Opinion
No. 106,197.
2012-12-14
STATE of Kansas, Appellee, v. Omar S. DURAN, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Omar S. Duran appeals his convictions for aggravated burglary, aggravated assault with a deadly weapon, theft, conspiracy to commit aggravated battery, and two counts of aggravated battery, Duran argues the trial court erred in allowing the jury to hear gang-related evidence and also in refusing to give a lesser included jury instruction for a lower severity level of aggravated battery. We affirm.
Late at night on April 25, 2009, David Martinez had Daniel and Adan Rivera at his house The three were playing video games and drinking beer. Daniel stepped outside to call his girlfriend. He testified that as he walked around the yard talking to his girlfriend, someone swung an object and hit him in the head. A second blow struck his arm. Daniel fell to the ground and curled up to protect himself during the beating. Daniel suffered a broken right arm, two fractures to his skull, body bruises, and bleeding on his brain. His wallet was stolen. Daniel would later flown by emergency helicopter to a hospital in Wichita.
Martinez and Adan had continued playing games while Daniel went outside. Martinez testified that all of a sudden three or four men kicked opened the back door and rushed inside. The assailants were carrying a bat, a 2x4 board, and a pipe. Martinez testified that he ran for the front door where he had an old golf club and then turned around and locked eyes with an assailant dressed in all black and with a black handkerchief covering the lower half of his face. Before Martinez could defend himself, the assailant struck Martinez in the back of the head. Martinez fell to the ground and thought that he was struck again. Martinez picked Duran out of a lineup as the assailant who had attacked him that night. Martinez had two gashes in his head that required eight staples and two staples respectively. He was transferred to a hospital in Wichita but released soon after.
Adan testified he was able to get out of the front door as Martinez reached for the golf club. As Adan stumbled, he turned around and saw the assailant dressed in all black strike Martinez in the head with a bat. The assailant turned his sights on Adan and gave chase. Adan took off running and fled the attack. Adan picked Duran out of a lineup as the assailant he saw attacking Martinez that night.
The State charged Duran as the mastermind behind the beatings. The State's theory was that Duran was angry with Jason Mendoza, who was nicknamed J–Bob. J–Bob allegedly had tried to rape Duran's girlfriend, Latosha Hill. Duran recruited Justin Brown, Dave Wilson, and Zach Moss to help him beat up J–Bob. They believed that J–Bob was at Martinez' house on the night in question.
Brown testified he was at Duran's house when Duran started talking about beating up the man who had tried to raped Hill. Brown said that Duran did not want to go alone so he recruited Brown and Wilson to go along for backup. Duran told Brown the name of the man was J–Bob. Brown testified that Duran offered him and Wilson incentives in the Gangster Disciples if they assisted him. They agreed to help Duran. Duran and Brown were armed with bats, and Wilson had a 2x4 board. On the way to Martinez' house, they picked up Carr who was brought up to speed on the plan and agreed to help. Carr had a crow bar.
Brown testified that when they got to Martinez' house, they found a man outside in the yard and Duran beat him severely with a bat. Brown said they rushed inside the house and found two men. Duran attacked one of them (Martinez) with the bat and Wilson assisted by hitting Martinez with the 2x4. Brown testified that all of a sudden another man popped up and ran out the back door. Brown chased him down the alley. Brown said that Duran chased another man out the front door. Brown testified that Duran was mad they had not found J–Bob. Brown said that back at Duran's house, Duran produced Rivera's wallet and gave some him cash out of it. Wilson and Moss confirmed Duran as the leader of the group, but they were fuzzy in their testimony as to whether anyone was beaten and who did it.
Duran denied any involvement in these crimes. He testified he was not a member of the Gangster Disciples. Duran's alibi was that he had been with Hill all night on the evening in question. Hill testified that Duran was with her and had not left the house that night. Hill confirmed that J–Bob had sexually assaulted her while Duran was in Texas. Hill testified that she had been “passed out drunk” and when she woke up J–Bob was on top of her trying to have sexual intercourse. Hill's brother interrupted them and chased J–Bob out of the apartment. Hill testified that Duran was not upset about it, but that he told her she was stupid.
The State charged Duran with severity level 4 aggravated battery against Rivera, severity level 4 aggravated battery against Martinez, aggravated burglary, and aggravated assault with a deadly weapon. The State later added charges of aggravated robbery, aggravated intimidation of a witness, conspiracy to commit aggravated battery, and conspiracy to commit aggravated intimidation of a witness.
Before trial, Duran filed a motion in limine to exclude, among other things, his prior criminal record, criminal history, and any gang-related evidence. The trial court granted Duran's motion except for the gang-related evidence. The court determined the gang-related evidence was admissible as motive for commission of the conspiracy to commit aggravated battery. Defense counsel also asked for lesser included instructions for the aggravated battery charges. The trial court granted lesser included instructions for the aggravated battery involving Martinez, but it denied the request concerning the aggravated battery against Rivera.
The jury convicted Duran of severity level 4 aggravated battery of both Rivera and Martinez, aggravated burglary, aggravated assault, theft as a lesser included offense of aggravated robbery, and conspiracy to commit aggravated battery, but acquitted him of aggravated intimidation of a witness and conspiracy to commit aggravated intimidation of a witness. The trial court denied Duran's motion for departure and sentenced him to a controlling term of 138 months' incarceration representing the maximum sentence Duran could receive under a doubling of his 69–month sentence for one of the aggravated batteries. See K.S.A. 21–4720(b)(4) (The “double rule” provides that the total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an complaint cannot exceed twice the base sentence.).
Duran appeals.
Duran first argues the trial court erred by allowing the State to present evidence of gang-related activity.
Prior to trial, Duran filed a motion in limine arguing for the exclusion of certain evidence, including:
“Any comments alleging that Mr. Duran has gang affiliations or is a member of a gang is also immaterial, irrelevant and inadmissible. If it was made known to the jury, it would be improper, unduly prejudicial and error. Moreover, the prejudice and harm could not be erased by the Court sustaining an objection and/or instructing the jury to disregard it.”
The trial judge heard arguments on Duran's motion in limine and then set forth the following ruling:
“The motion in limine will be granted as agreed to by the parties with the exception of the gang issue. And I appreciate the case and the preliminary hearing transcript. Without the conspiracy charge I think I would, I know I would rule the other way. Because I think the gang argument would, as to the other three persons involved, if we were trying them to the gang argument might explain an inexplicable act as to his defendant. As [defense counsel] said there's at least an arguably explicable reason for the anger. But because there is a conspiracy charged, I find the State's argument swaying on the issue of gang involvement. At least one witness will testify that apparently that or has testified that gang involvement led him to participating. So I will allow that testimony, and I assume that raises a limiting instruction.”
Gang evidence was introduced into the trial by defense counsel at voir dire. Defense counsel questioned the potential jurors on their contact with gangs. The next instance of gang evidence came in the State's opening statements where the prosecutor explained why the individuals decided to help Duran:
“Part of those incentives would be that he would vouch for them in the gang called the Gangster of Disciples. He would vouch for them. He would give them rank. He would bless them, were the terms that were used. Bless them into the gang. Give them power and rank and their credential into this gang, if the two, Mr. Wilson and Mr. Brown, helped him with his plan.”
In the defense opening, counsel told the jury:
“In fact this isn't gang related in the least. Or maybe it is with these two groups, but not with Mr. Duran. You listen to the first statements by these young men. Nothing about stripes or anything like that. Rank. Their story morphs into what you will hear the next couple days.”
Defense counsel cross-examined Detective Thad Pickard about the possibility of retaliation between groups and potential gang activity. There was no objection to his comment.
Wilson testified about a plan to fight the person who had tried to rape Duran's girlfriend. There was no testimony concerning gang evidence. On cross-examination, defense counsel inquired of Wilson whether he was going along with Duran to get “rank or stripes in a gang.” Wilson responded that he was not in a gang, but he later contradicted himself in saying that he was “into gangs then” but never took the initiative to join one. However, he said that he could have been motivated to join Duran and might have been in a gang. On redirect, the State did not mention gangs; it only referred to the situation as a plan.
Brown testified that Duran offered him and Wilson inducements to help him beat up J–Bob. Defense counsel objected pursuant to the pretrial motion and asked for and received a continuing objection. Brown testified as follows:
“Q. [PROSECUTOR] Was he giving you some—was he giving you or Dave or both of you some reasons why you should go along and help him?
“A. [BROWN] Yeah.
“Q. What was those reasons?
“A. Cause we was—I don't know how to put it. Like family. I mean.
“Q. Okay. Explain.
“A. Like we was all members of
“Q. You all what?
“A. We're all members.
“Q Of what?
“A. The same organization.
“Q. What organization was that?
“A. Folks.
“Q. Okay. Was there a name for the organization?
“A. Yes.
“Q. What was the name?
“A. G.D.s.
“Q. G.D.s. What's G.D.s?
“A. Gangster Disciples.
“Q. Gangster Disciples?
“A. Yeah.
“Q. Is that a street gang?
“A. If you—yes.
“Q. Was he talking to you and/or Dave Wilson about what he could do for you in return with the Gangster Disciples in order if you agreed to go over and help with this J–Bob?
“A. Well, he was talking to Dave about it. Mostly him.
....
“Q. What did he say?
“A. Like he could help him get further. He could help him get further into introducing him to some other members, help him get a high rank. Something like that.
“Q. Higher rank in the Gangster Disciples?
“A. Yeah.
“Q. Did that interest Dave?
“A. Yeah.
“Q. Ultimately did it interest you?
“A. Not really.
“Q. Okay. Why was that?
“A. Because I didn't need it.
“Q. You didn't need it? You were already a member?
“A. Yeah.
“Q. Was Dave a member?
“A. Not really.
“Q. Was [Duran] a member?
“A. Yeah.
“Q. Okay. Did you and Dave agree to help [Duran] with this plan?
“A. Yeah.”
Brown reaffirmed the gang membership on defense's cross-examination.
Duran denied any involvement in these crimes. He testified he was not a member of the Gangster Disciples. Duran's alibi was that he was with Hill all night on the evening in question. Duran took the stand again for very limited testimony on the gang affiliation question. Duran testified he was not a gang member and had never been a member of a gang. On cross-examination by the State, Duran testified that he had lived with Hill for 6 or 8 months but did not know whether she was a gang member.
Gang affiliation evidence is admissible if relevant. State v. Brown, 285 Kan. 261, 297, 173 P.3d 612 (2007). Relevant evidence is defined by statute as evidence that is both material and probative. See K.S.A. 60–401(b). We review whether evidence is material under a de novo standard. State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010). Materiality addresses whether a disputed fact has a legitimate and effective bearing on the decision of the case. See State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). In other words, a fact is material if it is “ ‘significant under the substantive law of the case and properly at issue.’ “ 286 Kan. at 505 (quoting State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 [2006] ).
Initially, we will address a preservation issue. The record clearly shows defense counsel broached the subject of gang activity as early as voir dire by inquiring of the potential jurors of their knowledge of gangs and gang activity. It was defense counsel who planted the seeds of gang activity in the minds of the jurors. Defense counsel also failed to object to the gang activity comments of the prosecutor during opening statements and then made gang-related comments in her own opening statement. We recognize that defense counsel eventually raised a continuing objection to the gang-related evidence.
We have held that when a pretrial motion to suppress has been denied, the moving party must still object to the introduction of the evidence at trial in order to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). This holding is also consistent with the language in K.S.A. 60–404—objection to the evidence must be “timely interposed”—and consistent with this court's long-standing characterization of the statutory language as requiring a “contemporaneous” objection. Among other advantages, this holding allows the district court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, it allows the court to be prepared—after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41–42, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (in limine ruling “is subject to change when the case unfolds”). Defense counsel broached the subject of gang-related activity and then failed to object to the State's admission of gang-related evidence until well into the trial. Duran failed to properly preserve the issue. In any event, as discussed below, we find admission of the evidence was not erroneous.
Under our standard of review, we examine whether evidence is probative under an abuse of discretion standard. Shadden, 290 Kan. at 817–18. Evidence is probative if it has any tendency in reason to prove any material fact, see K.S.A. 60–401(b); State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009). “For evidence of gang affiliation to be admissible there must be sufficient proof that gang membership or activity is related to the crime charged.” State v. Tatum, 281 Kan. 1098, Syl. ¶ 3, 135 P.3d 1088 (2006). Even if evidence is deemed relevant, it may be excluded if it is more prejudicial than probative. See State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 (2011). We review a trial court's weighing of prejudice and probative value for an abuse of discretion. 293 Kan. at 424.
Duran argues that res gestae is no longer a valid independent legal basis for admitting evidence under State v. Gunby, 282 Kan. 39, 59–63, 144 P.3d 647 (2006). However, the court in State v. Peppers, 294 Kan 377, 389, 276 P.3d 148 (2012), recently stated:
“Our decision in Gunby eliminated res gestae as an independent basis for the admission of evidence. It did not eliminate the admission of evidence of events surrounding a commission of the crime under the applicable rules of evidence. In fact, as noted by the State, this court has determined that gang-related evidence can be admissible when the evidence ‘forms a part of the events surrounding the commission of the crime’ in post- Gunby cases. See Brown, 285 Kan. at 297 (citing Goodson, 281 Kan. at 922); see also Tatum, 281 Kan. at 1109;Winston, 281 Kan. at 1135.”
In Duran's case, the trial court determined that the gang-related evidence provided a motive for the conspiracy and why Wilson, Brown, and Moss had become involved in the crime. Additionally, the gang-related evidence formed “parts of the events surrounding the commission of the crime.” See Goodson, 281 Kan. at 922. We see no abuse of discretion in the trial court's determination that the gang affiliation evidence was probative and material for establishing the conspiracy to commit aggravated battery. Gang affiliation and possible gang-related incentives explained why Duran, Wilson, Brown, and Moss ended up at Martinez' house during the aggravated batteries.
We now turn to the final step in the analysis of whether admission of the evidence was unduly prejudicial. The probative value of gang affiliation evidence must be weighed against its potential for prejudice. K.S.A. 60–445; Shadden, 290 Kan. at 817–18. “[T]he prejudicial effect of such evidence may be cured by a limiting jury instruction,” although a district court is not required to sua sponte give a limiting instruction on gang affiliation evidence. Brown, 285 Kan. at 300 (citing State v. Ross, 280 Kan. 878, 887–88, 127 P.3d 249 [2006];State v. Conway, 284 Kan. 37, 51, 159 P.3d 917 [2000] ). The giving of a limiting instruction in the context of gang affiliation evidence is “one of many factors,” not the sole factor, that a court ought to consider in determining prejudice. 284 Kan. at 47–48 (discussing Ross, 280 Kan. at 888). A district judge's balancing of probative value and prejudice is reviewed for an abuse of discretion. Shadden, 290 Kan. at 817–18.
Here, the prejudicial effect of the gang evidence was limited by the trial court's jury instruction. The court instructed the jury:
“Evidence has been admitted tending to prove that the defendant was involved in ‘gang’ activity. This evidence may be considered solely for the purpose of explaining the defendant's and/or other persons' motives for their participation in the crimes charged and to explain their actions as to the charge of conspiracy to commit aggravated battery.”
“The district judge's ... admonition to the jury emphasized the legitimate purpose of the admission.” State v. Race, 293 Kan. 69, 77, 259 P.3d 707 (2011). This court “generally presume[s] jurors follow the instructions given them in the district court.” 293 Kan. at 77 (citing State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 [2010] ).
Assuming that the jury properly followed the trial court's instructions in this case, the risk of undue prejudice was greatly reduced. The probative value side of the balance on the gang affiliation evidence had substantial weight. The evidence supported motive by explaining why Wilson, Brown, and Moss accompanied Duran to the home of Martinez in search of retribution against J–Bob. The court did not abuse its discretion by admitting the gang evidence with a limiting instruction.
Last, Duran argues the trial court erred in failing to give the jury an instruction on the lesser included offense of severity level 7 aggravated battery against Rivera. That version of aggravated battery is defined as “intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21–3414(a)(1)(B). In contrast, the severity level 4 version with which Duran was charged, tried, and convicted is defined in relevant part as “[i]ntentionally causing great bodily harm to another person.” K.S.A. 21–3414(a)(1)(A).
Because Duran's counsel requested the lesser included instruction, our standard of review is whether the evidence, when viewed in the light most favorable to the defendant, supported the instruction. The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Jones, 279 Kan. 395, Syl. ¶ 1, 109 P.3d 1158 (2005).
At the jury instructions conference, the trial court considered lesser included instructions for the aggravated battery counts involving both Rivera and Martinez. Duran requested a full panoply of lesser included instructions for both victims. The State did not object to giving all lesser included instructions on the aggravated battery charge involving Martinez. The court adopted the following reasoning set forth by the State concerning a denial of a severity level 7 aggravated battery jury instruction involving Rivera:
“Then [defense counsel] asks for aggravated battery level seven, which is intentionally causes bodily harm either with a deadly weapon or wherein a manner whereby great bodily harm, death, or disfigurement could occur. Well, that's the distinction between level seven agg. battery and level four agg. battery. And that's the question for the Court. Could a reasonable Jury, on Mr. Rivera first, find there was anything less than great bodily harm? I mean, he's got a broken arm. He's got skull fractures. He has to have surgery. As a matter of law, it really can't be anything other than that, and the PIK as you see it, Judge, in the notes allows the Court to determine, listen. At some point, there's great bodily harm as a matter of law, and you don't get every conceivable lesser included when the facts are such that no reasonable Jury based on the evidence could find lesser than that.”
Therefore, the relevant difference between the two crimes in this case is whether Duran actually caused great bodily harm to Rivera or whether he merely caused bodily harm but did so in a manner that could have inflicted great bodily harm.
Here, there was obviously evidence of great bodily harm. Rivera and hospital staff testified that Rivera had received life-threatening injuries including a broken arm, multiple skull fractures, a 5–centimeter laceration on his scalp, and bleeding on his brain. See State v. Chandler, 252 Kan. 793, 799, 850 P.2d 803 (1993) (not uncommon for physicians to opine that there are inherent risks associated with blows to the head that can result in death). Rivera was also flown by LifeFlight to a major hospital, had surgery, and was in the hospital for several days. If the evidence established, as a matter of law, that Rivera suffered great bodily harm, then the evidence could not reasonably justify a conviction for causing mere bodily harm, and a lesser included offense instruction on the severity level 7 version of aggravated battery was not required. Our Supreme Court has stated that “[w]hether the injury or harm is great or not is generally a question of fact for the jury.” State v. Kelly, 262 Kan. 755, Syl. ¶ 2, 942 P.2d 579 (1997); see Chandler, 252 Kan. at 804. But that seemingly clear proposition has become muddied by some opinions that chose to take the decision away from the jury. See, e.g., State v. Moore, 271 Kan. 416, 420–21, 23 P.3d 815 (2001) (holding burns and scarring from hot iron on victim's legs, breast, and inner thighs constituted great bodily harm as matter of law); State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996) (holding that bullet wound which severed spinal cord and caused paralysis constituted great bodily harm as matter of law); State v. Gideon, 257 Kan. 591, 614, 894 P.2d 850 (1995) (holding that rape or aggravated criminal sodomy constituted great bodily harm as matter of law); Doolin v. State, 24 Kan.App.2d 500, 503–04, 947 P.2d 454 (1997) (holding that bullet wound which required hip bone and hip socket to be replaced constituted great bodily harm as matter of law); but cf. State v. Brice, 276 Kan. 758, 773–74, 80 P.3d 1113 (2003) (bullet that goes through body without hitting any vital organs may or may not cause great bodily harm); State v. Vessels, No. 96,421, 2008 WL 1847374, at *5 (Kan.App.2008) (unpublished opinion) (broken bones do not necessarily constitute great bodily harm as matter of law), rev. denied 286 Kan. 1185(2008).
Here, Duran points to the minimal lingering effects of the aggravated battery experienced by Rivera and his continued ability to function on a daily basis as support for the giving of the severity level 7 instruction. Rivera testified that he is “sort of” hard of hearing in his right ear and that his arm gets achy when the weather changes. Duran also points to Rivera's testimony that he initially refused medical treatment.
In the final analysis there is no doubt that great bodily harm was inflicted. Testimony was given that Daniel Rivera had received life threatening injuries including a broken arm, multiple skull fractures, bleeding on the brain, and a 5–centimeter laceration to his scalp. He was flown by LifeFlight to a hospital, had surgery, and was in the hospital for several days. His injuries, beyond a reasonable doubt, were great bodily harm. The district court's jury instruction on only severity level 4 was correct.
Affirmed.