State v. Thomas
| Decision Date | 13 April 2018 |
| Docket Number | No. 109,951,109,951 |
| Citation | 415 P.3d 430,307 Kan. 733 |
| Parties | STATE of Kansas, Appellee, v. Sheena THOMAS, Appellant. |
| Court | Kansas Supreme Court |
Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
A jury convicted exotic dancer Sheena Thomas of one count of aggravated battery with a deadly weapon against her fellow dancer, Traci Borntrager. The attack occurred at an establishment called Pleasures, the two women's place of work. The weapon in question—a stiletto heel—was an accoutrement of the trade. Following her conviction, the district court sentenced Thomas to serve 24 months' probation and informed her of her duty to register as a violent offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. However, while the jury found the stiletto heel was indeed a deadly weapon, the district court itself neither considered that question nor made such a finding on the record.
Thomas has attacked her conviction on appeal in three ways:
(1) she claims the district court erred when it disallowed cross-examination questioning of Borntrager concerning a separate civil lawsuit Borntrager had filed against their mutual employer; (2) she claims the prosecutor erred in closing arguments by impermissibly misstating evidence and diluting the State's burden of proof; and (3) she claims cumulative error deprived her of a fair trial. The Court of Appeals rejected each of these arguments, as do we.
Thomas also argued on appeal that because the district court never made a finding on the record that the stiletto heel was a deadly weapon, she has no obligation to register as a violent offender. While the Court of Appeals agreed with Thomas, it characterized the district court's lack of a finding as an "error" and decided that although the registration requirement had to be vacated, the case could be remanded to the district court in order for the lower court to consider afresh the deadly weapon question. Thomas petitioned this court for review of all adverse decisions. Specifically, she now claims that because registration under KORA is not part of her sentence, the Court of Appeals cannot remand the matter to the district court.
Because the State did not file a cross-petition for review, we will not review the panel's decision that without a court-made deadly weapon finding in the record, the registration requirement is not triggered. Though in another case decided today, we conclude that such a finding is in fact required before the obligation to register will arise under KORA. See State v. Marinelli , 307 Kan. ––––, –––– – ––––, 415 P.3d 405, 2018 WL 1770220 (2018) (), slip op. at 26-27. Here, however, we are limited to reviewing the availability of a remand to "remedy" any lack of court-made findings.
When three law enforcement officers responded to a disturbance call from Pleasures, they learned two dancers—"Sugar" and "Gypsy"—had been involved in a fight. Sugar and Gypsy turned out to be, respectively, Thomas and Borntrager. The altercation began with a dispute over a sale of clothing and ended when Borntrager sustained a significant cut to her forehead
and a concussion.
The State charged Thomas with a single count of aggravated battery, and the case proceeded to a three-day jury trial. Borntrager testified she was having a drink with a patron when Thomas approached her and demanded a refund for the clothing. Borntrager claimed Thomas was very aggressive, so they went together to the club's manager to resolve the dispute. During the conversation, Borntrager said Thomas tried to attack her, but the manager separated the two. Borntrager returned to the patron's table. Shortly thereafter, Thomas rushed her and stabbed her in the forehead with a "spiked shoe heel." Two patrons corroborated Borntrager's testimony at trial.
Thomas presented a different account. According to her, Borntrager was the initial aggressor. Thomas claimed Borntrager approached her while she was at the bar speaking to the manager. Borntrager shoved Thomas, and the club manager separated the two. Thomas testified that after the shove, she was walking toward the dressing
room when Borntrager came at her swinging, and they eventually went to the ground where they "rumbled on the floor." Thomas denied hitting Borntrager with a spiked high-heeled shoe, but stated that they had ahold of each other's hair and were hitting each other in the face.
The club's cook, Reuben Pickens, witnessed only the first confrontation at the bar. He testified that Borntrager was the initial aggressor and that she "jumped up at Sugar, said bitch, you want to go," swung, and struck Thomas before they were separated. Pickens told the jury he did not witness the second altercation.
The jury ultimately found Thomas guilty of aggravated battery pursuant to K.S.A. 2011 Supp. 21-5413(b)(1)(B), which required a finding that Thomas used a deadly weapon. The district court sentenced Thomas to serve 24 months' probation and imposed an underlying 12-month prison sentence. The court also ordered Thomas to pay restitution but left the matter open for 30 days so the parties could determine the precise amount. Thereafter, the court told Thomas: The court then reviewed the notice of duty to register with Thomas and concluded sentencing.
Thomas filed a notice of appeal the same day as sentencing.
Nearly one month later, the court entered an order establishing the amount of restitution as $269.86 to be paid to Kansas Medicaid, thereby making the notice of appeal effective, depriving the district court of jurisdiction, and vesting jurisdiction in the appellate courts. See State v. Hall , 298 Kan. 978, Syl. ¶ 4, 319 P.3d 506 (2014).
The Court of Appeals upheld Thomas' conviction but vacated her registration requirement. State v. Thomas , No. 109,951, 2014 WL 3020029 (Kan. App. 2014) (unpublished opinion). The panel ruled Thomas' Sixth Amendment right to confrontation was not violated when the district court excluded evidence concerning a civil lawsuit Borntrager had previously filed and settled against Pleasures. The Court of Appeals held that evidence of a settled lawsuit was "only marginally relevant—if at all" and introduction of such evidence would have confused the jury. 2014 WL 3020029, at *4-5. Moreover, the panel determined any potential error was harmless beyond a reasonable doubt given the strength of the evidence against Thomas. 2014 WL 3020029, at *5-6. The Court of Appeals also rejected Thomas' claims of prosecutorial error (then styled as "prosecutorial misconduct") 2014 WL 3020029, at *7-10.
Lastly, the panel determined that although there was evidence in the record that could have permitted the court to find Thomas used a deadly weapon during the commission of a person felony, the district court in fact did not make this specific finding. 2014 WL 3020029, at *11-12. To remedy what the Court of Appeals styled an "error," it vacated Thomas' registration requirement and remanded the case to the district court "to determine if the high-heel shoe used in the commission of the crime concluded [sic ] a deadly weapon requiring registration under the KORA." 2014 WL 3020029, at *12.
Thomas petitioned this court for review. In addition to the claims of error she asserted below, she now claims the Court of Appeals did not have the authority to remand her case to the district court for it to make the necessary deadly weapon finding because the court has already imposed a legal sentence. We granted Thomas' petition for review on all issues.
We begin with Thomas' claims of reversible trial error, then proceed to the Court of Appeals' treatment of her alleged duty to register as a violent offender.
The district court did not err by excluding evidence concerning the civil lawsuit between Borntrager and Pleasures.
During cross-examination, Thomas' attorney asked Borntrager if she had sued Pleasures following the fight. The State objected on relevancy grounds, and the objection was sustained. A moment before the State could lodge its objection, however, Borntrager answered, "Yes, I did." A bench conference and an off-the-record discussion was then conducted. After the discussion, Thomas' attorney resumed questioning Borntrager and did not ask about the lawsuit.
Later, outside the presence of the jury, the court made a record regarding the objection. The State proffered that Borntrager had filed a civil claim against Pleasures and that it had been settled for $5,000. The court stated computer records confirmed the suit had been dismissed. The court then ruled:
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