Opinion
No. 106,352.
2012-10-26
STATE of Kansas, Appellee, v. Jesse DIMMICK, Appellant.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, for appellee.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, for appellee.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jesse Dimmick appeals his convictions by a jury of theft, eluding police, and two counts of kidnapping for ransom. Dimmick argues the trial court failed to inquire into the accuracy of the verdicts, the jury instructions were improper, and the State failed to prove the alternative means of kidnapping by deception. He contends if the errors are not sufficient for reversal by themselves, then the cumulative effect of the errors denied him a fair trial.
Frank Kubiak testified that on September 12, 2009, he and his wife planned to attend a fundraiser breakfast in Junction City. He said that he started their minivan, pulled it out of the garage, and then parked it so he could go inside and tell his wife it was time to go. When Frank and his wife came back outside, the minivan was gone. Frank called the police and reported the minivan stolen.
Officer Tony Holt of the Geary County Sheriff's Department spotted the Kubiak's minivan. Officer Holt confirmed it was the correct vehicle and then turned on his emergency lights. Instead of stopping, the minivan began accelerating at a high rate of speed. Officer Holt followed the minivan into Riley County and then into Wabaunsee County. Officer Holt testified that as they travelled along a frontage road, the minivan drove through a KDOT barb-wired fence line, down a ditch, and into the eastbound lane of I–70.
Officer Holt was unable to catch the minivan and terminated his pursuit. Officer Holt testified that during the chase, the minivan reached speeds of 110 miles per hour. Trooper Bryon Wilson of the Kansas Highway Patrol caught up to the minivan. He was also assisted by the patrol helicopter. Trooper Wilson testified he saw the minivan fail to use turn signals, travel at speeds near 110 miles per hour, fail to maintain a single lane, pass other vehicles in a no-passing zone, drive recklessly, and fail to stop at stop sign. In Dover, the minivan ran over stop-sticks and finally came to rest in the front yard of Jared and Lindsay Rowley.
Jared testified he was at his computer when he heard a commotion outside and saw a van go past his window. He was going to render assistance to what he thought was a car wreck, but then he heard four gunshots and knew it was not just a wreck. Jared told his wife to run to the basement, at which time he saw Dimmick on the back porch. Dimmick told Jones he was on the run from the police and offered Jared $10,000 to hide him. Jared told Dimmick to go next door because there were better hiding spots over there. However, Dimmick came inside and locked the door behind him. Jared said he was scared because he had heard prior gun shots, did not know if Dimmick had a gun, and did not want to escalate the situation.
Jared testified that Dimmick said his name was “Jay.” Dimmick started asking questions about the other person in the house who had gone to the basement. As they headed to the basement, Jared tried to push Dimmick out the garage door. Dimmick told him, “Man, you don't want to do this,” and he motioned to the pocket knife in his pants pocket. He said Dimmick changed the tone of his voice and it sounded like a threat of violence. Jared called for Lindsay and she came out from behind the washing machine. He said they talked to Dimmick and gave him clothes and food, all in hopes he would not hurt them.
When the front door bell rang, Dimmick told Lindsay to answer it. Lindsay testified that her aunt was at the door and that she was just letting Lindsay and Jared know about the crash and that someone might be around. Lindsay told her aunt that everything was fine at their house, but she then whispered that Dimmick was inside. Then she closed the door. Lindsay said that she did not run away because she did not want anything to happen to Jared. Lindsay was able to text her mother that she and Jared were not hurt, that Dimmick had a knife, that he was alone, and then later that he was falling asleep. After about 3 hours, Dimmick fell asleep and Lindsay and Jared were able to escape.
The SWAT team swarmed the house and arrested Dimmick. He was shot during the raid. Officers discovered the knife seen by the Rowleys, $113 in cash, and a marijuana pipe.
The State charged Dimmick with two counts of kidnapping, aggravated robbery, felony theft, misdemeanor battery, possession of drug paraphernalia, eluding the police, and aggravated assault with a deadly weapon. The trial court dismissed the aggravated robbery and aggravated assault charges at the preliminary hearing, finding no probable cause. The jury convicted Dimmick of both counts of kidnapping, felony theft, and eluding the police. The jury acquitted Dimmick on the battery and drug possession charges. The trial court sentenced Dimmick to a presumptive sentence of 66 months' incarceration for the first kidnapping conviction, 59 months' incarceration on the second, and then 6 months' incarceration each for felony theft and eluding police. Except for the eluding sentence, the trial court ran the sentences consecutively for a total term of 131 months' incarceration.
Dimmick appeals.
Dimmick first contends the way the trial court received the jury's verdict compromised his right to a unanimous verdict, as provided in K.S.A. 22–3421. In pertinent part, K.S.A. 22–3421 reads:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury's verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case.”
After the jury announced it had reached verdicts on the charges against Dimmick, the trial court read the verdicts into the record. The trial court did not ask either the presiding juror or anyone else in the jury whether the verdicts were the jury's verdicts. However, the prosecutor and Dimmick's lawyer each expressly declined to have the jurors polled. The trial court excused the jury.
Dimmick argues the trial court's failure to inquire into the accuracy of the verdicts was inadequate to preserve his right to a unanimous verdict. Panels of this court have split on the effect of failing to strictly comply with the procedure outlined in K.S.A. 22–3421. In State v. Gray, 45 Kan.App.2d 522, 525, 249 P.3d 465,rev. denied 292 Kan. 967 (2011), a court held that statutory error in receiving a verdict requires vacating any conviction and granting the defendant a new trial. In that case, the district court did not inquire of the jurors collectively if the verdict was theirs or if any juror disagreed with the verdict as published. More recently, another panel held that a deviation from the procedure outlined in K.S.A. 22–3421 must materially compromise a defendant's rights to warrant substantive relief. State v. Dunlap, 46 Kan.App.2d 924, Syl. ¶ 5, 266 P.3d 1242,petition for review filed December 30, 2011. A harmless error in that process will be excused, according to the Dunlap court.
For purposes of analysis, we assume the trial court's receipt of the verdict failed to comply with K.S.A. 22–3421. Jury unanimity in criminal cases is a statutory right rather than a fundamental constitutional right. State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007) (“[T]he right to a unanimous jury verdict in a Kansas court is not a federal constitutional right or a state constitutional right, but rather a state statutory one.”). Nothing in the United States Constitution requires unanimous verdicts in noncapital criminal cases tried in state courts. Johnson v. Louisiana, 406 U.S. 356, 358–59, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); 406 U.S. at 367–68 (Powell, J., concurring); see McDonald v. Chicago, 561 U.S. ––––, 130 S.Ct. 3020, 3035 n. 14, 177 L.Ed.2d 894 (2010). The Kansas Constitution does not establish such a right. See Voyles, 284 Kan. at 250–51. Any such error, therefore, did not compromise a fundamental, constitutional right afforded Dimmick as a criminal defendant.
We agree with the reasoning of the Dunlap court that the statutory right may be lost to waiver or invited error. 46 Kan.App.2d 924, Syl. ¶ 4. We also agree that a defendant who expressly declines to request a poll of the jurors invites any error purporting to compromise the right to a unanimous verdict otherwise protected in K.S.A. 22–3421. 46 Kan.App.2d 924, Syl. ¶ 4. Polling the jurors would insure the verdicts were unanimous and that no one on the jury entertained any hesitancy or doubt.
In an analogous set of circumstances, the Kansas Supreme Court recognized that the invited error doctrine would override a statutory right of a criminal defendant to instructions on lesser included offenses, as provided in K.S.A. 22–3414(3). See State v. Angelo, 287 Kan. 262, 279–80, 197 P.3d 337 (2008). Angelo was charged with first-degree murder. Although there was evidence to support instructing the jury on second-degree murder as a lesser included offense, Angelo specifically requested the trial court refrain from doing so. Angelo wanted the jury to face an all-or-nothing decision between first-degree murder and acquittal with no room to compromise on a lesser, though still serious, offense. The district court gave no lesser included offense instructions, and the jury convicted Angelo. On appeal, Angelo argued that the district court committed reversible error in failing to comply with K.S.A. 22–3414(3). The Kansas Supreme Court rejected the argument, since “Angelo invited this error.” 287 Kan. at 280. The court then cited the general rule: “A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal.” 287 Kan. at 280.
Dimmick faces a similar situation as Angelo. We, therefore, find his complaint about receipt of the jury verdicts amounts to invited error.
Next, Dimmick argues the State presented insufficient evidence of the alternative means of kidnapping and his convictions must be reversed.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Dimmick's primary contention is that this is an alternative means case and the State failed to present sufficient evidence of each alternative means of committing kidnapping. Dimmick challenged the kidnapping by deception charge at various levels in the trial court. At the instructions conference, the prosecutor argued to include the definition of deception in the elements instruction for kidnapping. Defense counsel argued there was no deception in this case and that deception should not be included at all. The trial court rejected Dimmick's argument and stated that including the definition was appropriate based on the evidence presented to the jury. During closing argument, the prosecutor argued:
“All right. Now let's talk about the evidence of detention [deception], because remember it's kidnapping is what he's charged with if there is force, threat or detention [deception]. So the question is, is there any deception in this case? The guy offers the Rowleys ten grand if they hide him out. Do you believe that? Is that something that he can do or did he deceive them? He certainly deceived them by saying his name was Jay, but he further and more substantially deceived them when at his arrest he had $153.75 on him. He used the deception to be able to stay in that house as well as force or threat. The law does not require that the State prove all three of those, force, threat and deception. You'll see by the jury instructions that it's force, threat or deception. So if you find threat, or if you find deception that the defendant used, then he's guilty of kidnapping as he's charged.”
During rebuttal closing, the prosecutor stated:
“The defendant says there's no deception, well, really, how come when he's promising them $10,000, he can pony up 153? How come when he says his name is Jay, he has a real name of Jesse Dimmick? How come he has a wallet with a Colorado license in it in somebody else's name? Why is he pretending to be somebody else if there's no deception?”
Our Supreme Court has stated the following rule of law governing alternative means cases in Kansas:
“ “ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]’ “ “ State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159 (2010) (quoting State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 [1994] ).
Dimmick was convicted of violating K.S.A. 21–3420, where kidnapping is defined as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: (a) For ransom, or as a shield or hostage.” (Emphasis added.) At trial, the trial court instructed the jury on kidnapping as follows:
“To establish this charge, each of the following claims must be proved:
1. That the defendant confined Jared Rowley [Lindsay Rowley in a different instruction] by force, threat, or deception;
2. That it was done with the intent to hold such person as a shield or hostage; and
3. That this act occurred on or about the 12th day of September, 2009, in Shawnee County, Kansas.”
Prior decisions of this court have stated that kidnapping often presents an alternative means situation in the alleged purpose of the kidnapping and whether the kidnapping was accomplished by force, threat or deception. In State v. Johnson, 27 Kan.App.2d 921, 923, 11 P.3d 67,rev. denied 270 Kan. 901 (2000), the court stated that “force, threat or deception” are “all the means listed in our kidnapping statute, K.S.A. 21–3420.” The Johnson court concluded there was no evidence that Johnson employed deception in his taking of the victim. 27 Kan.App.2d at 923. However, the court applied a harmless error analysis based on the overwhelming evidence of Johnson's use of a gun to threaten the victim and affirmed the conviction. 27 Kan.App.2d at 924–26. The Johnson court was effectively overruled on the harmless error analysis by Wright, 290 Kan. at 205 (alternative means error is not subject to harmless error analysis).
However, the recent case of State v. Brown, 295 Kan. ––––, 284 P.3d 977 (2012), has introduced another issue which is controlling in this case—whether alternative means is even involved.
Brown was convicted by a jury of one count of aggravated indecent liberties with a child under the age of 14, pursuant to K.S.A. 21–3504(a)(3)(A) and one count of lewd and lascivious behavior in the presence of a person under the age of 16, pursuant to K.S.A. 21–3508(a)(2). Brown argued that both convictions should be reversed because they were alternative means and the evidence was insufficient to support the convictions on all of the alternative means on which the district court instructed the jury.
Concerning the aggravated indecent liberties conviction, Brown focused on the jury instruction that stated the State had to prove that Brown fondled or touched the person of the victim in a lewd manner, with the intent to arouse or satisfy the sexual desires of either the victim, the defendant, or both.
Concerning the lewd and lascivious behavior conviction, Brown focused on the portion of the jury instruction which told the jury that the State had to prove that Brown exposed his sex organ in the presence of a person not his spouse and who had not consented thereto, with the intent to arouse or to gratify the sexual desires of the defendant or another.
Brown argued that the State failed to prove that he intended, in regard to either count, to arouse or satisfy the sexual desires of anyone but himself. Therefore, there was no substantial evidence to support each alternative means of each crime.
We have a similar situation in the instant appeal since Dimmick claims that although there was evidence of kidnapping by force or threat, there was no evidence of kidnapping by deception. Both parties argue extensively on this issue.
Brown appears to resolve the issue in the State's favor. The syllabi of the court set out the analysis which we believe is controlling in the instant case:
“1. Under the alternative means rule and its corollary super-sufficiency requirement, if a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.”
“2. The first thing that a prosecutor and district court judge must do to try to ensure that alternative means analysis and its super-sufficiency requirement will not compel reversal of any conviction is to identify whether the criminal statute supporting the charged crime is an alternative means statute. If so, the elements jury instruction incorporating the statute should be tailored to include only those alternative means for which there is some evidence.”
“4. Identifying an alternative means statute is more complicated than simply spotting the word ‘or’ Rather, as with any situation in which the courts are called upon to interpret or construe statutory language, the touchstone is legislative intent.”
“5. To divine legislative intent, courts begin by examining and interpreting the language the legislature used. Only if that language is ambiguous do we rely on any revealing legislative history or background considerations that speak to legislative purpose, as well as the effects of application of canons of statutory construction.”
“6. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.”
“7. When faced with an alternative means question, a court must determine for each statute what the legislature's use of a disjunctive ‘or’ is intended to accomplish. Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it merely to describe a material element or a factual circumstance that would prove the crime? The listing of alternative material elements, when the list is incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction.”
“8. Statutory structure, including separation of alternatives into distinct subsections, can be an important clue to legislative intent on alternative means.”
“9. Options within alternative means do not constitute further alternative means if they do not state additional and distinct ways of committing the subject crime, that is, if they do not require proof of at least one distinct, material element of mens rea, actus reus, or causation.”
“10. Options within a means or definitional statutory language that merely elaborates on elements rather than defining the subject crime signals secondary matter that does not raise an alternative means issue.”
“11. Statutory language purely descriptive of factual circumstances that may prove the subject crime signals secondary matter not giving rise to an alternative means issue.”
“12. Alternative means of committing a crime are not created by the phrase ‘of either the child or the offender, or both’ in K.S.A. 21–3504(a)(3)(A), which describes indecent liberties with a child as any lewd fondling or touching of either a child who is under 14 years of age or the offender ‘done or submitted to with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both’ The phrase ‘either the child or the offender, or both’ does not state a material element of the crime but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent. This phrase also outlines options within a means, and it can be accurately described as purely descriptive of factual circumstances that may prove the distinct, material mental state element of the crime.”
“13. Alternative means of committing a crime are not created by the phrase ‘of the offender or another’ in K.S.A. 21–3508(a)(2), which prohibits ‘exposing a sex organ in the presence of a person who is not the spouse of the offender and who has not consented thereto, with intent to arouse or gratify the sexual desires of the offender or another.’ The distinct, material mens rea of the crime is the unified intent to arouse or gratify sexual desires. The phrase ‘of the offender or another,’ which is a description of the potential incidental objects of that intent, merely outlines options within a means, descriptive of factual circumstances that may form the State's proof.” 295 Kan. –––––, Syl. ¶¶ 1–2, 4–13.
Dimmick was convicted of kidnapping. There was overwhelming evidence, if believed, that he accomplished this by means of force and threat. There was much weaker evidence, approaching none, that the kidnapping was accomplished by deception.
We believe, as in Brown, that a reasonable reading of the statute shows that the legislature was clearly criminalizing the taking of persons for ransom or to be used as shields. Force, threat, and deception are merely descriptions of material elements or factual circumstances that would prove the crime. Under the facts of this case the listing of deception in the statute describes a material element or factual circumstance that would prove the crime. It does not create an alternative means, even if the description is included in a jury instruction.
We therefore find the possible failure to provide sufficient evidence of kidnapping by deception does not cause the verdict to be faulty where there was overwhelming evidence of kidnapping by threat and force.
Next, Dimmick argues the jury instructions were clearly erroneous for not listing the specific moving violations that constituted his eluding police conviction.
Since Dimmick failed to object to the trial court's instruction as to the moving violations establishing eluding, we must apply a clearly erroneous standard of review. See K.S.A. 22–3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Jury Instruction No. 19 stated:
“The defendant is charged with the crime of fleeing or attempting to elude a police officer. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved;
1. That the defendant was driving a motor vehicle; and
2. That the defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop; and
3. That the defendant intentionally failed or refused to bring the motor vehicle to a stop, or otherwise fled or attempted to elude a pursuing police vehicle; and
4. That the police officer giving such a signal was in uniform, prominently displaying such officers badge of office; and
5. That the police officer's vehicle was appropriately marked showing it to be an official police vehicle; and
6. That the defendant engaged in reckless driving, was involved in a motor vehicle accident, intentionally caused damage to property, or committed five or more moving violations; and
7. That this act occurred on or about the 12th of September, 2009, in Shawnee County, Kansas.”
Instruction No. 19 was written in conformance with PIK Crim.3d 70 .09, which instructs the jury on the elements of fleeing or attempting to elude a police officer under K.S.A.2011 Supp. 8–1568(b)(1)(E). 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. See State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).
K.S.A.2011 Supp. 8–1568(a) prohibits a driver from willfully failing or refusing to bring his or her motor vehicle to a stop for a pursuing police vehicle when given a visual or audible signal to do so. A first-time conviction of fleeing or attempting to elude is a class B misdemeanor. K.S.A.2011 Supp. 8–1568(a) and (c)(1). However, the statute elevates the crime to a severity level 9 person felony when certain circumstances occur during the pursuit. These circumstances include when the driver engages in reckless driving, is involved in a motor vehicle accident or intentionally causes damage to property, or commits five or more moving violations during a police pursuit. K.S.A.2011 Supp. 8–1568(b)(1)(C)–(E) and (c)(4). The statute does not define what constitutes a moving violation.
In support of his argument, Dimmick relies heavily on State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010). In Richardson, a police officer attempted to stop Richardson for a traffic violation. Richardson did not stop but sped away, resulting in a police pursuit. During the pursuit, Richardson committed a number of traffic violations. The State charged Richardson with, among other things, felony fleeing or attempting to elude the officer while committing at least five moving violations. The jury convicted Richardson of felony fleeing or attempting to elude.
In State v. Richardson, 40 Kan.App.2d 602, 610–11, 194 P.3d 599 (2008), aff'd in pari and rev'd in part290 Kan. 176, the Court of Appeals held the failure to instruct the jury on the specific underlying moving violations and their respective elements was erroneous, reasoning that without instructions specifying which of Richardson's various traffic infractions constituted moving violations, the jury may have found Richardson guilty of a traffic infraction that was not a moving violation. Applying a clearly erroneous standard of review, however, the Richardson court determined that in light of the overwhelming evidence of Richardson's 14 moving violations, there was no real likelihood that the jury could have returned a different verdict. As a result, the court affirmed Richardson's conviction for felony fleeing or attempting to elude.
Our Supreme Court granted review. In Richardson, 290 Kan. 176. Although the Supreme Court agreed that failure to instruct the jury on the specific underlying moving violations was erroneous, it disagreed with this court's application of the clearly erroneous standard. 290 Kan. 181–82. Rather, the Supreme Court observed that where district courts have erred by omitting an element of a crime, our courts have applied a harmless error analysis. Under this standard of review, a court looks to “whether the omitted element was uncontested and supported by such overwhelming evidence that the jury verdict would have been the same without the omission. [Citations omitted.]” 290 Kan. at 182–83.
Ultimately, the Supreme Court determined that when conducting a harmless error review, an appellate court may not “speculate with legal finality which of a wide range of conduct, some legal and some illegal, a jury elected to consider moving violations.” 290 Kan. at 183. The court concluded that the weight of the evidence is immaterial, and in contrast to this court, the court found that failure to provide the jury with an instruction detailing the specific violations constituted clear error and reversed Richardson's conviction for fleeing or attempting to elude a police officer. 290 Kan. at 183.
Here, the evidence established that Trooper Wilson saw Dimmick in the minivan where Dimmick failed to use turn signals, traveled at speeds near 110 miles per hour, failed to maintain a single lane, passed other vehicles in a no-passing zone, drove recklessly, and failed to stop at stop sign. Applying the trial court's instructions to the evidence at trial, the jury had a basis to conclude that certain traffic violations were considered moving violations and that Dimmick had committed five or more of them.
However, the trial court did not provide the specific elements of each kind of moving violation at issue. Under Richardson, this was error. “When a statute makes the commission of a crime or the intent to commit a crime an element of another crime, the jury instructions must set out the statutory elements of the underlying offense. [Citations omitted.]” 290 Kan. at 182.
Given this error and Dimmick's failure to object below, “the reviewing court must determine whether it is convinced of a real possibility that the jury could have rendered a different verdict had the trial error not occurred.” See 290 Kan. at 182. Moreover, the Supreme Court “has made the omission of an element of a crime subject to harmless error analysis where the reviewing court examines the record to determine whether the omitted element was uncontested and supported by such overwhelming evidence that the jury verdict would have been the same without the omission.” 290 Kan. at 182.
We are convinced the error was harmless. The overriding reason for our conclusion is that Dimmick's attorney admitted during opening and closing arguments that Dimmick had committed the crime of felony fleeing and eluding and also theft and asked the jury to hold his client accountable for these particular crimes. At the end of his closing argument, defense counsel stated:
“Now I told you in the opening statement much as I like to talk, I won't use all my 45 minutes—that probably breaks everybody's heart, but as I told you in the opening statement, we didn't dispute that Mr. Dimmick was in a stolen vehicle, and we don't dispute that he tried to get away from the police. He was in the stolen vehicle when he tried to do that. So that's a pretty easy determination for you, I think.
“... And then I—very seldom have I ever said this to a jury, but I believe that you should find the defendant guilty of eluding the police and of theft. We don't dispute that. We're not trying to hide anything.”
Based on defense counsel's concession in opening and closing arguments, it is apparent that his strategy was to establish credibility with the jury by admitting Dimmick's guilt for the lesser felony charges of fleeing and eluding and theft, while strenuously arguing Dimmick's innocence of the more serious charges of kidnapping. This may well have been a good strategy considering the very strong evidence against him on this charge.
We are convinced the jury's verdict would have been the same had the trial court set forth the elements of the particular moving violations that comprised one element of the fleeing and eluding charge. Neither Dimmick nor, of course, the State contested Dimmick's guilt on this count.
Next, Dimmick argues the jury instructions on the kidnapping charges were erroneous.
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction. [Citations omitted.]” State v. Appleby, 289 Kan. 1017, 1059,221 P.3d 525 (2009).
This jury instruction argument dovetails with his alternative means argument. We find, for the reasons set out above, that the jury instructions were not erroneous.
Last, Dimmick argues that even if all the alleged errors do not warrant reversal of his convictions on their own merits, cumulatively they substantially prejudiced him and denied him a fair trial. We disagree. The evidence to prove the charges was overwhelming. Dimmick did not receive a perfect trial, but he did receive a fair trial.
Affirmed.