State v. Torrance, 72747

• Decision Date: 09 August 1996
• Docket Number: No. 72747,72747
• Parties: STATE of Kansas, Appellee, v. Harold TORRANCE, Appellant.
• Court: Kansas Court of Appeals

Page 1109

922 P.2d 1109

22 Kan.App.2d 721

STATE of Kansas, Appellee, v. Harold TORRANCE, Appellant.

No. 72747.

Court of Appeals of Kansas.

Aug. 9, 1996.

Syllabus by the Court

1. Hearsay evidence is evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated. K.S.A. 60-460(a) is an exception to the hearsay rule and allows evidence to be admitted if the declarant is available for cross-examination, provided the statement would be admissible if made by the declarant while testifying as a witness. K.S.A. 60-460(d)(1) provides an exception for a statement made by a declarant while perceiving an event, and K.S.A. 60-460(d)(2) provides an exception for a statement made while a declarant was under the stress of a nervous excitement caused by such perception.

2. Res gestae and the hearsay exceptions of K.S.A. 60-460(d) are separate avenues under which evidence may be admitted. Both avenues need not be satisfied in order for the evidence to be admissible.

3. The validity of the defense of another defense requires the application of both a subjective and objective test.

4. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

5. In order to be convicted of aggravated assault, it is not required that verbal threats be made simultaneous with the apparent ability to carry out the threats. In this case, where verbal threats were made and the defendant went to his van, retrieved a shotgun, jacked the pump action on the shotgun, and pointed the shotgun at the back of the retreating victim, the acts and words were so closely related that they constituted the same intentional threat.

6. The duty of the trial court to instruct on a lesser included offense is applicable only when the evidence produced at trial is such that the defendant might have reasonably been convicted of the lesser offense.

7. K.S.A. 22-3501 requires a motion for a new trial to be filed within 10 days of a verdict or finding of guilt. The trial court may extend that period of time within its discretion, but such application for extension must be made within that initial 10-day statutory period.

8. There is no requirement that a strict application of the rules of evidence must be followed in a sentencing phase of a trial.

9. The determination of whether a sentence has resulted in manifest injustice must be made on a case-by-case basis under a "shocking to the conscience" standard--that is, whether the trial court has abused its discretion in imposing a sentence that is obviously unfair and shocks the conscience of an appellate court.

Jack W. Shultz, of Shultz & Shultz, Chartered, Dodge City, for appellant.

E. Leigh Hood, County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before GERNON, P.J., MARQUARDT, J., and STEPHEN D. HILL, District Judge, Assigned.

STEPHEN D. HILL, District Judge:

Harold Torrance appeals his conviction and sentence for aggravated assault, pursuant to K.S.A. 21-3410 (Ensley 1988). On September 6, 1994, Torrance was sentenced to the custody of the Secretary of Corrections for an indeterminate term of imprisonment, a minimum of 2 years and a maximum of 10 years. He was convicted by a jury on March 24, 1994. The jury found Torrance guilty of aggravated assault as a result of an incident that occurred on June 24, 1993.

Torrance owns Green Acres Enterprises, which sells mobile home lots. Masimo Maldanado Vargas purchased such a lot from Torrance on a contract for deed. On June 24, 1993, Vargas met with Torrance to discuss his remaining payments. Vargas' wife accompanied him but remained in their van the entire time.

During the course of their discussions, Torrance and Vargas disagreed. Vargas offered to pay Torrance the remaining two contract payments totalling $450. However, Torrance refused to accept the payments and deliver the deed to the mobile home lot until Vargas paid a disputed water bill. These discussions took place in Torrance's office. After the argument started, both men left the office.

Vargas testified that Torrance said to him, either in a low voice or by whispering, "I'm going to kill you." Torrance denies this. Other witnesses testified that Torrance said something to Vargas, but they could not make out what had been said. Vargas then began speaking in Spanish, which Torrance does not understand. Vargas did shout several times in English, "Kill me, kill me." Torrance testified that Vargas did shout, "Kill me," but stated he did not know why.

One of Torrance's employees, Roberto Torrez, came up and began to argue with Vargas in Spanish. Torrance turned and left the two men and walked toward his office. He went to his own van and retrieved a .12 gauge shotgun. Torrance pumped the action on the gun.

Torrance testified that he pulled the gun out of the van because he was thinking, "I might save Roberto's life." Later in his testimony, he stated that he knew that Torrez could take care of himself. Furthermore, he admitted that he had pulled it out as a "scare tactic."

The sound of the shotgun being pumped was loud enough for all to hear. Vargas and the other witnesses saw Torrance pump the gun and turn toward Vargas. Vargas then turned his back to Torrance to leave. Torrance then pointed the shotgun at Vargas, but Vargas never did see Torrance point the shotgun at him. At this point, Vargas' wife told Vargas, "Let's go. He are [sic ] going to kill you." Vargas' wife saw Torrance point the gun at Vargas. Torrance denied pointing the gun, and Torrez denied seeing Torrance point the shotgun at Vargas.

Vargas thought that Torrance was going to shoot him when he heard him pump the shotgun. He stated, "I got scared. I was mad and nervous, but in that moment my stomach, I had something in my stomach." Vargas left the scene and reported the incident to the sheriff.

Torrance raises seven issues in his appeal. He argues that the trial court erred when it allowed Mrs. Vargas' statement into evidence. Further, Torrance argues that the court erred when it excluded evidence of a transaction that occurred between Vargas and Torrance 4 days after the incident in question. Third, Torrance argues that the trial court erred when it admitted Torrez' testimony concerning Torrez' lack of apprehension. Fourth, Torrance argues that the trialcourt erred when it denied his motion to dismiss or for acquittal at the close of the State's case. Fifth, Torrance argues that the court failed to instruct on a lesser included offense. Sixth, Torrance believes that the trial court erred when it did not consider his motion for a new trial on the merits. Finally, Torrance argues that the trial court erred when it did not properly consider certain matters at his sentencing.

We will deal with these issues in order and will provide additional facts when necessary.

The trial court admitted, over the objection of Torrance, the statement of Vargas' wife. He states that the effect of the admission of her statement into evidence substitutes Mrs. Vargas' apprehension for Vargas' own apprehension of immediate bodily harm. Vargas stated that when he was approaching the van, Mrs. Vargas said, "Let's go. He are [sic ] going to kill you." Torrance objected to this statement on the basis of hearsay. Initially, the trial court admitted the evidence as part of the res gestae and then, later, as an exception to the hearsay rule as an excited utterance.

Hearsay evidence is "[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated." K.S.A. 60-460. The State argued that Vargas could retell what his wife told him because of three exceptions to the hearsay rule. K.S.A. 60-460(a) allows a hearsay statement if the person is available for cross-examination "provided the statement would be admissible if made by declarant while testifying as a witness." Furthermore, K.S.A. 60-4670(d)(1) allows a statement from a declarant made while perceiving an event. And, finally, K.S.A. 60-460(d)(2) allows a statement made while a declarant was under "the stress of a nervous excitement caused by such perception."

Clearly, Mrs. Vargas was available for cross-examination at the trial. She was a witness to the confrontation between her husband and Torrance. Although Mrs. Vargas does not understand English, she could certainly perceive what was happening. She could see Torrance going to his van and retrieving the shotgun. She could see Torrance pumping the shotgun and pointing it at her husband. Any statement she gave while she was perceiving such an event is admissible pursuant to K.S.A. 60-460(d)(1) and (2).

Despite the fact that Mrs. Vargas was available for cross-examination, Torrance argues that her statement was not relevant. His argument goes to the crux of the offense. It is his position that Mrs. Vargas was frightened and that because her statement was admitted, the jury could substitute her fear for that of her husband, since his back was turned to Torrance when he pointed the shotgun at him. While it is true that Mrs. Vargas' fear cannot be used to show Vargas' apprehension, her statement proves the contention that Torrance was intentionally threatening Vargas and that he did so with a deadly weapon.

The trial court also admitted Mrs. Vargas' statement under a res gestae theory. Res gestae and the hearsay exception of K.S.A. 60-460(d) are separate avenues by which evidence may be admitted; both avenues need not be satisfied in order for the evidence to be admissible. State v. Sanders, 258 Kan. 409, 419, 904 P.2d 951 (1995). Sanders also provides a test for res gestae which trial courts may employ. The trial court "must...