State v. Malcolm

498 P.3d 186 (Table)

STATE of Kansas, Appellee,

v.Marcus D. MALCOLM, Appellant.

No. 122,610

Court of Appeals of Kansas.

Opinion filed November 24, 2021

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

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Hurst, J., and McAnany, S.J.

MEMORANDUM OPINION

Per Curiam:

This is Marcus D. Malcolm's direct appeal following his convictions of aggravated battery while driving under the influence (DUI) and driving with a suspended license. On appeal, his claims of trial error and his constitutional challenge all relate to his aggravated battery while DUI conviction. Having considered these claims, we fail to find any reversible error. Accordingly, we affirm Malcolm's convictions.

FACTUAL AND PROCEDURAL HISTORY

Malcolm's problems began late on a July 2018 summer night when he was seen losing control of his wife's truck, causing it to leave the roadway and crash into the side of a nearby house occupied by Kevin and Tracy Newell. Kevin was asleep in his bed at the time. The crash knocked his dresser and other bedroom items onto him in his bed, resulting in a gash in his head. The witness to these events, a young man who was walking home from his work on the evening shift at a nearby KFC restaurant, rushed to the crash scene and saw the lone occupant of the truck, who was later identified as Malcolm. Malcolm was bleeding from a cut on his face.

On hearing the crash, Tracy looked out and saw Malcolm, who appeared intoxicated and staggering. Malcolm asked Tracy not to call the police. Malcolm fled the scene upon learning she had already done so. Emergency Medical Services (EMS) arrived at the scene and Kevin was transported to the hospital, where six stitches were required to close the gash in his head.

The authorities located Malcolm asleep in the bushes on a neighbor's property. Malcolm was confused, smelled of alcohol, and his speech was slurred. He had an injury over his eye. His blood alcohol content (BAC) was 0.264.

The State charged Malcolm with aggravated battery while DUI and driving with a suspended license. During trial, the parties stipulated that Malcolm's driving privileges were suspended at the time of the crash. Malcolm's sole defense to the aggravated battery charge was that he was a passenger in the truck at the time of the crash, not the driver. The jury convicted Malcolm of both charges.

After denying posttrial motions, the district court sentenced Malcolm to 23 months' imprisonment for aggravated battery while DUI and a consecutive 6-month jail term for driving with a suspended license. Malcolm's appeal brings the matter to us.

ANALYSIS

Malcolm's Constitutional Claim

Malcolm claims the aggravated battery while DUI statute is unconstitutional due to its vagueness. The State contends, among other things, that Malcolm lacks standing to assert this constitutional challenge.

The general rule has been stated in State v. Williams , 299 Kan. 911, 918, 329 P.3d 400 (2014) (quoting Ulster County Court v. Allen , 442 U.S. 140, 155, 99 S. Ct. 2213, 60 L. Ed. 2d 777 [1979] ): " ‘[I]f there is no constitutional defect in the application of the statute to a litigant, [the litigant] does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.’ " See also Tolen v. State , 285 Kan. 672, Syl. ¶ 2, 176 P.3d 170 (2008) (litigant to "whom a statute is constitutionally applied cannot challenge the constitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court"). The exception to this rule, which relates to constitutional challenges to protect First Amendment rights, does not apply here. See Williams , 299 Kan. at 919.

Malcom does not assert the aggravated battery while DUI statute is unconstitutionally vague as applied to him. In fact, he does not even address the facts of his case in claiming the statute is unconstitutional. The facts demonstrated his actions violated the statute. With a 0.264 BAC, Malcolm crashed his truck into the Newells' house, causing Kevin to suffer bodily injuries that required stitches at the hospital. Malcolm's crash destroyed walls in the house, to the extent that dispatch told one of the responding police officers that he could be responding to a possible building collapse.

Malcolm challenges the reference in the statute to the possibility of great bodily harm, disfigurement, or death resulting from DUI. But his position, as expressed at the court's jury instruction conference, was that the sole issue was whether Malcolm was the driver, not the nature or extent of Kevin's injuries or whether there was some uncertainty about whether the crash could have caused such injuries. Nor did he contend that the impact was so slight that there was no possibility that Kevin may have sustained more severe injuries or even death. In addressing the issue of possible lesser included offenses, Malcolm's counsel told the court:

"We have not made an issue of the extent of Mr. Newell's injuries.... [I]f [the jurors] were to find my client not guilty of the primary offense of aggravated battery DUI, I don't know how, based on what has been submitted into evidence, that they can conclude that Mr. Newell's injuries were not sufficient.

"Essentially what this case is about is was my client driving, and has the State proven that he was driving."

It is clear that the statute had been constitutionally applied in Malcolm's case. The statute was not vague in its application to him. Malcolm has no standing to challenge the constitutionality of this statute.

Jury Instructions

Culpable Mental State

Malcolm contends the district court clearly erred in its jury instruction on aggravated battery while DUI by failing to instruct on the culpable mental state necessary to be proven in order to support a conviction.

We review claims of jury instruction errors using the familiar three steps set forth in State v. Barrett , 309 Kan. 1029, 1036-37, 442 P.3d 492 (2019) : (1) whether the issue was preserved for review, (2) whether the instruction was factually and legally appropriate; and (3) if the instruction as given was erroneous, whether the error was harmless. If the issue was not raised at trial, the more stringent clear error standard applies. State v. McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018). Under this standard, an instruction is clearly erroneous if we are firmly convinced that the jury would have reached a decision more favorable to the defendant had the error not occurred. State v. Solis , 305 Kan. 55, 65, 378 P.3d 532 (2016). Here, Malcolm did not object to the instruction as given, so we apply the clear error standard if we get that far in our analysis.

The trial court had the duty to define the crime of aggravated battery while DUI by specifying every element of the crime necessary to support a conviction. See State v. Butler , 307 Kan. 831, 847, 416 P.3d 116 (2018). Here, the challenged instruction stated:

"The defendant is charged in Count One with aggravated battery while driving under the influence. The defendant pleads not guilty.

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

"1. The defendant drove under the influence resulting in bodily harm to Kevin Newell, under circumstances by which great bodily harm, disfigurement, or death can result from that act.

"2. This act occurred on or about the 8th day of July, 2018, in Sedgwick County, Kansas.

"The elements of driving under the influence are set forth in Instruction[ ] Nos. 9 and 10."

This instruction mirrors the aggravated battery while DUI instruction—PIK Crim. 4th 54.310 (2020 Supp.)—found in the Pattern Instructions for Kansas (PIK), which our Supreme Court strongly recommends that our trial courts use. See Butler , 307 Kan. at 847.

A panel of this court evaluated a nearly identical challenge to the jury instruction for aggravated battery while DUI in State v. Mulally , No. 119,673, 2020 WL 4032827 (Kan. App.) (unpublished opinion), rev. denied 312 Kan. 898 (2020). There, the panel acknowledged that "[u]nless otherwise provided, a culpable mental state is an essential element of every crime defined by the Kansas Criminal Code." 2020 WL 4032827, at *17 ; see K.S.A. 2020 Supp. 21-5202(a). But the panel determined that certain crimes—including DUI—are strict liability crimes that do not require a culpable mental state. 2020 WL 4032827, at *17 ; see K.S.A. 2020 Supp. 21-5203. The panel concluded:

"[A]ggravated battery while DUI is an absolute liability offense, [therefore] a culpable mental state is not an essential element of the crime. Accordingly, the district court did not commit clear error by omitting a culpable mental state when instructing the jury on aggravated battery while DUI." Mulally , 2020 WL 4032827, at *18.

Malcolm contends that Mulally was wrongly decided. He contends that the panel in Mulally improperly construed aggravated battery while DUI to be a subspecies of DUI rather than a subspecies of battery. He points to the fact that the aggravated battery while DUI statute is in Chapter 21—the Crimes and Punishments section of our statute books—while the DUI statute is in Chapter 8—the Automobiles and Other Vehicles section. Based on its location in the statutes, he contends "the legislature showed its clear intention to define this new offense as a subspecies of battery." But our Supreme Court has consistently held that "the Revisor of Statutes' decision to place a statute in a particular location is not persuasive evidence of legislative intent." City of Shawnee v. Adem , 314 Kan. 12, 17, 494 P.3d 134 (2021) (citing Arredondo v. Duckwall Stores, Inc. , 227 Kan. 842, 847, 610 P.2d 1107 [1980] ).

We find the Mulally panel's reasoning applicable here and we adopt it. The district court did not err by failing to instruct the jury...