State v. Gleason

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NOT DESIGNATED FOR PUBLICATION

No. 111,311

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASON M. GLEASON,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed November 20, 2015.
Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Christina Trochek, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., BRUNS, J., and ROBERT W. FAIRCHILD, District Judge, assigned.

Per Curiam: Jason M. Gleason appeals following his convictions of attempted
first-degree murder, criminal possession of a firearm by a convicted felon, two counts of
aggravated battery, and two counts of criminal discharge of a firearm at an occupied
vehicle. Gleason claims: (1) The district court erred when it gave a jury instruction on
the levels of mental culpability that amounted to a directed verdict on some of the
charges; (2) the prosecutor denied him a fair trial by making inappropriate comments
during closing argument; (3) the district court erred when it allowed the State to present
cumulative evidence that bolstered the credibility of one of its witnesses; and (4) the
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district court violated his constitutional rights when it sentenced him to an increased
sentence, based upon his prior criminal history, without requiring the State to include the
criminal history in the charging document and prove it beyond a reasonable doubt to a
jury. Finding no reversible error, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of October 9, 2012, Kansas Highway Patrol (KHP) Master
Trooper Ryan Wolting was on duty in Salina when he heard dispatch broadcast
information about an attempt to locate a green Ford Explorer with Kansas temporary
license plates. Dispatch stated that the vehicle possibly was occupied by a white female
and a black male, one of whom might be armed. Wolting drove west on Interstate 70 to
Interstate 135, which he took south, looking for the vehicle.

At approximately 6:24 p.m., Wolting saw a vehicle matching that description
being driven by a white female who made eye contact with him and then hit her brakes.
Wolting turned around and followed the vehicle. When they exited the Interstate, Wolting
activated his emergency lights and, as he saw the vehicle run a stop sign, he activated his
siren. A high-speed chase ensued and the Explorer eventually drove into a ditch and
stopped. Wolting stopped his car behind the Explorer.

A man, later identified as Gleason, got out of the front passenger side of the
Explorer and began firing a handgun in Wolting's direction. One bullet came through
Wolting's windshield, narrowly missing him, and Wolting got out of his car and returned
fire. Gleason ran southwest toward a wooded area away from the vehicles, and Wolting
fired in that direction, first with his pistol and then with his rifle. The driver of the
Explorer, later identified as Chrystal Bell, Gleason's girlfriend, attempted to get out of the
driver's side of the Explorer, and Wolting told her to stay in her vehicle. As Wolting took
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cover in trees across the road from the vehicles, he realized his face was bleeding and that
the vision in his left eye was blurred.
KHP Lieutenant J.L. Reidel arrived on the scene and the two troopers made
contact with Bell, who had been shot in the back. When Reidel and Wolting checked the
Explorer, they discovered that Bell's three children were in the backseat; her 12-year-old
son, D.B., had been shot in the face. Bell and her children were transported to the
hospital. Later that evening, several K-9 officers deployed their dogs in a nearby field.
One of the dogs located Gleason in a patch of trees, and he was arrested.

At the hospital, Bell had surgery to repair damage from a gunshot wound that had
punctured her small intestine; she also had a fractured rib. D.B. had suffered a through-
and-through gunshot wound to his face. A trauma surgeon stitched the wound, and D.B.
ultimately lost four teeth. He was transferred to the pediatric unit and remained
hospitalized for approximately 1 week. Kansas Bureau of Investigation (KBI) Agent Jeff
Newsum interviewed D.B. while he was at the hospital.

While Bell and her children received treatment, Wolting also went to the hospital,
where medical personnel removed glass from his face and examined his eye. The
following day, Wolting went to his eye doctor and learned that a piece of glass had struck
his left eye, affecting his vision. Prior to the incident, Wolting's vision was 20/20; but
afterward, his vision in his left eye was 20/30 and he needed corrective glasses.

The State charged Gleason with one count of attempted first-degree murder, two
counts of aggravated battery, four counts of attempted second-degree murder, three
counts of criminal discharge of a firearm at an occupied vehicle, two counts of
aggravated kidnapping, and two counts of kidnapping. After several pretrial hearings, the
State amended the charges to consist of one count of attempted first-degree murder, one
count of criminal possession of a firearm by a convicted felon, two counts of aggravated
battery, and two counts of criminal discharge of a firearm at an occupied vehicle.
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The jury trial began on August 19, 2013. The State presented testimony from
Wolting, Reidel, Bell, D.B., Newsum, and other members of law enforcement involved in
apprehending Gleason, processing the scene, interviewing Bell and her children, and
matching bullets to Wolting's guns and a handgun found near the scene. Medical
personnel who had treated Bell, D.B., and Wolting also testified. The State also admitted
into evidence and played for the jury recordings from Wolting's and Reidel's dash
cameras, which recorded the confrontation between Wolting and Gleason and the
aftermath.

Gleason testified on his own behalf. Gleason stipulated that he had been convicted
of a person felony. He admitted that he was with Bell and her children on the day in
question. According to Gleason, a state trooper began to follow them and chased them
until Bell's car hit a bump and "just died." Gleason took his gun and jumped out of the
vehicle. He fired one shot and began running toward the woods; Gleason testified that he
did not look at the trooper before firing, much less aim at anything, and he did not recall
pulling the trigger again after the first shot. He stated that he "never intended for anybody
to get hurt" and did not intend to shoot the police vehicle.

After hearing the evidence and closing argument, the jury found Gleason guilty of
all counts, including attempted first-degree murder, criminal possession of a firearm by a
convicted felon, two counts of aggravated battery, and two counts of criminal discharge
of firearm at an occupied vehicle. On December 13, 2013, the district court sentenced
Gleason to a controlling term of 751 months' imprisonment. Gleason timely appealed the
district court's judgment.

JURY INSTRUCTION ON CULPABLE MENTAL STATE

Gleason first claims the district court erred when it gave a jury instruction on the
levels of mental culpability that amounted to a directed verdict on some of the charges.
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The jury instruction at issue is from PIK Crim. 4th 52.020 and states: "If the State has
proved that the defendant acted intentionally, then the State has proved as well that the
defendant acted knowingly. If the State has proved that the defendant acted intentionally
or knowingly, then the State has proved as well that the defendant acted recklessly."
Gleason contends that this instruction erroneously told the jury that if it found intentional
conduct in the actions supporting the attempted first-degree murder charge, it could
automatically find the requisite intent for all the other charges, including aggravated
battery and criminal discharge of a firearm at an occupied vehicle which were based on
reckless conduct.

The State replies by pointing out that the district court used the recommended PIK
instruction. In addition, the State argues that the district court also gave additional
instructions on the requisite mental state for each crime. Thus, the State contends that the
challenged instruction could not have misled the jury.

"In reviewing a claimed instructional error, an appellate court conducts a four-
step analysis. Those steps, with the accompanying standards of review, are:
"(1) First, the appellate court should consider the reviewability of the issue from
both jurisdiction and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).' [Citation omitted.]" State v. Andrew, 301 Kan. 36, 40,
340 P.3d 476 (2014).

Under the first step of the analysis, Gleason properly objected to giving this jury
instruction, articulating specific reasons for his objection that are the same as the grounds
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for his appellate argument. By doing so, he preserved the issue for appellate review. See
K.S.A. 2014 Supp. 22-3414(3).

Gleason argues that the challenged instruction was not legally appropriate. The
State charged Gleason with attempted intentional, premeditated first-degree murder. See
K.S.A. 2014 Supp. 21-5402(a)(1). The State also charged Gleason with aggravated
battery involving "recklessly causing great bodily harm to another person or
disfigurement of a person" and criminal discharge of a firearm at an occupied vehicle,
which requires the "reckless and unauthorized discharge of any firearm." See K.S.A.
2014 Supp. 21-5413(b)(2)(A); K.S.A. 2014 Supp. 21-6308(a)(1)(B). Gleason asserts that
the instruction at issue—which informed the jury that if the State proved that he acted
intentionally, it proved he acted recklessly—instructed the jury that if the State had
proved any intentional conduct, the State also had proved, as a matter of law, the reckless
intent required for aggravated battery and criminal discharge of a firearm at an occupied
vehicle. In doing so, Gleason contends the district court improperly invaded the jury's
province as factfinder and violated his rights under the Fifth and Sixth Amendments to
the United States Constitution to have a jury determine his guilt or innocence.

Gleason likens the challenged instruction here to an instruction erroneously given
in State v. Brice, 276 Kan. 758, 762, 80 P.3d 1113 (2003). In Brice, the defendant was
charged with aggravated battery, which required the State to show that he intentionally
caused great bodily harm. The physician who treated the victim testified that the injury
suffered—a gunshot wound—was "'a through and through injury.'" 276 Kan. at 760. The
challenged instruction there read: "'As used in these instructions, the term Great Bodily
Harm means, a "through and through bullet wound."'" 276 Kan. at 762. Our Supreme
Court held that the district court erred by giving the instruction because it amounted to
instructing the jury that certain testimony had established an element of the crime as a
matter of law. 276 Kan. at 771-73.

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The jury instruction here is distinguishable from the one in Brice. The jury
instruction in Brice explicitly informed the jury that certain testimony had established an
element of the crime. The jury instruction given here did not do so. As the State points
out, the jury instruction given here was legally appropriate. The authority for the
instruction is found at K.S.A. 2014 Supp. 21-5202(c), which states as follows:

"Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged. If recklessness suffices to establish an element, that element also is
established if a person acts knowingly or intentionally. If acting knowingly suffices to
establish an element, that element also is established if a person acts intentionally."

The challenged jury instruction explains the concept codified in K.S.A. 2014
Supp. 21-5202(c). Moreover, the jury instruction is recommended at PIK Crim. 4th
52.020. Our Supreme Court recently reiterated: "We strongly recommend the use of PIK
instructions, which knowledgeable committees develop to bring accuracy, clarity, and
uniformity to instructions. [Citation omitted.]" State v. Barber, 302 Kan. ___, 353 P.3d
1108, 1118 (2015).

Also, as the State notes, the district court instructed the jury, through the elements
instructions, of the individual level of intent required for each crime for which Gleason
was charged. The district court also gave the jury the following separate instruction:

"The State must prove that the defendant committed the crime of Attempt to
Commit Murder in the First Degree intentionally.
"A defendant acts intentionally when it is the defendant's desire or conscious
objective to do the act complained about by the State.
"The State must prove that the defendant committed the crime or Possession of a
Firearm by a Convicted Felon knowingly.
"A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the State complains about.
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"The State must prove that the defendant committed the crimes of Aggravated
Battery and Criminal Discharge of a Firearm recklessly.
"A defendant acts recklessly when the defendant consciously disregards a
substantial and unjustifiable risk that certain circumstances exist.
"This act by the defendant disregarding the risk must be a gross deviation from
the standard of care a reasonable person would use in the same situation."

This language clearly instructed the jury of the level of mental culpability the State
had to prove for each individual charge. In yet another instruction, the district court
informed the jury that "[e]ach crime charged against the defendant is a separate and
distinct offense. You must decide each charge separately on the evidence and law
applicable to it, uninfluenced by your decision as to any other charge."

"An appellate court examines jury instructions as a whole, without focusing on
any single instruction, in order to determine whether they properly and fairly state the
applicable law or whether it is reasonable to conclude that they could have misled the
jury." State v. Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 (2009), rev. denied
290 Kan. 1104 (2010); see State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014). The
jury instructions given here were legally appropriate, and Gleason does not argue there
was insufficient evidence to support the instructions. We conclude that the jury
instructions as a whole properly and fairly stated the applicable law and could not have
misled the jury. Thus, we reject Gleason's claim that he is entitled to a new trial based on
erroneous jury instructions.

PROSECUTORIAL MISCONDUCT

Next, Gleason claims the prosecutor denied him a fair trial by making
inappropriate comments during closing argument. Specifically, Gleason argues that the
prosecutor committed reversible error by referring to his testimony and theory of defense
as "ludicrous" during closing argument. The State replies that the challenged comments
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were within the wide latitude afforded prosecutors and were not misconduct. In the
alternative, the State contends that even if the comments did constitute misconduct, they
do not warrant reversal.

An appellate court utilizes a two-step process to review allegations of
prosecutorial misconduct:

"'First, an appellate court determines whether there was misconduct, i.e., whether
the prosecutor's comments were outside the wide latitude allowed in discussing the
evidence. Second, if misconduct is found, the appellate court determines whether those
comments compel reversal, i.e., whether the statements prejudiced the jury against the
defendant and denied the defendant a fair trial.' [Citation omitted.]" State v. Knox, 301
Kan. 671, 682, 347 P.3d 656 (2015).

Gleason highlights two comments from the State's closing argument. First, the
prosecutor said, "The defendant didn't unintentionally fire his gun or unconsciously fire
his gun. State submits that that is ludicrous and simply not supported by any of the
evidence or testimony that you have received in this case." Later, in the rebuttal portion
of the State's closing argument, the prosecutor also said:

"And the defense wants you to believe that somehow the evidence showed that
the defendant unconsciously fired these shots eight times. Eight times unconsciously fired
these shots; unintentionally, unconsciously, but pulled the trigger eight times. That is
ludicrous and it is not supported by one bit of evidence that has been submitted; not one
bit of credible evidence that has been submitted to you." (Emphasis added.)

As Gleason correctly points out, our Supreme Court has held that it is improper for
a prosecutor to characterize a defendant's version of events as "ludicrous." See State v.
Douglas, 274 Kan. 96, 108, 49 P.3d 446 (2002) (prosecutor's comment that defendant's
"'story is ridiculous and absurd and ludicrous'" was improper); State v. Hernandez, No.
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94,873, 2007 WL 316787, at *13 (Kan. 2007) (unpublished opinion) (prosecutor's
statement that defendant's testimony was "'ludicrous'" was improper).

Here, the prosecutor immediately followed her characterization of the defense as
ludicrous by arguing that the evidence did not support Gleason's version of the events.
But faced with a similar situation in Hernandez, our Supreme Court concluded: "Here,
the prosecutor immediately followed that statement [the defendant's claim is ludicrous]
by noting that Hernandez' version of the events was not supported by the record.
However, this statement does nothing to correct the previous assertion that Hernandez'
claim was ludicrous." 2007 WL 316787, at *13. Thus, our Supreme Court's precedent
establishes that the prosecutor calling Gleason's defense ludicrous meets the first prong of
the test for prosecutorial misconduct.

In the second step of the two-step analysis of prosecutorial misconduct, the
appellate court considers three factors:

"'"(1) [W]hether the misconduct was gross and flagrant; (2) whether it was motivated by
prosecutorial ill will; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors."' [Citations omitted.] No single factor is controlling, but the third factor can
override the first two factors only if '"the party benefitting from the error proves beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict."' [Citations omitted.]" Knox, 301 Kan. at 684-85.

Our Supreme Court previously has found gross and flagrant misconduct where a
prosecutor's conduct is of a type that has been previously and clearly prohibited. See, e.g.,
State v. Swint, 302 Kan. ___, 352 P.3d 1014, 1026-27 (2015) (finding gross and flagrant
misconduct where "the prosecutor violated a longstanding rule against appealing to juror
sympathies"); State v. Holt, 300 Kan. 985, 1000, 336 P.3d 312 (2014) (finding gross and
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flagrant misconduct where the prosecutor's conduct violated established caselaw); State v.
Crawford, 300 Kan. 740, 755, 334 P.3d 311 (2014) (finding gross and flagrant
misconduct where the prosecutor ignored consistent warnings in Kansas precedent).
Here, we only have one published case and one unpublished case from the Kansas
Supreme Court holding that it is improper for a prosecutor to characterize a defendant's
version of events as "ludicrous." But because this conduct has been disapproved since at
least 2002 in Douglas, this factor weighs in favor of finding that the prosecutor's
statement herein was gross and flagrant misconduct.

Next, "[i]n analyzing ill will, this court considers whether the comments were
'deliberate or in apparent indifference to a court's ruling.' [Citation omitted.]" Barber, 302
Kan. at ___, (353 P.3d at 1119). Here, we find there is no evidence of ill will on the
prosecutor's part. The prosecutor did not emphasize her belief that Gleason's defense was
ludicrous, and she attempted to link her commentary to a lack of evidence supporting the
defense. Because Gleason never objected to the prosecutor's comments, it cannot be said
that the prosecutor repeated the comment after being warned by the court not to do so.
While the defendant's failure to object does not preclude appellate review of prosecutorial
misconduct claims, it can factor into this courts' analysis of whether the comments were
made out of ill will. See State v. Miller, 284 Kan. 682, 720, 163 P.3d 267 (2007).

Lastly, this court must consider whether the evidence was of such a direct and
overwhelming nature that the misconduct "would likely have had little weight in the
minds of the jurors." Knox, 301 Kan. at 685. Gleason's defense was that he did not have
the requisite mental culpability to commit the crimes. As the State points out, Bell
testified at trial that Gleason took out a gun during the car chase. The recording from
Wolting's dash camera showed Gleason shooting as soon as he got out of the Explorer.
Wolting also testified that Gleason "immediately jumped out and started firing a handgun
in [Wolting's] direction." D.B. testified that he saw Gleason fire a gun.

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Ultimately, the question we must decide is whether any improper comments made
by the prosecutor prejudiced the jury against Gleason and denied him a fair trial. Upon
reviewing the entire record, we find there is no reasonable possibility that any misconduct
during closing argument affected the verdict in this case. The prosecutor's improper
comments were couched within an extensive discussion of the evidence presented at trial.
In light of the evidence as a whole, Gleason's theory of defense, and the somewhat
isolated nature of the prosecutor's improper comments, we find that the State has satisfied
its burden of establishing beyond a reasonable doubt that the prosecutor's improper
statements did not contribute to the verdict. Thus, we conclude that Gleason was not
denied a fair trial based on prosecutorial misconduct during closing argument.

IMPROPER BOLSTERING OF THE STATE'S WITNESS

Next, Gleason argues that the district court erred by allowing the State to present
the testimony of KBI Agent Jeff Newsum regarding his interview with D.B. Gleason
contends that Newsum's testimony was cumulative and presented solely to bolster D.B.'s
unchallenged testimony. In response, the State argues that the district court did not err in
allowing Newsum to clarify D.B.'s testimony. In the alternative, the State argues that any
erroneous admission of Newsum's testimony was harmless error.

D.B. testified at trial to the events of October 9, 2012, and his resulting injury. The
defense did not ask D.B. any questions. Later, as a witness for the State, Newsum
testified that he talked with D.B. at the hospital. The district court allowed Newsum to
testify about portions of his interview with D.B. over Gleason's objection.

Gleason argues on appeal that the district court erred by permitting Newsum to
corroborate D.B.'s prior testimony which was not subject to any cross-examination. As
Gleason correctly points out, our Supreme Court has long held that "[t]he general rule is
that prior statements of a witness, consistent with his testimony at the trial, are not
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admissible in corroboration of his testimony unless the witness has been impeached and
then only for the purpose of rehabilitating him." State v. Fouts, 169 Kan. 686, 696, 221
P.2d 841 (1950). More recently, our Supreme Court again stated: "In general, previous
statements by a witness, even in the same case, may not be used to bolster the credibility
of that witness." State v. McReynolds, 288 Kan. 318, 328, 202 P.3d 658 (2009).

"The admission of prior consistent statement testimony is generally reviewed for
an abuse of discretion. [Citation omitted.]" State v. Gaona, 293 Kan. 930, 956, 270 P.3d
1165 (2012). "A district court abuses its discretion when the action is (1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.
[Citations omitted.]'" State v. Soto, 301 Kan. 969, 977, 349 P.3d 1256 (2015).

A review of Newsum's testimony reveals that some of the agent's testimony either
was not covered when D.B. testified or was inconsistent with D.B.'s testimony. For
instance, the prosecutor questioned Newsum about D.B.'s statements about hearing
comments about a gun, and the prosecutor had not posed any such question to D.B. Also,
when the prosecutor asked D.B. whether he had seen Gleason with a bag, he said no; but
when the prosecutor asked Newsum a similar question, Newsum testified that D.B. said
he had seen Gleason with a backpack. These exchanges do not support Gleason's claim
that Newsum's testimony was cumulative and offered only to bolster D.B.'s credibility.

However, some of Newsum's testimony was consistent with D.B.'s trial testimony
and was offered only to bolster D.B.'s testimony even though he was not impeached.
Based on our Supreme Court's precedent, the district court erred in allowing this
testimony. See McReynolds, 288 Kan. at 328; Fouts, 169 Kan. at 696. But the erroneous
admission of evidence does not necessarily compel reversal; this court must determine
whether the error was harmless. See K.S.A. 2014 Supp. 60-261; State v. Greene, 299
Kan. 1087, 1095, 329 P.3d 450 (2014). The harmless-error standard of K.S.A. 2014
Supp. 60-261 "requires us to determine whether there is a reasonable probability that the
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error affected the outcome of the trial in light of the entire record. [Citation omitted.]"
299 Kan. at 1095. As the party benefitting from the error, the State bears the burden of
establishing that the erroneous admission of Newsum's testimony was harmless. See 299
Kan. at 1096.
As the State notes, the evidence against Gleason was very strong. In addition, even
if Newsum's testimony improperly bolstered D.B.'s credibility, it is unclear how the
bolstering undermined Gleason's defense. The State's case against Gleason did not hinge
on D.B.'s credibility. Other evidence supported the State's theory, including Bell's
testimony that Gleason had a gun out during the car chase, Wolting's testimony that
Gleason jumped out of the Explorer and immediately began shooting at him, and the
video from Wolting's dash camera that corroborated Wolting's version of the events.

In light of the record as a whole, the State has met its burden to show that there is
no reasonable probability that the error affected the outcome of the trial. Although the
district court erred in admitting some of Newsum's testimony, the error was harmless and
does not compel reversal of Gleason's convictions.

SENTENCING ISSUE

Finally, Gleason argues that the district court violated his rights under the Sixth
and Fourteenth Amendments to the United States Constitution when it sentenced him to
an increased sentence, based on his prior criminal history, without requiring the State to
include the criminal history in the charging document and prove it beyond a reasonable
doubt to a jury. Gleason contends that his sentence violated the precepts set forth in
Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
But Gleason concedes that our Supreme Court previously has rejected his argument. See
State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court is duty bound to follow
Kansas Supreme Court precedent absent some indication that the court is departing from
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its earlier position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). There is
no such indication here. Thus, we reject Gleason's claimed sentencing error.

Affirmed.