Opinion
No. 110,719.
2015-03-6
STATE of Kansas, Appellee, v. Ken'Dum Dan'Sha OWENS, Appellant.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; William Sioux Woolley, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ken'Dum Dan'Sha Owens directly appeals the jury's verdict finding him guilty of battery and aggravated battery, asserting four allegations of error. First, Owens argues we should reverse and remand for a new trial because the district court improperly instructed the jury. Second, Owens argues we should reverse his conviction of aggravated battery because the prosecutor engaged in prosecutorial misconduct. Third, Owens argues this court should remand his case for resentencing as a simple battery because the State did not present sufficient evidence to convict him of aggravated battery. Finally, Owens argues his conviction is void because K.S.A. 21–5413(b)(1)(C) is unconstitutionally vague. We disagree and affirm Owens' convictions and sentences.
Factual and Procedural Background
On February 27, 2012, Payton Bynum, Rick Smith, Montrez Brown, and Owens were attending science class at a juvenile detention facility. Bynum and Smith were seated at one table, and Brown and Owens were seated at an adjacent table. Brown left his seat, walked behind Bynum, and hit him in the back of the head. As Brown continued to hit Bynum, Owens moved toward Smith and hit Smith in the face. Smith fell to the ground, and Owens turned his attention to Brown and Bynum. Brown forced Bynum to the ground where he and Owens continued to attack him. Owens was seen on the surveillance video kicking Bynum's head three times and stomping Bynum's head once. Detention facility staff quickly intervened and ended the fight.
After the fight, Bynum was dazed and confused, and detention facility staff had to help him off the floor. As a precaution, Bynum was taken to the hospital where he received a CT scan, but he apparently suffered no injuries beyond bruises and scrapes.
The State charged Owens with one count of battery and one count of aggravated battery. A jury convicted Owens as charged, and the district court sentenced him to 26 months in prison for aggravated battery and 6 months in prison for battery to be served consecutively.
Owens' notice of appeal was untimely, but his motion to appeal out of time was granted.
Did the District Court Properly Instruct the Jury?
When an instruction issue is raised for the first time on appeal, the reviewing court must first determine whether the district court erred in giving the instruction. State v. Williams, 295 Kan. 506, 515, 286 P.3d 195 (2012). After deciding whether the district court erred, the reviewing court must then determine whether the district court's instruction was clearly erroneous—that is, “whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. at 516. This determination of clear error is made de novo and involves a review of the entire record. 295 Kan. at 516.
Owens argues the district court incorrectly instructed the jury on battery as a lesser-included offense of aggravated battery. He explains the lesser-included offense jury instruction should mirror the instructed greater offense with only the removal of the aggravating circumstance.
The district court instructed the jury on aggravated battery as follows: “The defendant knowingly caused physical contact to [Bynum] in a rude, insulting or angry manner in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The district court instructed the jury on battery as a lesser-included offense as follows: “The defendant knowingly caused bodily harm to [Bynum].”
Owens argues the jury was not properly instructed on battery because the instruction for aggravated battery required the jury to find that Owens “caused physical contact” while the instruction for battery required the jury to find that Owens “caused bodily harm.” He contends this inconsistency between the instructions constitutes an error. We are unpersuaded.
Examining each jury instruction entirely, we find both contemplate causing bodily harm and are thus consistent. The jury instruction for aggravated battery included “caused ... great bodily harm” as one of three ways a jury may decide an aggravated battery had occurred. As the jury instruction for battery required a finding that Owens “caused bodily harm,” the instructions mirrored each other with the lesser-included instruction omitting the aggravating circumstance. Therefore, the district court did not err when it instructed the jury.
Alternatively, even if we were to agree with Owens' contention that the lesser-included instruction was improper, we are not firmly convinced the jury would have reached a different verdict had it been instructed as Owens contends.
Owens argues there is a real possibility the jury may have returned a verdict for the lesser-included offense, if the jury instruction for battery had been consistent with the instruction for aggravated battery, and claims the jury convicted on aggravated battery because the lesser-included instruction of battery included an additional and different element than the instruction for aggravated battery.
The State points out, however, that Owens had always admitted he committed a battery on Bynum. It is implausible that the jury could have been confused by the language in the aggravated battery instruction versus the language in the lesser-included battery instruction when jurors were told by Owens' counsel that a battery occurred against Bynum. Therefore, the jury would have been comfortable deciding Owens committed a battery if it had decided the elements for aggravated battery were not met. The variance in language between the instructions does not establish a clear indication the jury would have reached a different verdict had the instruction error not occurred.
Finally, the fight was caught on surveillance camera, and the jury viewed this evidence. Owens is clearly seen kicking Bynum's head three times and stomping on his head once. The evidence that Owens committed an aggravated battery was strong, therefore making it unlikely the jury would have convicted Owens of simple battery instead of aggravated battery due to the variance in language between the instructions.
Did the Prosecutor Engage in Prosecutorial Misconduct?
Review of prosecutorial misconduct involving improper statements to a jury involves a two-step analysis:
“First, we determine whether the prosecutor's comments were outside the wide latitude allowed prosecutors in discussing the evidence. If so, then we next consider whether those comments constituted plain error; that is, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. If we find plain error, we must reverse. [Citations omitted.]” State v. Hall, 292 Kan. 841, 846, 257 P.3d 272 (2011).
In evaluating prejudice, we consider three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
The State has the burden to demonstrate “ ‘there is no reasonable possibility the error affected the verdict.’ “ State v. Stimec, 297 Kan. 126, 130, 298 P.3d 354 (2013) (quoting State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 [2012] ). A. The prosecutor did not misstate the law
Owens argues the prosecutor misstated the law during closing arguments when she urged the jury to compare Bynum's and Smith's injuries. According to Owens, this conduct was a misstatement of law because Jury Instruction # 9 read: “Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and the law applicable to it uninfluenced by your decision as to any other charge.” Owens points to the following statements made by the prosecutor during closing arguments:
“Now, when we compare the two acts, what happened to Rick Smith that day and what happened to Payton Bynum, are the two comparable? They aren't. Rick Smith was punched. He covered his head, took some blows to the face and he was left with a knot on his head.
“What happened to [Bynum] is not a simple battery. He was punched multiple times and then pulled to the floor where his head was stomped on. If you find that what happened to Rick Smith was a battery, you cannot compare what happened to [Bynum]; those two are not equal.” (Emphasis added.)
Owens also takes issue with the following statement the prosecutor made later during closing arguments: “We're not talking about bruises. What [Smith] had was a knot on the back of his head. What happened to Rick Smith was a simple battery. The two are not comparable. What happened to [Bynum] was so much more.” (Emphasis added.)
The State counters that prior to the statements at issue the prosecutor explained to the jury that each offense should be considered separately. Near the beginning of her closing arguments, the prosecutor stated:
“Now, lesser included offenses have been included in your instruction packet. The way those work, this is not a weighing. It's not aggravated battery weighed against battery. You must first consider aggravated battery. Read through that whole instruction. If you cannot come to a unanimous decision on that, only then do you turn to the instruction of battery of Payton Bynum.”
It appears the prosecutor specifically told the jury not to compare each offense when deciding whether Owens was guilty. Instead, the prosecutor advised the jury to consider only aggravated battery first. Only if the jury found itself unable to convict Owens of aggravated battery was it then directed to consider the lesser-included offense of battery. Because prosecutors are afforded wide latitude when discussing the evidence, see State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004), the prosecutor's argument did not direct the jury to compare the two offenses, and any indications otherwise would fall into the prosecutor's wide latitude to explain the nature and severity of Owens' conduct. B. The prosecutor did not assert facts not in evidence
Owens also argues the prosecutor made claims of harm that were inconsistent with the evidence presented in the case. Owens takes issue with the following statements made by the prosecutor during closing arguments: “What happened to [Bynum] was not mere bruises. You don't get a CT Scan for mere bruises. You are not dazed, confused and have to be helped up off the floor for mere bruises.” Owens also cites this statement that the prosecutor made during her final summation: “We're not talking about bruises.”
Owens argues the prosecutor provided no evidence during trial that Bynum suffered anything more than bruises and scrapes. Owens explains there was no testimony from any doctor, medical professional, or other qualified witness as to the risks associated with Bynum's scrapes and bruises. Owens also points to the testimony of Bynum himself, who testified he only received bruises and red marks from the fight. Bynum also testified he mentally felt fine afterwards.
However, the State was not arguing that Bynum was injured beyond scrapes and bruises. The State was arguing that Bynum could have been injured beyond scrapes and bruises as a result of Owens' attacks. When the prosecutor stated, “We're not talking about bruises,” she was communicating that Owens' conduct rose above mere battery because kicking and stomping on someone's head can cause great bodily harm.
Evidence was presented through the testimony of Charlene Prichard, a teacher at the juvenile detention center, that Owens kicked and stomped on Bynum's head. Testimony from Shawn Laughlin, a corrections officer, and Prichard established that Bynum was dazed, confused, and not quite coherent following the attack. Both Laughlin and Prichard were concerned Bynum may have suffered a brain injury due to the severity of the attack. Bynum testified that he had a headache and felt groggy after the attack, and the surveillance video of the attack clearly showed Owens kicking and stomping Bynum's head and neck area.
Prosecutors are permitted to make reasonable inferences during closing arguments based on the evidence. State v. Novotny, 297 Kan. 1174, 1188, 307 P.3d 1278 (2013) (quoting Hall, 292 Kan. at 848). Here, it was reasonable to infer the attack was more severe than most would associate with mere bruises. Making this point during closing arguments is within the wide latitude permitted for the prosecution.
Did the State Present Sufficient Evidence to Convict Owens of Aggravated Battery?
“ ‘When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citations omitted.]” State v. Cosby, 293 Kan. 121, 133–34, 262 P.3d 285 (2011).
Owens contends the State did not present sufficient evidence to convict him of aggravated battery because the State provided no expert medical testimony or evidence indicating there was a risk of further damage from the bruises and scrapes Bynum sustained from the fight. However, Owens cites no legal authority in support of his contention.
The State responds that the jury was provided with ample evidence from which to decide Owens committed an aggravated battery. It is the jury's responsibility to determine the weight to be given the evidence and the reasonable inferences to be drawn from the evidence. State v. Gibson, 246 Kan. 298, 303, 787 P.2d 1176 (1990) (quoting State v. Hammon, 245 Kan. 450, Syl. ¶ 3, 781 P.2d 1063 [1989] ). “[I]f the essential elements of the charge are sustained by any competent evidence the conviction stands.” State v. Smolin, 221 Kan. 149, 156, 557 P.2d 1241 (1976) (quoting State v. Roy, 203 Kan. 606, 607, 455 P.2d 512 [1969] ).
The jury heard testimony from an eyewitness that Owens kicked and stomped Bynum's head while Bynum was on the ground. The video of the attack corroborated the eyewitness testimony and clearly showed Owens kicking Bynum's head three times and stomping on Bynum's head once. Testimony and video evidence clearly established Owens engaged in violence that could have led to serious bodily injury of Bynum. We have no trouble concluding there was ample evidence from which a reasonable factfinder could have convicted Owens of aggravated battery.
Is Owens' Conviction Void Because K.S.A. 21–5413(b)(1)(C) Is Unconstitutionally Vague?
Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (citing State v. Ortega–Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 [2008] ).
Owens did not raise this issue before the trial court but contends that we should address this issue because (1) it involves a newly asserted theory that involves only a question of law and is finally determinative of the case; and (2) consideration of the issue is necessary to serve the ends of justice or to prevent denial of fundamental rights. See State v. Puckett, 230 Kan. 596, 598–99, 640 P.2d 1198 (1982).
Unfortunately for Owens, our Supreme Court rejected his argument in State v. Papen, 214 Kan. 149, 161–62, 50 P.3d 37, cert. denied 537 U.S. 1058 (2002). In Papen, the defendant argued that the “especially heinous, atrocious, or cruel manner aggravating circumstance is unconstitutionally vague,” but our Supreme Court saw no reason to address this argument for the first time on appeal. 274 Kan. at 162.
However, even considering the merits of Owens' argument, we find the statute is not unconstitutionally vague. The State correctly points out that another panel of our court has held the phrase “can be inflicted” in a previous version of Kansas' aggravated battery statute was not unconstitutionally vague. State v. Kleber, 2 Kan.App.2d 115, 118–19, 575 P.2d 900, rev. denied 225 Kan. 846 (1978). The court stated: “The elements are simple and certainly within common understanding and practice. The terms of the statute are not so vague that persons of common intelligence must necessarily guess at their meaning and differ as to their application.” 2 Kan.App.2d at 119. We agree.
Affirmed.