State v. Thach
| Decision Date | 09 September 2016 |
| Docket Number | No. 112,231,112,231 |
| Citation | 378 P.3d 522 |
| Parties | State of Kansas, Appellee, v. Jerry Thach, Appellant. |
| Court | Kansas Supreme Court |
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Jerry Thach asks us to determine whether sufficient evidence supports his convictions for felony murder and aggravated burglary, charges which stem from the violent death of Pheng Xiong on August 4, 2012. Thach admits to being one of four men who broke into Xiong's home and killed him. Thach argues there was insufficient evidence of his intent and that as a result his convictions should be vacated.
We disagree. The crux of Thach's argument is a challenge to the State's proof of aggravated burglary—which is important not only as a stand-alone criminal conviction, but also as the underlying inherently dangerous felony required to support Thach's felony-murder conviction. For purposes of both convictions, the aggravated burglary was, as charged, based on Thach's entry into Xiong's home with the “intent to commit an Aggravated Battery.” Thach's intent is the main issue here: Due to the charging structure, the State was required to prove Thach's intent to commit aggravated battery in order to prove the aggravated burglary and the felony-murder convictions.
The State did so. A reasonable jury could readily conclude Thach entered Xiong's house with the conscious objective of committing aggravated battery, which is enough to uphold his convictions for aggravated burglary and, in turn, felony murder. We reject Thach's attempt to force the State to provide direct evidence of his intent—circumstantial evidence has long been acceptable as evidence of this criminal element, and the legislature's adoption of K.S.A. 2015 Supp. 21–5202
does not require us to depart from our well-established precedent on this point.
As a separate matter, we are unpersuaded by Thach's argument that his due process rights were violated by the State's choice to seek convictions on, in the alternative, first-degree premeditated murder and first-degree felony murder charges.
Accordingly, we affirm Thach's convictions.
Thach's trial spanned 7 days and included testimony from 29 witnesses. We need not recount the entirety of the trial and will instead focus on the testimony most relevant to Thach's appeal—that of Vat Sana Khamvongsa, who participated in the crimes; law enforcement officers who took Thach's statement; and the coroner.
Khamvongsa testified Thach picked him up around 9 p.m. on August 3, 2012. They had plans to go out and first stopped at Rathanak Chea's house. While they were waiting for Chea, who was not home, Xiong and his girlfriend arrived. Once Chea came home the entire group went inside to watch television and drink. At some point Chea left to pick up another man, Caesar Louis. Khamvongsa, Chea, Louis, and Thach left for a bar around midnight; Xiong met them there after taking his girlfriend home.
The group went to a total of three bars over the course of the evening. After the bars closed, Chea, Louis, Khamvongsa, and Thach went back to Chea's house, arriving around 2:30 or 2:45 a.m. Xiong did not go with them. Sometime after 3 a.m., Khamvongsa heard Chea and Louis “talking about some problem they had” with Xiong. Apparently, Xiong, whom Khamvongsa thought was a member of the Dead Everlasting Gangsters (DEG), had gotten into a fight with some of their friends at a restaurant. Chea and Louis, who were both members of a different gang, the Asian Boyz (AB), were angry because Xiong was boasting and lying about beating up their friends.
Louis and Chea's conversation became more heated, and Louis expressed a desire to go to Xiong's house. Chea knew where Xiong lived, and he told Louis, Khamvongsa took this to mean Louis “was going to go fight or something.” Chea did not initially do anything to indicate to Khamvongsa this would be more than a fistfight, but after a little while Chea brought out a big hunting knife. Khamvongsa touched the knife after one of the men asked him to see if it was sharp. The conversation turned to heading over to Xiong's house, and eventually Louis, Chea, Thach, and Khamvongsa left together in Chea's car. According to Khamvongsa, Thach did not at any point hesitate or resist going to Xiong's house.
Once the four men arrived at Xiong's house, Louis knocked loudly about 15 times. Xiong did not answer the door and Chea went around the side of the house. Meanwhile, Thach kicked the front door three times—but he stopped when he was told he was making too much noise. Chea then went to the other side of the house and said, “I got him.” When the other three men went to look, they saw Chea holding a struggling Xiong, who was halfway out the window. At Chea's request, Khamvongsa held one of Xiong's arms while Thach and Chea went through the bedroom window and into the house.
One of the men then went through the house and opened the front door. Louis walked inside and Khamvongsa followed, after giving control of Xiong to Louis, Chea, and Thach. By the time Khamvongsa joined the others, Xiong had been beaten—he was pretty bruised up. Khamvongsa initially told police Thach was the first person into Xiong's home and had been hitting Xiong, but on cross-examination he testified he never actually saw anybody inflict Xiong's bruises and did not hear punches being thrown. Khamvongsa saw Thach standing by Xiong's legs at the foot of the bed, with Chea and Louis on either side of the bed. Louis slowly pulled out the hunting knife. Thach complied with Louis' direction to see if anyone else was in the house, and Thach then returned to the foot of the bed and held down Xiong's legs. Louis taunted Xiong and eventually asked Xiong if he had any last words. Louis then cut Xiong's throat.
At that point, Louis tried to hand Khamvongsa the knife as he asked whether Khamvongsa “was down.” Khamvongsa said, “No,” and refused the knife. Khamvongsa did not recall Louis offering the knife to Thach or Chea. Louis told Khamvongsa to turn around and face the wall, which Khamvongsa did. Khamvongsa then heard a sound he believed to be blood gushing. Nobody said to stop, and Thach continued to hold onto Xiong's legs.
Thach, Louis, and Chea cleaned some blood splatters and wiped down areas the men had touched. Louis warned the group not to get on their phones, and the men headed out the door. After making sure nobody was outside to see them, the men got into Chea's car and drove off. At this point, Louis had Xiong's cell phone and Thach had the knife.
According to Khamvongsa's testimony, when the men arrived back at Chea's house, Chea got everyone a beer. Nobody tried to leave. Louis seemed to be acting normally, and Chea even seemed pretty happy. Chea kept saying, “Don't fuck with us,” which Khamvongsa thought meant don't mess with the AB's—the Asian Boyz gang. At one point in Khamvongsa's testimony he indicated Thach acted the same as he had before they drove to Xiong's house, but he later said Thach acted scared. Louis warned Khamvongsa that if anybody asked, he did not know Louis' name—but Louis did not give Thach a similar warning. After about 20 minutes, Thach took Khamvongsa home. Khamvongsa initially testified he and Thach did not speak on the drive, but he later stated Thach had told him not to freak out and not to think about it too much.
According to Khamvongsa, the four men did not discuss what would happen at Xiong's house before they arrived—it just happened. He turned himself into the police and testified at Thach's trial in exchange for the State dropping the most serious charge against him.
Thach did not testify at trial, but law enforcement officers testified about his statements to police. Thach repeatedly denied going anywhere before heading out to the bars, but he eventually admitted he had briefly been at Chea's house. Thach did not initially remember Xiong being at Chea's that night but later asserted Xiong was present along with his girlfriend. He admitted being with Xiong at the bars on the night of the murder, but he claimed he took Khamvongsa straight home once the bars closed and arrived home himself at 2:30 a.m. He unwaveringly denied ever being at Xiong's home on the night of August 3 or the morning of August 4.
Police eventually told Thach there was physical evidence putting him at Xiong's house—a tentative fingerprint match found on a broken Heineken bottle in one of Xiong's neighbor's yard. The police also confronted Thach with cell phone records, which showed text message exchanges between Thach and others up until a little before 3 a.m. on August 4, after which there were no incoming or outgoing texts from Thach's phone until noon. According to law enforcement testimony, after being shown these messages Thach changed his story to say he went to his girlfriend's house but did not go inside until 4 a.m. He said he stayed outside her house from 2:30 until 4 a.m., texting her about a disagreement they were having.
The coroner testified Xiong suffered bruising on his face in addition to his extensive neck injury. The bruising occurred before death, but the coroner could not say how much earlier. The coroner explained she found multiple “incised wounds
,” meaning wounds longer across the skin than deep, caused by a knife or other sharp object and one deep wound that went through Xiong's airway and penetrated clear to his spine. Xiong suffered approximately 20 blunt force injuries.
The State charged Thach with first-degree premediated murder or, alternatively, first-degree felony murder; aggravated burglary; and aggravated robbery. The jury found Thach guilty of the alternative charge of...
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