Opinion
No. 105,770.
2012-12-21
STATE of Kansas, Appellee, v. Patrick D. ARMER, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
N.B. was born on January 6, 2009, to T.B. T.B. and N.B lived with T.B.'s mother until mid-February when she moved in with her boyfriend, Patrick D. Armer. Neither Armer nor T.B. believed Armer was N.B.'s father, which was a point of contention between them. Armer began watching N.B. during the day while T.B. was at school. Armer often became frustrated with N.B. when she cried; he yelled at her, told her to “shut the f* *k up,” told her he would give her something to cry about, and kicked the crib in which she was laying. On one occasion, T.B. thought she saw Armer shake N.B. briefly, but not violently or like he intended to hurt her.
On March 5, 2009, N.B. acted normally when T.B. left for school. Armer was home for the day, so he was to take care of N.B. Around 11 a.m., he took N.B. to McDonald's and ran into his old manager. He introduced N.B. to her, and N.B. acted normally at the time. Afterwards, Armer went home, put N.B. in her crib, and began watching a movie upstairs.
Around midday, T.B. received a text from Armer saying that something was wrong with N.B. and he was scared. T.B. called Armer from school and she told him to call someone. Armer called T.B.'s mom, but T.B.'s sister answered, and after he explained the situation, she told Armer to call 911.
T.B.'s mom returned home, and T.B.'s sister immediately told her to go to Armer's residence. She arrived at Armer's house and went to the basement bedroom where N.B. was lying on the bed listless and lethargic—Armer never called 911. She picked up N.B. and asked what happened. Armer responded that he did not know; but he offered that he had told T.B. not to leave N.B. with him because N.B. “scared him.” Armer and T.B.'s mother drove to pick T.B. up from school and took N.B. to the hospital.
After examining N.B., doctors told T.B. that N.B. suffered from shaken baby syndrome. Police investigators arrived, and Armer agreed to accompany them to the station for questioning. Armer initially told investigators that he did not know what happened. Nevertheless, he said that none of N.B.'s other caretakers would have hurt her and it must have been him because he was the only person that had handled her. Investigators gave him multiple opportunities to say there was an accident, and in response to one such opportunity, Armer said he hoped the injury was an accident.
Eventually, Armer told investigators that just before N.B. became symptomatic he was running up the stairs with her and fell, landing on top of her. He said he did not tell anyone about the fall because he was “ ‘scared that [he] was going to jail and thinking of a way to get out of it.’ “ And in his own defense at trial, he testified that he did not think to initially tell doctors or investigators about the fall because they kept asking about someone shaking N.B., not about someone falling on her. Armer denied ever shaking N.B.
During the course of the 4–day trial, numerous medical professionals testified as to the extent of N.B.'s injuries and the possible cause. N.B. suffered from seizures, retinal hemorrhages, bleeding around her brain, and multiple rib fractures. Each witness opined that N.B.'s injures were not accidental, would not have been caused by Armer falling on top of her, and were highly indicative of a shaken baby. Dr. Karri Meyer testified that each individual injury was indicative of child abuse, “but when you add it up it's very overwhelming actually.”
After short deliberations, the jury found Armer guilty of abuse of a child and intentional aggravated battery causing great bodily harm. The district court sentenced Armer to concurrent sentences of 38 months in the custody of the Secretary of Corrections for aggravated battery and 31 months for abuse of a child. Armer timely appealed his convictions and sentences.
Did the District Court Err in Failing to Provide a Limiting Instruction?
During the trial, the State presented evidence that, prior to March 5, 2009, Armer had yelled at N.B., cursed at her and kicked the crib in which she lay. There was also testimony regarding prior rough handling, including an incident in which T.B. thought she saw Armer shake N.B. briefly. Armer did not object to this evidence, nor did he request a limiting instruction.
The failure to contemporaneously object to the admission of the evidence precludes review of the district court's grounds for admitting the evidence. State v. Holman, 295 Kan. 116, Syl. ¶ 1, 284 P.3d 251 (2012). This court must, however, determine if the failure to give a limiting instruction was an error by the district court and, if so, was the omission so clearly erroneous as to have created a real possibility that the jury would have rendered a different verdict if properly instructed. K.S.A. 22–3414(3); State v. Holman, 295 Kan. 116, Syl. ¶ 3.
In this case, we find that the evidence of which Armer complains regarding yelling, cursing, and kicking the baby's crib does not establish any prior crime or civil wrong. More troubling are the alleged incidents of rough handling, particularly the one prior occasion where Armer may have shaken the baby briefly. The testimony, however, tends to minimize this behavior, and although indicative of Armer's frustration and overall lack of proper child care skills, we cannot say that these acts rise to the level of actionable child abuse or other crime or civil wrong.
Accordingly, KSA 60–455 did not govern the testimony about prior acts in the context of this case, and the district court did not err in failing to provide sua sponte a limiting instruction. See State v. Anthony, 282 Kan. 201, 214, 145 P.3d 1 (2006).
Did the District Court Err by Improperly Encouraging the Jury to Reach a Unanimous Verdict?
Armer further complains that the district court, in Instruction No. 17, improperly encouraged the jury to reach a unanimous verdict. Although Armer did not object to the instruction, whether the instruction amounted to error is a question of law subject to unlimited review on appeal. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012).
At the close of the evidence, and prior to closing arguments and deliberation, the district court instructed the jury as follows:
“Upon hearing the closing arguments of counsel, this case is submitted to you for decision and verdict.
“Your deliberations should be conducted in a businesslike manner. You will first select a presiding juror who should assure that your discussion moves sensibly and orderly, with each juror given the opportunity to discuss the issues fully and fairly. Your presiding juror shall complete the appropriate verdict form(s) and will speak for the jury in court.
“Under the law, your verdict(s) must be unanimous and must be founded entirely upon the evidence admitted and the law as given in these instructions.
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charge(s) to a different jury at a later time.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.”
This instruction, when read as a whole, accurately states the law and gives clear directions to the jurors that their deliberations should be conducted seriously while keeping open minds. The instruction was not misleading or coercive.
Instructions containing similar, if not identical language have consistently been upheld on appeal. See, e.g., State v. Wilson, 45 Kan.App.2d 282, 285–87, 246 P.3d 1008 (2011). The district did not err in giving this instruction.
Did the District Court Err in Instructing the Jury Regarding the Presumption of Intent?
The district court instructed the jury in the exact language of PIK Crim. 3rd 54.01, which reads:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant,”
The Kansas Supreme Court recently reaffirmed prior decisions upholding the language of the intent instruction in State v. Robinson, 293 Kan. 1002, 1035–36, 270 P.3d 1183 (2012). Because this court is duty bound to follow Kansas Supreme Court precedent, Aimer's complaint is without merit. See State v. Jones, 47 Kan.App.2d 512, 528, 276 P.3d 804 (2012). The instruction was appropriate under the facts of this case, and the district court did not err.
Affirmed.