State v. Hutchens, No. 119,661

459 P.3d 836 (Table)

STATE of Kansas, Appellee,

v.Zachary Mitchell HUTCHENS, Appellant.

No. 119,661

Court of Appeals of Kansas.

Opinion filed March 20, 2020

MEMORANDUM OPINION

Per Curiam:

Zachary Mitchell Hutchens appeals his convictions of aggravated kidnapping, aggravated endangering a child, and felony and misdemeanor theft. Hutchens claims: (1) there was insufficient evidence of bodily harm to support his conviction of aggravated kidnapping; (2) the district court gave a legally inappropriate definition of "bodily harm" in the jury instruction on aggravated kidnapping; (3) the district court erred in admitting his statements to law enforcement officers in violation of Miranda v. Arizona , 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) ; (4) the district court erred by admitting the dash cam video of his encounter with law enforcement; and (5) he was denied a fair trial based on cumulative error. Finding no reversible error, either individually or cumulatively, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2016, Hutchens began a sporadic dating relationship with M.D., a 17-year-old, who lived in Larned. By early September, the relationship had ended. On September 6, 2016, Hutchens sent M.D. a text message asking her to return some personal items. M.D. was scheduled to begin a shift at the Larned Pizza Hut at 5 p.m. but arranged to meet Hutchens at a park near her residence just before she needed to go to work. M.D. drove to the park, planning to leave from the park to go to work.

While at the park in Larned, Hutchens and M.D. started arguing. M.D. told Hutchens that she was going to leave. Hutchens grabbed M.D.'s phone and car keys and refused to return them when she requested them. M.D. then told Hutchens that she would walk home and get a ride to work. She turned away to begin walking home, but Hutchens told her to get back to the car. When she refused, he grabbed her arm, threatened to hit her, and guided her back to the car. When M.D. continued to refuse to get into the car, Hutchens pushed her into the car. He then told her to move over to the passenger seat, and she complied because she feared Hutchens when he was angry.

Hutchens got into the driver's seat of M.D.'s car and drove from the park to the highway towards Great Bend. Before reaching the highway, Hutchens had to stop at a couple of intersections. At each of these, M.D. tried to get out of the car and each time Hutchens grabbed her hair and pulled her back into the car. As M.D. continued to cry, Hutchens told her to "shut up," called her a "bitch," and pulled her hair.

Once on the highway, M.D. requested her phone. Hutchens replied, "Yeah," and tossed her phone out of the car window. As they passed through Great Bend, Hutchens was again required to stop at traffic lights. Twice M.D. again tried to escape the vehicle, and each time Hutchens grabbed her hair to pull her back into the car. During the drive, Hutchens also punched M.D. in the head, on a leg, and in the stomach. At the intersection of 10th Street and Main in Great Bend, M.D. made eye contact with the driver of a truck in the next lane. The truck driver, Kevin Ensley, observed the driver in the next car "grab a girl by the hair and was beating on her." M.D. silently mouthed the words to Ensley, "Help me. Help me. Please help me." Ensley also witnessed the driver of the car hit M.D. in the head, but he could not see the driver to identify Hutchens at trial. Ensley called 911 to report the incident and he described the vehicle. The dispatcher asked Ensley to continue to follow the vehicle until law enforcement could intercept the vehicle.

Hutchens left Great Bend and drove to Ellinwood. The dispatcher had contacted Ellinwood Police Officer Jarrod Carr, who waited along the highway into Ellinwood from Great Bend until he observed a vehicle matching the description provided by Ensley. He noted a male was driving the vehicle. Carr began following the vehicle, and Hutchens made several turns through the town, trying to lose Carr. Eventually, Hutchens stopped the vehicle in an alley and ordered M.D. to change places with him. M.D. complied. Carr then caught up with the vehicle and activated his emergency lights.

Based on what Ensley had reported and his own observations, Carr approached the passenger side of the vehicle to conduct a welfare check. But when he approached the passenger side, a male was sitting in the seat. Carr informed the occupants that he had received a complaint of erratic driving and requested identification from both occupants. Hutchens told Carr that he did not have any identification.

M.D. was distraught. After finding her license, she requested permission to leave the vehicle. Carr permitted her to leave the vehicle but required Hutchens to remain in the vehicle. After Carr had spoken to M.D. outside the vehicle, other officers arrived. Carr then asked M.D. to wait in his patrol car while the officers spoke to Hutchens. Carr spoke to Hutchens, who claimed that he could not have held M.D. against her will because she had been driving. Carr then returned to his patrol car to interview M.D., who provided a different account. M.D. told Carr that Hutchens had been driving the vehicle and during the trip "he punched me in the stomach multiple times, he pulled my hair, he punched my legs." Carr stepped outside and confronted Hutchens about driving the car. Hutchens continued to deny that he drove the car or held M.D. against her will.

In talking more with M.D., Carr recalled that he saw Hutchens driving as they entered town. He confronted Hutchens with this information, and Hutchens changed his story, admitting that he drove to Ellinwood because M.D. said that her leg was hurting but denying that he forced M.D. to come with him against her will. The sheriff's deputies conducted a pat-down search of Hutchens. After some further delay to confer about the situation, the officers arrested Hutchens.

The officers released M.D.'s car to her, and they instructed her to file a report with the Larned Police Department when she returned to town. She complied with those instructions. Her foster father met her at the police station when she finished her report. M.D.'s foster father noted that M.D. was distraught and frightened, and he later testified that the incident "changed her whole life." M.D. dropped out of college and refused to sleep in her bedroom for weeks after the incident, fearing to be alone. She did not suffer any lasting physical injuries, but she suffered a headache from having her hair pulled.

On September 7, 2016, the State charged Hutchens with aggravated kidnapping, theft of M.D.'s vehicle, criminal threat, aggravated endangering a child, and misdemeanor theft of M.D.'s cell phone. After a preliminary hearing on December 1, 2016, the district court bound Hutchens over for trial on all the felony counts.

On June 16, 2017, Hutchens moved to dismiss the aggravated kidnapping charge or to amend the charge to simple kidnapping because M.D. testified at the preliminary hearing that she did not suffer any actual harm. The State responded that hitting M.D. in the head and pulling her hair constituted bodily harm under the aggravated kidnapping statute. The court ultimately ruled that the existence of bodily harm constituted a question of fact for the jury and denied the motion.

The jury trial began on October 10, 2017. The State presented seven witnesses including M.D., Ensley, and Carr. Over defense counsel's objection, the court also permitted the State to play the officer's dash cam video—with some minor redactions—for the jury. Hutchens opted not to present any evidence. Hutchens moved for judgment of acquittal on several charges. The court denied the motion except for the charge of criminal threat. The jury convicted Hutchens of the remaining charges.

Hutchens filed a motion for new trial, arguing that the admission of the dash cam video prejudiced his right to a fair trial. The district court ultimately denied the motion. Hutchens also moved for a sentencing departure based on his claims that he had a supportive family, he was relatively young, he had some mental disabilities, and the victim suffered a minimum amount of harm. The district court approved Hutchens' request for a psychological evaluation before sentencing.

At sentencing on May 29, 2018, the district court found without objection that Hutchens was in criminal history category "A." The district court denied the departure motion and imposed the standard presumptive sentence of 620 months' imprisonment for the aggravated kidnapping conviction. The district court imposed a controlling sentence of 626 months' imprisonment for all the convictions. Hutchens timely appealed.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT AGGRAVATED KIDNAPPING

Hutchens first claims there was insufficient evidence of bodily harm to support his conviction of aggravated kidnapping. More specifically, Hutchens argues that the "record does not contain evidence to support a finding that [he] caused bodily harm [upon M.D.] other than that present in any forcible kidnapping." Hutchens concedes that the evidence is sufficient to support a conviction of kidnapping, and he asks that we remand with directions to resentence him for kidnapping. The State argues that viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence of bodily harm to support the aggravated kidnapping conviction.

The appellate review for a challenge to the sufficiency of the evidence in a criminal case is well established. A reviewing court examines the evidence in a light most favorable to the State as the prevailing party—adopting the version of conflicting accounts that most supports the State's case and drawing reasonable inferences in favor of the State—to determine whether a rational fact-finder could find beyond a reasonable doubt that the defendant committed the offense for which he or she...