Opinion
No. 111,173.
2015-02-27
STATE of Kansas, Appellee, v. Trae' Vin–Mel THOMAS, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.Rick Kittel, of Kansas Appellate Defender Office, for appellant.Ethan Zipf–Sigler, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Ethan Zipf–Sigler, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Trae' Vin–Mel Thomas directly appeals the jury's verdict finding him guilty of one count of aggravated robbery, contending we should reverse his conviction because (1) the district court was clearly erroneous when it failed to instruct the jury on the lesser included offense of robbery and (2) the district court erred when it admitted evidence of bullets recovered from his bedroom. We disagree and affirm Thomas' conviction.
Factual and Procedural Background
On April 17, 2012, at approximately 10 p.m., Victor Mansilla was working in his front yard when an SUV stopped near his house and two black males, both with their faces covered, exited the vehicle, one from the front passenger's side and one from behind the driver's side. According to Mansilla, the male who exited from the front passenger seat of the SUV was holding a “pistol.” The males asked Mansilla where he kept his money and then forced him to give them his wallet, cell phone, and keys. The males left the scene in the SUV after requiring Mansilla to lie on the ground.
Later, shortly after midnight on April 18, 2012, Van Hong returned home from work. As he parked his car in his backyard, Hong saw three black males with their faces covered approaching him, one of whom was carrying a “small automatic handgun.” After attempting to open Hong's locked car door, the males ordered Hong to open the door. After Hong complied, one of the males sprayed Hong's face with pepper spray, and Hong fell to the ground.
The males demanded money, and Hong threw his wallet toward them. The males also took a bag from the passenger seat of Hong's car that contained a laptop and other portable electronics. Hong then heard the males run away. He remained on the ground for approximately 2 minutes before going inside to wash his face and call the police.
Detective Edward Howard testified that police were able to identify the SUV used in the robberies as belonging to the grandmother of Semaj Foster, one of the three suspects. Through their investigation, police identified the other two suspects: Jamal Washington and Thomas. Police interviewed Washington, who admitted he was involved in the robberies, confirmed details of both, and told police that Thomas and Foster were the other two males involved.
During their investigation, police executed a search warrant of Thomas' house and found bullets in his bedroom closet. Thomas filed a motion in limine at the beginning of the trial to exclude the evidence of the bullets, arguing they were not relevant because no witness would testify that Thomas had a gun and no gun was ever recovered. The district court ordered the evidence of the bullets excluded unless the State presented testimony that there was a firearm that belonged to Thomas.
Washington pleaded guilty to aggravated robbery and was sentenced to probation in exchange for his testimony at Thomas' trial. Washington testified that he and Foster had robbed Mansilla while Thomas waited in the SUV. Washington also testified he used a gun provided by Thomas during the first robbery. Next, Washington testified that he, Foster, and Thomas had all participated in robbing Hong. Washington did not know whether a gun was used when they robbed Hong. The gun allegedly used in the robberies was never found.
Following Washington's testimony, the court permitted the State to introduce evidence of the bullets found in Thomas' bedroom closet. However, prior to Howard's testimony, Thomas renewed his objection to the testimony of the bullets. Howard testified the bullets found in Thomas' closet were consistent with handguns and some rifles.
Thomas asserted an alibi defense and presented testimony from his parents that Thomas was at home on April 17 and 18 and never left the house. Thomas also testified he was home with his parents at the time the robberies took place. With respect to the bullets found in his closet, Thomas testified that he found them in the street and took them home because he was fascinated by them. Thomas claimed he neither owned nor had possession of a firearm.
The district court instructed the jury on two counts of aggravated robbery; the first count pertained to the robbery of Mansilla, and the second count pertained to the robbery of Hong. Thomas did not ask the court to instruct the jury on robbery as a lesser included offense of aggravated robbery. The jury could not reach a verdict on count 1 and found Thomas guilty on count 2. The district court sentenced Thomas to 66 months' imprisonment with the Kansas Department of Corrections.
Thomas timely appeals.
Did the District Court Err by Not Instructing the Jury on the Lesser Included Offense of Robbery?
When issues concerning a jury instruction are raised for the first time on appeal, an appellate court will only reverse if it determines the district court was clearly erroneous. State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012); see State v. Armstrong, 299 Kan. 405, 431–32, 324 P.3d 1052 (2014). This analysis involves two steps. Williams, 295 Kan. at 515–16. First, we determine whether there was an error in the instruction through an unlimited review of the record; an instruction is erroneously omitted if it would have been legally and factually appropriate. 295 Kan. at 515–16, 521. Second, under a de novo review, if we find the district court erred, then we must determine whether the error was clearly erroneous, that is, whether we are “firmly convinced the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. at 516. The burden of showing clear error is on the defendant. 295 Kan. at 516. A. The district court erred by not instructing the jury on robbery as a lesser included offense of aggravated robbery.
Instructing the jury on robbery as a lesser included offense of aggravated robbery was legally appropriate.
“When an appellate court considers the legal appropriateness of an instruction, ‘appellate review is unlimited, as with all questions of law.’ [Citation omitted.] More specifically, in the context of lesser included offense instructions, an appellate court asks whether the lesser crime is ‘legally an included offense of the charged crime.’ [Citation omitted.]” Armstrong, 299 Kan. at 432.
Here, robbery is legally an included offense of aggravated robbery; thus, it would have been appropriate to instruct the jury on robbery.
“When an appellate court considers the factual appropriateness of a lesser included offense instruction, the determination is guided by the standard in K.S.A. 22–3414(3).” Armstrong, 299 Kan. at 432.
“[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge. K.S.A. 22–3414(3) directs that ‘where there is some evidence which would reasonably justify a conviction of some lesser included crime ..., the judge shall instruct the jury as to the crime charged and any such lesser included crime.’ (Emphasis added.)” Williams, 295 Kan. at 521–22.
Thomas argues the evidence produced at trial factually supported giving a jury instruction of robbery as a lesser included offense of aggravated robbery on count 2. While Thomas concedes that Hong testified one of the males held a gun during the robbery, Thomas also points to Washington's testimony that he did not see a gun during the second robbery. Additionally, Thomas cites his own testimony that he does not own or possess a firearm.
The State counters by asserting there is no testimony offered from any witness that a robbery took place where a handgun was not present. We question this because, in light of the evidence discussed above, the jury reasonably could have believed that the three males did not use a gun during the second robbery despite Hong's testimony. Therefore, we have to conclude it would have been factually appropriate for the district court to instruct the jury on robbery as a lesser included offense of aggravated robbery.
Because it was both legally and factually appropriate for the district court to instruct the jury on robbery as a lesser included offense of aggravated robbery, we must find the district court erred in not doing so. B. The district court's failure to give a lesser included instruction was not clear error.
Having determined the district court erred in failing to instruct the jury on robbery as a lesser included offense of aggravated robbery, we must next determine whether we are firmly convinced the jury would have reached a different verdict had the error not occurred. The jury could have reasonably believed Hong's testimony that a gun was used during the robbery, or the jury could have reasonably believed Thomas' and Washington's testimony that a gun was not present. It is not possible to decide with any certainty that the jury would have convicted Thomas of robbery had it been instructed on that offense. Therefore, because the district court's error does not constitute a clear error, we will not overturn Thomas' conviction on that basis. See Armstrong, 299 Kan. at 436–37 (finding no clear error where the evidence “left many options available to the jury”).
Did the District Court Abuse Its Discretion When It Admitted Evidence of Bullets Found in Thomas' Bedroom?
Generally, all relevant evidence is admissible. K.S.A. 60–407(f). K.S.A. 60–401(b) defines “ ‘[r]elevant evidence’ “ as “evidence having any tendency in reason to prove any material fact.” This definition encompasses two elements: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261–62, 213 P .3d 728 (2009).
Evidence is material when the fact it supports is in dispute or at issue in the case; review for materiality is de novo. State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). Evidence is probative if it has a logical tendency to prove any material fact. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013). However, even if evidence is relevant, a trial court has the discretion to exclude it where the court finds its probative value is substantially outweighed by its potential for producing undue prejudice. K.S.A. 60–445. We review the district court's assessment of the probative value of evidence under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 959–60, 318 P.3d 140 (2014). A. The bullets are material.
Thomas argues the bullets were not material because there was no link between the gun allegedly used during the robberies and the bullets found in Thomas' closet. He asserts that because the descriptions of the gun provided by Mansilla and Hong were vague and generic, and because no gun was produced at trial, it is not possible to know whether the gun could have fired the bullets found in his closet. Without this basis, according to Thomas, there is no material use for the bullets.
The State responds the bullets are material because they have a tendency to show that Thomas had access to a firearm, which corroborates Washington's testimony that Thomas provided the gun used to rob Mansilla. The State also contends the bullets discredit Thomas' testimony that he did not have possession of or access to a firearm. As stated, evidence is material when the fact it supports is in dispute or at issue in the case. Bowen, 299 Kan. at 348. Because the questions of whether Thomas possessed a firearm and whether he provided the firearm used in the robberies are disputed, the bullets are material. B. The bullets are not prejudicial.
Thomas argues the evidence of the bullets was highly prejudicial because it allowed the jury to make negative inferences about him that were not justified by the other evidence on the record. He contends the evidence of the bullets allowed the jury to improperly infer that Thomas must have been involved in the robberies and provided the gun used in the robberies.
However, Thomas ignores Washington's testimony, which maintained that Thomas was involved in the robberies and provided the gun that, at the very least, was used in the robbery of Mansilla. The jury, based on Washington's testimony alone, may have properly concluded that Thomas was involved in the robberies and provided the gun. The presence of ammunition in Thomas' bedroom, therefore, could not lead the jury to an impermissible inference. Moreover, Thomas' possession of bullets is not itself a crime that could lead a jury to make an improper inference about his character. Therefore, the district court did not abuse its discretion in admitting this evidence.
Affirmed.