Opinion
No. 105,158.
2012-07-13
STATE of Kansas, Appellee, v. Jeremy R. ROMERO, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeremy R. Romero appeals from convictions for robbery, aggravated battery, and misdemeanor theft following a jury trial in Sedgwick County District Court. He asserts five challenges to the verdicts and resulting judgment. We find the theft conviction to be multiplicitous of the robbery conviction and, therefore, vacate it. The remaining challenges afford Romero no grounds for relief. So we affirm in all remaining respects.
Factual and Procedural History
Given the issues on appeal, we need not recount the facts in detail. In March 2009, Kassandra Thiele lived with her grandparents in a comparatively undeveloped area of eastern Sedgwick County. [Thiele's surname is also rendered in the record as Theile and Theide. The transcript of the jury trial reflects Thiele, so we use that spelling.] Thiele attended Butler County Community College and worked at an area nursing home. About 3 a.m. on March 20, Thiele's grandmother woke her up to say that a man had knocked on the front door and then gotten into her car parked in the driveway. Thiele typically did not lock her car there given the out-of-way location of her grandparents' home. Thiele hastily dressed, called 911, got a .22 cal. rifle, and went outside to confront the man in her car.
Thiele saw the man rummaging through her purse, which she had left in the front seat along with her car keys, some cash, and other personal property. Thiele yelled at the man and approached the car. The man started the engine and began to back the car out of the driveway. Thiele grabbed at the driver's side door, which came open and struck a deck next to the driveway. Thiele continued after the car as it backed into the road and sped off. She scratched her ankle during the incident. The injury was superficial and required no medical attention.
A Sedgwick County sheriff's deputy arrived within a few minutes. Thiele described her car and its contents and provided a physical description of the man. The car was found later that day, abandoned in a nearby neighborhood. Missing from the car were a camera, a pocket knife, a copy of Thiele's birth certificate, and a small amount of cash. A forensic officer processed the car for fingerprints and other evidence. The officer lifted two fingerprints sufficient for comparison from the exterior of the car. About 2 months later, the detective assigned to the case received a report that one of the fingerprints matched the man who found Thiele's car and contacted the authorities. He was not considered a suspect. The other print matched Romero. The detective put together a six-person photo array or lineup, including a picture of Romero, and met with Thiele on May 22, 2009. Thiele “immediately” identified Romero as the man she saw take her car. She told the detective she had never seen the man before.
Romero was arrested and ultimately charged with robbery, aggravated battery, criminal damage to property, and misdemeanor theft. Thiele testified at the preliminary hearing and during the prosecutor's direct examination identified Romero as the man who drove off in her car. On cross-examination, Romero's lawyer asked Thiele about a chance encounter she and her then-boyfriend had with a man at a convenience store on the east side of Wichita the day before her car was boosted. Thiele recalled the encountera man she did not know had leaned against her car in the parking lot, and the two of them exchanged cross words about it. At the preliminary hearing, she testified the man at the convenience store was Romero. On redirect examination, the prosecutor asked Thiele if she was “sure” that Romero was the person “that stole your car?” Thiele said, “No.” She explained that in the courtroom Romero “looks so much different” than he did at the time of the robbery about 6 months earlier. Thiele said Romero's weight and facial hair had changed but other characteristics of his face were the same.
During the jury trial, Thiele identified Romero and was rigorously cross-examined; by Romero's lawyer about her identification. He noted the lack of lighting outside her grandparents' home and that the interior dome light on the car was off throughout the robbery. In his questioning, he pointed out both that Thiele had been suddenly roused from sleep to confront the man in her car and that she didn't tell the investigating officer she had seen the man shortly before the crime—a failure of recollection on her part if the man were Romero. The lawyer also pointed out Thiele's equivocation at the preliminary hearing.
Romero testified in his own defense. He described the encounter with Thiele at the convenience store during which he leaned against her car, presumably accounting for his fingerprint on the vehicle. Romero adamantly denied knowing where Thiele lived, taking her car, or otherwise being involved in the crime in any way. Both Romero and his mother testified to his general appearance, hair length, and weight in March 2009. Their descriptions were at odds with how Thiele described the man who took her car to law enforcement officers at the time.
The jury convicted Romero of robbery, in violation of K.S.A. 21–3426; aggravated battery, in violation of K.S.A. 21–3414(a)(2)(B), for recklessly causing bodily harm to Thiele in a manner that could have resulted in great bodily harm, disfigurement, or death; and misdemeanor theft, in violation of K.S.A. 21–3701, for taking the personal property from Thiele's car. The jury acquitted him of criminal damage to property for damage to the car. At sentencing, the district court imposed a controlling term of imprisonment of 41 months on the robbery conviction, reflecting the low guideline punishment. The district court imposed a low guideline punishment of 7 months in prison on the reckless aggravated battery and 12 months in jail on the misdemeanor theft. The district court ordered all of the sentences run concurrently, granted Romero's motion for a dispositional departure, and placed Romero on probation for 36 months. Romero had spent over a year in jail awaiting trial.
Romero has timely appealed. As we indicated, he has challenged the convictions and the sentence on multiple grounds. We address them in the order Romero has presented them on appeal, adding additional facts as necessary.
Legal Analysis
Receipt of Verdict
Romero contends that the way the district court received the jury's verdict compromised his right to a unanimous verdict, as provided in K.S.A. 22–3421. In pertinent part, K.S.A. 22–3421 reads:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If anyjuror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.”
After the jury announced it had reached verdicts on the charges, the bailiff read them into the record. The district court then asked the presiding juror, “[I]s that the jury's verdict?” The presiding juror stated it was. The district court directed no additional questions to the presiding juror or to the panel as a group. The prosecutor and Romero's lawyer each expressly declined to have the jurors polled.
Romero argues that an inquiry of the presiding juror alone is inadequate to preserve his right to a unanimous verdict. Panels of this court have split on the effect of failing to comply with the procedure outlined in K.S.A. 22–3421. In State v. Gray, 45 Kan.App.2d 522, 525, 249 P.3d 465,rev. denied 292 Kan. 967 (2011), a panel held that statutory error in receiving a verdict requires vacating any conviction and granting the defendant a new trial. In that case, the district court did not inquire of the jurors collectively if the verdict was theirs or if any juror disagreed with the verdict as published. More recently, another panel held that a deviation from the procedure outlined in K.S.A. 22–3421 must materially compromise a defendant's rights to warrant substantive relief. State v. Dunlap, 46 Kan.App.2d 924, Syl. ¶ 5, 266 P .3d 1242,petition for rev. filed (December 30, 2011). A harmless error in that process will be excused, according to the Dunlap court.
For purposes of analysis, we assume, but do not decide, the district court's receipt of the verdict failed to comply with K.S.A. 22–3421. Jury unanimity in criminal cases is a statutory right rather than a fundamental constitutional right. State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007) (“[T]he right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a state statutory one.”). Nothing in the United States Constitution requires unanimous verdicts in noncapital criminal cases tried in state courts. Johnson v. Louisiana, 406 U.S. 356, 358–59.92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); 406 U.S. at 367–68 (Powell, J., concurring); see McDonald v. Chicago, 561 U.S. ––––, 130 S.Ct. 3020, 3035 n. 14, 177 L.Ed.2d 894 (2010). The Kansas Constitution does not establish such a right. See Voyles, 284 Kan. at 250–51. Any error, therefore, did not compromise a fundamental, constitutional right afforded Romero as a criminal defendant.
We agree with the reasoning of the Dunlap panel that the statutory right may be lost to waiver or invited error. Dunlap, 46 Kan.App.2d 924, Syl. ¶ 4. And we agree that a defendant who expressly declines to request a poll of the jurors invites any error purporting to compromise the right to a unanimous verdict otherwise protected in K.S.A. 22–3421. Dunlap, 46 Kan.App.2d 924, Syl. ¶ 4. Polling the jurors would insure the verdict was unanimous and that no one on the jury entertained any hesitancy or doubt.
In an analogous set of circumstances, the Kansas Supreme Court recognized that the invited error doctrine would override a statutory right of a criminal defendant to instructions on lesser included offenses, as provided in K.S.A. 22–3414(3). See State v. Angelo, 287 Kan. 262, 279–80, 197 P.3d 337 (2008). In that case, Angelo was charged with first-degree murder. Although there was evidence to support instructing the jury on second-degree murder as a lesser included offense, Angelo specifically requested the trial court refrain from doing so. Angelo wanted the jury to face an all-or-nothing decision between first-degree murder and acquittal with no room to compromise on a lesser, though still serious, offense. The district court gave no lesser-included instructions, and the jury convicted Angelo. On appeal, Angelo argued that the district court committed reversible error in failing to comply with K.S.A. 22–3414(3). The Kansas Supreme Court rejected the argument, since “Angelo invited this error.” 287 Kan. at 280. The court then cited the general rule: “A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.” 287 Kan. at 280.
We see Romero in the same predicament here. We, therefore, decline to address his complaint about receipt of the jury verdict because it amounts to invited error affecting a statutory right.
Multiplicity of Robbery and Theft Convictions
Romero contends that theft is a lesser degree of the same offense as robbery and, therefore, his convictions for both are impermissibly muhiplicitous. We agree and vacate the misdemeanor theft conviction.
In State v. Plummer, 45 Kan.App.2d 700, 704–05, 251 P.3d 102,rev. granted 292 Kan. –––– (2011), this court outlined the relationship between theft and robbery as degrees of the same criminal offense:
“Historically, the Kansas appellate courts have considered theft to be a lesser degree of the offense defined by the various forms of robbery because both crimes are rooted in a person taking property in one way or another that doesn't belong to him or her. State v. long, 234 Kan. 580, 591–92, 675 P.2d 832 (1984) (‘[T]heft is a “lesser degree of the same crime” which embraces robbery.’). The two offenses share a lineage to the common-law crime of larceny. 234 Kan. at 590. Robbery entails the perpetrator's use of force or other coercive action to obtain the property from the victim. 234 Kan. at 592. In contrast to the robber, a thief gains control of the property without physically intimidating the victim to do so. See 234 Kan. at 592 (The victim need not be present during a theft and may be separated from his or her property through the criminal's stealth alone.). But because of their common objective and shared legal antecedents, the crimes have been considered sufficiently kindred that theft should be treated as a lesser degree of the offense of robbery. 234 Kan. at 592 (‘The unlawful taking of the property of another is the gravamen of both offenses.’). Both Long, 234 Kan. at 585–92, and State v. Aldershof, 220 Kan. 798, 800–04, 556 P.2d 371 (1976), contain detailed discussions of the historical relationship between theft and robbery as cognate offenses. Although that discussion need not be recited at greater length here, the inquisitive reader will find each to be a trove of information and authority on the matter.
“Despite some differences in the strict elements of theft and robbery, the appellate courts continue to treat theft as a lesser offense for purposes of instructing juries. Simmons, 282 Kan. at 742;State v. Boyd, 281 Kan. 70, 94, 127 P.3d 998 (2006) (Theft entails a lesser degree of the generic crime of larceny, while robbery presents an enhanced form of the crime.). That determination squares with K.SA. 21–3107(2)(a), which provides that a defendant may be convicted of the crime charged or a lesser degree of the same crime. Consistent with that authority, neither party argued otherwise here and, we believe, correctly so. In the interest of completeness, we note that some means of committing theft are not treated as lesser offenses of robbery. State v. Sandifer, 270 Kan. 591, 600, 17 P.3d 921 (2001), Here, however, we are concerned with theft based on a culprit's obtaining or exerting unauthorized control over property—a means recognized as a lesser offense. 270 Kan. at 600–01 (cases cited).”
As the discussion in Plummer indicates, under K.S.A. 21–3107(2)(a), a defendant may be convicted of a given crime or a lesser degree of the same offense based on a single criminal act but not both. The statute codifies double jeopardy protections against multiple punishments for one crime contained in the Fifth Amendment to the United States Constitution and in § 10 of the Kansas Constitution Bill of Rights. See State v. Sprung, 294 Kan. 300, 277 P.3d 1100, slip op. at 9–10 (May 4, 2012) (describing constitutional error in multiplicitous charges); State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010) (same).
The ultimate issue as to whether two charges are multiplicitous presents a question of law. Sprung, slip op. at 10; Colston, 290 Kan. at 971.
Because the theft, as charged, was a lesser degree of the robbery, the convictions were improperly multiplicitous if they arose out of the same criminal act. The Kansas Supreme Court has recognized four factors to be considered in determining if a defendant has engaged in a single criminal act or more than one act: (1) closeness in time; (2) common location; (3) a “causal relationship” between the acts, particularly the absence of intervening events; and (4) a “fresh impulse” motivating some of the conduct. Sprung, slip op. at 10; State v. Schoonover, 281 Kan. 453, 497, 133 P.3d 48 (2006). Applying those factors to this case, we find the taking of the car and its contents happened at the same time and from the same place. There were no intervening events. And nothing suggests a separate “impulse” animating the taking of the car and the taking of the personal items.
The State suggests the theft did not occur until Romero abandoned the car and kept some of Thiele's personal property while leaving other items behind. But that belies the nature of the offense and settled law describing when a theft is complete. The crimes of theft and robbery are completed once the perpetrator exercises dominion or control over the property. State v. Long, 234 Kan. 580, 585, 675 P.2d 832 (1984) (“[T]he crime of robbery is complete when the robber takes possession of the property....”); State v. Saylor, 228 Kan. 498, 500–01, 618 P.2d 1166 (1980) (“[W]here a customer in a self-service store conceals on his person ... property of the store and has the requisite specific criminal intent, that customer has committed a theft....”). The thief need not carry the property away to complete the crime. Long, 234 Kan. at 585 (“[T]he element of asportation is no longer required to complete the crimes of theft or robbery.”). Here, the theft was complete when Romero drove away. He exercised control over the personal property, including the items he kept when he abandoned the car. The evidence shows, too, that Romero was aware of the personal property. Thiele testified that the man in the car was rummaging through her purse while she approached him. The convictions for robbery and theft were multiplicitous. They constituted a single criminal act. The situation was comparable to the robber who takes a wallet, watch, and ring from the victim. That is one robbery, not three. And there is no theft later if the robber takes the credit cards and cash from the wallet and then drops the wallet in a dumpster.
We, therefore, vacate Romero's conviction for misdemeanor theft. Because the district court imposed the sentence for the theft to be served concurrently with the sentences for the other offenses, we need not remand for any adjustment in the punishment.
Eyewitness Jury Instruction
Romero contends the jury instruction on eyewitness testimony was erroneous because it referred to “the degree of certainty” of an identification of the defendant as a factor to be considered in weighing that evidence. He says the error deprived him of a fair triaL While the instruction was erroneous, we conclude, based on recent Kansas Supreme Court authority, that the deficiency does not require reversal of Romero's convictions for robbery and aggravated battery.
The district court used PIK Crim.3d 52.20 without objection from the State or Romero. The instruction provides:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
Because Romero did not object, we must determine if the instruction was clearly erroneous. State v. Hall, 292 Kan. 841, 857, 257 P.3d 272 (2011). Clear error arises if the instructions as a whole misstate the law as applied to the facts of the case, creating a real possibility that the jury would have rendered a different verdict were the defective instruction rendered correctly. 292 Kan. at 857.
In recent years, there has been some confusion regarding the factors to be included in the cautionary instruction on eyewitness identification. See State v. Mitchell, 294 Kan. 469, 275 P.3d 905, slip op. at 11–12 (May 11, 2012); State v. Reid, 286 Kan. 494, 515–18, 186 P.3d 713 (2008). The sixth factor in PIK Crim.3d 52.20 concerning the witness' certainty in making an identification has been the subject of dispute. 286 Kan. at 515–18. We need not jump into that morass because the Supreme Court addressed this precise issue in two decisions published last May. Mitchell, 294 Kan. 469, Syl. ¶ 4;State v. Anderson, 294 Kan. 450, Syl. ¶ 2, 276 P.3d 200, slip op. Syl. ¶ 2 (May 11, 2012). Those cases hold that inclusion of witness certainty in PIK Crim.3d 52.20 as a factor to be considered amounts to error.
After surveying the scientific literature on eyewitness identification, the Kansas Supreme Court concluded the studies present a mixed bag, with some suggesting a witness' certainty about the correctness of his or her identification may be inversely related to the actual accuracy while others suggest a direct relationship between expressed certainty and actual accuracy. Mitchell, slip op. at 14–16. In sum, the court found that the studies “are not definitive” and “the literature suggests certainty may not always be as reliable an indicator of accuracy.” Mitchell, slip op. at 14–16. Accordingly, witness certainty no longer should be included as a factor in PIK Crim.3d 52.20. Mitchell, 294 Kan. 469, Syl. ¶ 4;Anderson, 294 Kan. 450, Syl. ¶ 2. The court expressed the holding this way:
“Jurors should not be instructed that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony. As worded in PIK Crim.3d 52.20, this factor prompts the jury to conclude that an eyewitness identification evidence is more reliable when the witness expresses greater certainty. PIK Crim.3d 52.20 should be modified accordingly.” Mitchell, 294 Kan. 469, Syl. ¶ 4.
See Anderson, 294 Kan. 450, Syl. ¶ 2 (same).
But the Kansas Supreme Court also recognized the error created with that language may be harmless. Mitchell, 294 Kan. 469, Syl. ¶ 5;Anderson, 294 Kan. 450, Syl. ¶ 3. In assessing the effect of the inclusion of witness certainty in the instruction, the reviewing court must: “(a) decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed.” Mitchell, 294 Kan. 469, Syl. ¶ 5. In turn, “[i]f the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including this factor in the jury instructions.” Mitchell, 294 Kan. 469, Syl. ¶ 5.
The circumstances in both Anderson and Mitchell shed light on what constitutes a witness' expression of certainty about an identification. In Mitchell, a witness reviewed a photographic lineup and told the law enforcement officer he was “100 percent certain” the individual he picked out committed the crime. The officer had the witness write the number of the photograph he identified and his comment about being certain on the photo lineup. That evidence was offered and admitted at trial, so the jury was aware of the witness' expression of certainty. Mitchell, slip op. at 16.
In Anderson, a witness met with law enforcement officers to review a video tape taken around the time of the crime to determine if he could identify the perpetrator. The witness identified Anderson and told the officers “something like ‘that's the MF that did it right there.’ “ Anderson, slip op. at 13. At trial, the witness made an in-court identification of Anderson and then repeated his selection of Anderson from the video tape, recounting the colorful language he used with the officers. The Kansas Supreme Court found that the coarse description of the perpetrator did not equate to an expression of any particular degree of certainty about the correctness of the identification. Anderson, slip op. at 13.
We have reviewed pertinent portions of the record, including Thiele's testimony at trial and at the preliminary hearing. In her trial testimony, Thiele identified Romero as the man she saw in her car. But she expressed no particular degree of certainty about the identification. As we have mentioned, Romero's lawyer highlighted circumstances that could cast doubt on the accuracy of Thiele's identification, including the lighting conditions and the suddenness of the incident. He also pointed out Thiele's hesitancy about her identification at the preliminary hearing.
At trial, the sheriff's detective showing Thiele the photographic lineup testified about that process and Thiele's identification of Romero at that time. The detective told the jury Thiele “immediately picked Mr. Romero out of the lineup.” According to the detective she said, “That's the mother fucker [ sic ] that did it.' “
Nothing in Thiele's trial testimony conveyed “an expression of certainty” about her identification of Romero. A contrary conclusion would render any unqualified identification the equivalent of a certain one. Although Thiele did not equivocate in her identification with words of tentativeness—“I think it's him” or “he looks like the person” or “it might be the guy”—she did not go the other way and embellish the identification with words of certitude. Thiele simply pointed out Romero in the courtroom as the man she saw drive away in her car. As we read Mitchell and Anderson, Thiele communicated “no degree of certainty” in her testimony, and, therefore, the jury could not have been misled by PIK Crim.3d 52.20. Mitchell, 294 Kan. 469, Syl. ¶ 5;Anderson, 294 Kan. 450, Syl. ¶ 3.
The detective's testimony about the photographic lineup doesn't inject an expression of certainty about that identification. That Thiele may have “immediately” picked Romero's photograph is not an expression or a statement. Neither Mitchell nor Anderson suggests a witness' lack of hesitancy in making an identification should be construed as some communication of certainty. Trying to draw such an inference would be a doubtful business. How long is too long? A person might take longer than necessary just to be certain, so an unexplained delay in making an identification wouldn't automatically equate to doubt or confusion. As in Anderson, Thiele's choice of words to describe the suspect she picked from the lineup does not translate to an expression of certainty.
This case falls within those in which a jury would not have been misled by the inclusion of the witness certainty language in PIK Crim.3d 52.20. Here, moreover, the standard is actually higher, since Romero's lawyer made no objection to the instruction. Given the extensive cross-examination of Thiele about her identification of Romero, the use of the standard instruction could not have been clearly erroneous. Romero has failed to present grounds for reversal based on the eyewitness identification instruction.
Absence of Proximate Cause Instruction
Romero contends the district court should have given the jury an instruction on proximate cause pertaining to Thiele's physical injury as an element of the aggravated battery charge. Romero did not request such an instruction, so we ask whether its absence amounted to clear error, the same standard applied to the eyewitness identification issue. We find no error in the failure to instruct on proximate cause.
Romero was charged with reckless aggravated battery resulting in bodily harm to Thiele when the manner of the criminal action could have resulted in great bodily harm, disfigurement, or death. K.S.A. 21–3414(a)(2)(B). In pertinent part, the instruction informed the jury that to convict Romero it had to find: “That the defendant recklessly caused bodily harm to another person[,] Kasandra N. Theile [ sic ], in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The district court provided no definition for either reckless or causation. Reckless is defined in the Kansas Criminal Code, K.S.A. 21–3201(c) as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious disregard of that danger.” Causation is not statutorily defined. We do not consider the effect, if any, of failing to define reckless for the jurors, since nobody has raised that omission.
On appeal, Romero contends the jury should have been instructed that “the fault or lack of fault of Kassandra Thiele is a circumstance to be considered ... to determine whether the defendant's conduct was or was not the direct cause of [Thiele's] injury.” He says that because Thiele suffered a minor abrasion or scratch to her ankle when she chased after her car as it was driven from her grandparents' home, the jury ought to be allowed to find the physical harm resulted from her decision to intercede, thereby legally absolving the driver of criminal responsibility for that harm. Romero characterizes the issue as one of proximate cause, thus fashioning tort concepts into a criminal defense. If the physical injury to the victim were not attributable to the defendant, the State would fail in proving an element of robbery. Romero cites no directly analogous authority. We find the argument unpersuasive in the first instance and wholly insufficient to establish clear error.
We note several problems with Romero's theory. First, legal fault as it bears on causation requires breach of a duty owed under the law. That is, a person may be negligent or at fault if he or she fails to act in a way the law requires or acts in a way the law prohibits with respect to the party claiming harm. For example, a driver breaches a legal duty by failing to stop at a red light or by exceeding the posted speed limit. Under the law, a medical doctor owes his or her patient a duty to use reasonable professional care in diagnosing and treating the patient. Here, however, Romero points to no legal duty Thiele owed the man taking her car that she then breached in attempting to prevent the unlawful taking. Thiele invaded no legal right of the robber. To the contrary, Thiele had a lawful right to protect her property and to use reasonable force to do so. K.S.A. 21–3213. Accordingly, Thiele had a legal right to act as she did in approaching the car. Whether or not her actions were especially wise is another matter. But her arguable lack of wisdom does not provide a basis to diminish the criminal responsibility of the man taking her car and her personal belongings in it.
Even if we were to apply proximate cause, Romero would not benefit. Wrongful conduct or breach of a legal duty proximately causes a harm if that harm is a reasonably foreseeable consequence of that conduct or breach. See South v. McCarter, 280 Kan. 85, 103–04, 119 P.3d 1 (2005). The Kansas Supreme Court discussed foreseeability and criminal liability in State v. Anderson, 270 Kan. 68, 76–77, 12 P.3d 883 (2000), and concluded that a criminal defendant would not be absolved of liability even if negligent or reckless conduct of a third-party contributed to the harm to the victim so long as the third-party's intervention and the ultimate harm to the victim were foreseeable results of the original criminal activity. Only if the intervening cause were “so unusual, abnormal, or extraordinary that it could not have been foreseen” would it possibly be a defense to the criminal prosecution. 270 Kan. at 76–77. A defendant need not actually think about or contemplate the mechanism of harm for it to be foreseeable. Rather, the mechanism need only be a reasonably predictable consequence of the criminal conduct.
The courts, for example, reject the notion that a criminal defendant inflicting severe injuries on the victim may avoid a homicide prosecution by arguing that the victim died as a result of a treating physician's negligence. State v. Mays, 277 Kan. 359, Syl. ¶ 12, 85 P.3d 1208 (2004); State v. Kirby, 272 Kan. 1170, Syl. ¶ 2, 39 P.3d 1 (2002). As the Kirby court recognized, tort concepts of proximate cause generally will not be transplanted wholesale to criminal law and a criminal defendant may be absolved of a death “ ‘only if an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death.’ “ 272 Kan. at 1183 (quoting State v. Lamae, 268 Kan. 544, 555, 998 P.2d 106 [2000] [emphasis added by quoting court] ). Medical malpractice is a foreseeable, if thankfully infrequent, result of seeking a physician's care.
The same rules of foreseeability apply to the conduct of the victim in response to a defendant's criminal actions. We quite comfortably conclude that someone taking a car without the permission of the owner reasonably might anticipate the owner would intervene in some manner to prevent the loss. And it is similarly foreseeable that the owner might sustain some physical injury in doing so. The owner's relative caution in responding is legally beside the point. Declining to intervene undoubtedly would be the safer choice and often the wiser one. But that is not the test of proximate cause or foreseeability, especially as applied in a criminal proceeding.
Romero's reliance on State v. Chastain, 265 Kan. 16, 24–25, 960 P.2d 756 (1998), and State v. Collins, 36 Kan.App.2d 367, 370–72, 138 P.3d 793 (2006), is misplaced. Those cases recognized that a causation instruction may be warranted in prosecutions for involuntary manslaughter when a defendant's drunk driving is associated with a homicide, so long as a jury could find that the decedent's “conduct was the sole cause of the death and the defendant's drinking had nothing to do with it.” Chastain, 265 Kan. at 24; see Collins, 36 Kan.App.2d at 371 (same, citing Chastain ). In other words, the victim acted negligently in a way that brought about his or her own death without regard to the defendant's impaired condition.
That rule cannot be applied here, especially in light of the undisputed facts. Given the evidence, Romero cannot make a sound argument that the conduct of the man in the car had nothing to do with Thiele's actions. The taking of the car plainly prompted her resistance and, thus, her injury. Thiele would not have done what she did if her car were not being taken. No reasonable jury could find otherwise. Because the jury found Romero to be the man taking the car, he is legally responsible for the foreseeable response of Thiele, as the victim. Romero's causation argument lacks merit.
Determination of Criminal History
Romero contends the district court improperly considered his criminal history in imposing sentence. He argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. Romero relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition. He also acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The Kansas Supreme Court just reaffirmed its holding in Ivory. State v. Peppers, 294 Kan. 377, 276 P.3d 148, slip op. 4 (May 4, 2012). We, therefore, decline Romero's invitation to rule otherwise.
Affirmed in part and vacated in part.