State v. Caldwell, 71749
| Decision Date | 11 August 1995 |
| Docket Number | No. 71749,71749 |
| Citation | 21 Kan.App.2d 466,901 P.2d 35 |
| Parties | STATE of Kansas, Appellee, v. Tony T. CALDWELL, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. K.S.A.1993 Supp. 21-4219(b) was designed to ensure that drive-by shootings are always a felony offense. At the same time, the legislature clearly intended such conduct against each victim would result in only a single felony charge against the accused.
3. The Kansas Legislature's intent in enacting K.S.A.1993 Supp. 21-4219(b) was to make discharging a firearm at an occupied building, regardless of the victim's state of mind, a felony.
4. The Kansas Legislature, in enacting K.S.A.1993 Supp. 21-4219(b), intended that a person found guilty of firing a weapon at an occupied building be convicted of a felony whether or not the person or persons inside the building were put in immediate apprehension of bodily harm.
5. To predicate error on the granting of a pretrial motion in limine, the defendant must again present the material or proffer the evidence during trial on a motion to reconsider.
6. A limitation by the trial court on the extent of cross-examination will not be overturned absent proof of a clear abuse of judicial discretion.
7. When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction.
8. A trial court has the duty to instruct the jury on the law applicable to the theories of the State and the defendant where there is competent supporting evidence.
9. Under the facts of this case, an instruction that stated it was not a defense that another who participated in the commission of the wrongful act constituting the crime had not been convicted of the crime or any lesser degree of the crime was not erroneous.
10. K.S.A.1993 Supp. 21-4716(a) of the Kansas Sentencing Guidelines Act states that a sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure. The term "substantial" refers to something that is real, not imagined, something with substance and not ephemeral. The term "compelling" implies that a court is forced, by the facts of a case, to leave the status quo, or go beyond what is ordinary.
11. When imposing a departure sentence under the Kansas Sentencing Guidelines Act, the trial court must articulate reasons why it is compelled to depart that are real and not just conclusions.
12. The legislature's intent to punish one crime more severely than another is incorporated in the presumptive sentences in the sentencing grid of the Kansas Sentencing Guidelines Act through the assignment of severity levels to each crime, and one of the elements of the crime cannot be a substantial and compelling factor justifying departure from the presumptive sentence.
Rick Kittel, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
David Lowden, Assistant District Attorney, Nola Foulston, District Attorney, and Robert T. Stephan, Attorney General, for appellee.
Before BRAZIL, C.J., LARSON, J., and DANIEL L. LOVE, District Judge, Assigned.
Tony T. Caldwell appeals his conviction of two counts of aggravated assault, K.S.A.1993 Supp. 21-3410, one count of discharging a firearm at an occupied building, K.S.A.1993 Supp. 21-4219(b), and one count of criminal possession of a firearm, K.S.A.1993 Supp. 21-4204.
The four issues raised include the sufficiency of the evidence establishing the discharge of a firearm at an occupied building conviction, the limitation imposed on the cross-examination of a prosecution witness, a jury instruction, and the sentence imposed by the trial court.
This case arises out of a classic "drive-by shooting." The principal issue is whether the nonexistence of apprehension of bodily harm by the building's occupants must be proved. This necessitates a detailed examination of the surrounding facts.
Jermaine Parks, Lamont Fox, and Kari Manning were at their Wichita residence one night in July 1993. Parks had told Fox upon coming home that he had been followed by Marcell Williams. Great enmity existed between Williams and Parks because of the alleged paternity of a child, and they had had confrontations in the past, including one involving a firearm.
At about 11:00 p.m., Parks and Fox heard music outside the house and saw a distinctive car, known to belong to Williams, driving by. They told Manning, who was completing a shower, to hurry and get dressed and stay inside close to the floor or behind a waterbed. Parks and Fox turned out the lights and went out on the front porch.
A short time later, Williams' car approached the house again, and as it passed, numerous shots, perhaps 10, were fired by someone leaning out of the passenger side window. Parks and Fox threw themselves to the floor and heard shots, which they identified as consistent with a nine millimeter pistol, striking above them. Fox also testified he saw a shotgun sticking out the car window.
Manning was dressed and in the living room. She testified: "I heard like rocks hitting the house and I just laid down on the ground." She initially said she had no idea what was happening but indicated she was scared. She said Fox's manner contributed to her feelings.
Williams testified at the jury trial that he picked up Caldwell that evening to drive by Parks' house and find out why Parks had driven by Williams' house earlier in the evening. They drove by Parks' house three times. On the third occasion, he said, Caldwell told him to slow down, at which point Caldwell pulled out a gun and shot at the house. Williams testified that he told Caldwell not to shoot and that his shotgun remained on the floor of his car during the incident.
Prior to Caldwell's trial, the prosecution obtained an order limiting the cross-examination of Williams. Caldwell's counsel sought to question Williams about the details of his previous altercations with Parks but was restricted to inquiries concerning the prior confrontations contained in police reports.
Although Caldwell argued that the animosity between Parks and Williams was essential to his theory of defense--that Williams did the shooting and then blamed Caldwell--the trial court refused to permit what was called "a fishing expedition" on cross-examination and ruled that detailed information about Williams' relationship with Parks would have to be presented in Caldwell's case in chief. At trial, Caldwell did not seek a change in the pretrial order or proffer what evidence would be elicited by questioning Williams about the details of his conflicts with Parks.
During the trial, the gun used in the shooting was linked to Caldwell through a subsequent armed robbery and ballistics tests. Caldwell introduced evidence that weapons are sometimes exchanged among gang members and that he was at home at the time of the shooting. After guilty findings, Caldwell has appealed.
If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Timley, 255 Kan. 286, 307-08, 875 P.2d 242 (1994). The conviction which Caldwell contends there was insufficient evidence to sustain arises out of an alleged violation of K.S.A.1993 Supp. 21-4219(b), which states:
Caldwell's central contention is that there was insufficient evidence to establish beyond a reasonable doubt that Manning was not placed in immediate apprehension of bodily harm.
Manning's testimony can be construed to lead to different conclusions as to her level of fear and at what time it occurred, but we first consider if the prosecution is required to disprove her "immediate apprehension of bodily harm."
The necessity of proving the nonexistence of the immediate apprehension of bodily harm in a building's occupant under K.S.A.1993 Supp. 21-4219(b) is a question of statutory interpretation over which our review is unlimited. See State v. Donlay, 253 Kan. 132, Syl. p 1, 853 P.2d 680 (1993). The fundamental rule of statutory construction is that the ascertainable intent of the legislature governs. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993).
"[T]he legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results." Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992). Although our criminal statutes are construed strictly against the State, State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993), this rule is subordinate to the rule that judicial interpretation must effectuate legislative design and the legislature's true intent....
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