State v. Berkstresser
| Decision Date | 02 December 2022 |
| Docket Number | 122,557 |
| Parties | State of Kansas, Appellee, v. Ryan M. Berkstresser, Appellant. |
| Court | Kansas Supreme Court |
SYLLABUS BY THE COURT
1. When a party fails to brief an issue, that issue is deemed waived or abandoned.
2. To determine whether a lesser included offense instruction is factually appropriate, a court must consider whether there is some evidence, viewed in a light most favorable to the defendant, emanating from whatever source and proffered by whichever party, that would reasonably justify the defendant's conviction for that lesser included crime.
3. A district court commits instructional error by failing to sua sponte give a lesser included offense instruction that is both legally and factually appropriate. On appeal, to obtain reversal of a conviction based on that error, a defendant who has failed to request the instruction bears the burden to firmly convince a reviewing court the jury would have reached a different verdict had the error not occurred.
4. Appellate courts do not ordinarily consider an issue not raised by the parties but may do so sua sponte when the issue's consideration is necessary to serve the ends of justice or prevent the denial of fundamental rights after notice to the parties and allowing them an opportunity to address the issue raised by the court.
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 23, 2021.
Appeal from Sedgwick District Court; David J. Kaufman, judge.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed, and the case is remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office argued the cause and was on the briefs 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 briefs for appellee.
The State challenges a Court of Appeals decision reversing Ryan M. Berkstresser's conviction for felony fleeing or attempting to elude a police officer. The panel ordered a new trial after it held the district court erred by failing to give an unrequested jury instruction on a lesser included misdemeanor offense and that this error justified reversal. State v. Berkstresser, No. 122,557, 2021 WL 6068708 (Kan. App. 2021) (unpublished opinion). We reverse the panel and affirm the conviction because the panel misapplied the standard required to determine when such an instructional error necessitates reversal.
If a reviewing court determines a district court erred by failing to give an unrequested lesser included offense instruction, its next step is to consider the degree of resulting prejudice by deciding whether it is firmly convinced the jury would have reached a different verdict had this instructional error not occurred. State v. Valdez, 316 Kan. 1, 6, 512 P.3d 1125 (2022). But here, after the panel found error, it reversed the conviction because it held the jury "could have reasonably determined Berkstresser failed to yield to the officer but did not drive with a willful or wanton disregard for the safety of other persons or property as reflected in the dashcam video." (Emphasis added.) Berkstresser, 2021 WL 6068708, at *6. This substantively differs from deciding whether the court is firmly convinced the jury would have reached a different verdict on the felony charge.
We hold the panel erred by using a lower standard of doubt about the outcome to declare this unpreserved error reversible. See State v. Carter, 305 Kan. 139, 159, 380 P.3d 189 (2016) (); Garner's Modern American Usage, p. 869 (3d ed. 2009) ("Writers often use would to condition statements that really ought to be straightforward."). We further hold the failure to give a lesser included offense instruction for the misdemeanor offense was not clearly erroneous because we are not firmly convinced based on the trial evidence that the jury would have reached a different verdict if such an instruction had been given, so we affirm the conviction.
That result, however, does not end the matter. We must remand this case to the district court with directions to merge Berkstresser's two alternative convictions of felony fleeing or attempting to elude a police officer under State v. Vargas, 313 Kan. 866, Syl. ¶¶ 1-3, 492 P.3d 412 (2021).
Neither party disputes what happened, although they portray the facts very differently. Haysville Police Officer Randy Nowak noticed a Mitsubishi sedan following too closely to another car. His dispatch advised the Mitsubishi's license plate was assigned to a different vehicle. Nowak began a traffic stop by activating his patrol car's overhead emergency lights and siren. His car displayed Haysville Police Department decals. The driver, later identified as Berkstresser, did not stop. He increased his speed, reaching 72 miles per hour in a 50-mile-per-hour zone.
Berkstresser turned west onto a country road, reaching 65 miles per hour in an unposted area where Nowak believed the speed limit was 45. Berkstresser then went north. In doing so, he made a complete stop at a stop sign but did not properly signal the turn. He pulled into a residential driveway and drove across two front yards-near multiple parked vehicles and a bystander-before moving back onto the street without stopping or yielding. Again headed north, he swerved right across the fog line toward a ditch then left across the center line into the southbound lane before entering another driveway without signaling. He stopped and fled on foot. Officer Nowak caught up with Berkstresser, who had no valid driver's license or proof of insurance.
The State charged Berkstresser with: (1) fleeing or attempting to elude a police officer by committing five or more moving violations in violation of K.S.A. 2017 Supp. 8-1568(b)(1)(E), a severity level 9 person felony; (2) in the alternative, fleeing or attempting to elude a police officer by engaging in reckless driving in violation of K.S.A. 2017 Supp. 8-1568(b)(1)(C), a severity level 9 person felony; (3) marijuana possession in violation of K.S.A. 2017 Supp. 21-5706(b)(3), a class B nonperson misdemeanor; (4) driving with a suspended or canceled license in violation of K.S.A. 2017 Supp. 8-262(a)(1), a class B nonperson misdemeanor; and (5) no proof of insurance in violation of K.S.A. 2017 Supp. 40-3104(c), a class B misdemeanor. He pled not guilty. Before trial, the State dismissed the marijuana possession count.
The jury returned guilty verdicts on the two alternatively charged felony counts of fleeing or attempting to elude a police officer, as well as driving with a suspended license. It acquitted him on the proof-of-insurance charge. The district court sentenced Berkstresser to 15 months' imprisonment for the reckless driving fleeing and eluding conviction but did not sentence him for the alternative conviction (five or more moving violations). The court also sentenced him to six months in jail for the suspended license. We note the panel states the district court ordered the two sentences run concurrent. Berkstresser, 2021 WL 6068708, at *3. But our review of the record reflects the district court ordered these sentences run consecutive.
Berkstresser appealed, raising eight trial-error claims. Of those, the panel addressed just one that it considered dispositive: Whether the district court committed clear error by not instructing the jury on the lesser included misdemeanor fleeing offense for the count alleging reckless driving. The panel held there was error requiring it to reverse the reckless driving conviction and remanded for a new trial. 2021 WL 6068708, at *6. Inexplicably, the panel did not discuss the trial-error claims associated with the jury's remaining alternative felony conviction for five or more moving violations before remanding the case for a new trial.
The State petitioned for review on the panel's reversal of the conviction. Neither party sought review for the issues left undecided, so those are not before us. See Kansas Supreme Court Rule 8.03(b)(6)(C)(ii) (2022 Kan. S.Ct. R. at 56) ("If the petitioner wishes to have the Supreme Court determine issues that were presented to the district court and the Court of Appeals but not decided by the Court of Appeals, the petitioner must also present those issues."); State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021) ("Allen did not cross-petition on the panel's decision to drop her third claim, nor did she mention that claim in her response to the State's petition for review, so it is not before us.").
We granted the State's petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).
The State argues two points: (1) a misdemeanor instruction was not factually appropriate so no error occurred; and (2) even if the instruction was factually appropriate and should have been given, that omission did not prejudice Berkstresser to the degree necessary to reverse his felony conviction. As explained, we agree with the State's second argument.
Was a misdemeanor instruction factually appropriate?
A court reviews alleged instructional error in a sequential manner. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1 283 P.3d 202 (2012) (). The State chose not to dispute...
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