State v. Owens

• Decision Date: 15 October 2021
• Docket Number: No. 120,753,120,753
• Citation: 496 P.3d 902
• Parties: STATE of Kansas, Appellee, v. Dane OWENS, Appellant.
• Court: Kansas Supreme Court

496 P.3d 902

STATE of Kansas, Appellee,
v.
Dane OWENS, Appellant.

No. 120,753

Supreme Court of Kansas.

Opinion filed October 15, 2021.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

496 P.3d 908

A jury convicted Dane Owens of first-degree felony murder and aggravated burglary in connection with the shooting death of his ex-girlfriend, Rowena Irani. Owens appeals, arguing that multiple evidentiary, trial, and prosecutorial errors require reversal of his convictions.

However, upon thorough examination of the record and briefing, we determine that only two potential errors occurred during the proceedings. First, the prosecutor committed error by referring to a fact not in evidence during closing argument. But this error primarily affected Owens’ defense to first-degree, premeditated murder, and the jury acquitted Owens of this offense. This fact, along with other circumstances, demonstrate the prosecutorial error was harmless.

Second, we presume, without deciding, that the State's failure to disclose the findings of its pseudo-expert witness before trial constituted a fundamental failure in the proceedings. However, the presumed error did not inhibit Owens’ defense, and the trial court implemented ameliorative measures to mitigate potential prejudice, which made it possible to proceed with the trial without injustice. Thus, the record confirms the district court did not abuse its discretion in denying Owens’ motion for mistrial.

These two errors were not interrelated in a way that amplified their prejudicial force when viewed together. Whether viewed independently or in the aggregate, these errors did not deprive Owens of a fair trial.

As for Owens’ sentence, the district court's restitution order does implicate section 5 of the Kansas Constitution Bill of Rights under the current statutory scheme. Several statutory provisions serve to convert a district court's restitution order, in which a judge determines the damages proximately caused by the criminal act, into a civil judgment. Through this process, the statutes bypass the traditional function of Kansas juries to determine civil damages. However, based on our holding in State v. Arnett , 314 Kan. ––––, 496 P.3d 928 (No. 112,572, this day decided), the constitutional infirmity is cured by severing the offending statutory provisions. By severing these provisions, Owens will not be subject to a civil judgment for his criminal restitution order, unless it is obtained separately through a civil cause of action. Accordingly, the district court's restitution order satisfies constitutional requirements.

For these reasons, we affirm Owens’ convictions and restitution order.

FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 2016, Owens entered the home of his ex-girlfriend Rowena and fired a single bullet, killing Rowena. Police arrested Owens the same day and charged him with premeditated first-degree murder—or felony murder in the alternative—as well as aggravated burglary.

Pretrial Evidentiary Issues

Before trial, the State moved to determine the admissibility of hearsay statements by Rowena. The State sought to introduce testimony from Rowena's brother, Rooshad Irani, about statements Rowena had made to him—both in person and via text message—concerning her relationship and breakup with Owens.

Specifically, the State sought to admit Rooshad's testimony that Rowena told him that Owens said he had "dug a hole" for an ex-girlfriend after she broke up with him. The State argued this evidence was relevant in establishing Rowena's state of mind at the

496 P.3d 909

time of the shooting. Owens opposed the admission of this "dug a hole" testimony on several grounds. The district judge found the statements admissible under K.S.A. 2020 Supp. 60-460(d), the contemporaneous statement hearsay exception, because they went to Rowena's state of mind and the fact that Owens would not have been welcome in her home. The district judge recommended a limiting instruction.

The State also sought to admit the following text messages between Rowena and Rooshad:

Sender	Message Content
Rooshad	"You and dane working a few things out?"
"His fb popped up as complicated relationship."
Rowena	"lord"
"he called yesterday saying he wanted to work it out and to give him a chance all that i told him to give me some time to think"
"mom texted me saying she had a strong feeling he was going to physically abuse me if i went back"

496 P.3d 910

Sender	Message Content
Rooshad	"Ok? Bas? That's it?"
Rowena	"mhm"
Rooshad	"Kk"
"Was it a decent convo or was he being an ass"
Rowena	"it was alright i guess he just kept trying to justify everything"
"saying i need to trust him and let things flow and that he's not telling me to give anything up"
"my thing like why go back and then have the same feelings in a month"
Rooshad	"Yup"
"Don't do it"
Rowena	"i have therapy tomorrow so i'm kinda just waiting to talk to him about it"
Rooshad:	"Just leave it alone and when he asks tell him you thought long and hard and decided it's best for you 2 to go your separate ways"
"Do I need to intervene?"
Rowena	"no"
"not yet anyway"
Rooshad	"K"
Rowena	"what's the worse that'll happen hell take a rifle and shoot me [emoji smiling with bead of sweat on forehead]"
Rooshad	"Shut up"

496 P.3d 911

Sender	Message Content
Rowena	[three emojis smiling with beads of sweat on foreheads]
Rooshad	[sends a screenshot of texts Owens sent him asking about Rowena]
Rowena	"story of my life"
Rooshad	"Yup"
Rowena	"getting on my fuckin nerves"
Rooshad	"Yup"
Rowen

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