NOT DESIGNATED FOR PUBLICATION
No. 124,005
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CITY OF EMPORIA,
Appellee,
v.
TATUM GUYER,
Appellant.
MEMORANDUM OPINION
Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed April 1, 2022.
Affirmed.
James Bordonaro, of Emporia, for appellant.
Brandy Roy-Bachman, municipal prosecutor, City of Emporia, for appellee.
Before ISHERWOOD, P.J., GREEN and BRUNS, JJ.
PER CURIAM: Tatum Guyer appeals the trial court's decision to convict her of
domestic battery in violation of K.S.A. 2020 Supp. 21-5414(a). Guyer, whose case
originated in municipal court, argues that the trial court lacked jurisdiction to convict her
of K.S.A. 2020 Supp. 21-5414(a) because K.S.A. 2020 Supp. 12-4104(a)—the statute
controlling municipal court jurisdiction—barred the City of Emporia from prosecuting
her for violating a state statute. Nevertheless, because Guyer's argument is unpersuasive,
we affirm her domestic battery conviction.
1
BACKGROUND
On March 19, 2019, police were dispatched to Guyer and her boyfriend Jacob
Slater-Figueroa's apartment. Once there, Guyer told the police that she and Slater-
Figueroa had been in an argument, which escalated into a physical conflict. She alleged
that during the argument, Slater-Figueroa pushed her when she asked him to leave. She
also admitted that after he pushed her, she pushed him back while pulling his hair. During
his police interview, though, Slater-Figueroa asserted that Guyer started the fight by
trying to take his phone charger from his hands as he was leaving their apartment. He told
the police that he responded by pushing Guyer off him. But Guyer, in turn, responded by
pushing him, punching him, hitting his face, and scratching his face.
In the end, the police arrested Guyer for domestic battery. And ultimately, the
arresting officer completed Guyer's Uniform Complaint and Notice to Appear for
Emporia's municipal court. This complaint stated that Guyer was charged with domestic
battery contrary to K.S.A. 2020 Supp. 21-5414(a).
Several days after her arrest, to avoid prosecution, Guyer entered into a diversion
agreement with the City. This diversion agreement stated that Guyer was charged with
domestic battery contrary to City Ordinance, Chapter No. 16, Section 54a. See Code
§ 16-54(b). It stated that Guyer "stipulate[d] to the facts contained in [her] complaint and
the police reports." It explained that if Guyer violated her diversion agreement, the City
would prosecute her "on the record of the stipulation of facts." It further stated the
following: (1) that Guyer had read the diversion agreement, (2) that the diversion
coordinator had explained the diversion agreement to Guyer, and (3) that the municipal
court had explained Guyer's charge, possible penalties, and rights to Guyer.
About a year later, the City moved to revoke Guyer's diversion based on her
failure to complete certain diversion conditions. Eventually, the municipal court held a
2
hearing on the City's revocation motion, where Guyer stipulated to violating her diversion
agreement. Afterwards, the municipal court found Guyer guilty under Code § 16-54,
relying on Guyer's stipulation to the facts contained in the police report as the factual
basis for her conviction.
Guyer appealed her domestic battery conviction to the Lyon County District
Court. There, Guyer complained that her municipal court complaint needed amending
because it charged her with violating K.S.A. 2020 Supp. 21-5414(a)—a state statute. In
support of her argument, Guyer alleged that municipal courts may convict people of
violating only municipal ordinances. Guyer also made several arguments about why
enforcing her diversion agreement was unfair under the facts of her case. In doing so, she
complained that the trial court should not rely on stipulated facts that she and the City
agreed to under her diversion agreement when conducting her de novo trial on appeal.
The City countered that the trial court had jurisdiction over Guyer's appeal because
Guyer's diversion agreement and other court filings listed Guyer as violating Code § 16-
54. The City argued that given those documents, Guyer had adequate notice of her
domestic battery charge. Additionally, it asserted that Guyer's argument was otherwise
baseless because Guyer's diversion agreement stated that any future criminal proceedings
would be conducted on the record of the previously agreed stipulated facts.
Before holding Guyer's trial, the trial court issued a memorandum decision that
addressed many of Guyer's outstanding arguments. In it, it rejected Guyer's argument that
she was not bound by her stipulated facts before the municipal court during her de novo
trial on appeal because this contradicted the plain language of her diversion agreement.
But it did not directly address Guyer's argument about the adequacy of her municipal
court complaint. Rather, it ruled:
3
"This Court is not unmindful that [Guyer] has made numerous arguments which
have not been directly addressed in this decision. Suffice it to say, however, this Court
has addressed those which appeared to merit consideration."
In any case, after issuing this memorandum decision, the trial court held a de novo
trial based on stipulated facts over Guyer's objection. Although Guyer's diversion
agreement provided that Guyer "stipulate[d] to the facts contained in [her] complaint and
the police reports," Guyer and the City agreed on new stipulated facts before her de novo
trial. Relying on those new stipulated facts, the trial court rejected Guyer's argument that
she was not guilty of domestic battery because she acted in self-defense for the following
reasons:
"The question for a judge in a case of this type is whether the City has met its burden to
prove all of the evidence of the crime charged beyond a reasonable doubt. The crime of
domestic battery requires proof of several elements. And while, generally, a Court is only
required to render a verdict of either guilty or not guilty, I'll make some comment about
those elements.
"Element Number 1 requires the City to prove beyond a reasonable doubt that
[Guyer] knowingly caused bodily harm to Mr. Slater-Figueroa or that [Guyer] knowingly
caused physical contact with Mr. Slater-Figueroa in a rude, insulting, or angry manner.
"The next element of it is, is that [Guyer] and Mr. Slater-Figueroa were family or
household members as defined by law or that they were involved in a dating relationship.
The definition of family or household member includes persons 18 years of age or older,
who are spouses, former spouses, parents, or stepchildren, and persons who are presently
residing together or who have resided together in the past. There is no doubt in my mind
that these two parties were considered to be household members at on or about the time
of the act complained about by the City.
"The photographs here would demonstrate to the Court that there was some
physical harm caused to Mr. Slater-Figueroa, although, somewhat minor in nature, more
in the nature of red marks as opposed to any type of lacerations, cuts, or any other type of
obvious injury.
4
"Under the circumstances here, I think probably the Stipulation of Fact Number
22 probably pretty much controls the outcome of the case. While [Guyer] argues that
self-defense might be an appropriate act, that self-defense defense requires only or allows
only the type of force that would be allowed to repel an attacker and does not allow an
individual to continue a confrontation once there has been a separation. And Stipulation
Number 22 indicates that after the parties had separated, and as Mr. Slater-Figueroa went
to the front door, Ms. Guyer then grabbed him by the hair to prevent him from leaving
and started to punch him in the face. There is nothing about that set of facts that would
indicate that this was purely a self-defense situation. And while you might consider
everything up to that point in time to be a situation of where you could excuse her
conduct as self-defense, the initiation of new contact is not self-defense.
....
"Accordingly, I think the evidence here, Number 1, supports both alternatives as
to how to prove the crime of . . . domestic battery. First of all, there is the obvious bodily
harm, as reflected in the photograph. Secondly, the other alternative is, is that there was
simple, physical contact in a rude, insulting, or angry manner. No question in my mind
about that either. The only question here, was it knowingly? And I think from the
evidence presented, it's pretty obvious that her . . . conduct was knowingly in all respects.
Therefore, it's my decision that Ms. Guyer is found guilty of the offense of domestic
battery as charged by the City of Emporia in the commencement of the case."
Then, the trial court remanded Guyer's case to the municipal court for sentencing.
Before this remand occurred, however, Guyer timely appealed the trial court's decision to
this court.
ANALYSIS
On appeal, Guyer contends that the trial court wrongly convicted her of domestic
battery because it, like the municipal court, lacked jurisdiction to do so. According to
Guyer, "because K.S.A. 12-4104(a) does not authorize the prosecution of state statutes in
municipal courts," the trial court also lacked jurisdiction to convict her of domestic
battery under K.S.A. 2020 Supp. 21-5414(a). In effect, Guyer argues that because her
5
municipal court complaint charged her with a crime that was not a crime under Emporia's
municipal code, neither it nor the trial court had jurisdiction to convict her of that
improperly charged crime. She also argues that the municipal court complaint was
defective because Code § 16-54(b) and K.S.A. 2020 Supp. 21-5414(a) have different
elements.
Originally, in a related alternative argument, Guyer contended that we should
reverse her domestic battery conviction because the City presented evidence that she only
knowingly battered Slater-Figueroa under K.S.A. 2020 Supp. 21-5414(a). But Guyer
abandoned this argument when we granted her motion to file a corrected brief. So, we do
not consider this argument below. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787
(2018) (holding that an issue not briefed is deemed waived and abandoned).
Additionally, we decline to consider the new statutory construction arguments
Guyer has raised in her so-called corrected brief. Guyer asked this court for permission to
file a corrected brief because she realized that her alternative argument—the argument
that she has abandoned in her corrected brief—clearly contradicted Code § 16-54's plain
language. We granted Guyer's motion to file a corrected brief for this limited purpose.
We did not grant Guyer's motion so she could amend her argument about K.S.A. 2020
Supp. 12-4104(a) not allowing municipal courts to prosecute state statutes.
As for the arguments properly before us, the City concedes that Guyer's complaint
alleged that Guyer had violated K.S.A. 2020 Supp. 21-5414(a). Even so, the City argues
that Guyer's jurisdiction argument is baseless because the municipal court amended
Guyer's domestic battery charge to a violation of Code § 16-54(b) before Guyer entered
her diversion agreement. In making this argument, the City contends that some municipal
court journal entries are missing from the record on appeal. Notwithstanding this
problem, the City asserts that the documents included in the record on appeal prove that
6
Guyer's charge was amended and that Guyer otherwise had notice that she was entering a
diversion agreement to avoid conviction of domestic battery under Code § 16-54.
Questions concerning charging document errors involve questions of law over
which we exercise unlimited review. State v. Dunn, 304 Kan. 773, 819, 375 P.3d 332
(2016). Although Guyer contends that her municipal court complaint's alleged
inadequacies caused the trial court to lack jurisdiction, our Supreme Court has held that
charging document defects do not destroy the existence of subject matter jurisdiction. 304
Kan. at 815-16. Instead, when defendants allege that their charging document failed to
state facts constituting a crime, they raise a statutory error that implicates but does not
deprive a court of jurisdiction. 304 Kan. at 816.
Still, such charging document errors are serious because the charging document
must give a defendant adequate notice of all charged crimes. 304 Kan. at 816. In cases
where the charging document fails to state facts constituting a crime, our Supreme Court
has held that a defendant's disputed conviction must be reversed unless the government
proves the following: (1) that the defendant failed to preserve his or her argument for
appeal, (2) that the charging document error was technical or inadvertent as stated under
K.S.A. 60-2105, or (3) that the charging document error was harmless as stated under
K.S.A. 60-261. Dunn, 304 Kan. at 816-17. Under K.S.A. 60-2105, "mere technical errors
and irregularities which do not affirmatively appear to have prejudicially affected the
substantial rights of the party complaining," based on a review of the record as a whole,
are not sufficient basis for reversal on appeal when "substantial justice has been done by
the judgment or order of the trial court."
But there are some problems with Guyer's argument. To begin with, Guyer has not
established that her municipal court case violated K.S.A. 2020 Supp. 12-4104. Statutory
interpretation is a question of law over which this court exercises unlimited review. State
v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
7
K.S.A. 2020 Supp. 12-4104(a)(2) states:
"(a) The municipal court of each city shall have jurisdiction to hear and
determine cases involving violations of the ordinances of the city, including concurrent
jurisdiction to hear and determine a violation of an ordinance when the elements of such
ordinance violation are the same as the elements of a violation of one of the following
state statutes and would constitute, and be punished as, a felony if charged in district
court:
....
(2) K.S.A. 2020 Supp. 21-5414, and amendments thereto, domestic battery."
(Emphases added.)
So, contrary to Guyer's argument, K.S.A. 2020 Supp. 12-4104 does not bar the
municipal court from hearing any cases involving violations of state crimes. Instead, the
plain language of K.S.A. 2020 Supp. 12-4104 establishes that the municipal court has
jurisdiction over a defendant's domestic battery charge when that defendant's domestic
battery charge would constitute a felony if originally charged in the trial court. And to
determine whether a defendant's domestic battery charge would constitute a felony if
originally charged in the trial court, we must know whether the defendant has previously
committed a domestic battery. See K.S.A. 2020 Supp. 21-5414(c)(1).
In this case, though, Guyer has never argued that her domestic battery would not
have been charged as a felony if originally charged in the trial court. See Arnett, 307 Kan.
at 650 (holding that an issue not briefed is deemed waived and abandoned). Also, she has
not included any information about her criminal history in the record on appeal. See State
v. Simmons, 307 Kan. 38, 43, 405 P.3d 1190 (2017) (holding that the appellant carries the
burden of designating a record on appeal that establishes his or her claim or error).
Therefore, neither Guyer's argument nor her record on appeal support her claim that the
municipal court had no authority to convict her of domestic battery under K.S.A. 2020
Supp. 21-5414(a).
8
To the extent Guyer argues that the plain language of K.S.A. 12-4104 required the
municipal court complaint to expressly charge her with Code § 16-54(b) instead of
K.S.A. 2020 Supp. 21-5414(a), there are other problems with this argument. For starters,
although Guyer references Emporia's domestic battery ordinance, she never analyzes it in
her brief. Likewise, she never challenges the fact that other filings associated with her
case stated that she was charged under Code § 16-54 generally, instead of the subsection
of the code that specifically criminalizes domestic battery—Code § 16-54(b). Also, the
fact that other filings indicate that she was charged with some version of Code § 16-54
tends to support the City's contention that the municipal court amended Guyer's charge at
some point. In summary, because Guyer's argument hinges on whether her municipal
court complaint was defective for charging her with domestic battery under K.S.A. 2020
Supp. 21-5414(a) instead of Code § 16-54(b), Guyer's failure (1) to address why Code
§ 16-54 was cited in some of her municipal court documents below and (2) to analyze
why Code § 16-54(b)'s plain language supports her argument on appeal is fatally flawed.
See Arnett, 307 Kan. at 650 (holding that an issue not adequately briefed by an appellant
are deemed waived and abandoned).
Yet, notwithstanding this problem, Guyer's argument ignores that Code § 16-54(b)
and K.S.A. 2020 Supp. 21-5414(a) are identical. Under of Code § 16-54(b)(1), a person
commits domestic battery by "[k]nowingly or recklessly causing bodily harm to a person
with whom the offender is involved or has been involved in a dating relationship or a
family or household member." This language mirrors K.S.A. 2020 Supp. 21-5414(a)(1).
Under Code § 16-54(b)(2), a person commits domestic battery by "[k]nowingly causing
physical contact with a person with whom the offender is involved or has been involved
in a dating relationship or a family or household member when done in a rude, insulting
or angry manner." This language mirrors K.S.A. 2020 Supp. 21-5414(a)(2). As a result,
even if we assumed that the municipal court complaint was defective for citing K.S.A.
2020 Supp. 21-5414(a) instead of Code § 16-54(b), any error within the complaint was
inadvertent and harmless. Because the two domestic battery provisions have identical
9
language, it necessarily follows that this alleged defect had no effect on Guyer's
substantial rights.
Affirmed.
10