Opinion
No. 104,669.
2012-06-8
STATE of Kansas, Appellee, v. Timothy WATTS, Appellant.
Appeal from Johnson District Court; Sara Welch, Judge. Richard Ney, of Ney & Adams, of Wichita, and Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier and Megan Fisher, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Richard Ney, of Ney & Adams, of Wichita, and Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier and Megan Fisher, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., MALONE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Timothy Watts appeals his conviction for aggravated kidnapping and the resulting 554–month prison sentence. He raises several issues on appeal including prosecutorial misconduct, instructional error, improper admission of prior crimes evidence, misstatement of the law in closing argument, and sufficiency of the evidence. Finding no error, we affirm.
Factual and Procedural History
Prior to January 24, 2009, Watts and Melanee Radenberg had an on-and-off relationship which involved domestic violence. On the night of January 24, 2009, Watts and Radenberg went to a bar to celebrate the birthday of one of Radenberg's friends. During the drive home, someone called Radenberg's phone, but only the number appeared. Watts accused Radenberg of giving another man her phone number and Watts became angry and began yelling at her. Radenberg was frightened so she put 9–1–1 in her phone in case Watts started hitting her.
When they arrived at Radenberg's apartment in Overland Park, Watts went back to the bedroom. While he was in her bedroom, Radenberg took her pepper spray out of her purse. Watts came out of the bathroom, saw that Radenberg had the pepper spray in her hands, and began yelling at her. He came towards her as if he was going to hurt her and she started spraying the pepper spray, but she ended up getting it all over herself instead. Somehow, Radenberg ended up on the floor and Watts was standing over her. She asked Watts if she could wash her face off and she went to the kitchen sink to wash. As she was washing her face, Watts told her that they needed to leave because the police were on their way. She told Watts that the police were not coming and told him that she would not leave. Watts told her that they needed to leave the apartment at least three times and each time Radenberg told him that she would not leave. Watts then grabbed Radenberg by her hair, pulling her away from the kitchen sink, at which point, Radenberg agreed to go with him. Radenberg did not want to leave with Watts, but she felt that she did not have any other choice because she was afraid of what Watts would do to her if she did not leave with him.
Watts and Radenberg walked to her vehicle. Watts got in the driver's seat and Radenberg was in the passenger seat. While they were driving, a man called Radenberg's phone. At this point, Watts had her phone and asked why a man was calling her. Radenberg said she did not know why, and Watts began to punch her in the face. Radenberg curled up so that Watts could not punch her anymore, but he grabbed her hair and started slamming her head into the passenger side window. Radenberg tried to grab the steering wheel and run her car off the road, but Watts was able to maintain control of the car. They pulled off of the highway onto Wornall Road, in Kansas City, Missouri. Radenberg was able to kick Watts, unlock her door, and get out of the car. Watts ran after her, caught her, and pulled her to the ground. Radenberg was screaming for help and Watts backed off, said he was sorry, and asked her to get back in the car. As Watts was walking back to the car, Radenberg began to run away again. She ran to some police officers and one of them attempted to chase Watts, but was not able to catch him as he fled the scene. Radenberg went to a nearby ambulance and yelled at the paramedic inside the ambulance for help.
The day after the incident, Watts started calling Radenberg. He asked her what he was going to be charged with and told her that he was going to kill himself because he did not want to go to jail.
The State charged Watts with aggravated kidnapping. A jury trial was held and the jury found Watts guilty of aggravated kidnapping. On April 14, 2010, the trial court sentenced Watts to a mitigated sentence of 554 months in prison. Watts raises several points of error on appeal.
Prosecutorial Misconduct
At Watts' preliminary hearing, Officer Kerry Hawes testified that during her interview with Radenberg, Radenberg told Hawes that Watts had dragged her out of the apartment by her hair toward the vehicle. This fact scenario was also included in the officer's report given to the prosecutor. At the jury trial, however, during her testimony, Hawes indicated that she needed to correct her report. She testified that she had listened to the audio recording of the interview and discovered that Radenberg did not say that Watts had dragged her out of the apartment by her hair, but that Radenberg had voluntarily agreed to leave with Watts.
Watts contends that the revelation of this new information deprived him a fair trial because his theory of defense and the execution of that theory may have been different if he had known about the correct information before trial started.
After the jury trial, the trial court denied Watts' motion for new trial due to prosecutorial misconduct. In its ruling, the trial court held: (1) the evidence could have been delivered in a timelier manner, but that it was not withheld by the State, particularly from the jury; (2) the evidence was clearly exculpatory; and (3) the State did not act in bad faith.
We review the trial court's decision on a motion for new trial for an abuse of discretion. State v. Mathis, 281 Kan. 99, 103–04, 130 P.3d 14 (2006). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This abuse means no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
As recognized by the courts, a prosecutor has an affirmative duty, without requiring a court order, to disclose exculpatory evidence to a defendant. State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986). “Prosecutorial misconduct occurs when the county attorney fails to disclose to both the trial judge and the defense counsel that he intends to introduce into evidence a report which he failed to inform the defense counsel had been corrected.” State v. Lewis, 238 Kan. 94, 99, 708 P.2d 196 (1985).
A defendant's constitutional rights are implicated when the State partakes in the misconduct of withholding exculpatory evidence, regardless of the State's good or bad faith. Wilkins v. State, 286 Kan. 971, 989, 190 P.3d 957 (2008) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 [1963] ). There are three elements the appellate courts address when reviewing a Brady prosecutorial misconduct claim: (1) The evidence at issue is favorable to the defendant, either because it is exculpatory or because it is impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) the defendant was prejudiced by the suppression of the evidence. 286 Kan. at 989.
The evidence was favorable to Watts.
Under K.S.A. 21–3420(c), kidnapping is accomplished when a person is taken or confined through force, threat, or deception, with the intent to inflict bodily injury or terrorize that person. Aggravated kidnapping is when bodily harm is brought upon the victim during the kidnapping. K.S.A. 21–3421, Exculpatory evidence does not need to be so strong so as to exonerate the defendant, but need only be strong enough to assist in his or her defense. State v. Gammill, 2 Kan.App.2d 627, 633, 585 P.2d 1074 (1978). The fact that Radenberg voluntarily left her apartment with Watts could undermine the possibility that she was taken by force from her apartment and harmed during the kidnapping. Therefore evidence that Radenberg did not claim she was dragged from the apartment by her hair was favorable to Watts.
The evidence was not suppressed by the State.
It is clear from the record that Watts was not aware that the officer would be correcting her report during her trial testimony. The officer's correction to her report was not provided until after voir dire, opening statements, and the testimony of three other State's witnesses. However, the audio recording upon which the officer based her report was provided to Watts and his attorney. In fact, his attorney listened to the audio recording before trial with the prosecutor. In the audio recording, there was never any mention from Radenberg that Watts dragged her by the hair out of her apartment and into the vehicle. In addition, there is no evidence in the record that there were any other discussions between Hawes and Radenberg concerning how she left the apartment that could have lead Watts to believe that Radenberg exaggerated her claim to Hawes during a conversation other than the one that was recorded. So Watts was aware prior to trial that the audio recording of the interview between Radenberg and Hawes did not comport with Hawes written report and preliminary hearing testimony. The State did not suppress the evidence. The evidence was available to Watts before trial through the audio recording.
Suppression of the evidence did not prejudice Watts.
Even if the State had suppressed the fact that the officer was going to correct her report and testify that Radenberg never stated that Watts dragged her out of her apartment by her hair, it was not prejudicial to Watts' theory of defense or his execution of that theory.
Watts claims his theory of defense had been to discredit Radenberg and show that she had exaggerated her story to the officer, initially telling the officer that Watts dragged her out of the apartment, when he had not. During the hearing on the motion for new trial, counsel claimed its theory was to show that Radenberg was overly dramatic and intoxicated.
In voir dire, defense counsel asked the potential jurors about whether they believed that everyone who talks to the police always tells the truth. In opening statements, defense counsel stated that when the victim jumped out of her car and flagged down the police, she embellished her story and reported that she was dragged out of the apartment by her hair. The defense argues that it was caught off guard by Hawes' correction and could no longer pursue the defense that Radenberg had exaggerated her claims even though it had already started down that path with the jury. But Hawes' correction did not impede Watts' defense strategy. There was undisputed testimony from Officer Jonathan Munyan, the Kansas City, Missouri, officer that she flagged down, that Radenberg told him that she was dragged from her apartment by the hair. In addition, defense counsel questioned Radenberg about exaggerating her claims of a dislocated jaw as the result of a prior incident with Watts. Defense counsel referred to both of these exaggerations in closing argument. The inability to argue that Radenberg also exaggerated her claims to Hawes did not prejudice the defense. In fact, the evidence allowed counsel to impeach Hawes' credibility by pointing out that she had lied under oath at the preliminary hearing. Moreover, the defense attempted to establish through Hawes and three other law enforcement witnesses that Hawes may have rushed to judgment and facilitated the district attorney's office pursuit of an unsupported aggravated kidnapping charge based on Hawes' inaccurate reporting.
Watts' sole argument that he may have changed the way in which he cross-examined Radenberg is mere speculation. Watts neglects to make any reference as to how or why his cross-examination of Radenberg would have changed if he had been aware that the officer was going to correct her report during her testimony except to say that he could have been more aggressive in cross-examining Radenberg and establishing reasonable doubt. Moreover, Radenberg was recalled later in the case as the State's last witness. Watts objected to her being recalled and did not cross-examine her or seek to reopen his prior cross-examination of her based on the new information.
Therefore, the trial court did not abuse its discretion when it denied Watts' motion for new trial based on a Brady prosecutorial misconduct violation.
Jury Instructions
Watts claims the court made two errors with regards to jury instructions in the case. He first contends that the court erred when it failed to give a requested instruction regarding general criminal intent. Second, he objects to the content of the instruction given to the jury regarding jurisdiction. We examine each claim of instructional error.
General criminal intent instruction
Watts contends that it was reversible error when the trial court refused to give the jury the general criminal intent instruction found in PIK Crim.3d 54.01–A. Watts asserts that because the evidence of Radenberg's kidnapping from her apartment was weak, then the omission of the instruction was key because the trial court did not specifically instruct, within the elements instruction, that Watts intended to take and/or confine Radenberg by force or threat.
“ ‘When the trial court refuses to give a requested instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction.’ “ State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009).
The district court gave an aggravated kidnapping instruction that conformed to PIK Crim.3d 56.25. See State v. Peck, 237 Kan. 756, 764, 703 P.2d 781 (1985) (approving the use of PIK Crim.2d 56.25). The additional instruction requested by Watts, PIK Crim.3d 54.01–A, provides:
“In order for the defendant to be guilty of the crime charged, the State must prove that (his)(her) conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent is to be determined or inferred from all of the evidence in the case.”
The Notes on Use for PIK Crim.3d 54.01–A state that the instruction “should be used only where the crime requires only a general criminal intent and the state of mind of the defendant is a substantial issue in the case.” There is a long line of cases that establish that the general criminal intent instruction is not recommended for general use, and that the instruction should not be given in a case where specific intent must be proven because the instruction blurs specific and general intent. See State v. Ellmaker, 289 Kan. 1132, 1141, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010).
Aggravated kidnapping is a specific intent crime. State v. Pennington, 281 Kan. 426, 442, 132 P.3d 902 (2006). Accordingly, the general intent instruction is not recommended.
In addition, under State v. Cheeks, 253 Kan. 93, 98–99, 853 P .2d 655 (1993), failure to give the general criminal intent instruction at the defendant's request will not be considered an error where the substance of the requested instruction is present in other instructions given by the trial court.
In instruction No. 12, the trial court gave the definition for “intentionally” as “conduct that is purposeful and willful and not accidental. Intentional includes the terms ‘knowing,’ ‘willful,’ ‘purposeful’ and ‘on purpose.’ “
In addition, the trial court gave the following instruction in instruction No. 11:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
On the whole, with the inclusion of instruction Nos. 11, 12, and 13, the substance of the general criminal intent instruction was present within the jury instructions as a whole, therefore the district court did not err in failing to give PIK Crim.3d 54.01–A.
Jurisdiction instruction
The State's case was based upon its theory that Watts' actions were part of a continuing course of conduct making up the crime of aggravated kidnapping that started in Kansas and ended in Missouri. It requested, and the jury was given, the following instruction No. 10:
“If you find that the defendant committed criminal acts in this state which were a substantial and integral part of an overall continuing crime plan, and which were in partial execution of that plan, the prosecution may be in this state or any other state in which such acts occur.”
The instruction is not included in the PIK, but was suggested by the State based on State v. Grissom, 251 Kan. 851, 889–90, 840 P .2d 1142 (1992). Watts objected to giving the jury this instruction. At trial, Watts' objection to the instruction was based on the fact that the evidence showed that the acts in Kansas and the acts in Missouri were two separate acts for which the jury instruction was not supported. In contrast, in his appellate brief, Watts contends that the trial court erred when it neglected to use the word “clearly” in the language of the jury instruction.
Because Watt's claim of instructional error on appeal is different than the claim he made at trial, we review the instruction provided to determine if it was clearly erroneous. See State v. Nelson, 291 Kan. 475, 483, 243 P.3d 343 (2010). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
In the Grissom case, upon which Watts relies, Grissom was charged with kidnapping three women from their apartments in Johnson County, Kansas, and later murdering each of them. No bodies were ever recovered and the evidence presented was wholly circumstantial. Although taken from Kansas, the women were last seen alive in Missouri. Grissom argued that the State had not established jurisdiction in Kansas for the murder charges. In denying Grissom's claim, the Supreme Court first examined the Kansas territorial jurisdiction statute, K.S.A. 21–3104, which provides that “[a]n offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state.” 251 Kan. at 886. It then proceeded to interpret the statute broadly and found that jurisdiction was established in Kansas because there was evidence from which a jury could have found that “Grissom committed criminal acts in Kansas which were a substantial and integral part of an overall continuing crime plan and which were in partial execution of the plan.” 251 Kan. at 889.
However, within the syllabus of the opinion, our Supreme Court added the word “clearly” to its analysis:
“The State of Kansas has jurisdiction in a criminal case in which any element or the result of the crime occurs in Kansas or the defendant commits criminal acts in Kansas that are a substantial and integral part of an overall continuing crime plan and that are clearly in partial execution of the plan.” (Emphasis added.) 251 Kan. at 851, Syl. ¶ 5.
Even though Grissom did not involve a jury instruction at all, Watts argues that because the word “clearly” was left out of the instruction by the trial court, then the evidentiary standard was lowered for the jury's review when it applied the facts of the case to the law provided by the trial court. We find no merit to Watt's argument because based on the evidence presented to the jury it cannot be said that the jury would have rendered a different verdict if the word “clearly” had been included in the instruction. There was evidence to support the factual conclusion that Radenberg was either forced or threatened to leave her apartment with Watts. At the time that Radenberg agreed to go with Watts, it can hardly be said she did so voluntarily. Watts had a hold of Radenberg's hair when he demanded that she go with him, at which point she agreed. Radenberg did not want to leave with Watts, but she felt that she did not have any other choice because she was afraid of what Watts would do to her if she did not leave with him. Thus, even if omission of the word “clearly” was error, it cannot be said that the jury would have rendered a different verdict if the alleged trial error had not occurred.
Misstatement of the Law in Closing Argument
Related to his objection to the jurisdiction instruction, Watts also asserts that the explanation provided by the State to the jury regarding the jurisdiction instruction was a misstatement of the law and misled the jury.
A misstatement of controlling law must be reviewed on appeal, regardless of a timely objection at trial, to protect a defendant's right to due process. When a misstatement of controlling law is made deliberately, it is outside the considerable latitude given to prosecutors. State v. Gunby, 282 Kan. 39, 63–64, 144 P.3d 647 (2006).
Watts takes issue with the following argument made by the State during its closing argument:
“We have jurisdiction over this case because it started here in Johnson County. This is one continuing course of events. This is one act that happened. It started in the car on the way home from the bar when he started yelling at her and calling her a whore and a liar. It continued in her apartment after the pepper spray when he wouldn't give her time to rinse out her eyes, and he jerked on her hair to get her to come with him. That's force. He used force on her to compel her to come with him.... He didn't have to have his hands on her, because of everything that had happened before, she knew if she resisted, physical violence was imminent. This started here. They get on to the highway, and she testifies that while they're on the road ... her phone rings, and it's another man. It actually was another man that time. He starts punching her. He grabs her hair, and he slams her head against the dashboard. He punches her some more....
“... You could find that any of those violent acts in the car, if you don't find that she was forcibly kidnapped out of her apartment, you could find any of those acts in the car, in an attempt to confine her, he did it by force in the car, and it happened in Kansas as well. They drove for sometime after that, and they got off on Wornall Road.... [S]he finally got out. He wanted to keep her and confine her in that vehicle, that he pulled all that hair out of her head.... All of it started in Johnson County. It doesn't matter where it ended up.”
We find that the State's argument is not a misstatement of the law, but merely an application of the facts to the law. The State was arguing that the aggravated kidnapping occurred either when Watts and Radenberg left her apartment, or in the vehicle before they crossed the state line. In essence, what the State is arguing is that the full crime was committed in Kansas before Watts and Radenberg reached Missouri. The fact the crime ended in Missouri made little difference in the State's analysis. What the State asserted was not a misstatement of the law, but was actually correct in that if the jury found that the aggravated kidnapping occurred at Radenberg's apartment or before the vehicle crossed the state line, then Kansas had jurisdiction to prosecute Watts. It does not appear that the State relied on the trial court's jurisdiction instruction because the State believed the crime was fully completed in Kansas and merely continued on into Missouri.
Admission of K.S.A.2010 Supp. 60–455 Evidence Regarding Watts' Past Violence Towards Radenberg
The fact that a person committed a crime or prior bad acts on a specified occasion is inadmissible to prove such person's disposition to commit crime. See K.S.A. 60–455(a). In other words, the fact that a defendant may have physically beaten someone 2 years ago cannot be used as the basis to infer that the defendant beat up the victim in the case before the court. The reason for such a rule is clear. If the jury is allowed to consider prior crimes by the defendant, it might conclude that because the defendant has committed a similar crime or bad act before, he or she committed the crime before the jury. Or the jury may conclude that the defendant deserves punishment because he or she is a general wrongdoer. Or finally, the jury might conclude that because the defendant is a criminal, evidence presented on his or her behalf should not be believed. Gunby, 282 Kan. at 48–9. However, “such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60–455(b). The list of material facts in the statute is exemplary rather than exclusive. Gunby, 282 Kan. at 56. And even when the evidence is relevant to prove some other material fact, the court must also determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. State v. Hollingsworth, 289 Kan. 1250, 1259, 221 P.3d 1122 (2009). Finally, to protect against the chance that a jury may instead consider the evidence to prove the defendant's propensity to commit the crime before it, the judge is required to give a limiting instruction outlining the purpose for which the jury can consider the prior bad acts evidence. Gunby, 282 Kan. at 48.
In this case, the State filed a motion under K.S.A.2010 Supp. 60–455 to admit evidence regarding Watts' and Radenberg's discordant relationship. In the motion, the State set forth four instances in which Watts was physically violent towards Radenberg, three of which the court ultimately allowed. The first instance was when Radenberg did not want to go with Watts to Blue Springs, Missouri. Watts shoved Radenberg against a wall, picked her up by the neck, and strangled her. The second incident occurred in Las Vegas, Nevada. While on a trip there, Watts became upset because he thought Radenberg was looking at another man. Upon returning to their hotel room, Watts punched Radenberg in the jaw, grabbed her by the hair, and dragged her onto the floor. After their friends returned to the room as well, Radenberg rejected Watts attempt to “snuggle” and Watts strangled her again. In the final instance, Watts was convicted of aggravated battery where Radenberg was the victim. In this incident, Watts arrived at Radenberg's apartment while another man was there. Watts began to fight with the other man and then turned around and punched Radenberg in the face. She fell to the ground and lost consciousness. The trial court held that these three incidents were relevant to show the prior discordant relationship between Watts and Radenberg; to show the existence of a continuing course of conduct between them so as to corroborate Radenberg's testimony (to show why she put 9–1–1 in her phone and got out her pepper spray, actions that may seem unusual absent knowledge of Watts' prior aggression toward her); and to show Watts' intent in the present case. The trial court also determined that the probative value of the evidence outweighed the prejudicial effect. The court gave the following limiting instruction:
“Evidence has been admitted tending to prove that the defendant committed crimes other than the present crime charged. The evidence may be considered solely for the purposes of proving the defendant's intent, establishing the discordant relationship between the defendant and Melanee Radenberg and to corroborate the testimony of Melanee Radenberg. You may not consider the evidence of prior crimes as evidence that the defendant has any propensity for criminal behavior.”
Watts contends that trial court erred when it allowed the admission of evidence regarding Watts' past physical violence towards Radenberg for three reasons. First, he alleges that the evidence was only probative to show Watts' propensity, a prohibited purpose. Second, even if it was relevant, the prejudicial effect of allowing evidence of Watts' prior bad acts toward Radenberg outweighed its probative value. And finally, the stated reason in the limiting instruction, “to corroborate” Radenberg's testimony, was both impermissible and unnecessary. We examine each claim of error.
The prior bad acts evidence was admissible under K.S.A.2010 Supp. 60–455.
The first step in our K.S.A.2010 Supp. 60–455 analysis is whether the evidence was relevant to prove a material fact. State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009). Next, we determine whether the material act is in dispute and whether the evidence is relevant to prove the disputed material fact. We use an abuse of discretion standard in this portion of our review. An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This abuse means no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011).
In this case, the trial court determined that the evidence was admissible to prove the discordant relationship between Watts and Radenberg, to corroborate Radenberg's testimony regarding her actions that night, and to prove Watts' intent.
Although not a listed factor under K.S.A.2010 Supp. 60–455(b), our Supreme Court has recognized that prior bad acts evidence can be used to prove a continuing course of conduct between a defendant and a victim. See Gunby, 282 Kan. at 56 (citing State v. McHenry, 276 Kan. 513, 520, 78 P.3d 403 [2003] ). The material fact of Watts' and Radenberg's discordant relationship was in dispute because Watts attempted to show that Radenberg loved him, they had a good relationship, she became intoxicated and exaggerated the severity of the events of the evening, and she went with him voluntarily. The evidence was relevant to prove Watts' and Radenberg's discordant relationship. The facts surrounding all three violent incidents show that Watts and Radenberg were in a relationship before the incident in this case and the relationship involved several arguments that resulted in Watts' physical aggression towards Radenberg. It also goes to show whether Radenberg felt threatened and whether she was forced to go with Watts or whether she went voluntarily.
Again, although not a listed factor under K.S.A.2010 Supp. 60–455(b), our Supreme Court has also recognized that prior bad acts evidence can be used to corroborate a witness' testimony. See Gunby, 282 Kan. at 56 (citing State v. Lee, 263 Kan. 97, 104, 948 P.2d 641 [1997] ). This factor was also in dispute because Watts based his defense on the fact that Radenberg was not fearful of him, she loved him, and she went with him voluntarily. The evidence was also relevant to corroborate Radenberg's actions on the night of the incident which led to this case. Radenberg testified that she dialed 9–1–1 into her phone during the drive from the bar to her apartment in case Watts started to hit her. In addition, Radenberg testified that when Watts was in her bedroom she remained near the kitchen and took pepper spray out of her purse in case Watts came at her. Without the admission of the three prior incidents of Watts' physical aggression towards Radenberg, the jury would be at a loss as to why Radenberg would go so far as to put 9–1–1 into her phone and take our her pepper spray in preparation while Watts was in another room.
“Intent” is a listed material fact under K.S.A.2010 Supp. 60–455(b). The trial court also found that the prior bad acts evidence goes to show Watts' intent. Because kidnapping, under K.S.A. 21–3420(c), requires the intent to hold a person in order to inflict bodily injury or to terrorize the victim, the three prior incidents are relevant to show Watts' intent to hold Radenberg in order to inflict bodily injury or to terrorize her. This factor was in dispute because Watts based his defense on the position that Radenberg went with him voluntarily and he did not have the intent to kidnap her or to injure or terrorize her.
We find that the prior crime evidence was relevant to prove each material fact alleged and the court did not abuse its discretion in finding that the evidence supported each disputed material fact.
The district court did not abuse its discretion in finding that the probative value of the evidence did not outweigh its prejudicial effect.
Next, the court must determine whether the probative value of the evidence outweighs the potential for creating undue prejudice. Appellate review of this determination is also for abuse of discretion. Based on our review of the evidence, as outlined above, we find that the district court did not abuse its discretion in finding that the probative value of the evidence did not outweigh its prejudicial effect.
Even if the limiting instruction was improper, it was harmless error.
Finally, if the court decides to admit the evidence, the court must give a limiting instruction notifying the jury of the specific purpose for the admission of the K.S.A.2010 Supp. 60–455 evidence. Riojas, 288 Kan. at 383.
Watts contends that the stated reason in the limiting instruction, to corroborate Radenberg's testimony, was both impermissible and unnecessary. It was impermissible because it did not clearly and specifically address the reason for its admission, to explain Radenberg's conduct—not to corroborate her testimony. And it was unnecessary because the court already indicated that the evidence was being offered to show a discordant relationship between the parties, which clearly would have put Radenberg's conduct in context.
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The trial court did not err in its limiting instruction to the jury. It has already been determined that it was proper for the trial court to allow the prior bad acts evidence to prove the discordant relationship, to corroborate Radenberg's testimony, and to show Watts' intent. The trial court indicated that the jury could only use the evidence for these three specific reasons and that it could not consider the evidence as an indication that Watts had any propensity for criminal behavior. The limiting instruction properly stated the law as applied to facts of the case.
But even if the instruction failed to clearly state that Watts' prior actions were offered to explain Radenberg's actions of dialing 9–1–1 and using pepper spray, the evidence remained admissible to show intent and discordant relationship. We find that the jury's verdict would not have been different had the district court more specifically advised the jury concerning this one material fact, when two other reasons remained for which it could consider the evidence.
Sufficiency of the Evidence
Watts contends that there was insufficient evidence to prove Watts committed aggravated kidnapping.
“The standard of review for a challenge to the sufficiency of the evidence in a criminal case is whether, after review of all the evidence, examined in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. It is the function of the jury, not an appellate court, to weigh the evidence and to determine the credibility of witnesses.” State v.. Portillo, 294 Kan. ––––, Syl. ¶ 1, 274 P.3d 640 (2012).
Watts relies on Radenberg's testimony during her cross-examination that she agreed to leave her apartment with Watts and she did not believe he was going to hurt or terrorize her. She also testified that she did not believe Watts had kidnapped her. However, Watts completely ignores the testimony Radenberg gave while on direct examination.
According to Radenberg's testimony on direct examination, when they arrived at her apartment, Watts went back to the bedroom. While he was in her bedroom, Radenberg took her pepper spray out of her purse. Watts came out of the bathroom, saw that Radenberg had the pepper spray in her hands, and began yelling at her. He came towards her as if he was going to hurt her and she started spraying the pepper spray, but she ended up getting it all over herself instead. Somehow, Radenberg ended up on the floor and Watts was standing over her. She asked Watts if she could wash her face off and she went to the kitchen sink to wash. As she was washing her face, Watts told her that they needed to leave because the police were on their way. She told Watts that the police were not on their way and told him that she would not leave. Watts told her that they needed to leave the apartment at least three times and each time Radenberg told him that she would not leave. Watts then grabbed Radenberg by her hair, pulling her away from the kitchen sink, at which point, Radenberg agreed to go with him. Radenberg did not want to leave with Watts, but she felt that she did not have any other choice because she was afraid of what Watts would do to her if she did not leave with him. Watts and Radenberg walked to her vehicle. Watts got in the driver's seat and Radenberg was in the passenger seat. She reiterated during cross-examination that although she was not scared for her life, she was scared of what might happen.
On redirect examination Radenberg described that she can recognize a physical change in Watts' face and eyes when he gets angry. When he came toward her in the apartment, she noticed the same physical change in his face and eyes that she associated with his outbursts of anger in the past. She became afraid that he was going to beat her up again. She repeated that she did not want to go with him that night, but did not feel she had a choice. Although Watts left with Radenberg in her car, his car was at Radenberg's apartment and there was no reason he could not have taken his own car and left without Radenberg. Instead, he chose to take her with him. She testified that Watts tried to confine her to the car even though she was attempting to get out, he hurt her, and she was afraid.
Based on Radenberg's testimony on direct examination as well as the evidence of Watts' prior physical violence towards Radenberg, there was sufficient evidence that a rational factfinder could have found Watts guilty of aggravated kidnapping beyond a reasonable doubt. When he pulled her head up by her hair from the kitchen sink and demanded that they leave, Radenberg was afraid that if she did not do as he demanded then she would be physically hurt. Her choices were either (1) go with Watts or (2) suffer the consequences of defying him. In addition, based on their prior physical altercations, it would not be irrational or unreasonable for a jury to conclude that Watts intended to harm or terrorize her.
Failure to Inquire Whether Watts Knowingly and Intelligently Waived His Right to Testify
Watts asserts that the trial court erred when it failed to ask him whether he knowingly and intelligently waived his right to testify. Watts concedes that this issue has been raised for the first time on appeal, but this court should review the issue because it only involved a question of law, is finally determinative of the case, and review of the issue is necessary to prevent the denial of a fundamental right. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Because a defendant's right to testify on his own behalf is a fundamental right, we agree to review Watts' claim of error.
The decision whether a defendant will testify is to be made by the defendant after full consultation with counsel. See Flynn v. State, 281 Kan, 1154, 1163, 136 P.3d 909 (2006). Therefore, when a defendant asserts a challenge regarding his or her constitutional right to testify on appeal, the appellate courts review the matter de novo. See State v. Carter, 284 Kan. 312, 318–19, 160 P.3d 457 (2007).
Watts concedes that our Supreme Court in Taylor v. State, 252 Kan. 98, Syl. ¶ 5, 843 P.2d 682 (1992), has already determined that a trial court has no duty to sua sponte ask a defendant whether he or she knowingly and intelligently waived his or her right to testify, but Watts suggests that it would be better practice to do so.
In Taylor, our Supreme Court stated:
“A trial court has no duty sua sponte to address a silent defendant and inquire whether he or she knowingly and intelligently waives the right to testify. An express waiver, on the record, is not necessary because a defendant's conduct provides a sufficient basis from which to infer that the right to testify is waived. There is a danger that by asking a defendant if he or she is aware of his right to testify, a trial court may inadvertently influence a defendant to waive the equally fundamental right against self-incrimination.” 252 Kan. 98, Syl. ¶ 5.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Therefore, because our Supreme Court has already determined that a trial court does not have to sua sponte inquire whether a defendant and knowingly and intelligently waived his or her right to testify, then this court is duty bound to follow that position. Thus, the trial court did not err when it failed to make such an inquiry in Watts' case.
In addition, we cannot ignore the fact that although Watts complains that the district court failed to inquire whether he was freely and voluntarily waiving his right to testify, his attorney specifically declined the district court's invitation to so inquire. A defendant may not invite error and then complain of the error on appeal. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Cumulative Error
Watts argues that all of the above errors, while perhaps not reversible on their own, cumulatively call for the reversal of his case.
Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is ‘ “whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
Because there is no merit to any of Watts' claims of trial error, his contention that cumulative errors require the reversal of his conviction is also without merit.
Sentencing
Watts contends the trial court erred by considering his two prior convictions without requiring those convictions to be proven beyond a reasonable doubt to a jury. Watts claims this practice violates the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Watts concedes that our Supreme Court has rejected his argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), but he includes it to preserve the issue for federal review. Absent some indication that our Supreme Court is departing from its position in Ivory, and there is no such indication, this court is bound thereby. Jones, 44 Kan.App.2d at 142. Similarly, the United States Supreme Court recently reaffirmed that prior convictions need not be proven to a jury beyond a reasonable doubt. See James v. United States, 550 U.S. 192, 214 n. 8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Therefore, we reject Watts' claim that his sentence violated Apprendi.
Affirmed.