State v. Charles

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 105,148
STATE OF KANSAS,
Appellee,
v.
LEONARD D. CHARLES, SR.,
Appellant.
SYLLABUS BY THE COURT
1.
The giving of a lesser included offense instruction that is overbroad when
compared with the State's charged theory of the case is error. In this case, however, the
overbroad jury instruction did not qualify as clear and therefore reversible error under
K.S.A. 22-3414(3).
2.
Reckless aggravated battery is not an alternative means crime.
3.
On the record in this case, the evidence in support of defendant's conviction for
reckless aggravated battery was sufficient.
4.
A prosecutor's repeated use of the phrase "I think" or its equivalent or substantive
opposites is discouraged as susceptible to interpretation as expression of improper and
irrelevant opinion on the quantity and quality of evidence. However, in this case, the use
1
of the phrase appears to have been a verbal tic or time filler and did not fall outside the
wide latitude given the prosecutor in discussing the evidence during closing argument.
5.
Evidence of defendant's other behavior during the time and at the place of
commission of a charged crime does not qualify as other crime evidence subject to
K.S.A. 60-455, and no limiting instruction on the evidence of the other behavior is
needed.
6.
The cumulative error doctrine is inapplicable when a single error is identified on
appeal.
7.
The registration requirement for violent offenders under the 2009 version of the
Kansas Offender Registration Act imposed upon the defendant in this case qualified as
punishment under the Due Process Clause. It could not constitutionally be imposed based
on judicial, rather than jury, factfinding.
Review of the judgment of the Court of Appeals in an unpublished opinion filed June 15, 2012.
Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed April 22, 2016.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part.
Judgment of the district court is affirmed in part and reversed in part.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, former
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
2
Per Curiam: This is the direct appeal of defendant Leonard D. Charles, Sr., from
his jury convictions and sentence for reckless aggravated battery, felony criminal damage
to property, and criminal threat based on a series of incidents that occurred on Christmas
2009. The district judge sentenced Charles to 34 months' imprisonment and required him
to register as a violent offender under the Kansas Offender Registration Act (KORA).
On appeal to our Court of Appeals, Charles raised six issues challenging his
convictions and the registration requirement. The Court of Appeals affirmed. Charles
raises the same six issues on petition for review to this court. For the reasons detailed in
the discussion section below, we affirm his convictions and vacate his registration
requirement.
FACTUAL AND PROCEDURAL BACKGROUND
Late in the evening on Christmas 2009, Charles drove his 1995 Nissan Pathfinder
4x4 SUV into a Family Video parking lot in Wichita. Charles was on his way to Kansas
City to see his mother because he had heard from his brother that she was scheduled to
have open heart surgery soon. Charles would eventually testify that he had become lost
and had mistaken the Family Video for a gas station.
Autumn McDowell had just finished returning a video at the store when her car
became stuck in snow near the parking lot exit. As Charles pulled into the parking lot, he
saw McDowell in her vehicle. McDowell and Charles would later provide different
accounts of the nature of their subsequent interaction.
According to McDowell, when Charles pulled up, he asked if she needed
assistance. McDowell told him that she was going to try to rock her car back and forth to
3
free it. During this brief conversation, a driver in a car that had been behind McDowell
began to honk, seemingly unaware that McDowell's car was stuck. Charles got out of his
SUV, approached the third vehicle, and started yelling at the driver. The third vehicle
then left. Charles reentered his SUV and positioned it behind McDowell's car. At that
point, McDowell was able to rock her car free, and she drove out of the parking lot.
When McDowell looked into her rearview mirror, she saw that Charles was following her
in his SUV. McDowell sped up to 60 miles per hour "to get away from him," before she
turned into a residential neighborhood.
Once in the neighborhood, McDowell drove evasively, "going from street to
street, in and out, just trying to lose [him]." At one point, McDowell turned off her
headlights to avoid Charles' detection, but she quickly turned them back on because she
could not see. Minutes after the pursuit began, Charles rear-ended McDowell's car,
sending both vehicles over a curb. McDowell was "really scared," "felt threatened," and
"was in a panic 'cause I didn't know what he wanted with me, why he was following me."
After the collision, McDowell believed Charles' SUV was stuck on the curb. She then
drove home and called 911. McDowell suffered whiplash in the collision, and her car
sustained nearly $4,000 in damage.
According to Charles, he entered the Family Video parking lot, saw McDowell in
her car, lowered his window, and asked her if she could give him directions. McDowell
agreed to do so. Charles then got out of his SUV and showed her a piece of paper that had
written directions on it. McDowell apparently told Charles how he could return to his
route and get to Kansas City. At that point, McDowell told Charles that her car was stuck,
and he agreed to help her by pushing her car with his SUV. Charles also said that the two
talked about exchanging phone numbers and that McDowell directed him to follow her to
her parents' house in a nearby neighborhood.
4
Charles pulled up behind McDowell and used his SUV to push her car free of the
snow. He then stepped out of his SUV to inspect it for damage and watched as McDowell
"mashed the gas" and sped away. Charles got back into his vehicle and drove in the
direction he saw McDowell drive away, and he eventually followed her into a residential
neighborhood.
Charles said that he did not see McDowell's car when he entered the
neighborhood. He did, however, see a car with its lights off, which appeared to be
parking. Figuring the parking car contained McDowell, Charles sped up to see better.
When his SUV's headlights illuminated the parking car's interior, he saw McDowell, "and
she had this surprised look on her face like, [']Oh, my God, he found me.[']"
According to Charles, McDowell then turned her headlights back on and "sped off
again." Charles followed. As the pursuit continued, Charles began to question whether
McDowell did in fact want him to follow her. "The wheels start[ed] clicking," he said,
and, "I began to think like is she—is she running?"
Nevertheless, Charles said he wanted to make contact with McDowell to
determine whether she did not want him to follow her. Shortly thereafter, McDowell's
vehicle began "fishtailing and sliding"; Charles slammed on his brakes, causing his SUV
to skid before colliding with McDowell's vehicle. Charles characterized the accident as
unavoidable.
After the collision, Charles returned to Family Video, where Rachel Northrup and
Kailey Westemeir were working inside. Both Northrup and Westemeir testified at
Charles' trial.
5
When Charles entered Family Video, Northrup was helping customers from
behind the counter while Westemeir checked inventory at the back of the store. Northrup
did not see Charles enter the store, but she noticed him when he approached the counter.
Charles was "pacing and raising his voice" and generally looked frustrated and upset.
Charles continued to get louder, saying there was something wrong with his SUV. He
then said that, if he could not get to Kansas City to see his mother before she died, he was
going to come back to the store and kill someone.
Charles then came behind the counter and approached Northrup face-to-face,
making similar statements about killing someone if he was unable to get to Kansas City
before his mother died. At some point, Charles "took a big swipe" and knocked over a
computer monitor that had been attached to the counter. He also knocked over a gift card
display and a cup of pens and pencils that were on the counter, and he knocked several
videos off the store's shelves.
Westemeir heard the commotion in the front of the store and came toward the
counter from the back. Charles approached her and began yelling about "some girl who
messed up his car." Westemeir eventually called 911. While she was on the phone with
the 911 operator, Charles told her that if he could not get to Kansas City to see his dying
mother, "he was gonna come back and kill us."
When police arrived at Family Video, they arrested Charles.
As a result of all of these events, the State charged Charles with three counts:
intentional aggravated battery, alleging Charles "unlawfully and intentionally cause[d]
bodily harm to another person . . . with a deadly weapon, to-wit: 1995 Nissan
Pathfinder"; criminal damage of McDowell's car; and criminal threat toward Westemeir.
6
At trial, in addition to giving an intentional aggravated battery instruction telling
the jury it could convict if Charles caused bodily harm to McDowell with his SUV, the
district judge informed the jury of the circumstances under which it could convict Charles
of reckless aggravated battery as a lesser included offense. Charles did not object to the
giving of the lesser included offense instruction, which read:
"If you do not agree that the defendant is guilty of aggravated battery intentional, you
should then consider the lesser included offense of aggravated battery reckless.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant recklessly caused bodily harm to another person with a
deadly weapon, to-wit: a car, or in any manner whereby great bodily harm,
disfigurement or death can be inflicted; and
"2. That this act occurred on or about the 25th day of December, 2009, in
Sedgwick County, Kansas." (Emphasis added.)
During the first portion of the State's closing argument, the prosecutor prefaced
many of his statements with the phrase "I think" or similar, personalized wording:
• Discussing Charles' statement that he was going to kill someone, "I don't
believe that there's anything that you can consider the word 'kill' to mean
other than to inflict physical harm to another person. I think that's the only
way you can look at what those words mean."
• Discussing certain elements of criminal threat, "I think you're not gonna
have a problem. . . . I don't think you have to worry yourselves with the rest
of the elements. I think the defendant himself told you, I committed this
crime."
7
• Discussing aggravated battery, "I think the evidence shows you beyond a
reasonable doubt . . . 'the defendant intentionally caused bodily harm to
another person with a deadly weapon, to wit: a car.' . . . I think the car is a
deadly weapon in this—in this case."
• Discussing the bodily harm element of aggravated battery, "[Bodily harm]
doesn't have to be great, only bodily. I would say her neck and her back are
her body. I think that's evident. She suffered harm."
• Discussing McDowell's reaction to Charles following her, "I don't think she
was overreacting. I think she had every right to be scared from the minute
she left Family Video."
• Discussing Charles' testimony that McDowell provided him directions, "I
don't think so. I think what happened is—is he's and that's what the
evidence shows is that he continued to pursue her 'cause he's gonna hook up
with her."
• Discussing Charles' testimony about second-guessing whether McDowell
wanted him to follow her, "Yeah, ladies and gentlemen, I think that was
pretty clear from her testimony. She had absolutely no want or will for
him."
• Discussing whether Charles' vehicle could be a deadly weapon, "His Nissan
Pathfinder SUV, given the fact he thought he himself may have killed her,
I'd say that that's a deadly weapon."
8
• Wrapping up, "I don't think there's really anything else to explain to you. I
think that his evidence he showed you yesterday told you everything you
needed to know about what he was trying to do."
During the rebuttal portion of the State's closing argument, the prosecutor again
employed at least one personalized expression. Discussing a defense contention that the
roads were snow-covered and slippery, he said: "Now, defendant would lead you to
believe that the pieces to the vehicles just coincidentally landed on the only two dry
pieces of the road. I doubt it."
The jury found Charles guilty of the lesser included offense of reckless aggravated
battery, criminal damage to property, and criminal threat. In addition to receiving a 34-
month prison sentence, Charles was ordered to register as a violent offender because the
district judge found that he used a deadly weapon in the commission of a felony.
Charles asserts on appeal that (1) the lesser included offense instruction for
reckless aggravated battery was impermissibly broader than the greater offense charged;
(2) the reckless aggravated battery instruction allowed for a conviction under alternative
means, and the State failed to prove each means beyond a reasonable doubt; (3) the
district judge erred by failing to provide a limiting instruction on statements Charles
made to Northrup; (4) the prosecutor committed misconduct by injecting his personal
opinion of the evidence into the proceedings; (5) cumulative error denied Charles a fair
trial; and (6) the district judge erred by requiring Charles to register under the Kansas
Offender Registration Act.
9
DISCUSSION
Breadth of Lesser Included Instruction
Charles' first claim on appeal centers on the lesser included reckless aggravated
battery instruction, which permitted conviction if the jury found beyond a reasonable
doubt that Charles recklessly caused bodily harm to McDowell with his SUV or "in any
manner whereby great bodily harm, disfigurement or death can be inflicted." The
charging document had accused Charles only of the greater offense of intentionally
causing bodily harm to McDowell with his SUV, and the jury instruction on the greater
charge mirrored the more limited language.
Because Charles did not object at trial to the giving of the reckless aggravated
battery instruction as worded to include the "in any manner" language, we look to K.S.A.
22-3414(3)'s clear error standard and to our caselaw to supply the template for our review
of this issue.
When analyzing jury instruction issues, we follow a three-step process:
"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
"Our first and third step are interrelated in that whether a party has
preserved a jury instruction issue will affect our reversibility inquiry at the third
step." State v. Bolze-Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015).
10
At the second step of determining whether there was any error at all, we consider
whether the subject instruction was legally and factually appropriate. See State v. Barber,
302 Kan. 367, 377, 353 P.3d 1108 (2015). A reviewing court "'should use an unlimited
review to determine whether the instruction was legally appropriate.'" State v. Brownlee,
302 Kan. 491, 511, 354 P.3d 525 (2015) (quoting State v. Plummer, 295 Kan. 156, Syl. ¶
1, 283 P.3d 202 [2012]). When analyzing whether the instruction is factually appropriate,
"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." Brownlee, 302 Kan. at 511 (quoting Plummer, 295 Kan. 156, Syl. ¶ 1).
If the reviewing court determines that the district judge erred in giving or failing to
give a challenged instruction, it then moves to reversibility, which in this case is whether
the challenged instruction was clearly erroneous. To determine if an instruction is clearly
erroneous, "the court assesses whether it is firmly convinced that the jury would have
reached a different verdict had the instruction error not occurred. The party claiming a
clearly erroneous instruction maintains the burden to establish the degree of prejudice
necessary for reversal." Williams, 295 Kan. 506, Syl. ¶ 5.
"'A jury instruction on the elements of a crime that is broader than the complaint
charging the crime is erroneous.'" State v. McClelland, 301 Kan. 815, 828, 347 P.3d 211
(2015) (quoting State v. Trautloff, 289 Kan. 793, Syl. ¶ 4, 217 P.3d 15 [2009] [wording of
complaint binding on State in pursuing its theory of case before a jury]); see State v.
Haberlein, 296 Kan. 195, 210, 290 P.3d 640 (2012) (State bound by complaint's "version
of offense," "theory" of case at trial). "An overbroad instruction is erroneous because the
charging instrument sets out the specific offense alleged to inform the defendant of the
nature of the accusation, to permit the development of a defense to meet that accusation,
and to protect against conviction based on facts not contemplated in the accusation."
State v. Hart, 297 Kan. 494, 508, 301 P.3d 1279 (2013) (citing Trautloff, 289 Kan. at
11
802-03); see also United States v. Miller, 471 U.S. 130, 144, 105 S. Ct. 1811, 85 L. Ed.
2d 99 (1985) (additions to State's indictment theory by way of jury instruction
impermissible under modern criminal law).
In Hart, we concluded that a jury instruction on the elements of indecent liberties
with a child was overbroad because the complaint alleged defendant Randy Dean Hart
committed the subject crimes with an intent to satisfy his own sexual desires, while the
elements instruction provided that the State could get a conviction if the crimes were
committed with an intent to arouse or satisfy the sexual desires of the victim, the
defendant, or both. See 297 Kan. at 501. Accordingly, the instruction was neither legally
nor factually appropriate and thus was erroneous. See 297 Kan. at 508. In this case, the
Court of Appeals reached the same conclusion about the lesser included instruction. See
State v. Charles, No. 105,148, 2012 WL 2325877, at *3 (Kan. App. 2012) (unpublished
opinion). And we agree on this point.
We acknowledge that this case differs from Hart because the elements instruction
under examination for impermissible overbreadth in that case defined the charged crime.
Here we are concerned with the elements instruction for a lesser included crime. But this
is a distinction without a legally significant difference. The element that made the
aggravated battery lesser here—that is, a severity level 8 rather than a severity level 7—
was the lesser scienter or mens rea of recklessness instead of intentional conduct. A
Kansas criminal defendant is always on notice that the State may seek or the district
judge be otherwise compelled to give a lesser included instruction involving the same
conduct or actus reus described in the complaint but driven by a less culpable or more
expansive mental state easier for the State to prove. See State v. Ramirez, 299 Kan. 224,
227-28, 328 P.3d 1075 (2014) (conviction of defendant on charge not contained in
complaint clear violation of due process; exception allowed when district judge gives
lesser included instruction, instruction on lesser degree of offense); K.S.A. 22-3414
12
(statute requires district judge to instruct on crime charged, any lesser included crime
when "there is some evidence which would reasonably justify a conviction of some lesser
included crime"). Charles does not challenge the giving of the reckless aggravated battery
instruction because of its more expansive recklessness mental state. He challenges it only
because of the increased breadth of the actus reus, when compared with the actus reus
specified in the charged offense.
Courts in several of our sister states have recognized that a lesser included offense
instruction may not be a vehicle for broadening the State's theory of the case. See
Andrews v. State, 679 So. 2d 859, 859 (Fla. Dist. App. 1996) (defendant convicted of
aggravated battery, lesser included offense of charged attempted first-degree murder;
information alleged defendant stabbed victim with knife; lesser included offense
instruction allowed conviction for use of deadly weapon or for causing great bodily harm;
great bodily harm theory unsupported by charging document); People v. Adams, 202
Mich. App. 385, 392, 509 N.W.2d 530 (1993) (notice to defendant inadequate when State
attempts to add lesser included offense instruction on crime dissimilar to charged
offense); People v. Russell, 147 A.D.2d 280, 283, 543 N.Y.S.2d 54 (1989) ("so-called
lesser included offense" represented "seismic shift" in prosecution's theory; defendant
denied due process).
The Texas Court of Appeals' opinion in Castillo v. State, 7 S.W.3d 253 (Tex. App.
1999), is particularly illustrative of the problem here.
In Castillo, the State charged defendant Julian Antonio Castillo with "intentionally
and knowingly caus[ing] serious bodily injury to [a child victim] by then and there
striking the child with a deadly weapon, to wit: the defendant's hands or by striking the
child's head against a deadly weapon, to wit: a wall or a floor." 7 S.W.3d at 255. At the
conclusion of the guilt stage of trial, the defense sought a jury instruction on the lesser
13
included offenses of recklessly causing injury to a child. The trial judge instructed the
jury that it could find Castillo guilty of the lesser included offense if it determined that he
"recklessly engage[d] in conduct that caused serious bodily injury to [child victim] by
then and there shaking or striking the [victim] with a deadly weapon, to wit: the
defendant's hands, or by striking the child's head with a deadly weapon, to wit: a wall or
floor." 7 S.W.3d at 257. The jury convicted Castillo of recklessly causing injury to the
child.
The appellate court reversed Castillo's conviction because the lesser included
offense instruction "submitted the theory of 'shaking' in the disjunctive as an additional
manner and means of injuring the child to those means alleged in the indictment." 7
S.W.3d at 257. Although the State had not been required to "plead the precise way in
which [Castillo] caused serious bodily injury to the child, . . . [b]y including a more
specific description, the State undertook the burden of proving the specific allegations to
obtain a conviction. [Citation omitted.]" 7 S.W.3d at 255.
We are confronted with exactly the same situation. The State was not required to
be as specific as it was in its aggravated battery charge against Charles. It need not have
alleged that Charles committed severity level 7 intentional aggravated battery only by
causing bodily harm to McDowell by using his SUV as a deadly weapon. But, having
chosen that path, it assumed the burden of proving the elements of exactly it or its lesser
included reckless version beyond a reasonable doubt. The district judge erred by
expanding the lesser included instruction so that Charles could be convicted if the jury
found beyond a reasonable doubt that he inflicted bodily harm on McDowell "in any
manner whereby great bodily harm, disfigurement or death can be inflicted." The lesser
included offense instruction was neither factually nor legally appropriate.
14
Having determined that there was instruction error, we must next determine
whether it was "clear" and therefore reversible, standing alone. See K.S.A. 22-3414(3);
Hart, 297 Kan. at 508 (citing State v. Trujillo, 296 Kan. 625, 630-31, 294 P.3d 281
[2013] [in order for overbroad instruction to qualify as "clearly" erroneous, court must be
firmly convinced that jury would have reached different verdict had instruction error not
occurred]).
In his petition for review, Charles asked this court to "grant review and clarify that
where, as here, an instruction is overbroad and allows a jury to convict a defendant based
on uncharged conduct, an appellate court should reverse so long as there [] is a
'possibility' that [jury reliance on the uncharged theory] cannot be ruled out." Although
language to this effect may appear in Trautloff, see 289 Kan. at 802, it is not the correct
governing standard under Trujillo or here. Again, because Charles failed to object to the
wording of the reckless aggravated battery instruction, he must demonstrate that the error
on the overbroad instruction was clear under K.S.A. 22-3414(3).
Evidently because neither the Court of Appeals brief nor the petition for review
filed by Charles fully explained why Charles deserved reversal on this instructional error
standing alone, his counsel attempted to flesh out his position at oral argument before this
court. We understood counsel to assert that the definition of "deadly weapon" as an
"instrument which, from the manner in which it is used, is calculated or likely to produce
death or serious bodily injury," see PIK Crim. 4th 54.310; State v. Colbert, 244 Kan. 422,
426, 769 P.2d 1168 (1989), makes it logically inconsistent with the concept of
recklessness. Further, if Charles' conviction on severity level 8 aggravated battery would
have been legally impermissible because of this logical inconsistency, then the jury must
have relied upon the overbroad and impermissible "in any manner" theory. If so, counsel
argued, then any standard of reversibility has been met.
15
In Hart, we discussed our earlier decisions in Trautloff and State v. Wade, 284
Kan. 527, 161 P.3d 704 (2007):
"In Trautloff, decided before our recent clarification of the clearly erroneous
standard in Trujillo, we reversed one of the defendant's convictions for sexual
exploitation of a child because of overbreadth of a jury instruction on the crime's
elements. The State had charged Melvin Trautloff with 'displaying' an offending
photograph or video of a child, but the instruction allowed the jury to convict Trautloff of
'displaying, procuring or producing' such a photograph or video. At Trautloff's trial, the
evidence of 'procuring' or 'producing' was direct and overwhelming, while the evidence
of 'displaying' was minimal and circumstantial. We concluded that, under those
circumstances, Trautloff's substantial rights had been prejudiced by the instruction.
Trautloff, 289 Kan. at 802-03.
"Likewise, in State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007), the State
charged Morgan Wade with aggravated burglary without alleging the intended felony
upon which the charge was predicated. It cured this defect by advising the court and
defense that it intended to rely upon first-degree premeditated murder as the underlying
felony. At trial, however, after the defendant had testified, the jury was instructed that the
underlying felony could be premeditated murder or aggravated assault. On appeal, this
court concluded that the broader jury instruction prejudiced Wade because the State had
proceeded in its case-in-chief only on the theory that Wade intended to commit
premeditated murder; the alternate theory that he lacked premeditated intent to kill and
meant only to frighten surfaced only after he had essentially admitted during his
testimony that he committed an aggravated assault. Wade, 284 Kan. at 537." Hart, 297
Kan. at 508-09.
We distinguished Trautloff and Wade from the situation before us in Hart.
In Hart, we detected no reversibly prejudicial lack of notice to the defense about
the accusation to be defended. In that aggravated indecent liberties case,
16
"[t]here was no evidence presented by either side that would suggest Hart's conduct was
responsive to the victims' desires. Hart was not lured into presenting a defense that sealed
a conviction on an alternate State theory that the girls had initiated or provoked the sexual
contact. Rather, he generally denied that any sexual contact took place, and his testimony
merely suggested motives for the victims or his ex-wife to fabricate the allegations
against him. This was not, as in Wade's case, 'trial by ambush,' Wade, 284 Kan. at 541,
and the error in the instruction does not qualify as clearly erroneous or require reversal."
Hart, 297 Kan. 509-10.
In this case, we disagree with the underlying premise of defense counsel's
reversibility argument. This court's use of the word "calculated" in the definition of
"deadly weapon" does not mean a jury in an aggravated battery case involving an
allegation of use of a deadly weapon must answer a subjective question: Did the
defendant actually believe that he or she was using an instrument in a way that made that
instrument deadly? Rather, the jury must answer an objective question: Would a
reasonable person in defendant's circumstances have believed that? Put another way, was
it likely the instrument would be deadly, when used in the way and at the time and place
it was used by defendant? See State v. Whittington, 260 Kan. 873, 878, 926 P.2d 237
(1996).
In our view, these objective questions are logically consistent, not inconsistent,
with the concept of recklessness as the required mens rea for severity level 8 aggravated
battery. Reckless conduct is "conduct done under circumstances that show a realization of
the imminence of danger to the person of another and a conscious and unjustifiable
disregard of that danger." See K.S.A. 21-3201(c). Again, an objective standard is
employed. If a defendant engages in behavior that is a gross deviation from the standard
of care a reasonable person would employ in like circumstances, then the necessary
disregard is demonstrated. See PIK Crim. 4th 52.010.
17
We conclude that this case is closer to Hart than to Trautloff and Wade. Charles
was not misled by the original narrow charge into a failure to challenge the State's case or
into commitment to a losing defense strategy. His counsel's argument that the jury must
have relied on the impermissible, overbroad theory of the lesser included offense is
unconvincing, given the objective nature of the definitions of deadly weapon and
recklessness. Charles has not met his burden to demonstrate that he is entitled to reversal
of his aggravated battery conviction on this issue, standing alone. The error does not
qualify as clear. See Williams, 295 Kan. 506, Syl. ¶ 5.
Sufficiency of the Evidence on Asserted Alternative Means
Charles argues that reckless aggravated battery is an alternative means crime and
that the State failed to prove either alleged means.
"Issues of statutory interpretation and construction, including issues of whether a
statute creates alternative means, raise questions of law reviewable de novo on appeal."
State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012).
In State v. Ultreras, 296 Kan. 828, 253-54, 295 P.3d 1020 (2013), we held that
K.S.A. 21-3414(a)(2)(B) ("recklessly causing bodily harm to another person with a
deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can
be inflicted"), does not outline an alternative means crime. We therefore reject Charles'
argument insofar as it relies on classifying aggravated battery as an alternative means
crime.
That being said, we must still address Charles' assertion that the State failed to
prove either of the alleged alternatives. This is equivalent to a challenge to the sufficiency
of the evidence to support the conviction.
18
"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.
Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). An appellate court does not reweigh
evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v.
McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011)." State v. McBroom, 299 Kan.
731, 754, 325 P.3d 1174 (2014).
In this case, testimony established that Charles followed McDowell closely while
traveling at high speeds through a residential neighborhood. Charles admitted that the
wintry road conditions were far from ideal, and it is undisputed that the collision between
his SUV and McDowell's car caused thousands of dollars in property damage and injured
McDowell. From the manner in which Charles was driving his vehicle, a reasonable jury
could have found either that the SUV qualified as a deadly weapon or that Charles' use of
it was likely to produce death or serious injury. See Whittington, 260 Kan. at 878-79
(automobile may be used as deadly weapon); State v. Bailey, 223 Kan. 178, 184, 573
P.2d 590 (1977) (automobile constituted deadly weapon); State v. Bradford, 27 Kan.
App. 2d 597, 600, 3 P.3d 104 (2000) (automobile used in deadly manner "could very well
have been a deadly weapon" supporting conviction for reckless aggravated battery).
There was sufficient evidence to support Charles' conviction for reckless aggravated
battery.
Prosecutorial Misconduct
Charles next contends that he was deprived of a fair trial by the prosecutor's
repeated statements of personal opinion on the quality and quantity of the State's
19
evidence. Appellate review of a prosecutorial misconduct claim based on improper
comments requires a two-step analysis.
"First, an appellate court decides whether the comments at issue were outside the wide
latitude a prosecutor is allowed, e.g., when discussing evidence. If so, there was
misconduct. Second, if misconduct is found, an appellate court determines whether the
improper comments prejudiced the jury against the defendant and denied the defendant a
fair trial." State v. Lewis, 299 Kan. 828, 848, 326 P.3d 387 (2014) (citing State v. Bridges,
297 Kan. 989, 1012, 306 P.3d 244 [2013]).
"Appellate courts consider three factors in analyzing the second step: (1)
whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill
will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. But none of these factors individually controls; and before the third factor can
override the first two, an appellate court must be able to say the harmlessness tests of
both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142
(2012).
"When both constitutional and nonconstitutional errors clearly arise from the
same acts and omissions, an appellate court begins with a harmlessness analysis of the
constitutional error. If the constitutional error is reversible, an appellate court need not
analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been
met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefiting from
the error bears the burden to demonstrate harmlessness. State v. Herbel, 296 Kan. 1101,
1110, 299 P.3d 292 (2013)." Lewis, 299 Kan. at 848-49.
Charles identifies more than a dozen of the prosecutor's closing argument
comments, most of which include the phrase "I think" or its equivalent or their
substantive opposites.
20
We are troubled by these comments, because, in short, the prosecutor's personal
views are irrelevant to the task before the jury. And, in some circumstances, such views
can be a legally significant distraction outside the wide latitude permitted prosecutors
when discussing the evidence during closing argument. See State v. Brown, 300 Kan.
542, 560, 331 P.3d 781 (2014) (wide latitude does not extend to prosecutor's personal
opinion). For example, we have had little hesitation in labeling prosecutors' statements
about their personal views on witness credibility misconduct. See State v. Armstrong, 299
Kan. 405, 429, 324 P.3d 1052 (2014). Similarly, a prosecutor should not express personal
opinions on the ultimate guilt or innocence of the defendant. State v. Mireles, 297 Kan.
339, 368, 301 P.3d 677 (2013). The reason for prohibiting such comments is that they
constitute a form of unsworn, unchecked testimony, not commentary on the evidence of
the case. Armstrong, 299 Kan. at 429; Mireles, 297 Kan. at 368. "Nevertheless, a
prosecutor has '"freedom . . . to craft an argument that includes reasonable inferences
based on the evidence"' and '"when a case turns on which version of two conflicting
stories is true, [to argue] certain testimony is not believable. [Citations omitted.]"'"
Armstrong, 299 Kan. at 427. A prosecutor may also argue that the evidence demonstrates
a defendant's guilt. Mireles, 297 Kan. at 368. In so doing, a prosecutor must "say
something akin to 'the evidence shows defendant's guilt' in order to make a statement
merely directional and not an expression of the prosecutor's personal opinion." State v.
Peppers, 294 Kan. 377, 400, 276 P.3d 148 (2012); see State v. Mann, 274 Kan. 670, 688-
89, 56 P.3d 212 (2002) (distinguishing between permissible comment that sets up
"prosecutor's upcoming summation" and impermissible "prosecutorial vouching").
We recognize that the Court of Appeals has ruled that the phrase "I think" makes a
prosecutor's closing argument susceptible to a misconduct challenge. See State v.
Haugland, No. 105,218, 2012 WL 1450440, at *2 (Kan. App. 2012) (unpublished
opinion) (use of "I think" in extemporaneous comments made them susceptible to
defendant's argument that prosecutor stated personal opinion on credibility); see also
21
State v. Syers, No. 107,051, 2013 WL 1234192, at *7 (Kan. App. 2013) (unpublished
opinion) (prosecutors use of "I think" improper, inserted personal opinion of defendant's
guilt); but see State v. Rivera, 42 Kan. App. 2d 1005, 1021-22, 219 P.3d 1231 (2009)
(terms "I believe," "I think" often figure of speech, not expression of personal
knowledge), rev. denied 290 Kan. 1102 (2010). This court has recently emphasized the
use or lack of use of the phrase "I think." See State v. Williams, 299 Kan. 911, 935, 329
P.3d 400 (2014) (no prosecutorial misconduct, noting absence of phrase "I think" when
prosecutor discussed witness credibility); State v. Hart, 297 Kan. 494, 501, 301 P.3d
1279 (2013) (emphasizing use of "I think," "I believe" in analysis of prosecutorial
misconduct on discussion of witness credibility). Ultimately, however, we must view the
phase "I think" not in isolation but in context. See State v. Duong, 292 Kan. 824, 831,
257 P.3d 309 (2011); see also State v. De La Torre, 300 Kan. 591, 612, 331 P.3d 815
(2014) (statement occupying "middle ground" between impermissible opinion and
permissible directional statement not improper in context of argument that followed).
Here, at oral argument, the State encouraged us to view the prosecutor's use of "I
think" as a rhetorical device. This characterization is inapt and does an injustice to true
rhetoric. Rather, on repeated reading in context, we are convinced that the "I thinks"
littering the transcript in this case are mere verbal tics—transitions and time fillers akin to
"um" or "uh." As such, we hold that they were not outside the wide latitude given the
prosecutor. But, in the future, prosecutors are on notice that any temptation to say "I
think" should be rebuffed and replaced with "the evidence shows" or "I submit" or a
similar, less potentially subjectively loaded phrase. See State v. Corbett, 281 Kan. 294,
316, 130 P.3d 1179 (2006) (phrase "I/we submit" used to advance idea for jury's
consideration rather than expressing a personal opinion).
Because we ultimately conclude that there is no error on this issue, we need not
reach the question of whether any error was harmless.
22
Need for Limiting Instruction
Charles argues that Northrup's testimony about comments he made to her
moments before he made comments to Westemeir constituted "prior bad act evidence"
that required a limiting instruction under K.S.A. 60-455 to guide the jury's consideration
of the testimony. The district judge did not give such an instruction.
The Court of Appeals panel regarded this issue as unpreserved because admission
of the evidence was not contested at trial. We have recently rejected this view. See State
v. Breeden, 297 Kan. 567, 583, 304 P.3d 660 (2013). The clearly erroneous standard
applies. See K.S.A. 22-3414(3).
"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. King, 297 Kan. 955,
Syl. ¶ 1, 305 P.3d 641 (2013). Northrup's testimony was limited to statements Charles
made during his short time inside the video store. The statements were not made on a
separate occasion and were not subject to K.S.A. 60-455. See King, 297 Kan. at 963-64.
A limiting instruction was not legally or factually appropriate, and there was no error in
failing to give one. See State v. Williams, 299 Kan. 509, 553, 324 P.3d 1078 (2014).
Cumulative Error
Charles argues that cumulative error requires reversal of his convictions. We judge
the application of the doctrine by reviewing the entire record and engaging in an
unlimited review. State v. Cruz, 297 Kan. 1048, 1074, 307 P.3d 199 (2013).
23
"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless. [Citation omitted.] In other words, was the defendant's right
to a fair trial violated because the combined errors affected the outcome of the trial?"
State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
We have identified only one error, the overbroad elements instruction on reckless
aggravated battery. With no other error identified, cumulative error analysis is not
applicable. See State v. Bowen, 299 Kan. 339, 359, 323 P.3d 853 (2014); State v.
Frierson, 298 Kan. 1005, 1020, 319 P.3d 515 (2014).
Registration Requirement
In this case, the district judge determined that Charles' commission of aggravated
battery employing a deadly weapon demanded his registration as a violent offender under
the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. Charles challenges the
constitutionality of the Act, specifically its requirement for judicial factfinding, under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The
constitutionality of a statute presents a question of law over which this court has
unlimited review. State v. Soto, 299 Kan. 102, 121, 322 P.3d 334 (2014).
We have not previously considered this precise issue, but its general contours are
straightforward. If KORA registration does not constitute punishment for purposes of the
Due Process Clause of the Fourteenth Amendment, then Apprendi does not apply. If it
does constitute punishment under that clause, then Apprendi applies and the Sixth
Amendment demands that all factfinding in support of a registration requirement must be
done by a jury, not a judge. See Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151,
2161, 186 L. Ed. 2d 314 (2013); Apprendi, 530 U.S. at 490.
24
In Doe v. Thompson, 304 Kan. ___, ___ P.3d ___ (No. 110,318, this day decided),
a majority of this court, as of the time of the argument in this case, holds that retroactive
application of KORA, as amended in 2011, to a sex offender who committed his or her
sex crime before the amendment violates the Ex Post Facto Clause of the United States
Constitution. This is so because that majority regards the overall KORA statutory
scheme, effective as of July 1, 2011, as punitive in effect as it relates to sex offenders.
See Doe v. Thompson, slip op. at 30-44 (applying "intent-effects" test from Smith v. Doe,
538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. Ed. 2d 164 [2003]).
The Doe v. Thompson decision informs the Apprendi analysis here. See Terry &
Furlong, Sex Offender Registration and Community Notification: A "Megan's Law"
Sourcebook, Part I, sec. 2.1 (2nd ed. 2008-2009) (noting many courts have held that if a
particular sanction constitutes punishment under one constitutional basis, it constitutes
punishment under other constitutional bases as well).
Charles committed his crime on December 25, 2009. He was sentenced on
September 10, 2010. Neither the record before us nor the briefs of the parties make it
crystal clear whether the version of KORA applied at Charles' sentencing was the 2009
version in effect at the time he committed his crime or an amended 2010 version that took
effect on July 1, 2010. However, it is clear that Charles has not challenged his KORA
registration requirement on an ex post facto basis; rather he attacks it only because
judicial rather than jury factfinding supported its imposition. These circumstances
persuade us that we should focus on the 2009 version of KORA in this case.
Charles' issue statement and argument in both his brief to the Court of Appeals and
his petition for review to this court appears to further narrow his KORA challenge. The
issue statement reads in pertinent part: "Because the public disclosure requirements of
25
KORA are punishment, the finding triggering such registration requirements should be
made by a jury beyond a reasonable doubt." (Emphasis added.) The argument section of
his brief does not focus on the public disclosure requirements mentioned in the issue
statement; instead it mentions only the reporting fee requirement and the harshness of the
Level 5 offense severity rating for violation of KORA.
Our Doe v. Thompson decision observes that the 2011 KORA provision for public
dissemination of sex offender registrants' information contributes to the entire statutory
scheme's punitive effect or nature. Slip op. at 33, 37-38, 44. The 2009 KORA public
dissemination provision is nearly identical to that in the 2011 version, compare K.S.A.
22-4909(a) with K.S.A. 2011 Supp. 22-4909(a), although the 2011 KORA amendment
did broaden the universe of registrants' information subject to public dissemination.
Likewise, the $20-per-report fee and the felony status of a KORA violation under
the 2011 version contributed to the Doe v. Thompson holding that the statutory scheme
was punitive in effect or nature as it relates to sex offenders. Slip op. at 34, 38-39, 44.
Again, both the reporting fees and the felony status for violation are similar in the 2009
version of KORA. Compare K.S.A. 22-4907 with K.S.A. 2011 Supp. 22-4907.
In sum, although this case can be distinguished from Doe v. Thompson in certain
ways, Doe v. Thompson's overall conclusion that sex offender registration under the 2011
version of KORA is punitive should be extended to the 2009 version applied to a violent
offender such as Charles as well, particularly when we focus on the three provisions upon
which Charles concentrates: those on public dissemination, reporting fees, and felony
penalty for violation. We therefore hold that the registration requirement qualifies as
punishment under the Due Process Clause, and that its imposition on Charles required a
jury finding of his use of a deadly weapon under Apprendi. Lacking such a finding here,
we must vacate the registration requirement imposed at his sentencing.
26
All of this being said, we further acknowledge that today's decision by a new
majority in State v. Petersen-Beard, 304 Kan. ___, ___ P.3d ___ (No. 108,061, this day
decided), argued a year after Doe v. Thompson, may influence whether the KORA
holding of this case is available to be relied upon by violent offenders whose appeals
have yet to be decided. In Petersen-Beard, the majority arrives at a conclusion opposite
from that arrived at in Doe v. Thompson, holding that application of KORA to sex
offenders does not qualify as punishment. Slip op. at 26.
CONCLUSION
Based on our analysis of each of defendant's appellate challenges above, we affirm
his convictions and vacate the sentencing requirement that he register as a violent
offender under KORA.
MICHAEL J. MALONE, Senior Judge, assigned.1
***
JOHNSON, J., concurring: I concur in the result reached by the majority. I take
exception to the majority's holding that the prosecutor committed no error during closing
argument, but I would find that the erroneous statements of personal opinion were
harmless beyond a reasonable doubt.
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 105,148 under
the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court
created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of
Appeals.
27
First, I cannot be as charitable as the majority in characterizing all of the
prosecutor's improper statements as merely "verbal tics." For instance, when discussing
the critically important question of whether defendant's Nissan Pathfinder SUV could
prove the deadly weapon element of aggravated battery, the prosecutor declared: "I'd say
that that's a deadly weapon." No transition or time filler there. A juror would be hard-
pressed to view that statement as anything other than the prosecutor's personal opinion as
to what the evidence proved. The prosecutor's frequent use of "I think" and "I don't think"
would do nothing to dissuade the jury that the prosecutor was proffering personal
opinions.
But more importantly, I write separately to express my view that it is error, i.e.,
outside the wide latitude given to prosecutors, to use words during closing argument that
are commonly understood to state a personal opinion. If the prosecutor did not intend to
state a personal opinion, then that inadvertence would indicate a lack of ill will under the
second step of the analysis and could negate reversal. But a prosecutor should not be
permitted to extend the bounds of proper argument through inadvertence or idiosyncratic
speech patterns. Consequently, I would find that the prosecutor erred, albeit harmlessly.
LUCKERT, J., AND MICHAEL J. MALONE, Senior Judge, join in the foregoing
concurring opinion.
28