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State v. Syers

Court of Appeals of Kansas.
Mar 22, 2013
297 P.3d 311 (Kan. Ct. App. 2013)

Opinion

No. 107,051.

2013-03-22

STATE of Kansas, Appellee, v. Thomas Edward SYERS, Appellant.

Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION


PER CURIAM.

In this challenge to his convictions for two counts of battery and two counts of falsely reporting a crime, Thomas Edward Syers first contends that there was insufficient evidence that he was guilty. Then, he argues the prosecutor overstepped her bounds by suggesting to the jury that any touching could support a conviction for battery instead of an intentional touching as required by law. Further, Syers contends the prosecutor improperly gave the jury her personal belief that Syers' push of the victim was done in a rude, insulting, or angry manner. In Syers' view, these two statements were sufficient misconduct to warrant a reversal of his convictions.

After reviewing all the evidence in the light most favorable to the State, as we are required by law to do, the evidence reveals that Syers, on two occasions, falsely reported that the victim violated a court order to stay at least 10 yards away from Syers. Also, Syers, again on two different days, either shoved the victim or backed into him intentionally and in a manner that violates the battery statute. Further, we find no misconduct in the prosecutor's first comment Syers complains about; and, even though we are troubled that the prosecutor did interject her personal opinion about one element of the charges in her argument, we conclude the error is not sufficient to warrant a reversal of the convictions.

The facts reveal an ongoing pattern of conflict between two men.

An understanding of the history of the relationships in this case is important to get a context to the actions taken by the various people involved. The appellant Syers was married to Heather Syers for 14 years. They had two children, Lisa, 16, and Austin, 13. After their divorce, Heather married Martin Eby. In November 2009, the Sedgwick County District Court ordered Eby to remain at least 10 yards away from Syers and Syers to remain at least 10 yards away from Eby. The case manager involved in the divorce case recommended that Eby yield to Syers any time Syers was attempting to have time with his children.

Eby described his relationship with Syers as “increasingly aggressive,” noting this led to various incidents between the two. Eby testified that Syers repeatedly sought to create conflict by doing things such as making rude gestures, making threats, and backing into him and shoving him.

In June 2010, both Syers and Eby attended one of Austin's baseball games. Heather testified that when Eby was trying to talk to Austin, Syers approached Eby and “got in his face,” telling him to stay away from Austin. Eby similarly testified that Syers approached him and confronted him. Eby said he did not approach or attempt to come within 10 yards of Syers during the incident. In fact, according to Eby, he tried to move away from Syers.

For his part, Syers reported the incident to law enforcement officers and told them that Eby had violated the court order and Eby was repeatedly approaching him during the baseball game.

Then, in August 2010, Syers and Eby both attended an open house at Lisa's school. Heather said that during the event Eby was doing his best to maintain separation from Syers, but Syers approached Eby. Heather testified that she did not see Eby do anything to violate the court order but saw Syers get close to Eby and tell him to stay away from them.

Then in September 2010, Syers and Eby attended one of Austin's cross-country events. Heather testified that Syers approached Eby. Eby testified he was near the children when Syers stepped in between them and started backing into Eby and he believed Syers was looking for a fight. Eby testified Syers' back was touching Eby's chest, but he described the contact as brief. Eby said the contact was not violent but indicated the conflict could have been greater had he been immature about the situation.

A few days later, again at a cross-country meet, Heather and Eby were talking to a friend when Syers approached the group, put his hands on Eby's chest, and shoved him backwards. Heather said she did not see Eby approach Syers that day. Eby explained that as he and Heather were speaking with Austin, Syers approached and shoved him forcefully and told him to stay away from his son. Eby said that prior to the push he had not approached or confronted Syers in any way. Syers called law enforcement officers to the scene and claimed Eby had struck him and knocked him back several feet.

After this incident, Syers obtained a temporary order of protection from stalking against Eby. Among other things, the order indicated that Eby was prohibited from contacting Syers either directly or indirectly and Eby could not enter or come on or around the premises, the residence, or workplace where Syers resides, stays, or works.

Then, in October 2010, Syers and Eby were both attending a football game where Lisa was playing in the band. Heather said Syers approached Eby several times during the event and essentially followed him around. Law enforcement officers ultimately came to the football field after Syers made contact with them, claiming Eby was violating the court order. Syers told law enforcement officers he had told Eby three times he could not be around him, but Eby ignored him. Eby was arrested based on Syers' claims. Later, Heather testified that during the game she never saw Eby try to create conflict with Syers and said Eby tried to remain 10 yards away from Syers. Heather explained that Eby continued to attend the children's events only because the children wanted him there since he is part of their lives.

Ultimately, Officer Keith Allen was assigned to investigate the incident involving Syers and Eby. He learned that Eby had recorded the incidents via a pair of glasses and a watch containing a hidden camera. Eby said he was recording the incidents because Syers was making false claims about him to the case manager and to law enforcement officers.

Later, at the trial of this matter, Officer Allen testified that Eby's recording of the June incident reflected Eby was trying to talk to Austin and Heather when Syers intervened. Officer Allen said the video reflected that Eby was attempting to avoid confrontation with Syers and Eby did not violate the court order to stay 10 yards away from Syers. With regard to the August incident, Officer Allen testified that based on Eby's recording, he did not see Eby violate the court order at any time. Officer Allen stated that Syers' report of the August incident was again inconsistent with what was recorded on the video.

After reviewing Eby's recording of the September 17 incident, Officer Allen testified it was clear that Eby was just simply standing in one spot when Syers walked up and shoved him. Officer Allen testified that it was obvious that Syers' report to law enforcement officers concerning this incident was inaccurate and untruthful. With regard to the October 15 incident, Officer Allen testified that based on Eby's recording, Eby had not violated either the temporary protection from stalking order or the court order requiring him to remain at least 10 yards away from Syers.

Again, after reviewing the video evidence, Officer Allen stated that he believed the evidence was consistent with Eby's version of the incidents and Syers' reports were inconsistent with the evidence. As a result, Officer Allen concluded that Syers had falsely reported a crime four or five times and decided it was Syers who violated the court order to stay 10 yards away from Eby. Officer Allen testified it was clear that Syers had violated the court order and Eby had not.

As a result, the State charged Syers with two counts of battery and three counts of falsely reporting a crime.

At trial, Officer Allen acknowledged that Eby was the person who created the video evidence and it was possible some events were not captured on the video. Officer Allen also acknowledged that events supporting Syers' version of the incidents may not have been made part of the recordings. The jury found Syers guilty of two counts of battery and two counts of falsely reporting a crime.

There is sufficient evidence to support these convictions.

In this appeal, Syers challenges the sufficiency of the evidence to support either conviction for falsely reporting a crime and the battery that occurred on September 14, 2010.

When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all of the evidence in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In evaluating the evidence, this court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Raskie, 293 Kan. 906, 919–20, 269 P.3d 1268 (2012).

We look first at the charges of falsely reporting a crime.

In Kansas, the crime of falsely reporting a crime is defined as “[f]alsely reporting a crime ... informing a law enforcement officer or state investigative agency that a crime has been committed, knowing that such information is false and intending that the officer or agency shall act in reliance upon such information.” K.S.A. 21–3818(a).

In cases where witnesses' testimony conflict, a video recording can be compelling evidence. It is clear that Syers on two occasions made reports to law enforcement officers that Eby came within 10 yards of him in violation of an outstanding court order. Syers contends the information he reported was not information he knew to be false because it was true that Eby was within 10 yards of him on both September 17, 2010, and October 15, 2010. According to Syers, he says the question whether he caused them to be within 10 yards of each other is a factual dispute.

We find this argument unpersuasive. First, regarding the September 17 incident, there was testimony from both Heather and Eby that Syers put his hands on Eby's chest and shoved him. Both Heather and Eby testified Eby did not approach Syers. When law enforcement officers arrived at the scene, Syers claimed that Eby had struck him and knocked him back several feet. At trial, Officer Allen testified that after reviewing Eby's recording of the incident, it was clear that Eby was just simply standing there and Syers walked up and shoved him. Officer Allen testified that it was obvious Syers' report to law enforcement officers concerning this incident was inaccurate and untruthful. There is sufficient evidence that Syers reported information to the law enforcement officers he knew to be false.

Further, along this same line, we note that Syers not only told law enforcement officers that Eby had come within 10 yards of him, thereby suggesting Eby had approached him, but he also told law enforcement officers that Eby had struck him. All of the evidence in the record reflects otherwise.

Turning to the October 15 incident, we note that Heather testified Syers approached Eby several times during the game. Nevertheless, Syers made contact with law enforcement officers claiming Eby had violated the court order. At trial, Officer Allen testified that when he reviewed Eby's recording of the incident, he concluded Eby had not violated either the temporary protection from stalking order or the court order requiring that he remain 10 yards away from Syers. Again, the record contains sufficient evidence that Syers reported information he knew to be false by reporting that Eby came within 10 yards of him where the evidence demonstrates otherwise.

Next, Syers argues that the elements of falsely reporting a crime were not met in his case because there is no evidence that he requested Eby be arrested or prosecuted. We are not convinced.

To demonstrate a person falsely reported a crime to law enforcement officers, there must be evidence the person intended that law enforcement would act in reliance upon the false information. K.S.A. 21–3818(a). The statute contains no language indicating the person must request an actual arrest or prosecution. On appeal, Syers sets forth no caselaw to support such an idea. By setting forth no legal argument or authority to support his argument on this point, Syers has abandoned the claim. See State v. Rupnick, 280 Kan. 720, 738–39, 125 P.3d 541 (2005), where the court held that simply stating a point without pertinent authority is akin to failing to brief an issue, and an issue not briefed is deemed waived or abandoned.

In this appeal, Syers notes the facts of each of the above incidents could be seen differently by each party. This seems to be a request for us to reweigh the evidence, which we cannot do. See Raskie, 293 Kan. at 920. We conclude that there is sufficient evidence to support each of Syers' convictions for falsely reporting a crime.

We turn now to the battery conviction.

In this contention, Syers next argues there was insufficient evidence to support the September 14 battery because he only touched Eby briefly. Eby testified the touching was not violent, and Syers testified the touching was unintentional. Syers says the State has only proved an incidental contact, which is insufficient to prove battery. We are unconvinced.

The jury in this case was instructed that battery is defined as intentionally causing physical contact with another person when done in a rude, insulting, or angry manner. See K.S.A.21–3412(a)(2).

During the trial, Heather testified that on September 14, 2010, at the cross-country meet, Syers approached Eby. Eby testified Syers stepped between Eby and the children and began backing into him—touching his back to Eby's chest. Eby described the contact as brief and not violent, but he said there could have been a bigger conflict had he been immature about the situation. Eby said he believed Syers was looking for a fight.

We note that Syers fails to cite any authority for his suggestion that physical contact must be substantial or violent in order to support a battery. To the contrary, the caselaw suggests any physical contact suffices as long as the surrounding facts indicate the contact was made in a rude, insulting, or angry manner. In State v. Brown, 46 Kan.App.2d 210, 211–12, 262 P.3d 1055 (2011), rev. denied 293 Kan. –––– (February 17, 2012), this court held there was sufficient evidence that Brown committed the crime of domestic battery when he pushed the victim during a heated verbal argument. From Brown, it appears that the circumstances surrounding a physical contact are what dictate whether contact was made in a rude, insulting, or angry manner.

Here, the jury heard the evidence regarding the long history of animosity between Eby and Syers. Eby described his relationship with Syers as increasingly aggressive, noting Syers repeatedly sought to create conflict between the two by crude gestures, making threats, backing into him, and shoving him. The trial testimony demonstrates the September 14 incident was only one in a series of incidents in which Syers approached Eby in a threatening manner and attempted to prevent Eby from speaking to his children. Circumstantial evidence in the record refutes Syers' contention that his physical contact with Eby was unintentional and incidental.

Again, we will not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence on appeal. See Raskie, 293 Kan. at 920. The jury in this case clearly concluded, based on the evidence, that Syers touched Eby both intentionally and in a rude, insulting, or angry manner when he attempted to physically separate Eby from his children. We hold there is sufficient evidence to support Syers' conviction for battery on this count.

We examine the question of prosecutorial misconduct.

For Syers' final claim on appeal, he contends the prosecutor erred during the closing argument when she spoke about the battery conviction. Syers alleges the prosecutor wrongfully suggested the jury need not find that the physical contact by Syers was intentional, and she wrongfully expressed her personal opinion that the physical contact was done in a rude, insulting, or angry manner.

When we review an allegation of prosecutorial misconduct involving improper comments to the jury during closing argument, we must conduct a two-step analysis. First, we must decide whether the prosecutor's comments were outside the wide latitude the law allows in discussing the evidence. Secondly, if misconduct is found, the court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Huerta–Alvarez, 291 Kan. 247, 261, 243 P.3d 326 (2010).

If we reach the second step of the analysis, we must consider three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct demonstrated ill will on the part of the prosecutor; and (3) whether the evidence was so direct and overwhelming that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. The third factor may not override the first two factors unless the harmless error tests of both K.S.A.2010 Supp. 60–261, the refusal to grant a new trial is inconsistent with substantial justice, and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), where the Court held that concluding beyond a reasonable doubt that the error had not changed the result of the trial, have been met. When a defendant alleges the prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole. Huerta–Alvarez, 291 Kan. at 261–62; see State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6, 566, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).

We look at Syers' first claim of misconduct.

When she was speaking to the jury about the September 14 incident, the prosecutor argued as follows:

“The State has to prove beyond a reasonable doubt that there was physical contact, not that there was physical injury, not that there were bruises, not that, you know, EMS needed to be called, just that there was physical contact.”

In this appeal, Syers says this comment suggested to the jury that the State need only prove a touching occurred—not an intentional touching. To prove battery, the State was required to prove Syers intentionally caused physical contact with Eby. See K .S.A. 21–3412(a)(2). We are not convinced by Syers' argument on this point. The prosecutor's comment in no way suggests the physical contact required for battery need not be intentional. The words merely indicate that there need not be evidence of injury. Simply put, this comment is not outside what the law permits.

We do not think that Syers' argument characterizes the prosecutor's comment accurately. We note that in his brief, Syers only claims the prosecutor's statement constitutes misconduct and drops the argument at that point. He makes no argument that the misconduct was gross and flagrant, there was ill will on the part of the prosecutor, or the evidence was not direct and overwhelming. In our view, Syers has abandoned his ability to establish the second step of the test for prosecutorial misconduct. See Huerta–Alvarez, 291 Kan. at 261.

We turn to the second allegation of misconduct.

Syers next claims the prosecutor engaged in misconduct by giving an improper personal opinion when she stated:

“As I stated earlier, there's obviously no love lost between these two gentlemen, and I think from the situation and the circumstances that that physical conduct—contact of pushing him backwards, trying to push him away was Mr. Syers's [ sic ] way of touching him in a rude, insulting or angry manner.” (Emphasis added .)

Here, we agree with Syers that the prosecutor improperly inserted her opinion at this point of her closing argument.

It is well settled in Kansas that prosecutors must not state their personal opinions regarding the ultimate guilt or innocence of the defendant. The reason for prohibiting prosecutors from commenting on their opinion of the defendant's guilt is that such expressions of personal opinion are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. See State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006).

Having said that, however, we are not convinced that this misconduct was reversible error. The prosecutor's comment was not gross and flagrant considering it was the only instance of improper argument made during the trial. Next, Syers does not claim on appeal that the prosecutor demonstrated ill will, and the record contains no evidence of such.

Further, the evidence of guilt was overwhelming in this case. The prosecutor's one instance of misconduct would have had little weight on the minds of the jurors. The jury was properly instructed that to prove battery the State had to show Syers intentionally caused physical contact with Eby in a rude, insulting, or angry manner. The jury was also instructed to decide the case by applying the instructions to the facts. Further, the jury was advised that the statements and remarks of counsel were intended to help in understanding the evidence and applying the law, but they were not evidence. The jury was advised to disregard statements that were not supported by evidence. With all of that in mind, we conclude that this was not reversible error.

Affirmed.


Summaries of

State v. Syers

Court of Appeals of Kansas.
Mar 22, 2013
297 P.3d 311 (Kan. Ct. App. 2013)
Case details for

State v. Syers

Case Details

Full title:STATE of Kansas, Appellee, v. Thomas Edward SYERS, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 22, 2013

Citations

297 P.3d 311 (Kan. Ct. App. 2013)