Opinion
No. 108,539.
2013-09-13
STATE of Kansas, Appellee, v. Jennifer R. GOETZ, Appellant.
Appeal from Kingman District Court; Larry T. Solomon, Judge. Melanie S. Morgan, of Morgan Pilate, LLC, of Kansas City, Missouri, and Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, for appellant. Matthew W. Ricke, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Kingman District Court; Larry T. Solomon, Judge.
Melanie S. Morgan, of Morgan Pilate, LLC, of Kansas City, Missouri, and Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, for appellant. Matthew W. Ricke, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Jennifer Goetz of battery, felony obstruction of official duty, criminal damage to property, and criminal trespass. In this direct appeal, Goetz argues that (1) there was insufficient evidence to support her conviction of felony obstruction of official duty, (2) the district court erred in denying her motion for change of judge, and (3) the district court did not properly assess the Board of Indigents' Defense Services (BIDS) attorney fees against her. For the reasons set forth herein, we affirm Goetz' convictions, but we remand for reconsideration of the BIDS fees.
On August 20, 2011, Goetz requested a civil standby to collect property from the residence of Paul Gonzales, whom she had dated for a number of years. A “civil standby” occurs when law enforcement is present at a scene to keep the peace, typically while one person collects property from another following a domestic dispute. Kingman County Sheriff's Deputy Chrystal Woodson and Investigator Darrin Werner arrived at Gonzales' house at approximately 4:30 p.m. and met with Goetz and Gonzales. Werner and Woodson later testified that Goetz was agitated and loud. Werner noticed a cardboard sign that Gonzales had made and hung in the window; the sign said, “Keep out[,] no trespassing [,] Jenny Goetz only.” Goetz collected her belongings, and Werner advised her not to return to Gonzales' house.
Approximately 2 hours later, Woodson again was dispatched to Gonzales' house after Gonzales reported that Goetz had returned. Goetz was not at the house when Woodson arrived, but Gonzales showed Woodson photographs he had taken with his cell phone of Goetz leaving the residence. Gonzales informed Woodson that when he asked Goetz to leave, she got out of her car and chased him. Goetz would not leave until Gonzales told her he was calling 911. Woodson advised Gonzales that if Goetz returned again, Gonzales should get to a safe place and call the sheriff's department.
At about 11 p.m. that evening, Woodson was dispatched once again to Gonzales' house, this time on a report of a disturbance that a female was breaking into the house. Officer Travis Sowers of the Kingman Police Department also was dispatched to Gonzales' home, and he was the first to arrive. As Sowers walked up to the house, he noticed broken glass and a chair partially in front of the door, and he could hear a man and woman yelling and cursing inside the house. When Sowers went inside, he saw Gonzales, cowering against the wall with his hands over his face and head. Goetz was standing over Gonzales and Sowers later testified that he saw Goetz hit Gonzales twice in the back of the head with a board. Sowers yanked the board from Goetz' hands, got between Goetz and Gonzales, and shoved Goetz toward the kitchen. As Sowers tried to restrain Goetz and move her into the kitchen, Goetz continued to try to get to Gonzales.
Woodson arrived at Gonzales' house as Sowers went inside. Woodson heard screaming, and as she walked up to the house, she noticed that the window in the door was broken. When Woodson went inside, she saw Gonzales hiding behind a board and Sowers and Goetz struggling in the next room. Woodson tried to help Sowers handcuff Goetz, but Goetz was resisting the officers. Woodson and Sowers were on the ground with Goetz, trying to get her right arm from under her so that they could handcuff her. Ultimately, Sowers deployed his taser on Goetz and the officers handcuffed her.
Werner, who arrived after Sowers and Woodson handcuffed Goetz, spoke with Gonzales, who said that when he repeatedly refused to let Goetz in the house, she broke the window, stood on a lawn chair, and crawled through the broken window. Gonzales told Werner that Goetz had hit him with a board he had wedged under the door handle to keep anyone from opening the door from the outside. Gonzales also told Trooper James Reams of the Kansas Highway Patrol that Goetz had been angry with him.
Two days later, Werner interviewed Goetz, who stated that she went to Gonzales' house that night to talk to him about an inflammatory text message Gonzales had sent Goetz about her daughter. According to Goetz, they began arguing and Gonzales shoved Goetz, putting her head through the window in the door. Goetz said that Gonzales then took her inside, where they fought over prescription medication Gonzales had stolen from Goetz. Goetz told Werner that she did not remember hitting Gonzales with a board.
On August 23, 2011, the State charged Goetz with one count each of aggravated burglary, aggravated battery, felony obstruction of official duty, criminal damage to property, and criminal trespass. At the first appearance, Goetz completed and signed a financial affidavit, and the district court appointed an attorney to represent Goetz due to her indigent status. On December 6, 2011, the district court sent the parties a “Notice of Scheduling of Jury Trial.” The notice gave the date and time of the jury trial on April 30, 2012, and stated that the trial would be “before the Honorable Larry T. Soloman.”
A pretrial conference was held on March 2, 2012. At that hearing Goetz informed the district court that she had retained private counsel. The district court allowed Goetz' court-appointed counsel to withdraw and ordered Goetz to reimburse BIDS for the court-appointed-attorney fees.
On April 27, 2012, three days before the scheduled jury trial, Goetz filed a pleading entitled “Motion for Change of Judge,” in which she asked the district judge to recuse himself so that another judge could be assigned to hear the case. The district court heard argument on the motion on April 30, 2012. Goetz argued that recusal was warranted because (1) the district judge had granted Gonzales' request for a protection from abuse (PFA) order but had denied Goetz' request for a PFA because she was 3 minutes late to court, and (2) the district judge had represented Gonzales in the mid–1980s. The district court found neither of Goetz' arguments persuasive and, in particular, the judge stated that he did not remember representing Goetz in the mid–1980s. The district court also found that the motion was untimely; accordingly, the court denied Goetz' motion.
The trial began that same morning, as scheduled. Woodson, Werner, Sowers, and Reams testified for the State. The State also called Michael Henning, a longtime friend of Gonzales, who testified that Gonzales called him at approximately 11 p.m. on the night in question and told him that Goetz was at his house and wanted to come inside. During the phone call, Henning heard yelling and commotion through the phone. Gonzales also testified, relating the events of his three encounters with Goetz on the day in question. The State also introduced photographs of the scene, played for the jury the recordings taken by the dashboard cameras and sound recorders in Sowers' and Reams' patrol vehicles, and played for the jury a recording of Gonzales' 911 call on the night in question. Goetz presented only one witness in her defense; she recalled Woodson and asked if Woodson had a personal relationship with Gonzales. Woodson said she had dealt with Gonzales previously as part of her job.
The jury found Goetz not guilty of aggravated burglary, guilty of the lesser-included offense of battery, guilty of obstructing official duty, guilty of criminal damage to property, and guilty of criminal trespass. On July 6, 2012, the district court imposed a sentence of 6 months' imprisonment for obstruction of official duty, 6 months in county jail for battery, 6 months in county jail for criminal damage to property, and 6 months in county jail for criminal trespass. The district court placed Goetz on 12 months' probation on the felony conviction, to begin after she served 6 months in county jail for criminal trespass. The district court also ordered Goetz to pay the BIDS attorney fees in an unspecified amount, and the journal entry of judgment listed the BIDS fee as “TBD.” Goetz timely appealed the district court's judgment.
Sufficiency of Evidence to Support Conviction of Felony Obstruction of Official Duty
Goetz first argues that there was insufficient evidence to support her conviction of felony obstruction of official duty. Whether obstruction of justice is a felony or misdemeanor depends on whether the official duty the officer is attempting to carry out is related to a felony or a misdemeanor. State v. Lundquist, 30 Kan.App.2d 1148, 1154, 55 P.3d 928 (2002), rev. denied 275 Kan. 967 (2003). Goetz contends that there was no evidence that Woodson was arresting her for a felony when she resisted the officers. The State responds that there was sufficient evidence to support the felony conviction.
When the sufficiency of the evidence is challenged in a criminal case, an appellate court reviews such claims by “looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]” State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence, the appellate court generally will not reweigh the evidence or assess the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
K.S.A.2011 Supp. 21–5904, the statute in effect at the time, defined interference with law enforcement as:
“[ (a) ](2) knowingly obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.
“[ (b) ](2) Interference with law enforcement as defined in subsection (a)(2) is a: “(A) Severity level 9, nonperson felony in the case of a felony, or resulting from parole or any authorized disposition for a felony; and
“(B) class A nonperson misdemeanor in the case of a misdemeanor, or resulting from any authorized disposition for a misdemeanor, or a civil case.”
Whether interference with law enforcement is a misdemeanor or a felony depends on the officer's knowledge and intent. See State v.. Johnson, 40 Kan.App.2d 196, 201, 190 P.3d 995 (2008), rev. denied 287 Kan. 767 (2009). “The touchstone for the classification of the offense is the reason for the officer's approaching the defendant who then flees or otherwise resists, and not the status of the defendant.” State v. Hudson, 261 Kan. 535, 538–39, 931 P.2d 679 (1997). In other words, if Woodson was trying to carry out her duties in relation to a felony offense, Goetz' resistance was felony obstruction.
Here, Woodson testified that she was dispatched to Gonzales' residence on a report that a female was breaking into Gonzales' house. As Woodson walked up to the house, she heard screaming and saw the window in the door was broken. After entering the house, Woodson saw Goetz struggling with Sowers, at which point Woodson joined in the attempt to arrest Goetz, who continued to resist.
Goetz argues that there was no evidence that Woodson was actually making an arrest, contending that Woodson was merely trying to restrain Goetz. At trial, the prosecutor asked Woodson, “And you walked in front of Ms. Goetz to assist, was Officer Sowers trying to arrest her?” As Goetz notes, a prosecutor's question is not evidence; however, Woodson responded by agreeing with the characterization, stating, “Yes, Officer Sowers was trying to place handcuffs on Ms. Goetz.” In addition, when the prosecutor subsequently asked Woodson if Goetz' struggles “[made] your job arresting her harder,” Woodson replied, “Yes, it did.”
Viewed in the light most favorable to the prosecution, there was sufficient evidence that Woodson was attempting to arrest Goetz when Goetz resisted and obstructed Woodson's actions. Moreover, considering that Woodson had been notified that a woman was breaking into Gonzales' home, Woodson saw a broken window, and Woodson found Goetz inside the house, struggling with Sowers, there was sufficient evidence to show that Woodson believed she was arresting Goetz in connection with a felony. In fact, Goetz was charged with aggravated burglary, a severity level 5 person felony. Thus, we conclude there was sufficient evidence to support Goetz' conviction of felony obstruction of official duty.
Motion for Change of Judge
Next, Goetz takes issue with the trial judge's refusal to recuse himself. Goetz argues that the judge violated her right to a fair trial under the Fourteenth Amendment to the United States Constitution by denying her motion to change judge and refusing to comply with the requirements of K.S.A. 20–311d. The State argues that the motion was untimely and that Goetz failed to show the judge had a duty to recuse himself. “A defendant's right to a fair trial is guaranteed by the Fourteenth Amendment to the United States Constitution.” State v. Miller, 274 Kan. 113, Syl. ¶ 1, 49 P .3d 458 (2002). An appellate court reviews de novo whether a district court's ruling violated a criminal defendant's due process rights. State v. Robinson, 293 Kan. 1002, 1030, 270 P.3d 1183 (2012).
K.S.A. 20–311d(a) states:
“If a party or a party's attorney believes that the judge to whom an action is assigned cannot afford that party a fair trial in the action, the party or attorney may file a motion for change of judge. The motion shall not state the grounds for the party's or attorney's belief. The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case. If the judge disqualifies the judge's self, the action shall be assigned to another judge by the chief judge. If the judge refuses to disqualify the judge's self, the party seeking a change of judge may file the affidavit provided for in subsection (b). If an affidavit is to be filed it shall be filed immediately.”
K.S.A. 20–311f states in part:
“No party shall be granted more than one change of judge in any action, but each party shall be heard to urge such party's objections to a judge in the first instance, except that in prejudgment matters a party may move for a change of judge in accordance with K.SA. 20–311d and amendments thereto within seven days after pretrial, or after receiving written notice of the judge before whom the case is to be heard, whichever is later.”
Here, Goetz filed her motion for a change of judge on April 27, 2012. The district court denied the motion, in part, because it was untimely filed. The district judge stated:
“I arraigned Ms. Goetz in December and set this matter for trial December 2nd. That's five months ago. I'm the only District Judge in this County and the only one that handles felony jury trials. Everybody has known I was going to try the case for months. If this was a serious motion it should have been filed a long time ago, not a day or two before the jury trial.”
The district court was correct in finding that the motion was untimely. Goetz filed her motion for change of judge before judgment. See State v. Snedecor, 9 Kan.App.2d 454, 456–58, 680 P.2d 563,rev. denied 235 Kan. 1042 (1984) (stating that in criminal cases, all proceedings occurring presentencing are prejudgment). Thus, Goetz needed to file her motion for change of judge within 7 days after pretrial or receiving notice of the identity of the presiding judge, whichever occurred later. The district court sent both parties a “Notice of Scheduling of Jury Trial” on December 6, 2011. The notice gave the date and time of the jury trial and stated that the trial would be “before the Honorable Larry T. Solomon.” Moreover, the appearance docket shows that the pretrial hearing was held on March 2, 2012, and the pretrial order was issued on March 7. Goetz did not file her motion until April 27, 2012; thus, the motion was untimely according to K.S.A. 20–311f. Our Supreme Court has held that “the failure to file within the statutory time period bars the issue on appeal.” State v. Brown, 266 Kan. 563, 570, 973 P.2d 773 (1999).
Goetz cites State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996), and asserts that failure to timely file a motion for change of judge does not bar a later challenge to a failure to recuse because the judge has an independent obligation to recuse where his or her impartiality might reasonably be questioned. In Alderson, our Supreme Court expressed its reluctance to bar a defendant's appeal of his trial judge's refusal to recuse himself simply because the defendant did not make an effort to comply with K .S.A. 20–311d. 260 Kan. at 453.Alderson is easily distinguishable from the instant case; it concerned a felony murder and an aggravated battery that occurred during the evening in which the defendant and another man were driving a stolen vehicle. 260 Kan. at 447. The stolen vehicle “was owned by the trial judge's brother and was stolen from the home of the trial judge's father,” and the judge did not inform the parties of this connection until the day before jury selection. 260 Kan. at 447, 453. The scenario in Alderson raises a much more serious question of impartiality than is present in Goetz' case. Moreover, the Alderson court found the issue of timeliness irrelevant because the argument failed on its merits. 260 Kan. at 453–54. Given that Alderson was followed by our Supreme Court's holding in Brown that failure to comply with K.S.A. 20–311d bars challenging the denial of a motion to change judge, Alderson does not save Goetz here.
In any event, Goetz' arguments on the merits fail. Our Supreme Court has set forth the following test to use when a criminal defendant alleges judicial bias:
“First, the defendant must show that the trial judge has a duty to recuse. Second, the defendant must show actual bias or prejudice that warrants setting aside the conviction or sentence. But bias or prejudice will be presumed when, based on objective standards, the probability of actual bias is too high to be constitutionally tolerable.” Robinson, 293 Kan. at 1032.
“A judge must recuse in any proceeding in which his or her impartiality might reasonably be questioned, including when the judge has a personal bias or prejudice concerning a party. [Citation omitted.]” State v. Schaeffer, 295 Kan. 872, 876, 286 P.3d 889 (2012). Recusal is appropriate when the facts and circumstances of the case ‘ “create reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.’ [Citations omitted.]” 295 Kan. at 876.
Here, Goetz failed to show that the trial judge had a duty to recuse. Goetz argued that recusal was warranted because (1) the district judge granted Gonzales' request for a PFA order but denied Goetz' request for a PFA order because she was 3 minutes late to court, and (2) the district judge had represented Gonzales in the mid–1980s. Goetz' argument regarding the PFAs was insufficient to establish a duty to recuse. K.SA. 20–311d(d) explicitly states: “In any affidavit filed pursuant to this section, the recital of previous rulings or decisions by the judge on legal issues ... shall not be deemed legally sufficient for any belief that bias or prejudice exists.” That leaves only Goetz' assertion that the trial judge had represented Gonzales at some point in the mid–1980s, representation the judge said he did not remember. The asserted representation of the alleged victim in this case over 25 years prior to the current trial, by itself, would not cause a reasonable person to question the judge's impartiality. Thus, Goetz did not meet the first prong of the Robinson test for establishing judicial bias. See State v. Sappington, 285 Kan. 176, 190, 169 P.3d 1107 (2007) (prejudice to defendant examined only if judge had a duty to recuse and failed to do so).
Finally, we are aware that in State v. Sawyer, 297 Kan. –––, –––– P.3d, 2013 WL 3835816 (July 26, 2013), the Kansas Supreme Court recently reversed a defendant's conviction of criminal threat because the district judge had refused to recuse himself upon a motion filed by the defendant. In Sawyer, the district judge had recused himself in a prior bench trial involving the defendant because of a conflict of interest, but the judge did not believe it was necessary to recuse himself from a jury trial involving the same defendant. 2013 WL 3835816, at *2. The Supreme Court concluded that under the circumstances of the case, the trial judge had a duty to recuse himself under the Due Process Clause of the Fourteenth Amendment. 2013 WL 3835816, at *6–7.Sawyer is distinguishable from the present case because it involved a timely motion for recusal. Moreover, the Supreme Court's analysis in Sawyer does not change our conclusion that under the facts herein, Goetz' trial judge had no duty to recuse himself under either K.S.A. 20–311d or the Due Process Clause.
BIDS Attorney Fees
Finally, Goetz contends that the district court erred by failing to assess a specific amount of attorney fees against her under K.S.A. 22–4513(a) for the work performed by her court-appointed attorney. Goetz contends that under State v. Stevens, 285 Kan. 307, 328–31, 172 P.3d 570 (2007), abrogated on other grounds by State v. Ahrens, 296 Kan. 151, 158–61, 290 P.3d 629 (2012), the district court was required to specify a dollar amount of the fee imposed before determining her ability to repay the fee.
K.S.A. 22–4513(b) requires that a district court must consider on the record the defendant's financial condition and the nature of the burden that payment of attorney fees will impose prior to ordering a defendant to pay BIDS attorney fees. State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006). In Stevens, our Supreme Court clearly held that “[w]hen the district court initially fails to tax a specific amount of attorney fees claimed by BIDS, then obviously that court is unable to adequately evaluate the amount of such unknown sum that the defendant is able to pay.” 285 Kan. at 330.
Here, the district court failed to tax a specific amount of BIDS fees. Pursuant to Stevens, we vacate the district court's order concerning the attorney fees to be reimbursed to BIDS and remand for the district court to tax a specific amount of attorney fees and determine the amount and method of payment of such sum by Goetz in compliance with K.S.A. 22–4513.
Affirmed in part, vacated in part, and remanded with directions.