Opinion
No. 105,092.
2012-06-15
STATE of Kansas, Appellee, v. David W. KNIGHT, Sr., Appellant.
Appeal from Osage District Court; Phillip M. Fromme, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Osage District Court; Phillip M. Fromme, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant David Knight appeals from his conviction for one count of aggravated endangerment of a child, in violation of K.S.A. 21–3608a(a)(2), following a jury trial in Osage County District Court. The points he presents to us either were not preserved in the district court or fail to rise to the level of reversible error. We, therefore, affirm the conviction and judgment. After summarizing the facts, we take up the issues as Knight has presented them.
Factual and Procedural History
The afternoon of May 31, 2009, a Sunday, was hot and humid with temperatures into the 90s in east central Kansas. People flocked to the public beach at Melvern Lake in Osage County. During the afternoon hours, several visitors noticed a young girl they thought to be 3 or, perhaps, 4 years old playing on the beach and in the water without any supervision from a responsible adult or teenager. Some of the beachgoers watched the child for at least a couple of hours and never saw anyone attending to her. They kept a lookout, in part, because they were concerned about the girl's safety near and in the lake. The beach had no lifeguards. Julie and William Hall were at the beach with their daughter who was about the same age as the girl. The two children played together for part of the afternoon. Neither of the Halls saw anyone supervising the girl.
As they were getting ready to leave the lake, the Halls were concerned about the child's wellbeing. Ms. Hall went up and down the beach unsuccessfully attempting to locate the girl's parents. Mr. Hall then called 911 to alert the authorities. About the same time, John Anderson, another beachgoer who had seen the child over the course of the afternoon, went to the parking lot looking for her parents. Anderson approached a man with several fairly young children in a van in the parking lot and asked if the man had a daughter and offered a description of the girl's bathing suit. The man was Knight. He acknowledged the child was H.K., his daughter, and asked Anderson to stay with the children and the van while he retrieved H.K. from the beach. Mr. Hall recalled Knight appearing on the beach and identifying H.K. as his daughter.
Osage County Sheriff's Deputy Scott Farmer arrived at Melvern Lake just before 5 p.m. He saw Knight's van with a throng of people around it and a car parked behind it, blocking it from leaving. Based on Deputy Fanner's observation, Knight had been drinking. Knight admitted as much. Deputy Fanner also noticed that H.K. appeared to be sunburned. Knight told Deputy Farmer that he had been at the lake with the children for 30 to 45 minutes. The children said they were hungry, so they returned to the van to get some snacks. Knight said that he had mistakenly left H.K. behind, but she had been on the beach alone for less than 15 minutes. Because Knight had an insufficient number of car seats for the children, Deputy Farmer did not allow Knight to leave until his wife arrived with additional seats. Knight's wife then drove the van.
Knight was not arrested or charged on May 31, but the matter was forwarded to the Osage County Attorney for review. The county attorney later charged Knight with one count of aggravated endangerment of a child, in violation of K.S.A. 21–3608a(a), a severity level 9 person felony. The case went to trial in late May 2010. The Halls, Anderson, and Deputy Farmer testified during the State's presentation. Knight testified in his own defense, essentially recounting what he had told Deputy Farmer and explaining H.K. had been to the beach several times the week before accounting for her sunburn. The jury convicted Knight as charged.
Based on Knight's criminal history, the sentencing range would have been between 13 and 15 months in prison with a presumption for incarceration. The district court sentenced Knight to a standard sentence of 14 months and granted his request for a dispositional departure by placing him on probation for 12 months under the restrictive conditions of the community corrections program. Knight has timely appealed, asserting multiple errors in the district court.
Legal Arguments
Statutory Vagueness
First, Knight contends K.S.A. 21–3608a, criminalizing aggravated endangerment of a child, is unconstitutionally vague and, therefore, he has been denied due process because neither he nor anyone else could fairly understand what conduct the statute proscribes. A fundamental tenet of criminal law holds that a person should not be punished when a statute fails to give reasonable notice of what is illegal. United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); State v. Adams, 254 Kan. 436, 439, 866 P.2d 1017 (1994). In short, a reasonable person should not have to guess whether his or her conduct amounts to a crime. 254 Kan. at 439.
Knight did not challenge the constitutionality of K.S.A. 21–3608a in the district court and, thus, raises the issue for the first time on appeal. Appellate courts typically decline to consider issues even of constitutional magnitude not raised, argued, and decided in the district court. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). In limited instances, the appellate courts will take up an issue that has not been presented to the district court if: (1) it poses a question of law dependent upon only proven or admitted facts and would be dispositive of the case; (2) consideration would serve the ends of justice or avoid denial of a fundamental right; or (3) a judgment may be upheld on that basis when the district court incorrectly relied on some other reason. State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
As defined in K.S.A. 21–3608a(a)(l) and (2), aggravated endangerment of a child is:
“(1) Intentionally causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered;
“(2) recklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.”
Knight was convicted of the “reckless” form of endangerment. He argues because the statutory language does not contain a qualification that the proscribed actions be “unreasonable,” a defendant cannot tell what has been criminalized. That is, according to Knight, the statute should prohibit “recklessly and unreasonably causing and permitting a child” to be endangered. Thus, he says, a person theoretically could be prosecuted for permitting a child under 18 years old to participate in sports that “frequently cause injuries” and, in rare instances, death.
Even if we were to consider the argument, it proves too little in this case. The evidence here, especially as taken in support of the verdict, portrays conduct that could not be considered anything other than unreasonable. So it is not as if Knight wound up being prosecuted for and convicted of conduct that arguably could have been reasonable or appropriate. This court recently rejected a void-for-vagueness challenge because the defendant's conduct came within the meaning of the criminal statute notwithstanding any alleged vagueness. State v. Williams, 46 Kan.App.2d 36, 43–44, 257 P.3d 849 (2011). In other words, the conduct was of the type obviously and reasonably proscribed, rather than conduct within a grey area of coverage resulting from alleged linguistic ambiguity in describing the prohibition. The Kansas Supreme Court turned aside a void-for-vagueness challenge raised for the first time on appeal when the defendant's actions did not fall within the alleged ambiguity but were unquestionably proscribed. State v. Papen, 274 Kan. 149, 161–62, 50 P.3d 37 (2002). That is settled doctrine. See United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); United States v. Kernell, 667 F.3d 746, 750 (6th Cir.2012) (“Even if a statute might be vague as it relates to other, hypothetical defendants, courts will not entertain vagueness challenges on behalf of a defendant whose conduct plainly falls within the ambit of the statute.”); Mannix v. Phillips, 619 F.3d 187, 197 (2d Cir.2010).
Knight's conduct does not lie in the purported netherworld of vague prohibition he postulates for K.S.A. 21–3608a. Permitting a 2–year–old child to roam unsupervised at a public beach for several hours could not be considered reasonable even if the place were well populated. The risk of drowning might not necessarily be likely but it would be real and substantial—something more than an abstract possibility. Similarly, an unsupervised child of that age could well be a target for abduction, a risk perhaps increased at a heavily populated beach where the act would more likely go unnoticed. And, of course, supposing that adults at the recreational area would spontaneously recognize a small child to be unsupervised and then assume some duty to look out for his or her safety and wellbeing is itself legally unreasonable, although we all might hope that the kindness of strangers would avert a tragedy.
Knight's hypothetical of a parent allowing a child to play organized sports doesn't much advance his argument for injustice in this case. If a district or county attorney chose to prosecute that case and a jury were disposed to convict in that case, this court might then exercise its discretion to consider a void-for-vagueness argument for the first time to avert a possible injustice of constitutional proportion. A parade of those sorts of hypothetical circumstances cannot rescue Knight from the reality of his own conduct in this case.
Courts may be particularly solicitous of vagueness challenges to criminal statutes that conceivably could, absent specific construction, extend to constitutionally protected speech or conduct. Without a judicial narrowing, persons may be deterred from engaging in activity otherwise protected under the First Amendment to the United States Constitution. In that limited context, courts may entertain a vagueness challenge from a defendant whose conduct plainly falls within the legitimate prohibitions of the statute and is, in effect, making an argument based on the hypothetical activities of others. Williams, 553 U.S. at 304. The facts of this case implicate no such First Amendment concerns, and Knight claims none.
Finally, a vague criminal statute could be subject to arbitrary or discriminatory enforcement against individuals based on impermissible characteristics such as race, religion, or gender. State v. Watson, 273 Kan. 426, 44 P.3d 357 (2002). Knight does not suggest he was somehow singled out for prosecution for a reason other than his apparent conduct at the lake. In sum, then, we find no compelling reason to take up Knight's belated challenge to the alleged vagueness of K.S.A. 21–3608a. We, therefore, do not.
Sufficiency of the Evidence
Knight challenges the sufficiency of the evidence to support his conviction. In considering a sufficiency challenge, the reviewing court takes the evidence in a light most favorable to the party prevailing below, here the State, and asks whether rational jurors could have found guilt beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). The appellate court neither reweighs the evidence generally nor makes independent credibility determinations about conflicting trial testimony. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
As we have noted, K.S.A. 21–3608a(a)(2) criminalizes “recklessly causing or permitting a child under the age of 18 years to be placed in a situation in which the child's life, body or health is injured or endangered.” At the time of Knight's trial, reckless conduct was defined in K.S.A. 21–3201(c) as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” The crime of conviction, then, requires that a minor be placed in a position in which he or she may be in peril. The child need not suffer actual harm or injury.
Taken favorably to the State, the evidence supports the jury's verdict. H.K. was no more than 3 1/2 years old. There was no evidence she could swim well or at all. H.K. remained at the beach for at least several hours without supervision from Knight, during which time she ventured into the water. The beach was crowded, and there were no lifeguards. Despite the goodwill and best intentions of various people on the beach, those circumstances placed H.K. in physical peril in at least two substantial ways, as we have noted. She could have drowned or she could have been abducted. While harm to H.K. was neither inevitable nor even necessarily probable, it was imminent in the sense that drowning or abduction would have occurred quickly with horrific consequences.
The State argues that H.K. faced sunburn and dehydration from spending several hours on the beach without supervision. Those considerations buttress the jury's verdict. But there was no medical evidence that H.K. actually had an injurious sunburn requiring treatment or experienced symptoms of dehydration or hyperthermia. The collective circumstances, however, endangered or threatened H.K.'s wellbeing in a way sought to be prohibited in K.S.A. 21–3608a(a)(1).
We may conclude from the evidence taken favorably to the State that the jury discounted Knight's version of events. In turn, Knight left H.K. unsupervised on the beach for several hours, not the 15 minutes he claimed, whether he was in the parking lot with the other children or somewhere else altogether. Knight's false account of the events supports the conclusion that he knew or appreciated leaving H.K. at the beach for hours created a dangerous set of circumstances. So he offered a version of events reducing H.K.'s unsupervised time on the beach from several hours to a matter of minutes. But that version conflicts with the testimony of disinterested witnesses on the scene.
Knight's sufficiency argument fails.
Jury Instruction on H.K.'s Age
Knight contends the district court improperly commented about and instructed the jury on H.K.'s age. An element of aggravated endangerment of a child requires the victim be under the age of 18. The jury instruction outlining the elements the State must prove informed the jurors they had to determine beyond a reasonable doubt “[t]hat H.K. (DOB: xx/xx/2007 or 2006) was then a child under the age of 18 years.” In addition, while reading the instructions to the jury, the district judge paused and said:
“You know, in this case as far as the requirements are concerned it's just that the child be under the age of 18 so whether the child was born in '06 or ' 07 makes little difference if you find the child was one or the other date in that both dates would make the child under 18.”
In preparing the written instructions that way and in commenting on that element while presenting the instructions to the jury, the district court effectively directed a verdict as to H.K.'s age. The jurors were told in the instruction that H.K. had been born in either 2006 or 2007. They were then asked to determine if she was less than 18 years old. The written instruction contained a finding of fact as to H.K.'s birth date that was only reinforced through the district judge's additional comment. And the factual finding necessarily directed a conclusion against Knight on the element of the victim's age. That is error. In a criminal case, a district court cannot direct a finding against a defendant on any element of the charged offense no matter how overwhelming the evidence. To do so violates a defendant's due process protections under the Fourteenth Amendment to the United States Constitution and the right to jury trial under the Sixth Amendment. See Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73, 97 S.Ct. 1349, 51 L.Ed.2d 642 [1977];Sparf v. United States, 156 U.S. 51, 105–06, 15 S.Ct. 273, 39 L.Ed. 343 [1895] );State v. Bice, 276 Kan. 758, Syl. ¶ 2, 80 P.3d 1113 (2003).
But an error of that sort may be subject to review for harmlessness in some circumstances. The United States Supreme Court has recognized a criminal defendant suffers no prejudicial error even if a jury instruction omits an element of the charged offense so long as the evidence produced on that element is overwhelming and the defense has, for all practical purposes, conceded its proof. Neder v. United States, 527 U.S. 1, 9–10, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Relying heavily on Neder, the Kansas Supreme Court has taken the same position. State v. Daniels, 278 Kan. 53, 58–63, 91 P.3d 1147,cert. denied543 U.S. 982 (2004). The impact of directing a verdict on an element is not materially different from omitting the element altogether. In either situation, the element effectively has been withdrawn from the jury's consideration. In one, the district court mandates the jury's conclusion, and in the other, the jury never comes to any conclusion at all. Either way, the State benefits by not having to prove that element.
Here, all of the evidence showed H.K. to be a toddler and, thus, obviously less than 18 years old. Knight, of course, wisely did not defend on the ground that H.K. might have been older than 18. Accordingly, the instructional error, including the district judge's added commentary while reading the instructions to the jury, was harmless beyond any doubt. The outcome of the case would not have differed had the jury been correctly informed of the elements.
Answer to Jury Question
Knight submits that the district court erroneously answered a question from the jury during deliberations. We agree. But the record plainly discloses that Knight, through his counsel, invited the error. Knight, therefore, cannot successfully urge the error as a basis for reversal on appeal.
After deliberating for awhile, the jury submitted a written request seeking the definitions for “reckless” and “endangered” as those terms pertained to the case. The district court informed both lawyers and Knight of the jury's inquiry. The prosecutor suggested neither word had any particularized legal definition so the jurors should be told to give the words their common meaning. Knight's lawyer immediately agreed and did so without hesitation or qualification, let alone objection. During the discussion, the prosecutor reiterated that position, and Knight's lawyer again concurred. The district court then fashioned this response: “There is no legal definition we can give you, you should rely on your common understanding of what the words mean.” The prosecutor deemed the response to be “fine.” And Knight's lawyer said, “I think that will work, Judge.” The record reflects the district court, with the consent of the parties, sent the written response to the jury room without assembling the jurors in the courtroom and reading the answer to them before providing the written response.
The response to the jury question was substantively wrong as to the word reckless. As we have noted, the criminal code defines reckless in a particular way. K.S.A. 21–3201(c). The statutory definition is narrower than the common lay meaning of reckless. See Merriam–Webster's Collegiate Dictionary 1039 (11th ed.2003) (reckless defined as exhibiting a “lack of proper caution” and essentially “careless” or “irresponsible”). The statutory definition requires the defendant to have some understanding or appreciation of the risk of harm associated with his or her conduct. Given the failure to include the statutory definition in the initial jury instructions and the defective response to the jury's question, Knight might have been convicted based on too lax a criterion.
But any error was invited and, therefore, cannot form the basis of an appeal. When counsel joins in the formulation of an answer to a jury question and approves the final response, any inadequacy amounts to invited error and will not be considered on appeal. The Kansas Supreme Court has been quite clear on this point. State v. Adams, 292 Kan. 151, 163–65, 254 P.3d 515 (2011); State v. Bruce, 255 Kan. 388, 395–98, 874 P.2d 1165 (1994). Even if Knight's point might have substantive merit—something we do not decide—we decline to consider the issue.
We make two other observations on this score. On appeal, the State has not specifically argued the response to the jury request amounted to invited error. Rather, the State contends referring the jurors to their common understanding of “reckless” was legally correct, and, if not, the error was something less than clear. We, of course, reject the first contention; we doubt, without deciding, the second. Because the propriety of the response to the jury inquiry has been joined as an issue on appeal, we are not limited to the parties' specific arguments for affirming or reversing. Once an issue has been raised and argued, an appellate court may decide the point on what it deems to be an appropriate legal ground even though neither party advanced that particular ground. In other words, the court need not confine its analysis and determination to the arguments presented in the briefing of the issue, especially if those arguments are legally unsatisfactory. Those arguments merely reflect the parties' assessments of the best advocacy for their respective positions—not the universe of every rationale for a given result. Appellate courts decide issues; they do not arbitrate or grade arguments. We, therefore, may rely on invited error to reject Knight's contention the verdict must be reversed because of the district court's mistaken response to the jury request.
Cumulative Error
For his final point, Knight submits cumulative error in his trial deprived him of a fair hearing even if each error standing alone did not do so. The argument fails here. We look only to the impact of properly preserved errors. To do otherwise would allow a criminal defendant to resurrect lost errors—those waived, invited, or simply never raised in the district court—in the guise of cumulative error. Moribund errors do not gain vitality in that way.
In this case, Knight has presented only one viable error on appeal resting on the instructional mistake regarding H.K.'s age. There is nothing to cumulate when only a single error has been properly presented on appeal. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010) (“A single error does not constitute cumulative error[, and] ... the doctrine is inapplicable.”). Knight establishes neither cumulative error nor cumulative error requiring reversal.
Affirmed.