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State v. Angilda

Court of Appeals of Kansas.
Mar 22, 2013
297 P.3d 311 (Kan. Ct. App. 2013)

Opinion

No. 106,226.

2013-03-22

STATE of Kansas, Appellee, v. Simon Takwana ANGILDA, Appellant.

Appeal from Johnson District Court; Stephen R. Tatum, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.

MEMORANDUM OPINION


PER CURIAM.

A jury found Simon Takwana Angilda guilty of 14 out of 15 coUnts charged, including rape and aggravated sodomy of a 92–year–old woman. Subsequently, the jury found two aggravating factors, and the district court doubled several of Angilda's presumptive sentences. On appeal, Angilda raises a variety of claims, including alternative means, a Batson challenge, error in denying a motion for mistrial, prosecutorial misconduct, double jeopardy, and other errors related to the departure phase of his case. Because we do not find any of Angilda's contentions on appeal to be meritorious, we affirm his convictions and sentence.

Facts

On June 29, 2010, shortly after 10 p.m., Simon Takwana Angilda drove into a cul-de-sac looking for a home to burglarize. He kicked in the front door to an unoccupied house, took numerous items from the residence, and placed them in a green pickup truck. He then went to the neighboring home and knocked on the door. A man answered, and Angilda asked if he needed his grass cut. The man responded that he did not and Angilda left.

Angilda then knocked on the front door of the next house. Maureen Coleman, an 80–year–old woman, answered and Angilda asked if he could mow her lawn. After she said no, Angilda proceeded through her gated yard and pounded on her back door before returning to the front door and pounding on it again. After Coleman said she was going to call the police, Angilda left.

From there, Angilda drove to a strip mall and stopped directly in front of the glass door to a GameStop store. He drove the truck through the door, noticed the security gate behind the door, and drove off. When police responded to the store's alarm, an eyewitness told them that he saw a green truck drive through the door of the store.

Thereafter, Angilda drove to an unfamiliar neighborhood and parked the truck with the engine still running. He went up to 92–year–old H.L.B's house and rang her doorbell multiple times. At some point, he also broke the lock on her storm door. Because H.L.B. thought that Angilda might be her son, she opened the main door a crack. When she did so, Angilda shoved the door open and entered H.L.B.'s house.

Angilda followed H.L.B. down a hallway and took $70 from her purse. As H.L.B. was sitting on a chair next to a desk, Angilda removed his pants and forced his penis into her mouth. While attempting to resist, H.L.B. was able to reach the phone on the desk and call 911. An emergency dispatcher heard H.L.B. say “help, help, help” before the call quickly disconnected. Angilda then slapped H.L.B., threw her to the ground, and forcibly raped her.

Two police officers responding to the disconnected 911 call placed from H.L.B.'s residence noticed the green truck parked in the street. One of the officers went to the back of the house while the other officer went to the front door. When the officer at the back of the house shined his flashlight through a window, he saw Angilda—who was naked from the waist down—pulling up his shorts and running. The officer radioed that there was a possible rape in progress, and the officer at the front of the house kicked down the front door. Upon entering the house, the officer was punched in the face by Angilda.

After a quick fight, the officers were able to subdue Angilda in the front yard of H.L.B's house. But Angilda continued to resist as the officers tried to put him into a patrol vehicle. Moreover, when they arrived at the station, Angilda tried to flee again while kicking, biting, and thrashing at the officers. Eventually, the officers were able to gain control of Angilda and place him in shackles.

The State subsequently charged Angilda with aggravated burglary, aggravated robbery, aggravated criminal sodomy, attempted aggravated criminal sodomy, rape, battery against a law enforcement officer, residential burglary, two counts of criminal damage to property, theft, attempted aggravated residential burglary, attempted nonresidential burglary, and, later, three counts of violation of a protective order. Although Angilda was ordered not to make any contact with the victims or witnesses, he attempted to call H.L.B. numerous times while he was in jail awaiting trial. H.L.B. did not accept any of the calls because a recording advised her that they were coming from the jail.

On January 11, 2011, a 4–day jury trial began. During the State's case, Coleman identified Angilda, both in a photo lineup and at trial, as the man who pounded on her front and back doors. Moreover, Mark Christian Moody identified items stolen from his home that were found in the truck Angilda was driving on the night of his arrest. In addition, Timothy Wilson testified that he saw the green truck drive through the window of the GameStop. Furthermore, H.L.B. testified regarding the events that occurred in her home, and the State played a videotaped interview of her that police officers had previously conducted. Additionally, the State presented substantial forensic evidence.

Angilda testified at trial in his defense and admitted to several of the crimes. Although he admitted that he burglarized the Moodys' home, he claimed he was just trying to obtain work at Coleman's house when he pounded on both her front and back doors. As to the incident at the GameStop, Angilda testified that he stopped in front of the store to eat, but accidentally hit the gas and ran into the building.

Angilda further testified that after leaving the GameStop, he got lost and went up to H.L.B.'s house for help. According to Angilda's version of the events, H.L.B. opened the door, let him in, and then—without saying anything—she led him to a back room and gave him $70 in cash. He also testified that he pulled down his pants and H.L.B. began performing oral sex on him. Angilda testified that he then asked H.L.B. if she wanted to have sex, and he accidently fell on top of her as he helped her to lie down on the floor. Although Angilda claimed that he had consensual sex with H.L.B., he admitted that in hindsight what he did was probably rape.

Angilda also admitted that he punched the police officer in the face and fought with him in the front yard. Similarly, he admitted that he tried to call H.L.B. to see why she was lying about what had happened on the night of his arrest. Because Angilda's attorney argued that the drugs and alcohol his client had consumed made him incapable of forming the necessary intent for his crimes, the district court instructed the jury on the defense of voluntary intoxication. Ultimately, however, the jury convicted Angilda on all of the charges except for one count of attempted aggravated criminal sodomy.

Following the trial, the district court held a hearing on the State's motion for an upward departure sentence. The State presented evidence to the jury of a prior crime Angilda had committed in Missouri in which he tried to steal a woman's car during the day with what she thought was a handgun. The victim testified that Angilda said he would shoot her for her car. Additionally, the State presented evidence that Angilda had violated his probation for the prior crime by failing a drug test and committing the crimes in this case. After hearing the evidence, the jury found two aggravating factors: (1) Angilda was aware that H.L.B. was particularly vulnerable due to her age, and (2) Angilda presented a risk of future dangerousness as to the property crimes.

At the sentencing hearing, the district court considered the aggravating factors that the jury found. Pursuant to K.S.A.2010 Supp. 21–4719, the district court doubled the maximum presumptive sentences for each count where an aggravating factor was found. Specifically, Angilda received consecutive sentences of 534 months for the rape of H.L.B., 68 months for aggravated burglary, 122 months for aggravated robbery, and 330 months for aggravated sodomy of H.L.B. The district court ordered the sentences on four other counts to run concurrently, and ordered 1 year each for four misdemeanor counts and 6 months each for 2 other misdemeanor counts, to be served consecutively. All totaled, Angilda was ordered to serve a 1054–month prison sentence followed by a 60–month term in the county jail.

Analysis

Alternative Means

Angilda contends that the statutory language “direct or indirect contact” creates two alternative means to commit violation of a protective order. See K.S.A.2010 Supp. 21–3843(a)(4). Because this issue involves an interpretation of statutory language, our review is unlimited. See State v. Haberlein, 296 Kan. ––––, 290 P.3d 640, 648 (2012).

Under K.S.A.2010 Supp. 21–3843(a)(4), a violation of a protective order occurs when an individual “knowingly or intentionally [violates] ... an order issued ... at any ... time during the criminal case that orders the person to refrain from having any direct or indirect contact with another person.” Consistent with the statutory language, the court instructed the jury that Angilda was guilty of violating a protective order if he “knowingly or intentionally violated an order that [he] refrain from having direct or indirect contact with another person.”

A statute or instruction creates an alternative means when it lists “alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some cases, a causation element.” State v. Brown II, 295 Kan. 181, 194, 284 P .3d 977 (2012). Statutory structure often signals alternative means when each alternative means is separated into its own distinct subsection. Haberlein, 296 Kan. at ––––, 290 P3d at 648.K.S.A.2010 Supp. 21–3843 states that “[v]iolation of a protective order is knowingly or intentionally violating” one of six distinct subsections that each describe different types of protective orders. But the language about which Angilda complains, “direct or indirect contact,” occurs completely within the fourth distinct subsection. See K.S.A.2010 Supp. 21–3843(a)(4).

Options within a means are not alternative means. See Haberlein, 296 Kan. at ––––, 290 P.3d at 648;Brown II, 295 Kan. 181, Syl. ¶¶ 9–11. As such, we find that the phrase “direct or indirect contact”—as used in K.S.A.2010 Supp. 21–3843(a)(4) as well as in the jury instructions—merely sets out different factual circumstances that may prove the distinct, material element of violating the type of protective order. In other words, the language describes an option within a means; it does not create an alternative means. Thus, because Angilda concedes there was evidence he had indirect contact with H.L.B., we need not reach the issue of whether there was also evidence of direct contact.

Motion for Mistrial

Angilda next contends that the district court erred in denying his motion for mistrial. We review the denial of a motion for mistrial for abuse of discretion. Judicial discretion is abused if the decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. See State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012).

Prior to trial, the district court denied the State's motion under K.S.A. 60–455 requesting admission of evidence that the truck Angilda was driving on the night of his arrest was stolen, but held that it would be allowed to present testimony that the truck was not registered to Angilda. During the trial, the State asked one of its witnesses to identify a photograph of the truck. The witness responded, “That's a vehicle identification number. It's located up on the driver's side dash, and that's what we looked at to confirm a stolen vehicle.” Upon the objection of defense counsel, the district court admonished the jury to disregard the witness' answer. Angilda then made a motion for mistrial, which the district court took ultimately denied.

Pursuant to K.S.A. 22–3423(1)(c), a district judge may declare a mistrial if “[p]rejudicial conduct ... makes it impossible to proceed with the trial without injustice to ... the defendant.” On review of a district court's decision not to declare a mistrial, this court makes a two-part inquiry:

“(1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?” State v. Ward, 292 Kan. 541, 551, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).

As to the first inquiry, the district court did find that the testimony concerning the vehicle identification number was improper, and it admonished the jury to disregard the testimony. The evidence was, essentially, inadmissible under K.S.A. 60–455 and its introduction was a violation of the court's order in limine. Implicitly, the district court determined there had been a failure in the proceedings, and neither party claims the district court abused its discretion as to the first prong of the analysis.

As to the second inquiry, we must determine whether the court's admonition sufficiently mitigated the statement's prejudice. See Ward, 292 Kan. at 551;State v. Tatum, 281 Kan. 1098, 1112–13, 135 P.3d 1088 (2006). Angilda alleges that evidence regarding the vehicle identification number denied him his right to a fair trial, which the Fourteenth Amendment to the United States Constitution guarantees. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002). Because a right guaranteed by the United States Constitution is in question, it is the State's burden to convince this court beyond a reasonable doubt that the error did not affect the verdict. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012); Ward, 292 Kan. at 565. And we review the entire record to determine whether the State has met that burden. McCullough, 293 Kan. at 981.

Here, a review of the record reveals that the district court immediately recognized the error and admonished the jury to disregard the witness' testimony concerning the vehicle identification number, and we presume that the jury followed this admonishment. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). The record also reveals that there was overwhelming evidence against Angilda presented at trial to establish his guilt. In fact, Angilda admitted to many of the charges, and the jury found his explanations regarding the other crimes to be unbelievable. Thus, we conclude beyond a reasonable doubt that the error did not affect the verdict.

Furthermore, as the district court found, testimony concerning the vehicle identification number had no bearing on Angilda's defense. First, Angilda had explained prior to the erroneous testimony that he borrowed the truck from a friend—no testimony suggested that Angilda actually stole the truck. Second, the jury acquitted Angilda of attempted aggravated sodomy, suggesting that it considered each of the charges independently and did not convict Angilda based on prejudice or propensity to steal a truck. Third, the evidence in question did not have an impact on Angilda's voluntary intoxication defense. In sum, the evidence against Angilda was overwhelming, the reference to the vehicle identification number being used to verify stolen vehicles was isolated, and the admonishment of the jury was appropriate. See State v. Albright, 283 Kan. 418, 426–27, 153 P.3d 497 (2007). We, therefore, conclude that the district court did not abuse its discretion in denying Angilda's motion for mistrial.

Batson challenge

Angilda also contends that the district court erred in denying a challenge he made to the State's peremptory striking of an African–American as a prospective alternate juror. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Although the district court found that Angilda made a prima facie case, the State articulated that it struck the prospective alternate juror because he had a thick accent and it was concerned that he did not understand English well enough to serve on the jury. The district court then inquired of the prospective juror regarding his understanding of English before denying Angilda's Batson challenge.

A review of the record shows that the district court asked the prospective juror if he understood everything that was being said, and he responded by indicating that he “missed a couple of words.” The court then said “But you understand [English] pretty well but not extremely well?” The prospective juror replied, “Maybe pretty well.” After the discussion, the district court overruled the challenge, finding, “In a case like this pretty well is probably not good enough.”

A Batson challenge requires the district court to make a three-step analysis, and each step is subject to its own standard of review. First, the challenging party must make a prima facie case that the peremptory challenge was based on race. We review this step de novo. Second, if the challenging party meets its burden, the party making the strike must articulate a race-neutral reason for the strike. And on appeal, this court deems a reason to be race neutral “unless a discriminatory intent [was] inherent in the explanation.” McCullough, 293 Kan. at 992. Third, the district court must determine whether the challenging party has proved purposeful discrimination. We review the third step for an abuse of discretion. 293 Kan. at 992. A district court abuses its discretion if it takes an action that (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Ward, 292 Kan. at 550.

On appeal, Angilda challenges the second and third steps in the analysis. He argues that a heavy accent was not a race-neutral reason. And he claims that the district court abused its discretion in its implicit finding of no purposeful discrimination. But this court deems a reason as race neutral even if the reason is not persuasive or plausible “unless a discriminatory intent [was] inherent in the explanation.” McCullough, 293 Kan. at 992. Certainly, individuals of any race could have accents. Hence, the explanation given was not inherently discriminatory.

Concerning Angilda's second argument, he claims that he proved purposeful discrimination because despite the prospective juror's understanding of English, he was a lab technician and would have been familiar with the medical terminology in the case. But we review the third step for abuse of discretion. And the district court's decision in the present case turns largely on its determination of the prosecutor's credibility—whether to believe the prosecutor's articulated reason—as well as on the observations made during voir dire. See State v. Pham, 281 Kan. 1227, 1237–39, 136 P.3d 919 (2006). Nothing in the record suggests the prosecutor's reason was purposefully discriminatory.

Moreover, to ensure fairness a juror must understand English enough to fully comprehend the testimony and the court's instructions. See Pham, 281 Kan. at 1239. After the prosecutor stated his reason for the strike, the district court spoke with the prospective juror to get a better understanding of his ability to understand the English language. The prospective juror candidly admitted that he missed a couple of words and that he understood English “[m]aybe pretty well.” The district court concluded—after witnessing the prospective juror's demeanor during their conversation—that this was not good enough in light of the significance of the charges. Accordingly, we cannot say after reviewing the record that the district court's decision was arbitrary, fanciful, unreasonable, or constituted an abuse of discretion.

Prosecutor Misconduct

Angilda argues that the prosecutor committed misconduct on several occasions. Our review of allegations of prosecutorial misconduct requires a two-step analysis. First, we must determine whether the comments were misconduct, in other words, whether the comments were outside the wide latitude afforded the prosecutor in discussing the evidence. If the comments were misconduct then we move to the second step and determine if the comments amounted to plain error that denied the defendant the right to a fair trial. See State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).

To determine whether misconduct was plain error, this court considers three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). The third factor, the overwhelming nature of the evidence, can override the first two factors if this court can conclude, beyond a reasonable doubt, that the error did not affect the defendant's substantial rights. 293 Kan. at 914;Ward, 292 Kan. at 566, 568–69. This issue is reviewable on appeal even though Angilda did not object to any of the statements at trial. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).

Angilda contends that the prosecutor violated this rule on two occasions during his closing argument: first, by suggesting that Angilda was terrorizing all the residents of Johnson County, and second by telling the jury that Angilda victimized H.L.B. again when he called her from prison. A prosecutor cannot elicit and comment on evidence specifically intended to inflame the passions and prejudices of the jury. See State v. Kunellis, 276 Kan. 461, 477–80, 78 P.3d 776 (2003).

In reviewing a claim of prosecutorial misconduct, this court reviews questionable statements in the context of the record as a whole. State v. Brinklow, 288 Kan. 39, 44, 200 P.3d 1225 (2009). Here, Angilda's defense was, in part, that he was too intoxicated to form the intent necessary to commit the alleged crimes. And at the end of the initial portion of the prosecutor's closing argument, he said:

“Ladies and gentlemen, I'll suggest to you that when you analyze Mr. Angilda's explanation and his behavior that night you will come to the conclusion that he knew exactly what he was doing and that was terrorizing residents of Johnson County.”

Angilda alleges that the prosecutor was insinuating that Angilda “should be found guilty of general terrorization of the citizens of the entire county” in an attempt to appeal to the passions and prejudices of Johnson County jurors. But in context, the prosecutor was attempting to convey that Angilda knew exactly what he was doing, even if the victims of his crimes were random—he was intentionally driving around Johnson County committing crimes at various locations. The prosecutor did not say that Angilda was terrorizing all residents of Johnson County. Rather, viewing the State's closing argument in context, it appears clear that the use of the word “residents” referred to the specific victims identified in this case—not everyone who lives in Johnson County.

Angilda also claims the prosecutor's comment in his case, that protection from abuse orders are designed to protect victims from being revictimized, rose to the inflammatory level described in State v. Tosh, 278 Kan. 83, 90–91, 91 P.3d 1204 (2004). In Tosh, a prosecutor's suggestion in closing that the defense “kind of [raped the victim] again” during trial was found to be inflammatory and improper. 278 Kan. at 90.

“No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.” State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). In Angilda's closing, he argued that while he did try to contact H.L.B. from jail, H.L.B. never accepted the call and there was no contact sufficient to support the crimes charged. In response, the prosecutor explained that the crime occurs with even indirect contact that could re-victimize a victim. Then, the prosecutor asked, “Do you think she was revictimized?” Unlike Tosh, the prosecutor did not say that Angilda “raped” H.L.B. again or even that he victimized her again. The comment was a rhetorical question and directly responsive to defense counsel's arguments that Angilda's contact with H.L.B. was insufficient. In context, it was not intended to inflame the passions and prejudices of the jury.

At the departure hearing, the State presented evidence of Angilda's prior crimes and violations of his probation. In closing, the prosecutor suggested that after committing previous crimes, Angilda had the opportunity to obey the law. But he chose to commit more crimes. The prosecutor said, “[W]hat is it going to take for the message to be received?” Angilda alleges this statement was an appeal to the juror's passions and prejudices and a request to punish Angilda.

Prosecutors can discuss the evidence and ask the jury to draw permissible inferences. See State v. Chanthaseng, 293 Kan. 140, 148, 261 P.3d 889 (2011). The issue before the jury was whether Angilda presented “a risk of future dangerousness to the public's safety.” The prosecutor discussed that Angilda had committed crimes in the past, had the opportunity of probation, and had responded by committing more crimes against the public. The question, “[W]hat is it going to take for the message to be received?” was not a request to punish Angilda out of passion. Rather, it was asking the jury to make the permissible inference that Angilda would act consistent with his past and violate the law again when he got the opportunity—he was a risk of future dangerousness. The comment was not outside the wide latitude afforded prosecutors in discussing the evidence.

Even if one of the prosecutor's comments, or the combination of several, amounted to misconduct, the misconduct did not amount to plain error under the second prong. State v. Kemble, 291 Kan. 109, 122–23, 238 P.3d 251 (2010). The statements were not gross and flagrant-the prosecutor did not repeat or emphasize any statements. See State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). Nor did the prosecutor show ill will by deliberately repeating any improper statements or disregarding any court rulings. 293 Kan. at 430. And considering Angilda's admissions and the overwhelming evidence against him, we can say, beyond a reasonable doubt, that any possible error had no affect on the verdict and did not deny Angilda a fair trial. See Raskie, 293 Kan. at 914.

Cumulative Error

Trial errors, while not requiring reversal on their own, can collectively require reversal when “ ‘ “the totality of the circumstances substantially prejudiced the defendant and denied [the defendant] a fair trial.” ‘ “ Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). After reviewing the record, we do not find any errors in this case. Moreover, “[n]o prejudicial error may be found based upon this cumulative affect rule, ... if the evidence is overwhelming against the defendant.” Thompson, 293 Kan. at 721. As discussed previously, the evidence against Angilda was overwhelming. Accordingly, cumulative errors did not deny Angilda a fair trial.

Prior Crimes as Evidence of Future Dangerousness

Angilda challenged the jury's verdict after the departure hearing. As on appeal, he contended that because the State argued about Angilda's prior crimes as evidence of future dangerousness to support the upward departure sentence, he was ultimately punished twice for the same conduct. The district court denied the motion and found that the facts of the prior crimes were proper evidence of future dangerousness. Angilda argues this was error and that the upward departure violated double jeopardy.

The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights “prohibit multiple punishments for a single offense.” State v. Gaudina, 284 Kan. 354, 369, 160 P.3d 854 (2007). “The issue of whether there is a double jeopardy violation is a question of law subject to unlimited review.” Gaudina, 284 Kan. at 369. Kansas allows upward departures with a finding of future dangerousness. K.S.A.2010 Supp. 21–4718(b)(2); State v. Yardley, 267 Kan. 37, 44, 978 P.2d 886 (1999).

The United States Supreme Court held that the facts of prior crimes may be used to enhance a current sentence. See Witte v. United States, 515 U.S. 389, 403–04, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). In Witte, the Court noted that facts outside the elements of a particular crime can be “evidence that the character of the offender requires special punishment.” 515 U.S. at 403 (mentioning recidivism cases). The prior crime in and of itself is not the focus, but the facts surrounding that crime can reveal the character of the offender and that he or she deserves special punishment for the current crime.

The Kansas Supreme Court, as well as this court, has held that prior crimes may be used to support an upward departure sentence if the focus is on what the history says about future dangerousness, rather than general criminal history. See State v. Gideon, 257 Kan. 591, 625, 894 P.2d 850 (1995) (“The trial court did not err in using the prior convictions as substantial and compelling reasons to impose an upward departure from the sentencing guidelines.”); State v. Carr, 29 Kan.App.2d 501, 504, 28 P.3d 436 (2001), aff'd274 Kan. 442, 53 P.3d 843 (2002); State v. Howes, 22 Kan.App.2d 837, 840, 923 P.2d 1064 (1996); State v. Vazquez, No. 89,895, 2004 WL 90062, at *4 (Kan.App.2004) (unpublished opinion). Here, the district court focused on the violent nature, time of day, and location of Angilda's prior crimes. These were facts that his criminal history did not contain and evidence of Angilda's dangerous character. Angilda was not punished twice for his past crimes; the circumstances of his past crimes evinced that he was a future danger, which caused an upward departure sentence for his current crimes.

An appellate court reviews a departure sentence to determine whether substantial competent evidence supported the sentencing court's findings of fact. State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011). Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). And when the question is whether an aggravating factor “can ever, as a matter of law, be substantial and compelling in any case, the appellate standard of review is de novo.” State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011).

Angilda argues that substantial competent evidence did not support the finding of future dangerousness because the facts of his prior crimes could not be considered. He does not challenge the other aggravating factor, vulnerability due to age. This court has previously held that the circumstances of prior crimes may be used to show future dangerousness. See Hawes, 22 Kan.App.2d at 840;Vazquez, 2004 WL 90062, at *4. The State presented evidence that Angilda held up a woman during the day with what she thought was a handgun—evidently it was actually a BB gun. Angilda told her that he would shoot her for her car. Then, he violated his probation for that crime by testing positive for marijuana, leaving Missouri without notifying his probation officer, and committing the crimes in this case. And concerning the crimes in this case, he burglarized homes in an opportunistic way and admitted to the jury that he raped an elderly woman and fought with police officers. In addition, officers had to shackle him at the station because he attempted to escape.

Given the circumstances of his prior crimes, the fact that he did not abide by his probation for the prior crimes, and the particular dangerousness he displayed in the current case, substantial competent evidence supported the finding of future dangerousness. Although Angilda argues that scientifically reliable assessments of future dangerousness should be necessary to support the finding, the legislature, not the courts, is the proper authority to make that policy determination. See Woodruff v. City of Ottawa, 263 Kan. 557, 561, 951 P.2d 953 (1997).

Apprendi Issue

Finally, Angilda argues that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in two ways. But the Kansas Supreme Court decided this issue against Angilda in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Angilda acknowledges this precedent and wishes to preserve the issue for further review. Second, he alleges that in sentencing him to the aggravated grid sentence, the aggravating factors must have been proven to a jury beyond a reasonable doubt. Angilda again acknowledges that the Kansas Supreme Court decided this issue against him in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). However, he wishes also to preserve the issue for further review.

We are bound to follow precedent of the Kansas Supreme Court absent indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011). Nothing suggests the Kansas Supreme Court is changing its position; accordingly, we reject Angilda's argument.

Affirmed.


Summaries of

State v. Angilda

Court of Appeals of Kansas.
Mar 22, 2013
297 P.3d 311 (Kan. Ct. App. 2013)
Case details for

State v. Angilda

Case Details

Full title:STATE of Kansas, Appellee, v. Simon Takwana ANGILDA, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 22, 2013

Citations

297 P.3d 311 (Kan. Ct. App. 2013)