Opinion
No. 113039.
08-14-2015
STATE of Kansas, Appellee, v. Kevin Lee BERNING, Appellant.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
John R. Kurth, of Kurth Law Office Incorporated, P.A., of Atchison, for appellant.
Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kevin Lee Berning was convicted of domestic battery after a bench trial. He argues the evidence was insufficient to convict because the victim changed her account at trial.
Factual and Procedural Background
Just after 6 a.m. on June 25, 2014, Brian Johnson, a police officer for the City of Atchison, was dispatched to the apartment of Brittany Elmore on a report of a domestic dispute. Officer Johnson found Elmore crying hysterically with red marks about her neck and upper chest. The officer testified the red marks appeared to be fresh, and photographs supporting this testimony were introduced into evidence at trial.
Along with Elmore at the apartment was her mother, Tonya Miller. Officer Johnson testified that as Elmore was “trying to catch her breath.” Miller explained Elmore had called her and said Berning “had just about killed her, that she thought she was going to die.” Berning was Elmore's boyfriend at the time and had lived with her at the apartment. Miller identified herself to the officer as the one who had called the police.
Elmore eventually was able to tell the officer that Berning
“had choked her, pinned her down on the couch, she was trying scream as loud as she could for help. And then she said that she started to blackout and she thought she was going to die. She then said that [Berning] let go of her and ran out of the apartment door and that's when she called her mom.”
Elmore refused to give a written statement, however. Officer Johnson testified that Elmore “seemed scared, very upset.” On July 2, 2014, Elmore completed a Victim Impact Statement for the Atchison County Attorney. Elmore then said only that she and Berning had argued, and she indicated she was not truthful with the police. Elmore stated: “[I]t was very wrong of me to allow my mom to agree with the false statement. I will take all responsibility for my actions.”
At trial on October 1, 2014, however, Elmore denied telling the police that Berning had attacked her. Miller testified to the contrary, saying Elmore had told the police of the attack. Elmore further denied telling Miller of the attack, but again Miller testified she had. According to Elmore, she and Berning merely were “arguing,” and “he got mad and ran out.” But Miller agreed that Elmore's story to her on June 25, 2014, was “quite different than the story you heard her tell here today.”
Elmore testified the red marks shown in the photographs were present before June 25, 2014. When asked their cause on cross-examination, Elmore answered, “I don't really remember.” When asked why she had shown the red marks to the police, Elmore was evasive, saying she was “mad” at Berning and “[m]aybe” trying to get him into trouble. Elmore testified she no longer wished to get Berning into trouble, however. Miller testified she saw Elmore every day and that she had not noticed the red marks before June 25, 2014.
The district court found Berning guilty of domestic battery, but it found him not guilty on the other charge of criminal damage to property. The judge stated, “Primarily, I think the pictures speak the loudest story, that obviously she got injured, and the Court has no question that Mr. Berning did that.” Berning appeals.
Analysis
Was the evidence insufficient to convict?
Berning argues the evidence of guilt was insufficient when “taken in conjunction with” Elmore's testimony and her Victim Impact Statement. The State of Kansas argues that “[w]hen considering the facts in the light most favorable to the prosecution there is sufficient evidence to support the conviction for domestic battery.” As the State suggests, this court must “review all the evidence in the light most favorable to the prosecution and determine whether [it is] convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Longoria, 301 Kan. 489, 533, 343 P.3d 1128 (2015). “Importantly, an appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.” 301 Kan. at 533.
Berning was convicted of violating K.S.A.2013 Supp. 21–5414(a)(2) : “knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting, or angry manner.” Elmore essentially admitted at trial to an angry exchange with Berning, and Berning's status as a household member was undisputed. As for physical contact, the photographs admitted at trial are compelling, showing not just significant marks on Elmore but also her intense emotional state. Two witnesses, Officer Johnson and Miller, testified that Elmore had contemporaneously attributed the red marks to Berning. Miller also testified that she had not seen the red marks before, despite her daily contacts with her daughter.
Berning's request to take this inculpatory evidence “in conjunction” with the exculpatory evidence is beyond the standard of review. The district court bore the duty to weigh Elmore's out-of-court statements against Elmore's trial testimony. See Longoria, 301 Kan. at 533. Viewing all of the evidence in the light most favorable to the prosecution, a rational factfinder could have found Berning guilty beyond a reasonable doubt.
Affirmed.