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State v. Woolverton

June 8, 2007

STATE OF KANSAS, APPELLEE,
v.
IAN WOOLVERTON, APPELLANT.



Appeal from Johnson district court; JOHN P. BENNETT, judge.

SYLLABUS BY THE COURT

1. K.S.A. 60-421 prevents the State from using a defendant's prior convictions for impeachment unless the defendant opens the door by introducing evidence that he or she is credible. A criminal defendant does not place his or her credibility in issue merely by taking the witness stand.

2. The harmless error rule found in K.S.A. 60-261 applies to the erroneous admission of evidence.

3. Appellate courts review questions of subject matter jurisdiction using a de novo standard of review.

4. The term "communicate" as used in K.S.A. 2006 Supp. 21-3419(a) requires a declarant and a receiver for the threat because the threat must be perceived and comprehended.

5. Because the offense of criminal threat requires a communication, which involves both the declaration of a threat and the perception and comprehension of the threat, there are two acts comprising the constituent and material elements of the offense -- speaking and perceiving. Kansas has subject matter jurisdiction over a charge for criminal threat if either one or both of those elements occurs in Kansas.

6. Miranda warnings are required for all custodial interrogations. However, a law enforcement officer is only obligated to administer Miranda warnings when there has been such a restriction on a suspect's freedom so as to render him or her in custody. Although the restriction of the suspect's freedom does not require a formal arrest, there must be a restraint on the individual's freedom of movement to the degree associated with a formal arrest.

Review of the judgment of the Court of Appeals in 35 Kan. App. 2d 478, 131 P.3d 1253 (2006).

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

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

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, 16 L.Ed. 2d 694, 86 S.Ct. 1602, reh. denied 385 U.S. 890 (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. 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 ...


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