Opinion
No. 108,378.
2013-10-4
STATE of Kansas, Appellee, v. Myron T. MARKHAM, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge. Randall L. Hodgkinson, and Scott L. Anderson, legal intern, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Randall L. Hodgkinson, and Scott L. Anderson, legal intern, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., GREEN and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Myron T. Markham appeals his convictions for aggravated battery, misdemeanor battery, and obstructing legal process. His convictions arose out of an argument with his live-in girlfriend, Latosha Nelson, over whether he should change a baby's diaper. The argument turned violent when Markham hit Nelson in the face with his fists and then began to choke her with both hands around her neck. According to Nelson, Markham said to her during the attack that he was going to kill her. Nelson's 10–year–old niece, Natayja, observed the scene. Markham kept choking Nelson, cutting off her ability to breathe until her face turned purple and she fell to the floor unconscious. According to Natayja, Markham continued to choke Nelson with both hands as she fell to the floor. Natayja did not hear the statement Nelson recounted about Markham going to kill her.
When Nelson regained consciousness, she tried to give Natayja a telephone to call the police, but Markham knocked the phone out of Natayja's hand. Nelson walked to the bathroom and Markham followed her and punched her in her face three or four more times with a closed fist. Nelson escaped to the backyard where she called the police. When the police arrived, Markham fled.
The police later returned to arrest Markham on a warrant. The plan was that Officers Scott Marshall and Jeffrey Kaster would go to the front door and Officer Brian Bachman would cover the rear of the residence. When Marshall and Kaster knocked on the front door and identified themselves as police officers, Markham refused to open the door and attempted to escape out the back door. As Markham started out the back door, Bachman tried to pin him between the door and the door frame, but Markham squirmed out the door. Bachman grabbed Markham, the two men fell off the rear porch, and they struggled until Marshall and Kaster arrived and subdued Markham. Bachman received an abrasion on his left forearm in the scuffle.
Markham was charged with two counts of aggravated battery (one for choking Nelson and one for later punching her in the bathroom) and one count of criminal threat for threatening to kill Nelson. He was also charged with obstructing legal process when he attempted to escape the officers who were attempting to execute his arrest warrant.
Nelson testified at trial. She was asked on cross-examination if she talked with anyone about this incident. She responded that she spoke with her mother, her attorney, and the district attorney. On redirect, Nelson clarified that the attorney she referred to was the attorney appointed to represent her regarding a material witness bond but that she had not been criminally charged as a result of this incident.
Before re-cross, and at Markham's request, the court allowed defense counsel to voir dire the witness outside the presence of the jury to determine whether a line of questioning would be proper for re-cross. In response to defense counsel's questions, Nelson explained that the material witness bond was put in place because she did not appear at Markham's preliminary hearing. Defense counsel asked her if she did not appear because she did not want to testify. Nelson responded no and explained that she was in the hospital due to pregnancy complications until 3:30 a.m. on the day of the hearing and was “too worn out” to make it to court. Defense counsel questioned Nelson further about her hospital visit. After hearing this testimony, the court ruled that defense counsel would not be permitted to pursue this line of questioning before the jury. This concluded Nelson's testimony.
At the instructions conference, Markham requested a lesser included offense instruction of simple battery for both counts of aggravated battery. The court declined to give a lesser included simple battery instruction for the charge related to the choking incident but agreed to give the instruction regarding the bathroom incident.
Markham's counsel objected to the failure of the obstructing legal process instruction to include the requirement that the State must prove that the defendant's act substantially hindered or increased the burden of the officer in the performance of the officer's official duty. The court declined to do so, concluding that PIK Crim.3d 60.08 was the applicable instruction and it does not include the “substantially hindered” element.
Markham's counsel proposed that the court define in its instructions the terms “reckless and terror,” and stated that his cocounsel was in the process of drafting proposed definitions. Upon the court's inquiry, defense counsel indicated that he had no additional proposed instructions other than the definitional language that his cocounsel planned to provide. Cocounsel's draft arrived and it included definitions of terror and terrorize found in State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972), and a definition of the bodily harm necessary to prove aggravated battery found in State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). Markham does not designate, and we do not find, any discussion in the record of the instruction conference regarding the propriety of the bodily harm definition. In any event, the court declined to include in the instructions Markham's proposed definitions. But during his closing argument, defense counsel went ahead and defined for the jury the harm needed to support an aggravated battery conviction: “Now, I also want to define something else. The bodily harm necessary to prove aggravated battery must be more than slight, trivial, minor, or moderate in harm, and as such, does not include mere bruises[, which are likely to be sustained in a simple battery.”
During the jury's deliberations, the jurors sent the court a note which stated: “Need a definition of aggravated battery and definition of battery [—]more clarification than what's listed in instructions.” The court suggested as a response: “Beyond the statements of Kansas law which the Court has already provided in the instructions you have received, the Court cannot give you further definition or clarification of either ‘aggravated battery’ or ‘battery.’ “ Markham's counsel said he had no objection to this response.
The jury convicted Markham of aggravated battery for choking Nelson, misdemeanor battery for punching Nelson in the face in the bathroom, and obstructing legal process for resisting the officers who were trying to execute the arrest warrant. The jury acquitted Markham of criminal threat which related to Nelson's testimony that Markham said he was going to kill her. The court sentenced Markham to 38 months in prison. Markham appeals.
Misdemeanor Battery as a Lesser Included Offense
Markham claims the district court erred in not instructing on misdemeanor battery for the choking incident. We use the following protocol set forth in State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012), to analyze this instruction issue:
“(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 degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).”
Using this protocol, we determine that (1) the issue was preserved for appeal. Next, (2) a misdemeanor battery instruction was legally appropriate because misdemeanor battery is a lesser included offense of aggravated battery. See State v. Simmons, 295 Kan. 171, 175, 283 P.3d 212 (2012). This brings us to (3), the central issue: “whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction.”
For the choking incident Markham was charged under K.S.A. 21–3414(a)(l)(B), which defines conduct as aggravated battery when the defendant “intentionally caus[es] bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” On the other hand, misdemeanor battery is defined under K.S.A. 21–3412(a)(1) as “[i]ntentionally or recklessly causing bodily harm to another person.” When the evidence would reasonably justify a conviction of the lesser included crime, the judge must instruct the jury as to both the crime charged and the lesser offense. K.S.A. 22–3414(3).
Markham relies on State v. Haberlein, 296 Kan. 195, 290 P.3d 640 (2012), which supports the giving of a lesser included offense instruction. In Haberlein, the issue was whether the defendant, charged with first-degree premeditated murder, was entitled to an instruction on the lesser included crime of second-degree intentional murder. The issue turned on the element of premeditation. The court stated:
“While the evidence of premeditation in this case was extremely strong, there also was at least some evidence of each of the other elements of first-degree premeditated murder, and these elements are identical to the elements of second-degree intentional murder. Thus, at least in theory, the jury could have chosen to convict Haberlein of second-degree intentional murder without having its verdict subject to reversal for insufficient evidence. This means the instruction was factually supported.” 296 Kan. at 204.
In Simmons, one of the charges against the defendant was aggravated battery based on the fact that he punched his girlfriend in the nose and forehead, breaking her nose, which required surgery, and causing a cut on her forehead, which required nine stitches to close. The issue was whether the court should have included an instruction for the lesser included misdemeanor battery.
On appeal the court found that a misdemeanor battery instruction was factually appropriate in that “[t]he same evidence that supported the intentional causing of bodily harm for the felony charge would support the intentional causing of bodily harm for simple battery.” 295 Kan. at 177. The court continued:
“The only possible question would center around the manner in which Simmons inflicted the bodily harm. We have repeatedly held that establishing the difference between harm and great bodily harm is a decision for the jury. State v. Green, 280 Kan. 758, 765, 127 P.3d 241,cert. denied549 U.S. 913 (2006) (‘Except for a few specific injuries that have been declared to be great bodily harm as a matter of law, the question of whether an injury constitutes great bodily harm is a question of fact for the jury to decide.’) [Citations omitted.] Likewise, assessing the manner in which the bodily harm was inflicted should generally be a question for the jury to decide. Here, the jury was precluded from fulfilling its role as factfinder. Therefore, the district court erred in refusing to give the requested lesser included offense instruction on simple battery.” Simmons, 295 Kan. at 177–78.
In Markham's appeal, the evidence required to support a misdemeanor battery conviction was the same as the evidence required to support an aggravated battery conviction, but without the added element that the act be done in a manner “whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21–3414(a)(l)(B); K.S.A. 21–3412(a)(1). Viewed in a light favoring Markham, the instruction would have been factually supported. See Haberlein, 296 Kan. at 204;Simmons, 295 Kan. at 177–78. So Markham prevails in step (3) of the Plummer analysis.
We turn to the final Plummer element in our analysis, element (4), the issue of prejudice. Plummer directs us to State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1595 (2012), for this analysis. In Ward, the court declared: “The [c]ourt considers all errors—constitutional, harmless, and plain—by the benchmark of affecting substantial justice, meaning affecting the outcome of the proceeding.” 292 Kan. at 566. The court explained:
“The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the Unites States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.” 292 Kan. at 565.
Nowhere in Markham's appellate brief does he argue that the failure to instruct on this lesser included crime violated any of his constitutional rights. Thus, we apply the less stringent standard of “no reasonable probability” under Ward. But we also note that if we were to apply the more stringent “beyond a reasonable doubt” constitutional standard, under the facts of this case the outcome would be the same.
The evidence established that Markham choked Nelson with both hands around her neck and continued choking her until she passed out. Natayja testified that Markham squeezed so hard that Nelson's face turned purple and she could not breathe. Markham continued to choke Nelson after she fell to the ground. Photographs of Nelson's neck admitted at trial confirmed the injury.
Choking has not been found to constitute great bodily harm as a matter of law. See State v. Green, 280 Kan. 758, 765, 127 P.3d 241,cert. denied549 U.S. 913 (2006). But the issue for the jury in considering the charge of aggravated battery was not whether Markham's conduct caused Nelson great bodily harm, but whether his conduct could have caused great bodily harm. Under the aggravated battery statute, the jury must have found that Markham “intentionally caused bodily harm to [Nelson] ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” (Emphasis added.) K.S.A. 21–3414(a)(l)(B). In order to establish the element of prejudice, we must be convinced from the evidence that there was a reasonable probability that a rational jury could have determined that choking a person to the point of unconsciousness and continuing to choke the person for a time thereafter while the person is unconscious from lack of oxygen could not cause great bodily harm. We reject that notion. Thus, we conclude that there was no reasonable probability that the failure to include the instruction for misdemeanor battery affected the outcome of the trial. See Ward, 292 Kan. at 569.
Under our Supreme Court's holdings in Haberline and Simmons, the district court erred in failing to instruct on misdemeanor battery; but applying the standard in Ward, we conclude that the error was harmless.
Great Bodily Harm
Markham next argues that the district court erred when it denied his request to instruct the jury on the definitions of “bodily harm” and “great bodily harm” with respect to the charge of aggravated battery. In our review we follow the same protocol from Plummer we discussed earlier. Under Plummer factor (1), the issue was preserved for appeal. Under factor (2) we note our Supreme Court's observation in State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009), in which the court stated:
7F' “ “The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” “[Citations omitted.]”
The PIK instruction for aggravated battery, Kansas PIK Crim.3d 56 .18, does not require the court to instruct the jury on the definition of bodily harm. But even if we were to consider Markham's requested definition to be legally appropriate under Plummer factor (2), and even if under Plummer factor (3) the evidence would have supported including this definition, when we consider Plummer factor (4), it is clear that any claimed error was harmless.
In State v. Delacruz, 43 Kan.App.2d 173, 178–79, 223 P.3d 810 (2010), the court noted that “ ‘great bodily harm’ “ distinguishes the ‘ “bodily harm’ “ necessary to establish aggravated battery from ‘ “slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained in simple battery.’ “
The trial court in Delacruz did not include the definition of great bodily harm in its instruction on aggravated battery. But more importantly, the court instructed the jury: ‘ “[T]here are no definitions that this Court can give to you to define “great bodily harm” or “bodily harm.’ “ “ 43 Kan.App.2d at 180. The appellate court in Delacruz observed that PIK Crim.3d 56.18 does not include a definition of great bodily harm but that the PIK instruction should be modified in a particular case if the facts require it. The appellate court did not determine that it was error not to include the definition in the instruction but found that the trial court's added statement that it could not define for the jury “great bodily harm” or “bodily harm” was a misstatement of the law. “Moreover, in considering whether a real possibility exist[ed] that the jury would have rendered a different verdict if the trial error had not occurred, we [were] swayed by the district court's own characterization of the evidence of ‘great bodily harm’ as ‘thin.’ “ 43 Kan.App.2d at 180.
In our present case, the distinction between bodily harm and great bodily harm applied to the aggravated battery charges against Markham: both the choking incident in the living room and the punching incident in the bathroom. With respect to the choking incident, we have already determined that in considering the facts of the case, no reasonable jury could determine that Markham choking Nelson to the point of unconsciousness and continuing to choke her thereafter could not result in great bodily harm. Further, unlike in Delacruz, we have no reported statement from the trial court that the evidence of great bodily harm was “thin.” Finally, the jury's inquiry was: “Need a definition of aggravated battery and definition of battery[—]more clarification than what's listed in instructions.” This obviously related to the bathroom punching incident and not the living room choking incident because it was only for the bathroom choking incident that the jury was given misdemeanor battery as a lesser alternative to the charge of aggravated battery.
With respect to the bathroom punching incident, the jury was instructed on both aggravated battery and the lesser included misdemeanor battery. The jury's question during deliberations obviously was related to the distinction between the charges for this incident. But any error in instructing the jury regarding this incident was harmless because the jury ultimately found Markham guilty of the lesser crime of misdemeanor battery, for which the notion of great bodily harm does not apply.
The jury's verdict that Markham was guilty of misdemeanor battery and not aggravated battery for the bathroom punching incident rendered the great bodily harm issue moot. Thus, because of the jury's decision not to convict Markham of aggravated battery on this charge, the great bodily harm definition was superfluous and its absence did not affect the outcome of the trial.
Multiplicity
Next, Markham argues that his conviction for the choking Nelson in the living room and striking Nelson in the face in the bathroom resulted in multiplicitous convictions: two convictions for the same offense in violation of his rights under both the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Though not raised below, appellate courts have often considered this issue for the first time on appeal in order to serve the ends of justice or to prevent a denial of fundamental rights. We exercise unlimited review when determining whether convictions are multiplicitous. See State v. Holman, 295 Kan. 116, 147, 284 P.3d 251 (2012).
Our analysis follows the protocol outlined in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006):
“First, we ask whether the convictions arose from the same or unitary conduct. If not, multiplicity is inapplicable; if so, we next consider whether the conduct, by statutory definition, constitutes one offense or two. If both components are met—unitary conduct statutorily defined as one offense—double jeopardy is violated when the defendant is convicted of more than one offense. 281 Kan. at 496–97.” State v. Weber, 297 Kan. 805, 304 P.3d 1262, 1266 (2013).
To determine whether the convictions arose from unitary conduct, we consider four factors:
“(1) [W]hether the acts occurred at or near the same time, (2) whether the acts occurred at the same location, (3) whether a causal relationship existed between the acts, in particular whether an intervening event separated the acts, and (4) whether a fresh impulse motivated some of the conduct.” Weber, 304 P.3d at 1267 (citing Schoonover, 281 Kan. at 497).
In State v. Sellers, 292 Kan. 346, 253 P.3d 20 (2011), the defendant was convicted of two counts of aggravated indecent liberties with a child. Sellers was lying in bed next to the victim when he touched her in an indecent manner. Sellers then got up to check on the family's dog, which was making noise in another room. About 30 to 90 seconds later, Sellers returned to the bedroom and again touched the victim in an indecent manner. Our Supreme Court determined that the 30 to 90 seconds checking on the dog gave Sellers the opportunity to reconsider his course of conduct and make a second decision whether to improperly touch the victim, thereby rendering the two events two separate crimes. 292 Kan. at 359–60.
Here, the choking incident occurred in the living room near the front door. The punching incident took place after Nelson regained consciousness and walked into the bathroom. The argument over diaper changing led to Markham choking Nelson. When Nelson regained consciousness after the choking incident, she was lying on the floor and Markham was no longer on top of her. She accused Markham of having punched her in the face, but Markham denied it. Nelson gave Natayja her phone and told her to call the police, but Markham knocked the phone out of Natayja's hand. Markham and Nelson began to argue again, and when Nelson went into the bathroom, Markham attacked her again.
It is apparent from these facts that rather than being a continuous, uninterrupted event, Nelson losing consciousness ended the first altercation. This gave Markham the opportunity to make a second conscious decision to commit a battery against Nelson. Markham knocked the phone out of Natayja's hand and, in a fit of anger for Nelson's attempt to call the police, then attacked Nelson once again after she went into the bathroom. Under these facts, Markham's convictions for choking Nelson in the living room and later punching her in the face in the bathroom were not multiplicitous.
Cross-examination of the Victim
Markham argues that he was denied his constitutional right under the Sixth Amendment to confront a witness against him when the court limited his cross-examination of Nelson. We review this issue to determine if the district court abused its discretion in limiting the questioning of Nelson. See State v. Parks, 294 Kan. 785, 797, 280 P.3d 766 (2012).
This issue arises out of the district court's refusal to allow Markham's counsel to cross-examine Nelson in front of the jury about her failure to appear at Markham's preliminary hearing. Markham's counsel was permitted to voir dire Nelson outside the presence of the jury, in the course of which he learned that the reason Nelson did not appear at the preliminary hearing was not because she was reluctant to testify against Markham, which defense counsel suggested in his questioning, but because of the difficulties she was having from being pregnant with twins. “The night before [the preliminary hearing] I went in [the hospital] because I was bleeding and I needed to see if my twins [were] all right.” She got out of the hospital at 3:30 a.m. on the morning of the hearing and did not go because “I was too worn out.” After she failed to appear for the hearing “they came to arrest me,” and Nelson told the officer “the reason, and I wasn't trying to run or not show up. But that was my reason for not going.” Markham's counsel had no further questions for the witness.
Here, the district court's decision to not allow this cross-examination in front of the jury was based on a lack of relevance. Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). In analyzing whether evidence is material, “the focus is on whether the fact sought to be proved has a legitimate and effective bearing on the decision of the case and is in dispute.” State v. Wells, 297 Kan. 741, 305 P.3d 568, 580 (2013). The materiality of evidence is reviewed de novo, and whether the evidence has any probative value is reviewed under an abuse of discretion standard. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
Markham argues that his counsel's questions were relevant to establish why Nelson was reluctant to testify at the preliminary hearing. We know what Nelson's testimony would have been had Markham's counsel been entitled to question her in front of the jury. Markham does not suggest that the substance of her testimony before the jury would have been otherwise or that he had other evidence that would have contradicted Nelson's testimony on this point.
Markham attacked Nelson on April 10, 2011. Nelson testified that she was 2 months pregnant at that time. The preliminary hearing was held less than 2 months later on June 1, 2011. Nelson was far enough along in her pregnancy at the time of the preliminary hearing to know that she was carrying twins. Markham argues that the evidence regarding why Nelson failed to appear at the preliminary hearing was critical to undermining her credibility, but he fails to explain how this testimony, if presented to the jury, would have done so. But what is equally puzzling is why the State resisted permitting the jury to hear this testimony, which obviously would place Nelson in a favorable and sympathetic light for the jury.
Relevant evidence has a tendency to prove a material fact. As stated in Wells, to be material evidence must have a “legitimate and effective bearing on the decision of the case and [be] in dispute.” 305 P.3d at 580. Markham does not suggest that Nelson was lying about her trip to the hospital or her reason for not attending the preliminary hearing. While credibility is always an issue, Nelson fails to explain how Nelson's testimony, if presented to the jury, would have been effective to undermine her credibility. Had Nelson's testimony about her hospital visit and her reason for not attending the preliminary hearing been presented to the jury, we are confident that this testimony would not have been the least bit effective in undermining Nelson's credibility and the jury's verdict would not have been more favorable for Markham. Markham's job was to make Nelson a less credible witness. The testimony here, if presented to the jury, would have had the opposite effect.
The district court did not abuse its discretion in excluding from the jurors' consideration this testimony from Nelson that would have cast her in a more sympathetic, rather than less favorable, light in their eyes.
Obstruction of Legal Process
Markham claims on appeal that the district court erred in failing to instruct the jury that it must find that he substantially hindered the officers in order to find him guilty of obstruction of legal process.
At the court's instruction conference, the State made clear that Markham was charged with obstructing legal process and not obstructing official duty. The court noted that the applicable instruction, PIK Crim.3d 60.08, does not include the “substantially hindered” element and so the “substantially hindered” phrase was not added. Markham voiced no objection to this ruling. Thus, we apply the clearly erroneous standard in our review. State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); see K.S.A. 22–3414(3). Whether the instruction as given was erroneous is an issue of law over which we have unlimited review. If it was given in error, clear error is shown only if we are firmly convinced that Markham has demonstrated that the jury would have reached a more favorable verdict had the proper instruction been given. See State v. Williams, 295 Kan. 506, Syl. ¶¶ 4, 5, 286 P.3d 195 (2012).
K.S.A. 21–3808(a) provides:
“Obstructing legal process or official duty is knowingly and willfully obstructing, resisting or opposing any person authorized by law to serve process in the service or execution or in the attempt to serve or execute any writ, warrant, process or order of a court, or in the discharge of any official duty.”
Markham contends that the State should have to prove that a defendant's actions caused a substantial hindrance to the officers in both obstruction of official duty cases and obstruction of legal process cases. He relies State v. Hanmont, No. 89,375, 2003 WL 22990151 (Kan.App.2003) (unpublished opinion), rev. denied 278 Kan. 849 (2004). But Hanmont involved the appeal of a conviction of obstruction of official duty, the crime for which the “substantially hindered” instruction is appropriate. It did not involve the crime of obstructing legal process.
Markham provides no applicable authority to support the proposition that the given instruction was not legally appropriate. But even if a substantially hindered element had been added to the instruction, we are convinced the outcome of the case would not have changed. The uncontested evidence established that Markham's actions substantially hindered the officers trying to execute the arrest warrant. Markham refused to answer the front door when the officers knocked for several minutes. He then attempted to escape out the back door. Officer Bachman met him there, a struggle ensued, and both men fell off the porch. Markham continued to resist until the other officers ran from the front of the house and threatened Markham with a taser. As a result of the scuffle, Bachman received an abrasion on his arm. We find no reversible error in the court's obstruction of legal process instruction.
We find no error warranting the reversal of Markham's convictions.
Affirmed.