State v. Pfannenstiel

• Decision Date: 25 September 2015
• Docket Number: 107,987.
• Citation: 357 P.3d 877,302 Kan. 747
• Parties: STATE of Kansas, Appellee, v. Ryan C. PFANNENSTIEL, Appellant.
• Court: Kansas Supreme Court

302 Kan. 747

357 P.3d 877

STATE of Kansas, Appellee

v.Ryan C. PFANNENSTIEL, Appellant.

107,987.

Supreme Court of Kansas.

Sept. 25, 2015.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Scott L. Anderson, legal intern of the same office, was with him on the brief for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Evan C. Watson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

Opinion

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

After a jury convicted Ryan C. Pfannenstiel of aggravated sexual battery, he raises two issues on appeal. First, he argues the district court should have given a lesser included offense instruction allowing the jury to consider sexual battery. Because Pfannenstiel did not request the instruction, we will reverse only for clear error, and Pfannenstiel fails to firmly convince us that the jury would have reached a different verdict if the lesser included offense instruction regarding sexual battery had been given. Second, Pfannenstiel argues the district court erred in failing to appoint new, conflict-free counsel during a hearing on his motion to dismiss trial counsel. We hold that Pfannenstiel failed to establish a right to new counsel.

Consequently, we affirm Pfannenstiel's conviction.

Factual and Procedural Background

Pfannenstiel's conviction arose from a complaint made by C.W. According to statements made to investigating officers, on September 21, 2011, C.W. visited a bar and grill in Conway Springs with her parents, a family friend, and her boyfriend. Shortly before she left the bar for the evening, she smoked on the patio and then went back into the bar. As she stepped in, she shook hands with an acquaintance who was an employee of a carnival that was in town. Pfannenstiel, who also worked for the carnival, stood nearby. He and C.W. also shook hands, and Pfannenstiel said something like, “ ‘Yeah, you live next to us,’ ” or, “ ‘Hello, neighbor.’ ” C.W. found it “creepy” that Pfannenstiel knew they were neighbors.

C.W. told investigators that she and her boyfriend went to their apartment around 10:15 p.m. She prepared something for her boyfriend to eat and then fell asleep in her bed. Sometime that night, she sensed the bed moving and felt a couple of brushes against her arm followed by “a moisture feeling” and a sucking sensation on her arm. She opened her eyes to find a man kneeling next to her bed. C.W. immediately elbowed the man and yelled to her boyfriend that there was someone in the apartment. Her boyfriend chased the man out of the apartment while C.W. called the police.

The police later located Pfannenstiel, who matched C.W.'s description of her assailant. Pfannenstiel told officers C.W. had invited him over. He indicated that when the bar closed he went to her house, crawled through her window, and whispered, “ ‘I'm here.’ ”

That evening, police swabbed the area of C.W.'s arm where she had felt the moist, sucking sensation. They swabbed the same area the next day. Analysts obtained a DNA mixture from at least two individuals on both swabs, and both swabs revealed a major DNA profile that matched a known sample taken from Pfannenstiel.

The State charged Pfannenstiel with aggravated sexual battery and aggravated burglary. At trial, he testified that he was hanging out at the bar with some friends when he was introduced to and shook hands with C.W. After that, he went outside to smoke a cigarette. When he came back inside, she engaged him in conversation. She said she had seen him walk past her apartment the day before and that her apartment was the one with the windows open. He explained that the carnival trailers were on the same street as her apartment and he had noticed that her windows had been open for 3 days. She invited him to come over to her apartment “ ‘a little later.’ ” He jokingly said, “ ‘If the door—you don't come to the door, I can come through the window.’ ” She replied, “ ‘Yes[,] you can.’ ” He told her he would come by a little later.

Pfannenstiel said he left the bar and went back to his trailer for about 2 hours. He recalled C.W. inviting him over, so he went to her apartment and knocked on the door. When C.W. did not answer, he went through the living room window and into her bedroom. He touched her arm and whispered, “ ‘I'm here. Wake up.’ ” She woke up, hit him in the mouth with her elbow, and screamed for her boyfriend who chased him out of the apartment. He denied kissing, sucking, or licking C.W.'s arm. He recalled that she had a blanket halfway over her but could not recall if his skin touched her skin.

He testified her arm “most likely” was covered when she hit him in the mouth.

C.W. testified that she denied telling Pfannenstiel where she lived, asking him to come over, or telling him to come through her window. She also described being asleep and not opening her eyes until after she felt the moist, sucking sensation. When specifically asked if she was unconscious, C.W. replied, “I was asleep.”

The jury acquitted Pfannenstiel of aggravated burglary but found him guilty of aggravated sexual battery. Nine days later, he filed a pro se motion to dismiss counsel due to ineffective assistance. As discussed more fully below, the district court took up the matter prior to sentencing. The court questioned Pfannenstiel and defense counsel about the allegations and allowed the State to respond. The district court denied Pfannenstiel's motion, and defense counsel then proceeded to represent Pfannenstiel on a motion for acquittal and at sentencing. The district court denied the motion for acquittal and sentenced Pfannenstiel to 34 months' imprisonment.

Pfannenstiel appealed, arguing the district court should have instructed the jury on the lesser included offense of sexual battery and that he should have been appointed conflict-free counsel at the hearing on his pro se motion to dismiss counsel. The Court of Appeals affirmed in State v. Pfannenstiel, No. 107,987, ––– Kan.App.2d ––––, 2013 WL 1876462 (Kan.App.2013) (unpublished opinion). This court granted Pfannenstiel's petition for review on the same issues.

Analysis

Issue 1:The District Court Did Not Commit Clear Error by Failing to Give the Lesser Included Offense Instruction.

In Pfannenstiel's first argument, he contends the district court committed clear error by failing to instruct the jury on the lesser included offense of sexual battery. Under K.S.A. 2014 Supp. 21–5505(a), “[s]exual battery is the touching of a victim who is not the spouse of the offender, who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.” To prove aggravated sexual battery as charged in this case, the State was required to prove those same elements, except for the spousal relationship, plus show that the victim was “unconscious or physically powerless” when the touching occurred. K.S.A. 2014 Supp. 21–5505(b)(2). Pfannenstiel argues the jury could have found him guilty of the lesser offense because the evidence, at best, only vaguely suggested that C.W. was unconscious at the time of the incident, and thus the evidence did not conclusively show aggravated sexual battery.

1.1. Standard of review explained

When analyzing jury instruction issues, we follow a three-step process:

“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.” State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).

Our first and third steps are interrelated in that whether a party has preserved a jury instruction issue will affect our reversibility inquiry at the third step. See, e.g., State v. Briseno, 299 Kan. 877, 882, 326 P.3d 1074 (2014) (describing a “higher hill for a party that fails to request an instruction”); Williams, 295 Kan. at 515–16, 286 P.3d 195 ; see also K.S.A. 2014 Supp. 22–3414(3) (“No party may assign as error the giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict ... unless the instruction or the failure to give an instruction is clearly erroneous.”). Here, Pfannenstiel did not request the lesser included offense instruction. Hence, Pfannenstiel must establish clear error. K.S.A. 2014 Supp. 22–3414(3).

At the second step of determining whether there was any error at all, we “ ‘consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ ” State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 ); see also State v. Plummer, 295 Kan. 156, 160–63, 283 P.3d 202 (2012) (utilizing a four-step review of jury instructions, in which the second and third steps ask whether any error occurred, first from a legal standpoint and then from a factual one).

Finally, because Pfannenstiel did not request the instruction, even if we determine that the district court erred in failing to give the lesser included offense instruction we will not reverse the verdict unless Pfannenstiel convinces us that the district court committed clear error. To find clear error, we must be “firmly convinced that the jury would have reached a different verdict if the instruction had been given.” State v. Cameron, 300 Kan. 384, 389, 329 P.3d 1158, cert. denied ––– U.S. ––––, 135 S.ct. 728, 190 L.ed.2d 455 (2014).

1.2. Failure to give lesser included offense instruction was not clear error

We agree with Pfannenstiel that sexual battery is a lesser included offense of aggravated sexual battery. K.S.A. 2014 Supp. 21–5109(b)(1) defines a lesser included offense as one that is a ...