State v. Perez-Medina, 114,589

• Decision Date: 06 September 2019
• Docket Number: No. 114,589,114,589
• Citation: 448 P.3d 446
• Parties: STATE of Kansas, Appellee, v. Giosbel PEREZ-MEDINA, Appellant.
• Court: Kansas Supreme Court

448 P.3d 446

STATE of Kansas, Appellee,

v.Giosbel PEREZ-MEDINA, Appellant.

No. 114,589

Supreme Court of Kansas.

Opinion filed September 6, 2019.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Kathleen Neff, assistant county attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

Per Curiam:

Defendant Giosbel Perez-Medina was convicted by a jury of aggravated battery for knowingly causing great bodily harm or disfigurement to Ivan Valcarcel-Arias by using a knife to cut Valcarcel-Arias' face. This case requires us to rule on the propriety of jury instructions on lesser included offenses based on a reckless rather than a knowing state of mind and on the sentencing judge's imposition of a registration requirement under the Kansas Offender Registration Act (KORA), K.S.A. 2018 Supp. 22-4901 et seq.

We ultimately reject Perez-Medina's arguments, and we affirm his conviction and registration requirement.

FACTUAL AND PROCEDURAL BACKGROUND

Perez-Medina and his wife, Yusimi Cabeza, hosted a gathering of friends and acquaintances at their home. The group included several women and four men: Perez-Medina, Valcarcel-Arias, Rowver Abreau, and Orlando Pedroso.

Valcarcel-Arias had not been invited to the party but stopped by to speak to Perez-Medina. The men were not present when Valcarcel-Arias first arrived, and Cabeza told him Perez-Medina would return in about 10 minutes. After the men returned to the house, all four of them left the party together to get beer and ice.

When they returned, all of the men other than Perez-Medina stood outside drinking beer and eating pork ribs, while the women were inside cooking. Perez-Medina spent time with both the men and the women.

The party ended abruptly when Valcarcel-Arias received a deep knife cut to his cheek. At the time, Abreau was sitting on the porch rail; Perez-Medina was standing next to him; and Valcarcel-Arias was standing at the foot of the stairs. Pedroso was standing near the porch as well.

The manner in which Valcarcel-Arias was cut would be disputed at Perez-Medina's trial.

Valcarcel-Arias alleged that Perez-Medina grabbed him from behind and then cut his cheek. Several witnesses would later testify at trial that the two men had a friendly relationship and that there was no ongoing dispute or precipitating argument between them.

After Valcarcel-Arias was cut, Cabeza came outside. She and Abreau helped Perez-Medina, who was highly intoxicated, back into the house. Perez-Medina was holding a knife with blood on it and was bleeding from cuts on his own hands.

Valcarcel-Arias drove to Maribel Rodriguez' house so that she could go with him to the hospital. On the way to the hospital, the two stopped at a police station to report the incident. The cut on Valcarcel-Arias' face required about 12 stitches to close.

Dodge City police officers went to Perez-Medina's home to investigate. They found drops of blood on the front steps and around the front porch. Cabeza told a detective where she had hidden a knife, which led the police to recover a "blue in color knife with a silver handle on ends, like a pocket knife." Officers arrested Perez-Medina; one officer would later testify about Perez-Medina's extreme intoxication and resulting unavailability for immediate interview by law enforcement.

The State charged Perez-Medina with the aggravated battery of Valcarcel-Arias under K.S.A. 2014 Supp. 21-5413(b)(1)(A), which forbids knowingly causing great bodily harm or disfigurement to another person.

Before trial, the State submitted a set of proposed jury instructions. In addition to an instruction on the charged crime, the State included instructions for several lesser included crimes, including two types of reckless aggravated battery.

In the State's case-in-chief, Cabeza testified that when the group of men returned from getting beer and ice, Perez-Medina showed her a gift he had received. The "gift" was the knife police would eventually recover from the house. Cabeza did not know what Perez-Medina did with the knife when he went outside.

On cross-examination, Cabeza claimed that Valcarcel-Arias had told her "he had found out that ... there was a party, and ... was going to stay there because he so pleased." Cabeza did not ask him to leave; after talking to Valcarcel-Arias, she merely left him waiting outside the house. She "didn't want to discuss" his appearance without an invitation and "didn't want to tell him anything." She said that he expressed his intention to stay at the party "in a bad way."

Cabeza also testified that on the day of the party Valcarcel-Arias had a knife and Abreau had two knives. She did not know what had happened to Valcarcel-Arias' knife. Abreau's two knives were hidden in her home.

Rodriguez testified that she and Valcarcel-Arias were involved in a relationship, and she was unaware of any ongoing dispute between Valcarcel-Arias and Perez-Medina. After being cut, Valcarcel-Arias called her and said that he wanted her to go to the hospital with him "because [Perez-Medina] cut my face." At first, Rodriguez thought he was joking, but when he arrived he was covering his bleeding face. She said it looked like Valcarcel-Arias' face "had been separated, his cheek." Valcarcel-Arias told her "[h]e was surprised that [Perez-Medina] would do something like that to him."

During Abreau's testimony, the prosecutor showed him the knife that police had recovered from Perez-Medina's house. According to Abreau, "[t]hat was the knife of the problem." He claimed not to know who owned the knife, although he conceded that Perez-Medina had possession of it at the time Valcarcel-Arias was cut. When asked specifically whether Perez-Medina took "that knife and cut [Valcarcel-Arias'] face," Abreau shrugged his shoulders and said, "Yes." But he testified he had not seen the wound

being inflicted and only knew what had happened because he saw Valcarcel-Arias' face bleeding. Abreau also testified that he never heard Perez-Medina and Valcarcel-Arias arguing; there were not "any hard words or anger between" them.

Valcarcel-Arias' testimony ended the State's case-in-chief and opened the defense case.

While testifying for the State, Valcarcel-Arias described his relationship with Perez-Medina and Cabeza as a friendship. He said that there were no disagreements and that, as far as he knew, neither Perez-Medina nor Cabeza had a problem with him or had criticized him or his behavior.

Valcarcel-Arias admitted that he had not been invited to the party but said that Cabeza told him "to go ahead and wait [for the men to return], that it was only going to take 10 minutes." He did not feel unwelcome. According to Valcarcel-Arias, he was eventually expressly invited to stay and told to call Rodriguez and invite her as well.

According to Valcarcel-Arias, 10 to 15 minutes after the ribs were served Perez-Medina cut him. He said Perez-Medina attacked him from the back and cut his face. He had not seen a knife before he was cut. Valcarcel-Arias said he asked, " ‘What have you done? What have [you] done?’ And, then, that's when Rowver [Abreau] and Orlando [Pedroso] intervened, and they take him inside the house." Valcarcel-Arias further testified: "When he grabs me, and I feel the cut, I try to make defensive move to get away .... It's not that he let go of me. He was standing close to the other two men. He was still holding the knife, and then he was talking. I don't know what he said, but he was there."

Valcarcel-Arias also testified that he had not seen Perez-Medina receive the knife as a gift from Pedroso earlier in the day. He denied being upset that Pedroso had never thrown a party for him and given him a gift.

When Valcarcel-Arias was recalled to the witness stand by the defense, he was asked a series of questions designed to be answered yes or no. He denied acting inappropriately toward Cabeza, denied arguing with Perez-Medina, denied disparaging Perez-Medina, denied holding a knife and threatening to cut Perez-Medina, and denied that Perez-Medina had cut his hands while trying to defend himself from Valcarcel-Arias. During the State's following cross-examination, Valcarcel-Arias testified that none of the men other than Perez-Medina had a knife.

During the defense case, Cabeza also was recalled. She testified that Abreau had tried to hide two knives in her bedroom on the night of the incident. She found the knives a couple of days later but did not tell anyone about them until she disclosed them earlier on the day of her trial testimony. She also explained that Perez-Medina had a preexisting disability that made it difficult for him to grasp anything firmly in his right hand. Because of this disability, Perez-Medina had cut meat, for example, with his left hand. This testimony evidently was intended to undercut the State's theory that Perez-Medina was holding the knife in his right hand when he reached around from the back of Valcarcel-Arias and cut his face.

Abreau also testified again in the defense case. He said that he had been involved in a knife fight with Valcarcel-Arias and Perez-Medina on the day of the incident. Abreau was shown the two knives that Cabeza had found in her house and brought to counsel's and the court's attention earlier that day. Abreau said that the knives were his and that he had hid them in Perez-Medina and Cabeza's bedroom on the day of the incident.

After the parties rested and the jury was escorted from the courtroom, Judge Van Z. Hampton discussed the jury instructions with counsel. He already had a draft of instructions prepared earlier by his trial court colleague, Judge E. Leigh Hood, who had originally been assigned the case. This draft included the instructions the State had proposed.

Judge Hampton questioned "whether it is appropriate to include in the lesser included instruction, the aggravated battery with reckless...