Little v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,775


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ISAAC LOUIS LITTLE,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed August 16,
2019. Affirmed.

Angela M. Davidson, of Davidson Appellate Law, of Lawrence, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GREEN, P.J., STANDRIDGE, J., and MCANANY, S.J.

PER CURIAM: Isaac Louis Little appeals from the trial court's partial denial of his
K.S.A. 60-1507 motion. Little argues that the trial court should have overturned his rape
conviction and three of his four aggravated criminal sodomy convictions based on our
Supreme Court's decision in State v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009),
and this court's recent decision in Calhoun v. State, 56 Kan. App. 2d 185, Syl. ¶¶ 3-4, 426
P.3d 519 (2018), rev. denied 309 Kan. ___ (February 28, 2019), concerning the
appropriateness aiding and abetting foreseeability instructions when defendants are
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charged with specific intent crimes. Because Little challenges general intent crimes only,
his arguments are unpersuasive. Therefore, we affirm.

In May 2009, Little and three other men broke into D.J. and S.C.'s house. Once
inside the house, the four men committed numerous violent crimes against D.J., S.C., and
their three small children. See State v. Little, No. 104,794, 2012 WL 3000342, at *1
(Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1252 (2013). Ultimately, a
jury convicted Little of the following crimes as either the aider or abettor: one count each
of attempted second-degree murder, rape, aggravated burglary, and criminal threat; two
counts each of aggravated battery and aggravated robbery; and four counts of aggravated
criminal sodomy. The trial court sentenced Little to a controlling term of 330 months'
imprisonment followed by 36 months' postrelease supervision. Little filed a direct appeal
with this court, but this court affirmed his convictions. 2012 WL 3000342, at *11.

On July 18, 2014, Little moved for relief under K.S.A. 60-1507, alleging that his
trial counsel provided ineffective assistance of counsel for failing to adequately challenge
the aiding and abetting foreseeability instruction—PIK Crim. 3d 54.06—concerning three
of his four counts of aggravated criminal sodomy and his single count of kidnapping. The
instruction given stated:

"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.
"A person who intentionally aids or abets another to commit a crime is also
responsible for any other crime committed in carrying out or attempting to carry out the
intended crime, if the other crime was reasonably foreseeable.
"This instruction does not apply to the charge of attempted murder in the first
degree that is charged in Count 7." (Emphasis added.)

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Little argued that he could not have committed the three aggravated criminal
sodomies or the kidnapping because those crimes "were all perpetrated by codefendants,
against the female victim, in a detached garage away from [his] presence." Little's trial
counsel submitted an affidavit in which he stated that "[f]ailing to object to the giving of
the aiding and abetting instruction was not a trial strategy and was not done for any legal
or strategic reason."

The trial court held a preliminary hearing on Little's motion. At the hearing, Little
conceded that "he directed [S.C.] to be tied up." But he still argued that he could not be
convicted of the three aggravated criminal sodomies or the kidnapping because those
occurred in the garage. Meanwhile, the State asserted that there was no legal basis for
overturning Little's convictions. The trial court made no findings at the hearing. Instead,
it concluded the hearing by stating that it would take the matter under advisement.

In the end, the trial court determined that "[a] full evidentiary hearing is
unnecessary." After reviewing Little's motion, as well as Little's trial transcripts, it held:

"1. . . . Petitioner has failed to show that the representation of his trial counsel,
Richard Ney, fell below an objective standard of reasonableness considering the totality
of the circumstances. The questioned conduct of trial counsel fell within the wide range
of reasonable professional assistance considering the circumstances of the case. Trial
counsel's performance was not deficient with respect to the jury verdicts in Count 9
(aggravated criminal sodomy), Count 10 (aggravated criminal sodomy) and Count 11
(aggravated criminal sodomy).
"2. The Court finds that the jury instruction issued by the trial court with respect
to Count 13 (kidnapping) was improper and the conviction is set aside.
"3. The Court incorporates by reference its findings as stated on the record."

Little timely appealed from the trial court's order. The State did not appeal the
reversal of Little's kidnapping conviction.
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Did Trial Counsel Provide Ineffective Assistance of Counsel?

When the trial court denies a K.S.A. 60-1507 motion following a preliminary
hearing, this court exercises de novo review because this court is in the same position as
the trial court to determine if the K.S.A. 60-1507 motion and record entitles the movant
to an evidentiary hearing. Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014).

To establish ineffective assistance of counsel, a defendant must establish two
things: First, the defendant must establish that counsel's performance was deficient given
the totality of the circumstances. Second, the defendant must establish prejudice. Sola-
Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 [1984]). In this case, this means that but for trial counsel's deficient performance,
Little would not have been convicted of the three aggravated criminal sodomies.

On appeal, Little repeats the argument he made below about his three aggravated
criminal sodomy convictions, which were violations of K.S.A. 21-3506(a)(3). He
additionally argues that his trial counsel was ineffective for failing to challenge the aiding
and abetting foreseeability instruction as it applied to his rape conviction under K.S.A.
21-3502(a)(1)(A). S.C. was raped in a bedroom. But Little asserts that S.C.'s rape was not
a reasonably foreseeable consequence of his actions during the aggravated burglary
because he was not in that bedroom. Little contends that his trial counsel should have
argued that the aggravated criminal sodomies and rape were not reasonably foreseeable
consequences of his actions. Furthermore, Little contends that trial counsel's failure to
make this argument and his failure to object to the aiding and abetting foreseeability
instruction resulted in reversible prejudice. In making his arguments, Little compares his
case to our Supreme Court's decision in Overstreet, 288 Kan. at 13, and this court's recent
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decision in Calhoun, 56 Kan. App. 2d at 185. Of note, Daniel Calhoun, the K.S.A. 60-
1507 movant in Calhoun, was one of Little's accomplices.

The State argues that Little's arguments are wrong because he has raised his
arguments for the first time on appeal or otherwise misapplied the law. A review of the
State's arguments and the law the State relies on establishes that the State is correct.

First, the State points out that Little made no arguments about his rape conviction
below. Therefore, the State asserts that Little cannot argue that his trial counsel was
ineffective based on his counsel's alleged failures concerning the rape conviction for the
first time on appeal. It is a well-known rule that appellants cannot raise new arguments
for the first time on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This
rule also applies to ineffective assistance of counsel claims. State v. Dull, 298 Kan. 832,
839, 317 P.3d 104 (2014). Moreover, although there are exceptions to the rule that
appellants cannot raise new arguments for the first time on appeal, Little has not made
any of these arguments. Indeed, he has not even recognized that he is raising his
argument for the first time on appeal. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014); see also State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (holding
that appellants who fail to comply with Supreme Court Rule 6.02(a)(5)'s [2019 Kan. S.
Ct. R. 34] requirement to explain why an issue not raised below should be considered for
the first time on appeal, waive that issue). Thus, Little's arguments about his rape
convictions are fatally flawed.

Second, the State correctly asserts that even if we assumed that Little's ineffective
assistance of counsel claims about his rape conviction, as well as all of his aggravated
criminal sodomy convictions, were properly before this court, Little's arguments would
still fail because Little has misapplied the Overstreet and Calhoun caselaw. Both
Overstreet and Calhoun involved the application of the same aiding and abetting
foreseeability instruction Little received—PIK Crim. 3d 54.06.
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In Overstreet, Overstreet had been charged with attempted first-degree
premeditated murder and aggravated assault under a theory of aiding and abetting. 288
Kan. at 8. Overstreet successfully challenged the giving of the aiding and abetting
foreseeability instruction at his trial:

"[The] foreseeability instruction indicated that the jury need not find that Overstreet
possessed the specific intent of premeditation if it found that premeditated murder was a
reasonably foreseeable consequence of aggravated assault. In other words, giving the
aiding and abetting foreseeability instruction negated the State's burden to prove an
essential element of the crime charged: premeditation." (Emphasis added.) 288 Kan. at
11.

Our Supreme Court concluded its decision by making a bright-line rule: "[F]or a
defendant to be convicted of a specific-intent crime on an aiding and abetting theory, that
defendant must have the same specific intent to commit the crime as the principal." 288
Kan. at 13.

In Calhoun, Calhoun alleged that his trial and appellate counsel were ineffective
for not challenging the aiding and abetting foreseeability instruction as it concerned his
crimes of aggravated kidnapping, attempted voluntary manslaughter, criminal threat, and
aggravated criminal sodomy. 56 Kan. App. 2d at 186, 208. This court determined that the
trial court violated our Supreme Court's bright-line rule in Overstreet concerning
Calhoun's aggravated kidnapping, attempted voluntary manslaughter, and criminal threat
convictions for the following reasons: (1) because those crimes were specific intent
crimes, and (2) because "nothing within the jury instruction packet told the jury that it
was limited to using the aiding and abetting foreseeability instruction while considering
Calhoun's guilt concerning the charged general intent crimes." 56 Kan. App. 2d at 199-
200. In reaching this decision, the Calhoun court held:

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"When a defendant is charged with specific intent crimes under a theory of aiding
and abetting, a jury should be given the aiding and abetting same mental culpability
instruction, but not the aiding and abetting foreseeability instruction. If the defendant is
charged with both specific intent and general intent crimes, the trial court must instruct
the jury that it can use an aiding and abetting foreseeability instruction only when
considering if the defendant is guilty of general intent crimes." 56 Kan. App. 2d 185, Syl.
¶ 3.

Next, this court reversed Calhoun's aggravated kidnapping, attempted voluntary
manslaughter, and criminal threat convictions because the specific facts of Calhoun's
case, including Calhoun's theory of defense and the jury's questions during deliberations,
supported Calhoun met both prongs of the ineffective assistance of counsel test. 56 Kan.
App. 2d at 203-06.

In his brief, Little ignores that the crimes he challenges are all general intent
crimes. This makes Little's case distinguishable from the Overstreet and Calhoun cases
because in those cases our Supreme Court and this court reversed specific intent crimes.
Indeed, the Calhoun court rejected Calhoun's arguments about his aggravated criminal
sodomy convictions because those were general intent crimes that were reasonably
foreseeable consequences of Calhoun's aggravated robbery crime. 56 Kan. App. 2d at
207-08. Similarly, rape is a general intent crime. See State v. Prine, 287 Kan. 713, 726-
27, 200 P.3d 1 (2009).

Because the crimes Little challenges are general intent crimes, the giving of the
aiding and abetting foreseeability instruction was appropriate. Little does not challenge
any specific intent crimes, which invoked an instruction warning the jurors not to
consider the aiding and abetting foreseeability instruction when considering those
specific intent crimes. Thus, the caselaw that Little relies on falls short of the mark and
does nothing to establish error.

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Moreover, Little also ignores that his aggravated criminal sodomies and his rape
convictions were all reasonably foreseeable consequences of his other intended crimes,
including his unchallenged aggravated criminal sodomy, his aggravated burglary, and his
criminal threat convictions. This means that notwithstanding the preceding analysis,
Little suffered no prejudice from his trial counsel's failure to either address his alleged
absence during the rape and three aggravated sodomies as either a trial strategy or a
failure to object to the aiding and abetting foreseeability instruction.

At trial, S.C. testified one of the four men in her home continuously carried a gun.
She further testified about when she was first sodomized, which is the aggravated
criminal sodomy conviction that Little does not challenge, she remembered certain things
about the man with a gun. According to S.C., both she and D.J. were on the floor being
held at gunpoint when another man moved her to the living room and forced her to
perform oral sex. The man with the gun told her "that if, if [she] didn't do a good job he
would shoot [her]." The man who forced her to perform oral sex, then made her go to her
bedroom, where he raped her. S.C. testified that while she was being raped, "the other
guy with the gun came in and he put the gun down [her] throat and he said that he would
shoot [her] too." S.C. also testified that the man with the gun ordered that the other men
tie her up with a vacuum cord. She explained that later, all the men except the man with
the gun were in the garage with her, where they continued to sodomize her. S.C. testified
that the man with the gun never had sexual contact with her.

Furthermore, Little's accomplice M.D., who became a State's witness, testified that
Little had the gun. M.D. testified that Little told him he had to have sex with S.C. M.D.
asserted that while he was in the garage with S.C. and the two other accomplices, Little
was inside with D.J. When he returned inside, he testified that he saw Little and D.J.
"tussling" because D.J. "was trying to grab the gun."

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On appeal, Little's argument hinges on his contention that he "did not go to the
home to commit sexual crimes." He asserts that he was not in the garage while his other
three accomplices sodomized S.C. Thus, Little implicitly concedes that he was the
gunman tussling with D.J. Little's implicit concession, taken with S.C.'s and M.D.'s
testimony undermines Little's argument that the three aggravated criminal sodomies that
occurred in the garage and the rape were not reasonably foreseeable consequences of his
other crimes. This is especially true when one considers that Little does not challenge the
first aggravated criminal sodomy that occurred in the living room.

For the preceding reasons, we affirm.

Affirmed.