                           NOT DESIGNATED FOR PUBLICATION

                                              No. 120,152

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       JUSTIN GEORGE DERN,
                                             Appellant,

                                                    v.

                                          STATE OF KANSAS,
                                              Appellee.


                                   MEMORANDUM OPINION

        Appeal from Pottawatomie District Court; GARY L. NAFZIGER and JEFFREY R. ELDER, judges.
Opinion filed March 6, 2020. Affirmed.


        Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.


        Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.


Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.


        PER CURIAM: Justin George Dern appeals the district court's decision denying his
K.S.A. 60-1507 motion raising ineffective assistance of trial counsel and other claims.
The judge assigned to the K.S.A. 60-1507 proceedings was the same judge who had
presided over Dern's criminal trial and his divorce proceedings. Dern filed a motion for
recusal and, after that was denied, he filed an affidavit articulating his grounds for
requesting recusal. The chief district judge reviewed the affidavit and denied the request
for recusal. Dern's K.S.A. 60-1507 motion was later denied following an evidentiary
hearing, but his sole issue on appeal is whether the district court erred by denying his

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motion for recusal. For the reasons stated in this opinion, we affirm the district court's
judgment.


                        FACTUAL AND PROCEDURAL BACKGROUND

       In April 2011, a jury convicted Dern of two counts of aggravated criminal sodomy
and two counts of aggravated indecent liberties with a child, offenses he committed
against his three-year-old daughters. Dern appealed, and the Kansas Supreme Court
affirmed his aggravated indecent liberties with a child convictions and their consecutive
life sentences, but it reversed his aggravated criminal sodomy convictions because the
State had not presented sufficient evidence of each alternative mean of committing those
crimes. State v. Dern, 303 Kan. 384, 412, 362 P.3d 566 (2015).


       On June 1, 2016, Dern timely filed a pro se motion for habeas corpus relief under
K.S.A. 60-1507. He alleged that the use at his criminal trial of incriminating statements
he made while hospitalized violated his constitutional rights against self-incrimination, to
due process, and to equal protection under the law, and he alleged that his trial counsel
provided unconstitutionally deficient representation. Many of Dern's issues involved the
fact that the Honorable Jeff Elder presided over the criminal trial and Dern's divorce
proceedings, which occurred around the same time.


       As for his inadequate representation argument, Dern alleged that his trial counsel:
(1) failed to act when Dern informed counsel that Judge Elder had presided over his
divorce hearing; (2) failed to act when Judge Elder referred to the divorce "during the
[criminal] trial"; (3) failed to act on information that Judge Elder engaged in what Dern
believed were ex parte communications with Dern's ex-mother-in-law throughout the
criminal trial; (4) failed to object to evidence that allegedly violated a motion in limine
order about posttraumatic stress disorder; (5) failed to request a mistrial when witnesses
violated the district court's sequestration order; (6) failed to admit at trial interviews with

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Dern's daughters that allegedly included exculpatory statements; (7) failed to object to
Dern's daughters being found unavailable to testify at trial; (8) failed to interview certain
witnesses and present certain evidence; and (9) presented no substantive defense to the
charges. Dern asked the district court to reverse his convictions, appoint counsel, and
"[i]ssue a[n] order that the judge recuse himself from any further involvement in the
case." Judge Elder was assigned to preside over the K.S.A. 60-1507 proceedings.


       On June 23, 2016, the district court appointed counsel to represent Dern in the
K.S.A. 60-1507 proceedings. On August 11, 2016, Dern's counsel filed a motion for
recusal under K.S.A. 20-311d. In accordance with K.S.A. 20-311d(a), the district court
heard the motion informally on October 20, 2016, and it then denied the motion.


       On November 15, 2016, Dern filed an affidavit alleging specific grounds for
recusal of Judge Elder in accordance with K.S.A. 20-311d(c). He alleged that while
presiding over his divorce proceedings "approximately a week and a half prior to the
criminal trial," Judge Elder made the comment that "'[i]f things go the way Mr. Dern
wants them to go in the criminal trial, then we will return here to discuss the custody of
the children. For now, I am going to award sole custody of the children to Ms. Dern.'"


       Dern also asserted that he had told two attorneys who represented him in the
criminal proceedings that he needed a change of judge because his ex-mother-in-law,
Sandy Bosse, had worked for Judge Elder, so he was worried Judge Elder would be
biased against him. He alleged that during recesses in the criminal trial, he saw Bosse
"coming and going from a doorway leading from the courtroom into the district court
clerk's area and then onto [sic] the judge's chambers." Although he acknowledged that no
one had "followed [her] through the door from the courtroom," so he did not know
whether she had gone into the judge's chambers, Dern believed that Bosse was engaging
in "ex parte communications" with Judge Elder, and he questioned whether she should
have been allowed in that area since she was not a court employee or a court official.

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       Dern also asserted that during his criminal trial, Judge Elder was aware of
misconduct by certain witnesses, including violating the court's sequestration order, but
Judge Elder merely told those witnesses to cease their behavior rather than taking more
severe action. Finally, Dern alleged that when he testified at his criminal trial and during
defense counsel's closing argument, Judge Elder "turned his back to the jury and [Dern]
and started looking at his watch [and] the clock on the wall and would swivel back and
forth in his chair." In contrast, when the prosecutor gave her closing argument, "Judge
Elder gave her his utmost attention. Even as far as chin in hands, elbows on desk with his
eyes and face turned toward her at all times."


       On November 17, 2016, Dern filed a second motion for recusal under K.S.A. 20-
311d and for reassignment of the proceedings by the administrative judge. In an order
filed December 22, 2016, Chief District Judge Gary Nafziger denied the motion, holding:


       "[T]he Affidavit contains conclusions and allegations, but no specific facts, which would
       lead this Court to conclude by a preponderance of the evidence that the Honorable Jeff
       Elder cannot fairly and impartially consider the evidence presented in the matter in
       dispute and make findings of fact and conclusions of law based upon the evidence
       presented at this time."


       The district court held an evidentiary hearing on Dern's K.S.A. 60-1507 motion
beginning on September 7, 2017, presided over by Judge Elder. Dern and his trial counsel
in the criminal case testified at the hearing. On March 2, 2018, the district court issued its
memorandum decision denying Dern's K.S.A. 60-1507 motion, rejecting Dern's self-
incrimination claim and finding that "Dern has failed to sustain his burden that his
counsel provided him with ineffective assistance of counsel." Dern timely appealed.




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                                                  ANALYSIS

          Dern's sole claim on appeal is that the district court erred in denying his motion for
recusal. Dern does not challenge the district court's March 2, 2018 memorandum decision
denying the merits of his ineffective assistance of trial counsel and other claims. The
State argues that the facts alleged in Dern's affidavit of recusal failed to create a
reasonable doubt about Judge Elder's impartiality in the K.S.A. 60-1507 proceedings.


          "In Kansas, there are at least three possible substantive bases on which a litigant
may argue that a judge's recusal is required": (1) statutory factors under K.S.A. 20-311d;
(2) the Kansas Code of Judicial Conduct; and (3) the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. State v. Sawyer, 297 Kan. 902,
905-06, 305 P.3d 608 (2013). Dern raises arguments under K.S.A. 20-311d and the
Kansas Code of Judicial Conduct. The Kansas Supreme Court has made clear that the
analytical framework for reviewing the denial of a motion for change of judge depends
on the basis for the challenge. See Sawyer, 297 Kan. at 907-08.

K.S.A. 20-311d

          In Kansas, if a motion to recuse a judge is denied after an informal hearing, the
moving party may file an affidavit alleging the specific grounds for recusal and the chief
judge will either determine the legal sufficiency of the affidavit or refer the affidavit to
another judge for that determination. K.S.A. 20-311d(a)-(b). Such an affidavit may
allege:


                  "(5) The party or the party's attorney filing the affidavit has cause to believe and
          does believe that on account of the personal bias, prejudice or interest of the judge such
          party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-
          judgment remedies. Such affidavit shall state the facts and the reasons for the belief that
          bias, prejudice or an interest exists." K.S.A. 20-311d(c).



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         Reviewing the denial of a motion to recuse under K.S.A. 20-311d involves two
steps:


         "'(1) Did the . . . judge have a duty to recuse himself or herself from this case because the
         judge was biased, prejudicial, or partial? [and] (2) If the judge did have a duty to recuse
         and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside
         the judgment of the trial court?'" State v. Reed, 282 Kan. 272, 277, 144 P.3d 677 (2006).


         The first step of this test requires determining whether "the circumstances and
facts of the case 'create[d] reasonable doubt concerning the judge's impartiality.'" 282
Kan. at 277. More recently, the Kansas Supreme Court clarified:


                 "'When faced with an affidavit of prejudice filed pursuant to K.S.A. 20-311d, this
         court has unlimited review, and on appeal must decide the legal sufficiency of the
         affidavit and not the truth of the facts alleged. We examine whether the affidavit provides
         facts and reasons pertaining to the party or his or her attorney which, if true, give fair
         support for a well-grounded belief that he or she will not obtain a fair trial. We determine
         whether the charges are grounded in facts that would create reasonable doubt concerning
         the court's impartiality, not in the mind of the court itself, or even necessarily in the mind
         of the litigant filing the motion, but rather in the mind of a reasonable person with
         knowledge of all the circumstances.' [Citations omitted.]" State v. Moyer, 306 Kan. 342,
         371, 410 P.3d 71 (2017).


         Dern asserts that Chief Judge Nafziger applied the wrong test in reviewing his
affidavit because the order denying the motion for recusal did not explicitly state whether
the affidavit was legally sufficient. The State does not respond to this argument.


         We agree with Dern that Chief Judge Nafziger's order denying the motion for
recusal did not explicitly state whether the affidavit was legally sufficient. But although
the best practice is for district courts to articulate the legal test used when deciding a
motion for change of judge, Kansas appellate courts do not always require district courts

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to state explicitly the test used. See Gannon v. State, 305 Kan. 850, 887, 390 P.3d 461
(2017) (noting that when the record shows that the district court was aware of the proper
legal test, appellate courts presume that it applied the proper test).


       Chief Judge Nafziger had to determine whether Dern's affidavit supported "a well-
grounded belief that he" would not obtain a fair hearing on his K.S.A. 60-1507 motion.
See Moyer, 306 Kan. at 371. It is apparent from Chief Judge Nafziger's ruling that he
found that the affidavit failed to do so. Although Chief Judge Nafziger's reference to the
"preponderance of the evidence" does not apply the correct standard, this court exercises
unlimited review over the legal sufficiency of Dern's affidavit. See 306 Kan. at 371. Even
if Chief Judge Nafziger used the wrong test, remand for reconsideration is not required.


       Turning to the merits of Dern's affidavit, Dern focuses his appellate arguments on
the final assertion of bias in his affidavit: Judge Elder's behavior during Dern's criminal
trial. The State asserts that by failing to argue that the other allegations in his affidavit
required a change of judge, Dern has waived those arguments. Dern did not respond to
this assertion in his reply brief. When an appellant fails to brief arguments, he or she
waives and abandons them. See Lambert v. Peterson, 309 Kan. 594, 598, 439 P.3d 317
(2019). Thus, we will focus on the legal sufficiency of Dern's allegations that Judge
Elder's behavior during his criminal trial, if taken as true, "would create reasonable doubt
concerning the court's impartiality . . . in the mind of a reasonable person with knowledge
of all the circumstances." See Moyer, 306 Kan. at 371. Dern alleged in his affidavit:


       "6. And finally the last things that my supporters and myself observed was that when I
       was on the stand testifying, the judge had turned his back to the jury and I and started
       looking at his watch, the clock on the wall and would swivel back and forth in his chair.
       While [defense counsel] gave her closing argument, it was more of the same actions from
       the judge. Yet when [the prosecutor] gave her closing arguments, Judge Elder gave her
       his utmost attention. Even as far as chin in hands, elbows on desk with his eyes and face



                                                    7
       turned toward her at all times. Canon 2, Rule 2.3(B) deals specifically with this in the
       Rules Adopted By the Supreme Court of the State of Kansas."


       Dern argues that "Judge Elder's body language and demeanor during the criminal
trial, which, if taken as true, is significant and raises concerns of Judge Elder's attention
during that trial, and his likely attention to be given during the post-conviction
proceeding at hand." The State responds that Dern's allegations are unsupported by the
jury trial transcript. But the veracity of allegations in an affidavit filed under K.S.A. 20-
311d is not relevant. See Moyer, 306 Kan. at 371 (finding that appellate court must
decide the legal sufficiency of the affidavit and not the truth of the facts alleged).


       Although not cited by either party, a case that is factually similar to Dern's claim is
State v. Harwood, No. 114,476, 2017 WL 945767, at *7-10 (Kan. App.) (unpublished
opinion), rev. denied 306 Kan. 1324 (2017). In that case, this court reviewed the district
court's denial of a posttrial, presentencing motion for change of judge. The K.S.A. 20-
311d affidavit alleged, in relevant part, that the district judge, during the first of two
criminal trials on the charges, displayed his "'negative attitude towards the defendant'"
through his "'facial expressions, tone of voice and inflection of his voice in the presence
of the jury'" and did not "'appear to be listening to the defense attorney's statements to the
Court.'" 2017 WL 945767, at *8.


       In addressing the claim, this court noted that the allegation that a judge "generally
displayed a negative attitude toward [the defendant] based on facial expressions, tone of
voice, and inflection . . . is difficult to review on appeal." 2017 WL 945767, at *8.
Pointing out that the defendant did not explain "what was going on in the trial at the time
[the judge] displayed a negative attitude" or "cite to a point in the record where [the
judge] was unable to make a ruling because the judge was not listening," this court held
that "without specific facts to review, [we] cannot say that an objective observer would
have a reasonable doubt about the judge's impartiality." 2017 WL 945767, at *8.

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       In any event, whether Judge Elder may have been biased and should have recused
himself from the criminal trial is not the issue before us now. The only issue for us to
decide is whether Dern is now entitled to a new hearing on his K.S.A. 60-1507 motion
because Judge Elder presided over the hearing. We limit our analysis to the argument
Dern has made on appeal. In the end, we do not need to decide whether Judge Elder
should have been disqualified from presiding over the K.S.A. 60-1507 hearing.


       Even if Judge Elder had a duty to recuse himself, Dern must make "'a showing of
actual bias or prejudice to warrant setting aside the judgment of the [K.S.A. 60-1507]
court.'" See Reed, 282 Kan. at 277. Dern makes no argument that Judge Elder's alleged
bias prejudiced him in the K.S.A. 60-1507 proceedings. Dern does not challenge Judge
Elder's memorandum decision denying the merits of his K.S.A. 60-1507 motion. Without
asserting such a claim of error, Dern cannot possibly show prejudice sufficient to prevail
on his claim that Chief Judge Nafziger erred in denying the recusal motion. Dern's
arguments based on K.S.A. 20-311d fail.


Code of Judicial Conduct

       Dern also cited Rule 601B, Canon 2, Rule 2.3(B) of the Kansas Code of Judicial
Conduct (Code) in his affidavit. He now argues that the Code required Judge Elder's
recusal. Our Supreme Court has questioned whether the Code is a proper basis for a
litigant to demand recusal of a judge. See Moyer, 306 Kan. at 372-73. But the Moyer
court then acknowledged that "we have previously considered the Code as a separate
basis for recusal," and with no argument from the State asking it to "change that tack,"
the Moyer court continued its analysis. 306 Kan. at 373. Similarly, the State here does not
argue that the Code is not a proper basis for argument on a denied motion to recuse.


       Rule 2.3(B), which Dern specifically cites, states:



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               "A judge shall not, in the performance of judicial duties, by words or conduct
       manifest bias or prejudice, or engage in harassment, including but not limited to bias,
       prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity,
       disability, age, sexual orientation, marital status, socioeconomic status, or political
       affiliation, and shall not permit court staff, court officials, or others subject to the judge's
       direction and control to do so." (2019 Kan. S. Ct. R. 444.)


       Comment 2 to Rule 2.3 explains that "[e]ven facial expressions and body language
can convey to parties and lawyers in the proceeding, jurors, the media, and others an
appearance of bias or prejudice. A judge must avoid conduct that may reasonably be
perceived as prejudiced or biased." (2019 Kan. S. Ct. R. 444.) And Rule 601B, Canon 2,
Rule 2.11(A) addresses judicial disqualification, and states: "A judge shall disqualify
himself or herself in any proceeding in which the judge's impartiality might reasonably
be questioned, including but not limited to the following circumstances: (1) The judge
has a personal bias or prejudice concerning a party . . . ." (2019 Kan. S. Ct. R. 449.)


       When the propriety of recusal is examined in the context of the Code, "the focus is
on assuring that the defendant obtained a fair [hearing]." Moyer, 306 Kan. at 375. So
even if Dern has shown that Judge Elder "had a duty to recuse under the [Code] and
failed to do so," he must show "that actual bias or prejudice warrants setting the [district
court's holding] aside." See State v. Schaeffer, 295 Kan. 872, 875, 286 P.3d 889 (2012).


       Once again, Dern has not articulated any occurrences in the K.S.A. 60-1507
proceedings that he alleges were unfair and that he alleges were caused by Judge Elder's
alleged bias and prejudice against him. Thus, even if Judge Elder should have recused
under the Code, any such error was harmless and does not require reversal. See Moyer,
306 Kan. at 375; Schaeffer, 295 Kan. at 876-77.


       Affirmed.


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