State v. Donlay

853 P.2d 680, 253 Kan. 132, 26 A.L.R. 5th 854, 5 A.L.R. 2206, 1993 Kan. LEXIS 99
CourtSupreme Court of Kansas
DecidedMay 28, 1993
Docket68,293
StatusPublished
Cited by145 cases

This text of 853 P.2d 680 (State v. Donlay) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Donlay, 853 P.2d 680, 253 Kan. 132, 26 A.L.R. 5th 854, 5 A.L.R. 2206, 1993 Kan. LEXIS 99 (kan 1993).

Opinions

The opinion of the court was delivered by

Abbott, J.:

This is a direct appeal by the State from an order dismissing the complaint (K.S.A. 22-3602[b][l]).

Robert C. Donlay was charged with aggravated false impersonation under K.S.A. 21-3825 (class E felony). Donlay showed another individual’s driver’s license and signed that person’s name [133]*133to the tickets he received when a state trooper stopped Donlay for speeding and for a seat belt violation. The trial court dismissed the charge, reasoning that Donlay should have been charged with the more specific crime of unlawful use of a driver’s license, K.S.A. 8-260(a)(3) (class B misdemeanor).

Based upon the driver’s license produced and the signature on the tickets, the trooper believed he had issued tickets to Matthew

J. Jacobs. The two tickets were filed in Reno County District Court. Jacobs did not appear on the appearance date, and the trial court entered a plea of not guilty on behalf of Jacobs. Trial was set for a specific time and a notice to appear was sent to Matthew J. Jacobs.

Jacobs contacted the prosecutor, obtained the ticketed car’s license number, produced alibi evidence, and told the prosecutor the tickets actually belonged to Donlay. The State dismissed the charges against Jacobs.

The State then filed a complaint against the true driver, Don-lay, for aggravated false impersonation, contrary to K.S.A. 21-3825. At the preliminary hearing, the trooper testified Donlay had not represented himself as Jacobs at any time after he handed Donlay the citation.

The trial court ruled it was inappropriate to charge Donlay under K.S.A. 21-3825 because a more specific statute, K.S.A. 8-260, is available that deals with the particular action. The trial court reasoned Donlay should have been charged under K.S.A. 8-260(a)(3), which states in pertinent part:

“(a) It shall be unlawful for any person, for any purpose, to:
“(3) Display or represent as the person’s own, any driver’s license not issued to the person.”

Consequently, the trial court dismissed the aggravated false impersonation charge. Rather than file a misdemeanor charge under K.S.A. 8-260(a)(3), the State appealed.

Two issues are briefed: whether Donlay could be charged with a violation of either or both K.S.A. 21-3825(d) and K.S.A. 8-260(a)(3) and whether K.S.A. 21-3825(d) is applicable under the facts of this case.

The second issue was not considered or raised in the trial court. However, “ ‘[interpretation of statutes is a question of law.’ ” [134]*134Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). In addition, “[t]he judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.” State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).

A majority of this court finds the language in K.S.A. 21-3825(d) dispositive of this appeal. That statute provides in pertinent part:

“Aggravated false impersonation is falsely representing or impersonating another and in such falsely assumed character:
“(d) Doing any other act in the course of a .. . prosecution whereby the person who is represented or impersonated may be made liable to the payment of any . . . costs . . ., or his rights may be in any manner affected.” (Emphasis added.)

The question then becomes when does “in the course of a prosecution” commence? Is it when a crime is committed and an investigation begins, or is it when charges are filed with a court of competent jurisdiction? In this case, an argument can be made that it is somewhere in between, i.e., when the ticket was issued based upon exhibiting someone else’s driver’s license and upon signing the ticket with the other person’s name.

The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984).

K.S.A. 21-3825(d) prohibits “[d]oing any other act in the course of a suit, proceeding or prosecution.” (Emphasis added.)

A “suit” is a proceeding in a court for the enforcement of a right. It would not include the investigatory phase in preparing to file a suit. See United States v. Safeway Stores, 140 F.2d 834, 838 (10th Cir. 1944); Dobbins et al. v. First Nat. Bank, 112 Ill. 553, 566 (1884); Drake v. Gilmore et al., 52 N.Y. 389, 394-95 (1873).

[135]*135Additionally, Black’s Law Dictionary 1434 (6th ed. 1990) defines “suit” as:

“A generic term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of law in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. [Citations omitted.] It is, however, seldom applied to a criminal prosecution.”

Black’s Law Dictionary 1204 (6th ed. 1990) also defines “proceeding”:

“In a general sense, the form and manner of conducting juridical business before a court or judicial officer.

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Cite This Page — Counsel Stack

Bluebook (online)
853 P.2d 680, 253 Kan. 132, 26 A.L.R. 5th 854, 5 A.L.R. 2206, 1993 Kan. LEXIS 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donlay-kan-1993.