State v. Aue
| Docket Number | 122,111 |
| Decision Date | 28 January 2022 |
| Parties | State of Kansas, Appellee, v. Bradley D. Aue, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sumner District Court; William R. Mott, judge.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Kerwin L. Spencer, special prosecutor, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Warner and Hurst, JJ.
After a trial in which the State charged Aue with second-degree intentional murder and alternatively second-degree reckless murder, a jury convicted Aue of the requested lesser included offense of voluntary manslaughter for killing his girlfriend Sierra Craft. Aue now challenges his conviction in two ways. First, he claims the State lacked sufficient evidence to support his conviction for the very offense he requested, and second, he claims the district court erred by including jury instructions that his claimed defense of voluntary intoxication to the second-degree intentional murder charge was not also a defense to the alternative charge of lesser included offenses. Upon thorough review of the record, this court finds that the district court did not err in the challenged jury instructions and the jury had sufficient evidence upon which to convict Aue of voluntary manslaughter beyond a reasonable doubt. Aue's conviction is affirmed.
Emergency personnel, Chad Francisco and Matt Harsh, arrived at the home shared by Aue and Craft at about 7:49 p.m. on Thursday, May 24, 2018. Upon arrival, Francisco and Harsh found Aue on the front porch and Craft lying on the couch, cold to the touch nude, bloody, and nonresponsive. After attempting life-saving measures, Craft died at the scene.
According to Wellington Police Department Detective Bobby Wilson's testimony, Aue stated in an interview that he worked that day from approximately 7 a.m. to 3:30 p.m., and then he and Craft went to his cousin's house to borrow money. Craft and Aue then went to the grocery store with their young child from about 4:08 p.m. until 4:17 p.m. Wilson reviewed the grocery store video surveillance of that trip and testified that Aue was wearing a red shirt and jeans and Craft wore capri leggings and a blue or purple shirt. Wilson did not observe any injuries on Aue or Craft in the video. Aue, Craft, and their minor child then returned home and Aue told Wilson that he and Craft drank about five to six shots of vodka each in about 20 minutes.
One of Aue's neighbors, Durell Harrington, testified that he arrived home between 6:15 and 6:30 p.m. that day and upon exiting his car he heard a female voice yelling from inside Aue's house. Harrington stood outside the door of his home listening and eventually understood the woman inside Aue's home had yelled "Why would you do this to me" or "Why did you do this to me" two to three times. He waited about a minute and heard no other yelling and then went inside his home. Aue and Craft had a history of disputes that sometimes involved the police. Aue's sister testified that Craft and Aue had an "unhealthy" relationship that involved a lot of alcohol and arguments. Sometimes his sister would pick up their child to remove him when Craft and Aue had been drinking.
Ariana Chromy, Aue's next door neighbor, testified that at around 7:20 p.m. on May 24, shortly after Harrington heard a woman yelling, she heard glass breaking from the direction of Aue's house. The noise caused Chromy to look out her window toward Aue's house, but she saw no one in the backyard or climbing through the window at Aue's house. Chromy returned to her activities, but she heard her dog barking at about 7:50 p.m., so she went outside and saw Aue "covered in blood" saying, " " Chromy asked if he was ok and Aue responded "I am, but she's not," and asked Chromy to call 911, which she did. Chromy's house had video surveillance with audio of Aue at her home.
Chromy and Aue then went to Aue's residence, where Chromy saw Craft laying on the couch. Aue explained "'[s]he moved because she was on the floor.'" Aue went to the kitchen as Chromy tried to locate Craft's pulse on her neck and wrist. Chromy told the 911 operator she could not find a pulse and Craft was not breathing. At that time emergency medical personnel arrived at the home and began assessing Craft.
Before emergency personnel arrived, Chromy saw Craft lying naked on the couch with "two huge great big black eyes." Vic Sandell, the assistant chief of the Wellington Fire Department, along with Francisco and Harsh, were all dispatched to the Aue residence for a medical emergency. Harsh entered the house first and moved Craft from the couch to the floor. He stated Craft was cold to the touch and did not appear to have a pulse. Francisco tried to inject lifesaving medications, but Craft was unconscious and in critical condition. Francisco testified that Captain Jerry Preston did manual chest compressions, after which Francisco used a machine to attempt to start Craft's heart.
Craft had a wound on her arm that was so deep the fatty tissue and tendon were exposed. The wound was not bleeding when emergency personnel arrived, but she started bleeding again after they performed chest compressions. Emergency personnel noted that upon arrival, Craft's right eye appeared black and swollen and that her left eye became bruised and swollen as time passed. Emergency personnel testified that their life-saving measures did not cause any facial bruising, but resuscitation attempts could cause existing bruising to intensify more quickly. After their lifesaving efforts proved unsuccessful, the medics ceased attempting to resuscitate Craft at 8:31 p.m.
Timothy Gorrill, a forensic pathologist, performed Craft's autopsy. Gorrill testified that Craft's cause of death was from sharp force injuries to the right upper arm where evidence showed she had deep lacerations that exposed a vein and cut an artery, in addition to other significant blunt force injuries. He testified, "The most important immediate cause of death, contributing cause of death" was "the severed vessels and hemorrhage . . . from the right arm." Craft also had a broken nose and severe bruising across her eyes and forehead. Aside from her facial injuries, Craft had bruising and scratches across her body and large chunks of hair pulled out of her head. She had bruising on her left calf, left hand, and a cut on her left knuckle. She also had scrapes all over her body. The autopsy referred to Craft's missing hair as "traumatic alopecia."
The autopsy included a blood alcohol concentration (BAC) analysis which determined Craft's BAC was .303 and .273 in two different samples-levels well above the legal limit for intoxication. Gorrill agreed that someone with BACs in Craft's range might not even know that they are injured. Based on Craft's injuries observed during the autopsy, Gorrill determined Craft's death was a homicide.
Aue arrived at Chromy's house asking her to call 911 wearing white shorts, no shirt, no shoes, and smoking a cigarette. Chromy testified that he appeared to be covered in blood, and she saw a mark on his neck that appeared to be a bite mark, and he had a bleeding knuckle on his hand.
While waiting outside Chromy's house and using her phone, Aue spoke to the 911 operator on a recorded call. When the 911 operator asked Aue what was going on, he replied Emergency personnel arrived, along with Officer Matt Nelson, where Officer Nelson observed Aue with what appeared to be blood on his shorts, chest, hands, legs, back, neck, and stomach. Nelson asked Aue what happened and Aue repeatedly stated, "It's not the same."
Officers realized a young child, who Aue identified as his, was inside the residence. Officers removed the child and requested that Aue stay with him outside. As Aue was leaving the house, he told officer Nelson that he and Craft had been drinking vodka and he thought Craft smoked marijuana. Aue also stated he had not left the residence that night. Eventually Nelson handcuffed Aue and placed him in the patrol car because he refused to follow instructions, cooperate with safety requests, and preserve evidence.
Nelson testified he could smell alcohol on Aue's breath and noticed what looked like a bite mark on his neck. Galen Tieszen, a registered medical technologist at Sumner Community Hospital, collected a blood sample from Aue around 1:40 a.m. on May 25, 2018. Forensic toxicologist Carrie Hodges determined that Aue's blood alcohol level at 1:40 a.m.-about five hours after the initial 911 call-was 0.10 grams per 100 milliliters of blood, which is over the legal limit to drive.
Emergency personnel testified that Aue's house had a considerable amount of blood in the hallway and the bedroom, including blood stains on a mattress and a broken window, as well as large clumps of hair on the floor. There was blood in the entryway leading to the living room, the hallway, the kitchen, the bathroom, and blood smears on walls with pooled blood in the living room area. The mattress in the bedroom with the broken window contained considerable blood as well. Emergency personnel described the house as a "violent scene."
Eric Moore, a forensic scientist with the Kansas Bureau of Investigation, analyzed the bloodstain patterns at Aue's residence. Moore determined that Craft's major injury to her right arm likely occurred at the...
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