State v. Flesher

1

State of Kansas, Appellee, v. William Wesley Flesher Jr., Appellant.

No. 125,821

Court of Appeals of Kansas

December 6, 2024

NOT DESIGNATED FOR PUBLICATION

Oral argument held November 12, 2024.

Appeal from Riley District Court; GRANT D. BANNISTER, judge.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Kris W. Kobach, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE and BRUNS, JJ.

MEMORANDUM OPINION

PER CURIAM:

A jury convicted William Wesley Flesher Jr. of aggravated battery aggravated burglary, and theft. Flesher timely appeals his convictions, arguing the district court erred in failing to give instructions he did not request and by providing a legally incorrect answer to a jury question. Flesher also claims the prosecutor committed prosecutorial error in closing argument and the cumulative effect of all these errors denied him a fair trial. Following a careful review we find the district court erred in failing to provide the unrequested instructions, but Flesher failed to show clear error, and there was no error in the answer provided to the jury or the statements by the prosecutor.

Because the claimed errors are instructional errors, and Flesher did not show clear error, there is no cumulative error analysis for us to consider. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 20, 2021, Flesher texted Vera Birdwell seeking clarification on the status of their relationship. Birdwell blocked Flesher's phone number. Around midnight, Flesher showed up at Birdwell's residence unannounced. Birdwell continually asked Flesher to leave, hit him in the head with a handgun, and threw shoes at him to get him out of her residence. When Birdwell hit Flesher with the gun, it discharged. Birdwell put the gun down, called her neighbor for help, and turned her back to Flesher while she was on the phone. Flesher began mouthing off to Birdwell and attacked her from behind, striking her multiple times and causing a piece of her ear to be torn by the set of keys in his hand. After a short struggle, Flesher then grabbed Birdwell's gun and fled.

The State charged Flesher with aggravated battery, aggravated burglary, and theft. Flesher proceeded to a jury trial in September 2022.

The facts need not be set out in detail to address the issues raised on appeal as Flesher admits he entered Birdwell's residence and remained in her home even though she repeatedly told him to leave before he struck her on her head and face. The issues on appeal address his claims of instructional error to the jury, prosecutorial error, and cumulative error. Additional facts will be set out as needed.

ANALYSIS

I. THE DISTRICT COURT DID NOT COMMIT CLEAR ERROR WHEN IT FAILED TO INSTRUCT THE JURY THE STATE MUST DISPROVE SELF-DEFENSE BEYOND A REASONABLE DOUBT

Flesher admits the district court provided a self-defense instruction and a general burden of proof instruction but now claims the district court erred by failing to instruct the jury the State also had the burden to disprove his self-defense claim beyond a reasonable doubt and the burden does not shift to him as the defendant. Flesher argues this instructional error demands reversal of his aggravated battery and aggravated burglary convictions as it denied him a fair trial. In response, the State claims Flesher's argument fails as the jury instructions read in their entirety were sufficient. Flesher replies that the State's argument makes K.S.A 21-5108(c) redundant and unnecessary.

When considering instructional issues, we first consider the reviewability of the issue from both jurisdiction and preservation viewpoints. We then consider whether the instruction was legally and factually appropriate. Finally if the district court erred, we must determine whether the error was harmless. State v. McLinn, 307 Kan. 307 317-18, 409 P.3d 1 (2018).

Our reversibility inquiry depends on whether a party properly preserved the jury instruction issue below. 307 Kan. at 317. Unpreserved instructional errors are reviewed for clear error. K.S.A. 22-3414(3). Jury instructions are clearly erroneous if an error occurred and we, as the reviewing court, are "'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.'" McLinn, 307 Kan. at 318. The party claiming clear error carries the burden to establish prejudice. 307 Kan. at 318.

The parties agree that "[w]hen a defendant articulates a defense of self-defense, it is error not to instruct the jury that the State's burden of proof does not shift to the defendant." State v. Staten, 304 Kan. 957, Syl. ¶ 4, 377 P.3d 427 (2016). Flesher admits he failed to ask the district court for a burden of proof instruction related to his selfdefense claim. Flesher, therefore, must establish an instructional error occurred and firmly convince us the jury would have reached a different verdict had such error not occurred. See McLinn, 307 Kan. at 318.

K.S.A 21-5108(c) explains:

"A defendant is entitled to an instruction on every affirmative defense that is supported by competent evidence. Competent evidence is that which could allow a rational fact finder to reasonably conclude that the defense applies. Once the defendant satisfies the burden of producing such evidence, the state has the burden of disproving the defense beyond a reasonable doubt."

Flesher claims the district court erred in failing to explicitly tell the jury the State had the burden to disprove a self-defense theory beyond a reasonable doubt. Flesher suggests the district court should have provided the burden of proof instruction recommended by PIK Crim. 4th 51.050 (2021 Supp.):

"The defendant raises [self-defense] as a defense. Evidence in support of this defense should be considered by you in determining whether the State has met its burden of proving that the defendant is guilty. The State has the burden to disprove this defense beyond a reasonable doubt. The State's burden of proof does not shift to the defendant."

Again, Flesher did not propose this instruction to the court and did not object to its omission.

Instruction No. 4 informed the jury of what the State was required to prove:

"The defendant is charged in Count One with aggravated battery (disfigurement). The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. The defendant knowingly caused disfigurement of Vera Birdwell.

"2. This act occurred on or about the 21st day of July, 2021, in Riley County, Kansas.

"The State must prove that the defendant committed the crime knowingly. A defendant acts knowingly when the defendant is aware that his conduct was reasonably certain to cause the result complained about by the State."

The district court provided two additional jury instructions for the alternative charges of aggravated battery in which great bodily harm, disfigurement, or death was inflicted and for simple battery.

Instruction No. 8 related to Flesher's self-defense claim and stated:

"Defendant claims his use of force was permitted as self-defense of the two aggravated battery charges or battery charge.

"Defendant is permitted to use physical force against another person when and to the extent that it appears to him and he reasonably believes such physical force is necessary to defend himself against the other person's imminent use of unlawful force. Reasonable belief requires both a belief by the defendant and the existence of facts that would persuade a reasonable person to that belief.

"When use of force is permitted as self-defense, there is no requirement to retreat.

"This presumption may be overcome if you are persuaded beyond a reasonable doubt that the person did not reasonably believe that use of force likely to cause death or great bodily harm was necessary to prevent imminent death or great bodily harm to himself."

Instruction No. 9 also related to Flesher's self-defense claim and stated:

"A person who initially provokes the use of force against himself is not permitted to use force to defend himself unless the person reasonably believes he is in present danger of death or great bodily harm, and he has used every reasonable means to escape such danger other than the use of physical force which is likely to cause death or great bodily harm to the other person."

Instruction No. 12 explained the State's burden of proof:

"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.

"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt about the truth of any of the claims that the State must prove, you must find the defendant not guilty. If you have no reasonable doubt about the truth of each of the claims that the State must prove, you should find the defendant guilty."

Flesher relies on Staten, in which the district court gave a general burden of proof jury instruction but did not specifically instruct the jury how the reasonable doubt standard should apply to the self-defense instruction. Our Supreme Court ultimately determined failing to give the PIK instruction was error but not clear error. The court explained: "In light of the generally correct nature of the instructions as a whole as well as the nature of the evidence supporting Staten's claim of self-defense, we find no basis in the instructions to reverse Staten's conviction." 304 Kan. at 967.

Flesher now claims he never argued he was entitled to a presumption the jury never received additional instruction about any...