Opinion
No. 107,366.
2013-10-11
STATE of Kansas, Appellee, v. Charles E. WILLIAMS, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
STANDRIDGE, J.
Charles E. Williams appeals following his convictions for unintentional second-degree murder and aggravated battery. We affirm Williams' conviction for aggravated battery and dismiss Williams' challenge to his aggravated battery sentence for lack of jurisdiction. Because we find the district court erred by denying Williams' request to provide the jury with an instruction on self-defense with respect to the charge of intentional second-degree murder, however, we reverse his unintentional second-degree murder conviction and remand for a new trial on the intentional second-degree murder charge with all applicable jury instructions.
Facts
On the evening of August 2, 2010, Donald Carter went to his mother and stepfather's house with his girlfriend and three of his sons. Donald's mother, Sheila Williams, lived at the house with her husband Williams. Donald and Williams frequently were at odds with each other, and Sheila often had to act as a buffer between the two men. Donald did not have a key to the house, was required to knock and receive permission before entering the house, and was never permitted to stay at the house overnight. Sheila occasionally laundered Donald's clothes, and Donald would “pop up” unannounced in order to visit Sheila and/or pick up his clothes about every 2 weeks. Donald's unannounced visits to the house to visit Sheila usually occurred during the day because Sheila and Williams went to bed at around 10 p.m.
Upon arriving at the house, Donald knocked on the door. On that particular night, Allonta Minor, Donald's half-brother, was temporarily living at the house with the express permission of both Sheila and Williams. Upon hearing the knock, Allonta went to his mother and Williams' bedroom door to let them know that someone was knocking on the front door. Neither his mother nor Williams answered so Allonta went to the front door and let Donald, Donald's girlfriend, and Donald's three children inside the house. Allonta went down to the basement with Donald, Donald's girlfriend, and the children. After 15 to 20 minutes, Donald went upstairs.
Sheila testified that she went to bed on August 2, 2010, sometime around 7 or 8 p.m. Williams testified that he went to bed sometime around 10 p.m. When Williams got into bed at 10 p.m., Sheila was already asleep in the bed with Allonta, Jr., her 8–month–old grandson. Williams later heard a noise that caused him to get up, put on his boxer shorts, and go into the hallway where he ran into Donald. Williams asked Donald what he was doing there and how he got into the house. Donald ignored Williams' questions, entered Williams' bedroom, and began angrily hitting and shaking the foot of the bed where Sheila and the 8–month–old infant were sleeping. Sheila awoke to Donald angrily yelling and cussing at Williams about Williams allegedly leaving Donald's kids unattended at a swimming pool earlier that day.
Williams told Donald to leave the house, but Donald refused. Donald told Sheila, “[I]f you don't get this old MF'er out my face, I'm gonna whoop his ass.” After Williams repeatedly asked Donald how he got into the house, Donald eventually responded that it was his mother's house and he could come to the house any time he wanted. Sheila testified that Donald then attempted to hit Williams but missed. As Donald brushed past Williams to leave the bedroom, Williams smelled alcohol. Donald had pulled a knife on Williams in the past when Donald was this angry, so Williams became concerned that Donald would do so once again. Williams put on his pajama pants, retrieved a knife out of his tackle box, and followed Donald out of the bedroom into the kitchen, holding the knife at his side. When asked at trial why he retrieved the knife, Williams specifically denied doing so because he was going to kill Donald, explaining, “Well, I knew I didn't have a phone, [Donald]'s not listening to me when I'm saying get out [of] the house, so I feel like I get the knife, he see[s] the knife, I'm talkin' loud like I'm angry, then he'll leave. Once he leaves the door, I can lock the door and then the problem is solved.”
Williams testified that once in the kitchen, he continued to ask Donald to leave and Donald continued to insist that he had a right to stay because it was his mother's house too. Williams stated that at some point during the argument, Donald noticed Williams was holding a knife by his side and asked whether Williams planned on pulling the knife on Donald, after which Donald then appeared to grab for a broom or mop in the corner of the room. In response to Donald reaching for the broom, Williams swung at Donald with the knife in his hand and cut Donald's face. Williams testified that he felt he needed to strike at Donald with the knife at this point in order to keep Donald from beating him with the broom or mop he was reaching for. Williams stated that Donald then came toward Williams and grabbed Williams' forearm and hand, in response to which Williams pushed Donald back into a glass door and, in the process, inadvertently stabbed Donald in the chest. During the encounter between Williams and Donald, Sheila tried to position herself in between the two to diffuse the situation. While Sheila was in between the two men, she received two cuts on her face. Donald later died as a result of a stab wound to the chest. Sheila suffered stab wounds to her cheek and nose. Williams advised law enforcement at the time of the incident that he was defending himself and did not mean to stab Donald. Williams likewise testified at trial that he did not intend to kill Donald or harm Sheila, claiming that he forgot he had the knife in his hand.
Williams subsequently was charged with intentional second-degree murder and severity level 5 aggravated battery, great bodily harm. The jury ultimately found. Williams guilty of the lesser included offenses of unintentional second-degree murder and severity level 8 aggravated battery, bodily harm.
Analysis
On appeal, Williams asserts (1) the district court violated his constitutional right to present a defense by excluding certain evidence he alleges was critical to his claim of self-defense; (2) the district court erred by refusing to instruct the jury on defense of a dwelling and self-defense; (3) the State failed to present sufficient evidence of each of the alternative means of committing the crime of aggravated battery; (4) the district court erred in sentencing him to an aggravated sentence for aggravated battery without the aggravating factors being proven to the jury, and (5) the district court erred in using his criminal history to increase his sentence without his criminal history being proven to the jury. We address each of the assertions made by Williams in turn.
1. Williams' claim that the district court violated his constitutional right to present a defense by excluding certain evidence
Under the Kansas and United States Constitutions, a criminal defendant has a right to present the theory of his or her defense. Although excluding evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial, the right to present a defense is subject to statutory rules and caselaw interpretation of rules of evidence and procedure. State v. Gaona, 293 Kan. 930, 953, 270 P.3d 1165 (2012).
Whether evidence has been properly excluded by the district court under the rules of evidence involves a multistep analysis. The first step of this analysis is relevance. To be relevant, evidence must be both probative and material. See K.S.A. 60–401(b); State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010). We review the district court's decision regarding whether evidence is probative under an abuse of discretion standard, and we review a district court's decision regarding materiality under a de novo standard. State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010).
In the second step of the analysis, the district court must determine which rules of evidence or other legal principles apply. We review the court's conclusion in this regard under a de novo standard. 290 Kan. at 817. In the third step, the district court must apply the applicable rule or principle. We review the district court's decision in this regard for abuse of discretion or de novo, depending on the rule or principle applied by the district court. Some rules and principles grant the district court discretion, while others raise matters of law. 290 Kan. at 817.
In this case, the evidence excluded by the district court consisted of proffered testimony about Donald's character; specifically, that Donald was rumored to have possessed a gun at a family Easter gathering and that Donald allegedly had two outstanding arrest warrants against him at the time of his death—one for absconding from the Sedgwick County work-release program and one for an armed robbery in Oklahoma.
Admissibility of character evidence is generally governed by K.S.A. 60–446 and K.S.A. 60–447. The former rule applies in those rare circumstances when a person's character is the ultimate issue in the case: “When a person's character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person's conduct, subject, however, to the limitations of K.S .A. 60–447 and 60–448.” K.S.A. 60–446.
When a person's character is relevant as tending to prove conduct on a specified occasion, K.S.A. 60–447 applies. In those circumstances, the character trait may be proved in the same manner as provided by K.S.A. 60–446, except that admission of specific instances of misconduct is limited to those situations where there has been a conviction for a crime.
“Subject to K.S.A. 60–448 when a trait of a person's character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60–446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible....” K.S.A. 60–447.
When a defendant raises a claim of self-defense, evidence of the victim's prior specific acts of violence may be admitted to prove the defendant's state of mind at the time of the crime, i.e., the defendant's honest and sincere belief that it was necessary to act in self-defense. However, such evidence may only be offered to establish the defendant's state of mind; it may not be offered to prove a character trait of the victim, which would be prohibited by K.S.A. 60–446 and K.S.A. 60–447. See State v. Walters, 284 Kan. 1, 10–11, 159 P.3d 174 (2007).
Here, the State filed a motion in limine before trial seeking to exclude any evidence of Donald's character, other than that allowed by K.S.A. 60–446 and K.S.A. 60–447. At a pretrial hearing on the motion in limine, Williams argued that character evidence—specifically, evidence of Donald's violent nature—was relevant to establish Williams' state of mind at the time of the incident; in other words, that Williams believed it was necessary to use deadly force against Donald in order to defend himself. In particular, Williams wanted to introduce evidence of Donald's convictions for violent crimes, Donald's reputation for having a violent nature, a 2007 incident where Donald pulled a knife on Williams, a prior incident where Donald had possessed a gun, and two pending arrest warrants issued against him at the time of his death—one for absconding from the Sedgwick County work-release program and one for an armed robbery in Oklahoma.
The State ultimately conceded at the hearing that evidence of Williams' convictions for violent crimes and evidence of his reputation for having a violent nature were admissible. The State maintained, however, that all other character evidence was inadmissible. After hearing arguments from both parties, the district court ruled that evidence of Donald's prior violent convictions would be admitted by written stipulation and evidence of the 2007 incident where Donald allegedly pulled a knife on Williams was admissible. The court deemed inadmissible, however, any other evidence of Donald's character pursuant to K.S.A. 60–446 and K.S.A. 60–447 unless a further hearing outside the jury's presence was held and a different ruling issued.
Relying on the legal proposition set forth in Walters, Williams contends evidence of Donald carrying a gun on one occasion and having two outstanding arrest warrants was admissible because it was offered to establish Williams' state of mind at the time of the incident. Specifically, Williams claims this evidence was relevant to his theory of self-defense, i.e., (1) that he believed Donald was dangerous and therefore deadly force was necessary to prevent death or great bodily harm and (2) that a reasonable person in the same circumstances would have believed that deadly force was necessary.
As noted above, the first step of our analysis regarding admissibility is deciding whether the proffered evidence is relevant. Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60–401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 (2009). Probative evidence “ “ ‘furnishes, establishes or contributes toward proof.” ‘ “ State v. Garza, 290 Kan. 1021, 1027, 236 P.3d 501 (2010). For evidence to be material, the evidence must ‘ “ “be significant under the substantive law of the case and properly at issue.’ “ “ State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).
Under the facts presented here, we find no material or logical connection between the incident where Donald is alleged to have possessed a gun and Williams' belief that he needed to use deadly force to protect himself from Donald. Unlike the 2007 incident with the knife, the allegation that Donald had a gun at a family Easter gathering on an unknown date did not involve Williams. Donald did not pull a gun on Williams, nor did Williams ever actually see Donald with a gun. Instead, an unnamed person is alleged to have told Williams that Donald had a gun. Such evidence is too general and remote to be probative with respect to Williams' state of mind on the night of Donald's death. See State v. Houston, 289 Kan. 252, 263–64, 213 P.3d 728 (2009) (evidence that victim hit defendant's son with brick on an unknown date was irrelevant to self-defense claim based on defendant's belief that victim was searching for a weapon in his car on the night defendant fatally shot him).
Similarly, we find no material or logical connection between Donald's arrest warrants and Williams' belief that he needed to use deadly force to protect himself from Donald. Williams informed the court at the motion in limine hearing that Donald had two outstanding arrest warrants at the time of his death—one for absconding from the Sedgwick County work-release program and one for an armed robbery in Oklahoma. But the information provided about the warrants is tenuous at best. It does not appear that Williams planned to introduce the arrest warrants themselves; rather, defense counsel suggested that Williams would testify as to the existence of the warrants. Such unsubstantiated evidence is neither probative nor material.
But even if we agreed with Williams that the district court erred in excluding the evidence relating to Donald's possession of a gun and Donald's arrest warrants, such an error would not require reversal in this case. Because Williams is alleging a violation of his constitutional right to present a defense, we review the alleged error under the constitutional harmless error standard. Under this standard, the State, as the party benefitting from the error, has the burden to establish beyond a reasonable doubt that the error “will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In order to satisfy that burden, the State claims Williams presented evidence regarding Donald's violent nature through the stipulation of Donald's prior violent convictions and evidence of the 2007 incident where Donald pulled a knife on Williams. Sheila also testified that Donald was a fighter and had a reputation for violence in the community. Additionally, the jury heard Williams' version of events through Williams' own testimony, which included his belief that it was necessary to use deadly force against Donald because Donald had pulled a knife on him in the past, he knew Donald's reputation for violence in the community, and he knew that Donald was dangerous. “When a district judge allows a criminal defendant to present evidence supporting his or her theory of defense such that the jury could reach a conclusion on its validity, exclusion of other evidence is not necessarily error. [Citations omitted.]” State v. Jones, 287 Kan. 547, 555, 198 P.3d 756 (2008). Given the nature of the excluded evidence and the testimony at trial, we find the State has met its burden to prove beyond a reasonable doubt that the error “did not affect the outcome of the trial in light of the entire record.” See Ward, 292 Kan. at 569. Thus, even if the proffered evidence was relevant to Williams' state of mind, the district court's decision to exclude such evidence did not violate Williams' right to a fair trial and his right to present a defense.
2. Williams' claim that the district court erred by refusing to instruct the jury on defense of a dwelling and self-defense
Williams claims the district court erred by refusing to instruct the jury on defense of a dwelling and self-defense and thus violated his right to present a full and complete defense.
Our Supreme Court recently clarified the analytical progression and standard of review for each step when considering on appeal whether a jury instruction should have been given:
“(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).
Williams properly has preserved this issue because he requested that the jury be instructed on defense of a dwelling and self-defense. Although Williams' written requested instructions submitted to the district court only included a self-defense instruction, the transcript of the instructions conference reflects that the parties discussed whether a defense of a dwelling instruction under K.S.A.2010 Supp. 21–3212 was appropriate and that Williams argued for its inclusion.
Next, we must determine whether defense of a dwelling and self-defense instructions were legally and factually appropriate. If there is sufficient evidence to support it, a defendant is entitled to instructions on the law applicable to his or her theory of defense. State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009). Evidence of the defendant's theory of defense can be supported solely by the defendant's own testimony as long as a rational finder of fact—viewing the testimony in a light most favorable to the defendant—would be justified in finding in accordance with that theory. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).
Defense of a Dwelling Instruction
“A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling ... if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or another.” K.S.A.2010 Supp. 21–3212(b).
At the instructions conference, defense counsel requested an instruction on defense of a dwelling based on the following evidence presented at trial showing that Donald had unlawfully entered the home: neither Williams nor Sheila had given Donald permission to come into the house that particular night; Williams' bedroom was locked and no one was allowed inside; Donald did not have a key and was not permitted to come to the house after dark; and Williams told Donald to leave but Donald refused to do so. The State opposed Williams' request, arguing the instruction was not warranted because Donald's entry into the house was lawful.
The district court agreed with the State and denied Williams' request for a defense of a dwelling instruction. The court found that Donald lawfully entered the home based on evidence that Donald regularly came to the house to retrieve clothing, had been welcomed at the house as recently as the day before his death, and had never been told by Williams that he was not welcome there. Additionally, the court found Williams' bedroom was not a “dwelling” as contemplated by the statute.
On appeal, Williams claims the district court erred in finding Donald lawfully entered the home. In support of this claim, Williams argues that even though Donald had been allowed to enter the house on prior occasions, he was not permitted to do so at 11 p.m. and Allonta did not have permission to let Donald in the house. Williams further argues that even if Donald did lawfully enter the house, this lawful entry terminated either when Williams told Donald to leave or when Donald engaged in an unlawful act by threatening Williams. We are not persuaded by either of Williams' arguments.
As to the lawfulness of the initial entry, there was insufficient evidence presented at trial—even when viewed in a light most favorable to Williams—from which a rational factfinder could have concluded that Donald's entry into Williams' house was unlawful. Instead, the evidence showed that (1) Donald often kept his clothes at the house because Sheila did his laundry; (2) on the night he died, Donald was invited into the house by Allonta, who at the time was living in the house with the permission of both Williams and Sheila; (3) Donald had not previously been banned from the house and, in fact, Donald had been at the house the day before he was killed; (4) Williams admitted that the two men had gotten along the day before and there had been no animosity between them; and (5) Williams also admitted that he had never told Donald not to come to the house.
Neither are we persuaded by Williams' argument that a lawful entry is essentially converted into an unlawful entry pursuant to the defense of a dwelling statute under circumstances where the victim enters the premises lawfully but subsequently engages in unlawful conduct for which the occupant of the dwelling seeks to expel the victim. Williams' argument requires us to interpret a statute, which is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Collins, 294 Kan. 780, 782, 280 P.3d 763 (2012). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). Here, the legislature used unambiguous language in the defense of a dwelling statute from which we can conclude it intended the statute to only apply to efforts of a defendant to prevent or terminate an unlawful entry into or attack upon a dwelling. See K.S.A.2010 Supp. 2I–3212(b). By its very terms, then, a defendant may not assert justification under the Kansas defense of a dwelling statute where the victim enters upon the premises lawfully but subsequently engages in unlawful conduct for which the occupant of the dwelling seeks to expel the victim. Because a defense of a dwelling instruction was not applicable to the facts of this case, we conclude the district court did not err in failing to so instruct the jury.
Self-defense Instruction
As we stated above, a criminal defendant is entitled to an instruction on a theory of defense if the evidence taken in the light most favorable to that position would permit a rational juror to find in keeping with that theory. Hendrix, 289 Kan. at 861;State v. Hill, 242 Kan. 68, Syl. ¶ 4, 744 P.2d 1228 (1987) (“The trial court must instruct the jury on self-defense if there is any evidence tending to establish self-defense even though the evidence may be slight and consist solely of the defendant's testimony.”). To provide an instruction in these circumstances is a minimal obligation because the defendant bears no particular burden of proof regarding self-defense; a jury need only conclude that the evidence of self-defense creates a reasonable doubt as to guilt to render an acquittal. See State v. Johnson, 258 Kan. 61, 66, 899 P.2d 1050 (1995). Again, a defendant's own assertions may provide adequate grounds to warrant an instruction. Anderson, 287 Kan. at 334. By the same token, other evidence alone may be enough. A defendant need not testify in support of a self-defense theory to establish a sufficient factual basis for an instruction. State v. Heiskell, 8 Kan.App.2d 667, Syl. ¶ 6, 666 P.2d 207 (1983). In evaluating the evidence for that purpose, the appellate court must resolve every factual dispute and credibility determination in the defendant's favor. State v. Sims, 265 Kan. 166, 168–69, 960 P.2d 1271 (1998); State v. Childers, 222 Kan. 32, 49, 563 P.2d 999 (1977) (When a court looks at the evidence to decide on giving a self-defense instruction, “ ‘the test is not how much but is there any.’ “ [quoting State v. Smith, 161 Kan. 230, 237, 167 P.2d 594 (1946) ] ).
In Kansas, a person is justified in the use of deadly force against another when and to the extent it appears to such person and such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. K.S.A.2010 Supp. 21–3211(b). Imminent means “ready to take place.” Merriam–Webster's Collegiate Dictionary 621 (11th ed.2003). Although a history of violence between the defendant and the victim would not, without more, transform an incident into a situation of imminent danger, a defendant need not await the beginning of an attack before responding; such a defendant may act to prevent an attack he or she reasonably senses to be impending.
To justify an instruction on self-defense, a defendant must present some evidence, either through his own testimony or from other witnesses, to support each prong of a two-prong self-defense test. State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012). The first prong involves a subjective standard, which requires the defendant to show that the defendant sincerely and honestly believed that deadly force was necessary to prevent imminent death or great bodily harm to himself or herself or other third parties. The second prong is an objective standard, which requires the defendant to show that a reasonable person in the same circumstances would believe that deadly force was necessary. 293 Kan. at 975.
In considering at the instructions conference whether Williams' request for a self-defense instruction was supported by the evidence presented at trial, the district court agreed the record contained sufficient evidence that Williams himself actually believed Donald had become dangerous and that use of deadly force to prevent imminent death or great bodily harm was necessary. During the instructions conference, the State did not dispute the court's statements in this regard and does not challenge on appeal the sufficiency of evidence presented at trial to support Williams' subjective belief. Instead, the hurdle for the district court below and the issue briefed by the parties on appeal now is whether there was evidence presented at trial from which a jury could have found the objective component of the test: that a reasonable person placed in Williams' position also would have believed it was necessary to use deadly force to prevent imminent death or great bodily harm.
The objective determination must be evaluated from the perspective a reasonable person similarly situated to the defendant. For example, what a frail 90–year–old person reasonably perceives as imperiling may not necessarily be the same as what a starting linebacker for a professional football team would so perceive. Both likely would take the same view of a scrawny, 15–year–old adolescent pointing a handgun at them. But they might not if that teenager had no weapons and merely threatened to hit them.
If believed by the jurors, the evidence admitted at trial here shows Williams to be physically impaired in ways that significantly diminished his ability to protect himself against physical assault, including asthma, high blood pressure, sleep apnea, and arthritis in both hips. There was testimony that Donald had a reputation in the community for being violent and had a criminal history of convictions for violent crimes. And, on August 2, 2010, Donald argued loudly with Williams in an escalating confrontation that began in Williams' bedroom late at night. Donald saw Williams angrily hitting and shaking the foot of the bed where Sheila and the 8–month–old infant were sleeping. Donald was angrily yelling and cussing at Williams about Williams leaving Donald's kids unattended at a swimming pool earlier that day. Williams repeatedly told Donald to leave the house, but Donald refused, responding that it was his mother's house and he could come to the house any time he wanted to. Donald warned Sheila that if she didn't “get this old MF'er out my face, I'm gonna whoop his ass.” Sheila said Donald then attempted to hit Williams but missed. Donald brushed past Williams and left the bedroom. Donald had pulled a knife on Williams in the past when he had gotten this angry and would not back down until Williams called the police, so Williams became concerned that Donald would do so once again. This time, however, Williams did not have a working phone from which to call the police to intervene.
Again, if accepted by the jury, it was these circumstances that prompted Williams to put on his pajama pants, retrieve a knife out of his tackle box, and follow Donald out of the bedroom into the kitchen, holding the knife at his side. Williams testified that once in the kitchen, he continued to ask Donald to leave and Donald continued to insist that he had a right to stay because it was his mother's house too. Williams stated that at some point during the argument, Donald noticed Williams was holding a knife by his side and Donald grabbed for a broom or mop in the corner of the room. In response to Donald reaching for the broom, Williams swung at Donald with the knife in his hand and cut Donald's face. Williams testified that he felt he needed to strike at Donald with the knife at this point in order to keep Donald from beating him with the broom or mop he was reaching for. Williams stated that Donald then came toward Williams and grabbed Williams' forearm and hand, in response to which Williams pushed Donald back into a glass door and, in the process, inadvertently stabbed Donald in the chest.
There were, of course, varying accounts of the circumstances. Allonta testified that Donald was backed up to the sliding glass door and did not have anything in his hands when he observed Williams move towards Donald and say, “I'm gonna take you out.” And, although Sheila testified Donald took a swing at Williams after verbally threatening to physically assault him, Williams himself did not remember the swing. But those differences were for the jurors to sort out. The substance of the differing accounts or the very existence of differing accounts does not inform the proper scope of the jury instructions. Whether the jurors would have been persuaded that Williams acted in self-defense is not the issue before us today; instead, we are charged with deciding whether the evidence presented at trial warranted instructing the jurors on Williams' claim of self-defense based on the governing statutes. Viewed in a light most favorable to Williams, we conclude that the evidence presented at trial, if believed by the jury, would have supported giving an instruction on whether Williams honestly believed deadly force was necessary to prevent imminent death or great bodily harm to himself and whether a reasonable person in the same circumstances would have come to the same conclusion. Given there was some evidence to support Williams' theory that he acted in self-defense, a decision on that issue of fact necessarily should have been entrusted to the jurors, and the district court erred in failing to instruct them to do so.
Initial aggressor
As an alternative basis for denying Williams' request to provide the jury with an instruction on self-defense, the district court concluded such an instruction was not available to Williams because the evidence presented at trial established Williams was the initial aggressor in this situation and it would have been reasonable for Williams to have escaped any potential danger and avoided using deadly force by locking the door after Donald left his bedroom. See K.S.A.2010 Supp. 21–3214(c)(1) (defendant not entitled to self-defense instruction if he or she initially provokes the use of any force unless he or she has exhausted every reasonable means to escape such danger other than use of deadly force). But recasting the argument as one over whether Williams was an initial aggressor does not change the evidence, when viewed most favorably to him, and does not change the district court's obligation to have instructed on self-defense given there was evidence to support this theory of defense presented at trial. If the jurors were to discredit Williams' version or they were to find that version insufficient to create a reasonable doubt about his guilt, they necessarily would conclude he did not act in self-defense and was, therefore, an unlawful aggressor. That argument might well have entitled the State to an initial aggressor instruction to complement the other self-defense instructions that should have been given to the jury. But it does not preclude Williams' theory of self-defense as a matter of law, thereby depriving him of jury instructions on that theory.
In this case, the district court concluded as a matter of law that Williams was the aggressor. But such a legal finding is not appropriate here because reasonable minds could differ as to the conclusions drawn from the evidence presented. If believed by the jury, there was evidence presented to establish that in the bedroom Donald was the initial aggressor in that he threatened to physically assault Williams, took a swing at Williams, and then angrily stormed into the kitchen shouting that he did not have to leave the house as dictated by Williams because it was his mother's house too. Although the district court also concluded as a matter of law that it would have been reasonable for Williams to have escaped any potential danger and avoided using deadly force by locking the door after Donald left his bedroom, we again find reasonable minds could differ as to the conclusions drawn from the evidence presented. A reasonable person in Williams' position could perceive Donald's threats and escalating anger in the bedroom as entirely consistent with Donald's past convictions for violent crimes, Donald's reputation for having a violent nature, and the 2007 incident where Donald pulled a knife on Williams. If believed by the jury, there was also evidence that Williams did not have access to a working phone, so he would have been cornered in his bedroom by a violent, convicted felon who had just threatened to attack him and would have had no ability to communicate with the outside world. We believe reasonable minds could differ about whether Williams could have escaped any potential danger by locking the door after Donald left his bedroom.
With regard to the confrontation in the kitchen, we also find reasonable minds could differ as to the conclusions drawn from the evidence presented. Williams testified that he held the knife down by his side until Donald grabbed for a broom or mop in the corner of the room. If believed by the jury, Williams' testimony reflected that he felt he needed to strike at Donald with the knife at this point in order to keep Donald from beating him with the broom or mop he was reaching for. Again, there was evidence presented that Williams had several medical conditions that resulted in physical impairment, including asthma, high blood pressure, sleep apnea, and arthritis in both hips.
In short, and under the facts presented, the State might have been entitled to an initial aggressor jury instruction to accompany the others outlining the law of self-defense. We offer no conclusive determination, not having seen the witnesses testify. But the evidence was not so clearly the State's way that Williams must have been deemed the initial aggressor, thereby depriving him of the opportunity to argue self-defense to a properly instructed jury.
Harmlessness
Although it does so only briefly, the State appears to assert that even if the district court erred in failing to instruct the jury on Williams' theory of self-defense, any error should be considered harmless because there was no reasonable possibility that the error affected the verdict. See Ward, 292 Kan. at 569. Specifically, the State claims the jury has already rejected the option of finding Williams guilty of the lesser included offense of voluntary manslaughter.
Voluntary manslaughter is an intentional killing based “upon an unreasonable but honest belief that circumstances existed that justified deadly force” in the defense of a person. K.S.A. 21–3403(b). Thus, at least according to the State, it is apparent from the jury's verdict that the jury did not believe the evidence was sufficient to support a finding that Williams held a subjective belief that deadly force was necessary.
We have reviewed the jury instructions and the verdict in this case but do not believe the substance of either support the State's claim that the jury rejected the option of finding Williams guilty of the lesser included offense of voluntary manslaughter. A summary of the relevant language in those instructions is set forth below.
Instruction 12
Williams is charged with murder in the second degree (intentional).
Instruction 13
The crime of murder in the second degree (intentional) includes the lesser offenses of murder in the second degree (unintentional), voluntary manslaughter, and involuntary manslaughter.
Instruction 14
If you do not agree that Williams is guilty of murder in the second degree (intentional), you should then consider the lesser included offense of murder in the second degree (unintentional).
Instruction 15
In determining whether Williams is guilty of murder in the second degree (intentional), you should also consider the lesser offense of voluntary manslaughter.
Instruction 16
If you do not agree that Williams is guilty of voluntary manslaughter, you should then consider the lesser included offense of involuntary manslaughter.
The jury in this case convicted Williams of murder in the second degree (unintentional) as set forth in Instruction 14. See K.S.A. 21–3402(b). Pursuant to the directive in that instruction, the jury was advised by the court that if it did not agree that Williams was guilty of murder in the second degree (intentional) as set forth in Instruction 12, see K.S.A. 21–3402(a), it should then consider the lesser included offense of murder in the second degree (unintentional). It is of no consequence that Instruction 15 directed the jury to consider the offense of murder in the second degree (intentional) in conjunction with the lesser included offense of voluntary manslaughter. In fact, the record suggests that the jury followed the instructions as presented, rendered a verdict, and never even considered voluntary manslaughter. Specifically, it appears from the numerical sequence of the instructions and the verdict form that the jury considered Instruction 12 and rejected murder in the second degree (intentional), reviewed the summary list of lesser included offenses in Instruction 13, and then convicted Williams of murder in the second degree (unintentional) as that crime was defined in Instruction 14 without ever reaching Instruction 15. Such a sequence is entirely consistent with the language in Instructions 12 and 14. For these reasons, we are not persuaded that the jury rejected the option of finding Williams guilty of the lesser included offense of voluntary manslaughter. Accordingly, we find a reasonable possibility that the court's failure to give a self-defense instruction affected the verdict, reverse the murder conviction, and remand for a new trial on the intentional second-degree murder charge with all applicable jury instructions.
3. Sufficiency of the evidence: aggravated battery
Williams claims his aggravated battery conviction must be reversed because the State presented alternative means of committing this offense and there was insufficient evidence at trial to support each of these alternative means.
A criminal defendant has a statutory right to a unanimous jury verdict on each individual offense charged. See K.S.A. 22–3421; State v. Wright, 290 Kan. 194, 201–03, 224 P.3d 1159 (2010). In an alternative means case—where a single offense may be committed in different ways—there must be jury unanimity as to guilt for the single offense but not as to the particular means by which the crime was committed so long as any means of committing the crime is supported by sufficient evidence. 290 Kan. at 202. If a case presents alternative means of committing the offense and the record does not provide sufficient evidence supporting each of the alternative means, the conviction must be reversed. Cf. 290 Kan. at 205–07.
Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law over which an appellate court has unlimited review. State v. Brown, 295 Kan. 181, 193–94, 284 P.3d 977 (2012).
In Brown, our Supreme Court recently clarified the test for identifying whether a statute contains alternative means. The court first noted that ‘ “[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ “ 295 Kan. at 193 (quoting State v. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 [2010] ). Instead, courts must look primarily to legislative intent to determine whether statutory alternatives are alternative means. The court summarized the proper analysis as follows:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. at 199–200.
The statute under which Williams was convicted, K.S.A. 21–3414(a)(2)(B), defines aggravated battery as “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The jury was instructed in relevant part that the State was required to prove “[t]hat the defendant recklessly caused bodily harm to Sheila Williams with a deadly weapon or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
Williams suggests that the crime of aggravated battery as set forth in this instruction states four alternative means because it requires proof of “recklessly causing bodily harm to another person [1] with a deadly weapon, or [2] in any manner whereby great bodily harm, [3] disfigurement or [4] death can be inflicted.” Williams concedes that the State presented sufficient evidence that he caused bodily harm by using a deadly weapon and caused bodily harm in a manner whereby great bodily harm and disfigurement could have been inflicted. However, he argues the State failed to present evidence that he recklessly caused bodily harm in a manner whereby death could have been inflicted because there was no evidence to establish that Sheila's injury could have resulted in death.
Our Supreme Court recently addressed an alternative means challenge to K.S.A. 21–3414(a)(2)(B) 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. 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. Moreover, in rejecting an alternative means challenge to K.S.A. 21–3414(a)(2)(A), which defines 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.
Williams concedes the State proved that he used a deadly weapon, and the record demonstrates sufficient evidence of Williams' use of the knife. Under the reasoning of Ultreras, then, the State was not also required to prove that Williams' actions could have resulted in Sheila's death. Because the language of the statute does not set forth alternative means for committing the crime of aggravated battery, Williams' alternative means argument fails.
4. Aggravated Sentence in Grid Box
Based on Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v. New Jersey, 530 U .S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Williams contends that the district court violated his Sixth and Fourteenth Amendment rights to the United States Constitution when it imposed the aggravated guidelines sentence for his aggravated battery conviction without presenting the aggravating factors to a jury and requiring the State to prove them beyond a reasonable doubt. Williams acknowledges our Supreme Court's ruling in State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008), and includes this issue solely to preserve it for federal review.
In Johnson, our Supreme Court concluded a sentencing court does not violate Apprendi or Cunningham by sentencing a defendant to the “longest term in the presumptive grid block.” Johnson, 286 Kan. 851–52. Moreover, appellate courts have no jurisdiction to consider an appeal of a sentence that falls within the presumptive sentencing grid block. 286 Kan. at 851–52; see K.S.A. 21–4721(c)(1). Because the district court sentenced Williams to the presumptive sentence for his aggravated battery conviction, this court lacks jurisdiction to consider an appeal from this part of his sentence.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). It does not appear that our Supreme Court is departing from the position it held in Johnson, as it has reaffirmed that holding in State v. Gaona, 293 Kan. 930, 958, 270 P.3d 1165 (2012). Accordingly, we must dismiss this portion of Williams' appeal for lack of appellate jurisdiction.
5. Criminal History
Finally, Williams contends that the district court erred when it sentenced him based on a criminal history score that relied on prior convictions that were neither included in the complaint nor proven to a jury beyond a reasonable doubt. Williams relies on Apprendi but acknowledges our Supreme Court's holding in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and raises this issue to preserve it for federal review.
Absent some indication that our Supreme Court is departing from its position in Ivory, this court is bound thereby. See Jones, 44 Kan.App.2d at 142. Our Supreme Court continues to apply its decision in Ivory, See, e.g., State v. Benson, 295 Kan. 1061, 1068, 287 P.3d 927 (2012). This court is duty bound to follow Ivory and reject Williams' claim of error.
Affirmed in part, reversed in part, and remanded with directions consistent with this opinion; Williams' challenge to his aggravated battery sentence is dismissed for lack of jurisdiction.