State v. Royer, No. 120,675

Citation469 P.3d 1290 (Table)
Decision Date04 September 2020
Docket NumberNo. 120,675
CourtCourt of Appeals of Kansas
Parties STATE of Kansas, Appellee, v. David Jeffrey ROYER, Appellant.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Bruns and Powell, JJ.

MEMORANDUM OPINION

Per Curiam:

David Jeffrey Royer appeals his conviction of a single count of arson following a jury trial. On appeal, Royer contends that the evidence presented by the State at trial was insufficient to support his conviction. Royer also contends that the State committed prosecutorial error that denied his right to a fair trial. In addition, Royer contends that the district court's determination of his criminal history score violated section 5 of the Kansas Constitution Bill of Rights. Based on our review of the record in light of Kansas law, we do not find any reversible error. Thus, we affirm Royer's conviction.

FACTS

In early November 2017, Royer and Michael Hemmert lived near one another in Topeka. Both Royer and Hemmert rented houses owned by Wanda Lawson. Evidently, Royer became concerned about two women who were living in a vehicle behind Hemmert's house. Between November 5 and November 8, 2017, Royer began calling Lawson to express his concerns. However, the two were unable to connect so Royer left Lawson several voice messages on her phone. Frustrated by Lawson's failure to respond, Royer became increasingly upset, as reflected in the messages he left.

In the first message, Royer stated:

"Hey Wanda, this is David. I'm getting ready to go down and put these females out, out of 902. I'm getting ready to kick these females out of 902; if they'll answer the door. They've been messing with me all night long; and, um, this, this is no good down here. They're gonna have to go; and, uh, I'll call the police later if they don't. If I can't get them out now, I'm gonna call the police and I'm gonna have ‘em put out. You might wanna come by. I'll talk to you later. Bye."

In the second message, Royer said:

"Hey Wanda. Hey, what I was saying was I'm getting ready to put these females over at 902; I'm getting ready to put ‘em out, while it's still early November. And, um, if uh, they give me a problem, I'll just, uh, call the police and, uh, have the police help. And, if we still have a problem doing that, then I'm going to light their car on fire, the car they're sleeping in, the car they're sleeping in out back. I'm gonna light that car on fire so I just thought I'd let you know. We gotta get ‘em outta here, we gotta get ‘em outta here. I'm gonna, I'm gonna try to get ‘em out. And, if they don't leave, if they don't leave and there's a problem when the police come, after the police leave, I'm just gonna burn ‘em out. I'll see you later. Bye." (Emphasis added.)

The following day, Royer left another message:

"Hi Wanda, this is David. Did you get my message yesterday? Um, those girls next door, they're gonna have to go. They're living in a car, they're sleeping in a car out back. Uh, they messin' with me all night long every night, um, they ... I'm ... I need, I need your permission to kick ‘em out. Um, I need you to come by too or call me ...."

On November 8, 2017, Royer left a fourth message:

"Hey Wanda, this is David. Are you coming by today? We gotta go down to 902. We, we have to talk to that guy. You have got to get him outta there! You have got to get him out of 902! I'm not gonna live like this, I'm not gonna listen to those people anymore Wanda!"

Later that day, Royer and Lawson where able to speak with one another on the phone. According to Lawson, Royer reiterated the concerns he had previously expressed in the voice messages that he had left. Lawson subsequently testified at trial that Royer told her that he was going to make some "needed" changes by burning the house down.

After talking to Lawson, Royer confronted Hemmert and two of his friends while they were working on a car in front of Hemmert's house. Although the facts regarding the confrontation are disputed, Royer testified at trial that he left at some point to call the police to report a weapon allegedly brandished by one of Hemmert's friends. According to Royer, after waiting for the police for a few minutes, he decided to return to Hemmert's house where the confrontation continued. The parties to the confrontation agree that a fight ensued. Hemmert and one of his friends testified at trial that when Royer left, he threw rocks at the car and yelled, "I'm gonna go get a gas can and scorch [or torch] this mother ...."

Shortly thereafter, Hemmert and his friends left Hemmert's house to go work on Lawson's car at her house. One of Hermmert's friends testified at trial that as he was leaving, he saw Royer walking towards Hemmert's house with a red gas can. According to Royer's version of the events, he did not go back to Hemmert's house but, instead, went to a nearby grocery store to buy a snack before returning to his own house to wait for the police.

When Officer Aaron Bulmer arrived at Royer's house, Royer declined to talk about the confrontation. Because no one was home at Hemmert's house, Officer Bulmer decided to leave and write his report at a nearby park. A few minutes later, Office Bulmer noticed smoke coming from Hemmert's house and saw a fire report on his computer.

After the fire at Hemmert's house was extinguished, a Topeka Fire Department Investigator searched the premises with "Webster," an accelerant detection K-9 unit. The dog alerted to ignitable liquids in five locations around the house, including by the front door. Later, another fire investigator collected samples from the identified locations. It was later confirmed that the samples were gasoline and it was determined that the origin of the fire was just to the right of the front door. It was also determined that the cause of the fire was incendiary and not accidental.

One of the fire investigators spoke with Lawson on the day of the fire and she shared the messages that Royer had left on her phone. Two days later, the fire investigator questioned Royer and recorded their conversation. During that interview, Royer told the investigator about the confrontation at Hemmert's house and claimed that he went to a grocery store while waiting for the police to arrive. When asked directly, Royer denied going to a gas station.

During the recorded interview with the fire inspector, the following discussion occurred:

"Investigator Hanika: Did you go to the grocery store or the [Kwik] Shop?
"Royer: Nah, I went to, uh, the, Mike's IGA.
"Investigator Hanika: OK. Did you go to [Kwik] Shop too?
"Royer: Ummm ... [three-second pause]
"Investigator Hanika: I need you to be honest with me.
"Royer: Did I go to [Kwik] Shop? No. I went to Mike's IGA."

When the fire investigator asked Royer where he was when the fire started, he said that he had went to a park to take a walk. Royer further indicated that he heard sirens and saw smoke coming from near his house. Specifically, Royer told the fire investigator that when he saw the smoke and heard the sirens, he decided not to go home because he thought, "they're gonna blame me for that." On February 16, 2018, after the fire investigation had been completed, the State charged Royer with one count of arson.

The district court commenced a two-day jury trial on October 9, 2018. During the trial, the State presented the testimony of Officer Bulmer, the two fire investigators, the forensic scientist who tested the samples taken from the scene of the fire, Lawson, Hemmert, and one of Hemmert's friends. In addition, 23 exhibits offered by the State were admitted into evidence. These exhibits included: Royer's messages to Lawson, the fire investigator's recorded interview with Royer, the lab report showing the presence of gasoline, and several photos of the fire damage. After the State rested, Royer exercised his right not to testify and did not call any other witnesses or offer any exhibits into evidence.

After being instructed on the law by the district court and deliberating, the jury found Royer guilty of arson. On December 7, 2018, the district court found Royer's criminal history score to be A and sentenced him to 40 months in prison. Thereafter, Royer filed a timely notice of appeal.

ANALYSIS
Issues Presented

On appeal, Royer raises three issues. First, whether the evidence presented by the State was sufficient to support his arson conviction. Second, whether the State committed prosecutorial error during voir dire and during closing arguments. Third, whether the district court's determination of his prior criminal history violated section 5 of the Kansas Constitution Bill of Rights. For the reasons set forth below, we do not find any reversable error in this case.

Sufficiency of the Evidence

Royer argues that the evidence presented by the State at trial was not sufficient for the jury to find him guilty of arson beyond a reasonable doubt. When the sufficiency of the evidence is challenged, we must review the evidence in the light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Rosa , 304 Kan. 429, 432-33, 371 P.3d 915 (2016). In doing so, we are not to reweigh the evidence, resolve evidentiary conflicts, or assess the credibility of witnesses. State v. Daws , 303 Kan. 785, 789, 368 P.3d 1074 (2016).

Here, the record shows that the district court appropriately instructed the jury that in order to establish that Royer committed the offense of arson in violation of K.S.A. 2019 Supp. 21-5812(a)(1), the State was required to prove the following elements beyond a reasonable doubt:

"1. The defendant knowingly, by means of fire, damaged property in which Wanda Lawson and/or Michael Hemmert had an interest, without the consent of Wanda Lawson and/or Michael Hemmert.
"2. The property was a dwelling.
"3. This act occurred on or
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