Opinion
No. 108,976.
2013-08-2
In the Matter of W.S.E.
Appeal from Johnson District Court; Thomas E. Foster, Judge. Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, 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; Thomas E. Foster, Judge.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant. Shawn E. Minihan, assistant district attorney, Stephen M. Howe district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
W.S.E. appeals his felony conviction for interference with a law enforcement officer. He claims that there was insufficient evidence to establish that the officers' duties included stopping him. He further argues that the district court erred in instructing the jury regarding the definition of “knowingly” and in instructing the jury that it could convict W.S.E. if he “knew or reasonably knew” that the men from whom he was fleeing were police officers.
We find no error and affirm the conviction.
Facts
In the early afternoon of July 18, 2012, E.C.E. and A.C.E. were at their home in Overland Park with various family members, including their cousins C.E. and W.S.E., who are brothers. At some point, an argument arose and C.E. went to the kitchen, grabbed a knife, and threatened E.C.E. with her life. When A.C.E. stepped in to protect his sister, C.E. held the knife to A.C.E.'s neck. C.E. was still holding the knife when remaining family members forced him from the residence. W.S.E. followed C.E.
A.C.E. phoned the police. Officer Kari Hawes responded to the scene and took a report from E.C.E. regarding the events. Officer Hawes obtained a description of C.E. and W.S.E. indicating that both were wearing long shorts, black and white tennis shoes, and long white t-shirts and had left the area together on foot. Hawes provided their description to other officers via radio.
Detective Justin Reeder was in the area when he heard Hawes' call over the common radio channel and proceeded to her location to assist in locating the two men. Upon receiving updated information, Reeder observed two men walking southbound on Slater Street and put out the information that he believed that he had the suspects in sight. Officer Hunter Clyde immediately responded that he was in the area and would assist Reeder in stopping and detaining the men.
Detective Reeder, as his daily uniform, wears a polo shirt and dress slacks, with a badge on his belt near his gun and drives an unmarked white Toyota Camry. Officer Clyde was a patrol officer who wore a full police uniform with gun belt and drove a police-marked red Ford Crown Victoria with lights on the interior but not on the exterior. Reeder and Clyde devised a plan whereby Reeder would drive past the subjects and cut them off, while Clyde would follow behind and box them in. As Reeder pulled into a driveway immediately in front of them, W.S.E., who was in front of C.E., ran back toward Clyde's patrol car. The two men then ran away from both Reeder and Clyde. Reeder exited his vehicle and yelled, “Police. Stop,” but C.E and W.S.E. continued to run.
Reeder and Clyde ran after the two men for several blocks, following them over at least two fences. Both Reeder and Clyde again yelled “Police Stop” as the men continued to run. Reeder eventually caught C.E. in the back yard of a house some blocks away from the initial encounter. W.S.E. continued to run and was eventually apprehended a few streets over by Patrol Officer Matthew Buelt and was taken into custody by two other detectives.
W.S.E. was charged with felony interference of both Detective Reeder and Officer Clyde, and, after a jury trial, was convicted of felony interference with Detective Reeder. His appeal was timely filed.
Evidence of the Officers' Official Duties
W.S.E. first argues that the State did not prove that the officers' official duties included stopping W.S.E., and therefore failed to prove an essential element of the crime.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the district court to preserve the issue for appeal. State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008).
W.S.E. was convicted of “interference with law enforcement,” which is defined as “knowingly obstructing, resisting or opposing any person authorized by law ... in the discharge of any official duty.” K.S.A.2012 Supp. 21–5904(a)(3). “[T]he action of the defendant charged with obstruction of official duty must have substantially hindered or increased the burden of the officer in carrying out his official duty.” State v. Parker, 236 Kan. 353, 364, 690 P.2d 1353 (1984). “Disregarding a law enforcement officer's order to stop may violate [the statute].” State v. Beltran, 48 Kan.App.2d 857, ––––, 300 P.3d 92 (2013).
W.S.E. argues that, while testimony established that W.S.E.'s brother, C.E., was the suspect in the reported aggravated assault, no testimony showed that the officers' duty included stopping W.S.E., nor did the officers articulate any reason for seeking to stop or speak to W.S.E.
The State argues that the statute contains no language that would limit its application to only those being investigated. Further, the State argues, W.S.E. cited no authority for his proposition that a defendant must be the subject of the felony investigation to be convicted of interference with law enforcement.
A review of all the evidence in the light most favorable to the prosecution exposes W.S.E.'s argument as unsound. While no testimony was presented by the State indicating that W.S.E. was the target of the investigation, evidence was presented that both individuals matched the same description: both C.E. and W.S.E. were wearing long shorts, black and white tennis shoes, and long white t-shirts, and both left the area on foot. While C.E. was the target of the aggravated assault investigation, no evidence was presented by either the State or W.S.E. that would indicate the officers knew which of the two men was C.E. It would be a permissible inference that, in any event, W.S.E. would be a material witness to the aggravated assault being investigated. Looking at the evidence in a light most favorable to the State, a rational fact-finder could have determined that the officers, in conducting their investigation, would have had a need to stop both men. See Frye, 294 Kan. at 374–75;K.S.A.2012 Supp. 21–5904(a)(3). When W.S.E. ran from the officers and caused them to give chase, running over fences and through several yards, a rational fact-finder could have easily found that W.S.E. substantially increased their burden in carrying out that duty. See Parker, 236 Kan. at 364;Beltran, 48 Kan.App.2d at ––––.
Therefore, sufficient evidence existed that the officers official duties included stopping W.S.E.
The “Knowingly” Instruction
As noted above, K.S.A.2012 Supp. 21–5904(a)(3) def nes interference with law enforcement as “ knowingly obstructing, resisting or opposing any person authorized by law ... in the discharge of any official duty.” (Emphasis added.)
W.S.E. proposed the district court instruct the jury that “[a] respondent acts knowingly when the respondent is aware that his conduct is reasonably certain to cause the result complained about by the state.” The jury instruction actually given by the district court—over W.S.E.'s objection—stated that “[a] respondent acts knowingly when the respondent is aware of the nature of his conduct that the state complains about.”
W.S.E. argues the jury instruction as given by the district court did not require the jury to find that he was aware his conduct was reasonably certain to interfere with law enforcement.
The Kansas Supreme Court has provided the following steps this court undertakes 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.” State v. Astorga, 295 Kan. 339, Syl. ¶ 1, 284 P.3d 279 (2012), vacated on other grounds133 S.Ct. 2877 (2013).
Since W.S.E. clearly preserved the issue with a contemporaneous objection to the “knowingly” instruction, we proceed directly to the second step and consider whether the instruction was legally appropriate.
The recodified Kansas definitional statute addresses both the person's awareness at the time of his or her acts and the person's awareness of the ramifications of his or her actions:
“A person acts ‘knowingly’ ... with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. A person acts ‘knowingly’ ... with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result. All crimes defined in this code in which the mental culpability requirement is expressed as ‘knowingly’ ... are general intent crimes.” (Emphasis added.) K.S.A.2012 Supp. 21–5202(i).
The instruction given by the district court focuses on he nature of W.S.E.'s conduct, while the instruction proposed by W.S.E. focused on the results of his conduct. Both are taken directly from the language of the statutory definition, and both would be legally appropriate.
This brings us to the third step of determining the sufficiency of the evidence to support the instruction.
W.S.E. argues that the crime specifically required that the person charged “knowingly obstruct, resist or oppose” the officer. From this he posits that actual obstruction, resistance or opposition is the result of the action. From these premises, W.S.E. would conclude that, because the crime of interference with law enforcement is defined by the results of the action, the relevant mental state is that he must have been aware that his conduct is reasonably certain to cause the result.
W.S.E.'s argument falters, however, in essentially framing “interference with law enforcement” as a specific intent crime. Under the plain language of both K.S.A.2012 Supp. 21–5904(a)(3) and K.S.A.2012 Supp. 21–5202(i), interference with law enforcement is a general intent crime. The Kansas Supreme Court held that “[t]o prove general intent, it is not necessary for the State to prove that the defendant intended the precise harm or the result that occurred.” In re C.P. W., 289 Kan. 448, 454, 213 P.3d 413 (2009).
The State is correct that, in the context of this case, the sole determinative issue was whether W.S.E. knew that he was running from law enforcement officers. W.S.E.'s awareness of the nature of his conduct—his knowledge at the time of his acts—was the only determination that the jury had to make.
When the evidence is viewed in a light most favorable to W.S.E., it is clear that W.S.E. was fleeing. Both Reeder and Clyde chased him on foot for several blocks, through yards, in between houses, and over fences. Fleeing is a patent manifestation that W.S.E. was acting knowingly and intentionally to obstruct or resist his pursuers.
We conclude that the district court correctly defined “knowingly” in the context of this case.
The “Knew or Reasonably Knew” Instruction
The only remaining question is whether W.S.E. knew that the individuals pursuing him were law enforcement officers.
W.S.E. argues that the district court improperly instructed the jury that it could convict if it determined that W.S.E. “knew or reasonably knew” that either Reeder or Clyde were police officers.
The instruction given by the district court was in accord with PIK Crim. 4th 59.040. In State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009), the Supreme Court discussed the use of pattern jury instructions:
“ ‘The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in the PIK, trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.’ [Citations omitted.]”
The case of State v. Gasser, 223 Kan. 24, 574 P.2d 146 (1977), involved a chase scenario analogous to the instant case. Gasser attempted by flee after he had been advised by an undercover officer that he was under arrest. Another undercover officer yelled, “Police officers-you are under arrest.” Gasser was apprehenced after a short gun battle and was charged with felony obstruction along with other crimes. In response to Gasser's argument that the men pursuing him were not sufficiently identified as police officers, the Kansas Supreme Court noted that “[w]hile [the obstruction statute] does not require an officer to be properly identified, it does require a defendant have reasonable knowledge that the person he opposes is a law enforcement official.” 223 Kan. at 30. The court held that the shouting of “[p]olice officers, you are under arrest” was sufficient to present the charge to the jury. 223 Kan. at 30.
W.S.E. does not deny that Reeder and Clyde yelled, “Police. Stop,” before and during the pursuit. Rather, he argues that Gasser was a decision concerning sufficiency of evidence and not jury instructions. He maintains that the State must prove that he subjectively knew that Reeder and/or Clyde were law enforcement officers. We find W.S.E.'s argument unpersuasive since in State v.. Parker, 236 Kan. 353, 365, 690 P.2d 1353 (1984), the court interpreted Gasser to hold that the State is required to show that a defendant “knew or should have known that the person he opposed was a law enforcement officer.” See also State v. Everest, 45 Kan.App.2d 923, Syl. ¶ 3, 256 P.3d 890 (2011). Further, in State v. Lyne, 17 Kan.App.2d 761, 766, 844 P.2d 734 (1992), a panel of this court approved an earlier version of the PIK instruction, finding that the language “knew or should have known” was proper.
Since the particular facts of this case would not require any modification of the PIK instruction, PIK Crim. 4th 59.040 was properly used by the district court to instruct the jury.
Cumulative Error
Since we have found that the district court did not err with regard to the issues raised by W.S.E. on appeal, it follows that we need not address his claim of “cumulative error” nor engage in any “harmless error” analysis. State v. Murray, 285 Kan. 503, 536, 174 P.3d 407 (2008); State v. Humphery, 267 Kan. 45, 64, 978 P.2d 264 (1999).
Affirmed.