Opinion
No. 110040.
2015-02-13
STATE of Kansas, Appellee, v. Jason ROBINSON, Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.Ashley K. Iverson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Ashley K. Iverson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jason Robinson appeals his conviction for aggravated burglary, aggravated battery, and criminal damage to property. Robinson raises multiple issues on appeal including an alleged speedy trial violation due to an unavailable witness, the sufficiency of the evidence supporting his aggravated burglary conviction, the vagueness of the aggravated battery statute, the jury instruction for aggravated battery, admission of evidence, evidence of prior bad acts, and the trial court's giving the jury a written communication in violation of multiple constitutional rights. We affirm.
L.C. and Robinson had a stormy relationship. L.C. said they lived together in her house, but Robinson was gone for varying periods of time. Robinson did not have a key to L.C.'s house. On August 24, 2010, L.C. called the police because she and Robinson were fighting. She said Robinson had taken her car without permission and she was upset about it. When he came back, L.C. would not let Robinson inside but he kept on knocking. L.C. testified the knocks were soft at first, but then Robinson began banging hard on the door. L.C. told Robinson their relationship was over and to go away. Eventually, Robinson kicked in the door.
L.C. testified she did not want Robinson in the house and she did not give him permission to come inside. L.C. and Robinson continued to argue, and L.C. attempted to call 911 but she did not think the call went through. L.C. said they were in a fist fight and Robinson hit her many times, including in her face.
The State presented evidence of the statement L.C. gave to the police where she said Robinson pulled her hair, choked her so hard she thought she was going to die. She said Robinson had a gun and a stick and he had put a gun to her head and said, “Bitch, I will kill you.” However, L.C. testified at trial that those statements were not true. Robinson left L.C.'s house but later returned, while L.C. was talking to the police on the phone. L.C. said that Robinson, using a brick, shattered windows in her minivan.
L.C. said she did not seek medical treatment after the police arrived because she did not think her injuries were serious. However, since her nose continued to bleed when she blew it and the swelling in her eye worsened, she went to the hospital the next morning.
On cross-examination, L.C. testified that she had told Robinson to not be with any other girl. L.C. testified she probably had threatened him as well. L.C. said they were arguing because Robinson was sleeping with a girl who was supposed to be her friend. L.C. told the jury she exaggerated her story and lied to the police because she was mad at Robinson. L.C.'s children were removed from her house after the incident due to repeated domestic violence. L.C. testified she did not need the medication they gave her at the hospital, she never had surgery, and the injuries healed within a few days. L.C. testified she had a conviction for battery against Robinson. She also testified she had previously threatened Robinson with a knife, and even struck him with it, and had probably threatened him on the day in question.
Officer Michael Moulin of the Kansas City, Kansas, Police Department testified he responded to L.C.'s 911 call. When he arrived, she was crying, angry, and hysterical. She had a swollen right eye and blood on her nose. She said Robinson had kicked in her front door, kicked and hit her in the head, and later damaged her minivan. Officer Moulin testified L.C. did not say anything about Robinson having a gun or using a stick.
The jury watched the video deposition of Dr. Matthew Robbinett, the emergency room physician who treated L.C. Defense counsel was part of the deposition and was able to cross-examine him.
Robinson took the stand on his own behalf. He testified he and L .C. had been living together for the last 5 years and she was the mother of his children. Robinson said L.C. was upset because she thought he was cheating on her. He said when he came back to the house the second time, L.C. started the fight. As he was getting some things, Robinson testified L.C. came at him with a knife like she had done in the past. He ran outside, and she chased him. Robinson claimed he ran back to the house and locked the door and it was L.C. who broke down the front door. She came at him with the knife again, and he threw his bag at her so he would not get stabbed. Robinson claimed L.C. got the bruise on her arm when they struggled for the knife. He admitted he had thrown L.C. to the side so he could get out of the house.
Robinson testified that after he left the house, L.C. called him and told him to come and get his clothes. He said that when he returned, L.C. had bleached his work clothes. He was extremely upset and broke out the windows in her minivan. Robinson said the front door had also been damaged earlier in the week when they had a water fight and people were running in and out of the door.
The State charged Robinson with aggravated burglary, severity level 5; aggravated battery (intentionally caused great bodily harm), severity level 4; aggravated assault, severity level 7; and criminal damage to property, severity level 9. After the State's casein-chief, defense counsel requested a directed verdict on the aggravated assault charge claiming there was no testimony that Robinson had a gun and L.C. testified she lied to the police about Robinson having a gun. The trial court granted the motion and directed a not guilty verdict on the aggravated assault charge. The parties also agreed to submit the criminal damage charge to the jury as a misdemeanor.
The jury convicted Robinson of aggravated burglary, aggravated battery (lesser included—caused bodily harm in a manner whereby great bodily harm can be inflicted), and criminal damage to property. The trial court sentenced Robinson to concurrent sentences and ordered him to serve a controlling sentence of 114 months' incarceration. Robinson appeals.
Robinson first argues the district court improperly granted a continuance by finding that Dr. Robinett was “unavailable” because of a scheduling conflict. He contends the court's extension of the trial beyond the speedy trial limits without a proper finding of unavailability and violated his statutory right to a speedy trial.
When reviewing a district court's decision to grant a continuance under K.S.A.2013 Supp. 22–3402(e), we apply the abuse of discretion standard. State v. Beaman, 295 Kan. 853, 862–63, 286 P.3d 876 (2012). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Robinson bears the burden of establishing that an abuse of discretion occurred. See State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012).
The State has a statutory duty to bring a defendant to trial within 90 days of arraignment if the defendant is being held in custody solely on the charges related to the trial. K.S.A.2013 Supp. 22–3402(a); State v. Breedlove, 295 Kan. 481, 486, 286 P.3d 1123 (2012). If the State fails to bring the defendant to trial within the 90–day period, the defendant may be entitled to be discharged from liability for the crimes charged. K.S.A.2013 Supp. 22–3402(a).
But delays attributable to court-ordered continuances authorized under K.S.A.2013 Supp. 22–3402(e) are not counted against the State in computing the 90–day period. K.S.A.2013 Supp. 22–3402(a); State v. Edwards, 291 Kan. 532, 538, 243 P.3d 683 (2010); State v. Nines, 269 Kan. 698, 703, 7 P.3d 1237 (2000). A district court may grant a continuance if (1) material evidence is unavailable, (2) reasonable efforts have been made to procure that evidence, and (3) reasonable grounds exist to believe the evidence can be obtained and trial can begin within the succeeding 90 days. K.S.A.2013 Supp. 22–3402(e)(3).
Robinson was arraigned on October 28, 2010. The district court originally set Robinson's case for trial on January 10, 2011. On that day, the court granted Robinson's motion for continuance based on jail house phone calls that he wanted to use as evidence. The court set Robinson's new trial date for February 22, 2011. However, on February 17, 2011, the State requested a motion for continuance because Dr. Robbinett, the emergency room physician who had treated L.C. and could establish the severity of her injuries, was out of town on a traveling rotation and he was needed in the State's case as a material witness. Defense counsel objected to any continuance. The court found Robinson had originally received a continuance in the case and that Dr. Robbinett was a material witness, and it granted the State's motion for continuance.
On April 19, 2011, the State filed a motion for an order authorizing the deposition of Dr. Robbinett because he would be unavailable for trial the next week. The motion stated that Dr. Robbinett was unavailable because he would be out of town on vacation. The trial court granted the request to take the deposition. Robinson's trial eventually occurred on April 25 and 26, 2011.
On the first day of trial, defense counsel made an oral motion to dismiss the case based on speedy trial grounds. Defense counsel argued Robinson's trial was well beyond the 90–day deadline for an in-custody defendant's trial to occur. The State stated that as soon as it learned that Dr. Robinett would be unavailable, it set up the deposition. The trial court found that Dr. Robinett was a material witness and the record for the continuance would speak for itself. The court denied Robinson's motion to dismiss for violation of speedy trial.
The only case cited by Robinson is State v. George, 31 Kan.App.2d 430, 65 P.3d 1060, rev. denied 276 Kan. 971 (2003). He cites George for authority that good cause did not exist in his case to grant the continuance from the original trial date in the first place. The George court emphasized the need for particularized findings in order to toll the speedy trial clock under K.S.A.2013 Supp. 22–3402(e)(3):
“In requesting the continuance, the State simply alleged, without explanation, that the two officers were unavailable because they planned to be out of state on the October trial dates. This was insufficient to demonstrate the necessity of a continuance. There was no showing as to the purpose of the officers' out-of-state trip or whether it could be rescheduled. Was it for necessary official duty or merely pleasure? There was no evidence as to whether the ... trial ... could be rescheduled to accommodate the time constraints for [a] speedy trial.” 31 Kan.App.2d at 434.
Robinson argues there was no showing by the State that Dr. Robinett would not have been able to comply with the trial court's subpoena and it would have merely been inconvenient for Dr. Robinett to return from Pittsburg for a trial on February 22, 2011. Robinson argues there is a certain level of inconvenience accompanying every subpoena and reschedule of work duties occurs in virtually every case. Robinson states it was not his fault the hospital's subpoena procedure caused the late response by the doctor. Robinson contends the district court made no effort to find out if there was any time during the week of the February 22, 2011, trial that Dr. Robinett could have testified. Consequently, Robinson argues the trial court erred by concluding Dr. Robinett was “unavailable.”
In this case, the trial court entered particularized findings why a continuance was necessary under K.S.A.2013 Supp. 22–3402. We agree with the State that to expect a traveling doctor to reschedule appointments or obtain coverage is not a mere inconvenience, either to the doctor or, even more so, to his or her patients. The State argues that given Dr. Robinett is a traveling doctor, it is understandable that a subpoena might take an extended time to catch up to him. We also find it was Robinson who requested a continuance of the January 10, 2011, trial in the first place, when the State was prepared to go to trial that day. The record indicates Dr. Robinett had been served with a subpoena, and there was no evidence he was not available to testify in January 2011. Consequently, the trial court did not abuse its discretion in granting the State's motion to continue the February 22, 2011, trial date pursuant to K.S .A.2013 Supp. 22–3402, and there was no violation of Robinson's right to a speedy trial.
Next, Robinson argues there was insufficient evidence to support his conviction for aggravated burglary because he resided in the house and had authority to enter.
When reviewing the sufficiency of the evidence in a criminal case, because the jury has found the facts in the State's favor, we review the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McBroom, 299 Kan. 731, Syl. ¶ 5, 325 P.3d 1174 (2014). We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. 299 Kan. 731, Syl. ¶ 5. Nor do we make a distinction between direct and circumstantial evidence in terms of probative value: “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.” 299 Kan. 731, Syl. ¶ 6.
One of Robinson's convictions was for aggravated burglary, which is defined in K.S.A. 21–3716 as “knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony ... therein.” In this case, the jury was instructed that the State had to prove the following elements:
“1, That the defendant knowingly entered a building; to-wit; residence at 1936 North 46th Terrace, Kansas City, Kansas, which is a dwelling;
“2. That the defendant did so without authority;
“3. That the defendant did so with the intent to commit Aggravated Battery therein;
“4. That at the time there was a human being in the dwelling, to-wit: [L.C.]; and
“5. That this act occurred on or about the 24th day of August, 2010, in Wyandotte County, Kansas.”
Robinson asserts the State failed to present sufficient evidence to prove his entry into the house was without authority. Robinson argues his authority to enter the house emanated from the fact that he and L.C. had been living together, on and off, for 5 years. L.C. testified that Robinson had been living in the house for the entire month leading up to the incident. Robinson claims he was not a social guest and, in light of the evidence of the joint occupancy, the State failed to prove that he lacked authority to enter the house. Robinson points out that the test is not whether L.C. gave him permission to enter the house, but rather whether he had authority to enter. He cites a few cases to establish this point.
In State v. Franklin, 280 Kan. 337, 121 P.3d 447 (2005), the court reversed the aggravated burglary conviction of a former live-in girlfriend who entered her former boyfriend's residence and attacked his current lover. Evidence of lack of authority was insufficient when the defendant testified she had permission to be in the residence, she had clothes in the residence, and she had a car in its garage. In response, the State had relied on the timing of the attack, 1:54 a.m., as well as the defendant's lack of conversation with residents on the night of the attack, her estrangement from the boyfriend, and her failure to visit the residence in the previous several weeks.
In State v. Vasquez, 287 Kan. 40, 60, 194 P.3d 563 (2008), the defendant was convicted of three counts of first-degree murder; and one count each of aggravated robbery, aggravated burglary, and felony theft; and two counts of misdemeanor theft. One of Vasquez' arguments on appeal was that the State failed to present evidence that he lacked authority to enter the house where the murders occurred, which he and Robin Vasquez had shared as husband and wife before his extended stay in Mexico. Relying on Franklin, the court reversed Vasquez' conviction for aggravated burglary:
“Viewing all of the evidence in this case in the light most favorable to the prosecution, the State certainly demonstrated that Robin wanted nothing to do with Vasquez. She had asked him to stay in or go back to Mexico; and she had moved at least some of his belongings out of their house and into his sister's. Yet the State did not prove that on December 11, 1998, Vasquez was legally unauthorized to enter the house he and Robin had lived in together. Robin may have obtained a restraining order or may have planned to file a PFA action, as she told Starks, but there was no evidence that Vasquez had been served with any order of this type. He was still married to Robin. Although Starks' discouragement of contact with Vasquez' wife was good advice, it lacked the force of law. In keeping with our Franklin decision, we hold that the evidence at trial was insufficient to show Vasquez lacked authority to enter Robin's house. His conviction on aggravated burglary must therefore be reversed and its corresponding sentence vacated.” 287 Kan. at 60.
In State v. Harper, 246 Kan. 14, 25–26, 785 P.2d 1341 (1990), the court found that the legislature intended “entry without authority and entry with intent to commit a felony or theft to be two separate elements.” In Harper, the defendant had an “extremely broad grant of authority to enter and use” the office at a softball complex where he worked. Specifically, Harper had a key to the office and authority to enter the office for his duties as the complex's groundskeeper, in his role as umpire, for the construction work he was contracted to perform for the complex, and when he had too much to drink to drive home. The Harper court found that because he had authority to enter the building, Harper could not be convicted of burglary even though he did not have permission to take the records he was in the office to obtain. The court reasoned that Harper's authority to enter the office was not negated even where his entry was for an unlawful purpose. 246 Kan. at 20.
The State relies on L.C.'s testimony that she did not give Robinson permission to enter her house that night. L.C. testified Robinson did not have his own key to her house and she was the only person registered on the lease for the residence. The State relies on State v. Gutierrez, 285 Kan. 332, 337, 172 P.3d 18 (2007), where the court stated: “A defendant who is unauthorized to enter into a building may continue to be unauthorized while he or she remains within, unless the person or entity empowered to grant permission has decided to change the defendant's status.” The State claims the issue of Robinson's authority was a factual issue for the jury and the jury believed the State's evidence.
The cases cited by Robinson are distinguishable from the facts in this case. In Franklin, the defendant testified she had permission from her boyfriend and his mother to be in the residence. The State did not rebut that testimony. Here, the evidence from L.C. was that Robinson did not have permission to come into the residence at the time of the incident and she did not want Robinson in the house. L.C.'s testimony is supported by the evidence that Robinson “kicked the door in” to get inside. Robinson's comparison of the husband and wife situation in Vasquez to his case is without merit. Based on the evidence presented in the case, the jury found Robinson did not have authority to enter the house. Viewing the evidence in the light most favorable to the State, as we are required to do, a reasonable jury could hold that Robinson did not have authority and permission to enter the house and he was guilty of aggravated burglary.
Next, Robinson argues the aggravated battery statute, K.S.A. 21–3414(a)(1)(B), is unconstitutionally vague when describing a battery committed whereby disfigurement can be inflicted. He contends the legislature used the unconstitutionally vague term “disfigurement” in defining the crime in K.S.A. 21–3414(a)(1)(B) as “intentionally causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
Robinson raises this issue for the first time on appeal. Constitutional grounds for reversal asserted for the first time on appeal are not properly before us for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012), While there are bases upon which we can consider an issue for the first time on appeal, we find no sound reason to do so in this case. Besides, in State v. Walker, No. 107,878, 2013 WL 3970180, at *6–7 (Kan.App.2013) (unpublished opinion), rev. denied 299 P.3d –––– (2014), the court considered and rejected this same argument. Accordingly, we dismiss this claim for not being properly preserved for appellate review.
Next, Robinson argues the trial court erred by directing the jury that bodily harm was any touching of the victim against the victim's will, with physical force, in an intentional, hostile and aggravated manner. Robinson contends this instruction effectively told the jury that a certain type of touching is bodily harm, as opposed to allowing the jury to find that element beyond a reasonable doubt.
When the appellate courts review claims on jury instructions,
“[t]he progression of analysis and corresponding standards of review on appeal are: (!) 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 ––– U.S. ––––, 132 S.Ct. 1594 (2012).” State v.. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
In reviewing a claim of erroneous jury instructions, we must first determine the reviewability of the issue using an unlimited standard of review. Robinson's current objection was not raised in the trial court. Defense counsel did not object to jury instruction No. 11, which language is provided in the comments to PIK Crim.3d. 56.18:
“As used in these instructions, bodily harm has been defined as any touching of the victim against the victim's will, with physical force, in an intentional hostile and aggravated manner. The word ‘great’ distinguishes the bodily harm necessary to prove aggravated battery from slight, trivial, minor or moderate harm, as such it does not include mere bruises.”
Reviewability of jury instructions is defined in K.S.A.2013 Supp. 22–3414(3), which states a party cannot assign error to the giving or failure to give an instruction unless the party made a specific objection to the instruction. See also State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012) (“[A] defendant cannot challenge an instruction, even as clearly erroneous under K.S.A. 22–3414[3], when there has been on-the-record agreement to the wording of the instruction at trial.”).
Alternatively, however, under K.S.A.2013 Supp. 22–3414(3), even when a defendant fails to object to or request an instruction, we may examine the issue using the clearly erroneous standard of review. The clearly erroneous standard of review employs a two-step process as provided in State v. Smyser, 297 Kan. 199, 204, 299 P .3d 309 (2013):
“First, the appellate court must ‘determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ Williams, 295 Kan. 506, Syl. ¶ 4. If the court finds error, it moves to the second step and ‘assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ Williams, 295 Kan. 506, Syl. ¶ 5.”
The term bodily harm is not statutorily defined, nor is a definition provided in the Pattern Instructions for Kansas (PIK). See K.S.A. 21–3412; PIK Crim.3d 53.00; PIK Crim.3d 56.16; but see PIK Crim.3d 56.18, Comment. Our appellate courts, however, have defined the term: “[B]odily harm has been defined as any touching of the victim against the victim's will, with physical force, in an intentional, hostile, and aggravated manner.” State v. Johnson, 46 Kan.App.2d 870, 881, 265 P.3d 585 (2011); accord State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984). Moreover, this court has stated that the bodily harm required to sustain a conviction for battery may be “slight, trivial, minor, moderate, or mere bruising. [Citation omitted.]” State v. Potts, 34 Kan.App.2d 329, 337–38, 118 P.3d 692 (2005), aff'd in part, rev'd in part 281 Kan. 863, 135 P.3d 1054(2006).
In State v. Delacruz, 43 Kan.App.2d 173, 178–79, 223 P.3d 810 (2010), the court noted that great bodily harm distinguishes the bodily harm necessary to establish aggravated battery from “ ‘slight, trivial, minor, or moderate harm, and does not include mere bruising, which is likely to be sustained in simple battery.’ “ The trial court in Delacruz did not include the definition of great bodily harm in its instruction on aggravated battery. But more importantly, the court instructed the jury: “ ‘There are no definitions that this Court can give to you to define “great bodily harm” or “bodily harm.’ “ “ 43 Kan.App.2d at 180. The appellate court in Delacruz observed that PIK Crim.3d 56.18 does not include a definition of great bodily harm but that the PIK instruction should be modified in a particular case if the facts require it. The appellate court did not determine that it was error not to include the definition in the instruction but found that the trial court's added statement that it could not define for the jury “great bodily harm” or “bodily harm” was a misstatement of the law. “Moreover, in considering whether a real possibility exist[ed] that the jury would have rendered a different verdict if the trial error had not occurred, we [were] swayed by the district court's own characterization of the evidence of ‘great bodily harm’ as ‘thin.’ “ 43 Kan.App.2d at 180.
Here, the distinction between bodily harm and great bodily harm applied to the aggravated battery charges against Robinson. Here, as in Delacruz, evidence of bodily harm was presented at trial. But unlike in Delacruz, the jury in this case was properly instructed on the crimes of aggravated battery and its lesser-included offenses. Further, while L.C.'s trial testimony somewhat minimized her injuries, under either version she presented clear evidence of bodily harm enough to seek medical attention. We find the trial court's definition of bodily harm and great bodily harm was both legally and factually appropriate.
Next, Robinson argues the trial court abused its discretion by allowing deposition testimony from Dr. Robinett that allegedly referred to L.C.'s past injuries and that she told Dr. Robinett, “My baby's father hit me.”
We review the district court's decision to admit evidence in two steps: (1) review of whether the evidence was relevant, assessing materiality de novo and probativity under an abuse of discretion standard; and (2) review of the application of the statutory rules governing admission or exclusion of evidence. See State v. Phillips, 295 Kan. 929, 947, 287 P.3d 245 (2012). A trial court may exclude relevant evidence upon finding its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60–445; State v. Leitner, 272 Kan, 398, 415, 34 P.3d 42 (2001). That determination is reviewed for an abuse of discretion. See Phillips, 295 Kan. at 947.
Before the start of trial, defense counsel objected to Dr. Robinett's testimony that L.C. said “My baby's father hit me.” Defense counsel argued the statement was inadmissible hearsay evidence and only the fact of the injury was relevant, not the specific person who perpetrated the injury. The State argued the evidence was taken by Dr. Robinett during his patient history with L .C. The trial court found L.C. was going to testify at trial, available for cross-examination, and the statement was not hearsay. Robinson does not challenge the trial court's hearsay ruling on appeal, nor will we address it. See State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013) (a point incidentally raised in a brief and not argued therein is also deemed abandoned).
Defense counsel also objected to Dr. Robinett's statement that he observed older injuries on L.C. during his examination. The State argued it was not a prior injury, but was evidence of posterior parietal encephalomalacia which Dr. Robinett had said it was clear from the CAT scan that L.C. had an “old infarct.” The State claimed it was part of Dr. Robinett's diagnosis and there was no connecting a prior stroke to the charges in the case at hand. Defense counsel argued the evidence was not relevant to the case and the jury could infer that Robinson was responsible for the past injuries. The trial court held the evidence was not prejudicial to Robinson and it would not be stricken from the deposition video.
On appeal, Robinson claims the evidence of L.C.'s prior stroke and the attribution of those injuries is evidence of prior bad acts prohibited by K.S.A. 60–455. We disagree. Dr. Robinett's deposition testimony was relevant to the injuries sustained by L.C. and his diagnosis and treatment of those injuries. Dr. Robinett's deposition testimony was probative and material and relevant to establish the charges against Robinson. See K.S.A. 60–401(b) (relevant evidence is evidence having any tendency in reason to prove material fact). We do not find the trial court abused its discretion in deciding not to redact the requested medical evidence in Dr. Robinett's deposition testimony played for the jury.
Next, Robinson argues the trial court erred in allowing the State to question him about contacting L.C. and telling her not to come to court on the day of the trial and then failing to give the jury a limiting instruction regarding the testimony. Robinson did not request a limiting instruction. Consequently, we apply a clearly erroneous standard of review. See K.S.A.2013 Supp. 22–3414(3); State v. Williams, 295 Kan. 506, 511, 286 P.3d 195 (2012).
“If evidence qualifies for admission under K.S.A. 60–455 but no limiting instruction was given, the standard of review should match that applied to other jury instruction issues. If the defense requested a limiting instruction and was refused, or it otherwise objected to its omission by the district judge, the standard on appeal is that set out in K.S.A. 60–261; to be reversible, the error must be inconsistent with substantial justice. See Gunby, 282 Kan. at 48, 57–59. If the defense did not request a limiting instruction and it failed to object to its omission, the absence of a limiting instruction is reviewed on appeal under the clearly erroneous standard of K.S.A. 22–3414(3). Reid, 286 Kan. at 513.” State v. Vasquez, 287 Kan. at 51.
The trial judge's rationale for allowing the State to question Robinson about contacting L.C. was as follows: “Well, I think this all goes to credibility of the defendant as a witness and I think she can ask that question and he can answer it however he sees fit and [the prosecutor] can do whatever she wants to after that answer.” Robinson argues it was legally and factually appropriate to give the limiting instruction. He contends a reversal is necessary because there is a real possibility that the jury saw this intimidation as indicative of the cycle of domestic violence in the couple's lives and painted a picture of guilt for the jury, regardless of the evidence surrounding the charges in the case.
As the court in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), articulated, K.S.A. 22–3414(3) creates a procedural hurdle when a party does not object to the failure to give an instruction because the statute establishes a preservation rule for instruction claims on appeal. It provides, in part, that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection in the district court. 295 Kan. at 512–13.
The State attempts to characterize Robinson's statements to L.C. telling her not to come to court as evidence of events surrounding the commission of the crime for which Robinson is charged. Consequently, K.S.A. 60–455 does not apply. See State v. King, 297 Kan. 955, 305 P.3d 641 (2013) (K.S.A. 60–455 does not apply if the evidence relates to crimes or civil wrongs committed as part of the events surrounding the crimes for which the defendant is charged .). We are not convinced. Robinson's decision to tell L.C. not to testify is not connected with the events for which Robinson was charged.
Even if we find it was error not to provide a limiting instruction regarding the evidence Robinson complains about, we conclude that such an error was not clearly erroneous. We are not firmly convinced, based on the evidence presented at trial, physical and otherwise, that the jury would have reached a different verdict had a limiting instruction been given. We find no reversible error.
Next, Robinson argues the trial court violated various constitutional rights by sending a written communication to the jury.
Robinson argues the claimed errors in answering the jury questions are structural and harmless error review should not be applied. He cites Arizona v. Fulminante, 499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), for supporting authority. In Fulminante, the issue was whether admitting into evidence an involuntary confession could ever be harmless. The Supreme Court noted that some constitutional rights, such as the use of a coerced confession, the right to counsel, and the right to an impartial judge, cannot be harmless. But the Supreme Court has never held that the process used in Robinson's case resulted in a structural error.
With respect to the right to an impartial judge, the Fulminante court cited Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), a case involving the judge's pecuniary interest in the outcome of the case. Tumey involved the practice of the town mayor serving as the judge of the municipal court and personally receiving the court costs assessed against a defendant appearing in that court. Neither Fulminante nor Tumey control. We find no Supreme Court case holding the process used in Robinson's case to constitute structural error.
Robinson also relies on Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), to support his contention that the denial of a public trial cannot be harmless. But in Waller, the issue was whether the defendant's right was infringed when the entire hearing on the suppression of evidence was closed to the public. The Supreme Court found that “suppression hearings often are as important as the trial itself.” 467 U.S. at 46. Further, “a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions.” 467 U.S. at 47. None of this applies to the procedure used by the trial court in Robinson's case. Thus, we conclude that if there was any error it is subject to a harmless error analysis.
Resolution of Robinson's arguments on this issue involves matters of statutory and constitutional interpretation. These are questions of law over which this court has unlimited review. State v. Hilt, 299 Kan. 176, 200, 202, 322 P.3d 367 (2014). Though Robinson did not object to the court's procedure for answering the jury questions as required by State v. Coman, 294 Kan. at 89, we will still consider it without the defendant having preserved the issue for appeal. See State v. Bowen, 299 Kan. 339, 354–55, 323 P.3d 853 (2014) (addressing identical issues on appeal despite the defendant's failure to object to the procedure at the district court).
With respect to the claim that Robinson was denied his right to be present at all critical stages of his trial, K.S.A. 22–3420(3) states:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
Our Supreme Court has construed this to require any question from the jury concerning the law or evidence to be answered in open court in the defendant's presence unless the defendant is voluntarily absent. King, 297 Kan. at 967. Our Supreme Court has found the procedure used in our present case violates K.S.A. 22–3420(3). State v. Verser, 299 Kan. 776, 788–89, 326 P.3d 1046 (2014). According to our Supreme Court, this procedure also violates a defendant's rights under the Sixth Amendment to the United States Constitution, which guarantees that a criminal defendant may be present at every critical stage of his or her trial. 299 Kan. at 776, 788–89. Thus, we conclude the district court erred in not recalling the jurors to the courtroom to answer their questions.
Next, we apply the federal constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967), to determine if the error requires us to reverse Robinson's convictions. State v. Herbel, 296 Kan. 1101, 1110–11, 299 P.3d 292 (2013). Under this standard,
“error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011).
In the context of the trial court's improper communication of its response to a jury question, we use the four-factor test in State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 (1998), to determine whether the district court's error requires reversal. See Verser, 299 Kan. at 789–90. Those factors are (1) the overall strength of the prosecution's case; (2) whether an objection was lodged to the improper communication; (3) whether the communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of the posttrial remedy to mitigate the constitutional error. McGinnes, 266 Kan. at 132. We examine these factors in turn.
With respect to the first factor, the State's case against Robinson was strong, given L.C.'s testimony, the supporting testimony of the police officer, and L.C.'s injuries. With respect to the second factor, Robinson did not object to the trial court's method of communicating with the jury. With respect to the third factor, Kansas courts have generally considered written answers to jury questions as being less critical than detailed jury communications such as reading back trial testimony. State v. Womelsdorf, 47 Kan.App.2d 307, 322–24, 274 P.3d 662 (2012), rev. denied 291 Kan. 1256 (2013). Here, the trial court received questions from the jury on two occasions. First, the jury asked three questions: who took the photos, when were they taken, and did he state that he threw her across the bed. The trial court and lawyers considered the questions, formulated written answers, and gave them to the jury in the jury room. The jury sent back another question: “Explain again the difference in great bodily harm and bodily harm and how intent factors in.” The trial court and lawyers again formulated written answers about usual consequences and references to the applicable jury instructions. The answers were again given to the jury in the jury room. Robinson did not object to this procedure. With respect to the final factor, Robinson did not raise this issue in his posttrial motion.
We conclude that there is no reasonable possibility the trial court's failure to read the answer to the jury's question in open court in Robinson's presence contributed to his guilty verdicts. The jury received no new information from either communication, and there is no evidence of any misconduct by the bailiff in delivering the court's response to the jury. The error was harmless.
Robinson also briefly argues that the procedure used by the trial court violated his right to a public trial under the Sixth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because the communication of the court's response took place in the jury room, not the public courtroom. This argument was raised in Womelsdorf. The court in Womelsdorf found no violation of the right to a public trial, noting that in the same procedure used in Robinson's trial, the court's written responses to the jury's questions were available as part of the public court file and not hidden from public view. 47 Kan.App.2d at 324–25. Further, the discussion of the court's response was on the record. The analysis in Womelsdorf is persuasive.
Here, the trial court's responses to the jury's questions provided no new facts or legal principles to consider. All the questions were discussed on the record. Robinson does not contend this discussion took place somewhere other than in the open courtroom. The conduct of the trial court and both counsel in discussing the questions and appropriate responses was on the record and in open court. No new testimony was involved. We find no violation of the constitutional right to a public trial.
Robinson also briefly claims he was denied his Fourteenth Amendment right to an impartial judge under the United States Constitution because no judge was present when the actual communication to the jury took place and no one was present to protect the rights of the defendant or the State. Robinson makes no assertion that the trial judge in his case had a conflict of interests or a pecuniary interest in having him convicted. This issue was addressed and rejected in Womelsdorf. We find Womelsdorf persuasive on this issue. Besides, we find no basis upon which to conclude that the outcome of the trial would have been any different had the judge personally addressed the jury in the courtroom, rather than through his written response.
In the alternative, Robinson contends that cumulative trial errors require reversing his convictions. Robinson does not raise a specific argument other than to argue that the cumulative effect of the combination of errors substantially prejudiced his right to a fair trial.
The test is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial under the totality of the circumstances. See State v. Tully, 293 Kan. 176, 205–07, 262 P.3d 314 (2011). In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how the trial judge dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. See Ward, 292 Kan. at 578. “No prejudicial error may be found upon this cumulative effect rule ... if the evidence is overwhelming against the defendant.” State v. Colston, 290 Kan. 952, Syl. ¶ 15, 235 P .3d 1234 (2010).
The only errors in this case were the trial court's failure to give a limiting instruction concerning the State's questioning of Robinson about statements he made to L.C. about not testifying and the trial court's providing written answers to the jury's questions. Since we have found the only two trial errors were harmless, we reject Robinson's cumulative error claim. To the extent that more than one error occurred, we observe that cumulative trial error requires reversal when the totality of the circumstances substantially prejudiced Robinson and denied him a fair trial. The errors were harmless, both singly and collectively. The totality of the circumstances did not substantially prejudice Robinson and deny him a fair trial. See State v. Houston, 289 Kan. 252, 277–78, 213 P.3d 728 (2009). The evidence against Robinson was strong when considered as a whole. Under the totality of the circumstances, we are convinced beyond a reasonable doubt that, even in light of any cumulative effect, the errors did not affect the jury's verdict.
Affirmed.