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No. 111,797

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

DAVID MBUGUA MBURU,

Appellee.

SYLLABUS BY THE COURT

1.

An appellate court has jurisdiction to entertain a State's appeal only if it is taken 

within time limitations and in the manner prescribed by the applicable statutes.

2.

The State may appeal the suppression of a confession or admission as a matter of 

statutory right under K.S.A. 2013 Supp. 22-3603 without showing that the suppression 

substantially impairs the State's ability to prosecute the case. 

3.

A stipulation by a party to an element of the offense in a criminal case is relevant 

because it unequivocally proves a material fact.

4.

The law favors the admission of relevant evidence and the exclusion of such 

evidence is an extraordinary remedy that must be used sparingly. 
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5.

A court may exclude relevant evidence if it determines that the risk of unfair 

prejudice substantially outweighs the probative value. 

6.

A defendant's stipulation precludes a defendant from asking the trial judge to 

suppress evidence because a defendant has agreed the evidence can be admitted and 

considered.

7.

All evidence that is derogatory to the defendant is, by its nature, prejudicial to the 

defendant's claim of not guilty. Only relevant evidence that is unduly prejudicial may be 

excluded from consideration by the jury.

8.

The State has the right and the duty to establish the elements of the crime charged.

9.

A stipulation to evidence that could be legally admitted at trial absent the 

stipulation cannot be unduly prejudicial. 

10.

A court is required to submit an agreed-upon stipulation to an element of the crime 

to the jury for its consideration in the manner established in State v. Lee, 266 Kan. 804, 

815-16, 977 P.2d 263 (1999).

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed March 13, 

2015. Reversed and remanded.
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Alex M. Scott, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, 

attorney general, for appellant. 

Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, for appellee.

Before ARNOLD-BURGER, P.J., PIERRON and BUSER, JJ.

ARNOLD-BURGER, J.: David Mbugua Mburu is charged with the refusal to submit 

to alcohol or drug testing at a time when he had a prior driving under the influence (DUI)

conviction or diversion. See K.S.A. 2013 Supp. 8-1025(a)(2). Mburu stipulated to a prior 

DUI conviction; however, the district court determined that the stipulation would not be 

presented to the jury because its prejudicial effect outweighed its probative value. 

Instead, the district court determined that it would provide the jury with an elements 

instruction that excluded the stipulated element. The State filed this interlocutory appeal, 

asserting that the district court must allow Mburu's stipulation to be presented to the jury 

because it is an element of the crime. In response, Mburu asserts that this court does not 

have jurisdiction to hear the State's appeal because the State is unable to show that the 

prosecution would be substantially impaired by the court's ruling. Moreover, Mburu 

asserts that even if this court does have jurisdiction, the district court did not err in

suppressing the stipulation. Having carefully considered the record and the briefs, we find 

that we have jurisdiction to consider this appeal and that the court abused its discretion 

when it held that it was not going to provide the stipulation to the jury. We reverse and 

remand. 

FACTUAL AND PROCEDURAL HISTORY

A man identified as Mburu was allegedly driving erratically in Johnson County, 

Kansas. A witness reported the erratic driving and followed Mburu until he stopped and 

parked his car. When officers arrived at the scene, Mburu was stumbling, his speech was 
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slurred, and he smelled of alcohol. In addition, an empty bottle of vodka and an empty 

bottle of beer were found in his vehicle. Mburu refused to take a preliminary breath test. 

Mburu was charged with one count of felony DUI, one count of refusing a 

preliminary breath test, one count of refusing to submit to other tests at a time when he 

has a prior conviction for DUI, and one count of driving without an ignition interlock 

device. 

Mburu filed a motion in limine in which he requested to stipulate to his prior DUI 

convictions, but the stipulation would only be submitted to the district court. Mburu also 

asked for an order preventing the State from presenting such evidence to the jury, 

reasoning that because his prior conviction was an element of the charged crime and his 

stipulation to the element relieved the State of its burden to prove that element, then there 

is no justifiable reason to present such evidence to the jury. 

The State countered that it was willing to accept Mburu's stipulation, but it wanted 

to present the stipulation to the jury because every element of the crime had to be proven 

to the jury and the State was not willing to waive a jury trial on any element of the crime 

charged. 

Initially, the district court determined that the State could present evidence of 

Mburu's prior DUI convictions. However, on the day of trial, the district court reversed 

itself and held that the State could not present evidence of Mburu's prior DUI convictions 

because the prejudicial effect outweighed the probative value. This decision included the 

stipulation itself. But the district court was willing to give the jury a modified elements 

instruction that would exclude the element of a predicate conviction.

The State filed an interlocutory appeal from the district court's decision. 
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ANALYSIS

We have jurisdiction over the State's interlocutory appeal.

Mburu argues that this court lacks jurisdiction to hear the State's interlocutory 

appeal, relying on K.S.A. 2013 Supp. 22-3603, State v. Newman, 235 Kan. 29, 680 P.2d 

257 (1984), and State v. Mitchell, 285 Kan. 1070, 179 P.3d 394 (2008). Mburu asserts 

that the State failed to show that it will be substantially impaired in prosecuting the case 

by the district court's exclusion of any evidence of Mburu's prior convictions at trial. 

Mburu also contends that because the State's interlocutory appeal was unauthorized, his 

speedy trial rights were violated and the case against him should be dismissed. 

The State counters that the district court's actions resulted in the suppression of 

evidence that was vital to prove an element of the crime of refusing to take an alcohol 

test. Because the result was the suppression of evidence surrounding Mburu's necessary 

prior DUI conviction, including the stipulation or admission itself, K.S.A. 2013 Supp. 

22-3603 is triggered and the State, it argues, is allowed to file an interlocutory appeal. 

The State also addresses Mburu's speedy trial argument, asserting that the language of 

K.S.A. 2013 Supp. 22-3604 allows such appeals by the State and the time while the 

appeal is pending does not count towards speedy trial calculations. 

Whether jurisdiction exists is a question of law over which this court's scope of 

review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014). The right 

to appeal is entirely statutory and is not contained in the United States or Kansas 

Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to 

entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State 

v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013).
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The State's authority to appeal in a criminal case is limited by statute. The State 

may elect from the limited jurisdictional bases in its appeal. State v. Berreth, 294 Kan. 

98, 112, 273 P.3d 752 (2012). The appellate court has jurisdiction to entertain a State's 

appeal only if it is taken within time limitations and in the manner prescribed by the 

applicable statutes. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010). 

The applicable statute is K.S.A. 2013 Supp. 22-3603, which provides:

"When a judge of the district court, prior to the commencement of trial of a 

criminal action, makes an order quashing a warrant or a search warrant, suppressing 

evidence or suppressing a confession or admission an appeal may be taken by the 

prosecution from such order if notice of appeal is filed within 14 days after entry of the 

order. Further proceedings in the trial court shall be stayed pending determination of the 

appeal."

In addition, our Supreme Court held in Newman, 235 Kan. at 34, that

"the term 'suppressing evidence' as used in [K.S.A. 22-2603] is to have a broader 

meaning than the suppression of evidence which is illegally obtained. It should include 

not only 'constitutional suppression' but also rulings of a trial court which exclude State's 

evidence so as to substantially impair the State's ability to prosecute the case."

The Newman court made it clear that the prosecution is not allowed to file an 

interlocutory appeal from every "run-of-the-mill pretrial evidentiary ruling" of a district 

court. 235 Kan. at 35. "Interlocutory appeals are to be permitted only where the pretrial 

order suppressing or excluding evidence places the State in a position where its ability to 

prosecute the case is substantially impaired." 235 Kan. at 35; see also Sales, 290 Kan. at 

136 (quoting same). Accordingly, "the prosecutor should be prepared to make a showing 

to the appellate court that the pretrial order of the district court appealed from 

substantially impairs the State's ability to prosecute the case." 290 Kan. 130, Syl. ¶ 5.
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In this case, the State charged Mburu with one count of refusing to submit to 

alcohol or drug testing under K.S.A. 2013 Supp. 8-1025. One of the requirements to 

convict a defendant of refusing to submit to testing is that the defendant either (1) has 

previously refused to take a test on or after July 1, 2001, and the defendant was 18 years 

of age or older or (2) has a prior DUI conviction or diversion that occurred on or after 

July 1, 2001, and the defendant was 18 years of age or older. K.S.A. 2013 Supp. 8-

1025(a). Mburu stipulated that he had two prior DUI convictions for purposes of 

establishing the element required by K.S.A. 2013 Supp. 8-1025(a)(2). 

The parties agree that by refusing to allow the State to present the stipulation to an 

element of the crime to the jury, the court was suppressing all the evidence of that 

element. But Mburu, relying on Newman, argues that it is not enough that the court 

suppressed evidence, the State is required to show the prosecution will be substantially 

impaired by the court's ruling and it cannot do so under these facts. Because he turns to 

Mitchell, 285 Kan. 1070, to bolster his argument, we will examine the facts of Mitchell in 

more depth. 

In Mitchell, the defendant was charged with unlawful possession of a firearm, of 

which one of the elements is that the defendant has prior felony convictions or has been 

previously adjudicated a felon. The district court accepted the defendant's stipulation 

regarding his status as a felon who was prohibited from possessing a firearm. Because of 

the stipulation, the State was not allowed to present any additional evidence to the jury 

pertaining to the defendant's prior convictions. Unlike here, however, the stipulation was 

presented to the jury. 

The State filed an interlocutory appeal, arguing—as it does here—that relying 

solely on the stipulation prevented the State from proving all of the elements of the crime 

of unlawfully possessing a firearm. Our Supreme Court disagreed, deciding that the State 

failed to show that the district court's acceptance of the stipulation was erroneous. 285 
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Kan. at 1079. The court concluded that this did not equate to a suppression of evidence 

because all the evidence necessary to establish the elements of the crime was submitted to 

the jury. In addition, the State was not able to establish that the exclusion of additional 

evidence on the prior convictions substantially impaired its ability to prosecute the case. 

Because of this failure, the State's interlocutory appeal was unauthorized and the court 

did not have jurisdiction to decide the appeal. See 285 Kan. at 1072-80.

Mitchell is distinguishable from Mburu's case because here the judge essentially 

suppressed all evidence of Mburu's prior convictions and, more importantly, Mburu's 

pretrial admission to one of the elements of the crime. In Mitchell, that admission or 

stipulation was admitted and presented to the jury. Here it was suppressed. The judge 

denied the prosecution the opportunity to present the most basic information regarding an 

element of the offense to the jury.

The State contends that requiring it to present evidence that the prosecution would 

be substantially impaired by the suppression of this evidence reads "nonexistent language 

into K.S.A. 22-3603" and all the State is required to show is that the evidence was 

suppressed. Notwithstanding Newman, the State relies on State v. Mooney, 10 Kan. App. 

2d 477, 479, 702 P.2d 328, rev. denied 238 Kan. 879 (1985), to assert that unlike the 

general suppression of evidence, the suppression of a confession or admission does not 

require the State to prove that the prosecution will be substantially impaired by the ruling. 

So we next examine Mooney.

In Mooney, which was decided shortly after Newman, this court found that the 

language requiring the State to demonstrate substantial impairment of its ability to 

prosecute the case related only to the suppression of evidence. It does not apply to 

"quashing a warrant or search warrant" or "suppressing a confession or admission," both 

additional grounds for an interlocutory appeal set out in K.S.A. 2013 Supp. 22-3603. The 

holding in Newman, the court found, has no application in the suppression of a confession 
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or admission, and the State may appeal in those situations as a matter of statutory right. 

Mooney, 10 Kan. App. 2d at 479-80. 

The Supreme Court denied review of Mooney, and we find that the distinction 

made therein is still persuasive and is consistent with the plain language of the statute. 

Although this case did involve suppression of evidence, it more specifically involved 

suppression of a stipulation or admission to an element of the crime. See Bourne v. 

Atcheson, T. & S. F. Rly. Co., 209 Kan. 511, 517, 497 P.2d 110 (1972) ("A stipulation 

has been defined as an agreement, admission or concession made in judicial proceedings

by the parties thereto or their attorneys."); State v. Stegman, 41 Kan. App. 2d 568, 571, 

203 P.3d 52 (2009) (stipulations are judicial admissions). As such, we find consistent 

with Mooney that Newman has no application and the State was not required to show 

substantial impairment in the ability to prosecute the case. The State had the statutory 

right to appeal the suppression of Mburu's admission to an element of the crime.

Because we find that we do have jurisdiction over this appeal, we need not address 

Mburu's speedy trial claims. 

The district court erred when it determined that Mburu's stipulation could be kept from 

the jury altogether. 

The State asserts that the district court erred when it suppressed Mburu's 

stipulation to a prior driving under the influence conviction. Before discussing the district 

court's action here, we first examine our standard of review. 

We examine our standard of review.

When deciding whether evidence will be admitted and viewed by the jury, the first 

step is to determine whether the evidence is relevant. State v. Carapezza, 286 Kan. 992, 
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997, 191 P.3d 256 (2008). All relevant evidence is admissible unless prohibited by 

statute. K.S.A. 60-407(f). Relevant evidence is any "evidence having any tendency in 

reason to prove any material fact." K.S.A. 60-401(b). But a court may exclude relevant 

evidence if it determines that the risk of unfair prejudice substantially outweighs the 

probative value. State v. Miller, 284 Kan. 682, 690, 163 P.3d 267 (2007); see K.S.A. 60-

455. The law favors the admission of relevant evidence and the exclusion of such 

evidence is an extraordinary remedy that must be used sparingly. 284 Kan. at 690-91. We 

review the determination of whether evidence is unduly prejudicial under an abuse of 

discretion standard. State v. Reid, 286 Kan. 494, 512, 186 P.3d 713 (2008). A judicial 

action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or 

unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. 

Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The 

burden of proof is on the party alleging that the discretion was abused. Reid, 286 Kan. at 

512.

A stipulation by a party to an element of the offense in a criminal case is relevant 

because it unequivocally proves a material fact. But in this case the district judge 

indicated her intent to exclude the stipulation from consideration by the jury because she 

found that it was "highly prejudicial." In fact, she indicated the "gut of that crime is the 

prior." Accordingly, we must determine whether the determination that the stipulation 

was unduly prejudicial, and therefore inadmissible, constituted an abuse of discretion.

Lee and Mitchell set out the proper procedure to be used in the case of a 

stipulation to a prior criminal offense.

This is a matter of first impression in Kansas. Although there are several cases in 

Kansas involving a defendant who stipulates to being a felon for purposes of the felon in 

possession of a firearm offense, in all cases the stipulation was presented to the jury and 

only the additional evidence of the details of the offenses were excluded. Cf. Mitchell, 
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285 Kan. at 1072-74; State v. Lee, 266 Kan. 804, 809, 977 P.2d 263 (1999); State v. 

Ramirez, 50 Kan. App. 2d 922, 926-27, 334 P.3d 324 (2014), petition for rev. filed 

October 27, 2014; State v. Coleman, No. 107,117, 2013 WL 1859194, at *3 (Kan. App. 

2013) (unpublished opinion), rev. denied 298 Kan. ___ (December 27, 2013). None 

involve the court's refusal to provide the stipulation to the jury and, instead, submit a 

modified elements instruction sans the stipulated element.

In Lee, the seminal case on this issue, our Supreme Court determined that in a case 

where the defendant's status is an element of the offense—in Lee's case his status as a 

felon—a defendant may stipulate that he or she has the necessary predicate conviction 

and the court is required to accept the stipulation. See 266 Kan. at 814-15. The district 

court may then give the jury an instruction that indicates that the status element of the 

crime is proven by the parties' stipulation. The court set out a specific procedure to be 

followed:

"(1) When requested by a defendant in a criminal possession of a firearm case, the district 

court must approve a stipulation whereby the parties acknowledge that the defendant is, 

without further elaboration, a prior convicted felon. (2) At the same time, the State may 

place into the record, at its discretion, the actual judgment(s) and sentence(s) of the prior 

felony conviction(s). (3) Neither these documents nor the number and nature of the prior 

convictions should be disclosed to the trial jury. (4) Out of the jury's presence and after 

consultation with counsel, the defendant should be required to personally acknowledge 

the stipulation and his or her voluntary waiver of his or her right to have the State 

otherwise prove the convicted felon status element beyond a reasonable doubt. (5) The 

defendant's stipulation of convicted felon status satisfies the prosecution's burden of proof 

for that element of the crime. (6) If the element of 'convicted felon' is established by 

stipulation, 'the judge may thereafter instruct the jury that it can consider the convicted 

felon status element of the crime as proven by agreement of the parties in the form of a 

stipulation.' [Citation omitted]." 266 Kan. at 815-16.
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The facts of Mburu's case are similar to those in Lee and Mitchell. While both Lee, 

and subsequently Mitchell, discussed the defendant's status as a prior convicted felon for 

the crime of criminal possession of a firearm, in Mburu's case, the status element is that 

he has a prior DUI conviction. Because all three cases involve the stipulation to a 

predicate crime that establishes the defendant's status, we find that the same analysis used 

by the Supreme Court in Lee and Mitchell applies here. Therefore, Mburu can stipulate 

that he has a prior DUI conviction; the district court is required to accept the stipulation; 

and then the district court may give a jury instruction indicating that Mburu's status has 

already been proven by the parties' stipulation. See Lee, 266 Kan. at 815-16; Mitchell, 

285 Kan. at 1079.

But was the court's refusal to give the instruction because it was "highly 

prejudicial" error? We believe it was.

The stipulation to an element of the offense is not unduly prejudicial.

As the court stated in Lee, "the State has the right and, in fact the duty, to establish 

the elements of the crime charged. The State also has an interest in presenting its case in 

its own way by telling the story as the State wishes." 266 Kan. at 815. Moreover, a 

defendant's stipulation precludes a defendant from asking the trial judge to suppress 

evidence because a defendant has agreed the evidence can be admitted and considered. 

State v. Kelly, 295 Kan. 587, 591, 285 P.3d 1026 (2012). 

But what if, as the court found here, the stipulation is "highly prejudicial?" Does 

that make a difference and, contrary to Kelly, allow a defendant to stipulate to evidence 

but then allow that same evidence to be suppressed or withheld from the jury? To answer 

this question, we must examine the prejudicial nature of the stipulation.
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"All evidence that is derogatory to the defendant is by its nature prejudicial to the 

defendant's claim of not guilty. Evidence that actually or probably brings about a wrong 

result under the circumstances of the case is 'unduly prejudicial.'" State v. Clark, 261 

Kan. 460, 477, 931 P.2d 664 (1997). Only relevant evidence that is unduly prejudicial 

may be excluded from consideration by the jury.

There can be no dispute that if there had been no stipulation here, the State would 

be free to present evidence to the jury that the defendant had been convicted of two DUI 

offenses. Clearly advising the jury that the defendant has been convicted of DUI in the 

past is prejudicial, just as most evidence establishing the elements of a crime is 

prejudicial. But we cannot conceive of any reason why advising the jury that the 

defendant has admitted to one of the elements of the crime is "unduly" prejudicial. It is an 

element of the crime charged and the State is entitled to, and in fact has the burden to, set 

out the evidence supporting the elements of the crime. The defendant stands charged with 

the crime and all its attendant elements. The point behind Lee and Mitchell is that if the 

defendant stipulates to an element related to a prior crime the prosecution is required to 

accept the stipulation and cannot pile on additional evidence related to the prior crime or 

add additional prior crimes not needed to establish that element. In light of such a 

stipulation, the jury is not entitled to information concerning the nature and substance of 

the convictions. See Lee, 266 Kan. at 815. Accordingly, we conclude that a stipulation to 

evidence that could be legally admitted at trial absent the stipulation cannot be unduly 

prejudicial. 

Here, Mburu was willing to stipulate that he had two prior DUI convictions. But it 

was the State that noted that only one prior conviction was necessary to prove the status 

element of the crime. The remaining conviction would only be used as an aggravating 

factor to consider when imposing his sentence under K.S.A. 2013 Supp. 8-1025. 

Accordingly, the proposed stipulation only noted one prior diversion, the minimal 

necessary to establish that element. It would have been significantly more prejudicial if 
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the stipulation had not been made and the State had introduced specific and perhaps more 

revealing evidence of Mburu's two prior DUIs, which it clearly would have been allowed 

to do to prove that element of the offense. See United States v. Mason, 85 F.3d 471, 473 

(10th Cir. 1996) (finding judge did not err in providing an "antiseptic stipulation" to the 

jury in light of the prejudicial impact of the evidence that could have been submitted in

the absence of the stipulation). It is arbitrary to deem one unduly prejudicial (the 

stipulation) but not the other (evidence and testimony to prove the status element in the 

absence of a stipulation). Moreover, if the court was concerned about the prejudicial 

impact of the stipulation, there is nothing to prevent the court from giving the jury a 

limiting instruction, while still allowing the State to present its entire case to the jury 

without bifurcation. See Coleman, 2013 WL 1859194, at *3-4 (failure to give limiting 

instruction regarding proof of a prior offense which is an element of the current offense, 

in absence of request, is not reversible error). But keeping the stipulation from the jury 

and modifying the elements instruction over the prosecution's objection was not an 

option. 

In sum, we find that the district court's decision to exclude the stipulation 

regarding a prior DUI conviction from the jury instructions was an abuse of discretion. 

Consistent with our Supreme Court's rulings in Lee and Mitchell, we find that the court is 

required to submit the agreed-upon stipulation to an element of the crime to the jury for 

its consideration.

Reversed and remanded.