Opinion
110,735.
10-24-2014
STATE of Kansas, Appellee, v. Matthew VASQUEZ, Appellant.
Robert J. Kennington, of Garden City, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Robert J. Kennington, of Garden City, for appellant.
Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury sitting in Seward County District Court convicted Defendant Matthew Vasquez of two counts of aggravated battery and one count of conspiracy to commit aggravated battery arising from a street brawl involving several other young men. Vasquez has appealed. The district court lacked jurisdiction to submit one of the aggravated battery counts and the conspiracy count to the jury because those crimes had not been alleged in the charging document filed against Vasquez and they were not lesser included offenses of the charged crimes. We, therefore, reverse those convictions. As to the remaining aggravated battery conviction we find no error and affirm.
We recount the facts briefly. In December 2009, Vasquez and Victor Avila were riding around Liberal in a car driven by Jesus Flores when they saw Magdiel Cobieya and Luis Heredia walking down the street. The trial evidence indicated Cobieya and Heredia flashed gang signs at the occupants of the car or at least Vasquez said they did. Flores stopped the car. Vasquez and Avila got out and confronted Cobieya and Heredia. After exchanging unfriendly words, the four began to fight. Although witnesses and the participants had differing accounts of the set-to, we find some common facts. Vasquez principally squared off with Cobieya, and Avila primarily tussled with Heredia. There were widely varying descriptions of Flores' involvement; those differences are not relevant here.
Nobody brandished weapons. But Vasquez apparently pummeled and repeatedly kicked Cobieya. At the scene, Cobieya lost consciousness and was bleeding heavily from injuries to his head. He suffered a skull fracture, a broken nose, and a crushing injury to the bones around his right eye. The injuries required that Cobieya be transferred to a hospital in Wichita for treatment. Heredia had comparatively minor injuries.
In an amended complaint—the charging document on which the State proceeded to trial—Vasquez was accused of one count of attempted first-degree murder and one count of conspiracy to commit first-degree murder for the beating of Cobieya and one count of aggravated battery for the beating of Heredia. At the close of the evidence, the district court instructed the jury on aggravated battery as a lesser included offense of the attempted murder of Cobieya and on conspiracy to commit aggravated battery as a lesser included offense of the conspiracy to murder Cobieya. The jury convicted Vasquez of aggravated battery and conspiracy to commit aggravated battery for the beating of Cobieya. The jury also convicted him of the aggravated battery of Heredia. The district court later sentenced Vasquez to prison and imposed a substantial amount of restitution. Vasquez has timely appealed.
After both sides had filed briefs with this court, we issued a show cause order questioning whether the district court had jurisdiction to try Vasquez on the purported lesser charges related to Cobieya. See State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343 (2013) (appellate court duty bound to raise potential jurisdictional defect even if parties have not). The State and Vasquez filed supplemental submissions in response to the order.
We conclude the district court lacked jurisdiction to enter judgment against Vasquez for the aggravated battery of and the conspiracy to commit the aggravated battery of Cobieya because he had not been charged with those crimes and those crimes were not lesser included offenses of the crimes for which he had been charged. Those convictions must be reversed, and the sentences imposed on Vasquez for them vacated.
A district court lacks jurisdiction to convict a defendant of a crime not charged in the complaint unless that crime is a lesser offense of the charged crime. State v. Ramirez, 299 Kan. 224, 227–28, 328 P.3d 1075 (2014) ; State v. Gonzales, 289 Kan. 351, 367, 212 P.3d 215 (2009) ; State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000). A district court has no jurisdiction to enter judgment for an uncharged crime regardless of the evidence presented at trial. Gonzales, 289 Kan. at 367.
Aggravated battery is not a lesser included offense of attempted murder. State v. Gaither, 283 Kan. 671, 692, 156 P.3d 602 (2007) (“[A]ggravated battery does not qualify as a lesser-included crime of attempted first-degree murder....”); State v. Daniels, No. 108,678, 2014 WL 2619373, at *10 (Kan.App.2014) (unpublished opinion). Accordingly, the district court could not have properly instructed the jury on aggravated battery of Cobieya as a lesser offense of attempted first-degree murder, the charged crime. The district court, in turn, lacked jurisdiction to enter judgment on the jury's guilty verdict.
We also point out that the district court could not have allowed the State to amend the attempted murder charge to aggravated battery during the trial. K.S.A. 22–3201(e). By statute, a district court may permit the State to amend a complaint before verdict if the change entails “no additional or different crime” and does not prejudice the defendant's “substantial rights.” K.S.A. 22–3201(e). Here, that would not have been true. Such an amendment would have charged a different crime—aggravated battery—in place of the charged crime—attempted first-degree murder.
The same analysis applies to the conspiracy charge. Under K.S.A. 21–3302(a), the statute criminalizing conspiracies in effect at the time of Vasquez' offense, a conspiracy entailed “an agreement with another person to commit a crime or to assist in committing a crime.” A criminal conspiracy requires an agreement or understanding among the participants to commit a particular crime, not simply to engage in undefined lawless behavior. State v. Burnett, 221 Kan. 40, 45–46, 558 P.2d 1087 (1976) ; see PIK Crim. 4th 53.030 (jury instruction on conspiracy requires identification of the particular crime the conspirators have agreed to commit as part of the State's proof). Accordingly, a conspiracy to commit first-degree murder, as charged here, requires an agreement among the participants to carry out an intentional killing. A conspiracy to commit an aggravated battery is a different crime essentially entailing an agreement to inflict bodily harm, great bodily harm, or a similar injury short of death of the victim. So a conspiracy to commit aggravated battery is not a lesser offense of a conspiracy to commit murder, since those crimes have different agreed-upon objectives and, hence, different elements. See State v. Ramirez, 299 Kan. 224 (all elements of lesser included offense must be elements of greater offense).
The district court, therefore, had no jurisdiction to enter judgment on the verdict convicting Vasquez of conspiring to commit an aggravated battery of Cobieya.
Because our decision on jurisdiction requires that we reverse the convictions for the aggravated battery of Cobieya and the conspiracy to beat him, we need not address the points Vasquez raised on appeal regarding those convictions. We necessarily vacate the sentences the district court imposed on Vasquez for those convictions.
We turn to Vasquez' appeal of his conviction for the aggravated battery of Heredia. Vasquez first argues there was insufficient evidence to convict him of that crime. In reviewing a sufficiency challenge, we construe the evidence in a light most favorable to the party prevailing below, here the State, and in support of the jury's verdict. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009) ; State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
The district court instructed the jury that Vasquez could be found guilty of the aggravated battery of Heredia if he aided and abetted another person in committing the crime. As provided in K.S.A. 21–3205(1), the statute governing aiding and abetting at the time of the offense, a person may be guilty of a particular crime if he or she “intentionally aids, abets, advises, hires, counsels or procures” another person to commit that crime. The statute, then, extends criminal liability to someone who acts with the purpose of helping or inducing another person to carry out a crime as a principal.
The evidence viewed favorably to the State supports the conviction of Vasquez as an aider and abettor of Avila in the beating of Heredia. There was evidence that as the four young men faced off on the street, Vasquez reminded Avila of the times Cobieya had confronted Vasquez at school. Avila indicated that he “kind of” thought there would be a fight when they got out of the car. Those circumstances, though hardly definitive, sufficiently support a conclusion that Vasquez was advising or counseling Avila to forcibly immobilize Heredia so he could not back Cobieya in fending off Vasquez' immediately impending attack. Likewise, Vasquez could be reasonably viewed as aiding or abetting—legal jargon for helping—Avila in beating Heredia by preventing Cobieya from intervening in that part of the brawl.
Given the particular facts here, there was sufficient evidence to support the conviction of Vasquez for the aggravated battery of Heredia on an aiding-and-abetting theory. See State v. Green, 254 Kan. 669, 686, 867 P.2d 366 (1994) (Kansas has long recognized by statute and in caselaw that “any person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he or she was a principal.”).
Vasquez also challenges his conviction for the aggravated battery of Heredia based on the elements instruction the district court gave. The abbreviated argument appears to repeat an objection Vasquez' trial lawyer made during the instruction conference. In our view, the district court properly overruled the objection. As we understand the argument, we find no basis to upset the conviction.
The State charged the aggravated battery of Heredia as a severity level 4 person felony requiring proof he suffered great bodily harm or disfigurement. See K.S.A. 21–3414(a)(1)(A). But without objection from the State, the district court instructed the jury on severity level 7 aggravated battery requiring proof that the assailant inflicted bodily harm to Heredia in a manner that could have caused great bodily harm, disfigurement, or death. See K.S.A. 21–3414(a)(1)(B). The district court gave the portion of the pattern jury instruction reflecting the elements for that severity level 7 violation of the statute. Vasquez objected to the instruction. Although his objection was not entirely clear, he seemed to say that the district court should provide the jury with the entire pattern instruction covering all of the ways a person might commit aggravated battery-some of which would be obviously inapplicable based on the evidence. The district court denied the objection.
On appeal, Vasquez reprises that objection as a basis for reversal. Although the then-current PIK instruction contained language covering each potential violation of K.S.A. 21–3414, the district court was expected to tailor the language to the charged offense and the facts of the case by excising the unnecessary or inappropriate parts before instructing the jury. The district court did that here.
The district court declined to submit the language covering the severity level 4 violation of the aggravated battery statute. The State did not object. So Vasquez would have had no sound reason we can discern to solicit an instruction on a more severe form of the offense that carried a harsher sentence. To that extent, the argument Vasquez advances on appeal makes little sense.
Based on severity level, the comparable violations of the aggravated battery statute were either factually redundant of what the district court did instruct on or were factually unsupported. Either way, there could have been no legal prejudice to Vasquez in failing to inform the jury of those ways of committing the crime.
One form of aggravated battery required proof of physical contact with the victim done in a manner that could result in great bodily harm, disfigurement, or death. K.S.A. 21–3414(a)(1)(C). The district court actually instructed the jury on a violation that differed only in requiring the State to prove bodily harm rather than simple physical contact. That could not have prejudiced Vasquez, since bodily harm necessarily required physical contact on the facts of this case. The undisputed evidence showed that Avila punched Heredia. So the jury's finding that Heredia suffered bodily injury when he was struck logically included a finding of physical contact.
The other means of committing aggravated battery entail reckless conduct causing contact with or injury to the victim. Instructing on those ways of committing aggravated battery would have been factually unjustified in this case. Again, the undisputed evidence showed Avila repeatedly hit Heredia—conduct that was deliberate and intentional, not reckless. See State v. Morton, No. 103,931, 2011 WL 3795390, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. 946 (2012). The district court should not have instructed on those forms of the offense dependant on recklessness. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012) (district court does not err in declining to give an instruction on a lesser offense unsupported in the evidence).
In short, Vasquez has not described any instructional error affecting his conviction for the aggravated battery of Heredia.
We affirm the jury's verdict convicting Vasquez of the aggravated battery of Heredia. We reverse the convictions for the aggravated battery of Cobieya and the conspiracy to beat him, and we vacate those sentences. We remand to the district court for further proceedings consistent with those determinations, including a reexamination of the appropriate amount of restitution.
Affirmed in part, reversed in part, and remanded with directions.