State v. Toliver (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 112,509
112,510

STATE OF KANSAS,
Appellee,

v.

TRACEY JEROME TOLIVER,
Appellant.



SYLLABUS BY THE COURT


1.
The fundamental rule of statutory interpretation is that the intent of the legislature
governs if that intent can be ascertained. When the statutory language is plain and
unambiguous, an appellate court simply interprets the language as it appears, without
speculating and without reading into the statute language not readily found there.

2.
If the statute's language or text is unclear or ambiguous the court uses canons of
construction or legislative history or other background considerations to construe the
legislature's intent.

3.
Courts construe statutes so as to avoid unreasonable or absurd results and presume
the legislature does not intend to enact useless or meaningless legislation.


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4.
When a court construes language that involves all the nouns or verbs in a series
and there is a straightforward, parallel construction, a prepositive or postpositive modifier
normally applies to the entire series unless context indicates a different construction or
the resulting construction would be irrational or absurd.

5.
K.S.A. 2013 Supp. 21-5413(c)(3)(D) governs battery against city or county
correctional officers or city or county correctional employees.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 18,
2015. Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed April 14, 2017.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is
reversed, the sentence is vacated, and the case is remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Wesley M.
Weber, legal intern, was with him on the briefs for appellant.

Barry K. Disney, senior deputy county attorney, argued the cause, and Barry R. Wilkerson, county
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

MALONE, J.: The State requests this court review an unpublished opinion by the
Court of Appeals reversing Tracey Toliver's conviction of felony battery against a law
enforcement officer. For the reasons set out below, we affirm the judgment of the Court
of Appeals.

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On February 18, 2014, Brian Johnson, a detective for the Riley County Police
Department, was assigned to the department's Investigations Division. He assisted in
executing a search warrant at a residence in Manhattan. Johnson wore a vest identifying
him as a law enforcement officer.

Toliver was at the residence, and he responded aggressively to the police during
the search by shouting profanities and racially derogatory statements at them. Detective
Johnson was assigned the task of detaining Toliver while his fellow officers completed
the search. Johnson escorted Toliver from the residence and placed him in the back seat
of his police car. Johnson sat in the front, and a partition between the front and the back
was open to allow conversation.

In the course of searching the residence, police found drugs and paraphernalia in
close proximity to personal items belonging to Toliver. They signaled to Johnson that he
should consider Toliver under arrest. Toliver asked when he could be released, and as
Johnson began to answer, Toliver shouted profanities and derogatory statements at him.
Toliver then leaned forward so that his face was near the open partition and spat on
Johnson's right hand. Johnson closed the partition and wiped the saliva from his hand. He
then transported Toliver to the Riley County Jail.

After receiving clearance from a jailer, Johnson drove through a gated entrance at
the jail. He proceeded into the "sally port," a structure with doors on either end of it. The
sally port serves as a secure holding area for removing a prisoner from a car; both doors
to the port are shut after the car enters the structure. Per jail policy, Johnson secured his
firearm in a locker so it would not be "accessible to any of the prisoners." Johnson then
remained behind his car as jailers attempted to coax Toliver out of the vehicle. Toliver
was refusing to get out until he was told why he was being arrested. In an effort to
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mollify Toliver, Johnson walked over to tell him "again" what the charge was. At this
time, Toliver stated, "Now I spit on you, bitch," and he spat in Johnson's face.

Because he spat on Johnson, Toliver was taken to a local hospital later that day
where a court-ordered blood test for infectious diseases was performed. In the waiting
room, an escorting officer heard Toliver mutter, "[Expletive] will get a bullet to the head
someday. Real talk."

The State filed multiple complaints against Toliver based on the various incidents
of spitting, comments to officers, and drugs and drug paraphernalia found at the
residence. On Toliver's motion, two of the complaints were consolidated. After the State
voluntarily dismissed the possession of drug paraphernalia count, Toliver requested a
bench trial. The court found him not guilty of unlawful possession of a controlled
substance, guilty of battery against a law enforcement officer, guilty of felony battery
against a city or county employee by a confined person, and guilty of two criminal
threats. The court sentenced him to 114 months for the felony battery, 12 months for the
battery against a law enforcement officer, and 6 months and 15 months for the criminal
threat convictions, all running concurrently.

Toliver timely appealed and the cases were consolidated. The Court of Appeals
reversed his conviction for felony battery against a law enforcement officer as charged
under K.S.A. 2013 Supp. 21-5413(c)(3)(D), holding that the State failed to prove that
Johnson was a correctional officer or employee.

The State maintains that it satisfied the statutory definition of felony battery
because it only needed to show that Johnson was a county employee engaged in work at
the county jail. We granted the State's petition for review.

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The State chose to prosecute Toliver under a theory of battery that would result in
a felony conviction if all elements of K.S.A. 2013 Supp. 21-5413(c)(3)(D) were proved.
In Count 3 of its amended complaint, the State alleged:

"That on the 18th day of February, 2014, in Riley County, Kansas, Tracey
Jerome Toliver, while confined in a county jail facility, then and there being present did
unlawfully, feloniously and knowingly cause physical contact in a rude, insulting or
angry manner to Brian Johnson, a city or county employee, while such employee was
engaged in the performance of his duty. In violation of K.S.A. 2013 Supp. 21-
5413(c)(3)(D), Battery on a City Employee by Confined Person, a severity level 5 person
felony. (Penalty: K.S.A. 2013 Supp. 21-6804, 21-6807 & 21-6611.)" (Emphasis added.)

Toliver maintains on appeal that the complaint failed to charge a felony under the
wording of the statute, both because Johnson was not a correctional officer or
correctional employee and because Toliver was not confined in a city holding facility or
county jail when the event occurred.

Issues of statutory interpretation and construction raise questions of law subject to
de novo review. State v. Charles, 298 Kan. 993, 997, 318 P.3d 997 (2014). When a
defendant challenges the sufficiency of the evidence introduced to obtain a conviction
under a properly construed statute, the standard of review is whether a review of all the
evidence, viewed in the light most favorable to the prosecution, convinces the appellate
court that a rational factfinder could have found the defendant guilty beyond a reasonable
doubt. 298 Kan. at 997.

K.S.A. 2013 Supp. 21-5413, in effect at the time of the events leading to the
charges, defines battery. In relevant part, it reads:

"(a) Battery is:
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. . . .
(2) knowingly causing physical contact with another person when done
in a rude, insulting or angry manner.
. . . .
"(c) Battery against a law enforcement officer is:
(1) Battery, as defined in subsection (a)(2), committed against a:
. . . .
(B) uniformed or properly identified state, county or city law
enforcement officer, other than a state correctional officer or employee, a
city or county correctional officer or employee or a juvenile detention
facility officer, or employee, while such officer is engaged in the
performance of such officer's duty;
. . . .
(3) battery, as defined in subsection (a) committed against a:
. . . .
(D) city or county correctional officer or employee by a person
confined in a city holding facility or county jail facility, while such
officer or employee is engaged in the performance of such officer's or
employee's duty.
. . . .
"(g) . . . .
(3) Battery against a law enforcement officer as defined in:
(A) Subsection (c)(1) is a class A person misdemeanor;
. . . .
(C) subsection (c)(3) is a severity level 5, person felony.
. . . .
"(h) As used in this section:
. . . .
(5) 'city or county correctional officer or employee' means any
correctional officer or employee of the city or county or any independent
contractor, or any employee of such contractor, working at a city holding facility
or county jail facility . . . ."

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In reversing Toliver's felony battery against a law enforcement officer conviction,
the Court of Appeals agreed with Toliver's argument that Detective Johnson was not "a
city or county correctional officer or employee." To resolve the issue we must parse that
phrase and apply the resulting construction to the facts before us. Toliver would read the
phrase as meaning "a city or county correctional officer or a city or county correctional
employee." The State would read it as meaning "a city or county correctional officer" or
"a city or county employee." Consistent with its position that Johnson needed only to be a
city or county employee, the State neither alleged nor attempted to prove Johnson was a
correctional officer or a correctional employee at trial. Indeed, the State conceded that
Johnson was neither a correctional officer nor a correctional employee.

The fundamental rule of statutory interpretation is that the intent of the legislature
governs if that intent can be ascertained. When the statutory language is plain and
unambiguous, an appellate court simply interprets the language as it appears, without
speculating and without reading into the statute language not readily found there. The
statutory language itself is our paramount consideration because "the best and only safe
rule for ascertaining the intention of the makers of any written law is to abide by the
language they have used. [Citations omitted.]" State v. Nguyen, 304 Kan. 420, 422, 372
P.3d 1142 (2016).

This rule is not helpful in the present case because the wording of the statute is
ambiguous. As the sentence is written, the word "correctional" may modify both "officer"
and "employee," or it may modify only "officer," the noun it immediately precedes. If the
statute's language or text is unclear or ambiguous the court uses "'canons of construction
or legislative history or other background considerations to construe the legislature's
intent. [Citation omitted.]'" See City of Dodge City v. Webb, 305 Kan. 351, 356, 381 P.3d
464 (2016) (quoting State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 [2010]).

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To guide us to the correct construction of this statute, we apply the common rules
of English grammar. As a general rule,

"'an initial modifier "will tend to govern all elements in the series unless it is repeated for
each element."' Washington Educ. Ass'n v. National Right to Work Legal Defense
Foundation, Inc., 187 Fed. Appx. 681, 682 (9th Cir. 2006) (unpublished opinion)
(quoting The American Heritage Book of English Usage 53 [1996]). This court has, on
occasion, applied this rule when interpreting a statute. E.g., Rounsavell v. Tipton, 209
Kan. 366, 367-68, 497 P.2d 108 (1972) (in statute requiring service by '"restricted
registered or certified mail,"' the adjective 'restricted' modified both 'registered' and
'certified mail'); Hulme v. Woleslagel, 208 Kan. 385, 390, 395, 493 P.2d 541 (1972) (in
statute requiring change of judge for '"personal bias, prejudice, or interest of the judge,"'
the word 'personal' appeared 'as an adjective modifying the nouns bias, prejudice, or
interest')." Cady v. Schroll, 298 Kan. 731, 739, 317 P.3d 90 (2014).

This understanding of how adjectives modify nouns in sequences or phrases finds
support in many other jurisdictions. For example, the Kentucky Supreme Court has held:

"Where several things are referred to in the statute, they are presumed to be of
the same class when connected by a copulative conjunction unless a contrary intent is
manifest. [Citation omitted.] It is also widely accepted that an adjective at the beginning
of a conjunctive phrase applies equally to each object within the phrase. In other words,
the first adjective in a series of nouns or phrases modifies each noun or phrase in the
following series unless another adjective appears. [Citations omitted.]" Lewis v. Jackson
Energy Co-op Corp., 189 S.W.3d 87, 92 (Ky. 2005).

See also Porto Rico Ry. Co. v. Mor., 253 U.S. 345, 348, 40 S. Ct. 516, 64 L. Ed. 944
(1920) ("When several words are followed by a clause which is applicable as much to the
first and other words as to the last, the natural construction of the language demands that
the clause be read as applicable to all."); Ward General Ins. Services, Inc. v. Employers
Fire Ins. Co., 114 Cal. App. 4th 548, 554, 7 Cal. Rptr. 3d 844 (2003) ("Most readers
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expect the first adjective in a series of nouns or phrases to modify each noun or phrase in
the following series unless another adjective appears."); Ryder v. USAA Gen. Indem. Co.,
938 A.2d 4, 2007 NE 146, ¶ 5 (2007) (noting "standard grammatical rule that when an
adjective modifies the first of a series of nouns, a reader will expect the adjective to
modify the rest of the series as well [i.e. 'bodily injury, (bodily) sickness, or (bodily)
disease']"; The American Heritage Book of English Usage 343 (1996) (under generally
accepted rules of syntax, an initial modifier "will tend to govern all elements in the series
unless it is repeated for each element").

Antonin Scalia and Bryan A. Garner, in Reading Law: The Interpretation of Legal
Texts 147 (2012), explain that "[w]hen there is a straightforward, parallel construction
that involves all nouns or verbs in a series, a prepositive or postpositive modifier
normally applies to the entire series." They provide the following classic example:

"The Fourth Amendment begins in this way, with a prepositive (pre-positioned)
modifier (unreasonable) in the most important phrase: 'The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .' The phrase is often repeated: unreasonable searches
and seizures. Does the adjective unreasonable qualify the noun seizures as well as the
noun searches? Yes, as a matter of common English. . . . In the absence of some other
indication, the modifier reaches the entire enumeration."

The State asks us to not apply this widely accepted rule of grammar in the present
case, so that we would construe the modifying phrase "city or county" to apply to both
officer and employee but would limit "correctional" to modify only officer. The State
argues that this selective reading is appropriate because the phrase "correctional officer"
is a "term of art," whereas the phrase "correctional employee" lacks legal significance.
We find no merit in these arguments.

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While it is not always easy to define a "term of art," we note that the Kansas
Legislature has defined the phrase "correctional employee" and "corrections employee"
in the context of other statutes. See K.S.A. 74-4914e(1)(a); K.S.A. 65-6015(b). More
significantly, the legislature has used the phrases "officer or employee" and "officers or
employees" to describe a collective entity over 700 times in more than 300 statutes. See,
e.g., K.S.A 13-14,103; K.S.A. 19-2649; K.S.A. 22-4407; K.S.A. 38-1819(a); K.S.A. 40-
2807; K.S.A. 44-1403; K.S.A. 49-402e; K.S.A. 58-1404; K.S.A. 60-521; K.S.A. 2016
Supp. 71-201b; K.S.A. 73-213; K.S.A. 74-4902; K.S.A. 75-5202; K.S.A. 75-5226;
K.S.A. 79-3234; K.S.A. 83-322. The legislature's regular and repeated use of this phrase
demonstrates a clear intent that the words "officer or employee" constitute a single unit to
be modified together by a preceding adjective and not—as the State urges—to describe
two separate and distinct entities.

In the absence of some contextual indication that the legislature intended the word
"correctional" to modify only "officer," the general rule governing modifiers of nouns in
a sequence will apply. Here, the context of the statute clearly supports application of this
general rule of grammar. Accordingly, the word "correctional" modifies both "officer"
and "employee" in the phrase "officer or employee."

Indeed, the statute would present some curious results if we ignored these rules of
syntax and accepted the State's argument that all city and county employees are covered
by K.S.A. 2013 Supp. 21-5413(c)(3)(D).

While City and County Law Enforcement Officers Would Be Covered, State Law
Enforcement Officers Would Not Be.

First, K.S.A. 2013 Supp. 21-5413(c) criminalizes battery against state and
university law enforcement officers as a misdemeanor. Understandably, it classifies
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battery against county and city law enforcement officers as the same class A
misdemeanor. The State contends that the legislature intended to turn those
misdemeanors into felonies when city and county law enforcement officers are subjected
to battery within the confines of a county jail. The State's position produces an odd result:
When a state-employed police officer, such as a Kansas Highway Patrol or a campus
police officer, delivers a prisoner to a county jail and is spat upon, the result is a
misdemeanor, but when a city police officer or county sheriff deputy delivers the same
prisoner to the same jail and is battered in the same way, the result is a felony.

By following standard rules of grammar, the result is a more sensible
understanding of the statute: The legislature intended special protection for correctional
officers and other correctional employees of county jails, recognizing their need for
maintaining order within a corrections facility and their typically unarmed status. See
State v. Perez-Moran, 276 Kan. 830, 839-40, 80 P.3d 361 (2003) ("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").

The Exclusionary Language of the Statute Would Be Meaningless.

Second, the plain language of K.S.A. 2013 Supp. 21-5413(c)(1)(B) requires the
victim to be a "law enforcement officer" engaged in the performance of the officer's duty,
so there would be no reason for the statute then to exclude any city or county employee
who is not a law enforcement officer, and yet that is the State's argument. The phrasing
"other than" would be meaningless and nonsensical if the legislature intended the phrase
"city or county correctional officer or employee" to mean all city or county employees,
rather than correctional officers or correctional employees.

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The Statute Would Become Self-Nullifying.

Finally, as noted by the Court of Appeals, K.S.A. 2013 Supp. 21-5413(c)(1)(B)
defines one kind of battery against a law enforcement officer to be battery committed
against a "uniformed or properly identified . . . county or city law enforcement officer,
other than . . . a city or county correctional officer or employee . . . while such officer is
engaged in the performance of such officer's duty." (Emphasis added.) Under the State's
construction, the statute would nullify itself by excluding all city or county employees
and, at the same time, including all city or county employees who are law enforcement
officers. Such a conflicting construction produces the kind of unreasonable or absurd
result that we seek to avoid. See, e.g., Northern Natural Gas Co. v. ONEOK Field
Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013) (courts construe statutes to avoid
unreasonable or absurd results and presume legislature does not intend to enact useless or
meaningless legislation).

Detective Johnson testified he was not a correctional officer when he was in the
sally port. He was assigned to the police department's Investigations Division, he was
dressed in the uniform of that division, he had transported a person he had arrested to the
jail, and he was obliged to follow the orders of the correctional officers while in the jail
facility. In other words, Johnson was performing the itinerant duties commonly
associated with many in law enforcement. Although he was a county employee, he was
not a correctional employee at the time he delivered Toliver to the county jail for booking
by the correctional staff. Driving his patrol car across the jail perimeter did not transform
him from a "law enforcement officer" into a "correctional employee" under the same
statute.

As the Court of Appeals determined, we need not reach Toliver's second argument
regarding whether he was confined in jail at the time of the second spitting incident. He
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was convicted of a crime for which the State failed to charge or prove all of the elements.
Accordingly, we vacate the felony conviction and sentence for battery against a law
enforcement officer. The decision of the Court of Appeals is affirmed. The judgment of
the district court is reversed, and the case is remanded for resentencing in conformity
with this opinion.

ROSEN, J., not participating.

MICHAEL J. MALONE, Senior Judge, assigned.1



1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case Nos. 112,509
and 112,510 vice Justice Rosen under the authority vested in the Supreme Court by
K.S.A. 20-2616.