Opinion
No. 110,313.
2014-11-21
STATE of Kansas, Appellee, v. Brian M. OLIVARES, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Rachel L. Pickering, 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 ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this direct criminal appeal, Brian M. Olivares alleges two trial errors warrant reversal of his conviction by a jury of aggravated escape from custody. First, he argues aggravated escape from custody is an alternative means crime, and the State failed to produce sufficient evidence to convict him on each alternative mean presented to the jury. Second, he contends the instruction used by the court erroneously omitted the element of the culpable mental state required to commit the crime of aggravated escape from custody. For the reasons stated below, we find aggravated escape from custody is not an alternative means crime and, although the district court erred in instructing the jury, the instruction was not clearly erroneous as required to preserve the issue for appellate review.
Facts
This case began with Olivares' departure from the Wichita Work Release Facility on May 8, 2012. At the time, Olivares was in the custody of the Kansas Secretary of Corrections, serving a controlling 44–month prison sentence imposed in July 2010. Olivares checked out of the work release facility just after noon that day using an employment pass that indicated he was authorized to leave for a work shift at the Red Beans Bayou Grill in Wichita. He was due to return from his shift at 11 p.m. that same night. When he failed to return, the work release facility's protocol procedures revealed that Olivares had not been taken to work that day. When Olivares had not been located by 12 a.m. on May 9, 2012, he was declared to be on escape status, and a warrant was issued for his arrest. Two days later, law enforcement found and arrested Olivares at an apartment in Wichita.
Based on these events, the State charged Olivares with aggravated escape from custody in violation of K.S.A.2011 Supp. 21–5911(b)(1)(G). A 1–day jury trial ensued. The State's main witness was Officer Ed Bradley, whose signature appeared on the employment pass used by Olivares to leave the work release facility. That pass was admitted into evidence at trial but is not included in the record on appeal. Bradley described at length the general process through which he and other supervising officers verified employment schedules through employers before signing off on employment passes. He also agreed that Olivares was assigned to work at the Red Bean Bayou Grill. However, Bradley testified that Olivares' verified employment schedule for the week of May 4, 2012, indicated that he was off on May 8. According to Bradley, his signature appeared on Olivares' employment pass for May 8, 2012, but he would not have been responsible for verifying that pass because Olivares did not reside on the floor of the facility that Bradley supervised. Bradley repeatedly declined to speculate how his signature ended up on the pass or whether the employment pass had been tampered with, but he agreed that it was “an actual pass from Wichita Work Release” and that it was signed by him.
Following brief deliberations, the jury found Olivares guilty as charged. The trial court subsequently imposed a standard presumptive prison sentence of 120 months. Olivares raises two issues in this timely appeal from his conviction.
Analysis
Alternative means
Olivares claims his aggravated escape from custody conviction must be reversed because the State presented alternative means of committing this offense, and there was insufficient evidence at trial to support each of these alternative means.
A criminal defendant has a statutory right to a unanimous jury verdict on each individual offense charged. See K.S.A. 22–3421; State v. Wright, 290 Kan. 194, 201–03, 224 P.3d 1159 (2010), disapproved on other grounds State v. Brooks, 298 Kan. 672, 684, 317 P.3d 54 (2014). In an alternative means case-where a single offense may be committed in different ways-there must be jury unanimity as to guilt for the single offense but not as to the particular means by which the crime was committed so long as any means of committing the crime is supported by sufficient evidence. 290 Kan. at 202. If a case presents alternative means of committing the offense and the record does not provide sufficient evidence supporting each of the alternative means, the conviction must be reversed. Cf. 290 Kan. at 205–07.
Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law over which an appellate court has unlimited review. State v. Brown, 295 Kan. 181, 193–94, 284 P.3d 977 (2012). In Brown, our Supreme Court clarified the test for identifying whether a statute contains alternative means. The court first noted that ‘ “[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ “ 295 Kan. at 193 (quoting State v.. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 [2010] ). Instead, courts must look primarily to legislative intent to determine whether statutory alternatives are alternative means. The court summarized the proper analysis as follows:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. at 199–200.
The statute under which Olivares was convicted, K.S.A.2011 Supp. 21–5911(b)(1)(G), defines aggravated escape from custody as “[e]scaping while held in custody ... upon incarceration at a state correctional institution while in the custody of the secretary of corrections.” K.S.A.2011 Supp. 21–5911(d)(2) defines “escape” as a “departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court.” Based on this statute, the district court instructed the jury in this case that the State had to prove the following in order to establish the charge of aggravated escape from custody:
“1. The defendant was being held in custody on incarceration at a State Correctional institution while in the custody of the Secretary of Corrections.
“2. The defendant escaped from that custody.
“3. That this act occurred on or about the 8th day of May, 2012, in Sedgwick County, Kansas.
“ ‘Escape’ means departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court.”
Olivares suggests that the crime of aggravated escape from custody as set forth in this instruction states two alternative means because it directed the jury that he could have committed the offense in either of two distinct ways: (1) by departing from custody without lawful authority or (2) by failing to return to custody following temporary leave lawfully granted or ordered by a court. Olivares appears to concede that the State presented sufficient evidence from which a jury could have found he left the facility without lawful authority. However, he argues the State failed to present evidence that he failed to return to custody following an authorized leave. In support of this argument, Olivares contends the State's theory of the case was that Olivares left the facility with authority because he used a forged work pass.
Contrary to the argument presented by Olivares, we find departing from custody without lawful authority on the one hand and failing to return to custody following an authorized leave on the other describe factual circumstances that prove escape. The legislature did not intend the statutory definition of escape to state alternative means of committing the crime of aggravated escape from custody. Rather, the alternatives in the statutory definition of “escape” merely describe factual circumstances in which a material element of the crime of aggravated escape from custody— i.e., escaping—may be proven. In other words, the definition of escape found in K.S.A.2011 Supp. 21–5911(d)(2) simply states options within a means; it does not state alternative distinct, material elements of the crime of aggravated escape from custody as charged in this case.
Because Olivares' challenge to the sufficiency of the evidence to support his conviction is premised on the erroneous contention that the jury was presented with alternative means, it necessarily fails. But even if this was an alternative means case, the State presented sufficient evidence of each mean. Officer Bradley testified that his signature appeared on the employment pass used by Olivares to depart from custody. Granted, the circumstantial evidence suggested it was unlikely to be Bradley's actual signature since he worked on a different floor than the floor on which Olivares was housed. Nonetheless, there was also circumstantial evidence from which a jury could have agreed with Olivares' closing argument that the employment pass was valid. And the undisputed evidence showed that Olivares did not return until he was arrested and brought into custody on May 11, 2012. Thus, sufficient evidence was presented to support a jury's finding that Olivares either departed from custody without lawful authority via a forged employment pass or he failed to return to custody for 3 days after he left on a lawful employment pass. Missing element injury instruction on aggravated escape from custody
Olivares argues that the trial court committed reversible error when it inadvertently failed to instruct the jury on the culpable mental state required to sustain a conviction for aggravated escape from custody. A jury instruction issue is subject to a three-step process on appeal:
“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.” State v. Williams, 295 Kan. 506, Syl. ¶ 1, 286 P.3d 195 (2012).
With respect to the first step, K.S.A.2013 Supp. 22–3414(3) precludes a party from challenging the district court's decision to give or failure to give a particular jury instruction unless (a) the party lodged a specific objection and stated the grounds supporting it or (b) the instruction or the failure to give the instruction is clearly erroneous. See Williams, 295 Kan. 506, Syl. ¶ 3. In this case, Olivares did not object to the language used by the court to instruct the jury on the charge of aggravated escape from custody. Therefore, Olivares is precluded from challenging the instruction at issue on appeal unless he can demonstrate that the instruction was clearly erroneous.
In Williams, our Supreme Court provided the following test to determine whether an instruction or a failure to give an instruction was clearly erroneous:
“[T]he reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶ 4–5.
Based on the process set forth in Williams, we first must determine if the aggravated escape from custody instruction provided to the jury was legally and factually appropriate. Although we previously set forth the jury instruction on aggravated escape from custody, we repeat here for ease of reference:
“1. The defendant was being held in custody on incarceration at a State Correctional institution while in the custody of the Secretary of Corrections.
“2. The defendant escaped from that custody.
“3. That this act occurred on or about the 8th day of May, 2012, in Sedgwick County, Kansas.
“ ‘Escape’ means departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court.”
Had the court utilized the applicable pattern instruction for aggravated escape from custody, the jury would have been instructed that the State had to prove that:
1. The defendant was being held in custody on incarceration at a State Correctional institution while in the custody of the Secretary of Corrections.
2. The defendant escaped from that custody.
3. The defendant did so intentionally, knowingly, or recklessly.
4. That this act occurred on or about the 8th day of May, 2012, in Sedgwick County, Kansas.
Escape means departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court. See PIK.Crim. 4th 59.080.
Based on the recommended PIK instruction, the instruction actually provided to the jury in this case was missing the element that sets forth the culpable mental state required to sustain a conviction for aggravated escape from custody. The State concedes that the instruction as given to the jury was legally inappropriate. For the reasons stated below, we agree.
Relevant to the facts presented in this case, aggravated escape from custody is defined by statute as “escaping while held in custody ... upon incarceration at a state correctional institution while in the custody of the secretary of corrections.” K.S.A.2011 Supp. 21–5911(b)(1)(G). “ ‘[E]scape’ means departure from custody without lawful authority or failure to return to custody following temporary leave lawfully granted pursuant to express authorization of law or order of a court.” K.S.A.2011 Supp. 21–5911(d)(2). The escape from custody statute does not prescribe a culpable mental state. But the legislature has declared that a culpable mental state is an essential element of every crime defined by the Kansas criminal code. K.S.A.2011 Supp. 21–5202(a). To that end, the district court is required to instruct on the culpable mental state necessary for conviction unless the statutory definition of the offense “plainly dispenses with any mental element.” K.S.A.2011 Supp. 21–5202(d). The State can establish a culpable mental state by proving the defendant acted intentionally, knowingly, or recklessly. K.S.A.2011 Supp. 21–5202(e).
Because the definition of aggravated escape from custody does not prescribe a required culpable mental state, the pattern instruction recommended by the PIK committee for this offense includes an element requiring the State prove that the accused acted “intentionally,” “knowingly,” or “recklessly.” PIK Crim. 4th 59.080; see also PIK 4th 52.300 (when the charging statute is silent concerning the culpable mental state, but a culpable mental state is nevertheless required under the code, the PIK committee recommends the charging instruction include the following language: “The State must prove that the defendant [insert specific act committed by defendant] intentionally, knowingly, or recklessly.”). Unfortunately, the district court inadvertently failed to include the culpable mental state element in the aggravated escape from custody instruction. For this reason, the instruction was legally inappropriate and the trial court erred in providing it to the jury.
Having determined it was error to give the instruction without stating the culpable mental state required to convict, we must next determine whether that error was harmless. Where the error is omission of an element of the offense charged when instructing the jury, the United States Supreme Court has recognized that error may be harmless only if the omitted element was “uncontested and supported by overwhelming evidence.” Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The Kansas Supreme Court adopted this standard in State v. Richardson, 290 Kan. 176, 182–83, 224 P.3d 553 (2010). Under this standard, the reviewing court determines whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is “no,” the instruction error may be deemed harmless. State v. Reyna, 290 Kan. 666, 680, 234 P.3d 761, cert. denied 131 S.Ct. 532 (2010).
The evidence at trial established that Olivares knowingly checked out of the work release facility using an employment pass for an 8–hour shift at work; that Olivares did not report to work or return to the facility at the end of the shift as required; that Olivares did not ever voluntarily return to the work release facility; that the court issued a warrant for Olivares' arrest; and that law enforcement was able to finally track him down and arrest him at an apartment in Wichita 3 days after he purportedly left for work.
Simply put, we find no evidence in the record from which we can reasonably infer that Olivares inadvertently departed from custody without the required authorization or involuntarily failed to return to custody following an authorized temporary leave. Olivares did not present any evidence or argue at trial that his state of mind was at issue in this case. Neither does he make that argument on appeal. Instead, he argues that omitting the culpable mental state element when instructing the jury prejudiced him, regardless of the evidence presented to the jury. It appears from this argument that Olivares is advocating for a structural error standard of review. But both the United States Supreme Court and our Supreme Court have rejected that argument in favor of a standard of review that recognizes an error may be harmless if the omitted element was “uncontested and supported by overwhelming evidence.” See Neder, 527 U.S. at 19; Reyna, 290 Kan. at 680.
Upon review of the entire record here, we find the omitted element regarding Olivares' state of mind was both uncontested and supported by overwhelming evidence. The record contains no evidence that could rationally lead to a contrary finding with respect to the omitted element. As such, we deem the district court's instruction error in this case to be harmless.
Affirmed.