Opinion
No. 107,650.
2013-03-8
STATE of Kansas, Appellee, v. Aurelio Renato MARMOLEJO, Appellant.
Appeal from Shawnee District Court; Steven R. Ebberts, Judge. John A. Fakhoury, of Fakhoury Law Office, of Topeka, for appellant. Jason E. Geier and Jodi Litfin, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Steven R. Ebberts, Judge.
John A. Fakhoury, of Fakhoury Law Office, of Topeka, for appellant. Jason E. Geier and Jodi Litfin, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Aurelio Renato Marmolejo appeals his conviction for violating a protection from stalking order, arguing that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution precludes his conviction. Because we find that Marmolejo was only convicted one time of one crime, we affirm the decision of the district court.
Factual and Procedural History
L.S. had a protection from stalking order issued against Marmolejo. Subsequent to its issuance, she went to the Topeka Police Department and reported to the police that she had received over 50 text messages on her cellular phone from Marmolejo. While speaking with the police, L.S. received several more text messages and a phone call from Marmolejo.
The State filed a complaint against Marmolejo, alleging that he violated a protection from abuse order pursuant to K.S.A. 21–3843(a)(l). The supporting affidavit only referenced the violation of a protection order.
At Marmolejo's plea hearing, instead of entering a plea, Marmolejo stipulated to the complaint, police reports, and the affidavit presented by the State. Before giving the State an opportunity to make any comment, the district court stated, “[o]kay, the Court has had an opportunity to review the complaint and the supporting affidavit. And I'll find there's a sufficient basis based upon his stipulation to find him guilty of the count or charge of violation of a protection order.” However, Marmolejo's attorney immediately interrupted and asked the district court if he could present an argument before the district court made its ruling. The district court indicated that it would withhold its ruling.
Marmolejo's attorney informed the district court that the issued protective order was for stalking and not for abuse as charged in the complaint. Marmolejo argued that he should be found not guilty for violating a protection from abuse order because the actual protective order was for stalking.
The State argued that because the case had yet to be fully submitted to the district court, that it could still amend the complaint to indicate the appropriate subsection of the statute. The district court agreed with the State, indicating that it had yet to see the police reports or the protective order and had not yet allowed the State to respond to Marmolejo's arguments. Moreover, Marmolejo's attorney asked the district court if he could present an argument before the district court made its ruling, to which the district court agreed and withheld its ruling.
The State orally amended its complaint against Marmolejo at the hearing, alleging that Marmolejo violated a protection from stalking order pursuant to K.S.A. 21–3843(a)(6).
Marmolejo was convicted of a violation of a protective order under K.S.A. 21–3843(a)(6). The district court sentenced Marmolejo to 90 days in jail, but suspended the sentence with 12 months of probation.
Marmolejo filed a timely notice of appeal.
Analysis
Marmolejo argues that his constitutional protection against double jeopardy was violated because, as he argues, he was convicted for violating both K.S.A. 21–3843(a)(1) and K.S.A. 21–3843(a)(6) at the same bench trial on the same facts.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects individuals from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Rayton, 268 Kan. 711, 724, 1 P.3d 854 (2000).
“Whether a criminal defendant's protection against double jeopardy is violated is a question of law over which an appellate court has unlimited review.” State v. Jenkins, 295 Kan. 431, 434, 284 P.3d 1037 (2012).
In a bench trial, the protections against double jeopardy attach when the judge begins to receive evidence. State v. Roberts, 293 Kan. 29, 37, 259 P.3d 691 (2011). It is clear that jeopardy attached in this case when the district court was presented and received the complaint, affidavit, and police reports at the bench trial.
Marmolejo's argument hinges on his belief that he was convicted of violating a protection from abuse order and then subsequently—at the same bench trial—convicted of a violation of a protection from stalking order based on the same set of facts and evidence. Marmolejo relies on the district judge's statement at the beginning of the bench trial that he was finding Marmolejo “guilty of the count or charge of violation of a protection order.” But what Marmolejo fails to mention is that he specifically asked the district court to withhold its ruling until after he was allowed to present his argument that he was not guilty of the crime charged. The district court granted his request and indicated that it would withhold its ruling until after argument. Because the defense attorney requested the district court to withhold its ruling and because the district court agreed, Marmolejo was not convicted at that point in the bench trial. Moreover, the journal entry of sentencing indicated that Marmolejo was solely convicted of violating a protective order under K.S.A. 21–3843(a)(6) and was sentenced based on that conviction alone.
Although not specifically raised by Marmolejo in his brief, but addressed by his counsel at oral argument, is the question of whether the district court had the discretion to allow the State to amend the complaint after all the evidence had been received at the bench trial. We find that it did.
According to K.S.A. 22–3201(e), “[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Therefore, we must determine if the amended complaint charged a different crime when it was changed from K.S.A. 21–3843(a)(1) to K.S .A. 21–3843(a)(6). We conclude that it did not.
In State v. Starr, 259 Kan. 713, 720, 915 P.2d 72 (1996), our Supreme Court determined that when the State amends a complaint to charge an alternative theory for committing the same crime, the change does not constitute the charging of an additional or different crime. Here, as in Starr, the State did not amend the complaint to charge an additional or different crime. Based on the plain language of K.S.A. 21–3843(a), the two statutory provisions in question—K.S.A. 21–3843(a)(1) and K.S.A. 21–3843(a)(6)—merely allow various options within a means of committing the offense of violating a protective order.
In sum, Marmolejo was not convicted of two crimes based on the same facts, but only one, and the district court did not err in allowing the State to amend the complaint after evidence had been submitted.
Because we find that Marmolejo was never convicted of violating a protection from abuse order under K.S.A. 21–3843(a)(1), it is unnecessary to address his sufficiency of the evidence issue.
Affirmed.