State v. Lowe ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,723
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MELISSA C. LOWE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed November 23,
2022. Affirmed.
Carol Longenecker Schmidt, of Schmidt Law, LLC, of Newton, for appellant.
Noelle Relph, legal intern, Lance J. Gillett, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., WARNER and COBLE, JJ.
PER CURIAM: Melissa Lowe appeals her conviction for aggravated assault with a
deadly weapon. Lowe challenges the sufficiency of the evidence supporting that
conviction and claims the district court should have instructed the jury on simple assault
as a lesser included offense. After carefully reviewing the record and the parties'
arguments, we find no error and affirm Lowe's conviction.
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FACTUAL AND PROCEDURAL BACKGROUND
The events giving rise to Lowe's conviction took place after her older daughter's
youth softball game on June 30, 2019. When the game ended, Lowe drove with her
younger daughter to pick up her older daughter from the softball complex, parking her
car in the gravel parking lot to wait. Lowe's older daughter left the game and began
walking towards the parking lot with Mary Angela Logsden and Logsden's daughter.
Logsden had been dating Lowe's ex-husband for over three years and lived with
him. At the time of the softball game, Lowe and her ex-husband were involved in a
contentious custody dispute over their two daughters. There was significant animosity
between Logsden and Lowe due to Logsden's relationship with Lowe's ex-husband and
the ongoing custody suit.
Logsden testified at trial that as Lowe's older daughter and the others approached
the parking lot, Logsden saw Lowe "completely staring her down" from the driver's seat
of Lowe's car. Lowe got out of the car to let her daughter in. Lowe alleged that at that
point, Logsden called Lowe an offensive name, and then Lowe got back in the car.
Logsden testified that after Lowe reentered her car, Logsden heard tires spinning
behind her. Logsden turned around and saw Lowe smiling and laughing while driving the
car towards her. Lowe swerved towards Logsden, coming within inches to a foot of her,
and then exited the complex while making an obscene gesture at Logsden. Other
eyewitnesses, including Lowe's daughters, corroborated this account.
Logsden called the police and reported the incident. The State charged Lowe with
aggravated assault with a deadly weapon (her vehicle) under K.S.A. 2018 Supp. 21-
5412(b)(1).
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The case against Lowe proceeded to a jury trial. Lowe's defense theory was that
she was upset about the name Logsden had called her, but she did not commit a crime;
instead, she merely "[drove] off in a huff" after the encounter. Witnesses at the trial
provided conflicting accounts of various aspects of the incident—the person who
instigated the conflict, whether Lowe purposefully spun her tires, the speed of Lowe's
car, and how close the car came to Logsden. For example, relevant to this appeal:
• Lowe admitted to spinning her tires on the gravel but stated that it was an accident.
Lowe's younger daughter testified that it was unusual for her mother's tires to spin,
that she had not spun her tires before in a similar situation, and that she told her
mother that she should not have done it.
• Witnesses generally testified that Lowe approached Logsden at a speed
somewhere between 5 and 15 miles per hour. Logsden told the police immediately
after the incident that Lowe was driving about 5 to 10 miles per hour and was
going faster than cars typically drove when exiting softball games. Lowe's older
daughter testified she saw her mother's speedometer and it "wouldn't have gone
over like 15." And Logsden's daughter testified that Lowe was driving at a "pretty
decent speed" and "[f]aster than what you would go through the complex." An
eyewitness testified that Lowe was going "a little bit faster than [a car in] a
parking lot should have been."
• Lowe denied swerving towards Logsden. But an eyewitness testified that Lowe
deliberately swerved the car at Logsden and was trying to hit her; he explained
that there was plenty of room in the parking lot for Lowe to not have had to
swerve. Lowe's younger daughter testified that Lowe swerved towards Logsden
and it was "kind of close," but then Logsden herself hit the car. Logsden's daughter
also testified that Lowe swerved towards her mother.
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• There was also conflicting evidence about how close Lowe's car came to Logsden.
Lowe's older daughter had previously told a police detective that there were at
least 3 feet between Logsden and the car. Logsden testified that Lowe got "very
close" to her with her car and "if I had a belt on that day, it would have scraped her
car because she was that close to me." Logsden stated that she put her arm out to
brace herself when Lowe got within 1 inch of her, and that she feared Lowe would
hit her with the car. Lowe's younger daughter testified that her mother came within
a few inches of Logsden. Logsden's daughter testified that the car was close
enough to Logsden that she could touch the car with her arm out and elbow bent.
The jury found Lowe guilty of aggravated assault with a deadly weapon. Lowe
moved for a new trial, arguing the evidence was insufficient to support her conviction
because she did not knowingly commit the crime, because she sped off only to get away
from Logsden after being insulted, and because Logsden's apprehension of harm was not
reasonable. The court denied her motion, explaining that it is the jury's role to assess the
credibility of witnesses and to weigh testimony. The court sentenced Lowe to an
underlying 12-month prison term but placed her on probation for 24 months. Lowe
appeals.
DISCUSSION
Lowe contests her conviction of aggravated assault with a deadly weapon in two
ways. She argues that the evidence at trial was insufficient to show she committed the
assault with a deadly weapon. She also claims the district court should have instructed the
jury on the crime of simple assault, which is a lesser included offense of aggravated
assault with a deadly weapon. We do not find these claims persuasive.
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1. There was sufficient evidence from which the jury could find that Lowe's car was
used as a deadly weapon.
Lowe first argues that the evidence at trial was insufficient to show that she
committed the crime of aggravated assault with a deadly weapon. When a defendant
challenges the sufficiency of the evidence, an appellate court reviews the evidence "in a
light most favorable to the State to determine whether a rational factfinder could have
found the defendant guilty beyond a reasonable doubt." State v. Rosa, 304 Kan. 429, Syl.
¶ 1, 371 P.3d 915 (2016). The court does not reweigh the evidence, resolve evidentiary
conflicts, or reassess witness credibility. State v. Keel, 302 Kan. 560, 566, 357 P.3d 251(2015).
To prove aggravated assault with a deadly weapon, the State was required to show
that Lowe knowingly placed Logsden in "reasonable apprehension of immediate bodily
harm" and did so with a deadly weapon. See K.S.A. 2018 Supp. 21-5412(a), (b)(1). Lowe
challenges the second of these elements, arguing that the State did not demonstrate that
her car was used as a deadly weapon.
Kansas law defines a "deadly weapon" as "an instrument which, from the manner
in which it is used, is calculated or likely to produce death or serious bodily injury." PIK
Crim. 4th 54.280 (2019 Supp.); State v. Colbert, 244 Kan. 422, 426, 769 P.2d 1168(1989). Lowe asserts that the State was required to show that Lowe believed—i.e.,
"calculated"—that her car was a deadly weapon and intended to use it in that fashion.
Kansas courts have rejected this subjective analysis, however, because the question
whether an item is a deadly weapon is an objective one. As the Kansas Supreme Court
explained:
"This court's use of the word 'calculated' in the definition of 'deadly weapon' does not
mean a jury in an aggravated battery case involving an allegation of use of a deadly
weapon must answer a subjective question: Did the defendant actually believe that he or
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she was using an instrument in a way that made that instrument deadly? Rather, the jury
must answer an objective question: Would a reasonable person in defendant's
circumstances have believed that? Put another way, was it likely the instrument would be
deadly, when used in the way and at the time and place it was used by defendant?" State
v. Charles, 304 Kan. 158, 170-71, 372 P.3d 1109 (2016), abrogated on other grounds by
State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017).
Kansas courts have recognized that a car may be used as a deadly weapon.
See State v. Whittington, 260 Kan. 873, 878, 926 P.2d 237 (1996); State v. Bailey, 223
Kan. 178, 184, 573 P.2d 590 (1977) (car was a deadly weapon); State v. Bradford, 27
Kan. App. 2d 597, 600, 3 P.3d 104 (2000) (car used in deadly manner "could very well
have been a deadly weapon" supporting conviction for reckless aggravated battery). We
reach a similar conclusion here.
The jury was presented with evidence that Lowe looked at Logsden, spun the car's
tires, approached Logsden at higher rate of speed than usual in the gravel parking lot, and
swerved within inches of her. As the court noted in Whittington, "almost any frontal
impact between a moving automobile and a human could produce serious injury." 260
Kan. at 878. A reasonable person could conclude that Lowe's car was used as a deadly
weapon when she assaulted Logsden.
Lowe is correct that there was conflicting evidence offered at trial on all these
matters—the tires, the speed of the car, and whether (and how close) Lowe swerved
toward Logsden. But it is not the role of this court to reweigh conflicting evidence. Nor is
it appropriate for appellate judges, who were not present at trial to observe the witnesses'
demeanor or listen to their testimony, to second-guess the jury's credibility assessments.
Instead, we must determine whether there was evidence from which a jury could
conclude Lowe's vehicle was used as a deadly weapon. Here, the evidence was sufficient
to support the jury's verdict.
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2. An instruction on simple assault was not factually appropriate in this case.
Lowe also asserts that the district court erred because it did not instruct the jury on
simple assault as a lesser included offense of aggravated assault with a deadly weapon.
Because Lowe did not request an instruction on simple assault at trial, she must
demonstrate that the instruction was legally and factually appropriate and that the failure
to provide that instruction was clearly erroneous. See K.S.A. 2021 Supp. 22-3414(3);
State v. Gentry, 310 Kan. 715, 720, 449 P.3d 429 (2019).
The law is well settled that an instruction on simple assault would have been
legally appropriate in Lowe's case, as simple assault is a lesser included offense of
aggravated assault with a deadly weapon. State v. Werkowski, 220 Kan. 648, 652, 556
P.2d 420 (1976); see K.S.A. 2018 Supp. 21-5412(a)-(b) (showing that all of the assault
elements are identical to some elements of aggravated assault). But the parties disagree
about whether a simple-assault instruction was factually appropriate here.
Lowe argues that the simple-assault instruction was factually appropriate because
the jury could have concluded that the State did not establish that her car was a deadly
weapon. The State counters that the instruction was not factually appropriate because the
only evidence presented showed that if there was an assault at all, it was committed with
Lowe's car—a deadly weapon.
The State has the better argument. The only evidence presented at trial showed an
encounter between Lowe and Logsden while Lowe was in her car. Lowe's defense was
not that she did not use a car, but that she did not commit an assault at all. In other words,
she argued that she did not commit a crime because she drove away, albeit angrily, after
Logsden allegedly insulted her. Based on the evidence at trial, the jury could have
concluded that Lowe committed either aggravated assault with a deadly weapon or no
crime at all. There was no evidence presented to show that Lowe committed a simple
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assault, meaning an assault without the vehicle. Thus, an instruction on simple assault
would not have been factually appropriate in this case.
Because the simple-assault instruction was not factually appropriate, Lowe has not
shown the district court erred by not instructing the jury on that offense.
Affirmed.
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