Opinion
111,233.
04-10-2015
STATE of Kansas, Appellee, v. Donald LARSSON, Appellant.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Corrine E. Johnson, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Donald Larsson appeals his conviction and sentence for aggravated battery in violation of K.S.A.2014 Supp. 21–5413(b)(1)(A). Larsson also challenges the designation of his conviction as a domestic violence offense under K.S.A.2014 Supp. 22–4616 for sentencing subject to K.S.A.2014 Supp. 21–6604(p). Having carefully reviewed the record on appeal and the parties' briefs, we affirm the conviction and sentence.
Factual and Procedural Background
On April 28, 2013, Larsson and Nova Baker were living together in Wichita. Baker testified Larsson was her “boyfriend” and that their relationship had lasted “[o]ff and on for over seven years.” After an evening of heavy drinking, Larsson attacked Baker in the kitchen of their split-level house.
Larsson shoved his hand into Baker's face, breaking her glasses. He then pulled a range hood off the wall and threw it at Baker. Baker blocked the range hood with her hands. She testified this defensive action did not injure her wrists.
Baker left the kitchen and walked down a hallway in an attempt to reach a bathroom. Based on the testimony, the hallway opened onto a flight of stairs running down about seven steps to a landing. The front door was at the landing, and a lower flight ran from the landing about four or five steps to the basement door. (Both the State and Larsson introduced in evidence interior photographs of the house, but these were not included in the record on appeal.)
When Baker passed the opening to the stairs, Larsson shoved her in the back. Baker testified that she was cast face-forward “straight down the stairs.” Extending her hands to break her fall, Baker passed over the top steps, scraped her knees on the bottom steps of the flight of stairs, and struck the landing.
Baker attempted to unlock the front door, but she testified Larsson “grabbed ahold of me and turned me around, he kind of picked me up and threw me down the [lower] flight of stairs.” Baker again extended her hands, but she testified: “I didn't even hit the steps that time. I just flew and hit the [basement] door and landed.”
Larsson walked away, and Baker returned to the front door to escape. As she attempted to undo the deadbolt, she felt pain in her wrists and realized she had been injured. Baker went to a neighbor's house, but she could not dial 911 or even hold the phone because of pain in her hands.
Baker was diagnosed with fractures to both wrists and one elbow. The treating physician testified Baker “had some abrasions to her face. But other than that, she didn't have any major trauma marks.”
At trial, Larsson testified in his own defense. According to Larsson, the range hood fell off by itself, startling Baker and causing her glasses to fall to the floor. Larsson said he accidentally stepped on Baker's glasses, angering her and causing her to leave by taking the stairs. Larsson said he followed but that his head struck a mattress stored at the top of the flight of stairs, dislodging it and sending it downward. Larsson said he managed to catch the mattress but not before bumping into Baker, causing her to trip over a box on the landing and fall down the lower flight of stairs.
The elements instruction for aggravated battery asked the jury to determine in part whether Larsson “knowingly caused great bodily harm to Nova Baker.” The prosecutor argued Baker suffered great bodily harm:
“Now, you have to ask yourself when you're looking at the evidence: Is it great bodily harm? Well, it's certainly more than just harm. There's not just bruises and scrapes. To be sure, there are bruises and scrapes, but you have multiple broken bones in multiple areas of the body. That, I would submit to you, ladies and gentlemen, to me, is great bodily harm.
...
“Well, let me tell you in no uncertain terms the result complained about by the State is Nova Baker's two broken wrists and broken elbow. So that's the harm we're talking about.”
The prosecution then argued Larsson had caused the harm knowingly:
“Now, you ask yourself—because it's our position that she was pushed down those stairs. So ask yourself if you believe that that is true, when somebody pushes somebody from behind down a set of stairs, are they reasonably aware that an injury is going to occur? I would submit to you that that's precisely what the intent is if somebody pushes somebody from behind down the stairs then proceeds to follow them and then pick them up by the waist and throw them again. It goes beyond knowingly. That's an intentional act. That's an intentional attempt to harm somebody. And guess what? It worked.”
The jury returned a guilty verdict on the aggravated battery charge. The jury also found in response to a special question that the aggravated battery was “a crime of domestic violence.” Larsson appeals.
Failure to Give a Unanimity Instruction
Larsson argues for the first time on appeal that the trial court failed to give a unanimity instruction. The trial court instructed the jury that its “agreement upon a verdict must be unanimous,” but Larsson contends the trial court “failed to instruct the jury that its members must all agree on the specific criminal act it used to convict.”
Our standard of review provides: “When jury unanimity is at issue, there are three sequential questions presented.” State v. Santos–Vega, 299 Kan. 11, Syl. ¶ 2, 321 P.3d 1 (2014).
“The first is whether the appellate court is presented with a multiple acts case. This determination is a question of law over which an appellate court exercises unlimited review.”
“When there is a multiple acts case, the second question presented when jury unanimity is at issue is whether error was committed. In multiple acts cases, either the State must have informed the jury which act to rely upon in its deliberations or the court must have instructed the jury to agree on the specific criminal act. The failure to elect or instruct is error.”
“When the State has not informed the jury which act to rely upon in its deliberations and the trial court has failed to instruct the jury to agree on a specific criminal act in a multiple acts case, the third question is whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or its absence not objected to is the clearly erroneous standard, as provided in K.S.A. 22–3414(3). 299 Kan. 11, Syl. ¶¶ 2 –4.
“Multiple acts are legally and factually separate incidents that independently satisfy the elements of the charged offense.” State v. Castleberry, 301 Kan. 170, Syl. ¶ 5, 339 P.3d 795 (2014). The key question is “whether the defendant's conduct is part of one act or represents multiple acts that are separate and distinct from each other.” State v. Allen, 290 Kan. 540, 542, 232 P.3d 861 (2010). “There is no single test for whether conduct constitutes one act or separate and distinct multiple acts.” 290 Kan. at 544.
We begin by eliminating one of the possible acts. Larsson argues the jury might have convicted him based on his act of pulling the range hood off the kitchen wall which struck Baker. But there was no evidentiary basis to conclude Baker suffered great bodily harm in the kitchen. In that instance at least, the jury did not hear “evidence of multiple acts, each of which could have supported conviction on a charged crime.” State v. King, 299 Kan. 372, 379, 323 P.3d 1277 (2014). Moreover, there was no argument by the State that the incident in the kitchen caused Baker's injuries.
Turning then to the acts which occurred on the stairs, the split-level design of the house meant Baker did not fall all the way to the basement when Larsson shoved her. Instead, she struck the landing, where Larsson picked her up and threw her again down the lower stairs leading to the basement door. Larsson argues these two actions were “separate acts” motivated by a “ ‘fresh impulse.’ “
We are not persuaded. On the record before us, there is no showing of multiple acts on the stairs. “Incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a criminal act is motivated by a fresh impulse.” Castleberry, 301 Kan. 170, Syl. ¶ 5. Larsson's two instances of violence involving Baker occurred in close temporal sequence and at the same location in the house.
Larsson argues there was a fresh impulse, but we disagree. The case cited by Larsson, State v. Foster, 290 Kan. 696, 714, 233 P .3d 265 (2010), included intervening acts, such as directing the victim to dress and then undress, and committing other crimes against other victims. Here, Larsson angrily thrust Baker down what was in essence a single staircase, with two flights, continuing the attack until she had reached the bottom.
We conclude this was one continuous act and, therefore, a unanimity instruction was not required. See Castleberry, 301 Kan. at 187 (“[Defendant's] attempts to elude arrest were continuous and uninterrupted, even though the resistance evolved from a vehicle chase to a physical altercation.”); State v. Bischoff, 281 Kan. 195, 201–03, 131 P.3d 531 (2006) (finding one act of aggravated assault where a truck driver harassed another driver for 8 miles and followed her off the highway).
Domestic Violence Designation
In another issue not raised below, Larsson contends his due process rights were violated when the trial court accepted the jury's domestic violence determination at sentencing and then memorialized it in the journal entry. On appeal, Larsson argues the trial court should have considered “the factors in K.S.A. 22–4616(a)(2).”
This issue involves two standards of review: “The question of what process is due in a given case is a question of law over which an appellate court has unlimited review.” State v. Moody, 282 Kan. 181, 188, 144 P.3d 612 (2006). We also exercise unlimited review to the extent the question involves statutory interpretation. See Goldsmith v. State, 292 Kan. 398, Syl. ¶ 1, 255 P.3d 14 (2011).
The statute in question, K.S.A.2014 Supp. 22–4616(a), provides: “On and after July 1, 2011, in all criminal cases filed in the district court, if there is evidence that the defendant committed a domestic violence offense, the trier of fact shall determine whether the defendant committed a domestic violence offense.”
In the present case, the trial court followed the statute's direction by instructing the jury to find whether “the State has proved beyond a reasonable doubt that the defendant's crime or crimes were acts of domestic violence.” The instruction also defined a crime of domestic violence as “an act or acts of violence or threatened act of violence directed toward ... a family or household member by a family or household member,” with further definitions for a “ ‘family or household member.’ “ After the jury determined that Larsson had committed a domestic violence offense, the trial court followed the statute's direction to “place a domestic violence designation on the criminal case.” K.S.A.2014 Supp. 22–4616(a)(1).
Larsson now contends he was denied due process because the trial court “failed to give [him] ... a meaningful” hearing on a certain exception to the domestic violence designation statute. Specifically, the statute provides that the trial court “shall not place a domestic violation designation on the criminal case ... only if the court finds on the record” that the defendant had not previously committed such an offense, and “the domestic violence offense was not used to coerce, control, punish, intimidate or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member.” (Emphasis added.) K.S.A.2014 Supp. 22–4616(a)(2)(A)–(B).
Larsson reads this statute to require findings by the trial court ruling out the statutory exception. In a similar vein, Larsson complains the trial court “simply adopted the jury's finding at trial, which did not consider [his] criminal history or determine the intent behind the acts leading to conviction.”
We are convinced a plain reading of K.S.A.2014 Supp. 22–4616(a)(2)(A)–(B) does not support Larsson's argument. The statutory exception requires findings when the trial court does not place a domestic violence designation on the criminal case. Here, the trial court placed the designation, so findings were not required. Stated another way, the statute does not require the trial court to make findings ruling out the exception when it places the designation following the jury's determination. Larsson therefore was not denied any process due under the statute. See State v. Gordon, 50 Kan.App.2d 1177, 337 P.3d 720 (2014), petition for rev. pending filed December 15, 2014.
Consideration of Criminal History at Sentencing
For his final issue, Larsson contends the trial court erred by considering his criminal history at sentencing. Larsson acknowledges the Kansas Supreme Court held to the contrary in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and he raises the issue only to preserve it for federal review. We are duty bound to follow the precedent of our Supreme Court. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Affirmed.