State v. Bell, 73552

• Decision Date: 26 January 1996
• Docket Number: No. 73552,73552
• Citation: 910 P.2d 205,259 Kan. 131
• Parties: STATE of Kansas, Appellant/Cross-Appellee, v. W. Fletcher BELL, Appellee/Cross-Appellant.
• Court: Kansas Supreme Court

Page 205

910 P.2d 205

259 Kan. 131

STATE of Kansas, Appellant/Cross-Appellee, v. W. Fletcher BELL, Appellee/Cross-Appellant.

No. 73552.

Supreme Court of Kansas.

Jan. 26, 1996.

Syllabus by the Court

1. K.S.A.1994 Supp. 22-2202(16) defines a preliminary examination as a hearing before a magistrate on a complaint or information to determine (1) if a felony has been committed and (2) if there is probable cause to believe that the person charged committed it.

2. A preliminary hearing judge may determine that a felony has been committed based on the evidence presented at the preliminary hearing if there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that it appears a felony has been committed.

3. If a preliminary hearing judge determines a felony has been committed, then the judge must determine whether there is probable cause to believe that the person charged committed the crime. In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.

4. When evaluating evidence presented at a preliminary hearing, the judge must seriously consider the defendant's defense and pass judgment on the credibility and competency of both the State's and the defendant's witnesses. If there is a conflict in witness testimony that creates a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony which is most favorable to the State.

5. In appeals by the prosecution from an order discharging the defendant for lack of probable cause that a crime has been committed, this court follows the same standard for weighing the evidence as the judge at the preliminary examination. This court is to conduct a de novo review of the evidence when considering the trial court's probable cause finding.

Steven Hornbaker, Special Assistant Attorney General, argued the cause, and Steven L. Opat, Special Assistant Attorney General, and Carla J. Stovall, Attorney General, were with him on the briefs, for appellant/cross-appellee.

Mark L. Bennett, Jr., of Bennett & Dillon, L.L.P., Topeka, argued the cause and was on the brief, for appellee/cross-appellant.

ABBOTT, Justice:

This is the State's appeal from the district court's dismissal of all criminal charges at the conclusion of the preliminary hearing based on the State's failure to meet its burden of proof that a crime had been committed. The State appeals pursuant to K.S.A.1994 Supp. 22-3602(b)(1).

The defendant, W. Fletcher Bell, was charged with two counts of theft by deception (K.S.A. 21-3701[b] ) arising out of a workers compensation claim. To convict a defendant of theft by deception, the State is required to prove a number of elements (K.S.A. 21-3701[b] and PIK Crim.3d 59.01). Only one of the elements appears to be in dispute in this case: that the defendant obtained money from the State by means of a false representation or statement that deceived the State, which relied in whole or in part upon the false representation or statement of the defendant.

The burden of proof at a preliminary hearing is basic to this opinion. Preliminary examinations are authorized by K.S.A.1994 Supp. 22-2902. K.S.A.1994 Supp. 22-2202(16) defines a preliminary examination as "a hearing before a magistrate on a complaint or information to determine if a felony has been committed and if there is probable cause to believe that the person charged committed it." Under the first requirement, a judge may determine that a felony has been committed based on the evidence presented at the preliminary hearing if "there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that it appears a felony has been committed." State v. Engle, 237 Kan. 349, 350, 699 P.2d 47 (1985).

If a preliminary hearing judge determines a felony has been committed, then the judge must determine whether there is probable cause to believe that the person charged committed the crime. "In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Green, 237 Kan. 146, Syl. p 3, 697 P.2d 1305 (1985)." State v. Bockert, 257 Kan. 488, 492, 893 P.2d 832 (1995). The evidence need not prove guilt beyond a reasonable doubt, only probable cause. 257 Kan. at 492, 893 P.2d 832. According to In re Mortimer v. Evans, 192 Kan. 164, 166-67, 386 P.2d 261 (1963):

"There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty. [Citations omitted.]"

A judge at a preliminary hearing should not evaluate the prosecutor's decision to file criminal charges against the defendant. The judge should not dismiss the case simply because the judge believes the State should not have prosecuted the case due to the remote or nonexistent possibility of a conviction. Bockert, 257 Kan. at 492, 893 P.2d 832 (citing State v. Puckett, 240 Kan. 393, Syl. p 3, 729 P.2d 458 [1986] ). When evaluating evidence presented at a preliminary hearing, the judge must seriously consider the defendant's defense and pass judgment on the credibility and competency of both the State's and the defendant's witnesses. If there is a conflict in witness testimony that creates a question of fact for the jury, the preliminary hearing judge must accept the version of the testimony which is most favorable to the State. State v. Jones, 233 Kan. 170, 174, 660 P.2d 965 (1983).

In this case, the preliminary hearing judge found that the State failed to meet its burden of proof by establishing that a crime had been committed. In appeals by the prosecution from an order discharging the defendant for lack of probable cause, this court follows the same standard for weighing the evidence as the judge at the preliminary examination. See Bockert, 257 Kan. at 492-93, 893 P.2d 832. This court is to conduct a de novo review of the evidence when considering the trial court's probable cause finding. State v. Martinez, 255 Kan. 464, 465, 874 P.2d 617 (1994).

Under Count I, the State attempted to prove that the defendant intentionally and willfully obtained workers compensation payments from the State by filing a false workers compensation claim. The State argued that the workers compensation claim was false because the injury which the defendant claims to have suffered--a back injury from lifting a briefcase out of the trunk of his car--did not occur or, if it did occur, the defendant did not incur the injury in the manner in which he claims to have incurred it.

Under Count II, the State argues that the defendant made false representations which caused his workers compensation payments to be improperly paid out of the State Self-Insurance Fund, which is funded primarily by taxpayers, instead of being properly paid out of the Second Injury Fund, which is funded primarily by insurance companies. Thus, Count II alleges that the defendant intentionally obtained control over workers compensation payments with the intent to permanently deprive the State Self-Insurance Fund of property by making false representations.

The defendant filed a motion to dismiss the charges, contending that they were barred by the statute of limitations and collateral estoppel. The trial court denied the motion, and the defendant has filed a cross-appeal. Because of our decision on the direct appeal, we do not reach the cross-appeal.

Count I

It is undisputed that the defendant was injured in an automobile accident in 1987. That injury primarily involved the defendant's cervical spine. The defendant also had a degenerative condition in his lower back for which he had received medical treatment. The defendant had filed a Form 88 revealing all of his prior back injuries. This form was available to and in the possession of the State throughout this proceeding and throughout the workers compensation proceeding.

Although the following facts are relevant to Count II, some information regarding the relationship between the State Self-Insurance Fund and the Second Injury Fund will aid in understanding the background of the case and why certain events occurred or did not occur. Thus, the information is provided here.

The State of Kansas has a Self-Insurance Fund (SSIF), which pays workers compensation claims to state employees who are injured on the job. At the time the defendant's injury occurred, all elected state officials were considered state employees. In fact, at least one Kansas governor has made a workers compensation claim which was paid by the SSIF. The money for the SSIF is appropriated by the legislature from State funds.

There is also a Second Injury Fund (the Fund) which is designed to encourage employers to hire injured and handicapped employees. Most of the money for the Fund (approximately 97%) is provided by insurance carriers (the cost is ultimately borne by all employers who purchase workers compensation insurance or who are self-insureds). The State of Kansas contributes approximately 3% of the money in the Fund.

Employers, including the State of Kansas, are careful to file Form 88s when they hire an employee who has a prior injury or handicap. The form is helpfulin relieving their insurance carrier of partial or full...