Opinion
No. 107,987.
2013-05-3
STATE of Kansas, Appellee, v. Ryan C. PFANNENSTIEL, Appellant.
Appeal from Sumner District Court; R. Scott McGuin, Judge. Scott L. Anderson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; R. Scott McGuin, Judge.
Scott L. Anderson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Evan C. Watson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ryan C. Pfannenstiel appeals his conviction for aggravated sexual battery. He presents two arguments that he believes would justify the reversal of his conviction. First, he asserts that the district court clearly erred when it failed to give the jury instruction for the lesser included offense of sexual battery. But he never requested such an instruction and failed to present any evidence that would have supported a finding that the lesser included instruction was factually appropriate, so we find that the lack of a lesser included offense instruction was not clearly erroneous. Second, he claims that the district court erred when it failed to supply him with conflict-free counsel during a hearing on his motion to dismiss his trial counsel. Because the colloquy with the court was solely a preliminary examination to weigh whether there was any merit to his claim, we find the court was not required to appoint counsel for him. Accordingly, the decision of the district court is affirmed.
Factual and Procedural History
One evening during September 2011 when the carnival was in town, C.W. went to a bar and grill in Conway Springs with her family and a family friend. They were later met by C.W.'s boyfriend. Just before C.W. left the bar for the evening, she went outside to smoke a cigarette. When she entered the bar again, she briefly met Pfannenstiel and shook his hand. Pfannenstiel was with another carnival employee that C.W. recognized from prior years when the carnival came to town. C.W. and her boyfriend left the bar and went straight home.
After C.W. and her boyfriend arrived home, C.W. laid down. After she fell asleep, the next thing she recalled was the sensation of a light brush of something on her arm. She felt the brushing sensation on her arm again, but then it felt moist and then she felt a sucking sensation. After opening her eyes, C.W. quickly determined that there was a strange man next to her bed, she elbowed the man and yelled for her boyfriend, who chased the stranger out of the apartment. The police later located Pfannenstiel, and he admitted being in C.W.'s apartment that night and stated he had crawled in through an open window.
A DNA swab was taken of the area on C.W.'s arm where she felt the moistness and sucking sensation. The DNA swab indicated that the major DNA profile came from Pfannenstiel and the minor DNA profile came from C.W.
At Pfannenstiel's trial on the charges of aggravated sexual battery and aggravated burglary, Pfannenstiel testified that he was at the bar with some friends when he met C.W. She shook his hand on her way inside as he was standing with one of his friends that C.W. apparently knew. Pfannenstiel went outside to smoke a cigarette, and when he came back inside C.W. approached him, explained that she had seen him before walking past her apartment. She invited him to come over to her apartment and that he could come through an open window if the door was locked. He indicated that he would come over later, and C.W. responded that he could do that.
Pfannenstiel said that he left the bar and went back to his trailer. He stayed in his trailer for about 2 hours but decided to take C.W. up on her offer and went to her apartment. He knocked on the door, but C.W. did not answer it. He then proceeded to enter the apartment through an open window. He went to C.W.'s bedroom and tried to shake her awake and whispered that he was there and told her to wake up. C.W. was startled and began shouting for her boyfriend. At that point, Pfannenstiel ran out of the apartment. Pfannenstiel testified that he never kissed or licked C.W.'s arm when he was in her apartment.
C.W. testified that she never informed Pfannenstiel where she lived or that he could come over to her apartment and crawl through a window to get in if the door was locked.
The jury convicted Pfannenstiel of aggravated sexual battery but found him not guilty of aggravated burglary.
After trial but before sentencing, Pfannenstiel filed a motion to dismiss his trial counsel for ineffective assistance of counsel. The district court denied his motion.
Pfannenstiel was sentenced to 34 months' imprisonment and was ordered to register as a sexual offender for 25 years. Pfannenstiel filed a timely notice of appeal.
Analysis
The failure to give a lesser included offense instruction of sexual battery was not clearly erroneous.
Pfannenstiel asserts that the district court clearly erred when it neglected to give the lesser included offense of sexual battery as a jury instruction. But he concedes that he did not request an instruction of sexual battery. When there is no request for a lesser included offense instruction, we examine whether the failure to give the instruction was clearly erroneous. See K.S.A.2012 Supp. 22–3414(3).
To determine whether the failure to give a jury instruction is clearly erroneous, we must first determine if such a failure was error, which presents a legal question requiring unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012). To make that determination, we must consider whether the subject instruction was legally and factually appropriate, again employing an unlimited review of the entire record. 295 Kan. 506, Syl. ¶ 4.K.S.A.2012 Supp. 22–3414(3) requires a judge to give a lesser included offense instruction “[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime....”
So we first examine whether sexual battery is a lesser included offense of aggravated sexual battery. Whether a crime is a lesser included offense of another is a question of law over which this court has unlimited review. State v. Gallegos, 286 Kan. 869, 873, 190 P.3d 226 (2008).
Under K.S.A.2012 Supp. 21–5505(a), sexual battery “is the touching of a victim who is not the spouse of the offender, who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.” Aggravated sexual battery, under K.S.A.2012 Supp. 21–5505(b)(2), as charged in this case has identical elements with an additional requirement that the victim be “unconscious or physically powerless.” Because both crimes share identical elements on the basic conduct prohibited, the same name, and are both defined and prohibited within the same statute, sexual battery is a lesser degree of aggravated sexual battery and, thus, a lesser included offense as defined in K.S.A.2012 Supp. 21–5109(b). See State v. Thomas, No. 97,767, 2008 WL 762515, at *2 (Kan.App.) (unpublished opinion) (recognizing sexual battery as lesser included offense to aggravated sexual battery), rev. denied 286 Kan. 1185 (2008); State v. Conrad, No. 92,950, 2006 WL 1816302, at *6 (Kan .App.) (unpublished opinion) (“We have no problem declaring sexual battery to be a lesser degree of aggravated sexual battery and, thus, a lesser included offense as defined in K.S.A.2005 Supp. 21–3107[2][a].”), rev. denied 282 Kan. 792 (2006). As a lesser included offense, it was clearly legally appropriate in this case. So we next turn to whether it was factually appropriate.
“ ‘A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory.’ “ State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).
As already discussed, the key difference between aggravated sexual battery and sexual battery in this case is the element of unconsciousness. Pfannenstiel contends that the evidence supporting the unconscious element of aggravated sexual battery was vague and inconclusive. Accordingly, the jury could have found that C.W. was conscious during the sexual touching and therefore a sexual battery instruction was factually appropriate.
Our review of the record does not support Pfannenstiel's claim. There was absolutely no evidence from any source that C.W. was awake during the sexual touching. At trial, C.W. described what occurred after she fell asleep. C.W. testified that she was asleep when she felt the moistness and sucking sensation on her arm that caused her to wake up. Pfannenstiel testified that C.W. was asleep when he crawled through the window, went into her room, and was trying to wake her up when she woke up, struck him with her elbow, and started screaming. In closing arguments, Pfannenstiel's attorney did not argue that C.W. was conscious and, therefore, the State had not met the elements of the charge of aggravated sexual battery. Instead counsel challenged the conclusion that the DNA evidence established a licking or sucking had occurred at all. Counsel argued that the DNA transfer may have occurred when they shook hands at the bar or when she elbowed him in the mouth after she awoke.
Recently, in State v. Rodriguez, 295 Kan. 1146, 1152–54, 289 P.3d 85 (2012), our Supreme Court noted that it has required lesser included offense instructions even when they are inconsistent with the theory of the defense. But it noted that the trial record in those cases contained evidence to support the lesser included instructions at issue. Here, like in Rodriguez, there is no evidence before us that C.W. was conscious other than appellate counsel's speculation that the jury could have opted to believe she was conscious during the sexual battery. Whatever touching was occurring was what actually awakened her to the discovery that her arm was being touched in a lustful way. Therefore, the instruction was not factually appropriate, and Pfannenstiel's claim of error fails.
Moreover, even if were to hold the failure to give the instruction was error, we must next decide if the error is reversible. To make that determination we must decide whether we are “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 295 Kan. at 516. This inquiry also requires an entire review of the record and a de novo determination. 295 Kan. at 516. As we have noted, a review of the record reveals that there was no real dispute that C.W. was asleep and was awakened by someone sucking on her arm. She immediately screamed, struck out at Pfannenstiel, and called for her boyfriend to detain the stranger in her apartment. Pfannenstiel admitted that he was the person at C.W.'s bedside when she awoke. He claims he did nothing but try to awake her by gently shaking her over the covers and he too was startled when she awoke and screamed. When he realized her boyfriend was in the apartment, he fled. To support the claim that he did not lick or suck her arm, Pfannenstiel argued that the DNA could have been transferred from him to her arm when they shook hands or when she struck him. Based on a review of the entire record, we are not firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. Pfannenstiel was not entitled to counsel during the discussion with the judge concerning his motion to dismiss trial counsel.
Pfannenstiel asserts that the district court should have appointed him conflict-free counsel during the hearing and discussion on his motion to dismiss his trial counsel for ineffective assistance of counsel. He specifically claims that “his court-appointed attorney did not represent him. She advocated against him.”
Some additional facts are in order here.
After trial, but before sentencing, Pfannenstiel filed a pro se motion to dismiss his trial counsel for ineffectiveness. Specifically, he claimed that counsel failed to subpoena several known witnesses for trial, that she withheld from the jury the fact that Pfannenstiel is gay, and that she failed to adequately cross-examine state witnesses.
The district court judge, who also presided over the trial, took up the motion on the same day he had set to hear the other posttrial motions in the case. The judge went through each of Pfannenstiel's allegations with him. Pfannenstiel was able to discuss and explain each allegation in turn and his trial counsel was given an opportunity, on two specific and limited occasions, to explain her actions to the court. At no point did Pfannenstiel request an attorney for the hearing on his motion.
As indicated, the court propounded only two questions to trial counsel during the hearing. When Pfannenstiel asserted that counsel had not contacted certain witnesses, the court asked counsel if she had contacted the witnesses. Counsel replied that she had not been able to contact one of the witnesses because he never returned her phone calls and his phone was not such that she could leave messages on it. Counsel had contacted the others and their recollections differed from Pfannenstiel's recollection. Pfannenstiel then countered that his mother had spoken to the witnesses and they had told his mother that their recollection was the same as his. He also spoke to one of the witnesses who denied that he told counsel anything inconsistent with Pfannenstiel's recollection. Later in the hearing, Pfannenstiel claimed that he was not provided with copies of the evidence. The judge asked his trial counsel if she had provided him copies of the evidence. Counsel explained that she had read the narrative copy of the police report to him and had sent him copies of the lab results from the DNA test. Counsel admitted that she had not provided him a copy of the pictures and tapes that were provided her on a CD. Those were the only questions propounded to his attorney out of a very lengthy discussion with Pfannenstiel concerning his numerous allegations. At the conclusion, his attorney pointed out that sentencing was a crucial stage of the proceeding and although she had discussed everything with him, “in view of his serious apprehensions about my representation, I believe that perhaps it would be best to get another attorney to look at sentencing and maybe be able to work with him ... on that.” So contrary to Pfannenstiel's assertions on appeal, there is absolutely no evidence in the record to support a finding that his attorney advocated against him.
The court concluded by finding that the conflicts expressed regarding Pfannenstiel and his attorney were related to Pfannenstiel's lack of understanding of courts and procedure rather than anything improper his attorney had done. The court summarily denied the motion. The case proceeded to a hearing on Pfannenstiel's motions for judgment of acquittal and a new trial. After the court denied those motions, the case proceeded to sentencing.
Pfannenstiel's sole argument on appeal is that Pfannenstiel should have had an attorney appointed to represent him for the hearing on his motion to dismiss his trial counsel. He does not challenge the court's ruling on the motion, only that he was entitled to “conflict-free” counsel. We will next examine what the law requires in this situation.
Pfannenstiel is correct when he states that a defendant has a constitutional right to counsel at all critical stages of a criminal proceeding. However, our Supreme Court has recognized that a defendant is not entitled to the appointment of counsel on every posttrial motion. See State v. Hamon, 46 Kan.App.2d 356, 367, 262 P.3d 1061 (2011) (citing cases), rev. denied 294 Kan. –––– (May 21, 2012). Instead, when faced with a motion alleging ineffective assistance of counsel, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and if the findings are in the negative, the court may summarily deny the motion. State v. Kirby, 272 Kan. 1170, 1194, 39 P.3d 1 (2002). It is only if the motion appears to have merit that the court is required to set the matter for hearing and appoint counsel. 272 Kan. at 1193. The former is what happened here.
Although Pfannenstiel argues that because the court asked Pfannenstiel and his attorney questions, it was necessarily an evidentiary hearing where conflict-free counsel was required. We disagree. The district court was simply trying to understand Pfannenstiel's allegations and determine whether they presented substantial questions of law or fact. The colloquy was primarily between Pfannenstiel and the court and did not involve a trial-like confrontation. Finding that the motion did not present substantial questions of law or fact but primarily related to Pfannenstiel's failure to understand court procedures, the judge summarily denied the motion. Because the discussion was merely the court's preliminary examination of Pfannenstiel's motion and its basis, counsel was not required to be appointed. And, as already noted, there is nothing to support a finding that the attorney that was present did anything to advocate against Pfannenstiel's position. Because the limited claim of error on appeal is that Pfannenstiel should have been appointed counsel at that preliminary examination, his claim fails.
Affirmed.