Opinion
No. 108,883.
2013-11-22
STATE of Kansas, Appellee, v. Jeffery Todd HICKS, Appellant.
Appeal from Barton District Court; Hannelore Kitts, Judge. Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Barton District Court; Hannelore Kitts, Judge.
Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Douglas A. Matthews, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PIERRON, J.
Jeffery Todd Hicks appeals his convictions for theft and aggravated robbery. He argues the district court committed reversible error in instructing the jury on theft, aggravated robbery, and jury deadlock.
The State charged Hicks with aggravated burglary, aggravated assault, two counts of aggravated robbery, and three counts of criminal restraint, all stemming from an alleged home invasion. After being convicted by a jury on all counts, Hicks received a new trial due to a conflict of interest—defense counsel had previously represented one of the victims.
A second jury trial was held at which all three victims and various law enforcement officials testified to the following facts. On September 22, 2010, Abby Wilkinson was watching a movie with her boyfriend, Jesse Rogers, and her roommate, Jason King, at their home in Great Bend, Kansas. Their dogs began barking, and when Rogers went to check on them, he was met by two men with guns. The intruders were wearing hats and glasses and one had a bandage over his face. One of the intruders—who Rogers and King later identified as Hicks—pointed a small sawed-off shotgun at Rogers' face.
The intruders told Wilkinson, Rogers, and King to look at the living room floor and asked for King. They told Wilkinson to put a blanket over her head, and after she complied, they began speaking to Rogers and King. Hicks ordered Rogers to disconnect the television and PlayStation 3. Rogers did not want to help but was persuaded by the gun. Rogers saw King disconnecting his computer equipment. From her place on the couch, Wilkinson heard “a lot of commotion of things being moved.”
At some point, the intruders had Wilkinson, Rogers, and King kneel facing the couch while their hands were duct-taped behind their backs. Rogers heard “all the scuffling of everything being gathered together.” The items belonging to Rogers that were taken included a television, a Nintendo Wii, a big box of movies, $250 in cash, and tattoo equipment. The items belonging to King that were taken included a television, a PlayStation 3, multiple games, and two computers. Wilkinson, Rogers, and King heard the back door slam as the intruders left. Rogers and King freed themselves from their duct-tape, Rogers helped Wilkinson up, and the three ran to a neighbor's house and called 9–1–1.
Police met Wilkinson and King at the scene. They appeared “[e]motional, upset, a little bit hysterical.” Wilkinson had red marks on her wrists. King cried at one point. Their house was in “[d]isarray” and looked as if it had been “ransacked.” The entertainment center was empty and had a dust outline of the missing property. Ducttape was found in the living room. The officers did not find any drugs, guns, or illegal items in the house, but they were not searching for them.
After being identified by Rogers and King, Hicks was subsequently arrested with two sawed-off shotguns and two knives in his possession. After receiving and waiving his Miranda rights, Hicks told police he had had prior dealings with King, who was a drug dealer. Hicks had met King at a baseball diamond, told him he wanted an ounce of cocaine, and fronted him $1,000, but King never delivered the drugs. A few days later, Hicks told a friend what had happened. They borrowed a friend's truck, found out where King lived, and paid him a visit. They entered King's house, Hicks with a knife and his friend with a pistol. Hicks threatened King with the knife over the drug deal gone bad. Hicks wanted his $1,000 back. Hicks and his friend “loaded [property from the house] in the back of the truck and left with it,” taking it to “[v]arious places in Little Mexico.”
Rogers testified he had not known the intruders before the night in question and did not give them permission to take his belongings. King testified he might have met Hicks once or twice before the night in question, but he had never conducted any business with him. King further testified he may have told the intruders they could take his belongings as long as no one got hurt. King stated that even if they had not had guns, he might have given them his belongings if they had needed them that badly; and before the intruders had entered his house, he had not wanted to give anyone his belongings.
At the close of evidence, the district court instructed the jury on the elements of aggravated robbery—a charged crime—as well as on the elements of robbery and theft—lesser included offenses. The court also gave an instruction on jury deadlock.
The jury found Hicks guilty of a theft from King, the aggravated robbery of Rogers, the aggravated assault of Wilkinson, criminal restraint of all three victims, and aggravated burglary.
Granting Hicks a durational departure, the district court sentenced him to a controlling term of 144 months' imprisonment—144 months for aggravated robbery to run concurrent with the sentences for the other crimes. Hicks timely appeals.
Hicks argues the district court's jury instructions on theft, aggravated robbery, and jury deadlock were clearly erroneous. Specifically, he claims the instruction on theft, as a lesser included offense of aggravated robbery, was missing an element of the crime (intent to permanently deprive); the instruction on aggravated robbery failed to define an element of the crime (taking); and the instruction on jury deadlock placed an undue burden on the jury to reach an agreement based on weak evidence.
Our Supreme Court recently clarified the standard of review applicable to jury instruction issues in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012). The threshold determination is whether the issue is reviewable. A defendant who did not object at trial can raise a jury instruction issue on appeal but bears the burden of showing clear error. 295 Kan. 506, Syl. ¶ 3 (citing K.S .A. 22–3414[3] ). The appellate court must then exercise unlimited review to determine whether an instruction error occurred, before making a de novo determination of whether the instruction error is reversible. 295 Kan. 506, Syl. ¶¶ 4–5 (instruction is clearly erroneous where the reviewing court “is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”).
The use of PIK instructions is not mandatory but it is strongly recommended. State v. Cox, 297 Kan. 648, 662 304 P.3d 327 (2013). This is because “ ‘pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions.’ “ State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). Deviating from a pattern instruction risks inclusion of erroneous language or omission of words that may be essential to a clear statement of the law. State v. Tully, 293 Kan. 176, 197, 262 P.3d 314 (2011).
Jury Instruction on Theft
At the close of evidence, the district court gave the jury this theft instruction:
“Instruction Number [5/9]. If you do not agree that Jeffery Hicks is guilty of aggravated robbery or robbery, you should then consider the lesser included offense of theft of property of the value of at least $1,000 but less than $25,000. To establish this charge, each of the following claims must be proved: That [King/Rogers] was the owner of the property in question; that Jeffery Hicks obtained by threat control over the property; that the value of the property was at least $1,000 but less than $25,000; and that this act occurred on or about the 22nd day of September 2010 in Barton County, Kansas.”
Hicks' proposed jury instructions did not include an instruction on theft. But at the jury instruction conference, the district court went through each of the proposed instructions and Hicks suggested that an unspecified element needed to be removed from Instructions 5 and 9. Therefore, Hicks bears the burden of showing clear error, and we must first determine whether an instruction error occurred. See Williams, 295 Kan. 506, Syl. ¶¶ 4–5.
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property: (1) Obtaining or exerting unauthorized control over property; (2) obtaining by deception control over property; (3) obtaining by threat control over property; or (4) obtaining control over stolen property knowing the property to have been stolen by another.” K.S.A. 21–3701(a); see K.S.A. 21–3701(b)(3) (“Theft of property of the value of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony.”).
An instruction error occurred here. The district court has a duty to inform the jury of every essential element of the crime charged. State v. Crawford, 247 Kan. 223, 227, 795 P.2d 401 (1990). The elements of theft listed in PIK Crim.3d 59.01 are:
“1. That ____ was the owner of the property;
“2. That the defendant (obtained) (exerted) unauthorized control over the property;
OR
That the defendant obtained control over the property by means of a false statement or representation which deceived ____ who had relied in whole or in part upon the false representation or statement of the defendant;
OR
That the defendant obtained by threat control over property;
OR
That the defendant obtained control over property knowing the property to have been stolen by another;
“3. That the defendant intended to deprive ____ permanently of the use or benefit of the property; “4. That the value of the property was ($100,000 or more) (at least $25,000 but less than $100,000) (at least $1,000 but less than $25,000) (less than $1,000); and
“5. That this act occurred on or about the ____ day of ____, ____, in ____ County, Kansas.” (Emphasis added.)
The district court instructed the jury using PIK Crim.3d 59.01 but mistakenly omitted the third element. Therefore, we must determine whether the instruction error is reversible.
“[The Kansas Supreme Court] has made the omission of an element of a crime subject to harmless error analysis where the reviewing court examines the record to determine whether the omitted element was uncontested and supported by such overwhelming evidence that the jury verdict would have been the same without the omission. State v. Daniels, 278 Kan. 53, 62, 91 P.3d 1147 cert. denied543 U.S. 982 (2004) (citing Neder v. United States, 527 U.S. 1, 4, 119 S.Ct. 1827, 144 L.Ed.2d 35 [1999], holding that the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 [1967], applies to ajury instruction that omits an element of an offense).” State v.. Richardson, 290 Kan. 176, 182–83, 224 P.3d 553 (2010).
Under this standard, the reviewing court determines whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is “no,” the instruction error may be deemed harmless. State v. Reyna, 290 Kan. 666, 680, 234 P.3d 761 (2010).
The district court's instruction error was harmless. The “intent to permanently deprive” element was uncontested and supported by such overwhelming evidence that the jury would have found Hicks guilty of theft if the element had not been omitted. All three victims testified that Hicks took property from the house. King testified he may have told Hicks he could take his property as long as no one got hurt. The record is devoid of evidence that could lead a rational jury to find that Hicks did not intend to permanently deprive King of the use or benefit of his property. Contrary to Hicks' claim, there is no evidence that he took the property as collateral to secure King's alleged unpaid drug debt. There is evidence, however, that he took the property as an in-kind payment of King's drug debt. The officer testified that Hicks admitted to wanting his money back, taking King's property, and dropping it off at various locations, which cuts against a finding that Hicks was merely holding the property until King paid his drug debt.
Nonetheless, we must reverse Hicks' theft conviction. Whether a crime is a lesser included offense and whether jurisdiction exists are questions of law subject to unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012); State v. Alderete, 285 Kan. 359, 361–62, 172 P.3d 27 (2007). Theft by threat under K.S.A. 21–3701(a)(3) is not a lesser included offense of robbery or aggravated robbery. State v. Sandifer, 270 Kan. 591, 600, 17 P.3d 921 (2001); see State v. Blockman, 255 Kan. 953, 962, 881 P.2d 561 (1994). cf. State v. Plummer, 295 Kan. 156, 164, 283 P.3d 202 (2012) (Theft by unauthorized control under K .S.A. 21–3701[a][l] is a lesser included offense of aggravated robbery.).
‘ “ “[I]f a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.’ “ State v. Johnson, 283 Kan. 649, 652, 656–57, 156 P.3d 596 (2007) (remedy is to reverse conviction and vacate sentence). Because Hicks was only charged with the aggravated robbery of King, the district court lacked jurisdiction to convict him of the theft from King by threat. Therefore, the district court committed reversible error in instructing on theft on that count.
Jury Instruction on Aggravated Robbery
At the close of evidence, the district court gave the jury this aggravated robbery instruction:
“Instruction Number [3/7]. Jeffery Hicks is charged with the crime of aggravated robbery. Jeffery Hicks pleads not guilty. To establish this charge, each of the following claims must be proved: That Jeffery Hicks intentionally took property from the presence of [King/Rogers]; that the taking was by threat of bodily harm to [King/Rogers]; that Jeffery Hicks was armed with a dangerous weapon; and that this act occurred on or about the 22nd day of September 2010 in Barton County, Kansas. An object can be a dangerous weapon if intended by the user to convince the victim that it is a dangerous weapon and which the victim reasonably believed to be a dangerous weapon.”
Hicks' proposed jury instructions included an instruction on aggravated robbery. At the jury instruction conference, the judge went through each of the proposed instructions and Hicks only objected to the inclusion of the definition of “dangerous weapon” in Instructions 3 and 7. Therefore, Hicks bears the burden of showing clear error, and this court must first determine whether an instruction error occurred. See Williams, 295 Kan. 506, Syl. ¶¶ 4–5.
“Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426. “Aggravated robbery is a robbery ... committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21–3427.
Hicks' proposed instruction on aggravated robbery was the current version of PIK Crim.3d 56.31, which does not define the “taking” element. The only difference between his proposed instruction and the instruction given by the district court was that Hicks proposed the “force” option rather than the “threat” option. See K.S.A. 21–3426; K.S.A. 21–3427; PIK Crim.3d 56.31 (“2. That the taking was by [threat of bodily harm to ____] [force]”). That was a consequence of Hicks being charged with taking property from King and Rogers by force or threat of bodily harm.
There was no instruction error here. The district court instructed the jury using the current version of PIK Crim.3d 56.31, which does not include the definitional “intent to permanently deprive” language. Kansas courts have deemed PIK Crim.3d 56.31 an accurate statement of the law. See State v. Harris, 297 Kan. 1076, 306 P.3d 282 (2013) (featuring instruction in analysis of sufficiency of evidence supporting defendant's aggravated robbery conviction); State v. Stewart, No. 107,723, 2013 WL 3455788, at *2–3 (Kan.App.) (unpublished opinion) (PIK Crim.3d 56.31 “preferred instruction” on aggravated robbery), rev. denied October 30, 2013. Therefore, the district court did not commit reversible error in instructing on aggravated robbery.
Jury Instruction on Jury Deadlock
Before the jury began its deliberations, the district court gave the following instruction:
“Instruction Number 25. Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the State to decide whether to resubmit the undecided charges to a different jury at a later time.
“This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candor.
“You should treat the matter seriously and keep an open mind. If at all possible, you should resolve any differences and come to a common conclusion. You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary .”
Hicks' proposed jury instructions did not include an instruction on jury deadlock. But at the jury instruction conference, the district court went through each of the proposed instructions and Hicks did not object to Instruction 25. Therefore, Hicks bears the burden of showing clear error, and this court must first determine whether an instruction error occurred. See Williams, 295 Kan. 506, Syl. ¶¶ 4–5.
A deadlocked jury instruction—commonly known as an Allen-type instruction or the “dynamite charge”—given during jury deliberations “could be coercive or exert undue pressure on the jury to reach a verdict.” State v. Struzik, 269 Kan. 95, 103, 109, 5 P.3d 502 (2000) (citing Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 [1896] ). The phrase “[a]nother trial would be a burden on both sides” formerly appeared in the PIK instruction on jury deadlock. See State v. Salts, 288 Kan. 263, 264, 200 P.3d 464 (2009). In Salts, the Kansas Supreme Court held that the phrase was (1) misleading because it was inaccurate in that another trial may not always be a burden to both sides and (2) confusing because the jurors were also told in another instruction not to concern themselves with what happens to the case after their obligation as jurors had ended. 288 Kan. at 266.
There was no instruction error here. The district court instructed the jury using the post- Salts version of PIK Crim.3d 68.12, which does not include the another trial would be a burden on both sides language. This court has deemed the instruction an accurate statement of the law. See State v. Wilson, 45 Kan.App.2d 282, 284–88, 246 P.3d 1008, (holding that the instruction “accurately states what will happen if the jury does not reach a verdict”), rev. denied 292 Kan. 969 (2011); State v. Davis, No. 104,258, 2011 WL 6413624, at *4–5 (Kan.App.2011) (unpublished opinion) (same), rev. denied 296 Kan. ____ (2013); State v. Alvarado, No. 104,507, 2011 WL 3250585, at *3–5 (Kan.App.2011) (unpublished opinion) (same), rev. denied 296 Kan. ____ (2013). Hicks' jury was also given the following instruction: “Your only concern in this case is determining if Jeffery Hicks is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.” The instructions were given prior to deliberations and not in response to a jury question. Although there was a requested read-back of King's testimony, there is no evidence the jury was having trouble reaching a verdict. Therefore, the district court did not commit reversible error in instructing on jury deadlock.
We, therefore, reverse the theft conviction and vacate that sentence. All other convictions and sentences are affirmed.
Affirmed in part, reversed in part, and vacated in part.