Opinion
No. 106,451.
2013-03-29
STATE of Kansas, Appellee, v. Michael W. YOUNG, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael W. Young appeals from his convictions of aggravated kidnapping, aggravated robbery, kidnapping, and attempted rape. For the reasons stated below, we affirm his convictions.
Facts
On the morning of September 5, 2008, S.S. exited her Wichita home with her 3–year–old daughter, J.S., and her cousin, Justin Matthews. Matthews drove away in his car, while S.S. put J.S. into her truck. Before S.S. could back out of the driveway, a black Dodge Charger pulled up behind her truck and blocked her in. A man got out of the car and approached the window of S.S.'s truck. S.S. saw that the man had a badge and a handgun in a holster on his waist. He told S.S. that he was a detective and asked if her name was Sheri Harper. When S.S. said no, the man asked to see her identification and S.S. complied. The man told S.S. that he had a search warrant for her house and that he was looking for someone named Jason Butler. Despite S.S.'s denial that she knew anyone by that name, the man told her that the house was surrounded and she needed to let him inside. When S.S. tried to call Matthews on her cell phone, the man shook his finger in a way that S.S. interpreted to mean ‘ “No, don't do that,” ‘ so she hung up her phone. The man also prevented S.S. from calling to notify her employer that she would be late to work.
After waiting for S.S. to unbuckle and remove J.S. from her car seat, the man escorted S.S. and J.S. into the house, took the house keys from the door, shut and locked the door, and put the keys in his pocket. The man also “snatched” S.S.'s cell phone out of her hand and put it in his pocket. The man proceeded to look in all of the bedrooms on the first floor and then directed S.S. down into the basement. J.S. followed them downstairs. Once they reached the basement, the man grabbed S.S. around her neck in a headlock, held his gun to her head, and told her to “shut ... up or he was going to blow [her] ... brains out.” The man forced S.S. to lay down on the floor while he straddled her legs, held her wrists, and attempted to bind her wrists with zip ties. S.S. could hear J.S. screaming from the middle of the staircase. The man told J.S. to “ ‘[g]o back upstairs, Mommy is going to be okay.’ “
S.S. told the man that she wanted to tell J.S. she loved her if it was going to be the last time she saw her. When S.S. called J.S. to her, the man moved away. S.S. saw this as their chance to escape; she got up off the floor and began struggling with the man as she attempted to get back upstairs. S.S. heard her cell phone ringing in the man's pocket and noticed that the zipper of his pants was down. S.S. became angry, yelling at the man: “ ‘You're going to rape me and kill me in front of my child,’ “ as she fought to get upstairs. When they returned to the kitchen, the man told S.S. he was going to cut the zip ties loose, but S.S. continued to fight with him because she thought he was going to hurt her. S.S. and the man fought over a butter knife, and S.S. eventually pushed the man off of her and ran out the side door towards her truck in the driveway. The man chased S.S. with his gun out as S.S. grabbed J.S. and ran across the street to a neighbor's house. The man got into his car and drove away.
Officer Maurice Mitchell responded to the scene and spoke with S.S, She described her attacker as a black male in his late 20's to 30's, with a pitted or scarred face, approximately 6'1? in height, and weighing approximately 180 pounds. S.S. identified the car he was driving as a four-door, 2000 model black Dodge Charger with stock wheels and tinted windows. Later that day, S.S. provided a similar description of her attacker in a follow-up interview with law enforcement, adding that his face was clean shaven and that he had a shaved head. Crime scene investigators collected a zip tie that was still attached to S.S.'s wrist and swabbed it for DNA evidence. A mixture of DNA found on the zip tie revealed a possible match to Young.
Detective Ken Davis learned that Young had an address in Las Vegas and obtained a driver's license photograph of Young from Las Vegas law enforcement. Davis created a photographic array with pictures of six men, placing Young in the third position. Upon viewing the photo array, S.S. immediately and without hesitation pointed to Young's picture. Davis instructed S.S. to write a comment as to how she recognized the picture, and S.S. wrote: ‘ “I positively identify No. 3 as my attacker.” ‘ S.S. also circled Young's photograph. Further DNA testing revealed that Young could not be excluded as a contributor to the DNA mixture on the zip tie.
Young was subsequently charged with one count each of aggravated kidnapping, aggravated robbery, kidnapping, and attempted rape. Prior to trial, Young unsuccessfully moved to suppress the photo lineup as impermissibly suggestive, and he failed in his attempt to keep the State from presenting evidence of a car rental contract that showed he was driving a black Dodge Charger on the day of S.S.'s attack. At trial, S.S. identified Young as her attacker.
In his defense, Young presented testimony from two witnesses who saw Young in Wichita on September 5, 2008, and claimed that he was not driving a black Dodge Charger. One of the witnesses stated that Young was in Wichita helping him move from his house that was approximately 2 blocks away from S.S.'s house.
A jury found Young guilty as charged. The district court sentenced Young to a controlling prison term of 312 months.
Analysis
On appeal, Young contends: (1) The district court should have suppressed the photo lineup used to identify him because it was impermissibly suggestive; (2) the district court erred in allowing the State to present evidence of a car rental contract; (3) there was insufficient evidence to support his convictions of aggravated kidnapping, aggravated robbery, and kidnapping; (4) the district court erroneously instructed the jury on eyewitness identification by including the degree of certainty factor; (5) the district court erred in failing to instruct the jury on the lesser included offenses of robbery, attempted aggravated kidnapping, and attempted criminal restraint; (6) the prosecutor committed misconduct during closing argument by commenting on matters outside of the evidence; and (7) cumulative trial errors deprived him of his constitutional right to a fair trial. We address each of these contentions in turn.
1. Motion to suppress the photo lineup
Young claims the district court erred in denying his motion to suppress S.S.'s eyewitness identification because the photographic array was impermissibly suggestive and led to an unreliable identification.
An appellate court reviews a denial of a motion to suppress eyewitness identification and the question of whether eyewitness identification was impermissibly suggestive as a mixed question of fact and law. The court applies a substantial competent evidence standard when reviewing the factual underpinnings of a district court's decision and applies a de novo standard to the ultimate legal conclusion in light of the factual findings. State v. Trammell, 278 Kan. 265, 270, 92 P.3d 1101 (2004).
Appellate courts apply a two-step analysis to determine whether eyewitness identification should be excluded. First, the court determines whether the procedure used to elicit the identification was impermissibly suggestive. A photographic array identification procedure is impermissibly suggestive if the officers conducting the identification proceeding give the witness information that draws attention to a specific individual before the witness makes his or her selection or the officers make suggestions about who the witness ought to select. Additionally, a photographic lineup is impermissibly suggestive if the photographs do not depict individuals similar to the description given by the witness, if there is a gross disparity between the defendant's photograph and the remaining photographs, or a distinctive indication of the defendant's photograph. If the court determines the lineup is impermissibly suggestive, the second step requires the court to analyze whether based on the totality of the circumstances the impermissibly suggestive procedure led to a substantial likelihood of misidentification that would deny due process. Trammell, 278 Kan. at 270–74, 92 P.3d 1101.
Young asserts the procedure Davis used to create the six-person photographic array was impermissibly suggestive because (1) Davis told S.S. that law enforcement had a potential suspect, (2) his picture is the brightest in the array, (3) the other photographs in the array depict individuals who appear to have facial hair, (4) three of the individuals appear to be thinner than him, and (5) three of the individuals appear to be younger than him. But there is nothing in the record to support Young's assertion that Davis engaged in suggestive behavior in creating the photo array or while showing it to S.S. At the suppression hearing, Davis testified that after Young was identified as a suspect in the case, he learned that Young had a recent address in Las Vegas and obtained Young's driver's license photograph from the Las Vegas Metro Police Department. Davis placed Young's photo in position No. 3 of the photo array. Davis selected the other five individuals for the photo array from a pool of Kansas driver's license photographs of black males who were similar in age to Young. Davis stated that he made an effort to find individuals with similar hairstyle, skin tone, and facial features to Young.
Davis further testified that he took the photo array to S.S.'s place of employment and met with her privately. Before showing S.S. the photographic lineup, Davis explained the admonition contained on the photo identification report form to S.S. before having her sign the form to indicate she understood the instructions. The admonition explained that a witness is not obligated to identify anyone and should not conclude any of the photographs in the array are of the individual that committed the crime. Davis also testified that even if he told S.S. that they had a potential suspect, he also told her that she was under no obligation to choose anyone, that she should only identify a photograph if she was certain, and to pay attention to facial features that do not change, unlike hairstyles and facial hair. Davis stated that he gave S.S. no further instructions or attempted in any way to indicate which photo was that of the suspect.
Davis testified that when he showed S.S. the photo array, “she immediately pointed at photograph No. 3 with her finger, she told me she recognized him as the person.” Davis instructed S.S. to circle the photograph and write a comment as to how she recognized the photograph. S.S. wrote: “ ‘I positively identified No. 3 as my attacker.’ “ In sum, the record reflects that the procedures used by Davis in seeking S.S.'s eyewitness identification were not suggestive, and Davis did not engage in any behavior that could have influenced S.S.'s assessment of the photo array.
Moreover, a review of the photographic lineup itself reveals that all six of the individuals depicted have a similar basic appearance. The district court, in denying Young's motion to suppress, correctly noted that there is no requirement that all of the individuals in a photo array have to look exactly alike. All of the men in the photo array appear to be in the same general age range and have a similar build. Because the photographs only show the men's head and neck, it is difficult to assess their body type; however, the pictures do not reveal any glaring discrepancies. The background of all of the pictures is the same and overall the photographs are similar to each other. Any differences in the photographs certainly did not constitute a “gross disparity” between Young's photograph and the remaining photographs.
Generally, if the procedure used in making the identification is not impermissibly suggestive, the two-step analysis regarding the admissibility of the eyewitness identification is complete. But even if we had found the array impermissibly suggestive, there simply is no likelihood that it led to a misidentification that would deny Young's due process rights. See Trammell, 278 Kan. at 270–74, 92 P.3d 1101.
In State v. Hunt, 275 Kan. 811, 815–18, 69 P.3d 571 (2003), the Kansas Supreme Court set forth several factors for considering the circumstances surrounding identification: (1) The opportunity the witness had to view the criminal during the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty the witness demonstrated at the confrontation; (5) the amount of time between the crime and the confrontation; (6) the capacity of the witness to observe the event, including his or her mental and physical acuity; (7) whether the witness made his or her identification spontaneously and remained consistent thereafter or whether the identification was the product of suggestion; and (8) the nature of the event being observed and the likelihood that the witness would perceive, remember, and recount it correctly.
S.S.'s interaction with her attacker was not brief; she was in close proximity to him and had time to view him. S.S. was emotional, upset, and crying when she spoke with law enforcement. S .S. gave a “generic” description of the attacker, but Officer Mitchell testified that it is not unusual for witnesses to provide a generic description because they are often distraught and in shock over what has happened. When S.S. later met with Detective David Crump, she provided a similar description, adding that the man had a shaved head. Crump stated that S.S. gave estimates in all of the descriptions.
Young concedes that S.S. had no problem viewing her attacker, that she had the capacity to view the event, and that her identification was spontaneous and detailed. But Young claims that he differs from the description that she provided on the day of the attack in that he is older, weighs more, and does not have any blemishes on his face.
But a review of Young's photo in the lineup reveals that it is not so dissimilar from S.S.'s original description as Young suggests. The photo depicts a black male with a shaved head, with possible bumps or marks on his chin. The photo is only taken from the neck up, making it difficult to determine his weight. Notably, when Young was booked into jail, he weighed 200 pounds—only 20 more pounds than S.S.'s estimate of 180 pounds.
Based on the discussion above, we conclude the photographic array identification procedure was not impermissibly suggestive and, even if it had been, the procedure did not create a substantial likelihood of misidentification, which is required in order to find a violation of due process. See Trammell, 278 Kan. at 270–74, 92 P.3d 1101. Accordingly, the district court did not err in denying Young's motion to suppress and admitting S.S.'s eyewitness identification evidence at trial.
2. The car rental contract
Before trial, Young sought to prevent the State from admitting evidence of a car rental contract, which showed that Young rented a black Dodge Charger from Budget's Kansas City airport location from September 3–10, 2008. Specifically, Young claimed the car rental contract contained privileged and confidential information shared by Young with Steven Mank, his former attorney.
At the hearing on his motion to exclude the car rental contract, Young began his testimony by explaining how the car rental contract came to be in Mank's possession. Young explained that after he was arrested, he directed someone in Las Vegas, where he lived, to gather and send financial and employment records to his attorney, Kurt Kerns, in order to assist in his defense. Young claimed that the car rental contract was “sent inadvertently” along with these records. At some point after the records were sent, a conflict arose in Kerns' schedule. With Young's consent, Mank—another attorney in Kerns' law firm—took over the case. Kerns handed over the entire case file, including the car rental contract, to Mank. Young acknowledged that he and Mank discussed the possibility of the car rental contract being used in his defense but denied giving Mank permission to give it to the State or use the contract at trial. Mank turned the car rental contract over to the State about 2 weeks before trial. Young subsequently filed a complaint against Mank, based at least in part on Mank's decision to turn the car rental contract over to the State. Mank then withdrew as counsel for Young based on the conflict of interest created by the disciplinary complaint.
Mank also testified at the hearing. Mank confirmed that the car rental contract was in Kerns' file prior to Mank's involvement in the case. Mank stated that he was planning to use the evidence at trial as part of a defense strategy to impeach S.S.'s credibility based on Young's initial statement that he did not rent the black Dodge Charger until the day after the crime occurred. Upon examination of the car rental contract, however, Mank discovered that Young had rented the vehicle 2 days before the incident. Mank determined that he could still use the car rental contract to impeach S.S.'s credibility, however, because she described the attacker's vehicle as having dark tinted windows when, in fact, the car rental company had informed Mank's investigator that the company did not rent cars with dark tinted windows. Thereafter, Mank's investigator tried to locate the vehicle that Mank had rented, with the idea that the investigator would take pictures of the car to produce at trial in order to show that the car did not have dark tinted windows.
Mank confirmed that his defense strategy at trial was to convey to the jury that Young was driving a Dodge Charger that did not fit the description given by S.S., and to argue that if S.S. was mistaken about the car, she could be mistaken about other things. Mank testified that in order to advance this defense, he would need to present evidence that Young had rented a particular car; therefore, he had an obligation to provide this evidence to the State in advance of trial. Mank claimed that he and Young had discussed at length his reasons for turning the contract over to the State. On cross-examination, Mank stated that the car Young rented was no longer in the Budget inventory and that his investigator had been unable to locate it. Although Mank conceded that Young never explicitly authorized him to give the contract to the State, he explained that his decision to give the contract to the State was based on trial strategy.
After hearing all of the evidence, the district court denied the motion, ruling that Mank had given the information to the State in preparation for trial as part of his trial strategy. On appeal, Young claims the district court erred in denying his motion to exclude the car rental contract because it was given to the State without his permission in violation of the attorney-client privilege. In the alternative, Young claims that Mank's decision to disclose the car rental agreement to the State essentially deprived him of his constitutional right to competent representation at trial, which requires us to overturn his convictions and remand for a new trial. a. Unauthorized disclosure of confidential information
Young argues the car rental contract was a confidential communication between client and attorney that Mank disclosed without Young's authorization, which necessarily renders the evidence inadmissible at trial. Based on the substance of his argument, we believe Young may be confusing the attorney-client privilege with the various disciplinary rules concerning an attorney's ethical duties with respect to client confidences. The two rules, while susceptible to confusion, are separate and distinct. Regardless of the rule, however, Young's argument has no merit. i. Attorney-client privilege
In Kansas, the attorney-client privilege is governed by K.S.A, 60–426(a), which provides that
“communications found by the judge to have been between [an attorney] and his or her client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (1) if he or she is the witness to refuse to disclose any such communication, and (2) to prevent his or her [attorney] from disclosing it, and (3) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the [attorney], or (ii) in a manner not reasonably to be anticipated by the client, or (iii) as a result of a breach of the [attorney]-client relationship.”
Application of the privilege in the context presented here—communication of a preexisting document from the client to the attorney—presents a unique set of circumstances that is subject to greater scrutiny. Kansas courts long have recognized “the general rule that an attorney may be compelled to produce papers belonging to his [or her] client where the knowledge of their existence and contents is accessible to others or the public.” City of Wichita v. Chapman, 214 Kan. 575, 583, 521 P.2d 589 (1974); Cranston v. Stewart, 184 Kan. 99, 104, 334 P.2d 337 (1959). Thus, the attorney-client privilege does not cloak the document itself in privilege, but protects the fact that the client communicated that document to the attorney. See Klinzmann v. Beale, 9 Kan.App.2d 20, 27, 670 P.2d 67 (1983). Professor McCormick's treatise on evidence is helpful in understanding the scope of the privilege as it relates to the communication of preexisting documents from client to attorney:
“A professional communication in writing, as a letter from client to lawyer for example, will of course be privileged. These written privileged communications are readily to be distinguished from preexisting documents or writings, such as deeds, wills, and warehouse receipts, not in themselves constituting communications between client and lawyer. As to these preexisting documents two notions come into play. First, the client may make communications about the document by words or by acts, such as sending the document to the lawyer for perusal or handing it to him and calling attention to its terms. These communications, and the knowledge of the terms and appearance of the documents that the lawyer gains thereby are privileged from disclosure by testimony in court. Second, on a different footing entirely, stands the question, shall a lawyer who has been entrusted with the possession of a document by his client be subject to an order of court requiring him to produce the document at the trial or in pretrial discovery proceedings whether for inspection or for use in evidence? The policy of encouraging full disclosure does of course apply to encouraging the client to apprise his lawyer of the terms of all relevant documents, and the disclosure itself and the lawyer's knowledge gained thereby as we have seen are privileged. It is true also that placing the documents in the lawyer's hands is the most convenient means of disclosure. But the next step, that of adding to the privilege for communications a privilege against production of the preexisting documents themselves, when they would be subject to production if still in the possession of the client, would be an intolerable obstruction to justice. To prevent the court's gaining access to a relevant document a party would only have to send it to his lawyer. So here this principle is controlling: if a document would be subject to an order for production if it were in the hands of the client it will be equally subject to such an order if it is in the hands of his [or her] attorney. An opposite conclusion would serve the policy of encouraging the client to make full disclosure to his [or her] lawyer right enough, but reasonable encouragement is given by the privilege for communications about documents, and the price of an additional privilege would be intolerably high. There are other doctrines which may impel a court to recognize a privilege against production of a preexisting document, but not the doctrine of privilege for lawyer-client communications.” 1 McCormick on Evidence, ch. 10, § 89, pp. 403–05 (6th ed.2006).
In this case, the car rental contract was not protected by any privilege before Young provided it to his attorney. Young later provided the car rental contract to his attorney, which means that Young's identity as the individual who provided the contract to Mank, as well as any communication between Young and Mank relating to the contract, are all communications protected from disclosure by the attorney-client privilege. But the car rental contract itself was not magically transformed from a nonprivileged document to a privileged document just because Young provided it to Mank. ii. Client confidentiality
Young also appears to rely on the rules of professional conduct regarding client confidences in support of his argument that the district court erred in denying his motion to exclude the car rental contract. Relevant here, the Kansas Rules of Professional Conduct state that “[a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation.” KRPC 1.6(a) (2012 Kan. Ct. R. Annot. 502). Young argues that because he did not authorize disclosure of the car rental contract, it should not have been introduced into evidence.
But the facts presented here suggest that Young “impliedly authorized” disclosure of the car rental contract in order for his attorney to carry out the representation. The comments to KRPC 1.6 specifically address the issue of authorized disclosure:
“A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.” KRPC 1.6, Comment [6] (2012 Kan. Ct. R. Annot. 503).
In this case, Young acknowledged that he provided various documents to his attorney, including the car rental contract, to assist in his defense. Young further acknowledged that he and Mank discussed the possibility of the car rental contract being used in his defense. And, although Young did not affirmatively authorize his attorney to disclose the car rental contract to the State, he did not limit Mank's authorization to disclose it. Finally, the existence of the car rental contract is a fact that cannot properly be disputed. In sum, the record does not support Young's claim that Mank violated the professional rules of conduct relating to confidentiality. b. Ineffective assistance of counsel
Young claims Mank's decision to disclose the car rental agreement to the State essentially deprived him of his constitutional right to competent representation at trial; thus, his convictions must be overturned so that he can receive a new trial. Young raises his ineffective assistance of counsel argument for the first time on appeal. Generally, claims alleging ineffective assistance of counsel are not appropriate on direct appeal but instead are properly raised in postconviction motions after the termination of the direct appeal. The appellate court can consider such a claim on direct appeal, however, when the record is sufficient to consider the claim. See State v. Paredes, 34 Kan.App.2d 346, 348–49, 118 P.3d 708,rev. denied 280 Kan. 989 (2005). Because the district court heard relevant testimony from Young and Mank in this case, we find the record is sufficient to address Young's ineffective assistance of counsel argument.
For a defendant to show that trial counsel was ineffective, two essential elements must be established: (1) counsel's performance was constitutionally deficient, and (2) but for counsel's deficiency, there is a reasonable probability that the movant would have obtained a more favorable outcome. Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied 461 U.S. 1267 [1984] ). Young has the burden to show by a preponderance of the evidence that Mank's representation was deficient and prejudiced him. See State v. Barahona, 35 Kan.App.2d 605, 611, 132 P.3d 959,rev. denied 282 Kan. 791(2006).
Under the first prong, the appellate court must strongly presume that counsel's performance fell within the broad range of reasonable professional assistance. A strategic choice made after a thorough investigation of law and facts relevant to the realistic options is virtually unchallengeable, and one made after a less than comprehensive investigation is reasonable exactly to the extent reasonable professional judgment supports the limitations on the investigation. Rowland, 289 Kan. at 1083–84, 219 P.3d 1212. Under the second prong, the defendant must show a probability “sufficient to undermine confidence in the outcome.” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
We begin our discussion of Mank's performance with two of the criminal discovery rules relevant to the issue presented. First, K.S.A. 22–3212(c) requires the defense to produce for inspection any material documents that the defense intends to introduce at a hearing. Second, K.S.A. 22–3218 requires a defendant charged with a crime that alleged the defendant was personally present—such as the charges against Young here—to give the State at least 7 days' notice of any alibi defense, specifying where the defendant will claim he was at the time of the crime and identifying any witnesses supporting the alibi.
Mank testified at the hearing that his defense strategy at trial was to convey to the jury that Young was driving a Dodge Charger that did not fit the description given by S.S., and to argue that if S.S. was mistaken about the car, she could be mistaken about other things. Mank testified that in order to advance this defense, he would need to present evidence that Young had rented a particular car; therefore, he had an obligation to provide this evidence to the State in advance of trial. Mank claimed that he and Young discussed at length his reasons for turning the contract over to the State. On cross-examination, Mank stated that the car Young rented was no longer in the Budget inventory and that his investigator had been unable to locate it.
Mank also testified that he planned to present an alibi defense to the jury based on Young's statement that he was with his uncle at the time the crime was committed. As required by K.S.A. 22–3218, Mank provided the uncle's information to the State. When interviewed about Young's location at the time the crime was committed, the uncle told the State's investigator that Young was driving a dark car.
Applying the procedural rules governing discovery to the facts presented at the hearing, the district court held that Mank was justified in giving the car rental contract to the State because Mank intended to use the contract to impeach S.S.'s statement that the vehicle Young was driving had tinted windows and because the contract supported the testimony of Young's alibi witness. Young challenges this holding on grounds that Mank never investigated or proved that the rental car did not have tinted windows and the alibi witness did not ultimately testify at his trial.
But Mank cannot be judged on what was or was not proven at trial or whether certain witnesses testified, as he withdrew from representing Young prior to trial. In any event, the record reflects that Mank did investigate whether the rental car's windows were tinted. Mank testified that his investigator was unable to locate the car that Young rented but had discovered that Budget did not tint its cars' windows.
Generally, the defendant bears the burden of demonstrating that trial counsel's alleged deficiencies were not the result of trial strategy. Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 (2003). Young's complaints are not grounded in incompetency but instead involve a disagreement over trial strategy. As stated above, however, strategic and tactical decisions lie within the province of counsel. State v. Ward, 227 Kan. 663, Syl. ¶ 1,608 P.2d 1351 (1980). Given the facts presented here, we conclude that Mank's decision to produce the car rental contract to the State did not fall below an objective standard of reasonableness.
Having found that (1) the car rental contract was not protected from disclosure by the attorney-client privilege; (2) the record does not support Young's claim that Mank violated the professional rules of conduct relating to confidentiality; and (3) Mank's actions in producing the contract to the State was not deficient, we conclude the district court did not err in denying Mank's motion in limine and allowing the State to introduce the contract into evidence at trial.
3. Sufficiency of the evidence
Young contends that his convictions for aggravated kidnapping, aggravated robbery, and kidnapping must be reversed because the State failed to present sufficient evidence of these crimes at trial.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
a. Aggravated kidnapping
Young claims his aggravated kidnapping conviction must be reversed because the State presented alternative means of committing this offense, but there was insufficient evidence at trial to support each of the alternative means presented.
A criminal defendant has a statutory right to a unanimous jury verdict on each individual offense charged. See K.S.A. 22–3421; State v. Wright, 290 Kan. 194, 201–03, 224 P.3d 1159 (2010). In an alternative means case—where a single offense may be committed in different ways—there must be jury unanimity as to guilt for the single offense but not as to the particular means by which the crime was committed so long as any means of committing the crime is supported by sufficient evidence. 290 Kan. at 202, 224 P.3d 1159. If a case presents alternative means of committing the offense and the record does not provide sufficient evidence supporting each of the alternative means, the conviction must be reversed. Cf. 290 Kan. at 205–07, 224 P.3d 1159.
Our Supreme Court recently clarified the test for identifying whether a statute contains alternative means. State v. Brown, 295 Kan. 181, Syl. ¶ 7, 284 P.3d 977 (2012). The court first noted that “ ‘[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ “ Brown, 295 Kan. at 193, 284 P.3d 977 (quoting State v. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 [2010] ). Instead, courts must look primarily to legislative intent to determine whether statutory alternatives are alternative means. The court summarized the proper analysis as follows:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. at 199–200, 284 P.3d 977.
K.S.A. 21–3421 defines aggravated kidnapping as taking or confining a person by force, threat, or deception when bodily harm is inflicted upon the victim. See K.S.A. 21–3420 (kidnapping). The complaint charging Young with aggravated kidnapping was consistent with the language of the statute, and the jury was instructed in relevant part that the State was required to prove: “[T]he defendant took or confined [S.S.] by force or threat or deception.”
Young alleges the crime of aggravated kidnapping as set forth in this instruction includes two different sets of alternative means: (1) took or confined; and (2) by force or threat or deception. As such, Young argues the State failed to present sufficient evidence at trial to support the following alternative means of aggravated kidnapping:
• Young took S.S. by force;
• Young took S.S. by threat;
• Young took S.S. by deception;
• Young confined S.S. by force;
• Young confined S.S. by threat; and
• Young confined S.S. by deception.
In a decision issued well after the briefing in this case, our Supreme Court resolved the alternative means issues related to the kidnapping statute presented by Young here:
“ ‘Taking’ and ‘confining’ each denotes a distinct actus reus and they are, therefore, alternative means. But the phrase ‘force, threat, or deception’ addresses secondary matter, merely describing ways in which the actus reus can be accomplished. In other words, under our Brown [, 295 Kan. 181, Syl. ¶¶ 9–11, 284 P.3d 977,] analysis, each is an option within the means of taking or confining. Each merely sets out factual circumstances that may prove the distinct, material element of taking or confining. Force, threat, and deception are not alternative means of committing a kidnapping or aggravated kidnapping, and we need not reach the question of whether sufficient proof of each was presented to Haberlein's jury. [Citations omitted].” State v. Haberlein, 296 Kan. 195, 290 P.3d 640, 649 (2012).
In this case, Young concedes the State presented sufficient evidence to prove both a taking and a confinement, as he admits the State presented evidence that he took S.S. by deception when he pretended to be a police officer and forced her into the house and then he confined S.S. using force or threat when he attacked her in the basement. In light of the holding in Haberlein, we find sufficient evidence supports each alternative means of aggravated kidnapping. b. Aggravated robbery
In order to sustain a conviction for aggravated robbery, the evidence must show: (1) The defendant intentionally took property from the person or the presence of the victim; (2) the taking was by threat of bodily harm or force; and (3) the defendant was armed with a dangerous weapon or inflicted bodily harm on any person in the course of such conduct. See K.S.A. 21–3426; K.S.A. 21–3427; PIK Crim.3d 56.31. As charged here, Young was convicted of taking S.S.'s cell phone by force while armed with a dangerous weapon, a handgun. Young asserts that his conviction of aggravated robbery must be reversed because he took the cell phone not to steal it but rather to facilitate the crime of rape. For support, Young relies solely on State v. Montgomery, 26 Kan.App.2d 346, 988 P.2d 258 (1999).
In Montgomery, the defendant accosted a jogger and attempted to rape her. During the attempted rape, the woman's glasses came off several times, but each time she put her glasses back on. When the attack ended, the defendant grabbed the woman's glasses and left. The glasses were later found near the area where the woman was attacked. The State charged the defendant with attempted rape and aggravated robbery, and he was convicted of both counts.
On appeal, the defendant claimed there was insufficient evidence to support his conviction for aggravated robbery. In support of his claim, the defendant argued the fact that he left the victim's glasses near the scene of the crime established that the act of taking property from the victim—a necessary element to the crime of robbery and aggravated robbery—was never completed. The panel rejected the defendant's argument, finding the evidence established that the defendant completed the act of removing the victim's glasses from her possession and thus the element of a taking within the robbery statutes was satisfied. 26 Kan.App.2d at 349, 988 P.2d 258. In the process of considering the defendant's claim of insufficient evidence, however, the panel found that the only reason the defendant took the woman's glasses was “to facilitate his crime of attempted rape and to make it more convenient, as [the victim] might be less able to identify him.” 26 Kan.App.2d at 350, 988 P.2d 258. Based on this particular factual finding, the panel concluded it was necessary to decide whether a taking that does nothing more than facilitate the commission of another crime is sufficient to support a conviction for robbery and aggravated robbery. 26 Kan.App.2d at 348–49, 988 P.2d 258. Thus, the panel set out to determine whether the robbery statutes require evidence that a defendant took property by force or threat of bodily harm and evidence that the defendant did so intending to permanently deprive the victim of such property.
The panel began its analysis by acknowledging that there is express language in the theft statute that requires a defendant to have intended to permanently deprive the victim of his or her property in order to commit the crime but there is no such language in the robbery statutes. The panel found this troubling:
“[I]t is incongruous that theft—which in this case would be a class A nonperson misdemeanor—requires an intent to permanently deprive the victim of her property, but robbery—a [severity] level 5 person felony—does not. More confusing, still, is the fact that theft—which contains an explicit intent requirement—has been defined as a lesser degree of robbery. State v. Long, 234 Kan. 580, 592, 675 P.2d 832 (1984), disapproved on other grounds [ State v. Keeler,] 238 Kan. 356, 365, 710 P.2d 1279 (1985). Cf. PIK Crim.3d §§ 56.30 and 59.01. How can a lesser crime have a greater intent requirement?” Montgomery, 26 Kan.App.2d at 349–50, 988 P.2d 258.
Citing Supreme Court precedent, however, the panel ultimately determined that—despite the lack of express language—the robbery statutes actually did require a defendant to have taken property with the intention of permanently depriving the owner of it in order to commit the crime. Montgomery, 26 Kan.App.2d at 349–50, 988 P.2d 258; see State v. Adam, 257 Kan. 693, 697–700, 896 P.2d 1022 (1995). In Adam, our Supreme Court reversed a defendant's conviction for aggravated robbery because a supplemental jury instruction on aggravated robbery omitted the essential element that a defendant, in order to be found guilty, must have the general intent to take the property at issue. 257 Kan. at 699–700, 896 P.2d 1022. The Montgomery panel viewed the Adam decision as reading “an intent requirement into K.S.A. 21–3426” and, consequently, as supporting the panel's conclusion that an intent to permanently deprive the owner of property is an essential element to committing the crimes of robbery and aggravated robbery. Montgomery, 26 Kan.App.2d at 349–50, 988 P.2d 258.
Applying its construction of the robbery and aggravated robbery statutes to the facts of the case, the Montgomery panel held:
“It is clear that the removal of [the victim's] glasses was incidental to the commission of the attempted rape. [The defendant] removed—and then discarded—[the victim's] glasses. Clearly, he did so to facilitate his crime of attempted rape and to make it more convenient, as [the victim] might be less able to identify him. There is no evidence in the record that [the defendant] removed the glasses with an intent to keep them. All of the evidence leads to the conclusion that he took the glasses to facilitate the crime of attempted rape but not to commit the crime of robbery. And without a robbery, there can be no aggravated robbery.
“Under the ruling in Adam, the taking of [the victim's] glasses was incidental to the crime of attempted rape and had no significance independent of that crime. The trial court erred in denying [the defendant's] motion for acquittal of the aggravated robbery charge.” 26 Kan.App.2d at 350, 988 P.2d 258.
Notably, a panel of this court recently disagreed with the decision of the Montgomery panel and held that intent to permanently deprive the owner of property is not an essential element to committing the crimes of robbery and aggravated robbery. See State v. Edwards, 48 Kan.App.2d 383, 290 P.3d 661, 673–74 (2012). In coming to this decision, the Edwards panel began its analysis with the well-known rule of statutory construction:
“ ‘When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature's intent. [Citations omitted.]” Edwards, 290 P.3d at 673.
The panel went on to apply the rules of construction to the statutes at issue:
“The language of K.S.A. 21–3426 and K.S.A. 21–3427 is plain and unambiguous. K.S.A. 21–3426 defines robbery as ‘the taking of property from the person or presence of another by force or by threat of bodily harm to any person.’ K.S.A. 21–3427 defines aggravated robbery as ‘a robbery, as defined in K.S.A. 21–3426 and amendments thereto, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.’ Kansas appellate courts long have held both robbery and aggravated robbery to be general intent crimes, which only require proof that the defendant engaged in intentional conduct. See State v. McDaniel & Owens, 228 Kan. 172, 177, 612 P.2d 1231 (1980) (‘Aggravated robbery is not a specific intent crime, it requires only general criminal intent.’); State v. Esher, 22 Kan.App.2d 779, 783–84, 922 P.2d 1123 (robbery and aggravated robbery are general intent crimes), rev. denied 260 Kan. 997 (1996), overruled on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006); see also K.S.A. 21–3201(a) (‘Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.’). Thus, the Montgomery panel's decision to incorporate a specific intent to permanently deprive the owner of property as an essential element of robbery and aggravated robbery is contrary to the plain and unambiguous language used by the legislature in those statutes.
“Moreover, we find the Adam opinion provides no support for the Montgomery panel's decision to read a specific intent element into K.S.A. 21–3426 and K.S.A. 21–3427. At most, the Adam court recognized that aggravated robbery is a general intent crime and that a jury instruction suggesting that the taking of property does not need to be an intentional act constitutes reversible error. Adam, 257 Kan. at 697–700, 896 P.2d 1022. There simply is no language in the Adam opinion to suggest that a specific intent element should be read into the robbery and aggravated robbery statutes.
“Lastly, and long before the panel decided Montgomery, our Supreme Court in State v. Thompson, 221 Kan. 165, Syl. ¶ 7, 558 P.2d 1079 (1976), rejected the notion that a specific intent element should be read into the robbery and aggravated robbery statutes. In Thompson, the defendant argued the district court should have instructed the jury that in order to find him guilty of aggravated robbery, it had to find that he specifically intended to deprive the owner permanently of the property taken in the robbery. The Thompson court disagreed, concluding that neither K.S.A. 21–3426 nor K.S.A. 21–3427 included such an element. Thompson, 221 Kan. at 173–75, 558 P.2d 1079. The court stated:
“ ‘ There is no specific intent required beyond the general intent to commit the act of forcible taking. All that is required is an intentional taking of property from the person or presence of another by force or threat of bodily harm. It has long been the law of Kansas that when the commission of an act is made a crime by statute, without any express reference to any intent, the only criminal intent necessarily involved in the commission of the offense is the intent to commit the interdicted act. [Citation omitted.]
“ ‘At common law the crime of robbery as forcible larceny required an animo furandi, a specific intent to deprive the owner of the property taken, not temporarily, but permanently. Our former robbery statutes (K.S.A. 21–527 and 21–528 [Corrick 1964] ) required a ‘felonious' taking as an essential element of robbery. The term ‘felonious' was defined as requiring an intent to deprive the owner not only temporarily but permanently of his property, without color of right or excuse for the act, and to convert it to the taker's use without the consent of the owner. [Citations omitted.]
“ ‘In enacting K.S.A. 21–3426 and 21–3427 (Weeks 1974) the legislature eliminated the requirement of a ‘felonious taking’ and required only a ‘taking’ of the property by threat or force. The language of the new statutes broadened the statutory crime of robbery to cover any taking of property from the person or presence of another by threat of bodily harm or by force. The requirement of a specific intent to deprive the owner permanently of his property was eliminated. It is sufficient under the present statutes if the taking is done with the general intent to commit the act of taking the property by threat of bodily harm or by force. ... It follows that the trial court did not err in failing to instruct the jury that a specific intent to deprive the owner permanently of the property taken is an essential element of the crime of robbery.' (Emphasis added.) Thompson, 221 Kan. at 174–75, 558 P.2d 1079.
See also State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982) (The specific intent to permanently deprive the owner of his or her property is not an element of robbery or aggravated robbery.).
“Based on the language used in the statutes and our Supreme Court's holding in Thompson, we hold that, regardless of the purpose behind the taking, any taking of property from the person or presence of another by force or by threat of bodily harm to any person is sufficient to constitute a robbery under K.S.A. 21–3426. If the perpetrator is armed with a dangerous weapon or inflicts bodily harm upon any person during the course of such a taking, the perpetrator is guilty of aggravated robbery under K.S.A. 21–3427. Likewise, a defendant who takes property by force or by threat of bodily harm for the purpose of facilitating the commission of another crime is guilty of robbery. In holding that a defendant need not act with a specific intent to keep the property taken in order to commit the crime of robbery or aggravated robbery, we acknowledge our decision directly conflicts with the decision reached in Montgomery. See Urban, 291 Kan. at 223, 239 P.3d 837 (Kansas Court of Appeals is not bound by prior rulings of another panel.). ‘While we must carefully consider each precedent cited to us, we also must uphold our duty to correctly determine the law in each case that comes before us. In doing so, we sometimes find that we must respectfully disagree with the opinion of another panel.’ [Citation omitted.]” Edwards, 290 P.3d at 673–74.
We find the analysis in Edwards to be sound; thus, applying the law to the facts here, we find no merit to Young's claim of insufficient evidence based on his assertion that he took the property from S.S. for the sole purpose of facilitating another crime. The evidence presented at trial to establish that he took property from S.S. by force while armed with a dangerous weapon was sufficient to support his conviction for aggravated robbery.
c. Kidnapping
The jury was instructed that in order to find Young guilty of kidnapping, the State was required to prove, in relevant part, that Young “took or confined [J.S.] by force or threat or deception.” Young argues the evidence was insufficient to support this charge because the State presented no evidence that he took or confined J.S. or used any force, threat, or deception. Specifically, Young asserts that J.S. was free to leave at any time, as evidenced by the fact that he tried to get her to leave the basement by telling her to “ ‘[g]o back upstairs, Mommy is going to be okay.’ “ We disagree.
At the time of the incident, J.S. was 3 years old and could not, as a matter of law, consent to being “taken” or “confined” as those terms are used in the kidnapping statute. See State v. Blackburn, 251 Kan. 787, 795, 840 P.2d 497 (1992) (holding that a child of tender years may not consent to his or her seizure). Given her tender age, the evidence that J.S. was “taken” by “deception” necessarily derives from the evidence that J.S.'s mother was “taken” by “deception” when Young pretended to be a police officer and ordered J.S.'s mother into the house. To that end, Young waited for S.S. to unbuckle and remove J.S. from her car seat before escorting them both into the house, which suggests that Young fully expected S.S. to keep J.S. involved in his deceptive scheme. In such a case, it likely would have been unreasonable for Young to believe that S.S. would have accompanied him into the house if he had directed her to leave J.S. in the car alone.
Likewise, the evidence that J.S. was “confined” by “force or threat” necessarily derives from the evidence that Young “confined” J.S.'s mother within the house by use of “force or threat” of force against her. Again, at 3 years old, J.S. simply does not have the capacity to voluntarily remove herself from her mother's care and protection, notwithstanding the dangerous situation that obviously was presented. Thus, the force used by Young to confine J.S. in the house was the very fact that Young confined J.S.'s mother to the house. This comports with Kansas law, which provides that the kidnapping of a child may be established by evidence showing only a very minimal amount of force; each case depends upon particular facts of taking or confining in question. State v. Holloman, 240 Kan. 589, 594, 731 P.2d 294 (1987) (mere reference to a gun and suggestion that children could be tied up with their shoelaces sufficient threat of force under Kansas kidnapping statute); State v. Tillery, 227 Kan. 342, 345, 606 P.2d 1031 (1980) (leading child by hand sufficient force to constitute taking by force under Kansas kidnapping statute).
For these reasons, we find sufficient evidence supports the jury's finding that Young took or confined J.S. by force or threat or deception.
4. Jury instruction on eyewitness identification
Young alleges the district court erred in instructing the jury on eyewitness identification using a pattern instruction, PIK Crim.3d 52.20, because it instructed the jury that it could consider the “degree of certainty” that a witness testifies to in weighing the reliability of the eyewitness' identification testimony.
Our Supreme Court recently set forth an analytical framework for instructional issues with corresponding standards of review to be applied by the appellate court in reviewing a challenge to the giving of 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, 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, 182 L.Ed.2d 205 (2012). State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
At the outset, we are faced with a reviewability issue, as Young affirmatively requested that the district court give the eyewitness identification instruction that included the degree of certainty factor. “When defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal. [Citation omitted.]” State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011). A party may not invite error in a case and then complain of that error as a ground for reversing an adverse judgment. State v. Miller, 293 Kan. 535, 554, 264 P.3d 461 (2011). Because Young affirmatively requested that the district court give the eyewitness identification instruction that included the degree of certainty factor, Young has failed to preserve his present challenge for appellate review. See State v. Jones, 295 Kan. 804, 811–12, 286 P.3d 562 (2012).
5. Lesser included offense instructions
Young alleges the district court erred in refusing to issue requested lesser included offense instructions on robbery, attempted aggravated kidnapping, and attempted criminal restraint. The State contends that these instructions were not warranted because the jury could not have reasonably convicted Young of any of these lesser included offenses.
We rely on the same framework for instructional issues cited above and apply the corresponding standards of review. See Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202.
Young clearly preserved this issue by requesting these lesser included offense instructions, and the instructions would have been legally appropriate. See K.S.A. 21–3107(2)(c) (an attempt to commit the crime charged is a lesser included offense of the charged crime); State v. Davis, 256 Kan. 1, 23, 883 P.2d 735 (1994) (no dispute that robbery is a lesser included offense of aggravated robbery). Further, the giving of lesser included crime instructions is not a matter of discretion with the trial judge. See K.S.A. 22–3414(3) ( “[W]here there is some evidence which would reasonably justify a conviction of some lesser included crime ..., the judge shall instruct the jury as to the crime charged and any such lesser included crime.” [Emphasis added.] ).
Nevertheless, even though these instructions are legally appropriate when viewed in isolation, they are only required when they are supported by the particular facts of the case. A trial court is required to instruct the jury on lesser included crimes when there is some evidence that would reasonably justify a conviction of some lesser included crime. K.S.A. 22–3414(3); State v. Foster, 290 Kan. 696, 710, 233 P.3d 265 (2010). But an instruction need not be given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Jones, 279 Kan. 395, Syl. ¶ 1, 109 P.3d 1158 (2005). When a defendant has requested a lesser included instruction, the evidence should be viewed in the light most favorable to the defendant. 279 Kan. 395, Syl. ¶ 1, 109 P.3d 1158. However, appellate courts generally do not reweigh the evidence or assess the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). a. Robbery
Robbery is defined as “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426. Robbery is a lesser included offense of aggravated robbery, which, as charged here, is defined as “robbery ... committed by a person who is armed with a dangerous weapon ... in the course of such robbery.” K.S.A. 21–3427. In this case, the jury was instructed that in order to find Young guilty of aggravated robbery, it had to find that (1) Young intentionally took a cell phone from S.S.; (2) the taking was by force; (3) Young was armed with a dangerous weapon (a handgun); and (4) this act occurred on or about September 5, 2008, in Sedgwick County, Kansas.
At the instructions conference, Young requested that the jury be instructed on the lesser included offenses of robbery and theft. The district court agreed to instruct the jury on theft due to conflicting evidence as to whether the cell phone was taken by force but denied Young's request to issue a simple robbery instruction, reasoning that aggravated robbery only requires that the defendant be armed with a dangerous weapon during the robbery, not that the defendant actually used the weapon.
Young does not challenge the evidence presented showing that he possessed a gun during his entire encounter with S.S. or that he threatened her with it during the attack in the basement. Rather, Young claims, without providing any support, that he was entitled to a simple robbery instruction because although S.S. knew he was carrying a handgun, the gun was not involved in the robbery as he did not pull it out or threaten S.S. with it when he took her cell phone.
Contrary to Young's argument, the aggravated robbery statute requires only that the robber be “armed with” a dangerous weapon, not that the robber use it or even that the victim be aware of its presence. State v. Buggs, 219 Kan. 203, 207, 547 P.2d 720 (1976). Here, S.S. testified that Young had a handgun in his holster when he approached her truck and that he later held the gun to her head when they were in the basement. The fact that he did not display the gun or otherwise threaten S.S. with it at the time he took the phone out of her hand is irrelevant. Simply put, a robbery instruction was not warranted under the facts of this case. b. Attempted kidnapping and attempted criminal restraint
Young was charged with aggravated kidnapping, which, as charged here, prohibits the taking or confining of any person by force, threat, or deception with the intent to hold them to facilitate the commission of any crime. See K.S.A. 21–3421. The district court instructed the jury on the lesser included offenses of kidnapping and criminal restraint, but the court declined Young's request to instruct the jury on any attempt crimes based on a finding that whatever crime was committed had been completed.
Young contends the district court erred in refusing to instruct the jury on attempted kidnapping and attempted criminal restraint because the evidence showed that he was in the process of restraining S.S. with the zip ties but did not finish doing so.
Attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21–3301(a). In the present case, the evidence showed that Young blocked S.S.'s truck in her driveway, ordered S.S. inside the house, locked the door, and directed S.S. into the basement, where he proceeded to attack and restrain her. Where the crime charged is completed, there is no basis for the issuance of an attempt instruction. State v. Grauerholz, 232 Kan. 221, 230, 654 P.2d 395 (1982). Because the crime of aggravated kidnapping was complete, the district court did not err in refusing to issue any attempt instructions.
6. Prosecutorial misconduct
Young argues the prosecutor engaged in misconduct when he commented on matters outside the evidence during closing argument by stating that Young unzipped his pants and that the DNA recovered from the scene belonged to him. The State disagrees, claiming that the complained-of statements were accurate statements of the evidence.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides if the comments were outside the wide latitude given to a prosecutor when discussing the evidence. Second, if misconduct is found, then an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011); see State v. Inkelaar, 293 Kan. 414, 428, 264 P.3d 81 (2011).
During closing argument, the prosecutor discussed the elements of the crime of aggravated kidnapping, which, as charged, required the State to prove that the crime was committed in order to facilitate the commission of the crime of rape. Specifically, the prosecutor stated:
“You know, I have to prove that the intent here ... [is] that it was done to hold her to facilitate the commission of a crime, rape. What else was he doing down there? He doesn't say ‘Sit on the couch,’ and start ransacking the house and taking her TV and her purse or anything else. There's no one else there, it's just her. When a man walks into a home, zip ties a woman, takes her to the basement, puts her on the ground, undoes his own fly, puts a gun to her head and says ‘Be quiet, don't scream,’ what's left? One last thing: sex, rape. I'm asking you to find that that was his intent.” (Emphasis added.)
The prosecutor later discussed the evidence linking Young to the crimes:
“Finally, was it him? [S.S.] says that the day that it happened that it was a black male; 6–foot tall or so; 180, 190, something like that; driving a black Dodge Charger. It's on her street, on Pershing. A few months later, before we even get the final confirmatory tests, a lineup is put in front of her. She says That's the guy.' She wasn't sure as a lucky guess, because lo and behold when the confirmatory tests come in, it's his DNA. And you heard the explanation. It's very scientific and a lot, a lot of scientific jargon, but it's not 1 in 9,000 people walking around with it. You heard what he said, I'm not going to go through all the details again. DNA consistent with this man, who happened to be, lo and behold, in a Dodge Charger that week on North Pershing. This guy from Vegas happens to be on North Pershing within two blocks of her house the week of the crime. What a fantastic coincidence for [S.S.] if this didn't happen for her to pick out a guy, for all the world it could have been the wrong guy, but she picked out Mr. Young. She was sure of it. It was his DNA. He's in Sedgwick County on North Pershing in that car. Any reasonable doubt? I'm asking you to find this man guilty of all four crimes.” (Emphasis added.)
Young argues that the prosecutor's comments that Young unzipped his pants and that the DNA was Young's both constituted misconduct because they referred to matters not in evidence and “were not reasonable extrapolations from the evidence.” Specifically, he claims that the State did not present any evidence that S.S. saw him unzip his pants and suggests that his zipper could have been undone before he came into the house or could have accidently come undone. Young also contends that it was inaccurate for the prosecutor to identify the DNA as Young's because the evidence merely showed that Young could not be excluded as a contributor.
Under Kansas law, “a prosecutor must confine his or her comments in closing argument to matters in evidence. When the prosecutor argues facts that are not in evidence, the prosecutor engages in misconduct and the first prong of the test for prosecutorial misconduct has been met.” State v. Grey, 46 Kan.App.2d 988, 1003, 268 P.3d 1218 (2012). However, a prosecutor may draw reasonable inferences from the evidence. State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999). A prosecutor has wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010); see State v. Scaife, 286 Kan. 614, 623–24, 186 P.3d 755 (2008).
Placed in context, we find both of the statements about which Young complains constituted fair comment on the evidence and were not outside the wide latitude given to prosecutors. The State alleged that Young kidnapped S.S. in furtherance of committing the crime of rape. The evidence at trial showed that Young ordered S.S. into the house, directed her to the basement, told her daughter to go upstairs, held a gun to her head, and forced her to the ground. At some point during the attack, S.S. testified that she noticed Young's zipper was down. Even though S.S. did not actually see Young pull down his zipper, it was reasonable for the prosecutor to infer, based on the circumstances, that Young had done so in order to commit the crime of rape. A review of the entire statement shows that the prosecutor was accurately describing the evidence and relating it to the elements of the crime of aggravated kidnapping.
The prosecutor's statements about DNA also constituted fair comment on the evidence. The DNA analyst testified that Young could not be excluded as a contributor to the DNA profile recovered from the zip tie on S.S.'s wrist. The analyst further testified that the probability of selecting an unrelated individual at random in the black community that exhibits a profile that is a potential contributor to this mixture profile is 1 in 9,280. Although the DNA evidence could not be affirmatively identified as Young's, the prosecutor was inferring that the DNA belonged to Young, given that S.S. identified Young as her attacker; Young was driving the same car as S.S.'s attacker; and Young, who lived in Las Vegas, was in Wichita and near S.S.'s house on the day of her attack. Based on the evidence presented, this was a reasonable inference to make.
Because the prosecutor's comments were not outside the wide latitude given to prosecutors, we need not proceed to the second step of the analysis and determine whether they constituted plain error. Accordingly, the prosecutor did not commit misconduct during closing arguments.
7. Cumulative error
Finally, Young argues that even if this court concludes the district court's allegedly erroneous rulings are harmless when considered individually, we must nevertheless reverse his convictions because the cumulative effect of the errors substantially prejudiced his right to receive a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
Although one error may not warrant reversal, cumulative errors, considered collectively, may warrant reversal where the totality of the circumstances demonstrate the errors substantially prejudiced and denied a defendant a fair trial. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). But “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because Young has failed to establish any error occurred, we reject Young's claim of cumulative error.
Affirmed.