Opinion
No. 107,760.
2013-05-17
STATE of Kansas, Appellee, v. Kent Patrick LYNCH, Appellant.
Appeal from Sedgwick District Court; Phillip B. Journey, judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Phillip B. Journey, judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM:
In this appeal, following Kent Patrick Lynch's conviction of theft, Lynch claims the district court erred (1) in denying his motion for a mistrial, and (2) in instructing the jury on reasonable doubt. We find no error and affirm.
Lynch was arrested and charged with theft after he was caught shoplifting at a Sears store. The following exchange took place at trial during the State's direct examination of a police officer:
“Q. So after you finish up your paperwork, what do you do?
“A. I always check to make sure somebody doesn't have warrants, which in this case I don't believe he did, but I can look at my arrest report to make sure. No, he did not. Then I did a records check and found that he had two prior
“Q. That's okay. We don't have to go into that.
“A. Okay.”
Defense counsel did not object. Nevertheless, the judge later admonished the jury, “I am going to instruct the jury that they are to disregard the last statement made by the officer on direct examination regarding the records check. You are not to consider that or speculate regarding the nature of that check or the results of that.” Defense counsel then moved for a mistrial, arguing:
“The officer did not get the full statement out clearly but made it clear to the jury that [Lynch] had prior convictions. Can't unring a bell and I think the damage was done.
“I think the Court did what it could do with the admonition. However, 1 just don't believe that's enough to protect [Lynch's] rights.”
The district court denied the motion, and Lynch now contends that the district court abused its discretion in doing so.
We will not disturb a district court's ruling on a motion for mistrial absent a clear showing of abuse of discretion. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012). Judicial discretion is abused if the ruling is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. 293 Kan. at 814.
K.S.A. 22–3423(l)(c) gives the trial court discretion to “terminate the trial and order a mistrial at any time that he finds termination is necessary because ... (c) [p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
The district court's ruling on the motion was correct. First, the officer's testimony did not improperly prejudice Lynch. The prosecutor astutely interrupted the officer before he could make any improperly prejudicial remark. The officer did not testify that Lynch had two prior convictions. He did not testify what the two things were that he found in the records. For all the jury knew, the officer may have been referring to two prior warning tickets for speeding or failure to signal for a turn. The officer's comment did not establish that Lynch had a criminal record. See State v. Albright, 283 Kan. 418, 427, 153 P.3d 497 (2007).
Second, the judge's admonition to the jury cured any potential prejudice. The judge's admonition was not requested by defense counsel, possibly defense counsel's conscious decision to avoid drawing undue attention to the officer's comment. In any event, we presume that the jury followed the court's admonition. See State v. Barncord, 240 Kan. 35, 44–45, 726 P.2d 1322 (1986); State v. Rivera, 42 Kan.App.2d 914, 921–22, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010).
Lynch's second contention on appeal is that the district court erred in instructing the jury on reasonable doubt. The district court used an older version of PIK Crim.3d 52.02 when it instructed the jury:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that [he] is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
Lynch claims that the district court should have given the newer version of PIK Crim.3d 52.02 and that the error resulted in structural error warranting automatic reversal. The newer version of PIK Crim.3d 52.02 replaces the second “any” with the word “each.”
Lynch did not object to the instruction, so any error requires reversal only if we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. See K.S.A. 22–3414(3); State v. Williams, 295 Kan. 506, Syl. ¶¶ 3–5, 286 P.3d 195 (2012).
In our Supreme Court's recent decision in State v. Herbel, 296 Kan., No. 103,558, 2013 WL 1365348, at *17 (2013), the court rejected this argument, holding that “[w]hile the older PIK instruction used in Herbel's trial was not the preferred instruction, it was legally appropriate. [Citations omitted.]” Herbel controls.
Affirmed.