State v. Rodriguez ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,152
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
HUGO RODRIGUEZ,
Appellant.
MEMORANDUM OPINION
Appeal from Seward District Court; LINDA P. GILMORE, judge. Opinion filed December 30,
2022. Affirmed in part, reversed in part, sentence vacated, and remanded with directions.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.
Before CLINE, P.J., ATCHESON and COBLE, JJ.
PER CURIAM: In the midst of a routine traffic stop, Defendant Hugo Rodriguez
took off running. With two police officers in pursuit, Rodriguez drew a handgun, fired
several shots, and then surrendered as they closed in. A jury sitting in Seward County
District Court convicted Rodriguez of attempted heat-of-passion voluntary manslaughter
and two counts of aggravated assault of a law enforcement officer, among other felony
charges. Rodriguez disputes the sufficiency of the trial evidence to support those three
convictions. We agree as to the attempted voluntary manslaughter and disagree on the
aggravated assaults. We, therefore, affirm the aggravated assault convictions, reverse the
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conviction for attempted voluntary manslaughter, vacate that sentence, and remand to the
district court with directions to resentence Rodriguez.
FACTUAL AND PROCEDURAL HISTORY
The basic facts of the criminal episode are straightforward. About 7:30 p.m. on
July 2, 2015, Liberal Police Officer Russell Almes made a traffic stop of a sedan in which
Rodriguez was a passenger. The stated reason for the stop was the failure of the driver to
wear a seatbelt. See K.S.A. 2021 Supp. 8-2503 (law enforcement officer may stop motor
vehicle if occupants of front seats are not wearing seatbelts). Because the driver and
Rodriguez seemed unusually nervous, Almes concluded he should search the car and
called for another officer to assist him. Liberal Police Sergeant Mark West responded.
Almes was getting ready to do a pat-down search of Rodriguez for officer safety when
Rodriguez bolted and began to run away. Almes gave chase on foot, yelling at Rodriguez
to stop and suggesting he would face charges for obstruction. West got in Almes' marked
police SUV and drove along a route to get ahead of Rodriguez and intercept him in flight.
Rodriguez stopped in a vacant lot, drew a handgun from his belt area, and fired
several shots at West as he sat in the driver's seat of the SUV. West reported to the
dispatcher that shots had been fired and sought to take cover. During the trial, West
testified that although he did not see Rodriguez point or discharge a firearm, he heard the
shots. Almes trailed Rodriguez by about 25 yards and saw what was unfolding. He drew
his handgun and called the dispatcher for additional officers. At trial, Almes testified he
was immediately fearful that Rodriguez might next shoot at him. Apparently seeing
Almes with his handgun drawn, Rodriguez dropped his handgun and laid down on the
ground. After the officers handcuffed Rodriguez, West found two bullet holes in the
police SUV.
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The State charged Rodriguez with five felonies: The attempted first-degree
murder of West; two counts of aggravated assault, one for each officer; discharge of a
weapon into an occupied motor vehicle; and criminal possession of a firearm by a
convicted felon. The jury heard evidence in the case in May 2016 and convicted
Rodriguez of attempted heat-of-passion voluntary manslaughter, as a lesser included
offense of the attempted murder charge, and of each of the other charges. The district
court later sentenced Rodriguez to a controlling prison term of 130 months and
postrelease supervision for 24 months, reflecting the standard guidelines punishment for
the attempted voluntary manslaughter conviction based on Rodriguez' criminal history.
The district court imposed lesser concurrent sentences on the other felony convictions.
This court granted Rodriguez' motion to pursue a late appeal.
LEGAL ANALYSIS
On appeal, Rodriguez contends the State produced insufficient evidence at trial to
support the guilty verdicts on the attempted heat-of-passion voluntary manslaughter of
West and the aggravated assaults of both West and Almes. He has not challenged the
other convictions, and we do not consider them further.
In reviewing a sufficiency challenge, we construe the trial evidence in a light most
favorable to the party prevailing in the district court, here the State, and in support of the
jury's verdict. An appellate court will neither reweigh the evidence generally nor make
credibility determinations specifically. State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d
72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416 P.3d 116 (2018); State v. Pham,
281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is whether rational
jurors could have found the defendant guilty beyond a reasonable doubt. Butler, 307 Kan.
at 844-45; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
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As criminalized in K.S.A. 2021 Supp. 21-5404(a)(1), voluntary manslaughter is
the knowing killing of a person done "[u]pon a sudden quarrel or in the heat of passion."
An attempt, of course, entails a failed effort to commit a crime. K.S.A. 2021 Supp. 21-
5301(a). The Kansas Supreme Court has recognized attempted heat-of-passion voluntary
manslaughter to be a valid crime. State v. Gutierrez, 285 Kan. 332, 344, 172 P.3d 18(2007). So attempted voluntary manslaughter is a legally proper lesser included offense
of attempted intentional first-degree murder, and a jury should be instructed on it if the
trial evidence, viewed favorably to the defendant, could support a guilty verdict. See
State v. Berkstresser, 316 Kan. ___, Syl. ¶ 2, 2022 WL 17408873 (No. 122,557, filed
December 2, 2002). But a defendant is not precluded from challenging the sufficiency of
the evidence to support a guilty verdict on a lesser included offense merely because a
district court has given the jury an instruction on that offense.
Here, the relevant jury instruction identified heat of passion rather than a sudden
quarrel as the factual element the jury should consider on the attempted voluntary
manslaughter charge. And Rodriguez focuses his attention on the evidence pertaining to
that element. This court has discussed what constitutes sufficient "heat of passion" to
mitigate an intentional murder to voluntary manslaughter:
"Heat of passion requires an emotional stimulus of such magnitude to prompt an ordinary
person to kill spontaneously and, thus, without premeditation or specific intent. State v.
Bailey, 256 Kan. 872, 886, 889 P.2d 738 (1995) (The stimulus must cause '"an ordinary
man to lose control of his actions and his reason."'); State v. McClanahan, 254 Kan. 104,
114, 865 P.2d 1021 (1993) (heat of passion entails '"any intense or vehement emotional
excitement of the kind prompting violent and aggressive action"'). The furor effectively
mitigates the calculation and evil-mindedness required for murder with a hot-blooded
loss of reason and control—a mental state the law finds less blameworthy. But the
requisite stimulus must be sudden and extreme. Tribulations, annoyances, and vexations
don't clear that formidable barrier. The mental disintegration required for heat of passion
goes beyond mere upset or anger. The measure is an objective one, considering what
would unhinge 'an ordinary person.' State v. Follin, 263 Kan. 28, Syl. ¶ 2, 947 P.2d 84
(1997). So a defendant's particular susceptibility to even extreme emotional distress in
some circumstances would not be a consideration in gauging the appropriateness of an
instruction on voluntary manslaughter. 263 Kan. at 33-34." State v. Paulson, No.
108,795, 2015 WL 6444314, at *4 (Kan. App. 2015) (unpublished opinion).
Although Paulson and the authority it cites looked at the predecessor statute to K.S.A.
2021 Supp. 21-5404, "heat of passion" has long been an element of voluntary
manslaughter, so the discussion remains relevant. In considering "heat of passion" under
the current statute, the Kansas Supreme Court has reiterated the extreme nature of the
required upheaval "'as "any intense or vehement emotional excitement of the kind
prompting violent and aggressive action, such as rage, anger, hatred, furious resentment,
fright, or terror," based "on impulse without reflection."'" State v. Campbell, 308 Kan.
763, 775, 423 P.3d 539 (2018) (quoting State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414[2014]).
In short, heat-of-passion voluntary manslaughter is a form of homicide in which
some extraordinary provocation that would cause a reasonable person to lose control and
all sense of reason immediately prompts the perpetrator to kill spontaneously and without
reflection. The provocation and the response effectively mitigate premeditation and an
intent to kill, replacing that cold-bloodedness with a hot-blooded passion. The same holds
true for an attempt. There must be both an adequate provocation and a near instant violent
outburst in response to it.
Given those principles, Rodriguez' insufficiency argument has merit. Even
examining the evidence in the best light for the State, there was neither a legally adequate
provocation nor an immediate uncontrolled reaction. Almes initiated and was carrying
out what, to all accounts, amounted to a routine traffic stop and incipient pat-down search
of an occupant of the car. Although some people might consider the seat-belt violation to
be a picayune reason for a traffic stop, it was lawful. And while a traffic stop may be
annoying and possibly nerve wracking, it would not induce in a reasonable person the
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sort of spontaneous homicidal frenzy marking heat-of-passion voluntary manslaughter.
The same holds for a pat-down search. Those searches are necessarily intrusive by design
and may seem obtrusive or embarrassing. But they are not the stuff spurring voluntary
manslaughters. Even a legally questionable traffic stop or pat-down carried out in an
otherwise reasonable manner would not be the sort of conduct amounting to sufficient
provocation.
A contrary rule would be extraordinary: A person charged with killing a law
enforcement officer during a routine traffic stop would be entitled to a jury instruction on
heat-of-passion voluntary manslaughter virtually automatically. We are confident that is
not the law. For that reason alone, Rodriguez' conviction for attempted voluntary
manslaughter fails.
If that were not enough, Rodriguez did not evince the sort of unhinged loss of
control and reason required to support either a heat-of-passion voluntary manslaughter or
an attempt. To the contrary, his actions were reasoned and deliberate however unwise and
unwarranted they may have been. As the officers prepared to search Rodriguez, he ran,
presumably expecting they would find his handgun and suspecting, if not knowing, he
would be in trouble when they did. Only when the officers pursued him—and seemed to
be closing in—did he draw the weapon and fire. And when Almes responded by
unholstering his handgun, Rodriguez quickly and demonstrably surrendered. Nothing in
that course of conduct displayed or even hinted at an emotional meltdown, let alone one
that immediately devolved into homicidal violence. That is another basis on which the
State's evidence fails.
When a conviction lacks the necessary evidentiary support in the trial record, we
reverse the conviction, vacate the sentence, and enter a judgment of acquittal. See State v.
Baumgarner, 59 Kan. App. 2d 330, 331, 481 P.3d 170 (2021). We do so here. Because
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this is a case with multiple convictions, we must remand to the district court for
resentencing consistent with K.S.A. 2021 Supp. 21-6819(b)(5).
We now turn to Rodriguez' challenge to the aggravated assault of a law
enforcement officer convictions under K.S.A. 2021 Supp. 21-5412(d)(1). As we have
indicated, Rodriguez does not fare as well with this part of his appeal. To convict, the
State had to prove Rodriguez knowingly put Almes and West "in reasonable
apprehension of immediate bodily harm" with a deadly weapon while they were
performing their regular duties and were in uniform or otherwise identified as law
enforcement officers. K.S.A. 2021 Supp. 21-5412. Rodriguez focuses this argument on
whether the evidence established the officers were in reasonable apprehension of the
requisite harm. In doing so, he wisely, if tacitly, acknowledges he used a deadly weapon
and Almes and West were in uniform performing police duties.
Rodriguez submits Almes could not have been in reasonable apprehension because
he saw that the only shots were directed toward West. But Almes testified that he
believed he could be Rodriguez' next target—a fair conclusion prompting a reasonable
apprehension of bodily harm given his proximity to Rodriguez and the effective range of
a handgun. See Estate of Randolph v. City of Wichita, 57 Kan. App. 2d 686, 717-18, 459
P.3d 802 (2020) (in discussing civil assault, court recognizes brandishing of handgun
creates "a zone of threat or danger," given weapon's range, and persons within zone may
experience reasonable apprehension of bodily harm). Rodriguez secondarily suggests he
could not have knowingly placed Almes in apprehension because he didn't appreciate
where the officer was. But the evidence shows Almes trailed fairly closely behind
Rodriguez and was yelling commands at him. A jury properly could find Rodriguez knew
Almes was in the immediate vicinity when he drew his handgun and began shooting.
As to West, Rodriguez submits the officer could not have been in reasonable
apprehension because he did not see Rodriguez point the handgun at the police SUV and
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then fire in that direction. But West heard the shots and could reasonably conclude
Rodriguez had a firearm and was using it to effect his escape, so he and Almes were
likely targets. Indeed, West wasted no time in reporting shots had been fired and seeking
protective cover—actions fully consistent with an apprehension of immediate harm.
Without belaboring this point, the trial evidence sufficiently supported the jury's
guilty verdicts for aggravated assault of a law enforcement officer as to both Almes and
West. We affirm those convictions.
In summary, then, we set aside Rodriguez' conviction for attempted voluntary
manslaughter, vacate the sentence, and enter a judgment of acquittal on that charge.
Vacating the sentence on the primary crime of conviction will have some effect on the
other sentences. We affirm each of the other convictions and remand to the district court
with directions to resentence Rodriguez on them.
Affirmed in part, reversed in part, sentence vacated, and remanded for
resentencing.
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