                                        No. 114,925

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                    STATE OF KANSAS,
                                        Appellee,

                                             v.

                                CLAYTON DEION WILMER,
                                      Appellant.


                              SYLLABUS BY THE COURT

1.
       Courts are necessarily vested with the inherent power to manage their own affairs
so as to achieve the orderly and expeditious disposition of cases.


2.
       The exercise of a court's inherent power must be reasonably necessary for the
administration of justice and cannot contravene or be inconsistent with substantive
statutory law. Such inherent powers may be exercised as a means of enforcing obedience
to a law which the court is called on to administer.


3.
       A court has the inherent power to issue a no-contact order in a pending criminal
case when there is reason to believe that a party is attempting to intimidate or harass a
witness in the case.


4.
       Punishment for contempt of court is not the exclusive remedy for the violation of a
no-contact order issued during a pending criminal case. If the contemptuous conduct also
violates a criminal statute, the government may prosecute the offender.

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       Appeal from Leavenworth District Court; THOMAS M. DAWSON, judge pro tem. Opinion filed
October 21, 2016. Affirmed.


       John J. Bryant, of Bryant Law Office, of Kansas City, for appellant.


       Christopher R. Scott, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


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


       ARNOLD-BURGER, J.: The Kansas Legislature has made it a crime to violate a no-
contact order issued at any time during a criminal case. K.S.A. 2015 Supp. 21-5924(a)(4).
The district court ordered Clayton Deion Wilmer to have no contact with witness
Caitlynn Cruce, his ex-girlfriend, during the pendency of his criminal case, concerned
that Wilmer was attempting to convince Cruce to change her testimony. Wilmer was
subsequently charged with and convicted of 21 counts of violating the no-contact order.
Wilmer challenges the district court's authority to issue such an order and also challenges
the statute as a restriction of his free speech rights under the First Amendment to the
United States Constitution and Section 11 of the Kansas Constitution Bill of Rights. Because
we find that the district court had the inherent authority to issue the no-contact order, the
prosecutor had the statutory authority to criminally prosecute Wilmer for violating the
no-contact order, and Wilmer failed to define and adequately brief the constitutional
issues he raises, we affirm.


                              FACTUAL AND PROCEDURAL HISTORY


       Following a preliminary hearing, Wilmer was bound over on charges of attempted
first-degree murder, aggravated assault with a deadly weapon, child endangerment, and
being a felon in possession of a firearm. All charges arose out of an incident where he
allegedly shot Rudy Hall while Hall was a passenger in a car with Cruce, and Cruce and
Wilmer's infant daughter. At the hearing, there was testimony from several witnesses that
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Wilmer contacted Cruce and attempted to influence the way she testified. There was also
testimony that Wilmer had been violent with Cruce in the past. In fact, the preliminary
hearing that was to be heard immediately following the one in this case was on a
domestic battery charge against Wilmer in which Cruce was the victim. Wilmer was in
jail, so he could only contact Cruce using phone calls and letters. The State requested a
no-contact order between Wilmer and Cruce pending trial because there had been "a lot
of testimony regarding letters and phone calls and perhaps attempts to get her to change
her testimony." The State's concern was "not necessarily for the victim's protection
because the defendant is in custody, but . . . it is about intimidation, which the Court is
well aware does occur in domestic violence cases, and it occurs even when one party is
incarcerated." The district court granted the no-contact order, reasoning that "the State
has the right to attempt to preserve their evidence, their witnesses . . . from contact with
the defendant."


       Approximately 3 months later, Wilmer was charged with 21 counts of violating
the no-contact order between February 24 and April 22, 2015, in violation of K.S.A. 2015
Supp. 21-5924(a)(4). Wilmer filed a motion to dismiss, arguing that "there is no statutory
authority for a District Court Judge to issue a no-contact order upon an incarcerated
Defendant in a criminal case." On October 5, 2015, the district court denied the motion.
The district court then found Wilmer guilty on all 21 counts. Wilmer was sentenced to 12
months for each count, set to run concurrently.


       Wilmer appealed.


                                         ANALYSIS


       Wilmer argues that the district court had no authority to issue a no-contact order
such that a violation of the order gives rise to prosecution under K.S.A. 2015 Supp. 21-
5924(a)(4). In addition, he argues that the provision of that statute that allows the

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issuance of a no-contact order on a person in prison infringes on the prisoner's rights
under the First Amendment to the United States Constitution and Section 11 of the Kansas
Constitution Bill of Rights. It is important to note that Wilmer does not dispute the
sufficiency of the evidence. The State presented the audio recordings of the phone calls it
claimed violated the no-contact order. In other words, if the district court issued a lawful
order that was constitutionally enforceable under K.S.A. 2015 Supp. 21-5924(a)(4), then
the evidence was sufficient to support the convictions. We will address each of Wilmer's
concerns in turn.


A district court has the inherent power to issue a no-contact order in a pending criminal
case.


        The Kansas Supreme Court has long recognized:


        "[A] court has certain inherent powers it may exercise[, which are] reasonably necessary
        for the administration of justice[,] provided these powers in no way contravene or are
        inconsistent with substantive statutory law. [Citations omitted.] Such inherent powers
        may be exercised as a means of enforcing obedience to a law which the court is called on
        to administer." Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P.2d 1117
        (1981).


See Holt v. State, 290 Kan. 491, 497, 232 P.3d 848 (2010). This inherent power of the
courts was recognized at common law. The power is "'governed not by rule or statute but
by the control necessarily vested in courts to manage their own affairs so as to achieve
the orderly and expeditious disposition of cases.' [Citations omitted.]" Dietz v. Bouldin,
579 U.S. ___, 136 S. Ct. 1885, 1891, 195 L. Ed. 2d 161 (2016).


        There are some limits to this inherent power. The exercise of an inherent power
must be a "reasonable response to the problems and needs" confronting the court's fair
administration of justice and cannot be contrary to any express grant of, or limitation on,

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the district court's power contained in a rule or statute. Degen v. United States, 517 U.S.
820, 823-24, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996); see Comprehensive Health of
Planned Parenthood v. Kline, 287 Kan. 372, 419, 197 P.3d 370 (2008); Wilson, 229 Kan.
at 421. These two principles support the district court's imposition of a no-contact order
in this case.


       The district court had before it strong evidence that Wilmer was attempting to
intimidate a witness into testifying falsely. He was attempting to do this while he was
incarcerated in the local jail through phone calls and letters. The district court has a duty
to make sure both the defendant and the State get a fair trial. Wilmer's actions were
threatening the fair administration of justice, and the district court's response, a no-
contact order, was reasonably related to that particular problem.


       Second, there is no statute prohibiting such an order during the course of a
criminal proceeding. The question is not, as framed by Wilmer, whether a specific statute
authorizes the court's action in the case of the court's exercise of its inherent power, but
whether a statute or rule prohibits or limits it. Wilmer fails to direct us to any statute or
rule that prohibits the district court's no-contact order in this case, and we are not able to
find any.


       Accordingly, the district court had the inherent power to issue a no-contact order
in this pending criminal case when there was reason to believe that the defendant was
attempting to intimidate or harass a witness in the case.


Punishment for contempt of court is not the exclusive remedy for the violation of a no-
contact order issued during a pending criminal case.


       Wilmer contends that if the court had the authority to issue the no-contact order,
punishment for contempt of court was the exclusive remedy available to it. Accordingly,

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Wilmer could not be charged criminally but would be limited to the court's statutory
authority to punish for contempt. We disagree.


       As one federal court put it, the courts possess inherent power to require
submission to their lawful mandates, and the "courts are vested with power to initiate
contempt proceedings to ensure that the judiciary is not utterly dependent upon the other
branches of government to vindicate judicial authority." United States v. Neal, 101 F.3d
993, 996 (4th Cir. 1996); see In re J.T.R., 47 Kan. App. 2d 91, 94-95, 271 P.3d 1262
(2012). Today many states, including Kansas, have adopted procedures that courts must
follow in the case of contemptuous behavior, either direct or indirect. See K.S.A. 20-1201
et seq. These statutes generally do not define what action constitutes contempt, nor do
they outline the breadth of orders a court may enter in any give case, but they merely set
out the procedures that must be followed, such as issuance of a show cause order,
opportunity to be heard, etc. before a person is found to be in contempt of court. See
K.S.A. 2015 Supp. 20-1204a. Although the court had the authority at common law to
punish contemptuous behavior, these statutes now control the procedure to be followed.


       As the Neal court pointed out, the ability to punish contemptuous behavior was to
ensure that the judiciary was not dependent on the executive branch to enforce its orders.
But that does not mean that the executive branch may not also prosecute behavior that
could be deemed contempt of court. For example, if a defendant stabs his or her attorney
in the middle of a hearing, that act may be punishable as direct contempt of court, but few
would dispute that it is also a crime that the State would be justified in prosecuting. If a
defendant threatens a judge's life during the course of a trial, it is certainly contemptuous
behavior but may also be criminally chargeable behavior. The fact that we are dealing
with a violation of a court order does not change the result.


       So we next examine the criminal statute at issue here. Interpretation of a statute is
a question of law over which appellate courts have unlimited review. State v. Collins, 303

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Kan. 472, 473-74, 362 P.3d 1098 (2015). When a statute is plain and unambiguous, an
appellate court should not speculate about the legislative intent behind that clear
language, and it should refrain from reading something into the statute that is not readily
found in its words. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). Where there
is no ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history to construe the legislature's intent. 303 Kan. at 813.


       K.S.A. 2015 Supp. 21-5924 states:


               "(a) Violation of a protective order is knowingly violating:
               ....
               (4) an order issued in this or any other state as a condition of pretrial release,
       diversion, probation, suspended sentence, postrelease supervision or at any other time
       during the criminal case that orders the person to refrain from having any direct or
       indirect contact with another person." (Emphasis added.)


The language of the statute is clear. It presumes that the court has the authority to enter
no-contact orders during the course of any criminal proceeding. To hold otherwise would
make the provision meaningless. The courts presume the legislature does not intend to
enact meaningless legislation. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515
(2014).


       Moreover, while some of the other subsections in K.S.A. 2015 Supp. 21-5924(a)
require that an order be made pursuant to specific statutes, that is not a prerequisite of a
finding of guilt under subsection (a)(4). See K.S.A. 2015 Supp. 21-5924(a)(1) ("A
protection from abuse order issued pursuant to K.S.A. 60-31105, 60-3106 or 60-3107,
and amendments thereto."). The fact that other sections list a statute simply shows that
the legislature could have added additional requirements to subsection (a)(4) but chose
not to. The statute is not ambiguous as it puts people on notice as to what behavior is
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criminalized—violating any no-contact order made during the pendency of a criminal
case.


        The statutory language is also consistent with our discussion herein of the court's
inherent power to issue such orders to advance the orderly and fair administration of
justice. This is a situation in which the legislature has obviously stepped in to assist the
court in the enforcement of its orders by providing for the criminal prosecution of people
who fail to follow them. The State is not prohibited from doing so merely because the
district court could punish Wilmer for contempt of court.


        In sum, punishment for contempt of court is not the exclusive remedy for the
violation of a no-contact order issued during a pending criminal case. If the contemptuous
conduct also violates a criminal statute, the government may prosecute the offender.


Wilmer has abandoned his constitutional claims in this case by failing to define and
adequately brief them.


        Wilmer's constitutional argument is very short and contains no supporting
authority. He argues that K.S.A. 2015 Supp. 21-5924(a)(4) is unconstitutional because it
"is not narrowly tailored to serve a legitimate government purpose" and "[t]o the extent
that the statute infringes upon any First Amendment right of the accused or of the person
they are in contact under these facts, there is no legitimate government interest in
prohibiting communication from the jail when all of the calls and letters can be
monitored." He cites no caselaw to support his position. Failure to support a point with
pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue. State v. Murray, 302 Kan.
478, 486, 353 P.3d 1158 (2015). An issue not briefed by the appellant is deemed waived
or abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016). Likewise, a
point raised incidentally in a brief and not argued therein is also deemed abandoned. State

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v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). Accordingly, we find that Wilmer
has abandoned this issue. To do otherwise would force us to speculate as to the nature of
his claim.


       Affirmed.




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