State v. Frias
| Decision Date | 05 November 2021 |
| Docket Number | 122,735 |
| Citation | 61 Kan.App.2d 234,502 P.3d 650 |
| Parties | STATE of Kansas, Appellee, v. Shelby R. FRIAS, Appellant. |
| Court | Kansas Court of Appeals |
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, Wichita, KS, and Derek Schmidt, attorney general, Topeka, KS, for appellee.
Before Gardner, P.J., Hill and Hurst, JJ.
A jury convicted Shelby R. Frias of mistreatment of an elderly person for financial crimes against her stepmother, Yvonne Emery, between May 2015 and March 2017.
After her trial, Frias' attorney moved for a new trial or judgment of acquittal, and Frias moved pro se for a new trial and to appoint new counsel. The district court denied both motions then sentenced Frias to 32 months' imprisonment followed by 24 months' postrelease supervision, and imposed restitution in the amount of $54,853.15.
Frias appeals, arguing the jury lacked sufficient evidence to find her guilty beyond a reasonable doubt of mistreating an elderly person. But the record shows sufficient evidence, viewed in the light most favorable to the prosecution, for a rational fact-finder to find Frias guilty beyond a reasonable doubt. Frias also argues the district court erred by failing to give an affirmative defense instruction. Yet the affirmative defense instruction was neither legally nor factually appropriate. Frias argues that the district court abused its discretion in denying her motion for substitute counsel, yet we are unpersuaded. And finally, she argues the district court erred by imposing restitution without an accompanying payment plan. But the district court did order a restitution payment plan at sentencing. For all these reasons, we affirm.
Yvonne Emery once worked as the director of human resources and civilian personnel on McConnell Air Force Base. But as she aged, her health declined. She lived at an assisted living facility for 10 years, but after a hospital stay, she moved to the Legacy care home in Wichita in May or June 2015. About two years later, an investigation revealed that Emery's bill at Legacy had been mostly unpaid since 2015, putting her in arrears of around $77,000.
After an investigation, the State charged Frias with mistreating an elder person, a level 5 person felony under K.S.A. 2014 Supp. 21-5417(b)(1)(A) and (d)(1)(D), and theft under K.S.A. 2014 Supp. 21-5801(a)(1). Frias entered a plea agreement but later moved to withdraw her plea, and the district court allowed her to do so. At the jury trial, the State dismissed the theft charge and tried only the charge of mistreatment of an elder person.
Frias testified that she had spent Emery's money only as Emery wanted her to. She and her sister testified on her behalf. To the contrary, the State's witnesses testified that Emery, who had passed away before trial, had told Frias to take care of Emery's bills first, and then to ask permission before spending more of her money. Both theories were supported by evidence.
The jury convicted Frias of financial mistreatment of an elder person by false pretenses. Frias' attorney, Quentin Pittman, then moved for a new trial or a judgment of acquittal. Frias sent a letter to the district court before sentencing alleging deficient representation by Pittman and asking for new counsel.
The district court held a motions hearing just before sentencing. The district court, which had read Frias' letter, asked why she wanted new counsel. Frias responded at length but without specificity. The district court then asked Pittman whether he wanted to respond and Pittman replied only that he believed he did not need a client's permission to file appropriate motions. Pittman did not seek to withdraw. The district court denied Frias' request for new counsel because it could not find a "legal basis" to order new counsel.
The district court then heard Pittman's arguments on the motion for a new trial or judgment of acquittal and denied the motion, as well as Frias' pro se motion for a new trial.
Sentencing followed. The State argued that because of Emery's vulnerability and the purpose of the mistreatment of an elder person statute, Frias should serve the presumptive jail sentence. Defense counsel argued that the district court should impose probation because Frias was a first-time offender who posed no risk to the community and had no history of substance abuse. He also blamed Frias' acts on her ignorance, rather than her intentional behavior. Frias asked for probation so she could continue to work, support her children, maintain her home, and repay the State's requested restitution.
Because Frias refused to admit wrongdoing and offered no evidence supporting mitigating factors, the district court found it was bound to sentence her within the sentencing grid and could not depart to probation. The district court thus ordered Frias to serve 32 months in prison followed by 24 months' postrelease supervision. It also imposed restitution totaling $54,853.15.
Frias timely appeals.
Frias first contends that the evidence was insufficient to show that she took Emery's financial resources through "false pretense," as the statute required.
When an appellant challenges the sufficiency of the evidence, we review the evidence in a light most favorable to the State to determine whether we are convinced a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). We do not " ‘reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.’ " 307 Kan. at 668, 414 P.3d 713 (quoting State v. Lloyd , 299 Kan. 620, 632, 325 P.3d 1122 [2014] ). But if the insufficiency argument rests on questions of statutory interpretation, we exercise unlimited review because statutory interpretation is a question of law. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
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). An appellate court must first try to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Ayers , 309 Kan. 162, 164, 432 P.3d 663 (2019).
K.S.A. 2014 Supp. 21-5417(b)(1)(A) defines the crime:
The Legislature intended K.S.A. 2014 Supp. 21-5417 "to criminalize a wide range of ways to divert or take the financial resources of [an elder person] ...." State v. Mayfield , No. 121,552, 2021 WL 935715, at *2 (Kan. App.) (unpublished opinion), rev. denied 313 Kan. 1044 (2021). One of those ways is by using "false pretense."
The parties do not dispute that Emery was an "elder person" within the protection of the statute. See K.S.A. 2014 Supp. 21-5417(g)(3). Nor do they dispute that Frias knowingly took and used Emery's financial resources for her own benefit. See K.S.A. 2014 Supp. 21-5417(b)(1). But Frias contends that she did not do so through "false pretense," the sole means charged by the State and prohibited by statute. See K.S.A. 2014 Supp. 21-5417(b)(1)(A).
This statute does not define "false pretense." Nor did the district court define it for the jury. Frias argues that caselaw also lacks a definition for that term. Yet Frias cites the time-honored case of State v. Handke , 185 Kan. 38, 340 P.2d 877 (1959). That case referenced a wordy definition from 35 C.J.S. False Pretenses § 6, p. 644 :
" ‘Generally speaking, to constitute the crime of obtaining property by false pretenses there must be a false representation or statement of a past or existing fact, made by accused or someone instigated by him, with knowledge of its falsity and with intent to deceive and defraud, and adapted to deceive the person to whom it is made; and there must be, further, a reliance on such false representation or statement, an actual defrauding, and an obtaining of something of value by accused or someone in his behalf, without compensation to the person from whom it is obtained.’ " 185 Kan. at 43, 340 P.2d 877.
Handke thus required a misrepresentation of a past or present fact—future events or promises were not sufficient. The Handke court found sufficient evidence of false pretenses when, to get a client's business, a man represented himself to be in a situation or business that he was not in. 185 Kan. at 43-44, 340 P.2d 877.
More recently, a panel of our court examined the current statute and its "false pretense" element. Mayfield , 2021 WL 935715, at *3. The panel found that "false pretense" requires a person's misleading or deceptive representation made to obtain something of value from another:
2021 WL...
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