Opinion
No. 107,977.
2013-07-5
STATE of Kansas, Appellee, v. Daniel L. WEITZEL, Appellant.
Appeal from Sumner District Court; R. Scott McQuin, Judge. Lydia Krebs, of Kansas Capital Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge.
Lydia Krebs, of Kansas Capital Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Daniel L. Weitzel appeals his jury conviction of aggravated battery and the 27–month prison sentence imposed as a result. For the reasons stated below, we affirm in part, reverse in part, and remand with directions.
Facts
On July 26, 2011, around 10 p.m., Weitzel had an altercation with Gaylen Reedy in downtown Caldwell, Kansas. The State charged Weitzel with one count of criminal threat and one count of battery, a class B person misdemeanor, or, in the alternative, one count of aggravated battery, a severity level 7 person felony.
At trial, Reedy testified that he had been preparing to water the city's flower beds, which he had done as volunteer work for the city since 2004, when Weitzel approached him and asked Reedy to let him water the flowers and “sign off on 27 hours of community service.” Reedy said that Weitzel had a quart or 40–ounce beer bottle in each hand, one of which he was drinking from and the other of which was in a paper sack. Reedy said he declined to sign off on Weitzel's community service, but Weitzel continued to “pester” him, so he told Weitzel that if he would sit on the bench and watch, Reedy would sign off on 1 hour of community service. Reedy testified that Weitzel said he did not want to do that.
Reedy said he then stepped inside the flower beds to water the middle portion and Weitzel followed him, “kicking flowers as he came” and damaging them. Reedy testified that he held his arm out toward Weitzel and they backed out of the flower beds. Reedy said he then rescinded his offer and told Weitzel to go on his way, but Weitzel responded by spitting on the flowers. Reedy testified that he squirted Weitzel in the face for about 2 seconds with water using the light shower setting of a sprayer attached to the hose. Reedy said Weitzel then struck him in the side of the head with one of the two beer bottles, knocking him off balance. The two then scuffled on the sidewalk until Weitzel's cousin showed up and separated them.
Caldwell Police Officer Chad Lorenz testified that when he arrived at the scene Weitzel was walking away from Reedy, holding a 40–ounce bottle in each hand. Officer Lorenz said Reedy had abrasions on his elbows and knees, a red mark on his head, and a small amount of blood on his face. Caldwell Police Officer Alan Albright arrived, made contact with Weitzel, and retrieved the two beer bottles. The officers placed Weitzel under arrest and transported him to the county jail. On the way to the jail, Weitzel began kicking the back of the front seat, spat on the partition between the front and back seats, and told Officer Lorenz, “ ‘I'm going to kill you.’ “
After this testimony, the district court instructed the jury that it could convict Weitzel of battery if it found he had “intentionally caused physical contact with another person in a rude, insulting or angry manner” and that it could convict him of aggravated battery if it found he had done so “in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The district court also instructed the jury to consider each charge separately.
The jury convicted Weitzel of both misdemeanor battery and aggravated battery but acquitted him of criminal threat. The district court acknowledged that it could only sentence Weitzel on one of the two battery convictions and, based on Weitzel's criminal history score, imposed the standard 27–month prison sentence for the crime of aggravated battery. Although the State presented no evidence at the sentencing hearing to support its request that Weitzel pay restitution for Reedy's medical treatment and the district court never stated at sentencing that it was imposing restitution, the journal entry ordered Weitzel to pay $536.30 in restitution.
Analysis
1. Jury Instructions
Weitzel first claims on appeal that the district court committed clear error in instructing the jury on misdemeanor battery and aggravated battery as alternative charges rather than instructing the jury that misdemeanor battery is a lesser included offense of aggravated battery. He claims that, had the district court properly instructed the jury, there is a real possibility the jury would have convicted him only of the lesser included offense of misdemeanor battery.
The Kansas Supreme Court has set forth an analytical framework for instructional issues with corresponding standards of review. The first step is a reviewability inquiry under an unlimited standard of review, which is directly impacted by K.S.A. 22–3414(3). The next step is to use an unlimited review to determine whether there was an error, i.e., whether the instruction was legally appropriate. The third step is to perform a reversibility inquiry under a clearly erroneous test, reviewing the entire record and using a de novo determination. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012); State v. Simmons, 295 Kan. 171, 174–75, 283 P.3d 212 (2012).
When reviewing challenges to jury instructions, this court is required to consider all of the instructions, reading them as a whole. “If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.” State v. Winters, 276 Kan. 34, 37, 72 P.3d 564 (2003) (quoting State v.. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 [2000] ).
An appellate court does not weigh conflicting evidence, evaluate witnesses' credibility, or redetermine questions of fact. In re Adoption of Baby Girl P., 291 Kan. 424, 430–31, 242 P.3d 1168 (2010).
Weitzel's counsel neither requested nor objected to the court's failure to give a lesser included offense instruction at trial; Weitzel raises the issue for the first time on appeal. Nevertheless, K.S.A. 22–3414(3) conveys jurisdiction and preserves for appellate review any claim that the instruction error was clearly erroneous even in the absence of a proper objection. Williams, 295 Kan. at 515. Thus, Weitzel's claim is properly reviewable by this court.
Under K.S.A.2011 Supp. 21–5109(b), a defendant may be convicted of either the crime charged or a lesser included crime but not both. A lesser included crime is a lesser degree of the same crime or a crime where all elements of the lesser crime are identical to some of the elements ofthe crime charged. K.S.A.2011 Supp. 21–5109(b)(1)–(2). Battery is “knowingly causing physical contact with another person when done in a rude, insulting or angry manner” under K.S.A.2011 Supp. 21–5413(a)(2), and aggravated battery is “knowingly causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted” under K.S.A.2011 Supp. 21–5413(b)(1)(C). Misdemeanor battery is thus a lesser included offense of aggravated battery because it is a lesser degree of the same crime and because all of the elements of misdemeanor battery are identical to some of the elements of aggravated battery. See State v. Williams, No. 102,615, 2010 WL 4156759, at *12 (Kan.App.2010) (unpublished opinion) (Leben, J., dissenting) (“Aggravated battery involving any bodily harm is a lesser included offense of aggravated battery involving great bodily harm,” citing Winters, 276 Kan. at 37–39 .),affd295 Kan. 506. Indeed, the State concedes that battery is a lesser included offense of severity level 7 aggravated battery.
It is error to instruct the jury on a crime and a lesser included offense of that crime as if they are alternative charges, rather than to instruct the jury that one of the crimes is a lesser included offense of the other. See Winters, 276 Kan. at 39. In this case, the district court instructed the jury on battery and aggravated battery. It also provided the following instruction:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged.”
However, the district court did not give the jury the PIK Crim. 4th 68.080 instruction, which informs the jury that one crime is a lesser included offense of another; that the jury may find the defendant guilty of the principal offense, the lesser included offense, or not guilty; and that ‘ “[w]hen there is a reasonable doubt as to which of the two ... offenses defendant is guilty, [the defendant] may be convicted of the lesser offense only.”
The State does not argue that the jury instructions were correct; instead, it focuses on whether giving the instructions was clear error. When a defendant fails to request or does not object to the trial court's failure to give a lesser included offense instruction, it is reversible error only if the failure to give the instruction was clearly erroneous. See K.S.A.2011 Supp. 22–3414(3); State v. Harris, 293 Kan. 798, 806, 269 P.3d 820 (2012). Notably, the Kansas Supreme Court recently revisited the clearly erroneous standard for reviewing jury instruction issues such as the one presented here. See State v. Trujillo, 296 Kan. 625, 630–32, 294 P.3d 281 (2013); Williams, 295 Kan. at 518.
In Williams, our Supreme Court disapproved of a standard that requires the reviewing court to reach “ ‘a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict’ “ in favor of a standard that requires the reviewing court to be “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. at 515–516.
In Trujillo, the Supreme Court reaffirmed the standard cited in Williams and did so—not because it disapproved of the “real possibility” standard—but instead because it did not “discern a practical difference between the [two] tests.” Trujillo, 296 Kan. at 631. We remain duty bound to follow precedent from our Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Thus, Weitzel's claim of instructional error will be assessed to determine whether we are “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” See Williams, 295 Kan. at 516. The burden to show clear error under K.S.A.2011 Supp. 22–3414(3) is on the defendant. 295 Kan. at 516.
We begin our assessment by comparing the erroneous instructions to the instructions the jury would have received had it been correctly instructed to determine if there was a real possibility the jury's verdict was affected by the error. See Winters, 276 Kan. at 39. In this case, as our Supreme Court in Winters noted: “The jury should have been advised of the lesser included offenses and the verdict possibilities” and then instructed according to PIK Crim. 4th 68.080. See 276 Kan. at 39–40. As the State observes, however, a jury is presumed to follow the instructions given to it. See State v. Reid, 286 Kan. 494, 521, 186 P.3d 713 (2008). Moreover, a jury that has convicted a defendant is presumed to have believed the State's evidence and to have drawn from that evidence all inferences favorable to the State. State v.. Raskie, 293 Kan. 906, 920, 269 P.3d 1268 (2012).
Here, the jury evidently found Weitzel had committed battery in a manner whereby great bodily harm can be inflicted when it found him guilty of aggravated battery. Nonetheless, Weitzel argues on appeal that he did not strike Reedy with the beer bottle with enough force to cause great bodily harm because Reedy's face was only “swollen” afterwards. This argument would have us reweigh the evidence, which this court does not do. See In re Adoption of Baby Girl P., 291 Kan. at 430–31. Whether a victim has suffered great bodily harm is a question of fact for the jury to decide. Williams, 295 Kan. at 523. Regardless of the absence of a lesser included offense instruction, the jury in this case was instructed to consider each crime charged separately, uninfluenced by its decision on any other charge, so we may presume that it followed this instruction and believed the State's evidence on the aggravated battery charge. See State v. Brown, 34 Kan.App.2d 746, 765, 124 P.3d 1035 (2005), aff'd283 Kan. 658, 157 P.3d 624 (2007).
Because the jury found the facts supported the elements of aggravated battery separately from misdemeanor battery, there is no reason to believe a lesser included offense instruction would have changed this finding. Thus, there is no basis to conclude the failure to give a lesser included offense instruction had any effect on the jury's verdict. See Brown, 34 Kan.App.2d at 765–66 (“As in Winters, the jury in this case considered each charge separately and found Brown guilty of both involuntary manslaughter while under the influence of alcohol and driving under the influence of alcohol. We find no basis to conclude that the failure to give a lesser included offense instruction had any effect on any of the verdicts.”); State v. Sullivan, No. 90,053, 2004 WL 835864, at *7 (Kan.App.2004) (unpublished opinion) (“Even though the jury was provided with the option of acquitting the defendant of attempted manufacture of methamphetamine while still convicting him of possession of ephedrine, the jury clearly found that the evidence supported a conviction for attempted manufacture of methamphetamine. As a result, there is no real possibility that, had the requested lesser included instruction been given, the jury would have returned a different verdict.”).
In light of this assessment, we are not firmly convinced that the jury would have convicted Weitzel of only the lesser included offense of misdemeanor battery if the error here had not occurred; thus, the instructions were not clearly erroneous. Although the jury should have received the lesser included offense instruction, the error was not clear error requiring reversal.
2. Restitution
Weitzel next contends that because the State presented no evidence to support the imposition of restitution and the district court never ordered Weitzel to pay restitution at the sentencing hearing, the district court erred by including an order for restitution in the journal entry of judgment. He requests this court either vacate the district court's order for restitution or remand to the district court with directions to file an order nunc pro tunc correcting the journal entry.
Notably, the State concedes that the transcript of the sentencing hearing shows that the district court did not order restitution and in turn concedes that the order imposing restitution in the journal entry of judgment was legally improper. We therefore reverse the district court's order of restitution and remand with directions to vacate the order of restitution.
3. Criminal History
Weitzel also asserts that the State's failure to include his prior convictions in the complaint and prove them to a jury beyond a reasonable doubt violated his Sixth and Fourteenth Amendment rights under the United States Constitution according to Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. The constitutionality of a sentencmg statute is a question of law subject to unlimited appellate review. State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009).
Under Apprendi, any fact that increases the maximum penalty for a defendant must be put before a jury and proved beyond a reasonable doubt. 530 U.S. at 490. However, the Kansas Supreme Court has held that the use of criminal history to calculate the presumptive Kansas Sentencing Guidelines sentence does not violate due process as interpreted by Apprendi. State v. Bogguess, 293 Kan. 743, 755, 268 P.3d 481 (2012) (affirming State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 [2002] ).
The Ivory decision relied upon language from Apprendi indicating that proof of prior convictions as sentencing enhancements need not be submitted to a jury and proved beyond a reasonable doubt. The Ivory court held that Apprendi did not require a jury finding of the fact of a prior conviction beyond a reasonable doubt in order for the prior conviction to be included in a defendant's criminal history score. Ivory, 273 Kan. at 46. The court also rejected the argument that Almendarez–Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the source of the prior conviction exception, had been called into doubt by Apprendi. Ivory, 273 Kan. at 46–47.
Weitzel acknowledges that the Kansas Supreme Court has previously decided this issue adversely to his position but seeks to preserve it for federal review. This court is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. Ottinger, 46 Kan.App.2d at 655. Weitzel proffers no such indication, and his argument fails.
Affirmed in part, reversed in part, and remanded with directions to vacate the order of restitution included in the journal entry of judgment.