State v. Smith

• Decision Date: 27 September 2019
• Docket Number: No. 119,919,119,919
• Citation: 452 P.3d 382,57 Kan.App.2d 312
• Parties: STATE of Kansas, Appellee, v. Lisa A. SMITH, Appellant.
• Court: Kansas Court of Appeals

57 Kan.App.2d 312

452 P.3d 382

STATE of Kansas, Appellee,

v.Lisa A. SMITH, Appellant.

No. 119,919

Court of Appeals of Kansas.

Opinion filed September 27, 2019.

Adam M. Hall, of Thompson Warner, P.A., of Lawrence, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Gardner, P.J., Pierron, J., and Burgess, S.J.

Gardner, J.:

Lisa A. Smith appeals the district court's decision finding that she violated a protection from stalking (PFS) order. Smith argues that the PFS order, as applied, is an unconstitutional prior restraint on her free-speech rights. In the alternative, Smith argues that insufficient evidence shows that she made a disparaging statement "in public," as the PFS order prohibited, since she made the statement to her husband while standing on the doorstep to her home. We find that sufficient evidence shows Smith made the statement publicly. But we agree that the PFS order, as applied, is an unconstitutional prior restraint on her free-speech rights. As a result, we reverse her conviction and vacate her sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Smith lives across the street from Jonathan Perez. The two families apparently have a history of conflict which includes each making criminal allegations against the other. In 2016 or 2017, Smith accused Perez of sexual misconduct with Smith's child. In April 2017, both Smith and Perez received temporary orders of stalking against the other. After a trial in June 2017, the district court denied Smith a final PFS order against Perez but granted Perez a final PFS order against Smith. To get such a civil order, Perez had to prove by a preponderance of the evidence that Smith was stalking him. See K.S.A. 2018 Supp. 60-31a05(a) ; Elem v. Elem , No. 119,774, 2019 WL 1746753, at *5-6 (Kan. App. 2019) (unpublished opinion). But our record on appeal does not include the record from that civil trial.

The PFS order against Smith, in addition to the typical PFS prohibitions on conduct (following, harassing, telephoning, or contacting a named person), added the following special prohibition on speech which Smith challenges here:

"Defendant shall not make direct or indirect disparaging statements in public regarding plaintiff being a child molest[e]r. ‘Public’ includes social media postings. Any such postings made directly or indirectly by defendant shall be removed immediately. This Order authorizes social media entities to remove disparaging postings regarding Plaintiff."

In November 2017, Smith, while entering her residence, turned toward her husband who was standing in their driveway and said, "come inside away from the pedophile." Smith made that statement loudly enough that Perez and his family heard it from their home across the street. Perez also captured the statement through a video and audio surveillance system installed outside his residence.

After being criminally charged with violating the PFS order, Smith moved to dismiss the case. She argued that the PFS order was an unconstitutional, content-based restriction on her free-speech rights and that criminal prosecution under K.S.A. 2017 Supp. 21-5924 for violating the order was unconstitutional as applied to her. The State argued that Smith's speech was not protected by the First Amendment to the United States Constitution, but even if it were, the PFS order passed constitutional muster. The district court held a hearing on Smith's motion to dismiss then denied it.

The parties then tried the case to the bench on stipulated facts. The parties stipulated that the PFS order had been issued, that it was in effect at the time of Smith's statement, and that it prohibited Smith from making disparaging statements in public about Perez being a child molester. They also stipulated to these facts:

"On Thursday, November 23rd, 2017, at approximately 5:00 p.m., Jonathan Perez was standing in the front yard of [his home] with his family. During the time Perez was in the yard, the Defendant arrived home ... with her husband. Both [homes] are located on a residential street. These houses are across the street from one another. While the Defendant was going inside her residence, she turned toward her husband, who was standing in their driveway, and said ‘come inside away from the pedophile.’ This statement was made loud[ly] enough that Perez and his family heard the above statement from across the street."

As exhibits, the State admitted the complaint against Smith and the video of Smith making the statement to her husband.

Smith offered no additional evidence. Instead, she renewed her argument that the PFS order violated her free-speech rights.

She also argued that the State had not met its burden to show that Smith had made the statement "in public." The district court found that the PFS order did not violate Smith's constitutional rights and found beyond a reasonable doubt that Smith had violated the order. It sentenced Smith to 90 days in jail but granted her 12 months' probation. Smith timely appeals.

I. SUFFICIENT EVIDENCE SHOWS SMITH'S STATEMENT WAS MADE IN PUBLIC

We first address Smith's argument that insufficient evidence supports her conviction. This is because "[a]ppellate courts generally avoid making unnecessary constitutional decisions. Thus, where there is a valid alternative ground for relief, an appellate court need not reach a constitutional challenge." State ex rel. Schmidt v. City of Wichita , 303 Kan. 650, Syl. ¶ 3, 367 P.3d 282 (2016).

The PFS order prohibited Smith from publicly accusing Perez of being a child molester. Smith argues that she did not violate this order because she made the statement while on her own property and only to her husband who was also on their property. The State counters that, because Smith's statement was made loudly enough to be heard across the street, it was made in public and it violated the terms of the PFS order.

The standard of appellate review is de novo for cases decided by the district court based upon documents and stipulated facts. State v. Dull , 298 Kan. 832, 840, 317 P.3d 104 (2014). "Where the controlling facts are based on written or documentary evidence or stipulations, this court has as good an opportunity to examine and consider the evidence as did the court below." In re Estate of Lasater , 30 Kan. App. 2d 1021, 1023, 54 P.3d 511 (2002). We apply this standard here.

" ‘When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.’ [Citation omitted.]" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

Smith contends that anything spoken within the curtilage of her home—the area immediately surrounding it— should be considered private. In support of this claim, Smith cites Oliver v. United States , 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). Oliver established that curtilage is considered part of the home itself for Fourth Amendment purposes:

"[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. See also Air Pollution Variance Bd. v. Western Alfalfa Corp ., 416 U.S. 861, 865[, 94 S. Ct. 2114, 2115, 40 L.Ed.2d 607] (1974). This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. The Amendment reflects the recognition of the Framers that certain enclaves should be free from arbitrary government interference. For example, the Court since the enactment of the Fourth Amendment has stressed ‘the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.’ [Citations omitted.]" Oliver , 466 U.S. at 178, 104 S.Ct. 1735.

But this Fourth Amendment concept—that persons may legitimately demand privacy in the curtilage of their homes from arbitrary interference by the government—does not apply here. No Fourth Amendment issue has been raised and none is evident from the facts, which show no government actor.

Smith made a verbal statement loudly enough that her neighbors across the street heard it and their video/audio recording captured it. Smith stipulated to that fact. So even if we were to analyze these facts using a curtilage analysis, Smith's words, although uttered within the safe harbor of the curtilage of her house, carried beyond that curtilage, wafted across the street, and invaded the curtilage of Perez' house. Sufficient evidence shows that Smith made the statement in public.

II. SMITH'S CONSTITUTIONAL QUESTION IS NOT PROCEDURALLY BARRED

Before reaching the merits of Smith's constitutional question, we must address the State's procedural argument that Smith's arguments are not properly made in this appeal. It argues that Smith's real challenge is to the underlying PFS order. Thus Smith should have objected to that order's unconstitutionality at the time the district court issued it—not when the State seeks to criminally enforce its violation. The State asserts that Smith's current claim is a collateral attack to an earlier order. The State concedes that it did not raise this issue below and raises it for the first time on appeal, but it contends that we may reach the merits of this claim because the district court is right for the wrong reason. See State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014).

We agree that based on Phillips , we may reach the merits of the issue. But we resolve the issue against the State. The State cites the collateral bar rule, but that rule prohibits review of the validity of the underlying order in a criminal contempt appeal, subject to exceptions. See ...