State v. Moody
| Decision Date | 28 April 2006 |
| Docket Number | No. 93,084.,93,084. |
| Citation | 132 P.3d 985 |
| Parties | STATE of Kansas, Appellee, v. Nicholas MOODY, Appellant. |
| Court | Kansas Court of Appeals |
Steven D. Rosel, of Topeka, for appellant.
Don L. Scott, county attorney, and Phill Kline, attorney general, for appellee.
Before MALONE, P.J., GREEN and BUSER, JJ.
After a jury trial, Nicholas Moody was convicted of attempted first-degree murder, conspiracy to commit first-degree murder, aggravated intimidation of a witness, and conspiracy to commit aggravated intimidation of a witness. The court sentenced Moody to 155 months' imprisonment for attempted first-degree murder. It also sentenced Moody to concurrent sentences of 117 months for conspiracy to commit first-degree murder, 18 months for aggravated intimidation of a witness, and 8 months for conspiracy to commit aggravated intimidation of a witness. Moody timely appealed.
While on appeal, Moody moved this court to remand his case to the district court for a hearing regarding ineffective assistance of trial counsel. Moody alleged that his trial counsel was ineffective because he failed to: (1) present a video taped statement of Travis Kohn, a State witness, to impeach the witness; (2) object to hearsay evidence presented by Gary Woodard's trial testimony; (3) interview or subpoena Isaac Rodriguez who could have testified on Moody's behalf; and (4) call an expert witness to testify about the effects of drug abuse on memory recall. In January 2005, this court remanded Moody's case to the district court under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), for a determination regarding his claims of ineffective assistance of trial counsel.
Following an evidentiary hearing, the district court held that Moody's trial counsel was effective and denied Moody's request for a new trial. The central issue on appeal is whether the evidence was sufficient to sustain Moody's convictions. We determine that the evidence was sufficient for a factfinder to conclude that Moody was guilty beyond a reasonable doubt of the charges. In addition, Moody contends that the trial court abused its discretion in determining that Moody's trial counsel was effective. We disagree. Moody further asserts that his convictions for conspiracy to commit first-degree murder and conspiracy to commit aggravated intimidation of a witness were multiplicitous. We disagree. Finally, Moody maintains that his convictions for attempted first-degree murder and aggravated intimidation of a witness were multiplicitous. We disagree. Accordingly, we affirm.
Moody asserts that the trial evidence was insufficient to support his convictions. Moody presumably argues that the evidence was insufficient to support all of his convictions as he has failed to specify any single conviction. The State argues that the evidence was clearly sufficient to show Moody acted knowingly and intentionally but does not discuss the evidence supporting the convictions.
State v. Calvin, 279 Kan. 193, 198, 105 P.3d 710 (2005).
A conviction may be sustained only upon evidence where every element of a crime is proven beyond a reasonable doubt. State v. Star, 27 Kan.App.2d 930, 934, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004).
Moody essentially challenges the credibility of certain witnesses. He simply contends that the admitted drug usage and resulting memory difficulties of "key witnesses" raises questions as to the sufficiency of the evidence. Nevertheless, questions of credibility are solely the province of the jury. See State v. Bledsoe, 272 Kan. 1350, 1359, 39 P.3d 38 (2002). In reviewing the evidence for sufficiency, an appellate court cannot weigh the evidence or pass on the credibility of witnesses. State v. Mays, 277 Kan. 359, 363, 85 P.3d 1208 (2004). Thus, we decline Moody's invitation to reweigh the evidence or reassess the credibility of witnesses.
The evidence presented at trial was sufficient for a rational factfinder to have found Moody guilty beyond a reasonable doubt. The evidence established that on October 18, 2002, Kohn, Josh Talbert, and Woodard traveled from Colorado Springs, Colorado, to Ulysses, Kansas, to visit Talbert's friend, Rodriguez.
According to Kohn, before they left Colorado, Talbert mentioned that Rodriguez wanted someone to kill Eric Pike. Therefore, Kohn decided to take two guns with him to Ulysses. Kohn stated that on October 19, 2002, Rodriguez asked him to kill Pike. Rodriguez and Kohn were alone when this conversation occurred. Kohn testified that Rodriguez wanted Pike killed because Pike was scheduled to testify against Rodriguez at a trial on charges of armed robbery. After Kohn agreed to kill Pike, Rodriguez took Kohn to Moody's house in Ulysses.
Kohn testified that Moody drove him to Liberal three times with the intent to kill Pike. Moody and Kohn were the only individuals involved in the plan who made the trips to Liberal. Kohn and Woodard testified that Moody drove Kohn to Liberal knowing that Kohn planned to kill Pike. Kohn testified that he got scared on the first two trips to Liberal and did not go through with the crime. On the way back to Ulysses after the first trip to Pike's house, Moody and Kohn discussed where Kohn could meet Moody after Kohn killed Pike. According to Kohn, Moody called Rodriguez on both return trips from Liberal. After the second trip to Liberal, Moody and Kohn returned to Moody's house. There, Rodriguez beat Kohn and told him that he would kill Kohn's girlfriend and Kohn's parents if Kohn did not kill Pike.
On October 21, 2002, Moody again drove Kohn to Pike's residence in Liberal. Rodriguez warned Kohn that Moody would be armed and would shoot him if he acted nervous. Moody kept his hand on a revolver in his lap the entire trip to Liberal. Kohn stated that he believed that Moody would shoot him if he did not kill Pike. When they got to Liberal, Moody told Kohn to load the gun stashed in the glove compartment and told Kohn that "after [he] did it, just run down that direction like hell and [Moody] would be there waiting." Moody dropped Kohn off at Pike's house. Kohn's attempt to kill Pike, however, was unsuccessful. Kohn knocked on Pike's door and pointed a gun at Pike's head when he opened the door. Kohn, however, stated that he had stuffed debris in the gun so it would misfire, but also denied ever pulling the trigger. After this, Kohn ran to meet Moody, but he was gone. Kohn was later arrested.
Woodard testified that at some point during the weekend, Rodriguez told him that Moody had called and told him that there were so many police officers around Pike's house that Kohn could not "get to him." He also testified that on October 21, Rodriguez had told him that Moody had driven Kohn to Liberal so Kohn could kill Pike. Woodard stated that later that night, Moody showed up at Rodriguez' house "freaking out" because he had left Kohn in Liberal. According to Woodard, Moody said he heard two gunshots, saw two police cars, got scared, and then drove off and left Kohn. Moody's girlfriend, Ashley Colbert, testified that Moody called her the night of the incident and told her to go to his mother's house because something bad was likely to happen.
Pike testified that Kohn attempted to fire the gun, but it malfunctioned. The police officer who found Kohn's gun also testified that one of the rounds in the gun had an indentation off to one side but near the primer, indicating a misfire. Police Officer Delton Brown, who interviewed Moody after his arrest, testified that although Moody admitted driving Kohn to Liberal, Moody stated that he had not known Kohn's reason for going to Liberal.
Kohn admitted that he, Talbert, and Woodard had used a lot of drugs during the days preceding the attempted murder. Kohn stated that he had been high frequently on drugs over a period of 8 months before the incident. Kohn conceded that this drug usage had affected his long-term memory and his methamphetamine usage had definitely affected his memory. Woodard also admitted that he had been up for 7 days straight while using drugs before October 21.
Moody testified that Rodriguez had asked him to take Kohn to Liberal to pick up a car loaded with marijuana. Moody stated that he took Kohn to Liberal once on Saturday, but Rodriguez called on the way there and stated that the car was not ready. On October 21, Rodriguez told Moody that the car was ready. Hence, Moody drove Kohn to Liberal, dropped him off, and drove back to Ulysses.
To prove that Moody had committed the crime of attempted first-degree murder, the State was required to prove (1) that Moody performed an overt act toward the commission of first-degree murder-an intentional and premeditated killing; (2) that he did so with the intent to commit first-degree murder; (3) that Moody failed to complete the commission of this crime; and (4) that this act occurred on or about October 21, 2002, in Seward County, Kansas. See K.S.A. 21-3301; K.S.A. 21-3401; PIK Crim.3d 55.01; PIK Crim.3d 56.01.
A person who intentionally aids and abets another in the commission of a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime. K.S.A. 21-3205(1); State v. Dunn, 243 Kan....
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