Opinion
No. 109716.
06-05-2015
STATE of Kansas, Appellee, v. Matthew MILLER, Appellant.
Korey A. Kaul and Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul and Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Matthew Miller appeals his convictions for physically abusing the woman with whom he lived and for possession of methamphetamine and drug paraphernalia found in the home they shared. He asserts a wide array of mistakes. Although Miller did not receive a perfect jury trial in the Saline County District Court, the errors considered individually and collectively did not deprive him of a fair trial. We, therefore, affirm Miller's convictions and sentence. See State v. Cruz, 297 Kan. 1048, 1075, 307 P.3d 199 (2013) (“As we have recognized for decades, ‘[a] defendant is entitled to a fair trial but not a perfect one ....‘ “ (quoting State v. Bly, 215 Kan. 168, 178, 523 P.2d 397 [1974] ).
Factual and Procedural Background
Miller moved in with Cynthia Rowden in spring 2010, and their relationship turned abusive almost immediately. In late May, Miller punched Rowden, blackening her eyes, because she said she had been flirting with a coworker. Two months later, Rowden went to an optometrist in Salina complaining of blurred vision in her left eye. Rowden told the doctor she had been slapped and felt a “pop” in her eye. She was equivocal about who had slapped her. At trial, Rowden testified that Miller struck her. The optometrist detected a detached retina, and Rowden went to see Dr. Paul Weishaar, a Wichita ophthalmologist specializing in diagnosing and treating retinal injuries. Dr. Weishaar surgically repaired the detached retina in Rowden's left eye.
Rowden testified that shortly after the surgery, Miller again assaulted her when he again became upset about her behavior with her coworker. According to Rowden, Miller ordered her to the basement of her home, handcuffed her to a pole, and threatened to bum her with cigarette lighters until she told him what was going on. The confrontation ended when someone came to the front door. Miller unlocked the handcuffs and took Rowden to a bedroom upstairs before he answered the door.
On August 8, Rowden returned to her optometrist with decreased vision in her right eye. She again said she had been struck but offered no details. Based on the repeated injuries and visible bruising to Rowden at the later visit, the optometrist called the police to report possible abuse. When an officer arrived, Rowden explained that she had been at a bar where a casual acquaintance she knew as Mike hit her. Rowden returned to Dr. Weishaar for treatment. Dr. Weishaar determined the retina in Rowden's right eye was detached and surgically repaired it.
According to Rowden's testimony, Miller beat her daily during most of the month of August using his fists and household objects. During the third week, they drove to a secluded area near a golf course. Miller told Rowden he was looking for a place to bury her. He then forced her out of the car and pummeled her. As the beating went on, Miller threatened to tie up Rowden and leave her there. The assault ended when Miller got tired. They returned to the car and drove back to Rowden's house.
Early the next morning, Miller brandished a machete as Rowden lay in bed. He threatened to kill both her and her mother. Miller then forced Rowden to drive to her coworker's house even though she could barely see. On the way, Rowden jumped a curb and ran into a stop sign. Miller bolted from the car. Rowden was able to navigate the car to the parking lot of a nearby supermarket. Employees and patrons of the store discovered her badly beaten and slumped over in the car. Emergency medical responders took Rowden to an area hospital where she was treated and released. While at the hospital, Rowden told police and medical personnel that Mike from the bar had hurt her. She specifically denied Miller had anything to do with her injuries.
From the hospital, Rowden went to a shelter for victims of domestic violence. She called Miller to tell him she had no romantic interest in her coworker and to make sure he was okay. Rowden then called her mother and explained that Miller had been abusing her. That appears to have been the first time Rowden acknowledged Miller's abuse to anyone.
In the meantime, Salina police officers contacted Miller at Rowden's home. The officers informed Miller that Rowden had been beaten and was at a hospital for treatment. Miller denied knowing anything about what had happened to Rowden. Miller told the officers he had been angry with Rowden but did not assault her. Miller discussed Rowden's recent eye surgeries with the officers and mentioned he was planning to take Rowden back to Wichita for an additional surgery. The officers noted Miller had fresh scratches on his face and arms.
Rowden's mother and sister drove from Texas to Salina to take Rowden for a second surgery on her left eye to correct what Dr. Weishaar described as a “recurrent detachment” of the retina. Following the surgery, Rowden gave Wichita police officers a brief statement identifying Miller as her abuser. The officers forwarded that information to the Salina police department.
Armed with that information, Salina police officers arrested Miller at about 5 p.m. on August 26. Miller was kept in a holding cell for roughly 6 hours while the police obtained a search warrant for Rowden's house and then scoured the premises. Detective Jamie Grover and another investigator then questioned Miller for about 2 hours. Miller continued to deny that he had hurt Rowden. When the investigators indicated they were concluding the interrogation, Miller said he would give them more information if he could smoke a cigarette. The investigators agreed and allowed Miller a smoke break. Miller then described in some detail various incidents during which he had struck and injured Rowden.
The Salina police found significant amounts of blood in several rooms of Rowden's house. Later DNA testing showed the blood to be Rowden's. The officers also confiscated various household objects, items commonly used to ingest illegal drugs, and a plastic bag containing methamphetamine residue.
After her third eye surgery, Rowden went to Texas to stay with family members. While there, she gave a more detailed statement to officers with the Plano police department about Miller's abuse of her.
While in custody, Miller requested to speak with Det. Grover a second time. During their meeting, Miller asked Det. Grover to get additional items from Rowden's house that he suggested would exculpate him. Det. Grover obtained a second search warrant and participated in another search of the house on September 2. The officers seized clothing, locks, chains, a set of handcuffs, a machete, and devices for storing electronic data.
The district attorney charged Miller with two counts of aggravated kidnapping, one count of kidnapping, three counts of aggravated battery, aggravated assault, two counts of criminal threat, domestic battery, possession of methamphetamine, and possession of drug paraphernalia.
Miller filed motions to suppress evidence the police took from Rowden's house and statements he made to Det. Grover and the other investigator the day he was arrested. The district court heard and denied the motions in late April 2012, several days before the jury trial began. Miller did not testify during the 10–day trial. After deliberating for 2 days, the jury found Miller not guilty of two of the three kidnapping charges and the aggravated assault charge. The jury could not reach a verdict on the other kidnapping charge. The jury convicted Miller on the remaining charges, although finding one of the aggravated battery counts to be of a lower severity level. After denying Miller's posttrial motions, the district court imposed a combination of concurrent and consecutive sentences, yielding a controlling prison term of 141 months. Miller has appealed.
Legal Analysis
We take up the points on appeal largely as Miller has presented them, adding facts and procedural history as necessary. Ultimately, we find no grounds warranting legal relief for Miller.
Motions to Suppress
Miller contends the search warrants were too generic in describing some of the objects to be seized, rendering them impermissible general warrants violating the prohibition of unreasonable searches and seizures in the Fourth Amendment to the United States Constitution. See Stanford v. Texas, 379 U.S. 476, 485–86, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965) ; Cassady v. Goering, 567 F.3d 628, 635 (10th Cir.2009). The district court denied Miller's motion to suppress evidence, a ruling he has appealed.
Although Miller's arguments are abstractly intriguing, he fails to demonstrate any trial error affecting his convictions. Even assuming a Fourth Amendment violation and an erroneous ruling in the district court on a motion to suppress, the appropriate remedy for the constitutional violation would be the exclusion of any impermissibly seized evidence in the prosecution of the accused. United States v. Leon, 468 U.S. 897, 908–09, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (“The Court has, to be sure, not seriously questioned, ‘in the absence of a more efficacious sanction, the continued application of the [exclusionary] rule to suppress evidence from the case where a Fourth Amendment violation has been substantial and deliberate.’ ”). Here, Miller cites no evidence admitted at trial he says was impermissibly seized and, in turn, fails to explain how his right to a fair trial was compromised. Without that showing, Miller demonstrates no prejudicial error or harm. So without deciding the validity of the search warrants, we decline to reverse any of the convictions.
Miller next contends the district court erred in denying his motion to suppress statements he made to Det. Grover and the other investigator after his arrest. He contends the duration and other circumstances of his detention on August 26, 2010, rendered the statements involuntary and, hence, unreliable and inadmissible against him. The State's use of admissions its agents have obtained from a criminal defendant as the result of undue pressure violates the right against self-incrimination recognized in the Fifth Amendment and the due process protections of the Fourteenth Amendment to the United States Constitution. Kansas v. Ventris, 556 U.S. 586, 590, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009) ; State v. Schultz, 289 Kan. 334, 342–43, 212 P.3d 150 (2009).
To assess the voluntariness of a defendant's statements to government agents, the district court considers all of the facts bearing on the interaction leading up to and resulting in those communications. The ultimate issue is whether the statements reflect the product of a free and independent will, i.e., did the individual act voluntarily? See State v. Gilliland, 294 Kan. 519, Syl. ¶¶ 3, 4, 276 P.3d 165 (2012) ; State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010) ; State v. Shumway, 30 Kan.App.2d 836, 841–42, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002). Among the factors to be considered in assessing voluntariness are: “(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused on request to communicate with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.” Gilliland, 294 Kan. 519, Syl. ¶ 3, 276 P.3d 165 ; see Stone, 291 Kan. at 21, 237 P.3d 1229. The State must prove the voluntariness of the defendant's statements by a preponderance of the evidence. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).
An appellate court reviews the district court ruling using the well-known bifurcated standard under which factual findings must be supported by substantial evidence but the controlling legal conclusion is subject to unlimited review. An appellate court may not reweigh the evidence generally or make independent credibility determinations. Gilliland, 294 Kan. 519, Syl. ¶ 1, 276 P.3d 165 ; Stone, 291 Kan. at 21, 237 P.3d 1229.
Miller testified during the suppression hearing. He said he had consumed a large amount of beer and vodka early on the day he was arrested and had been regularly using methamphetamine for an extended period. But Miller had not used any the day he was arrested. Because of his drug use, Miller said he had slept little and had gotten only about 3 hours sleep the night before his arrest. Miller described himself as disoriented and disconnected during the police interrogation.
At the hearing, Det. Grover testified that Miller had been given food and breaks during the 6 hours he had been in the holding cell and during the 2 hours the officers questioned him. The evidence indicates Miller dozed intermittently during the time he was in the holding cell. Det. Grover said that at no point during the interrogation did Miller say he was drunk, tired, sick, or otherwise unable or unwilling to continue. Miller did not ask that the officers stop questioning him. During the bulk of the interview, Miller made no incriminating admissions and repeatedly denied harming Rowden. The officers perceived they were making no headway, so they told Miller they were done and intended to leave. Miller, however, suggested that after a smoke break, he would tell them what actually happened with Rowden. Det. Grover took Miller up on the offer and allowed him a cigarette. Miller then made substantially incriminating statements. At no point during the interrogation did Det. Grover or the other investigator falsely tell Miller they had evidence against him as a lever to pry admissions from him. They did not threaten or intimidate him. According to the officers, Miller was in no distress and under no duress during their questioning of him.
The district court effectively credited Det. Grover's description of the interrogation, although we do not perceive significant factual discrepancies in the accounts. The differences go more to Miller's characterization of his state of mind and Det. Grover's description of his demeanor and comportment. We understand the interrogation of Miller was recorded. The tape is not part of the record on appeal, so we cannot review it in assessing the voluntariness of Miller's statements.
We see little point in mechanically going through each of the enumerated factors for gauging voluntariness. The district court's factual findings have support in the evidence and those findings, in turn, warrant the conclusion that Miller voluntarily spoke with the officers. He has cited no circumstances suggesting the officers mentally or physically abused him, tricked him, or otherwise unfairly coerced him or deliberately depleted his resistance causing him to confess as the result of a broken will to resist. The evidence similarly shows he understood what was going on and voluntarily answered the questions put to him. In sum, the district court did not err in overruling Miller's motion to suppress his statements.
Jury Instruction on Possession of Methamphetamine
Miller contends one of the jury instructions related to possession of methamphetamine deprived him of a fair trial on that charge. The sequential steps in analyzing a claimed instructional error are: “(1) reviewability considering preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of any actual error.” State v. Franco, 49 Kan.App.2d 924, Syl. ¶ 1, 319 P.3d 551 (2014) ; see State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). A defendant's failure to raise or preserve a challenge to a jury instruction in the district court does not prevent appellate review but imposes the more demanding burden of showing clear error as part of the final analytical step. K.S.A.2014 Supp. 22–3414(3) ; Franco, 49 Kan.App.2d at 927–28, 319 P.3d 551. Miller, however, objected to the instruction at trial and, thus, has satisfied the preservation requirement.
The district court used a standard instruction setting out the elements of possession of a controlled substance that includes the State's obligation to prove “the defendant possessed or had under his control methamphetamine” and did so “intentionally.” See PIK Crim.3d 67.13. The instruction also defined “possession” as “having joint or exclusive control over an item with knowledge of and the intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” Miller does not quarrel with the legal adequacy of that instruction.
But at the prosecutor's request and over Miller's objection, the district court gave a separate instruction stating: “Proof of possession of any amount of a controlled substance is sufficient to sustain a conviction even though such amount may not be measurable or usable.” That instruction is not included among those drafted or approved by the PIK committee. The statement is drawn directly from a syllabus point in State v. Berry, 223 Kan. 102, Syl. ¶ 2, 573 P.2d 584 (1977). In that case, Berry argued that as a matter of law he could be convicted of possession of heroin only if the amount were measurable or usable. The court found that “no provision” of the statutory scheme criminalizing possession of controlled substances “requires that any specific quantity ... be possessed before the act ... is unlawful.” 223 Kan. at 104, 573 P.2d 584. The Berry court, therefore, affirmed a conviction for possession based on trace amounts of heroin found on various items fairly considered drug paraphernalia.
Miller contends the instruction effectively creates a mandatory presumption that even if an infinitesimal amount of an illegal drug is present, a defendant must be found guilty of possession. He says the instruction, therefore, obviates the State's obligation to prove all elements of the crime. Standing alone, the instruction could be construed to indicate mere possession of a controlled substance, regardless of amount, is sufficient to convict—eliminating the additional requirement that the possession be intentional and knowing. The vice isn't so much an improper presumption as it is the elimination of any culpable mental state, effectively turning possession of a controlled substance into a strict liability crime.
Jury instructions, however, cannot be analyzed in isolation, as Miller would have us do. All of the related instructions must be read together—the way the court must presume the jurors apply them—to determine if they collectively state the pertinent law fairly. See State v. Horton, 300 Kan. 477, 491, 331 P.3d 752 (2014) (court reviews instructions “as a whole” in assessing alleged error in particular instruction to determine if law has been “fairly stated” in factual context of case); State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012) (courts presume jurors apply instructions). The disputed instruction must be tempered by the elements in the standard instruction and the definition of possession. They require the State to prove a defendant intentionally and knowingly possessed the controlled substance, here methamphetamine.
The standard instruction related to possession of methamphetamine contained all of the necessary legal principles for the jurors' consideration of the evidence. The nonstandard instruction was extraneous and perhaps less than aptly phrased. It adds nothing particularly useful but ultimately detracts little, if at all, from the jurors' understanding of the relevant law. The elements instruction does not intimate the State must show a defendant possessed at least some minimum quantity of an illegal drug to be convicted. Thus, a defendant's intentional possession of any amount necessarily must be sufficient to convict if the other stated elements have also been proved. Jurors really need no additional guidance or amplification on the point.
Were defense counsel to try to argue to the jurors the law requires some threshold amount to convict, the argument would be legally improper and objectionable. The district court ought to sustain such an objection and instruct the jurors to disregard the defense argument. At that point, a district court would have the discretion to give a supplemental, curative instruction. But giving a nonstandard instruction in anticipation of an improper argument ought to be a true rarity. This is not such a rare case.
A jury instruction correctly characterized as superfluous or irrelevant shouldn't be given. By definition, it serves no good purpose in the case and becomes, at best, legal clutter. By the same token, however, if an unnecessary instruction fairly states even immaterial legal principles, it seldom would cause actual prejudice to one side or the other.
The nonstandard instruction given here illustrates the potential pitfall in extracting word-for-word language from judicial opinions as jury instructions. Judicial opinions typically are not written as templates for jury instructions. A sentence pulled from a decision may not capture every pertinent aspect of a legal principle. The syllabus point from Berry is illustrative. The court was not attempting to explain the concept of “possession” as including a culpable state of mind, so that aspect of the law is nowhere to be found in its discussion. Using that language as a freestanding jury instruction tends to cloud a key principle—the mens rea necessary to convict.
If a district court concluded that the special circumstances of a case required instructing jurors about the amount of a controlled substance in relationship to a possession charge, the far better practice would incorporate that information into the standard elements instruction. For example, following the definition of possession, the district court here could have inserted a statement to the effect that “no particular minimum quantity or amount of methamphetamine is required to prove possession as defined in this instruction.” That sort of proximity and equivalent emphasis would tend to foster a more balanced explanation of the law to the jurors.
Ultimately, however, the combined instructions on possession of methamphetamine given here stated the law correctly or, at least, did not materially misstate the law. This is one of those situations in which the instructions provided to the jurors could have been better, but what was given didn't amount to error. See State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) (revised PIK instruction on reasonable doubt “preferred,” but older instruction not erroneous). We, therefore, need not assess prejudice to Miller.
If we were to do so, the most favorable standard to which Miller might be entitled would be the one for error diminishing a criminal defendant's constitutional rights, as set out in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). See Plummer, 295 Kan. at 162, 283 P.3d 202. Under that standard, the State would be obligated to convince us there was “no reasonable possibility that the error contributed to the verdict.” Ward, 292 Kan. at 565, 256 P.3d 801. In this case, there was essentially no chance the jury returned a guilty verdict on the possession of methamphetamine charge because of the nonstandard instruction. Rowden testified that she and Miller regularly used methamphetamine together—their shared interest in the drug appeared to be a cornerstone of their relationship. So far as the record on appeal indicates, that aspect of Rowden's testimony was unrefuted by other evidence. Accordingly, there was substantial evidence Miller had intentionally and knowingly possessed methamphetamine. In that light, the trace amount found in the plastic bag supported the required element that Miller intentionally rather than unwittingly possessed the drug. In other words, the residue in the bag simply reflected the unusably small amount left after Miller ingested all that he could. That is intentional possession and quite enough to support a conviction, as the standard elements instruction informed the jurors without an assist from the challenged instruction. The nonstandard instruction didn't tip an otherwise close case on methamphetamine possession to a guilty verdict.
Jury Instructions on Possession of Paraphernalia
Miller challenges the jury instruction describing the plastic bag with the methamphetamine residue as potential drug paraphernalia. He contends the instruction effectively amounted to a direction from the district court that the bag must be treated as paraphernalia, depriving him of a constitutionally fair trial on the issue. A district court directing a verdict for the State in a criminal case violates the defendant's right to due process under the Fourteenth Amendment and to a jury trial under the Sixth Amendment. See Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73, 97 S.Ct. 1349, 51 L.Ed.2d 642 [1977] ); State v. Brice, 276 Kan. 758, Syl. ¶ 2, 80 P.3d 1113 (2003). Miller failed to object in the district court, so we ultimately consider the instructions on paraphernalia for clear error. State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012).
The district court instructed the jury that the State had to prove, among other elements, Miller “intentionally used or possessed with the intent to use a baggie as drug paraphernalia to store, contain, conceal, ingest, inhale, inject, or otherwise introduce methamphetamine into the human body.” (Emphasis added.) Miller complains the italicized language instructed the jurors that the plastic bag necessarily was drug paraphernalia. But that's not what the instruction says at all. The instruction required the State to show beyond a reasonable doubt that the plastic bag was used in one of the enumerated ways with regard to methamphetamine. If proved, that use would render the bag unlawful paraphernalia, consistent with the instruction. The phrase “as drug paraphernalia” probably adds nothing substantive to the instruction and could be eliminated without changing the meaning or requirements of that element of the offense. But contrary to Miller's argument, that is not the same as requiring the jurors to find the bag was used that way or judicially declaring it to be paraphernalia. In that respect, the instruction contained no error.
Miller also challenges a related instruction in which the district court informed the jurors:
“ ‘Drug paraphernalia’ means all equipment, and materials of any kind which are used or primarily intended for use in storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.
“ ‘Drug paraphernalia’ includes:
“(1) Baggie.”
Again, Miller says the instruction directs a verdict by telling the jurors drug paraphernalia includes the baggie. This instruction is more problematic. Standing alone, the instruction could be interpreted as telling the jurors the plastic bag at issue in this case is included in the definition of drug paraphernalia. But that impression is muted if not displaced when the two instructions are read together. In combination, they inform the jurors the plastic bag had to be used for one of the listed purposes to be unlawful paraphernalia.
The definitional instruction presumably means to focus the jurors' attention on what objects discussed in the evidence or introduced as exhibits may be considered in connection with the paraphernalia charge. As given, the instruction muddies that purpose. The instruction would have been better phrased had it said after the definition: “You may consider whether the baggie is drug paraphernalia as defined in this instruction.” Perhaps even better, the definitional paragraph of the instruction could have been included at the end of the elements instruction, eliminating the need for a separate instruction. The elements instruction, of course, told the jurors to focus solely on the use of the plastic bag in considering the paraphernalia charge.
For analytical purposes, we assume the definitional instruction to be erroneous, although it, too, probably reflects a less desirable though legally adequate instruction. In this case, the instruction could not have created clear error. The Williams court has phrased the test for clear error as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instruction[al] error not occurred.” 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195.
In convicting Miller on the possession of methamphetamine charge—a conviction we have determined to be free of instructional error, the jurors obviously found the residue in the plastic bag to be an illegal controlled substance. Rowden testified that Miller kept the methamphetamine he used in plastic bags. That testimony, too, was unrefuted at trial. Given those circumstances, the manner in which the plastic bag was described in the jury instructions could not have been decisive in the jurors' decision to convict Miller of the paraphernalia charge. The evidence plainly showed (and the jury plainly found) Miller knowingly kept methamphetamine in the plastic bag. Those findings necessarily make the bag illegal paraphernalia. And the jurors arrived at those conclusions independently of any possible taint from the instructions on paraphernalia when they convicted Miller on the possession of methamphetamine charge. That is, to convict Miller of possession of methamphetamine, the jurors had to find all of the facts necessary to convict him of possession of the plastic bag as a means of storing the illegal drug—the required elements of the paraphernalia charge. Accordingly, there could have been no clear error or prejudice resulting from the instructions on paraphernalia.
Dr. Weishaar's Testimony
Twice during the trial in response to questions from the prosecutor, Dr. Weishaar said the injuries to Rowden's eyes were caused by abuse. Each time, Miller's lawyer objected. The district court sustained the objections and said the references to abuse were “stricken” from the record. But the district court did not explicitly tell the jurors to disregard the testimony. Miller contends the testimony was improper expert opinion and deprived him of a fair trial. He is right as to the first of his contentions and wrong as to the second.
Based on special training, education, or experience in a particular field, a witness may offer opinions in that field if they are otherwise relevant to the disputed legal issues and would assist jurors in understanding the evidence because they lack that expertise. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 435–36, 228 P.3d 1048 (2010) ; State v. Cooperwood, 282 Kan. 572, 578–79, 147 P.3d 125 (2006). Dr. Weishaar has a medical degree, specialized training in ophthalmology, and considerable experience in diagnosing and treating damaged retinas. Dr. Weishaar, therefore, was qualified to provide expert opinion testimony within his field. Miller does not suggest otherwise. We note in passing that in 2014, the Kansas Legislature revamped portions of the code of evidence governing expert testimony. Those changes do not affect the issues or analysis here.
As an expert witness, Dr. Weishaar could describe the extent of the damage to Rowden's retinas, the course of treatment, and the immediate and long-term prognosis for her vision. All of that would bear on the jurors' consideration of the issue of great bodily harm relevant to the aggravated battery charges. See Williams, 295 Kan. at 522–23, 286 P.3d 195. We suppose, too, Dr. Weishaar had the expertise to describe mechanisms of injury circumstances that would entail sufficient force to cause the type of damage he observed to Rowden's retinas. Thus, he could testify that to a reasonable degree of professional probability that a punch or series of punches to the face could have caused the injuries to Rowden's retinas.
But, as we read the record, Dr. Weishaar went beyond his expertise to characterize the way Rowden was injured as “abuse,” as opposed to some other circumstance in which she might have been punched or struck in the face. In reaching that conclusion, Dr. Weishaar relied on his observation of bruises to Rowden, her reluctance to identify the person she said had hit her, and the unusual timing of similar and successive injuries to each of her eyes. Basically, Dr. Weishaar looked at the circumstantial evidence and drew a logical conclusion based on common sense rather than his medical training and practice. In short, he did what jurors are expected to do. So in testifying that Rowden had been physically abused, Dr. Weishaar usurped the jurors' function as finders of fact. The jurors were as capable as he in drawing that conclusion from all of the circumstantial evidence that included his proper expert testimony about the sort of force or trauma that could have caused the injuries to Rowden's eyes.
In short, Dr. Weishaar's testimony about abuse was improper. The question, however, remains whether that testimony caused sufficient prejudice to Miller to deprive him of a fair trial. The district court sustained Miller's objection and declared the impermissible reference to abuse stricken. Without more, however, we wonder about the sufficiency of the attempted repair. A district court's declaration striking testimony made in a motions hearing or bench-tried case should adequately convey to the lawyers that the evidence has been excluded. But we question whether jurors would necessarily grasp the full implication of that shorthand expression. The better practice calls for explicitly telling jurors to disregard the “stricken” evidence.
The jury instructions in this case didn't shore up the problem and may have made things worse. The district court did not use PIK Crim. 4th 50.050 that, in part, informs jurors to “disregard any testimony or exhibit which I did not admit into evidence.” The instruction helps avoid any prejudice when the district court has refused to admit proffered evidence or has plainly told jurors to disregard evidence. How effective the instruction would have been in this case is debatable, since the district court's direction to the jurors in ruling on the objections was, at best, inexact. Moreover, the district court included a fractured form of PIK Crim. 4th 50.060 in which it informed the jurors: “At times during the trial the court has ruled upon the admissibility of evidence [and][y]ou must not concern yourself with these rulings.” The actual PIK instruction tells jurors not to concern themselves with “the reasons for these rulings.” By omitting that language, the district court wound up telling the jurors all of the evidentiary rulings during the trial ought to be ignored, when the instruction is supposed to keep the jurors from speculating about why the district court ruled as it did.
Given the difficulties with how the objections were handled, we analyze Miller's point as if those objections were denied and the jurors actually considered Dr. Weishaar's testimony about abuse. We may be extending Miller a more favorable review than the law requires. Nonetheless, we give him that benefit. When a district court erroneously admits evidence in a criminal case over the defendant's objection, we affirm a conviction if there is no reasonable probability the error contributed to the verdict. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012) ; State v. Ward, 292 Kan. at 565, 256 P.3d 801. The State, as the party benefiting from the error, has the burden to demonstrate harmlessness. McCullough, 293 Kan. 970, 270 P.3d 1142, Syl. 9.
Rowden, of course, testified to Miller's physical abuse of her, and the manner of the abuse was consistent with the injuries to her eyes. More pertinent to the assessment of prejudice, Miller confessed to hitting Rowden on multiple occasions, sometimes using objects to bludgeon her. The blood found in Rowden's house tended to corroborate her testimony about having been seriously injured there. In light of what the jurors properly heard during the trial, we say with confidence Dr. Weishaar's briefly stated opinion that Rowden was the victim of abuse did not influence the verdicts.
On appeal, Miller also complains about testimony from Dr. Weishaar pointing to him as Rowden's abuser because he was the adult cohabiting with her. The testimony is objectionable for the same reasons as Dr. Weishaar's opinion that Rowden's eye injuries were the result of abuse. Again, Dr. Weishaar ventured outside his expertise in reaching his conclusion and simply evaluated circumstantial evidence in the same way lay jurors could. But Miller's trial lawyer did not object to that opinion testimony. The omission preclues appellate review.
In the absence of a contemporaneous objection to evidence offered at trial, the appellate courts will not review the admission of that evidence for error. K.S.A. 60–404 ; State v. Cameron, 300 Kan. 384, 394, 329 P.3d 1158 (2014) (“This court still adheres to the requirement that appellate review of the admission of evidence through questions to witnesses and their answers is permitted only when a party preserves the issue by way of a contemporaneous objection.”); State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Without a timely objection, the district court can take no steps to keep out the objectionable evidence or to ameliorate the adverse effects of its mention in front of the jurors. In turn, aggrieved parties cannot fairly attack adverse judgments on that basis on appeal, since they declined to head off any negative repercussions when they had the opportunity during trial. The rule is both sound and necessary when it comes to evidentiary objections. See State v. White, No. 109,953, 2014 WL 5312873, at *8 (Kan.App.2014) (unpublished opinion) (Atcheson, J., concurring). We, therefore, decline to consider any error in this aspect of Dr. Weishaar's testimony.
Violation of Order in Limine
The district court granted Miller's motion in limine prohibiting any mention in front of the jurors of a statement he had made to Det. Grover to the effect that he was carrying illegal drugs when he bolted from the car after Rowden drove into the stop sign. The drug possession charge against Miller was based on the methamphetamine residue found in the plastic bag at Rowden's house—not whatever drugs he said he had with him in the car. The statement, therefore, amounted to inadmissible propensity evidence under K.S.A.2014 Supp. 60–455(a).
In response to a question from the prosecutor asking what Miller did after Rowden hit the stop sign, Det. Grover testified that he said he ran from the car because he had illegal drugs on him. Miller's lawyer objected based on a violation of the order in limine. The district court sustained the objection and clearly instructed the jurors to disregard the testimony. In his motion for a new trial, Miller cited the violation of the limine order as one of the grounds warranting relief. The district court denied the new trial request. On appeal, Miller says that ruling was erroneous given the limine violation.
Generally, the district court is afforded considerable discretion in ruling on a motion for a mistrial or a new trial based on a party's violation of an order in limine. State v. Breedlove, 295 Kan. 481, 494, 286 P.3d 1123 (2012). Having issued the order and then presided over the trial, the district court has an especially insightful vantage point to assess the violation and the resulting prejudice. Accordingly, an appellate court typically reviews the ruling for an abuse of discretion. 295 Kan. at 494, 286 P.3d 1123. A district court exceeds that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied ––– U.S. ––––, 134 S.Ct. 162, 187 L.Ed.2d 40 (2013) ; State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
The prosecutor told the district court that Det. Grover had been informed of the limine order before testifying during the trial. And Det. Grover's testimony plainly violated the order. The violation resulted in at least some prejudice to Miller. The point of an order in limine is to prevent jurors from hearing anything about unduly prejudicial facts when so much as a reference to those facts would be difficult to smooth over. See State v. Santos–Vega, 299 Kan. 11, 25, 321 P.3d 1 (2014) ; State v. Shadden, 290 Kan. 803, 815–16, 235 P.3d 436 (2010) (motion in limine may be granted if testimony or documents would be inadmissible at trial under rules of evidence and mere mention of the information would be highly and impermissibly prejudicial to party or disruptive of the trial process). But a violation of a limine order by one party does not in and of itself require reversal of an adverse judgment against the other party. The violation must be sufficiently prejudicial to compromise the trial's basic fairness. Breedlove, 295 Kan. at 494, 286 P.3d 1123 (violation of limine order must cause “substantial[ ] prejudice” to set aside conviction).
Here, the improper testimony bore on the drug charges against Miller. As we have already discussed, the evidence on them was substantial and largely undisputed. Moreover, that evidence generally suggested Miller's chronic use of methamphetamine. So Miller's statement to Det. Grover that he had illegal drugs in a particular setting apart from the specific circumstance charged would not have come as a startling revelation to the jurors. The impermissible testimony, of course, had no direct relationship to the charges Miller physically abused Rowden.
We also should presume jurors follow a district court's explicit direction to disregard improper testimony. State v. Williams, 299 Kan. 509, 560, 324 P.3d 1078 (2014). Nothing in the record here suggests the jurors did otherwise. Although we hesitate to infer too much from split verdicts, the jurors in this case do not seem to have been roused by passion or prejudice to convict Miller in patent disregard of the evidence. The jurors acquitted or could not reach a verdict on the kidnapping charges and returned a guilty verdict on a lesser level of aggravated battery on one of those counts. This was not a group of jurors bent on blindly convicting Miller. We have every reason to believe they understood and adhered to the district court's admonition.
The district court did not abuse its discretion in handling the violation of the limine order or in denying Miller's motion for a new trial. Miller has not shown substantial prejudice, and we are convinced the verdicts would have been no different in the absence of Det. Grover's improper testimony.
Sufficiency of the Evidence for Aggravated Battery
Miller challenges the sufficiency of the evidence to support the aggravated battery charges. In reviewing a sufficiency challenge, we construe the evidence in a light most favorable to the party prevailing below, here the State, and in support of the jury's verdicts. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. Williams, 299 Kan. at 525, 324 P.3d 1078 ; State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
In considering this issue, we point out the charged crimes took place in 2010 and are subject to the criminal code in effect at that time. We, therefore, do not consider or apply the “culpable mental states” the Kansas Legislature adopted as part of the revisions to the code that became effective July 1, 2011.
Miller contends the convictions for severity level 4 aggravated battery must be set aside because he did not intend to cause great bodily harm to Rowden. But the argument depends upon an incorrect understanding of the elements of aggravated battery under K.S.A. 21–3414. The State did not have to prove Miller intended or meant to cause great bodily harm to Rowden. Rather, the State was required to show he acted “intentionally” and his intentional conduct caused great bodily harm. K.S.A. 21–3414 (aggravated battery requires “intentionally causing” great bodily harm or disfigurement). Whether Miller wanted to inflict that degree of harm is entirely beside the point.
Miller's argument incorrectly treats aggravated battery as if it were a crime requiring a specific criminal intent on the defendant's part to cause significant injury rather than as a general intent crime requiring simply that the defendant intentionally or purposefully perform a wrongful act resulting in significant injury. As codified in K.S.A. 21–3414, aggravated battery was a general intent crime. State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003) ; State v. Spicer, 30 Kan.App.2d 317, 323–24, 42 P.3d 742, rev. denied 274 Kan. 1117 (2002); State v. Esher, 22 Kan.App.2d 779, 785–86, 922 P.2d 1123, rev. denied 260 Kan. 997 (1996). As this court explained: “General intent is a state of mind in which a person is conscious of the act he or she is committing without necessarily understanding the consequences of that action....” Spicer, 30 Kan.App.2d at 324, 42 P.3d 742. Had the legislature wanted aggravated battery as defined in K.S.A. 21–3414 to be a specific intent crime, it would have proscribed physical contact the defendant intended to result in great bodily harm. The legislature did not use such language. Accordingly, Miller's point lacks any legal foundation.
Miller essentially repeats that argument specifically with respect to his conviction for aggravated battery on count 2 pertaining to the detached retina in Rowden's right eye. Miller says the State failed to present any evidence showing he intended to injure Rowden by detaching her retina. As we have explained, the aggravated battery charge did not require proof Miller wanted to inflict great bodily harm generally or some particular injury. Miller merely had to act intentionally or deliberately in striking Rowden. The evidence, including Miller's confession, supports that statutory requirement.
As to the aggravated battery conviction on count 3, Miller contends there were multiple acts presented in the evidence that might have supported the conviction and some of those did not entail sufficiently severe injury to constitute great bodily harm. If the State relies on multiple acts, the jurors must agree on the particular act. In addition, because the jury returns a general verdict that does not designate the act upon which the conviction is based, each of the acts must satisfy the statutory elements of the crime. See State v. Soto, 299 Kan. 102, 110–11, 322 P.3d 334 (2014) ; State v. Zabrinas, 271 Kan. 422, 439, 24 P.3d 77 (2001) (“Multiple acts instructions are only necessary where the facts show separate incidents that are factually and legally sufficient to satisfy all of the elements of the crime.”).
The district court gave a proper unanimity instruction requiring the jurors to agree upon a single criminal act to return a guilty verdict on count 3. That takes care of Miller's first point. State v. King, 297 Kan. 955, 977–78, 305 P.3d 641 (2013).
Miller cites three possible factual circumstances that could have supported count 3 based on the allegation the offense occurred between August 12th and 23rd: evidence that he burned Rowden, causing scarring; evidence that he cut her with a knife and otherwise inflicted wounds causing scarring; and evidence that Rowden suffered a recurrent detachment of or tear in her left retina, requiring a second surgery on that eye. As to the first two, Miller says the injuries to and scarring of Rowden did not amount to great bodily harm as a matter of law. But the Kansas appellate courts have consistently held that whether an injury rises to the level of great bodily harm should be left to jurors to determine. State v. Simmons, 295 Kan. 171, 177, 283 P.3d 212 (2012) (“We have repeatedly held that establishing the difference between [bodily] harm and great bodily harm is a decision for the jury.”); State v. Green, 280 Kan. 758, 765, 127 P.3d 241, cert. denied 549 U.S. 913, 127 S.Ct. 253, 166 L.Ed.2d 198 (2006). Scarring from injuries may support a finding of great bodily harm depending on the circumstances, as when they are caused by bums or a deadly weapon. See State v. Moore, 271 Kan. 416, 420–21, 23 P.3d 815 (2001) (bums resulting in scarring constituted great bodily harm); State v. Conde, No. 105,756, 2012 WL 1920051, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013) (scarring from three otherwise superficial stab wounds sufficient to support jury finding of great bodily harm). Here, there was sufficient evidence to support the jury's conclusion Miller inflicted great bodily harm if the conviction were based on either of the first two circumstances.
As to the second injury to Rowden's left eye, Miller contends there was no evidence he was responsible for the harm. But Dr. Weishaar testified the recurrent detachment of the retina was likely caused by “nonaccidental trauma,” meaning some intentional act. He acknowledged that a recurrent detachment can happen spontaneously, but he discounted that as unlikely. According to the confession Miller gave Det. Grover, he struck Rowden in the face numerous times after the initial surgery on her left eye and before the diagnosis of the recurrent detachment of the retina necessitating the additional surgery. Dr. Weishaar's testimony on this point was sufficient to support the jury's determination that Miller caused the recurrent detachment of Rowden's left retina. On the evidence, it was then for the jurors to determine whether the second injury to the retina and the required surgical correction constituted great bodily harm.
We reject Miller's suggestions that insufficient evidence supported the aggravated battery convictions.
Cumulative Error
Miller contends the cumulative impact of the trial errors deprived him of a fair trial. Appellate courts will weigh the collective effect of trial errors and may grant relief if the overall result of the miscues deprives the defendant of a fair hearing even when each, considered alone, could be dismissed as harmless. State v. Smith–Porker, 301 Kan. 132, 167–68, 340 P.3d 485 (2014). Unpreserved trial error cannot be resurrected and weighed in assessing cumulative prejudice. See, e.g., State v. Leaper, 291 Kan. 89, 106–07, 238 P.3d 266 (2010) ; see also State v. Knight, No. 105,092, 2012 WL 2325849, at *7 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1133 (2013).
The errors we may consider here were minor measured against the overall evidence against Miller, including his own rather damning admissions. We have carefully reviewed those errors collectively. We are unpersuaded the identified errors so compromised the jurors' ability to perform their factfinding function that there was any measurable chance they reached tainted conclusions. Each error was harmless alone, and together they were likewise insufficient to suggest Miller received something less than a fair trial.
Sentencing Issue
For his final point on appeal, Miller argues that the district court's use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by a jury in this case. Miller relies on the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to support that proposition.
Miller acknowledges the Kansas Supreme Court has rejected that argument and has found the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments to the United States Constitution with respect to the use of a defendant's past convictions in determining a presumptive statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise, especially in light of the Supreme Court's continuing reaffirmation of Ivory. State v. Hall, 298 Kan. 978, 991, 319 P.3d 506 (2014) ; State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013).
Affirmed.