State v. Thomas

• Decision Date: 09 February 2018
• Docket Number: 990,115
• Court: Kansas Court of Appeals
• Parties: State of Kansas, Appellee, v. Robbie A. Thomas, Appellant.

State of Kansas, Appellee, v. Robbie A. Thomas, Appellant.

No. 115, 990

Court of Appeals of Kansas

February 9, 2018

NOT DESIGNATED FOR PUBLICATION

Appeal from Chautauqua District Court; Jeffrey D. Gossard, judge.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Jon S Simpson, assistant solicitor general, Amanda G. Voth assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before McAnany, P.J., Gardner, J., and Timothy L. Dupree, District Judge, assigned.

MEMORANDUM OPINION

PER CURIAM.

Robbie A. Thomas was convicted of aggravated battery, abuse of a child, and aggravated endangering a child. These charges arise from an incident while Thomas was babysitting his girlfriend's children on July 2, 2015. The child in question was age two and had soiled his pants. On appeal Thomas does not argue that the evidence did not establish that he was the cause of the child's burns when he was cleaning off the child in the bathtub that night. He argues that the district court erred in instructing the jury on the mental state necessary to support his conviction of aggravated battery and that the prosecutor made improper arguments in closing. He also argues cumulative error and that in calculating his criminal history score, the district court improperly classified his 2001 Virginia conviction for assault and battery of a family member as a person crime.

Jury Instructions

Thomas argues that Jury Instruction Nos. 6 and 12 allowed the jury to convict him of aggravated battery without determining whether he acted while knowing that great bodily harm or disfigurement of another was reasonably certain to result.

The three-step protocol for our analysis of a jury instruction issue (jurisdiction, merits, prejudice) is spelled out in State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877 (2015). Jurisdiction is not at issue here. The State conceded that the jury instruction for aggravated battery and the instruction for knowingly were legally incorrect. Because there was no objection to these instructions, we apply the clear error standard found in K.S.A. 2016 Supp. 22-3414(3) in evaluating the prejudice element. We will find clear error if we are firmly convinced the jury would have reached a more favorable verdict for Thomas had the proper instructions been given. See State v. Cameron, 300 Kan. 384, 389, 329 P.3d 1158, cert. denied 135 S.Ct. 728 (2014).

In Instruction No. 6, the court instructed the jury on three alternative meanings of the term "knowingly":

"A defendant acts knowingly when the defendant is aware of:

1. The nature of his conduct that the State complains about; or

2. The circumstances in which he was acting; or

3. That his conduct was reasonably certain to cause the result complained about by the State."

In Instruction No. 12, the court instructed the jury on the charge of aggravated battery as follows:

"The defendant is charged with aggravated battery. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

1. The defendant knowingly caused great bodily harm or disfigurement to J.D., DOB XX/XX/2012;

2. This act occurred on or about the 2nd day of July, 2015, in Chautauqua County, Kansas.

"Aggravated battery is a general intent crime. The requisite general intent is merely the intent to engage in the underlying conduct which results in great bodily harm. The State is not required to prove that the defendant intended the precise harm or result that occurred."

In State v. Hobbs, 301 Kan. 203, 340 P.3d 1179 (2015), our Supreme Court stated that "knowingly" for purposes of an aggravated battery conviction requires more than merely proving the defendant intended to engage in the underlying conduct. It requires that

"the accused acted when he or she was aware that his or her conduct was reasonably certain to cause the result. This does not mean that the accused must have foreseen the specific harm that resulted. Instead, it is sufficient that he or she acted while knowing that any great bodily harm or disfigurement of the victim was reasonably certain to result from the action." 301 Kan. 211.

In State v. Kershaw, 302 Kan. 772, 781, 359 P.3d 52 (2015), our Supreme Court held that the State must prove that "'the accused acted when he or she was aware that his or her conduct was reasonably certain to cause the result.' [Citation omitted.]"

In light of our Supreme Court's decisions in Hobbs and Kershaw, Instruction No. 12 incorrectly states that for aggravated battery, "[t]he requisite general intent is merely the intent to engage in the underlying conduct which results in great bodily harm." Further, Instruction No. 6 incorrectly includes two alternative definitions of "knowingly" for purposes of aggravated battery which are contrary to the holdings in Hobbs and Kershaw.

The instruction for aggravated battery, Instruction No. 12, should have required the jury to find that the accused acted when he was aware that his conduct was reasonably certain to cause the result. It should not have allowed the jury to find that the requisite intent is merely the intent to engage in the underlying conduct which results in great bodily harm. See Kershaw, 302 Kan. at 781.

With respect to the aggravated battery charge, Instruction No. 6 should have required the State to prove that Thomas acted knowingly by being aware that his conduct was reasonably certain to cause the result complained of by the State. The instruction should not have given the jury alternatives 1 and 2. See Hobbs, 301 Kan. at 210-11. The State has conceded the errors in these two instructions.

We turn to the issue of prejudice. Thomas argues that the State only presented evidence of his anger and evidence of his conduct but not any evidence that he was aware that his conduct could cause the harm complained of. He contends that while the evidence was sufficient to support his conviction for abuse of a child, it does not support a conviction for aggravated battery. Thus, had the proper instructions been given, he would have been acquitted on the aggravated battery charge.

We disagree. There was compelling evidence that Thomas caused the child's burns. Wade Matherly, the medical professional who treated the child, testified that the child's injuries were not consistent with having been placed in hot bath water because the child's feet and knees were not burned. The treating physician, Dr. Jenna Elizabeth, testified that the burns were consistent with a shower wand being held in the same place on the child for an extended period of time. Thomas' 12-year-old daughter told the police pants was screaming as if he were being stabbed or killed and that Thomas kept asking, "Have you had enough? Have you had enough?" According to Thomas' daughter, this went on for about 10 minutes. The only reasonable inference we can draw from these facts is that Thomas was aware that subjecting this 2-year-old child to scalding water for an extended period of time was reasonably certain to cause the burns complained of by the State.

With regard to the "knowingly" element of the crime, the prosecutor focused in his closing argument on the third alternative, consistent with the applicable law, that Thomas' conduct was reasonably certain to cause the result complained about by the State:

"How do we prove that? Well, the nature of his conduct that we complain about, the circumstances in which he was acting, and his conduct was reasonably certain to cause the result complained about by the State. . . .

"Aggravated battery. Who burned this child, right? Did he do it knowingly? Was it reasonably certain that these things would happen?"

Had the jury been properly instructed on the knowledge element of aggravated battery, we are firmly convinced that the outcome of the trial would not have been different. Accordingly, we find no reversible error.

Prosecutor's Statements in Closing Argument

Thomas asserts that the prosecutor's comments in its closing arguments constituted reversible error because they deprived Thomas of his constitutional right to a fair trial.

In discussing Instruction No. 10, which sets forth the elements of the charge of child abuse, and while showing the jury photographs of the child's injuries, the prosecutor stated:

"Let's start with the actual charges themselves. Now we're going to the elements of each particular count, and they start with Instruction No. 10 . . . .

"What must the State prove? Each of these claims must be proven, that he knowingly inflicted cruel and inhuman punishment on [the child.] All right? This is the evidence that's been admitted in this case. Knowingly. Knowingly inflicted cruel and inhuman punishment on [the child.]

"Remember this exhibit from State's Exhibit 9? This is a photograph of [the child's] back. Where do the bruises come in? From the waist up to the middle of his back.

"Where did [Thomas' 12-year-old daughter] say this happened? In their home on July second when Mr. Thomas was disciplining him in the potty training. It's simple. Do you think that's okay? Do you think that's okay to do to your child? Then you better acquit him, but if it's not okay, you better find him guilty.

"What else do we have to prove? That [the child] was less than 18. All the testimony-everybody knows he's under 18. He's two when this thing starts; he's three now. Everybody knows that.

"The last element. This act occurred on or about the second of July, 2015, in Chautauqua County. Nobody disputes it happened in Chautauqua County. Nobody disputes it happened in July 2015. What's the dispute about? What's the defense been arguing about for the last two days? You can't prove it happened on July second. I'm sorry folks. I don't have to. What does

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