State v. McDonald

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NOT DESIGNATED FOR PUBLICATION

No. 114,957


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RUFUS JERMAINE MCDONALD III,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed June 23, 2017.
Affirmed.

Catherine A. Zigtema, of Zigtema Law Office LC, of Shawnee, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and HEBERT, S.J.

Per Curiam: The waiver of the right to a jury trial is unique to the defendant. An
accused may waive that right in open court if the judge has informed the defendant of the
right and the court and the State consent to the waiver. That is what happened here.
Therefore, we reject Rufus Jermaine McDonald III's argument that the court was required
at the time of his waiver to tell him that a jury would consist of 12 persons who would
have to reach a unanimous verdict and that the burden of proof was on the State to prove
him guilty beyond a reasonable doubt. We also hold that the injuries sustained by the
victim in this case, who was hit, held at knifepoint, choked several times, and forcibly
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dragged around a public park, were not trivial. Thus, there is sufficient evidence in the
record of bodily harm to affirm McDonald's conviction for aggravated kidnapping.

After taking a walk in a public park in Shawnee, Kansas, with a friend in July
2009, J.P. went to her car, got a book, and continued walking around the park. When she
began walking again, she noticed a man bent over as if he was tying his shoe. Shortly
after J.P. passed an older woman on the path, she felt someone hit her from behind. When
she was hit J.P. dropped the book she was reading. J.P. stated that the man that was tying
his shoe was her attacker. During a later police interview, McDonald identified himself as
the attacker.

At the beginning of the attack, McDonald wrapped his right arm around J.P.'s neck
and told her, "I have a knife. Don't scream." J.P. asked McDonald if she could pick up her
book, to which he responded no, and tightened his grip around her neck. McDonald asked
if a specific car belonged to J.P. She did not initially answer the question and McDonald
tightened his grip further. McDonald asked the question again and J.P. stated the car
belonged to her. McDonald asked how much money J.P. had and she responded that he
could have her 10 dollars she had with her.

At some point during the attack, J.P. said, "I have asthma. I can't breathe," in an
attempt to get McDonald to loosen his grip. J.P. does not have asthma but was having
difficulty breathing because of the choking. McDonald physically forced J.P. a short
distance from where he originally grabbed her. When the two reached a different path,
McDonald quit walking and began pulling at the back of J.P.'s pants. J.P. struggled with
McDonald and he tightened his hold around her neck even more. After this brief struggle,
McDonald looked down the back of J.P.'s pants and said, "Let's see what you got."
McDonald then made a noise that J.P. perceived as sexual and disgusting. McDonald told
J.P. that they were going to stop at this location.

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At this point, J.P. believed McDonald was going to rape her. J.P. told McDonald
people would be able to see him where they stopped, so McDonald began forcing her to a
nearby bathroom. While McDonald was taking J.P. toward the bathroom, McDonald still
had his arm around her neck and the knife out. J.P. told McDonald, "I am six weeks
pregnant. You can't rape me," and McDonald responded, "Oh, shit." When McDonald
and J.P. reached the door of the bathroom, J.P. started screaming and flailing. Through
this struggle, J.P. freed herself from McDonald's grasp.

Due to the attack, J.P. had scratches and red marks on her neck, shoulders, chin,
and upper chest area. J.P. stated that her back and shoulders were sore for a couple days
after the attack. J.P.'s neck was sore for 3 days and she had trouble turning her head
during this time. At some point during the struggle, McDonald cut himself with his knife
and bled on J.P. McDonald did not cut J.P. with the knife; she testified that she did not
have any other physical injuries than those just described.

Fortunately, a man driving by the park noticed the struggle going on near the
bathroom. When he saw the struggle, he drove into the park to the bathroom area. When
the man pulled up, McDonald released J.P. and then ran back toward a parked car. The
passer-by let J.P. get into his vehicle and they followed McDonald to the parking lot, took
down his license plate number, and called the police.

Later, the police arrested McDonald. After being given Miranda warnings,
McDonald waived his rights and talked with the police. He told the police that while he
was at the park he observed J.P. reading a book. McDonald admitted grabbing J.P.
around the neck and pulling out his knife when she struggled with him. McDonald stated
that his motive was to get "easy money."

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The State charged McDonald with aggravated kidnapping, attempted rape, and
attempted aggravated robbery. McDonald waived his right to a jury trial at a pretrial
conference. The record reveals that the judge told McDonald he had a right to a jury trial:

"MR. BILLAM: Judge, I have spoken with my client. What we are going to do is
waive our trial to the jury and try this case to the Court on Monday.
"THE COURT: Mr. McDonald, you do have a right to have your case heard and
decided by a jury of your peers. If you waive that right, it is going to be heard by a judge.
Sounds like it is going to be me on Monday. But at any rate, once you waive your right to
a jury. That is not something you can reclaim later. Is that what you want to do here?
"THE DEFENDANT: Yes.
"THE COURT: All right. I will accept this waiver as knowing and voluntary. Is
that State on board with that?
"MR. COVINGTON: Judge, we accept the waiver.
"THE COURT: All right."

After the waiver, the parties submitted their cases to the judge. After the State
rested, McDonald moved for a judgment of acquittal on the aggravated kidnapping and
attempted rape charge, arguing there was insufficient evidence of bodily harm. In his
view, J.P. only had minor injuries associated with the abduction, which were insufficient
to prove bodily harm as required by the law. McDonald also argued that since there was
no attempted penetration, there was no evidence of an attempted rape.

The district court denied the motion and convicted McDonald of aggravated
kidnapping, attempted aggravated robbery, and sexual battery (for a crime committed the
day before with a different victim). Concerning the element of bodily harm, the district
court found McDonald had retightened his chokehold several times throughout the
incident and J.P.'s injuries were not simply trivial and insignificant injuries that were the
result of her abduction.

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The court sentenced McDonald to a total prison sentence of 187 months.

McDonald's waiver of his jury trial was proper.

Felony defendants may waive their right to a jury trial with the consent of the
State and the court. K.S.A. 22-3403. The ruling in State v. Irving, 216 Kan. 588, 589-90,
533 P.2d 1225 (1975), established the two-step test a reviewing court should use to
determine the validity of a waiver of the right to a jury trial. For a waiver to be valid, the
defendant must first be advised by the court of his or her right to a jury trial, and then he
or she must personally waive the right in writing or in open court for the record. A waiver
cannot be presumed from a silent record.

In determining whether a waiver is voluntary, this court must analyze all of the
facts and circumstances surrounding the waiver. State v. Clemons, 273 Kan. 328, 340, 45
P.3d 384 (2002). Courts must strictly construe a waiver in favor of the defendant being
allowed to exercise his or her right to a jury trial. State v. Rizo, 304 Kan. 974, 979, 377
P.3d 419 (2016).

Clearly, the second portion of the Irving requirement is met here. While
McDonald was in open court, he personally answered the court's question of whether he
wanted to waive his right to a jury trial. We concentrate our review on what the judge
told McDonald. Was it sufficient?

On appeal, McDonald does not challenge whether he personally waived the right.
Instead, he challenges whether he knowingly waived the right, because the district court
did not tell him of all the rights associated with a jury trial.

He points out that the judge did not tell him:
 that the jury would consist of 12 persons;
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 that it needed to make a unanimous decision;
 that it must be convinced of guilt beyond a reasonable doubt; and
 the burden of proof is on the State.

Additionally, McDonald suggests that because the judge only told him he would
"hear" his case and not "decide" his case, his waiver was not knowingly made.

Our research has found no requirement in Kansas law that a defendant must be
warned of every right that pertains to a jury trial before voluntarily waiving that right. See
State v. Beaman, 295 Kan. 853, 862, 286 P.3d 876 (2012). In Beaman, our Supreme
Court rejected an argument that a waiver was involuntary because the defendant was not
advised of the 12-juror requirement. 295 Kan. at 862. In Beaman, the court relied on its
holding in Clemons where it had rejected an argument that failing to advise a defendant
that the jury had to unanimously decide the case made a waiver involuntary. Clemons,
273 Kan. at 340-41. Thus, our Supreme Court has already expressly rejected two of
McDonald's reasons that his waiver was unintelligently given. Turning to his next two
points, we are not convinced that they are persuasive.

When we consider McDonald's final two arguments on this point, we are
unmoved. The burden is upon the State to show proof of guilt beyond a reasonable doubt
and applies to court trials as well as jury trials. That is the burden in any prosecution. If
we logically extend the holdings in Clemons and Beaman, a waiver can be voluntary even
when the defendant is not informed that the burden of proof is on the State and the State
must prove guilt beyond a reasonable doubt because the defendant is not waiving those
rights. Any failure to inform a defendant of these particulars does not make the waiver of
a jury trial involuntary. The waived right pertains to the jury—not the burden of proof.

The facts concerning this waiver are nearly identical to the facts found in State v.
Dorantes, No. 111,224, 2015 WL 4366452 (Kan. App. 2015) (unpublished opinion), rev.
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denied 303 Kan. 1080 (2016). In Dorantes, the only statements on the record concerning
the waiver of the right to a jury trial were from the judge telling the defendant of his right
to a jury trial:

"'MR. CUROTTO: May it please the Court, Mr. Ochoa–Dorantes appears in person and
by and through counsel David Curotto. Judge, can we have a trial set, please.
"'THE COURT: Is this a jury case?

"'MR. CUROTTO: Bench, judge.

"'THE COURT: All right.

. . . .

"'THE COURT: Has there been a waiver of jury on this?

"'MR. CUROTTO: Not on that point, Judge.

"'THE COURT: Mr. Ochoa–Dorantes, you have a right to have your case heard and
decided by a jury of your peers. If you waive that right, your case will be heard and
decided by a District Court judge. If you waive your right to a jury trial on this case, you
won't be able to ask for it later if you change your mind. It is a decision for the rest of the
case.

"'Mr. Ochoa–Dorantes, do you want to waive your right to trial by jury?

"'THE DEFENDANT: Yes.

"'THE COURT: Thank you. I'll find that waiver as knowing and voluntary." (Emphasis
added.) 2015 WL 4366452, at *2.


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The Dorantes panel determined this was sufficient to advise the defendant of his
right to a jury trial. 2015 WL 4366452, at *6-7. The panel rejected the defendant's
arguments that the waiver was not voluntary because he was not informed of the
"'essential components'" of the right to a jury trial—for instance, the 12-juror
requirement, unanimity, and the beyond a reasonable doubt standard. 2015 WL 4366452,
at *6. We see no reason to rule differently.

McDonald raises the same argument that the defendant in Dorantes raised. But
there are two differences. McDonald was only told his case would be heard by a judge
instead of heard and decided by a judge and that McDonald had conversations with his
attorney concerning the right to a jury trial waiver.

The fact that McDonald was not told the case would be decided by a judge is of
little consequence. If a jury was not deciding the case, then the judge would necessarily
have to decide it. Who else was going to decide? A waiver is valid if the defendant knew
what the right was that he or she was giving up. Clearly, the district court informed
McDonald that he was giving up the right to have a jury decide his case. See Beaman,
295 Kan. at 859.

We are mindful that we must look at all the circumstances as they provide the
context for assessing a jury trial waiver. Beaman, 295 Kan. at 861. The fact that
McDonald had discussed the waiver with his counsel prior to waiving the right bolsters
our belief that he knew what he was giving up.

McDonald legally waived his right to a jury trial.




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The evidence supports the aggravated kidnapping conviction.

In his second argument, McDonald questions whether there is sufficient evidence
of bodily harm to convict him of aggravated kidnapping. A conviction is supported by
sufficient evidence when all the evidence, viewed in a light most favorable to the
prosecution, could lead a reasonable factfinder to a determination that the defendant is
guilty beyond a reasonable doubt. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015).

A kidnapping is by law aggravated when the victim suffers bodily harm. K.S.A.
2016 Supp. 21-5408(b). McDonald does not challenge whether there is sufficient
evidence to convict for kidnapping but does question whether there is sufficient evidence
of bodily harm that elevates the offense to aggravated kidnapping.

The kidnapping statute does not define bodily harm, but in kidnapping cases
Kansas courts have applied the definition of bodily harm from State v. Taylor, 217 Kan.
706, 714, 538 P.2d 1375 (1975.) In that case a man had kidnapped a young girl and ended
up throwing her into a river. The court affirmed Taylor's conviction and adopted a
definition of bodily harm that courts still use—"any touching of the victim against the
victim's will, with physical force, in an intentional, hostile and aggravated manner, or
projecting of such force against the victim by the kidnapper. [Citation omitted.]" See
State v. Royal, 234 Kan. 218, 222, 670 P.2d 1337 (1983).

The Taylor court relied on a California case, People v. Tanner, 3 Cal. 2d 279, 44
P.2d 324 (1935), to formulate this definition of bodily harm. The California court,
excluded trivial injuries that are associated with any forcible kidnapping as bodily harm
in kidnapping cases. See Taylor, 217 Kan. at 714; People v. Jackson, 44 Cal. 2d. 511,
517, 282 P.2d 898 (1955). The Kansas court in Taylor adopted this concept when it held
that "insignificant bruises or impressions resulting from the act itself are not what the
legislature had in mind when it made 'bodily harm' the factor which subjects one
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kidnapper to a more severe penalty than another." The court also recognized the
legislature only intended that "unnecessary acts of violence upon the victim, and those
occurring after the initial abduction" should constitute bodily harm. 217 Kan. at 714-15.
At first congruent, Kansas and California courts have since diverged in their
interpretation of the degree of bodily harm necessary to aggravate the crime.

California courts now require substantial bodily harm to elevate kidnapping to
aggravated kidnapping. Kansas courts do not. In People v. Schoenfeld, 111 Cal. App. 3d
671, 676-79, 168 Cal. Rptr. 762 (1980), some people were taken off a bus, transported
under the cover of night to a second location, and held in a van that was concealed
underground. Children that were part of the group suffered illness, and one man received
minor scratches on his hands from the group's successful escape attempt. The court
determined these injuries did not meet the requirements of substantial bodily injury
contemplated by the California statute. 111 Cal. App. 3d at 687. McDonald's reliance on
Schoenfeld is unpersuasive because Kansas law is different.

We refer to the holding in State v. Mason, 250 Kan. 393, 827 P.2d 748 (1992). The
facts of Mason are similar to this case. In Mason, an 89-year-old woman was accosted in
her home. Her attacker dragged her to a bedroom and pinned her to the floor by her back
and ribs. While the woman was restrained, the attacker, for no apparent reason, left. After
the attack, the woman had bruises, scratches on her arms, and her ribs were tender. There
was testimony that the injuries were consistent with a person defending herself from an
attacker. Our Supreme Court held these injuries were sufficient evidence to satisfy the
bodily harm requirement of aggravated kidnapping. 250 Kan. at 398. In other words, the
injuries were not the type of trivial injuries that are associated with any forcible
kidnapping.

J.P. sustained similar injuries as the victim in Mason. J.P. testified that she was hit
in the back and then placed in a chokehold with a knife to her throat. When she attempted
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to escape from McDonald's grip, he tightened his chokehold. Similarly, McDonald
tightened his chokehold when J.P. did not immediately answer his question concerning if
a car was hers. J.P. had scratches and red marks on her neck, chest, shoulders, and chin
and experienced soreness for a few days after the attack. In Mason, similar injuries were
sufficient to constitute bodily harm under the aggravated kidnapping statute. 250 Kan. at
398. Thus, the injuries J.P. suffered are not the type of trivial bruises or impressions that
would result from any forcible kidnapping. See Taylor, 217 Kan. at 714-15.

McDonald argues the injuries here were the result of the force necessary to
effectuate the kidnapping and are the type of trivial injuries contemplated by the court in
Taylor. This is an incorrect interpretation of the law. In Taylor the court stated,
"unnecessary acts of violence, and those occurring after the initial abduction" satisfy the
requirement of bodily harm. (Emphasis added.) 217 Kan. at 714. Unnecessary acts of
violence that occur during the kidnapping can satisfy the bodily harm requirement for
aggravated kidnapping. Crowther v. State, 45 Kan. App. 2d 559, 572, 249 P.3d 1214
(2011). We must point out that McDonald had a knife at J.P.'s throat, then added a
chokehold, which he tightened several times. The knife to J.P.'s throat was sufficient to
accomplish the kidnapping. All the rest was unnecessary, cruel force.

In Crowther, a panel of this court held that a kidnapping in which a stun gun was
used to subdue the victim constituted bodily harm under the statute. 45 Kan. App. 2d at
572. Placing a person in a chokehold that makes it difficult for that person to breathe and
tightening the chokehold when the victim attempts to escape is an unnecessary act of
violence. See, e.g., Marcias v. State, No. 91,493, 2005 WL 1089038, at *3 (Kan. App.
2005) (unpublished opinion), where the panel held that for the purpose of aggravated
robbery, "the act of choking the victim must be viewed as an 'act of physical violence'
beyond that associated with the act of robbery itself." The fact that McDonald's act of
violence occurred during the initial taking and was not the result of additional or
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superfluous blows, makes no difference in the determination of whether the element of
bodily harm was proven. See Crowther, 45 Kan. App. 2d at 572.

The evidence in the light most favorable to the prosecution shows that McDonald
acted in an intentional, hostile, and aggravated manner. See Taylor, 217 Kan. at 714. The
injuries to J.P. were not the type of insignificant bruises and impressions associated with
any forcible kidnapping. See Mason, 250 Kan. at 398. A rational factfinder could find
McDonald guilty beyond a reasonable doubt of aggravated kidnapping. The district court
did not err.

Affirmed.