State v. Kemp

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NOT DESIGNATED FOR PUBLICATION

No. 119,069

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TAYANA ANDREA KEMP,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 1, 2019.
Affirmed.

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

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Tayana Andrea Kemp appeals from her convictions at a bench trial
on stipulated facts following her violation of a diversion agreement, claiming the
evidence was insufficient to convict her. Finding no error, we affirm Kemp's convictions.

FACTS

On the evening of February 15, 2016, Topeka police were dispatched to Kemp's
home on a report of a domestic dispute. Upon arriving, Kemp's husband, Patrick,
informed the officers that he and Kemp got into an argument earlier that evening. Kemp
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escalated the argument to violence and burned Patrick on the arm with a hot iron. She
then threw a number of objects at Patrick, most of which missed him, damaging the wall
behind him instead. One of the objects that Kemp threw, a desktop speaker, struck their
14-month-old son in the head when he wandered into the room during the argument.
Finally, Kemp grabbed a kitchen knife and stabbed it into the kitchen wall. This action
prompted Patrick to briefly restrain Kemp before releasing her so that he could go outside
and call the police.

Based on the incident, Kemp was charged with one count of aggravated battery, a
severity level 7 person felony; one count of endangering a child, a class A misdemeanor;
and one count of criminal damage to property, a class B misdemeanor. She applied for
and was granted diversion by the State. Under the terms of the written diversion
agreement, the State promised to defer the prosecution of Kemp's case for 24 months,
provided that Kemp was able to abide by a number of conditions. Among those
provisions were conditions prohibiting Kemp from violating any federal, state, or local
law and also requiring her to pay all fines and legal fees in a timely manner. The
agreement also required Kemp to waive her constitutional rights and to stipulate that the
facts contained in the affidavit as well as in all law enforcement reports were true and
admissible as evidence. Finally, Kemp agreed that if she violated the terms or conditions
of the agreement, it would be revoked and the case would immediately proceed to trial
based solely on the stipulated facts and the police reports. If Kemp was able to abide by
the terms and conditions of the agreement for the entirety of the 24-month deferred
prosecution period, the State agreed to dismiss the offenses charged with prejudice.

Kemp signed the agreement on December 16, 2016, at which time she certified
that she had "not been ticketed or arrested on any other charge between the date [she]
completed the Application for Diversion and today's date, and that if [she had], it shall be
grounds to refuse diversion, or if discovered later, grounds to revoke the Agreement."
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The State did not sign the agreement until January 10, 2017, and it was finally filed with
the district court on January 11, 2017.

On either January 1, 2017, or January 2, 2017, Kemp was involved in another
domestic violence incident with Patrick. Based on that second incident, Kemp was
charged with domestic battery on February 3, 2017. She was subsequently found guilty of
domestic battery on the new charge on October 12, 2017. In addition, Kemp missed a fee
payment under her diversion agreement in August 2017.

Based on Kemp's missed payment the State filed a motion to revoke diversion on
September 13, 2017. The State later amended that motion to include Kemp's October 12,
2017 conviction for domestic battery, first offense. A hearing was held on November 21,
2017, during which the district court granted the State's amended motion to revoke
Kemp's diversion. Pursuant to the agreement, Kemp's case proceeded immediately to trial
on the stipulated facts and police reports. Those facts included the original arrest affidavit
which the State admitted into evidence and also read into the record:

"February 15, [2016], Topeka police officer was dispatched to [address omitted] in
reference to a domestic dispute. Upon arrival, the reporting officer met with Patrick
Kemp, who had a date of birth of March 7th, 1980. He stated that his wife, Tayana Kemp,
who is the defendant in this case, had become violent during an argument, and burned
him on the arm with a hot iron. She also threw several items at him while he was on the
couch, which damaged the wall to an amount less than $1000. While she was throwing
items, her 14-month-old son, [name omitted], walked into the room, and she accidentally
struck him in the head with a desk-top speaker.
"Ms. Kemp then grabbed a kitchen knife and stabbed it into a wall in anger. This
is when Mr. Kemp stated that he had to restrain her. He then let her go and went outside
to call 911. Mr. Kemp and Ms. Kemp were in a domestic relationship. They were
currently married and had a child in common together.
"All of these events happened in Shawnee County, Kansas."
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On the basis of those stipulated facts and the police reports, the district court convicted
Kemp of all three counts and sentenced her to 24 months' probation with an underlying
sentence of 13 months in prison. Kemp now appeals those convictions.

ANALYSIS

Kemp contends that the district court lacked sufficient evidence in the stipulated
facts and police reports included in the diversion agreement to convict her of the three
charges in the criminal complaint.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

It is only in rare cases, where the testimony is so incredible that no reasonable
fact-finder 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). In addition, a
verdict may be supported by circumstantial evidence if such evidence provides a basis for
a reasonable inference by the fact-finder regarding the fact in issue. Circumstantial
evidence, in order to be sufficient, need not exclude every other reasonable conclusion.
State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016). Indeed, even the most serious
offenses can be based entirely on circumstantial evidence. 304 Kan. at 25; but see State v.
Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) ("'[T]he circumstances in question
must themselves be proved and cannot be inferred or presumed from other
circumstances.'").


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Aggravated battery

Kemp first argues that there was insufficient evidence to prove beyond a
reasonable doubt that she was guilty of aggravated battery. To make a prima facie case of
aggravated battery under the complaint filed in the case, the State was required to show
that Kemp: (1) knowingly caused physical contact with another person and (2) the
contact was made "in a rude, insulting or angry manner with a deadly weapon, or in any
manner whereby great bodily harm, disfigurement or death can be inflicted." K.S.A. 2017
Supp. 21-5413(b)(1)(C).

Kemp contends that there was insufficient evidence to prove beyond a reasonable
doubt that she acted knowingly. Specifically, Kemp argues that "we know nothing about
[the] nature or extent of the burn suffered by Patrick Kemp, or the specific circumstances
in which it occurred" and therefore there is "no evidence that points to what [Kemp's]
mental state was at the time of the incident."

"A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such
person's conduct or to 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. 2017 Supp. 21-5202(i). Similarly, a person acts knowingly or with knowledge,
"with respect to a result of such person's conduct when such person is aware that such
person's conduct is reasonably certain to cause the result." K.S.A. 2017 Supp. 21-5202(i).

Under the stipulated facts of this case, it is undisputed that Kemp became "violent
during an argument, and burned [Patrick] on the arm with a hot iron." When being
wielded as a weapon to inflict a burn, an iron requires close, direct, and physical contact
with the person against whom it is being used. As such, an attacker who burns his or her
victim with a hot iron generally does so with knowledge of the nature of his or her
actions and should be reasonably certain of the result that those actions will cause. See
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K.S.A. 2017 Supp. 21-5202(i). Therefore the undisputed fact that Kemp burned her
husband with a hot iron is sufficient circumstantial evidence from which a fact-finder
could reasonably infer that she acted knowingly. See Logsdon, 304 Kan. at 25.

Despite this, Kemp argues that "[t]he stipulated facts are vague, encompassing
multiple scenarios and reasons as to how this burn to Patrick Kemp's arm occurred." She
then speculates that "[t]he burn could have [been] the result of an accident rather than a
knowing act." But, as noted above, a finding based on circumstantial evidence need not
exclude every other reasonable conclusion. See Logsdon, 304 Kan. at 25. Instead, it is
enough that the district court's finding is a reasonable inference based upon the
circumstantial evidence. 304 Kan. at 25. Such is the case here, and we believe there was
sufficient evidence to support the district court's finding that Kemp acted knowingly
when she burned her husband with an iron.

Kemp does not dispute that she caused the hot iron to come into physical contact
with her husband's arm or that he was actually burned because of it. Instead she argues
that "[t]here is no information within the stipulated facts to support a finding [that] the
physical contact in this case was committed in a manner that could have resulted in great
bodily harm, disfigurement or death."

Kansas courts consistently differentiate bodily harm from great bodily harm. State
v. Moore, 271 Kan. 416, 419, 23 P.3d 815 (2001). "The word 'great' distinguishes the
bodily harm necessary [for aggravated battery] from slight, trivial, minor or moderate
harm, and as such it does not include mere bruises, which are likely to be sustained in
simple battery." State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984). "The same is
true with regard to 'disfigurement'" which "has no single technical meaning or single
definition and should be considered in the ordinary sense." Moore, 271 Kan. at 419.
Whether physical contact could have resulted in great bodily harm, disfigurement, or
death is a question of fact. Dubish, 234 Kan. at 715-16.
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As noted above, it is undisputed that Kemp became violent during an argument
and burned Patrick on the arm with a hot iron. That alone is enough for a rational fact-
finder to find beyond a reasonable doubt that Kemp caused physical contact with another
person in a manner whereby great bodily harm, disfigurement, or death could be inflicted.
See Moore, 271 Kan. at 417-18, 421 (burning victim with hot iron constituted great
bodily harm and/or disfigurement). And while Kemp argues that the stipulated facts fail
to explain the extent of the injury, that is not an element that the State is required to
prove. Instead, the State must simply show that the physical contact was done in a
manner whereby great bodily harm, disfigurement, or death could be inflicted. See
K.S.A. 2017 Supp. 21-5413(b)(1)(C). We believe the stipulated facts are sufficient to
make such a showing and therefore affirm Kemp's conviction for aggravated battery as
charged in this case.

Endangering a child

Next, Kemp argues that there was insufficient evidence to prove beyond a
reasonable doubt that she was guilty of endangering a child. To make a prima facie case
of endangering a child, the State must show that Kemp: (1) knowingly and unreasonably
caused or permitted, (2) a child under the age of 18, to (3) be placed in a situation in
which the child's life, body, or health is endangered. See K.S.A. 2017 Supp. 21-5601(a).
Kemp concedes that there was sufficient evidence to show that her son was under the age
of 18. Thus we need only determine if there was sufficient evidence to support the first
and third elements of the crime charged.

Kemp argues that the stipulated facts in this case "fail to prove, or even assert, that
the act in this case was intentionally done."

Before directly addressing the issues, we pause to note that the State's complaint in
this case charged Kemp with one count of endangering a child, in violation of K.S.A.
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2017 Supp. 21-5601(a). Thereafter, the description of the charge in the complaint stated
that "[o]n or about the 15th day of February, 2016 in the State of Kansas and County of
Shawnee, TAYANA A KEMP, did, then and there, unlawfully, intentionally and
unreasonably cause or permit a child under the age of 18 years, to-wit: [name omitted]
(XX/XX/14), to be placed in a situation in which the said child's life, body or health may
be injured or endangered." (Emphasis added.) But the actual language of the statute,
K.S.A. 2017 Supp. 21-5601(a), defines endangering a child as "knowingly and
unreasonably causing or permitting a child under the age of 18 years to be placed in a
situation in which the child's life, body or health may be endangered." (Emphasis added.)
However, because proof of a higher degree of culpability constitutes proof of a lower
degree as well, we will analyze this case under the higher, intentional standard. See
K.S.A. 2017 Supp. 21-5202(c).

"A person acts 'intentionally,' or 'with intent,' with respect to the nature of such
person's conduct or to a result of such person's conduct when it is such person's conscious
objective or desire to engage in the conduct or cause the result." K.S.A. 2017 Supp. 21-
5202(h). Crimes that require a defendant to act intentionally are specific intent crimes
meaning that "the intent to accomplish the precise act or element of the crime which the
law prohibits is necessary." State v. Mountjoy, 257 Kan. 163, Syl. ¶ 8, 891 P.2d 376
(1995); see K.S.A. 2017 Supp. 21-5202(h).

In this case it is undisputed that Kemp threw several items at her husband who was
sitting on the couch. As she was doing so, their 14-month-old son walked into the room
and she accidentally struck him in the head with a desktop speaker. Based on that
circumstantial evidence, a rational fact-finder could reasonably infer that Kemp
intentionally and unreasonably caused her child to be placed in a situation that
endangered his life, body, or health. Despite this, Kemp argues that because the stipulated
facts state that she "accidentally" hit the child with the desktop speaker, they "fail to
prove, or even assert, that the act in this case was intentionally done." But that argument
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misconstrues the elements of endangering a child. The State is not required to show that
Kemp intentionally hit or injured her child. Instead, it must simply show that she
intentionally caused her son to be placed in a situation in which his life, body, or health
could be endangered. See K.S.A. 2017 Supp. 21-5601(a). She did so by intentionally
throwing items across the room, thereby creating the situation that endangered the child.
Kemp's argument is therefore without merit. We find that the stipulated facts are
sufficient to show that Kemp acted intentionally.

Next, Kemp argues that, because there was no evidence or indication that her son
was actually injured, "it cannot be known whether the child was in a situation where he
was in danger of being harmed or of having his health endangered." As noted above, after
establishing that the victim was a child under 18 years of age and that the defendant acted
intentionally/knowingly, the State must lastly show that the child was caused or permitted
"to be placed in a situation in which the child's life, body or health may be endangered."
K.S.A. 2017 Supp. 21-5601(a). "[T]he word 'may' as used in K.S.A. 21-3608(1)(b) [now
codified as K.S.A. 2017 Supp. 21-5601(a)] means something more than a faint or remote
possibility; it means that there is a reasonable probability, a likelihood that harm to the
child will result." State v. Fisher, 230 Kan. 192, 195, 631 P.2d 239 (1981). To determine
if there exists a reasonable probability that harm to the child will result, the fact-finder
must consider three factors: "(1) the gravity of the threatened harm, (2) the legislature's
or regulatory body's independent assessment that the conduct is inherently perilous, and
(3) the likelihood that harm to the child will result or that the child will be placed in
imminent peril." State v. Cummings, 297 Kan. 716, 731, 305 P.3d 556 (2013).

Here it is undisputed that Kemp was engaged in a violent argument with her
husband; as a result of which she was throwing objects, including a desktop speaker,
around the room that her son was permitted to wander into. That volatile situation
presented a serious threat of harm to the child, who was only 14 months old at the time
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and therefore unlikely to be able to either withstand or brush off a blow from one of the
objects.

Further, the Legislature has independently assessed that Kemp's conduct was
inherently perilous by criminalizing it as simple battery. See K.S.A. 2017 Supp. 21-
5413(a) (defining simple battery). And finally, there was a high likelihood that her son
would suffer harm and indeed he did suffer harm when Kemp accidentally struck him in
the head with a desktop speaker. Kemp attempts to refute these facts by arguing that
"there was no indication that the child was actually injured as a result of this incident."
But again, as noted above, the State was not required to prove that the child was actually
injured and instead was simply required to show that the harm was a reasonable
probability. See Fisher, 230 Kan. at 195. In our opinion, the stipulated facts satisfy that
requirement, and therefore we affirm Kemp's conviction for endangering a child.

Criminal damage to property

Finally, Kemp argues that there was insufficient evidence to prove beyond a
reasonable doubt that she was guilty of criminal damage to property. To make a prima
facie case of criminal damage to property, the State must show that Kemp: (1)
knowingly damaged, destroyed, defaced, or substantially impaired the use of (2) any
property in which another has an interest without that person's consent. K.S.A. 21-
5813(a)(1).

In this instance, Kemp repeats her earlier contention that "there is no way to
determine [her] culpable state of mind from the stipulated facts." Specifically, Kemp
"asserts that the stipulated facts are so few, and say so little about the alleged incident,
that they completely fail to prove the required culpable state of mind without the
employment of sheer speculation on the part of the factfinder."
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Again, as we have previously stated, a person acts knowingly or with knowledge
with respect to the nature of such person's conduct or to circumstances surrounding such
person's conduct when such person is aware of the nature of such person's conduct or that
the circumstances exist. Similarly, a person acts knowingly or with knowledge with
respect to a result of such person's conduct when such person is aware that such person's
conduct is reasonably certain to cause the result. K.S.A. 2017 Supp. 21-5202(i).

Under the stipulated facts of this case, Kemp threw several items at her husband
while he was sitting on the couch, most of which missed and damaged the wall behind
him. She also "grabbed a kitchen knife and stabbed it into a wall in anger." Based on that
circumstantial evidence, a fact-finder could reasonably infer that Kemp was aware of
both the nature of her conduct, including throwing items and stabbing a wall, as well as
the result that her conduct was reasonably certain to bring about, such as damage to the
walls of the apartment. As such, we must reject Kemp's argument that the State failed "to
prove the required culpable state of mind" as wholly without merit and we instead find
that there was sufficient evidence to show that Kemp acted knowingly.

As a last complaint about the criminal damage to property charge, Kemp argues
that there "was insufficient evidence contained in the stipulated facts to prove that Patrick
Kemp had the required interest in the property that was allegedly damaged." When a
person's interest in the damaged property is not contested at trial, the State is not required
to establish the nature of the interest in order to satisfy the statutory requirement. State v.
Fisher, 304 Kan. 242, 262, 373 P.3d 781 (2016). Instead, it must merely show that there
was an interest. See State v. Bollinger, 302 Kan. 309, 314, 352 P.3d 1003 (2015). By
contrast, "when 'the interest is contested at trial, it may be incumbent upon the State to
establish the nature' of the interest." Fisher, 304 Kan. at 262.

Here, the stipulated facts and the police report note that on the date of the incident,
Kemp was married to Patrick and the two resided in the same apartment in Topeka.
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Pursuant to the agreement, Kemp was not permitted to contest those facts at trial. Thus
Patrick's interest in the damaged property went uncontested. As such the State was not
required to specify the type of interest that Patrick possessed and instead it was enough
for the State to simply show that Patrick's interest existed. See Fisher, 304 Kan. at 262;
Bollinger, 302 Kan. at 314.

The stipulated facts outlined above satisfy that requirement by providing two
bases for Patrick's interest: (1) that he was married to Kemp and (2) that he was a
resident of the apartment that Kemp damaged. See Fisher, 304 Kan. at 262 (resident of
home has sufficient interest to satisfy statutory requirement); Bollinger, 302 Kan. at 315
(Derived "from the legal rights inherent in a marital relationship," a spouse has "a
sufficient, cognizable legal interest in [the marital home] to satisfy the statutory
requirement."). Further, even if the State was required to specify the type of interest that
Patrick possessed, the stipulated facts outlined above constitute circumstantial evidence
from which a fact-finder could reasonably infer the type of interest that existed.

In conclusion, we reject Kemp's argument that there is insufficient evidence to
prove that Patrick had the required interest in the damaged property. We find that
argument to be inconsistent with both existing caselaw and the specific facts stipulated to
in this case. We find there is sufficient evidence to affirm Kemp's conviction for criminal
damage to property.

Affirmed.