State v. Ramirez, 091616 KSCA, 113, 985

Docket Nº:113, 985
Opinion Judge:Leben, J.
Party Name:State of Kansas, Appellee, v. Juan C. Ramirez, Appellant.
Attorney:Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Atcheson, P.J., Leben, J., and Hebert, S.J.
Case Date:September 16, 2016
Court:Court of Appeals of Kansas
 
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State of Kansas, Appellee,

v.

Juan C. Ramirez, Appellant.

No. 113, 985

Court of Appeals of Kansas

September 16, 2016

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Warren M. Wilbert, judge.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Leben, J., and Hebert, S.J.

MEMORANDUM OPINION

Leben, J.

Juan Ramirez pushed a man down to the ground outside a gas station and took the man's hat. Taking the evidence in the light most favorable to Ramirez, he did nothing more; two other men then hit and kicked the victim while he was on the ground. Ramirez is appealing his conviction for a serious form of aggravated battery- knowingly causing harm to another person in a manner that could inflict great bodily harm. He contends that the jury should have had the option to consider a lesser form of aggravated battery. Specifically, Ramirez argues that while he may have recklessly put the victim on the ground, where he might have been in danger of great bodily harm from the other two men, Ramirez didn't knowingly put the victim into that danger.

That argument brings into play a rule that's key to this appeal: When deciding whether to instruct a jury on a lesser offense-giving the jury the option to convict the defendant on that lesser crime-the district court must look at the evidence in the light most favorable to Ramirez. While Ramirez did knowingly put the victim on the ground, it's not clear that Ramirez knew the other two men would then beat the victim while he lay there. In that light, the court should have given the additional jury instruction. Because we cannot say here that there is no reasonable probability that the jury would have ruled differently with the additional instruction, we must set aside the aggravated-battery conviction and send the case back for a new trial on that charge.

Ramirez was also convicted of aggravated robbery, and he asks to set that conviction aside too-on the basis that the district court should have acted on Ramirez' complaints about his court-appointed attorney and given him a new one. But Ramirez had to show justifiable dissatisfaction in the form of some conflict of interests, an irreconcilable disagreement, or a complete breakdown in communication between him and his attorney. The district court properly investigated Ramirez' claims, and we find no abuse of discretion in its decision not to replace Ramirez' attorney before trial.

Factual and Procedural Background

The victim in our case, Cory Larsen, stopped at a gas station on his way to work. Unfortunately, as it turns out, he was wearing a red Chicago Bulls hat-and the color red is associated with some Wichita gangs. Larsen was not a gang member.

When Larsen walked out of the gas station, two men, including Ramirez, approached him. Ramirez and his friends were associated with a gang whose primary color was blue, though Ramirez said he wasn't an active member at the time.

Ramirez and another man approached Larsen. According to Larsen, Ramirez then asked Larsen for the hat. Larsen took off the hat but then turned to run into the gas station. Ramirez and the other man rushed Larsen, pushing him to the ground. At that point, a third man came over, and some or all of the men punched and kicked Larsen while he was on the ground. At some point, they took the Bulls hat and left Larsen on the ground.

Ramirez and the other men then left the gas station together; Larsen's girlfriend took down the license-plate number on their car as they left. An officer tracked it down at a residence a few miles away, where the police found Ramirez and three others-as well as Larsen's hat-in the basement.

Ramirez spoke to the police that day, and his statements are especially important since we must look at the evidence in the light most favorable to him on the jury-instruction issue. Ramirez didn't testify, so what we have are his statements as reported at trial by a police detective, Francois Do, who was called as a witness by the prosecution. Ramirez told Do that Ramirez and another man in his group, Jose, went up to Larsen at the gas station. Jose then asked Larsen, "Are you banging[?], " apparently asking if he was a gang member. At that point, Jose tried to grab for the hat and punched Larsen. Ramirez then pushed Larsen "basically down into the ground." Ramirez said that another person in his group then joined Jose and...

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