State v. Evans

497 P.3d 214 (Table)

STATE of Kansas, Appellee,

v.Gabriel Tipton EVANS, Appellant.

No. 122,117

Court of Appeals of Kansas.

Opinion filed October 15, 2021.

Carol Longenecker Schmidt, 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 Warner, P.J., Malone and Buser, JJ.

MEMORANDUM OPINION

Per Curiam:

Gabriel Tipton Evans appeals following his convictions of two counts of aggravated domestic battery and one count of aggravated assault. Evans claims: (1) The district court erred in failing to instruct the jury on the lesser included offense of simple assault; (2) the district court erred in failing to define the term "deadly weapon" in the aggravated assault instruction; (3) the district court erred in admitting prior crimes evidence under K.S.A. 60-455 ; (4) the district court failed to make the "deadly weapon" finding required to invoke the registration requirements of the Kansas Offender Registration Act (KORA); (5) the district court erred in calculating Evans' criminal history score; (6) the Kansas Sentencing Guidelines Act's (KSGA) use of judicial findings of prior convictions is unconstitutional under section 5 of the Kansas Constitution Bill of Rights and the Sixth Amendment to the United States Constitution; and (7) cumulative error deprived him of a fair trial. Finding no reversible error, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

S.S. and Evans were in an on-again, off-again relationship since 2013. On May 25, 2018, S.S. and Evans were together and they spent the day getting coffee, going for a ride on his motorcycle, and sitting on the front porch. While on the porch, S.S. and Evans were looking at the tires on Evans' motorcycle when Evans noticed a ding on the rim of his front tire. Evans began to yell at S.S. and accused her of letting someone into his garage to steal his motorcycle.

Evans chased S.S. around outside. Then they went inside and he pushed her into a wall. Evans grabbed a "wood splitter" from the kitchen, took it outside and said it matched the ding perfectly, and claimed that S.S. used it to pop his tire off.

When Evans came back inside, he continued to yell at S.S., grabbed her by her hair, picked up a ceramic paring knife with a 4 ½-inch blade, and dragged S.S. downstairs. Evans pushed S.S. onto a couch and got on top of her. He held her down with one hand on her throat and one hand pressing the knife against her throat. Evans told her she was not leaving until she revealed who she let into his house. S.S. tried to get up, but Evans pushed her back down and put his hands around her throat again. Evans applied pressure to S.S.'s neck to the point where she had trouble breathing and got dizzy.

Evans then grabbed S.S. by the arm and brought her upstairs. S.S. went into the bathroom to wash the blood off her neck that came from a small puncture wound left by the knife. She then sat on the couch and told Evans to calm down. Evans sat in a chair but continued to tell S.S. that he knew she let someone into his house. S.S. continued to deny letting someone in his house and Evans came over to the couch and pushed S.S. down with his hands around her throat. S.S. again struggled to breathe, felt like she would pass out, and felt "fuzzy."

Evans then let go of her and went back to the chair he was sitting in. S.S. opened the front door, but Evans asked her what she was doing. S.S. then sat on the couch for a little while, but then she got up and moved toward the door leading to the garage. When Evans turned to look out the sliding door at a passerby, S.S. ran out the front door. She drove to her mother's house. S.S. did not call the police until the next day, when she saw Evans driving through her parents' trailer park.

Wichita Police Officer Jerrad Daniels responded to S.S.'s call. S.S. told Daniels that Evans strangled her several times and put a knife to her throat because he thought she helped people try to steal his motorcycle. Daniels saw a puncture mark on her neck that S.S. claimed was from the knife and photographed it. He also observed and photographed bruising on the left side of her neck.

Daniels also spoke with Evans after he was arrested. Evans admitted that he and S.S. argued, that he was angry, and that S.S. told her dad that he held a knife to her throat. Daniels asked if anything physical happened during the argument. Evans did not answer the question but stated that S.S. liked to be choked during sex.

Wichita Police Officer Chad Spaulding was assigned to investigate S.S.'s case. Spaulding called S.S. in for an interview. S.S. told Spaulding about the events as outlined above. Spaulding asked S.S. about her sexual relationship with Evans. S.S. admitted that she and Evans often had sex that involved him strangling her and that she enjoyed it; but she stated that is not what happened on May 25, 2018.

On June 7, 2018, the State charged Evans with aggravated domestic battery and aggravated assault. The State moved to admit Evans' 2015 convictions for violating a protective order under K.S.A. 60-455. The State argued the prior case was relevant to show the relationship between Evans and S.S. and that Evans suffers from delusions that lead to domestic violence incidents. Evans objected arguing the evidence was being used to show propensity. The district court granted the State's motion, finding the evidence was relevant to show the "context of [the] allegation[s]," the relationship between the parties, intent, preparation, plan, or absence of mistake.

On May 22, 2019, the State filed an amended information, charging Evans with two counts of aggravated domestic battery and one count of aggravated assault. The district court held a jury trial. S.S., Daniels, and Spaulding testified for the State.

During the State's case-in-chief, the State asked S.S. about a 2015 domestic violence incident between her and Evans that the court had found admissible under K.S.A. 60-455. Evans requested a continuing objection, which the district court granted. S.S. explained that the case stemmed from an incident where Evans believed there was a device in his ear that let S.S. and others listen to him. Evans drove S.S. around and threatened to kill her with a gun while demanding she remove the device. When Evans stopped the truck, S.S. jumped out and ran to a QuikTrip. Because S.S. did not appear in court, the charges were reduced to violation of a protection from abuse order. S.S. said she did not cooperate in that case because she still loved Evans. The State then called Wichita Police Officer John Knight who testified about responding to the 2015 incident.

Evans did not testify at trial. Evans' defense was that S.S. was not really scared during the incident on May 25, 2018, because she waited a day before calling the police and that any injuries were from consensual sex sometime before the incident. The jury found Evans guilty as charged and found all three counts to be acts of domestic violence. After reading the verdict, the district court informed Evans that he had a duty to register as a violent offender.

On July 16, 2019, the district court held a sentencing hearing. The district court personally addressed Evans about his criminal history as set forth in the presentence investigation (PSI) report. Evans objected to the PSI report being prepared without his permission but made no other objection to his criminal history. The district court sentenced Evans to a controlling term of 60 months' imprisonment based in part on his criminal history score of A. Evans timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR BY FAILING TO INSTRUCT THE JURY ON SIMPLE ASSAULT ?

Evans argues that the district court erred in declining to give the lesser included offense instruction of simple assault. At trial, the district court instructed the jury on aggravated assault, requiring the jury to find "[Evans] knowingly placed [S.S.] in reasonable apprehension of immediate bodily harm ... with a deadly weapon." See K.S.A. 2020 Supp. 21-5412(b)(1). Evans requested that the district court issue a simple assault instruction, but the district court denied his request, pointing to the use of a knife and finding that if an assault occurred it was with the knife or not at all.

Evans argues the simple assault instruction was legally appropriate as it is a lesser included offense of aggravated assault. He also argues that a simple assault instruction was factually appropriate because S.S. did not testify that she believed the knife was a deadly weapon and, thus, a reasonable juror could have concluded that S.S. did not believe it was a deadly weapon. Evans argues the error is reversible.

The State concedes that simple assault is a legally appropriate lesser included offense of aggravated assault. But the State argues the instruction was not factually appropriate. The State argues that the district court correctly concluded that the only evidence of assault in the case occurred based on the use of the knife. The State argues in the alternative that any error was harmless.

This court employs a multi-step process to review claims of jury instruction error. First, this court must decide whether the issue was preserved. State v. Williams , 308 Kan. 1439, 1451, 430 P.3d 448 (2018). Because Evans requested a lesser included offense instruction of misdemeanor simple assault, he properly preserved the issue. Second, this court must decide whether an error occurred by determining whether the requested instruction was legally and factually appropriate. In addressing the first two steps, this court exercises unlimited review. 308 Kan. at 1451. If error is found, this court must then determine whether the error is reversible. 308 Kan. at 1451.

Simple assault is a legally appropriate lesser included offense of aggravated assault. See K.S.A. 2020 Supp. 21-5412(b)(1) (...