State v. Cary ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,619
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ZACKARY J. CARY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed October 14, 2022.
Affirmed.
Hope Faflick Reynolds and Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Kristi D. Allen, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.
PER CURIAM: A jury convicted Zackary J. Cary of aggravated escape from
custody from the Sedgwick County Adult Residential Work Release Program. Cary, in
his timely appeal, argues the district court erred in failing to give a jury instruction on the
defense of mistake of fact. Upon an extensive review of the record, we find no clear error
by the district court in not giving the instruction on defense of mistake of fact and affirm.
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FACTS
In March 2019, the State charged Zackary J. Cary of aggravated escape from
custody while being held for a felony, in violation of K.S.A. 2018 Supp. 21-
5911(b)(1)(A), a severity level 8 nonperson felony.
At Cary's jury trial, the State called three witnesses: Mike Norris, Brian Hudson,
and Stephanie Schroeder. Norris was a senior corrections officer at the Sedgwick County
Adult Residential Work Release Program, a court-ordered program designed to assist
individuals with reintegration rather than going to jail.
Norris conducted the program's orientation program, explained the facility's rules
and expectations to new individuals—including Cary, and provided everyone with a 20-
page handbook containing all the facility's rules. During the orientation, a 14- to 15-
minute video was shown that explained the basic rules of the facility and outlined the
importance of individuals timely being where they needed to be. The orientation video
also explained failure to return to the facility could lead to a new charge of aggravated
escape from custody.
When the video finished, Norris highlighted the rules that individuals had typically
struggled with in the past. Two of those rules were the out of place of assignment (OPA)
rule and the absent without leave (AWOL) rule. Norris explained everyone had to sign
out when leaving the facility and provide information including where they were going,
why they were leaving, and contact information so the facility could check in with the
individuals while they were out.
Upon signing out, everyone was always designated a time to return. Failure to sign
back in on time resulted in an OPA designation. An individual who failed to return and
sign back in more than two hours after the designated return time was marked as AWOL.
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An AWOL designation required the shift supervisor to file a report and attempt to contact
the missing individual. Norris testified everyone leaving knew they needed to return to
the facility.
As part of the orientation process, incoming individuals would sign an
acknowledgment of rules and agreement, and they were encouraged to read the facility
handbook. Norris and Cary each signed Cary's acknowledgment. The acknowledgment
specifically stated:
"ANY CLIENT RELEASED TO THE CUSTODY OF SCDOC WHO WILLFULLY
FAILS TO RETURN TO THE DESIGNATED PLACE OF ASSIGNMENT AT THE
TIME SPECIFIED, MAY BE GUILTY OF A NEW CHARGE ([AGGRAVATED]
ESCAPE OR FAIL TO RETURN) AND UPON CONVICTION, BE SUBJECT TO THE
PENALTY PROVIDED IN THE KANSAS STATUTES ANNOTATED."
Norris testified Cary was permitted to leave the facility on March 14, 2019, to
fulfill a case goal.
Hudson, a shift supervisor at the residential facility during Cary's stay, maintained
safety and security inside the facility and enforced facility rules. Hudson conducted
headcounts to ensure everyone who was supposed to return to the facility had returned
and looked for the individuals who did not return. Hudson testified Cary was allotted
about two and a half hours to leave the residential facility for a case goal on March 14,
2019, and failed to return. Hudson tried contacting Cary but was unable to reach him.
Hudson also searched the facility to ensure Cary was not in his room or somewhere else
within the facility.
Schroeder, an intensive supervision officer II (ISO) at the time of the incident, was
assigned to supervise Cary at the residential facility. Schroeder strived to help her clients
comply with court orders and follow the terms of their probation. Schroeder testified that
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after an individual goes through orientation at the facility and watches the orientation
video, the incoming person meets with his or her ISO for an initial visit. At the initial
visit, Schroeder discusses the length of the program, compliance with court orders, the
potential need for evaluations, and the rules at the facility—such as the OPA rule.
Schroeder testified she directly explained to Cary what OPA meant and, if he violated
such rule, there could be consequences. Cary received a few OPA designations during his
stay at the residential facility for failing to return at the time he was instructed to do so.
After each OPA rule violation, Cary was told to return to the facility but was never orally
told failure to return would result in a new criminal charge.
Cary requested jury instructions for Pattern Instructions for Kansas (PIK) Crim.
4th 51.050 (2020 Supp.), PIK Crim. 4th 52.090 (2021 Supp.), and PIK Crim. 4th 52.100
(2021 Supp.) and intended to present a mistake of law defense. The district court denied
the request for a mistake of law jury instruction under K.S.A. 2018 Supp. 21-5207(b)(4).
During the State's closing argument and rebuttal closing argument, it explained
ignorance of the law was not a defense and "nowhere in any instruction would it read that
[Cary] has to be informed that he's violating a law as he leaves the facility." The State
further argued:
"I do not have to prove that Mr. Cary did or [did] not know that he would be potentially
charged with aggravated escape from custody charges when he left. That is ignorance of
the law, and that is not a defense. And do you know how it's not a defense? Because it
wasn't given to you in any of the instructions that Judge Rundle gave, and he is the one
[who] instructs on the law."
The jury found Cary guilty of aggravated escape from custody. Cary filed a
motion for new trial and judgment of acquittal, arguing, among other things, the district
court erred by not allowing the requested jury instruction on the mistake of law defense.
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The district court denied all pending motions and sentenced Cary to 20 months'
imprisonment with 12 months' postrelease supervision.
ANALYSIS
Cary argues the district court erred by failing to instruct the jury on the defense of
mistake. Cary asserts a mistake of fact jury instruction was legally and factually
appropriate and the failure to provide such instruction to the jury was not harmless error.
When considering jury instructional issues, we first consider "the reviewability of
the issue from both jurisdiction and preservation viewpoints, exercising an unlimited
standard of review." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012). Next, we
consider whether the "'instruction was legally and factually appropriate.'" State v.
McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018). "[F]inally, if the district court erred, the
appellate court must determine whether the error was harmless." Plummer, 295 Kan. at
163.
The appellate court's reversibility inquiry depends on whether a party properly
preserved the jury instruction issue below. McLinn, 307 Kan. at 317. Unpreserved
instructional errors are reviewed for clear error. K.S.A. 2021 Supp. 22-3414(3). Jury
instructions are clearly erroneous if an error occurred and the reviewing court is '"firmly
convinced that the jury would have reached a different verdict had the instruction error
not occurred."' McLinn, 307 Kan. at 318. As the party claiming clear error, Cary has the
burden to establish the prejudice. See 307 Kan. at 318.
The parties disagree whether defense counsel properly preserved the issue for
appeal. Cary contends he properly preserved the issue by requesting the jury instruction
in district court, though the district court declined to give the instruction to the jury.
Before us, Cary admits he orally requested an instruction focused on a mistake of law
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defense, rather than a mistake of fact defense, during the jury instruction phase of the
trial. But he claims the requested instruction included both mistake of law and mistake of
fact and both should now be considered as requested before the district court.
The State contends Cary initially requested PIK Crim. 4th 52.090 on the defense
of mistake but later clarified he was seeking a jury instruction on mistake of law under
PIK Crim. 4th 52.100. Cary responds, again explaining he requested PIK Crim. 4th
52.090 before the district court and such jury instruction includes both mistake of fact
and law. Cary argues, in the alternative, if we find the jury instruction was not preserved,
then his failure to request the instruction should be reviewed for clear error.
Cary orally requested PIK Crim. 4th 51.050 (State has burden to disprove defense
beyond reasonable doubt), PIK Crim. 4th 52.090 (defense if by reason of ignorance of
[fact] [law] defendant did not have mental state which statute requires as element of
crime), and PIK Crim 4th 52.100 (defense if defendant reasonably believed conduct did
not constitute crime and acted in reliance upon official interpretation of [statute]
[regulation] [order] defining crime made by [public officer] [agency] legally authorized
to interpret statute). Specifically, Cary's counsel stated, "I would like to include, at this
time, PIK 51.050, 52.090, 52.100, and I have a specific layout of how that would be. But,
basically, Your Honor, mistake of law as a defense, specifically in this situation." The
district court further inquired about the mistake of law defense and ultimately denied the
requested jury instruction, stating:
"Well, I don't think that this falls within the mistake of law defenses that are
authorized under [K.S.A.] 21-5207 based on the evidence that was presented. So I'm not
going to instruct on mistake of law, but you have requested that. You can file those
proposed instructions, and that will be preserved for appellate review in the event of a
guilty verdict."
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After taking a recess, the district court noted it denied the requested jury
instruction on mistake of law and the remainder of the proposed instructions were agreed
upon. The parties did not request any additional jury instructions. As the State notes, the
record reflects Cary did not file his proposed or requested jury instructions with the
district court.
Cary broadly argues to us the district court erred in failing to instruct the jury on a
defense of mistake but avoids specifying whether he is referring to mistake of law or
mistake of fact. While it appears a jury instruction on the mistake of law defense may
have been preserved, we observe Cary does not argue on appeal the district court erred in
denying his requested mistake of law jury instruction. Therefore, he waives and abandons
the issue. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issue not briefed
deemed waived or abandoned). At best, the point is incidentally raised but not argued,
which is still deemed waived or abandoned. Russell v. May, 306 Kan. 1058, 1089, 400
P.3d 647 (2017). The record before the district court reflects Cary did not argue for or
preserve the mistake of fact defense. In his analysis, however, he asserts: "Mistake of
fact is a defense when it negates the crime's requisite mental state." Because Cary failed
to preserve the jury instruction issue regarding mistake of fact, we review for clear error.
See K.S.A. 2021 Supp. 22-3414(3).
We exercise "'unlimited review to determine whether the instruction was legally
appropriate; . . . 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.'" State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70(2016); State v. Williams, 303 Kan. 585, 598-99, 363 P.3d 1101 (2016).
PIK Crim 4th 52.090, which derives its authority from K.S.A. 2021 Supp. 21-
5207(a), states: "It is a defense in this case if by reason of ignorance or mistake of (fact)
(law) the defendant did not have at the time the mental state which the statute requires as
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an element of the crime." "If the definition of a crime does not prescribe a culpable
mental state, a culpable mental state is nevertheless required unless the definition plainly
dispenses with any mental element." K.S.A. 2021 Supp. 21-5202(d).
The State charged Cary with aggravated escape from custody as a violation of
K.S.A. 2018 Supp. 21-5911(b)(1)(A) (escaping while held in custody upon charge,
conviction of or arrest for felony). The statute defines "'escape'" as a "failure to return to
custody following temporary leave lawfully granted by: . . . a custodial official authorized
to grant such leave." K.S.A. 2018 Supp. 21-5911(d)(2)(B)(iii). Though the statute on
aggravated escape from custody, K.S.A. 2018 Supp. 21-5911, does not require a specific
mental state, the State elected to increase its burden to prove the highest culpable mental
state of specific intent. That is, the State chose to increase its burden to prove Cary
intentionally failed to return to custody. "A person acts 'intentionally,' or 'with intent,'
with respect to the nature of such person's conduct or to a result of such person's conduct
when it is such person's conscious objective or desire to engage in the conduct or cause
the result." K.S.A. 2021 Supp. 21-5202(h).
Cary argues the defense of mistake was appropriate because he was never told
failing to return to the residential facility risked new criminal charges. But the record
reflects Cary was, in fact, told during his orientation program he needed to return to the
facility and failure to do so could lead to new criminal charges. The residential work
release facility provided Cary with:
• his initial orientation program which explained the rules he was to follow;
• a handbook discussing facility rules; and
• an acknowledgment of rules and agreement which stated in bold capital
letters above his signature:
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"ANY CLIENT RELEASED TO THE CUSTODY OF SCDOC WHO WILLFULLY
FAILS TO RETURN TO THE DESIGNATED PLACE OF ASSIGNMENT AT THE
TIME SPECIFIED, MAY BE GUILTY OF A NEW CHARGE ([AGGRAVATED]
ESCAPE OR FAIL TO RETURN) AND UPON CONVICTION, BE SUBJECT TO THE
PENALTY PROVIDED IN THE KANSAS STATUTES ANNOTATED."
Cary suggests a fact question remains as to whether he intentionally failed to
return to the facility. At trial, the State presented evidence Cary left the facility on March
14, 2019, carrying an extra pair of shoes, despite being given only two and a half hours'
leave. Based on the evidence, the jury reasonably could conclude beyond a reasonable
doubt Cary left the facility, intended not to return, and was aware of the consequences
based on his orientation program and the documents he signed. Cary failed to establish
the failure to give a mistake of fact jury instruction was clear error necessary for reversal.
See State v. Sayler, 306 Kan. 1279, 1286, 404 P.3d 333 (2017) (appellate court should
not reverse conviction unless it is "firmly convinced" jury would have reached different
verdict had instructional error not occurred).
Even if the jury instruction on mistake of fact was properly preserved and we did
not apply the clear error standard, Cary still would not prevail on appeal as the instruction
would not have been factually appropriate based on the evidence. An instruction is
factually appropriate if there was sufficient evidence to support the instruction when
viewed in the light most favorable to the defendant. Williams, 303 Kan. at 598-99. The
State's undisputed evidence showed Cary was provided a handbook containing the rules
of the facility, he watched an orientation video explaining the same, he signed an
acknowledgment of the rules, and his ISO explained the rules of the facility. The
evidence suggests Cary knew he had been released from the facility to complete a task
expected to take no longer than two and a half hours and thus knew when he was
expected to return to the facility on the date in question. Cary did not testify to refute any
of this evidence. When viewed in the light most favorable to Cary, sufficient evidence did
not support an instruction on mistake of fact.
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Affirmed.
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