                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 113,762

                                          STATE OF KANSAS,
                                              Appellee,

                                                      v.

                                          ROBERT L. BRAUN,
                                             Appellant.


                                   SYLLABUS BY THE COURT

        Under the facts of this case, an appellate court holding that a district court should
have suppressed evidence and the conviction based on that evidence was invalid cannot
use stipulated facts to find the error was harmless because a defendant could have been
found guilty of an alternative charge. The parties agreed the stipulated facts would not
apply if the evidence was suppressed.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed December 15,
2017. Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed August 28, 2020.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed, and the case is remanded with directions.


        Michael S. Holland II, of Holland and Holland, of Russell, was on the brief for appellant.


        Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were on the
brief for appellee.




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The opinion of the court was delivered by


       LUCKERT, C.J.: Following a bench trial on stipulated facts, a district court
convicted Robert Braun of violating K.S.A. 2012 Supp. 8-1567(a)(2) by driving with a
blood alcohol content of more than 0.08 as measured within three hours of driving. Braun
appealed, arguing the district court erred in denying his motion to suppress the blood test.


       The Court of Appeals panel agreed the district court should have suppressed the
blood test result. But it held the outcome of the trial would have been the same even
without the error and the district court thus committed a harmless error. The panel
reasoned that the stipulation included facts that support a conviction on an alternative
charge that was not a part of the district court's judgment. In that charge, brought under
K.S.A. 2012 Supp. 8-1567(a)(3), the State alleged Braun drove while under the influence
to a degree rendering him incapable of safely operating a vehicle. State v. Braun, No.
113,762, 2017 WL 6396668, at *2-3 (Kan. App. 2017) (unpublished opinion).


       On petition to this court, Braun argues the panel erred when it concluded he could
be guilty of the alternative charge. He contends the panel made findings of fact on
elements defined in K.S.A. 2012 Supp. 8-1567(a)(3)—elements never considered by the
district court—thus violating his constitutional right to have facts determined by a fact-
finder. As part of this argument, he asserts the panel could not rely on the factual
stipulations because the parties agreed the stipulation served the limited purpose of
allowing him to appeal the suppression issue and would not be used if the evidence was
ultimately suppressed.


       We agree that the Court of Appeals went beyond the parties' agreement when it
relied on the stipulated facts to hold that the district court could have convicted Braun on
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the alternative charge. We thus reverse the Court of Appeals' harmless error analysis and
remand for further proceedings.


                       FACTUAL AND PROCEDURAL BACKGROUND


       According to the stipulated facts, a Kansas Highway Patrol Trooper had stopped
another driver when Braun pulled up behind the parked patrol car. The trooper tried to
wave Braun around, but Braun did not move.


       The trooper approached and asked Braun to lower his window. Braun had trouble
with the window controls and lowered the rear windows. He opened the driver's door and
the trooper immediately smelled a strong odor of alcohol. When the trooper asked Braun
if he had been drinking, Braun replied that he had been drinking water. The trooper told
Braun he planned to conduct sobriety tests, and he asked Braun to exit the vehicle. As
Braun got out of the vehicle, he was swaying, hanging onto the door, and stumbling.


       Braun repeatedly asked why the trooper pulled him over. When the trooper
explained he had not stopped Braun, Braun said, "If you didn't pull me over, then who
did?" Braun then said, "I should not be driving, officer, I'm sorry." Braun admitted he had
been drinking.


       Braun could not perform the sobriety tests and claimed he had a bad hip. The
trooper gave Braun the written and oral implied consent advisories statutorily required by
K.S.A. 2012 Supp. 8-1001(k), which at the time warned of criminal consequences for
refusing a blood alcohol test. The trooper asked Braun to submit to a blood test. Braun
replied, "[Y]ea, sure, whatever." Without obtaining a search warrant, the trooper arranged
and observed a blood draw that occurred 80 minutes after Braun last drove. The Kansas
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Bureau of Investigation analyzed the blood and determined Braun had an alcohol level of
0.24 grams per 100 milliliters of blood.


       The State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for
having a blood alcohol content of more than 0.08 as measured within three hours of
driving. It also charged him in the alternative with driving while under the influence to a
degree rendering him incapable of safely operating a vehicle under K.S.A. 2012 Supp.
8-1567(a)(3).


       Braun moved to suppress the results of the blood test based on the
unconstitutionality of the search, arguing the Kansas implied consent law was
unconstitutionally coercive because of the threat of criminal sanctions for refusal to
submit to testing. The district court denied the motion, Braun waived his right to a jury
trial, and the case proceeded to a bench trial on stipulated facts. The parties conditioned
the stipulation of facts so that it could be used for consideration of the motion to suppress
or as necessary to preserve Braun's arguments about the motion:


       "THE STATE and the defendant further stipulate and agree that the following Stipulation
       of Fact will only be binding upon the defendant, or the Court, for purposes of the Court's
       determination of the defendant's Motion to Suppress and if the Motion to Suppress is
       denied for the Court to determine the defendant's guilt or innocence at a bench trial in
       order for the defendant to preserve his right to appeal before the Kansas Appellate
       Courts. The parties stipulate and agree that should the Kansas Appellate Courts
       ultimately grant the defendant's Motion to Suppress and vacate his conviction based upon
       the following Stipulation of Fact that the Stipulation of Fact would no longer be binding
       upon the parties and that the defendant would not be bound by the Stipulation of Fact for
       any further proceedings upon remand by the Kansas Court of Appeals."



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        The district court found Braun guilty of DUI under K.S.A. 2012 Supp.
8-1567(a)(2) (having a blood alcohol content of more than 0.08 as measured within three
hours of driving). The journal entry does not mention the alternative charge, K.S.A. 2012
Supp. 8-1567(a)(3) (driving while under the influence to a degree rendering him
incapable of safely operating a vehicle).


        Braun appealed, arguing that the district court erred in denying his motion to
suppress the results of his blood test, which he contended resulted from a coerced
consent. The Court of Appeals panel agreed, citing State v. Ryce, 303 Kan. 899, 903, 368
P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (holding statute that
made it a crime to refuse to submit to a blood alcohol test was facially unconstitutional),
and State v. Nece, 303 Kan. 888, 889, 367 P.3d 1260 (2016), aff'd on reh'g 306 Kan. 679,
396 P.3d 709 (2017) (holding informed consent based on unconstitutional threat of
criminal charges if refused was unduly coercive). Braun, 2017 WL 6396668, at *3-4.


        The panel then turned to consideration of whether the district court's error was
harmless. Reviewing the facts in the stipulation, the panel determined sufficient evidence
in the stipulated facts established Braun committed the alternative charge of driving
under the influence of alcohol to a degree that rendered him incapable of safely operating
a vehicle under K.S.A. 2012 Supp. 8-1567(a)(3). It thus concluded the failure to suppress
the evidence was harmless, and it affirmed Braun's conviction. 2017 WL 6396668, at
*3-4.


        Braun timely petitioned for review of the Court of Appeals determination the
failure to suppress was harmless. We granted his petition and have jurisdiction under
K.S.A. 20-3018(b) (petition for review of Court of Appeals decision).


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       The State did not cross-petition or file a supplemental brief challenging the Court
of Appeals' finding that the district court should have suppressed the blood test based on
controlling authority from this court. The question of error, therefore, is not now at issue.
The test results of Braun's blood alcohol content are suppressed and his conviction under
K.S.A. 2012 Supp. 8-1567(a)(2) is invalid.


       The sole question before us is whether the Court of Appeals erred in finding that
error harmless. See Supreme Court Rule 8.03 (2017 Kan. S. Ct. R. 53) (subsection [b]
permits a cross-petition; subsection [c][3] allows a response to include alternative
grounds for affirming the Court of Appeals; subsection [h][1] provides that issues subject
to review include "all issues properly before the Court of Appeals which the petition for
review or cross-petition allege were decided erroneously by the Court of Appeals"); State
v. Davey, 306 Kan. 814, 819, 397 P.3d 1190 (2017) ("[T]he State has not challenged—
either through a cross-petition for review or in its supplemental brief to this court—the
Court of Appeals' implied ruling in favor of [the defendant] on the State's
nonpreservation claim."); State v. Ortega, 300 Kan. 761, 777-78, 335 P.3d 93 (2014)
("The State did not file a cross-petition . . . . Hence, the question of error as to any of
these issues is not before us; we only review the Court of Appeals' conclusion that the
errors were harmless.").


                                          ANALYSIS


       Braun mainly argues the Court of Appeals violated his due process rights as
guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution. Citing State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Braun contends
due process requires that the finder of fact—either a jury or a district court judge—
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determine guilt. He notes the district court made no findings under K.S.A. 2012 Supp.
8-1567(a)(3) about whether he drove while under the influence to a degree rendering him
incapable of safely operating a vehicle. He thus argues the Court of Appeals violated his
due process rights.


       But Braun also raises a threshold question: Was the stipulation conditioned or
limited so that a court could not use it to adjudge Braun's guilt on the alternative count?
He argues the parties made clear that the stipulated facts served as a procedural
mechanism for resolving the legal issues surrounding his motion to suppress and that they
intended to have the opportunity to litigate the alternative charge.


       We agree with Braun that the language of the stipulation makes clear he was using
the trial by stipulation to preserve and resolve the legal questions about his motion to
suppress. Using a stipulation in such a fashion is a fairly common practice. This court has
acknowledged the strategic realities of proceeding on stipulated facts: When a conviction
is likely certain, stipulating and proceeding to a bench trial preserves a party's rights to
appeal—a right they would forfeit by pleading guilty or no contest. State v. Kelly, 295
Kan. 587, 592-93, 285 P.3d 1026 (2012).


       That said, parties are ordinarily bound by their stipulation of facts and cannot
challenge those facts on appeal. State v. Bogguess, 293 Kan. 743, 745, 268 P.3d 481
(2012); see Kelly, 295 Kan. at 590-91; Double M Constr. v. Kansas Corporation
Comm'n, 288 Kan. 268, Syl. ¶ 1, 202 P.3d 7 (2009); see also Wentz Equip. Co. v.
Missouri Pac. R. Co., 9 Kan. App. 2d 141, 142, 673 P.2d 1193 (1983) (recognizing
general rule but noting courts are not bound by stipulations as to controlling law or
jurisdiction).

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       But parties can agree to conditions that limit the circumstances where stipulated
facts can be used. And a court is bound by any such conditions or limitations. See Wentz
Equip. Co., 9 Kan. App. 2d at 142 ("'Valid stipulations as to evidence are binding on the
court, which is bound to enforce them; and the court cannot go beyond the terms of the
stipulation.'"); see also Griffin Contracting Co. v. Hawkeye-Sec. Ins. Co., 867 S.W.2d
602, 605 (Mo. Ct. App. 1993) (stipulations do not bind courts if terms prevent or prohibit
use in a particular proceeding).


       Griffin Contracting presents an analogous situation. There, the parties
"'stipulate[d] and agree[d] that this case may be submitted . . . on the following
uncontroverted facts.'" One of the facts stated: "'Griffin Contracting filed the instant
action seeking a declaration by this Court that, . . . Hawkeye is obligated to defend and
indemnify Griffin Contracting.'" 867 S.W.2d at 605. After the stipulation, Griffin
Contracting amended its petition to allege a different theory—breach of contract. The
defendant Hawkeye sought to use the stipulated facts to resolve the breach of contract
claim, but plaintiff Griffin Contracting argued the intent of the parties was to limit the
stipulation to the declaratory judgment theory.


       On appeal, the Court noted that "it is clear that the rules of contracts apply to
stipulations, and as in the construction of contracts, . . . stipulations are construed in terms
of the surrounding circumstances and the intent of the parties." 867 S.W.2d at 604.
Pointing to the language about "'this case'" and "'filed [in] the instant action'" and noting
the timing of the stipulation and the amendment to the petition, both the trial court and
the appellate court agreed that "the parties did not intend that the stipulation would apply
to any controversy except the declaratory judgment action." 867 S.W.2d at 605.



                                               8
       In Braun's case, the stipulation was likewise conditional—the parties agreed that
the stipulation applied to consideration of the motion to suppress and the bench trial
determination of guilt, but that if:


       "the Kansas Appellate Courts ultimately grant the defendant's Motion to Suppress and
       vacate his conviction based upon the following Stipulation of Fact that the Stipulation of
       Fact would no longer be binding upon the parties and that the defendant would not be
       bound by the Stipulation of Fact for any further proceedings upon remand by the Kansas
       Court of Appeals."


       Through these conditions, the parties expressed an intent to preserve Braun's rights
to litigate if he prevailed on the merits of his motion to suppress. The Court of Appeals
did not use the word "vacate" nor did it remand his case, raising some question about
whether the parties intended the stipulation to apply here. But, just as the stipulation in
Griffin Contracting unambiguously conveyed the parties' intent despite not explicitly or
precisely stating the condition, Braun's imprecise stipulation unambiguously limited the
use of the stipulation to the charge that depended on proof of his blood alcohol level.


       Lack of precision in language or the failure to list all circumstances of a similar
nature does not necessarily make a party's intent ambiguous. "'The language in a contract
is ambiguous when the words used to express the meaning and intention of the parties are
insufficient in a sense the contract may be understood to reach two or more possible
meanings.' [Citation omitted.]" Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 838, 508
P.2d 889 (1973). Here, there is one possible meaning conveyed: The purpose of the
stipulation was solely to determine the issue of law arising from Braun's motion to
suppress.



                                                   9
       The parties agreed to language that first explained the stipulation was for the
purpose of the district court's consideration of Braun's motion to suppress and, if the
motion was denied, for a trial intended "to preserve his right to appeal before the Kansas
Appellate Courts." A trial on the alternative charge would not have preserved the issue.
Instead, it would have made it moot. And the fact the district court did not make the
findings that would have brought finality to the case conveys that everyone in the district
court courtroom understood the intent that the stipulation extended only to the blood
alcohol charge, not the alternative charge.


       The stipulation also conveys that the facts would not be binding if an appellate
court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not
valid. Although the parties used the word "vacate" and the Court of Appeals did not, it set
aside the conviction based on blood alcohol content. And K.S.A. 2019 Supp. 60-261,
which states Kansas' statutory harmless error rule, provides that a harmless error will not
be grounds "for setting aside a verdict or for vacating, modifying or otherwise disturbing
a judgment or order." In this sense, even though the Court of Appeals did not use the
word vacate, that is what it did. And once the conviction was vacated, "the Stipulation of
Fact would no longer be binding upon the parties." The remaining language, although
couched in terms of what would happen on remand, reveals that the parties intended to
have the opportunity to litigate the alternative count.


       We thus hold the Court of Appeals panel erred by not considering and applying
the conditions that limited the binding nature of the parties' stipulation. Because we reach
that holding, we need not address whether the panel violated Braun's due process rights
by convicting him on an alternative count not addressed by the district court. As
anticipated in the parties' stipulation and based on the panel's holding the district court
erred in denying Braun's motion to suppress—a holding not before us—we reverse his
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conviction and remand for further proceedings related only to the alternative count of
driving while under the influence to a degree rendering him incapable of safely operating
a vehicle under K.S.A. 2012 Supp. 8-1567(a)(3).


       Judgment of the Court of Appeals affirming the district court is reversed.
Judgment of the district court is reversed, and the case is remanded with directions.


       MICHAEL E. WARD, Senior Judge, assigned. 1




1
 REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 113,762
under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on
the court by the retirement of Chief Justice Lawton R. Nuss.

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