State v. Richmond

• Docket Number: 124,973
• Decision Date: 23 June 2023
• Parties: State of Kansas, Appellee, v. Brian Steven Richmond, Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee, v. Brian Steven Richmond, Appellant.

No. 124,973

Court of Appeals of Kansas

June 23, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; ROBERT G. SCOTT, magistrate judge. Affirmed.

Brian Richmond, appellant pro se.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., HURST and COBLE, JJ.

MEMORANDUM OPINION

PER CURIAM:

Brian Steven Richmond appeals his conviction for driving on a suspended license in violation of K.S.A. 2020 Supp 8-262(a)(1). Interpreting Richmond's pro se appellate brief broadly, he asserts three general categories of claims (1) the district court misinterpreted K.S.A. 2020 Supp 8-262(a)(1); (2) he has a fundamental right to drive for personal pleasure; and (3) the State violated his due process rights by not disclosing evidence upon request. Finding no error, this court affirms.

FACTUAL AND PROCEDURAL BACKGROUND

As an initial matter, the record on appeal relied upon by both Richmond and the State appears to contain an unofficial trial transcript. In his pro se pleadings, Richmond alleges that he prepared the transcripts because an official transcript of the proceedings was not prepared:

"Brian Richmond presenting himself In Pro Per will not be requesting transcripts due to the fact that a full and complete copy cannot be created as the person, or persons responsible for meeting the obligation both by statute and oath of office to record proceeding for the official record failed to do so. At this time . . . is refusing to provide an affidavit to address the failure to fully capture the proceedings."

However, pursuant to Kansas Supreme Court Rule 3.04(a) (2023 Kan. S.Ct. R. at 24), Richmond apparently prepared a transcript of the proceedings recreated from his memory and a partial audio file that he allegedly received from the court reporter.

Rule 3.04(a) provides:

"If the transcript of a hearing or trial is unavailable, a party to an appeal may prepare a statement of the evidence or proceedings from the best available means, including the party's own recollection, for use instead of a transcript. The statement must be served on all parties, who may serve an objection or proposed amendment no later than 14 days after being served. The statement and any objection or proposed amendment then must be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the clerk of the district court in the record on appeal."

The record is scant on details of whether this transcript was approved by the district court in accordance with the procedures of Rule 3.04(a). However, it was included with the record on appeal and is relied upon by the State in its briefing. Given the parties' apparent agreement on the accuracy of Richmond's self-prepared trial transcript and its inclusion in the record on appeal, this court will rely upon the self-prepared transcript as it would an official transcript.

There appears to be no disagreement on the facts relevant to this appeal. On February 20, 2018, the State suspended Richmond's driver's license and mailed him notification of such suspension. On March 2, 2021, while his driver's license was still suspended, Richmond was involved in a car accident while driving his 2006 Chevrolet Trailblazer westbound on Interstate 435 (I-435) in Johnson County. Following the accident, Richmond called the Kansas Highway Patrol to request assistance. After responding to the accident, the highway patrol troopers discovered that Richmond's driver's license was suspended.

Richmond was subsequently charged with one count of driving while his license was suspended, a class B nonperson misdemeanor. See K.S.A. 2020 Supp. 8-262(a)(1). On January 20, 2022, the district court conducted a bench trial at which Richmond represented himself and both Richmond and the responding highway patrol trooper testified. On cross-examination by Richmond, the trooper testified, "We have a video of you driving on interstate I435." The district court ultimately found Richmond guilty of driving while his license was suspended, and Richmond appealed.

DISCUSSION

In his pro se brief, Richmond presents four claims that can best be summarized as:

(1) The district court erred in its application of the law;

(2) the State withheld evidence in violation of Brady v Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963);

(3) the district court erred in the application of the facts to the law; and (4) a constitutional challenge to construction of the statute that applies to driving for personal pleasure.

The State argues that Richmond's first and third issues should be consolidated and interpreted as a challenge to the sufficiency of the evidence. Although this court agrees that the two issues should be consolidated, it interprets them both as challenges to the district court's interpretation and application of K.S.A. 2020 Supp. 8-262(a)(1).

I. THE DISTRICT COURT DID NOT ERR IN ITS INTERPRETATION OF K.S.A. 2020 SUPP. 8-262(a)(1)

This court exercises unlimited review over questions of statutory interpretation. State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158 (2021). When interpreting a statute, this court must give effect to the Legislature's intent as expressed in the language of the statute. State v. LaPointe, 309 Kan. 299, 314, 434 P.3d 850 (2019). This endeavor ordinarily begins and ends with the text of the statute, and requires that the court give "common words their ordinary meaning." State v. Pulliam, 308 Kan. 1354, 1364, 430 P.3d 39 (2018); see State v. Ayers, 309 Kan. 162, 163-64, 432 P.3d 663 (2019). "'When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it.'" Pulliam, 308 Kan. at 1364 (quoting State v. Keel, 302 Kan. 560, Syl. ¶ 6, 357 P.3d 251 [2015]).

In relevant part, K.S.A. 2020 Supp. 8-262(a)(1) provides that "[a]ny person who drives a motor vehicle on any highway of this state at a time when such person's privilege so to do is . . . suspended . . . shall be guilty of a class B nonperson misdemeanor on the first conviction." This court finds no ambiguity in this statute. Using the common meaning of the terms "drive," "motor vehicle," and "highway"-which need not be defined here-the statute clearly criminalizes Richmond's conduct. See Keel, 302 Kan. at 571-72 (noting that in statutory interpretation, courts must give common words their ordinary meaning). Richmond (a person) drove his 2006 Chevrolet Trailblazer (a motor vehicle) on I-435 in Johnson County (a highway of the State of Kansas) on March 2, 2021 (a time when his driver's license was suspended).

Despite the clear meaning of the statute's plain and unambiguous text, Richmond argues that his conduct did not fall within the statute's prohibition because he was "traveling," not "driving." According to Richmond, "driving" entails "accessing the public roads to engage in commercial activity(ies)," while "traveling" entails "accessing the public roads for personal pleasure." Therefore, according to Richmond, because he was not operating a motor vehicle on a Kansas highway for a commercial purpose, he was not "driving." Richmond points to no legal authority to support his unique interpretation of the statute or definition of the word "driving."

While Chapter 8 of the Kansas Statutes Annotated does not define the term "drives," it is a common word, not an obscure legal term of art. The ordinary meaning of the word "drives" is not limited to maneuvering a motor vehicle to engage in commercial activity, although it would include those activities. Contrary to Richmond's proposition, the ordinary meaning of the word "drives" includes operating a motor vehicle for leisure or other noncommercial activities. Dictionary definitions predictably support this ordinary meaning. For example, Black's Law Dictionary 625 (11th ed. 2019) defines "driving" as "[t]he act of directing the course of something, such as an automobile or a herd of animals." And it defines "driver" as "[s]omeone who steers and propels a vehicle." Black's Law Dictionary 624 (11th ed. 2019).

The Kansas Supreme Court has interpreted the statute at issue and explained:

"It is clear that the statute makes it unlawful to drive a vehicle on the highways when the license to so drive has been suspended. The legislature made no exceptions, and the question of intent is not involved, and the motive or the circumstances under which the driving took place are immaterial." (Emphasis added.) State v. Merrifield, 180 Kan. 267, 269, 303 P.2d 155 (1956).

Merrifield was convicted of driving while his license was suspended-even though he was not operating a motor vehicle for commercial purposes-and the Kansas Supreme Court affirmed that conviction. 180 Kan. at 268. Common sense, and the court's decision in Merrifield, foreclose Richmond's imaginative construction of K.S.A. 8-262. Additionally, a panel of this court has rejected an argument similar to Richmond's here. See State v. Hershberger, 27 Kan.App.2d 485, 492-94, 5 P.3d 1004 (2000). In Hershberger, the defendant argued that "the State had no authority to charge him with driving on a suspended license because he was using his car for personal and not commercial purposes," but a panel of this court nevertheless affirmed his conviction. 27 Kan.App.2d at 492.

The rest of the statutory terms are similarly unambiguous. "Motor vehicle" is defined as "every vehicle other than a motorized bicycle or a motorized wheelchair, that is self-propelled." K.S.A. 2020 Supp. 8-126(v). Richmo...