State v. Woolverton, 93,751.

• Decision Date: 08 June 2007
• Docket Number: No. 93,751.,93,751.
• Parties: STATE of Kansas, Appellee, v. Ian WOOLVERTON, Appellant.
• Court: Kansas Supreme Court

159 P.3d 985

STATE of Kansas, Appellee, v. Ian WOOLVERTON, Appellant.

No. 93,751.

Supreme Court of Kansas.

June 8, 2007.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

Ian Woolverton petitioned this court to review the Court of Appeals' decision upholding his convictions of criminal threat and telephone harassment in State v. Woolverton, 35 Kan.App.2d 478, 131 P.3d 1253 (2006). Woolverton asserts that the district court erroneously admitted evidence regarding his prior conviction for criminal threat against the victim, Cathy Rotski; that the State of Kansas does not have jurisdiction; and that his statements to police should have been suppressed because he was never informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966).

Woolverton's convictions are the result of a domestic dispute that began over parenting time. Woolverton and Cathy Rotski are the parents of a child born in February 2002. A few months later, in June 2002, Woolverton moved into an apartment in Kansas City, Missouri, with his new girlfriend, Melinda Edwards. Rotski, who lived in Prairie Village, Kansas, maintained physical custody of the child and allowed Woolverton to visit with the child from time to time if he arrived promptly for the visit.

On December 24, 2003, Edwards spoke with Rotski on the telephone regarding an opportunity for Woolverton to visit his child during the Christmas holidays. Edwards understood that either Woolverton or Rotski would call on December 26th to make arrangements for the visit. Rotski, on the other hand, understood that Woolverton would be at her house to visit with the child at 10 a.m. on December 26th.

When Woolverton had not arrived at her house by 10:10 or 10:15 a.m. on December 26th, Rotski called Woolverton at Edward's apartment. Rotski's call woke Woolverton and Edwards. Edwards answered the phone and immediately handed it to Woolverton when she heard Rotski angrily ask, "Where's he at?" When Woolverton took the phone, Rotski called Woolverton a motherfucker, then yelled and cussed at him while informing him that his visit was cancelled. Woolverton angrily yelled and cussed at Rotski, calling her a slut and a whore. When Rotski told Woolverton that he would never see his child again, Woolverton shouted, "I will fucking kill you."

Rotski hung up the phone, and Woolverton immediately called her back. According to Rotski, Woolverton called Rotski approximately eight times within a 30-minute time period. Rotski refused to answer three of the calls, and Woolverton left three messages on Rotski's telephone answering service (Call Notes). Although Woolverton did not threaten Rotski in any of the messages, he continued to call Rotski names and use abusive and profane language.

Rotski immediately called the Prairie Village police and reported the phone calls. A Prairie Village detective responded within a few minutes to Rotski's house and talked to Rotski, who appeared to be a little annoyed and upset but not distraught. The police officer made a recording of the three messages.

On December 30, 2003, two Prairie Village detectives went to Edward's apartment in Kansas City, Missouri, to interview Woolverton. The detectives asked to talk with Woolverton, who suggested that they talk in the stairwell of the apartment building. The detectives told Woolverton that he would not be arrested and could return to his apartment after the interview. Although Woolverton initially denied threatening Rotski, he later admitted that he had threatened to kill her. Woolverton also admitted making three other calls to Rotski and leaving messages on her Call Notes.

During Woolverton's interview with the detectives, Edwards peeked her head into the stairwell to check on Woolverton. Woolverton advised her that everything was fine and he would return to the apartment soon.

The State charged Woolverton with one count of criminal threat and one count of telephone harassment. Woolverton filed a motion to suppress his confession, arguing that he had not been given Miranda warnings. Following a hearing, the district court denied Woolverton's motion.

Woolverton also filed a motion in limine, seeking to prevent the State from introducing evidence of Woolverton's prior conviction for criminal threat against Rotski. At a hearing on Woolverton's motion, the State agreed not to introduce Woolverton's prior conviction because it was not relevant.

At trial, the State presented evidence from the Prairie Village police detectives and Rotski. Woolverton attempted to admit evidence to establish his discordant relationship with Rotski regarding their child, but the district court limited the evidence to the most recent disputes between Woolverton and Rotski. Edwards testified on behalf of Woolverton and admitted overhearing Woolverton angrily threaten to kill Rotski.

Woolverton also testified, admitting that he threatened to kill Rotski and stating that he was upset because Rotski said she would run from state to state to prevent him from seeing his child. During the State's cross-examination of Woolverton, the prosecutor asked Woolverton if he had ever threatened Rotski before. When Woolverton responded that he had never threatened Rotski before, the district court, over Woolverton's objection, allowed the State to inquire about Woolverton's prior conviction for criminal threat against Rotski to impeach Woolverton's credibility.

A jury found Woolverton guilty of criminal threat and telephone harassment. The district court sentenced Woolverton to 12 months probation and required Woolverton to serve 30 days in jail on the criminal threat charge. For the telephone harassment charge, the district court ordered Woolverton to serve 12 months probation concurrent with his sentence for criminal threat.

Woolverton appealed his convictions, and the Court of Appeals affirmed them in Woolverton, 35 Kan.App.2d 478, 131 P.3d 1253. The matter is now before us on Woolverton's petition for review.

Admission of Woolverton's prior conviction

Woolverton claims that the district court improperly admitted evidence of his prior conviction for criminal threat. Woolverton asserts that the evidence was admitted in violation of K.S.A. 60-455. Woolverton's claim is linked to the following testimony during Woolverton's direct examination:

"Q. When you finished the three phone calls to Miss Rotski, how did you feel?

"A. Like crap because the fact that I just stooped to her level because I'm used to her yelling at me and I don't yell back. My theory is I kill her with kindness because she's always screaming in the telephone at me. And so I had lost my cool and I stooped to her level."

Based on this response, the following colloquy occurred between Woolverton and the prosecutor during Woolverton's cross-examination:

"Q. Let's move on. You testified on direct that you never stooped to her level; is that right.

"A. I did my very best not to.

"Q. That's not what you said. You said you would never stoop to her level?

"A. If you were listening right beforehand, I admitted I did stoop to her level.

"Q. Right. On December 26?

"A. Yes, I did.

"Q. How about before that?

"A. Never.

"Q. Never?

"A. Never.

"Q. Never threatened her?

"A. Never."

After Woolverton's response, the prosecutor requested that the jury be excused, so he could address the court. The court permitted a bench conference, and the prosecutor requested permission to admit Woolverton's prior conviction for criminal threat against Rotski, arguing that it was "absolutely completely within the purview of me bringing up that conviction." Woolverton's counsel objected, stating that the evidence was irrelevant. Nevertheless, the district court judge granted the State's oral motion without further argument, simply stating, "I'm going to allow it."

Following the bench conference, the prosecutor asked Woolverton if he had previously been convicted of criminal threat against Rotski based on a guilty plea. Woolverton's counsel again objected, and the objection was overruled. Woolverton then admitted that he had previously pled guilty to one count of criminal threat against Rotski.

The first step in considering a challenge to the admission of evidence is to determine whether the evidence is relevant. State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). Relevance is established by some material or logical connection between the asserted fact and the inference or result it is intended to establish. Gunby, 282 Kan. at 47, 144 P.3d 647.

The second step in considering a challenge to the admission of evidence is the application of the evidentiary rules. An appellate court reviews the application of the evidentiary rules either as a question of law or an abuse of discretion depending on the contours of the rule in question. 282 Kan. at 47, 144 P.3d 647. When the issue involves the adequacy of the legal basis for the district court's decision, the issue is reviewed using a de novo standard. 282 Kan. at 47-48, 144 P.3d 647.

Although the State had previously agreed not to introduce Woolverton's prior conviction because it was not relevant to its case in chief, the State sought to admit it on cross-examination to impeach Woolverton's credibility. Evidence to impeach a witness' credibility is relevant. However, the admission of another crime to impeach a witness' credibility is governed by K.S.A. 60-421, which provides:

"Evidence of the conviction of a witness for a crime not involving dishonesty or false...