contact when done in a rude, insulting or angry manner—against a university, state, county, or city law enforcement officer, other than a correctional officer. This offense is a class A person misdemeanor. K.S.A. 21–3413(b). Subsection (a)(2) prohibits battery—intentionally or recklessly causing bodily harm—against a university, state, county, or city law enforcement officer, other than a correctional officer. This offense is a severity level 7, person felony. K.S.A. 21–3413(b). Finally subsection (a)(3) prohibits both types of battery against any state, county, city, or juvenile correctional officer. This final offense is a severity level 5, person felony. K.S.A. 21–3413(b).
The Supreme Court discussed the differentiation between the different types of battery against a law enforcement officer under K .S.A. 21–3413(a) and noted:
“Examining the statute in its entirety, it is evident that the legislature wanted to discourage confined persons from committing battery against law enforcement officers in correctional facilities by elevating the severity level of the crime to a felony.... [T]he structure of the statute demonstrates an intent to promote order and safety in prisons, juvenile facilities, and jails by providing a stronger deterrent to inmates contemplating battering an officer or employee.” (Emphasis added). State v. Perez–Moran, 276 Kan. 830, 839–40, 80 P.3d 361 (2003).
The legislature's choice to make the battery of a jailer more serious than a similar battery on a police officer is within that body's prerogative. A few examples illustrate that the differentiation is not unreasonable. When a person is being booked into the county jail, a judge or police officer has already determined that there is probable cause to arrest the detainee; that is not the case with every person a police officer meets on the street. In addition, police officers are normally armed, while corrections personnel normally are not. In this case, the correctional officers had only tasers, not firearms. Also, an attack upon a correctional officer in one part of the jail facility could draw other officers to respond, compromising security in other areas of the jail.
We conclude that the district court erred in interpreting K.S.A. 21–3413(a)(3)(D). Based upon the testimony presented at the preliminary hearings, the State made a sufficient showing that Deputy Wilkins was performing his duties as a correctional officer and that Burgess was confined in a jail facility when he struck Wilkins. Accordingly, we reverse the district court ruling. The case is remanded for reinstatement of the original felony charge and for Burgess to be bound over for arraignment and trial.
Reversed and remanded for trial.