Opinion
No. 108,465.
2013-10-25
STATE of Kansas, Appellee, v. Christopher KEMMERLY, Appellant.
Appeal from Butler District Court; Charles M. Hart, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; Charles M. Hart, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM:
Christopher Kemmerly asks us to overturn his conviction of aggravated intimidation of a witness or victim because the court did not give an unanimity instruction to his jury. We affirm his conviction because we are not firmly convinced the jury would have reached a different verdict had the instruction been given.
Events begin early at a convenience store.
Around 1 a.m. in late September 2010, Adam Divine reported to police officers that he had been threatened with brass knuckles at a convenience store in El Dorado. Officers subsequently arrested Jacob Gilliland for threatening Divine and for possession of brass knuckles. Just as Divine was beginning to fill out his witness statement, Christopher Kemmerly walked by and told Divine that he better “mess up” his report or he was “going to die.” Divine told patrolman Kenneth Temaat that Kemmerly had threatened him and included this information in his witness statement. The officers ultimately allowed Kemmerly to leave.
Divine went home. Jeremiah Miller came to Divine's house to stay the night so they could both travel to work together later that morning. Miller slept downstairs in a chair, while Divine went upstairs to sleep. Divine's mother was also staying at his house that night.
Around 3:30 a.m., Miller heard a thud or something hit the front porch, looked outside, and saw “a beer bottle with a rag sticking out of it” on the porch. Miller ran upstairs and told Divine what had happened. Divine went outside onto the porch and found a beer bottle with a rag hanging out of it. It had been thrown onto his porch through the porch railing, breaking one of the balusters. Divine believed the rag had been soaked in kerosene or paint thinner, but there was no fire. Divine called the police.
Patrolman Temaat responded to the report of attempted arson at Divine's house. When he arrived, Temaat saw the Molotov cocktail on the porch and the damage to the porch baluster. The investigation of the crime stalled until November, when Robin Lane reported Kemmerly had committed the crime.
The police arrested Kemmerly and charged him with one count each of aggravated intimidation of a witness or victim in violation of K.S.A. 21–3833; criminal use of explosives in violation of K.S.A. 21–3731; attempted aggravated arson in violation of K.S.A. 21–3301 and K.S.A. 21–3719; and criminal damage to property in violation of K.S.A. 21–3720. The case was tried to a jury.
At trial, Lane testified that in the early morning hours of September 23, 2010, sometime after the convenience store incident, she picked up Kemmerly from his friend's house because Kemmerly told her he needed a ride. Stephanie McDonald rode with her at the time. According to Lane, she saw Kemmerly carrying a beer bottle with a rag that smelled like charcoal lighter fluid hanging out of the top. Also, Lane testified that Kemmerly told her that the bottle was a “Molotov cocktail” and that he wanted to “take it and throw it out the car window as [Lane] drove him by [Divine's] house.”
Lane admitted that she gave Kemmerly a lighter and a pair of latex gloves at his request. Lane testified that she drove Kemmerly to First and Summit, a block south of Divine's home, where Kemmerly got out of her car and returned approximately 2 minutes later without the Molotov cocktail. Lane claimed that Kemmerly “came back and got in the car and said he threw it and it was on fire” and then told her “to just leave.” McDonald testified that she smelled gasoline while Kemmerly was in Lane's car and that the smell abated after Kemmerly had returned to the car.
The State's expert identified the liquid in the Molotov cocktail found on Divine's porch as a medium petroleum distillate, or ignitable liquid.
The jury found Kemmerly guilty of all counts. Based on Kemmerly's criminal history score of A, the district court imposed a controlling presumptive prison sentence of 51 months (43 months for aggravated intimidation, a consecutive 8 months for attempted aggravated arson, and a concurrent 8 months for criminal use of explosives). The district court also ordered Kemmerly to pay $30 in restitution to Divine.
In this appeal, Kemmerly makes three arguments. First, he argues the district court erred in failing to give a unanimity instruction because the State had elicited evidence of multiple acts that would support the aggravated intimidation of a witness or victim charge but failed to elect one particular act upon which the jury could agree. He also contends the State failed to present any evidence to support the district court's order that Kemmerly pay Divine $30 in restitution for the damage to his porch. Finally, Kemmerly argues that the State's failure to include his prior convictions in the complaint and the district court's use of his criminal history for sentencing purposes without requiring the State to prove them before the jury beyond a reasonable doubt enhanced his sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We will examine the issues in that order.
The law requires jury unanimity.
In some criminal cases, several different acts by the defendant are alleged and any one of them could constitute the crime charged. In such cases, the State must either inform the jury which specific act it contends constitutes the crime or the court must instruct the jury that all members must agree on which specific act the defendant committed. State v. Torres, 294 Kan. 135, Syl. ¶ 3, 273 P .3d 729 (2012). These are called multiple acts cases. Our Supreme Court has pinpointed the error in a multiple acts case as “ ‘the possibility that some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction.’ [Citation omitted.]” State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007). This position is based on K.S.A. 22–3421, which states that a criminal defendant has the right to a unanimous jury verdict.
Here, Kemmerly contends the evidence that he threatened Divine at the convenience store and then threw the Molotov cocktail at Divine's home a couple of hours later were both acts that could constitute the crime of aggravated intimidation of a witness or victim. Opposing this view, the State argues that it had made a “functional election” during trial on which of the two separate incidents supported the aggravated intimidation of a witness charge. The State argues that during the opening and closing statement the prosecutor urged the jury to associate the threat made at the convenience store with the aggravated intimidation of a witness or victim charge. The State contends that at trial, it associated the Molotov cocktail incident with the charges of possession of an explosive device, attempted aggravated arson, and criminal damage to property.
Since Kemmerly neither asked for a unanimity instruction nor objected to its omission, this court applies a clearly erroneous standard to this question. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). The test for clear error requiring reversal is whether we are firmly convinced that the jury would have reached a different verdict had the error not occurred. This assessment would involve a review of the entire record and a de novo determination. The burden of showing clear error remains with the defendant. See State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Sometimes a defendant's actions are performed at different times and for different reasons. Such acts are considered “multiple acts” if there are factually separate and distinct; and incidents are said to be factually separate when independent criminal acts occur at different times or when the latter act is motivated by a fresh impulse. See State v. Colston, 290 Kan. 952, 962, 235 P.3d 1234 (2010). Ordinarily, the first step of our analysis is to decide whether this is a multiple acts case. But the parties here do not contest that this is a multiple acts case. Therefore, we will proceed with our analysis to determine if there is a valid jury unanimity question here.
There is some common sense to the argument raised by Kemmerly on this point. We have no doubt that a lit Molotov cocktail thrown onto a victim's front porch could be considered an act of intimidation.
We are not persuaded the State did make an election.
We look first to see if the State did indeed make an election between the two incidents. The State argues that it did functionally elect Kemmerly's statement to Divine at the store as the act it was relying upon to support the charge of aggravated intimidation. But the record gives us reason to doubt. It indicates that the prosecutor during closing argument blurred the distinction between the threat at the store and the Molotov cocktail incident while discussing the elements instruction for aggravated intimidation of a witness or victim:
“And I think whatever did occur, we're sure occurred on the 23rd day of September, starting at about 1:00 p.m. and going through ... to about 3:30 a.m., is the area of time that we're interested in. That's not contested. Now these things happened at the QuickTrip in El Dorado; at Adam Divine's house at 120 North Summit. That's not really contested.” (Emphasis added.)
Next, in discussing the element whether “the act was accompanied by an express or implied threat of force or violence against the person and/or property of a victim,” the prosecutor argued the following:
“We have that here. Well, frankly, we have that before we even get to this Molotov cocktail. The threat here and the thing that he's trying to do is get him to mess up his statement. And the threat that goes along with that is: ‘Or you'll die’; ‘or there'll be trouble’; ‘or you'll get messed up.’ And he doubles-down on that threat by, later on in the night, taking this Molotov cocktail and throwing it at the house. But, frankly, we don't even have to get to that Molotov cocktail.” (Emphasis added.)
Although the State twice argued the convenience store incident supported the charge of aggravated intimidation, this is not the same as the State informing the jury that it could not consider the evidence concerning the Molotov cocktail incident as the act supporting the same charge or that it must all agree on the incident at the store as the underlying criminal act. In Colston, 290 Kan. at 969, the court found that the State failed to elect, noting: “Although the State argued that only one act supported the charge, this is not the same as informing the jury that it could not consider evidence of other acts supporting the same charge or that it must agree on the same underlying criminal act.”
Here, the prosecutor's repeated reference to not having to “get to” the Molotov cocktail incident, when taken in conjunction with the prosecutor's earlier reference to the times and locations of both the convenience store threat and Molotov cocktail incident, implies that, while not necessary, the jury could also use the Molotov cocktail incident to rely on when making its verdict. Accordingly, we conclude that error occurred concerning the charge of aggravated intimidation of a witness or victim because there was a failure to elect or give a unanimity instruction. But that does not mean the error was reversible.
In Voyles, our Supreme Court stated that errors in failing to give a unanimity instruction are generally reversible under the clearly erroneous standard “except when the defendant presents a unified defense, e.g., a general denial.” 284 Kan. at 253. A unified defense is “a mere credibility contest between the victim and the alleged perpetrator.” 284 Kan. at 253. But Voyles also stated that inconsistencies in the victims' testimony could confuse the jury and create a lack of unanimity even though the defendant generally denied any wrongdoing. 284 Kan. at 253–55.Voyles was concerned with the possibility of a “mixed” verdict, i.e., where the jury convicts on a certain charge without unanimously agreeing on the occurrence of any specific act supporting that charge. 284 Kan. at 248–49.
That holding has been refined by latter cases. The presentation of a unified defense or general denial to any of the multiple acts “is merely an important and compelling factor in firmly convincing the reviewing court that the jury would have reached a different verdict had the instruction error not occurred.” State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013). But we do not think the inconsistencies argued in this case could have led to jury disagreement and confusion.
On appeal, Kemmerly does not discuss the nature of his defense. The record reveals, though, that Kemmerly's defense at trial was a general denial of criminal activity on the night in question and he simply attacks the credibility of the State's witnesses. His additional defense, that the police “coerced” McDonald's statements, could not create any verdict uncertainty on this charge. In our view, Kemmerly presented a unified defense to the charge.
Our review of the record convinces us that at least with respect to the aggravated intimidation of a witness or victim charge, the trial was a credibility contest between Divine and Kemmerly. The defense counsel's arguments are telling. During closing argument, defense counsel argued Divine was “lying” because he could not “remember what was said to him.” Counsel focused on Divine's credibility, not on the specific act charged. Defense counsel pointed to inconsistencies between Divine's witness statement, his preliminary hearing testimony, and his trial testimony, focusing on the exact words Kemmerly had used to threaten Divine.
But these minor inconsistencies do not rise to what the Voyles court considered substantial enough to warrant reversal. In Voyles, 284 Kan. at 253–54, the two victims identified “potentially 20 different acts or offenses” at five different locations, and yet only eight crimes were charged. Nor are these inconsistencies similar to the unexplained inconsistencies in the evidence concerning two separate incidents when damage to a car occurred in a case where our Supreme Court reversed a felony criminal damage to property conviction. See State v. King, 297 Kan. ––––, 305 P.3d 341, 660–62 (2013).
The question for this jury was whether to believe Divine's testimony that Kemmerly had threatened him at the convenience store. The jury was unanimous—it believed the victim.
Further, even though the prosecutor somewhat blurred the two crimes, he did argue the Molotov cocktail incident was associated with the attempted arson and criminal damage to property charges.
We are not firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. See Williams, 295 Kan. at 516.
We do not consider the restitution order for the first time on appeal.
Here, the district court heard evidence during trial of the physical damage Kemmerly did to one of the balusters on Divine's porch. At sentencing, the prosecutor noted that Divine had requested restitution to rebuild his entire porch instead of replacing just the damaged baluster because that particular style of baluster was not available. However, the prosecutor did not present the amount of Divine's request to the district court, noting:
“I told [Divine] there's no chance that with restitution something like that is going to happen, but I think [Divine] indicated that the cost of one replacement ballast [ sic ] would be $6,50. I think there was a $22 charge for a unit of paint.... Really, there's not anything else I can offer on that.”
Based on the State's proffer, the district court ordered restitution for $30.
Kemmerly did not preserve this issue by objecting to the restitution order. Issues not raised before the district court cannot be raised on appeal. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009). We will not review this matter for the first time on appeal.
We find no Apprendi violation here.
Kemmerly argues that the State's failure to include his prior convictions in the complaint and the district court's use of his criminal history for sentencing purposes without requiring the State to prove his convictions before the jury beyond a reasonable doubt enhanced his sentence in violation of his Sixth and Fourteenth Amendment rights as interpreted by Apprendi, 530 U.S. 466.
Kemmerly concedes that the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Since there is no indication our Supreme Court is departing from the Ivory decision, we must follow this controlling precedent and affirm Kemmerly's sentence.
Affirmed.