Opinion
No. 108,655.
2013-11-22
STATE of Kansas, Appellee, v. Ronald H. BEARD, Jr., Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., SCHROEDER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ronald H. Beard, Jr., was convicted on seven counts: Three counts of attempted first-degree murder; two counts of aggravated battery; one count of aggravated assault; and one count of criminal discharge of a firearm. Beard appeals, claiming he was denied a fair trial due to prosecutorial misconduct, instructing errors to the jury, and three of the counts being multiplicitous. After careful examination of the issues raised, we find no reversible error and affirm the district court.
Facts
Shooting at Club Rodeo
In the early morning hours of July 15, 2011, a fight broke out at Club Rodeo in Wichita. Tim McCoy, Sarah Fischer, Kevin Walker, and Jeffrey Daniels were not involved in the fight and got into their white Ford Crown Victoria to leave the club after the fight started. McCoy, who was driving, flashed his lights at pedestrians to encourage them to move. A black male who was described as wearing a blue and gray or black shirt took offense to the flashed lights and slammed his hands on the hood of the Crown Victoria. Officer Jamie Schepis intervened, and McCoy's Crown Victoria continued to move through the parking lot.
Officer Schepis watched the Crown Victoria move through the parking lot, and noticed a group of people, including the man in the blue and black shirt, following the car and throwing gang signs. Soon after, shots were fired at the Crown Victoria. Walker and Daniels, who were sitting in the back seat of the Crown Victoria, were shot. Walker was struck in the back of the head, and Daniels was struck in the hand and thigh.
After shots were fired, police blocked the exits. The police then stopped a silver Chevrolet Impala driving erratically and trying to leave. Ronald Beard was driving the Impala. Police found a handgun under one of the passengers' seat and also under the driver's seat. A police lineup was conducted with these individuals and Officer Schepis identified Beard, the male wearing the blue and black shirt who slammed his hands on McCoy's Crown Victoria.
Weeks before the shooting at Club Rodeo, a well known gang member of the Crips was killed. It was generally thought the Bloods were responsible for the killing. Walker and Daniels admitted they were formerly Bloods but claimed they were no longer part of the Bloods gang at the time of the shooting. Daniels had been warned to watch out for retaliation from the Crips. Beard and his passengers in the Impala were known members of the Crips.
Trial Testimony
DNA evidence indicated the individuals in the Impala were major contributors of DNA to the firearms, cartridge casings, and bullet fragments found in the parking lot. Beard was the only contributor of DNA to the .45 caliber Glock handgun found in the Impala.
Daniels and several other witnesses testified Beard was one of the shooters and remembered him wearing a blue and gray or black shirt during the shooting. Other witnesses were unable to recognize Beard but did remember one of the shooters wearing a blue and gray or black shirt.
Jury Instructions and Verdict Form
At the close of the State's evidence, Beard moved for judgment of acquittal, which the district court denied. Beard chose not to testify or present any evidence. During the jury instructions conference, Beard asked for his name to be used instead of the generic “the defendant.” The court denied Beard's request, stating the PIK instructions used the term “the defendant.”
With the pending charges of attempted first-degree murder, Beard also requested the instructions contain the lesser included offense of attempted voluntary manslaughter “based on the sudden quarrel prong.” The district court rejected the sudden quarrel, or heat of passion, argument because there was no evidence of a quarrel occurring outside of Club Rodeo. Beard asked for several other instructions including the lesser included offense instruction of attempted aggravated battery. Additionally, Beard wanted a change to the verdict form. The district court denied his request. As to those instructions, Beard does not appeal the district court's decision.
Closing Arguments
In its first closing argument, the State argued to the jury there was “no doubt” the defendant participated in the shootings. When discussing the burden of proof, the State argued there were elements it was required to prove for each offense and stated that for each count the State “is required to prove a couple of things on all of them.”
The State pointed out that premeditation “requires more than an instantaneous, intentional act of taking another's life.” However, the State also noted that premeditation did not require the actors to sit and “draw out a plan.” Beard, in his closing, argued there was no time requirement for premeditation but pointed out an individual had to be more than merely angry to be convicted of premeditation; a plan or intent to kill must have been formed before the act occurred. In its rebuttal, the State reminded the jury Beard went
“to his car, he [got] his gun, he [went] around and he[was] creeping. Why? Because he want[ed] to conceal his identity. This was a premeditated attack on four people in a car. And they all got their guns.... If they didn't think about it beforehand, then why did they walk to the car, get their guns, and then surround that car? Because they wanted to kill him.”
The State contended three gang members were involved in the shooting and Beard was responsible for his crimes as well as those of the other shooters. The prosecutor said he did not have to account for which defendant shot which bullet because Beard was “in for a penny and ... definitely in for the pound.”
Other details regarding the prosecutor's statements during closing arguments will be added as necessary.
Verdict, Sentencing, and Post-trial Motions
Beard was found guilty of seven of the eight charges as he was found not guilty on one of the counts of attempted first-degree murder. Beard filed a motion for new trial and judgment of acquittal, arguing insufficiency of the evidence and prosecutorial misconduct. The district court denied Beard's motion.
Analysis
Beard raises four issues on appeal:
• The State committed prosecutorial misconduct during closing arguments;
• The district court erred in its jury instructions, failing to provide a lesser included jury instructions on attempted voluntary manslaughter and in giving the inferred intent instruction;
• Cumulative error; and
• Three of his convictions are multiplicitous.
Each will be discussed in turn.
Did the State Commit Prosecutorial Misconduct During Closing Arguments?
Beard claims the State committed prosecutorial misconduct during closing arguments by:
• Misstating the law regarding premeditation;
• Misstating the law regarding aiding and abetting;
• Vouching for the credibility of witnesses;
• Providing personal opinion regarding Beard's guilt; and
• Misstating the State's burden of proof.
Beard did not object to the State's closing arguments at trial. However, “a contemporaneous trial objection is not required to review a prosecutorial misconduct claim based on remarks made during voir dire, opening statements, or closing argument. [Citation omitted.]” State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012).
Standard of Review
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. 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. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
“ ‘None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, [22,] 87 S.Ct. 824, 17 L.Ed.2d 705, (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).
Did the State Misstate the Law Regarding Premeditation or Aiding and Abetting?
Beard claims the State misstated the law regarding premeditation and aiding and abetting during closing arguments. A misstatement of controlling law must be reviewed on appeal, regardless of a timely objection at trial, to protect a defendant's right to due process. When a misstatement of controlling law is made deliberately, it is outside the considerable latitude given to prosecutors during their arguments. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
Premeditation
Premeditation, as defined by the Kansas Supreme Court, means:
“ ‘ “T]o have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life.’ “ State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004] ). Several factors may give rise to an inference of premeditation, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. State v.Scott, 271 Kan. 103, 109,21 P.3d 516,cert. denied534 U.S. 1047 (2001). Moreover, premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one. State v. Scott, 271 Kan. at 108 ; see also State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158 (2005) .' State v. Morton, 283 Kan. 464, 474–75, 153 P.3d 532 (2007).” State v. Haberlein, 296 Kan. 195, 205, 290 P.3d 640 (2012).
During closing arguments, the prosecutor told the jury:
“[T]here is no word in premeditation that says that they planned this. We don't have to show that. All we have to do is show they formed the intent or design. And I submit to you, ladies and gentlemen, the evidence suggests that when you go and you shoot 13 times into a car, that the design is there. And they formed that design. You don't have to sit down with a pencil and paper and plan this out and draw it out and send text messages to your buddies. You just have to think about it and then you have to go act upon it. And that's exactly what they did that day.”
Beard claims that the State's closing arguments removed the requirement for consideration prior to the commission of the offense, which is contrary to the definition of premeditation. See State v. Pabst, 268 Kan. 501, 512–13, 996 P.2d 321 (2000). By saying the defendants did not need to have a plan, Beard argues the State removed the need for deliberate forethought, thereby misstating the law of premeditation to the jurors.
However, the State's statements regarding premeditation are not only within the wide latitude permitted to the prosecution, they are in keeping with established Kansas caselaw. “Premeditation does not have to be present before a fight, quarrel, or struggle begins. Premeditation is the time of reflection or deliberation. Premeditation does not necessarily mean that an act is planned, contrived, or schemed beforehand.” State v. Scott, 271 Kan. 103, 108, 21 P.3d 516 (2001).
The prosecution clearly stated it was required to show Beard formed the intent or design prior to acting, which is in keeping with Kansas law. The State's statement that premeditation does not require a plan is correct, as the Supreme Court discussed in Scott . Because the State did not misstate the law regarding premeditation, there is no error, and the second step of the analysis for prosecutorial misconduct is unnecessary.
Aiding and Abetting
Beard next claims the State misstated the law regarding aiding and abetting in premeditated murder cases. According to Beard, the State referenced the group as a whole by using the word “they” repeatedly while defining premeditation. Beard also contests the State's closing comment that, “[I]f you're in for a penny, you're in for a pound. And I submit to you, ladies and gentlemen, [Beard] was in for a penny and he's definitely in for the pound.”
Beard cites to State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (2009), to support his contention the State is required to prove beyond a reasonable doubt the individual defendant had the requisite premeditation to kill. In Overstreet, the defendant was charged with being the driver of a vehicle during a drive-by shooting. Accordingly, the district court instructed the jury on aiding and abetting, as the defendant only assisted the shooter. The Kansas Supreme Court overruled Overstreet's conviction because the jury was instructed that Overstreet was guilty if the crime committed was “reasonably foreseeable,” which contradicts the requirement that the crime be premeditated. Overstreet, 288 Kan. at 13–15.
Beard claims the State's “in for a penny, in for a pound” argument misstates the law because the State is required to prove Beard himself, not with the others in the group, had the premeditated intent to kill. While he admits the district court did not instruct on foreseeability, as it did in Overstreet, Beard still claims the prosecutor misstated the law.
The State responds that its statements regarding the group as a whole was a general discussion of the law of aiding and abetting and “in no way implied the State was not required to prove the defendant personally possessed the intent to kill.” The State asserts that when the group crept up to the Crown Victoria and shot at it and the occupants, the facts reflect premeditation, and it follows Beard had that same intent on an individual level. Finally, the State claims the “in for a penny, in for a pound” language was in reference to criminal discharge of a firearm, which is a general intent crime, and was appropriate.
Beard has not demonstrated how any of the State's language could be considered misconduct. At no point did the prosecutor misstate the law regarding aiding and abetting, and, unlike in Overstreet, the district court did not present inherently contradictory standards for the jury to follow. The “in for a penny, in for a pound” language used by the State was clearly in reference to the criminal discharge of a firearm, and Beard is trying to portray the comment out of context. The language used was within the wide latitude afforded to the prosecution during closing arguments. Accordingly, there is no reason to address the second prong of the prosecutorial misconduct analysis.
Did the State Vouch for the Credibility of Witnesses?
Beard asserts the State vouched for the credibility of its witnesses. It is improper for a lawyer to comment on a witness' credibility. State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010) (citing State v. Elnicki, 279 Kan. 47, 60, 105 P.3d 1222 [2005];Pabst, 268 Kan. at 506). Beard points out the State rhetorically asked the jury if all of these witnesses “got together and made up this story?” The State also said one of the witnesses “knew what she saw,” and others “[got] it right” by identifying the defendant.
Beard is wrong. When the prosecutor's rebuttal closing argument is taken in context, he simply referred back to the evidence when he said:
“Ladies and gentlemen, what is it? Ronald Beard did it but he was too drunk? Or no, Ronald Beard didn't do it and everybody is just conspiring against him? That these people all got together and made up this story? Is that what you believe? Well, ladies and gentlemen, you get to use your common sense, your common knowledge
....
“These eye witnesses, [A.M.], do you think she was so mad at Ronald Beard that she wanted to point him out? [D.H.], do you think he got it so wrong just because a number was on the back of the shirt? [A.G.]. Ladies and gentlemen, ask yourselves this: Did they all get it right? Yes.”
The prosecutor's comments during closing argument were proper comments on the evidence and within the wide latitude granted to the prosecution during closing arguments. His comments were not his personal opinion and did not create a form of unsworn, unchecked testimony. See Pabst, 268 Kan. at 510. Thus, there was no misconduct and we will not address the second prong of the prosecutorial misconduct analysis.
Did the State Offer Personal Opinions as to the Guilt of the Defendant?
Beard argues that at four occasions during closing arguments the State offered a personal opinion as to Beard's guilt. It is improper for a prosecutor to express a personal opinion regarding the ultimate guilt or innocence of the defendant. State v. Brown, 295 Kan. 181, 212, 284 P.3d 977 (2012); see also Kansas Rules of Professional Conduct (KRPC) 3.4 (2012 Kan. Ct. R. Annot. 566) (“A lawyer shall not: ... (e) in trial, ... state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”); KRPC 3.8 (2012 Kan. Ct. R. Annot. 578) (special duties of a prosecutor).
Here, the State made the following statements during closing arguments:
“[T]his was a deliberate, malicious, intentional, and premeditated attack on the four people in that car. There was no other conclusion that you can draw from the evidence that you've heard in this trial but the defendant and his two associates ... surrounded that vehicle with three guns, fired 14 rounds, 13 of which actually struck the car, injured Kevin Walker and Jeffrey Daniels, terrified Timothy McCoy and Sarah Fischer.
“There is no doubt from this evidence that the defendant ... was a principal actor in a deliberate premeditated attempt to murder everybody in that car
....
“... There's no reasonable doubt that the defendant actively fired into an occupied vehicle and somebody suffered great bodily harm.
....
“... Only if you cannot agree on the top charges do you start to consider those [lesser charges]. But how can you not? What other the [sic] reasonable conclusion you can [sic] draw about the evidence in this case.”
Beard challenges these comments, claiming the prosecutor expressed a personal opinion regarding his guilt. Beard argues they were gross and flagrant statements and showed the prosecutor's ill will during his closing argument. The State responds the comments were directly related to and followed specific evidence of Beard's guilt. The State adds the comments did not express any personal opinion of the prosecutor regarding Beard's guilt, and the prosecutor did not encourage the jury to vote emotionally. See State v. Brown, 295 Kan. at 212.
The State may explain to the jury that the evidence in the case points to the defendant's guilt. These reliable inferences from evidence presented at trial are proper closing argument to the jury; however, the prosecutor may not comment upon facts outside the evidence. State v. Bennington, 293 Kan. 503, 532, 264 P.3d 440 (2011). Here, every instance of alleged misconduct was clearly supported by evidence admitted at the trial. The State made reliable inferences based on the evidence; therefore, the comments were within the wide latitude afforded to prosecutors during closing arguments and do not constitute misconduct. Therefore, we will not proceed to the second prong of the prosecutorial misconduct analysis.
Did the State Misstate Its Burden of Proof?
Beard next claims the State misstated its burden of proof. ‘ “A misstatement of the [burden of proof] by the prosecutor denies the defendant a fair trial when the facts are such that the jury could have been confused or misled by the statement.’ [Citation omitted.]” Magallanez, 290 Kan. at 915. Beard points to the State's comments to the jury:
“[Y]ou've heard from the Judge, I'm sure you all have retained it completely, the elements the State is required to prove on each of these offenses. You will get the instructions back there, you will get to have them so that you can review these elements. But in each of these crimes, the State is required to prove a couple of things on all of them.”
Beard challenges the State's comment that it had to prove “a couple of things” on each crime as a misstatement of the State's burden of proof. Beard claims the State is required to prove every element of every crime. Beard argues the State violated his rights through this misstatement by reducing the State's burden to “a couple” of elements and not all elements of each crime.
However, as the State points out, Beard's argument is an unrealistic characterization of the State's comments. At no point during the State's closing argument did the State attempt to shift the burden of proof or ignore a required element of a crime. The State's comment merely stated each crime had more than one element that needed to be proven. This statement was not improper, did not shift the State's burden of proof, and could not have confused the jury. On the contrary, it was an acknowledgment by the State of what it had to prove. There was no misstatement of the law by the State and no prosecutorial misconduct. Thus, we will not address the second prong of the prosecutorial misconduct analysis.
Did the District Court Err in Its Jury Instructions?
Beard claims the district court erred in failing to provide a lesser included instruction of attempted voluntary manslaughter and attempted aggravated battery and that the district court erred in giving an inferred intent instruction for a specific intent crime.
Standard of Review
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Did the District Court Err in Failing to Give a Lesser Included Instruction of Attempted Voluntary Manslaughter?
At trial, Beard requested the lesser included instructions of attempted voluntary manslaughter and attempted aggravated battery. On appeal, Beard acknowledges aggravated battery is not a lesser included instruction of either premeditated or intentional murder, as discussed in State v. Gaither, 283 Kan. 671, 692, 156 P.3d 602 (2007). However, Beard maintains the district court erred by not instructing on the lesser included offense of attempted voluntary manslaughter.
The State concedes the issue of whether the district court should have given the lesser included instruction of attempted voluntary manslaughter was preserved for appeal. See State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012). Accordingly, we must determine if there was sufficient evidence, when viewed in a light most favorable to Beard, to provide a lesser included instruction of attempted voluntary manslaughter. If so, we must then determine whether the district court's failure to provide the instruction was harmless.
Beard argues the instruction of attempted voluntary manslaughter was supported by the evidence because the jury could have concluded Beard's actions occurred in the heat of passion, as defined by K.S.A.2011 Supp. 21–5404(a)(1). Beard argued before the district court for an instruction using the sudden quarrel argument. Our Supreme Court has held that
‘ “[s]udden quarrel is one form of provocation for “heat of passion” and is not separate and apart from “heat of passion.” The provocation whether it be “sudden quarrel” or some other form of provocation must be sufficient to cause an ordinary man to lose control of his actions and his reason.’ “ (Emphasis removed.) State v. Johnson, 290 Kan. 1038, 1047, 236 P.3d 517 (2010).
Beard points to the killing of a Crip member in the months prior to the shooting, the altercation which occurred inside the club, and the heated exchange which occurred at the victims' car shortly prior to the shooting. Accordingly, Beard claims this evidence supports an instruction on attempted voluntary manslaughter because a jury could have found that he acted in the heat of passion.
The State contends Beard could not have acted in the heat of passion. First, the State points out Beard was not involved in an altercation immediately prior to the shooting; second, the State argues the incident in the parking lot near the victims' car was not sufficient to deprive a reasonable person of self-control; finally, the State claims sufficient cooling time existed to remove the in the heat of passion argument.
Officer Schepis testified he saw Beard around the car during the argument but not involved in the argument just prior to the shooting. Beard offers no caselaw to support that being near, but not part of, an altercation will support an in the heat of passion instruction.
Additionally, there is no evidence the victims of the shooting did anything to provoke Beard, or anybody else, to an act of violence. Mere words and gestures are insufficient to justify an in the heat of passion instruction; the defendant must have a reasonable belief that he or she is in danger of great bodily harm or risk. State v. Guebara, 236 Kan. 791, 797, 696 P.2d 381 (1985) (citing 2 Wharton's Criminal Law § 156). Finally, the evidence reflects the victims were in their car and leaving when the shots were fired. The victims were extracting themselves from the situation without violence.
The State argues even though only a short time passed between Beard hitting the hood of the car and the shootings, it was sufficient time to form a cooling down period. An “act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than heat of passion.” State v. Henson, 287 Kan. 574, Syl. ¶ 3, 197 P.3d 456 (2008). Police had separated the parties, but Beard and the other two tracked the Crown Victoria, snuck close to it, and began shooting. This behavior indicates cold and calculating behavior and not a decision made in the heat of passion. Beard responds the cooling down time was an issue for the jury. The cooling off period was short, alcohol was involved, and the parties had been in a dispute. Beard contends this evidence, in a light most favorable to him, is sufficient to merit a jury instruction on attempted voluntary manslaughter.
Based on the evidence at trial, the district court did not err in failing to provide the lesser included instruction of attempted voluntary manslaughter. Beard, although not involved, was around the discussion with the victims prior to the shooting. Yet, no evidence was presented to show that the victims or the accused had any reason to believe they were in danger of great bodily harm. The prior discussion consisted of nothing more than a shouting match.
Even if the prior altercation did create a reasonable belief of danger, the gap between the altercation and the shooting constituted sufficient cooling time. There is no established rule for how much time is sufficient for cooling time. Benson, 287 Kan. at 586. Here, police broke up the altercation, both parties went a different direction, and the victims were attempting to leave the parking lot. Although this time period was brief, the separation and distance of the parties imposed by police created a sufficient amount of time for Beard to regain control of his passion and thoughts. There is no evidence to support Beard's contention he acted in the heat of passion. Clearly, the evidence reflects Beard and the other men were making a deliberate and calculated move to attack the car just before the shooting started.
However, even if the district court did err in failing to provide the lesser included instruction of attempted voluntary manslaughter, the error may still prove to be harmless. Beard cites to State v. Ward, 292 Kan. at 560–62, to show that it is the State's burden to prove the error is harmless. According to Beard, since the jury had questions regarding intent versus premeditation, the State failed to meet the burden to prove the error harmless. Beard is wrong here as there was no evidence, when considered in a light most favorable to him, for the district court to have instructed on the lesser included offense of attempted voluntary manslaughter. The district court did not err. Additionally, Beard's argument might have more strength if the jury had found him guilty of attempted second-degree murder as a lesser included offense of attempted first-degree murder.
Did the District Court Err in Giving an Inferred Intent Instruction for a Specific Intent Crime?
Beard also requested PIK Crim.3d 54.01 at trial, which informed the jurors:
“Ordinarily, a person intends ail of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of [defendant]. This burden never shifts to [defendant].”
Beard admits he requested this instruction and did not object at the jury instruction conference or when the instruction was read. Beard also recognizes defendants are prohibited from raising such issues under the invited error doctrine. However, Beard claims the issue affects his constitutional right to have every element of the case proven beyond a reasonable doubt and should therefore be subject to appellate review.
Beard cites State v. Hargrove, 48 Kan.App.2d 522, 293 P.3d 787 (2013), to support his contention an improper jury instruction violated his constitutional rights. Beard argues the Hargrove panel pointed out an issue exists when constitutional rights are waived by counsel through requested jury instructions. However, the panel in Hargrove did not actually say there can be no invited error regarding jury instructions that touch upon constitutional rights; instead, the court merely noted that these situations must be considered on a case-by-case basis. Hargrove, 48 Kan.App.2d at 554.
Furthermore, the Kansas Supreme Court has already rejected Beard's argument. In State v. Ellmaker, 289 Kan. 1132, 1141–42, 221 P.3d 1105 (2009), the court stated district courts should not use PIK Crim.3d 54.01 as a separate instruction where specific intent needs to be proven. Despite this admonition, the court refused to consider an appeal when a defendant requested PIK Crim.3d 54.01, then complained the requested instruction confused the jury regarding premeditation and specific intent. Ellmaker, 289 Kan. 1141–42.
The State counters our Supreme Court has rejected Beard's very argument in State v. Adams, 292 Kan. 60, 80–81, 253 P.3d 5 (2011). In Adams, the court held that PIK Crim.3d 54.01 does not instruct the jury to find criminal intent necessary for conviction. Furthermore, the presumption of intent is just that—a permissive inference. The trier of fact is free to consider or reject the inference. Accordingly, the court ruled that there was no real danger that a jury would be misled as to what the State was required to prove. Adams, 292 Kan. at 81. Because our Supreme Court has rejected the idea that a jury would be confused by a PIK Crim.3d 54.01 instruction in a premeditated murder case, its inclusion, if it were considered to be error, would still be considered harmless and therefore not reversible error.
Here, Beard complains of error regarding the instruction he requested. Where a party procures a court to proceed in a particular way and invites a particular ruling, he or she is precluded from assailing such proceeding and ruling on appellate review. State v.. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982). Even though he claims his constitutional rights have been violated, any violation that may have occurred came as a result of invited error. Additionally, there is no real danger the jury was misled. His claim is denied.
Were Beard's Convictions Multiplicitous?
Beard argues his convictions of aggravated battery, aggravated assault, and criminal discharge of a firearm are multiplicitous and therefore violate the constitutional prohibition against double jeopardy.
Standard of Review
‘ “This court has consistently stated that “multiplicity is the charging of a single offense in several counts of a complaint or information’ “ State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2008); State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). “The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.” Thompson, 287 Kan. at 244.
“ ‘Questions involving multiplicity are questions of law subject to unlimited appellate review.’ Schoonover, 281 Kan. at 462.” State v. King, 297 Kan. 955, 305 P.3d 641, 654 (2013) (Case No. 99,479, filed August 9, 2013).
Is Beard's Claim Properly Before the Court of Appeals?
Beard concedes he failed to raise this issue before the district court. However, because multiplicitous charges raise the constitutional issue of double jeopardy and is determinative, Beard claims that the issue is ripe for appeal. Beard points to State v.. Denney, 278 Kan. 643, 650–651, 101 P.3d 1257 (2004), to demonstrate the Kansas Supreme Court has addressed questions of law arising from proven or admitted facts which are finally determinative of the case.
The State admits Beard is correct in his assertion the Kansas Supreme Court has previously considered this issue for the first time on appeal. However, the State claims Beard fails to raise any argument as to why the court should abandon its general rules of appellate practice for his case. In State v. Ralston, 43 Kan.App.2d 353, 368, 225 P.3d 741 (2010), a panel of this court rejected an argument regarding multiplicity, stating the defendant did not assert or show how appellate review would serve the ends of justice or prevent a denial of fundamental rights. Accordingly, the panel determined the issue was not preserved for appeal.
Although Beard does not explain with great detail how an appellate review of his claim would serve the ends of justice, it is clear Beard is making a multiplicity claim and invokes the constitutional right to be free from double jeopardy. Because the Kansas Supreme Court has very recently affirmed this right in State v. King, 305 P.3d at 657–58, it would be improper for us to dismiss this claim as baseless. Thus, even though Beard failed to raise this multiplicity claim at the district court level, we deem it necessary to consider Beard's multiplicity claim to protect his fundamental right against double jeopardy.
Were the Charges of Aggravated Battery, Aggravated Assault, and Criminal Discharge of a Firearm Multiplicitous?
Beard refers to aggravated assault as part of his multiplicity claim but fails to brief the issue. “An issue not briefed or raised incidentally but not argued is deemed abandoned. [Citation omitted.]” State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
When analyzing a claim of double jeopardy,
‘ “the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?’ Schoonover, 281 Kan. at 496.” State v. King, 350 P.3d at 654.
Beard argues, and the State admits, that the charges of criminal discharge of a firearm and aggravated battery stem from the same conduct, and the first component is therefore satisfied. Thus, the question that must be answered is whether the conduct encompassed two offenses or one by statutory definition.
Because two charges are being contested as multiplicitous, two statutes are at issue. Under K.S.A.2011 Supp. 21–5413(b), aggravated battery requires knowingly or recklessly causing great bodily harm or disfigurement to another person; knowingly or recklessly causing bodily harm to another person with a deadly weapon; or, knowingly causing physical contact with somebody when done in a rude, insulting, or angry manner with a deadly weapon or in any manner where great harm can be inflicted.
Under K.S.A.2011 Supp. 21–6308(a)(1)(B), criminal discharge of a firearm, as it applies in this case, is defined as reckless and unauthorized discharge of a firearm at a motor vehicle in which there is a human being whether the person discharging the firearm knows or has reason to know there is a human being present.
Beard claims the aggravated battery statute is wholly encompassed by the criminal discharge statute, and therefore the dual charges violate his right against double jeopardy. However, Beard simply misreads the statutes. Although Beard is correct in claiming aggravated battery requires a knowing or reckless act that causes great bodily harm, Beard is incorrect in asserting that criminal discharge of a firearm also requires great bodily harm to be sustained. Under the plain language of K.S.A.2011 Supp. 21–6308, Beard needed only to discharge a firearm recklessly and without authorization into a motor vehicle whether he knows or had reason to know human beings were present.
Accordingly, each offense requires proof of an element not necessary to prove the other offense. Schoonover, 281 Kan. at 495. No evidence of bodily harm was required for Beard to be convicted of criminal discharge of a firearm, but bodily harm is a requirement of aggravated battery. No evidence of discharge of a firearm was required for Beard to be convicted of aggravated battery, but such evidence was necessary for a conviction of criminal discharge of a firearm. Because each statute contains an element that is not present in the other, the two charges are not multiplicitous; therefore, Beard's constitutional right against double jeopardy was not violated.
Additionally, we note our Supreme Court recently said in State v. Jefferson, 297 Kan. 1151, Syl. ¶ 10, 310 P.3d 331 (2013) (Case No. 98,742, filed September 6, 2013), “Convictions of felony murder and criminal discharge of a firearm at an occupied vehicle or dwelling are not multiplicitous even when the charges arise from the same conduct and involve the same victim.”
Beard Has Shown No Error to Support Cumulative Error
Additionally, Beard claims the cumulative effect of the errors in the case, when considered in total, merit reversal. However, as the previous discussions have shown, Beard has demonstrated only one act of nonreversible invited error. Cumulative error doctrine “does not apply if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). Because Beard has not demonstrated multiple errors, his cumulative error argument fails.
Conclusion
We have carefully considered and dissected each of Beard's alleged errors. There was no prosecutorial misconduct. The district court correctly denied Beard's request for a lesser included jury instruction on attempted voluntary manslaughter. The inferred intent instruction should not have been given but was requested by Beard, and any violation of his right resulted from invited error. Beard's claim of multiplicity is without merit as the crime of aggravated battery and criminal discharge of a firearm each requires a different element to be proved. We have found only one act of invited error and, therefore, no cumulative error claim can succeed.
Affirmed.