Opinion
No. 109,900.
2014-10-10
STATE of Kansas, Appellee, v. Clifton S. KLINE, Appellant.
Appeal from Bourbon District Court; Mark Alan Ward, Judge.Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Bourbon District Court; Mark Alan Ward, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Clifton S. Kline appeals his convictions for aggravated battery and aggravated assault. The jury acquitted Kline of attempted second-degree murder and the lesser included crime of attempted voluntary manslaughter. Kline raises several issues concerning the jury instructions or lack thereof, denial of his motion of acquittal for aggravated assault, erroneous admission of expert testimony by a lay witness, insufficient evidence of aggravated battery, and cumulative error. We affirm.
Kline and his wife Kelli were in the process of a divorce on August 19, 2011. Kline was living with his brother Robert at the time. Kline had been at Kelli's house all day fixing her car with his tools in the barn. Kelli's friend, Nancy White, had picked up their children at school and had brought them back to Kelli's house. Kelli and White then sat on the front porch talking.
Kline testified that after he finished the work on Kelli's car at around 4:30 p.m., he drove his car back to Robert's house. He said he finished off a pint of vodka he found in his car. Kline said he drove his car into a concrete culvert just north of Kelli's house because he was reading a text. He was able to drive the car in reverse to Kelli's house where he had his tools. Kelli and White were still on the front porch. Kline threw his keys at Kelli and told her she could have his car because she getting everything else in the divorce. Kline began walking north towards Robert's house. Kline called Robert and told him to pick him up.
As he walked down the road, Kline realized he had forgotten his cigarette lighter and wallet in his car and headed back toward Kelli's house. He found three beers in his car and drank those as well. Kline testified he was drunk because he had not had anything else to eat or drink all day. Kelli met Kline at his car. White was sitting in a chair on the porch. Kline said he walked up to the front door and as he got close to White he made a comment about the chair having a weight limit. White cursed at Kline. Kline testified he also told White he thought they had agreed that she and her husband Chad would not come to Kelli's house. White again cursed at Kline.
Kline testified he saw White on her cell phone and he assumed she was calling the police. He became extremely upset, picked up a baseball bat that was on the ground, and swung it at White. Kline claimed he had no intention of hitting White in the head and was only trying to prevent her from completing the phone call. Kline testified he had been drinking and had been in a car wreck and did not want the police around.
Kelli testified at trial that Kline was very angry on the day of the incident. She met Kline at his car when he came back the second time. She was concerned about him going into the house because he had broken things when he was mad. Kelli and Kline pushed and shoved each other as Kelli tried to keep him from going in the front door. Kelli testified they were screaming at each other. She saw Kline pick up the bat but did not see him hit White because she was looking down at the time. Kelli started screaming and stepped between Kline and White. She testified Kline swung the bat at her, but she caught it and held on “with everything [she] had.” Kline threw her and the bat to the ground and then headed north down the road.
Bourbon County Deputy Sheriff Michael Feagins responded to the scene. He saw Kelli kneeing on the ground next to White. Kelli told Deputy Feagins that Kline had struck White in the head with a bat. Deputy Feagins could see White had been vomiting and she had injuries on the left side of her jaw and ear. Once medical personnel arrived, Deputy Feagins photographed the scene and attempted to locate Kline. The bat used to strike White had White's blood on it. Deputy Feagins testified he did not go more than 1/4 mile looking for Kline because when he arrived at the scene Kelli told him Kline said he was going to kill them all and the deputy did not want Kline to return while he was gone.
Kelli had told Deputy Feagins that Kline said “he was going to kill them all and shoot himself.” Kelli said Kline “hit her with the bat, and she blocked it,” Deputy Feagins had Kelli fill out a witness statement. In her statement, Kelli reiterated that Kline was going to kill all of them and then shoot himself. She also said he hit White with a baseball bat and then “went for me,” but she blocked it. Kline went to the front door, threw the bat down, and then started walking north down the road.
Deputy Feagins also spoke with Bri Crossen, Kline's half-sister. Crossen was inside the house during the incident. She told Deputy Feagins she heard a loud scream from Kelli and when she looked outside she saw Kelli holding Kline back and White on the ground. Crossen called 911. Deputy Feagins was unable to locate Kline that day. However, during the search, Robert approached Deputy Feagins with his vehicle. Robert told Deputy Feagins he was trying to contact Kline on the phone, but he would not pick up the call. Robert also told Deputy Feagins he had spoken with Kelli earlier in the day and Robert told her Kline was very upset, she needed to get out of the house, and Kline was going to kill them. At trial, Robert denied telling Kelli that Kline was going to kill someone.
The next day, August 20, 2011, Kline turned himself in at the sheriff's office. He waived his Miranda rights and spoke with Deputy Feagins. Deputy Feagins recorded Kline's statement.
Deputy Feagins later interviewed White. She stated she had picked up her son and Kelli's son from school and went to Kelli's house. When she arrived at Kelli's property, she saw Kline walking down the road. She and Kelli talked outside, and Kline returned to the property twice. White remembered Kelli telling her that Robert had called and said they needed to get out of the house because Kline was going to kill them. The second time Kline came back to the house, he approached White and told her to mind her own business and then he struck her with a bat. She did not remember anything after being hit. Deputy Feagins identified the photographs showing White's injuries.
Several witnesses testified to phone calls between Kline and Kelli after Kline had been taken into custody. Those phone calls were played for the jury. In a call on Feburary 3, 2012, Kline told Kelli, “I raised the bat to you” and “[Kelli] stepped in front of the second swing” and then said “You should have stuck with, ‘I can't remember shit.’ Saying nothing would have been better.” In a call on February 23, 2012, Kline told Kelli that he hit her with the bat, that she grabbed it, and they fought over it. In another call, on September 17, 2011, Kline told Kelli, “That fucking bitch being there made me furious” and also said “If I was trying to kill her, I would have hit her twice.”
On August 22, 2011, the State charged Kline with attempted murder in the second degree, a severity level 3 person felony, in violation of K.S.A.2011 Supp. 21–5301 and K.S.A.2011 Supp. 21–5403; aggravated battery, a severity level 4 person felony, in violation of K.S.A.2011 Supp. 21–5413(b)(1)(A); aggravated assault, a severity level 7 person felony, in violation of K.S.A.2011 Supp. 21–5412(b)(1); and violation of a protection from abuse order, a class A person misdemeanor, in violation of K.S.A.2011 Supp; 21–5924(a)(1). Prior to trial, Kline pled no contest to the violation of the protection from abuse order.
After a 3–day trial, the jury acquitted Kline of attempted murder in the second degree and the lesser included offense of attempted voluntary manslaughter. However, the jury convicted Kline of severity level 4 aggravated battery and aggravated assault. At sentencing, the trial court denied Kline's motion for acquittal of the aggravated assault conviction, finding there was substantial competent evidence to support the conviction. The trial court entered a presumptive sentence of 56 months' incarceration—43 months' incarceration for aggravated battery and a consecutive sentence of 13 months' incarceration for aggravated assault. The court also ordered a consecutive period of 12 months in the county jail for violating the protection from abuse order.
Kline appeals.
Kline first argues the trial court's instructions and explanations regarding the jury's consideration of the lesser degrees of aggravated battery, including the prosecutor's comments on them, misstated the law and denied his due process right to a fair trial. He also argues the trial court erred in failing to give the explanatory instruction for lesser included crimes in PIK Crim. 4th 68.080.
When this court reviews appellate claims on jury instructions,
“[t]he progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
In reviewing a claim of erroneous jury instructions, we must first determine the reviewability of the issue using an unlimited standard of review. Kline's current objections were not raised in the trial court. Defense counsel did not object to the written jury instructions, verdict instructions, or the court's failure to give PIK Crim. 4th 68.080 or PIK Crim. 4th 68.110. Reviewability of jury instructions is defined in K.S.A.2011 Supp. 22–3414(3), which states a party cannot assign error to the giving or failure to give an instruction unless the party made a specific objection to the instruction. See also State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012) (“[A] defendant cannot challenge an instruction, even as clearly erroneous under K.S.A. 22–3414(3), when there has been on-the-record agreement to the wording of the instruction at trial.”).
Alternatively, however, under K.S.A.2011 Supp. 22–3414(3), even when a defendant fails to object to or request an instruction, we may examine the issue using the clearly erroneous standard of review. The clearly erroneous standard of review employs a two-step process as provided in State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013):
“First, the appellate court must ‘determine whether there was any error at all. To 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.’ Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195. If the court finds error, it moves to the second step and ‘assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195.”
Here, the trial court did not give the PIK Crim. 4th 54.310 version of the aggravated battery jury instruction which lists all the various levels of aggravated battery in the same instruction. Instead, the trial court gave three separate aggravated battery instructions. The severity level four aggravated battery instruction (No. 14) stated:
“In Count II, the defendant is charged with the crime of Aggravated Battery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. The defendant knowingly caused great bodily harm to or disfigurement of Nancy Lee White; and
2. This act occurred on or about the 19th day of August, 2011, in Bourbon County, Kansas.
“Knowingly or With Knowledge means:
A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about.”
The second and third aggravated battery instructions (Nos. 15 and 16) stated respectively in relevant part:
“If you do not agree that the defendant is guilty of the Aggravated Battery charged as instructed in instruction 14, you should then consider the lesser included offense of Aggravated Battery....
1. The defendant knowingly caused bodily harm to Nancy Lee White with deadly weapon: to-wit, a bat in any manner whereby great bodily harm, disfigurement or death can be inflicted; ...
“[definitions of deadly weapon and Knowingly or With Knowledge] .”
“If you do not agree that the defendant is guilty of the Aggravated Battery charged as instructed in instruction 15, you should then consider the lesser included offense of Aggravated Battery....
....
1. The defendant knowingly caused physical contact with Nancy Lee White in a rude, insulting or angry manner with a deadly weapon, to-wit; a bat, in any manner whereby great bodily harm, disfigurement or death can be inflicted; ...
“[definitions of deadly weapon and Knowingly or With Knowledge] .”
PIK Crim. 4th 54.310 lists the various forms of aggravated battery (those relevant this case) in the same instruction:
“The defendant is charged with aggravated battery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. The defendant knowingly caused (great bodily harm to) (disfigurement of) insert name.
OR
1. The defendant knowingly caused bodily harm to insert name (with a deadly weapon) (in any manner whereby great bodily harm, disfigurement or death can be inflicted).
OR
1. The defendant knowingly caused physical contact with insert name in a rude, insulting or angry manner (with a deadly weapon)(in any manner whereby great bodily harm, disfigurement or death can be inflicted).”
After reading Instruction No. 16 to the jury, the trial judge sua sponte informed the jury:
“Let me stop there for a minute. I just read you three instructions that dealt with aggravated battery in Count 2. Instructions that you need to go through and you need to go through in that order. You start with the first aggravated battery charge. You go through those elements. If you find that the State has not proved those elements, then you move on to the next instruction that talks about the elements of another aggravated battery. You go though those elements. If for some reason you find that the State did not prove those elements, you move to that next instruction, which is another form of aggravated battery.
“As I could see as I was reading those, you all look kind of puzzled. They're all three aggravated battery offenses, different versions. But you have to follow that order.”
In discussing the verdict instructions with the jury, the trial judge stated:
“The third verdict form is the aggravated battery, the initial aggravated charge-the first aggravated battery instruction that I gave. And on the verdict form, if you find the defendant guilty of that aggravated battery, the presiding juror signs at the top; if you find him not guilty, you sign at the bottom.
“The next verdict form is the aggravated battery charge, lesser included, option No. 1, as I called it. I already instructed you earlier. If you don't find that the State's met [its] burden on the initial aggravated battery, you are to consider the second version, option 1, then, of aggravated battery, and here's the verdict form for that. Presiding juror signs based on your verdict.
“The next verdict form, which will be the fifth verdict form, is the lesser included aggravated battery option No. 2. Remember, we have three aggravated batteries—I guess you can call them all options, but you have the aggravated battery charge. If you don't find him guilty on that, you are to consider the second one, the lesser, which I'm calling option 1. If you don't find him guilty on that, you're to consider option No. 2, which would be the third of the aggravated batteries. And on that verdict form you'd sign—the presiding juror signs based on your verdict.”
During the State's closing argument, the prosecutor directed the jury's deliberations similar to statements made by the trial court. The prosecutor stated:
“I'll real quickly go through this. This is the alternative charge of attempted murder. What you do if—for example, if you believe that the State has proven attempt to commit murder in the second degree beyond a reasonable doubt, you don't even look at this one. It's—only look at the alternative if you don't believe we sufficiently proved the first one. Okay. So the same thing, only aggravated battery. The first charge, you go through it—the aggravated battery. If you believe the State beyond a reasonable doubt proved that charge, then you stop; you don't go to the next one. It's only if you do not believe the State has proven beyond a reasonable doubt that you go to the next one.”
After both the State and the defense finished with closing arguments, the trial judge gave one last sua sponte explanation of the lesser included offenses:
“One more time, because this is kind of confusing: On the verdict forms-there are six of the verdict forms. You've heard from me and you've heard from the attorneys that Count 1, the attempted murder in the second degree has a lesser included offense of attempted voluntary manslaughter. And, again, as an example, you deliberate, you're discussing the attempted murder in the second degree and let's say you decide the State didn't meet its burden. That verdict form you would fill out now, the attempted murder in the second degree, would be not guilty. And then you would look at the lesser included offense of attempted voluntary manslaughter, and you would go through the elements of that offense and discuss the evidence that's been submitted. And on that let's say you find that there wasn't sufficient evidence. You would find not guilty on it. However, going back to the Count 1, attempted murder in the second degree, if you find sufficient evidence that's been shown by the State beyond a reasonable doubt and your vote is unanimous for guilty, you then, with the presiding juror, would sign that form in the appropriate spot, and you do not, then, go on and discuss the lesser included offense of attempted voluntary manslaughter; you're through with that one.
“And you move on, then, to Count 2, which started with the third of the verdict forms, aggravated battery. You discussed it. Let's say you find the defendant guilty of that first aggravated battery. You would fill out the appropriate spot, presiding juror signs on that verdict form, and you would not, then, go on and discuss Option 1 and Option 2 of the aggravated battery,
“I can't make it any clearer than that. It sounds confusing. Hopefully, when you get back there and you read the instructions again it will make it clear to you.”
After the jury left the courtroom to begin deliberations, defense counsel objected to the trial court's final sua sponte explanation to the jury of the lesser included offenses for aggravated battery. Defense counsel requested a mistrial because the judge's final comments discussed the jury's potential deliberations of whether Kline was guilty or not guilty on the attempted murder charge (which defense counsel said was fine), but he only discussed a possible situation of what the jury should do if Kline was guilty on the first alleged version (the highest version) of aggravated battery. The judge denied a mistrial, finding his examples were correct and hopefully helped the jury in its deliberations.
Kline contends the trial court erred in breaking up the three aggravated battery choices and treating them comparable to first-degree murder and its lesser offenses. He states the language “If you do not agree” is not PIK language for an aggravated battery instruction. He also argued the trial court erred in not giving the PIK instruction on lesser included instructions (PIK Crim. 4th 68.080), thus depriving the jury of full and accurate information for considering lesser included offenses. Kline also points out the two lower degrees of aggravated battery in this case (Instruction Nos. 15 and 16) are both severity level 7 offenses so neither one of those could be considered a lesser offense of the other.
The Kansas Supreme Court has previously approved the PIK method of ordering the jury's deliberation on lesser included offenses in State v. Roberson, 272 Kan. 1143, 1154, 38 P.3d 715, cert. denied 537 U.S. 829, 123 S.Ct. 127, 154 L.Ed.2d 44 (2002), overruled on other grounds by state v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), stating: “The pattern instructions offer an orderly method of considering possible verdicts. The pattern instructions offer a transitional statement that can be inserted at the beginning of the elements instructions of lesser offenses.”
Kline's apparent complaint is that the jury supposedly could not consider the lesser offenses for aggravated battery until after rejecting a conviction on the greatest aggravated battery offense. In State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982), the court rejected a challenge to the words “ ‘if you cannot agree’ “ when used to preface an instruction on a lesser charge. The court stated that the words
“are not coercive and do not require the members of a jury to unanimously find the accused innocent of the greater charge before proceeding to consider a lesser charge. The words ‘if you cannot agree’ presuppose less than a unanimous decision and no inference arises that an acquittal of the greater charge is required before considering the lesser.” 231 Kan. at 661, 647 P.2d 1301.
Consequently, since the Kansas Supreme Court has previously approved of ordering jury deliberations in the manner set forth in this case, these alternative wordings are not coercive and correctly state the law. See State v. Scott–Herring, 284 Kan. 172, 178, 159 P.3d 1028 (2007); Gunby, 282 Kan. at 65–66, 144 P.3d 647; State v. Hurt, 278 Kan. 676, 682–86, 101 P.3d 1249 (2004); State v. Davis, 275 Kan. 107, 126–27, 61 P.3d 701 (2003); Roberson, 272 Kan. at 1154–55, 38 P.3d 715. The fact that all of the lesser forms of aggravated battery are listed in the same instruction (PIK Crim. 4th 54.310) in the pattern instructions does not change the fact those forms are still lesser included offenses. See State v. McCarley, 287 Kan. 167, Syl. ¶ 10, 195 P.3d 230 (2008) (severity levels 5 and 8 aggravated battery are both lesser included offenses of severity level 4 aggravated battery); State v. Winters, 276 Kan. 34, Syl. ¶ 2, 72 P.3d 564 (2003) (severity level 7 aggravated battery is a lesser included offense of severity level 4 aggravated battery). On this point raised by Kline, there was no error.
Even if we consider the merits of Kline's claim regarding this jury instruction, we find no error. Kline claims the trial court erred in failing to instruct the jury with PIK Crim. 4th 68.080. However, the State points out that defense counsel specifically rejected that instruction. During the instructions conference, defense counsel stated, “[F]or the record, I do not request 68.08 [0].” See Peppers, 294 Kan. at 393, 276 P.3d 148 (“[A] defendant cannot challenge an instruction, even as clearly erroneous under K.S.A. 22–3414(3), when there has been on-the-record agreement to the wording of the instruction at trial.”). Consequently, this argument is not properly raised on appeal due to invited error. See Peppers, 294 Kan. at 393, 276 P.3d 148 (when a defendant has invited error, he or she cannot complain of the error on appeal).
However, since review is possible, we will address the question.
PIK Crim. 4th 68.080 provides:
“LESSER INCLUDED OFFENSES
“The offense of insert principal offense charged with which defendant is charged includes the lesser offense(s) of insert lesser included offense or offenses.
“You may find the defendant guilty of insert principal offense charged, insert first lesser included offense, insert second lesser included offense, or not guilty.
“When there is a reasonable doubt as to which of two or more offenses defendant is guilty, (he)(she) may be convicted of the lesser offense only.
“Your Presiding Juror should mark the appropriate verdict.”
The jury should be instructed that when there is a reasonable doubt as to which of two or more degrees of an offense the defendant is guilty, the defendant may be convicted of the lowest degree only. K.S.A.2011 Supp. 21–5108(b); State v. Trujillo, 225 Kan. 320, 323, 590 P.2d 1027 (1979). While the trial court's sua sponte oral comments in this case substantially complied with the purposes of PIK Crim. 4th 68.080, the trial court still failed to instruct the jury that if there was a reasonable doubt of which of two or more offense Kline was guilty, he could only be convicted of the lesser offense.
Recently, in State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), the district court, after providing instructions on lesser included crimes, failed to instruct the jury in accordance with PIK Crim.3d 68.09 (now PIK Crim. 4th 68.0800. Similar to this case, Hall did not request the instruction, and our Supreme Court applied the clearly erroneous standard of review. The court found that although the district court erred by not providing the instruction, it was not reversible error. Our Supreme Court reasoned that based on the evidence presented at trial, there was “no real possibility the jury would have rendered a different verdict had the district court instructed the jury in accordance with PIK Crim.3d 68.09.” 292 Kan. at 858, 257 P.3d 272.
It was error when the trial court failed to give the PIK Crim. 4th 68.080 jury instruction here. However, it was harmless error because the jury found Kline guilty of aggravated battery-great bodily harm. Kline's actions with the bat and White's resulting injuries provided sufficient evidence of great bodily harm. Applying a clearly erroneous standard, there is no real possibility the jury would have rendered a different verdict had the trial court instructed the jury with PIK Crim. 4th 68.080. Thus, while the trial court did err in failing to give the PIK Crim. 4th 080 instruction, it did not constitute reversible error.
Next, Kline challenges the jury instruction defining “knowingly.” He contends the trial court failed to give the definition of knowingly that a defendant is knowingly aware that his or her conduct was reasonably certain to cause the result complained of by the State. In a subsequent argument, Kline claims the failure to include this instruction prohibited the jury from finding him guilty beyond a reasonable doubt on each element of the crime of aggravated battery.
As noted above, our first concerns in evaluating jury instruction are jurisdiction and preservation. Here, Kline did not object to the definition of “knowingly” used in the jury instruction. Therefore, we review for clear error. See K.S.A.2011 Supp. 22–3414(3); Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202.
K.S.A.2011 Supp. 21–5202(i) provides the applicable culpability definitions for this case:
“(i) A person acts ‘knowingly,’ or ‘with knowledge,’ with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. A person acts ‘knowingly,’ or ‘with knowledge,’ with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘knowingly,’ ‘known,’ or ‘with knowledge’ are general intent crimes.”
Kline argues since the jury was only instructed that he be aware of the nature of his conduct, the jury could interpret this to mean that Kline need only be aware that he was swinging a bat. Kline argues the aggravated battery statute requires that he was aware that his conduct was reasonably certain to cause great bodily harm, bodily harm, or physical contact. Kline claims this constitutes reversible error because the jury could have concluded he did not knowingly cause great bodily harm because he only swung the bat at White to prevent her from completing a call to the police. Consequently, the jury could have returned a verdict on a lesser offense that he knowingly caused physical contact.
The jury in this case was instructed in each individual aggravated battery instruction: “Knowingly or With Knowledge means: A defendant acts knowingly when the defendant is aware of the nature of his conduct that the State complains about.” Aggravated battery is a general intent crime. See K.S.A.2011 Supp. 21–5202(i); State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003). Several cases have rejected the theory behind Kline's argument.
The State cites In re W.S.E., No. 108,976, 2013 WL 3970208 (Kan.App.2013) (unpublished opinion), where W.S.E. challenged his felony conviction for interference with a law enforcement officer. W .S.E. challenged the definition of “knowingly” and requested the trial court give the “knowingly” instruction that a person's conduct is reasonably certain to cause the results, i.e., his conduct knowingly obstructed, resisted, or opposed the officer. The court rejected his claim, finding the sole determination was whether W.S.E. knew he was running from law enforcement officers, i.e., the nature of his conduct, and there was substantial evidence W.S.E. was fleeing from officers. 2013 WL 3970208, at *3–5.
The court in State v. Johnson, 46 Kan.App.2d 870, 880, 265 P.3d 585 (2011), also explained that aggravated battery is a general intent crime and the requisite general intent is “merely the intent to engage in the underlying conduct. The State is not required to prove that the defendant intend the precise harm or result that occurred.”
Here, the trial court correctly determined what must be proven to support a conviction of intentional aggravated battery. The State need not prove the defendant intended or meant to cause great bodily harm or disfigurement. Rather, the State must show that the defendant acted “intentionally” and that intentional conduct resulted in great bodily harm or disfigurement. Whether the defendant wanted to inflict that degree of harm is beside the point. Most crimes require only that the perpetrator have a general criminal intent. That is, the person intends to do what the law prohibits. In re C.P.W., 289 Kan. 448, Syl. ¶ 4, 213 P.3d 413 (2009). The person must simply act on purpose or intentionally thereby causing a result that violates the law, as opposed to doing so accidently or inadvertently. K.S.A.2011 Supp. 21–5202(c) (“If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.”).
The State charged Kline with aggravated battery for knowingly causing great bodily harm or disfigurement to another person. That requires only that Kline deliberately, rather than accidentally, come into contact with the victim in some manner that results in the requisite degree of harm. Kline need not mean to cause such harm or any harm for that matter. Had the legislature wanted aggravated battery to be a specific intent crime, it would have proscribed the physical contact the defendant intended to result in great bodily harm or disfigurement. The legislature did not use such language. Consequently, after examining the jury instructions as a whole, we do not find them clearly erroneous for failing to instruct the jury that Kline had to be knowingly aware that his conduct was reasonably certain to cause the result complained of by the State.
Next, Kline challenges the instruction requiring the jury to convict on the lesser offenses of aggravated battery by use of a deadly weapon and in a manner whereby great bodily harm, disfigurement, or death can be inflicted. Kline argues this requirement made a finding of a lesser included offense more stringent than required by the aggravated battery statute.
As directed above, our first concerns in evaluating jury instruction are jurisdiction and preservation. Here, Kline did not object to this instruction at trial and in fact requested the instruction. Therefore, we review for clear error. See K.S.A.2011 supp. 22–3414(3); State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
K.S.A.2011 Supp. 21–5413(b)(1)(B) defines aggravated battery as: “knowingly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” (Emphasis added.) Instruction Nos. 15 and 16 instructed the jury in a similar manner regarding the “deadly weapon” element, namely causing bodily harm or physical contact to White “with a deadly weapon; to-wit, a bat in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The jury instruction did not include the conjunction “or” as found in K.S.A.2011 Supp. 21–5413(b)(1)(B).
Kline argues the trial court did not instruct the jury on the elements in accordance with the statute and therefore erred. He contends that in order for the jury to find him guilty of the lesser offenses, it was necessary for the jury to find both means instead of just one. This extra element created a more stringent standard for the lesser offenses than required by the statute. Consequently, Kline maintains there is a real possibility that a properly instructed jury could have found him guilty of aggravated battery resulting in bodily harm or physical contact under either means.
In the context of alternative means, our Supreme Court recently addressed an alternative means challenge to K.S.A. 21–3414(a)(2)(B) (former aggravated battery statute) and found that “the phrase ‘causing bodily harm to another person with a deadly weapon’ is synonymous with the phrase ‘causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.’ “ State v. Ultreras, 296 Kan. 828, 853, 295 P.3d 1020 (2013). The court reasoned that “a deadly weapon is an instrument that can inflict death or great bodily harm, which includes disfigurement.” 296 Kan. at 853, 295 P.3d 1020. Thus, “the phrase ‘with a deadly weapon’ describes a factual circumstance that proves bodily harm was caused in a ‘manner whereby great bodily harm, disfigurement or death can be inflicted’ and, as such, is an option within a means rather than an alternative means.” 296 Kan. at 854, 295 P.3d 1020. Moreover, in rejecting the alternative means challenge to K.S.A. 21–3414(a)(2)(A), which defined aggravated battery as “recklessly causing great bodily harm to another person or disfigurement of another person,” the Ultreras court held that the term “disfigurement” is merely a factual circumstance by which “great bodily harm” can be proved and is therefore an option within a means and not an alternative means. 296 Kan. at 850–52, 295 P.3d 1020.
Kline requested the lesser included offense instructions found in Instruction Nos. 15 and 16. This fact alone conjures up an invited error conclusion. Further, defense counsel requested the instruction include the “in any manner” language without ever mentioning to the trial court that the conjunction “or” should be included in the instructions. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011) (a litigant may not invite error and then complain of the error on appeal). The State correctly points out that in closing argument, defense counsel also patterned his comments using the lesser included offense instruction without the “or” conjunction, “[Pleading with the jury to find Kline guilty of the lesser offense.] You must find him guilty, that he caused bodily harm to Nancy White with a deadly weapon, bat, whereby great bodily harm, disfigurement, or death could be inflicted. You must do that.”
Even if Instruction Nos. 15 and 16 were erroneous, we find the error to be harmless. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt there is no reasonable possibility that the error affected the verdict), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). As the court stated in Ultreras, the phrase “with a deadly weapon” describes a factual circumstance that proves bodily harm was caused in a manner whereby great bodily harm, disfigurement, or death can be inflicted and, as such, is an option within a means rather than an alternative means. 296 Kan. at 854, 295 P.3d 1020. Since the questioned phrases in this case are synonymous, the outcome would have been the same and no reasonable possibility exists the verdict would have been different.
Next, Kline argues the trial court erred in denying his motion for acquittal of the aggravated assault charge. Kline contends there is insufficient evidence that Kelli was in reasonable apprehension of immediate bodily harm and the trial court violated his right to due process under the Fourteenth Amendment of the United States Constitution and the Kansas Constitution by entering a conviction based on insufficient evidence.
An appellate court will affirm the denial of a motion for a judgment of acquittal if after reviewing all the evidence in the light most favorable to the State, it is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Ta, 296 Kan. 230, 236, 290 P.3d 652 (2012). “A motion for directed verdict at the close of the State's case is essentially a motion for judgment of acquittal and is judged by the standards of sufficiency of the evidence. [Citation omitted.]” State v. Wilkins, 267 Kan. 355, 365, 985 P.2d 690 (1999).
Kline cites several cases for the general concept that the crime of assault cannot occur without apprehension by the victim of bodily harm. See State v. Dixon, 248 Kan. 776, 785, 811 P.2d 1153 (1991); Spencer v. State, 264 Kan. 4, 6, 954 P.2d 1088 (1988); State v. Bishop, 240 Kan. 647, 651–52, 732 P.2d 765 (1987); Zapata v. State, 14 Kan.App.2d 94, Syl. ¶ 3, 782 P.2d 1251 (1989). He also cites State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974), where Warbritton shot his wife in the neck and then pointed a gun at his mother-in-law (Bailey) who was holding the couple's baby. The court reversed Warbritton's conviction of aggravated assault against Bailey. The court held:
“We might agree that the atmosphere was heavily fraught with danger and was threatening enough to have induced apprehension on the part of Mrs. Bailey for her personal safety. However, Mrs. Bailey consistently denied while she was on the stand that she had any fear for herself; that she thought Mr. Warbritton would not harm her. She testified she was not scared for herself because she knew the way she was holding the baby, that the defendant would hit it instead of herself, if he pulled the trigger. In the face of positive testimony such as this we cannot say, as urged by the district attorney, that the circumstances were such that, as a matter of law, Mrs. Bailey had fear for herself.” 215 Kan. at 537–38, 527 P.2d 1050.
The State points out the Warbritton court did not discuss other circumstantial evidence regarding the victim's actions at the time. In cases after Warbritton in which there was independent evidence of the victim's fear, a conviction was upheld even though the victim testified and denied having been afraid. See State v. Lessley, 271 Kan. 780, 789–90, 26 P.3d 620 (2001) (upholding conviction where victim testified she did not believe defendant would shoot her but additional testimony from victim and victim's husband supported conviction); see also State v. Stafford, No. 100,441, 2009 WL 1591677, at *1–3 (Kan.App.2009) (unpublished opinion) (upholding domestic battery and aggravated-assault convictions where victim denied having been hit but testimony of victim's 8–year–old daughter and other witnesses supported conviction), rev. denied 290 Kan. 1103 (2010). Foreshadowing the decision in Lessley, the dissent in Warbritton, 215 Kan. at 538, 527 P.2d 1050, authored by Justice Fromme and joined by Justice Schroeder, stated:
“The defendant was charged with aggravated assault against his mother-in-law by the use of a pistol. During the altercation he not only shot his wife with this pistol but proceeded to threaten his mother-in-law. Whether the mother-in-law was in immediate apprehension of personal bodily harm was a question for the jury to decide. What a person says about his fear or apprehension long after the incident occurred is not controlling. Actions may speak louder than words. On appeal if there is any sound basis in the evidence for a reasonable inference that Mrs. Bailey had fear and apprehension when the incident occurred it is our appellate duty to affirm the conviction and I would do so.”
See Lessley, 271 Kan. at 788–90, 26 P.3d 620.
Kline argues Kelli never testified at trial that she had been place in reasonable apprehension of immediate bodily harm. However, the State points to substantial evidence that Kelli was placed in fear of immediate bodily harm. Kelli told Deputy Feagins that Kline told her and White that “he was going to kill them all.” Kelli also wrote out a statement the day of the incident, where she stated:
“[Kline] left wrecked his car, came back, left on foot, his brother called & said get out of house less than 5 minutes [Kline] came back, said he was going to kill us all & shoot himself. He hit [White] with baseball bat, went for me, I stopped the bat, he went for door, threw bat down & walked out gate North, [arrow pointing to last sentence] Kids had locked door & called 911 already.”
Kline's written statement also provided evidence in support of the assault. Kline stated in relevant part:
“I headed down the road an had forgot my wallet an or lighter an so as I was headen back an heard [White] laughn an had hit my breaken point an I walked to my car a then to the porch were Kelli an [White] was sitting an saved what are you laughn at an I told [White] that I though[t] I told you to stay away from my family an I grabed the bat that was at the front porch an swung it an it hit [White] in the head an Kelli sayed what are you doing I said I should hit you to an look down at [White], I went into shoke an droped the bat an ran up the river.”
Kelli testified at trial that Kline was very mad on the day of the incident. She and Kline pushed and shoved each other as Kelli tried to keep him from going in the front door. Kelli testified they were screaming at each other, but she could not remember what they said. Kelli said Kline swung the bat at her, but she caught it and held on “with everything [she] had,”
Kelli testified she was not in fear when Kline picked up the bat because she thought he was going to go beat up the trucks. However, she testified as follows:
“Q. [PROSECUTOR:] Okay. When you were standing in front of [White] and he swung the bat, were you in fear at that point?”
“A. [KELLI:] Yes.
“Q. Okay. Were you in fear for your children?
“A. Yes.
“Q. Okay. Were you in fear for [White]?
“A. Yes.”
On cross-examination by defense counsel, Kelli expressly testified she was not in immediate apprehension of the potential for bodily harm. She also denied that Robert told her Kline said he was going to kill someone. Instead, she testified Robert just told her she needed to leave. On redirect by the State, the prosecutor asked Kelli whether she was afraid when Kline swung the bat. She testified she was not afraid because she thought he was swinging again at White.
Amy Gorman testified she knew both Kelli and White. Gorman lived a couple miles from Kelli. Gorman visited Kelli a few days after the incident to check on her. Kelli told Gorman that Kline was mad that day and was going to kill everyone and then himself. She was still visibly upset, shaking, and crying hysterically.
The State also questioned Kline about phone conversations he had with his wife after the incident. On Feburary 3, 2012, Kline told Kelli, “I raised the bat to you” and “[Kelli] stepped in front of the second swing” and the said “You should have stuck with, ‘I can't remember shit.’ Saying nothing would have been better.” On February 23, 2012, Kline told Kelli that he hit her with the bat, that she grabbed it, and they fought over it. On September 17, 2011, Kline told Kelli, “That fucking bitch being there made me furious” and also said “If I was trying to kill her, I would have hit her twice.”
After reviewing the entirety of the evidence in the light most favorable to the State, we conclude there was sufficient evidence to support a finding that Kelli was in reasonable apprehension of immediate bodily harm. In a more recent opinion, our Supreme Court found that inconsistent testimony from the victim as to his or her apprehension was sufficient to support such a conviction. State v. Hurt, 278 Kan. 676, 688–89, 101 P.3d 1249 (2004). Certainly one could argue Deputy Feagins' and Kelli's statements never confirmed a threat was “of immediate bodily harm,” but this would be illogical given a sense of threat from someone swinging a bat, striking White, and then coming at Kelli with the bat forcing her to block it. By the time of trial, Kelli was no longer willing to support her prior statements of that evening, but the evidence and statements from officers and friends were still for the jury's consideration. We are not in a position to reweigh that evidence on appeal. The trial court did not err in denying Kline's motion for acquittal.
Next, Kline argues the trial court abused its discretion by allowing White, as a lay witness, to offer expert medical conclusions about the injuries she suffered after being hit with the bat.
In Kansas, a lay witness may testify about the external appearances and manifest medical conditions that are readily apparent to anyone. See State v. McFadden, 34 Kan.App.2d 473, 478, 122 P.3d 384 (2005). However, lay witnesses are not competent to provide reliable testimony about medical matters beyond the common knowledge of lay persons or those that are not readily apparent such as medical diagnosis or the effects of possible medical conditions. Smith v. Prudential Ins. Co., 136 Kan. 120, 124, 12 P.2d 793 (1932). We review a trial judge's determination of whether a lay or expert witness is qualified to testify under an abuse of discretion standard. Pullen v. West, 278 Kan. 183, 210, 92 P.3d 584 (2004).
At trial, White testified she was hospitalized for 6 days after the incident. She had surgery on her jaw, and it was wired shut for 8 weeks. Defense counsel objected to this testimony as expert medical testimony. The trial court overruled the objection. White testified her jaw was broken in two pieces and also had a hairline fracture. Defense counsel objected again to this testimony as expert medical testimony. Defense counsel argues White's testimony was hearsay from what the doctors told her and:
“[a]ny injury that she may have sustained has to be [testified to] by a medical expert. She is a lay witness and doesn't have the information available from prior expert testimony about what happened. She can provide what she can see in the mirror and that's it. Beyond that, it's expert testimony and it calls for hearsay because she's heard it from her doctor.”
The trial court again overruled the objection. White testified about the bruising down her neck. Defense counsel also objected to White's testimony that she had bleeding on her brain and jaw. White described the injuries to her teeth—one tooth was knocked inward and two breaks were on either side of that one. The trial court sustained defense counsel's objection when White began to testify to what the dentist told her. White also testified to the scars she suffered from her injuries and that she has no sense of smell and still gets dizzy and unsteady.
As a means of ensuring reliable evidence, K.S.A. 60–456(a) limits the opinion testimony given by lay witnesses to opinions which “may be rationally based on the perception of the witness.” The statute limits opinion testimony offered by experts to opinions based on facts perceived by or personally known to the witness and “within the scope of the special knowledge, skill, experience or training possessed by the witness.” K.S.A. 60–456(b). In addition,
“[a]s a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be by the testimony of the witness himself or herself. The judge may reject the testimony of a witness that the witness perceived a matter if the judge finds that no trier of fact could reasonably believe that the witness did perceive the matter.” K.S.A. 60–419.
White did not testify as an expert witness. She is intimately familiar with and has personal knowledge of the injuries she suffered from the bat wielded by Kline. White's testimony meets the conditions of K.S.A. 60–419 and K.S.A. 60–456(a). As a lay witness, White is competent to provide reliable testimony concerning the external appearances and manifest medical conditions that are readily apparent to anyone. See McFadden, 34 Kan.App.2d at 478, 122 P.3d 384. White's testimony did not provide any expert opinion or causation of her injuries. She did not testify to medical matters beyond the common knowledge of lay persons. Additionally, Kline never challenged the causation of White's injuries. White was competent to testify to the fact that she was hospitalized for 6 days and her jaw was wired shut for 8 weeks because Kline had broken or fractured in it three places. She also testified to the concussion she suffered, the broken teeth she had, and the bruises caused by being struck in the head with a bat. We find no abuse of discretion in the trial court's admission of this testimony by White.
Next, Kline argues the trial court erred in failing to instruct the jury on reckless aggravated battery as a lesser included offense.
As directed above, our first concerns in evaluating jury instructions, or a trial court's failure to give a certain instruction, are jurisdiction and preservation. Here, Kline did not request a lesser included offense instruction on reckless aggravated battery. Therefore, we review for clear error. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (A Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict.).
A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial as long as: (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a theory of guilt on any of the lesser offenses. However, if the jury could not reasonably convict the accused of a lesser offense based on the evidence at trial, then an instruction on the lesser included offense is not proper. State v. Simmons, 282 Kan. 728, 741–42, 148 P.3d 525 (2006).
Here, Kline contends the evidence was sufficient to support a conviction for reckless aggravated battery pursuant to K.S.A.2011 Supp. 21–5413(b)(2)(A), a severity level 5 person felony. Reckless aggravated battery is a lesser included offense of intentional aggravated battery. State v. McCarley, 287 Kan. 167, 177–78, 195 P.3d 230 (2008). K.S.A.2011 Supp. 21–5413(b)(2)(A) defines reckless aggravated battery as “recklessly causing great bodily harm to another person or disfigurement of another person.” The Kansas Criminal Code states that a person acts recklessly or is reckless when such person: “consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” K.S.A.2011 Supp. 21–5202(j).
Initially, the State points out the trial court asked defense counsel whether he wanted any additional lesser included offenses, specifically reckless lesser offenses. Defense counsel agreed with the trial court that none of the reckless aggravated battery offenses fit the facts of this case. See State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012) (“[A] defendant cannot challenge an instruction, even as clearly erroneous under K.S.A. 22–3414(3), when there has been on-the-record agreement to the wording of the instruction at trial.”). Again, we are faced with an invited error situation.
In any event, the State's theory at trial was that Kline intentionally struck White with the bat to cause great bodily harm. On the other hand, Kline argues he picked up the bat and swung at White only intending to hit the phone and prevent her from completing the phone call to the police. Kline argues on appeal that the jury could have concluded his actions were reckless, namely that he consciously disregarded a substantial and unjustifiable risk that the result would follow. We disagree.
Even if the jury believed Kline's story, it was still not reckless behavior. Kline did not consciously and unjustifiably disregard the substantial danger involved in attempting to hit the phone away from White's ear using a baseball bat. Here, any conflicting evidence presented at trial established that Kline was either guilty of some form of intentional battery or he was guilty of nothing at all. As previously discussed, Kline intentionally swung the bat at White and that intentional conduct resulted in great bodily harm. The fact Kline claims he did not intend that result does not negate the fact he acted intentionally. There was no evidence presented at trial by which the jury could reasonably have convicted Kline of reckless aggravated battery. Even if Kline's attempt to just hit White's phone could somehow be viewed as reckless conduct, we are not firmly convinced there was a real possibility the jury would have returned a different verdict had an instruction been given on reckless aggravated battery. Accordingly, we conclude the trial court's failure to instruct the jury on reckless aggravated battery as a lesser included offense of intentional aggravated battery was not clearly erroneous.
Finally, Kline argues cumulative error prevented him from receiving a fair trial. The reversibility test for cumulative error is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found under this cumulative effect rule, however, if the evidence is overwhelming against the defendant. See State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683(2010).
Given that the reversibility test for cumulative error utilizes a totality of the circumstances approach, an appellate court must necessarily “review the entire record and engage in an unlimited review.” State v. Cruz, 297 Kan. 1048, 1075, 307 P.3d 199 (2013).
The first task in the cumulative error analysis is to count up the errors because the doctrine “does not apply if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). Reviewing our decisions, we found the trial court properly handled the aggravated battery lesser included offense instructions. It was harmless error by the trial court in failing to include PIK Crim. 4th 68.080 to explain how the jury should properly consider the lesser included offenses and in not instructing the jury completely in line with the statutory language concerning the lesser included crimes. We found the trial court properly instructed the jury whether Kline “knowingly” committed the crimes. We also found the trial court did not err in failing to instruct on the reckless forms of aggravated battery or allowing White to testify to the extent of her physical injuries.
Likewise, we decline to second guess the trial court's denial of Kline's motion of acquittal where there was sufficient evidence for the jury to convict Kline of aggravated assault. We also find Kline invited error on the issues including PIK Crim. 4th 68.080, proper language in the aggravated battery lesser included instructions, and rejecting the offer of reckless aggravated battery instructions.
While the trial court erred in two regards (PIK Crim. 4th 68.080 and the statutory language concerning lesser included offenses), we found both of those errors were harmless. Both of those errors were invited as well. In this case, the identified, or assumed, errors do not overtake the strength of the evidence against Kline. There was overwhelming evidence as to Kline's guilt. Kline was not denied the right to a fair trial because the combined errors did not affect the verdict. Consequently, there was no reversible cumulative error.
While we find no reversible error, we believe the facts of this trial demonstrate the problems that can arise when PIK instructions are not followed.
Affirmed.