State v. Rodriguez

342 P.3d 970 (Table)

STATE of Kansas, Appellee

v.Tiofilo RODRIGUEZ, Appellant.

110,346.

Court of Appeals of Kansas.

Feb. 6, 2015.

Review Granted October 7, 2015.

Jenni L. Howsman, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jessica E. Akers, county attorney, and Derek Schmidt, attorney general, for appellee.

Before McANANY, P.J., Arnold–Burger, J., and Larson, S.J.

MEMORANDUM OPINION

ARNOLD–BURGER, J.

This is Tiofilo (Tio) Rodriguez' direct appeal from convictions of one count of aggravated kidnapping, two counts of kidnapping, one count of aggravated battery, two counts of battery, three counts of criminal threat, and the sentences resulting from such convictions.

Tio contends on appeal (1) the State failed to charge him with aggravated kidnapping, (2) there was insufficient evidence to support the two kidnapping convictions, (3) it was reversible error to fail to instruct on the lesser included offenses of criminal restraint, (4) the aggravated battery statute, K.S.A.2011 Supp. 21–5413(b)(1)(C), is unconstitutionally vague, and (5) Colorado misdemeanor convictions for third-degree assault were improperly utilized to count as a person felony in determining his criminal history.

We will consider each contention in order after setting forth the evidence presented at trial and the proceedings giving rise to this appeal. However, finding no error, we ultimately affirm the decision of the district court.

Factual and Procedural Background

On December 29, 2011, Alicia Apodaca was at her home with her two sons, S.R. and J.R., and her live-in boyfriend, Tio. At trial, she testified that Tio had come home that night around 11:30 p.m. smelling of liquor, which made Apodaca uneasy. Because of this unease, Apodaca took her pillow to the living room intending to sleep there but changed her mind and went to the room shared by J.R. and S.R. to stay the night there. A short time later, Tio also came into the room and began watching television with Apodaca and her sons. Suddenly, Tio shut the door of the bedroom and told them they were never getting out of the room again.

Tio began accusing Apodaca of infidelity and then grabbed her hair and started punching her, beating her entire body which he did over the next 2 hours. At some point during this beating, Tio showed her an RCA cord, stating he was going to strangle her to death with it, which Apodaca believed to be a credible threat, feeling he was capable and willing to kill her.

Sometime during this event, Tio bound the boys to prevent them from interfering with his actions. He used the RCA cord to tie J.R.'s legs together, telling him if he sat on the bed and did not interfere with the beating of his mother, Tio would allow him to live, but if he interfered, he would join his mother and be killed as well. Both boys tried to stop Tio while he was beating their mother, prompting Tio to punch both of them. During these incidents, J.R. had complained that the RCA cord was too tight around his legs. Tio then untied J.R., and retied him using shoe laces. He also attempted to tie S.R. with shoe laces as well but was only able to get one leg tied as Apodaca attempted to escape, but Tio intercepted her, throwing her into the wall, and resumed beating her.

During the beating, all three victims vomited into a trash can that was in the room. After vomiting, they asked for water and Tio assented but allowed them to get water only from the bathroom. The way the house is positioned, the two bedrooms and bathroom were located off the same hallway which was very small and positioned in such a way that when Tio stood in the hallway to watch them in the bathroom, escape would have been impossible from either room, as one would have to run through Tio to escape. Apodaca testified that even though J.R. was able to get a drink of water, she did not believe that escape was possible. Further, Tio told her if she tried to escape, he would strangle all three, making the boys watch him kill her first.

Apodaca made multiple attempts at calling 911. While J.R. was allowed to get a drink of water, Apodaca retrieved a cell phone from under one of the beds in the room. The phone was not in service but was able to make emergency calls. While Tio was in the hallway, she dialed 911 and whispered that she needed help into the phone but then, fearing Tio had heard her, threw the phone between the wall and bed where it remained on. The police eventually responded.

Apodaca testified that at some point she noticed lights outside the home through a window and knew the police had arrived, and she also heard the police knock on the front door and identify themselves. When this occurred, Tio turned off the light and ordered the victims to stay silent. Apodaca testified she was attempting to talk to Tio, allowing the police time to enter the residence. She said, as she was doing this, S.R. had seen the light as well and ran to the window breaking it with his hand and yelling for help out of the broken window. Eventually, the police were able to enter the home and restrain Tio. After he had been handcuffed and as he was being taken from the home, he looked at all three victims and told them if he ever got out, he was going to come back and kill all three of them. They were frightened and believed he would carry out his threat if released.

The jury was shown a number of photographs showing Apodaca's injuries. She also testified that her vision was blurry for 2 weeks after the incident as a result of her beating.

Apodaca's two sons both testified. J.R. stated he was in his room with his mother and sleeping brother when Tio came into the room. After a time, Tio shut the door and told them they were not allowed to leave. Tio then began accusing Apodaca of infidelity, began to beat her up, and threatened to kill her. S.R. woke up when the beating began. J.R. testified Tio told him he would be killed if he tried to help Apodaca, but J.R. at one point did try to help his mother and Tio hit him.

J.R. also testified that sometime after Tio had threatened Apodaca with the RCA cord, he tied J.R.'s legs together with the cord. J.R. began to complain that the RCA cord was hurting his legs and after, some time, Tio untied him, instructing him to find something else that Tio could use to tie him back up. J.R. began to look in his closet for something, but Tio found some shoe laces and tied him back up. However, as J.R. was looking in his closet for something to be tied with, he remembered that his mother's phone was in her purse and also in the room, got the phone, and was able to call the police at a time when Apodaca was allowed to use the restroom. J.R. stated he was unable to try to escape due to the bedroom and bathroom being close together and he felt that if he tried to escape, he would be killed.

J.R. testified that when the police arrived, they cut the laces from his ankle. The jury was shown pictures documenting his injuries. He stated he was 14 years old at the time of the incident.

There was some discrepancy between J.R.'s trial testimony and his testimony at the preliminary hearing. At the preliminary hearing, J .R. testified that Tio did not hit him as J.R. did not try to help Apodaca but sat down after Tio looked at him when he got up to help. J.R. also testified at the preliminary hearing that Tio did not threaten him.

S.R. also testified. He stated he was 13 years old at the time of the incident and was asleep but woke up when he heard Tio beating his mother. After he woke up, Tio told him he was going to make S.R. watch as he killed Apodaca, and watched as Tio beat her. Tio told him if he tried to help Apodaca, Tio would strangle him with the RCA cord and showed it to him.

S.R. further testified he was punched in the face when he attempted to help Apodaca at one point. He also said Tio attempted to tie his legs together with a shoe lace but only got one leg tied because the police were knocking at the door and Apodaca attempted to escape. When Apodaca attempted flight, Tio caught her and threw her into the wall, putting a hole in the wall. S.R. testified when he heard the police, he punched out the window and tried to rip through the screen, screaming for help. S.R. also stated that at some point in the night he attempted to call the police but Tio discovered him, took his cell phone, removed the battery, and broke the phone. S.R. further stated as the police apprehended Tio, he threatened to kill them when he got out.

As with J.R., there was also discrepancy between S.R.'s trial testimony and his preliminary hearing testimony. At the preliminary, S.R. denied being threatened with the RCA cord. He also testified at trial that the only reason he did not leave the room was he did not want to leave his brother and mother alone.

The State presented testimony from Rhiannon Keen who was the 911 dispatcher the night in issue. She testified to receiving five calls from the Apodaca residence. A recording of the calls was played for the jury.

Officer Julie Hart also testified on behalf of the State. She was an officer who responded to the 911 calls. When she arrived at the house and unsuccessfully tried to make entry, she testified she heard a loud bang and a female scream and then saw S.R. trying to climb out of a window, stating that someone inside was going to kill them. When she asked S.R. if he was able to get to the door to allow her in, he stated he could not because someone was keeping them in the room.

Hart stated she was able to enter the house after Tio opened the back door for them, ordering him multiple times to get on the ground before he would comply. Tio denied there was anyone else in the house. Officer Hart then went through the home and found the victims in the bedroom. After she located them, she stated that Apodaca told her they had been in the room for about 2 hours as she was beaten by Tio. She also stated she found S.R. with a ligature around his ankle pulling at it and...