Opinion
No. 105,543.
2012-08-3
STATE of Kansas, Appellee, v. Mark FIELDS, Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jennifer L. Myers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM:
Mark Fields and his friend, Dante, confronted a couple in the parking lot of Happy Foods West (Wild Woody's) as the couple was loading groceries into their car. They assaulted the woman with a gun and stole her purse. Fields was convicted of aggravated robbery and aggravated assault. He raises several claims of error on appeal.
Fields claims that the district court improperly admitted evidence under K.S.A.2010 Supp. 60–455 of an incident he was involved in a few minutes earlier at Howdy's Liquor Store (Howdy's) and that the accompanying limiting instruction was erroneous. We find the evidence of Fields' actions at Howdy's was relevant to prove the disputed fact of the identity of the assailant at Wild Woody's and that the limiting instruction was not erroneous. Next, Fields properly points out the district court's error in giving an eyewitness instruction that contained a degree of certainty factor. However, we find that there is no real possibility the jury would have rendered a different verdict if the instruction had not been given. We also reject Fields' claim that an aiding and abetting instruction was not supported by the evidence. Finally, the district court's determination that a weapon was used in commission of the crime resulting in a requirement that Fields register under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , did not violate Fields' constitutional right to a jury trial. Accordingly, we affirm Fields' conviction and sentence.
Factual and Procedural History
On the evening of February 1, 2010, Fields drove with his friend Dante, to Howdy's at 2301 Central Avenue in Wyandotte County. Fields was driving his girlfriend's, Keisha Wright, red Dodge Durango SUV. Fields and Dante approached the front of the store at 6:52 p.m. to try to buy beer. They were wearing coats with hoods and had scarves over their faces. Tonja VanDyke was the clerk at Howdy's. The liquor store doors automatically lock in the evening hours and in order for anyone to enter the store VanDyke has to physically let them in. Because they had scarves covering their faces, VanDyke declined to allow Fields and Dante into the store. Fields removed his scarf, reapproached the door, asked if he could purchase a beer, and VanDyke told him no. It is clear from the Howdy's store video that Fields is taller and thinner than Dante and has a lighter complexion. They left the area at 6:55:27 p.m. Fields returned to the driver's side of the vehicle and drove away. VanDyke called the police “to tell ‘em what had happened.” The call went out to police as “a robbery in progress,” but when the police arrived they realized there had been no robbery.
Around 7 p.m., Lucy Melton testified that she and a friend, Raymond Criswell, went to the Wild Woody's grocery store at 6700 Kaw Drive in Wyandotte County to pick up some groceries. Wild Woody's is 6 minutes and 35 seconds from Howdy's. As Melton and Criswell pulled into a parking spot, their vehicle nearly collided with a red SUV that was trying to park in the same spot. The SUV turned out to be Wright's red Dodge Durango, the same one seen just a few minutes earlier at Howdy's. Melton and Criswell parked and went into the store, but the two occupants of the SUV remained in the vehicle. Melton and Criswell shopped for approximately 20 minutes and returned to their vehicle. The occupants of the SUV were still seated in their vehicle. Melton and Criswell started putting the groceries in the trunk of their vehicle when Melton noticed both occupants of the SUV exit their vehicle, walk toward the store, turn around, and then walk towards Melton and Criswell. One man stood in between Melton and Criswell. The other man hit Melton with a gun, Melton and her assailant struggled over her purse, but the assailant was able to take her purse and the two men escaped in the SUV.
Before the assailants could leave the parking lot, Jack Bledsoe, who heard the commotion as he was leaving the lot, rammed the front of the SUV with his truck. As the SUV backed out, Bledsoe rammed the SUV again, this time on the front left of the SUV. The SUV drove out of the parking lot with Bledsoe following, and he was able to ram the SUV again, this time on the rear bumper, causing it to veer off the road and eventually into a ditch. The occupants of the SUV left the area.
The crime was reported to police at 7:24 p.m. The police recovered several items from the SUV, including Melton's purse and a cell phone that had Fields' picture on it. The cell phone also had text messages from Wright to Fields at approximately 7:52 p.m.
Fields was charged with aggravated robbery and aggravated assault.
At trial, Melton described the two men as one younger, shorter, clearly black, wearing a hoodie and black pants with heavy white threading. The other man was taller with a lighter complexion than the other, also wearing a hoodie. After the incident, Melton was shown a photo lineup and she identified Fields in the lineup as her assailant. Melton also identified Fields in the courtroom as her assailant.
Wright testified that Fields left with her SUV between 5:30 and 6 p.m. Sometime after that, she received a call from Fields. Subsequently she sent text messages to Fields to the same number from which she had received the call.
Fields testified that he went to the liquor store with his friend Dante and Dante's cousin after using cocaine at Dante's house. Fields drove Wright's SUV to the liquor store, and he and Dante went to purchase beer. When they were not allowed inside to buy beer, they left the liquor store. Fields testified that he let Dante drive because Fields did not have a driver's license. Dante dropped Fields off at Dante's house at 29th and Minnesota around 7 or 7:05 p . m. and then Dante and Dante's cousin left in Wright's SUV. Fields denied being involved in the incident at Wild Woody's. He claimed the cell phone found in the SUV belonged to Dante, although he admitted calling Wright from it.
The State also introduced telephone conversations from the Wyandotte County jail. During one phone call, Fields indicated that he was unable to call the woman on the other end of the line because “my phone was in the car.” He continues, “That's why I ain't been callin' you though, my shit is in the car trashed. I wrecked the car, babe.” She inquired further, “You wrecked it?” He replied, “Yes.” She asked what kind of car it was and he replied, “Durango.” He tells her that he does not know what he was doing that night or what he was on. In a different conversation, this one with Wright, she advised Fields she had received her truck back from the tow lot. Fields told Wright “that nigga hit your truck ... [he] hit the front of your [truck].”
The jury found Fields guilty on both counts. He was ultimately sentenced to 78 months' imprisonment. Fields filed a timely notice of appeal.
The Admission of Evidence Surrounding the Incident at Howdy's
Fields contends the district court erred when it allowed the admission of evidence regarding the incident at Howdy's. Fields argues that the evidence was not admissible under K.S.A.2010 Supp. 60–455 because it was not a prior crime or civil wrong, it was not relevant, and it was highly prejudicial.
Before trial, the State filed a motion asking the district court to determine if the evidence revolving around the liquor store incident would be admissible under K.S.A.2010 Supp. 60–455. At the hearing on the motion, Fields indicated that he would be willing to stipulate that he was the one who approached the liquor store, but he argued that the evidence revolving around the liquor store incident was not relevant. The district court determined that the evidence was relevant to show Fields' identity and allowed its admission.
On the day of trial, the admissibility of the evidence was again raised by Fields. The State again asserted that the liquor store evidence was relevant and admissible to show the identity of the person involved in both incidents, that Fields was in the SUV before the robbery, and that the timing between the liquor store incident and the robbery at Wild Woody's was very important. The district court again deemed the liquor store evidence admissible. Finally, during trial, when the Howdy's surveillance video was presented, Fields objected to its admission but was overruled.
When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan 252, 261–62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (citing K.S.A. 60–401[b] ). The issue of whether evidence is probative is reviewed under an abuse of discretion standard whereas the materiality of evidence is reviewed de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010). However, even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. Appellate courts review this determination for abuse of discretion. State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009); see also State v. Dixon, 289 Kan. 46, 69–70, 209 P.3d 675 (2009) (applying the above standards of review to an evidentiary issue involving non-K.S.A. 60–455 evidence).
The incident at Howdy's was clearly relevant. The only real issue in the case was the identity of the assailants at Wild Woody's. Fields' claimed he was not there and the State alleged that he was. To establish that he was there, the State alleged that he was at Howdy's just a few minutes earlier, that he and Dante matched the descriptions of the assailants at Wild Woody's, that contrary to his testimony, Fields drove the SUV away from Howdy's, and that the short time between the two incidents, given the proximity of the two stores, was insufficient for Fields to have been dropped off somewhere else. Identity was a material fact in the case, and the incident at Howdy's was probative of the identity of the Wild Woody's assailant. In addition, the district court did not abuse its discretion in finding that the evidence was not unduly prejudicial. The clerk at Howdy's testified that she called the police to “to tell ‘em what had happened.” The call went out to police as “a robbery in progress,” but two police officers testified that when they arrived they realized there had been no robbery. So there was no evidence presented that Fields was involved in any crime or bad acts at Howdy's. The incident was admissible as relevant, independent of any analysis under K.S.A.2010 Supp. 60–455.
When evidence is presented that a defendant may have committed a crime on another occasion, the danger exists that this prior crime evidence will be considered by the jury to prove that (1) because the defendant committed a similar crime before, it might properly be inferred that he or she committed this one; (2) the defendant deserves punishment because he is a general wrongdoer; or (3) because the defendant is a criminal, the evidence put in on his behalf should not be believed. See State v. Gunby, 282 Kan. 39, 48–49, 144 P.3d 647 (2006) (citing State v. Davis, 213 Kan. 54, 58, 515 P,2d 802 [1973] ).K.S.A.2010 Supp. 60–455 was adopted to address this concern. It provides:
“(a).... [E]vidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion [but,]
“(b) ... such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.) K.S.A.2010 Supp. 60–455.
A district court's analysis of whether evidence is admissible under K.S.A.2010 Supp. 60–455 is very similar to the relevance inquiry set forth above. It requires the court to first determine whether the evidence is relevant to prove a material fact, e.g., whether the fact concerns intent, motive, knowledge, or identity. Appellate review for materiality is de novo. The court must then determine whether the material fact is in dispute. The district court must then determine whether the evidence is relevant to prove the disputed material fact. Appellate courts review the district court's relevance determination for abuse of discretion. Next, the court must determine whether the probative value of the evidence outweighs the potential for creating undue prejudice. Appellate review of this determination is also for abuse of discretion. Finally, if the court decides to admit the evidence, the court must give a limiting instruction notifying the jury of the specific purpose for the admission of the 60–455 evidence. Riojas, 288 Kan. at 382–83.
We have already determined that the incident at Howdy's was relevant to prove the disputed material fact of the identity of the assailants at Wild Woody's, that the evidence was probative, and that the probative value outweighed any potential for creating undue prejudice. This is particularly true in light of the fact that testimony was presented by the State that no crime was committed at Howdy's. The district court did give a limiting instruction which will be discussed in more detail later.
Therefore, the district court did not err when it admitted the evidence. Whether the district court admitted the evidence under K.S .A.2010 Supp. 60–455 or under the standard evidentiary rules makes little difference because the admission of the evidence was correct under both.
The Limiting Instruction
Fields argues that the district court's limiting instruction was clearly erroneous because it contained a factual finding that the evidence tended to show that a crime had been committed at Howdy's.
When admitting evidence under K.S.A.2010 Supp. 60–455, a district court “must give a limiting instruction informing the jury of the specific purpose for admitting whatever 60–455 evidence comes in. [Citations omitted.]” Riojas, 288 Kan. at 383. However, Fields neglected to object to the limiting instruction so this court's review of the limiting instruction is whether it was clearly erroneous. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” 288 Kan. at 451–52.
Although the district court clearly found that the Howdy's evidence was admissible outside of K.S.A.2010 Supp. 60–455, seemingly out of an abundance of caution, the district court gave the following limiting instruction: “Evidence has been admitted tending to prove that the defendant committed a crime other than the present crime charged, to-wit: the incident at Howdy's Liquor Store. This evidence may be considered solely for the purpose of showing the defendant's identity regarding the crime charged.” The limiting jury instruction language is the suggested language from the Pattern Instructions for Kansas (PIK). PIK Crim.3d 52.06.
We share Fields' concern that the instruction stated that the evidence tended “to prove that the defendant committed a crime other than the present crime charged” when the testimony clearly showed that the police did not believe a crime had been committed at Howdy's. But the district court appropriately pointed out that, at a minimum, Fields' behavior at Howdy's was suspicious and caused the clerk enough concern that she did not let him in the store and called the police. So cautioning the jury that the evidence could only be considered to show Fields' identity was not improper. In addition, even if the instruction was erroneous, given the other evidence presented—including Fields' jail house admissions—we find that there is no real possibility the jury would have rendered a different verdict if the instruction was not given at all or if it had been modified to reflect a reference to suspicious behavior rather than a crime.
The Outdated Eyewitness Identification Instruction
Fields asserts that the district court clearly erred when it gave the outdated PIK instruction regarding eyewitness identification because the instruction improperly focused on irrelevant factors, and as such, the instruction prejudiced Fields requiring the reversal of his convictions.
Fields neglected to object to the eyewitness instruction; therefore, upon review we apply a clearly erroneous standard. See K .S.A. 22–3414(3); Martinez, 288 Kan. at 451. Again, “[a]n instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” 288 Kan. at 451–52.
Although Fields takes issue with the entire eyewitness jury instruction, which was taken directly from PIK Crim.3d 52.20, he focuses on the following factor: “[t]he degree of certainty demonstrated by the witness at the time of any identification of the accused.” Our Supreme Court has recently discussed this factor and has disapproved of its use. See State v. Mitchell, 294 Kan. 469, Syl. ¶ 4, 275 P.3d 905 (2012) (it was error for the district court to instruct the jury on the degree of certainty factor); State v. Anderson, 294 Kan. 450, Syl. ¶ 2, 276 P.3d 200 (2012) (same).
Therefore, the district court erred when it instructed the jury on the degree of certainty factor. However, the analysis does not end there. Next, this court must determine whether it is firmly convinced there is a real possibility the jury would have rendered a different verdict if the degree of certainty factor had not been included in the instruction. In doing so, this court should review the record to see if “an expression of certainty by the eyewitness was communicated to the jury, and, if so, the nature and extent of the certainty expressed.” Anderson, 294 Kan. at 458.
Melton was shown a photo lineup and she indicated that Fields was her assailant, but she did not express her degree of certainty. Thus, because Melton did not express a degree of certainty during her testimony, the exclusion of the degree of certainty factor would not have created a real possibility that the jury would have rendered a different verdict as to Melton's testimony.
However, Detective Mark Glaspie testified that when he showed Melton the photo lineup, she “immediately” identified Fields. The State asked Glaspie, “Did she have any hesitation when she made that selection?” and Glaspie responded, “Not a bit.” This testimony tends to suggest an expression of a degree of certainty when Melton identified Fields in the photo lineup.
Therefore, we turn to whether the exclusion of the degree of certainty factor would have created a real possibility that the jury would have rendered a different verdict. We find it would not have changed the verdict in this case. Fields' counsel questioned Melton regarding Fields' appearance that night, and she was able to provide some description. Her description generally matched the description of Fields as seen in the Howdy's video. She was able to identity Fields in the courtroom. Moreover, the State presented circumstantial evidence of the liquor store incident that placed Fields within the correct time frame to commit the crime and it linked him to being the driver of the SUV used to leave the scene of the crime. His jailhouse telephone calls after the fact also linked him to the crime.
There is no serious question about the reliability of Melton's identification. And there is ample circumstantial evidence to support the verdict. Thus, it cannot be said that the exclusion of the degree of certainty factor would have created a real possibility that the jury would have rendered a different verdict.
The Aiding and Abetting Instruction
Fields argues that the district court erred when it gave the jury an aiding and abetting instruction over Fields' objection because there was no evidence presented at trial to support the instruction.
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The following is the aiding and abetting jury instruction given by the district court and is the recommended instruction under PIK Crim.3d 54.05:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
Although the State's principal theory was that Fields was the main assailant, there was evidence presented at trial that could call into question Fields' status and instead place him as the aider and abettor.
Melton testified that she and Criswell went to Wild Woody's to pick up some groceries. After they were finished shopping, Melton and Criswell were putting the groceries in the trunk of their vehicle when Melton noticed both occupants of the SUV exit their vehicle, walk toward the store, turn around, and then walk towards Melton and Criswell. One man stood in between Melton and Criswell. The other man hit Melton with a gun, Melton and her assailant struggled over the purse, but the assailant was able to take her purse and escape in the SUV.
In addition, several witnesses testified that there were two assailants, but none of the witnesses could identify Fields as the main assailant. Melton testified that her assailant reentered the SUV on the driver's side whereas a different witness testified that the main assailant entered the SUV on the passenger side. Moreover, the DNA samples from the purse indicated that neither Melton nor Fields were major contributors, suggesting that although Fields may have been present, he was not the assailant who took the purse. There was evidence presented at trial to support the aiding and abetting jury instruction. Thus, the instruction properly and fairly states the law as applied to the facts and could not have misled the jury.
Cumulative Error
Fields contends that the cumulative errors at his trial substantially prejudiced his right to a fair trial. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Although the district court erred when it gave the degree of certainty factor in the eyewitness identification jury instruction, it was determined that the error would not have created a real possibility that the jury would have rendered a different verdict. In addition, as stated above, one error does not constitute cumulative error. Therefore, cumulative error did not deny Fields the right to a fair trial.
The Requirement That Fields Register as an Offender
Fields asserts, based on Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the district court violated his constitutional rights by ordering him to register as an offender without a jury determination of the fact that he committed the crime with a deadly weapon. Because this presents a question of law, our review is unlimited. See State v. Chambers, 36 Kan.App.2d 228, 232, 138 P.3d 405,rev. denied 282 Kan. 792 (2006).
At the sentencing hearing, the district court found that Fields used a firearm during the commission of the crime. As such, the district court required Fields to register with the sheriff's office in the counties in which he resides after he is released from prison.
Fields acknowledges that this issue was presented to and rejected by this court in Chambers, 36 Kan.App.2d at 239 (district court found that burglary conviction was sexually motivated, which required defendant to register under the Kansas Offender Registration Act [KORA], K.S.A.2005 Supp. 22–4901 et seq.). In addition, our court has specifically held that a district court's determination that a weapon was used in the commission of the crime, thus requiring the defendant to register under KORA, was not a violation of the defendant's constitutional right to a jury trial. State v. Unrein, 47 Kan.App.2d 366, 372, 274 P.3d 691 (2012), petition for rev. filed May 21, 2012 (pending).
Chambers, upon which Unrein significantly relied, distinguished an increased sentence from an increased punishment based on Supreme Court precedent. An increased sentence implicates Apprendi whereas an increased punishment does not. 36 Kan.App.2d at 237–39 (citing State v. Carr, 274 Kan. 442, 444, 53 P.3d 843 [2002] ).Chambers and Unrein both found that the registration requirement under KORA was an increase in punishment and not in the sentence; thus, Apprendi does not apply. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that our Supreme Court is departing from prior precedent in this matter.
Therefore, the district court's factual finding that a deadly weapon was used in the commission of the crime, resulting in Fields' registration under KORA, did not violate Fields' constitutional rights.
Affirmed.