State v. Levy

• Decision Date: 23 April 2021
• Docket Number: No. 119,998,119,998
• Citation: 485 P.3d 605
• Parties: STATE of Kansas, Appellee, v. Jeremy D. LEVY, Appellant.
• Court: Kansas Supreme Court

485 P.3d 605

STATE of Kansas, Appellee,

v.Jeremy D. LEVY, Appellant.

No. 119,998

Supreme Court of Kansas.

Opinion filed April 23, 2021

Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Jeremy D. Levy was convicted by a jury of first-degree felony murder and received a hard 25 sentence. On appeal, he challenges the sufficiency of the evidence used to convict him; claims the district court erroneously admitted gang evidence; argues his jury instructions impermissibly expanded the charge against him; and suggests cumulative error denied him a fair trial. We find no error and affirm his conviction.

FACTS AND PROCEDURAL BACKGROUND

Erick Vazquez was shot to death as he sat inside his gray Nissan truck in the parking lot of a strip mall in Wichita on June 17, 2017. He was an innocent victim caught in cross-fire between two rival gangs. Jeremy D. Levy was a member of the Folk Gangster Disciples, while three individuals—including KeAndre Summers—were members of the Piru Blood gang. Levy had been getting a haircut at the barbershop in the strip mall when he saw the three Piru Blood members sitting on the tailgate of a white Ford F-150 in the parking lot.

According to the barber, Levy became agitated and said that he did not "get along" with the group outside. After the haircut, Levy left the barbershop and the barber saw him turn right toward some shops further down the strip mall. At that point, the barber saw Summers pull a gun and heard shots ring out from the direction Levy had gone. Summers returned fire, and the three Piru Blood members crouched down using the F-150 as cover. A gun battle ensued until the three Piru Bloods were able to drive off in a white car. After the shooting, the barber went outside to render aid but did not see Levy.

Once police arrived, they found a parked Nissan truck with its engine revving at a high rpm and Vazquez unresponsive in the driver's seat with his foot on the gas. He was declared dead on the scene. Investigators recovered shell casings near the F-150's driver's side door, in the bed, and on the truck bed toolbox. Testing determined two firearms were used in the shooting. The State's theory at trial was that Levy and Summers engaged in a mutual gun battle and Vazquez was an unfortunate bystander. The State relied on eyewitness testimony to establish that both Levy and Summers participated in the gun fight. Levy and Summers were charged in separate criminal cases.

An officer with significant experience with Wichita gangs—Detective Sage Hemmert—testified generally about Wichita gangs and to the rivalries between the Bloods and the Gangster Disciples, or "GD's." According to Detective Hemmert, this feud began in 2008. Detective Hemmert confirmed that Summers and the others with him were "Piru Blood" gang members and identified Levy as a Gangster Disciple. He explained a music video posted to social media intensified tensions. The video, which featured Summers, was filmed by a Piru Blood and included lyrics about "shooting people in the face and the head" and included "several lyrics about sending people to the cemetery"—directed at the GDs.

The State arrested Levy on July 8, 2017, and charged him with felony murder with the underlying felony of criminal discharge of a firearm at an occupied vehicle. At trial, Levy focused on the State's lack of direct forensic evidence tying him to the shooting and attacked Detective Hemmert's gang theory as motivation for the shooting. A jury convicted Levy of first-degree felony murder and Levy received a hard 25 sentence. He directly appeals.

DISCUSSION

On appeal, Levy raises four instances of error. First, he challenges the sufficiency of the evidence used to convict him. Second, he asserts the district court erred when it permitted Detective Hemmert's gang evidence testimony. Third, he alleges the district court impermissibly "broadened the charge" against him. Fourth, he claims cumulative error denied him a fair trial. Finding no error, we affirm the district court.

Sufficiency of the Evidence

Levy first attacks his felony-murder conviction by challenging the sufficiency of the evidence to support the underlying crime of criminal discharge of a firearm at an occupied vehicle.

" ‘When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.’ " State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

"Felony murder is the killing of a human being committed ‘in the commission of, attempt to commit, or flight from an inherently dangerous felony.’ " State v. Potts , 304 Kan. 687, 694, 374 P.3d 639 (2016). "Criminal discharge of a firearm is the ... [r]eckless and unauthorized discharge of any firearm ... at a motor vehicle ... in which there is a human being whether the person discharging the firearm knows or has reason to know that there is a human being present." K.S.A. 2020 Supp. 21-6308(a)(1)(B).

Levy claims that the evidence at trial only showed he intended to fire at Summers, not at an occupied vehicle. He then argues this evidence is legally insufficient to support a conclusion that he was committing the underlying felony. We begin by assuming Levy's interpretation of what the evidence at trial showed—i.e., that he only intended to shoot Summers—and address his argument concerning legal sufficiency.

Levy acknowledges our decision in State v. Farmer , 285 Kan. 541, 175 P.3d 221 (2008), is likely fatal to his position. But he urges us to reconsider Farmer and adopt the rationale expressed by Justice Beier in her dissent. In that case we held that the previous iteration of our criminal discharge statute was not a specific intent crime. In other words, the State did not have to prove that the shooter both intended to discharge a firearm and that the shooter intended to shoot the vehicle (as opposed to some other target). We held:

"The statute was designed to cover situations where there are difficulties in proving the shooter's intent. According to Farmer's, and the dissent's, interpretation of the criminal discharge statute, there cannot be any evidence of intent to shoot at anything other than the occupied vehicle or building itself. In other words, there must be a complete absence of intent to hit an occupant of an occupied vehicle or building for the statute to apply. Such a construction eviscerates the criminal discharge statute by putting the focus right back on the shooter's intent, thus making it unavailable in the very situations it was designed to cover-situations where proof of intent to injure or kill is problematic." 285 Kan. at 546-47 .

Justice Beier dissented and focused on the statutory language " ‘at [a] ... motor vehicle.’ " 285 Kan. at 556, 175 P.3d 221 (Beier, J., concurring in part and dissenting in part). She concluded this phrase was not ambiguous and incorporated a specific intent element into the crime. In other words, proving a specific intent to shoot at the vehicle itself, rather than some other target, was a necessary element of the crime of criminal discharge. As Justice Beier wrote:

"[T]here is zero evidence that Farmer shot at the vehicle in which DeAundrey Neal happened to be sitting rather than at Neal himself....

....

"... The phrase, ‘at [a] ... motor vehicle,’ does not look or sound ambiguous to me. Shooting at a motor vehicle is one thing; shooting at a person is something else. Regardless of whether the State's or the defendant's version of events is relied upon here, Farmer shot only at Neal." 285 Kan. at 556 (Beier, J., concurring in part and dissenting in part).

Levy now relies on the rationale of the Farmer dissent to claim that because the evidence showed he only intended to shoot at Summers, not at Vazquez' truck, he could not have committed the underlying felony of criminal discharge. We decline Levy's invitation to revisit our Farmer holding. In Kansas, the crime of criminal discharge does not require a specific intent to shoot "at a motor vehicle" as opposed to at some other target—whether that target is inside the vehicle, hiding behind the vehicle, or only nearby the vehicle. This conclusion is further supported by the legislative amendments to the criminal discharge statute altering the necessary state of mind to "reckless." Compare K.S.A. 2006 Supp. 21-4219(b) (criminalizing "the malicious, intentional and unauthorized discharge of a firearm") with K.S.A. 2020 Supp. 21-6308(a)(1)(b) (changing the mens rea to "reckless"). Putting all this together, a person has committed the crime of criminal discharge under K.S.A. 2020 Supp. 21-6308(a)(1)(B) if: (1) that person recklessly and without authorization discharges a firearm; (2) that discharge was "at a motor vehicle" independent of the shooter's intended target; and (3) a person was inside the vehicle.

Even under Levy's interpretation of the evidence produced at trial, that evidence was legally sufficient to support the jury's determination that Levy committed the underlying felony of criminal discharge.

The district court did not abuse its discretion when it admitted Detective Hemmert's testimony.

At trial, Levy objected to the district court's admission of Detective Hemmert's testimony concerning gang "warfare" in Wichita and Levy's gang affiliation. Levy contends the evidence showed Summers' and Levy's feud was personal—not gang related—and that Detective Hemmert's testimony prejudicially played on the jury's fear of gangs. Levy essentially claimed Detective Hemmert's gang...