Bernhardt v. State

NOT DESIGNATED FOR PUBLICATION
No. 124,858
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ANSON R. BERNHARDT,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Submitted without oral
argument. Opinion filed November 9, 2023. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.
Before GREEN, P.J., SCHROEDER and CLINE, JJ.
CLINE, J.: Anson R. Bernhardt appeals the denial of his K.S.A. 60-1507 motion
challenging his conviction for first-degree murder. He claims his defense attorney
provided ineffective legal assistance by failing to request a voluntary intoxication jury
instruction at his trial.
We see no error in the district court's decision. The court found a voluntary
intoxication instruction was unwarranted and most likely would not have been given,
even if requested, based on the factual circumstances and trial evidence. The court's
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factual findings are supported by substantial competent evidence and those findings are
sufficient to support its legal conclusion. Since we agree that Bernhardt's attorney was
not ineffective and Bernhardt was not prejudiced by the failure to give the instruction,
neither prong of the ineffective assistance of counsel test under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), was satisfied.
FACTS
On September 29, 2012, Bernhardt and his girlfriend, Amber Kostner, attended a
party at a bar, where they were both drinking. The next morning, Kostner's body was
found in a ditch next to a roadway. The Sedgwick County Sheriff's Department took
Bernhardt into custody that evening. Once in custody, Bernhardt was questioned in a
taped interview which was later admitted at trial. State v. Bernhardt, 304 Kan. 460, 461-
62, 372 P.3d 1161 (2016).
Bernhardt gave conflicting accounts to the police of what happened that night. But
he eventually confessed to Kostner's murder, saying he "'beat the crap out of her and
dumped her body.'" Bernhardt, 304 Kan. at 462. Bernhardt explained that, while they
were driving home, they had an argument and Kostner hit him. He then stopped the car,
pulled Kostner out by her hair, and kicked her 20 to 30 times. After this, he put her into
the backseat and began driving again. But before he reached his destination, Bernhardt
said he stopped and moved Kostner to the trunk because her "garbled" breathing bothered
him. 304 Kan. at 463. Once he reached a drainage ditch near a local high school,
Bernhardt opened the trunk and threw Kostner into the ditch. She was still alive when he
left. Bernhardt then drove home and went to sleep. After this confession, the State
charged Bernhardt with first-degree murder. 304 Kan. at 463.
Bernhardt did not testify at his jury trial, but the State admitted his taped interview
with law enforcement into evidence. The State also introduced evidence that Kostner had
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significant bruising all over her body, and that, had she received medical care, she may
have survived. 304 Kan. at 463-64.
The jury was instructed on three possible offenses at trial—first-degree murder
(intentional and premeditated), intentional (but not premeditated) second-degree murder,
and reckless (not intentional) second-degree murder. 304 Kan. at 465-66; Bernhardt v.
State, No. 121,018, 2020 WL 3116719, at *1 (Kan. App. 2020) (unpublished opinion).
Bernhardt's attorney did not dispute that Bernhardt murdered Kostner. Instead, he argued
the murder was not premeditated. He suggested the jury should consider the fact that they
both had been drinking and Bernhardt told the police that he had had too much to drink
that night. His attorney argued Bernhardt lacked the intent necessary to commit first-
degree murder because Bernhardt "was drunk, he was slapped, and he acted in a rage."
Ultimately, the jury convicted Bernhardt of first-degree murder. 304 Kan. at 466.
At sentencing, the district court imposed a life sentence without the possibility of parole
for 50 years. 304 Kan. at 469. Bernhardt appealed, but our Supreme Court affirmed his
conviction in May 2016. 304 Kan. at 461. In his direct appeal, Bernhardt challenged his
jury instructions' description of premeditation, which included the description of
premeditation in the pattern jury instruction as well as additional descriptive language:
"'Premeditation' means to have thought over the matter beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous, intentional act of taking another's life.
"Premeditation is the process of thinking about a proposed killing before
engaging in homicidal conduct.
"Premeditation does not have to be present before a fight, quarrel, or struggle
begins. Premeditation is the time of reflection or deliberation. Premeditation does not
necessarily mean that an act is planned, contrived, or schemed beforehand.
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"Premeditation can be inferred from other circumstances including: (1) the
nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before
and after the killing, (4) threats and declarations of the defendant before and during the
occurrence, or (5) dealing of lethal blows after the deceased was felled and rendered
helpless.
"Premeditation can occur during the middle of a violent episode, struggle or
fight."
Bernhardt also challenged the instructions given for the lesser-included offenses,
but he did not claim a voluntary intoxication instruction should have been given. Our
Supreme Court found no error in the jury instructions given at Bernhardt's trial. 304 Kan.
at 472-77.
Bernhardt timely filed a K.S.A. 60-1507 motion, alleging various ineffective
assistance of trial and appellate counsel claims. One of these claims was an assertion that
his trial attorney, Steve Osburn, should have requested a voluntary intoxication
instruction. The district court denied Bernhardt's motion in October 2018 after an
evidentiary hearing.
Bernhardt appealed, and another panel of this court affirmed the denial of all but
one of Bernhardt's claims. That panel remanded the case for an evidentiary hearing on the
sole issue of whether Osburn provided ineffective legal assistance by failing to request a
voluntary intoxication instruction. The panel explained a hearing was necessary because
the district court made no factual findings to address this claim and Osburn was never
asked at the hearing about why he did not request this instruction. Given the absence of
these two items in the record, the panel felt it could not adequately review the issue.
Bernhardt, 2020 WL 3116719, at *5-6.
After an evidentiary hearing on this issue, the district court again denied
Bernhardt's motion. Bernhardt appealed, arguing the instruction was warranted and he
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was prejudiced by Osburn's error in failing to seek it. He claims his defense was impaired
since, if the instruction was given, the jury could have considered his intoxication when
deliberating whether to convict Bernhardt of lesser-included crimes rather than first-
degree murder.
ANALYSIS
Standard of Review
Because the district court conducted a full evidentiary hearing on Bernhardt's
claim, it was required to issue findings of fact and conclusions of law on the issue
presented. Supreme Court Rule 183(j) (2023 Kan. S. Ct. R. at 244). This court reviews
the district court's factual findings to determine whether they are supported by substantial
competent evidence and are sufficient to support that court's conclusions of law.
Substantial competent evidence possesses both relevance and substance. Sampson v.
Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). The district court's conclusions of
law are reviewed de novo. Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216(2021).
Standards governing relief under K.S.A. 60-1507
To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either: (1) "the judgment was rendered without
jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to
collateral attack"; or (3) "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 2022 Supp. 60-1507(b) (grounds for relief); see Supreme Court Rule
183(g) (preponderance burden). Criminal defendants are guaranteed the right to counsel
by both the United States Constitution and the Kansas Constitution. U.S. Const. amend.
VI; Kan. Const. Bill of Rights, § 10. This right "necessarily includes the right to effective
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assistance of counsel." (Emphasis added.) Albright v. State, 292 Kan. 193, 207, 251 P.3d
52 (2011).
Claims of ineffective assistance of trial counsel are analyzed under the two-prong
test articulated in Strickland, 466 U.S. 694, and adopted by the Kansas Supreme Court in
Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong,
the defendant must show that counsel's performance was deficient. If successful, the
court moves to the second prong and determines whether there is a reasonable probability
that, but for this deficiency, the outcome would have been different. State v. Evans, 315
Kan. 211, 217-18, 506 P.3d 260 (2022).
Because the instruction was unwarranted, Bernhardt fails to show deficiency.
The district court concluded Osburn was not ineffective for failing to seek the
instruction because it found the instruction was not factually supported. It provided three
reasons for this determination: (1) Bernhardt made several conscious decisions the night
of the murder which suggested a mental state that did not warrant a voluntary intoxication
instruction; (2) Bernhardt had the presence of mind the next day to remember all the steps
he took the night before and recount those steps to law enforcement; and (3) the jury
received limited evidence of the level of Bernhardt's intoxication on the night of the
murder. Because it found the instruction was unwarranted, the district court determined
Bernhardt was not prejudiced by Osburn's failure to request it.
While acknowledging that voluntary intoxication may be used as a valid defense
to the crime of premeditated first-degree murder, the district court noted evidence to
show proof of impairment is required to justify instructing the jury on the defense. It
explained that evidence of mere consumption of alcohol is not enough to permit an
inference that the defendant was so impaired that he or she could not form the requisite
intent. In support, it cited several Kansas Supreme Court cases interpreting K.S.A. 2018
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Supp. 21-5205(b), which is the statute setting forth the voluntary intoxication defense in
Kansas. It added that "[a] defendant's ability to recall the circumstances surrounding the
charged crime and provide a coherent narrative of his or her conduct undercuts a claim of
intoxication sufficient to warrant a jury instruction," citing State v. Davis, 306 Kan. 400,
414-15, 394 P.3d 817 (2017). The district court thus concluded "the instruction would not
have been required under the facts of the case and probably would not have been given if
requested."
In discussing Osburn's failure to request the instruction, the district court
acknowledged that Osburn did not recall—seven to eight years later—why he did not
request a voluntary intoxication instruction. But it pointed out that Osburn testified it was
possible to argue intoxication without a voluntary intoxication instruction. And, in fact,
that is what Osburn did when arguing Bernhardt's mental state did not rise to the level of
premeditation, due to his emotions and intoxication. Based on these facts, the court
concluded Bernhardt was not prejudiced by Osburn's failure to request the instruction
because it found the instruction most likely would not have been given since the facts did
not support it.
On appeal, Bernhardt does not challenge the district court's first two reasons for
determining the instruction was unwarranted: That is, its findings that Bernhardt made
13 conscious decisions the night of the murder and his specific recall the next day of
those events. Instead, he only attacks its finding that the jury received limited evidence of
Bernhardt's intoxication. He maintains the evidence supported giving the instruction,
pointing to the following statements he made to law enforcement in his interview: (1) "'I
don't think I was thinking anything. I don't remember having any thoughts'"; (2) "'[We]
probably both had or I had too much to drink'"; (3) "'I probably passed out. So it was
probably as soon as I hit the pillow'"; and (4) "'[T]he alcohol kinda changes stuff.'" He
also emphasizes that he told law enforcement he shared three or four pitchers of beer with
Kostner on an almost empty stomach.
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When analyzing Bernhardt's argument, we first consider whether substantial
competent evidence supports the district court's factual findings. Sampson, 267 Kan. at
181. Deference must be given to the court's findings of fact, and we must "accept[] as
true the evidence and any inferences that support or tend to support the district court's
findings." Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).
We find all three categories of findings made by the district court are supported by
substantial competent evidence and are enough to support its legal conclusions since they
demonstrated a lack of intoxication sufficient to justify the defense. This is because
evidence of intoxication was precisely what was required for a voluntary intoxication
instruction to be warranted and Bernhardt's vague statements are insufficient support.
State v. Gallegos, 313 Kan. 262, 271, 485 P.3d 622 (2021).
A voluntary intoxication instruction is legally appropriate when the matter
involves a specific intent crime such as first-degree murder. Factually, however,
"[e]vidence of mere consumption of intoxicants does not necessitate a voluntary
intoxication instruction." 313 Kan. at 271. Indeed, Bernhardt needed to demonstrate
"intoxication to the extent of impairing the ability to form the requisite intent." State v.
Betancourt, 299 Kan. 131, 141, 322 P.3d 353 (2014). Such evidence includes a loss of
ability to reason, to plan, to recall, or to exercise motor skills. 299 Kan. at 141-42.
Moreover, as the court noted, his specific recall of events the next day undercuts his
claim that he was sufficiently impaired to justify giving the instruction. State v. Davis,
306 Kan. at 414-15.
Bernhardt's vague statements do not provide sufficient evidence to warrant this
instruction, especially when combined with his sequence of "conscious decisions" and
ability to recall the night. Because we find the court's factual findings sufficiently
supported by the record, the district court did not err in finding Osburn provided effective
assistance in failing to request such an instruction.
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While Bernhardt focuses on Osburn's inability to explain why he did not request
the instruction, that gap is beside the point since there is substantial competent evidence
supporting the district court's factual findings that the instruction was unwarranted. That
is, counsel cannot be found ineffective for failing to request an instruction which was not
supported by the evidence.
Similarly, Bernhardt cannot be prejudiced from Osburn's failure to request an
unwarranted instruction. Bernhardt must show that defense counsel's deficient
performance was prejudicial. To establish prejudice, he must show with reasonable
probability that the deficient performance affected the outcome of the proceedings, based
on the totality of the evidence. Khalil-Alsalaami, 313 Kan. at 486. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Evans, 315
Kan. at 218.
Even if Osburn had requested the instruction, Bernhardt has not shown a
reasonable probability that the district court would have given it. Furthermore, even
without the instruction, the jury could have considered his intoxication when deliberating
whether to convict Bernhardt of lesser included crimes rather than first-degree murder.
Osburn argued that Bernhardt was too intoxicated to form the intent to commit
premeditated murder and the jury was instructed on two lesser included crimes. The jury
had the choice to select crimes with less culpable mental states but it convicted Bernhardt
of first-degree murder. The State focused on Bernhardt's conscious decisions the night of
the murder and his specific recall the next day to support this conviction, and Bernhardt
has provided no reason why the jury would have found this evidence less compelling had
the voluntary intoxication instruction been given.
Based on this evidence, we see no error in the district court's denial of Bernhardt's
K.S.A. 60-1507 motion.
Affirmed.
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