State v. Stuber

• Citation: 27 Kan. App.2d 160,1 P.3d 333
• Decision Date: 10 March 2000
• Docket Number: No. 80,074.,80,074.
• Parties: STATE OF KANSAS, Appellee, v. J. SCOTT STUBER, Appellant.
• Court: Court of Appeals of Kansas

27 Kan. App.2d 160

1 P.3d 333

STATE OF KANSAS, Appellee, v. J. SCOTT STUBER, Appellant.

No. 80,074.

Court of Appeals of Kansas.

Opinion filed March 10, 2000.

Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Doyle Baker, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before BRAZIL, C.J., GREEN, J., and WAHL, S.J., assigned.

GREEN, J.:

J. Scott Stuber appeals from his convictions of four counts of unlawful acts in connection with the sale of securities, one count of acting as a broker-dealer without being registered, and one count of offering for sale unregistered securities. On appeal, Stuber argues (1) that his waiver of a jury trial was not voluntary; (2) that the trial court lacked subject matter jurisdiction because the transactions in question are subject to the exclusive jurisdiction of the Commodity Futures Trading Commission (CFTC); (3) that he is entitled to a new trial because the State charged multiple alternative allegations in the counts of unlawful acts in connection with the sale of securities; (4) that venue was lacking on one of the charges; and (5) that the trial court erred in overruling his challenge to his criminal history score. We disagree and affirm.

In December 1992, Stuber attempted to organize a corporation to be called SSI, Inc. An actual corporation was not formed, however, because another corporation had filed under the name "SSI, Inc.," and Stuber made no further efforts to incorporate after learning this fact.

Between July 1993 and January 1994, Stuber solicited funds from Thayne Botterweck, Maurice Bruenger, Larry Farber, and Paul Elder. Stuber told the investors that he was profiting from investments in various commodities and represented he would invest their funds into the SSI, Inc., investment pool in exchange for a percentage of their profits. Stuber solicited more than $90,000 from Elder, $10,000 from Botterweck, $4,500 from Bruenger, and over $90,000 from Farber.

Stuber commingled the investors' money in a checking account with funds from various other sources. An investigator for the Kansas Securities Commission examined records from Stuber's account and discovered that Stuber had invested only $46,400 of the investors' money in the commodities market. Moreover, Stuber did not exclusively trade in commodities but also invested the pooled funds in stocks and mutual funds. Stuber also used the money in the investment account to pay various personal expenses.

Stuber lost all of the investment pool funds, except for $5,000 which was refunded by one broker. However, Stuber managed to deceive the investors by providing most of them with false monthly trading summaries which indicated they were making substantial profits. Botterweck and Elder lost all of the money they gave Stuber to invest. Although Stuber repaid Farber some of his money, Farber's total loss was approximately $55,000. Bruenger did not lose the money he invested, but only because the worthless check Stuber wrote him was not timely processed by the bank, and the bank reimbursed Bruenger for the face amount of the check.

When Stuber solicited money from the investors he was a convicted felon. Stuber did not tell the investors of his convictions when soliciting money from them, nor did he tell them that he was subject to several business-related civil judgments and a federal tax lien. Moreover, Stuber failed to tell the investors that SSI, Inc. was not incorporated under Kansas law, that he intended to use some of the investors' money for purposes other than investment, that he was not a registered broker-dealer, and that he had not registered the securities he was selling.

Significantly, Stuber failed to tell the investors that while he was serving as president of a corporation called Agri-Data in the early 1990's, he lost more than a million dollars of investor money and that a large portion of the investments was lost trading commodities in his personal account. See State v. Stuber, 25 Kan. App.2d 254, 962 P.2d 1104,rev. denied 265 Kan. 889 (1998). In connection with his Agri-Data activities, Stuber was convicted of one count of engaging in business as a broker-dealer without having been registered, one count of offering for sale unregistered securities, and two counts of unlawful acts in connection with the sale of securities. As a result, Stuber was sentenced to 2 to 5 years in the penitentiary and was ordered to pay restitution in an amount exceeding $1.5 million to two defrauded investors. On appeal, however, this court remanded to the trial court to consider the option of community corrections for Stuber.

Before trial in the instant case, Stuber moved to dismiss the charges against him, asserting that the transactions in question involved commodity pools and, as a result, the case was subject to the exclusive jurisdiction of the CFTC. Following a pretrial hearing, the trial court denied the motion to dismiss. Stuber's motion to dismiss was renewed and again overruled at trial.

After a bench trial, Stuber was found guilty of four counts of unlawful acts in connection with the sale of securities and single counts of engaging in business as an unregistered broker-dealer or agent and offering for sale unregistered securities.

Waiver of Right to a Jury Trial

Stuber's first argument on appeal is that he did not voluntarily waive his right to a jury trial. Specifically, Stuber contends that the trial court threatened to deny him an appeal bond if he were convicted following a jury trial. As a result, the issue presented is one of fact, and it is this court's duty to determine whether substantial competent evidence supports a finding that Stuber's waiver of a jury trial was voluntary. See State v. Boan, 235 Kan. 800, 805, 686 P.2d 160 (1984).

A criminal defendant has a constitutional and statutory right to a jury trial. United States Constitution, 6th Amendment; Kansas Constitution, Bill of Rights §§ 5, 10; K.S.A. 22-3403(1). The right, however, may be waived by agreement of the defendant, the prosecuting attorney, and the court. K.S.A. 22-3403(1). For the waiver of the right to a jury trial to be valid, the waiver must be "voluntarily made by a defendant who knew and understood what he was doing." State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975). Moreover, "in order for a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record." 216 Kan. at 590.

Considering the instant case in light of these principles, Stuber was not denied the right to a jury trial. The transcript of Stuber's jury trial waiver indicates that Stuber voluntarily waived his right with an understanding of what he was giving up. In fact, the following discussion between the trial court and Stuber took place at the jury trial waiver hearing:

"THE COURT: Your attorney indicates that you're willing to waive your right to a jury trial in this case. What that means is that if this case goes to trial, it will be tried before a judge and you will be giving up your right to have this case tried before a jury of 12 persons; is that what you wish to do?

"MR. STUBER: Yes, I understand that, Your Honor, and that's, I guess, what I wish to do, yes."

The allegation that the trial court coerced Stuber into waiving his right to a jury trial by threatening to deny him an appeal bond if he was convicted by a jury did not arise during any part of Stuber's trial or at the sentencing hearing. In fact, the allegation surfaced nearly a year after the sentence was pronounced when Stuber raised it as an issue on appeal. As noted in the State's brief, "[s]urely, if the trial court had infringed on one of the defendant's basic constitutional rights, defense counsel would have made an issue of it on the record."

Moreover, Stuber has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. Stuber apparently attempted to comply with Supreme Court Rule 3.04 (1999 Kan. Ct. R. Annot. 23), which provides that if no official record of a proceeding is available "a party to an appeal may prepare a statement of the evidence or proceedings from the best available means, including his own recollection, for use instead of a transcript." Adverse parties may serve objections or propose amendments to the statement and "the statement with objections or proposed amendments shall be submitted to the judge of the district court for settlement and approval, and as settled and approved shall be included in the record on appeal by the clerk of the district court." Stuber, however, failed to comply with Rule 3.04 because the record on appeal does not include one statement settled and approved by the trial court, but rather numerous conflicting letters and affidavits. This court is not a finder of fact and is precluded from judging the credibility of the affidavits and letters. See State v. Noriega, 261 Kan. 440, 446, 932 P.2d 940 (1997). Moreover, if the letter from the trial court constitutes the "settled and approved" statement of the in-chambers discussion, the statement calls into question the validity of Stuber's affidavit. In the absence of a record which affirmatively shows that Stuber's right to a jury trial was violated, this court presumes that the action of the trial court was proper. See State v. Moncla, 262 Kan. 58, Syl. ¶ 2, 936 P.2d 727 (1997).

As a result, this court must focus on the statements made at the waiver hearing in deciding whether substantial competent evidence supports a finding that Stuber voluntarily waived his right to a jury trial. Because the trial court explained to Stuber the rights he was waiving by agreeing to a bench trial and because Stuber orally indicated on the record...