State v. Kershaw

• Decision Date: 25 September 2015
• Docket Number: 109,548.
• Citation: 359 P.3d 52,302 Kan. 772
• Parties: STATE of Kansas, Appellee, v. David Allen KERSHAW, Appellant.
• Court: Kansas Supreme Court

302 Kan. 772

359 P.3d 52

STATE of Kansas, Appellee

v.David Allen KERSHAW, Appellant.

109,548.

Supreme Court of Kansas.

Sept. 25, 2015.

Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

Opinion

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

The State charged David Allen Kershaw with four counts of aggravated assault of a law enforcement officer committed with a deadly weapon after Kershaw shot at police officers responding to a 911 call from Kershaw's wife. At trial, Kershaw presented evidence showing that when he fired his weapon, he was heavily intoxicated. The district court, however, instructed the jury that voluntary intoxication was not a defense to the charged crimes. The Court of Appeals held this instruction was clearly erroneous because it allowed the State to convict Kershaw without proving he acted knowingly—the mental state required to prove aggravated assault of a law enforcement officer committed with a deadly weapon. State v. Kershaw, No. 109,548, –––Kan.App.2d ––––, 2014 WL 3907084, at *10 (Kan.App.2014) (unpublished opinion).

We granted the State's petition for review, which argued that because aggravated assault of a law enforcement officer committed with a deadly weapon is a general intent crime, the district court correctly instructed the jury. We agree with the State, reverse the Court of Appeals, and affirm the district court.

Factual and Procedural Overview

On Saturday, February 4, 2012, Kershaw and his wife, De'De, got into an argument about her plans to attend a baby shower for Kershaw's niece, with whom Kershaw had a strained relationship. After De'De left to attend the shower, Kershaw consumed several beers. Once De'De returned home, Kershaw drank nearly a half-gallon of whiskey. At the time, Kershaw was taking approximately 20 different medications daily.

When the couple retired to bed, they were unable to sleep. At 4 a.m., De'De got out of bed. Kershaw also got up and then retrieved a semi-automatic pistol from under the bed. De'De tried to put the pistol away, which prompted Kershaw to hit De'De. Kershaw then walked to the kitchen to get ammunition for the pistol. He loaded a magazine and inserted it into the pistol, at which point the weapon discharged.

De'De called 911 and informed the dispatcher that Kershaw had discharged a firearm inside their residence. She explained that Kershaw was intoxicated and “out of control.” Five officers responded to the house. They positioned themselves approximately 75 to 80 yards from the house for safety reasons and attempted to persuade Kershaw to come to them. Kershaw paced between his residence and porch, carrying the pistol, for approximately 45 minutes. A crisis negotiator talked with Kershaw on the phone and opined that Kershaw was very intoxicated or heavily medicated.

Eventually, Kershaw raised his pistol in the direction of four of the officers and fired one shot. An officer returned fire until Kershaw fell. The officers then took Kershaw into custody and rendered aid to him.

Based on these events, the State charged Kershaw with four counts of aggravated assault of a law enforcement officer committed with a deadly weapon and one count of domestic battery. Prior to trial, Kershaw informed the State that he intended to assert a defense of voluntary intoxication. Kershaw provided the State with a psychiatric evaluation report prepared by Dr. William Logan based upon Logan's examination of Kershaw. In the report, Logan opined that “at the time Mr. Kershaw fired at officers, and earlier when he struck his wife, he was intoxicated due to alcohol [and] an adverse reaction to [several prescription medications] to the extent he was unable to form intent.”

The State filed a motion in limine to exclude the report and Logan's testimony, arguing that because voluntary intoxication is not a defense to general intent crimes, Logan's conclusion on intent should be excluded. The district court found that aggravated assault is a general intent crime and, therefore, voluntary intoxication was not an available defense. Nevertheless, the district court ruled that Logan could “testify regarding the general effect of drugs and alcohol on the human body,” so long as he did not testify “as to their effect on this defendant specifically on the dates he is alleged to have committed the crimes.” At trial, the district court found Logan was an expert in psychiatry and Logan testified in compliance with the pretrial order.

Kershaw testified that he did not recall his interaction with the officers outside his house. He explained that he would never knowingly or willingly fire a weapon at police officers.

Without objection, the district court instructed the jury that “[v]oluntary intoxication is not a defense to a charge of aggravated assault to a law enforcement officer and domestic battery.” The jury found Kershaw guilty of all four counts of aggravated assault of a law enforcement officer committed with a deadly weapon and not guilty of domestic battery. The district court sentenced Kershaw to 38 months' imprisonment.

Kershaw appealed to the Court of Appeals, arguing the district court erred in denying Kershaw the right to present evidence in support of the defense of voluntary intoxication, in not instructing the jury on the defense of voluntary intoxication, and in instructing the jury that voluntary intoxication was not a defense. The Court of Appeals held that because aggravated assault of a law enforcement officer committed with a deadly weapon is a general intent crime, the defense of voluntary intoxication was unavailable to Kershaw. Kershaw, 2014 WL 3907084, at *7. Accordingly, the panel held that the district court did not err in precluding Kershaw from presenting evidence of voluntary intoxication and in failing to instruct the jury on the defense. 2014 WL 3907084, at *7, 9. Nevertheless, the panel held that it was clearly erroneous to instruct the jury that voluntary intoxication is not a defense because it relieved the State of its burden of proving that Kershaw acted knowingly, the mental state required to prove assault. 2014 WL 3907084, at *10.

The State petitioned this court for review of the Court of Appeals' holding that the “voluntary intoxication is not a defense” instruction was clearly erroneous.

The Voluntary Intoxication is Not a Defense Instruction

The State contends that the district court's instruction that voluntary intoxication is not a defense accurately stated the law and, therefore, the instruction was not erroneous. The State further contests the notion that the instruction negated the State's burden of proving criminal intent, as the Court of Appeals found. Our caselaw and current statutory law favor the State's position.

Standard of Review

“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

In this case, the legally appropriate inquiry will turn on whether the crime of aggravated assault on a law enforcement officer committed with a deadly weapon is a general or specific intent offense. “Whether a criminal statute establishes a general intent or a specific intent offense is a legal question over which appellate courts exercise unlimited review.” State v. Richardson, 289 Kan. 118, 121, 209 P.3d 696 (2009).

Analysis

Kershaw did not object to the instruction he successfully challenged in the Court of Appeals. But as the Court of Appeals recognized, even when a jury instruction issue has not been properly preserved, relief may still be granted if the instruction was clearly erroneous. Kershaw, 2014 WL 3907084, at *9 ; see State v. Smith, 299 Kan. 962, 979, 327 P.3d 441 (2014) (citing K.S.A. 22–3414 [3] ). To determine whether giving the instruction was clearly erroneous, we must first decide if there was error. To determine if there was error, we “consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012).

For each count of aggravated assault of a law enforcement officer, the jury was instructed:

“To establish this charge, each of the following claims must be proved:

“1. The defendant knowingly placed [the officer] in reasonable apprehension of immediate bodily harm.

“2. [The officer] was a uniformed or properly identified County law enforcement officer.

“3. [The officer] was engaged in the performance of his duty.

“4. The defendant did so with a deadly weapon.

“5. This act occurred on or about the 5th day of February, 2012, in Shawnee County, Kansas.

“No bodily contact is necessary.”

This instruction was modeled after PIK Crim. 4th 54.290 and derives its authority from K.S.A. 2014 Supp. 21–5412. In 2011, the legislature repealed the assault, aggravated assault, and aggravated assault of a law enforcement officer statutes and enacted K.S.A. 2014 Supp. 21–5412 covering all three crimes. L. 2010, ch. 136,...