Opinion
No. 105,941.
2012-11-9
STATE of Kansas, Appellee, v. Gustavo RAMOS–BELETA, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge. Ryan Eddinger and Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Lois K. Malin, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Ryan Eddinger and Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. Lois K. Malin, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
After attacking his ex-wife with a knife and a screwdriver, Gustavo Ramos–Beleta was convicted of numerous crimes, including attempted first-degree murder, aggravated intimidation of a witness, intimidation of a witness, and endangering a child. On appeal, he contends that the district court erred in refusing to instruct the jury on the lesser included offense of attempted second-degree murder and that the State failed to present sufficient evidence to support each of the alternative means for committing the crimes of aggravated intimidation of a witness, intimidation of a witness, and endangering a child.
Facts
Ramos–Beleta and Maria Castillo were married for 16 years and have four children. They divorced in 2006, at which time Ramos–Beleta was convicted of criminal threat for threatening to kill Maria. When Ramos–Beleta was released from prison in 2009, he returned to Garden City, where Maria and the children were still living. One of the conditions of Ramos–Beleta's parole supervision was that he have no contact with Maria or any member of her family.
By 2009, Maria and the children had moved out of the home they shared with Ramos–Beleta and into an apartment located on the edge of town. Maria often saw Ramos–Beleta drive by her apartment. Maria worked as a processor at Tyson, and Ramos–Beleta worked for NFC, a Tyson subcontractor. Ramos–Beleta frequently parked near her vehicle at work, even after Maria would move her car away from his. Although there was no reason for any contact between the Tyson processors and the NFC workers, Maria began seeing Ramos–Beleta at work sometime after Christmas 2009. Ramos–Beleta would approach a table where Maria was working and stare at her. Once, he told Maria that “things weren't going to stay this way.” Ramos–Beleta visited his son, G.R., at work multiple times and inquired about Maria, asking why she was dressing up for work and whether she had a boyfriend. In January 2010, Ramos–Beleta told G.R. to tell Maria that “if she wasn't careful he'd kill her.”
In the early morning hours of January 25, 2010, Maria was sleeping when Ramos–Beleta opened her bedroom door and turned on the light. Maria had locked the apartment the previous night and had never given Ramos–Beleta permission to come inside. Ramos–Beleta told Maria that he had been looking for her and that “it was time to finish what he had started.” Before Maria could scream or tell him to leave, Ramos–Beleta was on top of her and had stabbed her right leg with a knife and cut her left hand with a screwdriver. As Maria struggled with Ramos–Beleta over the knife and screwdriver, she screamed for her children. Two of the children, R.R. and G.R., entered the room after G.R. had called 911. They asked Ramos–Beleta what he was doing; he responded that he was choking Maria because he loved her and that it was for her own good. At one point, R.R. tried to push Ramos–Beleta off of her mother as he continued to make stabbing motions towards Maria. When Ramos–Beleta saw the police lights flashing through the window, he told the children to turn off the bedroom lights and close the door. Instead, G.R. went outside to direct the officers inside the apartment.
Two police officers entered Maria's bedroom and observed the struggle. As one of the officers pulled Maria to the corner of the bed, Ramos–Beleta came towards Maria with the knife, attempting to stab her in the chest. The officer shot Ramos–Beleta twice. After being shot, Ramos–Beleta began yelling at Maria and appeared to bite her right leg. Maria and Ramos–Beleta were both transported to the hospital. Maria had injuries to her right leg, left shoulder, upper chest, hands, fingers, and abdomen. At the hospital, Ramos–Beleta told a nurse that he wanted to kill Maria and that she had ruined his life and the lives of the children.
Ramos–Beleta was charged with attempted first-degree murder, aggravated burglary, aggravated intimidation of a witness, two counts of criminal threat, intimidation of a witness, stalking, violation of a protective order, and child endangerment.
At trial, Ramos–Beleta testified as to his recollection of events on the day prior to the attack. He stated that he did not eat lunch or dinner that day and had started drinking beer around 4 or 5 p.m. He did not remember how much he had to drink. Ramos–Beleta denied that he ever intended to go to Maria's home or that he had angry thoughts about her while drinking that night. The last thing he remembered before waking up in the hospital was leaving a bar and “driving bad.” Ramos–Beleta presented evidence that his blood-alcohol level was more than three times the legal limit at the time of his arrest.
The jury found Ramos–Beleta guilty as charged. The district court imposed a controlling prison sentence of 586 months.
Analysis
On appeal, Ramos–Beleta argues the district court erred in refusing to instruct the jury on the lesser included offense of attempted second-degree murder. In support of this argument, Ramos–Beleta claims there was evidence presented at trial to establish that his intoxication prevented him from forming the premeditation necessary to commit the crime of attempted first-degree murder. He also argues that his convictions for aggravated intimidation of a witness, intimidation of a witness, and endangering a child must be reversed because the State failed to prove each alternative means of committing the crimes. We address each of these arguments in turn.
I. Instructional Error
At the instructions conference, Ramos–Beleta requested that the jury be instructed on the lesser included offense of attempted second-degree murder. The district court denied this request, stating that “there does not appear to be enough evidence presented on behalf of the defense where the issue is really in dispute where a reasonable finder of fact could or should find a second-degree attempted murder.” A. Standard of Review
When the district court refuses to give a requested instruction, we generally review the evidence in a light most favorable to the party requesting the instruction. State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009). Although conceding Ramos–Beleta did, in fact, request the instruction, the State contends he did so in a perfunctory manner without explaining—as he does here—that the lesser included offense of attempted second-degree murder was necessary based on a theory of defense that his intoxication prevented him from forming the premeditation necessary to commit the crime of attempted first-degree murder. Because the trial court did not have an opportunity to consider the instruction in the context presented on appeal, the State argues the issue essentially is being raised for the first time here and must be reviewed under a clearly erroneous standard, which is applied when a defendant fails to request an instruction. See K.S.A. 22–3414(3). Review under this standard requires reversal only if this court is firmly convinced of a real possibility that the jury would have rendered a different verdict if the instruction had been issued. See State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
We are not persuaded by the State's argument. We have reviewed the record and find no material difference in the argument presented by Ramos–Beleta on appeal and the one presented to the district court below. Ramos–Beleta testified that he did not plan to attack Maria and did not remember attacking her because he was so intoxicated. He also presented evidence that his blood-alcohol level was more than three times the legal limit. When the parties were arguing in favor of their respective positions at the instructions conference, they discussed Ramos–Beleta's claim that he had no memory of the events. The State openly acknowledged Ramos–Beleta's testimony that he was drunk and had no plan to kill Maria. Ramos–Beleta requested, and the jury received, an instruction on the defense of voluntary intoxication. This instruction provided, in relevant part: “Voluntary intoxication may be a defense to the charge of Attempted 1st Degree Murder, where the evidence indicates that such intoxication impaired a defendant's mental faculties to the extent that he was incapable of forming the necessary intent to kill with premeditation.” Finally, Ramos–Beleta raised the issue in both his motion for new trial and his motion to set aside the jury verdict.
Because Ramos–Beleta requested an instruction on attempted second-degree murder and the district court was clearly aware of the theory of defense he was relying on in requesting this instruction, we decline the State's invitation to review this issue under a clearly erroneous standard. B. Lesser Included Offense Instruction for Attempted Second–Degree Murder
Our Supreme Court recently set out the progression of analysis and corresponding standards of review to be applied by the appellate court in reviewing a challenge to the giving or failure to give a jury instruction:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
With regard to the first step of the analysis, we find no impediment to appellate jurisdiction, and the issue has been properly preserved for appeal. With regard to the second step of the analysis, we find the requested instruction was legally appropriate because intentional second-degree murder (the killing of a human being committed intentionally) is a lesser included offense of premeditated first-degree murder (the killing of a human being committed intentionally and with premeditation ). See State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008); K.S.A. 21–3401(a); K.S.A. 21–3402(a).
Relevant to the third step of the analysis, Kansas statute requires the trial court to instruct the jury on all lesser included offenses “[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime.” K.S.A. 22–3414(3); State v. Kirkpatrick, 286 Kan. 329, 334, 184 P.3d 247 (2008). This duty to instruct applies even if the evidence is weak, inconclusive, and consists solely of the defendant's testimony. 286 Kan. at 334. Thus, the question presented for decision in this case is whether the evidence presented at trial, when viewed in a light most favorable to Ramos–Beleta, would have reasonably justified a conclusion by the jury that he intentionally—but without premeditation—attempted to kill his ex-wife.
At the time of Ramos–Beleta's offense and subsequent trial, K.S.A. 21–3201(b) defined “intentional conduct” as “conduct that is purposeful and willful and not accidental.” On the other hand, “ ‘[p]remeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life.’ “ State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004] ).
Several factors may give rise to an inference of premeditation, including: “(1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, or (5) the dealing of lethal blows after the deceased was felled and rendered helpless.” State v. Scott, 271 Kan. 103, 109, 21 P.3d 516,cert. denied534 U.S. 1047 (2001). “Premeditation and deliberation may be inferred from the established circumstances of the case, provided the inference is a reasonable one.” 271 Kan. at 108 (citing State v. Bute, 223 Kan. 594, 597, 575 P.2d 555 [1978] ).
In this case, the evidence of premeditation admittedly is substantial. Ramos–Beleta brought a knife and a screwdriver into Maria's apartment to use as weapons. There was no evidence of provocation, as Maria was sleeping in bed prior to the attack. Prior to the attack, Ramos–Beleta threatened to kill Maria. Despite the presence of a no-contact order, Ramos–Beleta drove by Maria's apartment and parked near her car at work. He approached Maria at work, stating that “things weren't going to stay this way.” Right before the attack, Ramos–Beleta told Maria that he had been looking for her and that “it was time to finish what he had started.” Ramos–Beleta tried to conceal his actions by encouraging the children to help him hide from the police. After the police arrived, Ramos–Beleta continued to attack Maria, trying to stab her and biting her leg. He subsequently told a nurse at the hospital that Maria had ruined his life and he wanted to kill her.
While a jury could infer premeditation from the evidence set forth above, there is competing evidence from which, when considered in a light most favorable to Ramos–Beleta, the jury also could reasonably find that no premeditation existed. Ramos–Beleta claims that on the day in question he drank so much alcohol that he could not remember anything that happened after he left the bar. Given his extreme intoxication, Ramos–Beleta testified he has no memory of planning to attack Maria or actually attacking her. He also presented evidence that his blood alcohol level was more than three times the legal limit. While the evidence clearly establishes that Ramos–Beleta tried to kill Maria, the undisputed fact that Ramos–Beleta was very drunk both prior to and during the attack raises legitimate questions as to his state of mind at the time of the attack, i.e., whether he attempted to kill Maria with premeditation or simply with intent. Thus, when viewed in the light most favorable to Ramos–Beleta, we find the evidence would have permitted the jury to have convicted him of second-degree intentional murder. As such, the trial court had a duty to instruct on that lesser included offense and it was reversible error not to have done so.
II. Sufficiency of the Evidence
Ramos–Beleta argues that intimidation of a witness, aggravated intimidation of a witness, and endangering a child are alternative means crimes for which the State failed to present sufficient evidence to support each alternative means. The State counters that none of these crimes presents an alternative means issue and that sufficient evidence supports Ramos–Beleta's convictions.
The jury in a criminal case is required to arrive at a unanimous verdict. In a case in which there are alternative means by which the crime can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on another alternative means. Notably, our Supreme Court has held that the defendant's right to a unanimous verdict is not undermined when this happens so long as there was sufficient evidence presented at trial to support each alternative means for committing the crime. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
Before addressing whether there was sufficient evidence to prove each of the alternative means alleged by Ramos–Beleta, however, we first must determine whether any of the statutes with which Ramos–Beleta was charged truly present alternative means by which the crime can be committed. If the offenses of intimidation of a witness, aggravated intimidation of a witness, and endangering a child cannot be committed in more than one way, jury unanimity is not at issue and an alternative means analysis is inapplicable. The question of whether alternatives within a statute define alternative means is a question of law subject to de novo review. See State v.. Brown, 295 Kan. 181, 284 P.3d 977, 988 (2012).
In Brown, our Supreme Court recently clarified the test for identifying whether a statute contains alternative means. The court first noted that “ ‘[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ “ Brown, 284 P.3d at 988 (quoting State v. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 [2010] ). Instead, courts must look primarily to legislative intent to determine whether statutory alternatives are alternative means. The court summarized the proper analysis as follows:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 284 P.3d at 991–92.
A. Intimidation of a witness and aggravated intimidation of a witness are not alternative means crimes
As charged here, intimidation of a witness is defined in relevant part as
“knowingly and maliciously preventing or dissuading, or attempting to prevent or dissuade ... any witness, victim or person acting on behalf of a victim from ... [m]aking any report of the victimization of a victim to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer or judicial officer.” K.S.A. 21–3832(a)(2)(A).
Aggravated intimidation of a witness is intimidation of a witness as defined in K.S.A. 21–3832 when “the witness or victim is under 18 years of age.” K.S.A. 21–3833(a)(4). The district court instructed the jury here that in order to establish that Ramos–Beleta was guilty of intimidation of a witness, the State was required to prove, in relevant part: “[t]hat the defendant attempted to prevent or dissuade [G.R.] from making a report of a crime against an individual, Maria Castillo aka Maria Ramos, to any prosecutor, law enforcement, probation, parole, correctional, community correction services or judicial officer.” The court similarly instructed the jury with respect to the crime of aggravated intimidation of a witness, with R.R. listed as the witness.
Ramos–Beleta concedes that the State adequately proved that he tried to dissuade G.R. and R.R. from reporting his crimes to law enforcement officers but claims the State failed to prove that he tried to dissuade them from reporting the crimes to the other types of officers listed in the statute.
Our court rejected Ramos–Beleta's argument in State v. Aguirre, 45 Kan.App.2d 141, 245 P.3d 1,rev. granted in part 292 Kan. 966 (2011). The Aguirre court held that “the gravamen of the statute is the act of intimidation” and that “the list of officers simply defines the character of the report that a victim must be dissuaded or prevented from making.” 45 Kan.App.2d at 148. Although decided prior to Brown, the analysis in Aguirre is entirely consistent with that set forth in Brown. Specifically, a determination regarding whether the crime is committed is not a function of the type of officer to which the witness is dissuaded or prevented from reporting the crime. Rather, the crime is completed upon the act of intimidating the witness with the intent to deter the reporting of a crime. Accordingly, we conclude the charges in the complaint and the court's instructions do not present a true alternative means issue.
B. The State presented substantial evidence on each of the alternative means of endangering a child
K.S.A. 21–3608(a) defines endangering a child as “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health may be injured or endangered.” Ramos–Beleta argues the legislature intended the “causing” or “permitting” language to be alternative means of violating the statute. The State disagrees.
We find it is unnecessary to resolve the parties' dispute regarding whether K.S.A. 21–3608(a) does, in fact, establish alternative means for endangering a child. This is because—even if we were to deem them alternative means—there was sufficient evidence presented at trial to support Ramos–Beleta's conviction on grounds that he caused and permitted R.R. to be placed in a dangerous situation. Ramos–Beleta concedes there was sufficient evidence that he caused R.R. to be placed in a dangerous situation. But Ramos–Beleta argues the State failed to prove that he permitted R.R. to be there because he lacked authority or control over her and did not give her permission to be present in Maria's room on the night of the attack.
Ramos–Beleta's argument is without merit, as it ignores the obvious fact that regardless of whether he had control over R.R., he had control over the abuser—himself. Further, he permitted R.R. to be placed in the dangerous situation by continuing to attack Maria after R.R. entered the room. Because he was the individual who created the dangerous situation to which R.R. was exposed, Ramos–Beleta had significant control over—and thus permitted—R.R. to be placed in that dangerous situation. Considering the evidence in the light most favorable to the prosecution, there was substantial evidence for a rational trier of fact to find that Ramos–Beleta both caused and permitted R.R. to be placed in a situation where her life, body, or health might be injured or endangered.
Ramos–Beleta's convictions for aggravated intimidation of a witness, intimidation of a witness, and endangering a child are affirmed. Ramos–Beleta's conviction for attempted first-degree murder is reversed and the charge is remanded for a new trial.