Opinion
No. 106,501.
2013-05-31
STATE of Kansas, Appellee, v. D'Shaun J. BUTLER, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
D'Shaun J. Butler appeals his jury convictions for kidnapping, two counts of domestic battery, harassment by telephone, criminal damage to property, and two counts of intimidating a witness. Butler alleges prosecutorial misconduct, challenges the sufficiency of the evidence to support his convictions, the failure of the district court to appoint new counsel before the start of the trial, the court's denial of his downward durational departure motion, and the use of his criminal history. We have carefully considered all issues presented by Butler and affirm the district court on all issues raised.
Facts
On August 18, 2009, N.S. entered Oak Park Mall to go to work. Her ex-boyfriend, Butler, approached her. N.S. declined to speak with Butler, at which point he grabbed her arm and tried to pull her along with him. N.S. screamed, raising the attention of bystanders who separated Butler from her, and he was escorted from the mall.
N.S. decided she should stay with a coworker that evening and went to her apartment to pick up her dog. Butler was waiting for her in the parking lot. She got back into her car and locked the door. Butler stood behind her car, keeping her in the car for 30 to 40 minutes. Butler repeatedly begged N.S. to open her car door. She “decided to trust him and get out of [her] car.” However, she hid her cell phone in her bra in case she “needed to try to do something to protect [herself] in case [she] needed to.”
Once inside N.S.'s apartment, Butler's “demeanor changed totally from how it was out in the parking lot.... He was very upset, mad.” Butler called N.S. “a slut, a whore, a bitch, things like that” and threw her dresser drawers and her clothes from the closet “across the room.” He took N.S.'s shirt “and basically ripped it right off.” He then “did the same thing” with her pants.
N.S. tried to put on a different shirt, but Butler “basically said ‘[n]o one told you to put your shirt back on.’ “ N.S. hid her cell phone under the bed. Butler pulled N.S. onto the bed and put a rolled-up shirt around her neck, making it difficult for her to breathe. N.S. told him to stop. She was screaming, and Butler put a balled-up nightgown in her mouth. N.S. was “trying to get him to stop.” Butler pushed her on to the floor, punched her in the side and kicked her in the back. Butler saw N.S. going for her cell phone under the bed and took it from her.
They went downstairs and Butler made N.S. sit on the couch. She testified after “everything that happened earlier, [she] really wasn't in a position to argue with the things that he was telling [her] to do.” Butler now had her keys and cell phone.
A police car spotlighted N.S.'s patio window. Butler had N.S. duck down and move over to the side. Butler then “made” N.S. leave with him to get cigarettes, liquor, and to find a truck to steal. N.S. testified, “It was kind of like understood that [she] was like—had to do what he said” and Butler “was very intimidating.”
At the liquor store, N.S. did not feel comfortable asking the clerk, Kay Sommer, for help. Butler made N.S. pay for two bottles of alcohol but her card was declined, which “made [Butler] really upset.... He was yelling. He was cursing.” There were other customers in the store, but N.S. didn't think “anybody was interested or felt inclined to find out what was happening with the situation.” She also “figured [Butler] would drag [her] out of the store” if she tried to stay. Sommer testified Butler was “mean” to N.S. and “kind of mean” to her.
Butler took her to a house with a long driveway, a lot of trees, and a lot of hills. N.S. did not know where she was, and it was dark. Butler went in the house, taking her car keys and cell phone with him. She opened her car door “just to get air for a second,” and Butler “came running out from the driveway ... [l]ike instantly to see what [she] was doing.”
Butler took N.S. to two other houses, one to get cigarettes and the other to get a screwdriver. Butler came back with the screwdriver and pressed it up against N.S.'s neck. He told her she “was going to die tonight and no one was going to find [her] body. It was going to be in the trunk of [her] car in the Missouri River.” He also said “don't think that [I] won't do it.” He still had her cell phone and keys. They drove around trying to find a truck for Butler to steal. Butler was unsuccessful, so they went back to her apartment.
Butler accused N.S. of cheating on him. They argued. Butler then “led [N.S.] upstairs to [her] bedroom.” Although she did not want to go upstairs, she “didn't see that [she] had another option” and was “afraid” of “[t]he consequences of not doing what [Butler] said.” N.S. testified it was characteristic of Butler to threaten her with “killing [her], violence, anything like that,” and on this occasion he said that “he was going to do something worse than what he had already done [that night]” if N.S. did not go upstairs with him.
Upstairs, Butler and N.S. had sex. The next morning, N.S. woke up before Butler. She did not call 911 then because she was afraid Butler would hear her. N.S. testified, “Any time [she] tried to do something to get out of the situation, it sort of backfired.”
Later N.S. tried to call 911 while in the bathroom, with the door locked and the water running, but Butler came into the bathroom and took her phone. Butler stood in the doorway while N.S. took a bath. When Butler took a shower, he made her stand by the bathroom door. When N.S. walked her dog, he went with her.
When N.S. went to work, she reported what happened to her at the police substation inside the mall. The police's investigation documented bruises on her face and arms and her apartment's disarray.
On August 25, 2009, Butler repeatedly called N.S. N.S. would hang up, but he would call back. During one of the calls, a detective recorded the phone conversation.
On October 14, 2009, N.S. received a phone call from Butler and his cousin. They told N.S. “[n]ot to come to court or give any information about what had happened to the police.” On October 18, 2009, N.S. received a phone call from Butler and his mother about her not testifying.
Analysis
We now proceed to address the issues Butler raised: prosecutorial misconduct, sufficiency of the evidence to support his convictions, failure of the district court to appoint new counsel before the start of the trial, the court's denial of his downward durational departure motion, and the use of his criminal history.
Prosecutorial Misconduct
The prosecutor, during closing arguments, stated that when N.S. opened her car door “he was right back at the door ‘[w]ho told you you could open this door?’ “ Butler argues this was outside the wide latitude afforded prosecutors and violated his right to a fair trial.
Butler did not contemporaneously object to the State's comments, but a timely objection is not required to preserve a prosecutorial misconduct claim occurring during opening or closing statements. See State v. Decker, 288 Kan. 306, 314, 202 P.3d 669 (2009). An appellate court employs a two-step analysis regardless of whether a timely objection is made. First, the court determines whether the prosecutor's statements exceeded the wide latitude of language and manner afforded a prosecutor. Inherent in this latitude is the prosecutor's freedom to argue reasonable inferences from the evidence. 288 Kan. at 314. For example, a prosecutor exceeds this wide latitude when he comments on or introduces facts outside the evidence. See State v. Ly, 277 Kan. 386, 393, 85 P.3d 1200 (2004) (doing so is “clearly improper”). Second, the court determines whether the prosecutor's comments constitute plain error. This occurs when the statements are so gross and flagrant they prejudice the jury against the defendant, denying the defendant a fair trial. This requires examination of three factors: (1) whether the misconduct was so gross and flagrant it denied the defendant a fair trial; (2) whether the remarks showed ill will; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature the prosecutor's statements would not have much weight in the jurors' minds. Decker, 288 Kan. at 314–15.
N.S.'s testimony did not include any statements by Butler when he “came running out from the driveway ... [l]ike instantly.” Because the prosecutor's statement was not supported by the evidence, it was outside the wide latitude afforded prosecution in closing arguments.
The statement was not gross or flagrant, as it was a general statement connecting two facts in evidence: when N.S. opened her car door, Butler was “right there” to “see what [she] was doing.” The prosecutor did not say, “Butler said ...”—the statement is equally an inference of Butler's mindset when he came running out “like instantly ... to see what [she] was doing.” The statement does not demonstrate ill will, such as when a prosecutor disregards a court's ruling to exclude evidence. We acknowledge Butler's contention the statement “provide[d] an essential element of kidnapping by confining,” but the statement was a trivial part of the State's case. As demonstrated more fully below, the record is replete with multiple instances of Butler confining N.S.
We recognize the prosecutor's argument misstated the facts. We cannot allow a prosecutor to misstate facts. Here, there was no ill will shown on the part of the prosecutor and it was a minor statement when considering the overwhelming nature of all the other evidence. The prosecutor's statement was improper but does not reach the level of plain error.
Kidnapping/Alternative Means
Butler argues the district court's instruction to the jury created an alternative means of committing the crime of kidnapping and the State failed to present sufficient evidence of each of the alternative means.
In the time since Butler filed his appellate brief, our Supreme Court has held the phrase “force, threat, or deception” describes different ways in which the alternative means of “taking” and “confining” can be accomplished. State v. Haberlein, 296 Kan. 195, 208, 290 P.3d 640 (2012) (stating “taking” and “confining” are alternative means because they each denote a distinct actus reus, and holding that “force, threat, or deception” are options within a means).
The jury was instructed a conviction of kidnapping, the lesser included offense of aggravated kidnapping, could be sustained if the jury found “[t]hat the defendant took or confined [N.S.] by force or threat.” Because the instruction contains the phrase “took or confined,” the jury was instructed on alternative means and unanimity can only be guaranteed if the State presented “ ‘substantial evidence [supporting] each alternative means.’ “ State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (explicitly affirmed by State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 [2010] ). Substantial evidence refers to legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). The difference between taking and confining turns on the element of asportation or removal of the victim. See State v. Burden, 275 Kan. 934, 943–44, 69 P.3d 1120 (2003).
Confining
N.S. testified when they went downstairs, following the altercations in her bedroom, she could not leave and says she was scared of further violence. Butler still had her keys and phone. Her testimony is relevant and supports the inference Butler confined N.S. by threat. Butler also concedes on appeal “the State presented evidence that ... Butler confined N.S. by threat.”
Taking
Later that night, N.S. drove Butler to get cigarettes and alcohol. He was being “very intimidating,” and N.S. was afraid of what would happen if she told him no. They made several stops, and each time N.S. drove Butler to his next destination. She testified she only did this because of Butler's intimidation. This testimony is relevant and supports an inference Butler took N.S. by threat.
Therefore, substantial evidence in the record supports each alternative means upon which the jury was instructed.
Sufficiency of the Evidence
Butler articulates two issues about the sufficiency of the evidence: the State's case relied almost entirely on N.S.'s testimony, and the facts presented to the jury legally fall short of proving kidnapping by force or threat.
Witness Credibility
Butler argues the State “relied almost exclusively on the testimony of N.S. regarding the events of that night.... Further, the only other witness to any of the events of that evening was the liquor store owner that testified that ... Butler was loud, rude, and insulting to N.S., but he did not drag N.S. out of the liquor store ... and N.S. voluntarily left with him.”
When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all of the evidence in a light most favorable to the State, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In evaluating the evidence, this court does not reweigh the evidence, assess the credibility of the witness, or resolve conflicting evidence. State v. Raskie, 293 Kan. 906, 920, 269 P.3d 1268 (2012).
Butler essentially asks this court to assess N.S.'s credibility by pointing out various inconsistencies in N.S.'s testimony. These tasks are better left to a jury. The evidence in the record is replete with multiple instances of physical force against N.S. and references to Butler being mean and “intimidating.” It is not our duty to determine witness credibility. Raskie, 293 Kan. at 920.
Fear Supports Force or Threat
Butler also argues there was insufficient evidence he took or confined N.S. by force or threat, relying on State v. Quintero, No. 96,786, 2008 WL 2186070 (Kan.App.2008) (unpublished opinion) for the proposition that “the fear N.S. felt ... does not rise to the level necessary for a rational factfinder to find ... Butler guilty.”
N.S. testified about multiple instances where Butler was physically violent, intimidating, or made direct threats during the evening. For instance:
• After he strangled, punched, and kicked N.S., he told her to sit on the couch and to duck away from the police spotlight;
• Butler had her drive him around to find a truck to steal;
• Butler pressed a screwdriver against N.S.'s neck and told her he would kill her; and
• Butler made N.S. have sex with him.
This list is substantial and “a conviction of even the gravest offense ‘ “can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom.” ‘ “ State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
In a light most favorable to the State, a rational factfinder could have used this direct evidence of Butler's behavior—or drawn fair inferences about Butler's treatment of N.S, about how she had been hurt by him, threatened by him, forced to do things for him, and was scared and intimidated by him—to find Butler guilty beyond a reasonable doubt of kidnapping.
Intimidation of a Witness/Alternative Means
Butler next argues the jury instruction on intimidation of a witness created an alternative means case.
Butler was charged with two counts of intimidation of a witness in violation of K.S.A. 21–3832(a). The jury was instructed under K.S.A. 21–3832 “[t]hat the defendant prevented or dissuaded or attempted to prevent or dissuade, a witness, to wit: [N.S .], from attending or giving testimony at a criminal trial.” (Emphasis added.)
Determining whether a jury instruction presents alternative means of committing a crime is a question of law over which this court exercises unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Following State v. Brown, 295 Kan. 181, 193, 284 P.3d 977 (2012), an appellate court should look at the structure of a statute to determine if the legislative intent was to create an alternative means crime.
Our Supreme Court recently found “(1) preventing or dissuading a victim from reporting a crime and (2) attempting to prevent or dissuade a victim from reporting a crime are not alternative means of committing the crime of aggravated intimidation of a victim.” State v. Aguirre, 296 Kan. 99, 108, 290 P.3d 612 (2012). The court also said:
“[T]he crime of aggravated intimidation is complete when the defendant, with the requisite intent, commits an act to intimidate the victim. Thus, the statute prohibits only one distinct type of conduct or actus reus—i.e., the act of intimidating the witness or victim. Whether that act of intimidation ultimately is successful or unsuccessful is immaterial because the crime has already been completed. Moreover, whether the intimidation is successful or unsuccessful is solely dependent upon the reaction of the victim rather than any affirmative action on the part of the defendant.” Aguirre, 296 Kan. at 106–07.
Thus, under these facts, intimidation of a witness is not an alternative means crime.
Motion for New Attorney
Butler argues the district court erred by “not inquir[ing] further” when Butler requested a new attorney. We find the district court's inquiry was quite thorough.
Butler's first appointed counsel was Damon Mitchell, who withdrew from representing Butler due to a conflict of interest with a potential witness. Butler was then appointed Robb Edmonds, a lawyer with more than 20 years of experience
Fifteen or twenty minutes before the jury trial started, Butler told Edmonds he wanted a new lawyer. Edmonds shared this with the district court. The district court asked Butler why he wanted a new attorney. Butler told the court the requests and motions he had asked for were not presented to the court, witnesses were not subpoenaed, and he was not given the opportunity to listen to redacted phone calls to bring “other parts of the conversations of those phone calls” into evidence. He stated he did not have the opportunity to “decide whether or not that's what [he] wanted to do .” The district court asked for clarification of the statement, and Butler confirmed he wanted to “have [the tapes] played in front of the jury as opposed to just the redacted parts that the State wants ... the jury to hear.”
Butler claimed he did not get to discuss strategy with Edmonds until 2 weeks before trial. The district court then asked for clarification. Butler explained there had been a 90–day period in which he did not get to speak to Edmonds about trial strategy. Butler stated the combined effect of these circumstances created a conflict of interest and he was dissatisfied with his representation.
The district court then asked Edmonds for input. Edmonds told the court he had a “difficult working relationship” with Butler and he and his client had “disagreed on a number of things relative to strategy.”
In explaining its decision to deny Butler's request, the district court told Butler, “You were dissatisfied with Mr. Mitchell also.” The district court explained trial strategy decisions were up to the attorney, Edmonds was an experienced trial attorney, and disagreements over strategy were not sufficient cause to have new counsel appointed. The district court acknowledged Butler may not be satisfied with how often Edmonds had been to visit him, an attorney can accomplish a lot of trial preparation without “sitting next to” his client, which “does not necessarily mean he is not working on [his client's] case.”
Butler cites State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999), for the proposition that “where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.”. An appellate court reviews a district court's refusal to appoint new counsel under an abuse of discretion standard. State v. Sappington, 285 Kan. 158, 166, 169 P.3d 1096 (2007).
The record demonstrates the district court asked Butler why he was dissatisfied with his attorney and twice asked Butler for clarification on his responses. The district court also asked Edmonds to describe his work habits and his working relationship with his client. The district court explained to Butler some aspects of trial strategy were not within his purview and dissatisfaction with those decisions was not grounds for a new attorney. The district court incorrectly referenced Butler's first attorney's reason for withdrawing, but this was a minor issue in the court's decision. Butler did not articulate a conflict of interest issue with the district court as the trial was about to start. He established a difference of opinion between him and his attorney on the strategy of the trial. Strategy is clearly his lawyer's responsibility, and it actually worked as Butler was found not guilty of aggravated kidnapping, rape, and deprivation of a motor vehicle. The district court did not abuse its discretion in denying Butler's request for a new attorney on the morning the jury trial was set to start.
Sentencing and Downward Durational Departure
Prior to sentencing, Butler moved for downward durational departure based on a variety of factors. The district court found his reasons were not substantial and compelling and he was sentenced.
Butler concedes this court's jurisdiction to consider this issue is constrained by State v. Flores, 268 Kan. 657, 658–59, 999 P.2d 919 (2000) (rejecting life sentence for felony murder as a “presumptive sentence”), disapproved of on other grounds by State v. Ross, 295 Kan. 1126, 289 P.3d 76 (2012). The opinion in Flores makes clear a presumptive sentence cannot be appealed: “[A defendant] not sentenced to a departure sentence ... has no statutory basis for an appeal.” 268 Kan. at 659. This is true even in instances of “partiality, prejudice, oppression, or corrupt motive.” 268 Kan. at 658. The Kansas Supreme Court has repeatedly upheld this rule. State v. Sprung, 294 Kan. 300, 317, 277 P.3d 1100 (2012) (“appellate courts lack jurisdiction to review challenges to presumptive sentences”); see State v. Johnson, 286 Kan. 824, 850, 190 P.3d 207 (2008) (“presumptive sentences are not appealable”). This court has no jurisdiction to address Butler's presumptive sentence.
Apprendi
Butler was assigned a criminal history score of C based on his criminal history of 40 misdemeanor and/or felony convictions. Butler now asserts his criminal history was not submitted to the jury and proved beyond a reasonable doubt. He claims using the information to enhance his presumptive sentence violates his Sixth and Fourteenth Amendment rights under the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Our Supreme Court has said Apprendi does not to apply to enhancements within the framework of the presumptive sentencing grid. State v. Fewell, 286 Kan. 370, 396, 184 P.3d 903 (2008) (reaffirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ). This court is duty bound to follow our Supreme Court's interpretation, absent some indication the Kansas Supreme Court is departing from its previous position. See State v.Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869 (2007), rev. denied 284 Kan. 949 (2007).
Butler acknowledges his Apprendi challenge has been settled by our Supreme Court, but includes it to preserve the issue for federal review.
Conclusion
We have carefully reviewed the issues raised by Butler. The overwhelming weight of the evidence, when considered in the light most favorable to the State supports his convictions. We cannot allow a prosecutor to misstate the evidence. Although we recognize it was error, we are convinced it had no effect on the outcome of this trial and does not rise to the level of reversible conduct. The district court considered his requests for new counsel, and we find no abuse of discretion in the denial of his motion at the start of the jury trial. This court lacks jurisdiction to consider the denial of his downward durational departure motion as he was sentenced in accordance with the Kansas Sentencing Guidelines Act. His criminal history was properly determined, and his Apprendi challenge is preserved. We find no error and affirm the district court.
Affirmed.