Opinion
No. 107,584.
2013-08-16
STATE of Kansas, Appellee, v. Randall SCOTT, Appellant.
Appeal from Reno District Court; Trish Rose, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Keith E. Schoeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Keith E. Schoeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Randall Scott was convicted by a jury of aggravated battery after he got into an altercation with another man outside of a Hutchinson Kwik Shop convenience store (store). At trial, the trial court allowed the State to present evidence indicating that Scott had committed a theft inside the store immediately before the altercation. On appeal, Scott contends that the trial court erroneously admitted the theft evidence in violation of the rules of evidence. In particular, Scott contends that the evidence regarding his theft was admitted in violation of K.S.A. 60–455. We disagree. Accordingly, we affirm.
On December 15, 2010, Christopher Huber and his family stopped at a Kwik Shop in Hutchinson. Once inside, Huber's wife saw a man, later identified as Scott, eat a hot dog without paying for it. Huber's wife told him what she had seen, and they both began to watch Scott. Next, the Hubers saw Scott drink a soda and hide a bag of chips under his shirt. After that, Scott walked out of the store without paying for any of the items. Huber, who was employed as a prison correctional officer, decided to stop Scott. Huber told the convenience store clerk what he had seen, and he followed Scott out the door.
Once outside, Huber told Scott that he needed to stop, and he asked Scott what he had taken. Scott then told Huber to get away from him, and when Huber refused, Scott started throwing punches at him. Huber tried to defend himself and tried to prevent Scott from getting away. Nevertheless, Scott eventually got into to a car parked in a nearby alley and drove away. Huber, however, was able to get a partial license plate number which he provided to the police.
When Huber went back to the store, he noticed that he had blood on his face and had been injured. Later, Huber received treatment for his injures at the local emergency room. At the emergency room, Huber was diagnosed with a broken nose and a strained neck. According to Huber, he also suffered a concussion and broken teeth from the altercation. It took Huber eight trips to the dentist and a partial plate to repair his teeth.
The day after the incident, Scott was arrested while at the police station for an unrelated matter. The State charged Scott with aggravated robbery and severity level 4 aggravated battery. Eventually, Scott's aggravated robbery charge was dismissed because the trial court did not believe that he took the property by force and because Huber did not have any relationship with the owner of the store. The following day, the State amended its complaint, changing Scott's charge of aggravated robbery to misdemeanor theft.
After the amended complaint was filed, the trial court scheduled separate jury trials for each of Scott's charges. Before trial, Scott filed a motion in limine seeking to prevent the State from entering evidence of his prior convictions and of his alleged theft of the items from the store. The trial court denied Scott's motion, finding that the evidence of the store theft was inextricably intertwined to his aggravated battery case.
At the conclusion of the hearing, Scott pled guilty to the misdemeanor theft charge based on the items that he took from the store. Sometime later, Scott's aggravated battery case proceeded to a jury trial. When the trial court issued the jury instructions for Scott's aggravated battery case, it stated the following: “Evidence has been admitted tending to prove that Randall Scott committed a crime other than the present crime charged. This evidence may be considered solely for the purpose of understanding the context of the incident.” Ultimately, the jury found Scott guilty of a lesser degree of aggravated battery than with what he had been charged. The jury found him guilty of level 7 aggravated battery instead of level 4 aggravated battery. Did the trial court err when it allowed the State to present evidence regarding Scott's acts regarding his theft during his aggravated battery trial?
Scott challenges the trial court's ruling to allow evidence of his misdemeanor theft during his aggravated battery trial. At trial, the trial court allowed the State to question Huber about Scott's theft. Specifically, trial court allowed Huber to testify that he decided to intervene after he saw Scott take the items because he was “tired of people like this getting away with things like that.”
The State counters Scott's position with three arguments First, the State argues that the trial court was correct in finding that the evidence of Scott's theft was relevant to prove Scott's motive. Second, the State argues that Scott cannot complain about the admission of the theft evidence on appeal because he invited any error by conceding that the theft evidence was relevant. Finally, the State argues that Scott's theft evidence “was admissible independently of K.S.A. 60–455 [because] ... K.S.A. 60–455 does not apply to a circumstance involving the same occurrence.”
The first step in considering a challenge to the admission of evidence is to determine whether the evidence is relevant. State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). All relevant evidence is admissible unless prohibited by statute. K.S.A. 60–407(f). Relevant evidence is any “evidence having any tendency in reason to prove any material fact.” K.S.A. 60–401(b). Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish. 282 Kan. at 47.
In this case, the parties do not dispute that the evidence of Scott's theft was relevant to his aggravated battery trial. In particular, Scott's theft evidence was relevant to show why he and Huber got into the altercation outside the store. Without the theft evidence, it would be practically impossible to determine how or why the altercation between Scott and Huber began. Consequently, the evidence of Scott's theft was relevant to his aggravated battery trial.
After relevance is established, the second step requires the application of the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court's discretion, depending on the rule in question. As set forth by our Supreme Court in State v. Reid, 286 Kan. 494, Syl. ¶ 5, 186 P.3d 713 (2008), our standard of review of “the probative element” of 60–455 evidence is abuse of discretion. In Reid, our Supreme Court clarified the analytical steps to be taken when considering 60–455 evidence and the applicable standard of review for each step.
“[T]he K.S.A. 60–455 analysis requires several steps .... [t]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60–455 evidence comes in.” 286 Kan. at 503.
Here, the State first argues that evidence of Scott's theft was appropriate under 60–455 because it was relevant to establish motive. Even so, the State's third argument—that Scott's theft evidence was admissible independent of 60–455 because the theft was part of the same occurrence—seems dispositive. If the evidence of Scott's theft was relevant and admissible independent of 60–455, then Scott's 60–455 argument fails and the trial court did not err in admitting that evidence.
The State correctly relies on State v. Adams, 294 Kan. 171, 184, 273 P.3d 718 (2012), to support its third argument. In Adams, the defendant was charged with several drugs counts involving his alleged manufacture of methamphetamine. 294 Kan. at 175. At trial, one of the State's witnesses testified that she and the defendant had used methamphetamine 3 hours before the police arrested the defendant on the methamphetamine charges. On appeal, the defendant argued that the trial court gave an improper jury instruction regarding testimony about prior drug use.
Rejecting the defendant's argument, our Supreme Court stated the following:
“In contrast [to State v. Boggs, 287 Kan. 298, 317–18, 197 P.3d 441 (2008).] the evidence of Adams' drug use was use at the time he was committing the crimes for which he was charged. Both the version of K.S.A. 60–455 at issue in Boggs and the current version found at K.S.A.2010 Supp. 60–455, apply to evidence ‘the person committed another crime or civil wrong on another specified occasion.’ (Emphasis added.) Hence, by its plain language, K.S.A. 60–455 does not apply to a circumstance involving the same occurrence. Further, admission of evidence of drug use is not contrary to the purpose of K.S.A. 60–455—the evidence is not admitted as propensity evidence but as circumstantial evidence showing a defendant had possession and control over the drugs. Consequently, many courts allow the admission of evidence establishing that a defendant had just used drugs or was under the influence of drugs at the time of an arrest because that evidence links the defendant with any drugs that are found in an area. See Annot., 56 A.L.R.3d 948, § 8[a], pp. 962–65, and p. 103 (2011 Supp.) .” 294 Kan. at 184.
Similar to Adams, where the evidence of the defendant's drug use occurred at the same time he was committing the crimes for which he was charged, Scott's theft occurred at the same time he was committing aggravated battery. In this case, Huber decided to follow Scott outside the Kwik Shop immediately after he saw Scott leave without paying for any of the items that he took. Once outside the store, Scott and Huber immediately got into an altercation where Scott repeatedly punched Huber in the face, injuring Huber. Because Scott's theft was contemporaneous with the aggravated battery, 60–455 does not apply. Moreover, as in Adams, where the defendant's prior drug use “was not admitted as propensity evidence but as circumstantial evidence showing a defendant had possession and control over the drugs,” Scott's theft was not used as propensity evidence. In other words, Scott's theft evidence was not used to show that he committed the aggravated battery simply because he had been convicted of the misdemeanor theft. Instead, the evidence of Scott's theft was used to show how and why his altercation with Huber occurred.
Our Supreme Court's recent decision in State v. Breeden, 297 Kan. ––––, ––– P.3d –––– (2013), reiterates this position. In Breeden, the defendant was convicted of aggravated criminal sodomy of a child under the age of 14. At trial, the victim testified that the defendant had threatened to kill him, and the victim's mother testified her son had told her that the defendant “% 7Fpunched him in the stomach and threw him on the bed and held him down and started sucking his [penis].' “ On appeal, the defendant maintained that the victim and the victim's mother's testimony was evidence of prior crimes—criminal threat and battery—governed by 60–455 and the appellate cases regarding application of that statute.
Even though the Breeden court ultimately decided not to rule on the applicability of K.S.A. 60–455 because the parties did not raise that issue on appeal, it noted the following:
“One of the carryover provisions, specifically subsection (a), is applicable to the threshold question of whether K.S.A, 60–455 has any application in this case. That subsection limits application of the statute to situations involving ‘evidence that a person committed a crime or civil wrong on a specified occasion’ to infer a person has the disposition or a propensity to ‘commit[ ] another crime or civil wrong on another specified occasion.’ (Emphasis added.) K.S.A.2012 Supp. 60–455(a). Here, the ‘other crimes' of criminal threat and battery occurred on the same occasion as the charged crime of aggravated criminal sodomy rather than on another occasion. As we noted in State v. Peppers, 294 Kan. 377, 389, 276 P.3d 148 (2012), ‘[o]ur decision in Gunby eliminated res gestae as an independent basis for the admission of evidence. It did not eliminate the admission of evidence of events surrounding a commission of the crime under the applicable rules of evidence.’ We need not unravel the interplay of these concepts in this appeal, however, because the State has not questioned the applicability of 60–455.” Slip op. at 13.
In this case, however, the State does question the applicability of 60–455. Because the evidence of Scott's theft was relevant and admissible independent of 60–455, Scott's 60–455 argument fails and the trial court did not err in admitting that evidence.
But even if 60–455 applied to Scott's theft evidence, and the trial court erred in admitting that evidence, Scott's argument still would fail. When determining whether an error is harmless or reversible, our Supreme Court has stated the following:
“ ‘[E]rrors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.’ [Citation omitted.} State v. Voyles, 284 Kan. 239, 252, 160 P.3d 794 (2007); see K.S .A. 60–261. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial. See Engelhardt, 280 Kan. at 130 (reversal is required only where erroneous admission of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice).” State v. Wells, 289 Kan. 1219, 1233, 221 P.3d 561 (2009).
In this case, the alleged error of admitting Scott's theft evidence did not have an effect on the outcome of the trial or deny him substantial justice. At trial, Scott's defensive theory was not that he was innocent. Instead, he argued that the injuries to Huber did not constitute great bodily harm. For instance, during opening statements, Scott's counsel stated the following:
“The issue in the case is not whether my client caused physical contact with Mr. Huber, but what level of injury was suffered. State will be asking you to find there was great bodily harm. We believe the evidence that you will hear is there was less than greet [sic] bodily harm and that this [sic] injuries were much less severe in nature.... We will ask you to find whether Mr. Scott is guilty of a serious battery or a lesser battery.”
Scott's counsel reiterated this position during closing arguments when he stated the following:
“The only issue for you to decide in this case is Mr. Scott's intention and the level of injuries that were suffered.... This is not a very complicated issue. I just want to make sure you understand what your role is today. I'm not asking you to find my client is a nice guy. I'm not asking you to find his actions were appropriate. I'm asking you to make the State prove what they said he did. I'm asking you to find the lesser included.”
As mentioned earlier, the jury convicted Scott of the lesser included offense of severity level 7 aggravated battery instead of the severity level 4 aggravated battery for which he was charged. Based on Scott's defensive theory that he should have been convicted of a lesser included offense, the admission of his theft evidence did not affect the outcome of the trial. Scott got what he requested—the jury agreed with his argument that he should not be convicted of severity level 4 aggravated battery because Huber did not suffer great bodily harm. Thus, if there was any error in admitting Scott's theft evidence, the error was harmless.
Affirmed.