                                           No. 112,913

                IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                     STATE OF KANSAS,
                                         Appellee,

                                               v.

                               ROBERT ALFRED GAUGER, III,
                                       Appellant.


                              SYLLABUS BY THE COURT

1.
       We review best evidence challenges on appeal for an abuse of discretion.


2.
       Under the best evidence rule, a printed version of an electronically stored
document may be admitted as the original, provided there is no genuine dispute regarding
authenticity.


3.
       Unpreserved instructional error claims are reviewed for clear error no matter when
the alleged error occurred during trial.


4.


       Under the facts of this case, a preliminary instruction informing the jurors that "a
mistrial is an expense and inconvenience to the parties, the Court, and taxpayers" was
legally and factually appropriate.




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       Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed January 8,
2016. Affirmed.


       Rick Kittel, of Kansas Appellate Defender Office, for appellant.


       Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.


       STANDRIDGE, J.: Robert Alfred Gauger, III, appeals his conviction for theft by
deception. First, he argues that the district court erred by admitting three exhibits into
evidence because they violated the best evidence rule. Second, he argues the district court
denied him his constitutional right to a fair trial by instructing the jury that a mistrial
would be an expense and inconvenience to the parties, the court, and the taxpayers. For
the reasons stated below, we affirm Gauger's conviction.


                                                FACTS

       Gauger began working for Linaweaver Construction in August 2012. His
employment, however, ended on November 5, 2012. At some point after November 5,
2012, Gauger called Mark Linaweaver, the owner of Linaweaver Construction, and asked
him for permission to purchase some car batteries on Linaweaver Construction's account
at O'Reilly Auto Parts (O'Reilly). Mark denied this request.


       In December 2012, Karen Moon, who was an administrative assistant for
Linaweaver Construction at that time, was reviewing a monthly invoice from O'Reilly.
Employees would sometimes purchase items at O'Reilly and charge the items to the
company's account. Part of Moon's job was to match the receipts submitted by employees
to the charges listed on the invoice. If there was a missing receipt, she would print an
electronic copy of the receipt from O'Reilly's website. While reviewing the O'Reilly


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invoice, she noticed that there were missing receipts for the purchase of some batteries
and a quart of oil. The charges had been signed for by a person named "Robert." Moon
knew, however, that no one named Robert worked at Linaweaver Construction at the
time the charges were made.


       Moon took the invoice and printed receipts to Mark. He told her he believed
Gauger was the person who had made the charges and that Gauger did not have
authorization to do so. Moon then called the O'Reilly store where the purchases had been
made, and the store credited the charges back to Linaweaver Construction.


       In May 2013, the State filed a complaint against Gauger charging him with one
count of theft by deception. A jury trial was held on September 15, 2014. Sean Blanke, an
employee at the Leavenworth O'Reilly store in November 2012, testified first at trial. He
explained that he was familiar with Linaweaver Construction and stated that when the
company ordered parts from O'Reilly an employee usually called for parts and had them
delivered or would come in to the store and pick them up. Blanke knew that Gauger was
an employee of Linaweaver Construction for a short time because Gauger would call and
order parts for the company.


       Blanke testified that sometime in November 2012 Gauger called and ordered a
battery. Blanke asked if Gauger wanted it delivered, but Gauger said he would come in to
pick it up. When Gauger came into the store, the order was charged to Linaweaver
Construction. Blanke did not have a discussion with Gauger about whether he was
authorized to charge the purchase to that account. Blanke testified that he completed a
carbon-copy receipt. The store kept a copy and the other copy was given to Gauger.


       The State was permitted to introduce into evidence a printed copy of the receipt
from this transaction over an objection lodged by the defense based on the best evidence
rule. The printed copy of the receipt showed that the transaction took place on


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November 16, 2012, and that the total charge for the battery was $124.53. There is an
illegible signature on the bottom of the receipt, but right above the signature line is a
typed copy of the name of the customer signing the receipt. The customer was identified
on the printed copy as "Bob." Blanke recalled typing the name Bob because it is short for
Robert.


       After Moon had her discussion with Mark, she called Blanke and asked him to
print off electronic copies of some specific receipts so that she could verify the purchases.
Blanke printed electronic copies of the receipts requested by Moon and had the printed
copies hand delivered to her. In addition to the receipt discussed above dated
November 16, 2012, Blanke testified that he also was instructed to print electronic copies
of two other receipts for Moon relating to transactions about which he had no personal
knowledge. Electronic copies of the receipts from these other two transactions also were
introduced into evidence at trial over Gauger's objection based on the best evidence rule.
One of the electronic receipts printed off by Blanke showed a charge to Linaweaver
Construction of $119.12 for a battery purchased on November 13, 2012. The customer
that signed the receipt was identified on the electronic copy of the receipt as "Robert."
The other electronic receipt showed a $123.44 charge to Linaweaver Construction for a
battery and a quart of motor oil. The electronic receipt reflected that this transaction
occurred on November 14, 2012, and the customer again was identified as Robert.


       During Moon's testimony, the State sought to introduce into evidence a copy of the
monthly invoice reviewed by Moon that reflected the charges made to Linaweaver
Construction's account at O'Reilly in November 2012. The defense objected based on the
best evidence rule. When questioned by the court, Moon explained that the original
invoice was in her office and the exhibit offered at trial was a duplicate made from the
original invoice. Moon explained that the only difference between the original and the
copy was that the missing receipts on the original copy were highlighted with a yellow
highlighter. Moon offered to bring in the original to show the judge but noted that she


                                              4
would need it back as it was a business record. The district court overruled the objection
and allowed the State to introduce the printed invoice—without the yellow
highlighting—into evidence. The printed invoice showed, among other things, dates,
transaction numbers, some names, and the amount of each charge. The charges shown on
the electronic copies of the receipts that already had been introduced into evidence
appeared on the monthly invoice.


       Alan Arevalo, the manager of the Leavenworth O'Reilly store, also testified at
trial. Gauger called Arevalo on two separate occasions to say that he would like to come
into the store and "take care of" the purchases he had charged to Linaweaver
Construction. Defense counsel objected to this testimony on grounds that neither Gauger
nor counsel had ever been told that there was contact between Gauger and Arevalo.
Defense counsel also moved for a mistrial, arguing Gauger would be prejudiced if the
objection was not sustained because the defense did not have time to adequately prepare
for cross-examination in response to Arevalo's testimony. The prosecutor responded to
the objection and motion for mistrial by noting that, as alleged by defense counsel, the
police reports in the case did not mention any contact between Arevalo and Gauger. The
district court denied the motion for a mistrial and thereafter instructed the jury, without
objection by the State, to disregard any statements regarding a conversation between
Arevalo and Gauger.


       Detective Tesh St. John with the Leavenworth Police Department testified he
created a photo lineup that included pictures of Gauger and five other individuals with
similar characteristics. He showed this lineup to Blanke. Before St. John could even start
talking, Blanke identified Gauger as the person who had purchased a battery from him at
O'Reilly.


       After the State rested, the defense informed the district court that it was not going
to present any evidence. During the jury instruction conference, the State requested that


                                              5
the jury be instructed to consider only the transaction that occurred on November 16,
2012, when determining Gauger's guilt. There was no objection by the defense. The jury
found Gauger guilty. The district court sentenced Gauger to a 12-month probation term
with an underlying prison sentence of 10 months.


                                               ANALYSIS

1. The best evidence rule

       Gauger argues that the district court committed reversible error by allowing the
State to introduce several documents into evidence at trial over his objections based on
the best evidence rule. We review best evidence challenges on appeal for an abuse of
discretion. State v. Robinson, 303 Kan. __, __ P.3d __, 2015 WL 6829686, at *143 (No.
90,196, filed November 6, 2015). 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. Northern Natural Gas Co. v. ONEOK Field Services Co., 296
Kan. 906, 935, 296 P.3d 106, cert. denied 134 S. Ct. 162 (2013).


       Relying on the best evidence rule, Gauger lodged objections at trial to the
introduction of two exhibits containing copies of three O'Reilly receipts and an exhibit
containing a copy of a monthly invoice from O'Reilly. The best evidence rule is codified
at K.S.A. 60-467 and states in part:


               "(a) As tending to prove the content of a writing, no evidence other than the
       writing itself is admissible, except as otherwise provided in these rules, unless the judge
       finds that: (1) If the writing is a telefacsimile communication as defined in subsection (d)
       and is used by the proponent or opponent as the writing itself, such telefacsimile
       communication shall be considered as the writing itself; (2) (A) the writing is lost or has
       been destroyed without fraudulent intent on the part of the proponent, (B) the writing is
       outside the reach of the court's process and not procurable by the proponent, (C) the
       opponent, at a time when the writing was under the opponent's control has been notified,


                                                    6
       expressly or by implication from the pleadings, that it would be needed at the hearing,
       and on request at the hearing has failed to produce it, (D) the writing is not closely related
       to the controlling issues and it would be inexpedient to require its production, (E) the
       writing is an official record, or is a writing affecting property authorized to be recorded
       and actually recorded in the public records as described in exception (s) of K.S.A. 60-460
       and amendments thereto or (F) calculations or summaries of content are called for as a
       result of an examination by a qualified witness of multiple or voluminous writings, which
       cannot be conveniently examined in court, but the adverse party shall have had a
       reasonable opportunity to examine such records before trial, and such writings are present
       in court for use in cross-examination, or the adverse party has waived their production, or
       the judge finds that their production is unnecessary."


       Based on his claim that the exhibits he challenged at trial were copies of original
documents that did not fit into any of the exceptions listed in K.S.A. 60-467, Gauger
argues the district court's decision to permit the State to introduce those exhibits into
evidence was an error of law and, thus, an abuse of discretion and reversible. Gauger also
argues he was deprived of his constitutional right to a fair trial because his conviction
rested largely on exhibits that were improperly introduced into evidence.


       Relevant to application of the best evidence rule in the context of an electronically
stored document is the recent opinion filed by our Supreme Court holding, as a matter of
first impression, that any printed version of an e-mail communication may be admitted as
the original, provided there is no genuine dispute regarding authenticity. Robinson, 2015
WL 6829686, at *143-44. The court's analysis of this issue is instructive:


               "Robinson contends the trial court violated the best evidence rule by admitting
       numerous e-mails that were forwarded to police rather than printed from the victims' or
       witnesses' computers. Robinson also challenges exhibits containing e-mail strings rather
       than individual, segregated messages.
               "The best evidence rule provides that '[a]s tending to prove the content of a
       writing, no evidence other than the writing itself is admissible, except as otherwise



                                                     7
provided in these rules.' K.S.A. 60-467(a). A 'writing' is defined broadly to include every
means of recording, upon any tangible thing, any form of communication or
representation. K.S.A. 60-401(m). Both parties presume the challenged e-mails constitute
'writings' and were offered to prove their content. We assume, without deciding, the
same. Cf. State v. Schuette, 273 Kan. 593, 599, 44 P.3d 459 (2002) (caller ID displays not
a writing because '[t]he results cannot be printed out or saved on an electronic medium');
State v. Wilson, No. 103,749, 2012 WL 718916 (Kan. App. 2012) (unpublished opinion)
(assuming 'text messages may be writings subject to the best evidence rule'), rev. denied
296 Kan. 1136 (2013); see State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 (2011) (best
evidence rule applies only when evidence offered to prove content of a writing).
        "Generally the best evidence rule requires the original writing be introduced
when available. See State v. Goodwin, 223 Kan. 257, 258, 573 P.2d 999 (1977) (original
required, but secondary evidence admissible where original unavailable). However, when
a writing is stored electronically, what constitutes an original and the practicalities of any
production are not automatically clear. After all, '[p]roduction of a true original of an
email or social networking page is not necessarily possible because both are always
electronic.' Pannozzo, Uploading Guilt: Adding A Virtual Records Exception to the
Federal Rules of Evidence, 44 Conn. L. Rev. 1695, 1708 (2012). K.S.A. 60-467(a) does
not squarely address what constitutes an original for best evidence purposes when 'the
writing itself' is stored electronically, and we have not had occasion to address the subject
previously.
        "In the absence of controlling authority, the parties turn to the federal equivalent
of our best evidence rule. Like K.S.A. 60-467, the federal rule contemplates that '[a]n
original writing . . . is required in order to prove its content' unless otherwise provided by
rule or statute. Fed. R. Evid. 1002. More importantly, the federal rule specifically
contemplates that '[f]or electronically stored information, "original" means any printout—
or other output readable by sight—if it accurately reflects the information.' Fed. R. Evid.
1001(d). This definition is consistent with Federal Rule of Evidence 1003, which
provides that '[a] duplicate is admissible to the same extent as the original unless a
genuine question is raised about the original's authenticity or the circumstances make it
unfair to admit the duplicate.' A 'duplicate' is defined as 'a counterpart produced by a
mechanical, photographic, chemical, electronic, or other equivalent process or technique
that accurately reproduces the original.' Fed R. Evid. 1001(e).




                                              8
               "We regard the federal rule, along with similar state counterparts, as instructive,
       and we are persuaded by the authority interpreting these provisions. See Fredricks v.
       Foltz, 221 Kan. 28, 30, 557 P.2d 1252 (1976) (finding federal interpretations persuasive
       where state and federal rules similar). The federal version of the rule is consistent with
       our prior holdings allowing the use of duplicates or secondary evidence, barring genuine
       disputes as to fraud or alteration. See, e.g., Goodwin, 223 Kan. at 258-59 (defendant's
       best evidence challenge flawed where he never suggested contents of secondary evidence
       were less than the truth; absent proof of discrepancy, secondary evidence admissible).
       Likewise, by excluding printouts of electronically stored information or duplicates where
       the content is inaccurate, the federal rules further the underlying purpose of the best
       evidence rule—the prevention of fraud. See United States v. Yamin, 868 F.2d 130, 134
       (5th Cir.1989) (purpose is to prevent fraud).
               "Based on the federal definition of an 'original' and 'duplicate' writing, along with
       the underlying rule accepting both for best evidence purposes, any printed version of e-
       mail communications may be admitted as the original, provided there is no genuine
       dispute regarding authenticity. See New Image Painting, Inc. v. Home Depot U.S.A., Inc.,
       No. SACV 09-1224 AG (RNBx), 2009 WL 4730891, at *2 (C.D. Cal. 2009)
       (unpublished opinion) (copies of e-mails constitute duplicate originals under Fed. R.
       Evid. 1003); Dirickson v. State, 104 Ark. App. 273, 277, 291 S.W.3d 198 (2009)
       (printouts of Internet conversations fall within definition of original); Commonwealth v.
       Amaral, 78 Mass. App. 671, 675-76, 941 N.E.2d 1143 (2011) (accepting printed e-mails
       as best evidence). Courts have found such printouts acceptable for best evidence
       purposes, even where the e-mails have been forwarded. Greco v. Velvet Cactus, LLC,
       Civ. No. 13-3514, 2014 WL 2943598, at *2-3 (E.D. La. 2014) (unpublished opinion)
       (text messages converted to e-mail format and forwarded to counsel for printing
       constituted 'original' for best evidence purposes)." 2015 WL 6829686, at *143-44.


       Although the Robinson court analyzed the admissibility of electronically stored
information under the best evidence rule in the context of an e-mail message, we believe
the analysis in Robinson is equally applicable to the facts in the present case. Moon
testified that she was able to print off any missing invoices from the O'Reilly website,
evidence from which a reasonable inference can be made that the receipts were
electronically stored. That the invoices were electronically stored is also supported by the


                                                       9
testimony of sales associate Blanke, who stated that he was required as part of the sales
process to type into the computer the name of the individual purchasing the goods. And it
is reasonable to conclude from a review of the copies of the three O'Reilly receipts and
the copy of the monthly invoice—which are included in the record on appeal—that all of
these documents were printed copies of electronically stored documents. To that end, the
invoice contained a note that said: "Need invoice copies? Go to
www.oreillyauto.com/myaccount." Again, this strongly suggests the invoice is
electronically stored.


       Based on the federal definition of an "original" and "duplicate" writing, along with
the underlying rule accepting both for best evidence purposes, we hold that the copies of
the three O'Reilly electronically stored receipts and the one O'Reilly electronically stored
monthly invoice were properly admitted as originals, given there was no genuine dispute
regarding authenticity.


2. Jury instruction

       Gauger next argues that the district court erred by instructing the jury that a
mistrial would be a burden to the parties, the court, and to taxpayers. Specifically, Gauger
challenges the following instruction given to the jury by the district court judge prior to
opening statements:


               "You must not engage in any activity or be exposed to information that might
       unfairly affect the outcome of the case. Any juror who violates these restrictions I've
       explained to you jeopardizes the fairness of these proceedings, and a mistrial could result.
       That would require the entire trial process to start over. As you can imagine, a mistrial is
       an expense and inconvenience to the parties, the Court, and taxpayers."


       Gauger concedes that he did not object to the district court's instruction below.
Appellate courts review instructional errors occurring at the close of evidence and


                                                    10
asserted for the first time on appeal for clear error. See K.S.A. 2014 Supp. 22-3414(3).
There is, however, no statute that establishes this court's standard of review for
instructional errors in a district court's preliminary instructions. Consequently, Gauger
argues that the test for clear error is inapplicable to this case because the instruction he
challenges was given at the beginning of the trial and because he was not given a chance
to object to the instruction outside of the hearing of the jury as required by K.S.A. 2014
Supp. 22-3414(3). Instead, citing Neely v. Travelers Ins. Co., 141 Kan. 691, 42 P.2d 957
(1935), he argues that the instruction constituted reversible error because it was
"'insufferably coercive.'"


       During the pendency of this appeal, the Kansas Supreme Court decided State v.
Tahah, 302 Kan. 783, 358 P.3d 819 (2015), which dealt with an instructional issue almost
identical to the issue presented in this case. In Tahah, the district court instructed the
newly impaneled jury at the beginning of the trial that "consideration of outside
information could result in a mistrial, which 'is a tremendous expense and inconvenience
to the parties, the Court and the tax payers.'" 358 P.3d at 825. Similar to this case, Tahah
did not object to the instruction at trial. On appeal, Tahah characterized the issue as one
of judicial misconduct and sought de novo review. But our Supreme Court noted that the
clearly erroneous standard predated its statutory codification. It found that it had always
reviewed unpreserved instructional error claims for clear error no matter when the alleged
error occurred during trial. Therefore, it applied the clear error test to Tahah's claim. 358
P.3d at 826. Following Tahah, we do the same here.


       The test for clear error requires a two-step analysis. First, this court must
determine whether there was an error in the instruction, which is a question of law subject
to unlimited review. If an error exists, then the court must determine whether reversal is
required. To reverse, this court must be firmly convinced that the jury would have
reached a different verdict had the error not occurred. This requires a de novo



                                              11
determination based on a review of the entire record. State v. Armstrong, 299 Kan. 405,
432-33, 324 P.3d 1052 (2014).


       In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), the Kansas Supreme
Court found that it was erroneous to instruct the jury after both sides had rested that
"'[a]nother trial would be a burden on both sides.'" Although this language was, at the
time, part of the applicable PIK instruction, the court found that the sentence was
misleading and inaccurate because a second trial may be burdensome to some but not all
parties to a criminal case. It also found that it was confusing because it conflicted with
another instruction that directed jurors not to concern themselves with what happened
after they arrived at a verdict. 288 Kan. at 266-67. Although the Supreme Court found
that the instruction was given in error, it also ruled that reversal was not required under
the second prong of the clearly erroneous test. 288 Kan. at 267.


       The Tahah court found that Salts was inapplicable to the question presented in that
case. Tahah, 358 P.3d at 827. It noted that the instruction at issue in Salts was an Allen-
type instruction, which is an instruction that encourages the jury to reach a unanimous
verdict so as to avoid a mistrial. Tahah, 358 P.3d at 826; see Allen v. United States, 164
U.S. 492, 501-02, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Our Supreme Court has "a long
and justified history of disapproving Allen-type jury instructions." Tahah, 358 P.3d at
826. This is because an Allen-type instruction could be inappropriately coercive.
Specifically, it could cause jurors to compromise their own views of the evidence only to
avoid a hung jury. 358 P.3d at 827.


       The Tahah court went on to distinguish the preliminary instruction given at
Tahah's trial from the unduly coercive instruction given in Salts. It found that the
preliminary instruction was not an Allen-type instruction because its character and
purpose was entirely different. It was given at the beginning of trial and warned that a
mistrial could result from the jurors' own misconduct. The Supreme Court found that the


                                             12
prospect of a mistrial due to juror misconduct is equally inconvenient and undesirable for
both parties, especially when considering the issue from a pretrial vantage point. It also
noted that juror misconduct imposes "grave costs" on the parties and on the integrity of
our criminal justice system. Consequently, it found that the instruction was both legally
and factually accurate. 358 P.3d at 827.


       The instruction at issue here was almost identical to the instruction in Tahah. And
just like in Tahah, it was given as a warning to the jurors against committing misconduct.
Therefore, there is nothing to distinguish the issue presented here from the one decided in
Tahah. This court is duty bound to follow Kansas Supreme Court precedent absent some
indication the court is departing from its previous position. State v. Ruiz, 51 Kan. App. 2d
212, 233, 343 P.3d 544 (2015). Under Tahah, the instruction challenged here was both
legally and factually appropriate. Therefore, Gauger's claim fails.


       Affirmed.




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