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State of Kansas v. Charles Richard Dinneen

March 22, 2013

STATE OF KANSAS, APPELLEE,
v.
CHARLES RICHARD DINNEEN, APPELLANT.



Appeal from Saline District Court; RENE S. YOUNG, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. Interpretation of a statute is a question of law over which appellate courts have unlimited review. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. 2. Under K.S.A. 2010 Supp. 22-4902(a)(7), a person may be required to register as an offender under the Kansas Offender Registration Act if the person has been convicted of any person felony and the district court makes a finding on the record that a deadly weapon was used in the commission of such person felony. 3. The commission of the person felony crime of fleeing and eluding pursuant to K.S.A. 8-1568 begins when the driver of a vehicle flees or attempts to elude a pursuing police vehicle after being given visual or audible signal to bring the vehicle to a stop and ends when the vehicle being driven comes to a stop and the driver exits the vehicle. 4. The use of a deadly weapon during the commission of a person felony in such a manner to require registration under the Kansas Offender Registration Act requires the deliberate utilization (active employment) either directly, indirectly, or in some manner using a weapon that results in a change of circumstances of the crime being committed, such as facilitating commission of the offense. 5. Under the facts of this case, the defendant did not use a deadly weapon during the commission of the person felony of fleeing and eluding in such a manner as requires registration as an offender under the Kansas Offender Registration Act. 6. Before an appellee may present adverse rulings to the appellate court, the appellee must file a cross-appeal. If the appellee does not, the rulings are not properly before the appellate court and may not be considered.

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

Reversed and remanded with directions.

Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.

This appeal raises the narrow question of whether Charles Richard Dinneen "used" a deadly weapon as set forth in K.S.A. 2010 Supp. 22-4902(a)(7) in a manner that requires him to register as an "offender" under the Kansas Offender Registration Act (KORA) during his violation of fleeing or attempting to elude a police officer, a severity level 9 person felony in violation of K.S.A. 8-1568(b)(1) and (c)(4).

Dinneen appeals the district court's finding that he is required to register as an offender under the KORA.

FACTUAL FINDINGS AND PROCEDURAL HISTORY

The district court made the following factual findings when ruling on Dinneen's motion to reconsider its earlier ruling that he had used a firearm during his commission of the felony charge of fleeing and eluding a police officer:

"2. At the preliminary hearing, Nikole Kiser testified that she and the defendant had dated for approximately six years. They had recently broken up, but the defendant continued to contact her and come to her residence. On March 19, 2010 the defendant came to her residence and pulled her into the bedroom where he showed her a 9mm gun he removed from a gym bag. He told her to hold it which she refused to do. He told her she could have it when he was done with it. She understood this to mean that he was probably going to kill himself. He did not threaten her. She left the residence with her children. The children were taken to a friend's home as Nikole had plans to go. That night when she was leaving a bar with friends the defendant pulled up and questioned her as to whether a vehicle there belonged to her boyfriend. That night Nikole stayed at a friend's house.

"The following morning when Nikole went to her vehicle the defendant pulled up beside her. Nikole then attempted to return to the house but the door was locked so she returned to her vehicle. Defendant came to Nikole's van and began questioning her as to who she had been with. Defendant forcibly removed Nikole's cell phone from her so he could determine the number for her boyfriend. Defendant then told Nikole that she wasn't worthy of living and he was going to kill her in the front yard in front of her kids and everyone. He then told her to either give him her van keys while he went to his car to get the gun or follow him to his car. At that point, Nikole began honking her horn and yelling. The defendant then forcibly removed Nikole from her car and forced her into his car. As defendant went to get into the driver's side, Nikole grabbed the keys from the ignition and ran to the house yelling and pounding on the door. The defendant then forced Nikole to his car, and she saw him grab the bag on the floor she knew the gun was in from the night before. Nikole did not see the gun but saw clips with bullets in the bag. The defendant let Nikole go after her friend's husband yelled from the house. The defendant had told Nikole he was going to kill her and then himself.

"On March 20, 2010 at approximately 9:00 a.m. Deputy James Fletcher received a report from dispatch of a domestic disturbance in the city of Salina. Deputy Fletcher was sent to the defendant's residence to see if he was there. After arriving and locating the defendant's vehicle, he watched the residence from a block away while waiting for assistance to arrive. He then observed a subject jump out of the upstairs window onto the porch and leave in a green Ford Escort. The roads were icy and snow packed at that time. Deputy Fletcher followed the vehicle while waiting for assistance to arrive. Kansas Highway Troopers arrived and attempted to stop the defendant's vehicle. Trooper Alex Taylor had received a report that the defendant had gotten onto the roof displaying a gun and left in a green Ford Escort. The call was paged out with an alert tone that there was a suicidal subject with a 9 millimeter handgun. The officers had been told the defendant may take his life. The defendant refused to stop his vehicle and the pursuit ended when the defendant stopped at Emmanuel Christian Center in Salina. The defendant exited his vehicle with the gun in his right hand. The video recording of the chase and stop of the defendant's vehicle clearly shows defendant displayed a gun in his hand as he exited his vehicle and ran into the church. Troopers then followed the defendant into the church where he refused to surrender the gun. After defendant was instructed a number of times to hand over the gun, a trooper deployed a taser gun which had no effect. The defendant was then shot in the leg when he began to raise his gun. The defendant's gun was found to be loaded, and officers found another loaded magazine in defendant's coat pocket."

Dinneen was ultimately charged with 22 different counts which included robbery, 2 counts of kidnapping, criminal threat, domestic battery, aggravated assault on a law enforcement officer, 2 counts of fleeing and eluding, and 14 traffic infractions resulting from the events which occurred on March 20, 2010.

After a preliminary hearing and plea negotiations, Dinneen pled guilty to attempted kidnapping in violation of K.S.A. 21-3420 and K.S.A. 21-3301, criminal threat in violation of K.S.A. 21-3419(a)(1), and fleeing and eluding a police officer in violation of K.S.A. 8-1568(b)(1). All the other charges were dismissed.

At the sentencing hearing, Dinneen's motion for dispositional departure was denied by the court. He was sentenced to 36 months' incarceration for the attempted kidnapping conviction, 6 months' incarceration for the criminal threat conviction, and 6 months' incarceration for the fleeing and eluding conviction. All the sentences were ordered to be served consecutively.

In a November 2010 registration hearing, after listening to counsels' arguments, the district court ruled that as defined by K.S.A. 2010 Supp. 22-4902(a)(7), Dinneen conducted the crimes of attempted kidnapping and criminal threat without the use of a deadly weapon but conducted the crime of fleeing and eluding with the use of a deadly weapon. As such, Dinneen was ordered to register as an "offender" under K.S.A. 22-4904 through 4907.

Dinneen filed a timely motion for reconsideration of the later ruling. He argued that in order for the district court to find that he used a firearm in the commission of fleeing and eluding, it must find that the firearm was an actual instrumentality of the crime and not merely in his possession at the time the crime was committed.

The motion to reconsider was argued in January 2011. The parties asked the court to review the preliminary hearing testimony, a 911 call from Dinneen's sister, and Trooper Taylor's video of the police chase.

The district court on April 19, 2011, issued its decision making the factual findings which we have previously set forth in their entirety and denied Dinneen's motion to reconsider. Dinneen has timely appealed.

ISSUES PRESENTED AND ANALYSIS

As first stated, the precise issue on appeal is whether a deadly weapon was used in such a manner during the commission of the crime of fleeing and eluding as to require ...


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