Opinion
Nos. 106,704 106,913.
2012-10-5
STATE of Kansas, Appellee, v. Linda CLAY–DOMINGUEZ, Appellant.
Appeal from Seward District Court; Clint B. Peterson, Judge. Joanna Labastida, of Kansas Appellate Defender Office, of Topeka, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Clint B. Peterson, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, of Topeka, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., PIERRON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Linda Clay–Dominguez appeals her convictions for aggravated kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, aggravated battery, criminal threat, and criminal damage to property in case No. 09CR116, and possession of cocaine and possession of drug paraphernalia in case No. 09CR133. Dominguez raises multiple issues regarding both trial and sentencing errors.
Fernando Davilia testified that on March 13, 2009, at around dusk, he was walking on 7th Street in Liberal. Davilia said that he had had two beers to drink that evening. A vehicle occupied by a man—later identified as Randall Maxwell—and woman—later identified at Dominguez—approached him and said “they were going to give me a ride.” Davilia responded that he did not need a ride, but Dominguez got out of the vehicle, grabbed him, and pushed him into the vehicle. He said he was not all the way inside when they shut the door and slammed his fingers in the door. They locked the doors so he could not get out. Davilia identified Dominguez as the woman who had pushed him into the vehicle. He said they drove to what he later learned was her house.
Davilia testified that while still in the vehicle, Dominguez jumped on top of him and pushed him down. She tried to take his wallet out of his back pants pocket, but his pants were too tight. Davilia said Dominguez cut his back pants pocket in order to get to his wallet. He said she told him to be still or she would cut him. Then, she pushed him out of the vehicle. Davilia said that he tried to grab his wallet, but Dominguez hit him in the head. On cross-examination, Davilia said that Maxwell hit him in the head. Davilia testified that Dominguez told him, “ ‘If you call the police or something, another day that I see you or that I find you I'm going to kill you.”
Davilia did not go to the police right away because he was afraid of the threats. He said that he had $80 and some prepaid phone cards in his wallet. Davilia testified this was not the first time he had been robbed by Dominguez. He said that a similar string of events occurred 6 months earlier when they had robbed him of $300 and some phone cards.
Davilia went to the police station the next day to report the robbery. Officer Dallas Ryan of the Liberal Police Department spoke with Davilia. Davilia explained the events surrounding the robbery and how Dominguez had cut his pants to steal his wallet that contained his Missouri ID card and approximately $80. Officer Ryan also testified that Davilia told him of the first robbery occurring 6 months earlier where Dominguez had stolen $300. Officer Ryan testified that Davilia smelled of alcohol and initially said that he had only 2 beers to drink that evening, but that he later changed that to 10 beers.
Officer Ryan drove Davilia to the address where he said the events had occurred. Officer Ryan knew that residence as belonging to Dominguez. Officer Ryan and Officer Jeffrey Wade returned to the residence later in the afternoon to interview Dominguez and Maxwell. Davilia picked Dominguez out of a lineup as the robber.
During the interview at Dominguez house, she told the officers she had recognized Davilia as the man who had tried to rape her 6 months earlier. She alleged that it was Davilia who had threatened her with a box cutter knife. Dominguez admitted that she had cut Davilia's pants. She went to her bedroom and returned with the box cutter knife she claimed was Davilia's. She gave it to Officer Ryan along with an address book she claimed fell out of Davilia's pants.
Officer Wade testified that he participated in the Davilia interview at the police station on the March 14, 2009. He said Davilia was very upset, nervous, and scared. Davilia said that he was been forced into a gray colored car and robbed of $80 and his Missouri ID.
Officer Wade also interviewed Dominguez and Maxwell. Officer Wade testified they initially claimed they had stayed at home the night before with some friends, but then their stories became increasingly inconsistent. He said Dominguez first claimed they had given Davilia a ride back to their house because it was cold and he was not wearing a shirt. She said they went inside the house, began drinking, and when she realized he was the man who had tried to rape her 6 months ago, they asked him to leave. Officer Wade said Dominguez initially claimed not to have Davilia's wallet, but then later claimed he was hitting her in the back of the car and she took a box cutter out of his pants and used it to remove a small notebook and wallet from his pocket. She gave the wallet back, but kept the small notebook and box cutter. Without mention of the previous event, Dominguez told Officer Wade that 6 months earlier, Davilia had been at their house and he had either dropped his wallet or she had taken it, but that she had given it back to him a week later.
Dominguez declined the request to search her house. However, officers obtained a search warrant for the house and discovered a .22 caliber rifle in a closet, a bag of cocaine, a smoking pipe/crack pipe in the bedroom, and other drug paraphernalia.
Maxwell testified that he had gone to bed around 9:30 on the evening in question and Dominguez later woke him up because they needed “to make a round around the block.” Maxwell said he, Dominguez, and a guy named Mike, took the dark blue truck and drove around looking to smoke some cocaine. Maxwell drove, Dominguez sat in the front passenger seat, and Mike was in the back.
While they were driving around, the group saw a man, Davilia, without a shirt running down the street. Maxwell said they pulled up next to him and Dominguez got out and began speaking Spanish to him. Davilia and Dominguez got into the truck. Maxwell said that it did not look like Davilia was being pushed or pulled into the truck, but that he just climbed into the truck.
Maxwell said that he when continued driving, Davilia and Dominguez began hollering and screaming and a fight broke out. He saw both of them holding onto a box cutter. They were pushing and shoving each other. Maxwell testified he saw Dominguez on top of Davilia cutting his pants pocket. Maxwell said Dominguez cut Davilia's wallet out of his pants pocket, but she shoved it back into his waistband. He told Dominguez to stop because Davilia had had enough and he could tell that he was scared. He said Davilia and Dominguez struggled some more and then got out of the truck. After it was over they offered Davilia a drink, but he stood out by the street yelling in Spanish and then took off running.
The jury convicted Dominguez of aggravated kidnapping, aggravated robbery, conspiracy to commit aggravated robbery, aggravated battery, criminal threat, and criminal damage to property in case No. 09CR116 and possession of cocaine and possession of drug paraphernalia in case No. 09CR133. In case No. 09CR166, the jury acquitted Dominguez on the charges of conspiracy to commit aggravated kidnapping, robbery, two counts of aggravated intimidation of a victim, theft, and criminal restraint.
Due to her lengthy criminal past, Dominguez had a criminal history category of A. The trial court denied her motion for downward departure and her motion for a new trial. In a combination of concurrent and consecutive sentences in both cases, the court sentenced Dominguez to a presumptive total sentence of 816 months' incarceration. Dominguez appeals.
Dominguez first argues that the State presented insufficient evidence of the alternative means of aggravated kidnapping and her conviction must be reversed.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Dominguez' primary contention is that this is an alternative means case and the State failed to present sufficient evidence of each alternative means of committing aggravated kidnapping. Although she did not raise this argument below, this court has previously held that an alternative means error can be raised for the first time on appeal. See State v. Waldrup, 46 Kan.App.2d 656, 663, 263 P.3d 867 (2011) (alternative means challenge can be raised for the first time on appeal because it implicates insufficiency of evidence to support the conviction), petition for review filed November 16, 2011; State v. Rivera, 42 Kan.App.2d 914, 918, 218 P.3d 457 (2009) (stating that a criminal defendant need not challenge the sufficiency of the evidence before the district court to preserve the issue for appeal), rev. denied, 290 Kan. 1102 (2010).
Our Supreme Court has stated the following rule of law governing alternative means cases in Kansas:
“ ‘ “In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for 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. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]” ‘ “ State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010) (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994] ).
Dominguez was convicted of violating K.S.A. 21–3421 which provides that aggravated kidnapping is kidnapping when bodily harm is inflicted upon the person kidnapped. Kidnapping is defined in K.S.A. 21–3420 as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: .... (b) to facilitate flight or the commission of any crime.” At trial, the trial court instructed the jury on aggravated kidnapping as follows:
“To establish this charge, each of the following claims must be proved:
1. That the defendant took or confined Fernando Davilia by force or deception:
2. That it was done with the intent to hold such person to facilitate the commission of any crime;
3. That bodily harm was inflicted upon Fernando Davilia; and
4. That this act occurred on or about the 13th day of March, 2009, in Seward County, Kansas.”
Prior decisions of this court have established that kidnapping and/or aggravated kidnapping present an alternative means situation not only in the alleged purpose of the kidnapping but whether the kidnapping was accomplished by “force, threat or deception.” In State v. Johnson, 27 Kan.App.2d 921, 923, 11 P.3d 67,rev. denied 270 K. 901 (2000), the court stated that force, threat, or deception are “all the means listed in our kidnapping statute, K.S.A. 21–3420.” The Johnson court concluded there was no evidence that Johnson employed deception in his taking of the victim. However, the court applied a harmless error analysis based on the overwhelming evidence of Johnson's use of a gun to threaten the victim and affirmed the conviction. 27 Kan.App.2d at 924–26. The Johnson court was effectively overruled on the harmless error analysis by Wright, but the analysis on the alternative means is still good law. 290 Kan. at 205 (alternative means error is not subject to harmless error analysis).
At the time of the commission of Dominguez' crimes in 2009, K.S.A.2008 Supp. 21–3110(5) defined deception as “knowingly and willfully making a false statement or representation, express or implied, pertaining to a present or past existing fact.” See State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983). In 2011, the legislature refined this definition to give more insight into its meaning:
“ ‘Deception’ means knowingly creating or reinforcing a false impression, including false impressions as to law, value, intention or other state of mind. Deception as to a person's intention to perform a promise shall not be inferred from the fact alone that such person did not subsequently perform the promise. Falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive reasonable persons, is not deception.” K.S.A.2011 Supp. 21–5111(e).
Dominguez argues there was no evidence presented at trial to establish that the aggravated kidnapping in her case was accomplished by deception and therefore her conviction must be reversed. We disagree. Dominguez minimizes the extent of Maxwell's testimony. The jury could certainly have believed Maxwell's version of the events. Maxwell testified that while they were driving around, they saw a man without a shirt running down the street. They pulled up next to him and Dominguez got out and began speaking to him in Spanish. The man and Dominguez then got into the truck. Maxwell said it did not look like Davilia was being pushed or pulled into the truck, but that he just climbed into the truck. Maxwell said that after he continued driving, Davilia and Dominguez began screaming and a fight broke out. Maxwell's testimony provided circumstantial evidence of Dominguez' deceptive behavior to get Davilia into the vehicle.
Dominguez' alternative means argument is unconvincing because the statutory definition of the term “deception” does not require any showing of reliance on the false statement or representation. Substantial evidence has been defined as “ ‘such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ “ State v. Wonders, 263 Kan. 582, 589, 952 P.2d 1351 (1998) (quoting State v. Haskins, 262 Kan. 728, Syl. ¶ 1, 942 P.2d 16 [1997] ). Because there was substantial evidence to support the finding that Dominguez took or confined Davilia by deception, we conclude that a rational factfinder could have found that each alternative means of committing the crime of aggravated kidnapping were proven beyond a reasonable doubt.
For her next issue, Dominguez argues the trial court abused its discretion in answering the jury's question. She argues the jury was obviously confused about the difference between the essential elements of intentional and reckless aggravated battery and the trial court's failure to answer the question is reversible error.
K.S.A. 22–3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
The Kansas appellate courts apply a two-prong test when reviewing a trial court's response to a jury question. First, a de novo review is conducted to determine if the trial court provided an erroneous response to the jury's question. Second, this court reviews the sufficiency or propriety of the trial court's response for an abuse of discretion. State v. Jones, 41 Kan.App.2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010). Judicial discretion is abused when the trial court's action is arbitrary, fanciful, or unreasonable. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006). Further, the trial court abuses its discretion when it goes outside the applicable legal standards or statutory limitations when making its decision. Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 779, 89 P.3d 908 (2004).
After deliberations began, the jury sent the following question to the court: “Can we get a better legal description of the difference between intentional and reckless aggravate battery?” Both counsel for the defense and the prosecution approved of the following answer: “Members of the jury, we are unable to provide you any additional instructions regarding the difference between intentional and reckless aggravated battery. Please use your common knowledge and experience in regard to this matter.” Dominguez and her counsel were in the courtroom when the trial court formulated the answer and did not object.
The general rule is that a party may not raise an issue on appeal when there was no contemporaneous objection which gave the trial court an opportunity to rule. See K.S.A. 60–404. Further, a defendant waives the right to challenge the court's response to a jury request by failing to object. See State v. Leaper, 291 Kan. 89, 106–07, 238 P.3d 266 (2010). In State v. Bruce, 255 Kan. 388, 397, 874 P.2d 1165 (1994), the court applied the invited error doctrine to the defendant's objection on appeal to the court's response to a jury question. The record indicated that the defense counsel agreed to the response that the court, with input from the prosecution and defense, formulated in open court. Because the defendant participated and, in fact, joined in the request for specific language, defendant could not argue for error. 255 Kan. at 397.
Similarly, in State v. Cramer, 17 Kan.App.2d 623, 632–33, 841 P.2d 1111 (1992), rev. denied 252 Kan. 1093 (1993), this court applied the invited error doctrine to a defendant's argument that the district court improperly responded to a jury's question. Defense counsel stated on the record that he had no problem with setting out the standard suggested by the prosecutor. It was that standard that both parties agreed to that the court used to answer the question. Because of the defendant's on-the-record agreement to the answer, he could not argue the error on appeal. 17 Kan.App.2d at 632–33.
Because Dominguez failed to object to the court's response to the jury question here, she has failed to preserve for appellate review the judge's answer.
Next, Dominguez argues there is insufficient evidence to support her conviction for conspiracy to commit aggravated robbery.
When sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence, viewed in the light most favorable to the prosecution to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).
Dominguez was convicted of conspiracy in violation of K.S.A. 21–3302(a) which provides in part:
“(a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person shall be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.”
To establish a conspiracy, it is not necessary that there be any formal verbal agreement; it is enough if the parties tacitly come to an understanding regarding the unlawful purpose. The parties' agreement does not need to be proved directly but may be inferred from sufficiently significant circumstances. State v. Moody, 35 Kan.App.2d 547, 55556, 132 P.3d 985,rev. denied 282 Kan. 794 (2006).
Dominguez argues the State did not present any evidence that she entered into an agreement with Maxwell to commit aggravated robbery. She argues the evidence only establishes that Maxwell may have struck Davilia on the side of the head and that Maxwell was only the driver of the car. She contends that none of Maxwell's testimony or his actions that evening constituted an agreement to rob Davilia. She contends her argument is supported by the fact that the jury acquitted her of conspiracy to commit aggravated kidnapping.
A conspiracy essentially amounts to an agreement between two or more persons to commit a particular crime coupled with some tangible step—an overt act—taken in furtherance of that agreement. K.S.A. 21–3302(a). The agreement need not be detailed in writing or even orally; a course of joint conduct undertaken with a common understanding is sufficient to establish a criminal conspiracy. State v. Northcutt, 290 Kan. 224, 231–32, 224 P.3d 564 (2010) (“[I]t is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.' “ [quoting State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995) ] ). Furthermore, a conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). “However, the circumstances utilized to infer guilt must be proved; they cannot be inferred or presumed from other circumstances.” State v. Richardson, 289 Kan. 118, Syl. ¶ 5, 209 P.3d 696 (2009).
Here, given Davilia's and Maxwell's testimony, a jury could find a conspiracy based on Dominguez soliciting of Maxwell as the driver of the vehicle “to make a round around the block.” Maxwell agreed to pull up next to Davilia so that she could get out and talk to him. The Davilia and Dominguez got into the truck. Maxwell continued driving back to their house when Dominguez jumped on Davilia and they were pushing and shoving each other. Maxwell did not stop the fight, not when he saw Dominguez cut Davilia's pants or when it smelled like someone “crapped” their pants or when he claimed he saw Dominguez put Davilia's wallet back into his waistband. Eventually, Maxwell told Dominguez to stop by saying, “That's enough. He's scared. That's enough. [Question] How did you know he was scared? [Answer] He was sitting there, you know, struggling and—he might have pooped his pants, I don't know.” Davilia also testified that Maxwell hit him in the head when he tried to grab for his wallet. Maxwell said that when it was over, they offered Davilia a drink, but that he stood out by the street yelling in Spanish and then took off running.
All of the above evidence is circumstantial evidence of an agreement or understanding and participation among the perpetrators as to a course of criminal conduct, especially given Maxwell's willingness to pick up Davilia and drive him back to their house. If accepted, this testimony sufficiently supported the conspiracy verdict.
Next, Dominguez contends the trial court abused its discretion by denying her request for a durational departure. The trial court sentenced Dominguez to presumptive terms of imprisonment. Her appeal fails because we lack jurisdiction to review the judgments. Under K.S.A. 21–4721(c)(1), we cannot review Dominguez' presumptive prison sentences. Furthermore, the denial of a motion to depart is not appealable when the sentence is within the presumptive range as it is here. State v. Riles, 24 Kan.App.2d 827, 832, 956 P.2d 1346,rev. denied 264 Kan. 824 (1998); see also State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A. 21–4721(c)(1) eliminates appeals of presumptive sentences). This portion of Dominguez' appeal is dismissed.
Dominguez further argues that the trial court erred in sentencing her to the upper term in the grid box under the Kansas Sentencing Guidelines Act within the applicable grid blocks for her convictions citing Cummingham v. California, 549 U.S. 270, 127 S.Ct. 856 166, L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The appellate court has repeatedly rejected Dominguez' argument, see, e.g., State v. Johnson, 286 Kan. 824, 842, 848–51, 190 P.3d 207 (2008), and we do so again today. There was no error on this ground. See Huerta, 291 Kan. at 837 (reaffirming that appellate court does not review on direct appeal claims that defendant's presumptive sentence has a constitutionally based infirmity).
Last, Dominguez contends the use of her criminal history for sentencing purposes without putting it to a jury and proving it beyond a reasonable doubt, increased the maximum possible penalty for her primary offense in violation of Apprendi, 530 U.S. 466. This issue has already been decided adversely to Dominguez and is without merit. See State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002); accord State v. Hernandez, 294 Kan. 200, 212, 273 P.3d 774 (2012) (reaffirming Ivory ).
Affirmed in part and dismissed in part.