Opinion
No. 110786.
2015-03-20
STATE of Kansas, Appellee, v. Joshua SECK, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joshua Seck appeals the jury's verdict convicting him of aggravated battery and criminal threat, claiming his convictions should be reversed because the district court erred by: (1) giving the jury an overbroad aggravated battery instruction; (2) instructing the jury it could convict Seck of criminal threat if it agreed that he threatened the victim either physically or verbally; (3) failing to give the lesser included instruction of battery; and (4) committing cumulative errors necessitating a new trial. For the first time on appeal, Seck also contends portions of the aggravated battery statute are unconstitutionally vague. We disagree and affirm Seck's convictions.
Factual and Procedural Background
In August 2012, David Stover visited Michael Pelsor, who was living with Pelsor's sister and brother-in-law, April and Joshua Seck, in Hutchinson. Stover parked his car in the alley behind the Secks' house, and they asked him to move his car. Stover got mad about this and left the house. A week or so later, the Seeks asked Pelsor to move out because he had stolen April's car and gotten into a hit-and-run drunk-driving accident. Pelsor subsequently moved into a garage owned by Tom Smith, a neighbor of the Seeks. At this point, both Stover and Pelsor were angry at Seck, and Pelsor gave Seck's phone number to Stover. Stover began repeatedly calling Seek and threatening to beat him up. Stover admitted he had texted Seek with what could be seen as threatening messages.
On August 26, 2012, April was at home with Seck and their children. She said Seck continued to receive threatening phone calls from Stover and had received around 30 of them. She locked the children in their rooms and locked the doors to the house because she was afraid Pelsor and Stover might try to get inside of their house.
Pelsor and Stover had been drinking beer in Chase, Kansas, for most of that day. Pelsor needed a ride to Hutchinson, and Stover asked his daughter Samantha to drive them there. Stover said he had consumed between 6 and 10 beers, admitted he had exchanged insulting text messages with Seck throughout the drive, and knew dropping off Pelsor would bring him near Seck's house. Stover said Seek had threatened to kill him in a text message, but Stover believed it was a joke because he thought they were friends.
Around 7:30 p.m., Stover, Pelsor, Pelsor's girlfriend, and Samantha pulled into the alley behind the Seek and Smith houses. Smith saw them pull up; so did the Seeks, who walked outside to meet the car. Seek called out to Pelsor as he got out of the car, and the two men began arguing. Smith and April both said Stover then got out of the car and approached Seck and Pelsor. April said Pelsor hit Seck in the face three times. Stover said Pelsor did hit Seck but only after Seck had grabbed Pelsor's throat.
The parties and witnesses disagree about what happened next. According to Smith, Stover and Seck lunged for each other at the same time. April said Stover punched Seck and then grabbed onto his throat until Seek turned blue. Stover said he got involved in a physical confrontation with Seck when he tried to break up the fight between Seek and Pelsor. April said when Seek finally broke free of Stover, Stover had been stabbed. Smith and Stover both testified Seek broke free from Stover, ran into his house, and then came back out with two large knives, one of which he held against Stover's throat. They said Stover had tried to back away from Seck but Seek had been pursuing him, “charging” him. Stover testified Seck held a knife to his throat and said he could kill him.
Scared of the knife against his throat, Stover said he froze and then shoved Seek back, but Seck stabbed him five to seven times. Stover said Seck repeatedly threatened to kill him while stabbing him. When Smith saw Seek stabbing Stover, he called the police. Stover said Seek stopped stabbing him when he heard the police were coming.
The police found Stover a short distance from the crime scene and took him to the hospital, where his stab wounds were treated and his blood-alcohol level was tested. Before going to the hospital, Stover talked with Officer Kyle Carlisle, who reported seeing multiple stab wounds and said Stover seemed disoriented and confused.
The State's initial complaint charged Seek with aggravated battery in violation of K.S.A.2013 Supp. 21–5413(b)(1)(B). The complaint tracked the statute's language and stated Seek had “knowingly cause[d] bodily harm to another person, to-wit: David Stover, in any manner whereby great bodily harm, disfigurement or death can be inflicted, to wit: with a knife.” After a preliminary hearing where Stover testified, the complaint was amended to include a second count of criminal threat. The amended complaint said Seck had “communicate[d] a threat to commit violence with the intent to place another in fear, to wit: David Stover, or made in reckless disregard of the risk of causing such fear,” which violated K.S.A.2013 Supp. 21–5415(a)(l).
As the case proceeded to trial, multiple notices filed with the court alerted Seck about various court hearings between September 2012 and January 2013. Each of the notices stated the primary charges against Seck were aggravated battery and intentional bodily harm with a deadly weapon.
Before trial, Seck requested a number of jury instructions, one of which was the standard aggravated battery instruction contained in the Pattern Instructions Kansas, PIK Crim. 4th, without any alterations. See PIK Crim. 4th 54.310. He also proposed the jury be given an instruction on simple battery as a lesser included offense of aggravated battery. See PIK Crim. 4th 54.300, 68.080. The district court ultimately gave an instruction similar to the model aggravated battery instruction, but it substituted the word “intentionally” for the word “knowingly” under the first element:
“In Count One Joshua Seck is charged with the crime of aggravated battery. He pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That Joshua Seck intentionally caused bodily harm to David Stover with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; and
2. That this act occurred on or about the 26th day of August, 2012, in Reno County, Kansas.
“A deadly weapon is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.”
Moreover, the court did not give the lesser included offense instruction of simple battery. Seck did not object to the instructions at trial or propose any additional instructions.
During deliberations, the jury posed a written question to the court, asking whether the criminal threat charge was counted as verbal or physical criminal threat. The court proposed to respond to the question with “either,” noting caselaw said a criminal threat could be communicated by either words or physical actions.
Seck opposed the court's proposed answer, arguing the court should tell the jury the criminal threat charge was about a verbal threat, contending the State had only introduced evidence of a verbal criminal threat-Seck had put a knife to Stover's throat and verbally threatened to kill him. The court pointed out Seck's attorney had also described a physical action: holding the knife to Stover's throat. Accordingly, the court told the jury the threat in the criminal threat statute could be either physical or verbal. It also reminded the jury it had to agree on the same underlying act constituting a threat to convict Seck under the statute.
The jury found Seck guilty of both aggravated battery and criminal threat, and the district court sentenced him to 24 months' probation with an underlying prison term of 16 months.
Seck timely appeals.
Did the District Court Give an Overbroad Aggravated Battery Jury Instruction?
First, Seck argues the district court erred by giving the jury an overbroad aggravated battery instruction. However, he did not object to the aggravated battery instruction, nor did he propose a different instruction in its place. Typically, a party must object at trial to preserve a claim of error for appellate review, but, under Kansas law, appellate review of a clearly erroneous jury instruction does not require a simultaneous objection at trial. K.S .A.2014 Supp. 22–3414(3); see State v. Briseno, 299 Kan. 877, 882, 326 P.3d 1074 (2014). Accordingly, when a defendant fails to contemporaneously object to an instruction, we may reverse the district court only if the jury instruction it gave was clearly erroneous. 299 Kan. 877, Syl. ¶¶ 1–3.
“[T]he test to determine whether the instruction is clearly erroneous is composed of two parts. First, ‘the reviewing court must ... 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.’ “ State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 [2012] ).
Only if error is found under the first step do we engage in the test's second step. See Briseno, 299 Kan. at 883 (noting “[ i]f error is found, then the second part is considered”) (Emphasis added.). The test's second step is a reversibility inquiry wherein we examine “ ‘ “whether [we are] firmly convinced that the jury would have reached a different verdict had the instructional error not occurred.” ’ “ 299 Kan. at 883 (quoting Williams, 295 Kan. 506, Syl. ¶ 5). If the verdict would have changed, we must reverse the district court. See Briseno, 299 Kan. 877, Syl. ¶ 3. The party claiming an error occurred bears the burden “to establish the degree of prejudice necessary for reversal .” Williams, 295 Kan. 506, Syl. ¶ 5.
Seck argues the aggravated battery instruction given to the jury constituted clear error because it was not legally appropriate and because it prejudiced his rights. Specifically, Seck contends the aggravated battery jury instruction was legally inappropriate because it was overbroad.
Seck is correct that jury instructions must not be broader than the charging document. State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009). The charging document must inform the defendant of the accusations against him and protect him from being convicted based on facts which were not contemplated in the initial charges. State v. Hart, 297 Kan. 494, 508, 301 P.3d 1279 (2013).
Generally, jury instructions are overbroad compared to the charging document when the instructions contain language not included in the original complaint. State v. Jones, 290 Kan. 373, 383–84, 228 P.3d 394 (2010). For example, in Trautloff, the Kansas Supreme Court concluded a jury instruction was overbroad where it allowed the jury to convict the defendant for displaying, procuring, or producing a sexual photo or video of a child when the complaint only charged the defendant with “displaying” a picture of a child. 289 Kan. at 802–03. The Trautloff court concluded this constituted clear and reversible error because the evidence the defendant “displayed” the image was weak, but the evidence he procured it was very strong, which meant he was prejudiced by the instruction. 289 Kan. at 802–03. Further, there was a strong possibility Trautloff had been convicted based off facts not contemplated in the initial charges. 289 Kan. at 802–03.
Similarly, in State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007), our Supreme Court concluded a jury instruction was overbroad where the charging document accused the defendant of aggravated burglary while committing a felony (specifically first-degree murder) but where the jury instruction told the jury it could convict the defendant if it found he committed burglary and either first-degree murder or aggravated assault. 284 Kan. at 530, 537. Because the defendant was not on notice that assault could be the underlying felony for his aggravated burglary charge, it was an unfair surprise to ask him to defend against that accusation at the instruction phase of his trial. 284 Kan. at 536–37.
Here, Seck argues the district court gave an overbroad aggravated battery instruction because it allowed the jury to find Seck had committed aggravated battery if Seck either intentionally caused bodily harm to Stover with a deadly weapon or in any manner whereby great bodily harm could be inflicted. Seck contends providing the jury with two alternatives for finding he committed aggravated battery—with a deadly weapon or in any manner that could result in great bodily harm—was overbroad because the charging document used only the “any manner” language.
Seck is correct that the charging document and the jury instruction used different language to describe the crime of aggravated battery. In the charging document, only the “any manner” language was used up front, though Seck's use of a knife was mentioned at the end of the crime's description:
“[0]n or about the 26th day of August, 2012, in said County of Reno and State of Kansas, one JOSHUA J. SECK then and there being, did then and there, unlawfully, FELONIOUSLY and willfully:
knowingly cause bodily harm to another person, to-wit: David Stover, in any manner whereby great bodily harm, disfigurement or death can be inflicted, to-wit: with a knife.”
Conversely, in the jury instruction on aggravated battery, the “deadly weapon” language was used at the beginning of the sentence along with the “any manner” language:
“To establish [the charge of aggravated battery], each of the following claims must be proved:
1. That Joshua Seck intentionally caused bodily harm to David Stover with a deadly weapon or in any manner whereby great bodily harm, disfigurement, or death can be inflicted; and
2. That this act occurred on or about the 26th day of August, 2012, in Reno County, Kansas.
“A deadly weapon is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.” (Emphasis added.)
Seck is also correct that the effect of the language in the two documents is different. In the charging document, the knife is one way he could have inflicted great bodily harm, disfigurement, or death. In the jury instruction, however, inflicting great bodily harm and using a deadly weapon ( i.e., the knife) to inflict mere bodily harm are alternate ways he could be convicted of committing the crime of aggravated battery.
Seck appears to argue he could be convicted of aggravated battery under the jury instruction given if he used the knife to attack Stover, even if he did so in a manner that could not inflict great bodily harm, disfigurement, or death. Thus, he claims it was unfair to allow the jury to convict him for either intending to seriously harm Stover or for using a deadly weapon on him, even if he did not mean to seriously harm Stover, because the charging document only warned Seck the State was accusing him of intending to cause Stover great bodily harm.
We must reject Seck's argument for two reasons. First, the definition of “deadly weapon” provided in the jury instructions precluded the jury from convicting Seck of aggravated battery for using the knife on Stover in a manner not designed to inflict great bodily harm, disfigurement, or death. Specifically, Seck's argument that he could somehow be convicted of aggravated battery no matter how he used the knife against Stover is foreclosed by the deadly weapon definition in the instructions. The definition in the jury instruction clarifies a deadly weapon is identified based on the manner in which it is used, which must be calculated or likely to produce death or serious bodily injury.
So, even if the jury could convict Seck under the alternate avenue of using a deadly weapon instead of acting in a manner whereby great bodily harm, death, or disfigurement can be inflicted, the jury would still have to find Seck used the weapon in a manner likely to produce death or serious bodily injury. Thus, the intent elements the State must prove to convict Seck of aggravated battery under the “deadly weapon” alternative actually impose a higher burden on the prosecution because it did not have the option of showing Seck intended to cause “disfigurement.” Otherwise, the elements of using a deadly weapon and acting in “any manner” are identical; the State must show the exact same thing to establish Seck's guilt under either alternative, if not more to establish his guilt under the deadly weapon alternative. Rephrasing the language between the charging document and the jury instruction, therefore, was not clear error because the meaning did not change.
Second, even if we were to assume the language of the jury instruction was distinct enough from the charging document's language to be overbroad and in error, the jury instruction did not prejudice Seck because it did not unfairly surprise him. Unlike the defendants in Wade and Trautloff, who were unfairly surprised by instructions that allowed the jury to convict them under alternate elements they had not prepared defenses for, Seck knew from the charging document that the State was accusing him of using a knife to attack Stover. Therefore, the jury's verdict would not have been different without the error under the test's second step because evidence of the knife still would have been admitted, indicating Seck acted in a manner that could have caused Stover great bodily harm, death, or disfigurement.
Accordingly, the district court did not err by rephrasing the language in the jury instruction from the language in the charging document because it did not change the meaning of the language when it did so. Moreover, the change did not prejudice Seck.
Did the District Court Appropriately Respond to the Jury's Question on Criminal Threat?
Seck next argues the district court provided the jury with a legally inadequate response to the question it posed during jury deliberations. Under K.S.A. 22–3420(3), the district court must respond to a jury's request to be informed on a point of law. See State v. Wade, 295 Kan. 916, Syl. ¶ 1, 287 P.3d 237 (2012).
“[W]hether the trial court's response to a jury question was a correct statement of the law necessarily presents a legal question, subject to unlimited review on appeal. But the district court's selection of one legally correct response to a jury question in lieu of another legally correct response is reviewed for an abuse of discretion, i.e., whether no reasonable person would have given the response adopted by the trial court.” 295 Kan. 916, Syl. ¶ 2.
Here, the jury asked whether the threat under the criminal threat statute counted as a verbal or physical threat. The court responded “either” after discussing the question with counsel and Seck, and it reminded the jury that it had to agree on the same underlying act that constituted the threat.
Seck argues the district court's response was in error because it broadened the elements of criminal threat beyond what he was charged. Seck says because the charging document alleged only that he verbally threatened to kill Stover, the district court in essence gave the jury an overbroad instruction by saying it could find Seck had made either a physical or a verbal criminal threat. He argues the district court therefore misstated the law as it applied to his case when it answered the jury's question.
While Seck admits criminal threat may be proved by either physical or verbal threats and the district court did not misstate the law in a general sense when it told this to the jury, see State v. Miller, 6 Kan.App.2d 432, 435, 629 P.2d 748 (1981) (criminal threat can be communicated through words or physical acts), Seck's argument here is the State did not allege in its complaint that he physically threatened Stover. Accordingly, Seck contends the court should not have given the jury the opportunity to convict him for physically threatening Stover when he did not know he was charged with doing so. The issue, therefore, becomes whether the charging document notified Seck that the State alleged he had physically threatened Stover.
Assuming without deciding the district court's answer to the jury's question was in essence a jury “instruction,” we have already noted above that a charging document must inform the defendant of the nature of the accusations against him or her and must protect him or her from being convicted based on facts not contemplated by the initial charges. Hart, 297 Kan. at 508. Consequently, when the district court explains the law to the jury, it should not go beyond the charging document and permit the jury to convict the defendant on a theory not identified there. State v. Martinez–Herrera, No. 106,624, 2013 WL 1729227, at *7 (Kan.App.) (unpublished opinion) (citing Wade, 284 Kan. at 536–37), rev. denied 297 Kan. 1253 (2013). If the district court exceeds the language of the charging document when instructing the jury, this error requires reversal if the defendant is prejudiced by it. Jones, 290 Kan. at 383–84; Martinez–Herrera, 2013 WL 1729227, at *7. Prejudice does not result from an overbroad instruction unless the instruction unfairly surprised the defendant or misled the defendant in preparing or presenting his or her defense. See Wade, 284 Kan. at 536–37.
Here the district court's answer to the jury's question did not impermissibly deviate from the charging document. As to the criminal threat charge, the charging document indicated Seck “communicate[d] a threat to commit violence with the intent to place another in fear, to-wit: David Stover, or made [a threat] in reckless disregard of the risk of causing such fear” in violation of K.S.A.2013 Supp. 21–5415(a)(1). Though K.S.A.2013 Supp. 21–5415(a)(1) lists other ways a defendant could commit criminal threat—by threatening to cause the evacuation or lockdown of a building, for example—the complaint clearly borrowed the language from the statute: “(a) A criminal threat is any threat to: (1) Commit violence communicated with intent to place another in fear ... or in reckless disregard of ... causing such fear.”
Because a criminal threat can be verbal or physical, as Seck acknowledges in his brief, it is difficult to see how a complaint that clearly tracked the statute's language and did not purport to limit the types of evidence of criminal threat the State would introduce deprived Seck of notice that the State alleged he both physically and verbally threatened Stover. See Miller, 6 Kan.App.2d at 435; State v. Bursack, No. 97,161, 2008 WL 2891056, at *2 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 766 (2009). The district court's response to the jury's question with an accurate statement of the law—a criminal threat can be communicated with either words or physical acts—was therefore not error generally or in Seck's case. See Miller, 6 Kan.App.2d at 435; Bursack, 2008 WL 2891056, at *2.
Seck nonetheless contends we should look at the context in which the State amended the complaint to charge him with criminal threat. He argues because the State added this charge after the preliminary hearing, we must consider the explanation the State gave for adding the charge and must construe that explanation as limiting the charging document's language. Seck points out that the State, when requesting the additional charge of criminal threat, specifically referenced when Seck came out and said, “I'm going to kill you with the knives.” Seck says this response conclusively shows the State only accused him of a verbal threat.
We disagree for three reasons. First, the statement, “I am going to kill you with the knives,” did not clearly refer only to a verbal threat, but it also clearly referred to the knives in Seck's possession. Brandishing a weapon with the intent to instill fear in someone or in reckless disregard of causing fear is a physical act which can constitute a criminal threat, either on its own or in conjunction with a verbal threat. See State v. Foster, 290 Kan. 696, 714, 233 P.3d 265 (2010) (criminal threat conviction affirmed where defendant threatened a person with knives and verbal statements, saying he would kill her and her family if she told anyone about the incident).
Second, Seck's argument takes a single statement by the prosecutor out of context. After the prosecutor referenced Seck's verbal threat, Seck objected to the amendment, arguing the State should not be allowed to amend the complaint to add criminal threat. Stover testified at the preliminary hearing that he thought everything was a joke and he did nothing when Seck came toward him with the knives and said he was going to kill Stover. It is obvious from Seck's response the defense knew brandishing the knives was part of the threat or he would not have specifically mentioned Seck had the knives. Moreover, the State, in arguing there was enough evidence to hold Seck over for trial on both charges, noted: “He came out with two knives.... He told [Stover] he was going to kill him. He came out with the knives so it's sufficient evidence on both aggravated battery and criminal threat.”
The district court found probable cause to believe Seck committed criminal threat based on Seck's statements, but it granted the State the authority to amend the charging document, and it did not require the State to limit the charging document to a particular type of threat. Jury instructions are sufficiently limited if they match the defendant's charging document, and there is no precedent that the instructions must also match pretrial testimony.
Third, evidence presented at the preliminary hearing and at trial supported the district court's answer to the jury that it could find Seck guilty of criminal threat if it found he physically threatened Stover. At the preliminary hearing, Stover testified Seck had two big steak knives he put to Stover's neck and said, “I could kill you, I'm gonna kill you.” Stover also testified at the preliminary hearing that after Seck stabbed him in the neck, Stover “freaked.” Based on Stover's testimony, then, Stover felt afraid at just the presence of the knives, even without considering Seck's verbal threats, which supports a potential finding that Seck's physical behavior criminally threatened Stover.
At trial, Stover gave similar testimony: Seck approached him with the knives, Stover became afraid and froze, Seck held a knife to his throat and verbally threatened to kill him, and then Seek began stabbing him while repeating the threats. Ample evidence supported the district court's decision to instruct the jury that it could find Seek committed criminal threat if it agreed he had verbally or physically threatened Stover because the State had evidence of both types of threats.
The district court adequately responded to the jury's question and did not permit the jury to convict Seck for criminal threat on a theory broader than the one under which he was charged.
Was a Jury Instruction Required on the Lesser Included Offense of Simple Battery?
Seck also argues his conviction should be reversed because the district court did not instruct the jury on simple battery as a lesser included offense of aggravated battery. Because Seck proposed a simple battery instruction before the district court, we must review the evidence in the light most favorable to him to determine if it supported a simple battery instruction. See State v. Young, 277 Kan. 588, 599–600, 87 P.3d 308 (2004). If the evidence would not have permitted a rational factfinder to find the defendant guilty of a lesser included offense, then the trial court had no duty to instruct on it. 277 Kan. at 599–600. In other words, if all of the evidence taken together showed the offense, if committed, was the offense of the higher degree, then the district court did not need to instruct on lesser included offenses. State v. Brice, 276 Kan. 758, Syl. ¶ 4, 80 P.3d 1113 (2003). On the other hand, the district court has a duty to instruct on all possible offenses supported by substantial evidence. Brice, 276 Kan. 758, Syl. ¶ 4.
Seck is correct that “simple battery is a lesser included offense of aggravated battery.” State v. Davis, 236 Kan. 538, 542–43, 694 P.2d 418 (1985); see K.S.A.2013 Supp. 21–5109(b)(2); K.S.A.2013 Supp. 21–5413(a) and (b). Where a defendant is convicted of aggravated battery and argues on appeal a simple battery instruction should have been given to the jury because it could have found evidence of bodily harm instead of great bodily harm, we look at the evidence to support that finding. Brice, 276 Kan. at 112–1 A. If the evidence showed the jury could have found the harm slight, trivial, minor, or moderate, such as bruising, then the district court erred by not giving a lesser included offense instruction on simple battery. State v. Smith, 39 Kan.App.2d 64, 70, 176 P.3d 997, rev. denied 286 Kan. 1185 (2008). Conversely, if the evidence showed the victim's injury was not slight, trivial, moderate, or minor, then the district court correctly refused to give a simple battery instruction. 39 Kan.App.2d at 70.
Though our courts have recognized there is a fine line between great bodily harm and mere bodily harm, the multiple stab wounds permanently scarred Stover and required hospitalization, indicating Stover's injuries were not minor, trivial, moderate, or akin to mere bruising. See Brice, 276 Kan. at 774. Seck's wife admitted Seck stabbed Stover, and the extent of Stover's injuries was not disputed. Moreover, Seck's defense was not that he did not stab Stover but that he stabbed Stover in self-defense. Thus, Seck was either guilty of aggravated battery or not guilty at all. See Davis, 236 Kan. at 542–43.The district court did not err by not instructing the jury on simple battery.
Is Seck Entitled to a New Trial Because of Cumulative Errors?
Finally, Seck argues that the combination of the district court's errors entitles him to a new trial. When the district court makes multiple trial errors, which on their own do not necessitate reversing a defendant's conviction, it is possible to find collectively that the errors cannot be considered harmless. State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). Because the district court did not make any of the errors Seck alleged, this cumulative error doctrine does not apply here. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).
Is the Aggravated Battery Statute Unconstitutionally Vague?
For the first time on appeal, Seck argues that the aggravated battery statute under which he was convicted is unconstitutionally vague. As an initial matter, the State argues Seck cannot challenge the statute on appeal because he did not object to it below and therefore did not properly preserve the issue. In the alternative, the State argues Seck cannot challenge the statute for vagueness because it clearly prohibited his conduct.
First, we agree with the State that constitutional issues not raised below generally may not be raised for the first time on appeal. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). These issues have also included vagueness challenges asserted for the first time on appeal. State v. Papen, 274 Kan. 149, 161–62, 50 P.3d 37 (declining to reach the merits of a vagueness challenge raised for the first time on appeal), cert. denied 537 U.S. 1058 (2002).
Second, even if the issue were properly before us, we agree with the State's argument that Seck cannot complain about the statutory language that precludes causing bodily harm in any way great bodily harm, disfigurement, or death “can be inflicted” because the statute clearly prohibited Seck's conduct. See K.S.A.2013 Supp. 21–5413(b)(1)(B). A defendant to whom a statute is constitutionally applied cannot challenge the statute on the grounds it could be applied unconstitutionally in factual situations not before the court. Papen, 274 Kan. at 162. This means a defendant whose conduct is clearly prohibited by a statute may not assert that the statute is unconstitutionally vague. Hearn v. City of Overland Park, 244 Kan. 638, 639, 772 P.2d 758, cert. denied 493 U.S. 976 (1989).
Here, Seck stabbed Stover at least five times with a large knife. Further, the jury was instructed it could find Seck guilty if he acted in any manner whereby great bodily harm could be inflicted or if he acted with a deadly weapon. As we discussed in the first issue, the deadly weapon language was appropriate in this case, and the use of the knife was clearly forbidden by the “deadly weapon” language, even if it could be argued it was not clearly forbidden by the “can be inflicted” language.
Similarly, there is no question stabbing someone repeatedly can inflict great bodily harm, disfigurement, or death, in the sense such an act has the possibility to cause such injury. See American Heritage Dictionary 269 (5th ed.2011) (defining “can” as a word “used to indicate possibility or probability”). Repeatedly stabbing another person with a sharp knife is clearly the kind of conduct both parts of the aggravated battery statute prohibit. As such, Seck may not challenge the statute's vagueness because, even if there is some conduct the statute might not clearly prohibit, it clearly prohibits repeatedly stabbing another person with a knife. See State v. Martinez, No. 108,441, 2014 WL 3731888, at *6 (Kan.App.2014) (unpublished opinion).
Finally, as an aside, we would note that our courts have repeatedly upheld the constitutionality of the aggravated battery statute despite numerous challenges to its alleged vagueness. State v. Bowers, 239 Kan. 417, 426–27, 721 P.2d 268 (1986) (finding “in any manner” portion of statute sufficiently definite); State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978) (holding “great bodily harm” clear and not unconstitutionally vague); State v. Kleber, 2 Kan.App.2d 115, 118–19, 575 P.2d 900 (holding “can be inflicted” was not unconstitutionally vague), rev. denied 225 Kan. 846 (1978); State v. Landwehr, No. 107,273, 2013 WL 2917879, at *4 (Kan.App.2013) (unpublished opinion) (holding “can be inflicted” language was not overly vague), rev. denied 298 Kan. –––– (November 22, 2013); State v. Walker, No. 107,878, 2013 WL 3970180, at *6–7 (Kan.App.2013) (unpublished opinion) (finding aggravated battery statute not unconstitutionally vague), rev. denied 299 Kan. (April 28, 2014).
Affirmed.