Opinion
No. 111,064.
2015-03-6
STATE of Kansas, Appellee, v. Martin Arnold RILEY, Appellant.
Appeal from Shawnee District Court; David Debenham, Judge.Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Martin Arnold Riley, appellant pro se.Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David Debenham, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant, and Martin Arnold Riley, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Martin A. Riley was convicted of aggravated robbery of a tobacco store, robbery of a hotel, and criminal threat. Subsequently, a panel of this court affirmed the criminal threat conviction but reversed the aggravated robbery and robbery convictions. On remand, the charge of robbery of the hotel was reduced to theft, to which Riley pled no contest. In addition, the district court resentenced him for robbery of the tobacco store as opposed to aggravated robbery. Ultimately, the district court imposed a presumptive sentence of 130 months for robbery and 12 months for theft and reinstated his sentence of 6 months for criminal threat—with the theft and criminal threat sentences to run concurrently with the robbery sentence. Because we find that the issues raised by Riley in this appeal are moot, barred by res judicata, or meritless, we affirm his sentence.
Facts
In Riley's prior appeal, a panel of this court set out the facts as follows:
“On May 8, 2010, Maria Hernandez was working the front desk at the Baymont Inn & Suites. The hotel was under video surveillance, and a camera was located in the lobby. Around 11:20 p.m., a man who Hernandez identified as Riley walked into the hotel and asked if there were any rooms available and how much they cost. He was wearing a dark hoodie when he entered the hotel. After hearing the price of a room, Riley told Hernandez that it was too expensive and he asked her where a Motel 6 was. Hernandez replied that there was a Super 8 Motel nearby. Riley then left.
“Approximately 50 minutes later, a man wearing the same clothing that Riley had been wearing came into the hotel with the hood on the hoodie over his head. He approached Hernandez and asked her to give him a room and the money. Hernandez did not hear him and asked him what he had said. Again, the man stated, “[T]he money, I want the money.” Hernandez could not see if the man had a weapon because he was standing so close to the counter. She gave him the money, and he left the hotel. Hernandez immediately called the police to report the robbery.
“A few days later, the police prepared a photo lineup and showed it to Hernandez. Hernandez picked Riley's photo as being the person who robbed her. Hernandez testified that there was no doubt in her mind that Riley was the man who first asked about the price of the rooms and then later came back and robbed her.
“Officer[ ]s used still photographs from the hotel's surveillance video to try to apprehend the robber. The still photos were e-mailed to all Topeka law enforcement officers.
“Nine days later, on May 19th, Officer Travis Jepson was patrolling in south central Topeka and saw a person who resembled the suspect in the still photos. Jepson drove by the man a couple times trying to get a better look at his face. Jepson did not stop the man because he was not sure it was the same person. He further testified he saw the man walking about a block away from the Tobacco World store.
“Shortly after Jepson saw this man, a robbery was reported at Tobacco World. Nicole Carothers was working as a cashier at the store when a man entered the store and bought a Sprite and a cigar. After paying for those items, the man decided he wanted another cigar. When Carothers opened the register the second time, the man reached over the counter and grabbed the $20 bills that were in the register. Carothers immediately grabbed the money back. The man told Carothers to give him the money, but she refused. The man then grabbed Carothers' jacket and jumped over the counter. The two struggled over the money until the man threatened to knock Carothers out and shoot her 6–year–old daughter who was in the back room of the store. Carothers then shoved the money at the man and told him to leave. The man then demanded that Carothers open the cash register, but she refused. The man finally left, and Carothers immediately called the police.
“Officer Jepson responded to the call and helped secure the area around Tobacco World. Jepson later contacted the detectives working on the hotel robbery case to tell them he might have seen the suspect in that case near Tobacco World shortly before it was robbed. The detectives showed Officer Jepson a photo lineup from which he chose Riley's photo as being the man he saw walking near Tobacco World on the day it was robbed.
“Video surveillance cameras also caught the tobacco store robbery on film. Detective Donna Ping showed Carothers the same photo lineup that was shown to Hernandez. Carothers also picked Riley's picture out of the photo lineup. Carothers testified that she did not previously know the man, but that she had no doubt in her mind that Riley was the man that robbed her.
“After Riley was arrested, officers showed him the still photographs from the surveillance videos. Riley admitted that he was the person in the still photographs from the hotel camera at one point, but he denied that he was the person who entered the hotel the second time demanding money. He also denied that he was the person in the surveillance video from Tobacco World.
“Riley gave the officers permission to search his car, his house, and his mother's house. During the search of the car, officers found five $1 bills and one $20 bill in the center console. The $20 bill was torn and missing part of the bill. Serial numbers on a part of a $20 bill found at Tobacco World matched the numbers on the part of the $20 bill found in Riley's car. Additionally, during the search of Riley's house, officers found clothing and shoes that were similar to the clothing worn by the suspect in the surveillance videos.
“In his defense, Riley presented several witnesses who testified that they saw him at work on the date of the Tobacco World robbery.
“The State charged Riley with aggravated robbery of the tobacco store, robbery of the hotel, and criminal threat. The jury convicted him on all three counts.” State v. Riley, No. 106,353, 2012 WL 4373002, at *1–3 (Kan.App.2012), rev. denied 297 Kan. 1254 (2013) (unpublished opinion) (hereinafter Riley I ).
In Riley I, a panel of this court reversed and remanded the robbery conviction for a new trial. 2012 WL 4373002, at *6. Moreover, it reversed and remanded the aggravated robbery conviction for resentencing based on the lesser crime of robbery. 2012 WL 4373002, at *9. Lastly, it affirmed the criminal threat conviction. 2012 WL 4373002, at *9.
Ultimately, the State amended the charge of robbery to theft, to which Riley pled no contest. Since the district court determined that Riley had a criminal history score of “A,” it imposed the presumptive sentence of 130 months in the custody of the Secretary of Corrections on the robbery conviction. The district court also sentenced Riley to serve 12 months on the theft conviction and reinstated his sentence of 6 months on criminal threat—both of which to run concurrently to the sentence for robbery. Thereafter, Riley filed the present appeal.
Analysis
Issues Presented
There are five issues presented in the current appeal. Initially, Riley's attorney filed a brief on his behalf that included only one issue under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Subsequently, this court granted Riley leave to file a supplemental pro se brief, in which he raised four additional issues.
The first issue, which was set forth in Riley's initial brief, is whether the district court violated Riley's Sixth and Fourteenth Amendment rights under Apprendi. The second issue is whether Riley was prejudiced by the amending of the complaint following the jury verdict. The third issue is whether there was sufficient evidence to prove the necessary elements of criminal threat and robbery. The fourth issue is whether the district court erred in admitting evidence at trial. The final issue is whether there was cumulative error. Apprendi Issue
Although Riley contends that his constitutional rights were violated under Apprendi because his prior convictions were used to increase his sentence without requiring the State to prove them beyond a reasonable doubt, he acknowledges that the Kansas Supreme Court has previously resolved this issue in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We are duty bound to follow precedent established by the Kansas Supreme Court unless there is an indication that it is departing from the precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). A review of Ivory's progeny does not suggest to us that any such departure is on the horizon. See State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012); State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011); State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009); State v. Fewell, 286 Kan. 370, 394–96, 184 P.3d 903 (2008). Hence, we find Riley's argument to be without merit.
Amendment of Complaint
Riley contends in his supplemental brief that the State violated his rights by amending the complaint following the jury verdict. The panel in Riley I, however, specifically addressed the allegation that Riley was prejudiced by the State amending the complaint after the verdict by removing the firearm element from his aggravated robbery conviction. In doing so, the panel in Riley I rendered this issue moot by reversing the aggravated robbery conviction. Clearly, “an argument once made to and resolved by an appellate court becomes ‘the law’ in that case and generally cannot be challenged in a second appeal.” State v. West, 46 Kan.App.2d 732, Syl. ¶ 1, 281 P.3d 529 (2011). Thus, we find no error.
Criminal Threat and Robbery Convictions
Riley also contends that the State failed to prove the elements necessary to convict him of criminal threat and robbery. But a panel of this court affirmed the criminal threat conviction in Riley I. Similarly, the panel in Riley I previously considered the issue of robbery and concluded that although there was not sufficient evidence of aggravated robbery, there was sufficient evidence to be resentenced for robbery of the tobacco store. As indicated above, “an argument once made to and resolved by an appellate court becomes ‘the law’ in that case and generally cannot be challenged in a second appeal.” West, 46 Kan.App.2d 732, Syl. ¶ 1. Accordingly, we will not address these issues again in this appeal.
Evidentiary Issues
Although Riley asserts that the district court erred in allowing false testimony to be used against him at trial, it does not appear that he raised this issue in Riley I. “Under Kansas law, where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” State v. Neer, 247 Kan. 137, Syl. ¶ 2, 795 P.2d 362 (1990); see also State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008). The rule reflects this State's clear policy against piecemeal appeals. See State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014); State v. Cady, 254 Kan. 393, 401, 867 P.2d 270 (1994); State v. Newman, 235 Kan. 29, 31, 680 P.2d 257 (1984). Consequently, because the evidentiary issues presented by Riley either were or could have been addressed in his initial appeal, we do not need to reach them in the present appeal.
Nevertheless, even if it were appropriate for Riley to assert these issues in this appeal, we find them to be without merit. First, Riley's argument hinges on the credibility of one or more witnesses. In particular, he questions the testimony of Detective Kent Biggs, who testified at a Jackson v. Denno hearing that he was unable to obtain a video from Riley's employer due to difficulties with the digital recording. Riley alleges that the video would have showed that he was at work at the times the crimes were committed. But it is not the role of an appellate court to determine the credibility of a witness. State v. Quails, 297 Kan. 61, 66, 298 P.3d 311 (2013); see also State v. Miller, 274 Kan. 113, 119, 49 P.3d 458 (2002) (“The credibility of a witness is a matter for the finder of fact and will not be second-guessed by an appellate court.”).
Second, Riley's argument also relies on the existence of evidence not located in the record. But we must presume that the district court's action was proper because Riley has failed to designate a record affirmatively showing prejudicial error as to the video or regarding a child witness who Riley contends “very potentially [could have been] useful to the defense.” It is well-settled that “[a] defendant possesses the burden to designate a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes the action of the trial court was proper.” State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007). Thus, even if the issue were properly before us, Riley has failed to designate a record that is sufficient to establish error.
Cumulative Error
Finally, Riley argues that his convictions should be reversed due to cumulative error. Because we find no error, however, the cumulative error doctrine does not apply. State v. Reed, 300 Kan. 494, 512, 332 P.3d 172 (2014); State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009); State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007).
Affirmed.