Opinion
No. 107,546.
2013-12-27
STATE of Kansas, Appellee, v. Andrew DEASON, Appellant.
Appeal from Osborne District Court; Preston A. Pratt, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Paul S. Gregory, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Osborne District Court; Preston A. Pratt, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Paul S. Gregory, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
A jury convicted Andrew Deason of domestic battery, criminal threat, possession of marijuana, and possession of morphine. Deason appeals from his convictions claiming multiple trial errors. Having carefully reviewed the record and considered the arguments of the parties on appeal, we affirm the convictions.
Factual and Procedural Background
Deason and Katherine Verhelst were involved in an on-again/off-again romantic relationship. From the summer of 2010 until the winter of 2011, the couple lived together in a residence at Natoma, Kansas. During this time, Deason and Verhelst had numerous arguments. This appeal relates to an incident which occurred about noon on February 24, 2011. As a result of the disturbance, Deason was charged with aggravated assault, domestic battery, criminal threat, possession of marijuana, and possession of morphine.
Deason and Verhelst both testified at trial to markedly different accounts of the incident. According to Verhelst, the origin of the altercation was an argument between the couple on February 23, 2010, with “a lot of yelling” and “a lot of accusing.” As a result, Verhelst left the residence to stay with a coworker in Plainville, Kansas. Verhelst explained, “I felt afraid [of Deason].”
The next day, February 24, 2011, Verhelst received several text messages from Deason informing her that “all of [her] things were out in the yard” and she needed to come and get them. Verhelst left work shortly thereafter, about 12 p.m., and went to the residence to collect her belongings. When Verhelst arrived, however, nothing was in the yard, so she went inside to gather her things. Once inside, Verhelst began packing her clothing while Deason sat “very quietly on the couch” folding laundry. After 15 to 20 minutes of “really awkward silence,” Deason asked Verhelst what she was doing, and when she told him she was leaving, Deason became agitated.
According to Verhelst, as she was gathering up some bills, Deason rushed her, grabbed her, and put a gun to her head. As Deason placed the gun to her head, she “heard the sliding of the chamber.” Verhelst identified the gun as a .45 caliber pistol which Verhelst had seen fired on a previous occasion. Panicked, Verhelst became “very quiet” because she “didn't want to antagonize [Deason]” and, as such, Deason “did most of the talking at that point.” According to Verhelst, Deason told her that it was “time for [them] to both go,” which she interpreted as a reference to “murder-suicide.”
After 2 to 3 minutes, during which time Verhelst attempted to convince Deason to release her, he pushed her out the front door. Verhelst subsequently got into her SUV, which was backed into the driveway, and as she was doing so, Deason climbed into his vehicle, backed it into the driveway, and struck the front of Verhelst's SUV.
According to Verhelst, both individuals ended up in the front yard where a struggle ensued. During the struggle, Deason grabbed Verhelst's arm and held it behind her back while holding the gun in his other hand. According to Verhelst, while Deason was holding her he said “he wasn't going to let [her] leave, [and] he was saying that if he did let [her] leave and [she] said anything about him having a gun, that ... [she] had no idea how he would hurt [her] family and how he would hurt [her].” Of note, at some point during the incident, Deason again threatened Verhelst's family if she told anyone he had a weapon.
As neighbors came on the scene, Deason put the gun in the waistband of his pants and Verhelst twisted out of Deason's grasp. Verhelst went to her SUV, but she could not leave because Deason had taken her keys. While Verhelst was sitting in her car, Deason parked his vehicle in front of the SUV blocking her escape.
Andrew Kommeau, Deason's stepfather, drove by and noticed that Deason and Verhelst were having a “lover's spat.” Kommeau parked his car and approached the couple. According to Verhelst, Deason told her, “ ‘If you say anything, I'll kill all three of us.’ “ Kommeau offered to talk things over with the couple, but when they declined his assistance he left the area.
Deason returned Verhelst's keys and moved his car. Verhelst promptly left the scene, and according to Verhelst, as she was leaving, she saw Deason “put something in a plastic bag and put it in his car.” Shortly thereafter, at about 1:35 p.m., Verhelst called 911.
Deason's trial testimony was very different. According to Deason, the initial argument on February 23, 2011, stemmed from his refusal to write a letter to the parole board to insure that the murderer of Verhelst's first husband remain incarcerated. According to Deason, he eventually told Verhelst that he would write a letter “if she would just leave [him] alone and let [him] have some time ... to put it together.” Verhelst agreed and left to spend the night in Plainville.
On the morning of February 24, 2011, Deason began to gather Verhelst's belongings and launder her clothing, so she could pack everything when she returned to the residence. According to Deason, when Verhelst returned about noon, she attempted to convince him that they could work things out. Deason, however, did not wish to reconcile, and he responded “[n]egatively” to Verhelst's attempts to rekindle their relationship. Deason helped her load her belongings in her vehicle.
When they were almost finished, Verhelst asked Deason where her “box” was located. According to Deason, Verhelst used this box to store numerous bottles of pills and other medications. According to Deason, he told Verhelst that he was not “going to give [the box] back to her.” Verhelst then “yanked her arm out of [his] hand” which Deason had been holding to help her walk on the slippery, snow-covered sidewalk.
Deason testified that he went inside the house, collected all of the medication belonging to Verhelst that he could find, placed it in a yellow plastic bag, and took it to his car “[t]o get it away from her.” This infuriated Verhelst, and according to Deason, the following events ensued:
“Well, then she refused to, she didn't want me to leave and made threats about she was going to do this, that and the other. If 1 was to drive off, she was going to call the police and tell them I was a drug dealer. And so I backed my car—no, when I listened to all of this, it sounded like I attacked her 10,000–pound Expedition with my 2,000–pound little two-door—but I backed my car up to where her car was, slid in the slippery driveway, couldn't even get out once I had touched her vehicle, and she came, she came with me as I backed out, and I just got out of the car and gave her the bag and I said, ‘I hope the police get you.’ “
Although Deason acknowledged that the gun Verhelst identified belonged to him—a gun Deason described as an “antique” .45 caliber “ball and cap pistol” which the United States Army had issued to his grandfather in 1911—he denied holding the gun to Verhelst's head or threatening her in any way.
After Verhelst left, Deason testified that he went inside his residence. Shortly thereafter, the police arrived and, according to Deason, he was “shocked and astounded” to learn of Verhelst's allegations. Deason explained that he consented to the officers' request to search his house because the .45 caliber pistol had been missing since the previous evening, and since it was his “dead grandfather's gun,” he “did not want that gun to get away.” According to Deason, Verhelst took the pistol during their discussion about the parole letter and told him “she might as well just shoot herself” because her husband's killer would shoot her if the parole board released him. Deason was also afraid Verhelst “had maybe taken the [gun] away from [him]” because she knew the gun had sentimental value.
Police officers searching the residence found a .45 caliber “cap and ball pistol,” a baggy of marijuana, and several pill bottles. Inside one bottle were found morphine pills prescribed to Timothy Deason, Deason's deceased brother.
Deason testified that the morphine and marijuana did not belong to him. With regard to the morphine, Deason testified that he was unaware it was in his house because it had belonged to his deceased brother, and he had recently removed all of his brother's belongings from his mother's home without realizing that the pills were among the possessions. Additionally, Deason denied telling Lieutenant Scott Becker and Deputy Geoffery Sloggett that he planned to use his brother's morphine to commit suicide when the cancer he was currently suffering from “became too much for him to bear.” With regards to the marijuana, Deason denied that he had ever possessed or used marijuana, and he insinuated that the marijuana belonged to Verhelst.
A few days after the incident, police officers searched out buildings next to Deason's home and discovered a suitcase containing drug paraphernalia, a .38 caliber revolver wrapped in latex gloves and a plastic baggy, and a .45 caliber semi-automatic handgun, which Verhelst later identified as the gun Deason used to threaten her.
Other witnesses testified at trial. Notably, Ryan Allen saw Deason “rapid[ly]” back his vehicle into an SUV parked in the driveway of the couple's residence. And Roy Hockett, Superintendent for the City of Natoma, observed the following:
“[Deason and Verhelst] were in the front yard of the[ir] residence. They were, let's see, he had his hand on her arm, and they started back to the house, and she twisted out of his grip, proceeded to her car. He stepped in the house and came back out [with a plastic bag], [and] went to his car.”
At the conclusion of the trial, the jury acquitted Deason of aggravated assault and convicted him of domestic battery, a Class B person misdemeanor, criminal threat, a severity level 9 person felony, possession of marijuana, a Class A nonperson misdemeanor, and possession of morphine, a drug severity level 4 felony.
On January 11, 2012, the district court sentenced Deason to mandatory drug treatment for up to 18 months, with an underlying prison term of 12 months, and an underlying jail term of 12 months. Deason subsequently filed this timely appeal. We will review the issues in the order presented by Deason.
Trial Court's Response to Jury's Question During Deliberations
For the first time on appeal, Deason challenges the trial court's handling of a question from the jury during their deliberations. The jury submitted the following question: “On a hung jury does it have to be unanimous or can we give a majority vote?” Upon receipt of this inquiry, the trial court summoned the prosecutor, defense counsel, and Deason to the courtroom and read the question on the record. After conferring with both counsel, the trial court proposed the following written response: “[P]lease refer to Instruction No. 15 as your answer.” Instruction No. 15 informed the jury that their “verdict must be unanimous.”
The trial court asked Deason's counsel if he would rather have the answer communicated to the jury in open court. Deason's counsel replied, “In the past in other cases, the judge has just written a note on that and returned that to them. Makes me no difference.” Accordingly, the court's response was typed, affixed to the jury's question, and delivered to the jury room.
While Deason does not challenge the substance of the district court's answer, he contends the district court violated the statutory procedure set forth in K.S.A. 22–3420(3), his constitutional and statutory right to be present at every critical stage of his trial, his constitutional right to a public trial, and his constitutional right to an impartial judge. Resolution of this issue requires statutory and constitutional interpretation, questions of law over which appellate courts exercise unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Preliminarily, as a general rule, constitutional grounds for reversal asserted for the first time on appeal are not properly before this court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Nevertheless, the Kansas Supreme Court has recognized three exceptions that allow an appellate court to consider such an issue for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862,235 P.3d 1203 (2010). Deason claims one of those exceptions—that this court can properly consider the merits of his argument to prevent the denial of fundamental rights. 290 Kan. at 862.
As Deason correctly notes, our Supreme Court has previously addressed an identical issue for the first time on appeal. See State v. Bell, 266 Kan. 896, 918–20, 975 P.2d 239,cert. denied528 U.S. 905 (1999). Moreover, several cases decided subsequent to Bell also addressed, for the first time on appeal, the identical issue Deason raises in this case. See, e.g., State v. Brown, 272 Kan. 809, 812–13, 37 P.3d 31 (2001); State v. Coyote, 268 Kan. 726, 731–35, 1 P.3d 836 (2000); State v. Womelsdorf, 47 Kan.App.2d 307, 321, 274 P.3d 662 (2012), petition for review filed May 10, 2012. Accordingly, we will review the merits of this issue. Right to be Present at Critical Stages of the Trial
Criminal defendants charged with a felony have a constitutional and statutory right to be present at all critical stages of their trial, including “when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue.” State v. Wells, 296 Kan. 65, Syl. ¶ 19, 290 P.3d 590 (2012); K.S.A. 22–3405(1).
Additionally, the proper procedure for answering questions from a deliberating jury is set forth in K.S.A. 22–3420(3), which states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” (Emphasis added.)
Deason claims that the trial court's written response to the jury's question violated the procedure articulated in K.S.A. 22–3420(3), and consequently, his right to be present at every stage of his trial. As the State points out, however, Deason fails to mention that he was present in the courtroom, as required by the statute, when the trial judge discussed the jury's question with counsel and determined an appropriate response.
But Deason does not challenge the manner in which the trial court formulated its answer; instead, Deason complains that he was not present when the trial court answered the question, i.e., when the jury received the trial court's written response in the jury room.
Deason's argument is without merit. Our Supreme Court recently addressed this very question and concluded that a trial court does not violate K.S.A. 22–3420(3) or a defendant's constitutional right to be present simply by sending a written answer to the jury rather than reading the answer in the presence of the defendant. Wells, 296 Kan. 65, Syl. ¶ 21. In Wells, the jury asked: “ ‘May we please have the legal definition of abets.’ “ 296 Kan. at 89. Upon receipt of this question, the trial judge called the parties into the courtroom, including Wells, and discussed the appropriate response with both counsel. The trial judge ultimately sent the jury a written response defining the word “abet.” On appeal, Wells contended that the trial judge's decision to send a written answer to the jury, rather than reading the answer in her presence, violated her constitutional right to be present. Our Supreme Court disagreed, and held:
“To ensure that a defendant's constitutional and statutory right to be present at all critical stages of his or her trial is protected, a defendant must be present during the court's discussion with the attorneys and ultimate decision on how to respond to a written jury question. But there is no need that the court read the written answer it decided out loud to the jury in open court while the defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy the defendant's right to be present.” 296 Kan. 65, Syl. ¶ 21.
As a result, our Supreme Court concluded that the trial court did not violate Wells' constitutional or statutory right to be present during all critical stages of her trial when it answered the jury's question in writing because she was present when the trial judge and counsel for both parties discussed how to respond. 296 Kan. at 92.
Wells is dispositive of this issue. The trial court did not err when it responded to the jury's question because the jury did not ask to be returned to the courtroom to receive information on a point of law, and the trial judge formulated the written answer, on the record, in the presence of Deason and counsel for both parties. Deason's constitutional or statutory right to be present at all critical stages of his trial was not violated. Constitutional Right to an Impartial Judge and Public Trial
Next, Deason argues that the procedure utilized by the trial court violated his fundamental rights to an impartial judge as guaranteed by the Fourteenth Amendment to the United States Constitution, and a public trial, as guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. With regard to his right to an impartial judge, Deason contends the trial judge's communication with the jury was not complete until the jury received the written answer and, as a result, an impartial judge was not present when the jury received this communication in the jury room.
Regarding his right to a public trial, Deason asserts the trial court's procedure deprived him of this right because the public was not present when the jury received the written answer. As Deason correctly notes, the lack of an impartial judge or a public trial are structural errors and are therefore not subject to harmless error review. See Womelsdorf, 47 Kan.App.2d at 323–25 (citing Arizona v. Fulminante, 499 U.S. 279, 308 and n. 8, 111 S.Ct. 1246, 113 L.Ed.2d 302 [1991] [right to an impartial judge], and Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 [1984] [right to public trial] ).
Deason fails to cite any authority for the propositions that the trial court's written response to the jury violated his right to an impartial judge and/or a public trial. On the other hand, there is legal authority to the contrary. Our court has previously addressed and rejected these very claims in Womelsdorf, 47 Kan.App.2d at 319–25.
In Womelsdorf, the trial judge responded to a jury question in writing, rather than by calling the jury into the courtroom to orally provide the answer. Like Deason, Womelsdorf was present when the trial court consulted with the attorneys and formulated its response to the jury's question. On appeal, Womelsdorf contended that this procedure violated her right to an impartial judge and a public trial because the completed communication occurred outside the presence of the judge in “ ‘a place where the public cannot go.’ “ 47 Kan.App.2d at 325. Our court rejected both of these arguments. 47 Kan.App.2d at 323–325.
With regard to Womelsdorf's claim that the trial court's procedure violated her right to an impartial judge, our court explained:
“Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial.... Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to an impartial judge.” 47 Kan.App.2d at 324.
Concerning Womelsdorf's allegation of a violation of her right to a public trial, we concluded:
“As stated above, the judge read the jury questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. 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. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to a public trial.” 47 Kan.App.2d at 325.
Subsequent panels of this court have adopted the analysis set forth in Womelsdorf and rejected similar alleged violations of the defendant's right to an impartial judge and a public trial. See State v. Bolze–Sann, No. 105, 297, 2012 WL 3135701, at *6–7 (Kan .App.2012) (unpublished opinion), petition for review filed August 24, 2012; State v. Hogan, No. 106,220, 2012 WL 5364674, at *8–9 (Kan.App.2012) (unpublished opinion), petition for review filed November 21, 2012. Accordingly, we hold this issue is without merit.
Finally, Deason argues that assuming “the multiple statutory and constitutional violations that occurred in this case, taken individually, do not rise to the level of reversible error,” this court should reverse due to cumulative error.
“Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.] One error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Because the record does not support any of Deason's allegations of error regarding the procedure utilized by the trial court to respond to the jury's question, there is no cumulative error.
Sufficiency of the Complaint to Establish Jurisdiction
Deason contends the complaint was fatally defective with respect to the charges of possession of morphine and criminal threat because the State failed to allege that the prohibited conduct was intentional. If true, Deason maintains that the district court lacked jurisdiction to convict him for these crimes. On the other hand, the State insists the trial court had jurisdiction because the complaint was sufficient to apprise Deason of the allegations against him, and the language used tracked the statutory definitions of these offenses.
Under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, a defendant is guaranteed the right to be informed of the nature and cause of the accusation against him or her. State v. Inkelaar, 293 Kan. 414, 433, 264 P.3d 81 (2011). Accordingly, a complaint that fails to include an essential element of a charged crime is generally considered to be “ ‘fatally defective,’ “ and thereby, insufficient to confer subject matter jurisdiction upon the district court to convict the defendant of the alleged offense. 293 Kan. at 433–34;K.S.A. 22–3201. Whether a complaint or information is sufficient to give the district court jurisdiction presents a question of law over which this court exercises unlimited review. State v. Reyna, 290 Kan. 666, Syl. ¶ 2, 234 P.3d 761,cert. denied131 S.Ct. 532 (2010).
Preliminarily, Deason concedes that he neglected to raise this issue in the district court by filing a motion for arrest of judgment. In State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), our Supreme Court found that the standard an appellate court utilizes to evaluate whether a charging document is sufficient depends upon when the defendant first raises an objection.
“When a defendant files a motion for arrest of judgment based on a defective information, the pre- Hall standard applies. [Citations omitted.] Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed.
“Under the pre- Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import, so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded.” Reyna, 290 Kan. 666, Syl. ¶¶ 5, 6.
If, however, the defendant challenges the sufficiency of the charging document for the first time on appeal, the defendant must show the alleged defect “either ‘(1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.’ [Citations omitted.]” Inkelaar, 293 Kan. at 434. Importantly, Deason does not assert or brief one or more of these three post- Hall factors essential to establish a defective charging document when the defendant raises this issue for the first time on appeal. As a result, Deason has waived and abandoned this aspect of the issue on appeal because failure to properly support a point is akin to failing to brief the issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010).
While Deason concedes that this court is required to follow our Supreme Court's precedent absent some indication that the court is departing from its previous position, he argues that our Supreme Court's recent discussion of Hall in State v. Portillo, 294 Kan. 242, 274 P.3d 640 (2012), indicates that the court is considering a change in the standard to be applied in cases where the issue is raised for the first time on appeal. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012); Portillo, 294 Kan. at 255–57.
We acknowledge our Supreme Court's discussion in Portillo of certain incongruities in applying the post- Hall standard. In the present case, however, we are not required to determine whether Hall is still good law because even by applying the pre- Hall standard it is apparent that the charging document in this case was not defective. As the State correctly notes, the complaint in this case utilizes the same language used by the legislature to define the offenses of possession of morphine and criminal threat.
With regard to possession of morphine, Count II of the complaint described the elements of this offense as follows:
“That on or about February 24, 2011, the above named defendant, within the above named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully and feloniously possess any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65–4107, and amendments thereto, or a controlled substance analog thereof, to-wit: morphine.”
This language is synonymous with the statutory definition, which is articulated in K.S.A.2010 Supp. 21–36a06(a) as follows: “It shall be unlawful for any person to possess any opiates, opium or narcotic drugs, or any stimulant designated in subsection (d)(1), (d)(3) or (f)(1) of K.S.A. 65–4107, and amendments thereto, or a controlled substantive analog thereof.”
Similarly, criminal threat, which was alleged in Count V of the complaint, defines the offense in an identical manner to the relevant statute, K.S.A.2010 Supp. 21–3419(a)(1). Count V states:
“That on or about February 24, 2011, the above named defendant, within the above named County in the State of Kansas, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully and feloniously communicate a threat to commit violence communicated with intent to terrorize another, to-wit: Katherine Verhelst.”
Similarly, K.S.A.2010 Supp. 21–3419(a)(1) provides:
“A criminal threat is any threat to:
(1) Commit violence communicated with intent to terrorize another, or to cause the evacuation, lock down or disruption in regular, ongoing activities of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation, lock down or disruption in regular, ongoing activities.”
Generally, a complaint is sufficient if it substantially follows the language of the statute or employs equivalent words as long as the defendant is fully informed of the particular offense charged. Reyna, 290 Kan. 666, Syl. ¶ 6. Not only did this complaint substantially follow the language of the relevant statutes, it utilized verbatim the statutory language, which shows that it was sufficient to inform Deason of the charges against him.
Deason contends, however, that in addition to the statutory definitions, under K.S.A. 21–3201, the State was also required to include a general criminal intent element for these offenses in the charging document. Of note, Deason cites no Kansas appellate case where his contention has been accepted. Yet, Kansas law provides that
“where an act is made a crime by statute, without any express reference to intent, ... it is not necessary to allege such intent, or any intent, [in the complaint] but simply to allege the commission of the act in the language of the statute, and the intent will be presumed.” State v. Cruitt, 200 Kan. 372, 375, 436 P.2d 870 (1968).
See Johnson v. State, No. 104,725, 2011 WL 4357833, at *3 (Kan . App.2011) (unpublished opinion), petition for review filed November 22, 2011 (“[T]he State was not required to allege Johnson committed the act with criminal intent. Johnson's intent was presumed from the language of the complaint, which was drawn from the statute. [Citations omitted.]”). Deason's argument is without merit.
We hold the complaint was not fatally defective with regard to the charges of possession of morphine and criminal threat because it substantially followed the language of the relevant statutes and, therefore, the charging document conferred subject matter jurisdiction upon the district court.
Jury Instruction on Criminal Threat
Next, Deason contends the trial court erred by improperly instructing the jury on the elements of the crime of criminal threat. Specifically, Deason concedes the trial court properly instructed the jury on the specific intent element of this offense—that he threatened to commit violence with the intent to terrorize another. However, he complains that the district court failed to instruct the jury regarding the general intent element—that he intentionally threatened to commit violence. Deason maintains that under K.S.A. 21–3201, “general criminal intent is an essential element of virtually every crime defined in the criminal code” and, as such, the district court was required to instruct the jury as to the general intent element of criminal threat. Notably, the State did not address this issue in its brief.
At the outset, Deason concedes that he did not object to the challenged instruction at the instructions conference. This fact determines our standard of review. In cases asserting instructional error raised for the first time on appeal, the reviewing court must utilize a two-step process. State v. Williams, 295 Kan. 506, Syl. ¶¶ 4, 5, 286 P.3d 195 (2012). Under the first step, an appellate court must determine whether an error occurred, and “[t]o make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. 506, Syl. ¶ 4.
If an error is found, the reviewing court moves to the “reversibility inquiry,” by applying a clearly erroneous standard, i.e., a harmless error analysis, under which “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”; a de novo determination involving “a review of the entire record.” 295 Kan. 506, Syl. ¶¶ 4, 5, 516;K.S.A. 22–3414(3). Significantly, the defendant maintains the burden to establish reversibility. 295 Kan. 506, Syl. ¶ 5.
The trial court provided the jury with Instruction No. 11, setting forth the elements of the charge of criminal threat:
“In Count V, the defendant is charged with criminal threat. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant threatened to commit violence;
“2. That such threat was communicated with the intent to terrorize Katherine Verhelst; and
“3. That this act occurred on or about the 24th day of February, 2011, in Osborne County, Kansas.”
Deason provides no citation to legal authority wherein a Kansas appellate court has ever found that general criminal intent must be separately instructed on in cases involving criminal threat. Our research has revealed none.
On the other hand, Instruction No. 11 is synonymous with the statutory definition provided in K.S.A.2010 Supp. 21–3419(a)(1), which as explained earlier, defines the offense of criminal threat as any threat to “[c]ommit violence communicated with intent to terrorize another....”
Moreover, this instruction also mirrored the wording of PIK Crim.3d 56.23, which according to the accompanying “Notes on Use,” is derived from K.S.A.2010 Supp. 21–3419(a)(1). “The use of PIK instructions, while not mandatory, is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. [Citation omitted.]” State v. Carter, 284 Kan. 312, 330, 160 P.3d 457 (2007). And notably, PIK Crim.3d 56, 23 was approved by our Supreme Court in State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397 (1976), when the defendant did the threatening and communicated the threat.
Finally, we note that the jury was provided with Instruction No. 12 which stated:
“Ordinarily, a person intends all 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 the defendant. This burden never shifts to the defendant.”
This instruction was a verbatim recitation of PIK Crim.3d 54.01.
Accordingly, we find no error in the trial court's Instruction No. 11. Moreover, assuming Deason had shown error, he has failed to mention, let alone brief and prove that any error requires reversal of the conviction for criminal threat. See Williams, 295 Kan. 506, Syl. ¶ 5. An issue not briefed by the appellant is deemed waived and abandoned. McCaslin, 291 Kan. at 709.
Failure to Provide a Unanimity Instruction
For the first time on appeal, Deason contends that his conviction for criminal threat involved multiple acts, each of which could have sustained his conviction, and because the trial court failed to provide the jury with a unanimity instruction, his conviction for criminal threat must be reversed.
A criminal defendant has a statutory right to a unanimous jury verdict. State v. Colston, 290 Kan. 952, 961, 235 P.3d 1234 (2010); K.S.A. 22–3421. Typically, jury unanimity is achieved by instructing the jury that its verdict must be unanimous on each separate count. Colston, 290 Kan. at 961. However, when the State charges a defendant with a single count and presents evidence of multiple acts, each of which is sufficient to support the crime charged, it becomes unclear whether the jury unanimously agreed upon the specific act supporting the defendant's conviction. 290 Kan. at 961. In order to insure jury unanimity in such cases, the district court must “either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt. [Citation omitted.]” 290 Kan. at 961.
When determining whether a case involves multiple acts, appellate courts utilize a three-part test. Colston, 290 Kan. at 961. First, the court decides “if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other.” 290 Kan. at 961. If the case involves multiple acts, the court next considers whether an error occurred. That is, whether the State failed to properly elect an act or the trial court failed to provide the jury with a unanimity instruction. 290 Kan. at 961. Finally, in the event an error occurred, the court must determine whether the error requires reversal. 290 Kan. at 961–62.
As explained above, “[t]he threshold question in a multiple acts analysis is whether the defendant's conduct is part of one act or represents multiple acts which are separate and distinct from each other.” Colston, 290 Kan. at 962. In answering this question, appellate courts “must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues. [Citation omitted.]” 290 Kan. at 962. Whether a case involves multiple acts is a question of law over which we exercise unlimited review. 290 Kan. at 962.
Our Supreme Court has identified several factors relevant to the analysis of whether the defendant's conduct represents multiple acts:
“ ‘(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct’ [Citation omitted.]” Colston, 290 Kan. at 962.
Deason claims the State presented evidence of separate and distinct multiple acts—three threatening statements, each of which was sufficient to support his conviction for criminal threat. In particular, Deason contends the jury could have premised its verdict upon any of the following statements: (1) his statement to Verhelst, inside the house, that it was “time for [them] to both go,” which Verhelst interpreted as a reference to “murder-suicide”; (2) his admonition to Verhelst, in the front yard, to remain quiet about the gun or “[she] had no idea how he would hurt [her] family and how he would hurt [her]”; and (3) his statement to Verhelst, upon the arrival of Kommeau, that he would kill all of three of them if she said anything about the gun.
The State maintains that these statements do not constitute multiple acts because Deason made these threats at or near the same time and location, there were no intervening events, and there was no fresh impulse motivating Deason's conduct, as his “rage against [Verhelst] was constant.”
We are persuaded that this is not a multiple acts case. Upon our careful review of the record, we find that Deason's threats were part of a single impulse to terrorize Verhelst rather than separate and independent criminal acts. Several factors compel this conclusion. First, Deason's threats occurred over a relatively short period of time—within 1 1/2 hours. Second, the threats occurred at the same location—inside the dwelling, in the front yard, and in the driveway of the couple's residence. Third, we discern no intervening events because the threats were all made during the course of a single, ongoing domestic dispute about Verhelst's apparent decision to leave the residence. Finally, Deason's actions were not motivated by a “fresh impulse” to commit multiple crimes of criminal threat; to the contrary, Deason was driven by a “broad and singular impulse” to convince Verhelst to maintain their relationship and not abandon the residence by threatening her with physical violence. See State v. Foster, 290 Kan. 696, 714, 233 P.3d 265 (2010).
Our Supreme Court recently came to a similar conclusion when presented with an analogous set of facts. Foster, 290 Kan. at 712–15. In Foster, the State charged Foster with criminal threat after he “spent at least an hour, perhaps longer,” terrorizing two victims, B.H. and R.R. inside one of the victim's apartments. 290 Kan. at 714. The facts presented at Foster's trial established that Foster threatened to kill the women to get them into the bedroom and to undress; he forced R.R. into the closet and threatened to kill her if she tried to escape; and after killing B.H ., he threatened to kill R.R. and her family if she told anyone.
On appeal, Foster claimed the State violated his constitutional right to a unanimous jury verdict because the State introduced evidence of multiple acts, which could support his conviction for criminal threat. Our Supreme Court disagreed, finding that “Foster was motivated by a broad and singular impulse to threaten and terrorize B.H. and R.R. [and][t]he many threats were the result of a single impulse to terrorize the apartment's occupants.” 290 Kan. at 714. The court explained that all of Foster's threats were made at the same location and over a short time period, and while other criminal acts occurred between the threats, it was “difficult to see how [these criminal acts] break the causal relationship between all of Foster's threats or demonstrate fresh impulses to commit multiple crimes of criminal threat.” 290 Kan. at 714. Consequently, the court concluded that a unanimity instruction was unnecessary. 290 Kan. at 714. See also State v. Hogan, No. 106,220, 2012 WL 5364674, at *4 (Kan.App.2012) (unpublished opinion), petition for review filed November 21, 2012.
Under the totality of circumstances in this case, we hold there were not multiple acts of criminal threat which required either the State to elect a particular criminal act or the district court to submit a unanimity instruction to the jury.
Even if we concluded that the present case involved multiple acts of criminal threat, however, we would not find reversible error. With regard to the second step of the analysis, we are convinced the trial court did not submit a unanimity instruction and the State did not make an election as to a particular means of criminal threat. Under these circumstances, a trial error would have occurred. Colston, 290 Kan. at 968. In the third and final step of the multiple acts analysis, however, we consider whether this error warrants reversal. Colston, 290 Kan. at 969. When, as in this case, the defendant failed to request a unanimity instruction, appellate courts apply the “ ‘clearly erroneous' “ standard, under which “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” See Colston, 290 Kan. at 969;Williams, 295 Kan. 506, Syl. ¶ 5;K.S.A. 22–3414(3).
A trial court's “ ‘failure to instruct’ “ in a multiple acts case is generally reversible unless “the defendant present[ed] a unified defense, e.g., a general denial.” State v. Voyles, 284 Kan. 239, 253, 160 P.3d 794 (2007). “[I]n one of its purest forms,” a unified defense is “a mere credibility contest between the victims and the alleged perpetrator.” 284 Kan. at 253.
Deason argues that the instructional error warrants reversal because he did not present a unified defense. In support, he notes that while he “testified that he did not hold a gun to Verhelst's head, he did admit that he had been in an argument with her inside the house and that there was a physical confrontation in the front yard of the house.” The State counters that Deason did present a general denial, or unified defense, because he testified to a completely different and exculpatory version of events than was presented by Verhelst.
Based upon a thorough review of the record, we are convinced that Deason did present a general denial of any criminal threat. This case was a credibility contest between Deason and Verhelst, with each one testifying to a different version of the events which occurred on February 24, 2011. While Deason acknowledged that an argument ensued between the couple, he contended that Verhelst was the aggressor because she became irate when he attempted to hide her box of medications. And Deason vehemently denied holding a gun to Verhelst's head or threatening her in any way. In fact, during closing arguments, defense counsel summarized his theory of the case: “Deason says he never threatened [Verhelst], never held a gun to her.” Furthermore, Verhelst's testimony was generally consistent and, on appeal, Deason does not allege that her testimony contained any inconsistencies.
To summarize, we conclude that a unanimity instruction was not required. Assuming one was necessary, however, based upon Deason's unified defense and the weight of the evidence presented against him, including Verhelst's largely consistent testimony which the jury determined was credible, we are not firmly convinced that the jury would have rendered a different verdict had the trial court provided a unanimity instruction.
Jury Instruction on Reasonable Doubt
Deason argues that the trial court committed reversible error by improperly instructing the jury on reasonable doubt. The jury instruction of which Deason now complains stated:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
With the exception of the word “any” in the last sentence, this instruction is indistinguishable from PIK Crim.3d 52.02, which provides, in pertinent part:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Although the instruction given at Deason's trial deviated slightly from the most recent version of PIK Crim.3d 52.02, the instruction was identical to the pre–2005 version of PIK Crim.3d 52 .02. See State v. Womelsdorf, 47 Kan.App.2d 307, 332–34, 274 P .3d 662 (2012), petition for review filed May 10, 2012. According to the PIK Committee, the Committee “changed the word ‘any’ to ‘each’ in the last sentence of the instruction in order to be consistent with the instructions throughout PIK Crim.3d which state, ‘To establish this charge, each of the following claims must be proved....’ “ Comment, PIK Crim.3d 52.02 (2004 Supp.).
Deason argues that under the Sixth Amendment to the United States Constitution, the State must prove every essential element of a criminal charge beyond a reasonable doubt to sustain a conviction. Deason asserts that the district court improperly diluted the State's burden of proof when it used the word “ ‘ any ’ “ rather than “ ‘each’ “ because “ ‘any’ “ is unconstitutionally ambiguous, as “ ‘[d]epending on the context, [“any”] may mean or refer to “one” or “every.” [Citation omitted.]’ “ (Emphasis added.) The State counters that the instruction, when read as a whole, was a substantially correct statement of the law.
Once again, Deason did not raise this instructional issue below. As a result, we employ the two-step process and analysis set forth in Williams, 295 Kan. 506, Syl. ¶¶ 4, 5, which we discussed earlier. When reviewing jury instructions, appellate courts consider the instructions as a whole, and if the instructions properly state the law, an error in an isolated instruction may be disregarded as harmless. State v. Hall, 292 Kan. 841, 857, 257 P.3d 272 (2011); Womelsdorf, 47 Kan.App.2d at 330. See State v. Snowden, No. 107,284, 2012 WL 5869612, at *11 (Kan.App.2012) (unpublished opinion).
Subsequent to the briefing and oral argument in this case, our Supreme Court filed its opinion in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). Herbel is dispositive of this issue. In Herbel, our Supreme Court was presented with the identical instruction which Deason claims is erroneous in this case. Our Supreme Court concluded that while this older PIK instruction was not preferred, “it was legally appropriate.” 296 Kan. 1101, Syl. ¶ 9.
In further support of its conclusion, our Supreme Court noted that the three individual elements instructions given in Herbel's case all contained the following language: “ ‘To establish this charge, each of the following claims must be proved.’ (Emphasis added.)” 296 Kan. at 1123. Our Supreme Court found that this language helped to negate any potential confusion that may have been caused by the use of the word “any” in the reasonable doubt instruction. 296 Kan. at 1123–24. Similarly, in the present case, in each of the five elements instructions given to the jury which related to the five individual charges brought against Deason, the language cited with approval in Herbel was also provided to the jury.
Deason's claim of instructional error is without merit.
Affirmed.