Opinion
No. 108,301.
2014-09-19
STATE of Kansas, Appellee, v. Stephen Alan MACOMBER, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge.Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.Jacqie Spradling, assistant district attorney, Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David B. Debenham, Judge.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant. Jacqie Spradling, assistant district attorney, Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STEGALL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Stephen Macomber was convicted of the second degree murder of Ryan Lofton and of criminal possession of a firearm. This is Macomber's direct appeal in which he makes numerous claims of error. Because we agree with Macomber that (1) he was subject to double jeopardy when he was convicted of criminal possession of a firearm and that (2) the district court committed reversible error when it admitted evidence in violation of K.S.A. 60–455, we need not address Macomber's other claims as they are rendered moot. We therefore reverse Macomber's convictions, vacate his sentence, and remand to the district court.
Facts
On June 7, 2010, Macomber went on a crime spree resulting in numerous convictions obtained over the course of three separate prosecutions and appeals. The crimes at issue in this, his third appeal, occurred first in time but were the last to be tried. Following the events alleged by the State in this case, Macomber fled from Shawnee County to Marshall County where he committed additional crimes.
1. Marshall County Crimes
Once in Marshall County, Macomber encountered and shot Sheriff's Deputy Fernando Salcedo twice and absconded with Salcedo's patrol vehicle. From this incident, the State charged Macomber with attempted first-degree murder, aggravated battery on a law enforcement officer, aggravated robbery, aggravated assault on a law enforcement officer, and criminal possession of a firearm. A jury found him guilty of all charges and this court affirmed those convictions on appeal. See State v. Macomber, No. 107,205, 2013 WL 3455776 (Kan.App.2013) (unpublished opinion), rev denied 298 Kan. –––– (Feb. 18, 2014) ( Macomber I ).
After Macomber shot Salcedo, he drove to the town of Blue Rapids in Marshall County where he encountered 67–year–old Hedy Saville and promptly took her hostage. Macomber eventually surrendered to police and, from this incident, he was charged with kidnapping, aggravated burglary, aggravated assault, criminal possession of a firearm, and criminal threat. Again, a jury found Macomber guilty of all charges. On appeal, this court affirmed the bulk of Macomber's convictions but reversed his second conviction for criminal possession of a firearm. See State v. Macomber, No. 107,205, 2013 WL 3455777 (Kan.App.2013) (unpublished opinion), rev denied 298 Kan. –––– (Feb. 18, 2014) ( Macomber II ). The Macomber II panel concluded that the two charged incidents of criminal possession of a firearm occurred during a single, unitary course of conduct and that the unit of prosecution applicable to K.S .A. 21–4204 is a single continuous act of possession rather than separate proven instances of possession.
2. Shawnee County Crimes
The events that led to Macomber's flight to Marshall County (and the subsequent crimes committed there) gave rise to his third trial at which the State charged him with first degree murder and criminal possession of a firearm. The facts as alleged by the State and presented to the jury are summarized as follows.
Macomber's friend Risa Loften had telephoned Macomber and asked him to come to the home of her estranged husband, Ryan Lofton, to pick her up. Ryan, however, did not want Risa to leave with Macomber and he followed her outside when Macomber arrived. Risa then got into the passenger seat of Macomber's car while Macomber sat in the driver's seat. Also present were Cassandra Skirvin and Josh Kenoly.
Risa Lofton testified that as she got in the passenger's seat, Ryan had begun to walk away. Ryan turned, however, and started coming back to the car. Risa saw Macomber reach under his seat and pull out a crown royal bag. She recognized a pistol grip protruding from the bag. Risa observed Macomber track Ryan's movements with the gun as Ryan walked to the driver's side of the car. Macomber's car window was open approximately 4 inches. Risa testified that “there was a lot of chaos” at that moment. She attempted “to pull Macomber's arm away from the window where Ryan was standing.” After she failed to get the gun away, she started to get out of the car to “push Ryan out of the way,” but as she exited the car she heard a gunshot. She went to Ryan, who had fallen on the ground, and Macomber fled alone. Ryan Lofton died of the gunshot wound.
Skirvin testified that she saw Risa struggling for something in the car, then saw “a spark and I heard a gunshot, and Ryan threw his arms up and said, Tm shot.' “ Kenoly, from his perspective, saw Ryan go from the passenger's side of the car to the driver's side. He saw Ryan talking to Macomber and they “started getting into a little tussle.” Kenoly could hear Ryan say, while he was standing near the driver's side of Macomber's car, “what are you going to do, shoot me?” Kenoly then heard a gunshot.
Zachary Carr, a firearms expert with the KBI, testified that Macomber's gun, recovered after his standoff with law enforcement in Marshall County, was a .357 magnum revolver. He testified that the gun was in working condition when he received it. Ballistics testing indicated the gun was the one used to shoot Ryan Lofton. Unfortunately, during the “hammer push off” test, where the examiner pushes the hammer of the gun to ensure the hammer will not improperly disengage, Carr damaged the firearm. Carr testified that after he had tested the gun five to seven times normally, he applied excessive force, damaging the gun so the hammer would now disengage and fall very easily.
Macomber represented himself, with standby counsel present, and testified on his own behalf at trial. He testified that Risa brought the gun into the car. He testified that he told Ryan that Risa leaving was none of his business and Ryan responded, “I guess I'm going to have to shoot you then.” Macomber testified that he put the hammer of the gun in the cocked position and Ryan then reached into the car to grab the gun. Macomber testified, “I don't know if I pulled the trigger. I don't know if it hit the door. I don't know. I don't know.”
Macomber put on his own firearms expert, John Cayton, in his defense. Cayton testified that a portion of the trigger spring was removed from Macomber's gun making it easier to fire. He described that the trigger of the gun, while in single action mode, required less pressure than even a typical “hair trigger.” Cayton also opined that the damage to the gun could have been present when Lofton was shot and merely aggravated by Carr's testing. Macomber's theory of defense centered on his contention that the shooting was an accident caused by the gun defect and the struggle between Lofton and Macomber.
3. The State's Introduction of Evidence of Other Crimes
To rebut Macomber's accidental shooting defense, the State filed a motion prior to the close of its case in chief styled Motion to Admit Evidence. The State asked the court for permission to “admit evidence that the defendant fired the gun used to kill Mr. Lofton approximately two hours after he killed Mr. Lofton and the gun was functioning without defect at all times relevant hereto.” The State argued that because Macomber had placed into issue the material fact of whether the gun had accidentally discharged, evidence tending to demonstrate that the gun was in proper working order was admissible pursuant to K.S.A. 60–455. The State further represented to the court that it did “not intend to expound on all the details of the defendant's subsequent criminal conduct” but that it merely sought “to rebut any assertion that the gun was not in working order at the time of the murder.”
The court took up the State's motion during a bench conference that occurred immediately prior to the State's cross-examination of Macomber. The State reiterated the arguments made in its written motion and proffered that it intended to cross-examine Macomber on the subsequent shooting as well as offer into evidence Salcedo's testimony and a law enforcement video recording of the encounter between Salcedo and Macomber. The court then recessed the trial and dismissed the jury in order to conduct a review of the proffered evidence and hear further argument. After a review of the video evidence, Macomber objected to the State's motion in its entirety. The court conducted a K.S.A. 60–455 analysis and found that whether or not there was an accidental discharge of the firearm was material, was in dispute, and that any evidence that the gun was in working order a short time thereafter was relevant to resolving the disputed material fact. The court then proceeded to weigh the probative value of the proffered evidence against potential undue prejudice to Macomber. In making its final ruling on the State's motion, the court found that the probative value of the video evidence was outweighed by its potential undue prejudice to Macomber and therefore excluded it. However, the court allowed cross-examination of Macomber and testimony from Salcedo to show that following the Lofton shooting “there was an intentional discharge of this weapon and that there was not an accidental discharge.”
We recite a lengthy portion of Salcedo's testimony to illustrate the breadth of Salcedo's testimony:
“Q. Will you tell us your name please, sir?
“A. Fernando Salcedo.
“Q. How do you make your living?
“A. I am a sheriff's deputy for the Marshall County sheriff's office.
“Q. Do you mind telling us how old you are, sir?
“A. I'm 24.
“Q. And on June 7th, 2010, how old were you then?
“A. 22.
“Q. How long had you been a law enforcement officer on June 7th, 2010?
“A. I had just been out of the academy about nine months.
...
“Q. So you've been a police officer for less than a year as of June 7th, 2010?
“A. Yes.
“Q. On that day, sir, did you see this defendant? ...
“A. Yes.
“Q. Can you tell us how you saw him, what drew your attention to him?
“A. I had seen the vehicle that he was driving and he was speeding. I caught him on radar.
“Q. In what city and county please?
“A. It was in Blue Rapids.
“Q. Is that Marshall County?
“A. Yes.
...
“Q. How fast was he going, do you remember?
“A. 77 in a 55 mile per hour zone.
“Q. So you followed the defendant's car?
“A. Yes.
“Q. At the time did you know that the defendant had shot and killed somebody in Topeka?
“A. I had no idea.
“Q. And at the time you didn't know that he was wanted for anything; is that right?
“A. Yes.
...
“Q. How long did you follow the defendant before you were able to make contact with him?
“A. We were about a mile or so west of town, west of Blue Rapids I would say about a mile and-a-half.
“Q. And so you followed the defendant about a mile and-a-half?
“A. Yes.
“Q. How did the chase end?
“A. I seen the vehicle pulled up in a driveway, and I pulled up behind him.
...
“Q. When you walked up to the defendant, is he still sitting in the driver's seat?
“A. Yes.
“Q. Will you tell us what happened?
“A. He had opened his door and he had positioned himself where his feet were on the ground but he hadn't stepped out of the vehicle just yet.
“Q. Were you talking to him?
“A. I was starting to, yes.
“Q. What were your starting to say?
“A. I was going to tell him about his speeding.
“Q. Ask him to slow down or what not?
“A. Yes.
“Q. What happened?
“A. He had responded to me by saying, “I don't know what I'm going to do.”
“Q. Did you see anything in the defendant's hand?
“A. Not right away.
“Q. When's the first time you saw his gun.
“A. When he pulled it out and he held it to himself.
“Q. Then what happened?
“A. Then he eventually got out of the car and pointed it to me.
“Q. When the defendant got out of the car and pointed his gun at you, what portion of your body did he point it at?
“A. It was at my head.
“Q. And at this point did you have your gun drawn yet?
“A. No.
“Q. Tell me the caliber please of the weapon that you had with you at the time.
“A. Mine is a.45.
“Q. Have you since learned that the defendant's was a .357 magnum?
“A. Yes, he had told me that it was a .357.
“Q. Right then when he's pointing it at you he tells you it's a .357?
“A. Yes.
“Q. Does he give you any directions or commands?
“A. Yeah. He told me to give up my gun.
“Q. Did you?
“A. No.
“Q. Why not?
“A. I told him that I couldn't.
“Q. Because if you did, what would happen in your mind?
“A. I would die.
...
“Q. Did the defendant tell you any other commands besides to give him your gun?
“A. After he couldn't get the gun, he asked me to get on the ground face first.
...
“Q. Deputy, did you have a chance to talk the defendant in to giving up his gun?
“A. No. I tried to talk him down.
“Q. What happened?
“A. He just kept ordering me to the ground.
“Q. But you never did, right?
“A. At some point I did sit in between both my vehicle and his.
“Q. Okay, So you're sitting on the ground, right?
“A. Yes.
“Q. Are there any shots fired?
“A. Yes.
“Q. Who pulled their gun first?
“A. He had his gun on me pretty much the whole time,
“Q. Who shot their gun first?
“A. He did.
“Q. When you say ‘he’ do you see Stephen Macomber, the man who shot you in the courtroom today?
“A. Yes.
“Q. What's he wearing?
“A. He's wearing a gray suit, red tie, white shirt underneath.
“Q. How many times did the defendant shoot you on June 7th, 2010?
“A. He hit me twice.
“Q. Where?
“A. In my left wrist and in the back.
“Q. Were you wearing a bullet proof vest that day?
“A. I was.
“Q. Did you bring that with you?
“A. I did.
“(WHEREUPON, State's Exhibit Number 282 was marked for identification by the reporter.)
“Q. The sack that I've marked as State's Exhibit 282, does it contain the bullet proof vest that you were wearing on June 7th of 2010?
“A. Yes.
“Q. Is this what you were wearing when the defendant shot you in the back?
“A. Yes.
...
“MS. SPRADLING; Move to admit 282.
...
“DEFENDANT MACOMBER: No objection.
“THE COURT: 282 will be admitted.
“Q. (By Ms. Spradling) Will you tell us if you're had any surgeries please?
“A. I did in both my wrist and in my back.
“Q. How many?
“A. Approximately more than five.
“Q. Did you tell me more than five?
“A. Yeah.
“Q. On June 7th, 2010, had you ever met the defendant?
“A. No.
“Q. Never knew him?
“A. No.
“Q. The guy you didn't know shot you twice?
“A. Yes.”
The State's cross-examination of Macomber on the subject was equally expansive.
“Q. And when you got out of the car, you had this gun in your hand, didn't you?
“A. Yes, ma‘am.
“Q. And the deputy as he walked up to your car did not have his gun drawn, did he?
“A. He did not.
“Q. And you pointed your gun, this gun, at Deputy Fernando Salcedo of Marshall County sheriff's deputy, didn't you?
“A. Yes, I did.
“Q. Pointed it at his head, didn't you?
“A. Yes, I did.
“Q. And you ordered Deputy Salcedo to get on the ground, right?
“A. Among a number of other things I ordered him, yes.
“Q. While you're ordering Deputy Salcedo to get on the ground, you're still pointing the gun at him, aren't you?
“A. I am.
“Q. And he still doesn't have his firearm drawn, does he?
“A. While I'm pointing the gun at him?
“Q. While you're ordering him to get on the ground.
“A. No, He doesn't have his gun drawn.
...
“Q. Now, he was in uniform that day, wasn't he?
“A. He was.
“Q. So he had a gun on?
“A. He did.
“Q. When Deputy Salcedo did not give you his gun, you shot at him, didn't you?
“A. That's not correct.
“Q. You were the first one to fire a gun that day between
“A. Oh, yes, I was the first one to fire.
“Q. Wait. You were the first one to fire a gun between you and Deputy Salcedo, right?
“A. Yes, I was.
“Q. And so you fired the gun while Deputy Salcedo still had his in his holster, correct?
“A. I fired my gun when Deputy Salcedo tried to draw his weapon on me.
“Q. And what happened was that there was an exchange of gunfire between you and Deputy Salcedo; is that right?
“A. I fired twice.
“Q. I didn't ask you how many times you fired. There was a gun fight between you and Deputy Salcedo correct?
“A. There was. There was an exchange of gunfire, yes, ma‘am.
...
“Q. Did you fire this firearm at Ryan Lofton?
“A. Yes I did.
“Q. Are you telling us you reloaded then?
“A. I'm telling you that there was one other bullet inside of the Crown Royal bag, and I reloaded the weapon, yes, ma‘am.
“Q. You reloaded the weapon?
“A. I did.
“Q. Before you shot Ryan Lofton or before you shot Deputy Salcedo?
“A. I reloaded the weapon before I shot Deputy Salcedo after I had shot Ryan Lofton.
“Q. Now, you shot Deputy Salcedo in his left wrist, didn't you?
“A. I did.
“Q. And you shot Deputy Salcedo in the back, too, right?
“A. I did.”
Following Salcedo's testimony on direct examination, Macomber moved for a mistrial on the grounds that the State had exceeded the scope of the court's order concerning the Marshall County shooting. The court denied Macomber's motion saying “I don't think that the testimony exceeded the bounds of what the Court allowed in this case under 60–455.”
In closing arguments, the State relied heavily on Macomber's confrontation with Salcedo to argue for his guilt:
“[Macomber] intentionally shot Ryan in the back just like he shot ... Fernando Salcedo in the back. It was intentional in Topeka just like it was intentional in [Marshall County].... The defendant told you that after he shot Ryan he took that spent cartridge out and reloaded. Took his now fully loaded revolver with him to [Marshall County], and when he confronted Deputy Salcedo, he fired the first round at him. The defendant pulled the trigger again and fired the second round. The defendant fired the third round. The defendant fired the fourth round. The defendant fired the sixth round, which makes the defendant guilty as charged.”
The jury convicted Macomber of the lesser included offense of second degree murder and criminal possession of a firearm. Macomber appeals.
Analysis
Macomber asserts the following reversible errors occurred during his trial: (1) a violation of the double jeopardy clause of the Fifth Amendment; (2) admission of evidence in violation of K.S.A. 60–455; (3) violations of pretrial orders; (4) numerous erroneous evidentiary rulings; (5) jury instruction errors; (6) prosecutorial misconduct; and (7) cumulative error. Because we find in favor of Macomber on the first two claims of error, thus reversing his convictions, Macomber's other claims of error are rendered moot and will not be addressed.
1. Double Jeopardy
Macomber's crime spree lasted roughly 12 hours. The shooting of Ryan Lofton and the crimes detailed in Macomber I and Macomber II were separated in time by roughly 2 to 3 hours. It is undisputed that Macomber possessed the same firearm over the course of events, and it was this same weapon that Macomber was charged three separate times with possessing—resulting in three separate convictions for violating K.S.A.21–4204. This court has already reversed the second of these convictions on double jeopardy grounds. See Macomber II, 2013 WL 3455777 at, *3–7.
Prior to trial, Macomber moved for dismissal of the criminal possession charge on double jeopardy grounds. His motion was denied. Whether a criminal defendant's constitutional protection against double jeopardy is violated is a question of law over which we exercise unlimited review. State v. Jenkins, 295 Kan. 431, 434, 284 P.3d 1037 (2012). Macomber reprises the arguments he made in Macomber II and to the district court. The State argues that Macomber's convictions do not violate double jeopardy because the convictions did not arise of the same conduct, relying in particular on the fact that while the possession charges in Macomber I and Macomber II both occurred in Marshall County, the possession charged in this case occurred in Shawnee County.
The Double Jeopardy Clause of the Fifth Amendment provides: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, the Kansas Constitution requires that no person “be twice put in jeopardy for the same offense.” Kan. Const. Bill of Rights, § 10. There are three categories of double jeopardy which the clause protects against: “(1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006). Here, Macomber argues he has been unconstitutionally subject to a “[third] prosecution for the same offense after conviction.”
“[I]t is recognized that a double jeopardy issue is not raised when a defendant is charged, tried, and sentenced for discrete and separate acts or courses of conduct. Rather the issue arises when the conduct is unitary, arising from what is usually referred to by the Court as ‘the same act or transaction’ or a ‘single course of conduct.’ [Citations omitted]” Schoonover, 281 Kan. at 464.
When a defendant has been charged or convicted with multiple violations of the same statute for conduct that is unitary, the court must determine what the “allowable unit of prosecution” is for the given criminal statute. Schoonover, 281 Kan. at 464. Thus, our analysis is divided into two steps. We must determine first, whether Macomber's conduct was unitary; and second, whether the allowable unit of prosecution for a violation of K.S.A. 21–4201 is a single continuous act of possession or each is a separate, proven instance of possession.
At the outset, we note that the Macomber II panel has already decided these questions in Macomber's favor as they relate to his separate Marshall County crimes. While we are not bound by that panel's ruling, we nevertheless find its reasoning sound and persuasive.
Our Supreme Court established a non-exclusive list of factors to determine if conduct is unitary, including:
“(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” Schoonover, 281 Kan. at 497.
Criminal possession of a firearm by a convicted felon “is possession of a firearm” by a person with a certain criminal history as set forth in statute. K.S.A. 21–4204. The Macomber II panel held that Macomber's conduct from the time he encountered Deputy Salcedo until his surrender to law enforcement was unitary. The panel distinguished criminal possession of a firearm from other crimes like assault, which requires actual action, because criminal possession of a firearm “criminalizes the simple possession of a firearm without any requirement that it be used.” Macomber II, 2013 WL 3455777, at *4.
The panel noted that “there was no evidence that Macomber relinquished possession of his pistol between the shooting of Deputy Salcedo and the crimes at issue here.” Macomber II, 2013 WL 3455777, at *5. The panel concluded that Macomber was engaged in a unitary course of conduct because while he “committed separate crimes, ... he did so with the same firearm in the same municipality on the same day.” 2013 WL 3455777, at *5.
The panel also took guidance from federal case law regarding a parallel federal statute.
“[18 U.S.C. § 922(g)(1) (2006) ] makes it unlawful for any person ‘who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year, ... to ... possess in or affecting commerce, any firearm.’ The United States Court of Appeals for the Seventh Circuit has held that ‘to charge and punish a defendant for more than one § 922(g)(1) offense for separate “possessions” of the same gun, there must be a relinquishment of both actual and constructive possession of the gun before it is reacquired.’ “ Macomber II, 2013 WL 3455777 at *5 (quoting United States v. Ellis, 622 F.3d 784, 794 [7th Cir.2010] ).
The State attempts to characterize Macomber's conduct in Shawnee County as separate and distinct from his conduct in Marshall County. The State relies on the few hours separating the crimes, on the fact that the crimes were separated geographically by a political boundary line, and on the claim that the shooting of Salcedo was an intervening event. The State argues that these facts demonstrate that each time Macomber used his gun he had a chance to reconsider his possession of it, creating a fresh impulse of possession each time.
These are all distinctions without a difference. As in Macomber II, there is no evidence that Macomber relinquished his .357 revolver between the time he used it in his initial shooting and the subsequent events. The events all occurred close in time and were sequential and without interruption. K.S.A. 21–4204 prohibits the possession of a firearm, not the use of one. We find no support in either the case law or the record for the State's “fresh impulse” theory of possession. Macomber did not possess the gun in discrete moments or in discrete geographical locations separated by moments—even fractional moments—of non-possession. Macomber's possession of the firearm from the time of the Lofton shooting to the time he surrendered to law enforcement was a unitary course of conduct.
The Macomber II panel held that the appropriate unit of prosecution for a violation of K.S.A. 21–4204is a single continuous act of possession and not separate, proven instances of possession. We agree.
The Schoonover court explained “[w]hen the prosecution is based upon the same conduct, there can be only one conviction for that minimum unit of prosecution. The key to determining the minimum unit of prosecution is legislative intent.” 281 Kan. at 471. Our Supreme Court continued:
“The determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Rather, the key is the nature of the conduct proscribed. This concept is illustrated by the holding in Universal C.I.T. Credit Corp. The defendant violated the Fair Labor Standards Act through a managerial decision that certain activity did not require overtime payment. Even though there were multiple underpayments to multiple employees during multiple pay periods, the Court determined that Congress intended one punishment for the one managerial decision. 344 U.S. at 224, 73 S.Ct. 227. The unit of prosecution was determined by the scope of the course of conduct defined by the statute rather than the discrete physical acts making up that course of conduct or the number of victims injured by the conduct.” Schoonover, 281 Kan. at 472.
When determining the legislatively intended unit of prosecution, appellate courts must apply the rule of lenity, interpreting ambiguities in favor of the defendant. Schoonover, 281 Kan. at 472. After reviewing case law from various jurisdictions, the Macomber II panel concluded that because Kansas law criminalized only possession of a firearm by a person with a certain criminal history, and not possession in conjunction with a specific act, the legislature intended the permissible minimum unit of prosecution to be a single, continuous act of possession.
“Macomber committed multiple felonies in Blue Rapids on June 7, 2010, but the Kansas statute did not link his possession with the commission of a felony or any other fact apart from Macomber having a qualifying criminal history. Neither his possession of the pistol nor his criminal history changed between the facts of [ Macomber I ] and the present case.” Macomber II, 2013 WL 3455777, at *7.
Here, our analysis is no different. Because Macomber's possession of a firearm consists of a unitary course of conduct, and because the legislature intended that the minimum unit of prosecution for violating K.S.A. 21–4204 is a single continuous act of possession, Macomber was subject to double jeopardy in this case and his conviction for criminal possession a firearm must be reversed.
2. Admission of Evidence of Other Crimes
Macomber next contends that the district court erred when it granted the State's motion to introduce evidence that Macomber's pistol was in proper working order a few hours after the Lofton shooting. A three-part test governs whether evidence about a person's other crimes or wrongdoing may be admitted pursuant to K.S.A.2013 Supp. 60–455:
“First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.
“Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.
“Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion.”
“If the evidence meets all of these requirements, it is admitted, but in a jury trial the district court must give the jury a limiting instruction telling the jury the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose).” State v. Torres, 294 Kan. 135, 139–40, 273 P.3d 729 (2012).
Judicial discretion is abused when no reasonable person would have taken the position taken by the trial court. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). K.S.A. 60–455 states that evidence of other crimes or wrongdoing “is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
According to the State's motion, the prosecution sought to introduce “evidence that the defendant fired the gun used to kill Mr. Lofton approximately two hours after he killed Mr. Lofton and the gun was functioning without defect at all times relevant hereto.” The State further represented to the court that it did “not intend to expound on all the details of the defendant's criminal conduct” but that it merely sought “to rebut any assertion that the gun was not in working order at the time of the murder.” The court allowed cross-examination of Macomber and testimony from Salcedo to demonstrate that subsequent to the Lofton shooting “there was an intentional discharge of this weapon and that there was not an accidental discharge.”
The jury then heard evidence of the following facts, all of which arose out of the confrontation between Macomber and Salcedo: (1) Salcedo was 22 years old and had been a law enforcement officer less than a year; (2) on the day in question, Salcedo was in uniform and patrolling in his marked law enforcement vehicle; (3) Salcedo caught Macomber on radar speeding through Marshall County; (4) Macomber did not pull over but led Salcedo on a mile-and-a-half chase; (5) after stopping, Macomber drew his gun on Salcedo as Salcedo approached; (6) Macomber pointed his gun at Salcedo's head and ordered him to give up his service weapon and lie on the ground; (7) Salcedo believed that if he gave up his service weapon he would die; (8) Macomber then shot Salcedo twice, once in the back and once in the wrist; (9) Salcedo was spared worse injury by the bulletproof vest he was wearing which was introduced into evidence to show the bullet hole; and (10) Salcedo had more than five surgeries following the shooting to repair the damage.
Here, we have no difficulty concluding that virtually none of the evidence presented to the jury concerning the encounter between Macomber and Salcedo was relevant to proving the particular disputed material fact— i.e., whether Macomber's gun was susceptible to an accidental discharge. Salcedo's professional history, Macomber's speeding, the ensuing chase, Macomber's aggressive assault and eventual shooting of Salcedo in the back, the damaged bulletproof vest, and Salcedo's lengthy recovery—none of this has any bearing whatsoever on the mechanical state of Macomber's gun.
Even if there was some vestigial relevance of the bare fact that the gun was discharged properly within a few hours of the Lofton shooting, when it is shorn of the irrelevant context, the evidentiary value of that fact approaches zero. As such, the evidence had virtually no probative value. On the other hand, it was highly prejudicial in character. The State presented evidence that Macomber pointed a gun at the head of a sympathetic young police officer (who thought he might die), forced him onto the ground, and shot the officer twice, once in the back. As such, the district court abused its discretion when it determined that the probative value of the evidence outweighed its potential for undue prejudice.
As a final step in our analysis, we consider whether the State has carried its burden to show harmless error, i.e., whether there is “no reasonable probability that [the] error affected the outcome of the trial in light of the entire record.” State v. McCullough, 293 Kan. at 970, 983, 270 P.3d 1142 (2012). The State briefly raises two arguments that the error was harmless. First, the State relies on the court's limiting instruction to the jury; and second, on the fact that Macomber himself admitted a videotape of the shooting in a last ditch effort to impeach Salcedo's version of events.
Our Supreme Court has long recognized at least three types of prejudice that can follow the admission of evidence of other crimes or wrongdoing:
“ ‘... First, a jury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.’ “ State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973) (quoting Vernon's Kansas Statutes Annotated, Rules of Evidence, § 60–455, p. 376).
The evidence that Macomber point a loaded gun at Salcedo's head, ordered him to the ground, and shot him twice was plainly and unduly prejudicial to Macomber. Salcedo's testimony was such that it could easily have caused that jury to conclude both that Macomber deserved punishment for being a general wrongdoer and that he should be disbelieved because he is a criminal. The undue prejudice was further exacerbated by the State's reliance on the evidence during closing argument. The State argued:
“[Macomber] intentionally shot Ryan in the back just like he shot ... Fernando Salcedo in the back. It was intentional in Topeka just like it was intentional in [Marshall County].... The defendant told you that after he shot Ryan he took that spent cartridge out and reloaded. Took his now fully loaded revolver with him to [Marshall County], and when he confronted Deputy Salcedo, he fired the first round at him. The defendant pulled the trigger again and fired the second round. The defendant fired the third round. The defendant fired the fourth round. The defendant fired the sixth round, which makes the defendant guilty as charged.”
The State's repeated emphasis on the deliberate shooting of Salcedo further reinforced the improperly admitted—and highly prejudicial—evidence to the jury. Due to the nature of the evidence and. the repeated emphasis of that evidence by the State during its closing argument, even with the court's limiting instruction—that the jury could only consider the evidence to prove “lack of accidental discharge due to a defect in the gun”—there remains a reasonable probability that the error affected the outcome of the trial. Likewise, it is clear from a review of the entire record that but for the State's introduction of the improper evidence, Macomber would not have introduced the videotape of the shooting. Thus, we are unable to find that the erroneous introduction of evidence was harmless and therefore, Macomber is entitled to a new trial.
Macomber's convictions are reversed, his sentence is vacated, and the case is remanded to the district court for further proceedings consistent with this opinion.
Reversed, vacated, and remanded.