Opinion
111,699.
07-17-2015
STATE of Kansas, Appellee, v. Norman D. FORGY, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Norman Forgy appeals his aggravated-battery conviction, which arose when he backed his pickup truck into the car his wife was driving. To convict him of aggravated battery, the jury had to conclude either that Forgy used his truck as a deadly weapon or that he otherwise caused physical contact with his wife in a manner that could have inflicted great bodily harm, disfigurement, or death.
Forgy seeks a new trial based on faulty jury instructions; he says that the district court should have given the jury the option of convicting him of misdemeanor battery, which requires only rude or angry physical contact and not the use of a deadly weapon or other contact that could have caused significant harm. But Forgy didn't ask the district court for that instruction, so we review only for clear error, which requires that we firmly conclude the jury would have reached a different verdict had it been told it could convict him for misdemeanor battery rather than aggravated battery. Forgy's defense was that his wife ran into him, not the other way around; the jury surely did not believe him. The jury was properly instructed on aggravated battery, so we presume it followed that instruction, and we find no clear error.
Factual and Procedural Background
The incident that gave rise to Forgy's conviction came after Forgy's wife, Catherine (now Catherine Slattery), had filed for divorce after 17 years of marriage. Mutual restraining orders were intended to keep the parties separated; Slattery had the right to remain in the marital home, a farm residence. She also was in charge of taking care of the farm animals.
Around Thanksgiving 2012, while the divorce action was pending, Slattery found a horse trailer missing and noticed that a gate padlock had been cut. She also found that the padlock to a tack shed had been cut and that the tack kept inside was gone. The horse trailer was eventually found at Forgy's girlfriend's house; some of the tack was found in Forgy's pickup truck after the incident giving rise to the charges against Forgy.
That incident occurred on January 22, 2013. The divorce action was still pending, and divorce-court orders provided that Forgy stay away from the marital residence. But when Slattery came home that day, she saw Forgy's truck backed up to the house. The truck bed was loaded with items she thought were from the house, shop, or tack shed.
Once spotted, Forgy jumped in the truck and pulled out. Slattery gave chase and called 911 en route. She said she later discovered that Forgy had bumped her as he left the driveway and damaged a mirror and rear quarter panel of the car she was driving (which was a Dodge Durango owned by a friend).
Slattery followed Forgy down a county road and then onto Highway 75 headed toward Topeka. She stayed on the phone with police dispatch, giving them mile-marker information. As Forgy started going faster, she sped up. She said they had reached speeds of 90 to 95 miles per hour. Eventually, she decided to give up the chase and pulled over to the side of the road.
After she put the car in park, she said she looked up and saw Forgy's truck backing up toward her at a high rate of speed. She said Forgy's truck had hit the car and moved it back—with her in it—several feet. She said he had continued pushing the car back several more feet, then got out of his truck laughing at her. Forgy got back in his truck as a Kansas Highway Patrol trooper arrived.
Slattery said the collision had damaged the car's bumper and radiator, caused the car to be out of alignment, and broke a light and a plastic underguard. The car's owner testified that repairs had cost $1,585.
Forgy was arrested at the scene, and Slattery drove the truck away since she was still a co-owner. She found many of the items missing from the tack shed from Thanksgiving 2012 in it. When she got back home, she found that the front door had been kicked in. She also found a new padlock on the tack shed and a key that opened it in Forgy's truck.
Trooper Jeremy Harwood was the first officer on the scene. Slattery told him that Forgy had purposely backed into her. Forgy initially told Harwood that Slattery had rearended him when they pulled over to the shoulder. Harwood said that from his observations, he did not believe that was possible. Later, when Harwood explained what he saw from the evidence, Forgy said, “Maybe I did back into her, maybe I didn't. I don't remember.” Harwood estimated that Forgy had been going slightly more than 5 miles per hour at impact; he noted that no airbags had deployed.
Forgy's position at trial was that Slattery rear-ended his truck. He testified that he had passed some cars and then pulled over to the side of the road thinking that traffic flow would take Slattery past him. He said he had planned to drive in reverse to the nearest cross road. Forgy said he had quickly come to a stop, put the truck in reverse, and accelerated backwards. He said that he hadn't been able to see what was happening because his rearview mirror had been blocked—and in 1 or 2 seconds, he had collided with Slattery's vehicle, which had been moving forward on the shoulder before he hit her.
Forgy also presented testimony from an auto mechanic, Matthew Wurm, that the skid marks were caused by the antilock braking system as Slattery was moving forward and attempting to stop before colliding with Forgy's truck. Wurm said that if Forgy's truck had been pushing the car, the truck tires would have left “burnout marks.”
The State called Harwood back to the stand after Wurm testified. Harwood said the skid marks and grooves in the road from pebbles and rocks indicated that Slattery's truck had been moving backwards at the collision. Harwood also said it was extremely unlikely that Slattery could have backed up—after hitting the truck—and stopped exactly at the end of the skid marks, with her tires exactly lined up with them.
The jury convicted Forgy of aggravated battery and criminal damage to property. The district court sentenced Forgy to probation for 24 months, with an underlying prison sentence of 13 months that he would serve if he didn't successfully complete his probation. Forgy then appealed to this court.
Forgy's primary claim on appeal is that the district court should have given the jury the option of convicting him of simple battery, a misdemeanor, rather than aggravated battery, a felony.
A simple battery requires only knowingly causing physical contact with another when done in a rude, insulting, or angry manner. K.S.A.2014 Supp. 21–5413(a). Aggravated battery, as charged in this case, constitutes simple battery plus one of two additional things—either making the contact through the use of a deadly weapon or making the contact in a manner where great bodily harm, disfigurement, or death could be inflicted. K.S.A.2014 Supp. 21–5413(b)(1)(C). Accordingly, simple battery is a lesser-included offense of this form of aggravated battery. See K.S.A. 21–5109(b)(2) (stating that an offense is a lesser-included offense where all elements of it are identical to some elements of the greater offense); State v. Davis, 236 Kan. 538, 542, 694 P.2d 418 (1985) (“[S]imple battery is a lesser included offense of aggravated battery.”).
When the evidence would support a conviction for a lesser-included offense, the district court is supposed to instruct the jury about that offense and give the jury the option of finding the defendant guilty of it rather than the more serious charge. See K.S.A.2014 Supp. 22–3414(3). But overturning a jury verdict in a criminal case is not done lightly. So a competing principle is also applicable in Forgy's case: when the defendant hasn't asked for the lesser-included instruction or objected to the district court's failure to include it, we review only for “clear error.” See K.S.A.2014 Supp. 22–3414(3).
We apply a two-part test for clear error. First, we determine whether the court made an error; the lesser-included instruction must have been legally and factually appropriate. Second, if it did err, we must determine whether the error was harmless. We reverse only if we are firmly convinced that the jury would have reached a different result had the instruction error not occurred. State v. McClelland, 301 Kan. 815, 827, 347 P.3d 211, 220 (2015) ; State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013).
We have already established that a lesser-included instruction for simple battery can be legally appropriate when the charge is aggravated battery: simple battery is a lesser-included offense of aggravated battery. The State does not claim otherwise.
A simple-battery instruction would have been factually appropriate here too. When determining whether a lesser-included-offense instruction is factually appropriate, the court must view the evidence in the light most favorable to the defendant. State v. Rodriguez, 295 Kan. 1146, 1152, 289 P.3d 85 (2012). Although a motor vehicle can be used as a deadly weapon, it isn't always used that way. See State v. Guebara, 24 Kan.App.2d 260, 263–64, 944 P.2d 164 (1997). The jury was correctly told that an object could be a deadly weapon if, “from the manner in which it [was] used, [it was] calculated or likely to produce death or serious bodily injury.” See PIK Crim. 4th 54.310; In re J.A.B., 31 Kan.App.2d 1017, 1022, 77 P.3d 156 (2003).
Whether an object is used as a deadly weapon is a factual question for the jury to decide. State v. Colbert, 244 Kan. 422, 428, 769 P.2d 1168 (1989). Here, Slattery wasn't injured, and the damage to the vehicle she was in was relatively modest. Forgy claimed the collision was an accident, and a law-enforcement officer said Forgy's truck was moving at a very low speed. Thus, the jury should have been given the option to convict Forgy of either aggravated battery or simple battery.
But even though the lesser-included instruction was factually and legally appropriate—and the district court erred by not giving it—we find no clear error: we are not firmly convinced the jury would have reached a different verdict had the correct instruction been given. The jury was properly instructed that it had to find that Forgy used his vehicle as a deadly weapon or made contact in such a manner that great bodily harm, disfigurement, or death could have been inflicted. We presume that the jury followed the instructions. State v. Sisson, 302 Kan. ––––, ––– P.3d ––––, 2015 WL 3646667, at *6 (2015). And here, that presumption seems reasonable: Forgy testified that the contact between his truck and the car was accidental. We must conclude that the jury didn't believe him; it had to conclude that he “knowingly caused physical contact” with Slattery to convict him. The jury also concluded that Forgy either used the truck as a deadly weapon or made contact in such a manner that great bodily injury, disfigurement, or death could have resulted.
Forgy also makes two other arguments on appeal, but neither of them require extended discussion.
First, Forgy argues that the district court should not have admitted evidence that he violated a restraining order in the divorce case by entering the marital residence on Thanksgiving 2012. But Forgy concedes that he did not object when this evidence was presented at trial. K.S.A. 60–404 provides that no verdict shall be set aside based on the erroneous admission of evidence without a timely objection at trial. Our Supreme Court has consistently enforced this in recent years, refusing to consider evidentiary issues on appeal when the objection wasn't preserved at trial. See State v. Lewis, 299 Kan. 828, 839–40, 326 P.3d 387 (2014) ; State v. Huffmier, 297 Kan. 306, 313–14, 301 P.3d 669 (2013) ; State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010) ; State v. Richmond, 289 Kan. 419, 429–30, 212 P.3d 165 (2009) ; State v. King, 288 Kan. 333, Syl. ¶ 5, 204 P.3d 585 (2009). Forgy has not preserved this evidentiary issue for appellate review.
Second, Forgy argues that the district court violated his constitutional rights when it used his criminal history to calculate his sentence without following the procedural safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
But a defendant's prior convictions were explicitly excluded from that requirement in the Apprendi decision. 530 U.S. at 490. And the Kansas Supreme Court has recognized the continuing validity of this prior-conviction exception to Apprendi's requirements. See State v. Overman, 301 Kan. 704, 716, 348 P.3d 516, 525 (2015) ; State v. Snellings, 294 Kan. 149, 167, 273 P.3d 739 (2012) ; State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002). The district court did not err when it used Forgy's prior convictions to calculate his sentence.
We therefore affirm the district court's judgment.