Opinion
No. 106,221.
2012-09-7
STATE of Kansas, Appellee, v. Michael S. WYCOFF, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A, Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A, Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Wycoff appeals his conviction of reckless aggravated battery. Wycoff claims the State failed to present sufficient evidence to prove that he acted recklessly. He also claims the State failed to present sufficient evidence to prove each alternative means of committing the crime. We reject each of Wycoffs claims and affirm the district court's judgment.
On the night of May 2, 2009, Corey Carter and a group of his friends went to Jezebel's strip club in Wichita, Kansas. After having two or three drinks, Carter went to the bar area with one of his friends. While at the bar, Carter heard “a loud pop” and turned around to find an unconscious man, later identified as Steven Drullinger, lying on the ground. An unknown assailant apparently had punched Drullinger in the face, causing him to fall to the ground and hit his head on the floor. The assailant was never identified and a bouncer escorted him out of the club.
According to Carter, he called for the bouncers to help Drullinger, but when a bouncer started to move Drullinger's head, Carter grew concerned based on his first-aid training. Carter told the bouncers that they should not move Drullinger's head. One of the bouncers responded, “Just get the fuck back,” and then, “That's it. Your ass is out of here.” Carter testified that one of the bouncers pushed him into the bar, and he somehow ended up on his back fighting three bouncers. Once Carter was on the ground, two of the bouncers held his arms while the third bouncer punched him in the eye and face “a couple times” and then kicked him in the ribs. Someone then grabbed Carter's foot and dragged him outside. Carter could not identify which one of the bouncers had actually punched and kicked him. Carter testified that he never threw a punch and never acted aggressively. At the hospital, Carter was diagnosed with four facial fractures, swelling, and a laceration around his eye.
Later that night, Wycoff told police a slightly different version of events. Wycoff, a bouncer at the club, told officers that while he was helping the unconscious Drullinger, Carter and his friend were harassing him from the bar. The two men were calling him “a fucking punk” and telling him that he did not know what he was doing. Wycoff asked Carter and his friend to leave, but they refused. When Carter and his friend refused to leave, Wycoff grabbed Carter and tried to shove him towards the door. At that point, Wycoff and Carter became entangled and tripped over the unconscious Drullinger, falling to the floor. Wycoff admitted that he struck Carter in the face with his right forearm and elbow because he thought that Carter was trying to punch him or push him off. Wycoff then got up, grabbed Carter by the feet, dragged him to the door, and got him outside. Wycoff never alleged that Carter actually hit or pushed him—the most Carter did was wrestle with Wycoff or rear back as if to punch Wycoff.
The State charged Wycoff with aggravated battery in violation of K.S.A. 21–3414(a)(2)(A) (recklessly causing great bodily harm or disfigurement). After a jury trial, Wycoff was convicted of the lesser-included offense of aggravated battery in violation of K.S.A. 21–3414(a)(2)(B) (recklessly causing bodily harm in any manner whereby great bodily harm, disfigurement, or death can be inflicted). Wycoff was sentenced to 21 months in prison. He timely appealed his conviction.
Wycoff first argues that the State failed to present sufficient evidence for the jury to find that he recklessly caused bodily harm to Carter. Instead, Wycoff argues that he intentionally punched Carter; thus, he could not be guilty of reckless aggravated battery.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed 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. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). The appellate court will generally not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
Wycoff was convicted of aggravated battery under K.S.A. 21–3414(a)(2)(B), defined as “recklessly causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21–3201 distinguishes intentional conduct from reckless conduct: “Intentional conduct is conduct that is purposeful and willful and not accidental,” while “[r]eckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” K.S.A. 21–3201(b) and (c).
Here, Carter's testimony, combined with Wycoff's statement to the police, established that the altercation between Carter and Wycoff began while Wycoff was trying to help Drullinger, who had been knocked unconscious. Carter and his friend interfered with Wycoff's attempt to assist Drullinger. When Carter and his friend refused to leave, Wycoff grabbed Carter and tried to shove him towards the door. At that point, Wycoff and Carter became entangled and tripped over the unconscious Drullinger, falling to the floor. Wycoff admitted that he struck Carter in the face with his right forearm and elbow while the two men were wrestling, but only because he thought that Carter was trying to punch him or push him off.
Based on the evidence presented at trial, a rational factfinder could have found that Wycoff recklessly caused bodily harm to Carter. Wycoff did not set out to intentionally punch Carter in the face. But while Wycoff was removing Carter from the club, the two men became entangled and tripped over the unconscious Drullinger, falling to the floor. In the process, Wycoff struck Carter in the face with his right forearm and elbow. Under these circumstances, a rational factfinder could have found that Wycoff's conduct was reckless and not intentional. Viewing the evidence in the light most favorable to the prosecution, we conclude there was sufficient evidence to support Wycoff's conviction of reckless aggravated battery.
Next, Wycoff asserts that recklessly causing bodily harm “in any manner whereby great bodily harm, disfigurement or death can be inflicted” presents three alternative means of committing aggravated battery. Wycoff does not argue that there was insufficient evidence of the first two types of possible harm—great bodily harm and disfigurement. However, Wycoff argues that the State did not present sufficient evidence of the third alternative means—that Wycoff's actions could have caused Carter's death.
As previously stated, when the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed 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. McCaslin, 291 Kan. at 710. Additionally, interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Aggravated battery under K.S.A. 21–3414(a)(2)(B) is defined as “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” At Wycoff's trial, the district court instructed the jury as follows:
“To establish this charge [of aggravated battery], each of the following claims must be proved:
“1. That the defendant recklessly caused bodily harm to another person, to wit: Cor[e]y Carter, in any manner whereby great bodily harm, disfigurement or death can be inflicted.
“2. That this act occurred on or about the 2nd day of May, 2009 in Sedgwick County, Kansas.”
The Kansas Legislature has not statutorily defined an alternative means crime, nor has it specified which crimes are alternative means crimes. This is left to judicial determination. This court has adopted the following definition:
“Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. Such statutes do not create alternative means.” State v. Schreiner, 46 Kan.App.2d 778, Syl. ¶ 1, 264 P.3d 1033 (2011)petition for rev. filed December 5, 2011.
The plain language of K.S.A. 21–3414(a)(2)(B) sets forth two alternative means of committing aggravated battery: (1) recklessly causing bodily harm with a deadly weapon or (2) recklessly causing bodily harm in any manner whereby great bodily harm, disfigurement, or death can be inflicted. Here, the district court did not instruct the jury on the first alternative means because it was not supported by the evidence. The second alternative means focuses on the potential that great bodily harm, disfigurement, or death can be inflicted—not on whether these injuries actually occurred. See State v. Curreri, 42 Kan.App.2d 460, 465, 213 P.3d 1084 (2009), rev. denied 290 Kan. 1097 (2010) (interpreting identical language in K.S.A. 21–3414[a][l][B] ).
Under K.S.A. 21–3414(a)(2)(B), the terms “great bodily harm, disfigurement or death” appear to qualify the degree and type of harm that could be inflicted by the defendant's actions rather than the manner by which the defendant acted. The three types of harm do not create distinct ways of committing aggravated battery. Here, the district court did not instruct the jury on alternative means of committing aggravated battery. Thus, Wycoffs argument that the State failed to present sufficient evidence of each alternative means is without merit. See State v. Stabler, No. 103,634, 2011 WL 3795247, at *6–7 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. –––– (May 21, 2012).
Affirmed.