The City of Ark. CITY v. SYBRANT

• Decision Date: 05 November 2010
• Docket Number: 753.,No. 102,102
• Parties: The CITY OF ARKANSAS CITY, Appellee, v. John SYBRANT, Appellant.
• Court: Kansas Court of Appeals

241 P.3d 581

The CITY OF ARKANSAS CITY, Appellee,

v.John SYBRANT, Appellant.

No. 102,753.

Court of Appeals of Kansas.

Nov. 5, 2010.

COPYRIGHT MATERIAL OMITTED.

Syllabus by the Court

1. A complaint or information is the jurisdictional instrument upon which a defendant is brought to trial; it must allege the essential elements of the charged offenses.

2. Appellate review of an allegedly deficient complaint is unlimited.

3. The proper avenue for challenging an allegedly defective complaint is a motion for arrest of judgment pursuant to K.S.A. 22-3502.

4. When a challenge alleging a defective complaint is raised for the first time on appeal, an aggrieved defendant must establish prejudice in one of three ways: (1) The defective complaint has impaired the defendant's ability to prepare a defense; (2) the complaint would prevent the defendant from raising a double jeopardy defense in a subsequent prosecution; or (3) the complaint limited, in any manner, the defendant's constitutional right to a fair trial.

5. When a criminal defendant challenges a jury instruction on appeal without objecting to the instruction at trial, an appellate court will reverse a conviction and order a new trial only where the instruction is clearly erroneous, meaning that the court is firmly convinced of a real possibility that the jury would have rendered a different verdict if the erroneous instruction had not been given.

6. A jury instruction on the elements of a crime that is broader than the complaint is erroneous and excusable only where the substantial rights of the defendant have not been prejudiced by the error.

7. Circumstantial evidence may support a conviction if the evidence provides a sufficient basis from which a reasonable factfinder could infer the existence of the fact in issue, even if the evidence does not exclude other reasonable inferences.

8. An in-court identification of the defendant is not necessary if the evidence permits an inference that the person on trial is the person who committed the charged offense or offenses.

9. The Sixth Amendment to the United States Constitution provides a personal right of defense to a criminal defendant and, accordingly, protects a criminal defendant's ability to represent himself or herself to the extent that the waiver of the competing right to counsel is found to be knowing and intelligent.

10. There are instances where abuse of discretion standards are more accurately characterized as questions of law requiring de novo review. An abuse of discretion standard does not mean that a mistake of law cannot be corrected by an appellate court. Rather, a district court necessarily abuses its discretion when it makes an error of law. Under the abuse of discretion standard, an appellate court reviews whether the district court's discretion was guided by erroneous legal conclusions.

11. A district court's discretion in denying a late request for self-representation involves a balancing of the alleged prejudice to the defendant arising from the denial of his or her request with the disruption of the proceedings, inconvenience and delay in the proceedings, and juror confusion potentially arising if the request is granted.

12. When considering a criminal defendant's motion for self-representation, a trial court may consider the reasons for the motion for self-representation; the quality of counsel's representation; the length and the stage of the proceedings; and the potential disruption and delay which could be expected from granting the motion.

13. A criminal defendant's lack of legal sophistication is not a valid ground for denying the right to self-representation, even if the denial would be in the defendant's best interests.

14. An erroneous refusal to permit self-representation constitutes structural error.

15. Under the facts and circumstances of this appeal, it is held: (1) the defendant failed to establish prejudice due to the omissions in the charging document; (2) the defendant failed to establish the jury trial instruction was clearly erroneous; (3) the evidence was sufficient to establish the identity of the defendant as the person who committed the offenses; and (4) the record did not support the district court's refusal of the defendant's request for self-representation and constituted structural error.

Larry R. Schwartz, of Arkansas City, for appellant.

Tamara L. Niles, city attorney, Arkansas City, for appellee.

Before RULON, C.J., GREENE, J., and KNUDSON, S.J.

KNUDSON, J.

John Sybrant appeals his convictions of driving under the influence (DUI) of alcohol and failing to maintain a single lane of traffic, arguing that he was convicted of an offense for which he had not been properly charged, that the district court erred in instructing the jury on DUI, that the State presented insufficient evidence of Sybrant's identity as the perpetrator of the charged crimes, and that the district court erred in refusing to honor Sybrant's request for self-representation. We affirm in part, reverse in part, and remand with directions to vacate Sybrant's convictions.

Underlying Circumstances

On August 29, 2005, Lieutenant Mark McCaslin of the Arkansas City Police Department arrested Sybrant for DUI. A blood test revealed that the alcohol concentration in Sybrant's blood exceeded the legal limit of .08 at the time he had been driving.

The City charged Sybrant with DUI and failing to maintain a single traffic lane. Sybrant entered a nolo contendere plea to both counts. He was sentenced by the municipal court to 180 days in jail but required to serve only 5 days, followed by a 12-month term of supervised probation. The court imposed a fine of $1,000 for the DUI conviction and a $60 fine for the failure to maintain a single traffic lane conviction.

Sybrant filed a timely appeal to the district court, requesting a de novo jury trial. Following trial, the jury convicted Sybrant of DUI and failure to maintain a single traffic lane. The district court denied Sybrant's motion to set aside the verdicts and his motion for new trial and affirmed the sentences imposed by the municipal court. Sybrant then filed this appeal.

Was Sybrant convicted of a crime for which he was not properly charged?

Sybrant contends his conviction for DUI must be reversed and vacated because, in granting Sybrant's motion for judgment of acquittal on the State's theory of DUI based upon the alcohol concentration in Sybrant's breath or blood, the district court dismissed the only DUI count charged in the City's amended complaint.

[1] [2] [3] [4] The complaint or information is the jurisdictional instrument upon which a defendant is brought to trial; it must allege the essential elements of the charged offenses. Carmichael v. State, 255 Kan. 10, 12, 872 P.2d 240 (1994). “ ‘An information is the only vehicle by which a court obtains its jurisdiction, and is a limit upon that jurisdiction. Therefore, where the information charges no crime, the court lacks jurisdiction to try the accused.’ ” 255 Kan. at 13, 872 P.2d 240 (quoting 22 C.J.S., Criminal Law § 157, p. 188). Furthermore, if a crime is not specifically stated in the complaint or information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a criminal defendant of the crime. State v. Gonzales, 289 Kan. 351, 367, 212 P.3d 215 (2009).

In this case, the City relied upon the municipal court complaint in Sybrant's appeal to the district court. See City of Wichita v. Maddox, 271 Kan. 445, 454, 24 P.3d 71 (2001) (“[A] district court hearing an appeal from a municipal court does not have to rearraign the accused person on any of the charges and may properly hold the trial on the basis of the municipal court complaint [if it is not required to be amended as allowed by K.S.A. 22-3610(a) ].”). The City's amended municipal court complaint, with respect to the DUI charge, provided:

“1. That on or about the 29th day of August, 2005, the Accused Person John Sybrant, did, within the City Limits of the City of Arkansas City, Cowley County, Kansas, then and there unlawfully commit the offenses of:

“(Count 1) Driving Under the Influence of Intoxicating Liquor or Drugs-Second Offense, in violation of Arkansas City Municipal Code Standard Traffic Ordinance Article 6, Section 30, when the Accused Person operated a motor vehicle in this city while the alcohol concentration in the person's blood or breath was in excess of the legal limit.”

[5] Clearly, the complaint alleged the commission of DUI by operation of a motor vehicle while the alcohol concentration in Sybrant's blood was in excess of .08, but the complaint omits the language of the city ordinance that mirrors state law and permits an alternative charge of DUI to be based on a driver's inability to operate a motor vehicle safely. Therefore, although not precisely framed, Sybrant's appellate argument essentially challenges his conviction on the basis of a defective complaint. Appellate review of an allegedly deficient complaint is unlimited. State v. Reyna, 290 Kan. 666, 675, 234 P.3d 761 (2010).

In response, the City contends that any specificity with respect to the particular subsection of DUI in the complaint is irrelevant because such specificity in pleading is not required in municipal court complaints. Citing State v. Boyle, 21 Kan.App.2d 944, 947, 913 P.2d 617 (1996), the City contends that the amended complaint was adequate because it alleged the offense of conviction.

Boyle involved a municipal court conviction based upon a written citation for DUI that complied with the requirements of K.S.A. 8-2106(b). Noting that K.S.A. 12-4205a specifically allows prosecution of certain misdemeanor traffic offenses upon a citation that complies with K.S.A. 8-2106(b), the Boyle court rejected the defendant's argument that additional specificity was required. 21 Kan.App.2d at 947, 913 P.2d 617.

Contrary to the City's position, the...