State v. Robinson

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 110,040
STATE OF KANSAS,
Appellee,
v.
JASON ROBINSON,
Appellant.
SYLLABUS BY THE COURT
Defendant who alleged that his statutory speedy trial rights were violated and that
cumulative error deprived him of a fair trial is not entitled to reversal of his convictions
because his statutory speedy trial rights were not violated; the State presented sufficient
evidence of aggravated burglary; the jury instructions were proper; and any error was
harmless beyond a reasonable doubt.
Review of the judgment of the Court of Appeals in an unpublished opinion filed February 13,
2015. Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed August 11,
2017. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district
court is affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Ashley R.
Iverson, legal intern, was with him on the brief for appellant.
Christopher L. Schneider, assistant district attorney, argued the cause, and Jerome A. Gorman,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: On August 24, 2010, an argument between Jason Robinson and his
girlfriend, L.C., at her home escalated into violence. The parties presented conflicting
1
accounts at trial—L.C. testified that Robinson kicked in the door and struck her in the
face. Robinson claimed that L.C. broke the door and he acted in self-defense. The State
presented substantial evidence of abuse, as well as corroborating testimony from a
responding officer and the treating physician. However, L.C. recanted some statements
she made to law enforcement. Ultimately, the jury convicted Robinson of aggravated
burglary, aggravated battery, and criminal damage to property.
On appeal, Robinson claims that seven errors—arising from all stages of the
trial—warrant reversal either standing alone or cumulatively. However, we conclude that
Robinson's statutory speedy trial rights were not violated; the State presented sufficient
evidence of aggravated burglary; and the "bodily harm" jury instruction was not
erroneous. Though the district court failed to give a K.S.A. 60-455 limiting instruction
and issued written responses to the deliberating jury's questions, these errors were
harmless. Robinson's remaining challenges are unpreserved. Finding no cumulative error,
we affirm Robinson's convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Between February and August 2010, Robinson lived intermittently with his
girlfriend, L.C., and their children. On August 24, 2010, Robinson and L.C. had an
argument, and Robinson left the house. The accounts given of the ensuing violence were
very different. L.C. claimed that she refused to let Robinson back inside and pushed a
couch against the door to prevent his entry, to no avail. Robinson kicked in the door and
struck her in the face. Robinson, though, claimed self-defense, alleging that he went
peacefully inside to pack his things when L.C. attacked him with a knife.
When Robinson left the house, L.C. called the police. While L.C. was on the
phone with the police, Robinson returned, threw bricks through the windows of her
minivan, and left again. When Officer Michael Moulin arrived at the scene, he observed
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that L.C.'s minivan was damaged, her front door "had been kicked in," and L.C. was
"crying, angry, and hysterical." He noticed that L.C. "had a swollen right eye and blood
on her nose." He also found a couch pushed up against the front door. The police offered
L.C. medical treatment, but she declined.
After the police left, L.C. noticed that her right eye kept swelling. The next day, a
caseworker took L.C. to the hospital because L.C. was unable to drive herself—her
windshield was broken and she could not see out of her right eye. At the hospital,
emergency physician Dr. Matthew Robbinett examined L.C.'s right eye. In his deposition,
Dr. Robbinett explained that L.C. sustained an orbital wall fracture and a corneal
abrasion, which could cause infection or permanent double vision and require surgery.
Dr. Robbinett said L.C. told him that her baby's father hit her. He recalled that the nurse's
notes showed L.C. had a history of abuse and was struck with a fist or gun. He also noted
that L.C. had signs of an "old infarct," which was "probably a remote injury."
The State charged Robinson with aggravated burglary, aggravated battery,
aggravated assault, and felony criminal damage to property. Robinson waived formal
arraignment at his probable cause hearing on October 28, 2010. The trial was initially set
for January 10, 2011. On that date, the district court granted Robinson's request for a
continuance to analyze his jail calls and rescheduled the trial for February 22, 2011.
The week before trial, the State moved for a continuance, asserting that Dr.
Robbinett—the only physician who diagnosed and treated L.C.'s eye injury—was a
material witness who would be unavailable on the second trial date because he would be
working on a traveling rotation in Pittsburg, Kansas, at that time. On February 17, 2011,
the district court held a hearing on the motion. The State explained that the hospital
system had delayed delivery of the subpoena to Dr. Robbinett; the State was unable to
conduct a deposition before trial because Dr. Robbinett was already in Pittsburg on this
rotation; and the State needed Dr. Robbinett to provide evidence of the bodily harm
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element of aggravated battery. The State assured the court that it would obtain Dr.
Robbinett's schedule for the next month.
Robinson generally objected to the continuance but did not contest Dr. Robbinett's
materiality or unavailability. The district court granted the State's motion, and Dr.
Robbinett was later deposed to accommodate the third and final trial date, April 25, 2011.
On the morning of trial, the court heard motions in limine. The subject of much
debate was the admissibility of Robinson's jail calls to L.C. in which he told her not to
come to court. Robinson objected to admission of the jail calls, citing a lack of
foundation and a violation of K.S.A. 60-455. The court ruled that the calls would be
admissible if the foundation was laid "not pursuant to 60-455 but simply to show that the
defendant's trying to persuade a critical witness from testifying in this case and that's the
only purpose."
Robinson also moved to redact portions of Dr. Robbinett's deposition testimony.
First, Robinson argued that L.C.'s statement to Dr. Robbinett, "[M]y baby's father hit
me," was irrelevant and constituted inadmissible hearsay. Second, Robinson argued that
Dr. Robbinett's references to L.C.'s "historic injuries" that he observed violated K.S.A.
60-455 because the jury could infer that Robinson caused them. The court denied both
motions, concluding that the medical records were not hearsay and Dr. Robbinett's only
testimony regarding a historic injury—"an old infarct," which was "probably a remote
injury"—was not prejudicial to Robinson.
Finally, Robinson moved to dismiss the case on statutory speedy trial grounds,
claiming that the State's continuance counted against the State and therefore the 90-day
statutory speedy trial deadline had expired. The court disagreed, concluding that "this is a
material witness continuance and so the record will speak for itself, but the motion to
dismiss for a violation of speedy trial is denied."
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At trial, the State called L.C. and Officer Michael Moulin as witnesses and played
Dr. Robbinett's deposition video for the jury. L.C. testified that on August 24, 2010, she
and Robinson had an argument, and Robinson left the house. When Robinson returned
and knocked on the door that night, she refused to let him inside. Robinson started
banging on the door, and L.C. was scared. L.C. recalled that she tried to push a couch
against the door to bar Robinson's entry, but he kicked in the door. When the two began
to argue, Robinson beat L.C. with his fists and struck her in the face. The State entered
photos into evidence that showed L.C.'s swollen eye and a large bruise on her arm.
However, L.C. recanted certain statements she made to law enforcement. For
example, L.C. first told police that Robinson choked her, pulled her hair, hit her with a
stick, and put a gun to her head and said, "Bitch, I will kill you." At trial, L.C. said she
lied about those details and exaggerated her story to the police because she was mad at
Robinson. L.C. also testified that she never told the doctor that her baby's father hit her—
even though Dr. Robbinett stated otherwise in his deposition.
Defense counsel asked L.C. if she ever told the State that she lied to the police.
L.C. responded that yes, she did, but the State did not believe her. L.C. explained that her
kids were removed from her home after she made her original police report. She claimed
that someone from the "DA's office" said the State would use L.C.'s original story and
threatened that L.C.'s kids would not return home and L.C. could get "locked up." L.C.
admitted that she had a battery conviction against Robinson and previously had
threatened him with a knife. She testified that she went to get a knife that night when
Robinson was hitting her.
Before playing Dr. Robbinett's deposition video for the jury, the court asked
defense counsel whether he wished to put anything on the record, but he proffered
nothing. Defense counsel also lodged no contemporaneous objections while the
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deposition video was played. However, when the deposition was taken, the defense
objected on hearsay grounds to Dr. Robbinett's statement that L.C. told him, "My baby's
father hit me."
After the State rested, the defense moved for a judgment of acquittal. The court
granted the motion for the aggravated assault count, reduced the criminal damage count
to a misdemeanor, and denied the motion for the remaining counts.
The defense called Robinson as its only witness. Robinson testified that on August
24, 2010, he got into an argument with L.C. and left the house for a few hours. When he
returned home, L.C. was angry and started hitting him. Robinson explained that he tried
to pack up his things, but L.C. threatened him with a knife. He managed to lock L.C.
outside, but she broke in the door. However, Robinson later testified that the door was
broken the week before.
Robinson said he was scared because L.C. had attacked him with a knife before.
He testified that when L.C. got back into the house, she charged at him with the knife
again. He claimed that he threw a bag at L.C. to dislodge the knife, and she "got the
bruise on her arm from me hitting and pulling her arm trying to get the knife out of her
hand." He recounted that he escaped by tossing L.C. over the couch and running out the
door. Robinson showed the jury a scar on his back, claiming he incurred scratches from
the fight but did not seek medical attention.
The State asked Robinson, "[D]id you ever contact [L.C.] and tell her not to come
to court?" Defense counsel objected that the State was soliciting evidence of other bad
acts. The court overruled the objection, stating that "this all goes to credibility of the
defendant as a witness." However, defense counsel did not request a limiting instruction,
and the court did not give one.
6
Robinson responded that he told L.C. not to come to court because people were
threatening her. With this admission, the State did not enter the jail calls into evidence.
Robinson further admitted that he threw bricks through L.C.'s car windows.
The jury found Robinson guilty of aggravated burglary, aggravated battery (bodily
harm), and misdemeanor criminal damage to property. The district court sentenced
Robinson to a total of 114 months' imprisonment. The Court of Appeals affirmed,
holding the trial court erred when it provided written answers to the jury's deliberation
questions and failed to give a limiting instruction concerning Robinson's testimony that
he told L.C. not to come to court, but such errors were harmless. State v. Robinson, No.
110,040, 2015 WL 770167, at *14-15 (Kan. App. 2015) (unpublished opinion). We
granted Robinson's petition for review.
ANALYSIS
1. Robinson's statutory speedy trial rights were not violated.
Robinson contends that his statutory speedy trial rights were violated because the
district court erroneously granted the State a continuance for Dr. Robbinett as an
unavailable material witness under K.S.A. 22-3402(5)(c), which extended the State's
statutory speedy trial deadline by another 90 days. Robinson does not contest that Dr.
Robbinett was material to the case. Instead, he claims for the first time on appeal that the
district court erred by finding Dr. Robbinett was unavailable for trial because the State
demonstrated at most an inconvenience, which is insufficient to prove unavailability.
Robinson argues that, were it not for this continuance—and the 90-day extension it
triggered—the statutory speedy trial deadline would have expired before he was tried.
We pause to note that, during the pendency of this appeal, the statutory speedy
trial deadline was extended from 90 to 150 days. L. 2014, ch. 139, sec. 5. However, we
7
need not resolve the question of K.S.A. 2016 Supp. 22-3402(a)'s retroactivity today.
Because we find no abuse of discretion, Robinson's statutory speedy trial rights were not
violated under the 90-day—let alone the 150-day—period. Therefore, for purposes of this
appeal, we will assume that the 90-day deadline applies.
We review a district court's decision to grant a continuance under K.S.A. 22-
3402(5) for abuse of discretion. State v. Dobbs, 297 Kan. 1225, 1232-33, 308 P.3d 1258(2013). "'A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact.'" State v.
Sherman, 305 Kan. 88, 119, 378 P.3d 1060 (2016) (quoting State v. Moore, 302 Kan.
685, 692, 357 P.3d 275 [2015]). Robinson bears the burden to establish that an abuse of
discretion occurred. Dobbs, 297 Kan. at 1232-33.
K.S.A. 22-3402 states, in relevant part:
"(1) If any person charged with a crime and held in jail solely by reason thereof
shall not be brought to trial within 90 days after such person's arraignment on the charge,
such person shall be entitled to be discharged from further liability to be tried for the
crime charged, unless the delay shall happen as a result of the application or fault of the
defendant, or a continuance shall be ordered by the court under subsection (5).
....
"(5) The time for trial may be extended beyond the limitations of subsections (1)
and (2) for any of the following reasons:
....
(c) There is material evidence which is unavailable; that reasonable efforts have
been made to procure such evidence; and that there are reasonable grounds to believe that
such evidence can be obtained and trial commenced within the next succeeding 90 days.
8
Not more than one continuance may be granted the state on this ground, unless for good
cause shown, where the original continuance was for less than 90 days, and the trial is
commenced within 120 days from the original trial date."
The State has the obligation "to ensure that a defendant is provided a speedy trial
within the statutory limits," and "[a] defendant is not required to take any affirmative
action to see that his or her right to a speedy trial is observed." State v. Vaughn, 288 Kan.
140, 144, 200 P.3d 446 (2009); see State v. Sievers, 299 Kan. 305, 307-08, 323 P.3d 170(2014). "The speedy trial clock is triggered at arraignment," including waiver of
arraignment. 299 Kan. at 307; see State v. Welch, 212 Kan. 180, 181, 509 P.2d 1125(1973) (finding the defendant's waiver of arraignment triggered the speedy trial statute);
State v. Montgomery, 34 Kan. App. 2d 549, 553-54, 122 P.3d 392 (2005) (holding that
"when a defendant purposefully waives arraignment . . . the waiver is an effective
substitute for the arraignment and there is no need for further arraignment proceedings to
begin the running of the speedy-trial clock"). Generally, the days between arraignment
and the next event are assessed against the State. See State v. Thomas, 291 Kan. 676, 694,
246 P.3d 678 (2011); Vaughn, 288 Kan. at 147.
However, "delays which result from the defendant's application or fault are not
counted in computing the statutory period," including delays from a continuance granted
at the defendant's request. State v. Brown, 283 Kan. 658, 662, 157 P.3d 624 (2007); see
State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007) (holding that "a defendant
waives his or her statutory right to a speedy trial by requesting or acquiescing in the
granting of a continuance"). When a defendant causes a delay by requesting a
continuance, "the appropriate commencement date for computing the delay . . . [is] the
date the motion for continuance was granted." Brown, 283 Kan. at 666.
When a district court grants the State a continuance pursuant to K.S.A. 22-
3402(5)(c), the 90-day extension period is counted from the date of the trial setting. See
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State v. White, 275 Kan. 580, 601, 67 P.3d 138 (2003) (construing identical language
from a prior version of K.S.A. 22-3402 to hold that the 90-day period for an unavailable
material witness continuance "is counted from the date of the trial setting, not from the
date on which the motion to continue was granted"). "[D]elays attributable to court-
ordered continuances authorized under K.S.A. 22-3402(5) are not counted against the
State in computing the 90-day period" to bring a defendant to trial. Dobbs, 297 Kan. at
1233.
In this case, the speedy trial clock began to run on October 28, 2010, when
Robinson waived formal arraignment at his probable cause hearing. On Robinson's first
trial date, January 10, 2011, the district court granted Robinson a continuance to analyze
his jail calls and set the second trial date for February 22, 2011. Thus, 74 days passed
from October 28, 2010, to January 10, 2011, which are assessed against the State.
However, on February 17, 2011, the court granted the State's motion to continue
the case because it found that Dr. Robbinett was an unavailable material witness. Because
K.S.A. 22-3402(5)(c)'s 90-day extension period is counted from the date of the trial
setting, the State's extension began on February 22, 2011. The court set the third and final
trial date for April 25, 2011. Between February 22, 2011, and April 25, 2011, 62 days
expired—well within the State's 90-day extension period.
If the district court correctly granted the State a continuance under K.S.A. 22-
3402(5)(c), then the statutory speedy trial clock never resumed running against the State
after Robinson's continuance was granted on January 10, 2011, meaning only 74 days
would be assessed against the State. However, if the district court erred in granting the
State's continuance, then the clock also ran against the State from February 22, 2011, to
April 25, 2011. Consequently, a total of 136 days would be assessed against the State—
well over the speedy trial 90-day limit.
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In its motion for a continuance, the State argued that (1) Dr. Robbinett was a
material witness because, as L.C.'s treating physician, he was essential to prove the great
bodily harm element of aggravated battery and (2) he was unavailable because of a
traveling rotation in Pittsburg, Kansas. At the hearing on the motion, the State explained:
"I got a phone call this week from Dr. Robinett [sic] who was the emergency room
doctor, the treating physician of the victim in this case and he told me that he just had
gotten the subpoena. I guess the hospital system that he works for, it has to go through
various channels before it gets to him and that he just received it late last week or early
this week. Anyway, he called me and told me that he's unavailable for trial next week.
He's doing a traveling rotation and he'll be working in Pittsburg, Kansas next week. I
asked him if he would be able to get in this week so that we could do a deposition and he
told me that he's in Pittsburg now, that he would be there throughout the rest of this week
and then next week. He is to e-mail me his schedule . . . they only do their schedules up
to 30 days in advance so he told me he had a schedule through March, but that was it. He
was to e-mail that to me. He has not as of yet. But I do, as the motion states, I do need
him to prove one of my elements of aggravated battery, which is great bodily harm, as he
was the diagnosing and treating physician of the victim."
Defense counsel responded, "Judge, the defendant objects to any continuance.
We're prepared to go to trial next week." The district court asked defense counsel, "[I]s
there anything more that you want to say on the issue of whether or not Dr. Robinett [sic]
is a material witness?" Defense counsel replied, "Not really, Judge. The—I just got this
motion yesterday. . . . As far as material witness . . . I do have information that this was
the treating physician at the emergency room and I believe the only physician that the
victim saw in this case." The court concluded:
"Well, the court would find that the doctor under the circumstances as has been
stated here today is a material witness in this case and the court notes further that the
defendant has been granted a continuance of the trial in this matter and the court will
grant . . . the State's motion to continue this trial."
11
On appeal, Robinson only contests Dr. Robbinett's unavailability. He relies on
State v. George, 31 Kan. App. 2d 430, 65 P.3d 1060 (2003), to argue that the State failed
to demonstrate that Dr. Robbinett was unavailable because the record shows, at most, that
returning for trial might have been inconvenient for Dr. Robbinett. In George, the Court
of Appeals held that two officers were not "unavailable" for trial because:
"In requesting the continuance, the State simply alleged, without explanation,
that the two officers were unavailable because they planned to be out of state on the
October trial dates. This was insufficient to demonstrate the necessity of a continuance.
There was no showing as to the purpose of the officers' out-of-state trip or whether it
could be rescheduled. Was it for necessary official duty or merely pleasure? There was
no evidence as to whether the court's trial calendar contained a civil trial that could be
rescheduled to accommodate the time constraints for the speedy trial. There appeared to
have been no consideration of the possibility of having an assigned judge hear this trial."
31 Kan. App. 2d at 434-35.
In contrast, the State detailed why Dr. Robbinett was unavailable—because the
subpoena was inadvertently delayed and Dr. Robbinett was already on a traveling
rotation in Pittsburg, Kansas, that would last through the trial date. As the Court of
Appeals observed, "to expect a traveling doctor to reschedule appointments or obtain
coverage is not a mere inconvenience, either to the doctor or, even more so, to his or her
patients." Robinson, 2015 WL 770167, at *4.
Yet, we echo George's concern that we "need to have evidence in the record to
determine the basis and propriety of the court's continuance." 31 Kan. App. 2d at 434.
Indeed, the record here is slim—the State presented no evidence to substantiate its claim
that Dr. Robbinett was unavailable due to his traveling rotation. We caution that the
better practice would be to present evidence in support of a request for a K.S.A. 22-
3402(5)(c) continuance. See K.S.A. 60-402; State v. Page, 303 Kan. 548, 556, 363 P.3d
391 (2015) ("K.S.A. 60-402 establishes a general requirement for application of Kansas
12
evidentiary rules in all proceedings unless exempted elsewhere."). But despite the meager
record before us, Robinson's claim is unpreserved.
Robinson did not contest Dr. Robbinett's unavailability in district court, which
perhaps encouraged the scant record here. Though Robinson generically objected to a
continuance, he did not provide a reason—let alone contest unavailability—even when
offered the opportunity to do so. Failing to contest unavailability in district court and cite
a preservation exception on appeal is fatal to Robinson's claim. See State v. Dunn, 304
Kan. 773, 817, 375 P.3d 332 (2016) ("Ordinarily a party that wants to pursue an issue on
appeal must have preserved that issue in the court below."); State v. Godfrey, 301 Kan.
1041, 1043, 350 P.3d 1068 (2015) ("an exception must be invoked by the party asserting
the claim for the first time on appeal"); Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct.
R. 35) ("If the issue was not raised below, there must be an explanation why the issue is
properly before the court.").
Accordingly, we hold that the district court did not abuse its discretion when it
granted the State a continuance for an unavailable material witness and therefore
Robinson's statutory speedy trial rights were not violated.
2. The evidence was sufficient to convict Robinson of aggravated burglary.
Robinson argues that the State presented insufficient evidence of aggravated
burglary because, as a cohabitant, he had authority to enter the house. The Court of
Appeals held that, viewing the evidence in a light most favorable to the State, a
reasonable juror could conclude that Robinson lacked authority to enter the home.
Robinson, 2015 WL 770167, at *7. We agree and affirm Robinson's aggravated burglary
conviction.
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"When the sufficiency of the evidence is challenged in a criminal case, this 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.
McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). "Appellate courts do not reweigh
evidence, resolve evidentiary conflicts, or make witness credibility determinations." State
v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). Additionally, this court makes no
distinction between circumstantial and direct evidence in terms of probative value
because "'[a] conviction of even the gravest offense can be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a
reasonable one, the jury has the right to make the inference.'" McBroom, 299 Kan. at 754
(quoting State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030 [2011]).
At the time of Robinson's offense, aggravated burglary was defined as
"knowingly and without authority entering into or remaining within any building,
manufactured home, mobile home, tent or other structure, or any motor vehicle, aircraft,
watercraft, railroad car, or other means of conveyance of persons or property in which
there is a human being, with intent to commit a felony . . . therein." (Emphasis added.)
K.S.A. 21-3716.
At trial, the jury heard conflicting testimony regarding Robinson's authority to
enter the house. L.C. testified that she moved into the house in February 2010, and
Robinson lived with her "[w]hen he chose to." L.C. estimated that Robinson lived with
her for about a month prior to the incident. However, L.C. was the only person on the
lease, and Robinson had no key to the home. L.C. stated that when Robinson returned to
the house on August 24, 2010, she did not give Robinson permission to enter the house
and attempted to bar his entry by moving a couch in front of the door.
Robinson testified that he lived with L.C. on and off for about 5 years. He claimed
that he kept things in her house, but the record is unclear to what extent. On appeal,
14
Robinson argues that L.C.'s refusal to grant him permission to enter is not determinative
of his authority to enter. He also contends that the evidence shows he was a cohabitant
who had authority to enter the home. However, both cases Robinson cites in support are
distinguishable from the facts of this case.
Robinson is correct that a lack of permission does not automatically equate to a
lack of authority, but his analogy to State v. Vasquez, 287 Kan. 40, 194 P.3d 563 (2008),
is unconvincing. In Vasquez, the defendant argued that the evidence was insufficient to
convict him of aggravated burglary because he had authority to enter the house he and the
victim—his wife—shared. While Vasquez was in Mexico, his wife sought a divorce and
told him not to return home. We concluded that the evidence was insufficient to convict
Vasquez of aggravated burglary, distinguishing between permission and authority to
enter:
"[T]he State certainly demonstrated that [Vasquez' wife] wanted nothing to do with
Vasquez. She had asked him to stay in or go back to Mexico; and she had moved at least
some of his belongings out of their house and into his sister's. Yet the State did not prove
that . . . Vasquez was legally unauthorized to enter the house he and [his wife] had lived
in together. [She] may have obtained a restraining order or may have planned to file a
PFA action . . . but there was no evidence that Vasquez had been served with any order of
this type. He was still married to [her]." 287 Kan. at 60.
In contrast, because Robinson and L.C. were not married at the time of the
incident, their relationship status did not authorize Robinson's entry. Rather, they were at
most cohabitants, making L.C.'s refusal to grant Robinson permission relevant to, but not
determinative of, the fact-intensive question of Robinson's authority to enter the house.
Robinson also relies on State v. Franklin, 280 Kan. 337, 121 P.3d 447 (2005), to
argue that he had authority to enter the house despite his on-and-off cohabitation with
L.C. In Franklin, the defendant argued that she had authority to enter her ex-boyfriend's
15
house, where she had lived for a year and a half. The defendant testified that she had
permission from her ex-boyfriend and his mother to be in that house; that she stored a car
in the garage; and that she kept clothes in the house. The State did not rebut this
testimony. Instead,
"[t]he State relied on the following circumstantial evidence to prove aggravated
burglary: the attack occurred at 1:54 a.m. when the occupants of the house were
sleeping; the defendant did not speak to anyone in the house during the attack; defendant
had not been seeing [her ex-boyfriend] for several weeks before the attack; defendant had
not been in the house since she had broken off her relationship . . . and [her ex-boyfriend]
was involved with another woman at the time of the attack." 280 Kan. at 345-46.
We determined that there was no evidence the defendant lacked authority to enter
the house because "the State's circumstantial evidence pales next to defendant's testimony
that she had authority to enter the house, coupled with the circumstantial evidence of her
car in the garage and her clothing in the house." 280 Kan. at 346.
However, L.C. testified that she did not give Robinson permission to enter the
house. In word and deed, L.C. clearly communicated her refusal to grant Robinson access
to the house—she told him to leave and pushed a couch against the door. Without a key,
Robinson lacked access to L.C.'s home without her consent, as evidenced by his forcible
entry. Though Robinson lived with L.C. at times prior to the incident and kept some
belongings in her home, the State presented far more rebuttal evidence here than in
Franklin.
In sum, the evidence regarding Robinson's authority to enter the home was
conflicting at best. However, we do not resolve evidentiary conflicts or assess witness
credibility. See Daws, 303 Kan. at 789. Viewing the evidence in a light most favorable to
the State, we hold that a reasonable jury could conclude Robinson did not have authority
16
to enter the house and find Robinson guilty of aggravated burglary beyond a reasonable
doubt.
3. Robinson's constitutional challenge to the aggravated battery statute is unpreserved.
For the first time on appeal, Robinson argues that the aggravated battery statute,
K.S.A. 21-3414(a)(1)(B), is unconstitutionally vague because it gives no tangible
guidance on what separates simple battery from battery done whereby "great bodily
harm, disfigurement or death can be inflicted." However, Robinson's claim is "subject to
the general rule that alleged constitutional violations cannot be raised for the first time on
appeal." Godfrey, 301 Kan. at 1043. The Court of Appeals declined to reach the merits
because Robinson failed to preserve this challenge, and so do we. 2015 WL 770167, at
*7.
Robinson acknowledges the lack of preservation but invokes two exceptions: "(1)
The newly asserted claim involves only a question of law arising on proved or admitted
facts and is determinative of the case," and "(2) consideration of the claim is necessary to
serve the ends of justice or to prevent the denial of fundamental rights." State v. Swint,
302 Kan. 326, 335, 352 P.3d 1014 (2015). However, we decline the invitation to apply
such exceptions here.
4. The "bodily harm" jury instruction was not erroneous.
Robinson argues that the "bodily harm" jury instruction directed the jury that
certain circumstances are bodily harm as a matter of law for aggravated battery, which
precluded the jury from finding that element beyond a reasonable doubt. However,
Robinson's argument fails because the instruction's definition of "bodily harm" is firmly
rooted in caselaw and reflected in the comment to PIK Crim. 3d 56.18 (2009 Supp.).
Therefore, we hold that the bodily harm instruction was not erroneous.
17
When a jury instruction is alleged to be erroneous,
"(1) [f]irst, 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." State v. Plummer, 295
Kan. 156, 163, 283 P.3d 202 (2012).
Robinson admits that he did not object to the bodily harm instruction at trial—in
fact, he agreed to it. When, as here, "the instruction error is raised for the first time on
appeal, the failure to give a legally and factually appropriate instruction will result in
reversal only if the failure was clearly erroneous." State v. Solis, 305 Kan. 55, 65, 378
P.3d 532 (2016). "To establish a clearly erroneous instruction error, the defendant must
firmly convince the court the jury would have reached a different result without the
error." 305 Kan. at 65.
K.S.A. 21-3414(1)(A)-(B), in relevant part, defines aggravated battery as
"[i]ntentionally causing great bodily harm to another person or disfigurement of another
person" or "intentionally 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
statute does not define "bodily harm." See K.S.A. 21-3414(1)(A)-(B); State v. Cooper,
303 Kan. 764, 771, 366 P.3d 232 (2016).
The jury instructions stated that to convict Robinson of aggravated battery, the
State had to prove that Robinson intentionally caused "great bodily harm," or "bodily
18
harm . . . in any manner whereby great bodily harm, disfigurement or death can be
inflicted" to L.C. Instruction 11 defined "bodily harm" as follows:
"As used in these instructions, bodily harm has been defined as any touching of
the victim against the victim's will, with physical force, in an intentional hostile and
aggravated manner. The word 'great' distinguishes the bodily harm necessary to prove
aggravated battery from slight, trivial, minor or moderate harm, and as such it does not
include mere bruises."
This definition of bodily harm comports with caselaw and the comment to PIK
Crim. 3d 56.18 (2009 Supp.). We have defined "bodily harm" as "'any touching of the
victim against [the victim's] will, with physical force, in an intentional hostile and
aggravated manner.'" State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984); State v.
Livingston, 272 Kan. 853, 859, 35 P.3d 918 (2001). Furthermore, we have defined "great
bodily harm" as "more than slight, trivial, minor, or moderate harm, [that] does not
include mere bruising, which is likely to be sustained by simple battery." State v. Green,
280 Kan. 758, 765, 127 P.3d 241 (2006); Cooper, 303 Kan. at 771.
Furthermore, the definition of bodily harm in the comment to PIK Crim. 3d 56.18
(2009 Supp.) is identical to instruction 11, except for one slight deviation—the comment
states that "[t]he word 'great' distinguishes the bodily harm necessary to prove aggravated
battery from slight, trivial, minor or moderate harm, and as such it does not include mere
bruises, which are likely to be sustained in simple battery." (Emphasis added.)
Robinson cites State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003), to argue that the
district court instructed the jury as a matter of law that certain circumstances constitute
"bodily harm." However, Brice bears no resemblance to this case. In Brice, this court
held that the district court erred when it gave a jury instruction defining "great bodily
harm" as a "through and through bullet wound" because the uncontroverted evidence
showed the defendant inflicted such a wound, leaving no room for the jury to find that
19
element beyond a reasonable doubt. 276 Kan. at 771. Here, the district court did not graft
facts of the case into the bodily harm instruction. On the contrary, instruction 11 was
legally appropriate because it "fairly and accurately state[d] the applicable law."
Plummer, 295 Kan. at 161.
Finally, the district court's instruction was factually appropriate because the State
presented a substantial amount of evidence—consisting of photographs and multiple
testimonies—that L.C. sustained serious injuries to her eye, which could create
permanent complications, such as double vision.
Because the instruction was legally and factually appropriate, it was not given in
error.
5. Robinson's challenges to Dr. Robbinett's testimony are unpreserved.
Robinson argues that the district court erred when it refused to redact Dr.
Robbinett's testimony that L.C. said, "My baby's father hit me," and L.C.'s physical
condition "suggest[ed] an old infarct," which was "probably a remote injury." He
contends that admitting these statements violated K.S.A. 60-455's prohibition against
admitting evidence of another crime or civil wrong to prove the defendant's propensity to
commit the charged crime. However, we need not reach the merits of these objections
because Robinson failed to preserve them below.
"Generally, to preserve an evidentiary issue for appellate review, the complaining
party must have lodged a timely and specific objection at trial." State v. Dupree, 304 Kan.
43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016); K.S.A. 60-404; see Solis, 305
Kan. at 62 ("[T]his court has shown no indication that it intends to deviate from the
requirement of a contemporaneous objection at trial in order to preserve an evidentiary
issue for appellate review."). Furthermore, "[e]ven when the district court rules on the
20
admissibility of evidence pretrial, a party must still make an objection at trial before the
admission of the evidence because the unfolding of a case may require a reevaluation of
the reasons for the initial ruling." Dupree, 304 Kan. at 62. This court does not allow
parties "to object to the introduction of evidence on one ground at trial and then assert
another ground on appeal." State v. Race, 293 Kan. 69, 78, 259 P.3d 707 (2011); see State
v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016) (where the trial objection was for
relevance, this court would not consider a prejudice argument on appeal).
We will examine each contested statement in turn. During the recording of Dr.
Robbinett's deposition, Dr. Robbinett said, "she [L.C.] said she had been punched in her
right eye," and Robinson immediately objected on hearsay grounds to anything that
someone told the doctor. Shortly after this objection, Dr. Robbinett said L.C. told him,
"My baby's father hit me." Before trial, Robinson presented a motion in limine to redact
Dr. Robbinett's deposition to exclude that statement, objecting on the grounds of hearsay
and relevance. Specifically, defense counsel stated, "I think the specific person that hit
her is irrelevant . . . certainly hearsay." Thus, Robinson never objected to L.C.'s
statement, "My baby's father hit me," on K.S.A. 60-455 grounds below. Because
Robinson cannot object on one ground below and another on appeal, this claim is
unpreserved. See Race, 293 Kan. at 78.
When Dr. Robbinett's deposition was recorded, Robinson did not object to Dr.
Robbinett's statement that L.C. presented signs suggesting an old infarct, which was
probably a remote injury. Before trial, Robinson presented a motion in limine to redact
Dr. Robbinett's statements about any "historic injuries" he observed but did not cite to
specific testimony. The State countered that the doctor only talked about an indication of
a prior stroke, not a prior injury. The court asked defense counsel, assuming the State was
not arguing that the defendant caused the prior stroke, how would the defendant be
prejudiced? Defense counsel replied:
21
"Well, I guess my question is how does that help the jury in any way, shape or
form? It certainly doesn't help them determine whether or not my client committed these
acts, Judge. And when they start hearing about historic injuries, you know, that could
infer that . . . my client may have something to do with it. It doesn't make any sense to
allow that in if they're not even concerned about the stroke at all."
Robinson's objection is inexact but, generously construed, he appears to argue that
evidence of the old infarct is irrelevant and might suggest that Robinson injured L.C.
previously, which could implicate K.S.A. 60-455.
Before Dr. Robbinett's deposition video was published to the jury, the court asked
if Robinson would like to put anything on the record, and he did not renew his motion in
limine. When the deposition was played, Robinson did not object to Dr. Robbinett's
statements. Since Robinson neither made a contemporaneous K.S.A. 60-455 objection
nor renewed his motion in limine, the objection is not properly preserved for our review.
See Dupree, 304 Kan. at 62.
6. The district court's failure to provide a limiting instruction was harmless error.
Robinson claims the district court committed reversible error when it admitted
K.S.A. 60-455 evidence that Robinson contacted L.C. and told her not to come to court
without providing a limiting instruction. Robinson argues that the error is reversible
because "there is a real possibility that the jury saw this as indicative of the cycle of
violence that [Robinson's] and [L.C.'s] lives revolve around and therefore found that
[Robinson] is guilty." However, we agree with the Court of Appeals that "[e]ven if we
find it was error not to provide a limiting instruction regarding the evidence Robinson
complains about, we conclude that such an error was not clearly erroneous." Robinson,
2015 WL 770167, at *11.
22
"[I]n a jury trial the district court must give the jury a limiting instruction telling
the jury the specific purpose for which the [K.S.A. 60-455] evidence has been admitted."
State v. Torres, 294 Kan. 135, 140, 273 P.3d 729 (2012); see Solis, 305 Kan. at 65
("Without question, where propensity evidence is not allowed, the trial court should have
given a limiting instruction."). Assuming, for purposes of this appeal, that a K.S.A. 60-
455 limiting instruction was appropriate and the district court erred in failing to give one,
we next must review the entire record to determine if the error is reversible. See State v.
Breeden, 297 Kan. 567, 584, 304 P.3d 660 (2013). Because Robinson did not request a
limiting instruction in district court, we apply K.S.A. 2016 Supp. 22-3414(3)'s clearly
erroneous standard of review. 297 Kan. at 581. "This requires us to make a de novo
determination of whether we are firmly convinced the jury would have reached a
different verdict had a limiting instruction been given." 297 Kan. at 584.
In prior domestic violence cases, we have found that corroborating K.S.A. 60-455
evidence that has minimal impact on the outcome of the case does not merit reversal
under the clearly erroneous standard. For example, in Solis, a defendant convicted of
murder argued that the trial court's failure to give a limiting instruction when admitting
evidence of his prior batteries against the victim was reversible error. 305 Kan. at 65.
However, we held that the error was not clearly erroneous because "[t]he jury heard
enough other evidence of Solis' unusual behavior toward [the victim] and the couple's
discordant relationship to render the challenged testimony corroborative, rather than
determinative." 305 Kan. at 65. In short, the evidence of prior violence was not "a game-
changer." 305 Kan. at 65.
Similarly, in Vasquez, we held it was not clearly erroneous to admit testimony
about the defendant's previous domestic battery against the murder victim without a
limiting instruction because the evidence had "minimal impact" on the case and "did not
give the jury its sole or even a predominant independent reason to convict Vasquez." 287
23
Kan. at 53. We explained that a limiting instruction "would have improved Vasquez' trial,
but the trial was fair and its result reliable without it." 287 Kan. at 54.
Robinson's admission that he told L.C. not to come to court was likewise
corroborative of the substantial evidence of abuse and intimidation that the State
presented at trial. The jury heard testimony that Robinson forced entry into L.C.'s house;
he struck L.C. in the eye; he threw bricks through the windows of her minivan; the
nurse's notes showed that L.C. had a history of abuse; and L.C. told the physician that her
baby's father hit her. In light of this evidence, Robinson's statement at most had a
"minimal impact" and was not the "sole or even a predominant independent reason" to
convict him of the crimes charged. See Vasquez, 287 Kan. at 53. Any error in failing to
give a limiting instruction was harmless.
7. The district court's written responses to the deliberating jury's questions constitute
harmless error.
On two separate occasions during its deliberations, the jury sent written questions
to the district court. Both times, the procedure followed was the same—the court
discussed the questions and responses with both Robinson and his counsel; Robinson's
counsel agreed to the content of the responses while Robinson was present; and the court
sent written responses to the jury. Robinson's counsel did not object.
The first time, the jury asked three questions: (1) "[W]ho took the photos [of
L.C.'s injuries, car, and home]?" (2) "[W]hen were they taken?" and (3) "[D]id he state
that he threw her across the bed?" With the parties' agreement, the court answered: (1)
"There was no evidence as to the photographer." (2) "The photographs were taken on
August 28, 2010." and (3) "No." The second time, the jury requested, "Explain again the
difference in great bodily harm and bodily harm and how intent factors in." With the
parties' agreement, the court responded, "See instruction numbers 11, 7, 8, and 18."
24
Robinson argues that the written format of the responses to the jury's questions
violated his constitutional rights to be present, to have a public trial, and to have an
impartial judge, which constitutes reversible error. However, we affirm because (1)
Robinson abandoned his arguments regarding his right to a public trial and an impartial
judge and (2) assuming Robinson's right to be present was violated, such error was
harmless.
As a preliminary matter, Robinson abandoned his arguments regarding his right to
a public trial and impartial judge because he failed to adequately brief them. Indeed,
"[w]e have repeatedly treated identical arguments, asserting the same claim without
support, as akin to failing to brief the issue." Cooper, 303 Kan. at 768-69. For example,
in State v. Bowen, 299 Kan. 339, 323 P.3d 853 (2014), the defendant likewise argued that
his rights to a public trial and impartial judge were violated when the court sent written
responses to jury questions. However, this court declined to reach the merits because
"[s]imply pressing a point without pertinent authority, or without showing why it is sound
despite a lack of supporting authority, is akin to failing to brief an issue; when appellant
fails to brief an issue, that issue is waived or abandoned." 299 Kan. at 356; see State v.
Verser, 299 Kan. 776, 790-91, 326 P.3d 1046 (2014) (because the defendant cited law
supporting his rights to a public trial and an impartial judge in the abstract but failed to
explain how the written jury communication violated them, the issues were deemed
waived). Therefore, we likewise decline to entertain Robinson's unsupported arguments.
Robinson also claims that the written responses violated K.S.A. 22-3420(3), which
in turn, violated his constitutional right to be present. The State does not contest the
alleged error but argues only that it was harmless. As in State v. Bolze-Sann, 302 Kan.
198, 216, 352 P.3d 511 (2015), "[b]ecause we agree with the State that the error was
harmless, we will also move directly to a harmless error review." Therefore, we will
assume error and apply the constitutional harmless error standard from Chapman v.
25
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987(1967), which we have long summarized as follows:
"[T]he error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of 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).
Several factors are significant in determining whether this kind of assumed error is
harmless beyond a reasonable doubt:
"(1) the overall strength of the case against the defendant; (2) whether either party
objected to the manner in which the judge handled the communication; (3) whether the
judge's communication with the jury 'concerned a critical aspect of the trial or rather
involved an innocuous and insignificant matter,' and also how the communication was
conveyed to the jury; and (4) the ability of any posttrial remedy to 'mitigate the
constitutional error.'" Bolze-Sann, 302 Kan. at 216-17 (quoting State v. McGinnes, 266
Kan. 121, 132-37, 967 P.2d 763 [1998]).
Considering these factors, we conclude the State proved that "there is no
reasonable possibility that the error affected the verdict." Ward, 292 Kan. at 569. The
case against Robinson was strong—the State presented ample testimony from the victim,
doctor, police officer, and even Robinson for the jury to conclude beyond a reasonable
doubt that Robinson broke through L.C.'s door without authority, struck L.C. in the face
(causing substantial injury to her eye), and threw a brick through her car window. Though
conflicting testimony was presented, we will not second-guess the jury's credibility
determination and reasonable decision to believe the corroborating stories of L.C., Dr.
Robbinett, and Officer Moulin over Robinson's testimony. See Daws, 303 Kan. at 789.
26
Furthermore, Robinson did not object to the written communication procedure or
seek any posttrial remedy, even in his motion for a new trial. And, like Bolze-Sann,
Robinson "makes no argument that the content of the district court's response was in any
way prejudicial or inaccurate." 302 Kan. at 217. Indeed, the content of the responses was
"entirely innocuous and insignificant." 302 Kan. at 217. The first set of questions—who
took the photographs, when were the photographs taken, and whether Robinson threw
L.C. across the bed—concerned basic, noncontroversial facts. For the second question,
the parties agreed to refer the jury back to the relevant jury instructions—no "additional
information or information of any import" was supplied. 302 Kan. at 217. The court and
parties discussed each question and agreed upon each answer in Robinson's presence and
with his input.
Accordingly, there is no reasonable possibility that Robinson's presence during the
communication of the responses to the jury would have impacted the outcome of trial.
Therefore, we hold that the State carried its burden to prove that any error was harmless
beyond a reasonable doubt.
8. Cumulative error does not merit reversal.
Finally, Robinson alleges that cumulative error deprived him of a fair trial.
"When faced with a cumulative error claim, this court conducts an unlimited
review of the entire record to determine whether the totality of the circumstances
establishes that the cumulative effect of trial errors substantially prejudiced the defendant
and denied the defendant a fair trial." State v. Stewart, 306 Kan. 237, 265, 393 P.3d 1031(2017). However, "if any of the errors being aggregated are constitutional in nature, the
cumulative error must be harmless beyond a reasonable doubt." State v. Tully, 293 Kan.
176, Syl. ¶ 18, 262 P.3d 314 (2011).
27
We assumed two errors in this case: (1) the district court admitted Robinson's
statement that he told L.C. not to come to court without a limiting instruction, and (2) the
district court provided written responses to the deliberating jury's questions in violation
of Robinson's constitutional right to be present. Because the evidence against Robinson
was strong, any such errors, even when combined, are harmless beyond a reasonable
doubt. See 293 Kan. at 205-06 (considering the strength of the evidence in a cumulative
error analysis).
Affirmed.
28