Opinion
No. 111468.
07-10-2015
STATE of Kansas, Appellee, v. Roy BETTY, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Clay A. Kuhns, special assistant county attorney, Gaten T. Wood, county attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Clay A. Kuhns, special assistant county attorney, Gaten T. Wood, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Roy Betty appeals from his conviction by a jury of aggravated assault. He argues that the district court erred by failing to instruct the jury on the lesser included offense of simple assault and by failing to give a unanimity instruction. He also argues that the district court violated his statutory and constitutional rights by providing a written response to a jury question. Finally, he suggests that cumulative error denied him a fair trial. We find no reversible error and affirm the conviction.
Factual and Procedural Background
On May 9, 2012, the State charged Betty with one count of aggravated assault with a rifle. Betty pled not guilty to the charge.
At trial, the jury received the following evidence:
Stephen Archuleta testified that Betty had been feeding some stray cats just off the back line of Archuleta's property for a couple of months, but Archuleta wanted to put an end to it when the cats started using his garage as a litter box. Archuleta would sometimes shoot at the cats in his yard to get them to scurry away, and he had also confronted Betty about feeding the cats in this location.
Archuleta testified that when Betty showed up on May 8, 2012, to feed the cats, Archuleta drove his riding lawn mower over to where the cats were eating in order to scare them off. Archuleta then turned to head back to his front yard, passing by Betty as he went. Betty, who was sitting in his car with the door open, jumped out his car and screamed. Archuleta noticed the trunk of Betty's car was open. Archuleta then turned around to look at Betty, and Betty had a rifle pointed at him. Archuleta drove his mower in a zig-zag pattern to try to keep Betty from having a clear shot at him. Once he got to his front yard, Archuleta got off of his mower and told Betty he was calling the police. Betty was no longer holding the gun at that point. Archuleta felt that if a paint crew had not been working on the house next door, Betty would have taken a shot at him.
Sheriff's Deputy Justin Rugg testified that Betty had previously complained to him that Archuleta was harassing Betty's cats and would not let them eat. Betty complained that Archuleta would yell at him and chase the cats away. Rugg suggested that Betty change the location where he fed the cats to avoid the problem, but Betty was not open to the suggestion. About a week later, on May 8, 2012, based on a 911 call from Archuleta, Rugg was dispatched to Archuleta's house. The dispatcher noted that Archuleta claimed Betty had put a cat in his yard; and when Archuleta had gone out to move the cat, Betty had pulled a gun on him. A recording of the 911 call was played for the jury.
On the 911 call, Archuleta requested to speak to an officer because he had just had a gun pulled on him by Betty. Archuleta said Betty had been feeding cats in his yard and when he went get rid of the cats Betty pulled the gun on him. Archuleta said that when Betty pulled the gun on him, he thought Betty was going to shoot him in the back and it had scared him. Archuleta was advised that the Sheriff was on his way and to stay in his house.
On his way to Archuleta's home, Rugg saw Betty and his car at an insurance office, so he stopped to speak with him. Because it was an aggravated assault call, Rugg asked Betty if he had any weapons on him, and Betty said that he did not. While Rugg was patting Betty down, Archuleta yelled out to Rugg from across the street and told him that Betty had a gun in the trunk of his car. Betty admitted that was true, and Rugg retrieved a loaded .22 rifle from the trunk. Betty was thereafter taken into custody.
Betty testified that he had been feeding stray cats at various locations, including the location behind Archuleta's house. He had names for the cats and felt attached to them. Betty and Archuleta had begun to disagree about Betty feeding the cats 2 or 3 months prior to the May 8th incident, but Betty said he ignored Archuleta's complaints. Betty believed Archuleta was shooting at the cats and destroying their food, so on May 8th Betty put the food and water out for the cats behind Archuleta's home and then waited.
Betty testified that Archuleta was on his riding mower and was yelling, but Betty ignored him again. Archuleta then steered his mower in between Betty and the cats, and Betty believed Archuleta was going to kill the cats. Betty testified that he opened his trunk, got out his rifle, pointed it toward the ground, and sat back in his car. He claimed the rifle was still covered in its wrap. Betty said he did not feel threatened, but he was aggravated because Archuleta was going after his cats. Then, when Archuleta came closer on his mower, Betty stood up, put one arm up on his car door, and stood with the gun still pointing down. Betty testified that he never raised the gun or pointed it at Archuleta. Archuleta returned to his house, and Betty replaced the gun in the trunk. Archuleta yelled something about the Sheriff, so Betty drove over to the insurance office and waved Deputy Rugg over to him when Rugg drove up. Betty testified that he did not intend to threaten Archuleta by retrieving his gun, but he felt that Archuleta was smart enough to know that “you don't go [tick] a man off that's got a gun in his hand....”
At the jury instruction conference, Betty did not object to any of the instructions and did not request any additional instructions.
During deliberations, the jury submitted a written question to the trial judge, asking: “Do we have to prove the gun was pointed at Archuleta or just pulling a loaded gun out is the threat enough for reasonable apprehension of immediate bodily harm?” The district court replied by giving the jurors a supplemental instruction, which stated:
“No specific act is necessary to prove the requirements set out in Instructions Nos. 9 and 10. You must determine whether the acts of the defendant were done knowingly as set forth in Instruction No. 9 and whether the act or acts of the defendant knowingly placed Steven Archuleta in reasonable apprehension of bodily harm. You as the jury must find that the State has proven all of the claims set forth in Instruction No. 10.”
Betty did not object to the supplemental instruction, and he did not object to the procedure used when the district court had the supplemental instruction delivered to the jury room.
The jury found Betty guilty of aggravated assault. Betty moved the court for a judgment of acquittal and for a new trial, arguing that there were multiple acts which could have constituted the aggravated assault—one when Betty simply took the gun out of his trunk and one when Archuleta claimed that he turned around and saw the gun pointed at him—and that the State either had to tell the jury which act to rely on during deliberations or the district court needed to instruct the jury that it had to agree on the specific criminal act. At a hearing on the motions, the district court concluded that this was not a multiple acts case, and it denied both motions.
At the sentencing hearing, the district court granted Betty's motion for dispositional departure and sentenced him to 24 months' probation with 13 months' imprisonment underlying. Betty filed a timely notice of appeal.
Failure to Instruct on Simple Assault
Betty first argues that the district court erred by failing to sua sponte instruct the jury regarding a lesser included offense of simple assault.
Standard of Review
A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. K.S.A.2014 Supp. 22–3414(3) ; State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Because Betty did not request this instruction or object to the district court's failure to give this instruction sua sponte, we review this issue to determine if the failure to give the instruction was clear error. To make this determination, we must decide whether there was any error at all by first considering whether the instruction was legally and factually appropriate by employing an unlimited review of the entire record. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
The Statutes and Evidence
The district court must instruct the jury on a lesser included offense where some evidence would reasonably justify a conviction on the lesser offense, but this duty to instruct only arises where there is evidence supporting the lesser crime. State v. Johnson, 290 Kan. 1038, 1042–43, 236 P.3d 517 (2010). On review, this court must consider the instructions as given as a whole, rather than the desired instruction in isolation, and if those instructions fairly state the law as applied to the facts of the case and the jury could not reasonably be misled by them, then the instructions are not reversible error even if they contain some error. 290 Kan. at 1043, 236 P.3d 517.
K.S.A.2014 Supp. 21–5412(a) defines assault as “knowingly placing another person in reasonable apprehension of immediate bodily harm.” K.S.A.2014 Supp. 21–5412(b) defines aggravated assault as “assault as defined in subsection (a), committed: (1) With a deadly weapon.” Simple assault is a lesser included offense of aggravated assault. See State v. Torrance, 22 Kan.App.2d 721, 728–29, 922 P.2d 1109 (1996). Thus, a jury instruction on simple assault would have been legally appropriate here if reasonably justified by the evidence.
Here, it was uncontested that Betty was holding a gun at the time of the incident. There was no testimony indicating that anything other than the gun could have possibly put Archuleta in reasonable apprehension of immediate bodily harm. No words were exchanged between Betty and Archuleta, and the only other thing Betty did at that moment was get out of his car and stand there. If not for the gun here, there was no assault. And because of the presence of the gun, that assault was aggravated by definition.
Although the jury's question during deliberations does indicate that the jury was contemplating the role of the gun in the assault, it also indicates that the jury was aware that the gun played a role in the incident, no matter who's version of the story it believed. Additionally, Betty's posttrial motion suggesting multiple acts certainly acknowledges that a gun was involved throughout the confrontation. Thus, an instruction on simple assault was not factually appropriate under the evidence, and the jury was correctly instructed on the applicable law.
Failure to Instruct Regarding Unanimity
Betty asserts that the evidence at trial suggested multiple acts: one involving Betty removing a rifle from his trunk, and the other from Archuleta's testimony that Betty pointed the rifle at him. He argues that these two acts—though contested, close in time, and close in location—were two separate acts communicating different levels of threat and, therefore, the district court should have instructed the jury that it had to unanimously agree upon a single underlying act that constituted the charged crime.
The State maintains that there were not multiple acts here because Archuleta did not see Betty remove the gun from his trunk, therefore Archuleta did not perceive the threat until the gun was pointed at him.
Standard of Review
When a case presents a multiple acts issue, this court has unlimited review. State v. King, 299 Kan. 372, 379, 323 P.3d 1277 (2014). Because Betty did not request this instruction or object to the failure to give the instruction, the clearly erroneous standard previously cited applies to our review of this issue.
The Evidence
The threshold question is whether jurors heard evidence of multiple acts, each of which could have supported a conviction on a charged crime. See King, 299 Kan. at 379, 323 P.3d 1277. The Kansas Supreme Court has determined that acts are multiple acts if they are factually separate and distinct. 299 Kan. at 379, 323 P.3d 1277. Factually separate crimes occur at different times or different locations or are motivated by a fresh impulse, whereas incidents involving unitary conduct constituting a single crime can be found by analyzing (1) whether the acts occurred at or near the same time; (2) whether the acts occurred at the same location; (3) whether there was a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there was a fresh impulse motivating some of the conduct. 299 Kan. at 379, 323 P.3d 1277.
Here, the jury heard two versions of one incident, rather than two acts within an incident. Betty's version had him removing a gun from his trunk and sitting with it in his car, apparently unnoticed, then standing and pointing it at the ground when Archuleta came near. Archuleta's version had Archuleta turning around to see Betty pointing a gun at him. Neither version of this incident contains two acts, as argued by Betty. The two versions provided the jurors with a credibility question—which person do they believe?—but either story would meet the statutory definition of an aggravated assault because the jury could have found that Archuleta was in reasonable apprehension of bodily harm under either scenario.
Even if the jury believed Betty's version of the story—his removing the gun from the trunk and then standing and pointing it at the ground—was unitary conduct, not separated by any noticeable time or space, without any intervening event or fresh impulse motivating the conduct. A unanimity instruction was not warranted here because there were not multiple acts shown at trial under any interpretation of the evidence.
The Written Answer to the Jury
Standard of Review
Betty's claim that the district court deprived him of his statutory and constitutional rights to be present during a critical portion of the trial implicated legal questions that are subject to unlimited review on appeal. See State v. Killings, 301 Kan. 214, Syl. ¶ 12, 340 P.3d 1186 (2015).
Preservation of the Issue
Betty did not raise this issue in the district court. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). However, our Supreme Court has recently held that “[t]he personal nature of defendant's statutory and constitutional rights to be present at all critical stages means that they cannot be waived by counsel's mere failure to object.” State v. Verser, 299 Kan. 776, 788, 326 P.3d 1046 (2014). Therefore, we will consider this issue.
The Written Answer and Right to be Present
K.S.A. 22–3420 sets forth the procedures district courts must follow when answering questions from the jury. Before July 1, 2014, the statute was silent on whether a district court could provide a written response to a jury. In Verser, the Kansas Supreme Court interpreted the statute's silence to mean that it was error for a district court to provide a written answer to a jury question. 299 Kan. at 789, 326 P.3d 1046. Less than 1 month after the decision, the Kansas Legislature amended K.S.A. 22–3420 to permit district courts to provide written answers:
“(d) The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to discuss an appropriate response. The defendant must be present during the discussion of such written questions, unless such presence is waived. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear testimony. The defendant must be present during any response if given in open court, unless such presence is waived. Written questions from the jury, the court's response and any objections thereto shall be made a part of the record.” (Emphasis added.) K.S.A.2014 Supp. 22–3420(d) ; L.2014, ch. 102, sec. 7.
In addition, the amended version of the statute provides that the amendments are procedural in nature and must be construed and applied retroactively. K.S.A.2014 Supp. 22–3420(f). Therefore, the district court did not violate the statute by providing a written response. See State v. Knighten, 51 Kan.App.2d 417, 347 P.3d 1200 (2015) (finding that in light of July 1, 2014 amendments, the district court did not violate K.S.A. 22–3420 by providing jury with a written response to its questions).
In Verser, a case decided under K.S.A. 22–3420 prior to its amendment, the Supreme Court noted that even if the written answer violated a defendant's constitutional right to be present at every critical stage of his or her trial, the question remained whether any error was harmless. See 299 Kan. at 788–89, 326 P.3d 1046 ; see Knighten, 51 Kan.App.2d at 428–29, 346 P.3d 1094. Our Supreme Court has held that structural analysis does not apply to consideration of error under these circumstances. Bowen, 299 Kan. at 357, 323 P.3d 853.
As in Knighten, we find it unnecessary to resolve whether a constitutional error occurred because by any analysis any perceived error was clearly harmless. When an error infringes upon a party's right to be present under the Sixth Amendment to the United States Constitution, Kansas courts will declare a constitutional error harmless only where the party benefitting from the error persuades the court “ “ ‘beyond a reasonable doubt that the error ... did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict.’ “ “ Bowen, 299 Kan. at 357, 323 P.3d 853 (quoting State v. King, 297 Kan. 955, 968, 305 P.3d 641 [2013] ). In making this determination, the court considers four factors set forth in State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 (2013) :
“(1) [T]he overall strength of the prosecution's case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.”
With regard to the first factor, the prosecution's case against Betty was strong. The evidence was uncontroverted that during the confrontation with Archuleta, Betty took a gun from the trunk of his car and stood up facing Archuleta. Archuleta testified that the gun was pointed at him and that he feared being shot. Betty admitted that he brandished the gun because he felt that Archuleta was smart enough to know that “you don't go [tick] a man off that's got a gun in his hand.” This factor, then, weighs in favor of harmless error.
Regarding the second factor, Betty did not object to the proposed answer or to the procedure by which the written response was submitted to the jury. Betty and his counsel were present when the question was read, and the response was discussed in open court on the record. Again, this factor weighs in favor of finding harmless error.
Likewise, the third factor weighs in favor of finding harmless error. The jury's question pertained to the elements of the offense which the court had originally instructed. The district court correctly and succinctly referred the jury back to the instructions already given, without further comment on the evidence, and without placing undue emphasis on the verdict.
Finally, Betty failed to seek a remedy for any perceived constitutional error through posttrial motions.
Because none of the Herbel factors of analysis weigh in Betty's favor, we are confident that there is no reasonable possibility that the district court's decision to provide a written answer to the jury, rather than to read the same answer in open court, had any impact on the outcome of the trial. Therefore, any perceived error was harmless.
Public Trial and Impartial Judge
Betty also argues that the district court violated his constitutional right to a public trial and an impartial judge by submitting a written response to the jury. Previous panels of this court have considered the same argument and concluded that the right to a public trial is not implicated by a written response to a jury question. See State v. Ramirez, 50 Kan.App.2d 922, 933–34, 334 P.3d 324 (2014) (“The requirement of a public trial assures that the judge and prosecutor act responsibly. It also discourages witnesses from committing perjury when testifying. These factors have no application in the procedure employed here”), petition for rev. filed October 27, 2014; State v. Womelsdorf, 47 Kan.App.2d 307, 325, 274 P.3d 662 (2012) (“Nothing about the district court's written response to the jury question, which is now available to the public as part of the court file, was hidden from public view.”), rev. denied 297 Kan. 1256 (2013); State v. Owens, No. 109,369, 2014 WL 1612457, at *4 (Kan.App.2014) (unpublished opinion) (same), petition for rev. filed May 19, 2014.
Similarly, panels of this court have found this procedure does not raise questions of whether the defendant was provided an impartial judge. See Ramirez, 50 Kan.App.2d at 934, 334 P.3d 324 ; Womelsdorf, 47 Kan.App.2d at 324, 274 P.3d 662 ; State v. Hunter, No. 110,729, 2015 WL 1310133, at *2 (Kan.App.2015) (unpublished opinion), petition for rev. filed April 10, 2015. Since Betty offers no other argument than those asserted in prior cases, we similarly conclude that the district court violated neither right.
Cumulative Error
Betty asserts that even if this court finds that none of the errors complained of here are reversible on their own, the cumulative effect of multiple trial errors denied him a fair trial and thus his conviction should be reversed.
We have determined that no error occurred regarding the jury instructions and that no statutory error occurred regarding the written answer to the jury question. Any perceived constitutional error was, at worst, harmless error. The doctrine of cumulative error does not apply. See State v. Williams, 299 Kan. 1039, 1050, 329 P.3d 420 (2014).
Affirmed.