Opinion
110,618.
04-10-2015
STATE of Kansas, Appellee, v. Steven THAMMAVONG, Appellant.
Gerald M. Jackson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Gerald M. Jackson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Steven Thammavong was convicted by a jury of aggravated battery. On appeal, he challenges an amendment by the State to the charging document, three comments made by the prosecutor in closing argument, and the constitutionality of the aggravated battery statute. Having carefully considered the record on appeal and the parties' briefs, we affirm the conviction.
Factual and Procedural Background
The victim of the aggravated battery was Steven's father, Tane Thammavong. At trial, Tane and other eyewitnesses testified that Steven was drunk and angry on the night of December 25, 2012, but they denied knowledge of any criminal acts. To prove its case, the State called Joshua Lewis, a police officer for the City of Wichita, who testified that he interviewed Tane on the night in question and
“[Tane] stated he was in his room asleep and the door's kicked open by his son and his son was asking for a gun. And as his son was asking for a gun, he grabbed [Tane] by the throat and had a choke hold around his throat and was demanding, you know, where's the gun.”
Officer Lewis testified that Tane, “came up to me and he goes, I was choked like this, and [Tane] actually put his hand on my throat and showed me.” The officer also noticed a scratch on Tane's neck which Tane said was caused when Steven was choking him.
Another eyewitness, Lisa Anousone, reported to a police officer at the scene that Steven had chased her with a large knife, threatening to kill her. The State also produced a recording of a 911 call by Steven's mother which conveyed her panic at Steven's violent threats.
On December 27, 2012, the State charged Steven with aggravated battery against Tane (K.S.A.2011 Supp. 21–5413 [b][1][B] ), aggravated assault against Lisa (K.S.A.2011 Supp. 21–5412 [b][ 1] ), and simple battery against Steven's sister, Linda K. Thammavong. (K .S.A.2011 Supp. 21–5413 [a][2] ).
On February 6, 2013, Lisa, who was not served with process, failed to appear for the preliminary examination, and the State dismissed the aggravated assault charge. On May 14, 2013, the morning before the jury trial, however, the State informed the district court that it had located and served Lisa with a subpoena to appear. As a result, the State sought to amend the charging document to reinstate the aggravated assault charge. Steven objected to the amendment, claiming it was untimely. The district court overruled the objection and conducted a preliminary examination.
At the preliminary examination, Lisa denied remembering any criminal acts committed by Steven. However, Nathan Peterson, a police officer for the City of Wichita, testified that at the scene Lisa reported:
“Steven ... held this chopping knife above his head and ... made the statement that he was going to kill her. She said that she had some prior knowledge of some past violence from Steven ... and ... she did fear for her life and immediately ran out of the residence....
“She said her initial plan was to get into her car and leave, but she turned around in the front yard and saw that Steven was a short distance behind her, still chasing her with the knife in hand.”
At the conclusion of the preliminary examination, Steven was bound over for trial on the aggravated assault charge. The jury trial began later that day.
Trial commenced, but on the second day the State announced that Lisa had not appeared in response to a subpoena, and it sought a material witness warrant. The trial court issued the warrant, but by the third day of trial law enforcement officers still had not located Lisa.
The State did not ask the trial court for a finding that Lisa was an unavailable witness, and when Steven moved for a judgment of acquittal, the State abandoned the aggravated assault charge and it was dismissed by the trial court. At the conclusion of the trial, the jury found Steven guilty of aggravated battery of Tane, but it acquitted him of committing a simple battery against Linda.
Steven was sentenced to 34 months' imprisonment. He filed a timely appeal.
Amendment of the Charging Document
For his first issue on appeal, Steven contends that “[a]dding an aggravated assault charge [on] the first day of jury trial prejudiced Steven's substantial right to a fair trial by allowing introduction of prejudicial and ultimately irrelevant evidence.” The challenged evidence that was admitted at trial was a meat cleaver found at the scene and testimony regarding Steven's use of it to frighten Lisa.
Preliminarily, we note the claim of error raised on appeal is different than the objection made by Steven in the district court. On appeal, Steven is now complaining about the prejudicial nature of evidence introduced at trial in support of the aggravated assault charge that was later dismissed at the end of trial. But in the district court, Steven's counsel simply argued, “[W]e were ready to proceed with trial and [we] would object to the State being able to go back to preliminary hearing at this stage.” We will consider the propriety of the district court amending the charging document with both of these concerns in mind.
Our Supreme Court has explained the standard of review:
“Whether to allow the amendment of a complaint before trial is subject to the district court's discretion. This court consistently has given the State considerable latitude in amending a complaint prior to trial. Discretion is abused only when no reasonable person would take the view adopted by the district court. The moving party bears the burden of establishing such an abuse of discretion.” State v. Bischoff, 281 Kan. 195, Syl. ¶ 8, 131 P.3d 531 (2006)
K.S.A. 22–3201(e) provides: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” Our Supreme Court has also held that “even the charging of a different crime may be allowed by amendment to a complaint before trial, provided the substantial rights of the defendant are not prejudiced. [Citations omitted.]” Bischoff, 281 Kan. at 205.
Was Steven substantially prejudiced by the amendment? In this case, the original charging document alleged Steven's aggravated assault of Lisa. This offense was part and parcel of the events which occurred on December 25, 2012, that resulted in the filing of the two other charges. The aggravated assault charge was dismissed at the initial preliminary hearing, however, when Lisa failed to appear as a witness. Upon finally serving Lisa with a subpoena, the State recommenced prosecution and Steven was afforded a preliminary hearing on the aggravated assault charge shortly before trial. In sum, the charging document which Steven defended against at trial was identical to the charging document filed against Steven over 4 months earlier for crimes allegedly committed on the same evening. Steven had ample notice of the aggravated assault charge, and the second preliminary examination, although held shortly before trial, apprised him of the facts in support of that charge.
Both on appeal and in the district court, Steven has not claimed a due process violation based on prejudice to the preparation of his defense, the typical complaint in amendment cases. See, e.g., Bischoff, 281 Kan. 195, Syl. ¶ 8. Steven has not claimed any surprise or difficulties in cross examining the State's witnesses or presenting any aspect of the defense case. Moreover, because the aggravated assault charge was abandoned by the State and dismissed by the trial court after Steven moved for a judgment of acquittal at the conclusion of the trial evidence, no substantial prejudice is apparent.
For the first time, however, Steven claims the amendment of the charging document allowed “introduction of evidence that was irrelevant to the other two charges that were eventually submitted to the jury.” He contends the “aggravated assault charge relied on different, prejudicial evidence that would not have been admissible if the late amendment would not have been allowed.” As a result, he asks us to “reverse and remand for a new trial without evidence relating to the improperly amended complaint.”
At the outset, we question the specific legal basis for Steven's claim of prejudice. The determination of whether an amendment to a charging document is prejudicial is obviously made at the time the motion is ruled upon. At the time the district court made its ruling there was no indication that Lisa would not honor her subpoena, be unavailable as a trial witness, or the State would, as a consequence, dismiss the aggravated assault charge. Yet, it is these subsequent trial developments which comprise Steven's claim of prejudice.
We are persuaded that Steven's assertion that “the prejudice stems from the new evidence allowed in as a result of the late-added charge” is really an evidentiary matter. Given the true nature of Steven's complaint, we apply a “multistep standard of review” to “a trial judge's decision to admit or exclude evidence.” State v. Reed, 300 Kan. 494, 508, 332 P.3d 172 (2014). The standard applied depends on the trial court's decision and the issue raised on appeal. See State v. King, 299 Kan. 372, 383, 323 P.3d 1277 (2014) (setting out the possible standards).
Since Steven did not contemporaneously object to the evidence offered in support of the aggravated assault charge, he has waived any complaint regarding its admission on appeal. See K.S.A. 60–404 ; State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009). We see no other grounds for error, such as an indication the State manipulated events to produce evidence on a charge it had no intention of ultimately presenting to the jury. As Officer Peterson explained at the preliminary hearing on May 14, 2013, Lisa
“was very reluctant to talk to me. She soon made clear the source of this reluctance, she feared for potential retaliation. She told me that she didn't feel that [the] family was going to cooperate, she would likely be the only one cooperating with police and she didn't like that scenario if it were to go to court.”
Having considered the potential prejudice to Steven by allowing the amendment, we are persuaded that Steven has failed to bear his burden to establish an abuse of discretion. We find no error because we conclude a reasonable person could have taken the view of the district court in allowing the amendment. See Bischoff, 281 Kan. 195.
Prosecutorial Misconduct
Next, Steven claims the State committed prosecutorial misconduct when the prosecutor made three objectionable comments during closing arguments. In the first comment, the prosecutor said the State's eyewitnesses, “are just as scared of Steven now as they were on December 25, 2012.” In the second instance, the prosecutor said, “Steven placed his hand on Tane's neck and he squeezed. And we can see this, there was enough pressure, there was sufficient pressure in that strangulation that skin was broken, a scratch is on the neck .” In the third remark, the prosecutor said with regard to the eyewitnesses, “if you find their statements to the officers more credible than their statements in court, then I would submit to you the only verdict you can come back with is one of guilty.”
“An appellate court reviews a prosecutorial misconduct claim alleging improper comments using a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing evidence. If so, there was misconduct. Second, if misconduct is found, the appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial.
“Prosecutors are given wide latitude in the language and manner of presentation during closing arguments, but those arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met and on appellate review the court must consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial .” State v. Maestas, 298 Kan. 765, Syl. ¶¶ 1–2, 316 P.3d 724 (2014).
Steven argues that the prosecutor's first statement was not based on the evidence. However, the prosecutor told the jury, “you saw their body language, they are just as scared of Steven now as they were on December 25, 2012.” (Emphasis added.) “A jury is permitted to consider the demeanor of a witness, as well as his or her words. And a prosecutor may remind jurors about a witness' demeanor when the prosecutor is making a closing argument.” State v. Todd, 299 Kan. 263, 285, 323 P.3d 829 (2014). Especially given the great disparity between the statements the eyewitnesses provided to the police and their trial testimony, the prosecutor's comment was within the wide latitude allowed when discussing the evidence.
With regard to the second argument, Steven asserts “there was no evidence that the scratch was the result of excessive pressure.” On the contrary, the evidence was Tane's statements to Officer Lewis that Steven had choked him, Tane's demonstration to the officer how it had occurred, Tane's statement that the choking had produced the visible scratch on his neck, a photograph introduced at trial showing the scratch, and finally Tane's admission at trial that the scratch “maybe,” followed by “probably,” came from Steven's “fingernail.”
Steven suggests the State needed “expert testimony” and “medical evidence” to establish “causation,” but the fact that a fingernail applied with excessive pressure can scratch skin is within the common knowledge of jurors. See State v. Reyna, 290 Kan. 666, 684, 234 P.3d 761 (2010) (generally “the testimony of an expert must be outside the common knowledge of a juror to be admissible.”). Once again, the prosecutor's comment was well within the wide latitude allowed when discussing the evidence.
In the third instance, Steven argues the prosecutor “diluted the burden of proof” by arguing from the pretrial eyewitness statements:
“It was not enough to simply find that the witnesses' out-of-court testimony [sic ] was more credible than their in-court testimony. The jury had to consider all of the evidence presented and determine whether the [S]tate had proved the elements of the crimes charged. Credibility of the witnesses was just one part of that calculus.”
We agree with the State that Steven “ignore[s] the context of the prosecutor's statement and the totality of her argument.” The prosecutor emphasized the importance of the pretrial statements by the eyewitnesses, but that was not the sum of her argument. The prosecutor discussed the evidence generally, including “evidence of the scratches through the photographic evidence,” the “body language of the witnesses who testified,” evidence regarding the “family dynamic” at work, the “statements from the officers regarding how Steven was acting,” the 911 call, and “evidence that alcohol was consumed that night.” The prosecutor addressed the pretrial eyewitness statements at the very end of her rebuttal argument, commenting that while the trial testimony from these witnesses would support “a verdict of not guilty,” their statements to the police would support a “verdict ... of guilty .” That much was certainly true, and the prosecutor did not depart from the wide latitude allowed when discussing the evidence in making the point.
Steven has not shown misconduct regarding the three comments made by the prosecutor during closing arguments.
Constitutionality of the Aggravated Battery Statute
Finally, Steven argues for the first time on appeal that the aggravated battery statute is unconstitutionally vague. The State responds that our court should not review the issue. First, the State points out that our Supreme Court has refused to consider vagueness for the first time on appeal. See State v. Papen, 274 Kan. 149, 161–62, 50 P.3d 37, cert. denied 537 U.S. 1058 (2002). Second, the State notes that Steven does not contend that the statute is unconstitutionally vague as applied to him. See State v. Williams, 299 Kan. 911, 917–18, 329 P.3d 400 (2014).
Our standard of review provides: “Whether a statute is unconstitutional is a question of law and this court has unlimited review.” Smith v. McKune, 31 Kan.App.2d 984, Syl. ¶ 4, 76 P.3d 1060, rev. denied 277 Kan. 925 (2003).
We agree with both of the State's points. As to the first, Steven contends we may consider the issue for the first time on appeal because it involves only a question of law on proven or admitted facts, and consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights. Steven, however, does not identify the proven or admitted facts of his case. Indeed, he does not discuss the facts of his case at all, which leads to the State's second point: “A litigant arguing a statute is unconstitutionally vague cannot base the challenge on the grounds that the statute may be unconstitutional in circumstances other than those before the court.”Williams, 299 Kan. 911, Syl. ¶ 2.
Because Steven argues only from different, hypothetical situations, he has not shown our consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights in this particular case. See 299 Kan. 911, Syl. ¶ 1 ; Papen, 274 Kan. at 161–62. As a result, we decline to consider this issue for the first time on appeal.
Affirmed.