Opinion
111,351.
04-10-2015
STATE of Kansas, Appellee, v. Zachary BURCH, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Jeremy J. Crist, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Zachary Burch appeals his convictions for felony criminal threat and misdemeanor battery based on his claim that evidence in the form of an audio recording was improperly admitted during his jury trial. We find no abuse of discretion in admitting the challenged evidence and affirm.
Burch's convictions arise from an altercation between him and his lover, Nicholas Blecha. According to Blecha, Burch had called him and asked him to come over and talk about their relationship problems. When Blecha arrived, their discussion was calm, but when Blecha decided that he wanted to end the relationship and tried to leave, Burch blocked the front door and the situation escalated. Burch shoved Blecha into a bookshelf, put him in a headlock, shoved him to the floor, and slapped him. Blecha also asserted that Burch threatened him, asking him if he wanted to die and telling him that his brother had taught him how to knock a person unconscious. Burch told Blecha that if he left the home, he would be crawling, and he threatened to slam Blecha's head in the door. Burch also said that he would bum down Blecha's house, plant drugs in his car, and bum his car. Blecha eventually escaped and called the police. But he had the presence of mind to record the events on his cell phone after the calm discussion turned into the altercation he described.
Burch sought a pretrial order in limine to exclude the audio recording. Burch argued that it constituted unnecessarily cumulative evidence because it would repeat Blecha's testimony while only giving the jury a small portion of the total conversation taken out of context. The district court denied Burch's motion.
At trial, Blecha testified to the events of the altercation. Officer Derek Cid of the Riley County Police Department testified to his discussion with Blecha, who was standing outside, barefoot, distraught, and talking on his phone when Cid arrived. Similar testimony was provided by Officer Derek McKee who also was dispatched to the scene. Blecha played part of a 16–minute recording of the altercation that he had made on his iPhone for Cid and McKee. Blecha later emailed the recording to Cid, and the recording was burned onto a compact disc.
Burch objected to admission of the audio CD on three grounds: (1) lack of foundation as to the recording; (2) lack of foundation as to the recording's chain of custody; and (3) the needless presentation of cumulative evidence pursuant to K.S.A. 60–445. The CD was admitted over the objection and published to the jury. The recording corroborated the testimony of Blecha and his statements at the scene to the police.
Burch testified on his own behalf. He said that Blecha had come over to his house that day to discuss their relationship. He and Blecha both pushed each other around his home and that Blecha had knocked him into a bookshelf. Burch indicated that he did not remember who had pushed whom first, but he admitted slapping Blecha and testified that Blecha also slapped him during the altercation.
With respect to the various threats, Burch said he did not intend to put Blecha in fear with any of these statements, but his feelings were hurt and he wanted to hurt Blecha's feelings. Burch testified that he did not physically restrain Blecha from leaving. Blecha asked to leave many times and could have gotten past him because Blecha is much bigger than he is.
This appeal followed Burch's convictions and sentencing.
On appeal, Burch abandons his foundation arguments but asserts that the recording was cumulative evidence and its probative value was substantially outweighed by its undue prejudice. He asserts that the recording was cumulative because Blecha, Cid, and McKee had already testified to the content on the audio recording and that it was prejudicial because people say a lot of things when they are upset, but his were recorded and he did not mean them.
Generally, all relevant evidence is admissible. K.S.A. 60–407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60–401(b). A trial court has the discretion to exclude relevant evidence where the court finds its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60–445. This court reviews any such determination for an abuse of discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). Judicial discretion is abused if the district court's action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
Here, Burch objected, stating “under K.S.A. 60–455, it would be the needless presentation of cumulative evidence given.” The district court noted Burch's objection and admitted the audio recording into evidence without engaging in a probative value versus undue prejudice analysis on the record.
In State v. Reed, 282 Kan. 272, 144 P.3d 677 (2006), the defendant also asserted that an audio recording should have been excluded because it was cumulative and highly prejudicial. The district court did not do a probative value versus prejudicial effect analysis before admitting the recording into evidence. Nevertheless, the Supreme Court found no abuse of discretion in admitting the recording because it corroborated the testimony of various witnesses for the State, captured the defendant's demeanor at the time of the event, documented events and the duration of the incident, and was highly probative regarding the element of intent. 282 Kan. at 280–82.
The same can be said for the recording in this case. It is significant to note that the recording here was not a recording of Blecha's statements to the police. Rather, it was a recording of the actual events of the crimes as they unfolded. The recording corroborated the testimony of Blecha and the officers, and it captured the demeanors of Burch and Blecha at the time of the events. It was highly probative of a number of elements of the crimes charged, and it countered Burch's testimony that his comments were not meant to threaten but simply to hurt Blecha's feelings and Burch's testimony that he had not restrained Blecha from leaving.
Further, Burch makes no viable argument to exclude this evidence on grounds of undue prejudice. The recording undoubtedly hurt his defense, but this court is only concerned with whether any prejudice was undue. State v. Blaurock, 41 Kan.App.2d 178, 200, 201 P.3d 728, rev. denied 289 Kan. 1280 (2009). In our analysis we find no undue prejudice and no abuse of discretion in admitting this evidence.
Affirmed.