Opinion
No. 106,749.
2012-08-17
STATE of Kansas, Appellant, v. Aaron James AKERS, Appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge. Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. Lucille R. Douglass, of Calihan, Brown, Burgardt & Douglass, P.A., of Garden City, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Brett Watson, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. Lucille R. Douglass, of Calihan, Brown, Burgardt & Douglass, P.A., of Garden City, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Aaron James Akers was charged with aggravated robbery, domestic battery, criminal damage to property, and aggravated intimidation of a witness or victim. Although Akers was bound over for trial on the other charges at his preliminary hearing, the district court did not bind him over for trial on the charge of aggravated intimidation of a witness. On appeal, the State argues that the language in the complaint was sufficient to give the court jurisdiction over the charge and that sufficient evidence was presented at trial to bind Akers over for trial on the charge. Because we find that the district court did not commit reversible error in dismissing the aggravated intimidation of a witness or victim charge, we affirm.
Facts
On April 12, 2011, Garden City Police Officer Lee Stevens was dispatched to an apartment for a reported battery. At the apartment, Officer Stevens made contact with Heather Carroll, who told him that she had been in an altercation with Akers, who was her boyfriend. According to Officer Stevens, Carroll had several red marks on the left side of her neck and a mark on her arm. Carroll told Officer Stevens that she had struggled with Akers over her laptop. In addition to the marks on Carroll's neck and arm, her laptop was damaged during the struggle.
Akers was arrested and taken to the Finney County jail. Later that day, Candace Lei Gamino, who was the property manager of the apartment where Akers and Carroll lived, had two telephone conversations with Akers. Both conversations were recorded by the jail. Akers asked Gamino to contact Carroll for him to see if she would drop the charges. Gamino told Akers that she had to talk to Carroll anyway because she was not listed on the apartment lease.
On April 13, 2011, Garden City Police Officer Robert Ojeda spoke to Carroll. She reported that Akers had contacted her through Gamino. According to Carroll, Gamino told her, “ ‘[Akers] would appreciate it if you would drop the charges.’ “ Officer Ojeda then spoke with Gamino, who told him that she had a conversation with Akers at jail and had also spoken to Carroll.
On April 20, 2011, Akers was charged with one count each of aggravated robbery, domestic battery, criminal damage to property, and aggravated intimidation of a witness or victim. On August 29, 2011, the district court held a preliminary hearing at which Officer Stevens testified on the State's behalf about being called to the apartment after the fight. Officer Ojeda also testified about his investigation of the conversation between Carroll and Gamino regarding the possibility of dropping the charges against Akers.
The State then called Gamino to testify at the preliminary hearing under a grant of use immunity. Gamino testified that she had two conversations with Akers on April 12, 2011, while he was in the Finney County jail. Gamino recalled that Akers said something to the effect of “ ‘Would you go talk to her and ask her to drop charges[?]’ “ According to Gamino, she responded by telling Akers that she had to “serve a letter [on Carroll] already,” so she would speak to her. But Gamino did not recall telling Akers she would talk to Carroll “about dropping the charges.”
According to Gamino, when she talked to Carroll, she did not ask her to drop the charges against Akers. Rather, Gamino testified that she simply told Carroll that Akers “was scared” and that “this was a bad deal.” Further, Gamino testified that Carroll responded by saying “something to the effect that this was bad for [Akers'] job,” and Gamino said, “[Y]es, that he could lose his job .”
The State also introduced the recordings of the phone conversations between Akers and Gamino into evidence at the preliminary hearing, and they were played for the court. In addition, Carroll testified regarding her struggle with Akers. Moreover, Carroll testified that she spoke to Gamino twice on April 12, 2011. During the first conversation, Gamino allegedly expressed concern about the incident and wanted to know what happened. During the second conversation, Gamino allegedly said that Akers had asked her to talk to Carroll because he “would really appreciate it if [Carroll] were to drop the charges.” According to Carroll, Gamino also said that Akers “was a very good person, a very decent person, and that he doesn't deserve this; if I was making up any allegations, now would be the time to drop charges and set things right because he doesn't deserve it.”
At the conclusion of the preliminary hearing, the district court bound Akers over for trial on all of the charges except aggravated intimidation of a witness or victim. The district court found the complaint to be problematic as to the aggravated intimidation charge because it did not identify the conspiracy the State was alleging. The district court also found the evidence presented at the preliminary hearing to be insufficient to establish probable cause of a conspiracy between Akers and Gamino to intimidate Carroll.
On September 2, 2011, the State filed a motion to amend the complaint to include one count of misdemeanor intimidation of a witness. At Akers' arraignment on September 9, 2011, the district court denied the State's motion to amend, finding that there had been no evidence presented at the preliminary hearing to support the charge. On September 12, 2011, the State filed a notice of appeal, and on September 14, 2011, the remaining charges were dismissed without prejudice.
Analysis
The sole issue raised by the State on appeal is whether the district court erred in dismissing the charge of aggravated intimidation of a witness or victim at the preliminary hearing. The State challenges both reasons given by the district court as a basis for dismissal—a defective charging document and insufficient evidence. In response, Akers contends that the charging document was insufficient as to the aggravated intimidation charge and that there was insufficient evidence presented at the preliminary hearing to establish probable cause that Akers committed the crime of aggravated intimidation of a witness or victim.
Whether a complaint confers subject matter jurisdiction is a question of law over which an appellate court has unlimited review. State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009). Under K.S.A. 22–3201(b), a complaint “shall be a plain and concise written statement of the essential facts constituting the crime charged, which ... drawn in the language of the statute, shall be deemed sufficient.” Because “all crimes are statutory, and the elements necessary to constitute a crime must be gathered wholly from the statute, [a complaint] which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective.” State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 (1992).
“Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.” K.S.A. 22–3208(3). Hence, we find the State's argument that the district court did not have authority to dismiss the aggravated intimidation of a witness or victim charge in the present case to be incorrect. The question, though, is whether the complaint was actually defective.
Here, the pertinent portion of the complaint relating to aggravated intimidation of a witness or victim is Count Two, which states:
“That on or about the 12th day of April 2011, in Finney County, Kansas, Aaron James Akers, then and there being present did unlawfully, knowingly and maliciously prevent or dissuade or attempt to prevent or dissuade a victim, witness or person acting on behalf of a victim or a witness, to wit: Heather J Carroll, from causing a complaint, indictment or information to be sought and prosecuted, and the overt act was in furtherance of a conspiracy, in violation of K.S.A. 21–3833(a)(2), in violation of K.S.A. 21–3833, Aggravated Intimidation of a Witness or Victim, a severity level 6 person felony.”
Although the complaint alleges that Akers somehow took action to “prevent or dissuade” Carroll from “causing a complaint ... to be sought or prosecuted,” it does not identify the alleged “overt act” nor does it state how Akers acted in “furtherance of a conspiracy” to intimidate Carroll. Likewise, the complaint does not mention the person with whom Akers allegedly conspired. In fact, we cannot find Gamino's name listed anywhere in the complaint.
Clearly, a charge under K.S.A. 21–3302(a) requires a specific overt act in furtherance of the alleged conspiracy, and a complaint that charges conspiracy is fatally defective if it fails to allege a specific overt act in furtherance of the conspiracy. State v. Shirley, 277 Kan. 659, Syl. ¶¶ 3, 4, 89 P.3d 649 (2004). Akers, however, was charged under K.S.A. 21–3833(a)(2), which provides that the intimidation of a witness is aggravated when “the act is in furtherance of a conspiracy.” Nevertheless, we find that a complaint charging a defendant with aggravated intimidation of a witness or victim under K.S.A. 21–3833(a)(2) should include the essential facts alleged to constitute an “act in furtherance of a conspiracy.”
We conclude, therefore, that the district court did not commit reversible error in finding that the complaint was fatally defective as to the charge of aggravated intimidation of a witness or victim. Furthermore, in light of this conclusion, it is not necessary for us to consider whether there was sufficient evidence presented at the preliminary hearing to establish probable cause that Akers committed the crime of aggravated intimidation of a witness or victim.
Affirmed.