State v. Vaught

353 P.3d 470 (Table)

STATE of Kansas, Appellee

v.Brian E. VAUGHT, Appellant.

109,425.

Court of Appeals of Kansas.

July 10, 2015.

Sarah Ellen Johnson, Capital Appellate Defender, for appellant.

Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.

MEMORANDUM OPINION

LEBEN, J.

A jury convicted Brian Vaught of eight offenses related to events that took place on 2 days in July 2012. Vaught argues on appeal that his conviction for aggravated assault should be reversed and a new trial ordered because the district court didn't give the jury appropriate instructions.

As charged in this case, aggravated assault required that the State prove that Vaught had placed his girlfriend, Elicia Gomez, in reasonable fear of immediate bodily injury through the use of a deadly weapon. See K.S.A.2014 Supp. 21–5412(a), (b)(1). The State presented evidence that Vaught had strangled Gomez until she passed out and had threatened her with a loaded rifle. While the State sought to convict Vaught of attempted murder for the strangulation—a charge the jury did not convict Vaught of—and told the jury in closing argument that it claimed the rifle as the deadly weapon on the aggravated-assault charge, the jury asked during deliberations whether it could consider Vaught's hands to be a deadly weapon.

When the jury asks a question about its instructions, the district court must respond in some meaningful manner or seek clarification or limitation of the request. K.S.A. 22–3420(3) ; State v. Boyd, 257 Kan. 82, 88, 891 P.2d 358 (1995) ; State v. Jones, 41 Kan.App.2d 714, Syl. ¶ 3, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010). The district court did not do so here. Instead, it merely told the jurors to consider the facts and the instructions they had already been given—instructions that did not say that the rifle was the weapon to be considered or that Vaught's hands were not. We conclude that the district court's response was insufficient, and we reverse the aggravated-assault conviction and remand for a new trial on that charge.

Vaught also argues three other errors on appeal, but we do not find that they warrant reversal:

• Vaught argues that a new trial is required because the tape-recording system that kept a record of the trial malfunctioned for a time. But a new trial is only required if the defendant shows a claim of trial error with a substantial foundation based on the available record that cannot be adequately reviewed on appeal. We find no substantial claim of error regarding the convictions we are sustaining.

• Vaught argues that the district court violated his right to be present for a part of the trial when it responded in writing to a jury question rather than bringing the jury back into open court in the defendant's presence to answer that question. But this violation of a defendant's constitutional rights is subject to the harmless-error test, and we find the error here had no effect on the trial's outcome.

• Vaught argues that the district court abused its discretion by allowing a police officer to testify about his training in recognizing domestic-violence situations. But even if that testimony was admitted in error, we find that the error was harmless, so a new trial on the convictions affirmed in this opinion is not warranted.

We therefore affirm Vaught's convictions other than for aggravated assault; we remand for a new trial on the aggravated-assault charge.

Factual and Procedural Background

The troubled relationship between Vaught and Gomez had come to the attention of local police in Mayetta before the events that led to the convictions now before our court. Around March 2012, the parties had decided to separate, and an officer went to their home to keep watch as Gomez moved her belongings out. The officer told the couple that they should stay away from each other, but Gomez was back in the home by July.

On July 21, 2012, police were called to the Walmart in nearby Holton. Three officers responded, and all three testified that Vaught resisted arrest and had to be taken to the ground before he could be handcuffed. After he was arrested, Gomez went to the police station and gave a detailed statement that led to the charges against Vaught.

She first told of an earlier event, on July 4, when Vaught had broken her phone in anger and broken her nose by head-butting her.

During the day, Gomez said Vaught had taken a phone out of her hand and broken it in half. She said she had tried to call her grandmother from a different phone, but Vaught grabbed that phone, threw it down the stairs, and slammed Gomez' head into the landing at the bottom of a stairway.

That evening, a friend of Vaught's, Joe Levitt, came to visit Vaught and Gomez. While Levitt was inside getting a drink, Vaught and Gomez were outside—until Gomez came rushing in with blood pouring out of her nose. She had trouble breathing, and Vaught took her to the hospital while Levitt stayed behind with Gomez' 5–year–old daughter.

At the hospital, Vaught and Gomez initially told hospital staff that she had tripped on a hose and hit her face against a wall. But when Gomez was separated from Vaught while getting some scans of her injuries, she said that Vaught had head-butted her. Her facial injuries required surgery.

Gomez told police that events on July 21 had begun with Vaught drinking and the parties discussing the medical bills from the facial surgery required after the incident on July 4. She said a verbal argument had ended up with Vaught coming at her physically. She said Vaught had said to her, “I think it's time, bitch. You're gonna die,” before he grabbed her and put her hands around her throat. She described blacking out, then he let go and she threw up. She said he had grabbed and choked her until she blacked out again, after which he let go and went outside.

Soon after that, she said Vaught had asked, “Do you want to die tonight?” and then grabbed a .270 rifle, put a clip into it, and put it to her head. She said he had then lowered it and put it by the back door.

Eventually, Vaught suggested going to the Walmart together to return movies they had rented. Vaught remained in the car with Gomez' daughter while Gomez went to return the movies. She said Vaught had come looking for her because she had been taking too long. Ultimately, Gomez asked store employees to call police.

For the events on July 4, the jury convicted Vaught of aggravated battery. For the events on July 21, the jury convicted Vaught of aggravated assault, two counts of domestic battery, three counts of obstructing official duty, and one count of disorderly conduct. The jury acquitted Vaught of two counts of criminal threat alleged to have occurred on July 21 and one count of criminal damage to property; the jury was unable to reach a verdict on the charge of attempted murder (related to the choking). The district court sentenced Vaught to 45 months in prison on the aggravated-battery conviction plus a consecutive sentence of 12 months in prison for aggravated assault. The court sentenced Vaught to 174 days in the county jail on one domestic-battery charge; that sentence was offset by time Vaught had already served before trial. The remaining sentences were run concurrently, so the total sentence was 57 months in prison.

Vaught has appealed to this court. We will discuss additional background facts in addressing the arguments he has raised on appeal.

I. The District Court's Failure to Provide a Meaningful Response to the Jury's Question About the Aggravated–Assault Charge Requires Reversal of That Conviction.

The district court must instruct the jury about the law that applies to its consideration of the case. Often, during deliberations, the jury asks for clarification or further instruction. When that happens, the district court must respond in some meaningful manner or seek clarification or limitation of the request. K.S.A. 22–3420(3) ; Boyd, 257 Kan. at 88 ; Jones, 41 Kan.App.2d 714, Syl. ¶ 3 ; State v. Sanchez, No. 106,547, 2012 WL 3290003, at *4 (Kan.App.2012) (unpublished opinion).

Here, the jury asked the court a specific question—whether it could consider the defendant's hands to be a deadly weapon when considering the aggravated-assault charge: “Count 3[.] Is the charge asking that the deadly weapon is the gun? [O]r can you count the defendant[']s hands as a deadly weapon?”

The court could have answered the question directly. The State's criminal complaint specifically charged that the deadly weapon used to threaten Gomez was the .270 rifle. In addition, in the prosecutor's closing argument, she argued that the rifle was the deadly weapon; she made no suggestion that the defendant's hands could be considered a deadly weapon when considering the aggravated-assault charge. So the court could have responded: “The State charges that the deadly weapon involved in Count 3, the aggravated-assault charge, is the .270 rifle. You may not consider the defendant's hands as a deadly weapon with respect to Count 3.”

But the court did not provide any meaningful answer to the question. Instead, it told the jury simply that “[y]ou must apply the facts as you find them to each individual instruction.” The court's response said nothing about what items could be considered a deadly weapon with respect to the aggravated-assault charge. The court's failure to provide a meaningful response violated the court's statutory duty to do so. Sanchez, 2012 WL 3290003, at *4.

On appeal, we review a judge's response to a jury's question for abuse of discretion, State v. Adams, 292 Kan. 151, 163, 254 P.3d 515 (2011), and the district court abuses its discretion when its action is based on an error of law. State v. Jolly, 301 Kan. 313, Syl. ¶ 7, 342 P.3d 935 (2015). The district court abused its discretion here when it failed to comply with its statutory duty.

The State separately argues that even if the district court erred, we should find either that ...