State v. Bulk

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NOT DESIGNATED FOR PUBLICATION

No. 114,462

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUSTIN D. BULK,
Appellant.


MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed December 30, 2016.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., ARNOLD-BURGER, J., and WALKER, S.J.

WALKER, J.: Justin Bulk appeals from his convictions for aggravated battery and
aggravated assault. Because we find any trial court errors to be harmless, we affirm.

FACTS

Bulk and his friend Cheyenne Taylor went to the home of a third friend, Robert
Stoll. Once there, Bulk, Taylor, and another acquaintance, Daniel Rios, went to an
upstairs bedroom to hang out while Stoll took a shower. After entering the room, the men
noticed a hand gun lying on the floor next to the bed. Trial testimony was disputed
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regarding whether the gun was lying in two pieces on the floor with the clip and gun
separate, or whether it was on the floor in a holster with the clip in it.

According to Bulk, the gun was in a holster. Bulk claimed that he picked the gun
up and removed the clip before he began examining it. Either way, at some point, with
the clip separated from the rest of the gun, Bulk began looking at the weapon. Taylor
testified that after Bulk examined the gun briefly with it pointed toward the television,
Bulk aimed the gun at Taylor and "dry fired" it—meaning that Bulk pulled the trigger
and the gun clicked but did not fire because there was no ammunition in the weapon.

At the time Bulk dry fired the gun, Taylor knew that the clip was not in it but was
not sure whether there was a round in the chamber. Taylor testified that he heard the gun
click and had never been so scared before in his entire life. Taylor got angry and told
Bulk to stop pointing the gun at him. Taylor and Rios testified that rather than move the
gun away from Taylor, Bulk continued to point the gun at Taylor as he inserted the clip
back into it. Seconds later, the gun went off and a bullet passed through Taylor's chest.

Once Bulk realized that he had shot Taylor, he immediately began applying
pressure to Taylor's wound to slow the blood loss and called 911 for help. Once medical
personnel arrived to assist Taylor, they drove him to the Clay Center hospital where a
helicopter was waiting to fly him to the hospital in Salina.

Taylor believed he was going to die in the hospital. The bullet punctured his right
lung, and a tube had to be inserted into his lung because it had collapsed. Taylor was in
the hospital for 8-10 days and continued to feel the effects of the injury at the time of
trial.

Bulk was arrested and charged with aggravated battery and aggravated assault. At
trial, the district court mistakenly instructed the jury on a less severe degree of aggravated
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battery than that with which Bulk was charged. Apparently no one noticed the
discrepancy between the complaint and the jury instruction until after the verdicts were
received. The jury found Bulk guilty of both counts. At sentencing, the district court
sentenced Bulk in accordance with the severity level of aggravated battery charged
(severity level 5 person felony) rather than the severity level that the jury was instructed
on and found him guilty of (a severity level 8 person felony). Bulk now appeals.

ANALYSIS

Bulk alleges a number of different errors which he believes were committed at
trial, and we will deal with each of them in turn. However, as noted below, we believe
that most of the issues raised by Bulk are rendered moot by our finding that any errors
committed by the district court were ultimately harmless in nature.

Bulk first contends that the district court erred when it instructed the jury on
severity level 8 reckless aggravated battery rather than severity level 5 reckless
aggravated battery as charged. Bulk believes that this error denied him his right to due
process and deprived the district court of jurisdiction to convict him. Although Bulk
considers the due process and jurisdiction issues separately, both turn on the underlying
argument that the district court erred when it instructed the jury, so the issues are best
considered together.

Normally the district court should have instructed the jury on the crime charged in
the complaint, a severity level 5 reckless aggravated battery, together with any applicable
lesser included offenses, including the level 8 reckless aggravated battery. But neither
Bulk nor the State objected to the instruction that was given or the district court's failure
to give the instruction for severity level 5 reckless aggravated battery.

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When a party does not object to the district court's giving of or failure to give an
instruction, the standard of review on appeal is clear error. State v. Clay, 300 Kan. 401,
408, 329 P.3d 484 (2014). This review involves a two-step process. First, this court must
consider whether there was any error at all by reviewing the entire record to determine
whether the instruction at issue was both legally and factually appropriate. If the court
finds error, it then assesses whether it is firmly convinced that the jury would have
reached a different verdict without the error. 300 Kan. at 408. To the extent that Bulk's
appeal requires this court to consider whether the district court violated his constitutional
right to due process, this court's review is unlimited. See State v. Wade, 284 Kan. 527,
534, 161 P.3d 704 (2007). While constitutional issues are typically not addressed by this
court for the first time on appeal, Bulk properly invokes an exception to the general rule
that allows for consideration of claims in order to prevent the denial of an appellant's
fundamental rights. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015).

Bulk was charged with aggravated battery in violation of K.S.A. 2014 Supp. 21-
5413(b)(2)(A) based on the prosecutor's allegation that he "recklessly caused great bodily
harm to another person; to wit: shot Cheyenne Taylor in the chest with a 9mm pistol."
The crime charged was a severity level 5 person felony. At the close of the trial, however,
the district court instructed the jury that in order to convict Bulk of aggravated battery it
must find that he "recklessly caused bodily harm to Cheyenne Taylor with a deadly
weapon." The language of the instruction mirrored the language of K.S.A. 2014 Supp.
21-5413(b)(2)(B), severity level 8 reckless aggravated battery, rather than K.S.A. 2014
Supp. 21-5413(b)(2)(A) as charged.

Bulk contends that there is such a significant difference between the two
subsections that he was convicted of a crime with which he was not charged. In reality,
both K.S.A. 2014 Supp. 21-5413(b)(2)(A) and (B) define ways in which a person can
commit reckless aggravated battery. The key difference between the two is that K.S.A.
2014 Supp. 21-5413(b)(2)(A) requires a finding that the defendant recklessly caused
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"great bodily harm" or "disfigurement of another person," whereas K.S.A. 2014 Supp.
21-5413(b)(2)(B) only requires a finding that the defendant recklessly caused "bodily
harm to another" with a deadly weapon or in a manner that could have resulted in "great
bodily harm, disfigurement or death."

Contrary to Bulk's assertion, these are not two separate crimes, but various degrees
of the same crime. See K.S.A. 2014 Supp. 21-5109(b)(1); State v. McCarley, 287 Kan.
167, 177-78, 195 P.3d 230 (2008). Importantly, in McCarley our Supreme Court
specifically held that the crime with which Bulk was convicted, a severity level 8
aggravated battery, is a lesser included offense of the crime with which he was charged, a
severity level 5 aggravated battery. See K.S.A. 2014 Supp. 21-5413(b)(2)(A), (B). When
a defendant is charged with a crime, he or she may "be convicted of either the crime
charged or a lesser included crime." K.S.A. 2014 Supp. 21-5109(b). A lesser included
offense instruction becomes necessary if the evidence presented at trial could "reasonably
justify a conviction of some lesser included crime." K.S.A. 2014 Supp. 22-3414(3); State
v. Williams, 295 Kan. 506, 521-22, 286 P.3d 195 (2012). In that case, the district court is
obligated to give the lesser offense instruction even if it has not been requested by either
of the parties. State v. Williams, 268 Kan. 1, 14-15, 988 P.2d 722 (1999).

But Bulk is correct that the district court committed clear error by not properly
instructing the jury on the more serious charge of aggravated battery involving great
bodily harm as charged in the complaint. Bulk is also right that his due process rights are
potentially implicated by this error. Our Supreme Court has held that when jury
instructions on the elements of a crime of conviction are broader or different than the
elements of the crime charged, a defendant's due process rights are implicated because
the purpose of the charging document is to inform the defendant of the nature of the
accusation against him or her so that he or she is able to adequately prepare his or her
defense. See State v. McClelland, 301 Kan. 815, 828, 347 P.3d 211 (2015).

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Bulk cites to United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed.
2d 444 (1995), for authority that the district court violated his right to due process by
omitting a crucial element in the instruction. Gaudin held that criminal defendants have a
constitutional right to be found guilty of all elements of the crime with which they are
charged. 515 U.S. at 522-23. Gaudin had complained that the trial court violated his right
to due process when it instructed the jury that one of the elements the government was
required to prove "'is not submitted to you for your decision but rather is a matter for the
decision of the court.'" 515 U.S. at 508. There, the issue was not that the crime the jury
was instructed on did not exactly match the crime with which Gaudin was initially
charged, but that the district court imposed upon the jury's role as factfinder its own
determination that the government had proven one of the elements of the crime. And, as
we will discuss below, 4 years later the United States Supreme Court gave very different
treatment to a situation where, as here, a critical element was omitted from the jury
instruction.

The State argues in response that there was no due process violation because the
trial court's omission of the term "great" in connection with the alleged bodily harm,
together with the addition of the words "with a deadly weapon," amount to harmless error
in the context of the evidence in this case. After careful review, we agree.

Kansas courts apply a harmless error analysis to the omission of an element from
the instructions to the jury. When a reviewing court concludes beyond a reasonable doubt
that the omitted element was uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the error, the erroneous instruction
is properly found to be harmless. State v. Reyna, 290 Kan. 666, Syl. ¶¶ 9-10, 234 P.3d
761 (2010), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332
(2016).

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In State v. Daniels, 278 Kan. 53, 91 P.3d 1147 (2004), our Supreme Court
considered a similar situation in which the district court inadvertently omitted the element
of bodily harm from the instructions to the jury on a charge of aggravated robbery. After
reviewing a number of prior Kansas cases involving harmless error in jury instructions,
the Supreme Court ultimately applied the standard set forth by the United States Supreme
Court in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
The trial court in Neder had taken the issue of materiality away from the jury in a trial
involving tax fraud. The United States Supreme Court ultimately held that refusing to
instruct on the element of materiality on the tax fraud charges was erroneous, but the
error was not of the type that it had previously found to be "structural error," defined as
the type of constitutional error which is so intrinsically harmful as to require automatic
reversal. 527 U.S. at 8-9 In Daniels, our court set out the test to be used in measuring
whether instruction error is harmless:

"Under the Neder test, 'where a reviewing court concludes beyond a reasonable doubt
that the omitted element was uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the error, the erroneous instruction
is properly found to be harmless.' 527 U.S. at 17. Stated another way, the reviewing court
'asks whether the record contains evidence that could rationally lead to a contrary finding
with respect to the omitted element.' 527 U.S. at 19. If the answer to That question is 'no,'
the error may be held harmless." Daniels, 278 Kan. at 62.

As this court noted in State v. Hargrove, 48 Kan. App. 2d 522, 530, 293 P.3d 787
(2013), this standard results in a two-prong test to determine if an omission of a jury
instruction element is harmless: (1) the evidence bearing on the omitted element must
approach "the irrefutable" and (2) a defendant effectively has to concede that component
of the charged crime. The Hargrove panel cautioned that the test must be rigorously
applied, lest the reviewing panel substitute its assessment of the evidence for the jury's
factfinding duty.

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Here, there was more than enough evidence on which the jury could have
convicted Bulk of severity level 5 aggravated battery—aggravated battery that resulted in
great bodily harm to the victim. The evidence at trial was undisputed that Bulk
accidentally shot Taylor through his chest causing his right lung to collapse and
necessitating that Taylor be life-flighted to Salina for treatment. Although his lung was
repaired and the bullet wound healed, Taylor testified that he was still unable to
participate in rigorous physical activity as a result of the injury. At trial, the defense made
no effort to question the nature or extent of Taylor's injuries, or argue that he did not
suffer great bodily harm. Instead the defense focused on its theory that the shooting was
merely accidental and did not represent reckless conduct by Bulk.

Applying the Neder/Daniels/Hargrove test to the facts here, we are convinced
beyond a reasonable doubt that the jury's verdict would have been the same absent the
error. We do not believe a rational factfinder would determine the injuries suffered by
Taylor to be anything other than great bodily harm. For this reason, we find that the
district court's instruction error was harmless and Bulk was properly convicted of
aggravated battery as a severity level 5 person felony under K.S.A. 2014 Supp. 21-
5413(b).

Bulk makes the additional point that the jury instruction actually given in the case
does require proof of a different or additional element than the original charge, i.e., that
the bodily harm was caused with a deadly weapon. But since Bulk did not make a
contemporaneous objection to the instruction at trial, the test becomes whether this was
clear error that unduly prejudiced Bulk. See State v. Hart, 297 Kan. 494, 509, 301 P.3d
1279 (2013). Here all evidence at trial pointed to the fact that the battery was committed
with a gun, and Bulk did not contest that fact. To the extent that anyone was prejudiced
by the instruction, it was the State, because the instruction required proof of an additional
uncharged element, and proof of that element would not have been required if the proper
instruction had been given. Thus, even if we accept Bulk's contention that proof of an
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additional element was required, he not only suffered no prejudice from the error, but in
fact greatly benefited from it. Simply because Bulk frames the issue as a due process
violation does not change this fact.

Bulk further contends that severity level 8 reckless aggravated battery is not a
lesser included offense of severity level 5 reckless aggravated battery; and, as a result, the
district court did not have jurisdiction to enter a judgment against him for the severity
level 8 crime. As should be clear from the foregoing discussion, we find this argument to
be without merit. Since we believe Bulk was properly convicted of the severity level 5
version of aggravated battery under K.S.A. 2014 Supp. 21-5413(b), the issue is moot.

Bulk's second area of argument is that the district court erred when it sentenced
him in accordance with K.S.A. 2014 Supp. 21-5413(g)(2)(C), a severity level 5 person
felony, despite the fact that the jury found him guilty of aggravated battery as defined by
K.S.A. 2014 Supp. 21-5413(b)(2)(B), a severity level 8 person felony. In light of our
ruling on the first issue raised by Bulk, it is unnecessary for us to discuss this further.
Since we find that Bulk was properly convicted of a severity level 5 person felony, it was
appropriate for the district court to sentence him accordingly.

Finally, Bulk argues that there was insufficient evidence presented at trial to
sustain his conviction for aggravated assault. When a defendant/appellant challenges the
sufficiency of the evidence used to convict him or her, this court reviews all evidence in
the light most favorable to the prosecution and considers whether there was evidence
upon which the factfinder could have found the defendant guilty beyond a reasonable
doubt. In making its determination, this court does not reweigh the evidence or pass on
the credibility of witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014),
overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). It is
only in rare instances where the testimony was so incredible that no reasonable factfinder
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could have found guilt beyond a reasonable doubt that a guilty verdict will be reversed.
See State v. Matlock, 233 Kan. 1, 4-6, 660 P.2d 945 (1983).

Bulk makes two arguments with regard to the evidence that was presented at his
trial. First, he contends that there was not sufficient evidence that "Taylor's apprehension
of immediate bodily harm was reasonable." Second, Bulk argues that there was
insufficient evidence he knowingly placed Taylor in apprehension of bodily harm. We
disagree with his analysis.

The evidence at trial is plainly sufficient to uphold Bulk's conviction. Taylor
testified that as he, Bulk, and Rios entered the room in which the gun used in Taylor's
shooting was located, he noticed the gun lying on the floor with the clip next to it. After a
while, Bulk picked up the gun, played with it, then pointed it at Taylor and dry fired it.
Taylor testified that at the time Bulk pointed the gun at him he was uncertain whether
there were any bullets in it. Because he did not know if the gun was capable of being
shot, Taylor got angry when Bulk pointed the gun at him. When Bulk then pulled the
trigger, Taylor testified that he was more scared than he had ever been in his life.

Bulk does not seem to dispute Taylor's testimony that his actions caused Taylor
fear. Instead, Bulk takes issue with the jury's conclusion that the fear Taylor felt was
reasonable. Bulk argues that it was not reasonable because Taylor knew that the clip was
not in the gun and because the gun was in fact empty of bullets at the time of the acts
giving rise to the aggravated assault charge.

We believe the legislature intended to impose both an objective and subjective
requirement that a defendant's actions placed a victim in apprehension of bodily harm
when it added the qualification that a defendant's apprehension be reasonable to the
definition of assault. See K.S.A. 2014 Supp. 21-5412(a), (b). Caselaw prior to the
addition of the word reasonable to the definition of assault focused the inquiry on
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whether the individual victim was, in fact, placed in apprehension of bodily harm by the
actions of the defendant. See State v. Warbritton, 215 Kan. 534, 537-38, 527 P.2d 1050
(1974). While we have found no cases addressing the reasonableness requirement in the
context of assault, in other cases in which a reasonableness requirement is imposed, it
carries with it a burden on the factfinder to make objective determinations based on the
evidence presented.

As an example, self-defense is a defense to the use of force when the defendant
reasonably believed force was necessary for his or her protection. See State v. Simon, 231
Kan. 572, 572-73, 646 P.2d 1119 (1982). For the defense to be viable, the jury must find
both that there was evidence from which a person could objectively determine that the
defendant was in danger so that defensive force was necessary and that the defendant
actually believed he or she was in danger and needed to use force for protection. Here,
the addition of the requirement that the jury find that a victim objectively had reason to
be apprehensive has not eliminated the requirement that the jury also find the defendant
was subjectively made apprehensive by the defendant's actions. See State v. Brown, 300
Kan. 565, 581-82, 331 P.3d 797 (2014) (considering, under the current wording of the
assault statute, whether victim was actually made afraid by defendant's actions).

In State v. Deutscher, 225 Kan. 265, 589 P.2d 620 (1979), our Supreme Court
considered whether a firearm could be considered a deadly weapon for purposes of an
aggravated assault conviction when the weapon was not loaded at the time of the assault.
The Deutscher court concluded that it is the victim's perception that is key—it is
sufficient to sustain a conviction that a firearm was "pointed in such a manner as to
communicate to the person threatened an apparent ability to fire a shot and thus do bodily
harm." 225 Kan. at 270-71. That holding is equally applicable to the reasonableness of
apprehension determination.

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It is immaterial to a person who is unaware that the firearm being pointed at him
or her is unloaded or that the weapon is not actually capable of causing harm. Without
personal knowledge that the firearm is unloaded, it is reasonable for a person to react
with fear when a gun is pointed at him or her. Here, Taylor's testimony provided
sufficient evidence that Taylor was unsure whether the chamber of the gun Bulk pointed
at him was empty to sustain the finding that his fear was reasonable.

Bulk next argues that there was insufficient evidence presented for the jury to find
that he acted with the requisite intent. Assault is defined as "knowingly placing another
person in reasonable apprehension of immediate bodily harm." K.S.A. 2014 Supp. 21-
5412(a). Crimes in which the mens rea requirement is knowing or knowingly are general
intent crimes. K.S.A. 2014 Supp. 21-5202(i); State v. Kershaw, 302 Kan. 772, 780, 359
P.3d 52 (2015). Our Supreme Court has interpreted knowingly to mean:

"that the accused acted when he or she was aware that his or her conduct was reasonably
certain to cause the result. This does not mean that the accused must have foreseen the
specific harm that resulted. Instead, it is sufficient that he or she acted while knowing that
[the outcome] was reasonably certain to result from the action." State v. Hobbs, 301 Kan.
203, 211, 340 P.3d 1179 (2015).

The Supreme Court's interpretation expounds upon the legislature's instruction that
a defendant acts knowingly "with respect to the nature of such person's conduct or to the
circumstances surrounding such person's conduct when such person is aware of the
nature of such person's conduct or that the circumstances exist." K.S.A. 2014 Supp. 21-
5202(i).

Bulk's testimony was essentially that he was holding the gun and moving it around
to examine it. At some point, without realizing he was doing so, he began pointing the
gun in Taylor's direction. It was not until Taylor told Bulk not to point the gun at him that
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he realized the gun was pointed in Taylor's direction. Bulk claimed that at no point did he
intentionally point the gun at Taylor.

Bulk's testimony was contradicted by Taylor's testimony. Taylor testified that Bulk
pointed the gun and dry fired it at Taylor. Taylor was extremely frightened by Bulk's
actions and angrily told Bulk to stop pointing the gun at him. Rather than move the gun
away, Bulk inserted the clip into the weapon as he continued to point it at Taylor.

Rios also testified that Bulk pointed the gun at Taylor but believed that Bulk's
action was unintentional. Rios described how Taylor was upset that the gun was pointed
at him and how he asked Bulk to move the weapon. Bulk refused, calling Taylor a "'little
bitch,'" then continued to point the gun at Taylor as he inserted the clip back into the
weapon and accidentally shot Taylor.

Based on these testimonies, there was sufficient evidence, viewed in the light most
favorable to the prosecution, for the jury to find that Bulk acted in a way that he knew
would place Taylor in reasonable apprehension of bodily harm. The jury could have
believed Taylor's testimony that Bulk intentionally pointed the gun at him and dry fired it
and determined that Bulk's actions were meant to frighten Taylor. Or, based on Taylor's
and Rios' testimonies, the jury could have concluded that the assault occurred a few
seconds later when, instead of moving the gun away from Taylor after he protested, Bulk
continued to point it in his direction as he inserted the clip—a combination of actions that
the jury could have concluded were calculated to instill fear in Taylor.

The weighing of testimony is a job for the jury, and none of the testimonies
regarding the sequence of events were so unbelievable that the jury's determination
should be disturbed. The jury's findings and Bulk's conviction for aggravated assault are
affirmed.

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Affirmed.