Opinion
111,136.
05-08-2015
STATE of Kansas, Appellee, v. Chad Duane AMACK, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Chad Duane Amack appeals his conviction for obstructing legal process. First, he argues the State presented insufficient evidence at trial for the jury to find him guilty beyond a reasonable doubt. Second, he argues the district court improperly instructed the jurors that they must follow the law in arriving at a verdict.
Facts
On January 7, 2013, Special Agent Joseph Cox of the Kansas Department of Corrections, Deputy John Peterson of the Shawnee County Sheriff's Office, and Officer Tony Obregon of the Topeka Police Department went to the La Casa Grande Apartments in Topeka to serve an arrest warrant on Amack. Cox had received information that Amack and a female, Kristen Brownlee, were in apartment 101. The officers arrived at the complex at about 9 a.m. and split up. Cox and Obregon went to the management office to gather any background information they could, while Peterson went to the rear of apartment 101 to watch for anyone who might be leaving the apartment.
After collecting information from the management office, Cox went to the front door of the apartment and began to knock. There was a peephole in the door. Cox was wearing a Kevlar vest, and the word “police” was written in large block letters across his chest. The first couple of knocks were not particularly hard or loud. But after Cox began knocking, a dog started to bark at him from inside the apartment. At this point, Peterson saw a tattooed hand lower a safety bar on the back door. The safety bar locked the sliding glass door in place. When Peterson saw this hand, he quickly approached the sliding glass back door and, while slapping the glass, loudly instructed Amack to go to the front door. After Peterson informed Cox that somebody locked the back door, Cox knocked very loudly on the front door, declared that he was a police officer, announced he had a warrant for Amack's arrest, and requested Brownlee or Amack to come to the door.
Cox called for more officers as back up. As he waited for the back-up officers to arrive, Cox repeatedly knocked at the front door, announced his presence, stated he had an arrest warrant for Amack, and tried to get an answer from inside the apartment. While doing so, Cox heard shuffling and bumping inside. Five or 10 minutes after Cox started knocking, maintenance staff working for the complex provided Cox with a key to the apartment. Cox attempted to open the apartment's front door using the key; however, the door would only open a few inches. Nonetheless, Cox continued to knock on the door and make verbal announcements.
Once backup arrived, Shawnee County Sheriff Deputy John Burghart and another officer went to the side of the apartment to watch some of the windows. Burghart successfully opened the bedroom window, from which he could see the main entrance to the apartment. Burghart noticed that a chair, a table, and a mattress were all piled up against the apartment's front door. Burghart announced 5 to 10 times that the sheriff's department was there with a warrant for Amack's arrest and ordered Amack to come to the door.
At some point, Amack came around a comer into Burghart's line of sight, told Burghart that a woman in the apartment was having a seizure, and then opened the back door. Amack was taken into custody at about 10 a.m., roughly an hour after the officers first arrived and between 20 and 30 minutes after Cox obtained the key from maintenance. After taking Amack into custody, the officers entered the apartment and found Brownlee and another male, Jeran Reed, in the residence. Neither Brownlee nor Reed had tattoos on their hands, but Amack did.
As a result of these events, Amack was charged with one count of obstructing legal process. A jury later convicted him of that offense. Amack now appeals his conviction.
Analysis
Sufficiency of the evidence
When reviewing the sufficiency of the evidence following a conviction in a criminal case, the appellate court looks at all the evidence in a light most favorable to the prosecution and determines whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). This court will not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. A conviction may be based entirely on circumstantial evidence and the reasonable inferences deducible from that evidence. State v. McCaslin, 291 Kan. 697, 710–11, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 395, 402, 324 P.3d 1046 (2014).
K.S.A.2014 Supp. 21–5904(a)(3) prohibits “knowingly obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.” In order for a defendant to be found guilty under K.S.A.2014 Supp. 21–5904(a)(3), it must be shown that the defendant substantially hindered or increased the burden of the officer carrying out his or her official duty. See State v. Parker, 236 Kan. 353, Syl. ¶ 5, 690 P.2d 1353 (1984). In addition, the defendant must have reasonable knowledge that he or she is opposing a police officer. State v. Gasser, 223 Kan. 24, 30, 574 P.2d 146 (1977). Finally, the obstruction must be directed against the officer named in the complaint. State v. Lee, 242 Kan. 38, 42, 744 P.2d 845 (1987).
Although apparently conceding that he barricaded and locked doors to prevent Cox from entering the apartment, Amack argues his conviction for obstruction cannot be sustained because there was no evidence that Cox (1) attempted to enter the apartment or (2) would have entered the apartment but for the barricaded and locked doors. But the record contradicts Amack's assertion that Cox never tried to enter the apartment. Cox testified that he obtained a key to apartment 101 from the maintenance staff at the complex and attempted to open the front door; however, the door would only open a couple of inches.
But even if there had been no evidence that Cox attempted to enter or would have entered the apartment but for the barricaded and locked doors, such evidence is not necessary to sustain a conviction for obstructing legal process. Our Supreme Court established long ago that the term “obstruct” as used in K.S.A.2014 Supp. 21–5904 “does not necessarily imply the employment of direct force or the exercise of direct means. It includes any passive, indirect, or circuitous impediments to the service or execution of process, such as hindering or preventing an officer by not opening a door. ” (Emphasis added.) See State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 (1956). Here, after Cox began knocking on the door, he identified himself as a police officer and announced that he had a warrant for Amack's arrest. Therefore, in addition to the evidence that Amack actively resisted his arrest by barricading the front door, there was also evidence that he passively obstructed Cox by failing to open the door after Cox announced that he was a police officer and was there to serve an arrest warrant on Amack.
Amack compares his conviction to State v. Everest, 45 Kan.App.2d 923, 256 P.3d 890 (2011), rev. denied 293 Kan. 1109 (2012). In that case, a panel of this court overturned Everest's conviction for obstruction of official duty. Everest was stopped for not having a properly illuminated license tag. He did not have a driver's license on him and provided a false name when the officer asked about his identity. He also smelled of alcohol and had watery eyes, but he denied having anything to drink. The arresting officer contacted dispatch and was informed that dispatch had no record of the name Everest had provided. It only took about 3 minutes for the officer to check with dispatch and return to his DUI investigation. Everest was eventually arrested, and the officer found a card displaying Everest's true identity during a search of his car. This court reversed his conviction for obstruction of official duty because Everest's true identity was quickly established before his lie caused any substantial burden on the police officer. 45 Kan.App.2d at 930.
But this case is clearly distinguishable from Everest. In Everest, the defendant's false identification only distracted the officer from his ongoing DUI investigation for about 3 minutes. Further, the investigation alleged to have been obstructed was not even dependent on knowing the defendant's true identity. Conversely, Cox was not investigating a crime in this case. Rather, Cox was attempting to complete the singular task of serving Amack with an arrest warrant. Amack prevented Cox from doing so for a significant period of time. Although Cox knocked, announced that he was a police officer, and informed Amack that he had an arrest warrant, Amack did not respond and did not answer the door. When Cox later received a key from maintenance, he was blocked from entering the apartment by several household items that had been stacked against the front door. It was not until 20 to 30 minutes after Cox tried to enter the apartment that Amack finally surrendered.
Viewed in a light most favorable to the prosecution, a rational factfinder could have concluded that Amack substantially hindered Cox or increased Cox's burden by both passively and actively preventing him from serving the arrest warrant. Given that Amack does not challenge the sufficiency of the evidence relating to any other element of the crime of obstructing legal process, his point of error on this issue is without merit.
Jury instruction
Amack claims the district court erred by instructing the jury that it must follow the law in arriving at a verdict. Amack cites two instructions given to the jury that he believes were erroneous in this regard. The first was when the trial judge said, “I will give you instructions about the law that you must apply” before the jury left the courtroom the day before closing arguments. The second was when, prior to deliberation, the court instructed the jury that the “verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.” Amack argues instructing the jury that it must follow the law in arriving at a verdict necessarily deprived the jury of its right to render a verdict contrary to the evidence or the law, a practice referred to as jury ification.
When jury instructions are challenged for the first time on appeal, as here, this court reviews the instructions for clear error. See K.S.A.2014 Supp. 22–3414(3). This requires a two-step analysis. First, this court must determine whether there was an error in the instruction, which is a question of law subject to unlimited review. If an error exists, then the court must determine whether reversal is required. To reverse, this court must be firmly convinced that the jury would have reached a different verdict had the error not occurred. This requires a de novo determination based on a review of the entire record. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Jury ification has been defined by a prior panel of this court as:
“ ‘A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness. [Citation omitted.]” Silvers v. State, 38 Kan.App.2d 886,
888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008).
Certainly, “ ‘[j]ury ification is always a possibility.’ “ 38 Kan.App.2d at 890. If a defendant can present admissible evidence that plays on the jurors' sympathies or notions of right and wrong, there is nothing to stop a jury from acquitting the defendant, regardless of the law or the evidence. See 38 Kan.App.2d at 890–91. Nevertheless, we are not persuaded instructing the jury that it must follow the law in arriving at a verdict deprives the jury of its right to render a verdict contrary to the evidence or the law.
In State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011), the Kansas Supreme Court explained that “[i]t is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no matter how draconian it might be.” On the other hand, our Supreme Court recently held that “a jury instruction telling the jury it ‘must’ or ‘will’ enter a verdict” was improper. State v. Smith–Parker, 301 Kan. 132, Syl. ¶ 6, 340 P.3d 485 (2014). The court held that the wording of such an instruction came too close to “directing a verdict for the State. A judge cannot compel a jury to convict, even if it finds all elements proved beyond a reasonable doubt.” 301 Kan. at 164.
Unlike the instruction provided by the court to the jury in Smith–Parker, however, the instruction in this case did not direct the jury to enter a particular verdict; instead, the instruction simply directed the jury that it must follow the law. This instruction is in line with the one sanctioned in State v. Pennington, 254 Kan. 757, 764, 869 P.2d 624 (1994). In that case, our Supreme Court held the following instruction provided sufficient direction to the jury: “ ‘You should decide the case by applying these instructions to the facts as you find them.’ “ 254 Kan. at 764. The court went on to say that using the stronger term “ ‘must’ “ in place of “ ‘should’ “ in that instruction would be a better practice. 254 Kan. at 764. The propriety of instructing a jury that it must apply the instructions to the facts as it finds them is consistent with the Supreme Court's earlier decision in State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973), which held that “it is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.” And directing the jury to follow the law also is consistent with the jury's oath to reach a verdict founded upon the evidence presented and the law as instructed, see K.S.A.2014 Supp. 60–247(d), and the legislature's directive that, when trial is by jury, questions of law shall be decided by the court and issues of fact shall be determined by the jury, K.S.A. 22–3403(3).
For the reasons stated above, we find the jury's inherent power to ify existed regardless of the instructions at issue here; accordingly, we conclude the district court did not err by instructing the jury to follow the law in reaching its verdict.
Affirmed.