State v. Richard
| Decision Date | 10 September 2021 |
| Docket Number | 121,450 |
| Parties | State of Kansas, Appellee, v. K'veion Darnell Richard, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge.
Kirsten B. Patty, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GARDNER and WARNER, JJ.
This case arises from a home invasion in southwest Wichita. Three armed invaders were met with like force from one of the residents who emptied the seven-shot magazine of his pistol. In the gun battle, each of the intruders was hit, and the resident suffered what turned out to be a comparatively minor leg wound. Another resident immediately called 911 to report the incident, and a third resident described the getaway car to the responding law enforcement officers as a dark colored sedan.
Within minutes of the call, a dark colored Cadillac sped up to the emergency room of a Wichita hospital, deposited three men at the entrance, and drove away. Exterior security cameras at the hospital recorded their arrival. Each of the three including Defendant K'veion Darnell Richard, had gunshot wounds. Richard had been shot in the face. In the emergency room, Richard offered investigating police officers conflicting accounts of how he had been shot and who brought him to the hospital.
The Sedgwick County District Attorney's office charged Richard with aggravated battery, aggravated burglary, two counts of aggravated assault, and two counts of criminal discharge of a firearm at an occupied dwelling. A jury heard evidence in the case in mid-November 2018. Richard did not testify during the trial. The jurors convicted him on all of the charges except aggravated battery; they could not reach a verdict on that charge. The district court later sentenced Richard to a controlling term of 56 months in prison for the aggravated burglary with a 36-month period of postrelease supervision, reflecting a midrange guidelines punishment. The district court imposed a guidelines sentence of 12 months in prison on each of the convictions for aggravated assault and criminal discharge of a firearm and ordered Richard to serve all four concurrently but consecutive to the 56-month sentence.
Richard has appealed and raises two issues: (1) the sufficiency of the evidence to support one of the convictions for criminal discharge of a firearm; and (2) the district court's decision to admit evidence of a trespass that occurred at the residence the night before the armed intrusion. As to the first, we find Richard's point well-taken and reverse that conviction. As to the second, we assume the district court erroneously admitted the evidence, but the error was harmless. Before we detail our analysis, we add some additional facts.
The armed incursion happened at a mobile home community on August 21, 2017, between 11 p.m. and midnight. The four occupants of the residence had retired for the night, so the mobile home was dark inside. Two adult men had their own bedrooms, and a newly married couple had the third bedroom closest to the front door of the residence. The single man with the rearmost bedroom remained there throughout the brief intrusion and gun battle. The other single man heard knocking at the door, and when he undid the latch, three men pushed their way in. When the husband and wife heard a commotion, he crossed the threshold of the bedroom and fired his pistol. His wife saw some of what happened.
Because the house was dark, none of the occupants could positively identify any of the intruders. They described the three as young Black men wearing hoodies and other dark clothing. One of the intruders carried a .22 caliber assault-style rifle one or both of the others had handguns. The residents believed Richard had the rifle, based on his general appearance and build.
The residents also believe one of the intruders fired the first shot, but everyone who was armed may have discharged a firearm inside the home. When the man with the rifle was shot, he dropped the gun and left it behind. The residents estimated the encounter lasted less than a minute. The occupant of the rear bedroom saw the gunmen flee and provided the general description of the getaway vehicle to the responding officers from the Wichita Police Department.
Crime scene investigators found five .45 caliber shell casings-from three manufacturers-outside the mobile home. They found two spent .22 caliber shell casings in the living room, and a third had jammed in the rifle. There were seven .45 caliber shell casings roughly at the bedroom door and a single .45 caliber casing in the living room area. The investigators identified what appeared to be numerous bullet holes in the mobile home.
The investigators determined that a bullet went through an exterior wall of the residence and penetrated the back wall of a mobile home on the lot immediately to the rear. The occupant of that mobile home heard the gunshots and called 911. He later described fearing for his family's safety and getting his wife and stepchildren on the floor.
The jury convicted Richard of two counts of criminal discharge of a firearm, a felony violation of K.S.A. 2020 Supp 21-6308(a)(1)(A) that, in pertinent part, criminalizes the "[r]eckless and unauthorized discharge of any firearm . . . [a]t a dwelling . . . in which there is a human being." One count pertained to the bullet that struck the nearby mobile home; Richard has not disputed that conviction on appeal.
Richard contends insufficient evidence supports the other conviction. On appeal, the State has offered alternative theories for that charge based either on Richard firing the rifle in the mobile home or on shots fired at the mobile home after the intruders left the premises in flight. The latter would impute criminal liability to Richard as an aider and abettor.
In reviewing a sufficiency challenge, we construe the evidence in a light most favorable to the party prevailing in the district court, here the State, and in support of the jury's verdict. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d 72 (2018); State v. Butler, 307 Kan. 831, 844-45, 416 P.3d 116 (2018); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is whether rational jurors could have found the defendant guilty beyond a reasonable doubt. Butler, 307 Kan. at 844-45; State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014).
As to the first theory, Richard contends he could not be convicted of criminal discharge of a firearm for shooting the rifle in the mobile home because the statute proscribes shooting at a dwelling. The district court identified one of the elements of the crime in the jury instructions as: "The defendant discharged a firearm at a dwelling." The adequacy of the instruction itself is not at issue, since it conforms to the statutory language. The question is whether the evidence satisfied the statutory requirements of K.S.A. 2020 Supp. 21-6308(a)(1)(A).
We recently outlined the principles governing statutory review:
State v. Baumgarner, 59 Kan.App.2d 330, 334-35, 481 P.3d 170, rev. denied 313 Kan.__ (April 23, 2021).
See State v. Smith, 309 Kan. 929, 932-33, 441 P.3d 472 (2019).
Richard's argument pivots on the meaning of the word "at," as used in the statute. "At" is a preposition of protean definition. The word can mean "on" or "in" in reference to a location. Webster's New World College Dictionary 89 (5th ed. 2014) ("at" definition 1). For example, one might say, "I met him at the candy store." Morton, Barry, and Greenwich, "Leader of the Pack," Red Bird Records R.B. 10-014 (1964). That would mean inside the store or, perhaps, on the sidewalk at the entrance and would favor the State's theory here. But "at" can also mean "to or toward as the . . . object," as in "don't shout at me." Webster's New World College Dictionary 89 (5th ed. 2014) ("at" definition 2). That definition would preclude the State's theory based on the discharge of the rifle inside the dwelling. The statutory language could mean either or both. The criminal code offers no specialized definition of "at" to be used in K.S.A. 2020 Supp. 21-6308 or elsewhere. To that extent, K.S.A. 2020 Supp. 21-6308(a)(1)(A) is ambiguous on its face.
Had the Legislature intended the State's meaning, we suppose it would have used the more precise preposition "in." But that narrow meaning would exclude drive-by shootings where a firearm is discharged into a dwelling from a passing car. And it would preclude prosecution when the shooter stands across the street or at some greater distance...
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