Appeal from Sedgwick District Court; Eric R. Yost, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric R. Yost, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
A jury convicted Daniel L. Calhoun of nine felony offenses resulting from his participation in a home invasion. He was sentenced to 330 months' imprisonment. On appeal Calhoun raises a jurisdictional issue; contests the sufficiency of evidence; and alleges instructional error, judicial misconduct, and prosecutorial misconduct. Lastly, he invokes the cumulative error rule.
We conclude Calhoun's jurisdictional argument is without merit, and he has failed to demonstrate trial error, judicial misconduct, or prosecutorial misconduct. His convictions are affirmed. Calhoun participates in a home invasion
In the early morning hours of May 16, 2009, Calhoun and three other men committed a home invasion in Wichita, Kansas, ostensibly to rob its occupants of money and drugs. However, once they gained admittance, horrific acts were committed to intimidate and degrade S .E.C., her common-law husband, Donald, and their three small children. Calhoun does not dispute that the evidence presented at trial was sufficient to establish all of the crimes of conviction were committed by one or more of the four participants. His complaint is, in part, that he did not personally commit some of the crimes for which he was convicted and in fact distanced himself from the atrocities that were perpetrated. In short, Calhoun admits the home invasion but argues its purpose was to commit a robbery of money and drugs and he was not a participant in the reign of terror that resulted after the four men gained entry to the residence. Aiding and abetting is not a separate crime that must be charged
Calhoun argues that the State's failure to specifically charge him with aiding and abetting, as a separate crime, rendered the charging document insufficient to confer subject matter jurisdiction upon the district court. The Kansas Supreme Court has consistently rejected this argument and has held that the State need not charge aiding and abetting in the charging document in order to pursue a theory of accomplice liability at trial. See e.g., State v. Amos, 271 Kan. 565, Syl. ¶ 2, 23 P.3d 883 (2001); State v. Pennington, 254 Kan. 757, Syl. ¶ 4, 869 P.2d 624 (1994); State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976). This court is duty bound to follow precedent from the Kansas 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). There is no evidence to suggest that the Kansas Supreme Court is considering a departure from this line of precedent. Calhoun's jurisdictional argument fails. The evidence supports the jury verdicts
Calhoun was charged as a principal. However, pursuant to K.S.A. 21–3205, the district court also gave an aiding and abetting instruction to the jury:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime, with intent to promote or assist in its commission, is criminally responsible for the crime committed, regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.
“In addition, a person is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime, or mere presence in the vicinity of the crime, or mere failure to stop or report the crime, is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime, the defendant must willfully and knowingly associate himself with the unlawful venture, and willfully participate in it as he would in something he wishes to bring about or make succeed.”
Calhoun contends that with the exception of the aggravated burglary charge, the State failed to present sufficient evidence that he acted as a principal in the commission of any other crime. As a result, he argues that his convictions must be reversed and a new trial granted. In support, Calhoun relies on a holding in State v. Boyd, 46 Kan.App.2d 945, 268 P.3d 1210 (2011), petition for rev. filed January 23, 2012; cross-petition for rev. filed February 6, 2012. In Boyd, the court held that a defendant
“[f]acing liability for a crime as an aider and abettor, on the one hand, creates an alternative means to committing the same offense as a principal, on the other. The danger to jury unanimity ... [citation omitted] that exists when a jury has been instructed on alternative means of committing a particular crime also exists if the jury has been given the options of convicting a defendant as an aider and abettor or as a principal.” 46 Kan.App.2d 945, Syl. ¶ 5.
The State points out that there is a split amongst the panels of our court as to whether K.S.A. 21–3205 establishes alternative means of committing a crime. See State v. Snover, 48 Kan.App.2d 298, 287 P.3d 943 (2012), petition for rev. filed December 10, 2012.
Although Boyd and Snover set the plate for the Kansas Supreme Court to resolve the conflicting opinions of our court, we decline to jump into the fray or add fuel to the fire. Unfortunately for Calhoun, he has failed to recognize an additional holding in Boyd that fits to a tee the factual circumstances of this case and the district court's aiding and abetting instruction that captured both K.S.A. 21–3205(1) and (2).
The Boyd panel held:
“K.S.A. 21–3205(2) imposes liability on a person committing a crime in league with one or more associates for any other crimes those associates commit during the perpetration of the planned offense, so long as the additional crimes may be considered foreseeable consequences. That rule of liability does not depend upon or create alternative means of committing a crime. Rather, the statute expands liability or responsibility for an individual engaged in a criminal enterprise to include crimes other participants may have committed in the course of carrying out that enterprise. The individual need not have committed the crime itself to be liable for it.” 46 Kan.App.2d 945, Syl. ¶ 6.
Calhoun acknowledges his involvement in such a venture for facilitating a robbery, and he concedes that the State's evidence was sufficient to prove his guilt for the crime of aggravated burglary as either an aider and abettor or a principal. Consequently, as long as the other crimes for which Calhoun was convicted were a reasonably foreseeable consequence of the intended crime, i.e., robbery, Calhoun is equally guilty despite his actual level of participation in the commission of those other crimes.
Whether a crime is reasonably foreseeable as a probable consequence of committing the intended crime depends upon the facts of each case. See State v. Warren, 252 Kan. 169, 173, 843 P.2d 224 (1992), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). The “ ‘[d]efendant has a heavy burden, for the necessary intent and foreseeability may be inferred from circumstantial evidence [citation omitted] and is a fact question for jury determination. [Citation omitted.]’ “ Warren, 252 Kan. at 173.
Primarily, “ ‘[i]f a crime is inherently dangerous to human life, it would be foreseeable that an aggravated felony might occur.’ [Citations omitted.]” 252 Kan. at 173. Robbery and aggravated burglary are both inherently dangerous felonies. K.S.A. 21–3436(a)(3), (10). Thus, foreseeability can be established as a matter of law, as the additional acts of violence in this case, i.e., aggravated robbery, aggravated criminal sodomy, aggravated battery, criminal threat, aggravated kidnapping, and attempted voluntary manslaughter, are considered a foreseeable consequence of the inherently dangerous felony Calhoun intended to commit.
The crux of Calhoun's argument appears to be that the evidence presented at trial supports findings contrary to those made by the jury. Calhoun argues that any evidence presented by the State concerning foreseeability was sufficiently countered by his testimony; in fact, Calhoun asserts that his testimony indicating that he did not “expect any of the other crimes to occur denied the State the ability to prove that he also believed that such acts were probable.” Calhoun's argument is without legal merit. In making a sufficiency of the evidence determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Such decisions are solely within the province of the trier of fact, and appellate courts will not overturn a verdict simply because the evidence failed to exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
The evidence was sufficient to convince a rational factfinder that the crimes committed in furtherance of the robbery were reasonably foreseeable. The testimony given by M.D., a fellow participant, together with that of S.E.C. and her husband, Donald, demonstrate that Calhoun either participated directly in the additional acts of violence or that he failed to oppose his companions' violent acts and continued to willing commit an aggravated burglary while these acts were being committed. Calhoun's continued participation belies the notion that his companions' criminal behavior surprised him. Calhoun and his companions planned to commit a robbery inside a dwelling during the middle of the night, a time when the home's occupants were likely to be inside. In order to succeed in this venture, it was foreseeable to all involved that it would be necessary for some of the participants to subdue the occupants, by whatever means necessary, in order to steal their money or valuables. As explained by a panel of this court:
“ ‘ “... [P]ersons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent. Thus, the burglary statutes prescribe greater punishment for a criminal act committed within the domicile than for the same act committed on the street. Where, as here, the criminal act underlying the burglary is an assault with a dangerous weapon, the likelihood that the assault will culminate in a homicide is significantly increased by the situs of the assault. When the assault takes place within the domicile, the victim may be more likely to resist the assault; the victim is also less likely to be able to avoid the consequences of the assault, since his paths of retreat and escape may be barred or severely restricted by furniture, walls and other obstructions incidental to buildings. Further, it is also more likely that when the assault occurs in the victim's domicile, there will be present family or close friends who will come to the victim's aid and be killed....” [Citation omitted.]’ “ State v. Stout, 37 Kan.App.2d 510, 516–17, 154 P.3d 1176,rev. denied 284 Kan. 950 (2007).
Based on our review of the record, the jury was entitled to find the circumstantial evidence indicating that the additional crimes were foreseeable to Calhoun was more credible and compelling than Calhoun's testimony to the contrary. Consequently, because the evidence is sufficient to establish that the crimes Calhoun and his companions committed in furtherance of the robbery were reasonably foreseeable to Calhoun, Calhoun's convictions are upheld. A conviction under the legal theory of K.S.A. 21–3505(2) does not present an alternative means issue. There was no instructional error
Calhoun contends that this court must reverse his conviction for aggravated criminal sodomy because the district court's definition of “sodomy” in Jury Instruction 10 established alternative means for commission of the offense and the State failed to present sufficient evidence to support each of the alternative means. At trial, Calhoun did not object to the district court's instruction defining sodomy.
As we have already noted, the State's theory of prosecution was that each of the four participants committed the crimes as principals or as aiders and abettors. S.E.C. was taken to a garage on the property and forced to perform fellatio by two of the invaders. One of the two men then sodomized her. The remaining crime of aggravated sodomy by fellatio of a third man occurred in the living room of the home. As a consequence, Calhoun was charged with four counts of aggravated criminal sodomy pursuant to K.S.A. 21–3506(a)(3)(A), and the jury convicted Calhoun of only one of the four counts; specifically, the act of fellatio that occurred in the living room.
K.S.A. 21–3506(a)(3)(A) defines aggravated criminal sodomy as a nonconsensual act of “sodomy” precipitated by force or fear, and according to K.S.A. 21–3501(2), “sodomy” includes “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.”
Consistent with K.S.A. 21–3506(a) and K.S.A. 21–3501(2), the district court provided the jury with the following instruction for the count for which Calhoun was convicted:
“In Count Three, the defendant is charged with the crime of aggravated criminal sodomy ( oral, in the living room ). The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant engaged in sodomy with S.E.C.;
“2. That the act of sodomy was committed without the consent of S.E.C. under circumstances when she was overcome by force or fear; and
“3. That this act occurred on or about May 16, 2009, in Sedgwick County, Kansas.
“ ‘Sodomy’ means oral contact of female genitalia or oral contact of the male genitalia or anal penetration, however slight, of a male or female by any body part or object.” (Emphasis added).
Parenthetically, we would observe the definition of sodomy was repeated in the other three jury instructions charging aggravated sodomy in the garage.
Calhoun argues that the definition of sodomy in K.S.A. 21–3501(2) establishes distinct alternative means of committing the offense and, consequently, the court's definition violated his right to a unanimous jury verdict because the State failed to present any evidence that “oral contact with female genitalia or anal penetration” occurred in the living room.
In State v. Britt, 295 Kan. 1018, 1024–25, 287 P.3d 905 (2012), the Kansas Supreme Court addressed whether K.S.A. 21–3501(2) creates alternative means of committing sodomy and concluded that the statute provides three means of commission: “(1) oral contact with male or female genitalia; (2) anal penetration of a male or female; and (3) sexual acts between a person and an animal.” But in reaching this conclusion, the court specifically found that the “definition of oral contact used in the statute—‘oral contact or oral penetration of the female genitalia or oral contact of the male genitalia’—does not contain alternative means. Instead, the definition refers to various types of oral contact of either the male or female genitalia.” 295 Kan. at 1025. Thus, in this case, the district court's definition of “sodomy” only contained two means of committing the offense, oral contact and anal penetration.
However, although the definition of “sodomy” in Instruction 10 contained alternative means, we conclude Calhoun received a unanimous jury verdict because the elements portion of the instruction limited jury consideration to the single means of committing aggravated sodomy: “the defendant is charged with the crime of aggravated criminal sodomy (oral, in the living room).” Obviously, the better practice may have been for the district court to have given a definition of “sodomy” tailored to the circumstances as alleged under each of the four aggravated sodomy charges, but we do not believe Instruction 10 presents a legitimate alternative means issue. Accordingly, because the elements portion of Instruction 10 informed the jury to consider only “oral, in the living room,” Calhoun's argument is without merit. Calling S.E.C. a victim does not constitute judicial misconduct
Calhoun claims that the district judge committed reversible judicial misconduct when he told the jury that the written jury instructions contained the complaining witness' initials, rather than her full name, because court rules prohibit use of the actual name of any sexual assault victim. Calhoun alleges that he is entitled to a new trial because the following statement informed the jury that S.E.C. was a victim of sexual assault, a factual finding for the jury:
“I will tell [you that] throughout these instructions we make reference to a person with the initials S.E.C. You should note that stands for [victim's name]. We do that because it is against court rules to put in a court file, which these instructions will eventually end up in, the actual name of any victim of sexual assault. So that's why S.E.C. is in there, but whenever I say S.E.C ., it says [victim's name].”
At the outset, Calhoun failed to lodge a contemporaneous objection to this statement, and he raises this issue for the first time on appeal. The Kansas Supreme Court, however, has held that allegations of judicial misconduct are reviewable on appeal despite the lack of a contemporaneous objection when the defendant alleges that the judge violated his or her right to a fair trial. State v. Kembie, 291 Kan. 109, 113, 238 P.3d 251(2010).
When determining whether judicial comments, other than jury instructions, rise to the level of judicial misconduct, appellate courts “exercise unlimited review of the particular facts and circumstances of each case.” Kembie, 291 Kan. at 113. “The complaining party has the burden to establish that misconduct occurred and that the misconduct prejudiced the party's substantial rights. “ ‘If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.’ “ [Citations omitted.]” 291 Kan. at 113.
Primarily, as the State argues, “the error which [Calhoun] now complains poisoned the jury's unbiased deliberative process and necessitates a new trial, is one of his own making.” At the instruction conference, the following discussion ensued between Calhoun's counsel and the district judge:
“[Calhoun's Counsel]: ... [J]ust as a reminder, to explain to the jury why we're calling her S.E.C. and not [her full name].
“THE COURT: Okay. I will again try to remember to do that.
“[Calhoun's Counsel]: And the reason I say that is because the Court will say rules say we can't put a victim of a sexual assault's name in the court files in any way, we have to use initials. I don't know if we need to use initials when reading it to the jury, but it is how it's written and
“THE COURT: Well, these are going to be made part of the Court file and so I will tell the jury, before I begin reading the instructions, that S.E.C. means [the victim's name). And I'll explain—I assume you have no objection to my explaining why?
“[Calhoun's Counsel]: Right.” (Emphasis added.)
We also conclude a reasonable construction of the district judge's statement renders it unobjectionable, as S.E.C. was in fact a victim of sexual assault. M.D. admitted at Calhoun's trial that he raped S.E.C. on May 16, 2009, and the State admitted a copy of his plea agreement into evidence, which proves that he pled guilty to this offense. The district judge did not commit judicial misconduct. There was no prosecutorial misconduct
In closing argument the prosecutor argued Calhoun was liable for criminal offenses reasonably foreseeable as a probable cause of committing aggravated robbery and aggravated burglary. See K.S.A. 21–3205(2). Calhoun contends the prosecutor misstated the law and the comments made to the jury constitute prosecutorial misconduct.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011).
In closing argument, the prosecutor stated:
“So the aiding and abetting instruction, the defendant is liable for a crime in pursuance of an intended crime if reasonably foreseeable as a probable consequence of committing the crime intended. So you know, you look at all the evidence, you look at the actions. You look at what the defendant told you, but again, actions speak louder than words.
“So do you believe the defendant on all these things that he said? He first said he went there to rob, he told the detective. Oh, but then he said he didn't go there to rob. Oh, then he said he went there to get weed, or we had no plan, or he went there to get the keys to the garage, or he went there to get money, or he went there to help his grandma with money. So he says all these things to try to mitigate his involvement, mitigate his intentions.
“... Is it foreseeable that all these other crimes would happen when they went in there to do these violent crimes? You decide was the shooting, the attempted murder, [and] the sex crimes foreseeable?”
Then, during the rebuttal argument, the prosecutor made the following comments:
“And is it foreseeable? You know, he would love for you to only hold, you know, each person accountable for what they did, but that is not Kansas law. It's not Kansas law. Agendas change throughout a crime when something happens. You know, they're going in there to rob them of money and they have no money, agendas change.
“Well, let's rob ‘em of something else, let's rape her, let's take the DVD instead of the money, oh, let's get the jewelry instead of the money, agendas change as events change. And that's what happened here.
“When four masked men, armed, go into the home in the middle of the night is it foreseeable that they'll get all the adults in one room so nobody can escape to call the police, so nobody, you know—so they can go about their business in the house? Yes.
“Is it foreseeable that they will rape, sodomize, anally and orally, the pretty wife because they didn't find any money? Is it foreseeable that they will shoot the husband when he won't tell ‘em where the money is? Yes. Is it foreseeable that they will shoot and beat the husband almost to the point of killing him, because they're so mad because their crime that they wanted to commit didn't happen?
“Is it foreseeable that they would go try to steal other stuff, DVDs, jewelry, all that kind of stuff, because they didn't get the money that they wanted to get? Yes. This case is not about Isaac Little committed attempted murder, this case is not about [M.D.] committed the rape in the bedroom, this case is not about Christopher Thompson committed the oral sex and the anal sex in the garage.
“Now ... if you build a house you have the plumber, the electrician, you have maybe a decorator, you have all different people doing their specific jobs, in the end they're all building a house. In this case everybody had something different to do, but in the end they all together committed these crimes. That's what aiding and abetting is, it's defendant or another, they don't have to specifically be the one with the gun, they don't have to specifically be the one that puts their penis in someone's anus, they don't have to specifically be the one that shoots someone in the torso two times, that shoots someone in the head....
“This case is about these four Musketeers, all for one, one for all. That's Kansas law. When you go in to commit a violent crime and more violence happens, that more violence is foreseeable. Find him guilty as charged.”
In order for a defendant to be guilty under a theory of aiding and abetting, the jury must find that he or she “ ‘wilfully and knowingly associate[d] himself [or herself] with the unlawful venture and wilfully participate[d] in it as he [or she] would in something he [or she] wishes to bring about or to make succeed.’ “ State v. Tyler, 286 Kan. 1087, 1095, 191 P.3d 306 (2008). Under K.S.A. 21–3205(1), a person is criminally responsible for a crime committed by another if he or she “intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” And such person is also liable “for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” K.S.A. 21–3205(2). Whether a crime is reasonably foreseeable depends upon the facts of each case. See Warren, 252 Kan. at 173.
We conclude that none of the statements Calhoun claims were objectionable rise to the level of prosecutorial misconduct; the prosecutor's comments communicated the law with respect to reasonable foreseeability. As the comments appear to be within the wide latitude a prosecutor is allowed in discussing evidence, it is unnecessary to engage in the second step of a prosecutorial misconduct analysis. There has been no showing of cumulative error
Calhoun contends it is necessary to reverse his convictions because the cumulative effect of these errors substantially prejudiced him and deprived him of the right to a fair trial.
When conducting a cumulative error analysis, appellate courts aggregate “all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless.” State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
However, when the record fails to support the errors raised on appeal by the defendant, cumulative error will not be found. State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Curiously, in his written brief, Calhoun raises incidentally two issues that were not briefed on appeal or presented in oral argument. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). We conclude cumulative error did not deny Calhoun the right to a fair trial.