Opinion
No. 108,389.
2013-11-27
STATE of Kansas, Appellee, v. Jesse W. LeGRAND, Appellant.
Appeal from Sedgwick District Court; Jeff Goering, judge. Affirmed. Patrick H. Dunn and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeff Goering, judge. Affirmed.
Patrick H. Dunn and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
This case involves an incident that took place between Jesse LeGrand and Kelsi Gunnels, a young couple with a volatile history during their 4–year, off-and-on dating relationship. LeGrand and Gunnels gave the jury two entirely different accounts of what happened when LeGrand entered Gunnels' home through a window in the early morning hours of August 5, 2011. The jury found Gunnels' account more credible and convicted LeGrand of aggravated burglary, criminal threat, and criminal restraint. LeGrand raises five issues in this direct appeal.
First, he alleges several incidents of prosecutorial misconduct in closing argument. Although we find that the prosecutor did err in denigrating defense counsel in a manner not supported by the evidence, we find the error was harmless given the overwhelming evidence of LeGrand's guilt.
Next, LeGrand alleges that his aggravated burglary conviction must be reversed because the State failed to present sufficient evidence to support the alternative means by which the predicate crime of theft could be committed. But we find that the alternative means rule is not implicated here because LeGrand was not charged with and the State did not have to prove that he committed theft.
In his third issue on appeal, LeGrand challenges the trial court's decision to instruct the jury that it could find him guilty of criminal restraint as a lesser included offense of the charged offense of kidnapping. Because we find that criminal restraint is a lesser included offense of kidnapping and there were facts to support the giving of the instruction, there was no error.
Next, LeGrand argues the variance between the pattern instruction on the State's burden of proof and the instruction given precludes us from being certain that the jury held the State to the proper burden of proof. However, our Supreme Court has already decided this issue contrary to LeGrand's position, and we are duty bound to follow that precedent.
In his fifth and final issue on appeal, LeGrand complains that the sentencing court's use of his prior convictions to impose an enhanced presumptive sentence violated his constitutional rights. LeGrand acknowledges that the Kansas Supreme Court has decided this issue contrary to his position. And again, because we are duty bound to follow that precedent, his final claim of error also fails.
For all of these reasons, we affirm.
Factual and Procedural History
The State charged LeGrand with one count each of aggravated burglary, kidnapping, and criminal threat as a result of his interactions with Gunnels in the early morning hours of August 5, 2011. LeGrand's and Gunnels' very different accounts of what happened that morning, given at a 3–day jury trial, are detailed to provide context for some of the arguments being raised on appeal.
The State's version of events showed LeGrand victimizing Gunnels .
Gunnels described for the jury how around 4 a.m. that morning she was asleep in her mother's bed at her home in Goddard, when LeGrand woke her up by leaning over her and shining his cell phone light in her face. Gunnels was scared because she had recently broken up with LeGrand, who had beaten her throughout their relationship. In fact, she still bore bruises from the most recent beating. Gunnels' mother had even banned LeGrand from her home because of a domestic violence incident a year prior, during which he pushed and injured Gunnels.
Gunnels' fears escalated as she and LeGrand argued and she refused his requests that she leave with him. At one point, while they were still in the bedroom, LeGrand grabbed Gunnels, held her head down, and warned that if she screamed, he would stab her in the neck. After they moved into the living room, LeGrand tried to keep Gunnels quiet out of fear of waking her brother Adam Gunnels, at times threatening to kill either Gunnels or her family if he could not get to her. They eventually went outside, where Gunnels ran, screaming, and tried to alert a neighbor by ringing the doorbell. But those efforts failed. LeGrand soon caught up to her, covered her mouth, and took her to hide out of sight between her neighbors' homes.
LeGrand and Gunnels' argument eventually startled Adam awake. After hearing them leave the house, he ran outside and called for his sister. Out of fear for his safety, Gunnels told Adam to go back inside “if [he] [knew] what's good for [him].” Adam, who was aware of his sister's sometimes violent history with LeGrand, complied but immediately called 911.
LeGrand made Gunnels get into the passenger seat of her car, which he then drove around to his car that he had parked in the block behind Gunnels' home. As LeGrand got into his car, he ordered Gunnels to drive to his apartment, warning that he would “hurt [her]” if she did not comply. As they drove toward Wichita, LeGrand pulled up next to Gunnels more than once and threatened he was going to kill her if she did not follow his instructions. Gunnels, nonetheless, disobeyed and began driving erratically, eventually attracting the attention of Deputy Justin Manning, who had heard the bulletin warning of Gunnels' possible abduction. As Manning pulled his police car behind Gunnels' car, she pulled into the parking lot of a Kwik Shop, got out of her car, ran to Manning, and anxiously reported what was happening.
Gunnels ultimately gave verbal, written, and video recorded statements to the police about what had happened that morning before she returned home with a police escort. Gunnels' statements were described as sometimes sporadic and not always consistent.
A subsequent investigation corroborated Gunnels' general report of what had taken place. For example, when she arrived home with a police escort, a window screen that had been cut and removed was found lying on the ground. Subsequent testing also revealed LeGrand's fingerprint was on the window. Gunnels soon discovered that three lottery tickets (Powerball, Kansas Cash, and a scratch-off ticket) and ten $10 bills that her mother had left her to pay for food and gas while she was away were missing, which she reported to the police. When LeGrand was later questioned and arrested, the police found five $10 bills and a lottery scratch ticket on his person. They also found a Kansas Cash ticket with Gunnels' name on it in LeGrand's apartment.
Gunnels openly admitted that her testimony at LeGrand's preliminary hearing varied from her trial testimony. She explained to the jury that she had lied during the preliminary hearing for several reasons, including because she still loved LeGrand; because he had written her a letter that requested she either not appear or tell a different version of what took place; and because she had received threatening phone calls from members of LeGrand's family.
LeGrand's version of events showed a consensual encounter with Gunnels that ended in an argument.
LeGrand testified to a vastly different account of the events surrounding that morning. According to LeGrand, Gunnels had come to his apartment the prior afternoon, told him her mom was going to be out of town that night, and invited him to come over to spend the night. When LeGrand arrived, he tapped on Gunnels' mother's bedroom window as she had directed. Gunnels woke up and directed LeGrand to her own bedroom window. After he removed the screen and stumbled into a rose bush (he was admittedly drunk), Gunnels helped him sneak inside—something they had done several times in the past. She was not happy about his delay brought about by a night of drinking with his friends, which led to an argument.
According to LeGrand, they argued for about 15 minutes before deciding to go sit in Gunnels' SUV in her driveway, where they smoked marijuana and had sex. Afterwards, they finished smoking the marijuana and talked for a while. During that talk, Gunnels handed LeGrand five $10 bills and a $5 winning lottery ticket and told him to use the money to buy her marijuana for the upcoming weekend. She also gave him a Powerball ticket and asked him to check to see if it was a winner. Gunnels eventually went back inside her house as LeGrand locked up her car, sat on her porch, and smoked a cigarette.
Yet another heated argument ensued after Gunnels returned to the porch and saw LeGrand texting someone, which she suspected to be another girl with whom LeGrand had been cheating. LeGrand finished his cigarette and went back inside, where they continued to argue. Tired of fighting, LeGrand eventually told Gunnels that their relationship was over. Gunnels grew even angrier when LeGrand told her he was planning to go to Colorado to visit his mother, so he told her that he slept with her best friend in order to “seal the deal.” At that point, Gunnels “[blew] up,” and LeGrand ran outside and hid between two neighbors' homes after he heard Adam wake up. Gunnels followed him. Adam then came outside and found them. Gunnels refused his command to return home and ordered him to “just go back inside” because “this [was] none of [his] business” and had “nothing to do with” him.
LeGrand described how Gunnels then willingly left in her car with him after Adam went back inside. After dropping LeGrand off at his car in the block behind her house, LeGrand told her to head to his apartment in Wichita, so they could continue their discussion. As they drove into Wichita, Gunnels eventually pulled to the side of the road and told LeGrand that she needed to return home to get her clothes, makeup, and school things and would meet him at his apartment. So she turned around and drove back toward home, while LeGrand drove back to his apartment, showered, and sat around a while waiting for Gunnels. Still drunk, he eventually fell asleep. The next thing LeGrand knew, he was being awoken by two police officers, placed in handcuffs, and “bombarded” with questions.
LeGrand candidly admitted the previous domestic violence incident in which he pushed Gunnels, but he repeatedly denied hitting her. He also consistently denied that on the morning in question he ever threatened Gunnels, restrained her in any way, broke into her home, tried to steal anything, forced her to go anywhere with him, or otherwise did anything threatening or harmful towards her. In fact, LeGrand described how he had been a victim of Gunnels' rage and vindictiveness.
LeGrand also denied that Gunnels was ever supposed to see the letter that she testified contributed to her untruthful testimony at the preliminary hearing. Rather, LeGrand and his sister both testified that he wrote that letter for therapeutic purposes only; neither had any intention of ever letting Gunnels see it. Specifically, LeGrand explained for the jury how he wrote the letter at his sister's suggestion and sent it to his sister only to “vent [his] emotions to [Gunnels]” in hopes of it helping improve his sleep. LeGrand's sister specifically denied Gunnels' testimony that she had given Gunnels the letter, suggesting instead that Gunnels may have stolen it from her home while babysitting her children.
LeGrand also presented testimony from a friend, Andrew Gordon, to corroborate two things. First, Gordon had given LeGrand a ride to Gunnels' home earlier that summer and witnessed him enter through her window with her help. Second, Gordon corroborated LeGrand's testimony that Gunnels had come to LeGrand's apartment the previous day, where Gordon overheard her inviting LeGrand to come over while her mother was out of town.
The jury believed the State's case.
The jury found LeGrand guilty of aggravated burglary, criminal threat, and criminal restraint (as a lesser included offense of kidnapping). Based on LeGrand's criminal history score of E, the trial court subsequently imposed a controlling 49–month prison sentence for the aggravated burglary charge, which the court ordered to run concurrent to the 6–month prison sentence for criminal threat, a severity level 9 felony, and the 12–month jail sentence for misdemeanor criminal restraint. This is LeGrand's timely direct appeal from his convictions and sentences.
Prosecutorial Misconduct
In his first issue on appeal, LeGrand complains the prosecutor committed misconduct in closing argument by: (1) injecting his personal belief about the credibility of both LeGrand and his counsel; (2) criticizing LeGrand's presentation of a defense; and (3) misstating the law regarding aggravated burglary and multiple acts. The State responds that the prosecutor's remarks were proper, but even if they could be considered misconduct, reversal is unnecessary because they did not deprive LeGrand of a fair trial.
We conduct a two-step review of allegations of prosecutorial misconduct.
At the outset, it should be noted that LeGrand did not object to some of the prosecutor's comments about which he now complains. But this does not preclude appellate review. See State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200,cert. denied133 S.Ct. 529 (2012).
Appellate review of allegations of prosecutorial misconduct involves two steps. First, we must determine whether the prosecutor's comments about which LeGrand complains were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If so, then we must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against LeGrand and denied him a fair trial. See State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
LeGrand has sufficiently briefed this issue.
Before applying these standards here, we must consider the State's suggestion that we do not need to reach the merits of this claim because LeGrand has not adequately briefed this issue. See State v. Gleason, 277 Kan. 624, 655, 88 P.3d 218 (2004) (recognizing that simply pressing point without citing pertinent authority or explaining why it is sound despite lack of supporting authority is akin to failing to brief issue, which results in its waiver or abandonment). In support, the State argues that LeGrand devotes only four pages of his brief to this issue with “limited analysis of his claims, little to no context, and few pertinent citations to case law.” LeGrand, on the other hand, insists he has fully briefed this issue.
We agree with LeGrand. Although his analysis is somewhat sparse, we find LeGrand's brief is sufficient for us to reach the merits of this issue.
Some of the prosecutor's comments about which LeGrand complains were misconduct.
We begin our analysis by determining whether any of the alleged comments made by the prosecutor during closing argument constituted misconduct.
“[G]enerally speaking, the prosecutor's personal opinion regarding the defendant's credibility is improper fodder for closing argument.” State v. Anthony, 282 Kan. 201, 210, 145 P.3d 1 (2006). Otherwise, “unsworn testimony from a representative of the government” improperly ends up before the jury. See State v. Hart, 297 Kan. 494, 505–07, 301 P.3d 1279 (2013); see also State v. Pabst, 268 Kan. 501, 506, 510, 996 P.2d 321 (2000) (citing Kansas Rule of Professional Conduct 3.4[e] [1999 Kan. Ct. R. Annot. 369–70], which precludes a lawyer from commenting on the credibility of a witness, in explaining: “The point of not allowing a prosecutor to comment on the credibility of a witness is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case”).
LeGrand complains the prosecutor overstepped these boundaries multiple times. The State responds the prosecutor's comments were either proper discussions of the evidence and reasonable inferences that can be drawn from that evidence or prompted by defense counsel's argument. See Anthony, 282 Kan. at 210 (noting prosecutor is afforded considerable latitude in discussing evidence and reasonable inferences that may be drawn from it).
We have carefully examined each allegation of misconduct claimed by LeGrand and find that, with the exception of those discussed below, they were all within the wide latitude provided prosecutors in closing argument.
First, LeGrand complains about the following comments by the prosecutor at outset of his closing argument:
“I apologize that this case has taken as long as it has, but frankly, I think you may have been surprised, as we all were, the depths this defendant would take to try to manipulate these proceedings, to try to influence Kelsi Gunnels, and everything that has gone on here this week.” (Emphasis added.)
According to LeGrand, the emphasized statement by the prosecutor implied that LeGrand was lying “and only presented a defense in order to manipulate the trial and Gunnels.”
The State responds that these comments about “defense tactics” that delayed the trial or that were intended to influence Gunnels were a proper “comment on the theory of defense.” Although not entirely clear, the State seems to be saying that its comment here was a reasonable inference that could be drawn from the evidence.
We disagree. Other than perhaps the letter from LeGrand suggesting the victim not appear or alter her testimony, these “tactics” that the State argues it could properly discuss seem to have involved procedural trial delays, not evidence properly before the jury. Such procedural trial tactics are not an appropriate subject matter for a closing argument because they are not a comment on the evidence bearing upon a defendant's guilt or innocence. But see State v. Crum, 286 Kan. 145, 150, 184 P.3d 222 (2008) (holding: “[F]air comment on trial tactics and the interpretation of evidence is allowed, so long as care is taken not to ‘inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses.’ [Citation omitted.]”).
LeGrand next complains about the prosecutor's argument in rebuttal that defense counsel had “duped” and “tricked” Gunnels into coming to her office to talk about the case. According to LeGrand, this is contrary to the evidence that Gunnels voluntarily went to meet with defense counsel. LeGrand objected to this argument at trial, but the trial court overruled the objection.
The State responds that it was “simply summarizing the evidence.” LeGrand replies in turn, however, that there was no “evidence at trial defense counsel actively sought to mislead Gunnels.”
Again, we agree with LeGrand. During cross-examination, defense counsel questioned Gunnels about statements she had made at trial that were inconsistent with statements she had made in defense counsel's office prior to trial. Gunnels acknowledged that while she was in defense counsel's office she had spoken to counsel about how much she loved LeGrand but indicated the only way they would be able to stay away from each other—i.e., her from him and him from her—was if LeGrand went to prison. Gunnels testified that defense counsel had misunderstood what she really meant, which was that the only way to keep LeGrand away from her was for LeGrand to go to prison. On redirect, the State inquired as follows:
“Q. [Prosecutor:] What was the pretext under which you went to go and have this conversation [with defense counsel]?
“A. [Gunnels:] The whole reason why I was even there is ‘cuz she had made it seem over the phone we were gonna settle this, to where I didn't have to come to trial, we were going to come up with some kind of plea arrangements.
“Q. [Prosecutor:] Who's she that your are referring to?
“A. [Gunnels:] [Defense counsel].
“Q. [Prosecutor:] [Defense counsel]?
“A. [Gunnels:] That's who I spoke with on the phone.
“Q. [Prosecutor:] Let me ask you about the one statement [defense counsel] attributes to you as being that you won't stay away from him if he's out on the street, but that's not what you—even if that what you said, that's not what you meant, is that what you're trying to tell us?
“A. [Gunnels:] That is not what I mean. I meant Wichita is so small, it's just-I'm not safe here.”
Later Gunnels testified:
“A. [Gunnels:] I had received a phone call from Jesse's lawyer, she seemed all nice and friendly on the phone, wanting me to go to her office so we could work out a plea, because it was obvious I didn't want to come to trial an testify. So I thought great, we're gonna go there and work something out so it doesn't have to end up like this.
“Q. [Prosecutor:] When you were there did [defense counsel] or her—whoever else was there, did anyone discuss with you a possible plea?
“A. [Gunnels:] Not really, no.
“Q. [Prosecutor:] Okay. What was discussed?
“A. [Gunnels:] At first she wanted to hear the story, which I questioned, because she was working for Jesse, why can't she ask Jesse. But I told her the truth, what happened.”
On cross-examination by LeGrand's attorney, the following discussion took place:
“Q. [Defense counsel:] When I talked to you on the phone, you could tell I had you on speakerphone, couldn't you?
“A. [Gunnels:] No.
“Q. [Defense counsel:] And then you agreed to come in, correct?
“A. [Gunnels:] Yes.
“Q. [Defense counsel:] Okay. And then you came in and I told you that ... I wanted to talk to you, see if there was a way we would be able to work this out?
“A. [Gunnels:] Yes, a plea.
“Q. [Defense counsel:] To work things out. I never told you what to say, correct?
“A. [Gunnels:] Correct.
“Q. [Defense counsel:] I never tried to put words into your mouth?
“A. [Gunnels:] Correct.
“Q. [Defense counsel:] I wanted to hear what you had to say, to see if there was anything we could do?
“A. [Gunnels:] Right.
“Q. [Defense counsel:] Right? And do you recall that I asked you how you wanted to see this case resolved?
“A. [Gunnels:] Yes.”
Defense counsel then proceeded to question Gunnels about her comments regarding whether she wanted LeGrand in prison so she would not be tempted to get back together with him. Likewise, the prosecutor questioned Gunnels about what she meant by those comments.
This was the sum total of the testimony before the jury about why Gunnels went to defense counsel's office and what was said when she got there. For the prosecutor in closing argument to then state that Gunnels had been “duped by defense counsel into coming into their office to talk about it” and that Gunnels “was tricked into coming in there to talk about a plea” by defense counsel and her legal assistant, was not a reasonable inference to be drawn from the evidence. It certainly did not go to LeGrand's guilt or innocence at all. Rather, these comments constituted a mischaracterization of the evidence for no other purpose than to denigrate defense counsel. Under the facts of this case, such argument was prosecutorial misconduct.
The remaining comments by the prosecutor during rebuttal about which LeGrand complains here concern comments made by the prosecutor in response to defense counsel's closing argument, which she apparently opened by placing her right hand on a Bible and reciting the oath: “I swear to tell the truth, the whole truth and nothing but the truth, so help me God.” After the State's objection to this tactic was overruled, defense counsel highlighted Gunnels' admission that she lied during the preliminary hearing and commented that her oath given before that testimony “obviously means nothing at all to Kelsi Gunnels.” LeGrand's complaint here is that during rebuttal the prosecutor commented, “Bravo, nice show. Bring a Bible, give us an appearance of innocence. He's cloaked in innocence, but now we want to cloak him in sainthood, too. Amazing.”
Although the trial court sustained LeGrand's objection, the State now seems to argue there was nothing wrong with the prosecutor's comments. In particular, the State argues that, when considered “[i]n context, what the prosecutor was communicating to the jurors was that while defendant does have a presumption of innocence, they should not allow defense counsel's use of the Bible to improperly sway them.” The State also complains that LeGrand has not elaborated on how this amounted to an improper personal attack on his counsel. According to the State, if we follow LeGrand's logic, “any dispute over trial tactics would constitute an attack on opposing counsel.”
We disagree. The trial court sustained LeGrand's objection because this comment disparaged defense counsel. Attacks on defense counsel's credibility are generally not a proper subject of closing argument. See, e.g., State v. Harris, 297 Kan. 1076, 306 P.3d 282, 291 (2013); Crum, 286 Kan. at 150.
The State further suggests that even if considered misconduct, the prosecutor's comments were a justifiable rebuttal to defense counsel's argument, which our courts formerly condoned. See, e.g., State v. Murray, 285 Kan. 503, 517–18, 174 P.3d 407 (2008). But, as LeGrand properly points out, in State v. Marshall, 294 Kan. 850, 861, 281 P.3d 1112 (2012), our Supreme Court disavowed this line of reasoning. Instead, our Supreme Court held that “a prosecutor's improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting arguments made by defense counsel.” 294 Kan. at 861. In other words, “defendants do not open the door to prosecutorial misconduct.” State v. Stimec, 297 Kan. 126, 130, 298 P.3d 354 (2013).
Before discussing whether this prosecutorial misconduct warrants reversal under the second step of our review, we will consider whether any of the other comments by the prosecutor during closing argument that LeGrand now complains about also constitute misconduct.
The State did not improperly shift the burden of proof to LeGrand.
LeGrand next complains that the prosecutor's comments discussed above regarding LeGrand's trial delay tactics “communicated to the jury that simply because Mr. LeGrand presented a defense and chose to testify, that this was somehow indicative of his character.” He further complains about the prosecutor's comments that he “boss[ed] [his counsel] around,” that he “chose to testify last,” and that he was eager to answer questions during his direct examination. According to LeGrand, these criticisms of his “presentation of a defense” amounted to an improper burden shift. According to LeGrand:
“By criticizing Mr. LeGrand's active participation in his own defense, the prosecutor communicated two points: First, that it was inappropriate for Mr. LeGrand to present a defense, and second, that Mr. LeGrand [ sic ] should not hold the State accountable and require the State to prove each element beyond a reasonable doubt. This second inference dilutes the State's burden of proof. Thus, the prosecutor's critique of Mr. LeGrand's exercising his right to present a full and complete defense also diluted the State's burden of proof.”
As support for this argument, LeGrand cites State v. Tosh, 278 Kan. 83, 89–92, 91 P.3d 1204 (2004), which found a prosecutor's comments on a lack of evidence to show that a rape reported by the victim did not happen impermissibly attempted to shift the burden of proof.
LeGrand's argument suffers from a logical disconnect. We fail to see how the prosecutor's comments about LeGrand's defense can be interpreted as shifting the burden of proof. Prosecutors are allowed to comment on a complete lack of evidence to support a defendant's theory, as long as the jury is properly instructed on the State's burden of proof. See State v. Cosby, 293 Kan. 121, 136, 262 P.3d 285 (2011); State v. Bedell, 36 Kan.App.2d 870, 875–76, 146 P.3d 1096 (2006) (finding nothing wrong with prosecutor's argument that no evidence supported defense that cocaine was for personal use), rev. denied 283 Kan. 932 (2007), overruled on other grounds State v. Phillips, 289 Kan. 28, 210 P .3d 93 (2009). That is what happened here. The prosecutor did not improperly shift the burden of proof.
The prosecutor did not misstate the law.
LeGrand next complains that the prosecutor twice misstated the law during closing argument.
“A defendant is denied a fair trial when a prosecutor misstates the law and the facts are such that the jury could have been confused or misled by the statement.” State v. Hall, 292 Kan. 841, 849, 257 P.3d 272 (2011).
The first alleged misstatement of the law ties into LeGrand's second issue on appeal concerning the jury instruction's inclusion of the elements of theft in the jury instruction on aggravated burglary. As discussed more fully below, before setting forth those elements of theft, the jury was instructed on the charge of aggravated burglary that the State had to prove that LeGrand either “knowingly entered” or “knowingly remained” in Gunnels' home “without authority” and “with the intent to commit a theft therein.” In discussing this instruction, the prosecutor told the jury, “The elements of theft are set out, they're not required elements to be proven, but the evidence supports that they have been in this case, as we've just discussed.” (Emphasis added.) LeGrand argues this was a misstatement of the law.
The State correctly responds that it is LeGrand who misstates the law here. In support of his argument, LeGrand cites State v. Rush, 255 Kan. 672, Syl. ¶ 5, 877 P.2d 386 (1994), and State v.. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992), superseded by statute on other grounds State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010). Those cases held that a burglary instruction must specify the elements of the offense the defendant intended to commit upon entering the premises. The instruction does not provide that those elements must be proven. See PIK Crim.3d 59.18. So the prosecutor did not misstate the law.
The next alleged misstatement of the law by the prosecutor concerns the multiple acts underlying the criminal threat charge. As briefly discussed above, those acts encompassed Gunnels' testimony that LeGrand threatened to cut her throat in the bedroom and again threatened to kill her as they drove toward LeGrand's apartment. The jury was instructed that to find LeGrand guilty, it had to unanimously agree which of these acts constituted a criminal threat. See K.S.A. 22–3421; State v. Trujillo, 296 Kan. 625, 629–32, 294 P.3d 281 (2013) (discussing necessity of unanimity instruction when State charges one crime but relies on multiple acts to support it); see also State v. Voyles, 284 Kan. 239, 244–45, 160 P.3d 794 (2007) (same). According to LeGrand, the prosecutor misstated the law of multiple acts when he told the jury, “And again, here there are multiple acts involved. There are two times that [Gunnels] explicitly describes [LeGrand] threatening to kill her.... You all have to just choose which one of those is the most applicable to this situation, which one of those is best supported by the evidence.” (Emphasis added.) LeGrand contends that “[t]his statement allowed the jurors to reach a unanimous verdict even if they did not agree on the underlying act, as long as they all had independently chosen one incident that was ‘applicable to this situation.’ “
The State responds that when taken in conjunction with the prosecutor's earlier explanation of the concept of multiple acts to the jury when discussing the aggravated burglary charge, this was not a misstatement of the law. Indeed, the State had earlier stressed to the jury had it had to “as a group be unanimous as to” one underlying act.
We agree with the State. When reviewing allegations of prosecutorial misconduct, we must consider the comment in the context of the argument as a whole. Here, the prosecutor's argument as a whole properly stated the law governing jury unanimity where multiple acts are charged.
The prosecutor's misconduct did not deprive LeGrand of a fair trial.
We turn now to the second analytical step to determine whether a new trial is required as a result of the three instances of misconduct discussed above involving the comments that tended to denigrate defense counsel.
Three factors guide our consideration of prejudice stemming from prosecutorial misconduct: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
“ ‘None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, [22,] 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (conclusion beyond reasonable doubt that the error ... changed the results of trial), have been met.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).
See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594(2012).
Under the constitutional harmless error test in Chapman, the party benefitting from any prosecutorial misconduct must prove beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record. Under the statutory harmless error standard, the court must determine “ ‘if there is a reasonable probability the misconduct affected the outcome of the trial.’ [Citations omitted.]” State v. McCullough, 293 Kan. 970, 990, 270 P.3d 1142 (2012). As recently noted by our Supreme Court, when violations of both statutory and federal constitutional rights arise from the same acts or omissions, an appellate court need only analyze the more rigorous federal constitutional harmless error standard. State v. Herbel, 296 Kan. 1101, 1110–11, 299 P.3d 292 (2013).
Our Supreme Court has identified considerations that help guide our determination of whether the prosecutor's misconduct here was gross and flagrant or motivated by ill will. For example, in determining whether prosecutorial misconduct was gross and flagrant, we must consider whether the comments were repeated, emphasized, planned or calculated, or violated well-established or unequivocal rules. See State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). Prosecutorial misconduct that appears to be deliberate or indifferent to a court's ruling will be considered a product of ill will. See Marshall, 294 Kan. at 862; see also State v. Ochs, 297 Kan. 1094, 306 P.3d 294, 301 (2013) (citing treatises that recognize other factors courts consider in determining harmfulness of prosecutorial misconduct include: whether misconduct related to crucial issue in trial; whether prosecutor followed misconduct with apology; and whether it resulted from the prosecutor's failure to obey court rulings, which increases likelihood of reversal). “In an overlap with determining gross and flagrant conduct, for determining ill will [our Supreme Court] has also considered whether the conduct was repeated.” Ochs, 297 Kan. at –––– (306 P.3d at 301) (citing Marshall, 294 Kan. at 862).
LeGrand's summary argument that the prosecutor's misconduct was gross and flagrant presupposes that we agree with all of his allegations of prosecutorial misconduct. That is, he argues that “[c]ombined, [the complained-of] comments constitute gross and flagrant conduct.” We disagree. The three instances of misconduct at issue do not combine to demonstrate gross or flagrant behavior by the prosecutor.
LeGrand also broadly contends that ill will is demonstrated here because “the prosecutor appeared to intentionally make his comments .” This is an overly broad interpretation of the factors that can demonstrate ill will. If this were the test, statements made by a prosecutor during closing argument that are found to be misconduct would almost always be found the product of ill will. LeGrand also complains that the prosecutor's misconduct was repeated. Granted, the prosecutor did make comments tending to improperly denigrate defense counsel and challenge her motives on more than one occasion, but not to the extent found to be harmful in cases such as State v.. Pabst, 268 Kan. 501, 504–12, 996 P.2d 321 (2000). See State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 (2003) (finding few improper comments in lengthy transcript did not show ill will).
In sum, when read in the context of the entire record, it is difficult to say that these three instances of prosecutorial misconduct were gross and flagrant or the product of ill will. We do note however that this is a very close call. We caution counsel for one side to refrain from attempts to denigrate his or her counterpart in front of the jury. As this court has previously stated:
“We wish to remind trial advocates that final argument is a crucial and delicate time of the trial. It is extremely dangerous to allow zealousness to be given too loose a rein. Fair comment on trial tactics and the interpretation of evidence is appropriate in argument to the jury. But, care must be exercised not to inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses.” State v. Mosley, 25 Kan.App.2d 519, 525, 965 P.2d 848,rev. denied 266 Kan. 1113 (1998), overruled on other grounds State v. Jasper, 269 Kan. 649, 8 P.3d 708 (2000).
As Judge Learned Hand keenly observed: “It is impossible to expect that a criminal trial shall be conducted without some showing of feeling; the stakes are high, and the participants are inevitably charged with emotion.” United States v. Wexler, 79 F.2d 526, 529–30 (2d Cir.1935), cert denied 291 U.S. 703 (1936). Nonetheless, a “ ‘prosecutor is expected to refrain from impugning, directly or through implication, the integrity or institutional role of defense counsel.’ [Citation omitted.]” State v. Barry A., 145 Conn.App. 582, 604, 76 A.3d 211 (2013). Such comments necessarily direct the jury's attention away from the evidence before it.
Even if we deem these improper comments gross and flagrant or the product of ill will, however, we agree with the State that the comments were harmless in that we do not believe they prejudiced the jury against LeGrand or denied him a fair trial. Although there were two conflicting versions of the events of that morning, the evidence against LeGrand was overwhelming. In addition to Gunnels' depiction of the events both at trial and immediately after the incident, there was forensic evidence that the screen to her bedroom window had been cut open and LeGrand's fingerprints were on the window. Gunnels' brother, Adam, also testified that he was awakened by the commotion, and when his sister told him to go back inside “if [he] [knew] what's good for [him],” he complied but was concerned enough to immediately called 911. Moreover, LeGrand wrote a letter to Gunnels asking her to abscond from testifying or to present perjured testimony. In light of the record as a whole, we find that the State has proven beyond a reasonable doubt that the error did not affect the outcome of the trial.
Alternative Means
In his second issue on appeal, LeGrand argues that his aggravated burglary conviction must be reversed because the State failed to present sufficient evidence to support the alternative means by which the predicate crime of theft could be committed. The State responds that we should not consider this issue because LeGrand invited any error by requesting the instruction for the aggravated burglary charge. Alternatively, the State argues this issue fails on its merits for at least two reasons: (1) because LeGrand was not charged with theft; and (2) because this court has already held that the definition of theft does not create alternative means of committing that offense.
We have de novo review.
Deciding whether the statute at issue here provides alternative means of committing a crime requires a determination of the legislative intent in defining the crime of aggravated burglary, which endeavor is accomplished through use of established guidelines for interpreting statutes. See Brown, 295 Kan. at 189–200. Statutory interpretation is a question of law, so our appellate review is de novo. 295 Kan. at 193–94.
The alternative means rule requires substantial competent evidence to support each of the alternative means by which a single crime charged can be committed.
Our Supreme Court recently summarized the “alternative means rule and its corollary super-sufficiency requirement” upon which LeGrand's argument is grounded as follows:
“[I]f a single offense may be committed in more than one way, there must be jury unanimity as to guilt/or the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.” (Emphasis added.) Brown, 295 Kan. 181, Syl. ¶ 1.
This rule derives from a criminal defendant's statutory right to a unanimous jury verdict on each individual offense charged. See K.S.A. 22–3421; State v. Wright, 290 Kan. 194, 201–06, 224 P.3d 1159 (2010). If a case presents alternative means of committing the offense and the record does not provide sufficient evidence supporting each of the alternative means, the conviction must be reversed. See 290 Kan. at 205–07.
The State charged LeGrand with aggravated burglary in violation of K.S.A.2011 Supp. 21–5807(b). That statute provides, in pertinent part, that “[a]ggravated burglary is, without authority, entering into or remaining within any building ... in which there is a human being with intent to commit a ... theft ... therein.” K.S.A.2011 Supp. 21–5807(b). The trial court alternatively instructed the jury that it could find LeGrand guilty of aggravated burglary if the State proved that he either “knowingly entered” or “knowingly remained” in Gunnels' home “without authority” and “with the intent to commit a theft therein.” Accord PIK Crim. 4th 58.130, Notes on Use (discussing propriety of instructing in this alternative manner where there is unclear evidence of “entering into” and “remaining within” as distinct factual situations).
LeGrand's argument here is based on the fact that, after setting forth these alternative elements of the offense of aggravated burglary, the instruction provided:
“The elements of theft are:
“1. That Kelsi Gunnels was the owner of the property;
“2. That Jesse LeGrand obtained or exerted unauthorized control over the property;
“3. That Jesse LeGrand intended to deprive Kelsi Gunnels permanently of the use or benefit of the property;
“4. That the property was less than $1,000; and
“5. That this act occurred on or about the 5th day of August, 2011, in Sedgwick County, Kansas.” (Emphasis added.)
As mentioned above, this part of the instruction was necessary to comply with our Supreme Court's holding that a burglary instruction must specify the elements of the offense the defendant intended to commit upon entering the premises. See Rush, 255 Kan. 672, Syl. ¶ 5;Linn, 251 Kan. at 802; PIK Crim. 4th 58.130; accord Richardson, 290 Kan. at 182 (citing Rush and Linn in holding that “[w]hen a statute makes the commission of a crime or the intent to commit a crime an element of another crime, the jury instructions must set out the statutory elements of the underlying offense”). In short, LeGrand contends the emphasized “obtained or exerted” element of theft triggers the alternative means rule.
The doctrine of invited error is not at play here.
The State initially responds that we need not reach the merits of this issue because LeGrand invited any error by requesting the aggravated burglary instruction. In support, the State cites State v. Hargrove, 48 Kan.App.2d 522, 528–54, 293 P.3d 787 (2013), wherein this court held that a defendant cannot challenge an instructional error implicating constitutional rights on appeal, even as clearly erroneous under K.S.A. 22–3414(3), where that error is invited through an affirmative tactical decision by defense counsel, as opposed to mere inadvertence. According to the State, LeGrand's argument here ultimately involves an instructional challenge given that the alternative means rule derives from the right to jury unanimity under K.S.A. 22–3421.
LeGrand replies that the invited doctrine error has no place here because he is not alleging any defects in the instruction for aggravated burglary. Rather, he challenges the sufficiency of the evidence to support the elements properly included in the instruction.
We agree with LeGrand. The invited error doctrine is not implicated under these circumstances.
The alternative means rule is not implicated here because LeGrand was not charged with and the State did not have to prove that he committed theft.
Turning to the merits, LeGrand argues his alternative means argument is supported by our Supreme Court's distinction between the terms “exerting” and “obtaining” control in State v. Kunellis, 276 Kan. 461, 467–74, 78 P.3d 776 (2003). Additional discussion of the analysis in that case is necessary to provide context for this contention.
In Kunellis, the defendant argued the court's instruction and the State's closing argument misstated the law of theft, the crime underlying his convictions for felony murder. Neither the instruction nor the closing argument are specifically discussed in the opinion, but it appears from context that both indicated that felony murder could be based upon a death occurring after the ‘ “commission” ‘ of the theft. 276 Kan. at 468. The defendant argued this was error because
“the theft is complete when a person takes unauthorized possession of the property of another. As a result, a conviction for felony murder based upon a death occurring after the ‘commission’ of the theft, without more, cannot stand. See K.S.A. 21–3401(b). [Rather, the defendant argued], conviction for a felony murder following that theft can only be based upon ‘flight from’ that completed crime. K.S.A. 21–3401(b).” 276 Kan. at 468.
So the issue in Kunellis centered largely on when the crime of theft is complete. To address that issue, the Kunellis court looked to State v. Gainer, 227 Kan. 670, 672–74, 608 P.2d 968 (1980), in which the State suggested that the “exerting” language in the theft statute created a continuing offense. In disagreeing with that contention, the Gainer court noted that the “ ‘obtaining or exerting’ “ language now found in the theft statute was intended to consolidate “ ‘what were formerly the crimes of larceny [ (by physically obtaining property) ] and embezzlement [ (by exerting control over property) ] into a single crime of theft. See the Judicial Council Note following K.S.A. 21–3701.’ “ Kunellis, 276 Kan. at 468 (quoting Gainer, 227 Kan. at 673). Based on that distinction, the Kunellis court later pointed out that the theft involved in the case before it was complete when the defendant took the property, reasoning in support:
“In short, the ‘theft by exertion’ option applies to crimes such as embezzlement, not the physical theft at issue here. See Wilson, Thou Shalt Not Steal: Ruminations On The New Kansas Theft Law, 20 Kan. L.Rev. 385, 406 (1972) (‘Obtaining’ unauthorized control is the touchstone for theft by a stranger, while ‘exertion’ of unauthorized control is sufficient proof in the embezzlement situation where the actor already has control.).” Kunellis, 276 Kan. at 469–70.
LeGrand contends this distinction in Kunellis supports his position that “obtained or exerted” are alternative material elements of theft. That is, he contends that by instructing the jury it had to find he “ obtained or exerted unauthorized control over the property” the jury had to find “ ‘alternative distinct, material elements of a crime’ “; and there was no evidence from which the jury could find he “exerted” any control over Gunnels' money and lottery tickets.
The State responds that LeGrand's argument necessarily fails because it is based on the faulty premise that the State had to prove the elements of theft. Indeed, LeGrand was charged with aggravated burglary, not theft. Granted, to prove aggravated burglary, the State had to prove as a material element that LeGrand had the intent to commit theft. But it did not have to prove that he actually committed the offense of theft. See State v. Pruitt, 216 Kan. 103, 105–06, 531 P.2d 860 (1975) (acquittal on theft charge is not inconsistent with conviction of aggravated burglary); State v. Ponds, 18 Kan.App.2d 231, 233, 850 P.2d 280 (1993) (completion of predicate crime of theft is not required to convict a defendant of aggravated burglary), disapproved on other grounds State v. Rush, 255 Kan. 672, 877 P.2d 386 (1994).
LeGrand responds that, nonetheless, an alternative means issue presents itself here. In support, he contends the jury either had to find that he “intended to (1) obtain control over Gunnels' property or (2) exert control over Gunnels' property.”
We agree with the State. The alternative means rule looks at the means for committing a single charged offense. We can find no cases, nor does LeGrand cite any, which have found the rule has been extended to a predicate offense—as opposed to a separate crime—that the State need only prove a defendant intended to commit.
Even if we were to reach the merits of LeGrand's argument, it has already been rejected by multiple panels of this court.
The State further points out that even if the alternative means rule was implicated here, several panels of this court have already ruled that “obtaining or exerting control” does not create an alternative means for committing the crime of theft. In State v. Snover, 48 Kan.App.2d 298, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012, a panel of this court recently discussed the two lines of reasoning underlying this holding.
The first line of reasoning holds that the terms “obtaining and exerting” are essentially synonyms that describe the same conduct, so they do not form an alternative means for committing theft. 48 Kan.App.2d at 305 (citing State v. Rollins, 46 Kan.App.2d 17, 22, 257 P.3d 839 [2011],rev. denied 293 Kan. –––– [February 17, 2012]; State v. Fawl, No. 103,004, 2011 WL 4563067 [Kan.App.2011] [unpublished opinion], rev. denied 296 Kan. –––– [February 25, 2013] ). LeGrand suggests this line of reasoning is faulty because it overlooks the distinction recognized in Kunnelis between “obtaining” and “exerting” control as already discussed above.
On the contrary, we hold the variance between the underlying charge at issue here is a basis for distinguishing Kunnelis. To prove the felony-murder charge at issue in Kunnelis, the State had to prove the death occurred “after the [defendant's] ‘commission’ of the theft,” which was “complete when a person [took] unauthorized possession of the property of another.” (Emphasis added.) 276 Kan. at 468. Here, on the other hand, the State had to prove only that LeGrand intended to commit the crime of theft. Accordingly, we need not address the State's additional grounds for distinguishing Kunnelis, i.e., the issue in that case was whether theft was a continuing offense, not whether “obtains or exerts” described alternative means for committing the offense.
Even if we were to agree with LeGrand's challenge to the reasoning in Rollins (as relied upon in Snover ), the second line of reasoning in support of the conclusion that theft does not implicate an alternative means issue effectively defeats his position. That line of reasoning is based on legislative intent derived from plain statutory language. Specifically, this court has held our legislature expressed its intent not to provide alternative means for committing the offense of theft by defining “obtains or exerts control” to mean the same thing under K.S.A.2011 Supp. 21–5111(r) (formerly K.S.A.2010 Supp. 21–3110[13] ). See Snover, 48 Kan.App.2d at 305 (citing State v. Polk, No. 105,011, 2012 WL 1237880 [Kan.App.2012] [unpublished opinion], rev. denied 297 Kan. –––– [April 1, 2013] ). Given this clearly expressed legislative intent, LeGrand's argument that “obtains or exerts” represent alternative means for committing theft necessarily fails on its merits.
Criminal Restraint as a Lesser Included Offense of Kidnapping
In his third issue on appeal, LeGrand challenges the trial court's decision to instruct the jury that it could find him guilty of criminal restraint as a lesser included offense of the charged offense of kidnapping. According to LeGrand, this was reversible error for one of two alternative reasons: (1) because criminal restraint is not a lesser included offense of kidnapping; or (2) because there was no factual question of whether LeGrand had the specific intent to commit the crime of kidnapping; he either had the specific intent or the act underlying the charge never happened. The State responds that (1) precedent has already established that criminal restraint is a lesser included offense of kidnapping; and (2) an instruction was warranted under the facts of this case.
We have unlimited review over the question of whether criminal restraint is a lesser included offense of kidnapping.
Whether a crime is a lesser included offense presents a question of law subject to unlimited appellate review. State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008).
Criminal restraint is a lesser included offense of kidnapping.
At the time that LeGrand allegedly committed the charged crime of kidnapping, K.S.A.2011 Supp. 21–5109(b) governed this issue of what constitutes a lesser included crime as follows:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(1) A lesser degree of the same crime;
(2) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
(3) an attempt to commit the crime charged; or
(4) an attempt to commit a crime defined under paragraph (1) or (2).”
The elements of the crimes in dispute here are as follows:
• “(a) Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: ... (3) to inflict bodily injury or to terrorize the victim or another.” K.S.A.2011 Supp. 21–5408(a)(3) (formerly K .S.A. 21–3420[c] ).
• “(a) Criminal restraint is knowingly and without legal authority restraining another person so as to interfere substantially with such person's liberty.” (Emphasis added.) K.S .A.2011 Supp. 21–5411(a) (formerly K.S.A. 21–3424[a] ).
There was no dispute below about criminal restraint being a lesser included offense of kidnapping. Rather, LeGrand objected to instructing on criminal restraint as a matter of all-or-nothing trial strategy. Nor is there any dispute here that our courts have repeatedly identified criminal restraint as a lesser included offense of kidnapping. See, e.g., State v. Carter, 232 Kan. 124, 126, 652 P.2d 694 (1982); State v. Clary, 47 Kan.App.2d 38, 49, 270 P.3d 1206 (2012) (citing State v. Simmons, 282 Kan. 728, 742, 148 P.3d 525 [2006] ),rev. denied291 Kan. (February 19, 2013); State v. Timms, 29 Kan.App.2d 770, 773, 31 P.3d 323 (2001) (citing State v. Lile, 237 Kan. 210, 213, 699 P.2d 456 [1985];State v. Little, 26 Kan.App.2d 713, 717, 994 P.2d 645 [1999],rev. denied 269 Kan. 938 [2000] ); State v. Macomber, No. 107,206, 2013 WL 3455777, at *12 (Kan.App.2013) (unpublished opinion) (citing Timms ).But they did so without much analysis of the issue.
The parties in this case do analyze the issue, focusing their dispute around whether criminal restraint is a lesser included offense of kidnapping in light of a 1998 amendment to the statutory definition of lesser included offenses. Prior to that amendment, K.S.A. 21–3107(2)(d) (Furse) directed that a defendant could be convicted of either the charged crime or the “included crime,” which was defined, in part, as “a crime necessarily proved if the crime charged were proved.” The amendment changed that definition to read as it now does in K.S.A.2011 Supp. 21–5109(b)(2), i.e., a “lesser included crime” is “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” L.1998, ch. 185, sec.1. In State v. Schoonover, 281 Kan. 453, Syl. ¶¶ 6, 12–15, 133 P.3d 48 (2006), our Supreme Court held the strict—or same—elements test must be applied, which requires a determination of whether the lesser charge “contain[s] elements which are identical to some or all of the elements” of the greater charge. If not, then it is not a lesser included offense. See 281 Kan. at 505.
A panel of this court confronted this same issue in State v. Ramirez, No. 102,421, 2011 WL 2793219 (Kan.App.2011) (unpublished opinion), rev. granted 294 Kan. (June 22, 2012). All three panel members ultimately wrote separate opinions that present the three options we have in approaching this issue:
• Judge Buser reasoned that criminal restraint is a lesser included offense under K.S.A. 21–3107(2)(b), what is now K.S.A.2011 Supp. 21–5109(b)(2), because, while not identically worded, the elements of criminal restraint are, for all essential purposes, identical to some of the elements of kidnapping. 2011 WL 2793219, at *9–10 (Buser, J., majority opinion).
• Chief Judge Greene found Judge Buser's “similar enough” reasoning inappropriate. Instead, Chief Judge Greene reasoned that because the exact same elements of criminal restraint are not also included in kidnapping, he would hold criminal restraint is not a lesser included offense of kidnapping. Consequently, he would hold the district court lacked jurisdiction to convict Ramirez of that crime. 2011 WL 2793219, at *10–13 (Greene, J., dissenting on issue).
• Judge Atcheson reasoned that criminal restraint is a lesser degree of the same crime, making criminal restraint a lesser included offense as defined in what is now K.S.A.2011 Supp. 21–5109(b)(1). So he concurred with Judge Buser's decision affirming the defendant's conviction. 2011 WL 2793219, at *13–15 (Atcheson, J., concurring).
We agree with the approaches taken by both Judge Buser and Judge Atcheson. We first agree with the following reasoning by Judge Buser:
“We acknowledge that the two statutes use different language to describe the elements of the prohibited conduct. But while the words of the two phrases are not identical, the meaning of those words is identical. The element of the lesser crime of criminal restraint requiring unauthorized restraint of a person ‘so as to interfere substantially with such person's liberty,’ K.S.A. 21–3424, is equivalent to ‘taking or confining a person, accomplished by force, threat or deception.’ Stated another way, we view the taking or confining of a person by force, threat, or deception to be one and the same as interfering substantially with that person's liberty. Accordingly, all of the elements of the lesser offense of criminal restraint are included in the greater offense of kidnapping.” 2011 WL 2793219, at *9.
Even Judge Atcheson, in his concurrence, agreed that the criminal restraint language and the kidnapping language were not identical but that “phraseology need not be identical for the elements to be so.” 2011 WL 2793219, at *13. He went on to parenthetically point out that “the phrase ‘confining a person’ in the kidnapping statute sounds a great deal like a terse version of ‘restraining another person so as to interfere substantially with such person's liberty’ that defines criminal restraint.” 2011 WL 2793219, at *13. Judge Atcheson, however, preferred a different approach, explaining:
“There is, however, a different course and, in my view, a better course to take in resolving the issue. The elements test is not the only one laid out in [what is now K.S.A.2011 Supp. 21–5109(b) ] for determining lesser offenses. Under [what is now K.S .A.2011 Supp. 21–5109(b)(1) ], ‘a lesser degree of the same crime’ is also a lesser included offense. Given the historical relationship between kidnapping and criminal restraint coupled with their similar statutory definitions, they are variants of the same crime. Criminal restraint, therefore, should be considered a lesser included offense of kidnapping.” 2011 WL 2793219, at *14.
Either approach leads us to the same conclusion in this case: criminal restraint is a lesser included offense of kidnapping.
The court's instruction on criminal restraint was legally appropriate.
LeGrand further argues that even if criminal restraint is a lesser included offense of kidnapping, the evidence in his case did not support giving an instruction on that offense.
When the giving of or failure to give a lesser included offense instruction is challenged on appeal, we apply the analytical framework for jury instruction issues. See K.S.A.2011 Supp. 22–3414(3); State v. Rodriguez, 295 Kan. 1146, 1152–53, 289 P.3d 85 (2012). That framework was recently described by our Supreme Court to require the following progressive analysis and corresponding review standards:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Under the first step of that analysis, while there are no jurisdictional concerns here, there is a preservation issue. K.S.A.2011 Supp. 22–3414(3) directs, in pertinent part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” (Emphasis added.)
Both parties suggest that LeGrand sufficiently preserved this issue by objecting to the criminal restraint instruction, albeit the State notes that the basis for LeGrand's objection below was unclear. On the contrary, a close review of the record indicates the sole grounds for LeGrand's objection to an instruction on criminal restraint was a matter of all-or-nothing trial strategy, not that the evidence did not support the instruction. So our review is solely for clear error.
The focus of LeGrand's argument centers around the second step of the progressive analysis: He complains the instruction was not legally appropriate under the facts of his case. To reiterate, we conduct unlimited review of the legal propriety of the instruction. See Plummer, 295 Kan. 156, Syl. ¶ 1. The trial court must instruct the jury on lesser included offenses where there is some evidence that would reasonably justify a conviction of the lesser included offense. K.S.A.2012 Supp. 22–3414(3); State v. Simmons, 295 Kan. 171, 176, 283 P.3d 212 (2012).
LeGrand's brief argument is based on this court's holding in Timms that the primary element that distinguishes kidnapping from criminal restraint (as those elements are already set forth above) is that kidnapping requires specific intent whereas criminal restraint requires only general intent. 29 Kan.App.2d at 774. In light of this distinction, Timms held the trial court should instruct the jury on criminal restraint as a lesser included offense of kidnapping only when “there is a factual question as to whether the defendant had the specific intent required to prove kidnapping.” 29 Kan.App.2d at 773–74. LeGrand argues there was no such factual question in his case because he either had the specific intent to terrorize Gunnels by forcing her to get in her car and drive as he followed and threatened her or the incident did not occur at all.
The State responds that the instruction was appropriate. In support, the State reasons the jury “could reasonably have concluded that [LeGrand] did not intend to terrorize [Gunnels]” but did sufficiently restrain her because he “simply wanted to continue the argument at his apartment, away from [Adam.]”
We agree with the State. LeGrand's own testimony supported the giving of an instruction on criminal restraint as a lesser included offense.
The Trial Court's Reasonable Doubt Instruction to the Jury
LeGrand's fourth issue on appeal is a common issue being raised before our appellate courts recently regarding a change made to the pattern instruction setting forth the State's burden of proof. The instruction given to LeGrand's jury provided:
“The State has the burden to prove that Jesse LeGrand is guilty. Jesse LeGrand is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“The test you must use in determining whether Jesse LeGrand is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find Jesse LeGrand not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.” (Emphasis added.)
See PIK Crim.3d 52.02. The problem is that the emphasized term “any” should have read “each” according to PIK Crim. 4th 51.010, which was the pattern instruction applicable at the time of LeGrand's trial.
LeGrand argues the variance between the pattern instruction and the instruction given precludes us from being certain that the jury held the State to the proper burden of proof. Put another way, LeGrand suggests there is a reasonable likelihood that the jury interpreted this instruction in a way that allowed it to find him guilty without determining the State had proven each and every element of the charged offenses. LeGrand insists we must reverse and remand for a new trial as a result of this error.
The State acknowledges the problem but offers alternative reasons for why the relief sought by LeGrand is not required.
It is undisputed here that LeGrand failed to object to this instruction below. Despite such an omission, however, his argument can still be reviewed for clear error as provided in K.S.A.2012 Supp. 22–3414(3).
Our Supreme Court has already decided this issue contrary to LeGrand's position.
An in-depth discussion of LeGrand's arguments here is unnecessary because our Supreme Court recently considered and rejected a similar challenge to the same instruction in State v. Herbel, 296 Kan. 1101, 1123–24, 299 P.3d 292 (2013); see also State v. Smyser, 297 Kan. 199, 205–06, 299 P.3d 309 (2013) (citing Herbel and State v. Beck, 32 Kan.App.2d 784, 787, 88 P.3d 1233,rev. denied 278 Kan. 847 [2004], in rejecting same argument). In support, our Supreme Court discussed and agreed with the holding and rationale of this court in Beck. See Srnyser, 297 Kan. at 205–06;Herbel, 296 Kan. at 1123–24. In Beck, this court flatly rejected the argument that the word “ ‘any,’ as used in this context, could somehow create ambiguity or result in [the defendant] being convicted if only one element of the crime is proven.” 32 Kan.App. at 787. This court further reasoned the separate elements instruction that told the jury the State had to prove each of the elements of the crime effectively “negate[d] any potential confusion that may have been caused by the use of the word ‘any’ in [the reasonable doubt instruction].” 32 Kan.App.2d at 787–88. In conclusion, our Supreme Court held that the same instruction that LeGrand now complains was “not the preferred instruction,” but it was “legally appropriate.” Herbel, 296 Kan. at 1124; see Smyser, 297 Kan. at 206.
LeGrand takes issue with the reasoning in Beck and Herbel. He urges us to instead follow this court's reasoning in Miller v. State, No. 103,915, 2012 WL 401601, at *6 (Kan.App.2012) (unpublished opinion), rev. granted 296 Kan. –––– (March 4, 2013). Specifically, LeGrand focuses on the Miller panel's discussion of problems arising from the ambiguities and “shifting meaning” of use of the term “any” in this instruction. 2012 WL 401601, at *6. But, as pointed out in both Herbel and Smyser, the faulty instruction in Miller involved a transposition of the terms “each” and “any”—an error that differs sufficiently so as not to provide a analytical comparison for the instructional error raised here. Smyser, 297 Kan. at 205;Herbel, 296 Kan. at 1122–23.
LeGrand further urges us to consider “additional authority” cited in his brief, which indicates our Supreme Court refused to consider in Herbel under Supreme Court Rule 6.09 (2012 Kan. Ct. R. Annot. 49). LeGrand suggests that we can consider those authorities here since he has properly included them in his brief. Yet LeGrand fails to identify to which authorities he refers.
Even if we were in a position to figure out which additional authorities LeGrand is referring to, which we are under no obligation to do, we simply are not in any position to disagree with the holding in Herbel. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011) (noting that Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent any indication that it intends to depart from prior position on issue).
Because LeGrand presents no other argument regarding the legal or factual inappropriateness of this instruction, we conclude the reasonable doubt instruction given in this case was not clearly erroneous.
Inclusion of LeGrand's Prior Convictions in His Criminal History Score Without Requiring Them to be Proved to a Jury Beyond a Reasonable Doubt
In his fifth and final issue on appeal, LeGrand complains that the sentencing court's use of his prior convictions to impose an enhanced presumptive sentence violated his constitutional rights under the principles set out in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
LeGrand acknowledges that the Kansas Supreme Court decided this issue contrary to his position in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). He raises it here to preserve the issue for federal review. We are duty bound to follow that precedent absent some indication the court is departing from its previous position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). On the contrary, our Supreme Court continues to follow Ivory, See, e.g., State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012).
Affirmed.