Opinion
No. 109,795.
2014-12-5
STATE of Kansas, Appellee, v. Darius J. SHUGART, Appellant.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.Joanna Labastida, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Darrius Shugart was convicted in a jury trial of two counts of kidnapping, two counts of aggravated burglary, two counts of attempted aggravated robbery, one count of aggravated robbery, four counts of aggravated assault, six counts o criminal possession of a firearm, One count of criminal threat, one count of criminal discharge of a firearm, one count of criminal damage to property, and one count of theft.
On this direct appeal, Shugart raises seven issues: (1) whether five of the six counts of criminal possession of a firearm are multiplicitous; (2) whether the trial court should have given an involuntary intoxication instruction; (3) whether the trial court should have given a voluntary intoxication instruction; (4) whether the trial court admitted irrelevant and prejudicial evidence regarding Shugart's homosexual relationship with a witness; (5) whether the trial court should have severed the charges; (6) whether the trial court erred in sentencing Shugart to the aggravated sentence without proving the aggravated factors beyond a reasonable doubt; and (7) whether the trial court erred in using Shugart's prior juvenile adjudications to increase his sentence without proving them beyond a reasonable doubt. Of these seven issues, we find only the first to be meritorious.
As the State concedes, Shugart's possession of the firearm was a unitary act. Thus, he should have only been charged with one count of criminal possession of a firearm. We therefore reverse five of those convictions and vacate the five criminal possession of a firearm sentences imposed after the trial court imposed the firearm sentence in the conviction involving Xavier Brown and remand for resentencing. In all other respects, we affirm.
On the morning of September 27, 2011, Brown was walking to school when a dark car pulled up beside him and the driver later identified as Shugart asked Brown if he wanted a ride. When Brown said no, the driver told him to get in the car and showed him a gun while making a “pow” type action with his other hand. Brown testified that although he did not want to get in the car, he complied because he was afraid he would be shot.
Brown testified that the man drove him to a house a couple of blocks away. The man asked Brown if he was afraid of guns and then placed the gun in his waistband before getting out of the car. The man went up to the door of the house while Brown sat in the car. While the man was talking to a resident of the house, later identified as Kim Markella–Franklin, Brown got out of the car and told the man that he would just walk to school. The man told Brown to get back in the car and that he would drive him to school.
On the way to Brown's school, the man asked Brown if he smoked weed, drank, or had been involved in a gang bang. When Brown said no, the man told Brown that he intended to change that and he would get Brown some business. When they arrived at the school, the man and Brown sat in the car for a few minutes. The man asked Brown for his name and phone number. Brown gave the man his correct name but gave him a false number. Moments later, the assistant principal at Brown's school, Ben Myrick, walked over to the car and asked the driver to move the car because it was blocking traffic. Brown then got out of the car. When the car drove away, Brown told Myrick that he needed to speak with him about an alleged kidnapping.
The school immediately called the police. Brown gave police a description of the man and the car. Detectives returned to the house where the man had taken Brown. They spoke with the resident, Franklin, who reluctantly identified Shugart as the person who had come to her house that morning.
Shugart next visited Wandy Eustache. Although Eustache is a male, he acts and behaves as a female. Thus, we will refer to him under the feminine gender. Eustache was sleeping in her bed when she heard a loud crash in her living room. When she went to investigate, she saw Shugart standing on her balcony. Eustache testified that although Shugart had broken one window pane of the balcony door, she let him in by opening the other door. Eustache testified that she had never seen Shugart like that and that he was acting very strange, as if he were under the influence of something. Shugart asked Eustache for some money for gas, but she said she did not have any money. The two began arguing, and Shugart hit Eustache in the back of the head with either his hand or an object. Eustache testified that she assumed he had a gun but that she did not see one. Shugart then demanded that Eustache go to an ATM for cash. When the two were outside of Eustache's apartment, she ran away and asked an apartment maintenance worker for help. Shugart returned to his car and drove away; then Eustache called the police. Eustache testified that she noticed Shugart had a flat tire on his car when he drove away.
Eustache's trial testimony differed greatly from her report to police immediately following the incident. Eustache told officers that Shugart had pointed a gun in her face and demanded money. After she told him she did not have any money, a struggle ensued, and Shugart struck Eustache in the head with the gun. Shugart then demanded that Eustache get money from an ATM and warned her that if she screamed or struggled Shugart would “blow [her] brains out.” Eustache also admitted at trial that she did not want to testify and that she had been arrested and forced to testify. Eustache testified that she and Shugart remained in contact even after he was in prison and that she had put some money in his prison account.
After a short time, Gregory Carrell was driving to work around 9:30 a.m. when he saw a dark colored sedan swerve toward him on the road. He thought it might be someone he knew so he stopped his car and stepped out in the street to see who it was. When the driver of the sedan stepped out of his car, Carrell realized that he did not know the man and got back in his car to drive away. As he looked in his rearview mirror, Carrell saw the man raise a black long-barreled gun and fired it in Carrell's direction. The shot shattered his back window. Carrell drove to work and immediately called the police. During the investigation, Carrell identified Shugart in a photo lineup as the shooter from the dark sedan.
Richelle Long was driving home after dropping her children off at school when she drove past Carrell and Shugart stopped in the street. Long assumed the men were just talking to each other, but as she turned the corner she heard the sound of a gunshot and then heard a car speeding away. When Long pulled into her driveway, she saw the black sedan that had stopped in the road pull in behind her. As she opened her car door, a man was standing there and asked her if her car belonged to someone named “Charles.” Just as Long told him no, the man pointed a gun at her face, less than an inch from her nose, and demanded money. When Long told him she did not have any money, he ordered her to take him inside her house. Long stepped out of her vehicle and ran screaming for help from her neighbors. One of her neighbors was out on his porch and told her to come there for safety. Long then called the police. The man got back in his car and as he backed out of Long's driveway, the front tire of his car blew out.
This same morning, Jose Pacheco–Castenada was working at Gomez Tires when he noticed a black car in his parking lot. The driver of the car asked Pacheco–Castenada to repair a flat tire, but the two men were unable to locate the spare tire for the car. The man then asked about buying new rims and tires. After Pacheco–Castenada quoted him a price, the man indicated that he wanted to make the purchase. After Pacheco–Castenada put the new rims and tires on the car, he met the man at the register to give him the total. Pacheco–Castenada turned away briefly and when he turned back around the man was pointing a gun at Pacheco–Castenada's head. The man ordered Pacheco–Castenada to get rid of the video camera. The man told Pacheco that he had only 10 seconds to do so. Pacheco–Castenada cut the camera cords. The man then demanded that Pacheco–Castenada load the camera's computer tower into his car. The man also took his old rims and tires, wiper blades and pedals, and then demanded money from the cash register. After Pacheco–Castenada told him there was no cash in the drawer, the man returned to his car and left. Pacheco–Castenada then called the police and turned over the hidden surveillance video.
While police were still investigating Brown's alleged kidnapping, officers saw a car drive by that matched the description. Several officers followed the car, and they located the car at a nearby gas station. When the officers approached the people standing outside the car, one of which was Shugart, Shugart ran away. Officers followed Shugart on foot and eventually caught up to him and arrested him.
Brown was taken to the gas station where Shugart had been arrested. He identified Shugart as the man who had kidnapped him earlier. He also identified the car as the car driven by Shugart. Brown also noted that the car now had new rims and tires. Carrell, Long, and Pacheco–Castenada each individually identified Shugart from a photo lineup.
At trial, Shugart testified that he remembered asking Brown if he wanted a ride to school but did not intend to kidnap or terrify him. After Shugart dropped Brown off at school, Shugart did not remember any of the incidents involving Eustache, Carrell, or Long. Shugart did remember going to Gomez Tires but maintained that he had been told to go there and stage a robbery for his friend Anthony Hervey. Shugart maintained that he was doing this for Hervey because the tire store owner owed a drug debt to Hervey. Shugart testified that he met up with Hervey after the staged robbery so he could return Hervey's car, but when officers showed up, he ran because he was on probation.
Shugart was charged with two counts of kidnapping, criminal possession of a firearm, four counts of aggravated assault, two counts of aggravated burglary, two counts of attempted aggravated robbery, and one count each of aggravated robbery, criminal threat, theft, criminal discharge of a firearm, and criminal damage to property. After the preliminary hearing, the trial court found that five additional counts of criminal possession of a firearm should be added. The jury convicted Shugart of every charge. Shugart was sentenced to 184 months' in prison.
Were Five of the Six Counts of Criminal Possession of a Firearm Multiplicitous?
On appeal, Shugart contends that five of the counts for criminal possession of a firearm were multiplicitous. Shugart maintains that his possession of the firearm was one continuous unitary act and should therefore only count as one charge. The State concedes that five of the six counts for criminal possession of a firearm were multiplicitous and should be reversed.
“The issue of multiplicity is a question of law, and this court's review is unlimited. [Citation omitted.]” State v. Sellers, 292 Kan. 346, 356, 253 P.3d 20 (2011). Multiplicity is the charging of a single offense in multiple counts of a complaint or information, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Scott, 286 Kan. 54, Syl. ¶ 4, 183 P.3d 801 (2008); State v. Garcia, 272 Kan. 140, Syl. ¶ 1, 32 P.3d 188 (2001).
In State v. Schoonover, 281 Kan. 453, 496–98, 133 P.3d 48 (2006), our Supreme Court developed a two-part test to determine whether a double jeopardy violation exists. The two steps are as follows: (1) Do the convictions arise from the same conduct and (2) if so, by statutory definition, are there two offenses or only one? 281 Kan. at 496.
This court recently addressed a similar issue in State v. Macomber, No. 107,206, 2013 WL 3455777 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (February 18, 2014). In Macomber, the defendant argued that he was being subjected to double jeopardy by having to stand trial for criminal possession of a firearm after already being found guilty of that charge in another trial. The Macomber court applied the two-step test created in Schoonover to determine whether the defendant was being subjected to double jeopardy. Under the first step, the Macomber court found that although the defendant committed separate crimes, the defendant possessed the same firearm, on the same day, and in the same county. Thus, it determined that the act or course of conduct was unitary. 2013 WL 3455777, at *4–5. Under the second step, the court noted that under K.S.A. 21–4204 (the statute—prior to 2011 recodification—for criminal possession of a firearm) there is “ ‘no requirement as to time, use, person at risk or incident’ “ in addition to simple possession. 2013 WL 345777, at *7. Therefore, under the statute, a person may only be convicted of criminal possession of a firearm once. The court reversed the defendant's second conviction for criminal possession of a firearm and vacated that sentence. 2013 WL 3455777, at *7.
Applying the same analysis used in Macomber, we conclude that Shugart was incorrectly convicted of five additional counts of criminal possession of a firearm. As in Macomber, under the first step of the Schoonover test, while Shugart committed multiple separate crimes that included different victims and locations, he possessed the same firearm the whole time, the crimes were committed on the same day and within a few short hours, and all in the same town. Thus, we determine that the act or course of conduct was unitary. This leads us to the second step in the analysis. Similar to Macomber, under K.S.A.2013 Supp. 21–6304(a)(3)(A), the State charged Shugart with six counts of criminal possession of a firearm. This statute does not have any requirement “as to time, use, person at risk or incident.” It simply requires that a person possess a firearm and that the person must be a convicted felon.
In this case, Shugart committed multiple felonies in Wichita, Kansas, on September 27, 2011, but he possessed the same gun the whole time, and he committed the crimes all in one morning. Based on those facts, we determine that it was error for Shugart to be charged and convicted of five additional counts of criminal possession of a firearm.
Did the Trial Court Err in Denying Shugart's Request For an Involuntary Intoxication Instruction?
Shugart maintains that the trial court erred in denying his request for an involuntary intoxication instruction based on his testimony that he had smoked marijuana that had been laced with PCP without his knowledge. Shugart argues that this evidence supported the requested instruction and that it was reversible error to deny his request for this instruction.
Appellate courts apply a four-step process when reviewing claims on jury instructions. First, the court should consider the reviewability of the issue from both jurisdiction and preservation standpoints. This is done under an unlimited standard of review. State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). Second, again under unlimited review, the court should determine whether the instruction was legally appropriate. 295 Kan. 156, Syl. ¶ 1. Next, the court must determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or requesting party, that would have supported the instruction. 295 Kan. 156, Syl. ¶ 1. Finally, if there was error, the court must determine if the error was harmless using the test and degree of certainty as stated in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). Plummer, 295 Kan. 156, Syl. ¶ 1.
“Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. State v. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012) (self-defense). And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).” State v. Friday, 297 Kan. 1023, 1036–37, 306 P.3d 265 (2013).
Appellate courts review “jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.” State v. Williams, 42 Kan.App.2d 725, Syl. ¶ 1, 216 P.3d 707 (2009), rev. denied 290 Kan. 1104 (2010).
K.S.A.2013 Supp. 21–5205(a) describes the defense of involuntary intoxication:
“(a) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of such person's conduct and of conforming such person's conduct to the requirements of law.”
In State v. Cooper, 252 Kan. 340, 350, 845 P.2d 631 (1993), our Supreme Court held that the defendant's “ ‘morning after’ surmise that ‘someone had put something in his beer, perhaps a barbiturate,’ [was] not sufficient to support his newly asserted theory on appeal that his intoxication was involuntary.” The Cooper court further held that the defendant's involuntary intoxication argument was only supported by conjecture and the trial court did not err in failing to instruct the jury on involuntary intoxication. 252 Kan. at 350.
Shugart attempts to distinguish his case from Cooper by saying that “[u]nlike Cooper's unsupported belief that he had been drugged, Mr. Shugart received information that his marijuana had been laced with a drug he did not voluntarily ingest.” The problem with this argument is that the only evidence which supports Shugart's argument was his own trial testimony. During his testimony, he was asked if there was any other type of substance in the weed that he had smoked. Shugart answered, “Yes, sir. Somebody had laced it with PCP.” Aside from Shugart's testimony that someone had allegedly laced the marijuana with PCP, there is no other support for Shugart's argument that he involuntarily ingested drugs or alcohol. Thus, like in Cooper, Shugart's involuntary intoxication argument is only supported by conjecture and the self-serving testimony presented by Shugart.
Moreover, there is no evidence in the record to show that the drugs and alcohol Shugart ingested rendered him “substantially incapable of knowing or understanding the wrongfulness of such person's conduct.” K.S.A.2013 Supp. 21–5205(a). Although there was testimony that Shugart was acting strange and was really tired during his police interrogation, that does not show he was incapable of knowing his actions were wrong. In fact, most of the evidence shows that Shugart was able to competently communicate with the victims and the police, that he was able to drive a car to numerous locations, and that he remembered most of the incidents that occurred on the day in question.
As a result, we determine that the trial court properly denied Shugart's request to instruct the jury on involuntary intoxication.
Did the Trial Court Err in Denying Shugart's Request For a Voluntary Intoxication Instruction?
Next, Shugart argues that the trial court erred in denying his request for a voluntary intoxication instruction. Shugart directs this court to evidence that he had been drinking and doing drugs the night before the alleged incidents and that two of the victims testified Shugart was acting strange. This evidence, in Shugart's view, made the trial court's denial of his request for a jury instruction on voluntary intoxication reversible error.
The standard of review is the same standard listed earlier under our involuntary intoxication instruction analysis.
“While voluntary intoxication is not a defense to general intent crimes, such a defense may be used to negate the intent element of a specific intent crime. State v. Brown, 291 Kan. 646, 654, 244 P .3d 267 (2011); see K.S.A. 21–3208(2).” State v. Kidd, 293 Kan. 591, 594, 265 P.3d 1165 (2011). “A voluntary intoxication instruction is required when the evidence, viewed in the light most favorable to the defendant, shows that the defendant was intoxicated to the extent that his or her ability to form the requisite intent was impaired.” State v. Hernandez, 292 Kan. 598, Syl. ¶ 4, 257 P.3d 767 (2011). “This court will not infer impairment based on evidence of consumption alone. [Citation omitted.]” State v. Hilt, 299 Kan. 176, 193, 322 P.3d 367 (2014).
We determine that a voluntary intoxication instruction would not have been legally or factually appropriate in this case. The evidence relied upon by Shugart, even when viewed in the light most favorable to him, points only to consumption, not intoxication to the extent that Shugart's ability to form the requisite intent was impaired. See Kidd, 293 Kan. at 595–96 (evidence defendant consumed alcohol from a bottle, made “crazy” statements, and may have been “ ‘buzzed’ “ was insufficient to require voluntary intoxication instruction); Hernandez, 292 Kan. at 606–07 (evidence of consumption of alcohol and marijuana, testimony that defendant was high and intoxicated was insufficient to require instruction).
In this case, the evidence showed that although Shugart drank alcohol and did drugs the night before the incidents and allegedly blacked out during some of the incidents, he was able to remember multiple details about his morning. Moreover, he was able to drive a car to numerous locations, and he testified that his goal that morning was to stage a robbery. As a result, there was no evidence to show that Shugart was intoxicated to the extent that his ability to form the requisite intent was impaired. Thus, this evidence was insufficient to warrant a voluntary intoxication instruction in this case.
Shugart also argues that the voluntary intoxication instruction was required because “there was little testimony about Mr. Shugart's state of mind, other than he seemed to be acting strangely or not like himself, and his own testimony that he had consumed alcohol and other drugs for many hours the night and morning of September 27, 2011.” While the evidence of Shugart's state of mind may have been purely circumstantial, this does not mean he demonstrated that impairment from the drugs and alcohol prohibited him from forming the specific intent. See State v. Minski, 252 Kan. 806, Syl. ¶¶ 2–3, 850 P.2d 809 (1993); see also Hernandez, 292 Kan. at 607 (defendant must show consumption led to impairment of mental faculties). In fact, other evidence suggests that Shugart was not so intoxicated that he was unable to form specific intent. Shugart remembered picking up Brown and was able to communicate with Brown and follow Brown's directions to his school. Shugart also remembered his plan that he was supposed to stage a robbery at Gomez Tire. Moreover, he did not have any difficulty communicating with any of his victims or the arresting officers. Finally, he was physically able to run from the police and scale numerous fences in the process. We further note that nothing in the surveillance video footage from Gomez Tire suggests that Shugart was impaired.
As a result, the trial court properly refused to give the requested voluntary intoxication instruction.
Did the Trial Court Erroneously Admit Irrelevant and Prejudicial Evidence Regarding Shugart's Relationship With a Witness?
Next, Shugart argues that the trial court abused its discretion in admitting evidence of a homosexual relationship between Shugart and Eustache, one of the witnesses in this case. Shugart maintains that this evidence was irrelevant and prejudicial, and, thus it should not have been admitted.
Appellate courts review the admission of evidence under an abuse of discretion standard. State v. Abu–Fakher, 274 Kan. 584, 598–99, 56 P.3d 166 (2002). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. Ward, 292 Kan. at 550.
Shugart's argument on appeal concerns the following exchange between the State's attorney and Eustache on direct examination at trial:
“Q. Tell us how you know Darrius Shugart.
“A. Through a friend of a friend.
“Q. How long have you known Mr. Shugart?
“A. Maybe four years.
“Q. How would you describe your relationship with Mr. Shugart?
“A. We was [sic] friends.
“Q. Have you always just been friends?
“A. Something like that, yeah.
“Q. Let me say this a different way.
“[Counsel for Shugart]: Your Honor, I'm going to object. May we approach?
[Whereupon, the following proceedings were had at the bench.] “[Counsel for Shugart]: I think she's going to ask him if they were lovers, and—well, she's saying no. “[Prosecutor]: Judge, I'm trying—what I'm trying to elicit gently is that this witness cares about Mr. Shugart. That's certainly relevant to her testimony today. I'm not in any way trying to characterize Mr. Shugart in any fashion. I think
“[Coprosecutor]: I think it's appropriate we can clarify that they've been in a relationship before. It goes to bias, and bias comes in, so—“THE COURT: I agree with that.
“THE COURT: Witness's relationship to a defendant is always relevant.
[Whereupon, the proceedings continued in open court as follows.]
“Q. Wandy, where we left off is you were describing your relationship with Mr. Shugart. I'm going to try to ask it an easier way. At any point has Mr. Shugart been your boyfriend?
“A. Something like that. Yes, we had a relationship. He had a key to my house, and he used to stay at my house.”
Shugart argues that this testimony was irrelevant and contends that the prejudicial nature of this evidence far outweighed any probative value. Shugart maintains that evidence of homosexuality has a prejudicial character and that the State did not gain anything from this testimony other than to prejudice Shugart with this “inherently prejudicial evidence.”
In response, the State maintains that this evidence was relevant and properly admitted to show a potential bias on the part of the witness. The State argues that based on Kansas caselaw and K.S.A. 60–420, the prosecutor properly questioned Eustache to expose her possible bias.
K.S.A. 60–420, which allows a party to attack or support the credibility of a witness, states:
“Subject to K.S.A. 60–421 and 60–422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
In State v. Bowman, 252 Kan. 883, Syl. ¶ 1, 850 P.2d 236 (1993), our Supreme Court held that “[b]ias, interest, or improper motives of a witness may always be shown in order to place the witness' testimony in proper perspective.” In Bowman, our Supreme Court affirmed the trial court's decision to admit evidence that a defense witness had a previous conviction for obstruction of official duty. On appeal, the defendant argued that this evidence was irrelevant because it was not a prior crime of dishonesty or false statement. The Bowman court upheld the admission of this evidence because it showed how far the witness would go to help the defendant. The court held that this evidence was relevant and admissible to show the relationship between the parties and bias. 252 Kan. at 890. Also, in State v. Wesson, 247 Kan. 639, Syl. ¶ 7, 802 P.2d 574 (1990), our Supreme Court held: “The trial court has discretion to allow evidence to be admitted in the least prejudicial manner to show possible bias on the part of a witness.” See also Abu–Fakher, 274 Kan. at 599–601 (upheld the admission of evidence that showed possible bias and a relationship between the defendant and defense witness); State v. Harden, 206 Kan. 365, 377–78, 480 P.2d 53 (1971) (upheld the admission of evidence of a cohabitating relationship between the witness and the defendant to show bias); and State v. Scott, 39 Kan.App.2d 49, 56–60, 177 P .3d 972 (2008) (held trial court erred in refusing to admit evidence which showed witness might be influenced by bias or a motive to testify falsely).
We conclude that the trial court did not abuse its discretion in admitting the testimony concerning Eustache's relationship with Shugart. The evidence was admissible to show that Eustache's testimony might be influenced by bias. It should also be noted that the prosecutor simply touched on the fact there was a relationship between the witness and Shugart and then moved onto a different line of questioning. The State did not delve into the couple's relationship or stress the fact that it was a homosexual relationship. It is also important to make note of the fact Shugart's counsel also discussed Shugart's relationship with Eustache on cross-examination and during closing arguments. During closing arguments, Shugart's counsel stated, “[Shugart] goes to see Wandy, this is—this is that guy who he has had a relationship with, who cares about him, who brings money to him, said, I put money on his books. Wandy cares about Darrius.”
Shugart's counsel's comments concerning Eustache's relationship with Shugart during closing arguments lends support to the position that Eustache would be biased toward Shugart.
As a result, we conclude that the trial court properly admitted evidence of Eustache's relationship with Shugart.
Did the Trial Court Err in Denying Shugart's Motion to Sever the Charges?
Shugart next argues that the trial court erred in denying his motion to sever certain charges. Before trial, Shugart moved to sever the counts related to the Gomez Tire incident from the rest of the counts. Shugart argued that it was a completely separate incident and that the evidence from the Gomez Tire incident would taint the jury's view of him regarding the other charges. Thus, Shugart contends that the counts should have been severed and this court should reverse his convictions and remand the case for him to have two separate trials.
Under K.S.A. 22–3203, a court may order two or more cases to be tried together if the crimes could have been joined in a single complaint, information, or indictment. “Two or more crimes may be charged in separate counts of the same complaint, information, or indictment, if the crimes: (1) are of the same or similar character; or (2) are based on the same act or transaction; or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” State v. Cruz, 297 Kan. 1048, Syl. ¶ 1, 307 P.3d 199 (2013).
Appellate courts apply different standards of review when analyzing joinder issues. For example,
“ ‘an appellate court determines which of the three conditions precedent the district court relied on (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); whether there is substantial competent evidence to support the district court's findings of fact, using a deferential standard; whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and whether the district court abused its discretion in allowing joinder.’ “ Cruz, 297 Kan. at 1054 (quoting State v. Gaither, 283 Kan. 671, Syl. ¶ 4, 156 P.3d 602 [2007] ).
In this case, the trial court relied on two condition precedents, although only one is necessary to order consolidation. Here, the trial court found that the crimes were of the same or similar character and were based on two or more acts constituting parts of a common scheme or plan. The trial judge stated:
“[B]ecause of the sequential nature of these charges over a span of less than four hours and how everything, in the Court's opinion, was tied together, I think it would be a situation where if the court severed the charges, the jury would be given misleading—misleading picture of what occurred, there would be holes in the evidence and, therefore, the Court is of the opinion that the motion should be denied.”
Shugart cites State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999), to support his argument that his crimes were not of the same or similar character. 266 Kan. at 507–09. In Barksdale, our Supreme Court upheld the trial court's joinder of two separate murder charges based on a finding that they were of the same or similar character. The defendant in Barksdale argued that the crimes were factually distinct, that the same evidence was not necessary to prove both crimes, and that only one witness would testify about both cases. The trial court rejected the defendant's arguments finding that the motive in both cases was robbery, the manner of both killings was substantially similar, both victims were found in the same position—face down and tied with cords, and both murders were committed in the same general location within 9 months of one another.
Here, Shugart mainly argues that the crimes were not of the same or similar character because the crimes did not have the same kind of evidence. Specifically, Shugart contends that each incident had separate eyewitnesses and victims. Shugart also maintains that the State incorrectly claims that Shugart was forced to repair a tire at Gomez Tire after he popped a tire fleeing Long's house. Shugart argues that the record shows that both Eustache and Carrell testified that Shugart's tire was damaged before his encounter with Long; thus, the State's theory on why he went to Gomez Tire fails. As a result, Shugart contends that there was no evidence that his incident at Gomez Tire was influenced by any other incident testified to at trial.
Shugart also argues that the trial court erred in finding that the crimes were part of the same common scheme. He contends that his testimony shows that his intention for going to Gomez Tire was to stage a robbery and that no other incident that morning was intended to be a part of the staged robbery. Shugart contends that the other incidents were “likely instead fueled by [his] intoxication.”
Both of Shugart's arguments are unpersuasive. The evidence shows Shugart used a gun—the same gun—against every victim at some point during his contact with the victim. Thus, using a gun to make people do what you want shows a common scheme or plan. Shugart also demanded money from three of his victims. Additionally, Shugart was in the same vehicle each time he made contact with a victim. Moreover, each victim described Shugart and his clothing similarly. All of these facts help support the trial court's finding that the crimes were of a common scheme or plan or of the same or similar character.
The evidence of each witness was also related or tied to evidence from the other witnesses. For example, when officers were investigating the kidnapping of Brown they saw Shugart drive by shortly after he committed the robbery at Gomez Tire. When Brown identified Shugart, he also identified Shugart's car. Brown also pointed out that the car had different wheels and rims. Without the evidence involving the incident at Gomez Tire, Brown's identification of the car and his credibility would be brought into question. Additionally, three of the victims testified that Shugart either had a damaged tire or that he popped a tire when he left the scene of those crimes. This evidence again connects the earlier crimes with the robbery at Gomez Tire.
And finally, it is unlikely that joinder of the crimes prejudiced Shugart because the trial court properly instructed the jury that each count charged against Shugart was a separate and distinct crime and that the jury would have to decide each count separately. “Appellate courts have ascribed to the hypothetical presumption that such an instruction negates the inherently prejudicial effect of trying a person on multiple counts.” Cruz, 297 Kan. at 1058.
In conclusion, we determine that Shugart has failed to meet his burden of establishing that the trial court abused its discretion in this ruling.
Did the Trial Court Violate Shugart's Sixth and Fourteenth Amendment Rights When It Sentenced Him to the Aggravated Sentence Without Proving the Aggravating Factors Beyond a Reasonable Doubt?
Shugart maintains that his aggravated sentence within the sentencing grid box violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Shugart argues that the trial court erred in sentencing him to the aggravated number in his appropriate sentencing guidelines box without submitting any aggravating factors to the jury.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
Because K.S.A.2013 Supp. 21–6804(e)(1) (formerly K.S.A. 21–4704[e][1] ) recommends a sentencing judge impose the middle sentence absent aggravating or mitigating factors, Shugart argues the trial court lacked the authority to impose the aggravated sentence without proving any aggravated factors to a jury.
Nevertheless, our Supreme Court has already addressed this issue in State v. Johnson, 286 Kan. 824, 848–51, 190 P.3d 207 (2008). In Johnson, the court held that sentences which fall within a grid box are constitutional, and appellate courts lack jurisdiction to review such sentences. 286 Kan. at 841–42. Shugart acknowledges this decision governs but argues Johnson was wrongly decided and includes this issue to preserve it for federal review.
Our court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Our Supreme Court continues to reaffirm its decision in Johnson. See State v. Beaman, 295 Kan. 853, 870–71, 286 P.3d 876 (2012) (reaffirming Johnson ). Accordingly, we must follow this precedent.
Did the Trial Court Err in Using Shugart's Prior Juvenile Adjudications to Increase His Sentence Without Proving Them Beyond a Reasonable Doubt?
Finally, Shugart argues that the trial court violated his constitutional rights under Apprendi by using his prior juvenile adjudications to increase the penalty for his crime without requiring the State to prove them to a jury beyond a reasonable doubt. Shugart acknowledges that this issue has been decided against him in State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), but includes this issue to preserve it for federal appeal.
Again, absent some indication that our Supreme Court is departing from its position in Hitt, this court is bound by Supreme Court precedent. See Ottinger, 46 Kan.App.2d at 655. Our Supreme Court continues to reaffirm its ruling in Hitt. See State v. Harris, 293 Kan. 798, 818, 269 P.3d 820 (2012). Thus, the trial court properly used Shugart's prior juvenile adjudications to enhance his sentence.
Affirmed in part, reversed in part, vacated in part, and remanded for resentencing.