State v. King

• Decision Date: 09 August 2013
• Docket Number: No. 99,479.,99,479.
• Citation: 305 P.3d 641,297 Kan. 955
• Parties: STATE of Kansas, Appellee, v. Kameron KING, Appellant.
• Court: Kansas Supreme Court

297 Kan. 955

305 P.3d 641

STATE of Kansas, Appellee,

v.Kameron KING, Appellant.

No. 99,479.

Supreme Court of Kansas.

Aug. 9, 2013.

Syllabus by the Court

[297 Kan. 955]1. K.S.A. 60–455 does not prohibit the admission of evidence regarding other crimes and civil wrongs if the evidence relates to acts committed as part of the events surrounding the crimes or civil wrongs at issue in the trial.

2. If a rule of evidence prohibits the admission of evidence, res gestae evidence does not become admissible simply because it establishes the circumstances surrounding the criminal act or civil wrong. On the other hand, res gestae evidence is not automatically inadmissible; rather, if the evidence is relevant it can be admitted unless a rule of evidence prevents its admission.

3. Under K.S.A. 22–3420(3), any question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent. Statements to the contrary in State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012), are overruled.

4. The failure to answer a question from the jury in open court and in the defendant's presence creates an error that is subject to the harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). Under this standard, error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.

5. The unit of prosecution defined in K.S.A. 21–3419(a)(1) is a single communicated threat; a communicated threat constitutes only one offense even if it is perceived and comprehended by multiple victims.

6. In a multiple acts case where a unanimity instruction has not been given, inconsistencies in the evidence can lead to jury confusion and lack of unanimity even though the defendant presented a unified defense based on a general denial of wrongdoing. In such a case, if the defendant failed to request a unanimity instruction, an appellate court must review the record as a whole to determine if it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.

7. A deadlocked jury instruction is erroneous if it informs the jury that the need for a second trial would be a heavy burden on both sides and that there is no reason to believe another jury would be better situated to decide the case.

8. In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?

9. The use of a defendant's prior convictions in the determination of a criminal history score to enhance a sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was on the brief for appellant.

Jennifer L. Myers, assistant district attorney, argued the cause, and Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, were on the brief for appellant.

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

Kameron King was convicted by a jury of one count of arson, three counts of criminal threat, one felony count of criminal damage to property, one misdemeanor count of criminal damage to property, one count of assault, one count of battery, and one count of domestic battery. We reverse two of King's convictions for criminal threat, rejecting the State's theory that the unit of prosecution for a criminal threat is the number of victims who perceive and comprehend the threat. Instead, we hold there can only be one conviction for a single communicated threat, regardless of the number of victims who perceive and comprehend the threat. We also reverse King's conviction for felony criminal damage to property because the evidence established multiple acts, the trial court did not instruct the jury it had to unanimously agree on the act that supported the conviction, and we are firmly convinced that the error affected the verdict.

In addition, we find two other errors but determine these errors were harmless when considered both individually and cumulatively. One of these errors was committed when the trial court failed to obtain a waiver of King's right to be present in open court and then violated that right by answering a question posed by the jury during deliberations without King being present. The other error occurred when the trial court gave the jury an erroneous deadlocked jury instruction.

We reject the other arguments advanced by King. One of these arguments is that K.S.A. 60–455 prohibited the admission of evidence of other crimes that were committed at the same time as the crimes for which King was on trial. The other is that it was unconstitutional for the sentencing court to consider King's criminal history when that history had not been alleged in the complaint or proven to a jury.

Facts and Procedural Background

King's convictions result from a series of events that occurred on June 20, 2006. At trial, the State and King presented different versions of these events. A detailed summary of this evidence is necessary because several of King's arguments require us to determine whether an error was harmless. In our discussion of the facts, we will refer to everyone except King by first name because many of the witnesses share surnames.

One witness, Kelly Riley, testified she had known King for 14 years and he was the father of three of her four children. King and Kelly had separated in early 2006. Kelly testified that on June 20, [297 Kan. 958]2006, she received approximately 45 telephone calls from King during which he screamed and yelled at her because she was seeing another man. She also said that King threatened to steal and burn her van and kill several people, including her.

King's anger at Kelly was apparent in his interaction with others on June 20, 2006. For example, King approached Kelly's aunt, Theresa Smith, at a baseball game. Theresa indicated King's breath smelled of alcohol, and she described him as being “pretty angry” about Kelly having a boyfriend.

King was also upset with his father, James King, and wanted his father to evict Kelly from the house she was renting from King's grandmother. King allegedly acted on this anger by ramming a stolen white flatbed truck into vehicles owned by his father. James testified that at approximately 10:30 p.m. he heard a loud, crashing noise outside his house. He described the noise as sounding like one vehicle colliding with another. Three vehicles—a van, a truck, and an El Camino—were parked in front of James' garage. James went outside and saw that his van had been shoved into the garage; he did not see any damage to the other vehicles.

An eyewitness testified she saw a white flatbed truck repeatedly drive into the van in James' driveway before driving off. The eyewitness testified the truck only hit the van, but the van was pushed into the El Camino. The witness described the truck to James.

Meanwhile, King drove to Kelly's house, arriving about an hour after his last telephone call to her. Kelly's four children; her friend, Katie Kelly; and a friend of Katie's were also present. King entered the house without a shirt and was visibly bleeding from his chest. He told Kelly he had been injured while fighting with a friend. He then grabbed a beer from the kitchen, sat down in the living room, and started arguing with Kelly. Both Kelly and Katie testified that King slapped Kelly across the face with an open hand while they were arguing.

A short time later, Theresa called to warn Kelly about King's behavior at the baseball game. Kelly told Theresa that King had already slapped her and that she would call if she needed help. After a while, Theresa called again. Kelly answered the telephone crying, and Theresa could hear King throwing things in the background.Theresa asked to talk to King to see if she could calm him down. King took the telephone and stated that it was his house, and he would burn it down if he wanted.

James also called Kelly and told her someone had hit his cars. Kelly asked King if he caused the damage. He denied responsibility and said he was driving a yellow car. James decided to make the 5–minute walk to Kelly's house. He saw a white flatbed truck with a damaged front end parked near Kelly's house. James confronted King about the damaged cars. King again denied responsibility and started physically fighting with James. While they were fighting, Kelly noticed the white flatbed truck, but she could not tell if there was any damage to the front end.

When the fighting ended, King got back into the white flatbed truck, and headed in the direction of James' house. James also returned to his house where he found that his van had been further damaged and his El Camino had been damaged. The eyewitness testified that the same white flatbed truck and driver she had seen earlier returned approximately 5 to 10 minutes after the original incident. She observed the truck slam into James' vehicles again. At trial, the eyewitness identified King as the driver of the truck.

While King and James were fighting, Katie put Kelly's children into Katie's car and took them...