State v. Toliver, No. 120,506
| Citation | 457 P.3d 948 (Table) |
| Decision Date | 21 February 2020 |
| Docket Number | No. 120,506 |
| Parties | STATE of Kansas, Appellee, v. Melvin Lashawn TOLIVER, Appellant. |
| Court | Court of Appeals of Kansas |
Brenda M. Jordan, of Brenda Jordan Law Office LLC, of Manhattan, for appellant.
Kendra Lewison, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Powell, J., and Lahey, S.J.
Melvin Lashawn Toliver was convicted of stalking but was acquitted of sexual battery for events occurring in May 2018. In this appeal, Toliver claims numerous trial errors denied him a fair trial, and he seeks reversal of his conviction. After a careful review of the record, we conclude that Toliver's challenges do not warrant reversal, and we affirm his conviction and sentence.
From December 2017 until May 2018, K.M. lived on Fremont Street in Manhattan, Kansas. Starting in March 2018, Toliver began showing up at K.M.'s door. The first time, Toliver asked for someone named "Mario." The second and third time, Toliver asked for K.M.'s short-term roommate, Henry "Goldie" Jones. The first time Toliver asked for Jones, Jones was not at the residence, and K.M. told Toliver not to return. Nevertheless, Toliver continued to show up, once when Jones was at the Fremont residence and on several occasions after Jones moved out.
Most of the incidents fit a pattern. K.M. worked as a server at a local bar. After the bar closed at 2 a.m., K.M. would sometimes host people at her Fremont residence, and Toliver would appear during that time. If K.M.'s guests were still at her residence, K.M. would answer the door; if she was alone, however, she would not. K.M. moved to a new residence on North 11th Street in Manhattan in May 2018, but Toliver appeared there as well. K.M.'s threat to call the police did not dissuade Toliver from coming to K.M.'s residence. In total, K.M. estimated that Toliver came to her residence six or eight times.
On May 4, 2018, S.H., K.M.'s girlfriend, was leaving a Manhattan bar with her friends around closing time. While S.H. was waiting with her friends for their ride to arrive, Toliver approached her from behind. Toliver asked S.H. if she was "interested in females" and "liked girls" and asked S.H. to go home with him. S.H. turned away but soon felt Toliver press his crouch against her thigh. S.H. quickly left the area after her friends' ride arrived and, upon encountering police officers nearby, asked the officers to walk her to her car. S.H. mentioned the encounter to the officers but did not ask them to make a report concerning the incident.
Two days later, in the early hours of May 6, 2018, K.M. walked home to her 11th Street residence following her night shift at the bar. Shortly after arriving at home, K.M.'s dog started barking at the bedroom window. When K.M. pulled back the curtains, she saw Toliver standing outside her apartment in the grass and looking at her through the window. Afraid, K.M. called S.H. and asked her to come over.
Ten minutes later, S.H. arrived at K.M.'s residence and recognized Toliver from the incident two nights earlier. As S.H. entered K.M.'s residence, Toliver yelled to S.H., However, S.H. did not stop or talk to Toliver. Instead, S.H. entered K.M.'s residence, and together they called the police.
Toliver was charged with stalking K.M. and sexual battery for the incident involving S.H., both class A person misdemeanors. Toliver moved to have the charges severed, but the district court denied the motion. Following a jury trial, Toliver was found guilty of stalking but not guilty of sexual battery. Toliver was sentenced to an underlying sentence of 12 months, but, after spending 4 days in the Riley County Jail, he was placed on probation for 12 months.
Toliver timely appeals.
Toliver raises four issues on appeal. First, Toliver contends that the district court abused its discretion when it denied his motion to sever the stalking and sexual battery charges. Second, Toliver argues that the district court erred by admitting the statements made by K.M. and S.H. to police officers because they were not relevant and were unduly prejudicial. Third, Toliver argues that the State's decision not to have victims from Toliver's prior crimes testify was tantamount to suppression of exculpatory evidence. Fourth, Toliver contends that the cumulative effects of these errors resulted in an unfair trial. We address each claim in order.
I. DID THE DISTRICT COURT ERR BY NOT SEVERING THE STALKING AND SEXUAL BATTERY CHARGES ?
Toliver argues that the stalking and sexual battery charges were not of the same or similar character and were improperly joined for trial. He alleges the failure to sever was prejudicial and resulted in jury confusion. The State argues the district court correctly denied severance of the charges.
The appellate court reviews potential joinder errors using a three-step analysis, applying a different standard of review at each step:
We first engage in a fact-specific inquiry to determine if the two separate crimes were properly joined in a single complaint. K.S.A. 22-3202(1) allows two or more crimes to be charged in the same complaint if: (1) the charges are of "the same or similar character"; (2) the charges are part of the "same act or transaction"; or (3) the charges result from "two or more acts or transactions connected together or constituting parts of a common scheme or plan." The district court found that the two alleged crimes were properly joined because they were of the same or similar character. In so concluding, the district court identified no less than 11 similarities between the alleged crimes.
The district court noted that the victims were both female and of similar age; the crimes occurred in the same area of Manhattan around the same time of night; the crimes occurred within two days of each other; Toliver was identified by both victims as the perpetrator; and the crimes were reported to the same police officer. Both crimes were investigated as part of a single criminal investigation, carried the same gravity—both class A misdemeanors, required trial by jury, and shared the same potential for incarceration.
Toliver argues that the similarities identified by the district court are mere generalities, insufficient to warrant joinder under the statute. See State v. Barksdale , 266 Kan. 498, 508, 973 P.2d 165 (1999) (). However, such similarities have routinely been upheld as sufficient to permit joinder under K.S.A. 22-3202, particularly when the alleged crimes have "multiple commonalities" and do not merely share the same classification of one of the crimes charged. State v. Smith-Parker , 301 Kan. 132, 157, 340 P.3d 485 (2014). See, e.g., Ritz , 305 Kan. at 963-64 (); State v. Cruz , 297 Kan. 1048, 1050-53, 1055-56, 307 P.3d 199 (2013) (); State v. Gihring , No. 118,234, 2019 WL 1868364, at *7 (Kan. App. 2019) (unpublished opinion) ().
As those cases demonstrate, "[w]hen all of the offenses are of the same general character, require the same mode of trial and the same kind of evidence, and occur in the same jurisdiction," the separate charges may be properly consolidated under K.S.A. 22-3202(1). State v. Crawford , 255 Kan. 47, 53, 872 P.2d 293 (1994) ; see also Barksdale , 266 Kan. at 507 (). This is not an exacting standard. Instead, our courts have noted that it is rare for appellate courts to overturn convictions after a trial court denied severance and have even gone so far as holding that "joinder of similar crimes is the rule and severance is the exception." State v. Bunyard , 281 Kan. 392, 402, 133 P.3d 14 (2006), ...
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