City of Wichita v. Harms

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NOT DESIGNATED FOR PUBLICATION

No. 115,127

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF WICHITA,
Appellee,

v.

TYWANA K. HARMS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed February 3, 2017.
Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Cathy A. Eaton, assistant city attorney, for appellee.

Before ATCHESON, P.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Tywana K. Harms appeals her conviction by the district court for
violating the City of Wichita (the City) ordinance against domestic battery by an
individual involved in a dating relationship. Harms claims multiple errors occurred: the
City failed to show the victim was over 18 years of age; the district court improperly
found the victim was unavailable and admitted his statement to witnesses and the officer
in violation of K.S.A. 2015 Supp. 60-460(d); and, finally, the district court committed
cumulative error. We find no error by the district court and affirm.

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FACTS

On February 13, 2014, Harms was convicted with domestic battery in violation of
the City of Wichita, Kansas, Ordinance, sec. 5.10.025(a)(2) (the Ordinance). Specifically,
she was charged with "knowingly and in a rude, insolent or angry manner caus[ing]
physical contact to [R.L.] a person in a dating relationship with defendant by hitting him
with her vehicle causing him to fall." Harms pleaded no contest, the municipal court
found her guilty, and sentenced her. Harms appealed to the district court.

Before the district court, Harms waived her right to a jury trial, and the case was
tried to the judge. As a preliminary matter at trial, the City indicated R.L. was personally
served with a subpoena but failed to appear. The City requested the district court admit
R.L.'s statements pursuant to K.S.A. 2015 Supp. 60-460(d). Harms' counsel asked the
court reserve its ruling. The district court told the parties it would hear the evidence and
determine whether the statements were admissible or should be disregarded. Harms'
counsel stated: "And that's fair enough, Your Honor."

Wade McCluer testified he saw a Jeep Cherokee slowing down and saw a man,
R.L., fall to the ground but did not see the Jeep make contact with the man because he
was texting. Wade's wife, Amanda McCluer, told him the Jeep hit the man. The Jeep left
the area. Wade exited his vehicle and asked R.L. if he was okay. Wade testified R.L.
walked with a limp, R.L. told him he was sore, the vehicle had hit him, he did not want
Wade to call the police, and the driver of the vehicle was his girlfriend. Wade identified
Harms as the driver.

Amanda testified she was driving and noticed the car ahead of them moving very
slowly. It was approximately 10:30 or 11 p.m., cold, and the McCluers' vehicle was 30 to
100 feet behind the Jeep. Amanda could see the driver in the car arguing with a man
walking along the passenger side of the vehicle. She testified she saw the vehicle swerve
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a few feet, hit the man, and it appeared to be intentional. Amanda also identified Harms
as the driver of the Jeep that left the scene.

Officer Walter Bautista-Montoya investigated the incident. He testified he spoke
with the victim, R.L., after speaking with the McCluers. R.L. told Officer Bautista-
Montoya he was dating Harms, they argued, and he got hit with the Jeep. Officer
Bautista-Montoya indicated R.L. was uncooperative and indicated he did not want to
prosecute Harms because he did not want to get his girlfriend in trouble.

Harms testified she was dating R.L. at the time of the incident and they were still
dating at the time of trial. She testified that earlier in the evening and prior to the incident,
R.L. had proposed; she said no; and she told R.L. he needed to leave. She testified she
followed after him in her vehicle. When she reached the stop sign, her vehicle slid and hit
R.L.'s suitcase. Harms testified R.L. told her she had not hit him but he was going to tell
the people who were approaching (the McCluers) she did. Harms drove away.

At the conclusion of the evidence, the district court announced it was admitting
R.L.'s hearsay statements pursuant to K.S.A. 2015 Supp. 60-460(d). The district court
found R.L. was a reluctant witness because he did not want to get his girlfriend in
trouble. The court also found R.L. would have appeared if his testimony would have been
beneficial for Harms.

The district court found Harms guilty and sentenced Harms to a 12-month jail
sentence, suspended all but 5 days to be served with 48 hours in jail and 72 hours on
work release. Additionally, the district court imposed a $500 fine and placed Harms on
12 months' probation.

Harms timely appealed.

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ANALYSIS

There was sufficient evidence to support a finding of guilt.

On appeal, Harms argues the City failed to show R.L. was 18 years old or older,
resulting in insufficient evidence to support her conviction. When the sufficiency of
evidence is challenged in a criminal case, the appellate court reviews all the evidence in
the light most favorable to the State. A conviction will be upheld if the court is convinced
that a rational factfinder could have found the defendant guilty beyond a reasonable
doubt based on that evidence. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015).

In determining whether there is sufficient evidence to support a conviction, the
appellate court generally will not reweigh the evidence or the credibility of witnesses.
State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). It is only in rare cases where
the testimony is so incredible that no reasonable factfinder could find guilt beyond a
reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1,
5-6, 660 P.2d 945 (1983).

The City charged Harms with domestic battery in violation of the Ordinance. The
complaint specifically charged Harms with "knowingly and in a rude, insolent or angry
manner caus[ing] physical contact to [R.L.] a person in a dating relationship with
defendant by hitting him with her vehicle causing him to fall."

The relevant portions of the Ordinance defines domestic battery as:

"(a) . . . (2) knowingly causing physical contact by a family or household
member with a family or household member or knowingly causing physical contact by an
individual in a dating relationship to an individual with whom the offender is involved or
has been involved in a dating relationship when done in a rude, insulting or angry
manner, is guilty of a misdemeanor.
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"(b) As used in subsection (a) of this section, 'family or household member'
means persons 18 years of age or older who are spouses, former spouses, parents or
stepparents and children or stepchildren, and persons who are presently residing together
or who have resided together in the past, and persons who have a child in common
regardless of whether they have been married or who have lived together at any time.
Family or household member also includes a man and woman if the woman is pregnant
and the man is alleged to be the father, regardless of whether they have been married or
have lived together at any time.
"(c) As used in subsection (a) of this section 'dating relationship' means a social
relationship of a romantic nature. In addition to any other factors the court deems
relevant, the Trier of fact may consider the following when making a determination of
whether a relationship exists or existed: nature of the relationship, length of time the
relationship existed, frequency of interaction between the parties and the time since
termination of the relationship, if applicable." City of Wichita, Kansas, Ordinance, sec.
5.10.025.

Harms argues "the City failed to prove an essential element of Domestic Battery,
that the alleged victim was 18 years of age or older." However, the requirement that the
victim be 18 years of age or older only appears in the definition of "family or household
member." There is no age requirement in the definition of "dating relationship." Based on
the plain language of the Ordinance, the victim's age is not an element of the crime when
a defendant is charged with domestic battery of an individual with whom the offender is
in a dating relationship.

Harms argues the language in the Ordinance is "substantially the same" as K.S.A.
2015 Supp. 21-5414, the statute defining domestic battery:

"(a) Domestic battery is:
(1) Knowingly or recklessly causing bodily harm by a family or household member
against a family or household member; or
(2) knowingly causing physical contact with a family or household member by a family
or household member when done in a rude, insulting or angry manner."
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Citing State v. Perez-Rivera, 41 Kan. App. 2d 579, 581, 203 P.3d 735 (2009), she argues
the plain language of the domestic battery statute required the State to prove the victim's
age beyond a reasonable doubt—thus, the City must prove R.L.'s age.

While the language of K.S.A. 2015 Supp. 21-5414 is similar to the Ordinance, the
difference in how Harms was charged is substantial and fatal to Harms' argument. Under
the Ordinance, domestic battery may be committed against a victim with whom the
offender is in a dating relationship, while under the Kansas statute, the victim must be a
"family or household member" of the offender. Compare K.S.A. 2015 Supp. 21-5414
with the Ordinance. Although K.S.A. 2015 Supp. 21-5414(c)(1) defines "family or
household member" as a person 18 years of age or older, it does not contain the extra
language contained in the Ordinance involving a dating relationship.

Given the charge presented by the City, there was sufficient evidence to support
Harms' conviction. The City had to prove Harms knowingly caused physical contact in a
rude, insulting, or angry manner with an individual with whom she was involved or had
been involved in a dating relationship. Harms testified she was dating R.L. at the time of
the incident and was still dating him at the time of trial. Wade testified the street was in
decent condition and was not icy. Amanda testified she saw Harms and R.L. arguing and
Harms intentionally swerved her Jeep to hit R.L. Based on this evidence, a rational
factfinder could have found Harms guilty beyond a reasonable doubt.

No Preservation of Her Hearsay Objection

Harms also argues the district court erred when it allowed hearsay evidence
pursuant to K.S.A. 2015 Supp. 60-460(d). In addition, she argues the admission of
hearsay violated her right to confront the witness pursuant to the Sixth Amendment to the
United States Constitution. The City argues Harms failed to preserve these arguments,
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R.L.'s statements to the McCluers were not testimonial hearsay, and R.L.'s statements met
any of the hearsay exceptions listed in K.S.A. 2015 Supp. 60-460(d).

K.S.A. 60-404 generally precludes an appellate court from reviewing an
evidentiary challenge absent a timely and specific objection made on the record. State v.
Dupree, 304 Kan. 43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016). Further, a
party may not object at trial to the admission of evidence on one ground and argue a
different ground on appeal. State v. Page, 303 Kan. 548, 558, 363 P.3d 391 (2015). At
trial, the City indicated R.L. was personally served but failed to appear for trial. The City
then requested the district court to admit into evidence R.L.'s statements to the McCluers
and to Officer Bautista-Montoya regarding his state of mind and his perception of what
happened. Harms' counsel replied:

"Your Honor, I am going to ask the Court not to make a finding as of this time
because I think there's going to have to be a foundation laid as it relates to the evidence
that would support the statute, and I think time and observation would be essential as it
relates to that."

The district court determined it would hear the evidence and reserved ruling on its
admissibility. Harms did not make any other objections regarding the admission of R.L.'s
statements.

Even assuming Harms' counsel's statement was sufficient to preserve the issue, she
is not entitled to relief. Harms contends the City's statement indicating R.L. was
personally served and failed to appear was insufficient to find R.L. was an unavailable
witness because the City "made no record at trial of its attempts to further serve him or
any efforts to find him or ascertain his whereabouts when he did in fact fail to appear."
However, Harms provides no authority supporting her argument the City's statements
were insufficient to find R.L. was an unavailable witness. Failure to support a point with
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pertinent authority or show why it is sound despite a lack of supporting authority or in the
face of contrary authority is akin to failing to brief the issue, and the issue is abandoned.
See State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015).

For the first time on appeal, Harms argues the district court erred when it admitted
R.L.'s hearsay statements because it violated her rights under the Confrontation Clause of
the Sixth Amendment to the United States Constitution. However, pursuant to K.S.A. 60-
404, a contemporaneous objection must be made to preserve a Confrontation Clause
argument. State v. Dukes, 290 Kan. 485, 488-89, 231 P.3d 558 (2010). At trial, Harms
failed to object to the admission of R.L.'s statements as a denial of her right to confront
witnesses against her. She has not preserved this issue for review. Briefly, Harms claims
one of the three exceptions apply to allow this court to consider a constitutional question
raised for the first time on appeal. See State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510
(2009). She then fails to explain which one of the exceptions applies and does not
expound on its application. A point raised incidentally in a brief and not argued therein is
deemed abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015).

In addition, Harms argues R.L.'s hearsay statements do not fall under any of the
hearsay exceptions provided by K.S.A. 2015 Supp. 60-460(d):

"(d) Contemporaneous statements and statements admissible on ground of
necessity generally. A statement which the judge finds was made (1) while the declarant
was perceiving the event or condition which the statement narrates, describes or explains,
(2) while the declarant was under the stress of a nervous excitement caused by such
perception or (3) if the declarant is unavailable as a witness, by the declarant at a time
when the matter had been recently perceived by the declarant and while the declarant's
recollection was clear and was made in good faith prior to the commencement of the
action and with no incentive to falsify or to distort."

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The City argues R.L.'s statements meet every K.S.A. 2015 Supp. 60-460(d)
hearsay exception. Again, without citing supporting authority, Harms argues the City's
statements regarding R.L.'s failure to appear were insufficient to find him unavailable.
Additionally, she argues her testimony that R.L. threatened to tell the McCluers she hit
him creates reasonable doubt regarding whether his statements were made in good faith.

We cannot reweigh the evidence, and we must view the evidence in a light most
favorable to the City. Daws, 303 Kan. at 789; Laborde, 303 Kan. at 6. The district court
clearly did not believe Harms' testimony. We will not reweigh the evidence. By failing to
cite supporting authority, Harms has abandoned the argument that R.L.'s statements were
inadmissible under K.S.A. 2015 Supp. 60-460(d). See Murray, 302 Kan. at 486.
Accordingly, we decline to further address the application of the hearsay exceptions
pursuant to K.S.A. 2015 Supp. 60-460(d).

No Cumulative Error

Finally, Harms' last argument claims the district court's cumulative error denied
her due process. However, we have found no error. Therefore, the record fails to support
her cumulative error argument. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587
(2015). This issue is without merit.

Affirmed.