Opinion
No. 108,010.
2013-08-2
STATE of Kansas, Appellee, v. Dwight STEVENSON, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Rachel Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district X attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Rachel Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district X attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dwight Stevenson appeals his convictions of aggravated assault and misdemeanor battery. He argues: (1) the district court erred in allowing the State to violate an agreed-upon order in limine excluding testimony of Stevenson's use of cocaine 2 days prior to the incident that led to the charges in this case; and (2) there was insufficient evidence to sustain his conviction of aggravated assault because the State failed to present evidence that the victim was placed in reasonable apprehension of immediate bodily harm. Stevenson also argues the district court violated his constitutional rights when it increased his punishment by requiring him to register as a violent offender. Finding no reversible error, we affirm Stevenson's convictions and the district court's order requiring him to register as a violent offender.
Stevenson was involved in an automobile accident. Several emergency personnel, including Chris Vales, responded. Vales found Stevenson sitting in the driver's seat of the wrecked car. He put a neck collar on Stevenson, but Stevenson resisted. Stevenson asked Vales if he was a cop, and Vales told him he was not. While Vales was attempting to immobilize Stevenson's spine, Stevenson pulled out a fixed blade hunting knife and pointed it at Vales who was 9 or 10 inches away. Vales thought that he was going to be stabbed, so he reacted instinctively and grabbed the knife and threw it outside the car.
When Vales turned back toward Stevenson, Stevenson punched him in the face with his closed fist breaking Vales' glasses and caused some minor lacerations and bruising around his eye. The police quickly handcuffed Stevenson, immobilized him on a spine board, and removed him from the car.
After Stevenson was transported to the hospital, the police searched Stevenson's car and found a cigarette package containing marijuana cigarettes that were wet with a substance. Another officer went to the hospital to investigate further. That officer found Stevenson to be uncooperative, pulling on the neck collar and using profanities. The officer heard Stevenson tell the nursing staff that he had smoked marijuana around 3 p.m. earlier that day. Stevenson denied pulling “a knife on anybody because he was under the influence of PCP.” Stevenson told the officer that he had smoked marijuana, and he would test positive for marijuana, PCP, and cocaine.
Stevenson was charged with aggravated assault and misdemeanor battery.
On the morning of trial, and after the jury had been selected, the State moved pursuant to K.S.A.2012 Supp. 60–455 for the court to admit evidence of Stevenson's drug use. Stevenson presented his motion in limine to exclude evidence of his past misdeeds, which he had filed 3 days earlier. Before any ruling by the court, the prosecutor stated: “I believe we have an agreement that the officers can testify to defendant's apparent being under the influence ... and then statements by the defendant regarding being under the influence or illicit drug use at the hospital.” Defense counsel agreed, with one clarification:
“I guess to clarify, the statements he had in the reports, I think it says that there was cocaine use a couple days prior. So I ask that that come out, but there was admission about PCP.
....
“[J]ust to restate what the State is proposing is, his suspected use of illegal drugs, based on his behavior or his own admission ... and then just statements that he makes at the hospital on the way to jail regarding his drug use.”
The prosecutor responded, “I think we are in agreement there.”
At trial, police officer Aaron Mattson was permitted to testify, over Stevenson's objection, that Stevenson said “he had smoked marijuana, and he had stated that he would be testing positive for marijuana, PCP and cocaine.” When asked whether Stevenson told him when he had used these drugs, the officer did not directly respond, but his testimony seemed to suggest that the drugs had been consumed on the day of the auto accident. On cross-examination, Mattson was asked whether he thought Stevenson was under the influence of drugs when he first spoke with Stevenson within 30 minutes after the accident. Mattson said he did.
Officer Teddy Wisely then testified, over Stevenson's objection, that he spoke to the hospital medical staff who told him that Stevenson said he used marijuana at around 3 p.m. on the day of the accident, that he used cocaine 2 days earlier, and that he had used PCP earlier on the day of the accident.
Stevenson did not testify, nor did he call any witnesses or offer any evidence. In closing argument the prosecutor said, “He gets to the emergency room. He still won't tell them his name, but he can tell them every drug he's taken in the last three days. He can tell you when he smoked the dope, when he took the cocaine, when ... he was on PCP that day.” In her closing argument, defense counsel argued that the auto accident caused serious damage to Stevenson's vehicle. Stevenson was diagnosed with a concussion. He was confused and did not recall the accident. He was not aware of what was going on when Vales came to his aid. Thus, he is not criminally culpable for his aggressive actions towards Vales after the accident.
The jury convicted Stevenson of both charges. Stevenson was sentenced to 23 months in prison and was directed to register under the Kansas Offender Registration Act (KORA) because he was convicted of a person felony committed with a deadly weapon. Stevenson appeals.
Drug Use Evidence
Following the court's bench conference at the beginning of trial, at which the parties' agreement was spelled out for the court, the court entered a motion minute sheet stating that Stevenson's motion in limine was granted “as set forth on record by agreement.” Stevenson now argues that the court erred in allowing the State to violate the agreement and the order in limine by introducing evidence regarding his cocaine use.
It is important to remember that there is no challenge to the propriety of the order in limine. The only issue relates to its enforcement. Officer Mattson testified that Stevenson said he would fail a test for cocaine, but the inference from this testimony was that Stevenson had ingested cocaine on the day of the accident. The only testimony about cocaine use before the day of the accident came from Officer Wisely who said Stevenson told him he had used cocaine 2 days earlier. As stated in State v. Galloway, 268 Kan. 682, 692–93, 1 P.3d 844 (2000):
“A two-part test evaluates alleged violations of [an order] in limine. First, there must be a determination that there was a violation of the order in limine. Second, if the order in limine is violated, there must be a determination that the testimony elicited in violation of the order substantially prejudiced the defendant.”
Mattson's testimony did not violate the order in limine and the parties' agreement, but Wisely's testimony did. The first part of the test in Galloway has been met.
The remaining issue is prejudice. We find none here Stripped to the essentials, Stevenson's position is that evidence that he smoked marijuana and ingested PCP on the day of the accident did not violate the order in limine. But when the State introduced evidence of cocaine use 2 days earlier, that evidence alone vas so prejudicial as to swing the jury from a verdict of not guilty to guilty. We don't buy it. There was plenty of evidence of drug use that was consistent with the agreement of the parties and the agreed order in limine. We are satisfied that the cumulative evidence of other drug use had no effect on the jury's verdict. See State v. Ward, 292 Kan. 54?, Syl. ¶ 6, 256 P.3d 801 (2011).
But Stevenson now argues on appeal that the evidence of his cocaine use was evidence of prior bad acts excluded under K.S.A.2012 Supp. 60–455, and the district court failed to do the proper analysis before admitting this evidence of prior bad acts.
In his motion in limine filed 3 days before trial, Stevenson made no claim that evidence of drug use would violate K.S.A.2012 Supp. 60–455. When the court took up the motion at the beginning of trial, Stevenson's counsel made no reference to K.S.A.2012 Supp. 60–455 as a basis for relief.
With respect to the State's motion pursuant to K.S.A.2012 Supp. 60–455 for the court to admit evidence of Stevenson's drug use, Stevenson did not argue against it. To the contrary, he agreed to the district court entering an order which would permit the admission of testimony about certain drug use. With respect to testimony about the use of cocaine, the parties agreed that such testimony should be excluded (as we discussed earlier), but Stevenson never argued that such testimony would violate K.S.A.2012 Supp. 60–455. Thus, the district court was never asked to analyze the testimony under the standards applicable to K.S.A.2012 Supp. 60–455 evidence. In fact, because of the parties' agreement the district court made no analysis whatsoever. The court simply sustained the motion “by agreement.” Having invited the district court to enter its order without any analysis of the K.S.A.2012 Supp. 60–455 evidence, Stevenson can hardly be heard now to complain that the district court erred in failing to do so. See State v. Bello, 289 Kan. 191, 193, 211 P.3d 139 (2009).
When Officer Wisely testified to Stevenson's use of cocaine 2 days before the accident, defense counsel made no objection based on K.S.A.2012 Supp. 60–455. She merely said she was objecting “based [on] my prior objection.” We take that to mean her earlier objection to Officer Mattson's testimony that Stevenson said on the day of the accident that he would test positive for marijuana, PCP, and cocaine. At that time, defense counsel simply argued that the testimony was contrary to the order in limine: “I thought that was dealt with in [the] motions, that we weren't going to talk about that drug use, because he said he used cocaine two days ago.”
Stevenson also claims on appeal that the evidence of his drug use 2 days before the accident was irrelevant. But he failed to assert before the district court any objection to the officer's testimony based upon relevancy.
If a timely and specific objection to the evidence is not made when it is introduced at trial, the defendant is generally precluded from challenging its admissibility on appeal. See State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 255 (2008) (defendant objected on sole basis of hearsay; thus, she failed to preserve for appeal the issue of the inadmissibility of the evidence under K.S.A. 60–455); State v. Francis, 282 Kan. 120, 138, 145 P .3d 48 (2006) (defendant was precluded from raising K.S.A. 60–455 issue on appeal because he failed to object on that basis at trial). Stevenson's objections were to the State's violation of the agreed order in limine, not to the inadmissibility of the testimony under K .S.A.2012 Supp. 60–455 and not to the inadmissibility of the testimony on the grounds of relevancy.
Stevenson has failed to preserve for appellate review any claimed trial court error based upon K.S.A.2012 Supp. 60–455 or relevancy. But Officer Wisely's testimony about cocaine use 2 days before the accident violated the agreed order. Nevertheless, allowing Officer Wisely to testify about Stevenson's cocaine use was harmless.
Sufficiency of Evidence of Aggravated Assault
Stevenson also argues that the evidence was insufficient to support aggravated assault because the State failed to present evidence that Stevenson knowingly placed Vales in reasonable apprehension of immediate bodily harm. The district court rejected this argument in denying Stevenson's motion for a new trial.
In our consideration of this issue, we examine the evidence in the light favoring the State to determine whether a rational factfinder could have found Stevenson guilty beyond a reasonable doubt. See State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In doing so, we do not reexamine the credibility of:he witnesses, nor do we reweigh the evidence. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
A conviction can be based on circumstantial evidence if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008). If an inference is a reasonable one, the jury has the right to make such an inference. State v. Drayton, 285 Kan. 689, 711, 175 P.3d 861 (2008).
Aggravated assault is defined as an “assault, as defined in subsection (a), committed: (1) With a deadly weapon.” K.S.A.2012 Supp. 21–5412(b)(l). Assault is defined as “knowingly placing another person in reasonable apprehension of immediate bodily harm.” K.S.A.2012 Supp. 21–5412(a).
Stevenson claims there was no evidence that Vales was knowingly placed in reasonable apprehension of immediate bodily harm. But the uncontradicted evidence was that Stevenson pulled out a fixed blade hunting knife and pointed it at Vales' chest when Vales was only 9 to 10 inches away. Vales thought he was going to be stabbed by Stevenson, so he grabbed the knife and threw it aside.
But Stevenson claims that Vales was not actually afraid during this incident. He principally relies on State v. Warbritton, 215 Kan. 534, 537–38, 527 P.2d 1050 (1974), to support his argument that Vales had no reasonable apprehension of bodily harm. In Warbritton, the victim denied that she was afraid or thought the defendant would harm her. The court held: “In the face of positive testimony such as this we cannot say, as urged by the district attorney, that the circumstances were such that, as a matter of law, [the victim] had fear for herself.” 215 Kan. at 538.
Here, although Vales did not affirmatively state he was afraid, he never claimed he was not afraid. But he did testify that he thought Stevenson was going to stab him. From this testimony the jury was entitled to reasonably infer that Vales was placed in reasonable apprehension of bodily harm, which it did. See Drayton, 285 Kan. at 711. We conclude that a rational factfinder could have found Stevenson guilty beyond a reasonable doubt of the crime of aggravated assault.
Offender Registration
For his final point, Stevenson argues the district court requiring him to register as an offender violated his constitutional rights by increasing his punishment without submitting the matter to the jury in accordance with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 435 (2000). At sentencing, the district court made a finding on the record that Stevenson was required to register under the Kansas Offender Registration Act (KORA) because he used a deadly weapon during the commission of his crime. KORA, K.S.A. 22–4901, et seq. , requires registration by offenders; that is, any person who “on or after July 1, 2006, is convicted of any person felony and the court makes a finding on the record that a deadly weapon was used in the commission of such person felony.” K.S.A.2012 Supp. 22–4902(e)(2).
This is a new argument Stevenson is raising for the first time on appeal. Nevertheless we may consider it because it alleges a violation of fundamental rights under the Sixth and Fourteenth Amendments to the United States Constitution. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). A constitutional challenge is a question of law over which our review is unlimited. State v. Carr, 274 Kan. 442, 444–45, 53 P.3d 843 (2002).
This court has previously rejected the argument that Apprendi applies to a finding that results in offender registration. See State v. Chambers, 36 Kan.App.2d 228, 239, 138 P.3d 405,rev. denied 282 Kan. 792 (2006). Additional panels of this court have agreed with the holding of Chambers. See, e.g., State v. McCall, No. 107,112, 2013 WL 1149682 (Kan.App.2013) (unpublished opinion), petition for review filed April 16, 2013; State v. Weis, 47 Kan.App.2d 703, 717–19, 280 P.3c. 805 (2012), petition for review filed July 16, 2012; State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), rev. denied April 8, 2013.
In Chambers, the court recognized the distinction between sentences and punishment. 36 Kan.App.2d at 237–39. An increased sentence implicates the principles set out in Apprendi, but an increased punishment does not. Chambers, 36 Kan.App.2d at 237. An order to register as an offender does not increase the sentence imposed beyond the statutory maximum; therefore, Apprendi does not apply. Chambers, 36 Kan.App.2d at 239. In addition, the United States Supreme Court has concluded that sex-offender registration accessible by the public on the Internet is not punitive. See Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003).
We adopt the reasoning of Chambers, which relies on Supreme Court precedent in rejecting the argument that Apprendi applies in such situations. This final claim of error fails.
Affirmed.