State v. Burton

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NOT DESIGNATED FOR PUBLICATION

No. 114,791

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRENT L. BURTON,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 18,
2016. Affirmed.

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

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., POWELL, J., and STUTZMAN, S.J.

Per Curiam: An amended complaint filed in September 2014 charged Brent
Burton with two counts of child abuse or in the alternative, two counts of aggravated
endangering a child. A jury found Burton guilty of all four counts—the principal and
alternative charges. The district court entered judgment only on the two principal charges
of abuse of a child and sentenced Burton to concurrent sentences of 36 months in prison
for the primary offense and 32 months for the additional offense with 24 months of
postrelease supervision. Burton's category H criminal history placed him in a border box
on the revised Kansas Sentencing Guidelines Act nondrug sentencing grid. K.S.A. 2015
Supp. 21-6804. Although Burton's presumptive disposition was imprisonment, the district
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judge imposed the optional nonprison sentence authorized by K.S.A. 2015 Supp. 21-
6804(q) and granted Burton 36 months of probation supervised by community
corrections.

Burton timely appeals, raising two issues: (1) the State failed to present sufficient
evidence to support convictions for child abuse or in the alternative, aggravated
endangering a child; and (2) there was not substantial evidence supporting all of the
alternative means of committing the crime of aggravated endangering a child, violating
his right to a unanimous jury verdict on those counts. We need not consider the second of
those issues, since the district court only entered judgment on the verdicts for abuse of a
child, making moot any consideration of the verdicts on the alternative charges. On the
one issue to be considered, we find no support for Burton's claims and affirm the
convictions and sentence.

FACTS AND PROCEDURAL BACKGROUND


Five-year-old T.T.B., and his 2-year-old sister, A.R.B., lived with their father,
Brent Burton, in Hutchinson, Kansas. Also living in the home were Burton's girlfriend,
Remay Barban, and her two children. On a Monday in early May 2014, T.T.B.'s
preschool teacher, Lori Johnson, noticed unusual bruising on T.T.B. T.T.B. was wearing
shorts and was sitting when Johnson observed dark bruises on his legs. Johnson said the
bruises were big, not "small bruises like you would see if . . . they were a play bruise of
some kind." Johnson took T.T.B. to see the school nurse and both Johnson and the nurse
examined T.T.B.'s bruises.

Under the usual protocol, Johnson would have called the Department for Children
and Families (DCF) to make a report, but in this case she believed T.T.B. was in danger
and more immediate action was needed. As a mandated reporter, Johnson went to the
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principal's office and explained she believed this was a time when they needed to contact
the police to investigate. Johnson said that in her 13 years of teaching, she had never seen
such severe bruising on a child.

Officer Nic Smith of the Hutchinson Police Department responded to Lincoln
Elementary School to investigate the report involving T.T.B. When he arrived he met
with Johnson and the school nurse. He had T.T.B. raise his shorts so that he could
examine the bruising on his legs. Smith saw bruises going up to the bottom of T.T.B.'s
underwear lining and took photographs of the bruising. He then placed T.T.B. in police
protective custody. Meanwhile, another officer was sent to A.R.B.'s daycare. The officers
decided to place A.R.B. in protective custody based on T.T.B.'s injuries. Smith took
additional photographs of T.T.B. during intake for protective custody. Those photographs
showed bruising on T.T.B.'s bare buttocks.

When Burton went to pick his son up from school he was told that T.T.B. had
been taken into police protective custody. Smith asked him about the bruising. Burton
first said he did not know anything about it, but then said T.T.B. got in trouble over the
weekend and he was spanked four or five times. Burton referred to the spanks as "good
whacks."

Detective Paul Sack of the Juvenile Detective Bureau in the Hutchinson Police
Department was assigned to the case. He reviewed the photographs Smith took of T.T.B.
He also went to Children's Emergency Shelter Home, examined A.R.B., and took
photographs of her injuries, which Sack said showed bruising on A.R.B.'s buttocks and
lower back.

Sack interviewed Burton about the injuries. Burton said his girlfriend, Barban, was
at work and he was at home with both his and her children. Barban's children went down
the street to play with friends. Burton said that between 11 a.m. and noon he had fallen
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asleep on the couch and when he woke up, he discovered T.T.B. and A.R.B. were no
longer in the house. When he could not find the children in the residence he went outside
and down the block. He found T.T.B. and A.R.B. at a park near their home. Burton said
he took the children home, asked them what they did wrong, spanked them, and sent
them to their rooms until dinnertime. Burton said he bent them over his knee and used his
bare hand to spank their buttocks area.

Sack quoted Burton in his report. Burton told him, "I admit I probably added to the
bruising"; "I put [T.T.B.] over my knee and gave him a few good swats"; and "I might
have tagged him on the left side." When explaining what he meant by adding to the
bruising, Burton said T.T.B. had fallen onto a tree stump at the end of April, and had
fallen coming out of a restroom facility at the beginning of May. In the opinion of Sack,
who was trained in the investigation of child abuse and domestic violence cases, T.T.B.'s
injuries were not consistent with the accidents Burton described. Sack said the injuries on
the children would cause him enough concern to investigate the situation and consider
reporting. He observed "bruising on different areas," he said there "appear[ed] to be the
after[]effects of a severe sunburn possibly, and then maybe some small contusions." He
also observed "a mark on the upper lip which appeared to be scabbed over and another
spot on the body which appeared to be scabbed over."

Sack and the DCF social worker also interviewed Barban. Barban said she was at
work when the injuries occurred. When she came home, Burton told her he spanked the
children because they left the residence without permission. Barban told Sack the
children had received spankings in the past, generally done with a hand. She also said,
however, that the children had been spanked with a belt in the past. Barban told Sack that
it had been a few months since the belt was used on the children and that it was used as a
last resort when other disciplinary practices were unsuccessful. Barban said T.T.B.
normally received "about four or five swats on the buttock" and A.R.B. received "one or
two swats." Sack described both Burton and Barban as cooperative.
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Burton's case went before a jury in August 2015. The State presented evidence
from T.T.B.'s preschool teacher, Lori Johnson, Officer Smith, and Detective Sack. The
evidence included photos taken by police of the bruising on T.T.B.'s forearm, buttocks,
and mid-thighs, and the bruising on A.R.B.'s buttocks.

The State also called Barban to testify. She said she and Burton had married in
July 2014. Consistent with what she had told Sack, she testified that when she came
home from work the day of the incident, Burton told her he spanked the kids for leaving
the house. Prior to the incident, Barban did not remember seeing any bruises on the
children, including when she had bathed them. She also said T.T.B. bathed on his own.
Barban further stated that she dressed A.R.B. that morning, and T.T.B. dressed himself.
She said she was unaware of any of T.T.B.'s falls that Burton had mentioned. Barban said
she believed in spanking as a form of discipline, that the spankings generally were done
with a hand, and that she had not caused any of the bruises.

Burton chose not to present evidence.

ANALYSIS


As his single issue for our consideration, Burton claims the State failed to present
sufficient evidence to support the jury's convictions. Although he frames that issue as a
challenge to the sufficiency of the evidence to support his convictions, his argument does
not focus directly on how the evidence the State presented lined up against the elements it
needed to prove. Instead, Burton argues the State was obligated to prove his actions were
both "cruel" and "inhuman" within dictionary definitions that he suggested. We will
review the claims he argues in his brief, as well as the claim he presents in his statement
of the issue.

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The State charged Burton with two counts of abuse of a child, one each for T.T.B.
and A.R.B., alleging that he "feloniously and knowingly inflict[ed] cruel and inhuman
corporal punishment upon . . . a child under 18 years of age." Based on the conjunctive
"and" in the statute and in the instruction given to the jury on these charges, Burton
argues, without supporting authority, that the State was obliged to prove beyond a
reasonable doubt that his actions were both cruel and inhuman. As those terms are not
defined statutorily, Burton supplies dictionary definitions to be used to fill that gap as
benchmarks to measure the State's evidence, presumably for sufficiency.

In State v. De La Torre, 300 Kan. 591, 331 P.3d 815, cert. denied, 135 S. Ct. 728
(2014), the defendant was convicted of felony murder based on the abuse of a child. In
that case, the defendant argued the State presented insufficient evidence to support the
charge that he inflicted "cruel and inhuman corporal punishment." The thrust of his
argument was that the evidence did not show he had a specific intent to punish the child.
The phrase "cruel and inhuman corporal punishment," contained in K.S.A. 21-3609,
which was the version of the statute applicable to De La Torre's case, remains intact in
the successor version of the statute, specifically at K.S.A. 2015 Supp. 21-5602(a)(3),
upon which Burton's convictions were based. In De La Torre, both the defendant and the
State argued their issue using an alternative means analysis, which the court found to be
dispositive. 300 Kan. at 602.

Burton does not argue the State failed to show he intended to punish T.T.B. and
A.R.B. In fact, in his statement to police he suggested that recent punishment may have
acted cumulatively with past accidents to cause T.T.B.'s bruises. And Burton does not
contend cruel and inhuman are alternative means, requiring substantial evidence of
each—instead, he maintains they are separate qualities of a defendant's acts, but
conviction requires proof of both beyond a reasonable doubt. These differences
notwithstanding, the alternative means analysis in De La Torre is still instructive for
interpretation of the statute to consider Burton's argument.
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"The meaning of statutory language and the question whether a statute creates an
alternative means crime are both issues of statutory interpretation subject to de novo
review." 300 Kan. at 602. Our Supreme Court has established the manner for identifying
alternative means statutes:

"Under [State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012)], we explained that
the legislature creates an alternative means crime when it defines a crime with two or
more alternative, distinct, mens rea, actus reus, or causation elements. 295 Kan. at 199-
200. Options within a means that do not state additional and distinct ways of committing
the crime but rather describe a material element or a factual circumstance that proves the
crime do not create alternative means. [Citations omitted]." 300 Kan. at 605.

The De La Torre court looked to State v. Ahrens, 296 Kan. 151, 290 P.3d 629
(2012) for an application of the method. In Ahrens, the court held that the legislature did
not intend to create alternative means in the driving under the influence statute when it
used the terms "operate" or "attempt to operate." They explained it this way: "The crime
of driving under the influence requires two primary elements—that is, driving and
simultaneously being under the influence." 296 Kan. at 160.

The court in De La Torre applied Brown and Ahrens to abuse of a child, holding:

"[T]he elements of abuse of a child set out in K.S.A. 21-3609 are (1) abusing; and (2) a
child under 18 years old. And while we acknowledge that the current statute's subsection
structure might cut toward applying an alternative means label at first blush, we
nevertheless view these subsections as merely setting out examples of factual
circumstances that could prove the actus reus. The types of abuse enumerated in the
statute, such as 'cruelly beating' and 'cruel and inhuman corporal punishment,' simply
describe two factual circumstances that could satisfy the abuse element. K.S.A. 21-3609
does not define an alternative means crime." De La Torre, 300 Kan. at 607.

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The current version of the abuse of a child statute, K.S.A. 2015 Supp. 21-5602,
reads:

"(a) Abuse of a child is knowingly:
(1) Torturing or cruelly beating any child under the age of 18 years;
(2) shaking any child under the age of 18 years which results in great bodily
harm to the child; or
(3) inflicting cruel and inhuman corporal punishment upon any child under the
age of 18 years.
"(b) Abuse of a child is a severity level 5, person felony.
"(c) A person who violates the provisions of this section may also be prosecuted
for, convicted of, and punished for any form of battery or homicide."

The statute has not changed in any way that would alter the De La Torre analysis. That
court held that its reasoning "renders impossible De La Torre's interpretation of the
phrase 'cruel and inhuman corporal punishment.'" 300 Kan. at 607. The elements of abuse
of a child remain, simply: abuse, and a child under 18 years old. De La Torre could not
infer a specific intent that the legislature had not clearly intended. In the same way,
Burton cannot create unintended elements of the crime. "Cruel" and "inhuman" are not
separate elements, each to be proven, but are part of one of the factual circumstances that
can prove the actus reus. In the same way that the statute should not be deconstructed into
alternative means, it should not be reconstructed to create elements not intended by the
legislature. Guided by Brown, Ahrens, and De La Torre, we find the legislature intended
"cruel and inhuman" to be a modifier describing a level of corporal punishment that
constitutes abuse.

In his brief, Burton reaches for the dictionary to define the type of behavior that he
asserts should have been required to show he was both cruel and inhuman in his actions.
Another panel of this court has considered a similar argument in an appeal from a
conviction for abuse of a child. In that case, the defendant claimed "the evidence was
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insufficient to find that she intentionally inflicted 'cruel' or 'inhuman' punishment based
on case law and dictionary definitions of those terms." State v. Thompson-Dupes, No.
102,405, 2011 WL 867581, at *4 (Kan. App. 2011) (unpublished opinion). That panel
rejected the attempt to further define the statutory terms:

"More pertinent is the ruling in State v. Fahy, 201 Kan. 366, 370, 440 P.2d 566
(1968), where our Supreme Court rejected a defendant's claim that K.S.A.1967 Supp. 38-
714—a predecessor to K.S.A. 21-3609—was unconstitutionally vague and indefinite.
That statute provided, in pertinent part:
"'"Any person who shall torture, cruelly beat or abuse any child under the age of
sixteen (16) years or who shall willfully inflict upon such child any cruel or inhuman
corporal punishment or injury resulting in a traumatic condition shall be deemed guilty of
a felony. . . ."'Fahy, 201 Kan. at 370.
"Our Supreme Court found 'such words as torture, beat, abuse, cruel punishment
or inhuman punishment are hardly vague.' 201 Kan. at 370. Rather, the court held that
'words like "beat," "abuse," "torture," "cruelty" and "traumatic" provide' reasonable
definite standards which one reading the statute can understand and contemplate. 201
Kan. at 370.
"Thus, in the context of a crime charged such as this, the determination of cruelty
and inhumanity becomes one for the jury. These words are not overbroad and they have
common meanings." 2011 WL 867581, at *5.

We agree that the terms cruel and inhuman provide reasonable and definite standards, and
common meanings that can be understood and contemplated by a jury.

We now move to the sufficiency issue that was nominally presented by Burton,
although without elaboration or support. When the sufficiency of the evidence is
challenged in a criminal case, this court reviews all the evidence in the light most
favorable to the prosecution and must be convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt. In determining whether there is
sufficient evidence to support a conviction, the appellate courts generally will not
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reweigh the evidence or make witness credibility determinations. State v. Daws, 303 Kan.
785, 789, 368 P.3d 1074 (2016).

A verdict may be supported by circumstantial evidence if such evidence provides a
basis from which the factfinder may reasonably infer the existence of the fact in issue.
However, the evidence need not exclude every other reasonable conclusion or inference.
A conviction of even the gravest offense can be based on circumstantial evidence. State v.
Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). Furthermore, to the extent this court must
engage in statutory interpretation, review is unlimited. State v. Eddy, 299 Kan. 29, 32,
321 P.3d 12 (2014).

Burton argues at length that the State's evidence was insufficient to show spanking
with a bare hand was cruel and inhuman and that he knowingly inflicted cruel and
inhuman corporal punishment. The State presented the witnesses noted above with their
testimony about their knowledge of the facts and their observations of the bruising to
T.T.B. and A.R.B. The jury also saw the photographs of the children's bruises. The
district judge instructed on the correct legal standard, including the culpable mental state,
and after weighing the evidence and making witness credibility determinations, the jury
found Burton guilty. Viewing the evidence in the light most favorable to the State, we
find the evidence was sufficient to support a rational factfinder's verdicts of guilty on the
two counts of abuse of a child.

Affirmed.