Opinion
No. 106,747.
2012-09-21
STATE of Kansas, Appellee, v. Mathew J. PENDLETON, Appellant.
Appeal from Douglas District Court; Barbara Kay Huff, Judge. Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Jessica Dotter, legal intern, Patrick J, Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Barbara Kay Huff, Judge.
Christina M. Waugh, of Kansas Appellate Defender Office, for appellant. Jessica Dotter, legal intern, Patrick J, Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Mathew J. Pendleton appeals his conviction for reckless aggravated battery based on the district court's failure to give a jury instruction on voluntary intoxication as a defense to the crime charged. Pendleton also argues the district court abused its discretion by excluding expert testimony regarding the effects of alcohol on a person's mental state. For the reasons stated below, we affirm.
Facts
At all times relevant to this matter, Gary Fierro, Casey Wilson, and Yasin Bibi were students at Haskell Indian Nations University located in Lawrence, Kansas. According to the State's witnesses, Fierro, Wilson, and Bibi went to the dormitories on the evening of February 19, 2010, to retrieve tattooing supplies from one of their dorm rooms. After Fierro, Wilson, and Bibi exited the stairwell of the dormitory and walked a few feet down the hall, a dorm room door opened and Pendleton walked out. Pendleton was holding a bottle of liquor in his hand that appeared to be about three quarters full. As Fierro, Wilson, and Bibi walked down the hall, Pendleton began walking behind them and repeatedly asked Fierro what his name was and where he was from. Fierro told Pendleton that his name was “G.”
While knocking on a dorm room door, Wilson saw Pendleton begin to swing the bottle at Fierro and attempted to warn Fierro of the imminent danger. Fierro turned around, at which point Pendleton hit Fierro in the head with the bottle of liquor. Fierro fell to the ground unconscious. Wilson called 911 and stayed with Fierro. Once Fierro came to, Wilson ran after Pendleton. When the police officers arrived, Wilson identified Pendleton, and the police arrested him. Wilson then took Fierro to the emergency room in Lawrence. Fierro was badly wounded and required two surgeries to survive.
According to Pendleton, he became excessively intoxicated on the night in question because of various personal issues. As he was walking out of the dorm, he saw three individuals walking out of the stairwell. Pendleton staggered down the hall and stumbled into Fierro as he passed the three men. Pendleton aggressively asked Fierro who he was several times and told him, “[Y]ou don't know me.” Pendleton felt as though he was being attacked, so he went after Fierro and punched him, after which Fierro fell to the ground. Pendleton testified that he did not have a bottle in his hand when he struck Fierro. According to Pendleton, he thought that Fierro was “John from Arizona” who had been abusive to his then current girlfriend, which is why he hit Fierro.
On February 22, 2010, the State charged Pendleton with one count of intentional aggravated battery. Pendleton filed a notice of intent to assert the defense of lack of mental state as a result of mental disease or defect. Thereafter, the district court allowed Pendleton to retain an expert witness to evaluate Pendleton's defense of voluntary intoxication and to testify, if necessary. After this evaluation was complete, the State filed a motion in limine to prevent the court from giving a jury instruction on the defense of voluntary intoxication and to prevent Pendleton from introducing any evidence from the expert witness related to such a defense. In support of its motion, the State argued that voluntary intoxication was not a defense to the general intent crime of intentional aggravated battery.
The district court initially denied the State's motion on grounds that intentional aggravated battery under K.S.A. 21–3414(a)(l)(A) was a specific intent crime. After reviewing the State's motion to reconsider, however, the district court changed its mind and granted the motion. Specifically, the court held that intentional aggravated battery was not a specific intent crime; thus, voluntary intoxication would not be a valid defense.
After a trial by jury, Pendleton was found guilty of reckless aggravated battery. The district court sentenced Pendleton to 32 months with the Kansas Department of Corrections.
Analysis
1. Jury Instruction
Pendleton asserts the district court erred in failing to instruct the jury on the defense of voluntary intoxication to reckless aggravated battery. In support of this assertion, Pendleton argues reckless aggravated battery, although not a specific intent crime, requires a particular state of mind.
Our Supreme Court has held that a defendant may rely on the defense of voluntary intoxication where the crime charged requires specific intent and there is evidence to support the defense. State v. Hayes, 270 Kan. 535, 542, 17 P.3d 317 (2001); see PIK Crim.3d 54.12; PIK Crim.3d 54.12–A. Aggravated battery, however, is a general intent crime. State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003).
K.S.A. 21–3208(2) discusses when the voluntary intoxication defense is available:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.” (Emphasis added.)
In State v. Esher, 22 Kan.App.2d 779, 785–86, 922 P.2d 1123,rev. denied 260 Kan. 997 (1996), overruled on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), our court concluded that the “intentional” and “reckless” language in K.S.A. 21–3201(a), which defines general criminal intent, merely referred to the scope of general criminal intent and not specific intent. Although Esher, 22 Kan.App.2d at 786, ultimately considered whether intentional aggravated battery was a specific or general intent crime under K.S.A. 21–3414(a)(1)(C) and concluded it was a general intent—not a specific intent—crime, its analysis can be similarly applied to Pendleton's argument that reckless aggravated battery is a specific intent crime. Moreover, in State v. Spicer, 30 Kan.App.2d 317, 323–24, 42 P .3d 742,rev. denied 274 Kan. 1117 (2002), this court determined that the term “recklessness” did not transform “reckless” aggravated battery into a specific intent crime, stating:
“The reckless requirement of the charged offense, here, does not require any specific state of mind to commit an offense. Rather, the statute merely requires a person to take an unjustifiable risk which results in a harmful touching to the person of another. In other words, the harm to another need not be intentional, in the sense the offender intended physical contact with the other person but included accidental physical contact which harms the person, although the harm may not be intended. ‘Recklessness' does not transform aggravated battery from a general intent crime into a specific intent crime.” 30 Kan.App.2d at 324.
Although Esher and Spicer discussed different forms of aggravated battery, it is clear that the holdings in both cases apply to Pendleton's argument.
Finally, as pointed out by other panels of this court, “[t]he ‘particular intent or other state of mind’ referred to in K.S.A. 21–3208(2) and PIK Crim.3d 54.12–A–1 has only been applied to crimes with statutes that require something beyond general criminal intent, such as premeditation or specific knowledge about the victim.” See State v. Fantroy, No. 104,348, 2011 WL 3891874, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. (June 13, 2012).
Because voluntary intoxication is not a defense to reckless aggravated battery, the district court did not err when it failed to give the jury a voluntary intoxication defense jury instruction.
2. Expert Testimony
Pendleton contends the district court abused its discretion by excluding expert testimony regarding the effects of alcohol on a person's mental state.
The admission of expert testimony generally lies within the district court's sound discretion, and its decision will not be overturned in the absence of an abuse of discretion. State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008); see K.S.A. 60–456(b). In this case, we already have held that voluntary intoxication is not a defense to reckless aggravated battery; thus, expert testimony regarding the effects of alcohol on a person's mental state is irrelevant. Accordingly, the district court did not abuse its discretion when it excluded this testimony.
Affirmed.