State v. Galloway

• Decision Date: 27 July 2012
• Docket Number: No. 106,379.,106,379.
• Citation: 281 P.3d 597
• Parties: STATE of Kansas, Appellant, v. Dexter G. GALLOWAY, Appellee.
• Court: Kansas Court of Appeals

281 P.3d 597

STATE of Kansas, Appellant,

v.Dexter G. GALLOWAY, Appellee.

No. 106,379.

Court of Appeals of Kansas.

July 27, 2012.

Appeal from Lyon District Court; Merlin G. Wheeler, Judge.

Vernon E. Buck, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellant.

Lydia Krebs, of Kansas Appellate Defender Office, for appellant.

Before BRUNS, P.J., MARQUARDT and HILL, JJ.

MEMORANDUM OPINION

PER CURIAM.

We dismiss this appeal of a question reserved by the State because the State has not raised a question of statewide importance.

The district court grants a defendant's motion for acquittal.

In early 2011 several people gathered at Dexter G. Galloway's house in Lyon County. Two of the ladies present were Lavinia Beaver and her sister Nikki Roberts. At some point, Galloway, Roberts, and Beaver all got into an ongoing argument in the dining room. The argument escalated to where Galloway stabbed Beaver in the chest. Beaver was taken to Newman Regional Health in Emporia for initial treatment before being transferred to Stormont–Vail Hospital in Topeka. Beaver suffered a puncture wound to her liver. The incision was approximately 2 centimeters long and did not require stitches.

As a result, the State charged Galloway with attempted second-degree murder in violation of K.S.A.2010 Supp. 21–3301 and K .S.A. 21–3402, a severity level 3 person felony, or, in the alternative, aggravated battery in violation of K.S.A. 21–3414(a)(1)(A), a severity level 4 person felony.

The case proceeded to jury trial on May 2 and 3, 2011. At the close of the State's evidence, Galloway moved for a judgment of acquittal on all charges. Galloway argued the State failed to establish that he had intended to kill Beaver and Beaver had suffered great bodily harm. The district court denied Galloway's motion for judgment of acquittal. After conducting a jury instruction conference and taking a brief recess, the district court reconvened and advised the parties that it had reconsidered the evidence and granted Galloway's previous motion for judgment of acquittal on the second-degree murder count.

The district court cited two reasons for granting acquittal: First, after reconsidering the evidence it found there was insufficient evidence to support Galloway had acted with intent to kill Beaver. Second, it directed counsels' attention to State v. Gaither, 283 Kan. 671, 692, 156 P.3d 602 (2007), in which our Supreme Court noted that a “crime is defined by the harm caused rather than the act performed.” The district court asked the State if it wanted to take exception to its ruling. The State responded in the affirmative and stated:

“I haven't read the Gaither decision. I haven't even heard of it, but I can't imagine under the factual scenario in this case that a defendant can plunge a knife in the torso of another individual, and you say there's not enough evidence to go to the jury on intent to kill. That would seem to be proved by the act itself and something a jury could find guilty of beyond a reasonable doubt.”

The State then asked the district court if the language it cited from Gaither would “be applicable to an attempt as opposed to a completed crime. Because we don't have the completed crime here.” The district court acknowledged the State's question and noted the State's exception to its ruling.

The district court instructed the jury on intentional aggravated battery and several lesser-included offenses. The jury found Galloway guilty of reckless aggravated battery in violation of K.S.A. 21–3414(a)(2)(B), a severity level 8 person felony.

The State timely appealed under a question reserved according to K.S.A. 22–3602(b)(3).

We examine the law of questions reserved.

The State appeals under a question reserved, seeking clarification that the district court erred in using Gaither as the basis for granting a judgment of acquittal.

Acquittal is proper where “the evidence is insufficient to sustain a conviction of such crime or crimes.” K.S.A. 22–3419(1); see State v. Crozier, 225 Kan. 120, 124, 587 P.2d 331 (1978). A judgment of acquittal entered by the district court on a motion filed by the defendant is final and not appealable by the State, except in those special circumstances when the question reserved by the State is of statewide interest and is vital to a correct and uniform administration of the criminal law. K.S.A. 22–3602(b)(3); State v. Wilson, 261 Kan. 924, 926, 933 P.2d 696 (1997). Appellate courts should not consider a question reserved by the State when resolution of the question would not provide helpful precedent. State v. Finch, 291 Kan. 665, 669, 244 P.3d 673 (2011).

No magic language or formal procedural steps are required to appeal on a question reserved. To preserve an appeal on a question reserved, the State must make proper objections or exceptions at the time of the district court's ruling and lay the same foundation for appeal that a defendant is required to lay. State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005).

Galloway argues the State cannot raise a question about the district court's ruling about Gaither because Galloway claims that the State only took exception to the district court's sufficiency of evidence finding regarding Galloway's intent to kill Beaver, not whether the district court had misinterpreted or misapplied the holding in Gaither.

We are not so convinced. In our view, the State made a sufficient exception and laid a proper foundation to preserve its appeal on a question reserved. See Tremble, 279 Kan. at 393–94. When the district court prompted the State, the State clearly agreed that it reserved an exception to the district court's ruling granting Galloway's motion for acquittal on the attempted second-degree murder charge. After the district court explained its ruling, the State specifically challenged the district court's finding that a jury could not find there was sufficient evidence Galloway intended to kill Beaver. And even though the State admitted to the district court that it was not aware of the Gaither decision, the State also expressed concern whether Gaither was applicable to a charge of attempted murder given that there was not a completed crime. The district court acknowledged the State's concern when it said, “Well, I very well understand that. But the other side of the coin is....” The trial transcript reflects the district court noted the State's exception and the journal entry reiterates that the State objected to the district court's ruling.

Further along this line, we note that the State's timely notice of appeal clearly informs this court that it is appealing on a question reserved under K.S.A. 22–3602(b)(3) from the district court's order granting Galloway a judgment of acquittal on the attempted second-degree murder count. See State v. G.W.A., 258 Kan. 703, 705–06, 906 P.2d 657 (1995). The journal entry recites the district court's trial order acquitting Galloway of attempted second-degree murder.

For its question reserved, the State asks us to rule that a district court cannot apply Gaither “as the standard to be adopted on a motion for judgment of acquittal.” The State claims that the district court “ only granted the motion after expressing frustration with the difficulty in crafting jury instructions, citing State v. Gaither as the basis for that ruling.” (Emphasis added.)

We do not think that was the ruling of the court. The State fails to acknowledge that the district court notified the parties it specifically...