State v. Hawkins

• Decision Date: 25 July 2008
• Docket Number: No. 97,657.,97,657.
• Citation: 188 P.3d 965
• Parties: STATE of Kansas, Appellee, v. Harold HAWKINS, Appellant.
• Court: Kansas Court of Appeals

188 P.3d 965

STATE of Kansas, Appellee, v. Harold HAWKINS, Appellant.

No. 97,657.

Court of Appeals of Kansas.

July 25, 2008.

Janine Cox, of Kansas Appellate Defender Office, Topeka, for appellant.

Kristi L. Barton, assistant district attorney, Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before LEBEN, P.J., MALONE and GREENE, JJ.

GREENE, J.

Harold Hawkins appeals his convictions of aggravated assault, aggravated assault against a law enforcement officer, and criminal possession of a firearm, arguing reversal of the aggravated assault conviction is required because of an erroneous response from the district court to a jury question, multiplicity, insufficiency of the evidence, cumulative trial errors, and sentencing errors. Concluding the district court erred in its response to a jury question, we reverse Hawkins' conviction for aggravated assault and remand for new trial on that charge, but we affirm the remaining convictions.

Factual and Procedural Overview

Off-duty Police Officers Carl Lemons and Fongvilay Phommachanh were working security in full uniform at a restaurant in Wichita when they were approached about a skirmish in the parking lot. As the officers moved in response, Phommachanh observed a man walking toward him lifting his hand when he heard a loud bang and saw a flash come from an apparent firearm. Phommachanh called for Lemons and began to chase the man with the gun, identifying himself as a police officer and demanding the man stop and drop the weapon. As the man continued to flee, Phommachanh saw him turn around several times and motion like he was going to shoot at Phommachanh again. Lemons joined the chase, heard gunfire from Phommachanh's service weapon, and eventually shot the fleeing man in the back. The man was identified as Hawkins.

As a result of these events, the State charged Hawkins with four counts: Count I, aggravated assault of Phommachanh as an individual; Count II, aggravated assault of Phommachanh as a law enforcement officer; Count III, aggravated assault of Lemons as a law enforcement officer; and Count IV, criminal possession of a firearm. The jury found Hawkins guilty of Counts I, II, and IV but acquitted him of Count III.

Hawkins moved for a judgment of acquittal and new trial. After allowing argument, the trial court denied both motions. The trial court then imposed consecutive aggravated sentences for all three convictions, totaling 63 months in prison. Hawkins timely appeals.

Were Hawkins' Convictions of Aggravated Assault and Aggravated Assault on a Law Enforcement Officer Supported by Sufficient Evidence?

Hawkins challenges the sufficiency of the evidence to support his convictions of aggravated assault and aggravated assault on a law enforcement officer. "When the sufficiency of the evidence is reviewed in a criminal case, [an appellate] court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006). A conviction for even the gravest offense may be sustained by circumstantial evidence. Circumstantial evidence is evidence of events or circumstances from which a reasonable factfinder may infer the existence of a material fact in issue. State v. Lopez, 36 Kan.App.2d 723, 725, 143 P.3d 695 (2006). As the finder of fact, the jury is responsible for weighing of the evidence, determining witness credibility, and resolving conflicts in the evidence, and this court will not second guess its performance of such vital tasks. See State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006).

From our review of the record, we conclude there was some conflicting evidence of the details of the incident, but Hawkins' involvement was not placed in serious doubt. The officers testified clearly regarding the Hawkins' movements, shots fired, and being placed in fear of bodily harm as a result of Hawkins' actions. Additionally, a partially loaded but jammed semiautomatic handgun was found on the floor of the vehicle Hawkins was entering as he was shot by Lemons. Ballistics matched one of the six cartridges or shell casings found at the crime scene to that handgun, and a bullet hole was found in the top of the windshield of a car in the parking lot in the vicinity where Phommachanh first observed someone shoot at him. One witness, who was in front of the restaurant at the time of the first shot, heard the shot, testified generally consistent with the officers, and specifically stated that the individual who fled appeared to be shooting at the officers and at her group of friends.

Hawkins' arguments on appeal highlights evidence suggesting his innocence. For example, he points to evidence presented in his defense which tended to contradict Phommachanh's testimony on direct examination that he thought Hawkins was shooting at him, as opposed to a car. He maintains that Phommachanh's conflicting statements in that regard were insufficient for the jury to find beyond a reasonable doubt that he was guilty of aggravated assault. His claim is similar with regard to evidence of the events that led to the charge of aggravated assault against Phommachanh as a law enforcement officer, which included conflicting witness accounts of Hawkins' actions as he ran from the officers.

We conclude that Hawkins' arguments go to the weight of the respective evidence and the assessment of credibility. We decline to resolve such issues. See Pham, 281 Kan. at 1252, 136 P.3d 919. We are convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt of aggravated assault resulting from the initial shot fired and of aggravated assault on a law enforcement officer resulting from the balance of Hawkins' actions. His challenge to the sufficiency of the evidence is rejected.

Did the District Court Err in Responding to a Jury Question on Aggravated Assault, and if so, Was the Error Harmless?

Hawkins argues the district court erroneously responded to a question from the jury during its deliberations and the erroneous response entitles him to a new trial on his aggravated assault conviction. He makes no similar challenge as to his remaining convictions. This court generally reviews a trial court's response to a jury's question for abuse of discretion. Our appellate courts will find an abuse of judicial discretion only when no reasonable person would take the view adopted by the trial court. State v. Kendall, 274 Kan. 1003, 1006, 58 P.3d 660 (2002). However, to the extent Hawkins contends the trial court misstated the law in responding to the jury's question and resolution of the issue calls for statutory interpretation, this court's review of such strictly legal issues is unlimited. See State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001). The important consideration is that the jury be properly instructed on the essential issues presented at the trial, and this is particularly true in a criminal proceeding when the question presented by the jury involves the basic elements of the criminal offense on which the defendant is being tried. Kendall, 274 Kan. at 1007, 58 P.3d 660.

Instruction 9 directed the jury that to find Hawkins guilty of the aggravated assault of Phommachanh as an individual, the jury had to find, in pertinent part, that "Mr. Hawkins intentionally placed Fongvilay Phommachanh in reasonable apprehension of immediate bodily harm." Both parties focused in their closing arguments upon what the jury had to find—or not find—that Hawkins intended. More than an hour into deliberations, the jury sent a note to the court referencing "Instruction 9, item 1" and asking: "Does aggravated assault require Mr. Hawkins['] target specifically to be Officer Phommachanh?"

The State argued the doctrine of transferred intent applied and suggested the trial court simply refer to its instructions already given. Hawkins argued the question mandated a "yes" response because the jury had to find this was an intentional act against Phommachanh specifically.

Relying on State v. Eichman, 26 Kan. App.2d 527, 989 P.2d 795, rev. denied 268 Kan. 890 (1999), the trial court noted that aggravated assault and/or aggravated assault on a law enforcement officer are general intent crimes. The court then explained its understanding that "[t]here has to be an intent to do the act, but it does not have to be the intent to place someone in immediate apprehension of bodily harm." (Emphasis added.) Thus, over defense counsel's objection, the trial court responded by writing below the jury's question: "To be guilty of aggravated assault someone's act must have been intentional. The intentional act must have placed another in reasonable apprehension of immediate bodily harm."

We fundamentally disagree with the district court in its belief that the intent necessary "does not have to be the intent to place someone in immediate apprehension of bodily harm." This was a serious misstatement of the law. See K.S.A. 21-3408 (assault). Although aggravated assault is a general intent crime, the general intent necessary requires proof that the defendant intentionally placed another person in immediate apprehension of bodily harm. Eichman, 26 Kan.App.2d at 529-30, 989 P.2d 795; see K.S.A. 21-3410 (aggravated assault); K.S.A. 21-3411 (aggravated assault on a law enforcement officer). The district court's response changed this essential intent element of assault by stating that "someone's act must have been intentional" and that the intentional act "must have placed another in reasonable apprehension of immediate bodily harm." The response misled the jury to the extent it required only an undefined intentional act, such as the general firing of a weapon, and that this act had the result of placing someone in apprehension of bodily harm. Under the plain language of ...