Opinion
112,823.
06-26-2015
STATE of Kansas, Appellant, v. JC HUNT, Jr., Appellee.
Chris Biggs, Deputy County Attorney, and Derek Schmidt, Attorney General, for Appellant. Linda M. Barnes, of Junction City, for Appellee.
Chris Biggs, Deputy County Attorney, and Derek Schmidt, Attorney General, for Appellant.
Linda M. Barnes, of Junction City, for Appellee.
Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State charged JC Hunt, Jr., with two alternative counts of criminal threat under K.S.A.2014 Supp. 21–5415(a)(l), a severity level 9 person felony. After a preliminary hearing, the district magistrate judge dismissed both counts of criminal threat. The State appeals this dismissal, arguing that there was sufficient evidence to bind Hunt over for trial on the criminal threat charges. The State also argues that the district magistrate judge abused his discretion by improperly invading the province of prosecutorial discretion. The district magistrate had jurisdiction under K.S.A.2014 Supp. 20–302b(a). We have jurisdiction under K.S.A.2014 Supp. 22–3602(b)(l).
We determine that the district magistrate judge erred in dismissing the criminal threat charges. Because the district magistrate judge erred in dismissing the State's charges, we do not need to consider whether the district magistrate judge invaded the province of prosecutorial discretion. Consequently, we reverse and remand with directions to reinstate the criminal threat charges because there was sufficient evidence to support a probable cause finding.
On August 15, 2014, Hunt went to the police station to report that Johnny Cole's family had threatened his children. At the police station, Hunt spoke to Officer Michael Rivera. According to Rivera's affidavit, Hunt told him that he would “murder Johnny's entire family” the next time he had an issue with him. Rivera then asked Hunt what was going on. Hunt responded, “I just want you to know I am going to kill his entire family.” After Hunt repeated the threat, Rivera arrested Hunt.
Based on those statements, the State charged Hunt with two alternative counts of criminal threat under K.S.A.2014 Supp. 21–5415(a)(l). Count one stated that Hunt communicated a threat with the intent to place Cole in fear. Count two stated that Hunt communicated a threat “with reckless disregard of the risk of causing such fear to Johnny Cole, Jr.”
On October 23, 2014, a preliminary hearing was held before a district magistrate judge who was regularly admitted to practice law. At this hearing, Rivera and Cole testified. Rivera testified that Hunt told him that he was having problems with Cole and Cole's family. He further testified that Hunt told him “if there was [sic ] any more problems ... he was going to murder Johnny Cole's entire family.” Rivera testified that Hunt was serious and not joking when he made the threat. He explained that Hunt “had a stem look on his face, and he appeared aggressive.”
Cole testified that a police officer had told him about Hunt's threat. According to Cole, this police officer told him that Hunt had stated the following: “[I]f he hears or sees me again, he's going to kill me.” Later Cole testified that the police officer told him that Hunt had stated, “[I]f he hears or sees of me again, that he's going to kill me and my family.” Cole explained that he did not know the name of the police officer who had told him about Hunt's threat. Moreover, Cole testified that he was not worried about Hunt's threat because “[Hunt] couldn't have been that serious about it if he's going straight to the police and saying something about it.”
At the conclusion of the preliminary hearing, the district magistrate judge made the following finding:
“One problem I have is the, quote, threat communicated to the victim by the unknown, unnamed, Grandview Plaza police officer, was a threat to kill me the next time he saw me.
“The threat allegedly made in the police garage was if something—if there's another incident between one family and my family, then I'm going to kill the entire family. I'm not even sure what the threat was. Certainly, Mr. Boyd [sic ], his words, not that worried about it.
“I know it's difficult for me to come to a conclusion that those words, themselves, do not constitute a threat. But it—first of all, and I know this is—this is another legal concept thrown in, but we're certainly—what is called a conditional threat, not a direct threat. If the sun comes up tomorrow, or if I lose at the poker game, I'm going to shoot the dealer, you know?
“I'm going to shorten the State's misery. I'm going to not find probable cause to bind Mr. Hunt over on either count one or the alternative count two. Charges are dismissed.”
Was the Evidence Presented at Hunt's Preliminary Hearing Sufficient to Bind Him Over for Trial?
“ ‘When the State appeals the dismissal of a complaint, an appellate court's review of an order discharging the defendant for lack of probable cause is de novo.’ “ State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011) (quoting State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 [2000] ). An appellate court must review the evidence like a detached magistrate would review the evidence at a preliminary hearing. Fredrick, 292 Kan. at 171. “The issue is sufficiency of the evidence.' “ Fredrick, 292 Kan. at 171 (quoting Anderson, 270 Kan. at 71 ).
“Under K.S.A. 22–2902(3), the magistrate at a preliminary hearing examines the evidence to determine (1) whether a crime has been committed and (2) whether there is probable cause to believe that the accused committed the crime.” State v. Washington, 293 Kan. 732, 733, 268 P.3d 475 (2012) (citing State v. Valladarez, 288 Kan. 671, 677, 206 P.3d 879 [2009] ). Evidence presented at the preliminary hearing does not need to “prove guilt beyond a reasonable doubt, only probable cause.” Washington, 293 Kan. at 733 (citing State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 [1983] ). “ ‘Probable cause at a preliminary examination signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.’ “ Washington, 293 Kan. at 734 (quoting State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 [2000] ). Moreover, in reviewing this evidence, the court will draw inferences in favor of the State. Even if the evidence is weak, the court should find sufficient evidence exists to bind a defendant over for trial when the evidence tends to show that the offense was committed and that the defendant committed the offense. Washington, 293 Kan. at 734 (citing Berg, 270 Kan. at 238 ).
On appeal, the State asserts that the district magistrate judge erred when he dismissed the State's charges against Hunt. Specifically, the State argues that there was probable cause to support that Hunt committed each element of criminal threat. Furthermore, the State takes issue with the reasons that the district magistrate judge gave for dismissal. Hunt, on the other hand, argues that the district magistrate judge correctly dismissed the charges against him.
Under K.S.A 2014 Supp. 21–5415(a)(1), a criminal threat is any threat to “[c]ommit violence communicated with intent to place another in fear ... or in reckless disregard of the risk of causing such fear.” Thus, to commit a criminal threat, a defendant must threaten to commit violence, communicate this threat, and do so with the intent to place another in fear or with reckless disregard of causing such fear in another person.
To determine whether a criminal threat occurred, all circumstances surrounding the alleged threat must be considered. State v. Rivera, 42 Kan.App.2d 914, 920, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010). “[T]he threat must be a serious threat as opposed to idle talk or jest.” State v. Baker, No. 100,557, 2009 WL 3630917, at *9 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1096 (2010) (citing State v. Phelps, 266 Kan. 185, 196, 967 P.2d 304 [1998] ). Moreover, the term “communicate” in K.S.A.2014 Supp. 21–5415(a)(l) “requires a declarant and a receiver for the threat because the threat must be perceived and comprehended.” State v. Woolverton, 284 Kan. 59, 69, 159 P.3d 985 (2007). Yet, under K.S.A.2014 Supp. 21–5415(a)(1), the defendant can communicate the threat to any person. The criminal threat statute does not require that a defendant communicate the threat to the person he or she intended to place in fear or recklessly placed in fear. See State v. Cope, 273 Kan. 642, 648, 44 P.3d 1224 (2002) ; State v. Wright, 259 Kan. 117, 122, 911 P.2d 166 (1996). The criminal threat statute also “does not require, as an element of the offense, that the defendant knew his or her threat would be communicated to the person terrorized.” Wright, 259 Kan. at 122.
In this case, the district magistrate judge dismissed the charges for the following reasons: (1) Cole could not remember the name of the police officer who communicated Hunt's threat to him; (2) Rivera's testimony and Cole's testimony regarding what Hunt threatened were inconsistent; (3) Cole was not worried by Hunt's threat; and (4) Hunt's threat was conditional. Nevertheless, the district magistrate judge's reasons for dismissing the State's charges were flawed. Essentially, the district magistrate judge added elements to the criminal threat statute, finding that the State failed to establish probable cause on elements it was not required to prove.
First, it does not matter that Cole could not remember the name of the police officer who told him about the threat. As previously noted, the criminal threat statute merely requires that a defendant communicate the threat to another person. See Cope, 273 Kan. at 648 ; Wright, 259 Kan. at 122. Here, Hunt communicated the threat to Rivera. Therefore, the district magistrate judge erred because it was irrelevant who told Cole about the threat. Second, although Cole's testimony regarding what Hunt exactly threatened was inconsistent, Rivera's testimony regarding the threat was consistent. Again, Hunt communicated the threat to Rivera. Thus, the fact that Cole's testimony was inconsistent should have had no impact on the probable cause determination. Third, whether a defendant's threat actually placed the intended victim in fear is not an element of the criminal threat statute. For a criminal threat, all that matters is that the defendant acted with the intent to place another person in fear or acted with reckless disregard to place another person in fear. See K.S.A.2014 Supp. 21–5415(a)(1). Therefore, the district magistrate judge erred when he focused on Cole's testimony that Hunt's threat did not make him fearful. Fourth, nothing in the criminal threat statute states that a threat cannot be conditional. The criminal threat statute only requires that the defendant communicate a threat to commit violence. K.S.A.2014 Supp. 21–5415(a)(1). Consequently, the district magistrate judge's reasons for dismissing the charges against Hunt were incorrect.
Moreover, there was probable cause to support that Hunt committed a criminal threat. Hunt clearly threatened to commit violence because he stated that he was going to murder Cole's entire family. Hunt communicated this threat to Rivera. Given the circumstances surrounding Hunt's threat, there was sufficient evidence to find that Hunt intended to place Cole in fear by making the threat. At the preliminary hearing, Rivera testified that Hunt and Cole had an ongoing dispute. Cole explained that his and Hunt's dispute stemmed from Cole's house being burned down. Rivera also testified that Hunt was serious and was not joking when he made the threat. Additionally, the fact that Hunt did not make the threat in a casual conversation with a friend but actually took the time to go to the police station and tell a police officer that he was going to murder Cole's family further supports that Hunt was serious when he made the threat.
When a defendant states that he or she is going to murder the entire family of another person, it is reasonable to conclude that the defendant intended to place that person in fear. Thus, given the evidence presented at the preliminary hearing, a person of ordinary prudence and caution would conscientiously entertain a reasonable belief that Hunt intended to place Cole in fear by making the threat. Furthermore, at the very least, a person of ordinary prudence and caution would conscientiously entertain a reasonable belief that Hunt recklessly made the threat, consciously disregarding that his threat could have placed Cole in fear.
Based on this evidence, there was probable cause that a criminal threat was committed and that Hunt committed this criminal threat. Accordingly, the district magistrate judge erred because he should have bound Hunt over for trial on the criminal threat charges.
Reversed and remanded with directions to reinstate the criminal threat charges.