State v. Okrepka

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NOT DESIGNATED FOR PUBLICATION

No. 119,282

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

OLEKSANDRA OKREPKA,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed August 9,
2019. Affirmed.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MALONE, J., and STEVEN E. JOHNSON, District Judge, assigned.

PER CURIAM: Oleksandra Okrepka appeals from her conviction for violation of a
protection from stalking order, contrary to K.S.A. 2015 Supp. 21-5924. On appeal, she
collaterally attacks the underlying Temporary Order of Protection from Stalking under
the guise of a sufficiency of the evidence argument. Specifically, Okrepka argues that the
temporary order was defective because an outdated form was used that included
references to statutes that had been recodified in 2010. For the reasons set forth in this
opinion, we affirm Okrepka's conviction.

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FACTS

On May 26, 2016, the State of Kansas charged Oleksandra Okrepka with violation
of a protective order—a class A person misdemeanor—in violation of K.S.A. 2015 Supp.
21-5924 and K.S.A. 2015 Supp. 21-6602(a)(1). The case was delayed for several months
as concerns over Okrepka's mental health and competency were addressed. Ultimately,
the district court convened a jury trial on March 5, 2018.

At trial, the State presented four witnesses and eight exhibits during its case-in-
chief. Okrepka testified in her own defense and presented one exhibit. The evidence
showed that Shahin Rasnavad purchased a home in an auction that was previously owned
by Okrepka. The auction also included all of the personal items remaining inside the
home. In May 2016, Rasnavad was granted a Temporary Order of Protection from
Stalking against Okrepka after she attempted to enter his house, repeatedly drove by the
house, and slept in her car outside the house. She also had managed to convince the post
office to change the mailbox back to her name.

The evidence also showed that Okrepka was served with the temporary order on
May 25, 2016. Nevertheless, Okrepka returned to Rasnavad's residence the following
day. She first approached the back door and then walked to the front of the house. She
called Rasnavad and told him she had "the paperwork for ownership of the house." In
addition, she told him that she "want[ed] the key for the house." A neighbor witnessed
Okrepka approach Rasnavad's home and he notified the police. An Overland Park police
officer responded to the scene and asked Okrepka to leave. After she refused, Okrepka
was taken to the adult detention center.

At the conclusion of the State's evidence, Okrepka motioned for acquittal. The
district court overruled the objection and Okrepka testified in her own defense. She
presented a copy of a divorce decree into evidence that indicated that the house had been
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awarded to her. She testified that the house was later sold without her permission and that
her belongings remained in the house after the sale. On cross-examination, the State
asked Okrepka about a provision in the divorce agreement that required her to pay
$55,000 to her ex-husband in the form of an equalization payment. Although she
acknowledged the provision, she testified that she believed that it was unenforceable.
Okrepka later admitted that her ex-husband had sued her in 2012 to enforce the
equalization payment provision and she knew the house was being sold. In fact, she
admitted that she received $11,000 from the sale.

Okrepka acknowledged that she was not to go to the house under the terms of the
temporary protective order. She admitted to "driving by many times," as well as changing
the mailbox, and to calling Rasnavad on May 26, 2016. After hearing the evidence, the
jury convicted Okrepka of violation of a protective order. The same day, she was
sentenced to six months in jail. However, the district court found that Okrepka had
already "served that time" and waived all costs as well as fees.

ANALYSIS

On appeal, Okrepka contends that because the underlying temporary protection
from stalking order does not comply with the requirements of K.S.A. 2015 Supp. 60-
31a06, there is insufficient evidence in the record to establish her guilt beyond a
reasonable doubt. When a defendant challenges the sufficiency of the evidence in a
criminal case, we review the evidence in a light most favorable to the State to determine
whether a rational fact-finder could have found the defendant guilty beyond a reasonable
doubt. State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). To the extent to which
this appeal involves statutory interpretation, our review is unlimited. State ex rel.
Secretary of DCF v. Smith, 306 Kan. 40, 48, 392 P.3d 68 (2017).

Here, the criminal complaint filed against Okrepka alleged:
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"That on or about the 26th day of May, 2016, in the County of Johnson and State
of Kansas, OLEKSANDRA OKREPKA did then and there unlawfully, willfully and
knowingly violate a protection from stalking order issued pursuant to K.S.A. 60-31a05,
60-31a06, a class A person misdemeanor, in violation of K.S.A. 21-5924 and K.S.A. 21-
6602(a)(1). (violation of a protective order)"

The complaint complied with the requirements of K.S.A. 22-3201(b) and tracked
the elements of the crime of violating a protection of stalking order. In particular, the
complaint alleged that Okrepka knowingly violated the protection from stalking order
and cited the relevant statutes under which the protection order was issued. The
complaint also placed Okrepka on notice of the date and county in which she was alleged
to have knowingly violated the protection order. Accordingly, we find that the charging
document met the legal standard set out by the Kansas Supreme Court in State v. Dunn,
304 Kan. 773, 811-12, 375 P.3d 332 (2016).

Nevertheless, Okrepka seeks to use this criminal case to attack the validity of the
underlying Temporary Order of Protection from Stalking by the district court. We find
nothing in the record to suggest that she challenged the validity of the temporary
protection from stalking order in the underlying civil case. Moreover, it does not appear
that she challenged the validity of the temporary protection from stalking order before the
district court in this criminal case.

At trial, Okrepka's only defense was mistake of fact. Specifically, she argued that
she reasonably believed that the house belonged to her and that she had a right to be on
the property. At no point below did Okrepka object to the contents of the temporary
protective order or claim that she did not understand the terms of the order. Similarly,
neither Okrepka nor her attorney claimed that the Temporary Protection from Stalking
Order form used by the district court was defective.


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In her brief, Okrepka acknowledges that "she did not argue the specific defect . . .
now presented." In an attempt to escape the ramifications from failing to raise this
argument below, she now argues that this is a sufficiency of the evidence issue. In the
alternative, she argues that this court can still hear the merits of her claim because it is
based on the "legal insufficiency" of the Temporary Order of Protection from Stalking.
We note that as a general rule, a party is precluded from raising an issue on appeal that
was not raised before the district court. See State v. Johnson, 309 Kan. 992, 995, 441
P.3d 1036 (2019).

Nevertheless, there are three traditional exceptions to raising an issue for the first
time on appeal. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014) (detailing
three exceptions, including [1] questions of law that are finally determinative in the case;
[2] when consideration of issue is necessary to serve the ends of justice or to prevent the
denial of fundamental rights; and [3] the trial court may be upheld despite its reliance
upon the wrong grounds or wrong reason). Here, Okrepka argues that the first two
exceptions apply. For the purposes of this opinion, we will assume that these exceptions
are applicable and we will address Okrepka's argument on the merits.

A review of the Temporary Order of Protection from Stalking leads us to the
conclusion that it was sufficient to advise Okrepka of the following:

 Shahin Rasnavad filed a written verified petition against her requesting a
Temporary Order of Protection from Stalking pursuant to K.S.A. 60-31a01
et seq.
 The district court had jurisdiction over the parties and over the subject
matter.
 Rasnavad had established a prima facie case of stalking sufficient for the
district court to enter a temporary order.
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 She was not to "follow, harass, telephone, contact or otherwise
communicate with [Rasnavad]."
 She was not to "interfere with the privacy rights of [Rasnavad] wherever
[he] may be."
 She was not to "contact [Rasnavad], either directly or indirectly."
 She was not to "enter or come on or around the premises, the residence or
workplace where [Rasnavad] reside[s], stays or works."

In addition to other things, the "Warnings to Defendant" attached to the
Temporary Order of Protection from Stalking provided:

 The order was effective when signed by the judge.
 Law Enforcement Officers had been directed to immediately enforce the
order.
 Violation of the order could constitute a "violation of a protective order as
provided in K.S.A. 21-3843, and amendments thereto; stalking as provided
in K.S.A. 21-3438, and amendments thereto; assault as provided in K.S.A.
21-3408, and amendments thereto; battery as provided in K.S.A. 21-3412,
and amendments thereto; and criminal trespass as provided in K.S.A. 21-
3721(a)(1)(C), and amendments thereto . . . ."
 Violation of the order could "result in prosecution and conviction under
Kansas criminal statutes."
 Violation of the order could "also be punishable as contempt of this Court."
 Violation of the order could "subject the defendant to prosecution for such
federal crimes, including but not limited to . . . Interstate stalking; and
Interstate violation of a protection order."

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We find these warnings to sufficiently place Okrepka on notice of her obligations
under the Temporary Order of Protection from Stalking as well as the ramifications if she
violated the order. In reaching this determination, we recognize that the Kansas
Protection from Stalking Act "shall be liberally construed to protect victims of stalking
and to facilitate access to judicial protection for stalking victims . . . ." K.S.A. 60-
31a01(b).

It is undisputed that the Temporary Order of Protection from Stalking form used
by the district court was several years old. In fact, it refers to some statutes that were
recodified by the Kansas Legislature in 2010. We note that the recodification of the
Kansas Criminal Code became effective on July 1, 2011. See L. 2010, ch. 136, § 1. The
purpose of the recodification was to reorganize the statutes to place them in a more user-
friendly order, to add clarity, to combine statutes to reduce their number, and to eliminate
unnecessary statutes. Kansas Criminal Code Recodification Commission, 2010 Final
Report to the Kansas Legislature, Vol. I, pp. 15 and 17. Thus, the practical effect of the
recodification was to renumber and reorder the statutes, while generally leaving their
substance intact.

To accomplish the recodification, our Legislature repealed the prior criminal
statutes while simultaneously enacting the renumbered statutes. The Kansas Criminal
Code contains a table that cross-references the old statute number with the new statute
number assigned under the recodification. See K.S.A. 2018 Supp. Vol. 2A 2011—
Criminal Code Table, pp. 423-28. Hence, although the Temporary Order of Protection
from Stalking form used in this case contained references to several statutes that were
repealed and replaced as part of recodification, we find that the use of the words "and
amendments thereto" used in conjunction with these statutes was sufficient to point a
reasonable person to the new statute number for the particular offense.

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We also note that the Kansas Supreme Court rejected a somewhat similar
argument in a case in which a repealed statute was cited in a charging document in the
case of State v. Salters, 214 Kan. 860, 522 P.2d 436 (1974). In Salters, the defendant
moved to dismiss the criminal complaint because it cited to two statutes that had been
previously repealed. In affirming the district court's denial of the defendant's motion to
dismiss, our Supreme Court noted that the repealed statutes and the proper statutes
classified the crime the same. 214 Kan. at 860. In particular, our Supreme Court found:

"Reference to a repealed statute [in the charging document] amounts to the same
thing as 'omission' of reference to any statute [under K.S.A. 1973 Supp. 22-3201(2)], in
view of the circumstances of this case. The crime charged was the same under the new
statute as under the old; hence, appellant was not misled." 214 Kan. at 861.

Similarly, we find that Okrepka was not misled or prejudiced in this case by the
citation to repealed and replaced statutes that are substantively the same. If reference to a
repealed statute does not make a criminal complaint defective, it is reasonable to
conclude that reference to a recodified statute does not make a civil temporary protection
from stalking order defective. This is particularly true since the words "and amendments
thereto" followed the repealed and replaced statutes, which would lead a reasonable
person to the recodified statutory citation. Likewise, as indicated above, the practical
effect of the recodification was to renumber and order the statutes while leaving the
substance intact.

Affirmed.