Opinion
No. 111,167.
2015-02-6
STATE of Kansas, Appellee, v. Michael COOKSEY, Appellant.
Appeal from Douglas District Court; Peggy C. Kittel, Judge.Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Peggy C. Kittel, Judge.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Michael Cooksey appeals following his convictions of aggravated assault and misdemeanor assault. Cooksey claims: (1) there was insufficient evidence to support his conviction of aggravated assault; (2) the district court erred in treating his prior burglary conviction as a person felony for criminal history purposes; (3) the district court erred in denying his departure motion; and (4) the district court violated his constitutional rights when it imposed an increased sentence, based upon his prior criminal history, without requiring the State to prove the criminal history to a jury beyond a reasonable doubt. For the reasons explained herein, we affirm Cooksey's convictions but vacate his sentence due to a criminal history error and remand for resentencing.
Factual and Procedural Background
Because Cooksey challenges the sufficiency of the evidence to support his conviction of aggravated assault, we will review the underlying facts in detail. On April 21, 2013, around 1:30 p.m., Shawn Teenor and his fiancee, Janna Steele, were working in the yard outside of their house on Elm Street in Lawrence. Two of Teenor's daughters were riding their bicycles in a community center parking lot across the street. Teenor and Steele were discussing lawn care options when they saw and heard a grey Ford pickup truck screech around the corner and turn into the oncoming traffic lane. The driver, later identified as Cooksey, was waving at Steele and not looking at the street in front of him.
Teenor was concerned that Cooksey could hurt his daughters biking nearby and started waving his arms, indicating that Cooksey should pay attention to the road. Cooksey drove a few more feet before stopping the truck and backing up to Teenor and Steele's driveway. Cooksey exited the truck and asked Steele several questions, such as whether Teenor was “her man” and whether she knew him. Cooksey then addressed Teenor, asking if he had a problem and advising him, “If you got a problem, come see me.” Then Cooksey got back into the truck and sped down the street.
After Cooksey drove off, Teenor began mowing his lawn. A short time later, Teenor saw the same Ford pickup truck drive down his street. The truck passed him and came to a stop at a nearby intersection. It remained at the intersection for a “fairly long period of time,” even though there was no traffic. One of the truck's doors opened, but no one exited the vehicle. Teenor again looked around to check on his daughters. Steele was standing on the driveway in front of the house. Teenor was concerned that someone was getting ready to get out of the truck and thought that he might need to record the license tag number in order to report it later.
Cooksey then exited the truck and started shouting at Teenor and Steele. Cooksey repeatedly addressed Steele, saying, “Is this your man?” and “Is this what you got?” He asked Teenor if he had a problem. Teenor attempted to memorize Cooksey's tag number by reciting it in his head before realizing that his mobile phone was in his pocket. He decided to take a photograph with his phone's camera. When Teenor raised his phone to photograph the license tag, Cooksey began to shout more loudly and swear at him. Teenor said, “I'm just going to get a picture of your license plate. Apparently I'm going to need it.” Cooksey continued to shout, and Teenor responded with remarks such as, “Get the fuck out of my neighborhood.”
At some point while taking photographs, Teenor noticed that Cooksey had a knife in his hand. The knife had a black handle, which was protruding from both the top and bottom of Cooksey's hand. Teenor recognized the blade as belonging to a knife, not a box cutter. He tried to take a photograph of Cooksey with the knife. At this point, Cooksey put the knife behind his back.
Cooksey walked back to his pickup truck and climbed in. Within seconds, the truck was moving backward toward Teenor “rapidly” with the tires spinning and blowing smoke. Teenor testified, “[I]t was clear that he was driving it back at me, so I had to jump out of the way” and onto the ground. Teenor estimated that Cooksey's truck had been parked about 20 feet away from where he stood. He testified, “I have no doubt that if I had stood there that truck would have killed me.” When Teenor stood up from the ground, he saw the pickup truck driving around the corner. Teenor proceeded to call 911.
Lawrence Police Officers Jon Barta, Eric Barkley, and Leo Souders responded to Teenor's 911 call. The officers located a truck that matched Teenor's description and contacted Cooksey and his fiancee, Jennifer Moore. Cooksey told Barta that they had been on Elm Street and had waved at Steele. He said they later went back to the house and he got out of his truck to confront Teenor. Cooksey said he was not driving the truck during either encounter with Steele and Teenor. Barta asked Cooksey if he had any weapons, and Cooksey responded that there was a gray box cutter knife in the truck's center console. The officers noticed a large black-handled kitchen knife behind the driver's seat. They later collected the knife, and it was admitted into evidence at trial.
Barkley read Cooksey his Miranda rights, and Cooksey agreed to speak with him about the incident with Teenor. Cooksey said that he had encountered Teenor twice at 7th and Elm. According to Cooksey, Moore was driving at the time and had waved to Steele as they drove past the house. During the second encounter, Teenor was yelling and taking photos with his cell phone. Cooksey said he accidentally dropped his carpenter knife as he got out of his truck. Moore climbed into the passenger's seat during his confrontation with Teenor because she was frightened. Cooksey stated that when he was ready to leave, he got into the driver's seat and accidently put the truck in reverse and backed up quickly. He slammed on the brakes, put the truck in drive, and then peeled away.
On April 22, 2013, the State charged Cooksey with two counts of aggravated assault with a deadly weapon, one count in relation to the Ford pickup truck and one count in relation to the knife. The district court conducted a 3–day jury trial beginning September 18, 2013. Teenor, Steele, Barta, Barkley, and Souders testified for the State. Cooksey testified in his own defense. According to Cooksey, he was driving in his Ford pickup truck with Moore as a passenger. As he turned the corner at the intersection of 7th and Elm, Cooksey spotted Steele—an acquaintance he and Moore had not seen for a while—leaning up against the bumper of a parked car with a man he did not know, later identified as Teenor. Cooksey honked the horn and waved to Steele.
Cooksey testified that Teenor “flipped [him] off and mouthed the words “fuck off several times. In response, Cooksey stopped his truck and opened the door because he was unable to roll down his driver's side window. Cooksey asked Steele “if that was her man.” Steele said yes. Cooksey acknowledged that he made a “smart aleck” remark directed at Teenor. He made this remark because Teenor seemed agitated about the fact that Cooksey and Moore had honked and waved at Steele.
Cooksey testified that he and Moore went to meet with a friend for about 10 minutes and then drove back past Teenor and Steele's house. As Cooksey drove past the couple's driveway, he noticed that Teenor was mowing the grass. After Cooksey stopped at the stop sign at 7th and Elm, he looked in his rearview mirror and saw Teenor push his mower into the street and pull out his cell phone. Teenor began to take photographs and walk toward Cooksey's truck. Cooksey commented to Moore, “What's this guy doing?” and continued to watch him in the rearview mirror. When Teenor came within a foot of the truck, Cooksey turned off the ignition and opened the driver's side door. He testified that he got out of the truck and asked Teenor why he was taking photographs.
Cooksey testified that he walked toward Teenor's lawn mower, stopping about 5 feet away from it. He asked Teenor, “Are we done?” Cooksey started walking back to his truck, but Teenor “started running off his mouth” and making comments that Cooksey perceived as “instigating more problems.” Cooksey estimated that he came within 5–6 feet of Teenor at the closest point in the confrontation. Cooksey testified that he did not have a knife in his hand, nor did he threaten Teenor. Cooksey was unsure whether his carpenter's knife was in his pocket at the time.
Cooksey started his truck and reached down to shift it into gear. When he popped the clutch, the truck “slammed backwards” in reverse. The shifting mechanism in Cooksey's truck was broken, so he had attached a pair of vice grips to the broken shaft of the transmission. “Every once in a while” when Cooksey tried to shift the truck, it would go in the wrong gear. Cooksey testified that he did not intentionally put his truck in reverse and estimated it traveled less than 2 feet before he immediately slammed on the brakes. Cooksey then shifted the truck into the proper gear and peeled his tires as he drove off around the corner. Cooksey testified that he was “pretty frustrated. Upset, angry, tired. Just kind of confused really about the whole situation. I didn't really understand what the whole problem was or why he was taking pictures of my truck.”
Cooksey drove a short distance before pulling over and switching seats with Moore. Cooksey testified he did so because he had a suspended driver's license and knew he was not supposed to be driving. After driving for less than two blocks, police officers stopped Cooksey's truck. Cooksey admitted that he “basically lied” to the officers and told them that Moore was driving when they encountered Teenor and Steele. Cooksey showed the officers his utility knife in the truck's console. He said the knife the officers found behind the driver's seat had been in the truck for about a year. Cooksey said the knife was not in his possession during either of his encounters with Teenor.
After hearing the evidence, the jury found Cooksey guilty of aggravated assault with the Ford pickup truck, but on the charge involving the knife, the jury found Cooksey guilty of the lesser included offense of simple assault. Prior to sentencing, Cooksey filed a motion for a dispositional departure, asking for probation. He also filed a notice of objection to his criminal history, arguing that his 1988 conviction of attempted burglary in Johnson County was incorrectly scored as a person felony.
The district court held Cooksey's sentencing hearing on November 1, 2013. Regarding his objection to his criminal history score, Cooksey candidly acknowledged that he had made the same objection at sentencing in a separate 2012 criminal case and the district court had heard argument and rejected his objection. Nevertheless, Cooksey reasserted his objection in the present case. The parties did not argue further, and the district court took judicial notice of its prior ruling and found that the prior burglary conviction was properly scored as a person felony.
Cooksey then argued for a sentencing departure, requesting probation rather than presumptive imprisonment. The district court denied the motion and sentenced Cooksey to 27 months' imprisonment for aggravated assault and 30 days in jail for the misdemeanor assault, with the sentences to run concurrently. Cooksey timely appealed the district court's judgment.
Sufficiency of the Evidence
On appeal, Cooksey first challenges the sufficiency of the evidence to support his conviction of aggravated assault. Specifically, Cooksey argues that the State failed to present sufficient evidence that he knowingly placed Teenor in reasonable apprehension of bodily harm with his Ford pickup truck. The State counters that it presented sufficient evidence to support the aggravated assault conviction.
When the sufficiency of evidence is challenged in a criminal case, the appellate court reviews all the evidence in the light most favorable to the prosecution and must be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there is sufficient evidence to support a conviction, the appellate court will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525.
K.S.A.2014 Supp. 21–5412(a) defines assault as “knowingly placing another person in reasonable apprehension of immediate bodily harm.” Aggravated assault is assault committed with a deadly weapon. K.S.A.2014 Supp. 21–5413(b)(1). The court instructed the jury that in order to establish the charge of aggravated assault, the State had to prove that Cooksey knowingly placed Teenor in reasonable apprehension of immediate bodily harm with a deadly weapon, i.e., the Ford pickup truck. The court defined “knowingly” as follows: “A defendant acts knowingly when the defendant is aware that his conduct was reasonably certain to cause the result complained about by the State.”
Cooksey contends that he did not intend to back up his pickup truck toward Teenor and thus he could not have been reasonably certain that his action would cause immediate bodily harm. He points to his testimony that the gear shift in his truck was not operating properly and shifted into reverse by mistake. Cooksey testified that he did not intentionally try to back his truck into Teenor. Although Cooksey acknowledges there is evidence that he argued with Teenor prior to the alleged assault, he asserts an argument alone is insufficient to contradict his statements that he reversed his truck by accident.
Contrary to Cooksey's claim, the State presented sufficient evidence to support a conviction of aggravated assault. Teenor testified that after a tense second confrontation between himself and Cooksey, Cooksey walked back to his Ford pickup truck, which was parked about 20 feet away from Teenor. Teenor testified that Cooksey put the truck in reverse, spun his tires, and started backing up quickly towards him. Cooksey drove the truck directly toward Teenor, who had to jump out of the way to avoid being hit. Teenor testified that had he not jumped out of the truck's path, he would have been killed. Steele also testified that Teenor would have been hit by Cooksey in his truck if he had not jumped out of the way. Cooksey then sped off down the street in his truck.
It is the jury's prerogative to decide the credibility of witnesses, the weight to be given to evidence, and the reasonable inferences to be drawn from the evidence. State v. Burton, 35 Kan.App.2d 876, 882, 136 P.3d 945, rev. denied 282 Kan. 792 (2006). Cooksey essentially is asking this court to reweigh the evidence and the witnesses' credibility, tasks which this court is unable to perform on appeal. Williams, 299 Kan. at 525. A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004). While much of the evidence against Cooksey was circumstantial, there was sufficient evidence from which the jury could have inferred that he knowingly placed Teenor in reasonable apprehension of bodily harm with his Ford pickup truck. When the evidence is considered in the light most favorable to the State, the jury had sufficient evidence to reasonably conclude Cooksey was guilty of aggravated assault.
Sentencing Issues
Cooksey next argues that the district court erred in treating his 1988 conviction of attempted burglary in Johnson County as a person felony for criminal history purposes. Cooksey preserved this argument by objecting to his criminal history prior to sentencing. This issue requires this court to interpret language within the relevant provisions of the revised Kansas Sentencing Guidelines Act (KSGA). K.S.A.2014 Supp. 21–6801 et seq. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 90 (2014). Furthermore, whether a prior conviction is properly classified as a person offense or a nonperson offense is a question of law over which an appellate court exercises de novo review. State v. Murdoch, 299 Kan. 312, 314, 323 P.3d 846 (2014), modified on other grounds by Supreme Court order September 19, 2014.
Without engaging in extensive analysis, we note that in State v.. Dickey, 50 Kan.App.2d 468, 489, 329 P.3d 1230 (2014), rev. granted October 31, 2014, this court recently held that the district court erred by classifying the defendant's pre-KSGA juvenile adjudication of burglary as a person felony for eriminal history purposes because prior to the enactment of the KSGA, the Kansas burglary statute did not distinguish between residential and nonresidential structures. Although the decision in Dickey is not final, we adopt its reasoning as applied to Cooksey's case. See Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Thus, we conclude the district court erred in scoring Cooksey's pre-KSGA burglary conviction as a person felony for criminal history purposes. The case must be remanded so that the district court can resentence Cooksey applying the proper criminal history score.
Cooksey also argues that his pre-KSGA Kansas conviction must be scored as a nonperson felony for criminal history purposes pursuant to Murdoch. In Murdoch, our Supreme Court held that when calculating a defendant's criminal history that includes out-of-state convictions committed prior to the enactment of the KSGA, the out-of-state convictions must be classified as nonperson felonies. 299 Kan. 312, Syl. ¶ 5. The State spends a substantial amount of its brief arguing that the holding in Murdoch does not apply to in-state pre-KSGA convictions. Because we are remanding for resentencing based on Dickey, we do not need to address the Murdoch issue in this opinion.
Next, Cooksey claims the district court erred in denying his motion for a dispositional departure to probation. Cooksey acknowledges that because he committed his crime while on felony probation, the district court had the authority to sentence him to prison under K.S.A.2014 Supp. 21–6604(f)(1) without finding that departure factors existed. As the State points out, K.S.A.2014 Supp. 21–6820(c)(1) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is within the presumptive guidelines sentence for the crime. Therefore, the State is correct in concluding that this court lacks jurisdiction to review Cooksey's challenge to his presumptive sentence.
Finally, Cooksey argues that the district court violated 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), when it imposed an increased sentence based upon his prior criminal history without requiring the State to prove the criminal history to a jury beyond a reasonable doubt. Cooksey acknowledges this issue previously was decided and rejected by our Supreme Court in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no evidence to suggest that our Supreme Court is considering a departure from its holding in Ivory. State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory ), overruled on other grounds by State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014).
Affirmed in part, dismissed in part, sentence vacated in part, and remanded with directions for resentencing.