State v. Betty

353 P.3d 470 (Table)

STATE of Kansas, Appellee

v.Roy BETTY, Appellant.

No. 111468.

Court of Appeals of Kansas.

July 10, 2015.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Clay A. Kuhns, special assistant county attorney, Gaten T. Wood, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BRUNS, J., and HEBERT, S.J.

MEMORANDUM OPINION

PER CURIAM.

Roy Betty appeals from his conviction by a jury of aggravated assault. He argues that the district court erred by failing to instruct the jury on the lesser included offense of simple assault and by failing to give a unanimity instruction. He also argues that the district court violated his statutory and constitutional rights by providing a written response to a jury question. Finally, he suggests that cumulative error denied him a fair trial. We find no reversible error and affirm the conviction.

Factual and Procedural Background

On May 9, 2012, the State charged Betty with one count of aggravated assault with a rifle. Betty pled not guilty to the charge.

At trial, the jury received the following evidence:

Stephen Archuleta testified that Betty had been feeding some stray cats just off the back line of Archuleta's property for a couple of months, but Archuleta wanted to put an end to it when the cats started using his garage as a litter box. Archuleta would sometimes shoot at the cats in his yard to get them to scurry away, and he had also confronted Betty about feeding the cats in this location.

Archuleta testified that when Betty showed up on May 8, 2012, to feed the cats, Archuleta drove his riding lawn mower over to where the cats were eating in order to scare them off. Archuleta then turned to head back to his front yard, passing by Betty as he went. Betty, who was sitting in his car with the door open, jumped out his car and screamed. Archuleta noticed the trunk of Betty's car was open. Archuleta then turned around to look at Betty, and Betty had a rifle pointed at him. Archuleta drove his mower in a zig-zag pattern to try to keep Betty from having a clear shot at him. Once he got to his front yard, Archuleta got off of his mower and told Betty he was calling the police. Betty was no longer holding the gun at that point. Archuleta felt that if a paint crew had not been working on the house next door, Betty would have taken a shot at him.

Sheriff's Deputy Justin Rugg testified that Betty had previously complained to him that Archuleta was harassing Betty's cats and would not let them eat. Betty complained that Archuleta would yell at him and chase the cats away. Rugg suggested that Betty change the location where he fed the cats to avoid the problem, but Betty was not open to the suggestion. About a week later, on May 8, 2012, based on a 911 call from Archuleta, Rugg was dispatched to Archuleta's house. The dispatcher noted that Archuleta claimed Betty had put a cat in his yard; and when Archuleta had gone out to move the cat, Betty had pulled a gun on him. A recording of the 911 call was played for the jury.

On the 911 call, Archuleta requested to speak to an officer because he had just had a gun pulled on him by Betty. Archuleta said Betty had been feeding cats in his yard and when he went get rid of the cats Betty pulled the gun on him. Archuleta said that when Betty pulled the gun on him, he thought Betty was going to shoot him in the back and it had scared him. Archuleta was advised that the Sheriff was on his way and to stay in his house.

On his way to Archuleta's home, Rugg saw Betty and his car at an insurance office, so he stopped to speak with him. Because it was an aggravated assault call, Rugg asked Betty if he had any weapons on him, and Betty said that he did not. While Rugg was patting Betty down, Archuleta yelled out to Rugg from across the street and told him that Betty had a gun in the trunk of his car. Betty admitted that was true, and Rugg retrieved a loaded .22 rifle from the trunk. Betty was thereafter taken into custody.

Betty testified that he had been feeding stray cats at various locations, including the location behind Archuleta's house. He had names for the cats and felt attached to them. Betty and Archuleta had begun to disagree about Betty feeding the cats 2 or 3 months prior to the May 8th incident, but Betty said he ignored Archuleta's complaints. Betty believed Archuleta was shooting at the cats and destroying their food, so on May 8th Betty put the food and water out for the cats behind Archuleta's home and then waited.

Betty testified that Archuleta was on his riding mower and was yelling, but Betty ignored him again. Archuleta then steered his mower in between Betty and the cats, and Betty believed Archuleta was going to kill the cats. Betty testified that he opened his trunk, got out his rifle, pointed it toward the ground, and sat back in his car. He claimed the rifle was still covered in its wrap. Betty said he did not feel threatened, but he was aggravated because Archuleta was going after his cats. Then, when Archuleta came closer on his mower, Betty stood up, put one arm up on his car door, and stood with the gun still pointing down. Betty testified that he never raised the gun or pointed it at Archuleta. Archuleta returned to his house, and Betty replaced the gun in the trunk. Archuleta yelled something about the Sheriff, so Betty drove over to the insurance office and waved Deputy Rugg over to him when Rugg drove up. Betty testified that he did not intend to threaten Archuleta by retrieving his gun, but he felt that Archuleta was smart enough to know that “you don't go [tick] a man off that's got a gun in his hand....”

At the jury instruction conference, Betty did not object to any of the instructions and did not request any additional instructions.

During deliberations, the jury submitted a written question to the trial judge, asking: “Do we have to prove the gun was pointed at Archuleta or just pulling a loaded gun out is the threat enough for reasonable apprehension of immediate bodily harm?” The district court replied by giving the jurors a supplemental instruction, which stated:

“No specific act is necessary to prove the requirements set out in Instructions Nos. 9 and 10. You must determine whether the acts of the defendant were done knowingly as set forth in Instruction No. 9 and whether the act or acts of the defendant knowingly placed Steven Archuleta in reasonable apprehension of bodily harm. You as the jury must find that the State has proven all of the claims set forth in Instruction No. 10.”

Betty did not object to the supplemental instruction, and he did not object to the procedure used when the district court had the supplemental instruction delivered to the jury room.

The jury found Betty guilty of aggravated assault. Betty moved the court for a judgment of acquittal and for a new trial, arguing that there were multiple acts which could have constituted the aggravated assault—one when Betty simply took the gun out of his trunk and one when Archuleta claimed that he turned around and saw the gun pointed at him—and that the State either had to tell the jury which act to rely on during deliberations or the district court needed to instruct the jury that it had to agree on the specific criminal act. At a hearing on the motions, the district court concluded that this was not a multiple acts case, and it denied both motions.

At the sentencing hearing, the district court granted Betty's motion for dispositional departure and sentenced him to 24 months' probation with 13 months' imprisonment underlying. Betty filed a timely notice of appeal.

Failure to Instruct on Simple Assault

Betty first argues that the district court erred by failing to sua sponte instruct the jury regarding a lesser included offense of simple assault.

Standard of Review

A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, stating distinctly the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction is clearly erroneous. K.S.A.2014 Supp. 22–3414(3) ; State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). Because Betty did not request this instruction or object to the district court's failure to give this instruction sua sponte, we review this issue to determine if the failure to give the instruction was clear error. To make this determination, we must decide whether there was any error at all by first considering whether the instruction was legally and factually appropriate by employing an unlimited review of the entire record. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).

The Statutes and Evidence

The district court must instruct the jury on a lesser included offense where some evidence would reasonably justify a conviction on the lesser offense, but this duty to instruct only arises where there is evidence supporting the lesser crime. State v. Johnson, 290 Kan. 1038, 1042–43, 236 P.3d 517 (2010). On review, this court must consider the instructions as given as a whole, rather than the desired instruction in isolation, and if those instructions fairly state the law as applied to the facts of the case and the jury could not reasonably be misled by them, then the instructions are not reversible error even if they contain some error. 290 Kan. at 1043, 236 P.3d 517.

K.S.A.2014 Supp. 21–5412(a) defines assault as “knowingly placing another person in reasonable apprehension of immediate bodily harm.” K.S.A.2014 Supp. 21–5412(b) defines aggravated assault as “assault as defined in subsection (a), committed: (1) With a deadly weapon.” Simple assault is a lesser included offense of aggravated assault. See State v. Torrance, 22 Kan.App.2d 721, 728–29, 922 P.2d 1109 (1996). Thus, a jury instruction on simple assault would have been legally appropriate here if reasonably justified by the evidence.

Here, it was uncontested...