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State v. Auch

April 18, 2008

STATE OF KANSAS, APPELLEE,
v.
DALLAS AUCH, APPELLANT.



Appeal from Johnson District Court; PETER V. RUDDICK, judge.

SYLLABUS BY THE COURT

1. Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.

2. In analyzing a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?

3. In this case, there was no double jeopardy violation where the defendant was convicted of only one of the forgery counts with which he was charged.

4. Interpretation of a statute presents a question of law over which an appellate court's review is unlimited. An appellate court is not bound by the trial court's interpretation of a statute.

5. An amendment to a criminal statute of limitations extending the time for commencement of a prosecution is remedial or procedural, not substantive, and may be applied to crimes committed before the effective date of the amendment so long as the prior statute of limitations had not expired before the effective date of the amendment. Nevertheless, if the statute being amended has run on the specific crime charged, then the amendment cannot be applied to resurrect a prosecution which has already been time-barred.

6. An appellant has the burden to designate a record that affirmatively establishes the claimed error. Without such a record, an appellate court presumes the action of the trial court was proper.

7. Where an appellant has failed to procure an official transcript or abstract of the testimony of record or reconstruct it in some accepted manner, an appellate court will not review any action of the trial court requiring an examination of the evidence.

8. K.S.A. 22-3423(1)(c) gives a trial court discretion to grant a mistrial when it finds that termination is necessary because prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.

9. A mistrial will not be granted under K.S.A. 22-3423(1)(c) unless the rights of either the defendant or the State have been substantially prejudiced.

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

Affirmed.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

Dallas Auch appeals his jury trial conviction of one count of forgery in violation of K.S.A. 21-3710(a)(1). Auch raises five arguments on appeal. First, Auch argues that the trial court committed plain error by allowing him to be prosecuted on multiple counts of forgery, which exposed him to double jeopardy and undue prejudice at trial. Nevertheless, because Auch was not convicted of multiple violations of the same statute, we find no double jeopardy violation under our Supreme Court's decision in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). In addition, Auch's failure to provide this court with a trial transcript in the case hampers appellate review of this issue. The limited record before this court, however, demonstrates that the multiple forgery charges against Auch were based on separate forgery acts. Accordingly, Auch's argument on this issue fails.

Next, Auch contends that prosecution of the case did not begin within the time required by K.S.A. 2004 Supp. 21-3106. We disagree. Under the rule announced in State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), Auch's prosecution was timely as it was commenced within the 5-year expanded statute of limitations under K.S.A. 2005 Supp. 21-3106(4). Next, Auch maintains that his trial counsel was ineffective in failing to raise objections to multiplicitous charges and untimely prosecution. Nevertheless, we determine that Auch is unable to show that he was prejudiced by his counsel's conduct. Therefore, his ineffective assistance of counsel claim fails. Next, Auch contends that the State was unable to prove the element of intent to defraud for the charge of forgery. Again, Auch's failure to provide this court with a trial transcript precludes appellate review of this issue. Finally, Auch contends that he was denied a fair trial by postings on the trial court's case history website. Nevertheless, because the limited appellate record fails to show that prejudice resulted to Auch from the case history postings, he is not entitled to a mistrial in this case. Accordingly, we affirm.

Because the parties have failed to provide this court with the trial transcript in the case, the facts were taken from those brought out at the preliminary hearing and those contained in the exhibits and documents found in the record.

On October 16, 2003, Auch met with Mitchell Vandeputte and his wife, Melinda Vandeputte, in their home regarding health insurance coverage. When the meeting occurred, Auch was an insurance agent with Mega Life and Health Insurance Company (Mega). According to the Vandeputtes, Melinda had contacted Auch because they wished to obtain more affordable health insurance coverage than the current coverage they had through Melinda's employer. At the preliminary hearing, both Mitchell and Melinda testified that the first thing they talked about with Auch was that they did not want monthly bank drafts coming out of their bank account. Instead, they wanted to be billed monthly. According to Melinda, they told Auch that if they had to pay by automatic bank draft, then they did not want the insurance policy.

During their meeting with Auch, the Vandeputtes decided on health insurance coverage. Mitchell testified that Auch filled out the application for them, that Mitchell signed some preprinted forms, and that Melinda wrote a $677 check, which was to pay for 3 months of health insurance premiums and a one-time application fee of $65. According to Mitchell, Auch explained that the National Association of Self Employed People (NASE) provided several additional benefits for self-employed people but that Vandeputte did not need those benefits. Mitchell testified that he told Auch that he did not want the NASE benefits.

The Vandeputtes later received a Mega health insurance policy, a NASE membership booklet, and other documents in the mail. In accordance with K.A.R. 40-4-22, Mega health insurance policies had a "10 Day Right to Examine the Policy," which essentially allowed the insured to return the policy within 10 days of receipt if he or she was not satisfied that the coverage would meet his or her insurance needs. Mega would then cancel coverage as of the policy date, refund all premiums paid, and treat the policy as if it were never issued.

While reviewing the Mega policy, Mitchell noticed that the listed coverage was incorrect and that there was inaccurate information on the application. Mitchell also discovered that NASE was billing him $35 a month. In addition, Mitchell discovered some forms had been signed with his name, but the signature was not his. One of these forms was an authorization for direct payment from the Vandeputtes' checking account.

Mitchell testified that he called Auch to attempt to straighten out his health insurance coverage. Mitchell testified that he asked Auch about the signature on the automatic bank withdrawal form because he had explicitly told Auch that he did not want automatic bank withdrawal when he first met with Auch. Auch said that his secretary must have signed the form. Auch told Mitchell that he would come back to their house and they would get everything straightened out.

Auch came to the Vandeputtes' home around November 17, 2003, and filled out a second insurance application with the Vandeputtes. Testimony from Mega representatives at the preliminary hearing showed that Auch would have received higher advances and a higher commission under the first application.

When Mitchell received the second insurance policy from Mega in the mail, he noticed there were still some inaccuracies. Moreover, from late November 2003 through March 2004, Mitchell continued being billed monthly by NASE. Mitchell eventually met with a different insurance broker. The insurance broker advised Mitchell that in order for NASE to be billing him for membership dues, there had to have been a membership application submitted to it.

After calling and having a copy of his NASE membership application faxed to him, Mitchell discovered that someone other than him had signed his name to the application. In addition, Mitchell discovered that someone had signed his name to a separate entity notice to NASE. Mitchell testified that he did not see those documents or the authorization for the automatic bank draft on October 16, 2003, the date ...


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