Opinion
No. 108,146.
2013-08-9
STATE of Kansas, Appellee, v. Charley J. HUGHES, Appellant.
Appeal from Butler District Court; Michael E. Ward, Judge. Jonathan Grube and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; Michael E. Ward, Judge.
Jonathan Grube and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Charley J. Hughes was convicted of battery against a law enforcement officer after he stuck a corrections counselor in the face while fighting with an inmate at the El Dorado Correctional Facility (EDCF). Hughes contends the district court was without jurisdiction to convict him because the information did not sufficiently allege all of the statutory elements of the offense. Hughes also claims the jury instructions were clearly erroneous because the district court removed an element of the crime from the jury's consideration. We disagree and affirm the conviction.
On March 26, 2010, Hughes, an inmate at EDCF, was involved in a physical altercation with Silk White, another inmate. Michael Addington, a corrections counselor at EDCF, testified that upon observing the fight, he “yelled as loud as [he] could for the both of them to get on the floor.” Neither inmate complied. As a result, Addington “work[ed his] way in between them.”
White began to move away, but Hughes continued to move towards White, so Addington grabbed Hughes by the arm and attempted to pull him away. Undeterred, Hughes picked up a wooden sign and started swinging it. Addington immediately grabbed the sign, and as Hughes was beginning to drop it, Hughes “reared back with his right hand and hit [Addington] between the eyes.” Addington sustained a bloody nose and slight scarring above his left eye and the bridge of his nose. Hughes kept moving towards White, so Addington struck Hughes once “to put his attention back on [him].” According to Addington, during this time he repeatedly ordered both men to lie down on the ground.
At this point, Officer Gregory Shinert, a correctional officer on the Special Security Team, intervened. Officer Shinert instructed Hughes, who was still holding the sign in his hand, to get on the ground. Instead, Hughes “got in a fighting stance.” Hughes actively resisted Officer Shinert, including using his left hand to punch Officer Shinert in the face. Although Hughes' punch left a slight redness on the officer's right cheek, it was not painful nor did it cause any bruising. Officer Shinert “took control of [Hughes'] left arm” to prohibit him from throwing any additional punches. Another correctional officer grabbed Hughes' other arm and Hughes was shoved to the ground. Hughes continued to resist, so Officer Shinert gave him “a couple fluid knee strikes to his left leg.” Eventually, Hughes was subdued. At trial, the State displayed video footage of the incident for the jury.
Shortly after the altercation, Hughes told an EDCF investigator that he “swung at Mr. Addington with his fist” while Addington was attempting to separate him and White. Subsequently, the State charged Hughes with two counts of battery against a law enforcement officer, in violation of K.S.A. 21–3413(a)(3)(A), a severity level 5 person felony. One count alleged Addington was the victim. The other count alleged Shinert was the victim. Initially, Hughes pled no contest to both charges, but the district court later allowed him to withdraw the pleas and proceed to trial.
At the jury trial, Hughes testified on his own behalf. According to Hughes, although he understood the prohibition against fighting with other inmates, White initiated the altercation by saying “something crazy to [him.]” Hughes testified that while he and White were fighting, someone came up behind him, grabbed his arm, spun him around, and hit him with a “karate chop.” Hughes did not recognize this individual, but he was wearing attire similar to inmates in the general population. After this individual struck him, Hughes picked up a sign because White was still advancing towards him. According to Hughes, the individual immediately grabbed the sign, so Hughes dropped it and resumed his effort to pursue White.
At this point, a man Hughes later identified as Officer Stanley, grabbed Hughes' right arm. Another officer simultaneously approached from Hughes' left side, grabbed Hughes by the throat, tried to push him backwards, and attempted to leg sweep him. This officer also kneed Hughes “about 13 or 14 times in [his] left leg.” According to Hughes, although he never swung at this officer, he involuntarily pushed out his hand, attempting to relieve the pressure from his throat. In response, the officer jumped back, grabbed Hughes' left arm, and took him down to the ground.
When asked how Addington sustained his bloody nose, Hughes surmised that he must have struck him with an errant punch because while he fully intended to punch White, he never intended to strike any EDCF employees. Hughes surmised that “it probably occurred when I swung at the other inmate, which was my intention, and that officer or guard or whoever he was got in between.”
At the conclusion of the evidence, the trial court held a conference with counsel to discuss proposed jury instructions. At the outset, the trial court asked the State to elect which alternative means of committing battery it wished to submit to the jury, i.e., intentional touching in a rude, insulting, or angry manner or the intentional or reckless infliction of bodily harm. This inquiry arose because the complaint simply stated that Hughes “committed a battery as defined in the statute against a Correctional Officer.” After the State elected to proceed under a theory of intentional touching for Officer Shinert and the infliction of bodily harm for Addington, the trial court asked the State to specify which mental state applied for the battery against Addington. The State indicated that it wanted to include both mental states, i.e., intentional and reckless, in the elements instruction, and the trial court granted the State's request because it found the evidence supported either mental state.
The trial court instructed the jury that in order to establish Hughes' guilt of battery against Addington, the State was required to prove the following:
“In Count 1 the defendant is charged with battery of a law enforcement officer. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally or recklessly caused bodily harm to Michael Addington by striking Michael Addington in the face with his fist;
2. Michael Addington was a state correctional officer or employee;
3. Michael Addington was engaged in the performance of his duty as a state correctional officer or employee;
4. The defendant was a person in the custody of the Secretary of Corrections; and
5. These acts occurred on or about the 26th of March, 2010, in Butler County, Kansas.
“ State correctional officer or employee means any officer or employee of the Kansas Department of Corrections.
“ Intentional conduct is conduct that is purposeful and willful and not accidental.
“ Reckless conduct it conduct done under circumstances that show a realization of the imminence of danger to;he person of another and a conscious and unjustifiable disregard of that danger.”
At the conclusion of the trial, the jury convicted Hughes of battery against Addington. The jury, however, acquitted Hughes of battery against Shinert. Hughes filed a timely motion for new trial and a motion for judgment of acquittal. In both motions, Hughes challenged the sufficiency of the State's evidence by alleging the jury's verdict was not supported by substantial evidence and it was contrary to the weight of the evidence. Additionally, in his motion for new trial, Hughes argued that the trial court erroneously instructed the jury as to the elements of battery against a law enforcement officer by using the phrase “intentionally or recklessly.” Hughes argued that the evidence only supported an instruction on intentional conduct. The district court denied Hughes' motions, finding the challenged jury instruction was proper because it tracked the language of K.S.A. 21–3412, Kansas caselaw did not indicate that the two mental states represented alternative means, and the verdict was not contrary to the evidence.
On March 26, 2012, the district court sentenced Hughes to a prison term of 130 months' followed by 24 months' postrelease supervision. Hughes filed a timely appeal.
Did the Information Confer Subject Matter Jurisdiction on the District Court?
For his first issue on appeal, Hughes contends the information was fatally defective because the State omitted two of the essential elements of battery against a law enforcement officer, i.e., the applicable actus reus and mens rea. Hughes maintains the trial court lacked jurisdiction to convict him of this crime because the information simply stated that he “committed a battery as defined in K.S.A. 21–3412” against a state correctional officer or employee without specifying all of the statutory elements of battery. The State counters that the information was sufficient to apprise Hughes of the allegations against him because the language used tracked the statutory definition of battery against a law enforcement officer.
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, an information 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; see K.S.A. 22–3201(b), (c). Whether a complaint or information is sufficient to confer jurisdiction upon the district court 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).
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 an information is sufficient depends on 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 hilly 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.
Hughes acknowledges that he failed to specifically challenge the sufficiency of the charging document in the district court by filing a motion to arrest judgment, but he asserts for the first time on appeal that the information was defective because it prejudiced the preparation of his defense. In particular, Hughes claims that until the time of trial, “the defense was under the impression that the [S]tate's theory was intentional conduct.”
Of note, Hughes' assertion is made without any reference to a factual basis in the record on appeal. Our appellate rules mandate that “[t]he court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal.” Supreme Court Rule 6.02(a)(4) (2012 Kan. Ct. R. Annot. Rule 39). Moreover, the party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Hughes' failure to provide a factual basis to support his claim of prejudice is fatal to this argument.
Hughes alternatively argues that the pre- Hall standard should apply because this court may construe “ the post-trial motion filed by defense counsel” as a motion for arrest of judgment. (Emphasis added.) As the State points out, however, Hughes filed two posttrial motions but does not identify which one should be construed as a motion to arrest judgment.
We conclude that because Hughes' motion for judgment of acquittal raised allegations relating to the sufficiency of the evidence and a motion to arrest judgment “does not test the sufficiency of the evidence to convict a defendant,” Hughes is not asking us to construe the motion for judgment of acquittal as a motion to arrest judgment. See State v. Sims, 254 Kan. 1, 9, 862 P.2d 359 (1993).
Moreover, Hughes' other motion—a motion for new trial—cannot be interpreted as a motion to arrest judgment. Unlike a motion for arrest of judgment which seeks to “ prevent the entry of judgment where the charging document is insufficient or the court lacked jurisdiction to try the matter,” (emphasis added,) Sims, 254 Kan. at 9, a motion for new trial seeks to reverse the conviction and remand for a new trial. In short, the grounds for these motions and the relief sought are very different. As a result, we are confident that in the district court Hughes did not intend for either of his two posttrial motions to be considered as a motion to arrest judgment. Accordingly, the pre- Hall standard is not applicable.
Hughes also contends that Hall was wrongly decided. In support, Hughes references our Supreme Court's recent discussion of Hall in State v. Portillo, 294 Kan. 242, 274 P.3d 640 (2012). In Portillo, while our Supreme Court declined to overrule Hall, it did express some reservations regarding application of the rule. In particular, the Supreme Court stated:
“It gives one pause to look closely at how the Hall rule works. During the jury trial, the charging document would be jurisdictionally and fatally defective if it omitted an essential element and the trial court would not have jurisdiction to enter any resulting conviction. However, if the defendant later failed to file a motion for arrest of judgment, the charging document and resulting conviction would somehow acquire retroactive validity. That notion appears to run counter to the rule that subject matter jurisdiction cannot be created by waiver, estoppel, or consent. [Citation omitted.] Likewise, the constraint on raising the jurisdictional issue for the first time on appeal is inconsistent with our holdings that allow a challenge to the district court's subject matter jurisdiction to be raised at any time. [Citation omitted.]” 294 Kan. at 255.
While the Portillo court did raise some concerns regarding the test developed in Hall, it did not repudiate that precedent.
We decline Hughes' invitation to discard the Hall precedent. This decision is the result of our conclusion that even applying the stricter pre- Hall standard, the charging language contained in the information properly and fully informed Hughes of the nature and cause of the accusation against him. As the State correctly argues, the information contained the same language used by the legislature to define the offense of battery against a law enforcement officer. The information described the elements of the offense:
“On or about the 26th day of March, 2010, in Butler County, Kansas, CHARLIE [ sic ] HUGHES, a person in custody of the secretary of corrections, did commit a battery as defined in K.S.A. 21–3412 and amendments thereto against a state correctional officer or employee, to wit: Michael Addington, while such officer or employee was engaged in the performance of such officer's or employee's duty, in violation of K.S.A. 21–3413(a)(3)(A), Battery of a State Correctional Officer, a severity level 5 person felony.”
This language is synonymous with the statutory definition of the charge, which is articulated in K.S.A. 21–3413(a)(3)(A) as follows:
“(a) Battery against a law enforcement officer is:
....
“(3) battery, as defined in K.S.A. 21–3412, and amendments thereto, committed against: (A) A state correctional officer or employee by a person in custody of the secretary of corrections, while such officer or employee is engaged in the performance of such officer's or employee's duty.”
K.S.A. 21–3412(a) defines battery as follows:
“(a) Battery is:
(1) Intentionally or recklessly causing bodily harm to another person; or
(2) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.”
The information, like the relevant statute, K.S.A. 21–3413(a)(3)(A), explicitly incorporated the definition of battery set forth in K.S.A. 21–3412(a). Generally, an information 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 the complaint in this case substantially follow the language of the relevant statute, it essentially utilized the statutory language verbatim.
Accordingly, we hold that even employing the pre- Hall stricter standard of review, Hughes has failed to prove error because the information was not fatally defective. On the contrary, the charge contained in the information substantially followed the language of the relevant statute and, thus, the charging document sufficiently conferred subject matter jurisdiction upon the district court.
Was the Elements Instruction Clearly Erroneous?
For his second issue on appeal, Hughes contends the trial court violated his constitutional right to have a jury determine his guilt or innocence by improperly instructing the jury on the elements of battery against a law enforcement officer. Specifically, Hughes claims that the following language in Instruction No. 3 effectively removed the bodily harm element of the crime from the jury's consideration: “To establish this charge, each of the following claims must be proved: 1. That the defendant intentionally or recklessly caused bodily harm to Michael Addington by striking Michael Addington in the face with his fist.” (Emphasis added.)
Hughes candidly concedes that he did not object on this basis at the jury instructions conference, nor did he object when the instruction was read in open court. This is an important concession. Recently, our Supreme Court clarified the standard of review in cases involving an instructional error raised for the first time on appeal. In such cases, 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.” This is a de novo determination involving “a review of the entire record.” 295 Kan. 506, Syl. ¶ 5; see K.S.A. 22–3414(3). The defendant maintains the burden to establish reversibility. Williams, 295 Kan. 506, Syl. ¶ 5.
At the outset, Instructor No. 3 is essentially consistent with the elements instruction for the offense of battery against a law enforcement officer set forth in the Pattern Instructions for Kansas (PIK). See PIK Crim.3d 56.17. “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.' State v. Carter, 284 Kan. 312, 330, 160 P.3d 457 (2007). Instruction No. 3 differs from PIK Crim.3d 56.17, however, in one respect-it defined the conduct the State contended was a battery, presumably, to reflect the State's election of the particular criminal act it was relying upon for the conviction.
Whether Hughes intentionally or recklessly caused bodily harm to Addington was a question of fact for the jury to decide. “A district judge invades the province of the jury ‘when, instead of simply instructing the jury on the law, he applies the law to the facts he has determined.’ [Citation omitted.]” State v. Rodriguez, 295 Kan. 1146, 1155, 289 P.3d 85 (2012). Such a circumstance is tantamount to a directed verdict for the prosecution; a result contrary to the Fifth and Sixth Amendments to the United States Constitution, which guarantee the right to have a jury determine guilt or innocence, beyond a reasonable doubt, on every element of a charged offense. State v. Brice, 276 Kan. 758, Syl. ¶ 2, 80 P.3d 1113 (2003).
Hughes claims the district court relieved the State of its burden to prove that he caused bodily harm to Addington because Instruction No. 3 could be read as equating the striking of Addington in the face with a finding of bodily harm. In other words, Hughes asserts that the plain language of Instruction No. 3 “directed the jury that bodily harm was shown by proving that [he] struck Addington in the face with his fist.” In support, Hughes relies exclusively upon our Supreme Court's decision in Brice, wherein the court held that a trial court invades the province of the jury by instructing the jury that, as a matter of law, the State's evidence established an essential element of the offense. See Brice, 276 Kan. at 763–72.
In response, the State argues that Brice is distinguishable because Instruction No. 3 did not direct that the evidence presented was, as a matter of law, bodily harm. On the contrary, the instruction “merely indicated the action that the [S]tate was alleging had caused bodily harm, it did not assert that such action was necessarily bodily harm.”
We are persuaded that the State has the better argument. In Brice, a jury convicted the defendant of aggravated battery. On appeal, Brice contended that the district court violated his right to have every element of the offense determined by the jury when it provided the jury with the following instruction: “ ‘As used in these instructions, the term Great Bodily Harm means, a “ ‘through and through bullet wound.’ “ “ 276 Kan. at 762. Irrefutable evidence at trial established that the victim sustained a through and through bullet wound. Our Supreme Court held that the instruction effectively removed the bodily harm element of aggravated battery from the jury's consideration by informing the jury that, as a matter of law, an element of the offense was the same as the evidence. 276 Kan. at 771–72.
Unlike Brice, Instruction No. 3 did not identify specific evidence and directly inform the jury that such evidence established an element of the offense as a matter of law. Instruction No. 3 merely informed the jury of the elements of battery against a law enforcement officer in a rather conflated manner. While the instruction could have been written more clearly, it did not direct the jury that the act of striking Addington in the face was synonymous with a finding of bodily harm. Instead, we read the instruction to advise the jury that in order to find Hughes guilty, it needed to decide whether (1) Hughes intentionally or recklessly struck Addington in the face and (2) Addington sustained bodily harm because of Hughes' conduct.
In analyzing this instructional issue, we are persuaded by an opinion written by our court in State v. Sophaphone, No. 102,472, 2010 WL 3324403, at *1–3 (Kan.App.) (unpublished opinion), rev. denied 291 Kan. 916 (2010), In Sophaphone, our court found that the wording of a similar jury instruction was properly distinguishable from the instruction at issue in Brice. Sophaphone was convicted of possession of drug paraphernalia based upon an elements instruction, which included the following language: “To establish this charge, each of the following claims must be proved: 1. That the defendant knowingly possessed with intent to use drug paraphernalia, to-wit: a glass pipe for inhaling methamphetamine into the body.” ‘ 2010 WL 3324403, at *1. On appeal, Sophaphone asserted that the phrase “ ‘to-wit: a glass pipe’ “ removed an element of the charged crime from the jury's consideration by effectively instructing it that a glass pipe constituted drug paraphernalia. 2010 WL 3324403, at *l–2.
Our court disagreed with the defendant's legal contention:
“Despite Sophaphone's attempt to analogize his case with Brice, Instruction No. 6 neither improperly relieved the State of its burden to prove a necessary element of the crime nor invaded the province of the jury to determine guilt beyond a reasonable doubt. Unlike the instruction in Brice, the instruction here did not literally and expressly define a glass pipe as being drug paraphernalia on its face. See Brice, 276 Kan. at 762 (‘Great Bodily Harm means....'). Instead, the instruction here was merely an elements instruction informing the jury of what the State must prove. This instruction tells the jury that Sophaphone is charged with possession of ‘drug paraphernalia’ in the form of a glass pipe. Such language is necessary to inform the jury as to the object the State contends was drug paraphernalia. Thus, even before the jury confronted the language challenged by Sophaphone, it was told that it was [its] duty to determine whether Sophaphone possessed, and intended to use, drug paraphernalia—which the State contended was a glass pipe.” 2010 WL 3324403, at *2.
We agree with the analysis set forth in Sophaphone. Despite Hughes' assertion to the contrary, Instruction No. 3 did not relieve the State of its obligation to prove all of the elements of the charged offense because, similar to Sophaphone, Instruction No. 3 merely informed the jury as to the conduct the State claimed was a battery, which may or may not have resulted in bodily harm. Thus, we hold the district court did not err by instructing the jury on the elements of the crime of battery against a law enforcement officer.
Nevertheless, assuming the district court erred, we are convinced that any error was not clearly erroneous because we are not “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 295 Kan. 506, Syl. ¶ 5. In this regard, our Supreme Court has instructed that ‘ “where a reviewing court concludes beyond a reasonable doubt that [an] omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’ [Citation omitted.]” State v. Daniels, 278 Kan. 53, 62, 91 P.3d 1147,cert. denied543 U.S. 982 (2004). In such a circumstance, an appellate court must determine ‘ “whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.’ [Citation omitted.]” 278 Kan. at 62.
Our appellate courts have described “bodily harm” as “any touching of the victim against the victim's will, with physical force, in an intentional hostile and aggravated manner.” State v.. Johnson, 46 Kan.App.2d 870, 881, 265 P.3d 585 (2011); accord State v. Dubish, 234 Kan. 708, 715, 575 P.2d 877 (1984). Additionally, we have indicated that the bodily harm required to sustain a conviction for battery may be “slight, trivial, minor, moderate, or mere bruising.” State v. Potts, 34 Kan.App.2d 329, 337–38, 118 P.3d 692 (2005), aff'd in part, rev'd in part281 Kan. 863, 135 P.3d 1054 (2006).
The trial evidence overwhelmingly showed that the injury Addington sustained met the definitional requirements of bodily harm. Addington, Officer Shinert, and Hughes' himself acknowledged that Addington sustained a bloody nose during the altercation. The jury was shown photographs of blood found on the floor where the altercation occurred. And testimony revealed that immediately after the altercation, Addington was observed with swelling and a slight abrasion at the top of his nose and abrasions above his left eye. Photographs of Addington's face were admitted in evidence confirming the injuries. In fact, the evidence of bodily harm was so uncontroverted that our review of defense counsel's closing argument reveals that he made no assertion that Addington did not sustain bodily harm. As a result, assuming the trial court erred in submitting the challenged language in Instruction No. 3, we conclude that the error was harmless.
Affirmed.