State v. Dunn

Citation304 Kan. 773,375 P.3d 332
Decision Date15 July 2016
Docket Number106,587,106,586
Parties State of Kansas, Appellee, v. Jerold Michael Dunn, Appellant.
CourtUnited States State Supreme Court of Kansas

304 Kan. 773
375 P.3d 332

State of Kansas, Appellee,
Jerold Michael Dunn, Appellant.


Supreme Court of Kansas.

Opinion filed July 15, 2016

Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Stephen P. Jones, deputy county attorney, argued the cause, and Hillary McKinney, county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Beier, J.:

Defendant Jerold Michael Dunn appeals his convictions on one count of forgery and one count of stalking. For the first time on appeal, he urges us to abandon the analytical structure erected by State v. Hall , 246 Kan. 728, 760–61, 764–65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State , 276 Kan. 428, 78 P.3d 40 (2003), and argues that the charging document's failure to allege all of the elements of the crime of forgery deprived the court of subject matter jurisdiction. Dunn also challenges the sufficiency of the evidence on his stalking conviction.

On the way to resolution of these issues, we revisit and realign the Kansas approach to charging document sufficiency. We conclude that charging documents do not bestow or confer subject matter jurisdiction on state courts, and thus they need not allege every element of a crime in order to invoke a district court's subject matter jurisdiction or sustain an appellate court's jurisdiction. However, omission of certain information from a charging document

304 Kan. 775

may give a criminal defendant a successful claim for relief that will take various forms at various stages

375 P.3d 336

of a prosecution before the district court and on appeal.

Ultimately, under the revised pattern of analysis we describe today, we affirm both of Dunn's convictions.


Each criminal defendant is entitled to a fair trial. But there are few, if any, perfect trials. This is inevitable because trials are human endeavors.

The essential task of an appellate court when reviewing criminal cases is discerning which proceedings are so imperfect that they are unfair. Certainly, there are singular, critical aspects of a prosecution that cannot be done wrong or done without. Error affecting other aspects can be disregarded as long as the appellate court possesses a specified level of confidence that the error made no difference.

This court has been vexed for many years by difficulties in distinguishing one from the other when it comes to error in charging documents in criminal cases. Are such errors potentially fatal to subject matter jurisdiction? If so, how do we tell when they are so imperfect that jurisdiction is implicated? Even if charging documents are not jurisdictional instruments, how do we tell when they are so imperfect that they have failed to fulfill their function of informing the defendant about the crime alleged so that he or she can challenge the State's case?

We have state constitutional provisions that shed some light on this subject. We have statutes designed to tell us what must be in a complaint, information, or indictment—the three charging documents conventionally employed in Kansas. And we have dozens and dozens of cases that have wrestled with the nature and content of charging documents, cases nearly as old as the state and as fresh as today's blog post. These cases are listable and describable, but not all are amenable to seamless or even sensible synthesis, the lawyer's stock in trade.

One case, in particular, has been the bane of the criminal defense lawyers' existence for more than 25 years: State v. Hall , 246 Kan. 728, 793 P.2d 737 (1990). Today defendant Dunn urges us to

304 Kan. 776

reject Hall, at least to the degree that it made it more difficult for defendants to mount a successful jurisdictional challenge based on charging document error raised for the first time on appeal. Dunn argues that this part of Hall has never made sense. Subject matter jurisdiction exists or it does not, and all parties and the court are independently charged with ensuring that it does exist before disposing of any other issue in a case. Dunn insists that the timing of raising the question matters not one whit.

After comprehensive study, we have determined that it has been too easy to point out this flaw in Hall and apparently almost impossible for this court and those who come before it to appreciate its other, substantial virtues. Today we review what led this court to Hall and to a recent partial retreat from it, examining historic Kansas constitutional, statutory, and caselaw developments. We attempt to preserve what was good in Hall and say goodbye to its logical and legal infirmities.

Factual Background

During a break in their on-again-off-again relationship, defendant Dunn and Tracy Shaw, who had obtained a protection order against Dunn, encountered one another at a bank in Parsons. Shaw visited the bank daily as part of her job as a courier. According to bank employees, Dunn had been wandering around outside the bank before Shaw's arrival, and he eventually entered the bank, inquired about opening a checking account, and then appeared to leave. Shaw arrived some time later. While she was inside, Dunn reappeared and approached the bank's glass front doors. When Dunn waved at Shaw, a bank employee heard Shaw say, “That's harassment,” and Shaw appeared to be “nervous and afraid, scared, upset.” The employee offered Shaw the use of a telephone to call police, but Shaw declined.

Once it appeared that Dunn had again departed, Shaw left the bank to go to her car. As she was walking toward it, Dunn reappeared and positioned himself between Shaw and her car door. From inside the

375 P.3d 337

bank, the employee saw Dunn get “right into [Shaw's] face, and ... point[ ] his finger.” The employee said that Dunn “looked real mad” at Shaw.

304 Kan. 777

Shaw would eventually testify that she was afraid and felt unsafe during this encounter with Dunn at the bank. Shaw also testified on direct examination about statements Dunn made to her at the time of the confrontation near her car; but she said she could not remember those statements during cross-examination. As a result of Shaw's memory lapse, the district judge struck her earlier direct examination testimony about Dunn's statements.

A month after the bank encounter, Dunn and Shaw reunited, and Shaw sought to have the protection order lifted.

A few weeks later, Dunn went to a smoke shop to buy cigarettes. Dunn presented the cashier with a prewritten check drawn on Shaw's bank account. The cashier told Dunn that the signature on the check was in the wrong place; it appeared on the check's memo line rather than on its signature line. Dunn then signed “Tracy Alford,” the other name by which Shaw is known, on the check's signature line. According to Shaw, she never authorized Dunn to use her check for this smoke shop transaction.

Procedural Background

The State charged Dunn with various offenses in four separate cases. In Case 09 CR 333, the multiple charges were for forgery and theft. Count 8 in the eventual Amended Complaint/Information stated:

“That on or about the 27th day of July, 2009, in Labette County, Kansas, Jerold M. Dunn, then and there being present did unlawfully, feloniously and knowingly issue[ ] or deliver[ ] a check (#1050) which he/she knew had been made, altered or endorsed so that it appeared to have been made, in violation of K.S.A. 21–3710 and against the peace and dignity of the State of Kansas. (Forgery–Passing) Severity level 8 Non-person Felony, (7–23 months).”

In Case 09 CR 210, the State charged Dunn with one count of stalking, based on his behavior at and outside the bank.

All four cases were consolidated and tried to the bench. Dunn was convicted on Count 8 of forgery in Case 09 CR 333, on the stalking count in Case 09 CR 210, and on two counts of violation of the protection order that were part of Case Nos. 09 CR 203 and 09 CR 398. The protection order counts are not at issue in this appeal.

Dunn appealed only his forgery and stalking convictions to the

304 Kan. 778

Court of Appeals. On the forgery conviction, he argued for the first time on appeal that Count 8 lacked multiple elements required by the statute defining the crime, K.S.A. 21–3710. He argued that the count “lack[ed] any language alleging the essential element of an ‘intent to defraud.’ ” He also argued that the count failed to specify any of the listed statutory means of committing the act of forgery and failed to allege that Dunn lacked authority to use the check as he had. These charging document defects prejudiced the preparation of Dunn's defense “because he could not reasonably be expected to defend himself against charges of a noncrime,” impaired his ability to plead any conviction in a subsequent prosecution “because there was no way to know what act of his could reasonably have been considered criminal under the statute,” and...

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