State v. Kline

• Court: Kansas Court of Appeals
• Writing for the Court: PER CURIAM.
• Citation: State v. Kline, 337 P.3d 71 (Kan. App. 2014)
• Decision Date: 10 October 2014
• Docket Number: 109,900.
• Parties: STATE of Kansas, Appellee, v. Clifton S. KLINE, Appellant.

337 P.3d 71 (Table)

STATE of Kansas, Appellee

v.Clifton S. KLINE, Appellant.

109,900.

Court of Appeals of Kansas.

Oct. 10, 2014.

Review Granted, Cause Remanded Oct. 9, 2015.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and STEGALL, JJ.

MEMORANDUM OPINION

PER CURIAM.

Clifton S. Kline appeals his convictions for aggravated battery and aggravated assault. The jury acquitted Kline of attempted second-degree murder and the lesser included crime of attempted voluntary manslaughter. Kline raises several issues concerning the jury instructions or lack thereof, denial of his motion of acquittal for aggravated assault, erroneous admission of expert testimony by a lay witness, insufficient evidence of aggravated battery, and cumulative error. We affirm.

Kline and his wife Kelli were in the process of a divorce on August 19, 2011. Kline was living with his brother Robert at the time. Kline had been at Kelli's house all day fixing her car with his tools in the barn. Kelli's friend, Nancy White, had picked up their children at school and had brought them back to Kelli's house. Kelli and White then sat on the front porch talking.

Kline testified that after he finished the work on Kelli's car at around 4:30 p.m., he drove his car back to Robert's house. He said he finished off a pint of vodka he found in his car. Kline said he drove his car into a concrete culvert just north of Kelli's house because he was reading a text. He was able to drive the car in reverse to Kelli's house where he had his tools. Kelli and White were still on the front porch. Kline threw his keys at Kelli and told her she could have his car because she getting everything else in the divorce. Kline began walking north towards Robert's house. Kline called Robert and told him to pick him up.

As he walked down the road, Kline realized he had forgotten his cigarette lighter and wallet in his car and headed back toward Kelli's house. He found three beers in his car and drank those as well. Kline testified he was drunk because he had not had anything else to eat or drink all day. Kelli met Kline at his car. White was sitting in a chair on the porch. Kline said he walked up to the front door and as he got close to White he made a comment about the chair having a weight limit. White cursed at Kline. Kline testified he also told White he thought they had agreed that she and her husband Chad would not come to Kelli's house. White again cursed at Kline.

Kline testified he saw White on her cell phone and he assumed she was calling the police. He became extremely upset, picked up a baseball bat that was on the ground, and swung it at White. Kline claimed he had no intention of hitting White in the head and was only trying to prevent her from completing the phone call. Kline testified he had been drinking and had been in a car wreck and did not want the police around.

Kelli testified at trial that Kline was very angry on the day of the incident. She met Kline at his car when he came back the second time. She was concerned about him going into the house because he had broken things when he was mad. Kelli and Kline pushed and shoved each other as Kelli tried to keep him from going in the front door. Kelli testified they were screaming at each other. She saw Kline pick up the bat but did not see him hit White because she was looking down at the time. Kelli started screaming and stepped between Kline and White. She testified Kline swung the bat at her, but she caught it and held on “with everything [she] had.” Kline threw her and the bat to the ground and then headed north down the road.

Bourbon County Deputy Sheriff Michael Feagins responded to the scene. He saw Kelli kneeing on the ground next to White. Kelli told Deputy Feagins that Kline had struck White in the head with a bat. Deputy Feagins could see White had been vomiting and she had injuries on the left side of her jaw and ear. Once medical personnel arrived, Deputy Feagins photographed the scene and attempted to locate Kline. The bat used to strike White had White's blood on it. Deputy Feagins testified he did not go more than 1/4 mile looking for Kline because when he arrived at the scene Kelli told him Kline said he was going to kill them all and the deputy did not want Kline to return while he was gone.

Kelli had told Deputy Feagins that Kline said “he was going to kill them all and shoot himself.” Kelli said Kline “hit her with the bat, and she blocked it,” Deputy Feagins had Kelli fill out a witness statement. In her statement, Kelli reiterated that Kline was going to kill all of them and then shoot himself. She also said he hit White with a baseball bat and then “went for me,” but she blocked it. Kline went to the front door, threw the bat down, and then started walking north down the road.

Deputy Feagins also spoke with Bri Crossen, Kline's half-sister. Crossen was inside the house during the incident. She told Deputy Feagins she heard a loud scream from Kelli and when she looked outside she saw Kelli holding Kline back and White on the ground. Crossen called 911. Deputy Feagins was unable to locate Kline that day. However, during the search, Robert approached Deputy Feagins with his vehicle. Robert told Deputy Feagins he was trying to contact Kline on the phone, but he would not pick up the call. Robert also told Deputy Feagins he had spoken with Kelli earlier in the day and Robert told her Kline was very upset, she needed to get out of the house, and Kline was going to kill them. At trial, Robert denied telling Kelli that Kline was going to kill someone.

The next day, August 20, 2011, Kline turned himself in at the sheriff's office. He waived his Miranda rights and spoke with Deputy Feagins. Deputy Feagins recorded Kline's statement.

Deputy Feagins later interviewed White. She stated she had picked up her son and Kelli's son from school and went to Kelli's house. When she arrived at Kelli's property, she saw Kline walking down the road. She and Kelli talked outside, and Kline returned to the property twice. White remembered Kelli telling her that Robert had called and said they needed to get out of the house because Kline was going to kill them. The second time Kline came back to the house, he approached White and told her to mind her own business and then he struck her with a bat. She did not remember anything after being hit. Deputy Feagins identified the photographs showing White's injuries.

Several witnesses testified to phone calls between Kline and Kelli after Kline had been taken into custody. Those phone calls were played for the jury. In a call on Feburary 3, 2012, Kline told Kelli, “I raised the bat to you” and “[Kelli] stepped in front of the second swing” and then said “You should have stuck with, ‘I can't remember shit.’ Saying nothing would have been better.” In a call on February 23, 2012, Kline told Kelli that he hit her with the bat, that she grabbed it, and they fought over it. In another call, on September 17, 2011, Kline told Kelli, “That fucking bitch being there made me furious” and also said “If I was trying to kill her, I would have hit her twice.”

On August 22, 2011, the State charged Kline with attempted murder in the second degree, a severity level 3 person felony, in violation of K.S.A.2011 Supp. 21–5301 and K.S.A.2011 Supp. 21–5403 ; aggravated battery, a severity level 4 person felony, in violation of K.S.A.2011 Supp. 21–5413(b)(1)(A) ; aggravated assault, a severity level 7 person felony, in violation of K.S.A.2011 Supp. 21–5412(b)(1) ; and violation of a protection from abuse order, a class A person misdemeanor, in violation of K.S.A.2011 Supp; 21–5924(a)(1). Prior to trial, Kline pled no contest to the violation of the protection from abuse order.

After a 3–day trial, the jury acquitted Kline of attempted murder in the second degree and the lesser included offense of attempted voluntary manslaughter. However, the jury convicted Kline of severity level 4 aggravated battery and aggravated assault. At sentencing, the trial court denied Kline's motion for acquittal of the aggravated assault conviction, finding there was substantial competent evidence to support the conviction. The trial court entered a presumptive sentence of 56 months' incarceration—43 months' incarceration for aggravated battery and a consecutive sentence of 13 months' incarceration for aggravated assault. The court also ordered a consecutive period of 12 months in the county jail for violating the protection from abuse order.

Kline appeals.

Kline first argues the trial court's instructions and explanations regarding the jury's consideration of the lesser degrees of aggravated battery, including the prosecutor's comments on them, misstated the law and denied his due process right to a fair trial. He also argues the trial court erred in failing to give the explanatory instruction for lesser included crimes in PIK Crim. 4th 68.080.

When this court reviews appellate claims on jury instructions,

“[t]he 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 (201

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