State v. Weis

• Decision Date: 15 June 2012
• Docket Number: No. 104,295.,104,295.
• Parties: STATE of Kansas, Appellee, v. Steven Howard WEIS, Appellant.
• Court: Kansas Court of Appeals

47 Kan.App.2d 703

280 P.3d 805

STATE of Kansas, Appellee,

v.Steven Howard WEIS, Appellant.

No. 104,295.

Court of Appeals of Kansas.

June 15, 2012.

Syllabus by the Court

1. The admissibility of any and all other crimes and civil wrongs evidence, including res gestae evidence, is governed by K.S.A. 60–455.

2. Determining whether evidence was properly admitted pursuant to K.S.A. 60–455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard for reviewing materiality is de novo. The appellate court must also determine whether the material fact is disputed, i.e., the element or elements being considered must be substantially at issue in the case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate court reviews relevance—in particular, the probative element—of K.S.A. 60–455 evidence for abuse of discretion. The burden of proof is on the party alleging the discretion is abused. The court must also determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion.

3. When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury.

4. When a party neither suggests an instruction nor objects to its omission at trial, the instruction will be examined to determine if the giving or failure to give the instruction was clearly erroneous. Under the clearly erroneous standard of review, an appellate court must be able to declare a real possibility existed that the jury would have returned a different verdict if the trial error had not occurred.

5. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after 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.

6. Under the facts of this case, the district court's factual finding that the defendant used a deadly weapon in the commission of reckless aggravated battery which resulted in the court's order for the defendant to register under the Kansas Offender Registration Act, K.S.A.2010 Supp. 22–4902(a)(7), did not violate the Sixth and Fourteenth Amendments to the Constitution of the United States.

Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.

Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

BUSER, J.

A jury found Steven H. Weis (Steven) guilty of two counts of reckless aggravated battery, K.S.A. 21–3414, and one count of criminal use of a weapon, K.S.A. 21–4201(a)(1). Steven appeals his convictions and sentencing. We affirm.

Factual and Procedural Background

This case arose from a disturbance between Steven and Anthony Napoleone, Thomas Nece, and Justin Lakkari in the early morning hours of Sunday, July 13, 2008. Anthony and Justin were friends. Steven had been dating Alicia Napoleone, Anthony's sister and Thomas' stepsister. At the time of this incident, Steven was living on a farm near Brookville. Alicia lived in Salina.

There was some evidence that Steven was not on friendly terms with Anthony, Thomas, and Justin. Specific disagreements, however, were not admitted at trial. These included that Anthony disliked Steven for introducing Alicia to methamphetamine use, that Steven had fought Justin after hitting Justin's girlfriend, and that Steven had fought Thomas in a bar. The trial court reasoned that even if the four men “had 20 fights in the past or 20 arguments in the past,” “those matters were settled” and were not “really relevant as to what happened” on July 13, 2008.

On Saturday evening, July 12, 2008, Alicia went out drinking with Anthony, Thomas, Justin, and others. Alicia had met the group at a house belonging to Ryan and Chelsea Haden. The plan was to ride in the Hadens' van and visit drinking establishments. At about 1:30 a.m., on Sunday, July 13, 2008, Alicia was still out partying with the group when Steven called to say he was on his way to Salina to spend the night with her.

After receiving Steven's phone call, Alicia left the group and started walking towards her house. Steven soon arrived with his stepbrother, who was giving him a ride. The men picked up Alicia and drove to the Hadens' house to retrieve Alicia's vehicle, an older Jeep in poor mechanical condition. After Steven's stepbrother left, Steven and Alicia discovered the Jeep would not start. By that time, the group which had been partying returned to the Hadens' house. From this point on, the accounts of what occurred were dramatically different.

At trial, Alicia testified that she and Steven began walking to her house after one of the group approached the Jeep. Steven agreed, adding “[t]hat's when I found out that her friends, family were there.” Steven said he told Alicia, “I was going to go, she can come if she wanted to,” and that Alicia had to run “around the Jeep to catch up with me.” Of note, Steven and Alicia specifically denied there was any argument or violence between them while they were at or around the Jeep.

Alicia testified that she soon noticed Anthony, Thomas, and Justin following them. According to Alicia, Anthony and Thomas started yelling at Steven, calling him “a bitch and a pussy,” and “telling him to come back and fight.” Alicia said she told Steven to keep walking.

Alicia said Anthony, Thomas, and Justin continued to follow them, and she “eventually turned around to kind of stop it, because it was just kind of monotonous.” She again told Steven to keep walking. Alicia testified that Anthony passed by her towards Steven with a look of anger on his face. Alicia tried to talk to Thomas and Justin, but they soon bolted past. Alicia testified she turned around and “all four of them ... were all kind of fighting together.”

In his defense, Steven's testimony substantially corroborated Alicia's testimony. Steven said the followers were “shouting, hey, pussy, come back here and fight” and that he recognized Anthony's voice among them. Steven said Alicia “stopped to talk to her brothers and she told me to keep walking.” He said he heard “somebody running up behind me” and that when he turned it was Anthony “about a foot away from me ... and just yelling, leave his sister alone or he was going to kick my ass.” Steven testified Thomas ran up “waiving [ sic ] something shinny [ sic ]” and the “[n]ext thing I know Anthony is tackling me at my feet.” Steven said he did not swing at Anthony and that he was eventually able to free himself and run away.

Anthony, Thomas, Justin, and the other State's witnesses provided a markedly different account. Anthony testified that after the group had returned to the couple's house, he noticed Steven and Alicia arguing in the Jeep. Anthony said he then saw Steven “smack her in the face.” Anthony said he “took a deep breath and minded my own business for a second.”

Anthony stated that Steven then left the Jeep and that Alicia followed him. But, according to Anthony, Steven “smacked her again” and “turned back to me and said, what's the matter, pussies, you not going to fight me tonight, something like that.” Anthony said this statement “pushed my button ... [s]o, I started walking after him.” When asked why he had followed Steven, Anthony answered, “Because I was angry that he had hit my sister.”

Anthony testified that Steven and Alicia stopped together “and waited for me.” Anthony admitted, “I was screaming at him,” but he could not recall at trial what he had said. Anthony said Alicia was screaming as well, but at trial he had “no idea” what she said. His next memory was Steven taking a swing at him. Anthony said he ducked and fell to the ground. He was unable to feel his legs.

Thomas testified regarding the events in the early morning. He testified that he was entering the Hadens' house when “someone said that Steven and Alicia were out front arguing and then Justin said that he ... saw him hit her.” Thomas recalled that Steven and Justin “exchanged some words,” and then Steven “turned around. He said, what, you pussies don't want to fight tonight.” At that point, Thomas said, Steven “backhanded” Alicia.

Thomas said he approached Steven and told him, “[H]ey, man, you can't be doing that shit, what's your problem.” Thomas said Steven replied, “[expletive deleted] you, whatever, I'll do what I want, pussies, [you] can't do anything to stop me, or something like that.” Thomas agreed with Anthony that Steven and Alicia stopped together, and he agreed with Alicia that it was Anthony who approached the couple because “that's his blood sister, so he's like, you know, I'll go take care of this.” Soon after, according to Thomas, Steven “grabbed Anthony and hit him in the back, and then Anthony was laying [ sic ] on the ground.”

Justin also testified at trial. He was inside the Hadens' house when he heard someone yell. He looked out and saw Steven and Alicia outside the Jeep. Justin said he “witnessed [Steven] either punch or slap [Alicia]. I don't know exactly what it was. But he hit her.”

Justin said Steven and the other men were yelling at each other, but he could not recall in detail what each one said. He did remember that Anthony “said something about hitting my sister. He said, why don't you do that over here, or something like that, in front of my...