State v. Spilman

63 Kan.App.2d 550

534 P.3d 583

STATE of Kansas, Appellee,

v.Brian A. SPILMAN Jr., Appellant.

No. 124,775

Court of Appeals of Kansas.

Opinion Filed July 7, 2023.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Charles D. Baskins, county attorney, and Kris W. Kobach, attorney general, for appellee.

Before Malone, P.J., Green and Isherwood, JJ.

Green, J.:

Brian A. Spilman Jr. was convicted by a jury in Doniphan County District Court of involuntary manslaughter for participating in beating Jason Pantle, who later died from his injuries. Spilman challenges his conviction on several grounds: He contends (1) that the trial court erred in instructing the jury on liability as an aider or abettor; (2) that his conviction is not supported by the evidence; and (3) that the prosecutor committed error in closing argument. He further contends that these errors, if not individually prejudicial, combined to deprive him of a fair trial. We disagree and affirm.

Because of the offense of conviction, the court also required Spilman to register as a violent offender under the Kansas Offender Registration Act (KORA). For the first time on appeal, Spilman challenges KORA as unconstitutional because it compels speech in violation of the First Amendment to the United States Constitution and treats similarly situated offenders differently in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because consideration of this issue would require the development of facts outside our appellate record, we refrain from considering this issue for the first time on appeal.

Finally, he challenges the trial court's restitution award because the court did not order restitution to be paid jointly and severally with Spilman's codefendants. Spilman has not demonstrated that the trial court's restitution award was arbitrary, fanciful, or unreasonable. Thus, he has not established a basis for vacating the restitution award. We affirm.

FACTS

In September 2019, Gracie Seager planned a surprise birthday party for her mother, Sarah Amelia Seager (a/k/a Amy Seager or Amy Scherer), at her grandfather's shop in the town of Doniphan in Doniphan County. The shop had a garage door that was left open for the party. Outside the garage door, a concrete slab covered the drive for a few feet before running to gravel.

The party was held on Saturday, September 22, starting at about 8 p.m., but it extended into the early morning hours of Sunday, September 23. In preparation for the party, Gracie had issued invitations, but the number of people who attended the party exceeded the number of invitees as word of the party spread among acquaintances. Guests came and went throughout the evening. Estimates of the number of party guests ranged from 20 to 45.

Alcohol was served at the party, which may have contributed to the inconsistent reports about the altercations that led to the death of Pantle. No two witness accounts agree to the details of the altercations. Most witnesses, however, agree on the general story arc.

Though she could not specify the time, Gracie testified that she approached Pantle to ask him to leave because he was being boisterous and confrontational. Pantle responded rudely, asking her what she was going to do about it and calling her a "bitch." Pantle then shoved Gracie, and she lost her balance, tripping over a cooler on the floor behind her. Scott Vandeloo, who was standing near Gracie, told Pantle that he should not talk to Gracie that way and that he should respect the party. Pantle shoved Scott, and Scott pushed him back; Pantle fell to the ground. Gracie's mother essentially substantiated Gracie's testimony. Neither Gracie nor her mother mentioned any punching or wrestling between Scott and Pantle, and they did not mention any altercation between Pantle and Spilman at all. Nevertheless, Gracie and her mother left the party shortly after this altercation.

About 10 minutes before Gracie and her mother left—around 2 a.m.—Morgan Hull arrived at the party. Unlike most of the other witnesses in the case, Morgan was not related to anyone at the party, but she was friends with Shelby Seager and Gracie. After arriving at the party, Morgan found Shelby and joined her in conversation near the refrigerator, just inside the garage door of the shop. Although Morgan mentioned the departure of Gracie and her mother, she did not describe the confrontation between Gracie and Pantle that had prompted their departure, except to say that several people were arguing.

Just after Gracie and her mother left the party, Spilman engaged in a fight with Pantle. Morgan did not describe how the altercation began. Shelby, who was standing next to Morgan, testified that the altercation occurred when Spilman asked Pantle to leave the party, and he refused. David Underwood, who was dating Shelby but also unrelated to any of the combatants, stated that the fight began when Pantle ran at a group of people, and Spilman, in response, "went at" Pantle.

Morgan testified that Spilman shoved Pantle and then hit him. Pantle fell, and Spilman straddled Pantle, punching him with both fists. While Shelby and David agreed that Spilman shoved Pantle, they both testified that they did not see Spilman throw any punches. Shelby also testified that she did not witness Spilman straddling or sitting on top of Pantle. But Shelby had previously told a KBI agent that Pantle "was getting the shit beat out of him" and that Pantle was at a disadvantage to Spilman. Though Spilman testified that Pantle sucker-punched him, Morgan and David both testified that they did not see it. And Shelby did not mention it.

All three witnesses indicated that the fight did not last long. Though Morgan testified that Spilman punched Pantle for about five minutes, she also testified that the fight did not last long; that if she had walked outside, inside, and then immediately returned, the fight would have been over. She admitted that she was not good with time estimates. Shelby testified the fight lasted only a couple minutes. None of the witnesses provided details about the resolution of the fight, but none confirmed Spilman's account, which was that he threw wild punches at Pantle, blindly and in self-defense.

Spilman and his father (Brian Sr.) testified that, after Spilman had wrestled Pantle into a hold, Brian Sr. told him to stop. Spilman reportedly complied, releasing Pantle and moving away to avoid further confrontation. Morgan and David testified that they did not hear anyone telling the participants to stop fighting.

The testimony regarding Pantle's condition after his fight with Spilman is also inconsistent. Morgan testified that Pantle remained on the ground after the fight, rolling around and trying to get up. Shelby and David testified that Pantle got to his feet, suggesting that he stood up as soon as the fight had ended.

But shortly after the fight between Spilman and Pantle ended, Scott Vandeloo began to fight with Pantle. Brian Sr. testified that Pantle initiated this fight. Morgan testified that Scott knocked Pantle to the ground, straddled him, and punched him in the head. Shelby testified that Scott and Pantle were both swinging their arms. This fight lasted about the same amount of time as the fight between Spilman and Pantle.

During this fight, David Underwood attempted to intervene, but Spilman pulled him back and threw him to the ground. Spilman claimed that he believed David was attempting to enter the fight or, in his words, "jump" someone. When asked about this intervention, Morgan stated she did not see anyone attempt to intervene in the fight. Brian Sr. also did not testify about David's intervention. David stated that Spilman apologized days later; Spilman testified he apologized immediately.

After the fight ended, Scott stood up and began looking for his phone, believed to have been lost during the fight. Spilman picked it up and later returned it to Scott. Meanwhile, Pantle remained on the ground, trying to get up. He eventually regained his feet and moved toward the shop. As he did so, Spilman ran at Pantle, hit him, and knocked him to the ground. Spilman and Pantle then rolled around on the ground. David and Shelby, who remained in the area, did not witness this incident. Brian Sr. also did not testify about this event. Spilman testified that after the fight between Pantle and Scott, he went to the bathroom. He denied he had a second altercation with Pantle.

Morgan reportedly walked over to the group surrounding the fight and told them, " ‘Enough's enough.’ " Brian Sr. pulled her back, telling her, " ‘It's not your fucking fight. Don't fucking worry about it.’ " Matthew Cole Scherer also prevented Morgan from intervening. Not able to do anything to stop the fight, Morgan returned to her group of friends just inside the shop door.

Later, Morgan saw Spilman get up and return to the shop. Pantle did not get up quickly. Each time Pantle was knocked down, it took him longer to get back up. At the end of the fight, Matthew stood over Pantle, saying, " ‘You're good, bro. You're fine. Get up. You're fine.’ " Pantle eventually got up and walked toward the shop. Morgan said that Pantle had his arms out to the side, perhaps for balance. As he entered the shop, Pantle said something, and Matthew hit Pantle in the jaw, knocking him unconscious. Brian Sr. confirmed that Pantle initiated this confrontation and leaned into Matthew. When Matthew hit him, Pantle fell straight backward, hitting his head on the concrete slab with a " ‘sick[ening]’ " sound.

Pantle lay on the concrete with his feet inside the shop but his head and torso outside in the rain. According to Morgan, no one did anything for Pantle until she began walking toward him, telling the other guys that Pantle needed to be brought in out of the rain. Then Matthew and Spilman dragged or carried Pantle into the shop, leaning him against the couch.

Austin Spilman, the first cousin of the...