Opinion
No. 106,427.
2012-09-28
STATE of Kansas, Appellee v. Bradley A. BRUBAKER, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, Assistant District Attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, Assistant District Attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Convicted of making a criminal threat, Bradley A. Brubaker argues that his remarks were mere expressions of transitory anger and not a criminal threat because there is insufficient evidence of any intent to terrorize. Brubaker had pointed to the house where his mother-in-law was seated on the porch and then yelled, “I hate my mother in law ... I swear I'll kill her.” He made these remarks in the presence of two Wichita police officers and within earshot of his mother-in-law. Viewing the trial evidence in the light most favorable to the State, as the law requires, we hold there is sufficient evidence to convict Brubaker of making a criminal threat.
A celebration turned into a confrontation.
On July 4, 2010, Brubaker and Meishka Workman lived with Meishka's mother, Cindy Workman, in Wichita. On the evening of July 4, 2010, Brubaker and Meishka had been out celebrating the holiday and had returned home sometime after Cindy had gone to bed at 11 p.m. Brubaker was intoxicated. Almost immediately upon their return, Brubaker and Meishka began arguing in the kitchen. Brubaker's yelling awoke Cindy, who went running to the kitchen to see what was happening. Meishka was trying to calm Brubaker down and wanted Cindy to stay out of the argument. Cindy's arrival did not calm things down.
According to Cindy, Brubaker did not like her very much when he drank alcohol because she was “always in their business.” Cindy told Brubaker to calm down, and the pair exchanged profanities to the point where Cindy told Brubaker she was going to call the police and for him to get out of the house. Cindy also told Meishka to get Brubaker out of the house. Before leaving, Brubaker grabbed the microwave and threw it down on the ground. The argument between Brubaker and Meishka continued out onto the street. Meishka could not get Brubaker to calm down. Because Brubaker's yelling escalated to the point that Cindy believed it would awake the neighbors, she called the police.
When Wichita police officers Kari Shorb and Donald Bailey arrived at the scene, they saw Brubaker and Meishka arguing in the street. The officers separated the two. Brubaker appeared intoxicated to the officers and was visibly upset. Officer Bailey handcuffed Brubaker for safety reasons. Once Brubaker calmed down and the officers determined they were not going to make any arrests, Brubaker's handcuffs were removed.
When the officers advised Brubaker not to spend the night at home, Brubaker became upset, pointed to the house, and started yelling at the officers that if they made him go back in the house he would “kill that bitch.” At trial, Cindy testified that Brubaker saw her when she went out onto the porch and she heard him yell, “I'm going to kill you.” Officer Shorb testified that Brubaker shouted the following statement to Cindy in front of the officers: “I hate my mother-in-law ... I swear I'll kill her.” The officers, believing Brubaker had made a credible threat to Cindy, who was sitting on the porch, immediately arrested him. During a search of Brubaker's person incident to arrest, the officers found a bag of marijuana.
Detective Wendy Hummell testified that Cindy indicated to her a few days later that she was scared of Brubaker that night. Detective Hummel's report indicates that Cindy stated she called 911 because “she was afraid that Bradley may harm her or her daughter.” At trial, however, Cindy testified that she did not feel threatened at any point.
After this investigation, the State charged Brubaker with possession of a controlled substance (marijuana after a prior conviction) in violation of K.S.A.2010 Supp. 21–36a06(b)(3),(c)(2), and criminal threat in violation of K.S.A.2010 Supp. 21–3419(a)(1). Brubaker entered a plea of guilty to the controlled substance charge but elected a jury trial on the criminal threat allegation.
The jury unanimously found Brubaker guilty of criminal threat. The district court sentenced Brubaker to consecutive sentences of 18 months' imprisonment for the drug conviction and 7 months' imprisonment for the criminal threat conviction. The district court suspended his sentence and granted Brubaker 12 months' probation.
Our rules on sufficiency of the evidence guide us in this case.
Brubaker attacks his criminal threat conviction by arguing that the alleged criminal threat was insufficient evidence to support a conviction under K.S.A.2010 Supp. 21–3419(a)(1) because he “was merely experiencing transitory anger at the time he made this statement.”
We look first at the charge. To convict Brubaker of the criminal threat to Cindy under K.S.A.2010 Supp. 21–3419(a)(1), the jury had to find that Brubaker (1) made a threat to commit violence; and (2) communicated the threat either with specific intent to terrorize Cindy or in reckless disregard of the risk of terrorizing Cindy. See State v. Knight, 219 Kan. 863, 866, 549 P.2d 1397 (1976); State v. Meinert, 31 Kan.App.2d 492, 499, 67 P.3d 850,rev. denied 216 Kan. 972 (2003).
Our rules for deciding evidence sufficiency questions are well established. 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. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
We examine the transitory anger argument.
A fair reading of Brubaker's argument reveals that he does not dispute his threat to “commit violence” against Cindy. Instead, Brubaker's transitory anger argument challenges the evidence of his intent to terrorize. The wellspring for the argument is a comment to the American Law Institute, Model Penal Code § 211.3 (Tentative Draft No. 11 1960):
“In drafting legislation penalizing threats, we would not wish to authorize grave sanctions against the kind of verbal threat which express transitory anger rather than settled purpose to carry out the threat or terrorize the other person.”
This argument has not succeeded in cases before this.
Kansas appellate courts have twice considered the transitory anger argument in relation to criminal threat convictions under K.S.A.2010 Supp. 21–3419(a)(l). In State v. Swarthout, No. 104,703, 2011 WL 3558276, at *3 (Kan.App.2011) (unpublished opinion), rev. denied June 13, 2012, and State v. Singleton, No. 99,044, 2009 WL 454735, at *5–6 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1284 (2009), this court rejected the transitory anger argument in both instances.
On the other hand, to support his argument, Brubaker cites to the same Model Penal Code comment and the two jurisdictions that held expressing transitory anger is not punishable as a criminal threat that Singleton relied upon on appeal. See Singleton, 2009 WL 454735, at *4–5 (citing Model Penal Code § 211.3, Comments; State v. Jones, 451 N.W.2d 55, 63 [Minn.App.1990]; Com. v. Reynolds, 269 Pa.Super. 279, 835 A.2d 720, 730 [2003] ).
The Singleton panel, in holding that there was sufficient evidence of Singleton's reckless disregard of the risk of causing terror to support his conviction, explained the transitory anger defense as follows:
“[T]he aim of a transitory anger argument is to show that the defendant did not possess the requisite mental state to be convicted. The North Dakota Supreme Court recognized this much in State v. Carlson, 559 N.W.2d 802, 807–08 (N.D.1997), where the court held that under North Dakota's terrorizing statute, ‘the critical inquiry is whether the defendant intended to place others in fear for their safety and a defendant's “transitory anger” is relevant only in that limited context.’ Thus, for Singleton's claim to succeed, he must show that there was insufficient evidence he recklessly disregarded the risk that his threats would terrorize Stovall. See K.S.A. 21–3419(a)(l).” 2009 WL 454735, at *5.
The Swarthout panel, despite acknowledging that it could “dispose of the transitory anger argument in the same manner as in Singleton,” took the analysis one step further. 2011 WL 3558276, at *3. In declining to read a transitory anger test into K.S.A. 21–3419, the Swarthout panel noted,
“It is more logical to look directly at the language of K.S.A. 21–3419 and hold there is no basis to add or allow the question of whether a defendant's conduct was only statutory as a defense to a criminal threat charge. We have no basis to add such language to the statute. Our Supreme Court has consistently held: ‘A statute should not be read to add that which is not contained in the language of a statute or to read out what, as a matter of ordinary language, is included in the statute.’ Casco v. Armour Swift–Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007).” 2011 WL 3558276, at *3.
There is sufficient evidence here to sustain a conviction.
Here, there is sufficient evidence to support a finding that Brubaker, at the very least, recklessly disregarded the risk of causing terror to Cindy. Prior to Brubaker even making the threat, Cindy acknowledged phoning 911 out of fear of being harmed by Brubaker. When Cindy came out of the house and Brubaker noticed her sitting on the porch, Brubaker pointed at the house and then yelled a threat to kill Cindy loud enough for Cindy and the two officers to hear. Viewing this evidence in a light most favorable to the State, a rational jury could have found Brubaker guilty beyond a reasonable doubt. In State v. Cope, 273 Kan. 642, 647, 44 P.3d 1224 (2002), the court held that “[r]egardless of whether the threat is real or even capable of being carried out, it is the reaction desired by the communicator, or in this case, the communicator's reckless disregard of the possibility of creating that reaction which constitutes the offense. [Citation omitted.]”
In his secondary argument, Brubaker contends that the trial court erred when it did not give a limiting instruction to the jury when evidence of his destruction of the microwave was admitted. He did not preserve this issue for appeal. To preserve a K.S.A.2010 Supp. 60–455 issue for appeal, a defendant must object on that ground at trial. State v. Young, 14 Kan.App.2d 21, 36–37, 784 P.2d 366,rev. denied245 Kan. 788 (1989).
Here, on the day of trial, the State advised the district court it needed to clarify that the parties did not discuss the microwave incident during Brubaker's motion in limine hearing, which sought to exclude, inter alia, evidence of uncharged conduct. The State asked the district court for permission to discuss the microwave incident even though it was potentially a misdemeanor charge of criminal damage to property. When the district court asked for defense counsel's position, she informed the court: “I have no objection to that. I just assumed it would be discussed too. So I have no objection to that being brought in.” The district court then ruled on the admissibility of the microwave incident. In doing so, the district court noted that the State did not charge Brubaker for the microwave incident and told the parties that Brubaker's conduct with the microwave was relevant evidence for the purpose of explaining to the jury why law enforcement officers were called to the scene. The district court also stated that the jury could hear evidence of the microwave incident because it was “part of the overall transaction.”
Brubaker's statement to the district court clearly indicates that he did not object. Brubaker also did not object after the district court explained its decision. Finally, Brubaker failed to object when the evidence of his conduct was actually offered at trial. When a trial court makes a preliminary ruling on admissibility, the objecting party still must object when the evidence is presented to preserve the issue for appeal. State v. Trotter, 245 Kan. 657, 659, 783 P.2d 1271 (1989).
Because Brubaker failed to object, based on K.S.A.2010 Supp. 60–455, to the admission of evidence contemporaneously to its presentation at trial, he has waived his right on appeal to complain of the absence of a limiting instruction. See State v. Redford, 242 Kan. 658, 666, 750 P.2d 1013 (1988), where the court held that the defendant waived the right to object to the lack of a limiting instruction by failing to make a contemporaneous objection at any time during trial to references of prior criminal conduct.
Moreover, our Supreme Court ruled in State v. Adams, 294 Kan. 171, 184, 273 P.3d 718 (2012), that K.S.A.2010 Supp. 60–455 applies to evidence “% 7Fthe person committed another crime or civil wrong on another specified occasion.' “ (Emphasis added.) Hence, by its plain language, K.S.A.2010 Supp. 60–455 does not apply to a circumstance involving the same occurrence. The shove of the microwave onto the floor was part of the ongoing argument. We agree with the district court. This evidence was not admitted to prove, nor did it show, that Brubaker had a propensity to commit a crime; rather, it was admitted to explain why the police were called.
We affirm Brubaker's conviction.