Opinion
No. 106,645.
2013-08-23
STATE of Kansas, Appellee, v. Richard WILLIAMS, Appellant.
Appeal from Sedgwick District Court; Philip L. Sieve, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Philip L. Sieve, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Richard Williams appeals from two convictions of criminal threat claiming (1) there was insufficient evidence to support the conviction against each of the alternative victims of criminal threat identified in count one; (2) there was insufficient evidence to support the convictions for each of the alternative means of criminal threat identified in counts one and three; (3) the jury instruction in count three was too broad; and (4) the district court erred in failing to give an instruction to limit the scope of the jury's ability to consider his past convictions.
Although we agree there was insufficient evidence to establish Williams intended to terrorize Susan Walton as an alternative victim to Judge Benjamin L. Burgess as alleged in count one, we find this fact does not, in and of itself, mean that there was insufficient evidence to support the conviction for criminal threat in count one. Next, we find sufficient evidence in the record from which a jury could have found beyond a reasonable doubt that Williams communicated a threat as alleged in counts one and three with both the intent to terrorize and in reckless disregard of the risk of causing such terror. We conclude the jury instruction for count three was not broader than the document that governed the charges brought against Williams at the time the case was submitted to the jury. Finally, we are not firmly convinced that the jury would have reached a different verdict had the district court given a limiting instruction directing the jury to consider Williams' prior convictions for purposes of deciding the issue of motive only. Finding no reversible error, we affirm.
Facts
Sometime in August 2010, Williams was staying with his former girlfriend Susan Walton at her home because he was too drunk to get to his home. They were discussing his upcoming court appearance in front of Judge Burgess, and Williams said he wanted to go to Oregon to be baptized by the Hells Angels instead. Walton asked Williams, “[W]hat about Judge Burgess,” and according to Walton, Williams replied, “[F]uck Judge Burgess, he doesn't scare me in the least bit.” Williams said he would go to Oregon and then turn himself in upon his return. Walton testified that Williams also said he would kill Judge Burgess and would like to see him burn in hell with Satan. Walton did not initially contact the police about Williams' remarks because she thought it may have been just drunken, belligerent talk.
That same month, Williams twice attempted to contact Judge Burgess in his chambers over the phone. On August 17, 2010, Williams told Judge Burgess' administrative assistant, Christine Thomson, that he wanted to talk to the judge about some frustrations from his prior case. In the 2006 case, Judge Burgess had sentenced Williams to a 2–year prison term despite the parties' plea agreement for probation. At sentencing, Williams became upset, flipped the judge off, and told him, “[H]ey, Ben, fuck you.” During the August 2010 phone calls, the administrative assistant informed Williams that he could not talk to Judge Burgess directly. Williams responded by telling the administrative assistant to inform the judge that Williams would meet him “any time, any place” to talk to him. After learning of these comments, Judge Burgess recognized the caller as Williams.
On August 30, 2010, Williams again was drunk while visiting with Walton and her best friend, Jodi Jackson, at Walton's home. Walton testified that Williams asked Jackson why she did not like him, and Jackson told him. After Jackson left, Williams told Walton he would meet Jackson in the park of her choosing, spit in her face, and have people beat her. The next day, Walton contacted the police and reported Williams' comment about Jackson because she was scared for Jackson's safety. She also reported Williams' comments regarding Judge Burgess from earlier in the month.
Williams later was charged with three counts of criminal threat: (1) criminal threat against Walton or Judge Burgess for Williams' comments in August 2010 to Walton about Judge Burgess, (2) criminal threat against Judge Burgess for Williams' comments on August 17 to Thomson about Judge Burgess, and (3) criminal threat against Walton or Jackson for Williams' comments on August 30 to Walton about Jackson. After a jury trial, Williams was found guilty on the first and third counts of criminal threat but not guilty on the second count.
Analysis
1. The conviction for criminal threat as charged in count one
In Kansas, the offense of criminal threat is statutorily defined as any threat to commit violence that is communicated with the intent to terrorize another or in reckless disregard of the risk of causing such terror to another. K.S.A. 21–3419(a)(1). Our Supreme Court has found the criminal threat statute does not require as an element of the offense that the defendant knew his or her threat would be communicated to the person terrorized. State v. Wright, 259 Kan. 117, 122, 911 P.2d 166 (1996). Accordingly, the threat becomes unlawful when a third party perceives it even if the intended victim never becomes aware of it. State v. Woolverton, 284 Kan. 59, 69, 159 P.3d 985 (2007); see also K.S.A.2012 Supp. 21–5111(b) (“ ‘Another’ means a person or persons as defined in this code other than the person whose act is claimed to be criminal.”).
In count one of the complaint, the State charged Williams with criminal threat based on Williams' statement to Walton that he would kill Judge Burgess and would like to see him burn in hell with Satan. Specifically, count one of the complaint alleged that Williams “did then and there unlawfully and intentionally threaten to commit violence, communicated with the intent to terrorize another, to-wit: Susan R. Walton or Benjamin L. Burgess, or in reckless disregard of the risk of causing such terror.” Consistent with the charging document, the jury instruction for count one required the State to prove (1) Williams communicated a threat to commit violence with the intent to terrorize Walton or Judge Burgess or (2) Williams communicated a threat in reckless disregard of the risk of causing terror to Walton or Judge Burgess. The jury ultimately found Williams guilty of criminal threat pursuant to this instruction.
On appeal, Williams argues his conviction for criminal threat in count one must be vacated because there was no evidence presented at trial to establish that his threat to kill Judge Burgess was communicated to Walton with an intent to terrorize Walton or that his threat to kill Judge Burgess was communicated to Walton in reckless disregard of the risk of causing Walton to experience such terror. Williams frames this issue as one of insufficient evidence to support the conviction and, albeit in passing, as a potential alternative means issue.
The State presents two arguments in response to the issue framed by Williams. First, the State argues that as the individual who perceived Williams' threat against Judge Burgess, Walton necessarily became a target of the threat as well. There is no merit to this argument. The offense of criminal threat requires Declarant to communicate to Receiver a threat to commit violence with intent to terrorize Victim. Specifically, there must be evidence presented to establish that (1) Declarant uttered a threat to commit violence with intent to terrorize Victim and (2) Receiver heard and understood Declarant's threat. Contrary to the State's argument, proving that an individual perceived the threat does not also prove that such individual is the target of the threat. In order to prove a particular individual is the target or intended victim of the threat, there must be evidence to establish that the defendant uttered a threat to commit violence with the intent to terrorize that particular individual.
The State's second argument is that the evidence presented at trial was more than sufficient to establish that Williams' threat to kill Judge Burgess was intended by Williams to terrorize Walton or at the very least was made in reckless disregard to the risk of causing Walton to experience such terror. We disagree. Walton was the only witness who testified regarding the criminal threat made by Williams as alleged in count one, and she testified that the threat of violence was directed toward Judge Burgess, not toward her. Consistent with Walton's testimony is the testimony of the police station clerk who took Walton's call reporting the threats, who stated that Walton specifically said Williams did not threaten her.
Although the State correctly observes that the court should consider all the circumstances in order to determine whether a criminal threat against a particular victim occurred, including the relationship of the parties, the fact that Williams and Walton dated off and on in the past does not change the fact that Judge Burgess clearly was the intended target of Williams' threat to commit violence. The State claims the jury could have inferred that Williams' comments about shirking his pending court case and killing Judge Burgess were made with the intent to make Walton feel terrorized because Walton still cared about what happened to Williams as a result of his poor choices. The State's claim, however, is not supported by any evidence. Our Supreme Court has concluded that “terrorize” means to ‘ “reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.’ “ State v. Gunzelman, 210 Kan. 481, 485, 502 P.2d 705 (1972) (quoting Armstrong v. Ellington, 312 F.Supp. 1119, 1126 [W.D. Tenn.1970] ). At most, the State's interpretation of the facts shows that Williams' comments were intended to worry Walton, not terrorize her, with what would happen to Williams if he made good on his threats. “The fact that the intent is to accomplish some result other than to terrorize is not sufficient” to constitute criminal threat. State v. Miller, 6 Kan.App.2d 432, 435, 629 P.2d 748 (1981).
In sum, we agree with Williams that there was insufficient evidence presented at trial to establish that he made a threat to commit violence with the intent to terrorize Walton. Nevertheless, we disagree with Williams' assertion that the absence of evidence to establish he intended to terrorize Walton necessarily means the criminal threat conviction against him in count one must be vacated. Notably, Williams fails to cite any legal authority or include any legal analysis to support such a remedy under the particular facts presented here. The jury in this case convicted Williams in count one of communicating a threat to commit violence with the intent to terrorize Walton or Judge Burgess. Although there may not have been any evidence to establish he intended to terrorize Walton, Williams does not challenge the sufficiency of the evidence presented at trial to support his conviction for criminal threat targeted at Judge Burgess. Thus, the fact that there was insufficient evidence to establish Williams intended to terrorize Walton does not, in and of itself, mean that there was insufficient evidence to support the conviction for criminal threat as alleged in count one.
In a one-sentence statement that includes no legal authority or analysis, Williams appears to characterize his insufficiency of the evidence argument as a challenge to the unanimity of the jury's verdict: “Should this Court consider this sufficiency argument as an alternative means argument (victim was either Judge Burgess or Susan Walton), then there was no substantial evidence to support each alternative means.” But Williams confuses the concept of jury unanimity in an alternative means case with jury unanimity in a multiple acts case. Our Supreme Court has clarified the difference as follows:
“ “ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“ “ ‘In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ “ “ State v. Becker, 290 Kan. 842, 854–55, 235 P.3d 424 (2010).
This is not a situation where the instruction in count one provided more than one way in which Williams could have committed the offense of criminal threat. Instead, the instruction provided the jury with alternative victims of the offense. By designating alternative victims, the instruction necessarily provided the jury with two separate criminal acts, either one of which could have constituted the crime of criminal threat as charged. Accordingly, this is a multiple acts case, and the issue of jury unanimity must be analyzed in that context.
A criminal defendant has a statutory right to a unanimous jury verdict. State v. Colston, 290 Kan. 952, 961, 235 P.3d 1234 (2010); see K.S.A. 22–3421. Typically, jury unanimity is achieved by instructing the jury that its verdict must be unanimous on each separate count. However, when the State charges a defendant with a single count and presents evidence of multiple acts—each of which is sufficient to support the crime charged—it becomes unclear whether the jury unanimously agreed upon the specific act supporting the defendant's conviction. Colston, 290 Kan. at 961. In order to insure jury unanimity in such cases, the district court must “either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt.” 290 Kan. at 961.
When determining whether a case involves multiple acts, appellate courts utilize a three-part test. Colston, 290 Kan. at 961. First, the court decides “if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other.” 290 Kan. at 961. If the case involves multiple acts, the court next considers whether an error occurred. That is, whether the State failed to properly elect an act or the trial court failed to provide the jury with a unanimity instruction. Finally, in the event an error occurred, the court must determine whether the error requires reversal. 290 Kan. at 961–62.
Of course, we already have determined that the State's designation of alternative victims in the instruction for count one necessarily provided the jury with two separate criminal acts, either one of which could have constituted the crime of criminal threat as charged. Moreover, there is no indication in the record that the State elected an act or that the trial court provided the jury with a unanimity instruction. Accordingly, all that remains is to determine whether the erroneous failure to give the jury a unanimity instruction requires reversal of the conviction.
When, as here, the defendant failed to request a unanimity instruction, appellate courts apply the clearly erroneous standard, under which “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012); see Colston, 290 Kan. at 969;K.S.A. 22–3414(3). In State v. Voyles, 284 Kan. 239, 253, 160 P.3d 794 (2007), our Supreme Court focused solely on whether the defendant had presented a unified defense or a general denial to any of the multiple acts in order to determine whether the district court's failure to instruct on unanimity was reversible under the clearly erroneous standard.
“If there is no unified defense, we do not tolerate verdict uncertainty in these cases. Stated in the language of the clearly erroneous standard of review applicable when no unanimity instruction has been requested, cases not containing a unified defense are reversed because the reviewing court is firmly convinced that there is a real possibility the jury would have returned a different verdict if the instruction had been given. [Citation omitted.]” 284 Kan. at 253.
Specifically citing to its analysis in Voyles, the Supreme Court recently noted that the defendant's defense strategy is not the controlling factor in deciding whether the court is firmly convinced that the jury would have reached a different verdict but instead is merely a factor—albeit an important and compelling factor—for the court to consider in making that decision. State v.. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013).
In this case, Williams presented a unified defense to the charge of criminal threat set forth in count one. In closing, Williams argued he did not make the statements as alleged and, even if he did, the statements did not constitute threats because he was too intoxicated to know what he was saying and/or to form the requisite intent to terrorize anyone. As Trujillo instructs, we consider the fact that Williams presented a unified defense to be an important and compelling factor weighing against reversal. Just as important and compelling, however, is the fact that we already have found, and Williams readily has conceded in his brief on appeal, that there was absolutely no evidence presented at trial to establish that Williams made a threat to commit violence with the intent to terrorize Walton or made a threat in reckless disregard of the risk of causing such terror to Walton. Because there was no evidence of a threat against Walton, we are firmly convinced that the jury would not have reached a different verdict had the instruction error not occurred. See Colston, 290 Kan. at 969;Williams, 295 Kan. 506, Syl. ¶ 5;K.S.A. 22–3414(3). For this reason, the district court's failure to provide a unanimity instruction is not reversible error.
2. Alternative means of committing criminal threat
Williams next argues the State failed to present sufficient evidence to support each alternative means in counts one and three; specifically, that Williams communicated his threats with both the intent to terrorize and in reckless disregard of the risk of causing such terror. As Williams' argument suggests, criminal threat under K .S.A. 21–3419(a)(1) is an alternative means crime. This is because it provides that a person can commit the offense in two ways: (1) communicating the threat with the intent to terrorize another or (2) communicating the threat with reckless disregard of the risk of causing such terror to another. See State v. Windsor, No. 107,152, 2013 WL 1444399, at *6 (Kan.App.2013) (unpublished opinion); State v. Brooks, No. 105,358, 2012 WL 309075, at *5 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. –––– (February 4, 2013); State v. Gatlin, No. 95,270, 2007 WL 1042134, at *5 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 948 (2007); State v. Alford, No. 95,578, 2007 WL 656371, at *3 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 947 (2007).
Criminal threat is a specific intent crime. In re C.P.W., 289 Kan. 448, 454–55, 213 P.3d 413 (2009) (Kansas appellate courts have consistently interpreted statutes that define a crime by using the phrase “with intent to” as requiring a specific intent element); State v. Meinert, 31 Kan.App.2d 492, 499, 67 P.3d 850 (criminal threat requires specific intent), rev. denied 276 Kan. 972 (2003). Specific intent may be shown by acts, circumstances, and reasonably deducible inferences and does not need to be established by direct proof. State v. Becker, 290 Kan. 842, 852, 235 P.3d 424 (2010).
Here, the State does not dispute that the district court instructed the jury on alternative means under which the jury could convict Williams of criminal threat in counts one and three; instead, the State argues it presented sufficient evidence to establish that Williams communicated his threats in counts one and three with the intent to terrorize and in reckless disregard of the risk of causing such terror.
To establish criminal threat as charged in count one, the State had to prove that Williams communicated a threat to commit violence (1) with the intent to terrorize Walton or Judge Burgess or (2) in reckless disregard of causing terror to Walton or Judge Burgess. To establish criminal threat as charged in count three, the State had to prove Williams communicated a threat to commit violence (1) with the intent to terrorize Walton or Jackson or (2) in reckless disregard of the risk of causing terror to Walton or Jackson.
The evidence introduced by the State to support the charges of criminal threat against Williams in both counts consisted mostly of Walton's testimony, because she was the only witness to Williams' statements about Judge Burgess and Jackson. Walton testified that Williams said, “[F]uck Judge Burgess, he doesn't scare me in the least bit,” he would kill Judge Burgess, and he would like to see him burn in hell with Satan. She also said he was mad when he made these statements. The State also presented evidence through Judge Burgess' testimony and the testimony of his administrative assistant Thomson that Williams was angry with Judge Burgess. Judge Burgess testified that upon Williams' 2006 conviction, Williams became upset, flipped the judge off, and told him, “[H]ey, Ben, fuck you.” Judge Burgess and Thomson also testified that Williams had twice called the judge's chambers in August 2010 asking to talk to the judge, speaking in an aggressive tone, and saying he would meet him “any time, any place” to talk to him.
With regard to count three, Walton testified that after Jackson told Williams why she did not like him and left, Williams said to Walton that he would meet Jackson in the park of Jackson's choosing, spit in Jackson's face, and have people beat Jackson. Walton testified that Jackson was her best friend with whom she was “very, very close” and she was scared for Jackson's safety. Walton further testified that she told Williams after he made those statements that “I wish you wouldn't do that, because she is my friend” but Williams indicated he did not care.
Williams claims Walton's testimony as described above is insufficient to prove the first alternative means of criminal threat—intent to terrorize—because Walton's testimony readily establishes Williams was on a drunken rambling tirade when he made the statements and thus was unable to form the requisite intent to terrorize anyone. But the district court instructed the jury that voluntary intoxication may be a defense where the evidence indicates that such intoxication impaired a defendant's mental faculties to the extent that he was incapable of forming the necessary intent to terrorize. Where a jury has convicted a defendant, it is presumed to have believed the State's evidence and to have drawn from it all inferences favorable to the State. State v. Aikins, 261 Kan. 346, 392, 932 P.2d 408 (1997) (quoting State v. Brunson, 13 Kan.App.2d 384, Syl. ¶ 2, 771 P.2d 938,rev. denied 245 Kan. 786 [1989] ), disapproved of on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012). Moreover, Walton testified that Williams was not slurring his words, he was “pretty coherent,” he was able to talk clearly, and she had no difficulty understanding him when he was talking about Judge Burgess and Jackson. Given its verdict, the jury in this case evidently believed Walton's testimony and did not find that Williams' intoxication at the time of making these statements about Judge Burgess and Jackson prevented him from forming the necessary intent to terrorize.
Regarding the second alternative means, Williams claims his actions cannot be considered reckless because his words were not threats to begin with. Viewing the evidence in a light most favorable to the State, the State presented sufficient evidence to prove that in count one Williams threatened to commit violence and communicated that threat both with the intent to terrorize Judge Burgess and in reckless disregard of the risk of causing such terror. To that end, the State presented evidence that Williams threatened to kill Judge Burgess, someone against whom he displayed anger in the past and recently had been aggressively trying to contact. With regard to count three, there was sufficient evidence presented at trial to prove that Williams threatened to commit violence with the intent to terrorize Jackson or Walton or in reckless disregard of causing such terror. Williams threatened to have Jackson beaten, a person whom he disliked and with whom he had just had a confrontation. He communicated these threats to Walton, knowing Walton was Jackson's best friend, and when Walton became scared and asked Williams to back down from his threats, Williams expressly refused to do so.
In sum, we find sufficient evidence in the record from which a jury could have found beyond a reasonable doubt that Williams communicated a threat as alleged in counts one and three with both the intent to terrorize and in reckless disregard of the risk of causing such terror.
3. The jury instruction for count three
Williams claims in his brief that the district court erroneously instructed the jury on a broader theory than was originally charged by including a second victim, Walton, in the jury instruction for a third count of criminal threat when the amended information charged Williams with threatening only Jackson.
Williams never objected to the jury instructions, so this court must apply a clearly erroneous standard in reviewing the district court's instructions. See State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); K.S.A. 22–3414(3). However, under the first step of the clearly erroneous inquiry, Williams' claim fails because there was no instruction error in this case. See Williams, 295 Kan. at 515.
As the State notes, at the time Williams wrote his appellate brief, the record appeared to indicate that the State had alleged at trial that under count three Williams committed criminal threat solely against Jackson because that was stated in the State's third amended information. Yet the jury instruction listed both Walton and Jackson as the victims in count three. However, the State later discovered that the third amended information was not filed until after the verdict was entered, so that the instructions at trial actually correctly mirrored the State's original charging document. After a remand from this court, the parties prepared a stipulation that was approved by the district court and ordered to be a part of the record. In that stipulation, the parties noted that the third amended information was filed at 3:36 p.m. on June 15, 2011, after the jury's verdict, which was pronounced at approximately 2 p.m. that day. The parties further clarified that any modification to count three was unintended and did not occur prior to the district court's final jury instructions, closing arguments, or the jury's deliberation and verdict.
Because the jury instruction for count three was not broader than the document that governed the charges brought against Williams at the time the case was submitted to the jury, there was no instruction error.
4. Failure to provide a limiting instruction
At trial, several witnesses made statements about Williams' prior convictions. Judge Burgess testified that in 2006 he sentenced Williams to prison and in 2010 was assigned to be the sentencing judge for Williams' driving under the influence (DUI) conviction. In addition, Walton testified that in August 2010 she and Williams had discussed his upcoming DUI case. Williams did not request a limiting jury instruction nor object to the jury instructions at trial. In his final point of error, Williams argues the district court erred in failing to provide the jury with a limiting instruction stating that this evidence of Williams' prior convictions should only be considered to show motive.
We note, as a preliminary matter, that Williams neither raised an objection to the lack of a limiting instruction nor proposed including a limiting instruction. A court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where, as here, a party neither suggested an instruction nor objected to its omission. Martinez, 288 Kan. at 451; see also K.S.A. 22–3414(3) (“No party may assign as error the giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.”).
To determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court must necessarily first determine whether an error occurred. Thus, the court must review the merits of the claim of error, which presents a legal question subject to unlimited review. Only after determining that the district court erred in giving or failing to give a particular instruction does the reviewing court engage in the reversibility inquiry. Williams, 295 Kan. at 515–16.
Under K.S.A.2010 Supp. 60–455(a), evidence that a person committed a crime on a specified occasion is inadmissible to prove such person's disposition to commit crimes as the basis for an inference that the person committed another crime on another specified occasion. The Kansas Supreme court has identified at least three types of prejudice that can follow from the admission of K.S.A. 60–455 evidence:
‘ “ “... First ajury might well exaggerate the value of other crimes as evidence proving that, because the defendant has committed a similar crime before, it might properly be inferred that he committed this one. Secondly, the jury might conclude that the defendant deserves punishment because he is a general wrongdoer even if the prosecution has not established guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might conclude that because the defendant is a criminal, the evidence put in on his behalf should not be believed.” ‘ “ State v. Gunby, 282 Kan. 39, 48–49, 144 P.3d 647 (2006) (quoting State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 [1973] ).
K.S.A.2010 Supp. 60–455(b), however, allows such evidence when it is relevant to prove some other material fact, including “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” If allowed to prove some other material fact, however, the court must give a limiting instruction informing the jury of the specific purpose for allowing the evidence to be introduced. This safeguard is “designed to eliminate the danger that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime.” Gunby, 282 Kan. at 48. Under Gunby, then, the district court erred in failing to provide the jury with a limiting instruction on the K.S.A. 60–455 evidence of Williams' prior convictions.
Although a trial court's failure to give a limiting instruction where such evidence has been admitted to prove some other material fact under K.S.A.2010 Supp. 60–455(b) is error, our Supreme Court has held that such an error does not demand automatic reversal. Gunby, 282 Kan. at 48, 58 (where complaining party neither requested instruction nor objected to its omission, failure to give limiting instruction will be reversible only if clearly erroneous). The test for clear error is whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment involves a review of the entire record and a de novo determination. The burden of showing clear error remains with the defendant. Williams, 295 Kan. at 516.
Williams claims the record on appeal establishes that the jury would have reached a different verdict had a limiting instruction regarding his prior convictions been provided to the jury. In support of his claim, Williams highlights the fact that the jury's two questions to the court during deliberations both concerned the nature of his prior convictions. The first question asked by the jury was: “Is there a history of convictions for violence?” The district court judge responded: “You can only consider facts admitted into evidence. Please refer to instruction number two.” Instruction Number 2 read: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admissions or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.” The second question asked by the jury was: “What did he spend time in prison for in 2006?” The district court judge again responded: “You can only consider facts admitted into evidence. Please refer to instruction number two.”
As the State observes, however, the jury acquitted Williams of the second count of criminal threat, a fact which strongly suggests that the jury did not place undue emphasis on the K.S.A. 60–455 evidence of Williams' prior convictions; did not make an improper inference that because Williams had committed a similar crime before, he probably committed this one; and did not improperly conclude that he deserves punishment because he is a general wrongdoer. See Gunby, 282 Kan. at 48–49. There is merit to the State's argument. In fact, our Supreme Court came to the same conclusion in State v. Holman, 295 Kan. 116, 284 P.3d 251 (2012), where the jury acquitted the defendant of rape and aggravated indecent liberties. The Holman court found that these acquittals showed that “the jury did not exaggerate the importance of the K.S.A. 60–455 evidence” or make the above improper conclusions. 295 Kan. at 129. It further noted: “If the jury had considered the K.S.A. 60–455 evidence as proof of Holman's propensity to engage in illicit sexual behavior, one would expect that Holman would have been convicted of all the crimes charged.” 295 Kan. at 129.
Therefore, like in Holman, the jury evidently did not place undue emphasis on the K.S.A. 60–455 evidence of Williams' prior convictions because if it had, it likely would have convicted Williams of all three counts of criminal threat. As already discussed, the State presented substantial evidence through Walton's testimony, which was separate and apart from the evidence of Williams' prior convictions, that Williams communicated a threat to commit violence with the intent to terrorize another or in reckless disregard of causing such terror. As such, we are not firmly convinced that the jury would have reached a different verdict had the district court given a limiting instruction directing the jury to consider his prior convictions for purposes of deciding the issue of motive only.
Affirmed.