State v. Anderson

427 P.3d 847

STATE of Kansas, Appellee,

v.Anthony Michael ANDERSON, Appellant.

No. 116,710

Supreme Court of Kansas.

Opinion filed October 5, 2018.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Rachel L. Pickering, assistant solicitor general, argued the cause, and Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Johnson, J.:

In this shaken-baby case, Anthony Michael Anderson directly appeals his jury convictions for child abuse and felony murder, claiming four errors: (1) the district court failed to give a unanimity instruction for the charge of child abuse; (2) the State committed prosecutorial error three times during closing argument by engaging in speculation not fairly based on the evidence presented; (3) the district court erroneously admitted testimony under K.S.A. 2017 Supp. 60-455 about Anderson's prior aggressive behavior toward the child victim; and (4) cumulative error requires reversal. Finding that reversal is not required, we affirm.

FACTUAL AND PROCEDURAL OVERVIEW

At the time of the April 26, 2015 incident giving rise to the charges against Anderson, he was in a relationship with Kiera Lamb, who had a six-month-old son, A.O., by another man. Lamb and Anderson lived with his parents, who had another son, Christopher. All were at the house that day, until Lamb left around 2 p.m. to go to work. The parents and Christopher left shortly thereafter to go fishing, leaving Anderson and A.O. alone at the house.

Lamb related that when she left, A.O. was sitting in a bouncer seat; he looked happy and was not crying. Other than a belly button hernia, A.O. had been a healthy child and he was not sick or taking medication on the day of the incident. When Christopher left the house, he observed Anderson feeding A.O., who looked fine.

At 2:43 p.m., first responders were dispatched to the home of Grace Sheldon, a neighbor who lived across the street from Anderson's house. She had called 911 to report that an infant was having trouble breathing. Arriving first, a state trooper observed Anderson pacing around, holding a crying infant whose breathing sounded congested. Anderson told him that the baby had fallen off a couch while he was cleaning the house.

An EMT assessed that A.O. was barely breathing but presented no visible injuries. A.O. was life-flighted to Children's Mercy Hospital in Kansas City where emergency doctors discovered a large subdural hemorrhage on the right side of A.O.'s brain, a retinal hemorrhage in A.O.'s right eye, and a small fracture in his ankle. A craniectomy could not save A.O.; he was later declared brain dead. Lamb authorized the withdrawal of life support, and A.O. was pronounced dead on April 28, 2015.

The pathologist who performed A.O.'s autopsy, Dr. Michael Handler, opined that the cause of death was "non-accidental head injury," and that the manner of death was homicide. He said that A.O.'s injuries were consistent with being shaken or thrown onto a soft surface. Anderson's version of events was that, after he fed A.O., he laid him on the couch to sleep and went to clean the bathroom. Anderson heard a thud and a squawk and returned to find A.O. on the floor, crying and gasping for breath. He picked up A.O., patted him on the back to help him breathe, and took him across the street to the neighbor's house for help.

The State charged Anderson with child abuse and felony murder. Before trial, Anderson filed a motion in limine to exclude any testimony of prior bad acts generally. The State filed a notice of intent to present evidence of other crimes or civil wrongs, proffering that Tesla Bodine, who had previously lived with Anderson and Lamb, would testify that she observed Anderson being rough with A.O. The district court ruled that Bodine's testimony would be admissible under K.S.A. 60-455 to prove identity, relationship, and absence of mistake or accident.

At trial, the State presented the testimony of Dr. Handler, as well as the testimony of the pediatric radiologist who reviewed A.O.'s x-rays and another doctor who evaluated A.O. for signs of abuse. All three doctors opined that A.O. could not have sustained his injuries in a fall from the couch. The defense presented the testimony of a forensic pathologist to offer a competing medical opinion on the cause of A.O.'s injuries.

The jury found Anderson guilty on both counts. The district court denied Anderson's motion for a new trial based on the admission of K.S.A. 60-455 evidence. The court sentenced Anderson to life imprisonment for felony murder and 34 months' imprisonment for child abuse, to run consecutive. The court also imposed lifetime parole. Anderson appealed directly to this court. See K.S.A. 2017 Supp. 22-3601(b)(3).

REFUSAL TO GIVE A REQUESTED UNANIMITY INSTRUCTION

Before closing arguments, the district court held a jury instruction conference, at which the parties agreed that the child abuse instruction would say that the State was required to prove that Anderson "knowingly tortured or cruelly beat or shook [A.O.]" on April 26, 2015. Then the defense counsel requested a "68.10" multiple acts instruction, apparently referring to PIK Crim. 4th 68.100 (2016 Supp.), which states: "The State claims distinct multiple acts which each could separately constitute the crime of insert crime. In order for the defendant to be found guilty of insert crime, you must unanimously agree upon the same underlying act." The "Notes on Use" for that patterned instruction recite that "[t]his instruction is for use when distinct incidents separated by time or space are alleged by the State in a single count of the charging document."

But defense counsel's argument to the district court was that the "multiple acts" instruction was necessary to ensure that the jury unanimously decided whether Anderson tortured A.O., or beat A.O., or shook A.O. The State countered that a multiple acts instruction did not apply because the theory it would present to the jury was that Anderson injured A.O. by throwing him down on the couch or shaking him, as part of one single incident. Ultimately, the district court denied the instruction based on State v. De La Torre , 300 Kan. 591, 331 P.3d 815 (2014).

At the trial level there appears to have been some confusion about or conflation of the concepts of multiple acts and alternative means. On appeal, Anderson's brief clearly states that this is a multiple acts case, which required the district court to give the requested unanimity instruction.

Standard of Review

"Unanimity instruction errors are reviewed under a three-part framework. First, the reviewing court determines whether a multiple acts case is presented. The threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. This is a question of law subject to unlimited review. If the case is a multiple acts case, the next question is whether error was committed. To avoid error, the State must have informed the jury which act to rely upon or the district court must have instructed the jury to agree on the specific act for each charge. Failure to elect or instruct is error. Finally, the court determines whether the error was reversible or harmless. [Citations omitted.]" De La Torre , 300 Kan. at 596, 331 P.3d 815.

Analysis

Anderson's argument on appeal is founded on the premise that the State's evidence is entirely circumstantial and its medical "experts testified that A.O.'s injuries could have occurred either by shaking or by throwing him onto a soft surface." Specifically, Anderson argues that because either act—shaking or throwing down—could independently support a conviction for child abuse, and derivatively for felony murder, the State presented multiple acts that required the jury to be unanimous about which act occurred.

What Anderson describes in his brief is not a multiple acts case. We have attempted to distinguish between multiple acts and alternative means by explaining: "When a single offense is alleged that may be committed in more than one way, the court is presented with an alternative means case. When several acts are alleged, any of which could constitute the crime charged, the court is presented with a multiple acts case. [Citations omitted.]" State v. Bailey , 292 Kan. 449, 458, 255 P.3d 19 (2011). In other words, in an alternative means case, only one crime was committed and only one conviction is possible, although the State says that the one crime may have been committed in one or more different ways. For instance, here, only one felony murder conviction was possible because only one death occurred, no matter how many underlying felonies might have supported the prosecution. See State v. Littlejohn , 298 Kan. 632, 649, 316 P.3d 136 (2014) (regardless of number of potentially fatal acts, victim can be killed only once; defendant could only be charged and convicted of one count of felony murder; and unanimity instruction not legally appropriate). On the other hand, in a multiple acts case, multiple crimes were committed for which the State could have obtained multiple convictions, but the State chose to only charge one count of the crime.

Here, the State did not allege that on April 26, 2015, Anderson both slammed down A.O. onto a soft surface and shook him. Rather, the State's theory, as supported by its medical experts, was that A.O. was abused by either being slammed down on a soft surface or being shaken. Nevertheless, even if Anderson had done both acts—shaken A.O. and threw him down—multiple acts in the legal sense cannot be part and parcel of the same incident. We have explained the spatial and temporal requirements as follows:

"[A] court must decide whether the defendant's conduct is part of one act or multiple acts that are separate and distinct from each other. ‘Multiple acts’ are legally and

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