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State v. Toliver

Supreme Court of Kansas

April 14, 2017

State of Kansas, Appellee,
Tracey Jerome Toliver, Appellant.


         1. The fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. When the statutory language is plain and unambiguous, an appellate court simply interprets the language as it appears, without speculating and without reading into the statute language not readily found there.

         2. If the statute's language or text is unclear or ambiguous the court uses canons of construction or legislative history or other background considerations to construe the legislature's intent.

         3. Courts construe statutes so as to avoid unreasonable or absurd results and presume the legislature does not intend to enact useless or meaningless legislation.

         4. When a court construes language that involves all the nouns or verbs in a series and there is a straightforward, parallel construction, a prepositive or postpositive modifier normally applies to the entire series unless context indicates a different construction or the resulting construction would be irrational or absurd.

         5. K.S.A. 2013 Supp. 21-5413(c)(3)(D) governs battery against city or county correctional officers or city or county correctional employees.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 18, 2015.

         Appeal from Riley District Court; Meryl D. Wilson, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, the sentence is vacated, and the case is remanded with directions.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Wesley M. Webber, legal intern, was with him on the briefs for appellant.

          Barry K. Disney, senior deputy county attorney, argued the cause, and Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


          Malone, J.

         The State requests this court review an unpublished opinion by the Court of Appeals reversing Tracey Toliver's conviction of felony battery against a law enforcement officer. For the reasons set out below, we affirm the judgment of the Court of Appeals.

         On February 18, 2014, Brian Johnson, a detective for the Riley County Police Department, was assigned to the department's Investigations Division. He assisted in executing a search warrant at a residence in Manhattan. Johnson wore a vest identifying him as a law enforcement officer.

         Toliver was at the residence, and he responded aggressively to the police during the search by shouting profanities and racially derogatory statements at them. Detective Johnson was assigned the task of detaining Toliver while his fellow officers completed the search. Johnson escorted Toliver from the residence and placed him in the back seat of his police car. Johnson sat in the front, and a partition between the front and the back was open to allow conversation.

         In the course of searching the residence, police found drugs and paraphernalia in close proximity to personal items belonging to Toliver. They signaled to Johnson that he should consider Toliver under arrest. Toliver asked when he could be released, and as Johnson began to answer, Toliver shouted profanities and derogatory statements at him. Toliver then leaned forward so that his face was near the open partition and spat on Johnson's right hand. Johnson closed the partition and wiped the saliva from his hand. He then transported Toliver to the Riley County Jail.

         After receiving clearance from a jailer, Johnson drove through a gated entrance at the jail. He proceeded into the "sally port, " a structure with doors on either end of it. The sally port serves as a secure holding area for removing a prisoner from a car; both doors to the port are shut after the car enters the structure. Per jail policy, Johnson secured his firearm in a locker so it would not be "accessible to any of the prisoners." Johnson then remained behind his car as jailers attempted to coax Toliver out of the vehicle. Toliver was refusing to get out until he was told why he was being arrested. In an effort to mollify Toliver, Johnson walked over to tell him "again" what the charge was. At this time, Toliver stated, "Now I spit on you, bitch, " and he spat in Johnson's face.

         Because he spat on Johnson, Toliver was taken to a local hospital later that day where a court-ordered blood test for infectious diseases was performed. In the waiting room, an escorting officer heard Toliver mutter, "[Expletive] will get a bullet to the head someday. Real talk."

         The State filed multiple complaints against Toliver based on the various incidents of spitting, comments to officers, and drugs and drug paraphernalia found at the residence. On Toliver's motion, two of the complaints were consolidated. After the State voluntarily dismissed the possession of drug paraphernalia count, Toliver requested a bench trial. The court found him not guilty of unlawful possession of a controlled substance, guilty of battery against a law enforcement officer, guilty of felony battery against a city or county employee by a confined person, and guilty of two criminal threats. The court sentenced him to 114 months for the felony battery, 12 months for the battery against a law enforcement officer, and 6 months and 15 months for the criminal threat convictions, all running concurrently.

         Toliver timely appealed and the cases were consolidated. The Court of Appeals reversed his conviction for felony battery against a law enforcement officer as charged under K.S.A. 2013 Supp. 21-5413(c)(3)(D), holding that the State ...

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