Opinion
No. 108,792.
2013-11-8
STATE of Kansas, Appellee, v. Cathy L. HENDRY, Appellant.
Appeal from Franklin District Court; Thomas H. Sachse, Judge. Deborah Hughes, of Kansas Appellate Defender Office, for appellant. Matt Franzenburg, assistant county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Franklin District Court; Thomas H. Sachse, Judge.
Deborah Hughes, of Kansas Appellate Defender Office, for appellant. Matt Franzenburg, assistant county attorney, Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cathy L. Hendry asks us to overturn her attempted first-degree murder conviction, claiming the State failed to present sufficient evidence that she made an overt act toward the perpetration of the crime. To prove an attempt to commit first-degree murder, the State must prove that Hendry had the intent to commit murder, she made an overt act toward committing the crime, and she failed in completing its commission. Because the record reveals that Hendry pointed a loaded shotgun toward the head and belly of the victim but that victim grabbed the muzzle of the gun and forced it away from his person thus preventing her from shooting him, we hold there was sufficient evidence for a rational factfinder to find Hendry guilty beyond a reasonable doubt.
For her second argument, Hendry contends that during the voir dire examination of potential jurors, one of the panel members who was an employee of the sheriffs office, stated that he “provided for [Hendry's] daily needs.” According to Hendry, the rest of the jury panel could reason that she was in custody, thus the trial court erred when it denied her motion for a mistrial. Hendry must show us that her substantial rights to a fair trial were prejudiced by the trial court's denial of her motion. She has not done so. This brief remark of a panel member to the judge did not show Hendry was in custody during the trial. Because we see no prejudice by the remark, we hold there was no abuse of discretion by the trial court on this point. We affirm her conviction.
A domestic couple separates.
Hendry began dating Joseph Soppe in September 2011. The two began living together at Hendry's residence. But in January 2012, Soppe decided he did not want to continue the relationship with Hendry and removed some of his belongings from Hendry's house. Soppe left behind his daughter's bounce house.
On the evening of January 25, 2012, while Soppe was at work, he sent Hendry a text message telling her he no longer wanted to be in the relationship. Hendry replied by “chewing” Soppe out and telling him he was selfish. Soppe told Hendry he would come by her house the next morning to retrieve his bounce house. The following morning, Soppe sent Hendry a text message advising her he was on his way to pick up the bounce house. Hendry asked Soppe to wait, since she did not want her kids there when Soppe arrived. Soppe told Hendry to put the bounce house—which was always kept in Hendry's garage—in the driveway so that Soppe could just “get it and be gone.”
Hendry's teenage son, Joe, testified that on the morning of January 26, Hendry told him she and Soppe were breaking up. Hendry asked Joe, who kept two guns in his bedroom, for a gun. Joe gave Hendry his 20–gauge shotgun. The shotgun only holds only one shell in the chamber, so a person must put in another shell each time he or she wants to shoot the gun. Joe gave Hendry two shotgun shells, and he showed her how to load and unload the gun. Joe testified Hendry took the gun and shells downstairs and she went into her bedroom.
When Soppe arrived to pick up his bounce house, it was not in the driveway as he had asked. Instead, Hendry opened the garage door and told Soppe she wanted to talk. After Soppe and Hendry talked for a while about their relationship, Soppe asked Hendry where the bounce house was. Hendry told Soppe it was in the house, explaining she put all of his personal belongings in the back bedroom of her house so she could later put it in her car and take it to him. Hendry would have needed to move the bounce house approximately 70–75 feet—all the way through the kitchen, the dining room, and the hallway—to reach the back bedroom of the house.
Soppe followed Hendry inside the house. When the two reached the back bedroom, Soppe went in and Hendry went into her own bedroom. Soppe saw that the bounce house was located in the back corner of the room, and nearby was a plastic bag full of items Soppe did not recognize. When Soppe turned around to inquire about the bag, he saw Hendry coming towards him with a shotgun. Hendry had both hands on the gun and one finger on the trigger. Soppe said the gun was pointed more towards his head at first, but as the two got closer Hendry pointed it across his abdomen. Soppe said Hendry was holding the gun at waist-level and it was pointed diagonally across his body. Soppe testified he was less than a foot away from Hendry and that he believed he would have been hit in the abdomen had the gun fired. Soppe said Hendry had a serious look and her eyes were “scary.”
Soppe had served in the military and was experienced with firearms. He believed Hendry would shoot him if he did not take the weapon from her. Soppe was able to pin Hendry against the wall. As Soppe tried to take the gun away from Hendry, Hendry was squeezing the trigger, and she then tried to pull the hammer back. Hendry squeezed the trigger four or five times, but the gun did not go off. During the struggle, Hendry told Soppe that if she could not have him, she did not want to live. However, Hendry did not have the gun pointed at herself at the time. In fact, Soppe testified Hendry did not point the gun at herself at any time during the encounter. Soppe said Hendry was clenching her lips and acting aggressively during the struggle.
Hendry's version of the events differed. She testified that in the fall of 2011, Soppe was regularly staying with her and the two were discussing marriage. Hendry said she loved Soppe with all her heart and that she wanted to spend the rest of her life with him. Hendry's two children had a good relationship with Soppe as well. Nevertheless, on January 15, 2012, Soppe removed his belongings from Hendry's house and left her the house key. Hendry said she was hurt and her son was crying. When Hendry eventually spoke with Soppe, Soppe assured her he was not going to leave her. In fact, Hendry and Soppe subsequently had dinner together and attended a musical event. Hendry testified she was nevertheless depressed.
Hendry said that on January 24, Soppe called her and invited her to his house, giving her renewed hope about the relationship. The next day, Soppe sent Hendry a message informing her he wanted to be single. Hendry said she felt like her heart had been ripped from her chest. Then, on the morning of January 26, when Soppe came to retrieve the bounce house, she did not want her children there because they did not know she and Soppe had broken up and she did not want her children to get upset. Hendry admitted she approached her son, Joe, about his shotgun that morning and that he showed her how to use it. Hendry admitted Joe placed one shell in the gun for her and that she asked for a second shell. Hendry explained that if the gun misfired or did not kill her the first time, she would have a second shell. Hendry said she felt as if her life was over and she planned to use the gun on herself. Hendry explained that after her children left for school, she put the shotgun in her bedroom. Hendry said she put the bounce house in the spare bedroom because she felt that if she put it in the driveway, Soppe would simply retrieve it and not talk to her. Hendry explained that she wanted to know why Soppe had ended the relationship.
Hendry testified that when she approached Soppe with the gun, she planned to point the gun at herself and shoot. Hendry indicated she did not have time to point the barrel at herself before Soppe threw her up against the wall. Hendry said she had her finger on the trigger, but she was not squeezing it. Hendry denied trying to pull the hammer back. Hendry testified she was not angry at Soppe, but she wanted to harm herself in front of him to make him feel the pain and hurt she felt.
Soppe eventually gained control of the gun and got out of Hendry's house. Hendry followed. Soppe put Hendry's gun in his car, locked the car door, and called the police. Hendry and Soppe then had another physical struggle as Soppe tried to get into his car.
Hendry explained that after Soppe left her house that morning, her crisis passed and she realized she needed to be at a job skills class at the local SRS center. Hendry drove to the class, which was designed to help her gain employment and better her life. Law enforcement officers found her at the SRS center and arrested her.
The jury found Hendry guilty of attempted first-degree murder. The district court granted Hendry's motion for a downward durational departure sentence and sentenced her to 41 months in prison. The court decided that since Hendry committed her crime with a deadly weapon, she was required to register as a violent offender.
We first review some fundamental points of law.
In a criminal case, when the sufficiency of the evidence is challenged on appeal, this court's standard of review is whether all of the evidence, examined in the light most favorable to the State, convinces us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. When reviewing the sufficiency of the evidence, we will not reweigh the evidence or determine the credibility of witnesses. State v. Portillo, 294 Kan. 242, 246, 274 P.3d 640 (2012).
An attempt has three essential elements: the intent to commit the crime, an overt act toward the perpetration of the crime, and a failure to consummate the crime. State v. Wilson, 30 Kan.App.2d 498, 499–500, 43 P.3d 851,rev. denied 274 Kan. 1118 (2002); see K.S.A.2012 Supp. 21–5301(a). There is no definite rule about what constitutes an overt act when determining guilt for an attempted crime, and each case depends largely on its particular facts and the inferences which the jury may reasonably draw from those facts. State v. Salcido–Corral, 262 Kan. 392, 398, 940 P.2d 11 (1997). An overt act must extend beyond mere preparations made by the defendant; it is the first or some subsequent step in a direct movement toward the completed offense. To be found guilty, the defendant must have taken steps beyond mere preparation by doing something directly moving toward and bringing nearer the crime he or she intends to commit. State v. Sullivan & Sullivan, 224 Kan. 110, 122, 578 P.2d 1108 (1978), disapproved on other grounds by State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011).
Hendry claims that although the alleged overt act here was her pointing the loaded shotgun at Soppe, the evidence produced at trial failed to demonstrate she pointed the gun at Soppe. Hendry claims the record merely contains evidence that she pointed the gun at a 45–degree angle away from Soppe and that she pointed the gun away from her and Soppe when he pinned her against the wall. Hendry also points out there was no evidence she threatened to kill or harm Soppe, and the evidence only reflects she intended to kill herself.
Soppe's testimony is enough to convince us otherwise:
“A. It was kind of like at an angle across my body.
....
“A. When she was coming through the door it was like diagonal across my body. It was more at first up towards my head, and then as I got closer to her she started to move and it was across my abdomen.
....
“Q. ... [I]f the gun had gone off would it have hit you? Would you have been hit?
“A. I believe it would have hit me in my abdomen, yes.
....
“Q. .... [Y]ou said it would have hit you in the abdomen area?
“A. Yes.
....
“A. She had a pretty serious look on her face. She was like stretching her lips, and her eyes were just pretty scary.
....
“A. She looked like she was determined to do whatever she was going to do, she had already made up her mind what she was going to do. That's what it looked like to me.
....
“A. .... [S]he was also squeezing the trigger then trying to get it to go off, and when it wouldn't go off I noticed that she reached up and tried to grab the hammer. When she was trying to grab the hammer I grabbed her hand and pulled her hand away from the hammer and started to try to push the release so I could pop the barrel. Once I got ahold of the release I pushed the release and popped the barrel so that the shell would fly out.”
We will not reweigh the evidence or determine the credibility of witnesses. Portillo, 294 Kan. at 246. Sufficient evidence supports a finding that Hendry indeed pointed the shotgun at Soppe. And although there is no evidence Hendry verbally threatened to kill or hurt Soppe, and Hendry testified she only intended to kill herself, there is ample circumstantial evidence to support a conclusion that she actually intended to kill or wound Soppe. The record shows:
• Hendry obtained a gun and ammunition from her son in advance of Soppe's arrival;
• she asked her son how to load and shoot the shotgun;
• she moved the heavy bounce house from the garage to the back bedroom;
• she led Soppe into the back bedroom;
• Hendry came up from behind Soppe and pointed the loaded shotgun at Soppe;
• Hendry squeezed the trigger four or five times in their struggle over the gun;
• she never once pointed the gun at herself.
Kansas courts have repeatedly recognized that convictions of even the gravest offenses may be sustained by circumstantial evidence. State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008). There is ample evidence here to support a conviction for attempted first-degree murder.
We see no reason for a mistrial here.
Hendry next claims the district court abused its discretion when it denied her motion for a mistrial during voir dire. She argues that when a potential juror who worked at the county jail admitted during voir dire that he was “providing” for Hendry's daily needs, it became “obvious” that Hendry was in custody, thus prejudicing her right to a fair and impartial jury.
At this point, a review of the legal authorities is helpful. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a fair and impartial jury trial. The failure to afford the defendant a fair trial by impartial and indifferent jurors violates even the minimal standards of due process. Due process requires a jury capable and willing to decide a case solely based upon the evidence before it. State v. Leaper, 291 Kan. 89, 97, 238 P.3d 266 (2010).
When justice so requires, it may be necessary for the court to declare a mistrial if there is a fundamental failure in a proceeding. 291 Kan. at 97. The court may terminate the trial and order a mistrial if the court determines termination is necessary because prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the State. K.S.A. 22–3423(1)(c). In applying this statute, a district judge must engage in a two-step analysis: (1) determine whether there was some fundamental failure in the proceeding; and (2) if so, determine whether it is possible to continue the trial without an injustice. State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011).
On appeal, a motion for a mistrial is reviewed under an abuse of discretion standard. Leaper, 291 Kan. at 96. A court abuses its discretion when its judicial action is arbitrary, fanciful, or unreasonable. An appellate court will not disturb a discretionary decision unless no reasonable person would have taken the view adopted by the district court. Even under the deferential abuse of discretion standard of review, an appellate court has unlimited review of legal conclusions upon which a district court judge's discretionary decision is based. A district court by definition abuses its discretion when it makes an error of law. State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010).
The party alleging an abuse of discretion in denying a motion for a mistrial bears the burden of proving his or her substantial rights to a fair trial were prejudiced. Leaper, 291 Kan. at 96–97. When analyzing the mistrial issue on appeal, this court engages in a two-step analysis. Race, 293 Kan. at 81. The court considers: (1) whether the district court abused its discretion when deciding if there was a fundamental failure in the proceeding; and (2) whether the district court abused its discretion in deciding if the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice to the defendant.
During the voir dire of Hendry's trial, potential juror J.N. indicated he was employed at the Franklin County Sheriff's Department. The State asked J.N. whether he would be able to listen to the facts and be a fair juror, and J.N. indicated he would. The district court then asked J.N. about his knowledge of the particular accusations made in Hendry's case, and J.N. responded he only knew about the charges on the arrest report. The court finally asked J.N. if he had any interaction with Hendry as part of his duties, and he responded: “Just interaction as far as providing for her daily needs.”
At that point, outside the presence of the jury, defense counsel asked that J.N. be excused for cause. The court acknowledged it “probably shouldn't have asked that last question.” But when defense counsel asked for a mistrial—arguing it was now “obvious” that Hendry was in custody, the court denied the request. The judge excused J.N. for cause but explained he was not granting a mistrial, stating:
“[A] mistrial is appropriate when there's prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.... I don't think that this rises to the level of prejudicial conduct which makes it impossible to proceed with the trial without injustice to the defendant. The defendant is in street clothes. She's not in handcuffs.... [D]ue to the severity of the offense the jurors could infer that at some point in the process she may have been arrested and had some interaction with employees of the sheriff, but that does not rise to the level of prejudicial conduct which would make it impossible to proceed with the trial. It was a very short interchange or discussion or discourse between the court and the prospective juror, [J.N.], of course we excused [J.N.] for cause, and I think it had very little if any impact upon the rest of the panel members, and I'm very confident that they were not tainted by the exchange....”
Hendry contends the district court found there was a fundamental failure in the proceeding. In her view, the district court “concluded ... the colloquy [between itself and J.N.] was error and a fundamental failure in the trial.” Hendry notes the court conceded it made a mistake in questioning J.N. as it did, and says the colloquy between the court and J.N. provided enough information for the other jurors to conclude she was in custody during the trial and that this was an error of law.
The record does not support Hendry's interpretation. In discussing the juror issue, the court suggested it was a “mistake” to ask J.N. further questions about his interaction with Hendry. However, the court never stated or suggested in any way that J.N.'s comments resulted in a fundamental failure in the trial. In fact, contrary to Hendry's claim, the colloquy between the court and J.N. did not provide enough information for the other jurors to conclude Hendry was in custody “during the trial.” When the court asked J.N. if he had any interaction with Hendry as part of his duties, he responded, “Just interaction as far as providing for her daily needs.” J.N. did not indicate when that interaction occurred or at what point he provided for Hendry's daily needs.
At trial, there was undisputed testimony that Hendry had been arrested. From J.N.'s statement, then, members of the jury may have simply inferred J.N. provided for Hendry's daily needs while she was in custody after her arrest. J.N.'s statement did not, as Hendry claims, indicate she was in custody during her trial. As the district court pointed out, due to the severity of the charge alleged— i.e., attempted first-degree murder—it would have been reasonable for the jurors to presume Hendry was arrested and had interaction with jail employees at some point.
Going further, we are not convinced that J.N.'s comment resulted in an “error of law” as Hendry suggests. In State v. Alexander, 240 Kan. 273, 274–75, 729 P.2d 1126 (1986), a jailer testified at trial about the interactions he had with the defendant during a period of time that occurred 4 months after the crime was committed. The court ultimately determined the jury had indeed discovered the defendant was incarcerated “during trial,” but it nevertheless held the error was harmless. 240 Kan. at 275–76. J.N.'s comment did not indicate Hendry was in custody during the trial. As the district court pointed out, Hendry was dressed in street clothes, she was not in handcuffs, and—based on the evidence presented at trial—the jury was made aware that Hendry was arrested on the day of the attempted murder.
In State v. Ward, 292 Kan. 541, 576, 256 P.3d 801 (2011)cert. denied132 S.Ct. 1594 (2012), the court held it was an abuse of discretion for the trial court to allow two persons to be identified as Ward's associates while they were dressed in jail clothing. That is far different than the circumstances here.
We find the facts here far less extreme than those in State v. Davidson, 264 Kan. 44, 954 P.2d 702 (1998), where the court found harmless error. Davidson, charged with murder, claimed he killed in self-defense. At trial, Davidson was required by the county sheriff's office to wear a leg brace in order to prevent escape—causing Davidson to walk with a limp. At trial, the State asked the court to explain the leg brace to the jury so it would not erroneously infer Davidson was disabled, thus corroborating his claim of self-defense. The court subsequently advised the jury that due to standard procedures, Davidson—who was in custody—was equipped with the brace to prevent him from escaping. On appeal, our Supreme Court held the court's advisement to the jury was harmless error. 264 Kan. at 51–53.
The court first explained that when a trial error deprives a defendant of a constitutional right, the standard to be applied is more stringent than simply whether there is a reasonable probability of a different result. 264 Kan. at 51. The court said that instead, the presumption is the error warrants reversal unless the appellate court is willing to declare the error was harmless beyond a reasonable doubt— i.e., that the error did not affect the result of the trial. See Ward, 292 Kan. 541, Syl. ¶ 6.
The court held that the court's explanation to the jury was error, noting: “All defendants have the right to appear before the jury free of restraints because such restraints present an unacceptable risk of prejudice and compromise the presumption of innocence.” 264 Kan. at 52. However, the court held the error was harmless, noting Davidson did not object to the court's explanation to the jury at trial, the evidence against Davidson was overwhelming, the jury was properly instructed on the presumption of innocence, and defense counsel had previously informed the jury that Davidson was in custody. 264 Kan. at 52–53.
In Hendry's case, she was unrestrained and unshackled before her jury. The district court instructed the jury it must presume Hendry was not guilty unless convinced otherwise by the evidence. At the end of voir dire, the State asked the jury to wait until all the evidence was presented before it formed an opinion in the case. And at trial, the evidence against Hendry was overwhelming. Hendry clearly objected to the information revealed by J.N., as she moved for a mistrial, but as the district court pointed out, the jurors were aware Hendry had been arrested, and Hendry was wearing street clothes and was not restrained. And unlike in Davidson, the jury was not made aware that Hendry was in custody during the trial; instead, the jury only learned information suggesting Hendry may have been in custody at some point.
We find no error in the court's denial of Hendry's motion for a mistrial.
We find no Apprendi error.
Relying on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Hendry claims her rights under the Sixth and Fourteenth Amendment to the United States Constitution were violated when the court increased her punishment by requiring her to register as an offender. Notably, in sentencing Hendry, the district court determined Hendry committed her crime with a deadly weapon and required her to register as a violent offender.
We will consider Hendry's argument because it alleges a violation of fundamental rights under the Sixth and Fourteenth Amendments. See State v. Dukes, 290 Kan. 485, 488–89, 231 P.3d 558 (2010). A constitutional challenge is a question of law over which we have unlimited review. See State v. Carr, 274 Kan. 442, 444–45, 53 P .3d 843 (2002).
Hendry concedes this court has ruled against her Apprendi argument in the sexual offender context in State v. Chambers, 36 Kan.App.2d 228, 239, 138 P.3d 405,rev. denied 282 Kan. 792 (2006), where a panel of this court stated that “ Apprendi does not apply to a sentencing judge's finding beyond a reasonable doubt that an offense was sexually motivated which results in imposition of the provisions of the [Kansas Offender Registration Act].”
Several other panels of this court have agreed that Apprendi does not apply to a sentencing judge's finding that a deadly weapon was used in the commission of a crime, resulting in an offender registration requirement. See State v. Weis, 47 Kan.App.2d 703, 717–19, 280 P.3d 805 (2012), petition for rev. filed July 16, 2012; State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), rev. denied 296 Kan. –––– (April 8, 2013); State v.. Urista, 45 Kan.App.2d 93, 97–98, 244 P.3d 287 (2010), sentence vacated on other grounds by296 Kan. 576, 293 P.3d 738 (2011); State v. Franklin, 44 Kan.App.2d 156, 160–62, 234 P.3d 860 (2010), rev. denied 296 Kan. –––– (April 8, 2013).
In Chambers, the court relied upon Kansas Supreme Court precedent upholding the constitutionality of the Kansas Offender Registration Act. 36 Kan.App.2d at 237–39. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Because there is no indication the Kansas Supreme Court is departing from its precedent on this issue, the district court's order for Hendry to register as a violent offender is affirmed.
Affirmed.