Opinion
110,833.
06-26-2015
STATE of Kansas, Appellee, v. Christopher J. GILMORE, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, Assistant District Attorney, Marc Bennett, District Attorney, and Derek Schmidt, Attorney General, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, Assistant District Attorney, Marc Bennett, District Attorney, and Derek Schmidt, Attorney General, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher J. Gilmore was convicted in Sedgwick County District Court of felony theft (K.S.A.2012 Supp. 21–5801 [a][1], [b][3] ); felony fleeing or attempting to elude a police officer (fleeing or eluding) (K.S.A.2012 Supp. 8–1568 [b][1][E], [c][4] ); misdemeanor possession of drug paraphernalia (K.S.A.2012 Supp. 21–5709 [b][2], [e][3] ); and several violations of the Kansas motor vehicle and traffic laws. Gilmore appeals his conviction for fleeing or eluding, the amount of restitution he was ordered to pay, and the use of his criminal history at sentencing. Finding no error, we affirm and remand with directions.
Factual and Procedural Background
On November 13, 2012, Trooper John Maier of the Kansas Highway Patrol noticed an expired license tag on a 2001 Dodge Intrepid as it traveled on a highway through the city. Trooper Maier determined that the tag belonged to a stolen pickup truck, so he followed the Intrepid while waiting for additional officers to respond. The vehicle eventually took an exit ramp to a city street, and Trooper Maier followed it. The exit ramp ended at a stop sign, but the Intrepid failed to stop for it. The vehicle then turned into a residential area without signaling, the second traffic offense observed by Trooper Maier.
The Intrepid accelerated in an apparent attempt to escape, whereupon the trooper activated the emergency lights on his marked patrol vehicle. Trooper Maier and other law enforcement officers pursued the vehicle through the residential area until it crashed into a fence and its driver, Gilmore, was apprehended. The pursuit was recorded by a video camera mounted in Trooper Maier's patrol vehicle. A DVD played for the jury showed Gilmore's initial two traffic offenses and more such offenses committed during the pursuit itself. It was later determined that the Intrepid was stolen from Gloria Gable in Wichita on October 21, 2012, by Gilmore, and he was charged with felony theft.
Relevant to this appeal, the State charged Gilmore with the initial two traffic offenses, which preceded the pursuit, and also with fleeing or eluding. The traffic offenses Gilmore committed during the pursuit itself were an element of the crime of fleeing or eluding, which as charged required “five or more moving violations.” At trial, the State of Kansas introduced State's Exhibit 1–A, a map of the pursuit with Gilmore's traffic offenses marked on it. Trooper Maier testified that all of the marked traffic offenses were moving violations. In his closing argument regarding the charge of fleeing or eluding, the prosecutor asked the jury “to look at State's Exhibit 1–A and unanimously agree on five of those.”
The trial court's elements instruction for the initial two traffic offenses, Instruction Nos. 12 and 13, required the jury to determine whether the initial traffic offenses had occurred at specific locations prior to the beginning of the pursuit. For example, that Gilmore “approached a stop sign at the I–135 exit ramp and 9th Street and failed to stop at the stop sign before entering the intersection.”
Gilmore's counsel objected to Instruction Nos. 12 and 13 because they included “an element of the other charge [fleeing or eluding], but we're going to make it a separate charge now.” When the trial court explained that it had distinguished the initial two traffic offenses from those which occurred during the pursuit, Gilmore's counsel withdrew his objection. During the prosecutor's closing argument about the initial two traffic offenses he pointed out, “There are, on the video, the two traffic infractions in instructions 12 and 13, which occur before the actual pursuit even begins.”
The jury returned guilty verdicts on all charges. Based on Gilmore's criminal history score of A, the trial court imposed a controlling 24–month prison sentence, consecutive to a controlling 24–month jail term and fines. Gilmore was also ordered to pay $1,250 in restitution to Gable.
Gilmore appeals.
Did the Trial Court Err by Submitting an Improper Elements Instruction?
For his first issue on appeal, Gilmore contends that Instruction No. 3, listing the elements of fleeing or eluding, “failed to include an essential element.” Because Gilmore did not object to Instruction No. 3 at trial, we apply a “clearly erroneous standard of review.” See K.S.A.2014 Supp. 22–3414(3) ; State v. Brown, 299 Kan. 1021, 1036, 327 P.3d 1002 (2014). As explained by our Supreme Court:
“In determining whether an instruction is clearly erroneous, the court first determines whether the instruction was erroneous, which is a question of law subject to de novo review. [Citation omitted.] If the court determines the instruction was erroneous, then it must determine whether reversal is required because it is firmly convinced the jury would have reached a different result without the error. Reversibility is subject to unlimited review and is based on the complete record. The defendant must establish clear error under K.S.A. 22–3414(3). [Citation omitted.]” 299 Kan. at 1035, 327 P.3d 1002.
In keeping with our Supreme Court's guidance, we first consider whether Instruction No. 3 was erroneous by setting forth the elements of the crime at issue, K.S.A.2012 Supp. 8–1568. The relevant portions of the fleeing or eluding statute provide:
“(b) Any driver of a motor vehicle who willfully fails or refuses to bring such driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle ... when given visual or audible signal to bring the vehicle to a stop, and who: (1) Commits any of the following during a police pursuit: ... (E) commits five or more moving violations;
(2) ... shall be guilty as provided in subsection (c)(4).
“[c](4) Violation of subsection (b) is a severity level 9, person felony.” K.S.A.2012 Supp. 8–1568(b)(1)(E), (2), (c)(4).
The relevant portions of Instruction No. 3, which conformed to PIK Crim. 4th 66.110 with some modifications, provided:
“The defendant is charged with fleeing or attempting to elude a police officer. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. The defendant was driving a motor vehicle.
“2. The defendant was given a visual or audible signal by a police officer, to-wit:
John Maier, to bring the motor vehicle to a stop.
“3. The defendant intentionally failed or refused to bring the motor vehicle to a stop, or otherwise fled to elude a pursuing police vehicle.
“4. The police officer's vehicle was appropriately marked showing it to be an official police vehicle.
“[5.] The defendant committed five or more moving violations.
“[6.] This act occurred on or about the 13th day of November, 2012, in Sedgwick County, Kansas.” (Emphasis added.)
Gilmore complains that Instruction No. 3 “did not require the jury to find that the defendant committed those moving violations ... during a police pursuit, an essential element of the crime, despite the plain language of K.S.A. 8–1568.”
Kansas law provides that “[i]n determining whether a specific jury instruction was erroneous,” we consider “the instructions as a whole without isolating any one instruction and review[ ] the instruction to see whether it properly and fairly stated the law as applied to the facts of the case and could not have reasonably misled the jury.” State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014). Since Instruction No. 3 set out the elements sequentially, and the other elements clearly dealt with the circumstances involving a pursuing police officer, a plain reading of the instruction would require the jury to decide whether the five traffic offenses had occurred during the pursuit. Moreover, Instruction Nos. 12 and 13 dealt with the initial two traffic offenses committed prior to the pursuit. Given these considerations, we find jury Instruction No. 3 was not erroneous.
However, assuming Instruction No. 3 was erroneous, it was certainly not clearly erroneous. The prosecutor explained in closing arguments that Instruction No. 3 related to the traffic offenses committed during Trooper Maier's pursuit of Gilmore. The prosecutor used State's Exhibit 1–A to illustrate his argument, pointing out the specific traffic offenses which occurred during the pursuit. The prosecutor further distinguished the traffic offenses committed during the pursuit from the two traffic offenses at issue in Instruction Nos. 12 and 13 which occurred prior to the pursuit. Considering the instructions as whole, the evidence at trial, and the arguments of counsel, we are firmly convinced the jury would not have reached a different result without the claimed error asserted by Gilmore.
Multiplicity
In a confusing argument, Gilmore appears to renew the objection he withdrew at the jury instruction conference that Instruction Nos. 12 and 13 permitted convictions for the initial two traffic violations as lesser included crimes of the conviction for fleeing or eluding. Gilmore links this issue to the prior issue, stating he is now arguing “[i]n the alternative”:
“Mr. Gilmore maintains that this Court must reverse his conviction for fleeing and eluding because the [trial] court failed to instruct the jury on an essential element of the crime. If this Court disagrees, however, and allows that conviction to stand, it must then vacate Mr. Gilmore's convictions for failing to signal a turn and failing to stop, because, under the facts of this case, these are lesser included offenses of the crime of fleeing or attempting to elude where a defendant commits five or more moving violations during police pursuit. ”
The State interprets Gilmore's argument as a challenge to the conviction for fleeing or eluding:
“Defendant asserts that the failure to instruct on these lesser included offenses was clear error because there is a real possibility that the jury would have convicted him of fewer than five moving violations and thereby acquitted him of eluding a police officer while committing five or more moving violations.”
We disagree with the State's reading of Gilmore's brief. Gilmore is challenging his convictions for the initial two traffic offenses of running a stop sign and failing to signal. These are the crimes which he states are lesser included crimes of the fleeing or eluding conviction, not the predicate five moving violations committed during the pursuit itself:
“[T]he jury could have relied on any five traffic violations of which the State presented evidence in convicting him of fleeing or attempting to elude, and could have used two of those same infractions in convicting him of the lesser included offenses of failing to signal and failing to stop. Because K.S.A. 21–5109 prohibits convictions for both a charged crime and a lesser included crime, however, this Court must, reverse Mr. Gilmore's convictions for failing to signal and failing to stop.”
We conclude that Gilmore is raising a multiplicity argument, although he does not use that term. Multiplicity is an aspect of the constitutional protections against double jeopardy, State v. Moody, 35 Kan.App.2d 547, 574–75, 132 P.3d 985, rev. denied 282 Kan. 794 (2006), protections which Kansas has codified in the statute Gilmore cites. See K.S.A.2014 Supp. 21–5109 ; State v. Hensley, 298 Kan. 422, 435–36, 313 P.3d 814 (2013) ; Trotter v. State, 288 Kan. 112, 120–24, 200 P.3d 1236 (2009). “Our review of double jeopardy and multiplicity challenges under these provisions is unlimited.” Hensley, 298 Kan. at 435, 313 P.3d 814.
It is true that under K.S.A.2014 Supp. 21–5109(b), “the defendant may be convicted of either the crime charged or a lesser crime, but not both.” Yet, this law refers to situations “[w]hen the same conduct of a defendant may establish the commission of more than one crime.” (Emphasis added.) K.S.A.2014 Supp. 21–5109(a). If the conduct in question “is discrete, i.e., committed separately and severally,” the resulting charges do not arise from the same conduct and multiplicity is not at issue. State v. Schoonover, 281 Kan. 453, 496, 133 P.3d 48 (2006).
Gilmore's initial two traffic offenses and the traffic offenses he committed during the pursuit were not the same conduct. He violated the traffic laws separately and severally in these instances, as the DVD clearly showed. The jury instructions properly made the distinction between the various traffic violations, as did the prosecutor in closing arguments. Gilmore's convictions for the initial two traffic offenses were not lesser included crimes of his conviction for fleeing or eluding.
Restitution
Gilmore contends “the State presented no reliable evidence to support” restitution of $1,250 for the theft of Gable's vehicle.
At trial, Gable testified that she purchased the Intrepid shortly before the theft for $3,000. The Intrepid had 134,000 miles on it when Gable purchased it, but she testified it was a carefully maintained, one-owner vehicle. Gable said the interior and exterior of the vehicle “looked new,” “like it had been driven off the showroom [floor].”
Gable testified that after retrieving the Intrepid from the police, “[M]y heart just sank.” In addition to the damage to the outside of the vehicle, an arm rest, a sun visor, and the seat covers were badly damaged. Missing entirely were new rubber floor mats, the lenses on the interior lights, an ashtray, the spare tire, and the jack. According to Gable, she took the Intrepid to a repair shop, but the shop “totaled it.” Because Gable only had liability insurance coverage, she was “stuck with it.”
Other testimony established the book value for an Intrepid at trade-in would be $1,925 in “clean condition” and $750 in “rough condition.” After trial, Gable submitted an estimate of $2,825.89 from a repair shop in support of her request for restitution, but it does not appear the estimate was admitted in evidence.
A trial court's restitution order is reviewed for abuse of discretion. State v. Hall, 297 Kan. 709, 711, 304 P.3d 677 (2013).
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” 297 Kan. 709, Syl. ¶ 2, 304 P.3d 677.
On appeal, Gilmore apparently relies on the third ground, that substantial competent evidence did not support a restitution amount of $1,250. The trial court had authority to order an amount of restitution “which shall include, but not be limited to, damage or loss caused by the defendant's crime.” K.S.A.2014 Supp. 21–6604(b)(l) ; see also State v. Hall, 298 Kan. 978, 989, 319 P.3d 506 (2014) (noting that while restitution ordered as a condition of probation allows only compensation for “ ‘damage or loss caused by the defendant's crime,’ “ restitution ordered as a sentence “also grants authority to the district court to impose restitution beyond such loss,” and “[t]his distinction between the statutes has not always been articulated.”). The trial court “must have some basis for determining the amount of damages, but the same rigidness and proof of value required in a civil action does not apply to determining restitution.” State v. Applegate, 266 Kan. 1072, 1078–79, 976 P.2d 936 (1999).
Substantial competent evidence showed Gable paid $3,000 for the Intrepid, lost her use of it for 3 weeks due to Gilmore's theft, and then recovered the vehicle with significant damage. Gable's testimony was sufficient to support the significance of the damage, but we will resolve any doubts against Gilmore for his failure to designate an adequate record. Five photographs of the Intrepid taken after the pursuit and crash were introduced into evidence below, but they are omitted from the record on appeal. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013) (without an adequate record, an appellate court presumes the trial court action was proper).
The trial court suggested that perhaps Gable had “overpaid” for the Intrepid, but in any event there was substantial competent evidence the vehicle was at least close to “clean condition” when Gable purchased it, for a trade-in value of $1,925. There was substantial competent evidence the vehicle was at least close to “rough condition” when Gable obtained it back, for a trade-in value of $750. Subtracting the second figure from the first yields a loss in value of $1,175. The trial court ordered just $75 more than this difference, an amount easily accounted for by Gable's loss of use of the Intrepid and the parts missing from the vehicle upon its return. In short, we are persuaded the trial court did not abuse its discretion.
Criminal History
For his final issue, Gilmore contends the trial court erred by considering his criminal history at sentencing. Gilmore acknowledges the Kansas Supreme Court held to the contrary in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). We are duty bound to follow the precedent of our Supreme Court. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Motion to File Supplemental Brief
On February 27, 2015, long after the deadline for filing briefs, Gilmore filed a motion to file supplemental brief. In his motion, Gilmore stated that he desired to raise a new issue related to his criminal history. Specifically, Gilmore requested permission to assert a claim that the district court imposed illegal sentences by classifying four of his pre–1993 burglary convictions committed in Minnesota as person felonies in determining his criminal history score. See Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ; State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014. The State did not respond to the motion.
Because the record submitted on appeal is not sufficient to resolve this newly asserted claim, we must remand the matter so the district court can develop the record necessary to make appropriate findings of fact and conclusions of law regarding this particular issue. Accordingly, Gilmore's motion to file a supplemental brief is denied and this issue is remanded to the district court for a hearing in accordance with our instructions.
Affirmed and remanded with directions.