City of Wichita v. Grasty

• Decision Date: 22 October 2021
• Docket Number: No. 123,309,123,309
• Citation: City of Wichita v. Grasty, 500 P.3d 1201 (Kan. App. 2021)
• Parties: CITY OF WICHITA, Appellee, v. Geli GRASTY, Appellant.
• Court: Kansas Court of Appeals

500 P.3d 1201

CITY OF WICHITA, Appellee,

v.Geli GRASTY, Appellant.

No. 123,309

Court of Appeals of Kansas.

Opinion filed October 22, 2021.

Kevin J. Zolotor and Christopher S. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Jan Jarman, assistant city attorney, and Jennifer Magana, city attorney, for appellee.

Before Arnold-Burger, C.J., Schroeder, J., and Walker, S.J.

Arnold-Burger, C.J.:

Police arrested Geli Grasty for offering to sell sexual services during a massage.A municipal judge convicted Grasty, and she appealed to the district court.Once she filed her appeal, the case was assigned to the district judge who would preside over her trial.Grasty had seven days to file a request for a jury trial from the date of the assignment.Her request for a jury trial was filed well outside the seven-day limit.The district court denied her request for a jury trial and Grasty was ultimately convicted by the judge at a bench trial.She timely appeals her conviction, arguing that the district court erred by denying her request for a jury trial and by finding her guilty.Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Steven Molde, a detective for the Wichita Police Department, went to Amazing Massage, a massage parlor in Wichita, Kansas, as part of an investigation into illegal sexual activity.Equipped with a wireless microphone that the other detectives listened to in real time, Molde posed as a customer.

Molde arrived at the business, rang the doorbell, and waited until Grasty opened the door.Grasty asked Molde if he wanted a massage, and he said he wanted a 30-minute massage.Grasty informed Molde that a 30-minute massage would cost $40, which he paid.Grasty left the room and Molde took his clothes off and put a towel around his midsection.Molde then laid face-down on the massage table and Grasty returned to the room.Grasty began to massage Molde's back and arms and eventually removed Molde's towel.After removing the towel, Grasty massaged Molde's buttocks and placed "her hand between [his] buttocks."During the massage, Molde engaged in some small talk with Grasty.Molde thought Grasty understood what he was saying for the most part.

After the 30-minute massage was over, Molde stood up and Grasty asked if there was anything else he wanted.Grasty "held her hand up like five and one" and Molde asked if she meant $60.Then he asked what he could get for $60 and "in a slang term [Molde] asked for a hand job and gestured with [his] right hand."After making the hand gesture, Molde testified that Grasty said, "Yes."

Molde then went to get money out of his jeans and came back to Grasty.Grasty then said, "No.No massage," but then put her hand up again to convey $60.At some point, Grasty put her finger up and Molde interpreted this as her wanting to be quiet about what was happening.Molde gave Grasty the $60.Grasty then told Molde to go lay back down on the table.Molde gave the verbal arrest code and told Grasty that he did not want to go through with it anymore.

The other detectives entered the building and Molde provided Grasty her Miranda warnings, in English and Mandarin.Grasty agreed to speak with Molde.After questioning her, Molde issued Grasty a notice to appear.

As a result of what occurred, the City of Wichita charged Grasty with selling sexual relations in violation of Wichita Municipal Code§ 5.68.010(1)(c).She pled no contest, and the court granted Grasty probation and imposed $451.50 in fines and fees.

Grasty filed a timely appeal from the municipal court to the district court on June 21, 2019.On the same day, the case was set for "Bench CAD" on July 3, 2019, in Division 5.The word "Bench" is handwritten in a blank space followed by the word "trial.""CAD" is handwritten directly over "trial."The Register of Actions lists the July 3, 2019 date as "Criminal Bench Trial – Control Only."The district court continued the hearing to July 31, 2019, and later continued it again to August 14, 2019.

On August 14, 2019, Grasty requested a jury trial.On August 26, 2019, the district court approved Grasty's request for a jury trial and set the trial date for January 6, 2020.On September 24, 2019, the district court emailed the parties and stated that Grasty's request for a jury trial might have been untimely and requested the parties' input on the issue.

The City moved to deny the motion for jury trial.The City argued that Grasty's August 14, 2019 request for a jury trial was outside the seven-day time limit to request a jury trial because the case was assigned "to Judge Rundle for a CAD docket on July 3, 2019" and "had bench trial control dates of July 31, 2019 and August 14, 2019."In her response, Grasty argued a setting on the "CAD" docket, which seems to mean " ‘Criminal Assessment Docket’ " or " ‘Criminal Assignment Docket,’ " does not start the running of the seven-day time limit.

The district court granted the City's motion finding that the seven-day clock started on June 21, 2019, which is when Grasty appealed the municipal conviction, and the case was assigned to the district judge.

At the subsequent bench trial the State's evidence was as presented above.Grasty also testified, through an interpreter, at the trial.According to Grasty, her fee for a 30-minute massage was $40, a 60-minute massage was $60, and a 90-minute massage was $100.Grasty testified that she did not know what the hand gesture that Molde made after the massage meant.Grasty testified that at the end of the 30-minute massage, Molde said that she did a good job, so she offered to extend the massage for an additional period of time.Grasty said that she did not receive an additional $60 from Molde.Grasty said that she did not talk about any sexual services with Molde.When asked why she was whispering, Grasty explained that it was because Molde started to whisper.

The district court found Grasty guilty and imposed a $200 fine, court costs, and 12 months' probation.Grasty timely appealed.

ANALYSIS

On appeal, Grasty raises two issues.First, she argues that the district court erred when it denied her request for a jury trial.We will address her argument in two sections, one addressing the statutory time limitation, and the other addressing whether Grasty had a constitutional right to a jury trial.Second, she argues there was insufficient evidence to support her conviction.

The District Court Did Not Err by Denying Grasty's Request for a Jury Trial.

Our standard of review is unlimited.

To answer this question, we must interpret the meaning of K.S.A. 2020 Supp. 22-3609(d).Statutory interpretation presents a question of law over which appellate courts have unlimited review.State v. Alvarez , 309 Kan. 203, 205, 432 P.3d 1015(2019).The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be determined.State v. LaPointe , 309 Kan. 299, 314, 434 P.3d 850(2019).

"First notice of trial assignment" means the date a case is assigned to a particular judge for trial.

Under Kansas law, "[t]he trial of misdemeanor cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel."K.S.A. 22-3404(1).In an essentially identical statute, Kansas law further provides that "the trial of municipal appeal cases shall be to the court unless a jury trial is requested in writing by the defendant not later than seven days after first notice of trial assignment is given to the defendant or such defendant's counsel."K.S.A. 2020 Supp. 22-3609(d).The question here is what is meant by "first notice of trial assignment."K.S.A. 22-3404(1);K.S.A. 2020 Supp. 22-3609(d).

This court has answered that question in the past by holding that "[t]he term ‘trial assignment’ under K.S.A. 1993 Supp. 22-3404(1) refers to the date of the assignment of the case to a particular judge or court, not the trial setting."State v. Bell , 20 Kan. App. 2d 193, Syl.¶ 2, 884 P.2d 1164(1994)( Bell I ), aff'd in part, rev'd in part258 Kan. 123, 899 P.2d 1000(1995).

In Bell I , the district court arraigned the defendant in December 1993 and entered a plea of not guilty.Two months later his case was transferred to a division of the district court for trial.Seventeen days later the case was set for bench trial.On that same day, the defendant filed a written request for a jury trial.The district court denied the request, finding the request was not timely because the clock started running in February when the court notified the defendant of the transfer of the case to the division.The district court judge found the defendant guilty following a bench trial and the defendant timely appealed his conviction.

On appeal, the defendant argued that the statutory clock should have started when his case was actually set for trial.This court disagreed.Instead, this court determined that "the term ‘trial assignment,’ as used in [K.S.A.] 22-3404(1), means to appoint a judge to the duty of presiding over a case at trial."20 Kan. App. 2d at 197, 884 P.2d 1164.

When reaching its decision, the court considered the defendant's three possible interpretations of "trial assignment"—" ‘first appearance before a judge,’ ‘first notice of case assignment to a division of the district court,’ or ‘first notice of trial setting.’ "

20 Kan. App. 2d at 198, 884 P.2d 1164.The court reasoned that only the second interpretation aligned with the language used in K.S.A. 22-3404(1).The other two, first appearance or trial setting, have particular meanings within the law and should be construed according to that particular meaning.20 Kan. App. 2d at 198, 884 P.2d 1164.

For example, "trial setting" appears other places within Kansas statutes and, as this court reasoned, "refers to scheduling a date and time for a trial and cannot be interpreted to mean the same thing as ‘trial assignment.’...