Opinion
No. 106,097.
2012-07-20
STATE of Kansas, Appellee, v. Antonio McCOY, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Antonio McCoy asks us to overturn his convictions because the State presented insufficient evidence. Viewing the evidence in the light most favorable to the State, as the law requires, we agree with McCoy that the State failed to present sufficient evidence to find him guilty of the battery of Alyssha Johnson. The State concedes this point. But, after examining the record thoroughly, we conclude the State did present sufficient evidence to affirm the remaining convictions. Thus, we reverse one battery conviction and affirm the remaining counts.
A confrontation at a night club becomes physical.
Prior to trial, McCoy moved to suppress the witness identification evidence in the case. This hearing was transformed later into a trial to the court. At this hearing, April Narvaez testified that in the early morning of June 20, 2009, she, Andre T. Sebastian, Alyssha Johnson, and Andrea Johnson were at the El Patron club. They left the club together at around 1:30 a.m. The witness, Narvaez, who was standing by her car in the parking lot, noticed that Andrea had gotten out of another car to talk to an unidentified male. Sebastian, who had been in the same car as Andrea, got out and told Andrea they were ready to go. Narvaez testified this appeared to upset the male, who was apparently trying to “get Andrea's number.” At that point, a group of men exited a white Suburban and approached the male who was trying to talk to Andrea from behind. Narvaez said the situation escalated from there.
Narvaez testified the men tried to fight Sebastian. At some point, one man approached Sebastian from behind and hit him on the back of the head. Narvaez said the man was wearing a green and yellow plaid shirt. Narvaez testified that after Sebastian was hit, he fell straight over and his head bounced off the ground two times. Narvaez said there was a “ton of blood” behind Sebastian's head. The man then proceeded to hit Sebastian “a couple more times.” The other men began yelling and hitting Alyssha and Andrea as the girls attempted to pull the men off Sebastian. Narvaez testified that the man who hit Sebastian from behind also began hitting Alyssha and Andrea. Narvaez noted that another man, who was wearing a khaki shirt, also hit Sebastian, Alyssha, and Andrea. Narvaez testified that all the men involved in the situation then left in the white Suburban.
Narvaez called 911 and gave the dispatcher the license plate number of the white Suburban. An officer later took Narvaez to another location, where the suspect vehicle had been recovered. There, Narvaez was asked to identify the men involved in the altercation. Narvaez identified McCoy as the person who hit Sebastian from behind. Narvaez noted that after the altercation, McCoy was “hanging out of the Suburban,” waving his arms, and yelling that it was he who knocked Sebastian out. Based on this, Narvaez said she was able to identify McCoy with the greatest certainty. Narvaez noted that McCoy was the person she focused on during the entire incident.
Contrary to Narvaez' testimony, Andrea testified that a man in khaki clothing hit Sebastian in the back of the head. Andrea said that she was trying to cover Sebastian, and another guy, who was wearing a flannel or plaid shirt, was hitting her sister Alyssha. When asked whether she could identify who Alyssha was fighting with, Andrea testified she could not remember.
Neither Sebastian nor Alyssha testified at the suppression hearing.
At the suppression hearing, McCoy waived his right to a jury trial. The district court permitted the parties to continue presenting evidence on the suppression motion, thus converting the proceeding to a bench trial.
The court found McCoy guilty beyond a reasonable doubt on all three charges. In doing so, the court stated that its decision was “based primarily” on the testimony of Narvaez. The court explained that Narvaez was a disinterested, uninvolved person with a clear view of the incident and her testimony never varied or waivered with regard to her identification of McCoy as the person who hit Sebastian from behind. With regard to the battery of Alyssha and Andrea, the court pointed to Narvaez' testimony that McCoy hit both girls while they tried to get him off Sebastian.
Our standard of review.
Our law is well settled on this point. When sufficiency of the evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In reviewing the sufficiency of the evidence, this court will not reweigh the evidence. It is the factfinder's function, not ours, to weigh the evidence and determine the credibility of witnesses. State v. Cosby, 293 Kan. 121, 133–34, 262 P.3d 285 (2011).
There was no proof of bodily harm to Alyssha Johnson.
McCoy was charged with unlawfully and intentionally or recklessly causing bodily harm to Alyssha contrary to K.S.A. 21–3412(a)(1). At the hearing, there was testimony that Alyssha was hit, but no testimony that she sustained bodily harm. And there was no testimony from which the trier of fact could infer bodily harm. For example, there was no description of the blow rendered, no testimony regarding the amount of force used, and no evidence of physical damage to Alyssha's body. Thus, there is insufficient evidence to support McCoy's conviction for battery against Alyssha. Significantly, the State concedes this issue on appeal.
The remaining counts were proved.
McCoy was charged with unlawfully and intentionally causing physical contact with Andrea Johnson in a rude, insulting, or angry manner contrary to K.S.A. 21–3412(a)(2). At the suppression hearing, Narvaez testified that McCoy hit Andrea as she and Alyssha attempted to get him off Sebastian. Andrea was not asked whether McCoy or anyone else hit her, so she provided no testimony on this point. In response to questioning, Andrea simply confirmed that someone hit Alyssha.
On appeal, McCoy argues there is insufficient evidence that Andrea was battered because she never confirmed she was hit. McCoy argues the only evidence on this point came from Narvaez—and her testimony contradicts the testimony of Andrea, the victim.
This court will not reweigh the testimony of Andrea against that of Narvaez, nor will it question the credibility of Narvaez. See Cosby, 293 Kan. at 134.
On appeal, McCoy argues, “This is not a matter of this court having to evaluate the credibility of the witnesses and reweigh the evidence.” To the contrary, this is precisely what McCoy asks this court to do. McCoy points to the “unreliability of the testimony,” says there are “wildly conflicting statements” in the evidence, and claims Narvaez' “observation abilities are also questionable.” McCoy clearly seeks to reweigh the evidence and question witness credibility.
In finding McCoy guilty of battery against Andrea, the district court noted that its decision was based primarily upon Narvaez' testimony. The court explained that Narvaez was a disinterested, uninvolved person with a clear view of the incident. Notably, Narvaez testified that nothing was blocking her vision of the incident and she had an unobstructed view of McCoy during the entire event. And as noted, Narvaez testified that McCoy hit Andrea as she and Alyssha attempted to get McCoy off Sebastian. In finding McCoy guilty of battery against Andrea, the district court noted Narvaez' testimony on this point.
Viewing the evidence in the light most favorable to the State, there is sufficient evidence to support the district court's conclusion that McCoy was guilty beyond a reasonable doubt of the battery of Andrea.
Turning to the next conviction, we note that McCoy was charged with unlawfully and intentionally causing bodily harm to Sebastian in a manner whereby great bodily harm, disfigurement, or death could have been inflicted. On appeal, McCoy says there is insufficient evidence to support his conviction on this charge because Sebastian did not testify at trial, Narvaez and Andrea only identified Sebastian as “Andre,” there was no evidence that Sebastian's injuries were caused by McCoy or that they resulted from the incident at El Patron, and Andrea testified that the man in the khaki clothing was the person who hit Sebastian in the back of the head.
McCoy asks this court to reweigh the evidence. Each argument made by McCoy requires this court to question the evidence and speculate as to how certain pieces of evidence do or do not support the aggravated battery conviction. We again decline his offer to reweigh the evidence or determine witness credibility.
A review of the record is helpful here. First, there was never any question that the victim, referred to as “Andre” by both Narvaez and Andrea, was anyone other than Andre Sebastian. Second, McCoy stipulated to evidence that Sebastian was taken to Saint Francis Hospital on June 20, 2009, for a CT scan, which revealed a subdural hematoma. There was never any question that Sebastian's injuries as reported in the hospital discharge summary were caused by McCoy's actions during the incident at El Patron.
Viewing the evidence in the light most favorable to the State, there is sufficient evidence to support the district court's conclusion that McCoy was guilty beyond a reasonable doubt of aggravated battery against Sebastian. Narvaez testified that a man, who she later identified as McCoy, came from behind Sebastian and hit him on the back of the head. Narvaez testified that Sebastian's head bounced off the ground two times, there was a “ton of blood” behind Sebastian's head, and the man proceeded to hit Sebastian “a couple more times.” Narvaez indicated that after the altercation, McCoy was “hanging out of the Suburban,” waving his arms, and yelling that it was he who knocked Sebastian out. Based on this, Narvaez said she was able to identify McCoy. Sufficient evidence supports McCoy's conviction for aggravated battery.
We reverse McCoy's battery conviction concerning Alyssha Johnson and affirm his convictions for the battery of Andrea Johnson and the aggravated battery of Sebastian.