Opinion
No. 106,743.
2012-11-2
STATE of Kansas, Appellee, v. Chad Michael OSBORN, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Chad Michael Osborn appeals his conviction and sentence for one count of aggravated assault on a law enforcement officer. He argues that the district court erred in its response to the jury's question regarding the intent element of the crime and erred in its jury instruction on the burden of proof. He also argues that the district court did not impose specific costs at the sentencing hearing and thus the journal entry of judgment must be amended to reflect that no costs were imposed. Finally, he contends that the district court violated his constitutional rights by enhancing his sentence based upon his prior criminal history without requiring that his criminal history be proven to a jury beyond a reasonable doubt. Finding no error, we affirm the district court's judgment.
This appeal arises from an incident occurring on December 13, 2010, in which Osborn allegedly assaulted Johnson County Sheriff's Deputy Greg Wright by driving a car at Wright while he was attempting to serve Osborn with an outstanding arrest warrant. On January 5, 2011, Osborn was charged with aggravated assault on a law enforcement officer under K.S.A. 21–3411. A jury trial was held on July 11 and 12, 2011.
At trial, Wright testified that he and his partner, Deputy Greg Vickers, were working the warrants division on December 13, 2010. They had information that Osborn, for whom there was an outstanding arrest warrant, might be living at a house in Overland Park, Kansas. The house is an east-facing house near the closed end of a long, north-south cul-de-sac with the entrance at the south. Wright and Vickers drove by the house in their unmarked police car and saw that a car matching the description of Osborn's car was parked in the driveway, so they decided to set up surveillance. Later, Osborn and a woman left the house and moved toward Osborn's car. At that point, Wright and Vickers turned into the cul-de-sac and activated the emergency lights. The police car was in the street but blocked only about half of the driveway.
Wright then exited the police car, identified himself as a police officer, and told Osborn to stop because they needed to speak. According to Wright, he and Osborn made eye contact, but Osborn helped the woman into the passenger's side of the car and then walked over to the driver's side of the car and entered head first as if reaching for something. Meanwhile, Vickers had exited the police car, and both officers were telling Osborn to stop and not to get into the car. Wright was concerned by Osborn's actions and drew his firearm. Osborn then backed out of the car, looked at the officers, jumped into the car, closed the door, and started the ignition. Wright testified that the driveway was packed with ice, so he walked in the grass at the edge of the driveway and approached Osborn's car from the passenger side. Vickers also approached the car from the other side. Wright began pounding on the front and rear passenger windows, but he could not see inside the car because the windows were darkly tinted.
At that point, Wright heard the car shift into gear and assumed it was going into reverse, so he stepped away from the car and walked around front so he could get a clear view of the occupants through the windshield. The car began quickly backing down the driveway at an angle and came to a stop at the north edge of the end of the driveway, partially in the street. Wright believed Osborn had been trying to hit Vickers with the front end of his car as it swung around to face south. Wright chased the car down the driveway and was still in front of it, facing Osborn through the windshield with his gun drawn. Wright, who was now standing at the bottom of the driveway near the front end of the police car and about 5 feet from the front bumper of Osborn's car, shouted at Osborn to stop, turn off the car, and show his hands. Both Osborn and the woman put up their hands, and Wright believed that Osborn was preparing to surrender.
Wright testified that Osborn then made eye contact, screamed something and shook his hands, looked at Wright again, and then dropped his hands very quickly. Wright heard the shifting of gears, the engine revving, and the sound of tires spinning on the ice. Wright feared that Osborn was going to run him over, so he fired a shot at Osborn. The car moved forward toward Wright, so Wright fired three more shots as he tried to move out of the way. Wright testified that the car came within inches of hitting him, then swerved back up the driveway and drove away through several front yards and then out of the cul-de-sac. Wright later learned that Osborn had been shot in the elbow and the woman, Dana Mathews, had been shot in the shoulder. Wright testified that he had been cleared of any criminal wrongdoing or any violation of Sheriffs Department policy as a result of the incident.
Vickers also testified at trial and his testimony corroborated Wright's version of the events. Osborn did not testify, but Matthews testified for the defense. She testified that she and Osborn were leaving to go Christmas shopping when they saw a car turn into the cul-de-sac. She and Osborn got into their car, but the other car pulled up and blocked part of the driveway. Police officers then got out of the other car, said something to Osborn, and moved toward Osborn's car with their guns drawn. Matthews testified that Osborn began to slowly reverse down the driveway and one officer moved around to the front of the car and aimed his gun at her through the windshield. She testified that Osborn came to a stop and they both raised their hands in the air. Matthews told the officer not to shoot. She stated that she was looking straight at the officer but could see in her peripheral vision that Osborn kept his hands in the air. Suddenly, the officer started shooting at them. Matthews denied that she saw Osborn drop his hands or that she heard the gears shift or any other noise before the officer started shooting. After the shooting started, Osborn drove to the left—away from where the officer was standing—and went down the street, not through any yards. Matthews testified that Osborn dropped her at a nearby hospital on the Missouri side of the state line.
In rebuttal, the State presented the testimony of Detective Chris Evans, who took Matthews' statement while she was in the hospital on the day of the incident. Matthews told Evans that when the officer drew his gun, she raised her hands in surrender, but she thought she may have seen Osborn put his hands down, switch gears, and start to drive forward before the shooting started. Matthews further told Evans that Osborn came very close to hitting the officer as they drove away.
During his closing argument, Osborn argued that he never intended to place Wright in apprehension of immediate bodily harm. Osborn argued that he had tried to surrender, and his actions in driving away were to flee from the gun fire, not to scare or hurt Wright. Osborn particularly emphasized that although he intended to act, he did not intend to scare or hurt Wright and thus did not have the intent necessary to commit the crime of aggravated assault. The State did not dispute Osborn's characterization of the intent element of the crime, but it argued that the evidence clearly showed that Osborn had intended to scare Wright.
The district court instructed the jury on burden of proof, presumption of innocence, and reasonable doubt. Both parties requested Jury Instruction No. 6, which stated:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
During deliberations, the jury sent the following question to the district court: “Please verify if the defendant intended to place harm on the officer or did the defendant's actions intentionally place him in harm? Please clarify intentionally placed versus intended to cause.” Over Osborn's objection, the district court replied: “You must rely on the law as given in the instructions.”
The jury returned a verdict of guilty to the crime of aggravated assault on a law enforcement officer. Subsequently, the district court sentenced Osborn to a term of 43 months' imprisonment, waived the Board of Indigents' Defense Services (BIDS) fees, and stated generally that “court costs are assessed to the defendant.” Osborn timely appealed his conviction and sentence.
Response to Jury Question
Osborn argues that the district court abused its discretion in responding to the jury's question regarding the intent element of aggravated assault against a law enforcement officer. He contends that although the district court's instructions to the jury were technically correct, the district court's refusal to clarify the intent element led to a substantial likelihood that the jury applied the wrong standard. The State argues that the district court properly instructed the jury on the intent required and that its refusal to further clarify the instructions was not an abuse of discretion.
Under K.S.A. 22–3420(3), the district court has a mandatory duty to respond to a jury's request for further information as to the law of the case. The manner and extent of the response rest within the sound discretion of the district court. State v. Francis, 282 Kan. 120, 147, 145 P.3d 48 (2006). Thus, an appellate court generally reviews a district court's response to a jury's question for abuse of discretion. State v. Hawkins, 40 Kan.App.2d 10, 13, 188 P.3d 965 (2008), rev. denied 287 Kan. 767 (2009). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
K.S.A. 21–3408 states in relevant part: “Assault is intentionally placing another person in reasonable apprehension of immediate bodily harm.” K.S.A. 21–3410 states in relevant part: “Aggravated assault is an assault, as defined in K.S.A. 21–3408 and amendments thereto, committed: (a) with a deadly weapon.” Finally, K.S.A. 21–3411 states in relevant part: “(a) Aggravated assault of a law enforcement officer is an aggravated assault, as defined in K.S.A. 21–3410 and amendments thereto: (1) Committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of such officer's duty.”
Although aggravated assault is a general intent crime, the general intent necessary requires proof that the defendant intentionally placed another person in immediate apprehension of bodily harm. Hawkins, 40 Kan.App.2d at 14–15. In other words, in order to prove aggravated assault on a law enforcement officer, the State must prove that the defendant intended to cause the law enforcement officer to be placed in immediate apprehension of bodily harm. It is not enough for the State to merely prove that the defendant's conduct was intentional and the intentional conduct resulted in the law enforcement officer being placed in immediate apprehension of bodily harm. 40 Kan.App.2d at 14–15.
Here, the district court instructed the jury that to establish the charge of aggravated assault on a law enforcement officer, the State was required to prove that “the defendant intentionally placed Deputy Wright in reasonable apprehension of immediate bodily harm.” Osborn acknowledges that the jury instruction is a correct statement of law and properly explained to the jury the intent element of the crime. Osborn also acknowledges that the intent element of the crime was properly explained to the jury by counsel during argument. During his closing argument, Osborn emphasized that although he intended to act, he did not intend to scare or hurt Wright and thus did not have the intent necessary to commit the crime of aggravated assault. The State did not dispute Osborn's characterization of the intent element of the crime, but it argued that the evidence clearly showed that Osborn had intended to scare Wright.
Osborn cites Hawkins to support his claim that the district court abused its discretion in responding to the jury question. In Hawkins, two uniformed police officers responded to reports of a fight in a nearby parking lot. As the officers approached, a man walked toward one of the officers and discharged an apparent firearm. The officer began to chase the man, who brandished the firearm several times as if he were going to shoot at the officer. The second officer joined the chase and eventually shot the fleeing man in the back. The man was charged with aggravated assault against both officers. During jury deliberations, the jury asked the following question regarding the charge of aggravated assault against the first officer: “Does aggravated assault require [the defendant's] target specifically to be [the first officer]?” Noting that aggravated assault is a general intent crime, the district court interpreted the requisite general intent to be “an intent to do the act, but it does not have to be the intent to place someone in immediate apprehension of bodily harm.” 40 Kan.App.2d at 14. Over the defendant's objection, the district court sent the following response to the jury: “To be guilty of aggravated assault someone's act must have been intentional. The intentional act must have placed another in reasonable apprehension of immediate bodily harm.” 40 Kan.App.2d at 14.
On appeal, this court disagreed with the district court's interpretation of the intent element of aggravated assault. This court stated that based on the plain language of the relevant statutes, the general intent necessary to prove aggravated assault “requires proof that the defendant intentionally placed another person in immediate apprehension of bodily harm.” 40 Kan.App.2d at 14–15. This court found that the district court's response to the jury had changed the intent element and could have misled the jury to believe that it could convict the defendant by finding that he had committed an intentional act and that the act had the result of placing someone in apprehension of bodily harm. 40 Kan.App.2d at 14–15. Because this court concluded that the district court's response had misstated the law and that the mistake was not harmless, this court reversed the defendant's conviction and remanded for a new trial. 40 Kan.App.2d at 16.
Hawkins is clearly distinguishable from the present facts. In Hawkins, the district court gave a legally incorrect answer to the jury question on intent. Here, the district court simply referred the jury back to the instructions which correctly stated that the jury must find that Osborn “intentionally placed [Wright] in reasonable apprehension of immediate bodily harm.” Osborn acknowledges that the jury instruction is a correct statement of law concerning the intent element of the crime. Furthermore, the jury never heard conflicting arguments from counsel on the intent element of the crime. During his closing argument, Osborn argued that the intent element had not been proven because although he intended to act, he did not intend to scare or hurt Wright. The State never disputed that it was required to prove Osborn intended to scare Wright, but it argued that it had so proven beyond a reasonable doubt.
Here, the jury's question was not entirely clear. The jury asked: “Please verify if the defendant intended to place harm on the officer or did the defendant's actions intentionally place him in harm? Please clarify intentionally placed versus intended to cause.” Read literally, the question asks the district court to comment on whether Osborn intended to place Wright in harm. It certainly would have been improper for the district court to comment on the evidence. Perhaps the district court should have asked the jury for clarification of the question. But instead, the district court referred the jury back to the original instructions, and Osborn acknowledges that the original instructions were a correct statement of the law on the intent element of the crime. Under these circumstances, we are unable to find that the district court abused its discretion in the manner in which it responded to the jury's question during deliberation. Thus, we conclude the district court did not err in responding to the jury's question.
Jury Instruction on Reasonable Doubt
Osborn next argues that the district court erred in its jury instruction on reasonable doubt where the instruction stated:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Osborn contends that the ambiguity of the word “any,” which can mean either “one” or “every” depending on the context, created the possibility that the jury convicted him based on the State's proof beyond a reasonable doubt of any one element of the crime, rather than proof beyond a reasonable doubt of every element. Osborn concedes this court has upheld previous challenges to the instruction given by the district court.
Not only did Osborn fail to object to the jury instruction at trial, he submitted an instruction identical to the one given by the district court. A defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). Moreover, as Osborn acknowledges, this court has previously rejected his arguments concerning the instruction given by the district court on reasonable doubt. See State v. Womelsdorf, 47 Kan.App.2d 307, Syl. ¶ 10, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012; State v. Beck, 32 Kan.App.2d 784, 787–88, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). We conclude the district court did not err in its jury instruction on reasonable doubt.
Cumulative Error
Osborn argues that even if either of the above errors is alone insufficient to require reversal of his conviction, their cumulative effect substantially prejudiced him and denied him the right to a fair trial. Cumulative trial errors, when considered collectively, may be so great as to require a defendant's conviction to be reversed. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
“Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Based on our conclusion that the district court committed no error, Osborn's claim of cumulative error fails.
Court Costs
Osborn argues this court must remand the case with directions to remove the assessment against him of $445 in costs for lab fees and fingerprint/booking fees from the journal entry of judgment. He contends that since the district court did not assess those specific costs against him at sentencing, the journal entry of judgment is at variance from the sentence pronounced and must be amended to reflect the actual sentence imposed. The State argues that costs are not part of the sentence imposed and may be assessed outside the presence of the defendant; thus, no correction of the journal entry of judgment is necessary.
The issue of whether a district court must announce an order to pay fees at the sentencing hearing is dictated by statutory requirements. The interpretation of a statute is a question of law over which an appellate court exercises unlimited review. State v.. Phillips, 289 Kan. 28, 32, 210 P.3d 93 (2009).
In Phillips, the defendants argued that various fees imposed against them in a journal entry of judgment without an oral announcement violated K.S.A. 22–3405 and K.S.A. 22–3424(a), which require felony criminal judgments to be rendered and sentences to be imposed in open court. Our Supreme Court rejected the argument, finding that the challenged fees were not part of the criminal sentence because they were not imposed for punishment but were taxed as costs in order to recoup expenses incurred by the government in the handling of the criminal case. It also found that although the fees were a judgment, K.S.A. 22–3803 provides for costs to be taxed in a statement of costs issued at the conclusion of the criminal proceeding. Therefore, the costs did not need to be stated as part of the judgment in open court, although the Supreme Court stated it is the better practice to do so. 289 Kan. at 30.
Here, Osborn challenges the assessment of a booking/fingerprint fee under K.S.A.2011 Supp. 12–16, 119(a) and a lab fee under K.S.A.2011 Supp. 28–176. Both of these fees are costs assessed to recoup expenses incurred by the government, not imposed for punishment, and thus are not part of the criminal sentence. See Phillips, 289 Kan. at 35–36 (booking fee); State v. Likins, 21 Kan.App.2d at 420, 433–34, 903 P.2d 764,rev. denied 258 Kan. 861 (1995) (lab fee). Thus, the district court was not required to state the costs in open court. Under K.S.A. 22–3803, the assessment of those costs in the journal entry of judgment was valid, and no correction of the journal entry of judgment is necessary.
Apprendi Issue
Finally, Osborn argues that the district court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by enhancing his sentence based upon his prior criminal history without requiring that his criminal history be proven to a jury beyond a reasonable doubt. He acknowledges that our Supreme Court has decided this issue against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication that 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). Our Supreme Court continues to reaffirm its precedent in this area. E .g., State v. Peppers, 294 Kan. 377, 379, 276 P.3d 148 (2012). The district court did not err in sentencing Osborn.
Affirmed.