State v. Nielson

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NOT DESIGNATED FOR PUBLICATION

No. 114,362

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SEAN NIELSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY F. GOERING, judge. Opinion filed November 4,
2016. Affirmed.

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

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., LEBEN and GARDNER, JJ.

Per Curiam: Sean Nielson appeals, claiming the district court erred in instructing
the jury on the culpable mental state for leaving the scene of an injury accident and
leaving the scene of an accident involving property damage. We find Nielson agreed to
the jury instructions as given—if there was error, it was invited—and the instructions did
not violate his due process rights. We affirm.




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FACTS

Nielson was charged with and prosecuted for leaving the scene of an accident that
resulted in great bodily injury and leaving the scene of an accident resulting in more than
$1,000 in property damage.

The accidents occurred outside a Wichita bar in the early morning hours of May
19, 2013. There is no dispute Nielson reversed his car into a vehicle causing great bodily
injury to a pedestrian. Likewise, there is no dispute Nielson accelerated forward and
collided with a fence, causing more than $1,000 in property damage. Nielson admitted he
knew both collisions occurred.

The State's proposed jury instructions for leaving the scene of an accident
involving great bodily harm detailed the following elements:

"The defendant is charged in Count I with leaving the scene of an accident
resulting in great bodily harm. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant was the driver of a vehicle involved in an accident.
"2. The accident resulted in great bodily harm to a person.
"3. The defendant failed to immediately stop at the scene of the accident and
remain or stop as close to the scene of the accident as possible and then
immediately return to the scene and remain until information required by law was
reported to a law enforcement officer.
"4. This act occurred on or about the 19th day of May, 2013, in Sedgwick
County, Kansas.
"To satisfy its burden under paragraph 1, the State must prove that the defendant
knew or reasonably should have known he was involved in an accident. A defendant acts
knowingly when the defendant is aware of the circumstances in which he is acting. The
State need not show that defendant knew the accident resulted in great bodily harm, as
alleged in paragraph 2."
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The instruction for leaving the scene of an accident resulting in property damage was
identical to the instruction above with the exception of inserting property damage
wording where great bodily harm is discussed.

In contrast, Nielson proposed PIK Crim. 4th 52.300 to instruct the jury on the
required culpable mental state which stated: "The State must prove that the defendant
insert specific act committed by defendant intentionally, knowingly, or recklessly."

When discussing proposed Jury Instructions 5 and 6 at the instruction conference,
the State detailed:

"Generally speaking, case law would say that leaving the scene is a strict liability offense,
just as most traffic offenses are, except that case law has found that there is an implicit
requirement that someone know that they were involved in an accident before they would
be aware of the liability and duty to report. There's a number of different cases, one is the
City of Overland Park v. Estell [8 Kan. App. 2d 182, 653 P.2d 819 (1982),] and some
others. And so because of that, I've kind of tailored the knowing requirement to the
specific element, which is awareness of the accident as opposed to the degree of harm or
et cetera, et cetera, and put that language as a paragraph on both Counts 1 and 2 which
would be Instructions 5 and 6."

When the district court asked if Nielson's counsel had any objections to the way
Jury Instructions 5 and 6 handled the intent element, he replied: "No, Judge. It looks
appropriately worded." The district court gave the State's proposed instructions.

The jury found Nielson guilty of leaving the scene of an accident resulting in great
bodily harm and leaving the scene of an accident resulting in property damage. The
district court sentenced him to 16 months' imprisonment, suspended the sentence, and
placed Nielson on probation for 18 months.

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Nielson appeals, claiming the district court erred in giving Jury Instructions 5 and
6.

ANALYSIS

The standard of review when addressing challenges to jury instructions is based
upon the following analysis:

"'(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).'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015)
(quoting State v. Plummer, 295 Kan. 156, Syl ¶ 1, 283 P.3d 202 [2012]).

The State argues Nielson cannot complain regarding the jury instructions because
there was an on-the-record agreement as to the instructions' wording. Under the invited
error doctrine, a defendant cannot challenge an instruction on appeal, even as clearly
erroneous under K.S.A. 2015 Supp. 22-3414(3), when there has been an on-the-record
agreement to the wording of the instruction at trial. State v. Peppers, 294 Kan. 377, 393,
276 P.3d 148 (2012). On the record, Nielson's attorney agreed to the wording of the
State's proposed jury instructions defining leaving the scene of an accident resulting in
great bodily injury and leaving the scene of an accident resulting in more than $1,000
property damage. The district court instructed the jury using the instructions Nielson
agreed were "appropriately worded." On appeal, Nielson may not complain the
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instructions were erroneous because he invited the error. However, even if Nielson had
not invited the error he complains of on appeal, he would still lose on the merits.

Nielson argues he preserved this issue because he submitted PIK Crim. 4th 52.300
as a proposed jury instruction. However, "[i]t is not sufficient to simply have filed
proposed instructions before trial to preserve a later challenge under [the] general
framework for reviewing jury instructions on appeal." State v. Brammer, 301 Kan. 333,
341, 343 P.3d 75 (2015). Nielson did not object to the district court's failure to give
proposed PIK Crim. 4th 52.300; likewise, he did not lodge an objection to the jury
instructions given by the district court—Nielson approved them.

For the first time on appeal, Nielson claims his convictions must be reversed
because his due process rights were violated when the district court did not instruct the
jury on every element of the crimes he was charged. He argues the issue may be raised
for the first time on appeal because it is a question of law on proved or admitted facts and
is determinative of the case. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014). The State disagrees, arguing the alleged instructional error is not "finally
determinative" because the error is subject to a harmlessness analysis and, if found,
would only require remand for a new trial.

Nielson also argues consideration of his alleged instructional error is necessary to
prevent the denial of fundamental rights which would occur if he is "convicted of these
crimes without the jury ever having been informed of one of the essential elements, and
without the jury ever having considered one of the essential elements."

The Due Process Clause of the Fourteenth Amendment to the United States
Constitution requires proof beyond a reasonable doubt of each element of the crime
charged. State v. Elrod, 38 Kan. App. 2d 453, 463, 166 P.3d 1067 (2007). Unless the
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definition of a crime "plainly dispenses" with any mental element, a culpable state of
mind is an essential element of the crime. K.S.A. 2015 Supp. 21-5202.

K.S.A. 2015 Supp. 8-1602(a) neither prescribes a culpable mental state nor plainly
dispenses with any mental element. However, for more than 45 years, Kansas caselaw
has prescribed a culpable mental state for leaving the scene of an accident. In State v.
Wall, 206 Kan. 760, 764, 482 P.2d 41 (1971), the Kansas Supreme Court held the driver
of a motor vehicle must know he or she has been in a collision to sustain a conviction for
hit-and-run driving. The Wall court analyzed K.S.A. 1969 Supp. 8-518(a), which stated:

"'The driver of any vehicle involved in an accident resulting in injury to or death
of any person shall immediately stop such vehicle at the scene of such accident or as
close thereto as possible, but shall then forthwith return to and in every event shall remain
at the scene of the accident until he has fulfilled the requirements of K.S.A. 8-520, as
amended. Every such stop shall be made without obstructing traffic more than is
necessary.'" Wall, 206 Kan. at 764.

The language of K.S.A. 2015 Supp. 8-1602(a) is nearly identical, with two slight
additions (in italics):

"The driver of any vehicle involved in an accident resulting in injury to, great
bodily harm to or death of any person or damage to any attended vehicle or property
shall immediately stop such vehicle at the scene of such accident, or as close thereto as
possible, but shall then immediately return to and in every event shall remain at the scene
of the accident until the driver has fulfilled the requirements of K.S.A. 8-1604, and
amendments thereto." (Emphasis added.)

Nielson's citation to State v. Heironimus, 51 Kan. App. 2d 841, 356 P.3d 427
(2015), does not strengthen his argument. In Heironimus, the State argued K.S.A. 2011
Supp. 8-1602 imposed absolute liability and a culpable mental state was not a necessary
element. The district court agreed and did not provide a culpable mental state instruction
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to the jury. On appeal, Heironimus cited Wall and contended "that knowledge of an
accident is an essential element of leaving the scene of an injury accident and that the
State needed to prove that element." Heironimus, 51 Kan. App. 2d at 846. The
Heironimus court concluded:

"Because a culpable mental state is required unless the definition of an offense
plainly dispenses with that requirement or clearly indicates a legislative purpose to
impose absolute liability and K.S.A. 2011 Supp. 8-1602 lacks both these indicators, it is
clear that criminal intent must be an element of that offense. As provided by the criminal
intent statutes, if a crime lacks a prescribed culpable mental state, '"intent," "knowledge"
or "recklessness" suffices to establish criminal responsibility.' K.S.A. 2011 Supp. 21-
5202(e). The State therefore needed to plead and prove that Heironimus intentionally,
knowingly, or recklessly left the scene of an injury accident in violation of the
requirements of K.S.A. 2011 Supp. 8-1602(a)." 51 Kan. App. 2d at 850.

Here, the jury was instructed on a culpable mental state. In Jury Instructions 5 and
6, the district court instructed:

"To establish this charge, each of the following claims must be proved:
"1. The defendant was the driver of a vehicle involved in an accident.
. . . .
"To satisfy its burden under paragraph 1, the State must prove that the defendant
knew or reasonably should have known he was involved in an accident. A defendant acts
knowingly when the defendant is aware of the circumstances in which he is acting."
(Emphasis added.)

Nielson admitted he was driving when both collisions occurred. He admitted he
was aware of both collisions, knew he had caused property damage, and knew people had
possibly been injured. Nielson also admitted one collision resulted in great bodily injury
and the other resulted in property damage. In addition, Nielson admitted he left the scene
without speaking to law enforcement officers and did not contact law enforcement with
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his information for more than a day. In fact, Nielson testified he left the scene because he
was being attacked. Nielson made the decision to leave the scene of the accidents to
avoid conflict with people at the scene.

There was no error in giving Jury Instructions 5 and 6 and, if there were, it would
have been invited error by Nielson.

Affirmed.