State v. Ultreras

• Decision Date: 01 March 2013
• Docket Number: No. 103,527.,103,527.
• Citation: 295 P.3d 1020
• Parties: STATE of Kansas, Appellee, v. Manuel ULTRERAS, Appellant.
• Court: Kansas Supreme Court

295 P.3d 1020

STATE of Kansas, Appellee,
v.
Manuel ULTRERAS, Appellant.

No. 103,527.

Supreme Court of Kansas.

March 1, 2013.

[295 P.3d 1022]

Syllabus by the Court

1. The standard of proof for whether a defendant is entitled to immunity from criminal prosecution pursuant to K.S.A. 21–3219 is probable cause.

2. The State bears the burden of establishing proof that force was not justified as part of the probable cause determination required under K.S.A. 21–3219(b) and (c).

3. The application of an erroneous standard and burden of proof when ruling on a motion to dismiss that is based on a claim of immunity under K.S.A. 21–3219 may be harmless if, under the test of K.S.A. 60–261 and K.S.A. 60–2105, there is no reasonable probability the error affected the outcome of the trial.

4. The Kansas Legislature did not state alternative means of committing aggravated battery when it provided in K.S.A. 21–3414(a)(2)(A) that aggravated battery could be committed by “recklessly causing great bodily harm to another person or disfigurement of another person.” The term “disfigurement” merely describes a factual circumstance that proves great bodily harm. As such, disfigurement is an option within a means and not an alternative means of committing aggravated battery.

5. The Kansas Legislature did not state alternative means of committing aggravated battery when it provided in K.S.A. 21–3414(a)(2)(B) that aggravated battery could be committed by “recklessly causing bodily harm to another person with a deadly weapon” or by “recklessly causing bodily harm to another person ... in any manner whereby great bodily harm, disfigurement or death can be inflicted.” The term “deadly weapon” is defined as an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury. This means that the phrase “with a deadly weapon” is merely a factual circumstance describing a manner whereby great bodily harm, disfigurement, or death, can be inflicted. As such, it is an option within a means rather than an alternative means of committing aggravated battery.

6. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. In order to ensure jury unanimity as to the specific act for which the defendant is convicted, the district court must either require the State to elect the particular criminal act upon which it will rely or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt.

7. A three-part test determines when a multiple acts situation has occurred such that

[295 P.3d 1023]

the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the district court to instruct. Third, the court must determine whether the error is reversible.

8. Acts are multiple acts if they are factually separate and distinct. Factors to consider when determining whether there is unitary conduct or multiple acts include whether: (1) the acts occurred at or near the same time; (2) the acts occurred at the same location; (3) a causal relationship existed between the acts, in particular whether an intervening event separated the acts; and (4) a fresh impulse motivated some of the conduct.

9. Evidence that a witness failed to honor a subpoena is material to credibility.

10. Under the constitutional harmless error standard, the party benefitting from the error has the burden of proving beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record, i.e., there is no reasonable possibility the error contributed to the verdict.

11. Whether an error in the exclusion of evidence is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.

Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, Wichita, argued the cause and was on the briefs for appellant.

Jacob G. Fishman, assistant county attorney, argued the cause, and Terry J. Malone, county attorney, Kevin O'Keefe, assistant county attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by PER CURIAM:

This appeal raises first-impression issues regarding the burden of proof when a criminal defendant asserts immunity from criminal prosecution under the justified use-of-force provisions of K.S.A. 21–3219. We hold that the burden of production to negate a claim of immunity rests with the State and the controlling standard of proof is probable cause. Applying those holdings to the facts of this case, we conclude the district court erred in requiring the defendant to prove by a preponderance of the evidence that the use of force was lawful. Nevertheless, we hold this error was harmless.

In another issue we consider alternative means arguments relating to the aggravated battery statute, K.S.A. 21–3414. We hold the Kansas Legislature did not state alternative means of committing aggravated battery by separately referring to “bodily harm” and “disfigurement” in K.S.A. 21–3414(a)(2)(A) or “causing bodily harm ... with a deadly weapon” and “causing bodily harm ... in any manner whereby great bodily harm, disfigurement or death can be inflicted” in K.S.A. 21–3414(a)(2)(B).

In response to other issues raised by the defendant, we conclude: The district court did not commit error by not giving a unanimity instruction because the defendant did not commit multiple acts of battery against the victim at issue in count II and, while the district court may have erred in denying the defendant the right to cross-examine witnesses regarding why they did not honor their subpoenas, the error was harmless beyond a reasonable doubt. Accordingly, we affirm.

Facts and Procedural History

Manuel Ultreras directly appeals his convictions for three counts of aggravated battery. In count I, Ultreras was convicted of the aggravated battery of Miguel Mendoza by recklessly causing great bodily harm or disfigurement in violation of K.S.A. 21–3414(a)(2)(A). In counts II and III, Ultreras

[295 P.3d 1024]

was convicted of the aggravated battery of two brothers—Victor Urbina–Gonzales and Oscar Urbina, respectively. Count II was also a violation of K.S.A. 21–3414(a)(2)(A) while count III was a violation of K.S.A. 21–3414(a)(2)(B), which prohibits “recklessly causing bodily harm ... to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”

The convictions stem from a fight on the night of June 2, 2007, at a bar owned by Ultreras' father where Ultreras worked. Around 10 p.m., a group of men, including the three victims, arrived at the bar. Several of the men in the group were underage; consequently, the bar employees kept a close watch on the men to make sure those who were underage were not drinking. When two security guards saw Urbina–Gonzales, who was underage, drink from another person's alcoholic beverage, Ultreras' brother, who also worked at the bar, approached Urbina–Gonzales. Urbina–Gonzales denied drinking and refused a request to leave. The security guards began to physically escort Urbina–Gonzales out of the bar. Urbina–Gonzales resisted, and Urbina rushed to help him. A fight broke out.

According to testimony from the employees, Urbina–Gonzales punched one of the security guards in the face and Urbina picked up a pool stick as he approached the group. A security guard grabbed the pool stick and shoved Urbina against a ledge. The bar employees continued to move the group to the door.

Ultreras was behind the bar and near the door as the scuffle moved past him. He picked up a metal baton and joined in the fight, which moved outside to the sidewalk. The bar employees testified that, once outside, the group of men kept coming toward them. The employees tried to block the door, but individuals grabbed the door, threw punches, and refused to leave.

Urbina–Gonzales testified the security guards put him in a headlock and Ultreras hit him on “my head, my ribs, my arms,” causing him to “blackout” for a “[c]ouple of seconds, 20, 20 seconds, 15–20 seconds.” He explained he was inside the club when he blacked out and “[t]he next thing I know we were outside the club. They were still attacking us [on] the sidewalk.” At that point, Ultreras hit him with the metal baton, causing him to lose one tooth and reduction of two other teeth to form a crown.

Urbina testified that when he came to his brother's defense, he told the security guards he would remove his brother from the bar. The bar employees pushed him out of the bar and, once outside on the sidewalk, Ultreras hit him with the metal baton. Urbina testified that after he and his brother moved toward their car, he came back and asked if he could go back inside to retrieve his brother's cell phone. Ultreras denied the request and swung the baton at Urbina's head. Urbina raised his arm in defense, and the resulting blow to his arm led to a bump that Urbina still had at the time of the trial.

A third victim, Mendoza, testified that he voluntarily left the club after Urbina–Gonzales and Urbina had been removed. Once outside, Mendoza walked across the street, away from the altercation but, after watching the Urbina brothers take additional blows on the sidewalk, he walked to the middle of the...