Opinion
No. 109,818.
2014-09-26
STATE of Kansas, Appellee, v. James Coleman WILLIAMS, Appellant.
Appeal from Saline District Court; Patrick H. Thompson, Judge.Lydia Krebs, of Kansas Appellate Defender Office, for appellant.Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Patrick H. Thompson, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Coleman Williams appeals his conviction for criminal threat, arguing that the State committed prosecutorial misconduct during closing argument by misstating the law. He argues that the State improperly relied on the emotions experienced by Williams' victim and statements made by Williams to his victim about what he “could have” done. Because we find that the prosecutor's statements did not misstate the law and did not go outside the wide latitude afforded to prosecutors when discussing the evidence during closing argument, we affirm Williams' conviction.
Factual and Procedural History
Sara Nettleingham and Williams had a romantic relationship that was ended by Nettleingham. After work one day, Nettleingham, her children, and her children's two friends arrived at Nettleingham's home. Nettleingham went to her bedroom to change and found Williams standing behind her bedroom door with a gun. Williams pointed the gun at Nettleingham and at himself. Nettleingham became very afraid for her safety.
Williams stayed for the remainder of the evening, preventing Nettleingham from calling for help and making Nettleingham pretend that everything was normal. At one point during the evening, Williams told Nettleingham, “ ‘I could be holding this gun to your head and making you suck my dick, but I'm not.’ “ He also told her, “ ‘I could have pistol whipped you before you even knew I was there in your bedroom, but I didn't.’ “
After the children were put to bed, Nettleingham and Williams started to talk, and he asked her to give him another chance. During their conversation, Williams pulled out the gun, cocked it, and placed it in his mouth. Finally, Nettleingham convinced Williams to leave by telling him that she would meet with him when he sold the gun at a pawn shop and delivered the receipt to her to prove that he had sold the gun.
Williams was charged with aggravated assault, aggravated burglary, kidnapping, criminal threat, and criminal damage to property.
During the prosecutor's closing arguments at Williams' jury trial, when discussing the count of criminal threat, the prosecutor discussed Nettleingham's state of mind during the incident. In addition, the prosecutor mentioned the following statements made by Williams during the incident when applying the facts of the case to the elements of criminal threat: (1) “ ‘I could have pistol whipped you when I stepped out from behind the door, but I didn't’ “ and (2) “ ‘I could have forced you to suck my dick, but I didn't.’ “
The jury found Williams guilty of criminal threat and criminal damage to property. He was sentenced to 18 months of probation with an underlying 7–month prison term on the criminal threat count, to be served consecutively to a 6–month county jail term on the criminal damage to property count.
Williams filed a timely notice of appeal.
Analysis
Williams contends that the State committed prosecutorial misconduct, which resulted in the denial of his right to a fair trial, when the prosecutor focused on Nettleingham's emotions and the two statements Williams made at the time of the incident.
There was no objection at the time the prosecutor made the statements in question. However, a claim of prosecutorial misconduct based on comments made during closing argument will be reviewed on appeal even when a contemporaneous objection was not made at the trial level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Standard of review
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate 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. Huddleston, 298 Kan. 941, 946, 318 P.3d 140 (2014).
Williams asserts that the prosecutor's comments constituted a misstatement of the controlling law. 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 allowed prosecutors during their arguments. State v. Gunby, 282 Kan. 39, 63–64, 144 P.3d 647 (2006).
The Elements of the Crime
Only the conviction for criminal threat is at issue here. The elements of criminal threat were presented to the jury as follows:
“1. That the defendant threatened to commit violence;
“2. That such threat was communicated with the intent to terrorize [Nettleingham] or in reckless disregard of the risk of causing terror to [Nettleingham]; and
“3. That this act occurred on or about the 10th day of September, 2010, in Saline County, Kansas.”
In addition, the jury was given the definitions for “threat,” “terror,” and “terrorize”:
“ ‘Threat’ means a communicated intent to inflict physical or other harm on any person or on property.
“ ‘Terror’ means an extreme fear or fear that agitates body and mind.
“ ‘Terrorize’ means to reduce to terror by violence and threats .”
The Prosecutor's Discussion of Nettleingham's Emotions
During closing argument, while discussing the elements of criminal threat and the application of the facts of the case to the elements, the prosecutor stated the following:
“Miss Nettleingham told you that she was terrorized when he pointed that gun at her and told her, ‘Don't call the cops or I'll start shooting.’ She told you her heart sped up, she felt faint. That is a physical reaction, a physical response to her mental state of terror. And again, ‘to terrorize’ means to put somebody in terror.”
Williams contends that these statements were a mischaracterization of the law and fell outside the wide latitude afforded to prosecutors during closing argument. It is true, as Williams points out, that the victim's state of mind is not an element of criminal intent and the State need not prove that the victim actually felt threatened. See State v. Hernandez, 44 Kan.App.2d 524, 534, 239 P.3d 103 (2010), rev. denied 294 Kan. 945 (2012). However, there is nothing in Hernandez to suggest that comments such as those made by the prosecutor in Williams' case fell outside the wide latitude afforded to prosecutors during closing argument. The Supreme Court stressed the importance of examining all the evidence in determining the defendant's intent. 44 Kan.App.2d at 533.
Moreover, as the State suggests, intent can be by shown by circumstantial evidence. See State v. Kettler, 299 Kan. 448, 467, 325 P.3d 1075 (2014). The jury instructions given to the jurors indicated that “[i]ntent or lack of intent is to be determined or inferred from all of the evidence in the case” and “a person intends all of the usual consequences of his voluntary acts.” “All of the evidence in the case” and “the usual consequences of his voluntary acts” includes Nettleingham's testimony that she did feel terrorized. The fact that Nettleingham did feel terrorized should be considered an inference that Williams intended to terrorize her. Thus, the prosecutor's reference to this evidence did not misstate the law and did not go outside the wide latitude afforded to a prosecutor during closing argument when discussing intent.
Williams' Statements to Nettleingham
Williams next contends that the prosecutor misstated the law when she indicated that two of Williams' statements made to Nettleingham during the incident could support a conviction for criminal threat. Williams argues that K.S.A.2010 Supp. 21–3419(c) includes—as a threat—a “statement that one has committed” violence, but does not include statements made by the defendant that he or she “could have” committed such violence.
During Nettleingham's testimony, she stated that at one point during the evening, Williams told her, “ ‘I could be holding this gun to your head and making you suck my dick, but I'm not.’ “ He also told her, “ ‘I could have pistol whipped you before you even knew I was there in your bedroom, but I didn't.’ “ In closing argument, the prosecutor argued that these statements could constitute a threat.
Our Supreme Court has stated: “The general rule is that a threat otherwise coming within the purview of a statute need not, unless the statute expressly so requires, be in any particular form or in any particular words, and it may be made by innuendo or suggestion, and need not be made directly to the intended victim. [Citations omitted.]” State v. Knight, 219 Kan. 863, 866, 549 P.2d 1397 (1976); see also State v. Rivera, 42 Kan.App.2d 914, 918–20, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010) (defendant's statement, “ ‘You have a bomb in the plant. Get everyone out,’ “ was intended as a threat even though the statement was not a forecast of future violence or criminal action).
K.S.A.2010 Supp. 21–3419(c) states that the term “ ‘threat’ includes any statement that one has committed any action described by subsection (a).” Williams appears to ask this court to interpret this statute so that the statutory definition of threat excludes all possibilities other than an actual “threat to commit violence or a statement that one has already committed such violence .”
K.S.A.2010 Supp. 21–3419(c) does not specifically exclude all other variations in which a criminal threat can be made. This would be an extremely limited reading of the statute. The statute merely indicates that making a statement that one has committed a criminal threat can, itself, constitute a criminal threat.
Under Knight, Williams' statements clearly constitute an innuendo or a suggestion that he would physically or sexually harm her if she did not continue to obey his commands. Thus, the prosecutor did not go outside the wide latitude afforded to prosecutors when discussing the evidence during closing argument.
Because the prosecutor's closing argument does not constitute misconduct, the second step of the prosecutorial misconduct analysis need not be addressed.
Affirmed.