IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,861
STATE OF KANSAS,
Appellee,
v.
NEIL E. EDGAR,
Appellant.
SYLLABUS BY THE COURT
1. An instruction on aiding and abetting is appropriate if the jury could reasonably conclude from the totality of the evidence that the defendant aided and abetted another in the commission of a crime.
2. While it is true that the mere presence of a person at the scene of a crime is insufficient to constitute him or her a principal therein, in the absence of anything in his or her conduct showing a design to encourage, incite, aid, abet, or assist in the crime, the trier of facts may consider the failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that he or she assented to the commission of the crime, lent his or her countenance and approval thereto, and thereby aided and abetted it. This is particularly true when the person who fails to interfere owes a duty to protect as a parent owes to a child.
3. In a felony-murder case, the trial court is required to instruct on lesser included offenses only when the evidence of the underlying felony is weak, inconclusive, or conflicting.
4. When a homicide occurs during the commission of a felony, the felony is the statutory equivalent to the deliberation and premeditation essential to murder in the first degree.
5. The only intent required for the offense of child abuse is the intent to commit the act of torturing, beating, shaking, or inflicting cruel and inhuman corporal punishment on a child; there is no requirement of an intent to injure.
6. Where the underlying felony is an inherently dangerous felony, the State need not prove that the victim's death was foreseeable. Child abuse is an inherently dangerous felony.
7. The rule that a trial court is required to instruct on lesser included offenses of felony murder only when the evidence of the underlying felony is weak, inconclusive, or conflicting does not pertain to evidence about who committed the underlying felony. The rule pertains to evidence that the underlying felony was committed.
8. In a felony-murder case, if the evidence of the underlying felony is not strong, the court must consider whether there is evidence on which a jury could find the defendant guilty of the lesser included offenses. If there is not, no instruction on lesser included offenses need be given.
9. A defendant may be convicted of felony murder if he or she aids and abets the underlying felony, and the defendant need not even be physically present when the crime is committed.
10. The right under the federal and state constitutions to present a defense is subject to statutory rules and case law interpretations of the rules of evidence and procedure.
11. The standard for reviewing claims of prosecutorial misconduct stated in State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004), is applied. The prosecutor's statement in closing argument that intent need not be proven on a child abuse charge was improper, but, under the circumstances of this case, did not deprive the defendant of a fair trial. Other statements and questions of the prosecutor were not misconduct.
12. When a criminal defendant challenges the sufficiency of the evidence, an appellate court's standard of review requires it to review all of the evidence, viewed in the light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appeal from Johnson district court; JOHN P. BENNETT, judge. Opinion filed February 10, 2006. Affirmed.
Stephen B. Chapman, of Chapman & White, LLC, of Olathe, argued the cause and was on the brief for appellant.
Paul J. Morrison, district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: Neil E. Edgar (Edgar) was convicted of first-degree felony murder in the death of his adopted son, Brian Edgar, and two counts of abuse of a child with regard to two of his other adopted children, Martez and Christina Edgar. Edgar appeals his convictions, arguing: (1) The trial court erred in giving an aiding and abetting instruction; (2) the trial court's failure to give lesser included offense instructions deprived him of the ability to present his theory of defense; (3) his right to a fair trial was denied because of prosecutorial misconduct related to the issue of intent; (4) his right to a fair trial was denied because of other instances of prosecutorial misconduct; and (5) there was insufficient evidence to support his conviction of felony murder.
Facts
At about 5:30 a.m. on December 30, 2002, Edgar brought his son, Brian, to the emergency room at KU Medical Center saying that his son was not breathing. Attempts to resuscitate Brian were unsuccessful because rigor mortis had already set in, indicating Brian had been dead for several hours. Medical staff noticed that Brian had what appeared to be white tape residue on his face and the back of his head, bruises on his face, and suspicious injuries and scarring on his wrists and ankles.
When a doctor told Edgar that Brian was dead, Edgar began crying and said, "Oh Jesus, oh God, what have I done?" Edgar explained to the doctor, and later to police, that Brian had been waking up during the night and stealing food, so Edgar gave him a melatonin pill to help him sleep. Edgar was afraid the pill might have caused Brian to stop breathing. Edgar said that he had checked on Brian several times during the night and heard him snoring. The last time he checked, Brian was not responsive and Edgar brought him to the hospital. One of the first things Edgar said to police was, "It was an accident."
Edgar provided police an address in Kansas City, Kansas, which he said was the family home. With Edgar's consent, police conducted a search of the residence and found socks with a piece of duct tape attached. When police informed Edgar of what they had found, Edgar admitted he had restrained Brian the night before to keep him from getting out of bed and getting into things. He said he used two belts, one around Brian's arms and torso and another around his ankles, put a sock in Brian's mouth to keep him from "hollering," and put a small piece of duct tape over Brian's mouth. Police were doubtful of Edgar's story because they knew Brian's entire head had been taped, not just his mouth.
Early in the investigation, police also learned that Brian had three siblings who had been in the home at the time of his death – Christon, Martez, and Christina. Edgar and his wife, Christy Edgar, adopted Christon, Martez, and Christina, who were biological siblings, in 1997. They adopted Brian a year or two later. At the time of the hearing, Christon was 16 years old, Martez was 12, and Christina was 9. Brian was 9 years old when he died. Police also discovered that Chasity Boyd had spent the night at the house the night Brian died. Boyd was described by the Edgars as a "granddaughter," who often stayed with the Edgars and babysat the children.
Edgar told police that the family could be found at the church where he was pastor and his wife was copastor, evangelist, and prophet. The police took the Edgar children to Sunflower House, a child advocacy center, for forensic interviews. Initially, both Christina and Martez were reluctant to disclose any information because they were afraid of being taken away from their parents. Later that day, the children began to talk to detectives about incidents of abuse.
Christina told detectives that she and her brothers had been frequently bound or tied up with socks, duct tape, and plastic ties and a stocking had been tied around her eyes and mouth, although she was still able to breathe. She said that Boyd had tied up the children at the direction of Christy. Although Christina had never seen Neil Edgar tie up any of the children, he had threatened to do so.
Martez told detectives that he had been tied up once for stealing water from a faucet without asking permission. He said that Brian got into trouble and was tied up more often; sometimes Brian was tied to his bed. According to Martez, his father normally disciplined the boys and his mother normally disciplined his sister, although the boys previously had been tied up by both their father and mother. Martez said his father had tied up Brian on the night of his death.
When police talked to Edgar again the next day, he said, "I did it. If my kids say I've done it, I did it," and, "Leave the church out." The police did not believe Edgar was being truthful and thought he would admit to anything they said.
Two days after Brian's death, police received a phone call from a man who had installed an alarm system for the Edgars and who told police that the Edgars lived in Overland Park, Kansas. The police verified that the family had been living at the Overland Park house, which is in Johnson County, and it was that house where Brian died. Police executed search warrants at the Johnson County house and at the Edgars' church. The house appeared to have been recently cleaned and all the trash taken out. This was consistent with the children's report that they had gathered Brian's pajamas, pieces of duct tape, and other evidence and taken it to a church member's house where it was burned in the fireplace. Some duct tape and plastic ties were found in the garage. At the church, officers found more duct tape, handcuffs, Neosporin, and a fan belt with a loop tied in one end which could have been used as a weapon.
As a result of the investigation, Edgar, Christy, and Boyd were charged under separate complaints with the same crimes. Count I of the complaint against Edgar charged felony murder, in violation of K.S.A. 21-3401, occurring during the commission of abuse of a child by inflicting cruel and inhuman corporal punishment upon Brian Edgar. Counts II and III charged him with child abuse, in violation of K.S.A. 21-3609, arising from inflicting cruel and inhuman corporal punishment upon Martez and Christina Edgar, respectively, during the time period from May 9, 2002, to December 30, 2002.
The trial court consolidated the three cases for trial. Before opening statements, Christy Edgar pled guilty to all of the charges. After consent from the codefendants' attorneys, the jury was informed of Christy's plea and the trial against Edgar and Boyd continued.
At the trial, evidence regarding the victim's autopsy was introduced which revealed that Brian had died of asphyxiation when he aspirated his own vomit while a foreign object was blocking his mouth. The medical examiner also opined that the injuries and scarring on Brian's wrists and ankles were consistent with ligature marks and were of different ages, from a few weeks to more than a year old.
In other evidence presented at trial, detectives recounted the initial admissions by Edgar and those portions of the statements by Christina and Martez which were not recorded. Jurors were then shown the videotaped interviews.
The Edgars' oldest child, Christon, explained what happened to Brian during the weekend of his death. On Saturday night, the night before Brian died, Christy and Boyd taped Brian as punishment for stealing food. Brian was taped from his feet to his shoulders "like a mummy" with duct tape, and he was gagged with a sock to keep him from gnawing through the tape. Brian had been nicknamed "Houdini" because he was adept at escaping from various bindings.
Christon testified that Sunday night, Brian was in trouble again, this time for stealing food at church. When Christon and his father got home that evening, Christy, Boyd, and Brian were already there. Christon and his father watched television while Boyd and Christy taped up Brian. When they had wrapped him from his feet to his waist, they ran out of duct tape. According to Christon, his father told his mother he would take her to the store. When they returned with the tape, Edgar went to his bedroom and the women finished taping Brian. Christon described the women putting a sock in Brian's mouth and wrapping the tape around his head, covering his mouth. Christon remembered one of the women telling Brian, "Now try to get out of this one." Brian was then placed in an small room under the basement stairs and left for the night on a sleeping bag placed on the concrete floor. Christon told the jury that Edgar knew about the taping on both nights, although on the night Brian died Edgar only saw Brian taped to the waist.
Martez and Christina testified via closed-circuit television after the trial court found they would be extremely traumatized by testifying in the presence of their parents. Martez testified that he had been tied up twice by Boyd. Once was on the night Brian died when Martez made his father mad by talking too much. Although Edgar did not tell her to, Boyd tied Martez' hands in front of him with socks placed over his arms first to keep the plastic ties from scarring him. Christon had also testified that he woke up to see bindings around the bunk bed where Martez slept that night. Martez testified that he had seen Brian tied up before, sometimes with "twisty-ties." According to him, his mother would tell Boyd to get the ties and Boyd would then tie up Brian.
Christina testified that Boyd had taped her or used plastic ties to restrain her. She had also had a stocking or tape put over her mouth. On the night Brian died, Christina said all three of the youngest children had been in trouble. Christina was tied up and slept on the floor in a room in the basement.
Both Martez and Christina had scars on their wrists consistent with ligature marks. Christina also had scars on the back of one leg and one shoulder consistent with having been hit with a looped cord.
Edgar testified in his own defense. He told the jury he had been married to Christy for 31 years and she had handled the adoption of the children. He also stated that his wife and "the womens [sic] of the church" handled the discipline. According to Edgar, on the night Brian died he took his wife to the store but never knew what she bought there. He admitted to seeing Brian's hands and legs taped and to knowing that was done to keep him from getting up. However, he explained that he did not think Brian would be harmed by it. Edgar said that his wife woke him in the early morning hours and told him Brian was not breathing. He told the jury that he lied to the doctor because he knew Christy and Boyd had done something wrong.
On cross-examination, Edgar admitted that he "knew of some restriction" of the children. He said that he did not stop it because "the womens [sic] was in charge of it and my wife, that was their job and I trusted them."
Chauntel Williams, a member of the Edgars' church, testified that Christy said God had told her about a new way of disciplining the children by tying them up. Williams told the jury she had seen Brian, Martez, and Christina tied up by their hands and feet with plastic ties.
The jury convicted both Edgar and Boyd of first-degree felony murder and two counts of abuse of a child. The trial court sentenced Edgar to a controlling term of life for the felony murder of Brian Edgar and to 32 months' imprisonment on each of the child abuse convictions, with those sentences to run concurrent with each other and consecutive to the sentence for felony murder.
I. Aiding and Abetting Instruction
Edgar contends that the trial court erred in instructing the jury on aiding and abetting. At trial, Edgar objected to the general aiding and abetting instruction on the basis that there was no evidence that he aided or abetted in taping Brian on the night Brian died and no evidence that he knew Brian had ever been taped or restrained above the arms. He also objected to the inclusion of aiding and abetting language in Instruction Nos. 13, 14, 15, and 16. Those instructions contained the elements of the crimes charged and provided that Edgar could be convicted if the jury found that Edgar committed child abuse or intentionally aided and abetted another to commit the child abuse. He contends that referring to aiding and abetting in these instructions made him "presumptively guilty" of the actions of Christy and Boyd.
When an objection to instructions has been lodged, our standard of review requires this court to consider the instructions as a whole and not isolate any one instruction. "'"If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citations omitted]."'" State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).
The trial court instructed the jury consistent with PIK Crim. 3d 54.05:
"A person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime."
Edgar's objection to this instruction is that there was not an evidentiary basis for giving the instruction. An instruction on aiding and abetting is appropriate if the jury could reasonably conclude from the totality of the evidence that the defendant aided and abetted another in the commission of a crime. State v. Pennington, 254 Kan. 757, 764-65, 869 P.2d 624 (1994).
In State v. Smolin, 221 Kan. 149, 557 P.2d 1241 (1976), the court discussed the concept of aiding and abetting within the context of child abuse. A mother was convicted of aiding and abetting in the aggravated battery of her daughter after the child was apparently abused by a caretaker. This court quoted with approval an Indiana case discussing aiding and abetting:
"'While it is true that the mere presence of a person at the scene of a crime is insufficient to constitute him a principal therein, in the absence of anything in his conduct showing a design to encourage, incite, aid, abet or assist in the crime, the trier of the facts may consider failure of such person to oppose the commission of the crime in connection with other circumstances and conclude therefrom that he assented to the commission of the crime, lent his countenance and approval thereto and thereby aided and abetted it. [Citations omitted.] This, it seems to us, is particularly true when the person who fails to interfere owes a duty to protect as a parent owes to a child. [Citation omitted.]'" (Emphasis added.) 221 Kan. at 153 (quoting Mobley v. State, 227 Ind. 335, 343-44, 85 N.E.2d 489 [1949]).
The Smolin court held that where the mother was aware of her child's injuries and did nothing to discover their cause or prevent their reoccurrence, there was sufficient evidence to instruct the jury on aiding and abetting. 221 Kan. at 153.
Similarly, the evidence clearly supported the giving of an aiding and abetting instruction in this case. Edgar admitted that he saw Brian bound by his hands and legs on the night he died. This was consistent with the testimony of Christon, who stated that his father was present when Brian was being taped on the night he died and then left to take his mother to get more tape. Additionally, detectives testified that Christina told them that her father had threatened to tie up the children. The detectives also testified that Martez reported to them that his father had tied up Brian with socks on the night Brian died and that his father had previously participated in tying up Brian. (Neither Christina nor Martez repeated these statements in their trial testimony.). Edgar also admitted in his testimony that he "knew of some restriction" of the children but did not stop it because the women were in charge of discipline.
Finally, Edgar's statements to police were also probative. Detectives testified that Edgar described binding Brian with belts and placing a sock in his mouth with a small piece of tape over it. The fact that Edgar made up the kind of story that he did – one involving the restraint of Brian so that he would not get into things and the placing of a sock into and tape over his mouth so that he would not "holler" – supports an inference that Edgar knew these activities were taking place even if it was actually Christy and Boyd who were performing them, as he later alleged. Considering this evidence, the trial court did not err in giving an aiding and abetting instruction in this case.
Furthermore, when the instructions are read as a whole, the jury could not have been misled to believe there was a presumption of guilt because of the inclusion of aiding and abetting language in Instruction Nos. 13, 14, 15, and 16. The jury had to find beyond a reasonable doubt that Edgar had in some way aided and abetted the child abuse. The instructions that included aiding and abetting language were not erroneous.
II. Lesser Included Offenses
Edgar also argues that the trial court deprived him of his theory of defense by refusing to instruct the jury on lesser included offenses. At the instructions conference, Edgar requested that the trial court instruct the jury on endangering a child, K.S.A. 21-3608, and criminal restraint, K.S.A. 21-3424, as lesser included offenses of all three counts (count I charging felony murder and counts II and III charging abuse of a child). In support of this request, defense counsel argued that Edgar's theory of defense was that Edgar "participated in endangering a child and criminal restraint." Edgar also joined in codefendant Boyd's request for lesser included offense instructions on unintentional second-degree murder and involuntary manslaughter. Defense counsel stated he wanted to be able to argue to the jury that Edgar did not know, but should have known, that his actions could result in Brian's death.
The trial court refused to give any lesser included offense instructions, finding that endangering a child and criminal restraint were not lesser included offenses of child abuse based on the elements of those offenses and the evidence of the underlying felony of child abuse was not weak or inconclusive.
Edgar has shifted the focus of his argument on appeal. He is no longer arguing that the trial court should have instructed the jury on lesser included offenses of the two counts of abuse of a child involving Martez and Christina. (This is consistent with trial counsel's strategy of conceding counts II and III during closing argument. Counsel stated, "[I] really don't care about Counts II and III. Something went on. And if you want to find my client guilty of Counts II and III, go right ahead. I'm not going to argue that."). Now, Edgar contends that the trial court erred in failing to instruct on unintentional second-degree murder and involuntary manslaughter as lesser included offenses of felony murder based on an underlying misdemeanor of endangering a child. In other words, Edgar contends the jury could have found his conduct toward Brian constituted endangering a child rather than abuse of a child; therefore, the jury could have reasonably convicted him of involuntary manslaughter based on the underlying misdemeanor of endangering a child. Edgar does not explain what evidence would have supported a conviction of unintentional second-degree murder.
In a felony-murder case, the trial court is required to instruct on lesser included offenses only when the evidence of the underlying felony is weak, inconclusive, or conflicting. State v. Boone, 277 Kan. 208, Syl. ¶ 6, 83 P.3d 195 (2004). This is because "[a] defendant's commission of the underlying felony supplies elements which must be absent from the lesser degrees of homicide, and a jury should be instructed only on lesser offenses of which the defendant reasonably may be convicted." State v. Altum, 262 Kan. 733, 738, 941 P.2d 1348 (1997). This court has previously decided cases addressing whether lesser included offense instructions were required when the defendant was charged with felony murder based on the underlying felony of child abuse and in those cases has applied the test of whether the evidence of the underlying felony is weak, inconclusive, or conflicting. See, e.g., State v. Struzik, 269 Kan. 95, 113, 5 P.3d 502 (2000); State v. Heath, 264 Kan. 557, 572-73, 957 P.2d 449 (1998); State v. Altum, 262 Kan. at 738-39; State v. Hupp, 248 Kan. 644, 652-53, 809 P.2d 1207 (1991).
In this case, Edgar contends: (a) the evidence was weak, inconclusive, and conflicting as to all the defendants because no one had the intent to injure or kill Brian and (b) even if the evidence supporting the underlying felony of child abuse may have been strong as to Christy and Boyd, it was weak, inconclusive, and conflicting as to him because (i) there is a question as to who committed the crime and (ii) there is only circumstantial evidence that he aided and abetted the child abuse.
A. Intent
Edgar's argument that the evidence was not strong because no one had the intent to injure or kill Brian has no merit. The argument ignores the theory of felony murder, which is that when a homicide occurs during the commission of a felony, the "'felony is the statutory equivalent to the deliberation and premeditation essential to murder in the first degree.'" Altum, 262 Kan. at 738 (quoting State v. Masqua, 210 Kan. 419, 425, 502 P.2d 728 [1972], cert. denied 411 U.S. 951 [1973]). The only intent required for the offense of child abuse is the intent to commit the act of torturing, beating, shaking, or inflicting cruel and inhuman corporal punishment on a child; there is no requirement of an intent to injure. See Heath, 264 Kan. at 572; Hupp, 248 Kan. at 653. So long as Edgar intentionally aided and abetted the taping of Brian, which constituted the abuse, it does not matter whether he intended to injure Brian.
It was also irrelevant whether Edgar knew Brian might die. As previously discussed, intent to commit a murder is not an issue in felony murder. See Struzik, 269 Kan. at 113. Furthermore, where the underlying felony is an inherently dangerous felony, the State need not prove that the victim's death was foreseeable. State v. Gleason, 277 Kan. 624, 638, 88 P.3d 218 (2004) (where underlying felony is one inherently dangerous to human life, foreseeability requirement is established as a matter of law). Child abuse is an inherently dangerous felony. See K.S.A. 2004 Supp. 21-3436(a)(7).
Thus, there is no merit to Edgar's argument that the evidence is weak because there is no proof of an intent to injure or kill.
B. Strength of Evidence That Felony Was Committed Versus
Strength of Evidence as to Who Committed the Felony
Edgar also argues that even if the evidence is considered strong as to Christy and Boyd, it is weak as to him because there was conflicting evidence as to who committed the underlying felony of child abuse. The State responds that the decision to instruct on lesser included offenses does not vary with each codefendant. In other words, according to the State, if the evidence that the underlying felony was committed was strong (and the State argues that it was), it does not matter whether the evidence was equally strong as to each particular codefendant.
Neither party cites any authority to support its position. However, codefendant Boyd raised this same issue in her appeal and cited to Altum, 262 Kan. 733, as support for the argument posited by her and Edgar. In the decision on her appeal, State v. Boyd, (No. 91,980, this day decided), we discussed Altum and State v. Rayton, 268 Kan. 711, 723, 1 P.3d 854 (2000), concluding:
"[T]he rule that a trial court is required to instruct on lesser included offenses of felony murder only when the evidence of the underlying felony is weak, inconclusive, or conflicting does not pertain to evidence about who committed the underlying felony. The rule pertains to evidence that the underlying felony was committed." Boyd, slip. op. at 30.
C. Evidence of Aiding and Abetting
Edgar argues the evidence of him aiding and abetting the child abuse of Brian is circumstantial and weak. In support of his argument he cites State v. Hupp, 248 Kan. 644. He suggests that although Hupp is distinguishable on its facts (explaining why the holding is the opposite of that sought by Edgar), the court's reasoning when applied in this case requires the giving of the lesser included instructions. In Hupp, the defendant unsuccessfully sought instructions on involuntary manslaughter as a lesser included offense of felony murder based on child abuse. On appeal, this court applied the following test:
"The analysis of whether the jury should have been instructed on lesser included offenses includes two steps. The first step in analyzing this issue is to determine whether the evidence of child abuse was so strong that no instruction on lesser included offenses was necessary. If the evidence of the underlying felony was strong, no instruction on the lesser included offenses need have been given. Then, if the evidence was not strong, this court would consider whether there was evidence on which a jury could have found the defendant guilty of the lesser included offenses. If there was not, no instruction on lesser included offenses need have been given." 248 Kan. at 652.
See Boone, 277 Kan. at 221; State v. Douglas, 274 Kan. 96, 103, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003); State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001); State v. Davis, 247 Kan. 566, 573, 802 P.2d 541 (1990).
In discussing whether the evidence of the underlying felony was strong, the Hupp court noted that the evidence was circumstantial and presented the jury with two possible choices: either Hupp intentionally hit the child, crushing the child's skull, or the child was accidentally injured. If Hupp intentionally hit the child, his conduct constituted child abuse because "[a] blow that crushes an infant's skull and kills the child is, as a