State v. Pondexter

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER
• Citation: State v. Pondexter, 671 P.2d 539, 234 Kan. 208 (Kan. 1983)
• Decision Date: 21 October 1983
• Docket Number: No. 55146,55146
• Parties: STATE of Kansas, Appellee, v. Henry D. PONDEXTER, Appellant.

Page 539

671 P.2d 539

234 Kan. 208

STATE of Kansas, Appellee, v. Henry D. PONDEXTER, Appellant.

No. 55146.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt?

2. In considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction must stand.

3. A "properly identified" law enforcement officer under K.S.A. 21-3411 is one who has been identified in such a manner to the defendant that he reasonably should know him to be a law enforcement officer.

4. The possession of a firearm prohibited by K.S.A. 21-4204 is not the innocent handling of the weapon, but a willful or knowing possession of a firearm with the intent to control the use and management thereof.

5. The possession and use of a firearm in self-defense is not in itself a defense to the charge of unlawful possession of a firearm under K.S.A. 21-4204; rather, it is the nature and degree of the possession which may furnish a defense to the charge.

6. Under K.S.A. 22-3202 and 22-3203, when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are sufficiently "connected together" to allow consolidation for trial.

Richard L. Hilton, Wichita, argued the cause and was on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on brief, for appellee.

SCHROEDER, Chief Justice:

This is a criminal action in which Henry D. Pondexter (defendant-appellant) appeals a jury verdict finding him guilty of aggravated assault of a law enforcement officer (K.S.A. 21-3411), unlawful possession of a firearm (K.S.A. 21-4204), burglary (K.S.A. 21-3715) and attempted murder (K.S.A. 21-3301, 21-3401). The appellant contends the evidence was insufficient to support the verdict on each count and the trial court erred in consolidating the charges for trial.

On October 22, 1981, two Wichita undercover police officers, Randy Mullikin and Richard Mouser, while patrolling in an unmarked car, observed the appellant and another man riding in a car exchanging what appeared to be a marijuana cigarette. The other car was driven by the appellant. At a stoplight the officers asked the two men if they knew where they could buy some marijuana. The men indicated the officers should follow them to a nearby parking lot. There the passenger in the car, Terry Ross, informed the officers he knew where he could purchase some marijuana for them and told the officers to follow him to another location. At the second location Ross approached the officers' vehicle and asked for ten dollars with which to purchase the marijuana. The officers suggested the appellant sit in their car until Ross returned. The appellant sat in the front seat of the car with Officer Mullikin, while Officer Mouser sat in the back seat behind the appellant.

Ross went into an apartment across the street from where the vehicles were parked. After several minutes elapsed the appellant suggested they honk the horn. Ross still did not appear. The appellant then suggested one of the officers go to the apartment to find out where Ross was. At this time Mouser signaled to Mullikin that they should arrest the appellant. Mouser asked the appellant to lean forward so he could push the seat forward and get out of the car. The officers both testified Mouser got out of the vehicle, showed the appellant his handcuffs, advised him they were Wichita police officer and that he was under arrest. The appellant was told to place both hands on the dashboard so he could be handcuffed, removed from the vehicle and searched for weapons. The appellant placed his left hand on the dashboard but kept his right hand near his waist. Officer Mouser grabbed the appellant's right wrist and placed his hand on the dashboard, again advising the appellant they were police officers. Officer Mullikin testified that he also advised the appellant they were police officers. At this time the appellant made a sudden gesture with his right hand toward his waist and lunged his shoulder into Officer Mouser. Mullikin warned Mouser the appellant had pulled a gun. Mouser pulled the appellant from the car and subdued him after a struggle on the ground. At this time Ross came out of the apartment and asked what was going on. The appellant told him, "They're cops." Ross went back into the apartment and reemerged carrying the ten dollars. He was then placed under arrest.

The appellant was charged with aggravated assault on a law enforcement officer and unlawful possession of a firearm. These charges were originally filed as misdemeanors in the municipal court but were later dismissed and refiled as felonies in the district court. The appellant failed to appear when his case was called for trial on March 22, 1982, having apparently fled from the courthouse after a hearing earlier that day on a motion to continue. The trial court ordered forfeiture of the appearance bond and issued a warrant for the appellant's arrest.

On April 2, 1982, Officer Mullikin returned to his home from work around 1:30 a.m. While reaching to close a door to his garage which he noticed had been left partially open, someone from inside the garage shot at Officer Mullikin's face, causing powder burns to his face and left eye. Another shot was fired as Mullikin ran from the garage and around to the front of the house. He heard what sounded like someone climbing over his neighbor's fence and then saw a man running down the street. The man fired at Mullikin three more times when Mullikin ordered him to stop. Mullikin returned three shots from his service revolver. Officer Mullikin described his assailant as a black male, 5'7"' to 5'9"' in height and weighing 160 to 170 pounds, with an afro-style hair cut. While in pursuit of the man Mullikin heard a car door slam and an engine start up. He then saw a vehicle with two round red tail lights on each side pull away from the curb and turn the corner. The engine was loud and sounded as if the muffler was worn out. Mullikin could not tell what type of vehicle it was. Two people living in the area near Officer Mullikin testified they saw a dark-colored flatbed truck with a loud engine traveling in the area at a high rate of speed shortly after the shots were heard. The next day bullet fragments from .22- and .38-caliber weapons were recovered from the area.

A reward was offered by Crimestoppers in Wichita for information concerning the attempted shooting of Officer Mullikin. A few days later Terry Ross contacted Crimestoppers and gave a statement implicating the appellant. He testified he had several conversations with the appellant about killing Officers Mullikin and Mouser to prevent them from testifying at trial on the pending charges. Ross testified the appellant offered to pay him $2500 for helping to kill the officers. During this time Ross saw the appellant in possession of several guns, including a .22-caliber revolver and other handguns.

A week or two prior to the March trial date the appellant picked Ross up in his truck and showed him where Mullikin's house was. They had guns with them and discussed what strategy to use to kill Mullikin. They tired of waiting for Mullikin to return home, however, and abandoned their mission. A few days later the appellant asked to borrow a ski mask from Ross and said he was going back to Mullikin's house. Sometime later Ross learned of the attempted shooting of Officer Mullikin through the news media.

It was established that the appellant owned a 1959 flatbed truck which was being kept on his uncle's property in order to be repaired at the time the attempt was made to shoot Officer Mullikin. The appellant's uncle testified he had the only key to the truck and to the best of his knowledge the truck was parked at his house the night in question. He further testified the truck was operable but could not be driven far without overheating. This was the truck driven by the appellant the night he and Ross unsuccessfully waited for Officer Mullikin to return home in order to kill him. Ross testified the truck could be driven although there was a small hole in the radiator.

The appellant was subsequently arrested and charged with attempted murder and burglary. This case was consolidated for trial with the action pending against the appellant for the charges arising out of his arrest in October. Ross received a $2500 reward from Crimestoppers for his information and was granted immunity from prosecution for his involvement in the crimes in exchange for his testimony against the appellant.

The appellant first challenges the sufficiency of the evidence to support his conviction of each offense. It is well established in this state that in a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? Also, in considering the sufficiency of evidence to sustain a conviction, this court looks only to the evidence in favor of the verdict, it does not weigh the evidence and if the essential elements of the charge are sustained by any competent evidence the conviction must stand. See State v. People, 227 Kan. 127, 133, 605 P.2d 135 (1980). See also State v....