State v. Richard

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,962

STATE OF KANSAS,
Appellee,

v.

DERRICK RICHARD,
Appellant.

SYLLABUS BY THE COURT

1.
A trial court's determination of whether to admit evidence of a defendant's prior
crime or civil wrong is governed by a three-part test:
First, the district court must determine whether the fact to be proven is material,
meaning that this fact has some real bearing on the decision in the case. The appellate
court reviews this determination independently, without any required deference to the
district court.
Second, the district court must determine whether the material fact is disputed and,
if so, whether the evidence is relevant to prove the disputed material fact. In making this
determination, the district court considers whether the evidence has any tendency in
reason to prove the disputed material fact. The appellate court reviews this determination
only for abuse of discretion.
Third, if the fact to be proven was material and the evidence was relevant to prove
a disputed material fact, then the district court must determine whether the probative
value of the evidence outweighs the potential for undue prejudice against the defendant.
The appellate court also reviews this determination only for abuse of discretion.

1
2.
A person challenging the legality of a search must establish that he or she was the
victim of an invasion of privacy. To establish a sufficient interest to have standing to
challenge the legality of a search, the challenger must claim either to have a proprietary
or possessory interest in the premises searched or to have owned or possessed the seized
property.

3.
For a consent to search to be valid there must be clear and positive testimony that
the consent was unequivocal, specific, and freely given, without duress or coercion, either
expressed or implied. An individual's mental state is a factor in determining the
voluntariness of his or her consent to search.

Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed September 5,
2014. Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger
and Deborah Hughes, of the same office, were on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: A jury convicted Derrick Richard of felony murder based upon the
underlying felony of criminal discharge of a firearm at an occupied building. Richard
allegedly fired his handgun at a neighbor's house, and a bullet fatally wounded a man
sitting inside the house. On direct appeal, Richard raises three evidentiary issues. We

2
have jurisdiction under K.S.A. 22-3601(b)(1) (direct appeal for conviction of off-grid
crime; life sentence). Finding no error, we affirm.

FACTS AND PROCEDURAL OVERVIEW

During the evening of July 16, 2010, Grady Lane and his wife, Erin Gonzalez-
Lane, were watching television in the second-story family room of their home at 532
North Wabash in Wichita, Kansas. Gonzalez-Lane went downstairs to bed around 10
p.m., while Lane stayed in the family room to play video games. At around 11 p.m.,
Gonzalez-Lane heard what she described as "[p]ow, pow, pow, pow." Gonzalez-Lane
assumed the noise was fireworks; therefore, after checking on her children, she decided
all was well and went to sleep.

That same evening, at approximately 11 p.m., Officer Jason Waite responded to a
call reporting gunshots fired in the nearby area of 500 North Ohio. Officer Waite
encountered Derrick Richard in the street between two houses at 529 and 532 Wabash,
but Richard said he had not heard gunshots or fireworks.

The next morning, Gonzalez-Lane discovered Lane still in the upstairs family
room, but he was not breathing and there was "a lot of blood." Officers Chad Richardson
and Channara Seang responded to Gonzalez-Lane's 911 call. They observed Lane, dead
from a gunshot wound to the head, slumped over on his side as if he had been sitting
upright on the couch and had fallen over. The officers discovered a single bullet hole in
the family room window glass and three bullet holes in an interior wall, all of which
appeared to have come from outside. Crime Scene Investigator Natalie Rowe collected
three bullet fragments from inside the room.

3
 The family room window faced the Lane's backyard, and an officer noted that if
Lane had been sitting up on the couch, he would have been visible through the window
for a shooter located in the backyard. A search of Lane's backyard yielded four spent
cartridge casings (fired rounds) and one unfired cartridge, all designed to be used in a .45
caliber handgun and all manufactured by Speer. The cartridges were found approximately
20 to 25 yards from the family room window.

Gonzalez-Lane told police she "had a notion" that Richard, their neighbor directly
to the south at 524 North Wabash, killed Lane because the two men had been in a dispute
over a dog. Gonzalez-Lane also told police that Richard had previously fired shots in the
neighborhood, after which he called Lane to tell him Richard was "just blowing off some
steam and . . . everything was okay."

Richard lived with his daughter, Jasmine Huff, and his father, Irving Richard.
After obtaining Huff's permission to search the family's backyard, officers found seven
.45 caliber spent casings and one live .45 caliber cartridge. Four of the spent casings were
manufactured by Winchester, while the other three, as well as the live cartridge, were
manufactured by Speer.

Detective Robert Chisholm interviewed Richard three times. The first interview
began at 9 a.m. on July 17, 2010, with the detective advising Richard of his Miranda
rights. Richard told the detective that he and Lane had been friends until they got into a
dispute over a dog. He denied having any guns and said that he had not heard any shots
fired the previous evening. Richard also denied that he had previously discharged a
firearm in his yard or that he had called Lane to apologize for doing so, albeit he had no
explanation for the shell casings found in his yard. Five and a half hours into the
interview, Richard told Detective Chisholm that he was ill and needed to go to the

4
hospital, whereupon the detective stopped the interview and called Emergency Medical
Services.

During that first interview, Richard had given consent for the police to search his
home for guns, drugs, and evidence related to this crime. But Richard told the detective
that only Irving had access to a storage area in the back of the house, and the detective
relayed that information to the officers at the scene. In Richard's bedroom, the police
found a box of ammunition containing twenty-nine .45 caliber semiautomatic cartridges
manufactured by Speer and a gun case. Irving gave the officers permission to search a
padlocked storage area on the enclosed back porch and provided the officers with a key
for the padlock. Officers searched the storage area and located a .45 caliber gun
manufactured by Haskell and a magazine. The magazine contained seven .45 caliber
cartridges manufactured by Speer.

Upon Richard's release from the hospital and after reminding him of his Miranda
rights, Detective Chisholm interviewed Richard for another 30 to 45 minutes. Richard
admitted owning the gun that the detective said they had found at his house. Richard
explained that he normally stored the loaded gun underneath his mattress. In response to
the detective's query about the 14 rounds of ammunition missing from the box found in
his house, Richard related that on a prior occasion he had fired the handgun into the air,
after which he called Lane to explain what he had done. He also admitted shooting his
gun on the Fourth of July and firing at a dog causing trouble in the neighborhood.
Richard continued to deny hearing shots or shooting at Lane's house on the night of
Lane's death. Richard eventually concluded the interview.

The next morning, at Richard's request, Detective Chisholm conducted another
interview. After the detective had Richard read his Miranda rights aloud, Richard

5
admitted shooting his gun from Lane's backyard six times the night of Lane's death to
send Lane a message to leave him alone.

The State charged Richard with one count of felony murder, based on the
underlying felony of criminal discharge of a firearm at an occupied building, and one
count of criminal possession of a firearm.

Sedgwick County Regional Forensic Science Center firearm and tool mark
examiner Gary Miller opined that three of the spent casings from Richard's yard and all
of the spent casings from Lane's yard came from Richard's gun. The other casings and
live cartridges lacked sufficient identification markings to pair them with a particular
firearm. Miller noted that the three bullet fragments found in Lane's home had the same
class characteristics as ammunition that would be used in Richard's gun but could not
definitively say if they were fired from Richard's handgun.

Richard testified in his own defense. He explained that on the day of Lane's death,
he went over to a friend's house at around 7:30 p.m. to play cards. He stayed about 2 1/2
to 3 hours before returning home. When he got home, he went for a walk. Hoping to
resolve his dispute with Lane, Richard stopped by Lane's residence to see if Lane was on
his back porch where he usually sat. Lane was not outside, so Richard pulled his gun out
and shot into the air. Richard then went home, put his gun away, and went across the
street to talk to a friend.

Richard said he could not explain why he shot his gun in the air but said, "[A]s
they stated, I was known to shoot my gun in the air at different times, so I did shoot the
gun in the air." Richard stated that he shot five or six times but never shot the gun at the
house. He explained that one of Lane's children was in the house, so he would have never
shot at the house.
6
 The jury convicted Richard as charged. Richard was sentenced to life with parole
eligibility after 20 years for felony murder, consecutive to 19 months in prison for
criminal possession of a firearm. Richard timely appealed his convictions.

K.S.A. 2010 SUPP. 60-455 EVIDENCE

Richard argues that the district court violated his right to a fair trial by permitting
the State to introduce prior crimes evidence through testimony that established he had
previously discharged his handgun in his backyard. After our decision in State v. Gunby,
282 Kan. 39, 57, 144 P.3d 647 (2006), admission of all other crimes and civil wrongs
evidence is governed by K.S.A. 2010 Supp. 60-455. See State v. Everett, 296 Kan. 1039,
1045, 297 P.3d 292 (2013) (quoting Gunby, 282 Kan. at 57). K.S.A. 2010 Supp. 60-455
provides in relevant part as follows:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
evidence is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident."

Evidence of Richard's prior shooting incidents was presented through four
witnesses. First, Officer Richardson related that Gonzalez-Lane had told him that the
Lanes' neighbor to the south would occasionally shoot his handgun. Next, Gonzalez-Lane
testified about the previous shooting incident where Richard had called Lane to explain
that Richard was "just blowing off some steam." Third, Detective Chisholm described the

7
police interview in which Richard related that he had "fired one clip into the air one
night" and then called Lane to advise him that Richard was just "letting a few off." The
detective also testified about two other shooting incidents to which Richard had admitted,
but Richard does not challenge that testimony in this appeal. Finally, Richard introduced
the evidence through his own testimony. During Richard's direct testimony, he said, "[A]s
they stated, I was known to shoot my gun in the air at different times." During cross-
examination, he discussed the time he shot his gun to "see if it would work" and then
called the Lanes to "let them know I was just letting off a few."

As a preliminary matter, the State contends that Richard's K.S.A. 2010 Supp. 60-
455 argument is not preserved for appellate review because the defense failed to
contemporaneously object to Detective Chisholm's testimony and to Richard's own
testimony. The defense did contemporaneously object during the testimony of the first
two witnesses, Richardson and Gonzalez-Lane, albeit the record does not reflect a request
for a continuing objection or a renewal of the objection during the last two witnesses'
testimony.

Under K.S.A. 60-404, "a party must lodge a timely and specific objection to the
admission or exclusion of evidence in order to preserve the evidentiary question for
review." State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). "The purpose of the rule
is to avoid the use of 'tainted evidence [and thereby] avoid possible reversal and a new
trial.'" State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011) (quoting State v.
Dukes, 290 Kan. 485, 488, 231 P.3d 558 [2010]). "Because an in limine ruling 'is subject
to change when the case unfolds,' Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460,
83 L. Ed. 2d 443 (1984), a pretrial objection must be contemporaneously renewed during
trial or preserved through a standing objection." State v. Inkelaar, 293 Kan. 414, 421, 264
P.3d 81 (2011) (citing State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 [2010]).

8
 Richard met those requirements with respect to the testimony of Officer
Richardson and Gonzales-Lane and his challenge to the admission of their testimony
about the specified prior shooting incident is preserved for our review. Because of our
determination that the trial court did not err in admitting the evidence over the defense's
objection, we need not ruminate on the effect of any failure to object to the later
descriptions of the same incident. Instead, we proceed to the merits of Richard's
argument.

In State v. Torres, 294 Kan. 135, 139-40, 273 P.3d 729 (2012) (citing Inkelaar,
293 Kan. at 424), we summarized the three-part Gunby test that a trial judge must use in
determining whether to admit evidence under K.S.A. 60-455, and the corresponding
appellate standards of review:

 "First, the district court must determine whether the fact to be proven is
material, meaning that this fact has some real bearing on the decision in the
case. The appellate court reviews this determination independently, without
any required deference to the district court.
 "Second, the district court must determine whether the material fact is
disputed and, if so, whether the evidence is relevant to prove the disputed
material fact. In making this determination, the district court considers
whether the evidence has any tendency in reason to prove the disputed
material fact. The appellate court reviews this determination only for abuse
of discretion.
 "Third, if the fact to be proven was material and the evidence was relevant to
prove a disputed material fact, then the district court must determine whether
the probative value of the evidence outweighs the potential for undue
prejudice against the defendant. The appellate court also reviews this
determination only for abuse of discretion.
If the evidence meets all of these requirements, it is admitted, but in a jury trial the
district court must give the jury a limiting instruction telling the jury the specific purpose

9
 for which the evidence has been admitted (and reminding them that it may only be
considered for that purpose)."

Beginning with whether the prior shooting evidence was material, Richard was
charged with (1) first-degree felony murder based on the underlying felony of criminal
discharge of a firearm at an occupied building that resulted in the death of Lane and (2)
criminal possession of a firearm. First-degree felony murder is "the killing of a human
being committed . . . in the commission of, attempt to commit, or flight from an
inherently dangerous felony." K.S.A. 21-3401(b). Criminal discharge of a firearm at an
occupied building is an inherently dangerous felony. K.S.A. 2010 Supp. 21-3436(a)(15).
"Because the jury is presumed to have taken the elements of the underlying felony into
account, as demonstrated by the jury's being instructed on those elements, relevance to an
element of the predicate felony reasonably could be found to be sufficient for
admissibility." State v. Tolson, 274 Kan. 558, 566, 56 P.3d 279 (2002). At the time of
Lane's death, the statute prohibiting criminal discharge of a firearm at an occupied
building defined the crime as "the malicious, intentional and unauthorized discharge of a
firearm at a . . . building . . . in which there is a human being." K.S.A. 21-4219(b). The
statute prohibiting criminal possession of a firearm defined the crime, in relevant part, as
"possession of any firearm by a person who, within the preceding 10 years, has been
convicted of . . . [a] felony." K.S.A. 2010 Supp. 21-4204(a)(4)(A).

The district court's on-the-record ruling on the admissibility of the prior shooting
stated that the evidence addressed opportunity, intent, knowledge, and identity, but the
district court's limiting instruction omitted intent from the purposes for which the jury
could consider the prior shooting. Richard argues that the evidence was irrelevant to the
issues identified in the limiting instruction—opportunity, knowledge, or identity—
because it had no tendency to show that Richard knowingly fired shots at an occupied
residence on the date Lane was killed.

10
 We discern that the evidence was relevant for the purpose of proving two of the
purposes contained in the limiting instruction, to-wit: knowledge and identity. The
evidence was also admissible for the purpose of proving intent, even though that purpose
was omitted from the limiting instruction.

First, we agree with the State's argument that the evidence of the prior shooting
tended to show that Richard was aware of his wrongdoing, when the prior facts are
compared to the present incident. We have previously noted that "[k]nowledge, which
signifies an awareness of wrongdoing, is an element in crimes that require specific
intent." Tolson, 274 Kan. at 565. Granted, we have held that the word "malicious" in our
criminal discharge of a firearm statute does not require specific intent, but instead
requires "a lack of justification." In re M.A.S., No. 92,558, 2005 WL 3430738, at *3
(Kan. 2005) (unpublished opinion); see State v. Mitchell, No. 108,912, 2014 WL 113441,
at *3 (Kan. App. 2014) (unpublished opinion), petition for review filed February 6, 2014.
Nevertheless, the specific/general intent distinction is not always outcome determinative
under K.S.A. 2010 Supp. 60-455. State v. Boggs, 287 Kan. 298, 314, 197 P.3d 441 (2008)
(general/specific intent not crucial distinction for admitting other crimes evidence for
purpose of intent).

Here, Richard's awareness of wrongdoing flows from a comparison of his post-
shooting behavior. When he shot his handgun on the prior occasion, he did not hide the
gun afterward and he called Lane to explain what he had done. After the shooting
resulting in Lane's death, Richard hid the handgun in a locked storage area and denied
that any shooting took place.

Additionally, as the State points out, the prior shooting helped explain to the jury
why Gonzalez-Lane quickly identified Richard as a likely suspect. Moreover, the identity
11
of Lane's killer was a disputed, material fact in this case. See State v. Garcia, 285 Kan. 1,
14-15, 169 P.3d 1069 (2007). Although Richard eventually admitted shooting the gun on
the night in question, he initially denied shooting at all and subsequently denied being the
person who shot at the house. See Garcia, 285 Kan. at 14-15; see also State v. Searles,
246 Kan. 567, 579, 793 P.2d 724 (1990) ("The disputed material fact was whether or not
the defendant was the one who committed the crime.").

Richard argues that the prior shooting was not sufficiently similar to the incident
giving rise to the current charged offense to be relevant to show identity. In his view, the
only similarity between the two events is the physical act of shooting a weapon. Our
cases where prior crimes or civil wrongs are used to show identity have emphasized that
while "'the evidence should disclose sufficient facts and circumstances of the other
offense to raise a reasonable inference that the defendant committed both of the
offenses," the evidence "need not be identical, only similar." Garcia, 285 Kan. at 15
(quoting State v. Bly, 215 Kan. 168, 177, 523 P.2d 397 [1974]); see Searles, 246 Kan. at
578. Here, there were more common threads between the incidents than just discharging
a weapon. In both incidents, Richard gratuitously and without provocation fired the same
weapon into the air from adjoining backyards in the same residential neighborhood, and
the incidents were relatively close in time. The prior shooting made it more likely that
Richard was the shooter than any other person who might have been suspected.

The evidence was also relevant to the issue of Richard's intent. Richard's previous
discharge of his handgun into the air without striking any residence could indicate for the
jury that Richard knew how to operate the weapon in such a manner as to avoid striking
an occupied dwelling unless he wanted to do so, i.e., the evidence was material to prove
an absence of mistake by showing an absence of honest error. See Boggs, 287 Kan. at
312.

12
 Richard's brief acknowledges that "[i]ntent in discharging the firearm on July 16,
2010 was the primary material issue at trial." But, citing to State v. Marquez, 222 Kan.
441, 447-48, 565 P.2d 245 (1977), he contends that we should not apply to K.S.A. 2010
Supp. 60-455 evidence the "right result-wrong reason" rationale that applies in cases
involving the admission of other types of evidence, notwithstanding our recent cases. See
Boggs, 287 Kan. at 310 ("a district court's admission of evidence under K.S.A. 60-455
may be upheld on review even if its rationale was in some way erroneous if an appellate
court determines that the evidence was otherwise admissible under the statute") (citing
State v. Vasquez, 287 Kan. 40, 51-53, 194 P.3d 563 [2008]); State v. Reid, 286 Kan. 494,
509-12, 186 P.3d 713 (2008). Here, though, the purposes for which the jury was
instructed are intertwined with the admitted purpose that was omitted from the
instruction. "'Both knowledge and absence of mistake are factors bearing on intent.' [State
v. Faulkner,] 220 Kan. [153,] 156[, 551 P.2d 1247 (1976)]. While knowledge 'signifies
awareness . . . ', absence of mistake 'simply denotes an absence of honest error.' 220 Kan.
at 156." Boggs, 287 Kan. at 312. Accordingly, we find that the State has cleared the
hurdle of showing the prior incident to be material to the current charge.

Likewise, as we have suggested above, the prior shooting evidence was probative
because it provided a "tendency in reason" to prove that Richard intentionally shot at
Lane's house. Furthermore, the district court did not abuse its discretion in determining
that the probative value of this evidence was not outweighed by its prejudicial effect.
Indeed, as the State points out, Richard himself embraced the evidence of the prior
shooting to support his theory of defense that he just shot in the air, not at the house. In
sum, we hold that the district court did not err in admitting the prior shooting evidence
under K.S.A. 2010 Supp. 60-455.

13
 PRESERVATION OF SUPPRESSION ISSUE FOR APPEAL

Richard argues that the district court erred when it failed to grant his motion to
suppress his post-Miranda statements to police as being involuntary. As noted, the police
conducted three interviews, but Richard only challenges the voluntariness of the first
interview. He claims that he was under the influence of drugs at that first interview. The
district court denied the suppression motion, based principally upon watching the DVDs
of the interviews. Specifically, the court found that Richard was "responsive to all
questions" and that "[h]e was quite lucid and coherent."

The district court made its ruling at a pretrial suppression hearing. Richard's
defense counsel did not engage in the formality of reasserting his client's objection to the
voluntariness of his statements when they were introduced at trial. In fact, when the State
moved to have the DVD of Richard's third interview played for the jury, his counsel
specifically stated, "No objection." There is no indication that any of the parties was
unclear about the court's position about allowing the introduction of Richard's statements
at the trial, nor did the statements unfold in any unpredictable manner that would justify a
change of heart by the court. Nevertheless, a majority of this court believes that a request
for reconsideration of the district court's order on the suppression motion must be
effected through a "contemporaneous objection" during the trial in order to preserve an
appeal of the original ruling. Specifically,

"we hold that when a pretrial motion to suppress has been denied, the evidence must also
be objected to at the time it is offered during the trial in order to preserve the issue for
appeal. This holding is also consistent with the language in K.S.A. 60-404—objection to
the evidence must be 'timely interposed'—and consistent with this court's longstanding
characterization of the statutory language as requiring a 'contemporaneous' objection.
Among other advantages, this holding allows a court to rule on the evidence before trial,
but after hearing how the evidence unfolds during trial, allows the court to be prepared—

14
 after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States,
469 U.S. 38, 41-42, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (in limine ruling 'is subject
to change when the case unfolds')." State v. Houston, 289 Kan. 252, 270, 213 P.3d 728
(2009).

Based upon our precedent, Richard has failed to preserve his appeal of the district
court's order denying his motion to suppress his post-Miranda statements to the police.
See State v. Tahah, 293 Kan. 267, 280, 262 P.3d 1045 (2011) (defendant's failure to
object at time confessions offered into evidence at trial "fatal" to appeal). He offers no
reason for the court to revisit that precedent. In fact, his brief fails to acknowledge the
preservation problem at all. Accordingly, we decline to consider this issue further.

MOTION TO SUPPRESS EVIDENCE FOUND DURING THE SEARCH OF RICHARD'S RESIDENCE

Richard next argues that the district court erred in denying his motion to suppress
evidence found during a warrantless search of a locked storage area at his residence.

"[U]nder the Fourth and Fourteenth Amendments to the United States Constitution and
§ 15 of the Kansas Constitution Bill of Rights, a search conducted without a warrant is
per se unreasonable, unless a specifically established exception applies. See State v.
Damm, 246 Kan. 220, 221, 787 P.2d 1185 (1990). It is the State's burden to validate a
warrantless search by fitting it within one of the recognized exceptions, which are:
consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent
circumstances; the emergency doctrine; inventory searches; plain view or feel; and
administrative searches of closely regulated businesses. [Citation omitted.]" State v.
Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013).

The police searched Richard's residence based upon the consent exception. During
his first interview with Detective Chisholm, Richard said the police could search his
residence but only Irving could give permission to search the locked storage area on the

15
back porch because Richard did not have access to that area. At the house, Irving gave
the police oral consent to search the locked storage area and provided the police with a
key to obtain entry.

Prior to trial, Richard filed a motion to suppress the evidence obtained during the
warrantless search of his residence. After a hearing, the district court denied the motion.
Richard also lodged a continuing objection at trial to the admission of evidence found
during the search, arguing that the search was improper.

On appeal, Richard first asserts that the district court erred in finding that he
lacked standing to challenge the search of the locked storage area at his residence.
Richard then argues Irving's consent to search the locked storage area was involuntary.

At this point, we pause to note that Richard does not challenge the district court's
finding that "it was quite clear to the Court that the defendant gave consent to search the
residence except for the back room that was on the back porch." Nor does Richard
complain about the district court's declaration that, pursuant to the "Matlock decision and
subsequent case law[,] . . . [a] co-owner or co-occupant can give consent over the
objection or limitation of another co-occupant's permission to search a residence." See
United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). While not
necessary to our ultimate decision in this case, we do note that the United States Supreme
Court recently adhered to its Matlock holding. See Fernandez v. California, 571 U.S.___,
134 S. Ct. 1126, 1132-33, 188 L. Ed. 2d 25 (2014).

Standing

We begin with Richard's argument that the district court erred in finding that he
did not have standing to challenge the search. The State counters that Richard has

16
misconstrued the district court's ruling; it ruled on the basis of consent, not standing.
Nevertheless, standing to challenge a search is "a component of subject matter
jurisdiction, which may be raised for the first time on appeal." State v. Gilbert, 292 Kan.
428, 431, 254 P.3d 1271 (2011). And it is an appellate court's duty to question
jurisdiction on its own initiative. State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d
343, rev. denied 297 Kan. 1251 (2013). In doing so, we exercise unlimited review over
the legal question of whether the defendant has standing to challenge the search, Gilbert,
292 Kan. at 431-32, but the defendant bears the burden of establishing standing. See State
v. Sumner, 210 Kan. 802, 803-04, 504 P.2d 239 (1972) ("It has been held it is proper to
require of one who seeks to challenge the legality of a search as the basis for suppressing
relevant evidence that he allege, and if the allegation be disputed, that he establish that he
himself was the victim of an invasion of privacy."); State v. Gonzalez, 32 Kan. App. 2d
590, 593, 85 P.3d 711 (2004) ("On the issue of standing, the burden is on the defendant to
show an expectation of privacy in the property searched.").

A person challenging the legality of a search must establish that he or she was the
victim of an invasion of privacy. State v. Epperson, 237 Kan. 707, 716, 703 P.2d 761
(1985). "'To establish a sufficient interest, a movant must claim either to have a
proprietary or possessory interest in the premises searched, or to have owned or
possessed the seized property.'" 237 Kan. at 716 (quoting State v. Boster, 217 Kan. 618,
621, 539 P.2d 294 [1975]); see also Gilbert, 292 Kan. at 435-36 (noting vehicle
passenger claimed no interest in property seized from vehicle before concluding
passenger lacked standing); State v. Hays, No. 106,374, 2012 WL 6061556, at *3-4 (Kan.
App. 2012) (unpublished opinion) (finding vehicle passenger had standing to challenge
search because he owned seized property).

Richard eventually acknowledged that the handgun seized during the search
belonged to him, and he told the detective that he coowned the residential property with
17
his father, Irving. Likewise, notwithstanding his suggestion to the contrary during the
first interview, Richard claimed to have access to the area searched. Specifically, during
his third police interview, Richard related that although Irving kept the key to the storage
area's padlock, Irving normally left the area unlocked in case Richard needed access to
the fuse box located within the area. And at the suppression hearing, Richard reiterated
that he had access to the area and testified that both he and his father used the area for
storage. So, while some of Richard's statements may have given rise to nuanced
arguments calling into question his standing to challenge the search of his house to seize
his handgun, we find sufficient evidence in the record to support the district court's
jurisdiction to hear Richard's challenge to the warrantless search.

Consent

Richard next argues that Irving's consent to search the locked storage area was
invalid because Irving lacked capacity to give a voluntary consent at the time of the
police's request. Richard points to Irving's conduct at the suppression hearing as
corroboration of his incapacity.

"'For a consent to search to be valid, two conditions must be met: (1) There must
be clear and positive testimony that consent was unequivocal, specific, and freely given
and (2) the consent must have been given without duress or coercion, express or
implied.'" State v. Ransom, 289 Kan. 373, 381, 212 P.3d 203 (2009) (quoting State v.
Thompson, 284 Kan. 763, 776, 166 P.3d 1015 [2007]). An "individual's mental state is
also a factor in determining the voluntariness of his or her consent to search." State v.
Holmes, 278 Kan. 603, 611, 102 P.3d 406 (2004) (citing United States v. Watson, 423
U.S. 411, 424-25, 96 S. Ct. 820, 46 L. Ed. 2d 598 [1976]). Voluntariness presents an
issue of fact which is reviewed on appeal for substantial competent evidence. Ransom,

18
289 Kan. at 380. The State bears the burden of establishing voluntariness. 289 Kan. at
380.

After reviewing all the evidence, the district judge ruled:

"In this case, looking in part particularly at the testimony of Irving Richard and what
consent he gave on July 17th of 2010, even today Mr. Richard states it was okay that the
police searched his house. I understand that—there is some understanding by the Court
that as he was here today, Irving's testimony might cause someone to raise some question
about his coherency and understanding of everything that was going on. The Court would
say that that is of little weight in terms of what Mr. Richard's condition is today
considering his age of 81 and the passage of 13 months since the date of the search. What
seems more clear to the Court [is] that the testimony provided supports that on July 17th
of 2010, Irving Richard did give his approval and his consent to search the back room of
the house. That was clear by his responses and actions.
"And the Court took specific note of the testimony that was given by Officer
Weidner that when talking with the woman that was not identified and with Irving
Richard on the day of the search, there was indication that when a key was requested in
the process—or I'm not sure even that a key was requested. It seemed to come from—it
may have come up from Mr. Irving Richard's mind himself that to be able to get into that
room, a key needed to be provided. And that the testimony was that Mr. Richard, Irving
Richard, went to the—back to his bedroom in the house, got a key ring, and from that key
ring provided a specific key, which was the key that opened the lock on that—the
padlock on the back [of the] residence. That would indicate to the Court that Mr. Irving
Richard had a clear understanding at the time of what he was giving consent to when he
located a key that worked for the padlock in the back room.
"The Court will deny the motion to suppress on the basis that consent was given
by the defendant to most of the residence, . . . and that consent was given to the back
room that was locked by Irving Richard."

The State argues Richard's claim amounts to nothing more than a request for this
court to reweigh the evidence in his favor. We agree. The district court's findings were
19
based on substantial competent evidence, and, therefore, Richard is not entitled to relief
on his claim that Irving's consent was involuntary.

Affirmed.

MORITZ, J., not participating.

20