State v. Byrd

498 P.3d 184 (Table)

STATE of Kansas, Appellee,

v.Marquise D. BYRD, Appellant.

No. 122,458

Court of Appeals of Kansas.

Opinion filed November 5, 2021.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Buser, J., and Walker, S.J.

MEMORANDUM OPINION

Buser, J.:

Marquise D. Byrd appeals his convictions and sentence for aggravated domestic battery, endangering a child, and battery. He contends the district court erred by declining to give a lesser included offense instruction of domestic battery, declining to submit a verdict form that listed "not guilty" before the option of "guilty," and classifying a prior juvenile adjudication for aggravated burglary as a person felony in scoring his criminal history at sentencing. Finding no reversible error, we affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2018, the State charged Byrd with one count of aggravated domestic battery, a severity level 7 person felony, in violation of K.S.A. 2017 Supp. 21-5414(b)(1), (c)(2). The charge resulted from allegations by his ex-girlfriend, G.T., that he had choked and beaten her repeatedly during a domestic disturbance in October 2017. Before trial, the State filed an amended information to add two charges related to H.T., G.T.'s then one-year-old son who was also involved during the incident. Those charges were endangering a child, a class A person misdemeanor, in violation of K.S.A. 2017 Supp. 21-5601(a) ; and battery, a class B person misdemeanor, in violation of K.S.A. 2017 Supp. 21-5413(a)(1), (g)(1).

The jury trial was held in October 2019. The State's primary witness, G.T., testified that she and Byrd were in a romantic relationship in October 2017 and had been dating for about two months. On the night of October 27, 2017, G.T.'s sister, brother, and nephew came over to her house along with Byrd. Everyone was drinking. After her family left, G.T. and Byrd began arguing about something that her brother had said.

The dispute escalated in the bedroom as Byrd repeatedly hit G.T. in the face with his closed fist. Then, according to G.T., "[he] started choking me." As described, Byrd was behind G.T. as he choked her by putting her in a headlock. This was accomplished by having G.T.'s neck right up against the interior part of Byrd's elbow. As a consequence, G.T. testified she was unable to breathe and was losing vision, and "[a]fraid, scared for my life." G.T. was able to loosen Byrd's compression on her neck but as she tried to escape Byrd wrapped his legs around her neck. With more pressure applied to that area, G.T. could not breathe and began losing her vision.

During this time, H.T. was on the floor crying. When G.T. managed to get free, she picked up H.T. and ran to the door. Byrd ran after her and ordered her back into the bedroom. G.T. went with Byrd because she thought it would stop the attack. Byrd pushed her as she was walking in the hallway, causing H.T. to bump his head on the wall. G.T. said the bump caused a noticeable sound.

According to G.T., while in the bedroom, she sat on the bed. Byrd continued hitting her—while she was still holding H.T. Eventually, G.T. managed to run outside crying for help. There were people in a car across the street, who asked if she was okay. G.T. responded, "No. He's trying to kill me." As the people tried to approach, they started screaming, "He has a gun. He has a gun." But G.T. did not see Byrd with a gun. G.T. got in the car and was driven to her mother's home. She then went to the emergency room at Wesley Hospital.

G.T. told the nurses what had happened, which prompted them to call the Wichita Police Department. Officer Alli Larison arrived to speak with G.T. Initially, G.T. declined to talk with the officer but she later relented and gave a statement.

Officer Larison testified that when she first approached G.T. at the hospital, she was quiet and did not want to speak with her. Eventually, G.T. told the officer that she was at home with Byrd hanging out and watching TV in bed when he began poking her. G.T. got annoyed, which angered Byrd. He grabbed and twisted her right arm, then grabbed her hair and started hitting her head. Byrd then choked G.T. but she managed to fight him off. She tried to get up and he choked her again for a longer period, but she managed to fight him off again. After G.T. ran and grabbed H.T., Byrd pushed her against the wall causing H.T. to hit his head. Officer Larison testified she could feel a bump on the infant's head.

According to Officer Larison, G.T. said Byrd used both hands during the second choking incident and that she felt dizzy or woozy and started seeing white dots. Officer Larison testified that she observed "red and purple and blue bruising on the sides of [G.T.'s] neck," and marks on her hand and arm. The officer took numerous photographs of the bruising on G.T.'s neck which were shown to the jury. Officer Larison also activated her body camera as she approached G.T. and the video recording was admitted as a State's exhibit. The officer testified that based on her training in investigating strangulation cases, G.T.'s report of feeling dizzy, woozy and having white spots in her vision were consistent with the act of strangulation that impedes blood flow and normal breathing.

Detective Javier Guete of the Wichita Police Department also testified. Detective Guete specialized in investigating domestic violence and sex crimes in October 2017. The detective called G.T. a few days after the incident to ask a few questions. G.T. told Detective Guete she had not been in contact with Byrd since the day of the incident and that she wanted to drop the charges. G.T. told the detective she "thought that situations would be worse if she continued to press charges," and "didn't want to get family involved." According to Detective Guete, G.T.'s behavior was consistent with other domestic violence cases he had investigated.

After the State rested, Byrd moved for a judgment of acquittal which the district court denied. Byrd did not present any witnesses. Following deliberations, the jury found Byrd guilty as charged. Byrd filed a motion for new trial and judgment of acquittal in November 2019. The motions were denied.

At sentencing, the district court denied Byrd's motion for departure sentences. He was sentenced to 31 months in prison upon his conviction for aggravated domestic battery. The misdemeanor convictions resulted in jail sentences which were imposed concurrent to the felony offense.

Byrd timely appealed.

LESSER INCLUDED OFFENSE INSTRUCTION

Byrd contends the district court erred when it declined to instruct the jury on domestic battery under K.S.A. 2017 Supp 21-5414(a)(2), as a lesser included offense of aggravated domestic battery under K.S.A. 2017 Supp. 21-5414(b)(1). In response, the State disputes whether Byrd preserved this challenge below, but it also contends the district court properly declined to instruct on the lesser included offense. Alternatively, the State argues that any instructional error was harmless.

Before trial, Byrd submitted proposed jury instructions but did not request any lesser included offense instructions. At the jury instructions conference, Byrd asked the district court to add "a misdemeanor alternative" for the aggravated domestic battery charge. Defense counsel explained that based on the evidence "it might be feasible for a jury to believe there was some un-permitted touching on [G.T.]" that did not rise to the level of a "choking."

The State objected, asserting that only some of the elements would match to allow misdemeanor battery as a lesser included offense, specifically distinguishing "the form of contact" as an inconsistent element between the two offenses. Defense counsel countered that "the markings are slight enough that ... it could be considered just a simple battery, and I feel like the jury could find that, so—the misdemeanor domestic battery , Your Honor." (Emphasis added.)

The district judge declined Byrd's request for a lesser included offense instruction, reasoning:

"I don't believe that domestic battery or that misdemeanor domestic battery fits as a lesser included charge of aggravated domestic battery. And there has been no—without any precedent or case [c]ite proffered to the Court, I'm going to decline at this point in time to give that lesser included instruction."

We begin the analysis with our standards of review. When analyzing jury instruction issues, appellate courts follow a three-step process:

"'We must first decide whether the issue has been preserved. Second, we analyze whether an error occurred. This requires a determination of whether the instruction was legally and factually appropriate. We exercise unlimited review of those questions. Next, if we find error, we conduct a ‘reversibility inquiry.’ [Citations omitted.]" State v. Gentry , 310 Kan. 715, 720, 449 P.3d 429 (2019).

With these standards in mind, we will first address the State's complaint that Byrd did not preserve the jury instruction issue for appellate review.

Preservation

This first question is important because whether the issue was preserved affects our reversibility inquiry at the third step of the analysis. State v, McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018) ; see K.S.A. 2020 Supp. 22-3414(3) ("No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.").

Byrd asserts that he asked the district court to instruct the jury "on the lesser-included offense of ‘domestic battery’ " and "[t]hus, this issue is properly preserved for the more...