State v. Chavez

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 115,602
STATE OF KANSAS,
Appellee,
v.
SAMUEL CHAVEZ,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2018 Supp. 21-5202 creates three categories of criminal intent by
describing culpable mental states, classified according to relative degrees, from highest to
lowest, as follows: (1) intentionally; (2) knowingly; and (3) recklessly. But K.S.A. 2018
Supp. 21-5202(c) establishes the legal possibility that the State can prove the culpability
required for the charged crime by proving a higher degree of culpability, e.g., if
recklessness suffices to establish an element of the charged crime, that element is
established by proof the person acted knowingly or intentionally.
2.
Because K.S.A. 2018 Supp. 21-5202(c) permits recklessness to be proved by
establishing the defendant acted knowingly, the presumption under K.S.A. 2018 Supp.
21-5427(c)—that a person who violates a protective order after having been served with
the order acts knowingly—is not internally inconsistent with the recklessness element of
stalking under K.S.A. 2018 Supp. 21-5427(a)(3).
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3.
A protected person under a Protection from Abuse court order (PFA order) does
not have the authority to unilaterally modify the court order by waiving its restraints or
consenting to its violation. Consequently, in a stalking prosecution under K.S.A. 2018
Supp. 21-5427(a)(3), the defendant is not entitled to have the jury instructed on the
principles of an implied waiver.
4.
Pursuant to K.S.A. 2018 Supp. 22-3414(3), a defendant challenging the omission
of an unrequested jury instruction has the burden to establish that the instruction error
was clearly erroneous. Reversibility based upon the omission of an unrequested jury
instruction is subject to unlimited review on appeal, based on the entire record. To
reverse on the omission of an unrequested jury instruction, an appellate court must be
firmly convinced that the omission adversely affected the jury's verdict.
5.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's conviction when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial.
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 4, 2017.
Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed August 23, 2019. Judgment
of the Court of Appeals affirming in part, reversing in part, and vacating in part the district court is
affirmed. Judgment of the district court is affirmed in part, reversed in part, and vacated in part.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.
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Daniel G. Obermeier, assistant district attorney, argued the cause, and Edward J. Bain, assistant
district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the
briefs for appellee.
The opinion of the court was delivered by
JOHNSON, J.: A jury convicted Samuel Chavez of aggravated burglary, stalking,
and criminal threat. On direct appeal, the Court of Appeals reversed Chavez' aggravated
burglary conviction but affirmed his stalking and criminal threat convictions. Chavez
petitioned this court for review and argues that the Court of Appeals erred in:
(1) rejecting his argument that the stalking conviction was legally impossible under
Kansas statutes; (2) failing to address his claim that he was entitled to an instruction and
argument regarding a defense that the victim waived her right to enforce a protection
from abuse order; (3) holding that a limiting instruction is not legally appropriate if prior
crimes or civil wrongs evidence is admitted to prove an actual element of the charged
crime; and (4) refusing to grant him a new trial due to cumulative error. On the issues
before this court, we find no reversible error and affirm the Court of Appeals' decision to
affirm the stalking and criminal threat convictions.
FACTUAL AND PROCEDURAL OVERVIEW
The State charged Chavez with multiple crimes stemming from events that
allegedly took place between Chavez and his estranged wife, Sandra Jaimes-Martinez
(hereinafter Jaimes), on August 31, 2014 and September 1, 2014. The State alleged that
on August 31, Chavez committed aggravated burglary, aggravated assault, stalking,
domestic battery, and criminal damage to property; and that on September 1, Chavez
committed aggravated burglary, stalking, and criminal threat. Chavez' case proceeded to a
jury trial on all charges, but Chavez was only convicted of the crimes that the State
alleged occurred on September 1, 2014.
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At Chavez' jury trial, Jaimes testified that she and Chavez lived together at a
particular residence from 2009 to March 2014, when their relationship ended and Chavez
moved out. The couple had a child together.
In July 2014, Jaimes obtained a "Final Order of Protection from Abuse" (PFA)
listing Jaimes as the plaintiff and Chavez as the defendant. The district judge initialed the
order indicating that "[t]he matter was heard and submitted to the court which finds that
Plaintiff has proved the allegations of abuse by the preponderance of the evidence as
required by K.S.A. 60-3107." The PFA granted Jaimes exclusive possession of the
particular residence. The PFA further provided "[t]he defendant shall not contact the
protected person(s), either directly or indirectly, except as authorized by the court in
paragraph 8(b) of this order." In paragraph 8(b), the district court granted Jaimes sole
temporary legal custody of the couple's child. The PFA was effective until July 16, 2015,
and stated "ONLY THE COURT CAN CHANGE THIS ORDER."
Jaimes and Chavez related different accounts of their relationship following
Chavez' receipt of the PFA. According to Jaimes, between July and September 2014,
Chavez was not allowed at her home. But Chavez would frequently text and call her.
Jaimes said she was scared of Chavez, but she answered some of his calls because he had
previously left her voicemails threatening to come home if she did not answer.
On August 31, 2014, Jaimes said Chavez arrived uninvited at her house and beat
her, threw a beer bottle at her, pushed her onto the sofa, held her down, retrieved some
children's scissors, and threatened to kill her. Jaimes eventually got away from Chavez
and called the police. By that time, Chavez was leaving. As he left, he knocked over a
television sitting on the porch.
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Chavez came back uninvited the next day, knocked strongly on the door, and told
Jaimes to open it or he would kill her. Chavez eventually forced the door open but left
because Jaimes was on the phone with the police.
According to Chavez, he knew about the PFA and therefore knew he should not
have been communicating with Jaimes. But despite the PFA and troubles in their
relationship, he and Jaimes were in regular contact and planned to get back together.
Chavez presented text messages as evidence of consensual communication.
Chavez denied Jaimes' version of events leading to the criminal charges against
him. With respect to September 1, Chavez said that during a phone conversation, Jaimes
agreed to lend Chavez some money and told Chavez to come to her house to get it. When
he arrived, he knocked and Jaimes opened the door. Jaimes said she would give him the
money if she could have his cell phone to erase text messages and phone calls she made
to him. After he refused, Jaimes tried to close the door. Chavez pushed the door with his
arm to keep it from closing, which broke the chain on the door. Jaimes then called the
police and Chavez left.
The district court granted Chavez' request for a directed verdict on the August 31
criminal damage to property charge, and the jury acquitted Chavez on the remaining
August 31 charges. For his convictions on the September 1 charges, the district court
sentenced Chavez to 41 months for aggravated burglary, 6 months for stalking, and 6
months for criminal threat, to run concurrent to each other.
The Court of Appeals reversed Chavez' aggravated burglary conviction. State v.
Chavez, No. 115,602, 2017 WL 3321375, at *4-6 (Kan. App. 2017) (unpublished
opinion). The panel affirmed the remainder of Chavez' convictions, rejecting his
argument that his stalking conviction required the State to prove legally impossible
mental states. 2017 WL 3321375, at *7-8. The panel further held that Chavez was not
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entitled to a K.S.A. 60-455 limiting instruction regarding the PFA because existence of
the PFA was an element of the stalking charge. 2017 WL 3321375, at *8-9. The panel did
not address Chavez' claim that he was entitled to an instruction on implied waiver of a
PFA before it rejected Chavez' cumulative error argument. 2017 WL 3321375, at *9.
Chavez petitioned this court for review of the rulings adverse to him. The State did
not cross-petition on the Court of Appeals' reversal of the aggravated burglary conviction.
STALKING UNDER K.S.A. 2018 SUPP. 21-5427(a)(3)
Preservation
Chavez was charged with stalking under K.S.A. 2018 Supp. 21-5427(a)(3). For the
first time on appeal, Chavez asserted that K.S.A. 2018 Supp. 21-5427 is internally
inconsistent because subsection (a)(3) requires proof of reckless conduct while subsection
(c) creates a presumption the defendant's conduct was knowing. Consequently, he
contended that when the State charges and presents evidence that a person committed
stalking after being served with a protective order, it has the statutory burden to prove the
defendant acted recklessly at the same time he or she is presumed to be acting knowingly,
which he labels as a legal impossibility.
Chavez ultimately argued to the Court of Appeals that his stalking conviction had
to be reversed for insufficient evidence. Specifically, he pointed out that the State did
not—and could not—present sufficient evidence that Chavez simultaneously acted
recklessly and acted knowingly. But the panel reframed the issue as being a challenge to
the charging document. 2017 WL 3321375, at *2-3. We decline to follow that path; we
will address Chavez' sufficiency of the evidence issue, which is not constrained by a
preservation requirement. See State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008)
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("There is no requirement that a criminal defendant challenge the sufficiency of the
evidence before the trial court in order to preserve it for appeal.").
Standard of Review
Chavez' sufficiency of the evidence challenge is predicated on interpretation of the
stalking and culpable mental states statutes. Statutory interpretation is a question of law
over which this court has unlimited review. State v. Ward, 307 Kan. 245, 251, 408 P.3d
954 (2018). Once we have interpreted these statutes, the remaining question is whether
the State presented sufficient evidence to support Chavez' stalking conviction under our
interpretation. See 307 Kan. at 251, 259-60. "'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 fact-finder could have found the defendant
guilty beyond a reasonable doubt.'" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915
(2016).
Analysis
Chavez was charged with stalking under K.S.A. 2018 Supp. 21-5427(a)(3). While
subsection (a)(3) is the focus of Chavez' argument, it is helpful to review all of subsection
(a), along with subsection (c), to understand the culpable mental states at issue in the
stalking statute:
"(a) Stalking is:
(1) Recklessly engaging in a course of conduct targeted at a specific person
which would cause a reasonable person in the circumstances of the targeted person to fear
for such person's safety, or the safety of a member of such person's immediate family and
the targeted person is actually placed in such fear;
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(2) engaging in a course of conduct targeted at a specific person with knowledge
that the course of conduct will place the targeted person in fear for such person's safety or
the safety of a member of such person's immediate family; or
(3) after being served with, or otherwise provided notice of, any protective order
included in K.S.A. 21-3843, prior to its repeal or K.S.A. 2018 Supp. 21-5924, and
amendments thereto, that prohibits contact with a targeted person, recklessly engaging in
at least one act listed in subsection (f)(1) that violates the provisions of the order and
would cause a reasonable person to fear for such person's safety, or the safety of a
member of such person's immediate family and the targeted person is actually placed in
such fear.
....
"(c) For the purposes of this section, a person served with a protective order as
defined by K.S.A. 21-3843, prior to its repeal or K.S.A. 2018 Supp. 21-5924, and
amendments thereto, or a person who engaged in acts which would constitute stalking,
after having been advised by a law enforcement officer, that such person's actions were in
violation of this section, shall be presumed to have acted knowingly as to any like future
act targeted at the specific person or persons named in the order or as advised by the
officer." (Emphases added.) K.S.A. 2018 Supp. 21-5427.
Subsection (f)(1) goes on to define "course of conduct," in relevant part as "two or
more acts over a period of time, however short, which evidence a continuity of purpose."
K.S.A. 2018 Supp. 21-5427(f)(1). Subsection (f)(1) also provides a nonexclusive list of
such acts. Relevant here, the State relied upon an act set out in subsection (f)(1)(B), ". . .
confronting the targeted person . . . ." K.S.A. 2018 Supp. 21-5427(f)(1)(B).
First time offenders under subsections (a)(1) and (a)(2), whether the stalking
conduct was reckless or knowing, are charged with a Class A person misdemeanor.
K.S.A. 2018 Supp. 21-5427(b)(1)-(2). But even first time offenders of subsection (a)(3)
are charged with a felony. K.S.A. 2018 Supp. 21-5427(b)(3).
8
Important to the issue at hand, subsection (c) provides that a person served with a
protective order shall be presumed to have acted knowingly as to any like future acts
targeted at the specific person or persons named in the order. In addition to proving a
violation of a protective order, subsection (a)(3) requires the State to prove that the
prohibited contact would cause a reasonable person to fear for such person's safety or
immediate family member's safety and that the targeted person is actually placed in such
fear.
Chavez contends that subsection (a)(3) applies to a person who, after having been
served with a PFA, commits one or more reckless acts. Yet, K.S.A. 2018 Supp. 21-
5427(c) clearly states that a person committing a stalking act after having been served
with a PFA is acting knowingly. He then points to our opinion in State v. O'Rear, 293
Kan. 892, 270 P.3d 1127 (2012), as establishing that reckless conduct and knowing
conduct are mutually exclusive, so that it is legally impossible for the State to prove a
presumptively knowing act was done recklessly. But Chavez fails to acknowledge that
the alleged crime at issue in O'Rear took place before the 2011 recodification of the
Kansas criminal code, which included a new culpable mental state paradigm that
undermines Chavez' legal impossibility argument.
O'Rear was convicted of reckless aggravated battery. At the time O'Rear shot the
victim, K.S.A. 21-3201 separated criminal intent into two categories: "intentional"
conduct and "reckless" conduct. The term "knowing" was included in the definition of
"intentional" conduct. K.S.A. 21-3201(b) ("Intentional conduct is conduct that is
purposeful and willful and not accidental. As used in this code, the terms 'knowing,'
'willful,' 'purposeful,' and 'on purpose' are included within the term 'intentional.'").
Applying K.S.A. 21-3201, this court held insufficient evidence supported O'Rear's
conviction because O'Rear intentionally shot his victim; a mental state incompatible with
recklessness:
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"The mental state of recklessness is incompatible with a mental state where a person acts
with knowledge, willfulness, or purposefulness, meaning a person cannot act both
intentionally and recklessly with respect to the same act. State v. Shannon, 258 Kan. 425,
429, 905 P.2d 649 (1995). Rather, an act is either intended or not intended; it cannot
simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other."
293 Kan. at 903.
After O'Rear committed the acts in question, the Legislature repealed K.S.A. 21-
3201, and replaced it with K.S.A. 2018 Supp. 21-5202, which created three categories of
criminal intent. K.S.A. 2018 Supp. 21-5202(b) delineates the "[c]ulpable mental states
. . . classified according to relative degrees, from highest to lowest, as follows:
(1) Intentionally; (2) knowingly; [and] (3) recklessly." And, unlike its predecessor K.S.A.
21-3201, K.S.A. 2018 Supp. 21-5202 explicitly provides:
"(c) Proof of a higher degree of culpability than that charged constitutes proof of
the culpability charged. If recklessness suffices to establish an element, that element also
is established if a person acts knowingly or intentionally. If acting knowingly suffices to
establish an element, that element also is established if a person acts intentionally."
K.S.A. 2018 Supp. 21-5202(c) undermines Chavez' legal impossibility argument.
Granted, O'Rear's logic is still valid; it is factually impossible for a person not to intend to
commit an act while simultaneously intending to commit the same act. That logic would
create the statutory inconsistency that Chavez contends exists in the stalking statute, i.e.,
a presumption of knowing conduct under K.S.A. 2018 Supp. 21-5427(c) would negate
the recklessness element of K.S.A. 2018 Supp. 21-5427(a)(3). But the Legislature has
made it legally possible for a person to be guilty of a reckless act by knowingly or
intentionally committing that same act. K.S.A. 2018 Supp. 21-5202(c) ("If recklessness
suffices to establish an element, that element also is established if a person acts
knowingly or intentionally."); see also State v. Louis, 305 Kan. 453, 461-62, 384 P.3d 1
10
(2016) (noting that under K.S.A. 2018 Supp. 21-5202, "[c]onduct designed to cause
death—and, for that matter, conduct the actor knows is reasonably certain to cause
death—is now sufficient to establish the defendant acted recklessly"); State v. Green,
55 Kan. App. 2d 595, 614, 419 P.3d 83 (2018) ("According to K.S.A. 2017 Supp. 21-
5202[a]-[c], the State here satisfied the knowingly element in the knowing aggravated
battery charges by proving the defendant intentionally committed the aggravated
batteries."); 1 LaFave, Substantive Criminal Law, § 5.4(f) n.47 (3d ed. 2018) ("It is thus
quite logical to provide, as does Model Penal Code § 2.02[5], that when recklessness
suffices to establish an element of a crime, 'such element is also established if a person
acts purposely or knowingly.'").
Consequently, the State had four ways by which it could prove the culpable mental
state element of the charged crime. The State could prove that, after Chavez was served
with the PFA order: (1) he recklessly confronted Jaimes; (2) he knowingly confronted
Jaimes; (3) he intentionally confronted Jaimes; or (4) he met the conditions to invoke the
presumption of knowing conduct under K.S.A. 2018 Supp. 21-5427(c).
Given K.S.A. 2018 Supp. 21-5202(c)'s conflation of culpable mental states, one
could make a case for the State having hit for the cycle on that element. But clearly the
State established that Chavez acted knowingly. Chavez conceded knowing about the PFA
order, yet he went to Jaimes' residence two days in a row to effect contact with the
targeted person. Even Chavez' self-serving testimony describing the September 1 events
had him breaking the chain on Jaimes' door in order to prevent her from discontinuing an
unwanted contact. Certainly, viewing the evidence in a light most favorable to the State, a
rational fact-finder could have found beyond a reasonable doubt that Chavez knowingly
confronted Jaimes after being served with a court order not to do so. As we have
discussed above, that knowing conduct satisfies the reckless element of the charged
crime.
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Chavez makes no credible argument about the sufficiency of the evidence on the
other elements of the crime under K.S.A. 2018 Supp. 21-5427(a)(3). Any reasonable
person would have feared for such person's safety when Chavez demanded entry into the
house and forced open the door by breaking the security chain. And it was rational for the
jury to conclude that Jaimes was actually placed in such fear when she responded by
calling the police. Again, viewing the evidence in a light most favorable to the State, a
rational fact-finder could have found all of the elements necessary to determine that
Chavez was guilty of stalking, as charged.
IMPLIED WAIVER OF PROTECTION FROM ABUSE ORDER
In the Court of Appeals, Chavez argued that the district court should have
instructed the jury regarding implied waiver of the right to enforce the PFA and allowed
defense counsel to argue that Jaimes had waived her right to enforce that civil order. He
concedes that he did not request an implied waiver instruction in the district court.
Chavez' petition for review points out that the Court of Appeals did not address this issue
and did not explain why it declined to do so.
Standard of Review
We have a standard paradigm for reviewing jury instruction issues:
"[T]he progression of analysis and corresponding standards of review on appeal are:
(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
12
degree of certainty set forth in Ward." State v. Plummer, 295 Kan. 156, 163, 283 P.3d
202 (2012).
Because Chavez failed to request the implied waiver instruction he now contends
should have been given, the harmless error analysis is not governed by Ward. See K.S.A.
2018 Supp. 22-3414(3) (without a timely objection only clearly erroneous instructions
may be assigned as error on appeal). An error in omitting an unrequested instruction is
not reversible unless the appellate court is firmly convinced that the omission adversely
affected the jury's verdict. State v. Ingham, 308 Kan. 1466, 1477, 430 P.3d 931 (2018).
"Reversibility is subject to unlimited review and is based on the entire record. It is the
defendant's burden to establish clear error under K.S.A. 22-3414(3)." State v. Betancourt,
299 Kan. 131, 135, 322 P.3d 353 (2014).
Analysis
Chavez argues that the district court clearly erred in failing to instruct the jury that
"'waiver is an intentional relinquishment of a known right and intention may be inferred
from conduct.'" Chavez must first establish that this instruction was legally appropriate
for this stalking prosecution.
Chavez argues that protected persons can, through conduct, waive their statutory
right to enforce protection from abuse orders. But Chavez cites no authority—either
controlling or persuasive—to support the notion that a protected person can waive
enforcement of a district court's PFA order, much less to support the contention that a
stalker is entitled to a jury instruction on an implied waiver of such an order. Moreover,
Chavez acknowledges the State's reliance on State v. Branson, 38 Kan. App. 2d 484, 167
P.3d 370 (2007), which undermines his theory of implied waiver. His response is to
assert that Branson was wrongly decided.
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Branson held that consent is not a defense to the crime of violating a protective
order. 38 Kan. App. 2d 484, Syl. ¶ 3. The Court of Appeals first noted that the applicable
statute at that time did not mention consent. 38 Kan. App. 2d at 486; see also K.S.A.
2018 Supp. 21-5924 (same). Then, for multiple reasons, the panel refused to judicially
create an affirmative defense to violating a protective order based on the protected
person's consent to the violation.
The panel began by adopting the district court's suggestion that a consent defense
derogates the issuing court's authority. 38 Kan. App. 2d at 487. Such a defense would
allow a protected person to unilaterally modify or extinguish a court order without the
consent—or even knowledge—of the issuing court.
In that vein, the Branson panel also reasoned that the defendant's actions
implicated the State, as well as the victim. The prosecution of crimes is effected in the
name of the State because criminal acts in general occur "'against the peace and dignity of
the State of Kansas.'" 38 Kan. App. 2d at 487. Indeed, the statute defining the crime of
violating a protective order is codified in Article 38 of the Kansas Statutes Annotated,
which is titled "Crimes Affecting Government Functions." 38 Kan. App. 2d at 487; see
also K.S.A. 2018 Supp. 21-5924 (continuing to house violation of a protective order in
article titled "Crimes Affecting Government Functions").
From a legislative intent perspective, the Branson panel opined that the
Legislature's decision to criminalize a violation of a PFA order reflects a concern for the
public peace, as "[p]ersons granted a PFA order have already proven 'the allegation of
abuse by a preponderance of the evidence' on a prior occasion[,] K.S.A. 60-3106(a)."
38 Kan. App. 2d at 488. And nothing in the text of the statute suggested "legislative
intent to excuse an abuser just because the victim later consents to contact in violation of
the PFA order." 38 Kan. App. 2d at 488. So, the panel reasoned, "[t]he legislature saw fit
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to provide for court supervision over the parties, [which] continues until the PFA order is
modified or dismissed." 38 Kan. App. 2d at 488.
Finally, the panel pointed to Branson's failure to cite to any authority that would
support a holding that consent is a defense to a violation of a Kansas court's protective
order. Moreover, the panel noted that its research had failed to disclose the existence of
any such authority. 38 Kan. App. 2d at 488-89.
Chavez criticizes Branson for being too formalistic about the authority of the court
that issues a PFA order. He asserts the court's authority must be subject to equitable
principles and such doctrines make it clear that a protected person can waive enforcement
of a known right through conduct. The cases Chavez relies upon to support his argument,
however, are simply inapposite. One, First Nat'l Bank of Omaha v. Centennial Park,
48 Kan. App. 2d 714, 303 P.3d 705 (2013), is a mortgage foreclosure case, which is an
equitable action dealing with property. Another, State v. Hargrove, 48 Kan. App. 2d 522,
293 P.3d 787 (2013), discusses how the invited error doctrine should be applied by
appellate courts. A third, In re Interest of J.M.D., 233 Neb. 540, 446 N.W.2d 233 (1989),
is an out-of-state termination of parental rights.
In contrast, out-of-state authority addressing issues akin to that presented here
does not align with Chavez' position. For example, in State v. Dejarlais, 136 Wash. 2d
939, 969 P.2d 90 (1998), the Washington Supreme Court rejected the defendant's
argument that the district court erred in failing to give defense counsel's proposed
instruction, "which would have told the jury a person is not guilty of violating a
protection order if the person protected by that order expressly invited or solicited the
defendant's presence." 136 Wash. 2d at 940. The court held "consent is not a defense to
the charge of violating a domestic violence order for protection." 136 Wash. 2d at 942.
Therefore, the defendant was not entitled to an instruction which inaccurately represented
the law. 136 Wash. 2d at 942, 946. In reaching these conclusions, the court reasoned that
15
the violation of a protection order statute did not address consent; the Legislature did not
affirmatively establish consent as a defense elsewhere in the statute; the statute reflected
the Legislature's belief that there is a public interest in preventing domestic violence; and
the statutory act required notice and a hearing to modify a protection order, whereas
consent would result in de facto modification. 136 Wash. 2d at 943-45; see also In re
Shirley, 28 A.3d 506, 513 (D.C. 2011) (holding "consent of the petitioner does not bar a
conviction of criminal contempt for violation of a [civil protection order]"); People v.
Van Guilder, 29 A.D.3d 1226, 1228, 815 N.Y.S.2d 337 (2006) (holding protected
person's "express invitation to defendant to resume cohabitation—in violation of the
orders of protection—provides no defense" to criminal contempt convictions for violating
protection orders); Hotsenpiller v. Morris, No. 16CA1337, 2017 WL 2981215, at *11
(Colo. App. 2017) (unpublished opinion) (holding consent is not an affirmative defense
to the charge of violation of a civil protection order; while a defendant could argue that
protected person's assent shows that the prosecution did not prove all the elements of a
crime, such a defense is a traverse defense and "the defendant is not entitled to a consent
defense instruction").
Legislatively, we note that K.S.A. 60-3101(b) instructs that the Protection from
Abuse Act "shall be liberally construed to promote the protection of victims of domestic
violence from bodily injury or threats of bodily injury and to facilitate access to judicial
protection for the victims, whether represented by counsel or proceeding pro se." The
protection of domestic violence victims is diluted, not promoted, by allowing an abuser to
avoid prosecution for violating the PFA order by claiming to have perceived that the
victim's conduct manifested a consent to the violation.
Moreover, K.S.A. 2018 Supp. 60-3107(f) specifically provides that "[t]he court
may amend its order or agreement at any time upon motion filed by either party."
(Emphasis added.) That explicit directive is contrary to the suggestion that a party can
unilaterally amend the order without court involvement.
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Perhaps the disconnect in Chavez' implied waiver argument is the suggestion that
a court's protective order is intended to invest the protected person with a statutory right
that is personally exercised at the protected person's discretion, rather than being a court
order that restrains the defendant's actions as a matter of law. The protected person makes
the initial decision to invoke the power of the law by initiating the PFA process. But if
the ensuing PFA order is violated, the victim does not exercise any personal right. Rather,
the State enforces the court-ordered restraints through law enforcement officers,
prosecutors, and ultimately the judicial system.
In short, the protected person under a PFA order does not have the authority to
unilaterally modify the court order by waiving its restraints or consenting to its violation.
Consequently, in a prosecution under K.S.A. 2018 Supp. 21-5427(a)(3), the defendant is
not entitled to a jury instruction on the principles of implied waiver of a PFA. Therefore,
Chavez' implied waiver jury instruction was not legally appropriate and its omission was
not error, much less clear error.
LIMITING INSTRUCTION
Chavez next argues the district court erred in failing to give the jury a K.S.A. 2018
Supp. 60-455 limiting instruction concerning the PFA.
Standard of Review
Chavez concedes he did not request the instruction that he now argues the district
court erred in failing to provide; therefore, as in the previous issue, he must prove that
failure to provide a limiting instruction was clearly erroneous. See also State v. Breeden,
297 Kan. 567, 582, 304 P.3d 660 (2013) (failure to object to the admission of K.S.A.
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2012 Supp. 60-455[b] evidence does not waive the right to raise on appeal the issue of
whether the failure to give a limiting instruction was clearly erroneous).
Analysis
Under K.S.A. 2018 Supp. 60-455, evidence of a prior crime or civil wrong is
generally inadmissible solely to show propensity in criminal cases not involving a sex
crime. When such evidence is admitted for other purposes, a limiting instruction is
required. See State v. Sims, 308 Kan. 1488, 1505, 431 P.3d 288 (2018), petition for cert.
filed April 29, 2019.
Chavez concedes that the PFA was admissible because the State was required to
prove the existence of a valid protective order in order to convict Chavez of stalking. But
Chavez argues it is equally apparent that a limiting instruction was appropriate because
the evidence constituted evidence of prior crimes or civil wrongs under K.S.A. 2018
Supp. 60-455.
The Court of Appeals disagreed, siding with the State's argument that Chavez was
not entitled to a limiting instruction because the existence of the PFA was an element of
Chavez' crime of stalking. Chavez, 2017 WL 3321375, at *9. The panel relied on
Charles, where this court held "'K.S.A. 60-455 does not prohibit the admission of
evidence regarding other crimes and civil wrongs if the evidence relates to acts
committed as part of the events surrounding the crimes or civil wrongs at issue in the
trial.'" State v. Charles, 304 Kan. 158, 175, 372 P.3d 1109 (2016), abrogated on other
grounds by State v. Huey, 306 Kan. 1005, 399 P.3d 211 (2017); see also State v. Butler,
307 Kan. 831, 861-62, 416 P.3d 116 (2018) (rejecting request for a limiting instruction
for acts deemed to be part of the charged crime).
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Chavez argues that the prior crimes/civil wrongs evidence in this case did not
involve acts that were closely related to the charged crimes. Instead, he argues the prior
acts at issue in the PFA occurred on another specified occasion and are entirely unrelated
to the charged crimes, except for how they could prove an element of stalking. Chavez
therefore argues that a limiting instruction was required to ensure that the jury did not use
the prior acts evidence for an improper purpose.
Recently, in Sims, we considered a similar circumstance. Sims complained that the
district court failed to sua sponte provide a limiting instruction on the evidence contained
in the stipulation to a prior felony conviction Sims gave to satisfy an element of the
charged crime. We recognized that caselaw finding no requirement for a limiting
instruction for prior acts deemed to be part of the charged crime predated our decision in
State v. Gunby, 282 Kan. 39, 49, 144 P.3d 647 (2006). Gunby held that the "'lines of
cases allowing admission of [evidence of other crimes and civil wrongs] independent of
K.S.A. 60-455 are contrary to long-held common law and the text of the statute itself.'"
Sims, 308 Kan. at 1506 (quoting Gunby, 282 Kan. at 49). Sims assumed without deciding
that Gunby would require a limiting instruction when a defendant stipulates to a prior
crime even though the stipulation was proof of an element in the current prosecution. But
Sims declined to reverse because the defense had not established clear error.
Similar to our approach in Sims, we will assume that the PFA in this case falls
within the ambit of the K.S.A. 2018 Supp. 60-455 requirement for a limiting instruction.
Nevertheless, Chavez has not established that the absence of a limiting instruction would
have been a game changer in this case, i.e., was clearly erroneous.
Chavez points out that the PFA states "Plaintiff has proved the allegations of abuse
by the preponderance of the evidence." But the PFA did not detail the allegations of
abuse, and there was scant trial testimony regarding the specific abusive acts that
supported the PFA. In fact, the prosecutor directed Jaimes not to discuss why she sought
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the PFA, and when Jaimes testified that she obtained the PFA "because [Chavez] went to
the house one time and he tried to get in from the window," the prosecutor again directed
Jaimes not to discuss the details of the PFA. The specific events leading Jaimes to obtain
the order were not discussed further, albeit Jaimes did testify generally without objection
that Chavez was "always violent" and threatened to come to her house if she did not
answer her phone.
Under the totality of the circumstances, the impact of the PFA and the testimony
regarding the events leading to its issuance were de minimus in light of the evidence
presented to establish the charged crimes. The jury's split decision indicates that it
carefully considered the evidence presented on the charged crimes without being unduly
influenced by the prior incidents upon which the PFA was issued. In sum, Chavez has
failed to carry his burden to firmly convince us that the giving of a limiting instruction
with respect to the PFA would have affected the jury's verdict.
CUMULATIVE ERROR
Finally, Chavez argues cumulative error denied him a fair trial. "'Cumulative trial
errors, when considered collectively, may require reversal of the defendant's conviction
when the totality of circumstances substantially prejudiced the defendant and denied the
defendant a fair trial.'" State v. McLinn, 307 Kan. 307, 334, 409 P.3d 1 (2018). "By
necessity, if this court must apply a totality of the circumstances test, we must review the
entire record and engage in an unlimited review." State v. Cruz, 297 Kan. 1048, 1074,
307 P.3d 199 (2013).
The Court of Appeals rejected Chavez' cumulative error challenge, reasoning
Chavez had only established one error—that the district court lacked subject matter
jurisdiction over Chavez' aggravated burglary conviction because Chavez was charged
with acts that could have never resulted in the commission of a crime under Kansas law.
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Chavez, 2017 WL 3321375, at *6, 9. Because the State did not cross-petition, we assume
this error stands. But on review we have assumed without deciding that it was error for
the district court to fail to give a limiting instruction on K.S.A. 2018 Supp. 60-455
evidence.
The error found by the Court of Appeals led to a reversal of Chavez' aggravated
burglary conviction. Chavez does not explain how that corrected error "transcends the
effect of . . . individual error[]" and taints the other convictions. Cruz, 297 Kan. at 1074.
Nevertheless, combining that error with the assumed K.S.A. 2018 Supp. 60-455 limiting
instruction error does not create the substantial prejudice that would deny Chavez his
right to a fair trial. Chavez has failed to establish reversible cumulative error.
CONCLUSION
The portion of the Court of Appeals' decision reversing Chavez' aggravated
burglary conviction stands, as this issue is not before our court. The portion of the Court
of Appeals' decision affirming Chavez' convictions for stalking and criminal threat is
affirmed.
Affirmed.
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