State v. Leshore

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NOT DESIGNATED FOR PUBLICATION

No. 112,284

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JORDAN LESHORE,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed October 30,
2015. Affirmed.

Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.

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

Before LEBEN, P.J., GREEN, J., and JEFFREY GOERING, District Judge, assigned.

Per Curiam: A jury convicted Jordan Leshore of two counts of aggravated
battery, one count of aggravated assault, and one count of aggravated burglary. On
appeal, Jordan argues that this court must reverse his convictions because the trial court
erred by instructing the jury on the pattern jury instructions for Kansas (PIK) Crim. 4th
52.020. As discussed below, however, Jordan never objected to this instruction before the
trial court. Furthermore, Jordan cannot establish that the trial court committed clear error
by giving the PIK Crim. 4th 52.020 instruction. Accordingly, we affirm Jordan's
convictions.

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On February 18, 2013, Joseph Leshore stole marijuana from Jeffery Payne. Later
that day, Jeffery, Brice Reed, Eric Roberts, and some other people retaliated against
Joseph by attacking Joseph's mother, Maria Guzman. The group went to Maria's house
where they broke her front window, and one person slapped Maria in the face. Following
this incident, Jeffery and Eric went to a house they shared with Alecia Dawson, Michelle
Meyer, and Michelle's four children.

Meanwhile, Maria called her other son, Jordan Leshore, and explained what had
happened. When Jordan received this phone call, he was playing video games with his
friends Brian Kienow and Sean Arevalo. Jordan decided to check on his mother, so he,
Brian, and Sean drove over to Maria's house. At Maria's house, Jordan became very
upset. At some point, Jordan decided to find his brother Joseph. Jordan, Brian, and Sean
got back into the car to find Joseph.

When the group found Joseph, Joseph was driving in a car with his friends Troy
Bell, Desmund Cantu, and John Cantu. After Jordan explained what had happened to
Maria, Joseph got back into the car with his friends and sped off to Jeffery's house.
Jordan, Brian, and Sean followed Joseph's car to Jeffery's house.

Jeffery, Eric, Alecia, and Michelle were watching a movie in the front room of
their house when Joseph, Troy, and Desmund broke down the back door. Joseph had a
knife, and Desmund had a handgun. Joseph, Desmund, and Troy surrounded Jeffery.
Joseph repeatedly stabbed Jeffery. Shortly thereafter, Jordan ran inside the house and hit
Jeffery while Joseph continued stabbing Jeffery. As Jordan was hitting Jeffery, he was
screaming about his mother getting slapped. Additionally, during the fight, Desmund
pointed his gun at Alecia and told her to "shut the F up." As the group left the house,
Joseph swung his knife at Michelle, missing her leg but slicing open her sweatpants.

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In total, Joseph stabbed Jeffery 23 times. Over his 6 week recovery, Jeffery nearly
died multiple times but survived. As a result of his injuries, Jeffery lost a kidney and
some mobility in one leg.

Under the theory of aiding and abetting, the State charged Jordan with the
following: attempted first-degree murder of Jeffery, a severity level 1 person felony in
violation of K.S.A. 2014 Supp. 21-5301(a) and K.S.A. 2014 Supp. 21-5402(a)(1);
aggravated battery of Jeffery, a severity level 4 person felony in violation of K.S.A. 2014
Supp. 21-5413(b)(1)(A); aggravated battery of Michelle, a severity level 4 person felony
in violation of K.S.A. 2014 Supp. 21-5413(b)(1)(C); aggravated assault of Alecia, a
severity level 7 person felony in violation of K.S.A. 2014 Supp. 21-5412(b)(1); and
aggravated burglary, a severity level 5 person felony in violation of K.S.A. 2014 Supp.
21-5807(b).

At Jordan's jury trial, Jeffery, Eric, Alecia, Michelle, as well as Jordan's friend,
Brian, testified on behalf of the State. Both the State and the defense submitted proposed
jury instructions to the trial court. The final jury instructions consisted of a combination
of both the State's proposed instructions and the defense's proposed instructions. One of
the final instructions stated: "If the State has proved that the defendant acted
intentionally, then the State has proved as well the defendant acted knowingly." This
instruction quotes PIK Crim. 4th 52.020, "proof of a higher culpable mental state proves
the lesser." Jordan did not object to the inclusion of this instruction.

The jury ultimately found Jordan not guilty of attempted first-degree murder, but
guilty of the aggravated batteries, the aggravated assault, and the aggravated burglary.
The trial court sentenced Jordan to a controlling sentence of 75 months' imprisonment for
the aggravated battery of Jeffery followed by 36 months' postrelease supervision.
Regarding Jordan's other convictions, the trial court imposed concurrent terms of 12
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months for the aggravated battery of Michelle, 12 months for aggravated assault of
Alecia, and 32 months for the aggravated burglary.

Did the Trial Court Err When It Instructed the Jury That Proof of a Higher Culpable
Mental State Proves a Lesser Culpable Mental State?

Although Jordan did not object to the jury instruction below, on appeal, Jordan
argues that the trial court erred when it instructed the jury on PIK Crim. 4th 52.020,
"proof of a higher culpable mental state proves the lesser." By giving this instruction,
Jordan asserts that the trial court instructed the jury that "if [the jury] found that he acted
intentionally in the aggravated burglary count," then the jury "need not determine
whether [he] acted knowingly when considering the aggravated battery and aggravated
assault" counts. As a result, Jordan asks this court to reverse his convictions.
Nevertheless, the PIK Crim. 4th 52.020 instruction was both legally and factually
appropriate. Accordingly, this court affirms Jordan's convictions.

Standard of Review

Under 2014 Supp. K.S.A. 22-3414(3):

"No party may assign as error the giving or failure to give an instruction . . . unless the
party objects thereto before the jury retires to consider its verdict stating distinctly the
matter to which the party objects and the grounds of the objection unless the instruction
or the failure to give an instruction is clearly erroneous."

Thus, when a defendant raises an instruction issue for the first time on appeal, as Jordan
has done in this appeal, "'the standard of review is whether the instruction is clearly
erroneous.'" State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012) (quoting State v.
Adams, 294 Kan. 171, 183, 273 P.3d 718 [2012]).
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In reviewing whether a jury instruction was clearly erroneous, an appellate court
uses a two-step analysis: (1) the court must determine whether there was any error at all
by "consider[ing] whether the subject instruction was legally and factually appropriate,
employing an unlimited review of the entire record;" and (2) if the court finds error, it
must assess "whether it is firmly convinced that the jury would have reached a different
verdict had the instruction error not occurred." State v. Williams, 295 Kan. at 506, Syl. ¶¶
4, 5. "Reversibility is subject to unlimited review and is based on the entire record." State
v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). Moreover, the party asserting
that the trial court erred in instructing the jury has the burden to prove the degree of
prejudice necessary for reversal. Betancourt, 299 Kan. at 135.

The Jury Instructions

As previously stated, the jury found Jordan guilty of one count of aggravated
burglary, two counts of aggravated battery, and one count of aggravated assault. Under
K.S.A. 2014 Supp. 21-5807(a)(1), a person commits an aggravated burglary by entering a
structure without authority "with intent to commit a felony, theft or sexually motivated
crime therein." (Emphasis added.) An aggravated battery occurs when a person
"knowingly caus[es] great bodily harm to another person or disfigurement of another
person . . . . or knowingly caus[es] physical contact with another person when done 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. 2014 Supp. 21-
5413(b)(1)(A) and (C). (Emphasis added.) Furthermore, a person commits an aggravated
assault by "knowingly placing another person in reasonable apprehension of immediate
bodily harm." K.S.A. 2014 Supp. 21-5412(a). (Emphasis added.) Thus, the culpable
mental state associated with aggravated burglary is "intentionally," and the culpable
mental state associated with aggravated battery and aggravated assault is "knowingly."

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At Jordan's trial, the trial court provided the jury with instructions on the
aggravated burglary charge, the aggravated battery charges under both K.S.A. 2014 Supp.
21-5413(b)(1)(A) and K.S.A. 2014 Supp. 21-5413(b)(1)(C), and the aggravated assault
charge. Each instruction stated the elements of the crime, including the culpable mental
state necessary to complete the crime. For instance, the aggravated burglary instruction
stated: "The state must prove that Jordan Leshore committed the crime intentionally. A
defendant acts intentionally when it is the defendant's desire and conscious objective to
do the act complained about by the state." Both of the aggravated battery instructions and
the aggravated assault instruction stated: "The state must prove that Jordan Leshore
committed the crime knowingly. A defendant acts knowingly when the defendant is
aware of the nature of his conduct the state complains about."

Following those instructions, the trial court instructed the jury that Jordan could be
responsible for the crimes of his codefendants under the theory of aiding and abetting as
stated in PIK Crim. 4th 52.140, "responsibility for crimes of another – intended and not
intended." Next, the trial court instructed the jury on PIK Crim. 4th 52.020, "proof of a
higher culpable mental state proves the lesser." This instruction stated: "If the State has
proved that the defendant acted intentionally, then the State has proved as well the
defendant acted knowingly." After this instruction, the trial court instructed the jury on
PIK Crim. 4th 68.060, "multiple counts," which states in part:

"Each crime charged against Jordan Leshore is a separate and distinct offense. You must
decide each charge separately on the evidence and law applicable to it, uninfluenced by
your decision to any other charge. Jordan Leshore may be convicted or acquitted on any
or all of the offenses charged."

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The PIK Crim. 4th 52.020 Instruction Was Both Legally and Factually Appropriate

On appeal, Jordan takes issue with the placement of the PIK Crim. 4th 52.020
instruction after the instructions detailing the elements of both of the aggravated battery
charges, the aggravated assault charge, and the aggravated burglary charge. Jordan
contends that the placement would have confused the jury, making the jury believe that
the PIK Crim. 4th instruction "generally applied to the jury's deliberation." Jordan further
contends that by placing the instruction where it did, the trial court told the jury that if the
jury found that Jordan intentionally committed an aggravated burglary, then, "as a matter
of law, [the knowingly] element of aggravated battery and aggravated assault had been
established by the evidence." Jordan argues that the trial court "directed a verdict on an
essential element," comparing the facts of his case to our Supreme Court's decision in
State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003).

Nevertheless, as discussed below, Jordan's argument regarding the placement of
the PIK Crim. 4th 52.020 jury instruction is incorrect. Jordan's comparison of his case to
Brice is flawed. Moreover, the PIK Crim. 4th 52.020 jury instruction was both legally
and factually appropriate.

First, Jordan's argument that the trial court's placement of the PIK Crim. 4th
52.020 instruction was confusing is baseless. As stated earlier, the trial court provided the
jury with instructions detailing the elements of each of Jordan's charges. Each of those
instructions included the definition of the culpable mental state associated with the
charge. Then, the trial court instructed the jury on aiding and abetting as stated in PIK
Crim. 4th 52.140. Following this instruction, the trial court instructed the jury on PIK
Crim. 4th 52.020, "proof of a higher culpable mental state proves the lesser." Neither the
placement of the PIK Crim. 4th 52.020 instruction nor the language of the PIK Crim. 4th
52.020 instruction suggests that the jury was required to find Jordan guilty of the
aggravated battery charges and the aggravated assault charge if it found Jordan guilty of
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the aggravated burglary charge. The PIK Crim. 4th 52.020 instruction simply states that if
the State proved that Jordan acted intentionally, then the State also proved that Jordan
acted knowingly. Furthermore, the PIK Crim. 4th 68.060 "multiple counts" instruction
immediately following the PIK Crim. 4th 52.020 instruction clearly states that the jury
must "decide each charge separately on the evidence and law applicable to it,
uninfluenced by [its] decision as to any other charge." Thus, if there was any confusion,
the PIK Crim. 4th 68.060 instruction resolved this confusion by instructing the jury that it
had to decide each charge separately without considering whether Jordan was innocent or
guilty of any other charges. As a result, Jordan's argument that the placement of the PIK
Crim. 4th 52.020 instruction somehow confused the jury is unpersuasive.

Additionally, Jordan's comparison of his case to our Supreme Court's decision in
Brice, 276 Kan. 758, is flawed. In Brice, the State charged Brice with aggravated battery.
276 Kan. at 759-60. Brice had shot a man; the bullet had entered the man's upper right
thigh and had exited through the man's right buttock. Brice, 276 Kan. at 759-760. At
Brice's jury trial, the trial court instructed the jury that to establish Brice was guilty of
aggravated battery the jury must find that he intentionally caused great bodily harm to the
victim. Brice, 276 Kan. at 762. The trial court also instructed the jury that the term "great
bodily harm" means "a through and through bullet wound." Brice, 276 Kan. at 762. The
jury found Brice guilty of the aggravated battery. On appeal, our Supreme Court reversed
Brice's conviction, holding that the trial court directed a verdict on an essential element of
the aggravated battery charge by instructing the jury that a through and through bullet
wound constituted great bodily harm. Brice, 276 Kan. at 771, 775.

In this case, however, the trial court did not direct a verdict on an essential element
of Jordan's charges. The trial court did not instruct the jury that if it found Jordan guilty
of the aggravated burglary, then it must find Jordan guilty of the aggravated batteries and
the aggravated assault. Instead, the trial court instructed the jury that if the State proved
that Jordan acted intentionally, then the State had also proved that Jordan acted
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knowingly. In the context of the jury instructions as a whole, the PIK Crim. 4th 52.020
instruction explained to the jury that if the State had proved that Jordan intentionally
committed the aggravated batteries or the aggravated assault, then the jury could find
Jordan guilty because the State had also proved that Jordan knowingly committed the
aggravated batteries and the aggravated assault. Consequently, the instructions at issue in
the Brice case are not comparable to the instructions at issue in Jordan's case.

More importantly, the trial court could not have erred by giving the PIK Crim. 4th
52.020 jury instruction because the instruction was both legally and factually appropriate.
First, the language of the instruction was an accurate statement of the law as the trial
court quoted the exact language provided in PIK Crim. 4th 52.020, which is based on
K.S.A. 2014 Supp. 21-5202(c). Second, the State charged Jordan with two counts of
aggravated battery and one count of aggravated assault. Again, a defendant must
"knowingly" commit an aggravated battery or an aggravated assault. Thus, the PIK Crim.
4th 52.020 instruction was legally appropriate because the culpable mental state
associated with aggravated battery and aggravated assault is "knowingly" and the
instruction explained to the jury that the State could prove a defendant "knowingly"
committed a crime if the State proved that a defendant "intentionally" committed a crime.

Furthermore, the instruction was factually appropriate given the evidence the State
presented at Jordan's trial. The notes on PIK Crim. 4th 52.020 state that the "instruction
should be given if the State has proved a higher culpable mental state than required by a
particular offense." At trial, the State provided ample evidence that Jordan and his co-
defendants not only "knowingly" committed these crimes but "intentionally" committed
these crimes. For instance, Brian testified that, in reference to either Brice or Jeffery,
Jordan said that that he "was going to fuck him up when [he] saw him." Eric testified that
Jordan had called the house before breaking in and said he was coming to kill Jeffery.
Jeffery, Michelle, Alecia, and Eric all testified that after breaking into the house, Joseph
stabbed Jeffery while Jordan hit Jeffery. Alecia testified that Desmond pointed a gun at
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her while telling her to "shut the F up." Moreover, Michelle testified that Joseph
attempted to stab her, slicing open her sweatpants, as he ran out of the house.
Accordingly, the PIK Crim. 4th 52.020 instruction was factually appropriate because it
informed the jury that it could find Jordan guilty of the aggravated batteries and the
aggravated assault based on the State's evidence showing Jordan and the other co-
defendants intentionally committed the aggravated batteries and the aggravated assault.

Thus, the PIK Crim. 4th 52.020 instruction was not clearly erroneous because the
instruction was both legally and factually appropriate. As a result, Jordan has failed to
meet the first step of the two-step analysis in determining whether a challenged
instruction is clearly erroneous.

Consequently, we affirm Jordan's convictions.

Affirmed.