State v. Beltz

• Decision Date: 27 January 2017
• Docket Number: No. 111,785,111,785
• Citation: 388 P.3d 93
• Parties: State of Kansas, Appellee, v. Kyle R. Beltz, Appellant.
• Court: Kansas Supreme Court

388 P.3d 93

State of Kansas, Appellee,

v.Kyle R. Beltz, Appellant.

No. 111,785

Supreme Court of Kansas.

Opinion filed January 27, 2017

Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

A jury convicted Kyle Beltz of first-degree felony murder for the killing of Ronald Betts during an attempted distribution of marijuana.We affirm his convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Ronald Betts suffered multiple gunshot wounds during a botched drug deal, which resulted in his death.A jury convicted Betts' partner, Kyle Beltz, of felony murder for Betts' death during the attempted drug sale.Betts knew and was on good terms with both Beltz and Beltz' girlfriend, Kelly Touchton.Beltz and Touchton lived together, and Betts would occasionally use their home—which contained a marijuana grow operation—and the adjacent parking lot as a staging ground to sell marijuana.

On April 17, 2013, another acquaintance of Betts, Kyler Carriker, sent a text message to Beltz telling him that he wanted to purchase marijuana.Beltz put Carriker in touch with Betts, and the deal was set to occur the following day outside the Beltz/Touchton residence.Betts' wife, Jennifer, testified that on April 18, 2013, Betts left their house saying he was going to Beltz' home to meet some people and make a deal.She stated that she saw the marijuana Betts took to sell that night.

Touchton testified that at around 6 or 7 p.m. on April 18, Beltz and Carriker left the Beltz/Touchton residence to run an errand in Carriker's truck.While they were gone, Betts arrived at the house.Touchton let Betts inside and went down to the basement to organize her art supplies.Later that evening, Touchton heard her dogs barking and returned to the main floor to investigate the cause.She saw Betts and Carriker come in the front door with three men she did not recognize, who were later identified as Lorenzo Spires, Dennis Haynes, and John Carter.She did not see Beltz.Touchton assumed Betts and Carriker were conducting a drug deal with the three unknown men, and she noticed that everyone was "acting so stiff."Touchton knew that Carriker and Betts each carried a gun and that Beltz kept a shotgun in the house.

When Touchton went to the kitchen to get some ice, she heard several high-pitched gunshots and fell to the ground beside the refrigerator.She heard both the high-pitched gunshots and the sound of a shotgun firing.Shortly thereafter, Touchton saw one of the three strangers enter the kitchen and point a gun at her.She heard a click and saw the man leave the kitchen.The man eventually returned and pulled her away from the back door, saying "move, bitch."Touchton crawled to the bathroom and hid until the firing ceased.

When the gunshots stopped, Touchton heard Beltz call out for Carriker.She came out of hiding and saw Carriker lying on the bedroom floor bleeding from his leg.Carriker said they had shot him and taken his gun.Betts was lying motionless on the living room floor.Spires, Haynes, and Carter were gone.When Beltz told Touchton to call the police, Carriker fled the house.

Touchton testified that Beltz later told her Carriker had met the men interested in purchasing the marijuana and Carriker had contacted him to ask where he could buy the drugs.Beltz then contacted Betts, putting him in contact with Carriker.Beltz told Touchton that it was a deal between Betts and Carriker and that it was supposed to happen in front of a store beside their house rather than inside the house.Beltz explained that his role was "to look out for [Betts and Carriker] and make sure that they were okay, that they didn't get robbed or nothing went wrong."

Beltz told police that he had been in the master bedroom when the shooting began.Beltz then grabbed his shotgun and went to a closet that connected the master bedroom and the front bedroom.When someone looked into the closet from the front bedroom, Beltz fired twice in that direction and then stumbled or fell backwards into the master bedroom.When Beltz heard someone outside the room, he fired one shot at the door separating the master bedroom and the living room and retreated to hide by the bed.

The forensic pathologist who conducted Betts' autopsy testified that Betts was shot five times.Of the three gunshot wounds that contributed to his death, two were caused by handguns and one was from a shotgun.The shotgun wound was located on Betts' upper left abdomen, and the pellets perforated areas of the body including the left kidney, spleen, and lower left lobe of the lung.

A jury convicted Beltz of attempted possession of marijuana with the intent to distribute and first-degree felony murder for the killing of Betts during the attempted distribution of marijuana.The district court sentenced Beltz to a hard 20 life sentence for the felony murder and 67 months for the attempted distribution, running concurrently with the life sentence.Beltz appealed directly to this court.

ANALYSIS

Beltz raises four issues on appeal.First, Beltz asserts that the district court erred by allowing the State to present evidence that he was growing marijuana in his basement as well as evidence of prior sales by Betts at or near his house.Beltz then argues that the district court should have granted his motion for acquittal because there was not a direct causal connection between the sale of marijuana and Betts' death.Third, he claims that his proposed self-defense instruction was legally and factually appropriate.Finally, he asserts that the State presented a case in which the jury could have found that multiple acts constituted the aiding and abetting of the attempted distribution of marijuana.We consider and reject each argument in turn.

Beltz has waived or abandoned his challenge to the K.S.A. 2015 Supp. 60–455 evidence.

K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge absent a timely objection made on the record.SeeState v. Bowen , 299 Kan. 339, 351, 323 P.3d 853(2014).Consistent with this statute, our rules require appellants to include in their briefs a pinpoint reference to the record indicating where the issue was raised and ruled on below.Supreme Court Rule 6.02(a)(5)(2015 Kan. Ct. R. Annot. 41).Although exceptions to this general rule exist, parties seeking to raise an issue for the first time on appeal must assert the exceptions.State v. Godfrey , 301 Kan. 1041, 1043, 350 P.3d 1068(2015);Supreme Court Rule 6.02(a)(5)(directing parties who wish to raise an issue for the first time on appeal to explain why the issue is properly before this court).

Here, Beltz did not lodge a contemporaneous objection to the evidence of the marijuana grow.Beltz did object to Touchton's testimony that Betts regularly sold marijuana in the parking lot beside the Beltz/Touchton house.Later in the trial, however, Beltz did not object to testimony from a detective who stated that Beltz had told him Betts had previously sold marijuana at the house.Beltz also failed to object to Jennifer Betts' testimony that on a prior occasion, she witnessed Betts go inside the house to sell marijuana.

Beltz asserts that he objected to the admission of the contested evidence at trial, but he does not provide any citation to the record to support this claim." Rule 6.02(a)(5) means what it says and is ignored at a litigant's own peril."Godfrey , 301 Kan. at 1043, 350 P.3d 1068.Since Beltz did not preserve his objection to the evidence relating to the marijuana grow, and because he has not attempted to explain why we should consider the issue for the first time on appeal, we deem this claim waived.

With respect to evidence of prior marijuana sales at or near Beltz' house, while Beltz did object to Touchton's testimony on this subject, we cannot reverse on this basis because similar testimony that served the same purpose was admitted without objection.

"On the record before us, however, even if we assume that the admission was erroneous under K.S.A. 60–455, we could not reverse on that basis.Other testimony, not challenged by [defendant] on appeal, was bound to inflict the same or greater damage than that inflicted by [the witness'] testimony on the defense case."State v. Barber , 302 Kan. 367, 375, 353 P.3d 1108(2015).

SeeIn re Care & Treatment of Thomas , 301 Kan. 841, 843–45, 348 P.3d 576(2015)(finding that offender failed to preserve his challenge to the foundation for admission of nursing notes where he initially objected, the State responded by providing additional foundation evidence, and then the offender neglected to object again before the evidence was admitted).Hence, Beltz' initial objection was abandoned, and his claim has not been properly preserved for appellate review.

There was a sufficient causal relationship between Betts' death and the attempted sale of marijuana.

Next, Beltz argues the district court erred in denying his motion for acquittal because there was not a sufficient causal relationship between the attempted sale of marijuana and Betts' death.Beltz asserts that the actions of Spires, Haynes, and Carter caused the death rather than the attempted sale of marijuana.

"In considering the trial court's decision to deny [a defendant's]motion for acquittal, we consider all the evidence in the light most favorable to the prosecution and determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt.[Citation omitted.]In doing so, we do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.[Citations omitted.]"State v. Llamas , 298 Kan. 246, 254, 311 P.3d 399(2013).

Felony murder is the killing of a human being "in the...