Opinion
No. 108,155.
2013-03-8
STATE of Kansas, Appellee, v. James MOISON, Appellant.
Appeal from Shawnee District Court; Philip L. Sieve, Senior Judge, assigned. John A. Fakhoury, of Fakhoury Law Office, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Philip L. Sieve, Senior Judge, assigned.
John A. Fakhoury, of Fakhoury Law Office, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.L, McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
James Moison was convicted at a bench trial of domestic battery, first offense. On appeal, Moison contends (1) the evidence was insufficient to support his conviction, and (2) K.S.A.2011 Supp. 21–5414(b)(1) does not mandate he serve a mandatory minimum sentence of 48 hours' imprisonment. We affirm in part and dismiss in part.
The incident that resulted in his conviction occurred on August 13, 2011. On that date, Moison and his wife Amy went out to dinner with acquaintances, Bradley and Renee Johnson, and both couples' children. After dinner, the group continued socializing at the Johnson house.
While sitting around the table talking about various topics, Moison became visibly angry, particularly at Amy. He raised his voice, pounded his fist on the table, kicked or nudged Amy's leg under the table, and allegedly threw a glass of water on her face. Moison wanted to leave at that point, but everyone tried to talk him into staying because everyone had been drinking all evening and no one was in any condition to drive. Amy testified she refused to leave with Moison because he started calling her names, and Moison told her he wished she were dead or he wished she would die. Amy hid in the bathroom and called 911.
Deputy Aaron Steinlage was dispatched to the Johnson house and talked to Amy, who was visibly upset. After talking to the parties, Moison was arrested for domestic assault and criminal threat.
The State ultimately charged Moison with domestic battery, first offense. A bench trial was conducted, and the district court found Moison guilty of domestic battery. Moison was sentenced to 3 months in the county jail and placed him on 6 months' probation. However, the district court further concluded that K.S.A.2011 Supp. 21–5414(b)(1) required the defendant to serve a mandatory jail sentence of 48 consecutive hours.
Moison has filed a timely appeal challenging the sufficiency of the evidence to support his conviction for domestic battery and the district court's interpretation of K.S.A.2011 Supp. 21–5414(b)(1). The evidence was sufficient to support conviction
Domestic battery is defined as “knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting or angry manner.” K.S.A.2011 Supp. 21–5414(a)(2). Moison contends that neither the kick under the table nor the alleged act of throwing a glass of water on Amy was sufficient to support his conviction of domestic battery. He does not deny a family relationship existed or that he was angry during the incident.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Furthermore, when making a sufficiency of the evidence determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Moison makes a persuasive argument that the evidence was insufficient to support a finding that he kicked Amy in a rude, insulting, or angry manner. However, we believe the record on appeal supports our conclusion that the district court did not find Moison guilty of domestic battery as a result of the so-called kicking incident, but rather because of the throwing of a glass of water in Amy's face. In its ruling, the district court judge stated:
“[T]here is testimony by Mr. Moison that he nudged [Amy]. But certainly there is testimony of two witnesses that he took a glass of water and threw it on Mrs. Moison in a very angry state of mind. And the statute states that it's a violation if you unlawfully, intentionally cause physical contact in a rude, insulting, or angry manner with a family or household member, and I don't think there's any question that in my mind, that that kind of conduct was engaged in.”
Moison argues there was not substantial competent evidence to support the above finding of the district court. He notes Amy testified extensively regarding the kick, but she only mentioned the water incident in her written statement given to Deputy Steinlage and not in her oral testimony. Moison acknowledges Bradley testified that Moison threw a glass of water on Amy but emphasizes in Bradley's written statement that he stated: “ ‘I think the discussion ensued and he threw a glass of water on Amy.’ “
Moison invites us to conclude that based on the discrepancies between the oral testimony of the witnesses and their respective written statements given to Deputy Steinlage, which were admitted into evidence, we should conclude the evidence is insufficient to support his conviction for domestic battery.
However, under our standard of review, we conclude substantial competent evidence supported the district court's finding that Moison knowingly causing physical contact with Amy by throwing a glass of water on her face and that he did so in a rude, insulting, or angry manner. Despite Amy's failure to mention the water incident during trial, her written statement given at the time of the incident to Deputy Steinlage was admitted into evidence and stated Moison got angry, slammed his fist on the table, and threw his drink all over her. Defense counsel tried to suggest water was spilled on Amy when Moison pounded the table, splashing the drinks. But Bradley testified, “No. I recall her having to wipe the water off of her face.” Defense counsel persisted and asked, “Well, but did it get onto her face because he hit the table and it bounced up?” Bradley answered, “No, no, sir. I recall him throwing a glass of water in her face.” See State v. Brown, 46 Kan.App.2d 210, 212, 262 P.3d 1055 (2011) (intentionally shoving someone during an argument is sufficient to show the contact was done in a rude, insulting, or angry manner and supported the domestic battery conviction), rev. denied 293 Kan. –––– (February 17, 2012). Accordingly, Moison's conviction for domestic battery is affirmed. Interpretation of K.S.A.2011 Supp. 21–5414(b)(l)
Moison argues the plain language of K.S.A.2011 Supp. 21–5414(b)(1) does not require that a defendant actually serve the mandatory minimum sentence of 48 hours before being placed on probation. Moison asks that his case be remanded for resentencing so that the district court properly exercises its discretion under the statute.
We will not address this issue. In the record on appeal is a custody slip ordering Moison to report on May 18, 2012, to serve 48 hours in custody. Consequently, we issued a show cause order and there has been no response from the parties. We conclude the issue presents a moot question. State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012) (As a general rule an appellate court does not decide moot questions or render advisory opinions.); see also State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008) (defendant has a duty to designate a record sufficient to support the claimed error).
Affirmed in part and dismissed in part.