Opinion
No. 105,148.
2012-06-15
STATE of Kansas, Appellee, v. Leonard D. CHARLES, Sr., Appellant.
Appeal from Sedgwick District Court; David J. Kauffman, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kauffman, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Alleging a jury instruction error, Leonard Charles, Sr., asks us to overturn his reckless aggravated battery conviction. Charles contends the instruction telling the jury he could be found guilty if he committed the crime either with a deadly weapon or “in any manner whereby great bodily harm, disfigurement, or death could have been inflicted” was erroneous because it was broader than the charge the State had filed against him. Indeed, the State had only alleged that Charles had committed the crime with a deadly weapon. In Kansas, a jury instruction on the elements of the crime that is broader that the complaint is erroneous. Because the jury instruction here was broader than the State's complaint, we hold it was erroneous. But, after reviewing the record and seeing that no substantial rights of Charles were prejudiced, we hold it was not reversible error. We address other trial errors raised by Charles and reject them as unpersuasive. We affirm his conviction.
A Christmas day encounter leads to criminal charges.
Autumn McDowell went to a Family Video Store on the night of December 25, 2009, to return a video. As she was attempting to exit the Family Video parking lot, McDowell got her car stuck in a snow pile. Leonard Charles, Sr., who was driving a four-door SUV, stopped and asked if McDowell needed help. McDowell replied that she might need help, but she was trying to “rock” herself out. Charles pulled his vehicle in behind her, but McDowell was able to get her vehicle out of the snow so she left and began driving down the road towards her house.
At some point, McDowell noticed that Charles was following her in his vehicle. McDowell began driving at “speeds of 60, if not faster,” but Charles continued to “tail” her. McDowell eventually reached her neighborhood but did not go home because she did not want Charles to know where she lived. Instead, McDowell drove through the streets of her neighborhood, at a speed of about 40 miles per hour, hoping to “lose” Charles. McDowell said she felt scared and threatened.
In an attempt to lose Charles, McDowell turned off her vehicle's headlights. When McDowell realized she could no longer see to drive herself, she turned the lights back on. It was then that Charles' vehicle hit McDowell's vehicle on the rear driver's side. McDowell's vehicle came up over a curb and onto a field. Charles' vehicle also came over the curb and his vehicle became stuck. This gave McDowell the opportunity to leave. McDowell left and drove directly to her house, where she called 911 to report the incident.
As a result of the collision, McDowell suffered whiplash and felt pain in her neck and shoulder. McDowell's vehicle sustained about $3,800 in damages.
Charles' version of the story differed from McDowell's. Charles claimed that he got lost while attempting to drive to Kansas City to see his mother, who was scheduled for heart surgery. He pulled into Family Video because he thought it was a gas station. There, he noticed McDowell and approached her to ask for directions. After McDowell gave Charles directions, she asked Charles to help her get her vehicle out of the snow. In return, Charles asked if he could show McDowell around town. Charles took this to mean they would be “intimate” or have sex. Charles said McDowell agreed that if he was able to get her vehicle unstuck, he could follow her to her family members' house, where they could exchange phone numbers.
Charles claimed that when he pushed McDowell's vehicle out of the snow with his own vehicle, McDowell took off out of the parking lot and he followed. Charles said he followed McDowell for some time, but that McDowell eventually lost control of her vehicle and Charles ended up hitting her. Charles said there was no way the accident could have been avoided.
Rachel Northrup was working at Family Video on the night of the incident involving Charles and McDowell. Northrup said that at around 9 p.m. that evening, Charles came into Family Video. Northrup said Charles was talking loudly and making lots of hand movements. Northrup testified that Charles told her that something had gone wrong with his car and he wanted to go to Kansas City to see his mother before she died. Northrup said Charles stated that if he was unable to do so, he was “gonna kill someone.” Northrup said Charles knocked some movies off the shelves and knocked a computer off the desk.
Kailey Westemeir, another employee working at Family Video, was doing inventory in the back of the store when she heard yelling. Westemeir said that when she walked toward the front of the store to see what was going on, she saw Northrup was behind the counter and Charles was yelling. Westemeir said that at one point, Charles knocked a cup of pens and pencils, a rack of gift cards, and a computer off the counter. Westemeir testified that Charles stated if he was unable to get to Kansas City to see his mother because of his car problem, he was going to come back and kill them.
The State charged Charles with one count of aggravated battery (upon McDowell), one count of criminal damage to property (McDowell's vehicle), and one count of criminal threat (to Westemeir). A jury found Charles guilty of reckless aggravated battery (a lesser included offense of aggravated battery), criminal damage to property, and criminal threat. Charles was sentenced to a total of 34 months' imprisonment and was required to register as a violent offender.
The court gave the jury an erroneous instruction.
Charles first argues that the jury instruction on reckless aggravated battery was erroneous because it was broader than the offense charged since it included an element not charged by the State. Thus, according to Charles, the jury was able to convict him on a theory of guilt not charged in the information. Because of this error, Charles believes his conviction must be reversed.
Charles did not object to this instruction. When the complaining party did not object to a jury instruction given by the trial court, this court reviews such an allegation using a clearly erroneous standard. See K.S.A. 22–3414(3); State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict had the trial error not occurred. 289 Kan. at 802. But to the extent that Charles raises a constitutional due process claim, this court exercises unlimited review over the claim. State v. Wade, 284 Kan. 527, 534, 161 P.3d 704 (2007).
The State's information alleged that Charles committed intentional aggravated battery against McDowell by unlawfully and intentionally causing bodily harm to her with a deadly weapon—his Nissan Pathfinder. At trial, the jury was instructed that in order to establish intentional aggravated battery, the State must prove that Charles intentionally caused bodily harm to McDowell with a deadly weapon. However, the court also instructed the jury that Charles could be guilty of the lesser included offense of reckless aggravated battery. The court told the jury that to establish this charge, the State must prove Charles recklessly caused bodily harm to McDowell with a deadly weapon (his car) or in any manner whereby great bodily harm, disfigurement, or death could be inflicted. Charles was found guilty of reckless aggravated battery.
A prior case leads us to believe that the lesser-included elements instruction was wrong. Put plainly, the State is restricted to pursuing the theory charged in the information. In Trautloff the court explained:
“A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous. That error is excusable only where the substantial rights of the defendant are not prejudiced. [Citation omitted] It is the long-established rule in Kansas that instructions should be confined to issues made by the pleadings and should not be broader or narrower than the information. [Citation omitted.] The charging instrument must set out the specific offense alleged against the defendant in order to inform the defendant of the nature of the accusation against him or her and to protect the defendant from being convicted on the basis of facts that were not contemplated in the initial charges. [Citation omitted.]” 289 Kan. at 802.
In Trautloff, the defendant was charged with sexual exploitation of a child, which is defined as “promoting” performance that includes sexually explicit conduct. In the context of the crime, Kansas law defines “promoting” as procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting, or advertising.
The State charged Trautloff with promoting the performance of sexually explicit conduct by displaying a picture. But at trial, the jury instruction did not limit the State to proving Trautloff displayed certain performance. Instead, the court instructed the jury that the defendant could be found guilty of promoting a performance by procuring, selling, providing, lending, mailing, delivering, transferring, transmitting, distributing, circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting, or advertising performance. In other words, the instruction listed every possible way the crime could be committed. The court did not limit the instruction to the theory of guilt alleged by the State.
On appeal, our Supreme Court found there was sufficient evidence that Trautloff displayed a picture in violation of the sexual exploitation statute, but it nevertheless reversed Trautloff's conviction because the instruction was clearly erroneous. 289 Kan. at 800, 803–04. The court reasoned that the broad instruction allowed the jury to convict Trautloff of displaying, procuring, or producing the photograph and did not compel the jury to find that Trautloff displayed the photograph as alleged in the complaint. 289 Kan. at 803. Thus, the court said it could not be confident that the jury convicted Trautloff on the single theory charged. The court said that by including the phrase “displayed such picture” in the complaint, the State limited itself to the theory that Trautloff committed that version of the offense—noting the wording of a complaint is binding on the State in pursuing its theory before a jury. 289 Kan. at 802–03.
In this appeal, Charles relies heavily on Trautloff to support his position. But Trautloff differs from this case in one important way. In reversing the conviction in Trautloff, the court noted that evidence Trautloff procured or produced a photograph was “direct and overwhelming,” while evidence that he displayed a photograph was “minimal and circumstantial.” 289 Kan. at 803. The court said there was a “real possibility that the jury would have rendered a different verdict” had the court only instructed the jury on displaying. 289 Kan. at 803.
An earlier Kansas Supreme Court case provides a more basic understanding of this jurisprudence. In State v. Booker, 197 Kan. 13, 415 P.2d 411 (1966), the court reversed a murder conviction because the trial court instructed the jury on the law prohibiting the carrying of a concealed weapon, a crime not charged by the State. The Booker court cited the general rule that “instructions should not be broader or narrower than the information [citation omitted].... Instructions given in violation of the rule have never been condoned although excused in cases where it was found that the substantial rights of the defendant were not prejudiced ... [citations omitted].” 197 Kan. at 15.
Based on these cases, we conclude that the elements instruction for reckless aggravated battery was erroneous because it was broader than the crime charged by the State. But the next step in the analysis is not as persuasive. Charles has not explained how he was substantially prejudiced because this overbroad instruction was given.
It is important, at this point, to review the defense Charles raised to this charge. Charles presented evidence that would counter both methods of aggravated battery ( i.e., reckless bodily harm with a deadly weapon (a vehicle) or reckless bodily harm in any other manner whereby great bodily harm, disfigurement, or death could be inflicted). At trial, Charles' defense was that he slammed on his brakes in an attempt to avoid hitting McDowell and he merely “bumped” her, but it was “not enough to cause any damage.” Charles' theory of defense and testimony did not admit reckless harm to McDowell in some other manner in which great bodily harm, disfigurement, or death could result. Thus, nothing indicates Charles' defense was substantially prejudiced (or prejudiced at all, in fact) as a result of the added instructions.
Clearly this case differs from Wade, 248 Kan. 527. In Wade, the State charged Wade with felony murder (with aggravated burglary as the underlying felony) and aggravated burglary. The charging document failed to specify the felony Wade intended to commit upon entering the house in question (for purposes of aggravated burglary), but the State later indicated that the intended felony was first-degree murder. At trial, Wade's defense was that he did not enter the house with intent to shoot the victim, but he only intended to scare the victim. After the close of the evidence, the State attempted to amend the information to add aggravated assault as an alternative underlying felony for the felony-murder and aggravated burglary charges. The district court did not allow amendment of the charging document, but it did give a jury instruction on aggravated burglary that identified first-degree murder or aggravated assault as the underlying felony.
On appeal, our Supreme Court reversed Wade's aggravated burglary conviction because it found that Wade's ability to prepare/present his defense was adversely affected and his decision to testify was prejudiced. 284 Kan. at 537. This was because Wade failed to present any evidence that would counter a theory of aggravated assault; in fact, Wade presented evidence through his own testimony that would support an aggravated assault theory. This critically impaired Wade's defense.
Here, Charles simply argues it is “possible” that the jury convicted him under the alternative method of committing reckless aggravated battery and his conviction should be reversed. With the defense he raised, we see no substantial impairments of his rights when the court gave its instruction. We will not reverse on this ground.
The jury received evidence of both alternative means of committing this crime.
Charles claims his conviction must be reversed because the State failed to prove each alternative means of committing aggravated battery beyond a reasonable doubt. The State agrees there are alternative means of committing reckless aggravated battery, but it contends sufficient evidence supports each means.
In an alternative means case, where a single offense may be committed in more than one way, the jury must reach a unanimous conclusion as to guilt for the crime charged. But unanimity is not required as to the means by which a crime was committed as long as substantial evidence supports each alternative means. When reviewing an alternative means case, this court must determine whether a rational factfinder could have found that each means of committing the crime was proven beyond a reasonable doubt. State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
In order to establish the crime of reckless aggravated battery, the State was required to prove that Charles recklessly caused bodily harm to McDowell with a deadly weapon—a car, or in any manner whereby great bodily harm, disfigurement, or death could be inflicted. In order to uphold Charles' conviction, this court must determine that substantial evidence supports that Charles (1) recklessly caused bodily harm to McDowell with a deadly weapon—his car, and (2) recklessly caused bodily harm to McDowell in another manner whereby great bodily harm, disfigurement, or death could be inflicted.
A quick review of the evidence is helpful here. At trial, McDowell testified that when Charles' vehicle hit her vehicle, her vehicle went over a curb and into a field. Charles' vehicle also came over the curb and his vehicle became stuck. McDowell testified she was driving at a speed of approximately 40 miles per hour at the time of the collision. As a result of the accident, McDowell suffered from whiplash and severe pain in her neck and shoulder. McDowell's vehicle sustained $3,809.37 in damages. All of this occurred after Charles had engaged in a lengthy “speed chase” with McDowell. Even Charles testified that after the accident, he went to get help because he did not know whether McDowell was dead or injured. There is ample evidence to support a finding that Charles used his vehicle as a deadly weapon.
For these same reasons, there is substantial evidence to support a finding that Charles recklessly caused bodily harm to McDowell in any manner whereby great bodily harm, disfigurement, or death could be inflicted.
Whether a particular injury constitutes great bodily harm is generally a question of fact for the jury to decide. State v. Johnson, 46 Kan.App.2d 870, 881, 265 P.3d 585 (2011). Although “great bodily harm” is not subject to precise definition, our Supreme Court has said that the word “great” distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor, or moderate harm which does not include mere bruises. 46 Kan.App.2d at 881.
On appeal, Charles argues there is insufficient evidence of aggravated battery because (1) McDowell's injuries were “not nearly as serious” as those in other Kansas cases; (2) neither car could have been traveling at a high speed because of the area and road conditions; (3) the damage to McDowell's car was “minimal” enough that she was able to drive it after the accident; (4) Charles only hit her car's rear end; and (5) McDowell only had pain for 4 days, and the pain did not start until 2 days after the accident. We see two reasons to reject this argument.
First, we decline Charles' invitation to reweigh the evidence on this point. Charles says neither vehicle could have been traveling at a high speed, and McDowell testified she was driving at a speed of approximately 40 miles per hour at the time of the collision. This court will not reevaluate the evidence and speculate as to matters of personal opinion. That was the responsibility of the jury. See State v. Doyle, 272 Kan. 1157, 1162–63, 38 P.3d 650 (2002).
Next, the extent of McDowell's actual injuries and damages are irrelevant. In State v. Morton, 38 Kan.App.2d 967, 972–73, 174 P.3d 904,rev. denied 286 Kan. 1184 (2008), this court explained that when the charge is aggravated battery as opposed to simple battery, the State is not required to prove that great bodily harm was inflicted, but only that it could have been inflicted. This is because K.S.A. 21–3414(a)(2)(B) defines aggravated battery as “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” (Emphasis added.)
Under these facts, where Charles hit McDowell's vehicle while she was traveling at a speed of approximately 40 miles per hour and more than $3,800 in damages resulted, it is reasonable to conclude that great bodily harm could have been inflicted. Even Charles admitted that he went to get help because he did not know whether McDowell was dead or injured.
Because substantial evidence supports each alternative means of aggravated battery, Charles' conviction must stand.
We find no reversible misconduct by the prosecutor.
Charles next claims he was denied a fair trial because the prosecutor repeatedly and improperly expressed his personal opinion during closing argument. For support, Charles points to numerous instances in which the prosecutor used the phrase “I think” during closing argument. After our review of the record, we do not agree that the comments of the prosecutor were outside the normal limits of what is allowed.
Each of the comments Charles complains about involves the prosecutor's comment upon evidence admitted in the case. For example, Charles complains about the prosecutor's statement, “I don't believe that there's anything that you can consider the word ‘kill’ to mean other than to inflict physical harm to another person .” But on appeal, Charles fails to acknowledge that this comment followed the prosecutor's discussion of testimony indicating Charles told Family Video employees he was going to kill them. Similarly, Charles complains about the prosecutor stating that he thought Charles pursued McDowell because he believed he was going to “hook up with her,” but he fails to acknowledge the evidence on this point. When making the comment, the prosecutor specifically stated he believed this was “what the evidence” showed.
Read in context, every comment Charles complains about involved the prosecutor's discussion of the evidence. On appeal, Charles fails to discuss each comment and explain why the comment was improper or why it did not relate to the evidence. Nor does Charles acknowledge the context in which each statement was made. Instead, Charles simply sets forth a laundry list of comments and declares them improper. A point raised incidentally in a brief and not argued is deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). The failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority is akin to failing to brief the issue. State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008).
For questions of this type we employ a two-step analysis when reviewing an allegation of prosecutorial misconduct involving improper comments to the jury during closing argument. First, the court decides whether the comments are outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the court must determine whether the improper comments prejudiced the jury against the defendant and denied him or her a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011).
Charles has not shown that the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence.
Charles did not object to evidence of prior acts or ask for a limiting instruction.
Charles next argues the district court should have given a limiting instruction regarding testimony about Charles' prior bad acts. Northrup was the Family Video employee who testified that when Charles came into the store, she heard him talking loudly and saw him making hand movements. Northrup testified that Charles said he was “gonna kill someone” and that Charles knocked some movies off the shelves and knocked a computer off the desk.
Charles admits he did not object to Northrup's testimony and did not request a limiting instruction. This court in State v. Whetstone, 43 Kan.App.2d 650, 653–54, 229 P.3d 399, (2010)rev. granted January 20, 2012, recently held that when a defendant challenges the district court's failure to give a limiting instruction for evidence he contends was admissible under K.S.A. 60–455 but failed to make a motion in limine or object when the evidence was introduced at trial, this court will not review the challenge. For support, the Whetstone court cites our Supreme Court's opinion in State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009), where the court held that when a defendant fails to object to the admission of K.S.A. 60–455 evidence, he or she fails to preserve the issue for appeal.
We find the reasoning in Whetstone persuasive and hold that Charles has waived his right to challenge the district court's failure to give a limiting instruction with regard to that testimony. Charles did not object to Northrup's testimony when it was presented at trial and did not request a limiting instruction; and although Charles did file a motion in limine in the case, the motion did not pertain to K.S.A. 60–455 evidence.
The district court properly ordered Charles to register as an offender.
In sentencing Charles, the district court found that a deadly weapon was used in the commission of the aggravated battery; thus, the court found that Charles was subject to registration under the Kansas Offender Registration Act. Charles objected to this determination, noting that a jury should have determined whether Charles used a deadly weapon during the commission of the felony or whether he committed the crime in a manner whereby great bodily harm could have been inflicted. The district court disagreed, reasoning that the question whether a deadly weapon was used is a “judicial determination” based on the evidence before the court.
Charles argues the district court's order requiring him to register as an offender violates his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 124 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the court, as opposed to a jury, found he used a deadly weapon during the commission of his crime. Under Apprendi, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490. Charles acknowledges that a panel of this court rejected this same argument in State v. Chambers, 36 Kan.App.2d 228, Syl. ¶ 4, 138 P.3d 405,rev. denied 282 Kan. 792 (2006), but argues Chambers was wrongly decided because Apprendi applies to both increased sentences and punishments—and having to register as an offender is an increased punishment.
We think Chambers was properly decided. Charles' sentence, including the requirement that he register as a violent offender, did not violate his constitutional rights under Apprendi.
Charles has demonstrated one error by the district court—that the court's jury instruction on reckless aggravated battery was broader than the offense charged by the State. However, Charles has failed to show he was substantially prejudiced by this error. Charles has not shown “cumulative error” that would warrant a new trial where he has only demonstrated one error by the district court.
Affirmed.