State v. Miller

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NOT DESIGNATED FOR PUBLICATION

No. 113,100

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICKY JAN MILLER,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed June 24, 2016. Affirmed
in part and dismissed in part.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Stefani K. Hepford, assistant attorney general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: Ricky Jan Miller appeals his jury conviction for mistreatment of a
dependent adult and conspiracy to commit mistreatment of a dependent adult alleging the
following trial errors: (1) evidence was improperly admitted in violation of K.S.A. 2015
Supp. 60-455; (2) no jury instruction was given defining undue influence and false
representation; (3) the possibility of a collection fee being imposed created an illegal
sentence; and (4) cumulative error. We have examined the alleged errors and find none.
Miller also claims the district court improperly denied his motion for a downward
durational departure of his sentence. We find we have no jurisdiction to review his
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sentence and dismiss that portion of his appeal. Thus, we affirm in part and dismiss in
part.

FACTS

Following reports by Presbyterian Manor of alleged elder abuse, the State charged
Miller with mistreatment of a dependent adult, or in the alternative, theft, and conspiracy
to commit mistreatment of a dependent adult, or in the alternative, conspiracy to commit
theft. The State alleged Miller took advantage of his mother's—Viola Miller's—financial
resources.

Prior to trial, the State filed a motion to admit evidence pursuant to K.S.A. 2015
Supp. 60-455. Specifically, it sought to introduce Orin Madden's testimony regarding a
threat Miller made toward Viola's brother, Verl Bathurst, shortly after Miller was
removed as Viola's power of attorney and her assets were placed into a trust. Miller
opposed the motion arguing the testimony was irrelevant. He also argued the testimony
would be unduly prejudicial. At the final pretrial hearing, the district court ruled the
statement was admissible if the proper foundation was laid. Madden testified regarding
the incident at trial. Miller did not object to Madden's testimony.

Miller submitted two proposed jury instructions defining undue influence based on
PIK Civ. 4th. The district court found Miller's definitions were inappropriate because the
case was criminal, not civil, and requested the parties attempt to define undue influence,
false representation, and false pretense before the instruction conference. At the
instruction conference, the State proposed a definition for undue influence based on State
v. Ahart, No. 108,086, 2013 WL 5303521, at *4 (Kan. App. 2013) (unpublished opinion),
(quoting Cersovsky v. Cersovsky, 201 Kan. 463, 467, 441 P.2d 829 [1968]), rev. denied
299 Kan. 1270 (2014).

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The State argued, however, the district court did not need to define undue
influence, false representation, or false pretense. Ultimately, the district court opted not to
define the terms. Miller did not object.

The jury found Miller guilty of mistreatment of a dependent adult and conspiracy
to commit mistreatment of a dependent adult. Prior to sentencing, Miller filed a motion
for a durational departure arguing substantial and compelling reasons existed to depart.
The district court heard and considered Miller's departure motion at his sentencing
hearing, denied the motion, and imposed the presumptive sentence for both offenses. The
district court also found Miller derived pecuniary gain from his crime and fined him
$200,000. The journal entry of sentencing reflects a $200,000 fine. However, in an
asterisk corresponding to the total amount of the fines, the journal entry also states: "All
costs or assessments ordered will be subject to additional collection fee of 33% or more if
not paid as ordered."

Miller timely appealed.

ANALYSIS

Miller Failed to Preserve His Objection

K.S.A. 60-404 precludes an appellate court from reviewing an evidentiary
challenge absent a timely objection made on the record "and so stated as to make clear
the specific ground of objection." Generally, any pretrial objection to the admission or
exclusion of evidence must be preserved by contemporaneously objecting at trial. See
State v. Holman, 295 Kan. 116, 127, 284 P.3d 251 (2012). The contemporaneous
objection rule applies to evidence alleged to be admitted in violation of K.S.A. 2015
Supp. 60-455. State v. Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012).

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Prior to trial, the State filed a motion to admit evidence pursuant to K.S.A. 2015
Supp. 60-455. The district court ruled the statement was admissible if the proper
foundation was laid. At trial, Madden testified: "Rick bulled up and told Verl he'd kill
the old son-of-a-bitch—because Verl had went and seen an attorney and wanted to get
everything lined out—and went off on [Viola], went off on Verl." Miller did not object to
any of Madden's testimony. Under the contemporaneous objection rule, Miller failed to
preserve the issue for appeal.

No Requirement to Define Undue Influence and False Representation

When addressing challenges to jury instructions, the standard of review is based
upon the following analysis:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

K.S.A. 2015 Supp. 22-3414(3) states, in relevant part:

"No party may assign as error the giving or failure to give an instruction,
including a lesser included crime instruction, unless the party objects thereto before the
jury retires to consider its verdict stating distinctly the matter to which the party objects
and the grounds of the objection unless the instruction or the failure to give an instruction
is clearly erroneous. Opportunity shall be given to make the objections out of the hearing
of the jury." (Emphasis added.)
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Miller contends he has preserved the jury instruction issue for appeal because the
discussion regarding the instruction occurred prior to instructing the jury. Simply
submitting a proposed jury instruction is insufficient to preserve for appeal the district
court's failure to give a requested instruction. State v. Brammer, 301 Kan. 333, 341, 343
P.3d 75 (2015). Miller did not object to the district court's decision not to give
definitional instructions. Therefore, this court reviews for clear error.

An appellate court uses a two-step process in determining whether the challenged
instruction was clearly erroneous. First, the court must consider whether there was any
error by considering whether the instruction at issue was both legally and factually
appropriate, employing an unlimited review of the entire record. Second, if the court
finds error, it must assess whether it is firmly convinced the jury would have reached a
different verdict without the error. State v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014).
The party claiming a clearly erroneous instruction has the burden to establish the degree
of prejudice necessary for reversal. State v. Williams, 295 Kan. 506, 506-07, 286 P.3d
195 (2012).

Mistreatment of a dependent adult is, in relevant part: "[T]aking the personal
property or financial resources of a dependent adult for the benefit of the defendant or
another person by taking control, title, use or management of the personal property or
financial resources of a dependent adult." K.S.A. 2015 Supp. 21-5417(a)(2). The taking
of personal property or financial resources may be accomplished through "[u]ndue
influence, coercion, harassment, duress, deception, false representation, false pretense or
without adequate consideration to such dependent adult." K.S.A. 2015 Supp. 21-
5417(a)(2)(A). After presenting its evidence, the State opted to proceed on the undue
influence and false representations elements of mistreatment of a dependent adult and the
district court only instructed the jury with those two elements. Therefore, any discussion
of false pretense is moot.

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Miller argues the district court should have given an instruction defining undue
influence. However, Miller's brief does not identify which of the instructions presented to
the district court defining undue influence the district court should have given. Instead, he
simply argues:

"The facts of this case should have compelled the Court to craft definitional instructions
because of the complexity of the relationships between Dalene Miller, Rick Miller, Viola
Miller, and the Trust arrangement between the parties, and the multiple contradictory
testimonies. The Court could have used the Cersovsky definition of 'undue influence', for
example, or crafted an appropriate definition from the Haneberg case, In re Estate of
Haneberg, 270 Kan. 365, Syl. ¶ 7, 14 P.3d 1088 (2000)."

Miller does not identify how any particular instruction was legally appropriate,
merely that a definition was appropriate and even added at oral argument he had no
specific recommendation on what the instruction should have been. Miller has abandoned
the issue because he failed to adequately brief it. See State v. Bowen, 299 Kan. 339, 355-
56, 323 P.3d 853 (2014) ("When a litigant fails to adequately brief an issue it is deemed
abandoned.")

Miller's argument also fails on the merits. Prior to trial, Miller's proposed two
definitional instructions for undue influence. The first proposed jury instruction, based on
PIK Civ. 4th 124.09, read: "Rick Miller may be said to have exerted undue influence
over Viola Miller if Viola Miller was deprived of her free will or agency, and Rick
Miller's will was substituted in its place. Fair argument and persuasion, however, do not
amount to undue influence." The second proposed jury instruction, based on PIK Civ. 4th
124.10, read:

"Undue influence may be found if each of the following elements are proven:
"1. That a confidential relationship existed between Viola Miller and Rick Miller;
"2. That Viola Miller was under the domination of Rick Miller; and
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"3. That the transaction was induced by unfair persuasion."

These proposed jury instructions are not legally appropriate. The proposed undue
influence instructions define the term in the context of defenses to contract formation. In
addition, the notes on use for PIK Civ. 4th 124.10 indicate it "should only be used where
the claim of undue influence by virtue of a confidential relationship is asserted."

Further, in Ahart, 2013 WL 5303521, at *4, a panel of this court found that a
precise definition of undue influence was difficult because it must generally be
determined by the facts of each case. Ahart challenged the constitutionality of the
mistreatment of a dependent adult statute arguing it was unconstitutionally vague because
unfair advantage and undue influence were not defined in the statute. However, the panel
determined, "the mere fact that the terms 'unfair advantage' and 'undue influence' are not
defined in the statute does not mean that a person of common intelligence cannot
understand which conduct is prohibited." 2013 WL 5303521, at *4. The panel concluded
that, based on the facts before it, a person with common intelligence could understand the
concept of unfair advantage and undue influence and the statute was not
unconstitutionally vague. 2013 WL 5303521, at *5. Based on the facts of this case, as in
Ahart, a person with common intelligence could understand the concept of undue
influence. The district court did not err when it found defining undue influence would
provide no benefit for the jury.

At the instruction conference, Miller also proposed an instruction for "false
representation" based on State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978). He argued
the State "must prove that the victim was actually deceived, and relied in whole or in part
upon the false representation." This instruction is not legally appropriate. Finch was a
theft by deception case. In Finch, the Kansas Supreme Court held:

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"[I]n order to convict a defendant of theft by deception under K.S.A. 21-3701(b) the
[S]tate must prove that the defendant with the required intent obtained control over
another's property by means of a false statement or representation. To do so the [S]tate
must prove that the victim was actually deceived and relied in whole or in part upon the
false representation." Finch, 223 Kan. at 404.

Naturally, a conviction for theft by deception requires deception. But false
representation, in and of itself, does not require the victim to be deceived. In fact, K.S.A.
5417(a)(2)(A) lists both deception and false representation as possible ways to take the
personal property or financial resources of a dependent adult. Miller's proposed jury
instruction was not legally appropriate.

Even if the district court had erred by failing to give definitional instructions, the
error would not have been reversible. Reversible error only occurs if the appellate court is
firmly convinced the jury would have reached a different verdict without the error. State
v. Clay, 300 Kan. 401, 408, 329 P.3d 484 (2014). Miller argues, "the decision of the jury
could have been different" had the district court given definitional instructions.
(Emphasis added.) He focuses his argument primarily on the perceived error of admitting
evidence pursuant to K.S.A. 2015 Supp. 60-455 arguing:

"The jury was forced to rely on their 'perception' of Mr. Miller's character when deciding
if Mr. Miller had unduly influenced Viola by the use of false pretense or false
misrepresentation. Undefined, this left the jury to provide their own definitions, apply
those to Mr. Miller's circumstances, and that, combined with the effect of the 60-455
evidence characterizing Mr. Miller as a potential killer, a violent man, and a man of
irreversible bad character, absolutely led the jury down a predictable path."

His argument fails. First, the district court provided a limiting instruction for the
evidence of the threat. Second, Miller points to no evidence showing the jury believed
Miller was a potential killer, a violent man, or a man of irreversible bad character; he
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simply concludes the jury must have believed that since the jury convicted him. Third,
the State presented abundant evidence Viola was incapable of managing herself or her
finances, and evidence illustrating how Miller benefitted—primarily in the form of a new
truck and new home—from Viola's assets while she remained in a care home where the
bill was not being timely paid, she needed dental work, and her medicine was not being
timely provided for her. Miller has not met his burden showing the jury would have
reached a different verdict had the instructions been included.

Miller Received a Presumptive Sentence; We Lack Jurisdiction

Miller also appeals the denial of his motion for durational departure arguing there
are substantial and compelling reasons to depart. K.S.A. 2015 Supp. 21-6820(c) provides
that an appellate court shall not review on appeal a sentence for a felony conviction that
is (1) within the presumptive sentence for the crime, or (2) the result of a plea agreement
between the State and the defendant which the trial court approved on the record. Under
K.S.A. 2015 Supp. 21-6820(c), appellate courts lack jurisdiction to review challenges to
presumptive sentences. State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012). The
district court sentenced Miller to the presumptive sentence for both mistreatment of a
dependent adult and conspiracy to commit mistreatment of a dependent adult. We do not
have jurisdiction to consider Miller's appeal of the denial on his motion for durational
departure, and we dismiss this portion of his appeal.

The Collection Fee Does Not Create an Illegal Sentence

The journal entry of sentencing imposed a 33% collection fee if Miller's fine was
not paid. Miller asserts the imposition of a collection fee constitutes an illegal sentence
because it does not comply with the sentencing statute. The State responds that K.S.A.
2015 Supp. 20-169 (formerly K.S.A. 2014 Supp. 75-719) authorizes the district court to
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charge a collection fee when the defendant fails to pay any amount ordered by the court.
As a result, Miller's sentence is not illegal.

"An 'illegal sentence' is: (1) a sentence imposed by a court without jurisdiction; (2)
a sentence that does not conform to the applicable statutory provision, either in character
or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to
the time and manner in which it is to be served." State v. Taylor, 299 Kan. 5, 8, 319 P.3d
1256 (2014). Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a
question of law over which the appellate court has unlimited review. 299 Kan. at 8.

Pursuant to K.S.A. 2015 Supp. 21-6604(a)(2), when a person has been found
guilty, the court may "impose the fine applicable to the offense and may impose the
provisions of subsection (q)." K.S.A. 21-6611(a)(2) authorizes a fine not to exceed
$300,000 for severity level 4 felonies. K.S.A. 2015 Supp. 21-6604(q) indicates the court
may authorize payment of the fine in installments or may order the person to perform
community service in lieu of payments; it does not mention collection fees. However,
K.S.A. 2015 Supp. 20-169(a) states:

"The judicial administrator is authorized to enter into contracts in accordance with this
section for collection services for debts owed to courts or restitution owed under an order
of restitution. On and after July 1, 1999, the cost of collection shall be paid by the
defendant as an additional court cost in all criminal, traffic and juvenile offender cases
where the defendant fails to pay any amount ordered by the court and the court utilizes
the services of a contracting agent pursuant to this section. The cost of collection shall be
deemed an administrative fee to pay the actual costs of collection made necessary by the
defendant's failure to pay court debt and restitution." (Emphasis added.)

Fines are specifically included in the definition of "debts owed to courts." K.S.A. 2015
Supp. 20-169(b)(4).

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The district court fined Miller $200,000, which is well under the amount
authorized by statute. The journal entry of sentencing also reflects a $200,000 fine.
However, in an asterisk corresponding to the total amount of the fines, the journal entry
states: "All costs or assessments ordered will be subject to additional collection fee of
33% or more if not paid as ordered." This provision appears to be pursuant to K.S.A.
2015 Supp. 20-169, though, as the State admits, the statutory maximum for the collection
fee is 33%.

Further, as the State's brief indicates, a 33% collection fee on the $200,000 fine
only amounts to $66,000. Even if the district court assessed the $66,000 collection fee,
Miller would owe $266,000, still well within the $300,000 fine authorized by K.S.A.
2015 Supp. 21-6611(a)(2). Our reading of the collection fee and asterisk on the journal
entry is that the district court was giving Miller notice the fine would be subject to the
collection fee if it was not timely paid.

The collection fee is authorized by statute; it is not an illegal sentence.

No Cumulative Error

Finally, Miller claims he is entitled to a new trial due to cumulative error.
However, the court will find no cumulative error when the record fails to support the
errors defendant raises on appeal. State v. Betancourt, 299 Kan. 131, 147, 322 P.3d 353
(2014). Miller's claim of cumulative error must fail because, as discussed above, the
record does not support any of Miller's claims of error.

Affirmed in part and dismissed in part.