Unified Gov't of WYCO/KCK v. Clark

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NOT DESIGNATED FOR PUBLICATION

No. 120,478

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

UNIFIED GOVERNMENT OF WYCO/KCK,
Appellee,

v.

ERIC S. CLARK,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge pro tem. Opinion filed October
25, 2019. Affirmed.

Eric S. Clark, appellant pro se.

Francis Givens, prosecutor, and Kenneth J. Moore, chief legal counsel, for appellee.

Before POWELL, P.J., GARDNER, J., and LAHEY, S.J.

PER CURIAM: Eric S. Clark appeals his conviction for violating the municipal seat
belt ordinance. Clark argues that the district court misinterpreted the seat belt ordinance,
that the officer lacked sufficient evidence to support reasonable suspicion for the stop,
and that the ordinance is unconstitutional as applied. We find no error in the district
court's interpretation of the ordinance, find the officer had reasonable suspicion to justify
the stop, and find the seat belt ordinance is constitutional. Consequently, we affirm
Clark's conviction.

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FACTUAL AND PROCEDURAL BACKGROUND

On June 1, 2018, Master Sergeant Matt Cross of the Kansas City, Kansas Police
Department saw Clark driving an Oldsmobile while not wearing a seat belt—he could see
the seat belt in its position up against the door rather than draped across Clark's shoulder.
Based solely on that observation, Cross initiated a traffic stop. After Cross explained the
reason for the stop, Clark said that he had a shoulder injury that made it difficult to wear
a seat belt. Cross did not ask for, nor did Clark voluntarily offer, any medical
documentation regarding the injury. Cross issued a citation to Clark for violating the
Code of Ordinances of the Unified Government of Wyandotte County/Kansas City,
Kansas, Ordinance § 35-651 (2017). The municipal court adjudged Clark guilty of
violating the city seat belt ordinance, and Clark appealed to the district court.

Cross was the only witness to testify in the district court trial. At the conclusion of
the City's evidence, Clark submitted an 11-page motion for acquittal. The district court
continued the hearing to allow it and the State time to review and respond to the motion.
After the State filed a response, the district court gave a lengthy legal analysis and denied
the motion. The district court found Clark guilty of violating the city seat belt ordinance
and fined him $30.

Clark timely appeals.

I. DID THE OFFICER HAVE SUFFICIENT EVIDENCE TO JUSTIFY THE STOP?

Clark nominally makes a sufficiency of the evidence challenge. However, his sole
articulated basis for challenging the sufficiency of the evidence is that the officer lacked
sufficient evidence at the time of the stop to reasonably suspect Clark was violating the
seat belt ordinance. Clark argues that because the officer had no way of knowing whether
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any exception to the seat belt requirement applied, Clark should not have been stopped
and his conviction should be reversed.

We note that Clark does not contest any specific fact, element of the offense, or
failure of proof on the part of the State at trial. In his argument at trial, Clark said, "There
is no dispute concerning the facts. It's only concerning the matter of law." The facts upon
which Clark bases his appeal are not in dispute. Clark alleged, and the officer agreed, that
at the time of the stop, the officer did not know if a medical exception to the seat belt
ordinance applied to Clark. Other than this single contention, Clark presents no factual
challenge to the elements of the offense. Even though we observe some factual
deficiencies in the City's evidence, those deficiencies are not argued or briefed here, nor
were they argued or briefed in the district court. The failure to brief or assert an argument
before an appellate court waives or abandons the argument. State v. Tague, 296 Kan. 993,
1001-02, 298 P.3d 273 (2013). We therefore determine Clark has waived any right to
present a sufficiency of the evidence challenge.

Because the facts upon which Clark bases his appeal are not in dispute, we review
the district court's ruling on the lawfulness of the stop, not as a sufficiency of the
evidence challenge, but as a question of law. Our standard of review is de novo. See City
of Wichita v. Molitor, 301 Kan. 251, 264-65, 341 P.3d 1275 (2014).

Before we discuss the stop and analyze Clark's various arguments, we first review
the ordinance in question:

"Sec. 35-651.—Wearing seat belts required.

"(a) Except as provided in section 35-650 [and in] subsection (b) of this section:

(1) Each occupant of a passenger car manufactured with safety belts in
compliance with federal motor safety standard no. 208, who is 18 years of
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age or older, shall have a safety belt properly fastened about such person's
body at all times when the passenger car is in motion; and

(2) Each occupant of a passenger car manufactured with safety belts in
compliance with federal motor safety standard no. 208, who is at least 14
years of age but less than 18 years of age, shall have a safety belt properly
fastened about such person's body at all times when the passenger car is in
motion.

"(b) This section does not apply to:

(1) An occupant of a passenger car who possesses a written statement from a
licensed physician that such person is unable for medical reasons to wear a
safety belt system;

(2) Carriers of United States mail while actually engaged in delivery and
collection of mail along their specified routes;

(3) Newspaper delivery persons while actually engaged in delivery of
newspapers along their specified routes.

"(c) Law enforcement officers shall not stop drivers for violations of subsection (a) of
this section by a back seat occupant in the absence of another violation of law. A
citation for violation of subsection (a) of this section by a back seat occupant
shall not be issued without citing the violation that initially caused the officer to
effect the enforcement stop.

"(d) The fine for violating subsection (a)(1) of this section shall be in the amount set
by municipal court order.

"(e) The fine for violating subsection (a)(2) of this section shall be in the amount set
by municipal court order." Ordinances of the United Government of Wyandotte
County/Kansas City, Kansas (2017).

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As set forth in subsection (b)(1), three categories of occupants are not required to
wear seat belts: (1) A person with a written statement from a doctor stating that the
person, for medical reasons, is unable to wear a seat belt; (2) mail carriers; and (3)
newspaper delivery persons. Clark does not contend that he falls within any of these
categories. Furthermore, Clark's argument is directed only to the first category of
exception—a person who has a medical reason for not wearing a seat belt.

"A routine traffic stop is a warrantless seizure under the Fourth Amendment to the
United States Constitution and is therefore unreasonable unless the officer who initiates
the stop has a reasonable and articulable suspicion, based on facts, that the person
stopped has committed, is committing, or is about to commit a crime." State v. Glover,
308 Kan. 590, Syl. ¶ 1, 422 P.3d 64 (2018), cert. granted 139 S. Ct. 1445 (2019). "Courts
evaluate the existence of a reasonable suspicion under a totality-of-the-circumstances
analysis that requires a case-by-case assessment." Glover, 308 Kan. 590, Syl. ¶ 2.

"In determining whether reasonable suspicion exists, the court must judge the officer's
conduct in light of common sense and ordinary human experience under the totality of
the circumstances. . . . [Reasonable suspicion] represents a minimum level of objective
justification and is considerably less than proof of wrongdoing by a preponderance of the
evidence." State v. Sharp, 305 Kan. 1076, Syl. ¶ 4, 390 P.3d 542 (2017).

Reasonable suspicion is a lower standard than probable cause, and probable cause
is a lower standard than beyond a reasonable doubt. See Molitor, 301 Kan. at 263
(evaluating whether evidence inadmissible at trial was admissible for reasonable
suspicion). "Probable cause does not require specific evidence of each element of the
offense as would be needed to support a conviction." State v. Abu-Isba, 235 Kan. 851,
853-54, 685 P.2d 856 (1984). Instead, probable cause looks at whether the evidence is
sufficient "to warrant a person of reasonable caution to believe that an offense has been
or is being committed." 235 Kan. at 854. The reasonable suspicion standard cannot
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rationally require evidence of every element of or every exception to an offense when the
higher probable cause standard does not.

Clark has been before another panel of our court for a seat belt violation in which
he also challenged the stop. See City of Olathe v. Clark, No. 111,354, 2014 WL 6777444
(Kan. App. 2014) (unpublished opinion). Clark contended there that because the officer
did not know if Clark qualified for the medical exception under the ordinance, the officer
could not have formed a reasonable suspicion that Clark was violating the law. The panel
found that law enforcement's observation of Clark driving his car while not wearing a
seat belt was sufficient to justify the stop. 2014 WL 6777444, at *3. In this case, the
district court also found that Cross' observation of Clark driving without a seat belt was a
sufficient specific and articulable factual observation of a likely traffic infraction and
determined the stop was proper under Fourth Amendment standards. We agree with the
district court and the panel in City of Olathe v. Clark: The observation of a driver not
wearing a seat belt while traveling on a highway provides a sufficiently objective, factual
basis for law enforcement to initiate a stop.

II. DID THE DISTRICT COURT MISINTERPRET THE CITY ORDINANCE?

Clark next argues that the district court misinterpreted the city ordinance. "The
interpretation of a municipal ordinance presents a question of law over which an
appellate court has unlimited review." Robinson v. City of Wichita Employees' Retirement
Bd. of Trustees, 291 Kan. 266, Syl. ¶ 5, 241 P.3d 15 (2010). The district court determined
that under subsection (b)(1), the medical exception required the driver to have in his
possession the letter from a physician reflecting that the driver was unable, for medical
reasons, to wear a seat belt. We agree with the district court's interpretation that the
medical exception is available only to a person in possession of a letter from a physician.
The plain language of the ordinance requires it: "This section does not apply to: (1) An
occupant of a passenger car who possesses a written statement from a licensed physician
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that such person is unable for medical reasons to wear a safety belt system." Ordinance §
35-651(b)(1). Not only was there no evidence that Clark possessed such a letter, but
Clark also does not ever contend that the medical exception applies to him. We find
Clark's statutory interpretation argument to be without merit.

Clark next argues that the three exceptions to the seat belt requirement are integral
elements of the law and that the government must affirmatively disprove the applicability
of each exception. Clark's argument is the same one he advanced in Clark, 2014 WL
6777444. The panel there considered Clark's argument, which involved a nearly identical
ordinance, held the medical exception was an affirmative defense, and affirmed his
conviction for violating the seat belt ordinance. We agree with the Clark panel's analysis.

Clark contends the district court's ruling improperly shifts the burden of proof
from the government to Clark by requiring him to prove that he falls within the scope of
one of the exceptions.

"The general rule has always been in Kansas that the accused has the burden of
introducing evidence as a matter of defense that he is within an exception or exemption in
the statute creating the offense, where such exception or exemption is not part of the
description of the offense. Accordingly, the prosecution has no duty to prove on its case
in chief that the accused is not within the exception. This is a mere rule of procedure and
does not relieve the state of its burden of proving guilty. [Citations omitted.]" State v.
White, 213 Kan. 276, 280, 515 P.2d 1081 (1973).

See also State v. Gunn, 29 Kan. App. 2d 337, 341-42, 26 P.3d 710 (applying White and
finding exceptions in statute not negative elements required to be proved by prosecution),
rev. denied 272 Kan. 1421 (2001).

We find the exceptions in subsection (b) of the ordinance are not an integral part
of the offense and are not part of the description of the offense. The elements of the
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offense are fully set forth in subsection (a), while subsection (b) sets forth the exceptions
to that crime. Clark's emphasis is on the medical exception because there was no
objective way for the officer to determine its applicability prior to stopping a person not
wearing a seat belt.

The medical exception in the ordinance requires documentary proof which is not
in the possession of or reasonably attainable by the State. "[W]here an allegation or fact
is of a negative character, which the prosecution has not the means to prove affirmatively,
it then devolves upon the defendant who has the means to disprove the negative fact if it
is not true, and if he fails to do so an assumption is warranted that it is true." State v.
Driscoll, 134 Kan. 671, 673, 8 P.2d 335 (1932); see State v. Wilson, 62 Kan. 621, 627, 64
P. 23 (1901). Here, the negative fact which the State lacks the means to prove is the
possession by Clark of a written medical excuse. The documentary proof of a medical
condition is exclusively within the control of the vehicle occupant who must obtain and
possess it for the exception to apply. As a result, the burden of production is justly placed
on the occupant—here, Clark. Because no evidence was produced suggesting any of the
exceptions to the law applied in this case, the district court was correct in concluding no
exception applied.

III. IS THE ORDINANCE UNCONSTITUTIONAL AS APPLIED?

Finally, Clark argues the ordinance is unconstitutional as applied. An as-applied
challenge contests the application of a statute or ordinance to a particular set of
circumstances. See State v. Hinnenkamp, 57 Kan. App. 2d. 1, 4, 446 P.3d 1103, 1107
(2019). The circumstances which form the basis of Clark's challenge are the same as
supports his other arguments—because the officer did not know if Clark had a physician's
letter providing a medical reason, the officer could not reasonably suspect Clark was
violating the ordinance. Having determined the stop to be constitutionally permissible—
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the circumstances show the officer had reasonable suspicion for the stop—we find
Clark's as-applied challenge lacks merit.

Affirmed.