Opinion
No. 112088.
08-14-2015
STATE of Kansas, Appellee, v. Ruben A. BORDEN–VASALLO, Appellant.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Jason A. Oropeza and Robert R. Johnson, assistant county attorneys, Elizabeth Sweeney–Reeder, county attorney, and Derek Schmidt, attorney general, for appellee.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.
Jason A. Oropeza and Robert R. Johnson, assistant county attorneys, Elizabeth Sweeney–Reeder, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRRON, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ruben A. Borden–Vasallo directly appeals his convictions and sentences for kidnapping, aggravated robbery, aggravated burglary, and theft of property. Borden–Vasallo argues; (1) The district court erred when it refused to instruct the jury on the defense of compulsion; (2) the district court violated his Sixth and Fourteenth Amendment rights under the United States Constitution when it sentenced him to an aggravated sentence without proving the aggravating factors to a jury; and (3) the district court violated his Sixth and Fourteenth Amendment rights under the United States Constitution when it sentenced him to an increased sentence based upon his prior criminal history without putting it before a jury. We affirm.
Factual and Procedural Background
In July 2013, Frances Lynette Beck–Burkhart (per her testimony use Burkhart) reported that a man holding a knife and wearing an aqua T-shirt and jeans entered her house. Burkhart was terrified the man would use the knife on her. Later, in a police lineup photo, she identified Borden–Vasallo. Burkhart testified she had no doubt that it was Borden–Vasallo that entered her house with the knife.
Burkhart described how Borden–Vasallo pushed her into a chair and covered her eyes. Burkhart was not able to move because her arms were pinned under BordenVasallo's weight. In English, he instructed her to hold still and “don't look.” However, Burkhart was able to catch a glimpse of another man entering her house. The two men communicated with each other in Spanish. Borden–Vasallo told Burkhart he wanted money, so she told him where she kept it. The men took at least $1,500 in cash and some of her jewelry. In total, the men took about $20,000 to $25,000 of her possessions. Before he left, Borden–Vasallo wrapped a cord around Burkhart's wrists and tied a towel over her eyes. After the men left, Burkhart removed the ties and called the police. She believed the men were in her house for about 10 minutes.
After a vehicle ran a red light, the police stopped it and saw that it contained suspects matching the description provided by Burkhart. The driver, Borden–Vasallo, wore a light blue shirt, was the first to exit the vehicle, jumped a fence, and ran into the woods. Passenger Julio Fernando Irias–Riveria complied with police commands. About a minute after Irias–Riveria surrendered, passenger Brian Romero ran into the woods. Burkhart confirmed the jewelry found in the vehicle was the jewelry stolen from her home.
The police were able to identify Borden–Vasallo by speaking with Irias–Riveria, recovering a cell phone from the vehicle, and matching items found in the vehicle to items purchased by Borden–Vasallo from a convenience store earlier in the day. BordenVasallo was arrested 2 days after the incident.
Borden–Vasallo was charged with kidnapping in violation of K.S.A.2014 Supp. 21–5408(a)(2), a severity level 3 person felony; aggravated robbery in violation of K.S.A.2014 Supp. 21–5420(b)(1), a severity level 3 person felony; aggravated burglary in violation of K.S.A.2014 Supp. 21–5807(b), a severity level 5 person felony; and theft of property in violation of K.S.A.2014 Supp. 21–5801(a)(l) and (b)(3), a severity level 9 nonperson felony.
During a jury trial in April 2014, Irias–Riveria testified against Borden–Vasallo in order to obtain a favorable plea agreement with the State. Irias–Riveria stated that he, Borden–Vasallo, and Romero committed the crimes at Burkhart's house. Furthermore, he confirmed Borden–Vasallo had a knife and was the first person to enter Burkhart's home.
To the contrary, Borden–Vasallo testified that Irias–Riveria asked him for a ride to pick up a paycheck and that Romero came too. Borden–Vasallo claimed it was not until he had parked in Burkhart's driveway that Irias–Riveria informed him that he was going to rob Burkhart's home. According to Borden–Vasallo, Irias–Riveria held a knife to Borden–Vasallo's neck and told him if he said anything or told anyone about the crime, then he was going to hurt Borden–Vasallo's daughter. Irias–Riveria referenced his gang connections and told Borden–Vasallo that he knew where his family lived. Specifically, Irias–Riveria told Borden–Vasallo that his daughter was only one phone call away from harm.
According to Borden–Vasallo, Romero took his car keys and went into Burkhart's home with Irias–Riveria. Borden–Vasallo testified that he did not see other houses around and believed the men were in the home for less than 2 minutes. After Romero and IriasRiveria returned to the vehicle, Romero instructed Borden–Vasallo to drive away, and he complied.
Borden–Vasallo ran a red light and then continued driving even though law enforcement officers were chasing his vehicle. He claimed he could not apply the brakes because he was so nervous. Borden–Vasallo claimed he continued to receive threats to his children while he drove away from the police. Borden–Vasallo testified that he ran into the woods because he was nervous and his immediate reaction was to run and call his daughter. During the next 2 days in the woods, Romero continued to threaten BordenVasallo. Borden–Vasallo was arrested 2 days after the incident and claimed he came out of hiding because he was able to separate from Romero, was trying to hitchhike a ride back to Kansas City, and was not worried whether the police would find him at the time.
After the evidence was presented at trial, Borden–Vasallo requested a jury instruction regarding the defense of compulsion. He argued the instruction was appropriate because Irias–Riveria had held a knife to his neck and threatened to make a phone call to cause harm to Borden–Vasallo's family if he told anyone about the crimes. The district court denied the request, holding the threat was not imminent and the compulsion was not continuous throughout Borden–Vasallo's involvement in the crime.
The jury convicted Borden–Vasallo on all charges. The district court found that Borden–Vasallo had a criminal history score of C and imposed the aggravated sentence in the sentencing guideline box for each offense. Borden–Vasallo received a controlling prison sentence of 209 months followed by 36 months of postrelease supervision.
Borden–Vasallo timely appeals.
Did the District Court Err When it Failed to Instruct the Jury on the Defense of Compulsion?
The standard of review when addressing challenges to jury instructions is based upon the following analysis:
“ ‘(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 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Roeder, 300 Kan. 901, 920, 336 P.3d 831 (2014), cert. denied 135 S.Ct. 2316 (2015).
Borden–Vasallo argues the district court erred by refusing to include a jury instruction on the defense of compulsion. The State argues the denial was proper.
First, the issue is reviewable because Borden–Vasallo's request for a compulsion jury instruction properly preserved the issue for appeal. The instruction would have been legally appropriate if there had been sufficient evidence, viewed in the light most favorable to Borden–Vasallo, to support the instruction. See Roeder, 300 Kan. at 920–21. Here, there was not sufficient evidence to support Borden–Vasallo's requested instruction.
Borden–Vasallo claims he presented sufficient evidence to warrant the requested instruction.
A criminal defendant generally is entitled to instructions on the law applicable to his or her theory of defense if there is suff cient evidence for a rational factfinder to find for the defendant on that theory. State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014). If the defendant requested an instruction at trial, the court must view the evidence in the light most favorable to the defendant. 299 Kan. at 184. Compulsion evidence can be supported even if a defendant's testimony is his only evidence. State v. Anderson, 287 Kan. 325, 336, 197 P.3d 409 (2008). However, “affirmative-defense-based instructions can only be given when the evidence is sufficient to justify a rational factfinder finding in accordance with that defense theory.” 287 Kan. at 333.
Pursuant to K.S.A.2014 Supp. 21–5206 :
“(a) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which such person performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if such person reasonably believes that death or great bodily harm will be inflicted upon such person or upon such person's spouse, parent, child, brother or sister if such person does not perform such conduct.
“(b) The defense provided by this section is not available to a person who intentionally or recklessly places such person's self in a situation in which such person will be subjected to compulsion or threat.” (Emphasis added.)
Caselaw has expanded the statutory factors as our Supreme Court has repeatedly held:
“ ‘[T]o constitute the defense of compulsion, coercion or duress must be present, imminent, impending, and continuous. It must be of such a nature as to induce a wellgrounded apprehension of death or serious bodily injury to oneself or one's family if the act is not done. The doctrine of compulsion cannot be invoked as an excuse by one who had a reasonable opportunity to escape the compulsion or avoid doing the act without undue exposure to death or serious bodily harm. A threat of future injury is not enough. [Citations omitted.]’ (Emphasis added.) State v. Matson, 260 Kan. 366, 385, 921 P.2d 790 (1996).” State v. Baker, 287 Kan. 345, 352, 197 P.3d 421 (2008).
In this case, Borden–Vasallo requested a jury instruction on the defense of compulsion. However, the district court correctly reviewed the evidence in a light most favorable to Borden–Vasallo and denied his request holding the threat was not imminent and the compulsion was not continuous throughout Borden–Vasallo's involvement in the crime.
Borden–Vasallo claims the instruction was appropriate because Irias–Riveria held a knife to his neck and threatened to make a phone call that could cause physical harm to his daughter if he did not follow Irias–Riveria's commands to remain silent. He argues the threat was imminent rather than a future threat because he had reason to believe it could be carried out as quickly as the amount of time it would have taken Irias–Riveria to make a phone call. Borden–Vasallo believed Irias–Riveria had gang connections and that he had gang affiliates where his daughter lived. To the contrary, the State argues the alleged threat to Borden–Vasallo's family was not imminent, impending, and continuous as required by caselaw.
The district court's finding was correct that the threat was a “threat for an event in the future. This wasn't a threat that compelled him to participate in the offense. It was, if you tell we did this, we're going to X.”
Borden–Vasallo testified that Irias–Riveria told him if he talked about the robbery, then his daughter would get hurt. However, during cross-examination the State asked Borden–Vasallo whether anyone was holding his family members hostage, and he responded, “No, not as far as I know. What they said is that they knew where my family lived and they knew where I lived.” Furthermore, Borden–Vasallo testified that he did not think that anyone was with his daughter when the robbery occurred. More specifically, the State asked Borden–Vasallo, “So the threat was that they would get them at a later time; correct?” He responded, “If I was to say anything, yes.” He was also asked, “So you were concerned about a future threat to you or your family,” to which he replied, “Of course.” The threatened harm as described by Borden–Vasallo would only occur in the future and was contingent upon him speaking to anyone about the robbery. The threat was not imminent.
Regarding a threat to Borden–Vasallo's person, the State argues the alleged threat was that Borden–Vasallo and his family would be harmed unless Borden–Vasallo kept quiet about the crime. Borden–Vasallo was asked whether he was under immediate threat or danger while he was alone in the car, and he responded, “I was under threat. Maybe not immediate danger, but I was under threat.” This was a threat of future harm and did not support the giving of a compulsion jury instruction.
Borden–Vasallo argues he did not have a reasonable opportunity to escape.
In State v. Llamas, 298 Kan. 246, Syl. ¶ 2, 311 P.3d 399 (2013), our Supreme Court held:
“Mere association with the principals who actually commit a crime or mere presence in the vicinity of a crime is insufficient to establish guilt as an aider and abettor. Rather, to be guilty of aiding and abetting in the commission of a crime, a defendant must willfully and knowingly associate with an unlawful venture and willfully participate in it as the defendant would in something he or she wishes to bring about or to make succeed. This intent can be established by circumstantial evidence.”
Here, Borden–Vasallo asserts that Irias–Riveria had a knife and was in close physical proximity to him during his only opportunity to escape. Borden–Vasallo believes his only chance to escape was when Irias–Riveria and Romero left the vehicle to run up to Burkhart's home because he committed the crimes as an aider and abettor once he voluntarily allowed the other two men to enter Burkhart's residence unannounced. Thus, Borden–Vasallo argues the only time he could have escaped the compulsion before becoming an aider and abettor was after the two other men left the car but before they entered the house to commit the crime.
In opposition, the State asserts that Borden–Vasallo had a reasonable opportunity to escape the alleged compulsion. There is no testimony or evidence in the record that Borden–Vasallo intentionally remained quiet in the vehicle to help Irias–Riveria and Romero enter Burkhart's home. Borden–Vasallo testified that all he did was sit in the vehicle while the other men entered the house.
During trial, Borden–Vasallo stated that he gave Irias–Riveria a ride to Burkhart's home to pick up a paycheck. He claimed it was not until he had parked in Burkhart's driveway that Irias–Riveria informed him that he was going to rob Burkhart's home. Borden–Vasallo even testified that after he stopped the car at Burkhart's house and was informed of the robbery plan, he asked Irias–Riveria why he had not told him they were driving to the house to rob it, and Irias–Riveria responded he knew Borden–Vasallo would not agree to the plan so he did not tell him about it. Thus, Borden–Vasallo has not presented evidence that he willfully participated in the crimes and wanted to make them succeed while the other men were in Burkhart's home. Based on his testimony, he would not have been found guilty of aiding and abetting for just sitting in the vehicle outside of the house that he drove to under false pretenses.
In the alternative, Borden–Vasallo argues that even if he is not found to be an aider and abettor until after he drove away from the residence, he was only in the car for 2 minutes before the other men returned, he was anxious from being threatened, the men took his car keys, and he did not notice any houses he could run to for safety.
On the other hand, the State correctly argues Borden–Vasallo had a reasonable opportunity to escape. Borden–Vasallo testified that he was alone in the vehicle when the other two men entered Burkhart's house. He admitted there was no one else in the vehicle holding a knife to make him stay, he was not tied down or handcuffed, and he had an opportunity to run away. When Borden–Vasallo was asked whether he was threatened “[t]o stay there and don't leave,” he responded, “No, they took the car keys. I could not leave.”
At trial, the State admitted a video showing a person in an aqua-colored shirt exit the driver's door of the car and run into the woods. Borden–Vasallo admitted he was the person in the video who exited the driver's door of the vehicle. The video and BordenVasallo's testimony demonstrate that he did not have a physical impairment that prevented him from running away during the 2 minutes the other men were in Burkhart's home. Therefore, Borden–Vasallo had a reasonable opportunity to escape, so there was not sufficient evidence to support a jury instruction on the defense of compulsion.
Borden–Vasallo claims this court should reverse his convictions and remand the case for a new trial because the refusal to give a compulsion jury instruction was not a harmless error. The State argues that even if the district court erred in not providing a compulsion instruction, it had no impact on the trial's outcome.
In State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012), our Supreme Court ruled:
“[B]efore a Kansas court can declare an error harmless it must determine the error did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict.”
Here, Borden–Vasallo testified he felt Irias–Riveria's gang connections made the threat to his daughter imminent and that his life was imminently threatened because IriasRiveria was holding a knife to his neck. Furthermore, he argues that because Irias–Riveria and Romero were only away from the vehicle for 2 minutes, he could not have escaped the compulsion. He claims that if the jury had the instruction regarding the defense of compulsion, it may have decided that Borden–Vasallo's testimony supporting the defense was more believable than Irias–Riveria's or Burkhart's testimony.
However, the State provided overwhelming evidence of Borden–Vasallo's guilt. Even though Borden–Vasallo claimed he never entered Burkhart's home, there was evidence that he entered her home and he d her down. On cross-examination BordenVasallo testified there was no way Burkhart could have recognized him because “[s]he couldn't have seen [him]” and he had never seen her before. Yet, Burkhart identified Borden–Vasallo as the first person who entered her home during the crimes in question. She testified that she had no doubt that it was Borden–Vasallo who entered her house with the knife. She explained Irias–Riveria used to work for her so she was familiar with him and he was not the one who held her down.
Burkhart described to Detective Jennifer McDaniel how the first man who entered her home had short hair and wore an aqua-colored T-shirt. Detective McDaniel viewed a Quick Trip surveillance video and found a person matching the description provided by Burkhart. At trial, Borden–Vasallo was shown video stills of the surveillance video and admitted that the person in the photos looked like him. Furthermore, Borden–Vasallo admitted that he was the person wearing the aqua-colored T-shirt who exited the vehicle shown in the video recorded by Sergeant Bill Smith's in-car camera. The in-car video showed Irias–Riveria's and Romero's outfits, and neither one was wearing clothing similar to the color of Borden–Vasallo's T-shirt. However, Borden–Vasallo did mention Romero had on a blue shirt but put on a black one when he got in the car.
Furthermore, DNA analyst Allison Unthank developed a mixture profile from a DNA swab taken from Burkhart's face. The major contributor to the sample was Burkhart. Unthank was able to exclude Irias–Riveria and Romero as minor contributors of the DNA on Burkhart's face, but she could not exclude Borden–Vasallo as a minor contributor.
Moreover, Irias–Riveria testified that Borden–Vasallo was the first person to enter Burkhart's house and that it was both of their ideas to break into the home. The overwhelming evidence that Borden–Vasallo entered the house and assaulted the victim further erodes his claim of compulsion. Based on such overwhelming evidence, even if the district court erred, the error was harmless.
Did the District Court Violate Borden–Vasallo's Sixth and Fourteenth Amendment Rights Under Apprendi v. New Jersey?
Borden–Vasallo argues this case should be remanded for resentencing because his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), were violated because the district court sentenced him to the aggravated number in his appropriate sentencing guidelines grid boxes for each offense without submitting aggravating factors to a jury. The State argues this court is without jurisdiction to consider this appeal because the issue was previously decided in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008).
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Phillips, 299 Kan. 479, 494, 325 P.3d 1095 (2014). The constitutionality of a sentencing statute is a question of law subject to unlimited appellate review. Hilt, 299 Kan. at 202. Borden–Vasallo and the State agree with this standard.
The district court sentenced Borden–Vasallo to the aggravated sentence for each offense. Borden–Vasallo contends that this violated his right to a jury trial based on Cunningham v. California, 549 U.S. 270, 274–75, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007). In that case, the United States Supreme Court held it unconstitutional to impose a sentence above the statutory maximum based on facts not proven to a jury. But as Borden–Vasallo recognizes, his argument has already been rejected by the Kansas Supreme Court. See State v. Beaman, 295 Kan. 853, 870–71, 286 P .3d 876 (2012) ; Johnson, 286 Kan. at 851–52. He includes the issue to preserve it for federal review. This court is bound by the Kansas Supreme Court rulings. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Thus, the district court did not violate Borden–Vasallo's Sixth and Fourteenth Amendment rights by imposing the aggravated sentences.
Prior Criminal History
Borden–Vasallo claims his Sixth and Fourteenth Amendment rights under Apprendi were violated because his prior convictions were used to enhance his guidelines sentence without submission to a jury or proven beyond a reasonable doubt.
As stated above, interpretation of sentencing statute is a question of law, and the standard of review is unlimited. Phillips, 199 Kan. at 494. The constitutionality of a sentencing statute is a question of law subject to unlimited appellate review. Hilt, 299 Kan. at 202.
Borden–Vasallo argues the district court violated his Sixth and Fourteenth Amendment rights under the United States Constitution, as interpreted by Apprendi, when it used his criminal history for sentencing purposes without requiring the State to include his prior convictions in the complaint and prove his criminal history beyond a reasonable doubt to the jury. Borden–Vasillo acknowledges that the Kansas Supreme Court rejected the same argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review.
Our Supreme Court has reaffirmed Ivory numerous times. See, e.g., State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its earlier position. See Ottinger, 46 Kan.App.2d at 655. Because there is no indication our Supreme Court is departing from Ivory, the district court did not err in using BordenVasallo's criminal history when imposing his sentences.
Affirmed.