State v. Simmons

• Decision Date: 04 March 2011
• Docket Number: No. 102,715.,102,715.
• Citation: 45 Kan.App.2d 491,249 P.3d 15
• Parties: STATE of Kansas, Appellee,v.Elton SIMMONS, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 491

249 P.3d 15

STATE of Kansas, Appellee,

v.Elton SIMMONS, Appellant.

No. 102,715.

Court of Appeals of Kansas.

March 4, 2011.

[249 P.3d 16 , 45 Kan.App.2d 491]

Syllabus by the Court

1. A prosecutor may not properly refer to a criminal defendant's status as a pretrial detainee in the presence of the jury absent some independent factual relevance of that status.

2. When a prosecutor asks a question during a jury trial that raises an improper matter, the appellate courts evaluate the prejudicial impact by looking at: (1) whether the misconduct was gross and flagrant; (2) whether it showed ill will; and (3) whether evidence against the defendant was so direct and overwhelming that the question would likely have had little impact on the jurors.

3. A criminal defendant makes a sufficient and timely request for an instruction on a lesser included offense if the jury has not yet been charged and there is an adequate opportunity to revise the instructions before doing so.

4. A trial court is obligated to instruct on any lesser included offense on which a jury might reasonably return a verdict considering the evidence in a light most favorable to the defendant. An instruction should be given even if the evidence supporting that lesser offense is weak or inconclusive.

5. When a defendant has made a sufficient request for an instruction on a lesser included offense, the appellate courts treat the failure to give the instruction as a question of law, since no credibility determinations or other weighing of evidence figures into the analysis. Appellate review, therefore, is plenary and owes no particular deference to the trial court's decision.

6. The characterization of particular injuries as “bodily harm” or “great bodily harm” for purposes of applying battery and aggravated battery statutes routinely presents a question of fact and has been left to the collective wisdom of the jurors.

7. Whether the actions of a criminal defendant constitute a manner whereby great bodily harm, disfigurement, or death could be inflicted for purposes of applying battery or aggravated battery statutes typically presents a question of fact for the jury.

8. The skip rule is simply a logical deduction that may be drawn from jury verdicts in certain cases. If a jury convicts of a greater offense, having been given the opportunity to consider a lesser offense, and that verdict necessarily establishes a factual element that would be legally inconsistent with an even lower offense on which no instruction were given, the defendant cannot have suffered any prejudice from the failure to give that instruction.

9. In assessing Board of Indigents' Defense Services attorney fees against a criminal defendant, the trial court must take account of the financial resources of the defendant and the burden payment of those fees will impose on the defendant. The trial court must explicitly make those determinations on the record at the time the fees are assessed.

Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, for appellee.Before McANANY, P.J., LEBEN and ATCHESON, JJ.ATCHESON, J.:

Defendant Elton Simmons appeals his convictions for aggravated battery and two misdemeanors in Sedgwick County District Court arising from a 2006 blowup with his then girlfriend. He also disputes both an assessment of fees against him for the work of his appointed defense counsel and the treatment of his earlier criminal convictions for sentencing purposes. We reverse the aggravated battery conviction and remand for a new trial because the lower court declined to instruct the jury on simple battery as a lesser included offense. We also reverse the fee assessment and remand for further hearing. We otherwise deny the points Simmons has presented on appeal.

Factual and Procedural Overview

Defendant Simmons and Camille Terry described themselves as boyfriend and girlfriend. Their relationship, however, was often discordant. The discord turned violent on June 12, 2006. Simmons approached Terry near her car, which was parked outside her residence in Wichita. He demanded that Terry return $20 he had given her earlier and wanted clothing of his from the trunk of the car. Terry told Simmons she no longer had the money but opened the trunk for him. As Terry was pawing through the clothing, he grabbed Terry's cell phone and told her she could have it back if she returned the $20.

Terry slapped Simmons. And he says she tried to kick him. Simmons punched Terry twice in the face. At trial, Simmons testified he was trying to defend himself, as Terry assaulted him. Terry denied she did anything to Simmons after slapping him. In that go-around, Terry's cell phone wound up broken. Terry had a black eye and a loosened tooth from the punches.

Terry went into the home of Tonya Jackson, a neighbor, to use her telephone. Simmons followed and accused Terry of calling the police. He stormed out, saying he was going to take Terry's car. A few minutes later, Simmons came back into Jackson's living room and again punched Terry. At trial, Terry was not specifically asked how many times Simmons struck her. A Wichita police officer who took a statement from Terry that day testified that she said Simmons punched her once or twice in the face. Jackson testified she saw Simmons strike Terry once. But she said she walked into the living room in the middle of the commotion, so Simmons could have hit Terry before then. Simmons again left, driving off in Terry's car. At trial, Simmons simply denied he struck Terry inside the house.

Terry was treated at a local hospital for a broken nose and a cut to the forehead that needed nine stitches. Terry told the jury she received both those injuries during the second confrontation with Simmons—the one inside Jackson's house. In late October 2006, Terry had surgery to realign her nasal passages because she had trouble breathing easily after Simmons punched her.

Simmons was arrested on June 15, 2006, in southeast Kansas. He had Terry's car. Simmons was returned to Sedgwick County where he was charged with: (1) misdemeanor or simple battery for punching Terry outside; (2) misdemeanor theft for taking Terry's cell phone; (3) misdemeanor criminal damage to property for breaking Terry's cell phone; (4) felony theft for stealing Terry's car; and (5) felony or aggravated battery for punching Terry inside the Jackson home. Simmons was unable to post bond and remained in custody following his arrest. A Sedgwick County jury heard the case over 2 days in December 2006. The jury acquitted Simmons of both charges regarding the cell phone, convicted him of misdemeanor theft for taking the car, convicted him of simple battery for punching Terry outside, and convicted him of a lesser degree of aggravated battery for punching Terry inside the Jackson home. Simmons has timely appealed.

We supplement the factual and procedural history of the case as necessary for a full discussion of each of the appellate issues.

Improper Question by Prosecutor

Simmons contends that a question the prosecutor posed to Terry tainted the jury trial and requires reversal of all of the convictions. During the direct examination of Terry, the prosecutor asked, “Have you ever been to see him [Simmons] since he's been in custody?” She said she had not. Simmons' lawyer objected and asked to approach the bench. The trial judge denied that request and, without formally ruling on the objection, told the prosecutor, “[L]et's just move on from here.”

At the next break in the trial testimony and outside the presence of the jury, defense counsel moved for a mistrial on the grounds that the question “clearly show[ed]” Simmons had been and continued to be in custody “because of this case.” The prosecutor indicated that in asking the question she wanted to get at the lack of communication between Terry and Simmons after the events of June 12; she agreed the question could have been phrased more adroitly. The trial judge denied the request for a mistrial. He characterized the question as an “innocuous reference” to Simmons' being in custody and noted that the prosecutor had made no other remarks to that effect. Simmons cites no other references made in the presence of the jury to his being a pretrial detainee.

On appeal, Simmons primarily seems to argue that the question implied to the jury that he had been incarcerated in the past and, thus, had criminal convictions. First, that is different from the basis for the objection and request for a mistrial lodged in the lower court. We typically decline to entertain arguments on appeal that have not been presented below. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (“Generally, issues not raised before the trial court cannot be raised on appeal.”); State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005) (A party may not voice an objection on one ground at trial and urge a different ground as error on appeal.). We also fail to see how the question reasonably might be understood to refer to Simmons' having been in prison on some past offense. The tenor of the question and the surrounding testimony plainly dealt with communications between Terry and Simmons after June 12. (Just before posing the disputed question, the prosecutor had been asking Terry about telephone calls Simmons made to her following the altercation.)

On the assumption that Simmons continues to press the objection he voiced below as an alternative ground here (though his brief is less than plain), we address that argument as well. Reference to a criminal defendant's status as a pretrial detainee in front of the jury is improper absent some particularized circumstance making it independently relevant. United States v. Lonedog, 929 F.2d 568, 570–71 (10th Cir.1991) (finding question regarding defendant's status as a pretrial...