Opinion
No. 109553.
2015-03-13
STATE of Kansas, Appellee, v. Robert Eugene MOORE, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge.Rick Kittel, of Kansas Appellate Defender Office, for appellant.Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert Eugene Moore appeals following his convictions of attempted robbery, residential burglary, two counts of burglary of a motor vehicle, two counts of felony theft, two counts of aggravated burglary, and criminal damage to property. The district court imposed an upward durational departure sentence of 432 months' imprisonment. Moore contends: (1) the district court erred by failing to instruct the jury on the lesser included offense of criminal deprivation of property regarding the theft of a van; (2) his constitutional and statutory rights were violated when the evidence at trial was exhibited to the jury outside of his presence; (3) the aggravating factor used as a basis to impose an upward departure—that Moore presented a risk of future dangerousness to public safety—was vague and violated his double jeopardy rights; (4) the verdict form used by the district court on the question of whether the jury had found the existence of the aggravating factor was incorrect and deprived Moore of due process of law; and (5) the district court failed to make a finding that substantial and compelling reasons existed to impose the upward durational departure sentence. We affirm Moore's convictions, but we vacate his durational departure sentence and remand for resentencing.
Factual and Procedural Background
Moore was charged with various crimes resulting from a series of events that occurred over a period of about 4 hours during the late evening and early morning hours of December 14–15, 2010. At trial, Moore was convicted of nine counts, and he was acquitted of three counts. We will review the underlying facts in detail.
Count I—Attempt to commit aggravated robbery
Between 8 p.m. and 9 p.m. on December 14, 2010, Michael Stephens was driving his truck south on Ravenswood in Johnson County. As he approached the stop sign at 83rd Street, he saw a man standing on the corner on the passenger side of his truck. He cracked the window and asked the man what he needed. The man told him that he wanted a ride back to Wyandotte County. Stephens told the man that he was not going that way.
At that time a second man, later identified as Moore, approached the truck. The man was wearing a heavy coat and a red plaid bombardier or “Elmer Fudd” hat. Moore also asked Stephens for a ride. Stephens told Moore that he was not heading to Wyandotte County and would not be able to give him a ride.
Moore opened the passenger door of the truck and got in. Stephens asked Moore to get out of the truck, but he refused to do so. Instead, Moore yelled at the other man to get into Stephens' truck. Stephens shut off his truck, put his keys in his jacket, and dialed 911. While Stephens was on the phone, Moore asked him if he was talking to the police. When Stephens turned to look at Moore, Moore hit Stephens in the mouth with his fist. A struggle ensued, and Stephens grabbed Moore and banged his head against the dash of the truck. During the altercation, Moore's hat fell off onto the floorboard of the truck.
Moore asked Stephens if he was a police officer and if he had a gun. Stephens did not respond. Moore was looking in the backseat where Stephens, who was a semi-truck driver, kept a satchel with his logbook and had some blue shirts hanging up. Stephens did not have a gun in his truck. Stephens exited the driver's seat and walked to the passenger side of the truck. As he did so, he saw Moore reaching in the backseat for the satchel.
As Stephens approached the passenger door, Moore went over the console backward and into the driver's seat. As he did so, he kicked at Stephens to prevent him from entering the truck. Moore found the keys that had fallen out of Stephens' jacket during the physical altercation. Moore put the keys into the ignition and unsuccessfully tried to start the truck, which had a manual transmission. Stephens walked around the truck to the driver's side to pull Moore out. At that time, the police arrived on the scene. Moore jumped out of the truck and ran into a field. Stephens received lacerations to the inside and outside of his mouth as a result of the incident.
Deputy Evan Comerio responded to the location of Stephens' truck. As he arrived on the scene, he saw a pickup with both doors open. A white male was on the passenger side of the truck yelling on the phone. Comerio saw a black male get out of the driver's side of Stephens' truck and head east through a soybean field. Comerio chose not to pursue the man because he had been informed that there was a second man in the area. Stephens told the officer that the second man, Jazzeziah Walker, walked northbound on Ravenswood. Walker was located on the back porch of a nearby residence and taken into custody. Stephens gave Comerio a red hat that had fallen off Moore's head before he fled.
Counts II and III—Burglary and felony theft
Jim Oyler lived near the intersection of Ravenswood and 83rd Street. Oyler was not home on the evening of December 14, 2010, but when he arrived home about 2 a.m., he noticed that the front door was open. One of the vehicles in Oyler's driveway was also sitting with the doors open. Upon closer inspection, Oyler saw that the front door to his home had been damaged. A .410 shotgun shell was lying on the front porch.
Oyler entered his home and noticed that $4,000 in cash was missing. The bills were held together with binder clips and had been packaged in multiple baggies bearing post-it notes showing the amount of money in each baggie. The home was in disarray, and a gun had been shot into his bed frame.
Oyler, who had noticed a number of police vehicles in his neighborhood as he drove home, left his home and reported the break-in to police. A flashlight and gun were missing from the home, and they were never recovered. Cash in the amount of $3,001, packaged in the way that Oyler described the money missing from his home, was recovered from Moore's person after his arrest. The money was returned to Oyler.
Counts IV and V—Aggravated burglary and criminal damage to property
Tyler Johnson lived in the vicinity of 83rd and Ravenswood with his fiancee, Denise Robertson, and their young son. As he was driving home from work in the late evening of December 14, 2010, Johnson noticed a number of police vehicles in the area. He mentioned the police presence to Robertson when he got home.
At about 11 p.m., Johnson heard a knock on his door. He looked through a glass panel in his front door and saw a man he later identified as Moore. Moore told Johnson that his car had broken down and he needed help. Johnson told Moore that he would grab his keys. Moore asked if he could come inside, and Johnson said “no.” Moore held up some money and again asked to be let inside the home. Johnson again said “no.” Moore became more insistent, stating that he was “a man of God” and not going to hurt anyone, and Johnson kept telling him “no.” Johnson testified that Moore looked “rushed” and “chaotic” as he stood at the front door and looked around.
After Johnson repeatedly refused to give Moore access to the inside of the house, Moore became angry and began to beat on the door. Robertson went to the home's security panel and hit the alarm button which caused an audible alarm to sound. Robertson also called 911. Moore asked if the alarm had been activated and Johnson responded: “ ‘Yeah, you're beating my door.’ “ Moore then “started grabbing the door harder and then he broke in.” Johnson repeatedly demanded that Moore get out of the house. Moore then stated that he needed a place to hide and he was not going to hurt anybody. Johnson said, “ ‘I don't care. Get out of my house.’ “
Moore asked Johnson if he could take him somewhere. Johnson grabbed his keys and began walking toward the door. Moore grabbed for another set of keys that were hanging on a hook on the right side of the door. Johnson told Moore that those were not his keys. Johnson grabbed the keys from Moore and threw them on the floor. As the pair exited the front door, a police car arrived. Moore ran toward the right side of the house and fled. Johnson testified that it cost approximately $670 to repair the damage to his front door.
Counts VI, VII, VIII, and IX—Aggravated burglary, burglary of a vehicle, criminal possession of a firearm, and theft of a handgun
Roger Wheeler lived in the vicinity of 83rd and Ravenswood on December 14, 2010. At about midnight, Wheeler was in bed when he heard his wife scream because there was knocking on the glass of their bedroom window. By the time Wheeler got to the back door, he heard the doorbell ring and went to the front door. Wheeler looked out the front door and did not see anyone. He then opened the front door and saw Moore standing outside. Moore said that he needed to come into the house. Moore stated that he had money and was not going to hurt anyone. He then stuck his hand through the front door and tried to come in. As Moore pushed on the door to try to enter the home, Wheeler pushed back to prevent him from entering. Wheeler kept pushing, and Moore finally pushed the door to release his arm.
Wheeler locked the door and called 911. As he was on the phone with the dispatcher, Wheeler watched Moore approach Wheeler's truck that was parked near the house. Wheeler watched as Moore entered his truck and looked through the interior of the truck. Wheeler was concerned because there was a loaded Glock .40–caliber handgun in the center console of his truck. Wheeler informed the dispatcher that he was concerned that Moore would find the gun. Wheeler watched as Moore held up the gun and said something such as “ ‘I found a gun.’ “ Wheeler turned to say something to his wife, and when he turned back, Moore was gone. When Wheeler was able to check on his truck, the glove box was open, there was blood on the inside of his truck, and the gun was missing. Wheeler's gun was not recovered.
Counts X and XI—Burglary of a vehicle and theft of a vehicle
Michael Ryba lived in the neighborhood near 83rd and Ravenswood. Ryba was up late working on the computer on the night of December 14, 2010. He heard the measured honking of the horn of his 1998 Ford Windstar van that was parked outside his home. The van was unlocked, and Ryba believed the keys to the van were left on the floorboard in front of the driver's seat.
Ryba opened a door of the house and observed his van slowly rolling backward. No lights on the van were illuminated, and Ryba could not see inside the van. He thought the van might have fallen out of gear. The van continued to roll backward toward the U-shaped gravel driveway in front of Ryba's house. The van stopped when it appeared to strike some ornamental rocks that lined the drive, and Ryba still thought the van might be rolling on its own. Then the van started to move forward and Ryba realized that someone was inside the van. He closed the door to put on a pair of shoes that were located behind the door. By the time he returned to the door, someone was driving the van away at an accelerated rate of speed. Ryba returned to his house and called 911. Ryba's van was returned to him, but the van sustained damage to its bumpers from hitting the rocks.
Count XII—Attempt to commit aggravated burglary
Morgan McClain lived on Hillside Drive in Lenexa. Around midnight on December 14–15, 2010, McClain and his wife were in bed. McClain was lying awake, suffering from a cold. He saw a flash of headlights shining down a hallway of his house and heard his dogs start to bark. McClain believed that someone had driven onto the driveway of his home. He then heard a repeated banging on the door of his home, as if someone was kicking it. McClain ran to the front door, braced it with his hands and feet, and yelled at the person that he could not come into the house. He heard no response from the person outside, but the banging on the door continued.
McClain told his wife to “go get the gun.” McClain yelled through the door that he had a gun and would use it if the person came into the house. McClain yelled at the person a number of times. As soon as McClain had his gun, he backed up from the door and prepared to fire the gun if the person came through the door. McClain told the person he had a gun and said: “ ‘I will shoot if you come through that door.’ “
At about that time, McClain saw a flash of police lights through the window. He put his gun down and heard the officer announce: “I'm a K9 unit, to get away from the door, get on the ground....” McClain said that the person outside his door began kicking on the door with more intensity, so he picked up the gun. McClain heard the officer announce that he was releasing the dog. He heard the dog “jump the person on the outside” and could tell that the person had been wrestled to the ground. McClain put his gun away and looked outside to see that the officer had the person in custody.
Moore's trial testimony
Moore was the only defense witness at trial. He testified that on December 14, 2010, he was with his friends, Tyrone Stewart and Walker. They were at Stewart's house playing dice. Moore received a phone call from a friend named Nacho, who owed Moore money. Nacho told Moore that he had the money to repay him. Moore offered Stewart $10 to drive him to Nacho's house. Moore and Walker left with Stewart.
On the way to Nacho's house, Stewart took a wrong turn and the three men got lost in DeSoto. Moore and Stewart began arguing about getting lost, and Moore told Stewart to pull over. Moore and Walker jumped out of the car, and Stewart drove off.
Moore was trying to use his cell phone when he saw a truck pull up to where Walker was standing at the intersection. Walker began talking to Stephens, the driver of the truck. Moore walked up, opened the truck door, and partially entered the truck. He told Stephens that he and Walker were stranded and that he would pay him to take him to Wyandotte County. Moore saw some blue shirts hanging in the truck and a gun case, and he asked Stephens if he was a police officer. Moore said that Stephens led him to believe he was a police officer. Moore told Stephens: “If you the police, you can help us.” Moore saw Stephens doing something with his phone. Stephens then grabbed Moore, and Moore struck Stephens. Moore testified that his knuckles were bleeding after he struck Stephens. Moore said that he thought he had punched a police officer in the mouth.
After a brief struggle, Stephens got out of the truck and started to come around to the passenger side. Moore exited the truck and ran into a nearby field. Moore denied that he had picked up the keys to the truck or that he had tried to start Stephens' truck. Moore testified that Stephens never told him to get out of the truck and never told him that he would not take him to Wyandotte County. Moore testified the police pulled up after he ran into the field. He ran across the street to Oyler's house and began beating on the door.
Moore said that he made a “wrong decision” and broke into Oyler's house. He yelled inside that he did not want to hurt anyone, he just needed help and needed to use the phone. Moore looked out the window and watched the police officers talking to Stephens. After awhile, Stephens and the police officers drove away, and Moore prepared to leave the house. As he did so, he saw a bag of money. Moore took the money and ran out of the house. He stated that he made a quick decision and “it was a stupid mistake.”
Moore left Oyler's house, walking on foot to a neighboring residence, which was Johnson's house. Moore testified: “Now I'm debating if I should ask anybody for help because this don't look like the right place to be in, but when I look in the window, I see a black dude so I get happy.” Moore knocked on the window and asked for help, stating that he would pay for help and did not have a gun. Moore asked to use the phone and for help, but Johnson told him no. Moore testified: “I made a wrong mistake. I pushed the door in open. When I pushed the door in open, his girl took off running. I said, Come back here, I ain't here to hurt you.” Johnson offered Moore a ride, and they both left the house. When Moore stepped onto the front porch and saw flashlights shining at him, he took off. Moore testified he had no intention of taking anything from Johnson's house, and he denied trying to take any keys as he left the house.
Moore ran to the house next door, the Wheeler residence. As he ran along the outside of the house, he knocked on the windows to awaken anyone inside. When he got to the front door, Wheeler opened the front door. Moore told Wheeler that he was not going to hurt anyone, and he told Wheeler that he had money. Moore denied that he ever put his hand through the doorway and into the house. He claimed that he stayed outside and held up money for Wheeler to see. Moore testified that he had no intent to get into Wheeler's house to steal anything. Wheeler told Moore that he could not use the phone and shut the door. Moore saw Wheeler's truck parked outside the residence and thought he might have left a phone charger inside the truck. When Moore failed to find a phone charger in the truck, he left. He denied taking a gun from the inside of Wheeler's truck.
Moore continued walking until he came to Ryba's house. Moore checked Ryba's van, looking for a phone charger, and found the keys inside. Moore drove off in the van. He denied committing the charged robberies and burglaries, but he admitted to taking the van. He explained:
“I mean, it's cold out at night. Every door I go to, ain't nobody trying to help me. Everybody white, older people, you know what I'm saying. I get a black dude don't even want to help me. So I'm like, dang it, this might be my only chance to get back home. Maybe I bring it back. I got no problem with bringing it back. I just can't call nobody. I would have called a ride if I could....”
Moore drove the van for about 1/2 a mile before he saw a line of police cars, and he pulled into the driveway of the McClain residence. He went to the house and started beating on the door. Moore accidentally hit the panic button on the keys to the van, and the police approached the house. After seeing the police dog approach, Moore said that it was his natural reaction to start kicking. Moore denied wanting to steal anything from McClain's residence. He claimed that his actions that night could be attributed to the fact that he was “afraid and panicked.”
Verdict and sentencing
The jury convicted Moore of nine counts and acquitted him of criminal possession of a firearm, the theft of the handgun in Wheeler's truck, and the attempt to commit aggravated burglary of the McClain residence. The district court held a hearing for the jury to determine whether factors existed to justify an aggravated sentence. The State argued the factor of “future dangerousness,” asserting primarily that Moore previously performed poorly on parole. The jury found, beyond a reasonable doubt, the existence of the aggravating factor. At the sentencing hearing, the district court granted the upward durational departure and jointly imposed consecutive sentences, resulting in a controlling term of 432 months' imprisonment. Moore timely appealed the district court's judgment.
Lesser Included Offense of Theft
Moore first argues that the district court committed reversible error by denying his request to instruct the jury on criminal deprivation of property as a lesser included offense of theft. This issue concerns the theft of Ryba's van. Moore argues the district court should have instructed on the lesser offense of criminal deprivation of property because there was some evidence that Moore intended to return the van, as opposed to permanently depriving Ryba of the use or benefit of the vehicle.
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (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. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
Moore argues that our Supreme Court's decision in State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985), overruled by State v.. McKissack, 283 Kan. 721, 731, 156 P.3d 1249 (2007), controls. In Keeler, the court held that the crime of unlawful deprivation of property was a lesser included offense of theft. 238 Kan. at 364–65.
We will quickly dispose of Moore's argument. In McKissack, 283 Kan. at 731, our Supreme Court expressly overruled Keeler and held: “Under the current strict elements test, criminal deprivation of property is a separate offense and not a lesser included offense of theft.” McKissack, 283 Kan. 721, Syl. ¶ 3. See also PIK Crim. 4th 58.080 (2013 Supp.) (noting that criminal deprivation of property is not a lesser included offense of theft). A lesser included offense instruction on criminal deprivation of property would not have been legally appropriate at Moore's trial. Moore's claim on this issue fails.
Evidence Exhibited to Jury Outside of Moore's Presence
Next, Moore contends that the district court committed reversible error by allowing the trial exhibits to be sent back to the jury room. Specifically, Moore claims this practice violated his constitutional rights under the Sixth Amendment to the United States Constitution and under the Kansas statute to be present at every critical stage of his criminal trial, his constitutional right to a public trial, and his constitutional right to an impartial judge. The State claims that this issue should not be addressed for the first time on appeal and further asserts that any error was harmless.
After closing argument, the district court stated its intention to send all of the exhibits to the jury room. The judge stated: “All the exhibits will be gathered up and taken back to the jury room with you.” The analysis of the court's procedure for sending evidence into the jury room requires both statutory and constitutional interpretation. An appellate court has unlimited review over such questions of law. See State v. Womelsdorf, 47 Kan.App.2d 307, 320, 274 P.3d 662 (2012), rev. denied 297 Kan. 1256 (2013).
Moore did not object to the district court's procedure of sending the exhibits to the jury room during deliberations. Generally, a party may not raise constitutional issues for the first time on appeal. See State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Moore has not argued that his case meets any of the exceptions to the general rule that issues should not be addressed for the first time on appeal. See State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012). However, our Supreme Court recently has addressed similar claims for the first time on appeal. Bowen, 299 Kan. at 354. As such, we will address the merits of Moore's claim.
Right to be present at all critical stages of trial
A defendant in a criminal case has the right to be present at all critical stages of the trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); State v. Herbel, 296 Kan. 1101, 1106, 299 P.3d 292 (2013). “That right emanates from the Sixth Amendment right to confront witnesses and from the right to due process guaranteed under the Fifth and Fourteenth Amendments to the United States Constitution. [Citations omitted.]” State v. Davis, 284 Kan. 728, 731, 163 P.3d 1224 (2007).
In support of his argument that he was excluded from a critical stage of his trial, Moore cites to Herbel. In that case, the defendant was charged with various counts of sex crimes committed against a child. The defendant had given a videotaped interview to the police that contained highly incriminating admissions. At trial, the video recording of the interview was admitted into evidence. During deliberation, the jury asked to review portions of this video. The jury was brought into open court and portions of the video were replayed; however, the record failed to indicate that the defendant was present during the replay. From the silent record, the court presumed that the defendant's right to be present at a critical stage of the trial had been violated. The Herbel court noted:
“[K.S.A. 22–3420(3) ] also plainly mandates that the evidence ‘shall be ... exhibited to them in the presence of the defendant unless he voluntarily absents himself.’ (Emphasis added .) Consequently, where the jury has requested the officer conduct them to the court after deliberations began, the defendant has an absolute statutory right to be present when any evidence ‘is exhibited’ to the jury after deliberations began.” 296 Kan. at 1109.
Since Herbel was decided, the Kansas Legislature amended K.S.A. 22–3420. It now provides: “In the court's discretion, upon the jury's retiring for deliberation, the jury may take any admitted exhibits into the jury room, where they may review them without further permission from the court. If necessary, the court may provide equipment to facilitate review.” K.S.A.2014 Supp. 22–3420(c). The legislature expressed its intention that the amended statute should be applied retroactively. K.S.A.2014 Supp. 22–3420(f) states: “The amendments to this section by this act established a procedural rule, and as such shall be construed and applied retroactively.” Thus, with this amendment and the legislature's clear expression that the change should be applied retroactively, Kansas law provides that the admitted exhibits may be sent into the jury room for review.
Here, there were numerous exhibits—including photographs, reports, audio recordings, and physical evidence—admitted into evidence at trial. The record reflects that these exhibits were sent with the jury to the jury room. Although the statutory law now provides that this procedure may be employed, Moore is also asserting a constitutional violation. Citing Herbel, Moore argues that the exhibition of evidence to the jury is a critical stage of the trial, and the jury should not have been allowed to review the evidence outside of his presence without an affirmative waiver.
Herbel is clearly distinguishable from the present case. In Herbel, the focus was on the district court's communication with the jury in open court. In making its ruling, our Supreme Court cited State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991), which pointed out that a critical period of the trial “ ‘ includes all times when the jury is present in the courtroom and whenever the trial court communicates with the jury.’ “ (Emphasis added.) Herbel, 296 Kan. at 1109. Here, the jury reviewed exhibits in the jury room without any additional communication from the district court. The jury was never brought back into the courtroom in order to review evidence presented during the trial. Thus, Moore's constitutional right to be present at all critical stages of the trial was not violated when the district court allowed the exhibits to go to the jury room.
Rights to a Public Trial and to an Impartial Judge
Moore also contends constitutional error based on the fact that the judge, the public, and the attorneys were not present for this critical stage of trial. He claims that a defendant's constitutional rights to a public trial and to an impartial judge are so fundamental that any violation of these rights constitutes structural error. See Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
Moore fails to explain how his right to a public trial was violated by the district court's procedure in this case. No Kansas caselaw or United States Supreme Court caselaw has extended the right to a public trial to the jury's review of trial exhibits previously admitted at trial in open court. Here, all of the exhibits sent back to the jury room were admitted during a public trial. There was nothing hidden from public view. Moore has not shown a violation of his right to a public trial.
Likewise, Moore fails to explain how his right to an impartial judge was violated by the district court's procedure in this case. This court previously has rejected a similar claim that responding to a jury question in writing violates the defendant's right to an impartial judge. See Womelsdorf, 47 Kan.App.2d at 324. We conclude that Moore's constitutional right to an impartial judge was not violated when the district court allowed the exhibits to go to the jury room.
Aggravating Factor of Future Dangerousness
Moore next argues that the departure factor of “future dangerousness” is unconstitutionally vague and violates double jeopardy. The constitutionality of a sentencing statute is a question of law subject to unlimited review. State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014).
Prior to trial, the State filed a notice of intent and motion for upward durational departure. The sole aggravating factor listed in this notice was that Moore “presents a risk of future dangerousness to the public's safety.” Moore objected to the departure factor of “future dangerousness” on both vagueness and double jeopardy grounds.
Vagueness
As to vagueness, Moore's counsel asserted:
“We would also ask the Court to find that the language that we're looking at here is unconstitutionally vague and overbroad. A risk of future dangerousness fails to provide a citizen with a fair warning of what it is that's the prohibited conduct. I present a risk of future dangerousness. I would argue that the jury has no way of knowing how much risk of future dangerousness; that there is no such thing as a human being who is still alive that does not present a risk of future dangerousness; that that's vague for that reason and also overbroad and would potentially apply to anyone and everyone.
“So there is no way to come up with a valid judgment that somebody poses a risk beyond a reasonable doubt when everybody poses a risk beyond a reasonable doubt.
....
“... So I think it is confusing, it calls for speculation, and it is vague and overbroad. There is no definition that would be provided of what a risk is. There is no definition provided of what future dangerousness is, and there's no definition of what public safety is and for all those reasons, it is vague and overbroad.”
The district court overruled Moore objections, and the matter proceeded to a bifurcated hearing before the jury. The State presented two witnesses, Joshua Perry and Christopher Lewis. These witnesses supervised Moore on probation or parole. In support of the “future dangerousness” factor, the State presented the following evidence:
• Moore was released from prison on November 22, 2005, after having served a sentence for convictions of robbery and drug possession. After his release, Moore violated his parole by failing to report and by using marijuana. After a diversion was granted, Moore continued to fail to report to his parole officer and he was again placed on diversion. A third violation occurred when Moore failed to comply with GPS curfew requirements. Moore was arrested, his parole was revoked, and he was incarcerated. Upon his release, he absconded and his parole officer learned that he was facing charges for criminal possession of a firearm. Moore was arrested by federal authorities for the firearm case.
• Moore was convicted in federal court of criminal possession of a firearm. After his release from prison in January 2010, he was arrested for driving under the influence and placed on house arrest. He was removed from house arrest in July 2010, but 1 month later he tested positive for use of K2. Moore missed counseling sessions and drug tests. There was an allegation made that he had assaulted the mother of one of his children. Moore was then placed in a halfway house in September 2010. On October 5, 2010, Moore left the halfway house without permission and failed to return. A warrant was issued for his arrest.
After hearing this evidence, the jury was instructed regarding its task of determining whether the aggravating factor of future dangerousness had been proved. The jury returned a verdict that “[t]he defendant presents a risk of future dangerousness to the public safety.” At sentencing, the district court granted an upward durational departure and sentenced Moore to a controlling sentence of 432 months' imprisonment.
On appeal, Moore argues that the factor relied on by the sentencing court—that he presented a risk of future dangerousness to the public safety—is vague because it does nothing to distinguish him from any other imprisoned individual. Moore claims that a reason to send anyone to prison is to protect the public from criminal conduct. According to Moore, the factor is accounted for in the presumptive term of imprisonment.
Although it does not appear as if the appellate courts have specifically ruled on whether the factor of “future dangerousness” is unconstitutionally vague, it has been previously approved as a factor that may be used for an upward departure. See State v. Yardley, 267 Kan. 37, 44, 978 P.2d 886 (1999); State v. Gideon, 257 Kan. 591, 623, 894 P.2d 850 (1995). Here, the jury was properly allowed to consider evidence as to how Moore performed on probation and parole in prior cases, in order to determine his potential future dangerousness. This is a separate and distinct factor from Moore's criminal history which is incorporated into the guidelines. The evidence showed that Moore had been unable to conform his behavior in the past and there was an indication that he would pose a future risk of dangerousness to the public. The aggravating factor relied on by the State is clear and concise and could be understood by the jury. We reject Moore's argument that the aggravating factor of “future dangerousness” was unconstitutionally vague.
Double Jeopardy
Moore also asserts that his double jeopardy rights were violated under the Fifth Amendment and § 10 of the Kansas Constitution Bill of Rights when the State used future dangerousness as a departure factor. Moore asserts that the double jeopardy violation occurred when his prior convictions were used to put him on the sentencing grid and were used again as evidence to prove the aggravating factor that resulted in his upward departure sentence.
This court previously has rejected a similar double jeopardy argument in two unpublished decisions. Green v. State, No. 106,445, 2013 WL 2321033, *10 (Kan.App.); rev. denied December 6, 2013; State v. Angilda, No. 106,226, 2013 WL 1234188, *9 (Kan .App.) (unpublished opinion), rev. denied 291 Kan. 1247 (2013). In Green, this court concluded:
“It is clear from the record that the State's main purpose in introducing the conduct surrounding those convictions was to show Green's future threat to public safety. Under the circumstances, we conclude that the introduction of the evidence surrounding Green's prior convictions to justify a departure sentence did not violate Green's double jeopardy rights.” 2013 WL 2321033, at *10.
Here, the focus of the State's evidence was on how Moore handled himself after his prior convictions and during the time he was being supervised on probation or parole. The focus was not on the convictions themselves or on his general criminal history. The prior convictions were introduced primarily to show Moore's pattern of behavior after such convictions in order to predict his future dangerousness to public safety. As such, the introduction of the evidence to prove the aggravating factor at sentencing did not violate Moore's double jeopardy rights.
Verdict Form on Aggravating Factor
Moore argues that the verdict form used to find the aggravating factor for sentencing was incorrect and deprived him of due process of law because it advised the jury that it had to be unanimous in finding that the aggravating factor did not exist. Moore did not object to the proposed verdict form prior to jury deliberations; therefore, he must meet the clear error standard. See K.S.A. 22–3414(3). Even though a verdict form is not technically a jury instruction, it is part of the packet that is sent with the jury which includes the instructions and aids the jury in reaching a verdict. As such, it is appropriate to apply the same standard of review applicable to the review of jury instructions. See Unruh v.. Purina Mills, 289 Kan. 1185, 1997–98, 221 P.3d 1130 (2009).
The verdict form must be viewed in conjunction with the jury instructions. Instruction No. 27 instructed the jury on the existence of a sentencing departure in Kansas, including a specific factor relied on by the State in this case: future dangerousness to the public's safety. Instruction No. 28 advised the jury that it was required to find the aggravating factor beyond a reasonable doubt. Instruction No. 29 advised the jurors that they must be unanimous. It stated: “ If you are unable to agree that any aggravating factors exist, then you should sign the appropriate alternative verdict form indicating the jury is unable to reach a unanimous verdict on any aggravating factors. ” (Emphasis added.) Instruction No. 30 advised the jury that if the jury was unable to agree that any aggravating factors exist, then the defendant will receive the presumptive sentence. Instruction No. 31 advised the jury: “Your agreement upon a verdict finding any aggravating factors must be unanimous.”
The verdict form, Instruction No. 32, read as follows:
“We, the jury, impaneled and sworn, do upon our oath or affirmation, unanimously find beyond a reasonable doubt that the following aggravating factors have been established by the evidence. (The presiding juror shall place an X in the blank in front of such aggravating factor.)
“___ The defendant presents a risk of future dangerousness to the public's safety.
“___ The defendant does not present a risk of future dangerousness to the public's safety.”
We agree with Moore that the verdict form, read in isolation, suggested that the jury had to be unanimous in finding that the future dangerousness factor did not exist. However, the instructions make it clear that the jury must only be unanimous in finding that the aggravating factor of future dangerousness did exist. In particular, Instruction No. 29 advised the jury that if it was unable to agree that any aggravating factors existed, then the jury should indicate that it was unable to reach a unanimous verdict.
The jury did not submit any questions or show any confusion regarding the jury instructions at the penalty phase. Considering the verdict form in conjunction with the jury instructions, we conclude that the verdict form submitted by the district court was not clearly erroneous. See State v. Reed, 256 Kan. 547, 566–67, 886 P.2d 854 (1994) (verdict form that informed jury to unanimously agree on either hard–40 sentence or life sentence with parole eligibility after 15 years was not clearly erroneous).
Lack of Finding of Substantial and Compelling Reasons to Depart
Finally, Moore argues that the district court failed to make a finding that substantial and compelling reasons existed to impose the upward durational departure sentence. Resolution of this issue requires statutory interpretation. Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014).
K.S.A.2014 Supp. 21–6819(c)(l) provides:
“The following shall apply for a departure from presumptive sentence based on aggravating factors within the context of consecutive sentences: (1) The court may depart from the presumptive limits for consecutive sentences only if the judge finds substantial and compelling reasons to impose a departure sentence for any of the individual crimes being sentenced consecutively.”
K.S.A.2014 Supp. 21–6815(a) also provides: “If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.” Here, the sentencing court made very limited findings. The judge stated: “Now the question is, should these be doubled under the jury's finding that there existed this aggravating factor. The Court agrees and, therefore, the sentence of 216 months you would come up with under the guidelines, effectively that is 432 months with the Department of Corrections.”
Both K.S.A.2014 Supp. 21–6819(c)(1) and K.S.A.2014 Supp. 21–6815(a) mandate that the sentencing court must state the substantial and compelling reasons to depart on the record at the time of sentencing. See State v. Hines, 296 Kan. 608, Syl. ¶ 1, 294 P.3d 270 (2013); Gideon, 257 Kan. 591, Syl. ¶ 21. Although Moore's argument is highly technical, he correctly points out that the sentencing judge failed to state on the record at the time of sentencing the substantial and compelling reasons for the departure.
Even though the sentencing judge stated that he agreed with the jury's finding of future dangerousness to the public, the district court still could have denied the request for a departure sentence. In order to impose a departure sentence, the district court was required to state on the record at the time of sentencing the substantial and compelling reasons for the departure. Here, the district court failed to take this final step. Therefore, we must vacate Moore's departure sentence and remand for resentencing. On remand, the district court is free to impose a departure sentence but only if the district court explicitly states on the record at the time of sentencing the substantial and compelling reasons for the departure.
Affirmed in part, vacated in part, and remanded with directions.