Opinion
No. 106,856.
2013-10-4
STATE of Kansas, Appellee, v. Bradley VERSTRAETE, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Bradley Verstraete was charged with four counts of aggravated assault on a law enforcement officer and one count of felony battery against a law enforcement officer. Verstraete was found guilty of the felony battery charge, but the jury could not reach verdicts on the other four counts. The district court declared a mistrial on those counts. Verstraete, by reason of mental disease or defect, was acquitted in his second trial of all four aggravated assault counts. At sentencing, Verstraete was committed to Larned State Security Hospital (Larned). He challenges the lack of a lesser included offense instruction on the felony battery against a law enforcement officer, the sufficiency of the evidence against him, the admissibility of rebuttal evidence, and his indefinite sentence to Larned State Hospital. We affirm in part, vacate in part, and remand to the district court with directions to consider his sentence under K.S.A. 22–3430.
Facts
On February 22, 2008, Richard and Abigail Pickering called police to their home over concerns regarding Verstraete, who was living in their basement. Verstraete had a history of mental illness and had been hearing voices and hallucinating. Police found him sitting on an air mattress with a machete in front of him. Officers drew their weapons and told him not to reach for the machete, but he picked it up and raised it towards the officers. The officers Tasered Verstraete several times before they were able to subdue him. He later tested positive for alcohol, marijuana, cocaine, and methamphetamine.
After Verstraete was subdued, he was transported to the hospital. Officer Long was assisting medical staff by holding Verstraete's head to intubate him. Verstraete twisted his head and bit Long's index finger. Long testified his finger hurt for several hours and that he asked a doctor at the hospital to look at it. It is undisputed that at the time of the bite Long was a law enforcement officer.
Verstraete asked for a mental disease or defect instruction at his first jury trial. The district court gave the instruction, which included the following language: “You are instructed Bradley Verstraete is not criminally responsible for his acts if because of mental disease or defect Bradley Verstraete lacked the intent to act intentionally.”
At his first jury trial, Verstraete was found guilty of felony battery against a law enforcement officer pursuant to K.S.A. 21–3413(a)(2)(B), (b); but the jury could not reach verdicts on the four counts of aggravated assault on a law enforcement officer under K.S.A. 21–3411. The district court declared a mistrial on those four counts, and a second trial commenced on May 31, 2011.
At his second jury trial, the jury was again given a mental disease or defect instruction which again contained the phrase “lacked the intent to act intentionally.” The jury acquitted him of all four counts of aggravated assault on a law enforcement officer by reason of mental disease or defect. On June 7, 2011, the district court committed Verstraete to Larned “pursuant to K.S.A. 22–3429” for evaluation prior to sentencing. Verstraete was sentenced to 21 months on Count 5, felony battery against a law enforcement officer, to the Department of Corrections with credit for time served. On Counts 1 through 4, Verstraete was committed to Larned pursuant to K.S.A. 22–3428(1)(a) and is still there.
Analysis
Challenge to Jury Instructions
Verstraete argues the district court erred in regard to two jury instructions—failing to include a lesser included instruction on misdemeanor battery against a law enforcement officer and giving an incorrect instruction on mental disease or defect. The standard of review in each instance is the same. We will address each one in turn.
Standard of Review
“For jury instruction issues, the 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. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
See State v. Williams, 295 Kan. 506, 510–16, 286 P.3d 195 (2012); K.S.A. 22–3414(3).
Did the District Court Err by Not Including a Lesser Included Offense Instruction on Misdemeanor Battery Against a Law Enforcement Officer?
Verstraete was convicted of felony battery against a law enforcement officer. He now complains the district court should have instructed the jury on the lesser included offense of misdemeanor battery against a law enforcement officer. He did not request the lesser included jury instruction or object to the instructions given at trial.
Lesser Included Crime Instruction
“[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge.” Williams, 295 Kan. at 521. “[W]here there is some evidence which would reasonably justify a conviction of some lesser included crime ..., the judge shall instruct the jury as to the crime charged and any such lesser included crime.” (Emphasis added.) K.S.A. 22–3414(3).
As we consider whether a lesser included crime instruction should have been given, we need to discuss the difference between felony and misdemeanor battery against a law enforcement officer. Felony battery against a law enforcement officer is defined by K.S.A. 21–3413(a)(2)(B), (b) as “[i]ntentionally or recklessly causing bodily harm [battery—K.S.A. 21–3412(a)(1) ]” to a uniformed or properly identified state, county, or city law enforcement officer. Misdemeanor battery against a law enforcement officer is defined by K.S.A. 21–3413(a)(1)(B), (b) as “intentionally causing physical contact ... when done in a rude, insulting or angry manner [battery—K.S.A. 21–3412(a)(2) ]” against a uniformed or properly identified state, county, or city law enforcement officer. Thus, the major distinction between the two offenses is rude, insulting or angry physical contact and intentional or reckless bodily harm, with the felony requiring bodily harm.
We now turn back to Williams to consider its guidance. In Williams, there remained a lingering question about whether the defendant used a particular knife to injure the victim. As long as this question remained unanswered, the State had not proven whether the defendant caused bodily harm (the lesser included crime) or great bodily harm with a deadly weapon (the crime charged). See 295 Kan. at 521. The Kansas Supreme Court acknowledged this meant it would have been “appropriate” to instruct the jury on the lesser included crime and consequently held that “it was error not to give the lesser included offense instruction.” 295 Kan. at 521, 523. However,
“just because ... a rational jury could have found [the defendant] guilty of the lesser included offense does not necessarily mean that [the court was convinced] that the jury would have convicted [the defendant] of the lesser offense.... That degree of uncertainty falls short of what is required to meet the clearly erroneous standard.” Williams, 295 Kan. at 523–24.
Here, Verstraete does not challenge Long was a law enforcement officer but argues the district court should have instructed the jury on the lesser included offense of misdemeanor battery against a law enforcement officer because he did not puncture the officer's skin when he bit him and the bite did not leave any bruises or other marks. He also states the officer “didn't seek medical attention” but acknowledges the officer did ask a doctor to look at the bite (which did not require further medical attention thereafter). The evidence reflects the bite caused Long's finger to hurt for several hours and he was sufficiently concerned to seek a doctor's opinion about the bite.
Verstraete does not present a compelling argument the jury would have found him guilty of misdemeanor battery against a law enforcement officer if it had been given that instruction. Long's testimony his finger hurt from Verstraete's biting him was not disputed at trial, and Verstraete's argument on appeal the officer did not seek medical attention is a mischaracterization of the evidence.
As stated earlier, the difference between the two crimes is “physical contact ... in a rude, insulting or angry manner” and “causing bodily harm.” The evidence reflects Long's finger hurt for several hours and supports the jury verdict. Verstraete caused Long bodily harm. Verstraete did not request the lesser included crime instruction.
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 22–3414(3).
The failure to give a lesser included crime instruction on misdemeanor battery against a law enforcement officer was not clearly erroneous. We are not convinced the jury would have reached a different verdict if the lesser included crime instruction had been given.
Did the District Court Err When Instructing the Jury on Mental Disease or Defect?
Verstraete argues that the phrase “intent to act intentionally” in the jury instruction on mental disease or defect requires reversal. The jury instruction given provided as follows:
“Evidence has been presented that Bradley Verstraete was afflicted by mental disease or defect at the time of the alleged crime. Such evidence is to be considered only in determining whether Bradley Verstraete had the state of mind required to commit the crime. You are instructed Bradley Verstraete is not criminally responsible for his acts if because of mental disease or defect Bradley Verstraete lacked the intent to act intentionally.”
He objected to the instruction at trial.
Were the Instructions on Intent Correct?
Aggravated assault on a law enforcement officer is a general intent crime. State v. Eichman, 26 Kan.App.2d 527, Syl. ¶ 3, 989 P.2d 795,rev. denied 268 Kan. 890 (1999). Battery is also a general intent crime, requiring only that the underlying conduct be intentional. See Gross v. State, 24 Kan.App.2d 806, 808, 953 P.2d 689,rev. denied 264 Kan. 821 (1998). It is irrelevant whether a person's intent is formed rationally or formed based on delusions. State v. Pennington, 281 Kan. 426, 435, 132 P.3d 902 (2006). “It is a defense to prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged.” K.S.A. 22–3220. The intent required for aggravated assault on a law enforcement officer is to place that officer in immediate apprehension of bodily harm. See Eichman, 26 Kan.App.2d at 529. The intent required for battery is to cause physical contact. State v. Campbell, 30 Kan.App.2d 70, 73, 39 P.3d 97,rev. denied 273 Kan. 1037 (2002).
Here, both juries were instructed Verstraete could be acquitted if the jury found that because of mental disease or defect he “lacked the intent to act intentionally.” Pattern instructions recommend the phrase “lacked the intent to engage in the conduct.” PIK Crim.3d 54.10, Notes on Use. The jury was also instructed that “[i]ntentional means conduct that is purposeful and willful and not accidental.”
For the general intent crimes charged against Verstraete, the phrase “engage in the conduct” in the PIK instruction would necessarily entail “act[ing] intentionally,” namely with the intent to place the law enforcement officer in immediate apprehension of bodily harm (aggravated assault) and to cause physical contact (battery). The phrase “lacked the intent to act intentionally” is not artful, but it accurately reflects the legal requirement that general intent crimes be committed with intent.
Verstraete's argument that the definition was “circular” and misled the jury is not convincing. His only support is in his statement that the first jury submitted a request for clarification of his intent or state of mind. However, this mischaracterizes the record. The first jury's note to the district court stated the jury was deadlocked on Counts 1 through 4 because it could not agree on Verstraete's “state of mind” at the time. It appears that the jury did understand the instructions, but it could not agree on the facts of his mental condition and a mistrial occurred.
Although the mental disease or defect instruction given did not expressly follow PIK Crim.3d 54.10, it did correctly describe the legal concepts of to act intentionally and to lack such intent. Therefore, we are convinced the instruction as given as a whole did not mislead the jury or cause it to misunderstand its duty. The instructions given were legally sufficient and in the light most favorable to the prosecution properly defined the law the jury was to follow. There was no error.
Was There Sufficient Evidence for the Jury to Find Verstraete Guilty of Battery Against a Law Enforcement Officer?
Verstraete argues there was insufficient evidence to convict him of battery against a law enforcement officer because he did not cause bodily harm.
Standard of Review
When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or evaluate the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Bodily Harm
Bodily harm is not defined by statute, and as such it is a question for the jury. Cf. State v. Kelly, 262 Kan. 755, Syl. ¶ 2, 942 P.2d 579 (1997) (degree of harm to distinguish between bodily harm and great bodily harm a question for the jury); Paida v. Leach, 260 Kan. 292, 299–300, 917 P.2d 1342 (1996) (noting that Kansas' “criminal code does not contain a definition of bodily injury” and that “bodily injury” and “bodily harm” are synonymous). However, an appellate court may sustain a conviction for battery upon a showing of bodily harm that is “slight, trivial, minor, moderate, or mere bruising.” State v. Potts, 34 Kan.App.2d 329, 337–38, 118 P.3d 692 (2005), aff'd in part, rev'd in part on other grounds281 Kan. 863, 135 P.3d 1054 (2006).
Here, Long testified Verstraete bit his index finger, that it hurt for several hours, and he sought medical care. In the light most favorable to the prosecution, a rational factfinder could have found beyond a reasonable doubt that Verstraete caused bodily harm to Long.
Verstraete essentially concedes this point when admitting Long's finger was sore after Verstraete bit him, but he argues without legal authority that an additional requirement of intentional hostility was missing. That language, first adopted by the Kansas Supreme Court in State v. Brown, 181 Kan. 375, 312 P.2d 832 (1957), applies to the bodily harm required to be shown to support a conviction for aggravated kidnapping. Further, it is used to distinguish mere physical control, which is already an element of kidnapping, from the higher severity level of threatening or intimidating force required to support a conviction for aggravated kidnapping. See Brown, 181 Kan. at 389–90. Verstraete's argument is without merit, and he does not argue why that definition should be adopted by this court for the definition of bodily harm in a battery case. Arguments not sufficiently briefed by the appellant are deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
In the light most favorable to the prosecution, the evidence was sufficient for a rational factfinder to have found Verstraete guilty beyond a reasonable doubt of felony battery against a law enforcement officer.
Was Rebuttal Testimony Properly Allowed?
Verstraete argues the district court erred in allowing the rebuttal testimony of Officer Steven Schaffer, who testified about an event in which Verstraete had contact with law enforcement officers on January 10, 2008.
Standard of Review
“A district judge has broad discretion in determining the use and extent of relevant evidence in rebuttal, and such a ruling will not be ground for reversal absent abuse of that discretion that unduly prejudices the defendant. Generally, admission of rebuttal evidence intended to contradict facts put into evidence during the defense case is not error.” State v. Cosby, 285 Kan. 230, 250, 169 P.3d 1128 (2007) (citing State v. Blue, 221 Kan. 185, 188, 558 P.2d 136 [1976] ).
Judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful or unreasonable; if it is based on an error of law; or if it is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Rebuttal Evidence
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony.” State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987).
Shaffer testified that prior to the February 2008 encounter with law enforcement officers, Verstraete had a similar encounter with law enforcement officers and mentioned the concept of “suicide by cop.” The district court allowed this testimony to rebut Dr. Alonzo's testimony Verstraete was incapable of forming the intent to commit aggravated assault against the officers when he picked up a machete and raised it towards them.
The defense's theory was that Verstraete was so affected by mental disease or defect he could not have formed the requisite intent “to act intentionally.” The State's counter to that theory was that Verstraete was acting intentionally and that he was suicidal. Shaffer's testimony was therefore proper rebuttal testimony, as it directly contradicted the evidence introduced by the defense.
Shaffer's testimony was clearly rebuttal evidence, and the district court did not err in allowing Schaffer to testify during rebuttal.
Did the District Court Err by Indefinitely Committing Verstraete to Larned?
On appeal, Verstraete argues it was error to commit him to Larned under K.S.A. 22–3428 instead of K.S.A. 22–3429. He claims this is an “illegal sentence” that may be reviewed at any time and cites to both K.S.A. 22–3504(1) and State v. LaBelle, 290 Kan. 529, 533, 231 P.3d 1065 (2010).
Standard of Review
Statutory interpretation is a question of law over which appellate courts may exercise unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Commitment to Larned
Neither Verstraete nor the State adequately explain what happened at the district court level. After conviction and prior to sentencing, Verstraete was committed to Larned for evaluation pursuant to K.S.A. 22–3429. This is in accord with the statutory requirement for a mental examination and evaluation “[a]fter conviction and prior to sentence ... as part of the presentence investigation report....” K.S.A. 22–3429. After sentencing, Verstraete was committed to “the state security hospital for safekeeping and treatment” pursuant to K.S.A. 22–3428(1)(a).
Verstraete is correct in arguing that K.S.A. 22–3428 and K.S.A. 22–3429 present two different schemes for commitment. The first assumes the defendant is acquitted of all charges by reason of mental disease or defect, a fact which presents “prima facie evidence the acquitted defendant is presently likely to cause harm to self or others.” K.S.A. 22–3428(1)(a). Any detention under this scheme may last so long as “the person continues to be a mentally ill person.” K.S.A. 22–3428a(1).
The second commitment scheme applies when the defendant is convicted of at least one count but acquitted of any others by reason of mental disease or defect, presumably demonstrating the defendant is (or was) capable of some degree of intent and allowing the district court to determine whether treatment “in lieu of confinement or imprisonment” is appropriate for the defendant. See K.S.A. 22–3429; K.S.A. 22–3430. Any detention under this scheme is limited to the “maximum term provided by law for the crime of which the defendant has been convicted.” K.S.A. 22–3430.
Conclusion
The district court did not err in failing to submit a lesser included instruction on the felony battery against a law enforcement officer charge. The injury to Brown was greater than mere contact and caused bodily harm when considered in the light most favorable to the State. The mental disease or defect instruction, when considered in the light most favorable to the prosecution, correctly defined the law for the jury to follow and was not erroneous.
The evidence presented in a light most favorable to the prosecution supports the jury's verdict Brown suffered “bodily harm” from Verstraete's bite. The rebuttal evidence allowed by the district court was in direct response to Verstraete's theory of defense and was proper.
Finally, Verstraete challenges his indefinite sentence to Larned under K.S.A. 22–3428(1)(a). K.S.A. 22–3430 is the correct statute for the commitment of a mentally ill person following a K.S.A. 22–3429 presentence evaluation. The district court erred in committing him under K.S.A. 22–3428(1)(a). This part of Verstraete's sentence is vacated, and the matter is remanded to the district court for Verstraete to be resentenced in compliance with K .S.A. 22–3430 and to determine whether Verstraete has been detained for the “maximum term provided by law for the crime of which the defendant has been convicted.”
Affirmed in part, vacated in part, and remanded with directions.