State v. Richardson

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NOT DESIGNATED FOR PUBLICATION

No. 116,374

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

WILLIE A. RICHARDSON,
Appellant.


MEMORANDUM OPINION


Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed January 26,
2018. Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: The State charged Willie A. Richardson with burglary and felony
theft for stealing a safe from Accent Bridal and Tux. It also charged Richardson with
criminal damage to property and battery against a law enforcement officer after
Richardson kicked the window of a police car, slapped the hand of an officer, and pushed
him in the chest. A jury convicted Richardson on all four counts. The district court
sentenced Richardson to 50 months' incarceration and ordered him to pay restitution for
damage to the police car and Accent Bridal's door. Richardson appeals, arguing: (1) the
district court erred in giving a multiple acts instruction on battery against the officer; (2)
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the district court erred in instructing the jury against nullification; (3) there was
insufficient evidence to support his battery conviction; (4) cumulative error deprived him
of a fair trial; (5) the district court erred when it ran his misdemeanor sentences
consecutively; and (6) the district court erred in setting the amount of restitution for
damage to Accent Bridal's door. We affirm.

On July 27, 2015, Brittany Trevino got off work at Valley Hope, a substance
abuse treatment center in Wichita, around 10 p.m. Valley Hope is about one block from
Accent Bridal and Tux. Trevino's ride was running late, so two of her coworkers, Terry
Roby and Cynthia Bowman, waited with her. While they were waiting, Trevino saw a
bald black man wearing red gym shorts with a white stripe walk into the alcove entrance
of Accent Bridal. Roby also saw the man and similarly described him as a bald black man
wearing red shorts with a white stripe down the side. A little later, Trevino heard a loud
bang and saw the same man carrying what appeared to be a safe. The man appeared to be
having a lot of difficulty carrying it. After a short time, he dropped it and took a short
break. He then picked it up and turned a corner, walking out of sight.

Eventually, the man came back around the corner without the safe and approached
Trevino and her coworkers, briefly chatting with them. He headed west on foot until a
police car approached from that direction, at which point he reversed course. When a
second police car approached from the east, he turned around again and continued
walking west in the direction of a nearby Quik Trip. Roby went around the corner to see
what the man had been carrying. He found a safe in the alcove of the Valley Hope
building.

Upon arriving at the scene, Officer Michael Graham saw that someone had forced
in the front door of Accent Bridal. Roby approached Graham and gave a description of
the man he had seen carrying the safe. He also told Graham where the safe was located.
Graham searched the inside of Accent Bridal and found a crowbar.
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Scott Bell, the owner of Accent Bridal, received a call from the security company
notifying him that the store's alarm system had gone off. When he arrived at the store, he
saw the door jamb had been knocked out and was lying on the floor. As Bell walked
through the store with an officer, he saw that the safe was missing from one of the back
offices. Officers later took Bell to identify the safe in the location where it had been
found. Bell confirmed it was the store's safe.

On his way to the scene of the break-in, Officer Danny Taylor learned the suspect
had left the scene heading west. Taylor found a man matching the suspect's description
by a nearby Quik Trip. The man was later identified as Richardson. When Taylor initially
approached Richardson, Richardson was belligerent. Taylor noticed the smell of alcohol
and suspected Richardson might be under the influence of other drugs. Taylor and
another officer handcuffed Richardson and took him into custody. Another officer took
Trevino, Roby, and Bowman separately to Quik Trip to see Richardson. All three
witnesses identified him as the man they had seen outside of Accent Bridal.

Taylor placed Richardson in the back of his patrol car. Richardson repeatedly
kicked the inside of the car. He kicked the window three or four times before Taylor
could remove him. Taylor noticed the window seal had been pushed out about a quarter
of an inch. He requested a breath-alcohol test (BAT) van to take Richardson to jail to
prevent any further damage to his patrol car. Taylor testified that officers often used BAT
vans to transport intoxicated or combative suspects because the vans have a cage in the
back to prevent people from damaging property.

When Taylor arrived at the jail, someone had already removed Richardson's
handcuffs, and he was sitting on a bench in the officers' work area of the jail. The
officers' work area had four benches for prisoners to sit on as well as a couple of desks
for officers to use to do paperwork. Officers must complete paperwork as part of the
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process of booking people into the jail. While Taylor filled in the necessary paperwork,
Richardson fell asleep on the bench.

Shortly before Taylor finished, deputies brought an unruly prisoner into the jail.
The commotion woke Richardson up, and he became upset. He began cussing, and he
told Taylor that he needed to get into jail right away. Taylor told Richardson that he
would take him into the jail soon, but Richardson only became more upset. He began
walking toward the secure door that connected the officer's work area to the area where
deputies actually booked people into jail. Taylor repeatedly told Richardson to sit back
down, but Richardson continued toward the door.

Taylor felt Richardson was getting too close to another prisoner in the officers'
work area, so he got up and placed himself between Richardson and the other prisoner.
Because Richardson had ignored Taylor's multiple verbal requests to sit down, Taylor
placed his hand on Richardson's shoulder and "gently" pushed down, telling Richardson
to sit on the bench. In response, Richardson slapped Taylor's hand away and pushed
Taylor in the chest. Taylor had anticipated that Richardson might react that way, and he
immediately placed Richardson in a wrist lock, holding him until someone else could
take him inside the jail. Taylor later testified that the touching was "rude" but it did not
injure him.

The State charged Richardson with burglary, a severity level 7 nonperson felony;
theft, a severity level 9 nonperson felony; criminal damage to property, a class B
nonperson misdemeanor; and battery against a law enforcement officer, a class A person
misdemeanor. Trevino, Roby, Graham, Bell, and Taylor testified at Richardson's trial. A
jury convicted Richardson on all counts.

At sentencing, Richardson requested a downward dispositional departure to
probation so he could receive inpatient substance abuse treatment. In support of his
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request for departure, Richardson's defense counsel noted that Accent Bridal did not
sustain significant harm from the burglary because the safe was recovered close by. He
also argued that Richardson was amenable to substance abuse treatment, and he provided
a substance abuse evaluation from September 2015, which recommended Richardson
receive inpatient treatment. Finally, he pointed out that Richardson's prior person felonies
were 24 to 39 years old. The district court denied the motion, however, finding there were
no substantial and compelling reasons to depart from the presumptive sentence.

The State recommended the district court sentence Richardson to the high number
for both his felony counts and run those sentences concurrently, resulting in a 34-month
prison term. The State also recommended that the court run one misdemeanor count
consecutive to the felony counts, which would add another 6 to 12 months to his prison
term. The court did not follow the State's recommendation, and it sentenced Richardson
to 32 months in prison for burglary and six months for felony theft. The court decided to
run those sentences concurrently because the offenses were "interrelated." The court also
sentenced Richardson to six months in jail for criminal damage to property and 12
months in jail for battery against a law enforcement officer. The court ran those sentences
consecutive to his prison term because they were both "separate offenses." The result was
a sentence of 50 months' incarceration. The court also ordered restitution in the amount of
$63 to the City of Wichita for damage to Taylor's police car and $400 to Scott Bell for
damage to Accent Bridal's door. Richardson appeals.

Multiple Acts Instruction

Richardson argues the district court erred when it gave a multiple acts instruction
to the jury on his battery charge. The court instructed the jury: "The State claims distinct
multiple acts which each could separately constitute the crime of Battery against a Law
Enforcement Officer. In order for the defendant to be found guilty of Battery Against a
Law Enforcement Officer, you must unanimously agree upon the same underlying act."
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Richardson did not object to this instruction, but he points out on appeal that the State
only presented evidence of a single battery to the jury. According to Richardson, the
multiple acts instruction impermissibly informed the jury he was allegedly guilty of more
than one act of battery. The State concedes there was only one act of battery but argues
the instruction did not affect the jury's verdict.

When analyzing jury instruction issues, we follow a three-step process. First, we
must determine whether we can or should review the issue. Second, we consider the
merits to determine if an error occurred below. Third, we assess whether the error
requires reversal. State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877 (2015).

Our analysis in the first step directly affects the reversibility analysis at the third
step. State v. Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016). When a defendant does not
object to the giving of a jury instruction, we will not reverse the verdict unless the
defendant can show the giving of the instruction was clearly erroneous. K.S.A. 2016
Supp. 22-3414(3); Pfannenstiel, 302 Kan. at 752. As Richardson acknowledges, he did
not object to the multiple acts instruction, so he must establish clear error.

As for the second step, we consider whether the instruction was legally and
factually appropriate, using an unlimited review of the entire record. Louis, 305 Kan. at
457-58. Richardson concedes that the multiple acts instruction was a correct statement of
the law. He argues, however, that the instruction was not factually appropriate because
the State did not put on evidence of multiple acts of battery against a law enforcement
officer.

Acts are multiple acts if they are factually separate and distinct. To determine
whether acts are factually separate, Kansas courts consider several factors, including:

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"'(1) whether the acts occur at or near the same time; (2) whether the acts occur at the
same location; (3) whether there is a causal relationship between the acts, in particular
whether there was an intervening event; and (4) whether there is a fresh impulse
motivating some of the conduct.' [Citations omitted.]" State v. Moyer, 302 Kan. 892, 910,
360 P.3d 384 (2015).

The State concedes there appears to have been only one act of battery here because the
slap and push happened almost simultaneously. Thus, the instruction was not factually
appropriate.

While the district court erred in giving the multiple acts instruction, this does not
necessarily mean we must reverse Richardson's verdict. Richardson must still
demonstrate that giving the instruction was clear error. To do so, Richardson must firmly
convince us that the jury would have reached a different verdict if the district court had
not given the instruction. State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016). In
evaluating whether an instruction raises to the level of clear error, we conduct an
unlimited review of the entire record. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d
353 (2014). The clear error determination must review the impact of the erroneous
instruction in light of the entire record including the other instructions, counsel's
arguments, and whether the evidence is overwhelming. In re Care & Treatment of
Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2015).

Richardson claims the multiple acts instruction was prejudicial because it told the
jury he was allegedly guilty of an unknown number of batteries. In order to demonstrate
his point, he posits a hypothetical case in which a court gives a K.S.A. 2016 Supp. 60-
455 limiting instruction when the court has not admitted any evidence of other crimes.
Richardson argues this would be highly prejudicial because the court is telling the jury
that the defendant is guilty of more than one crime. He reasons, though, the limiting
instruction at least tells the jury how to use any evidence of other crimes. According to
Richardson, the multiple acts instruction is more prejudicial because it similarly suggests
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that the defendant is guilty of more than one crime but does not give guidance on how the
jury may consider any such evidence.

Even if Richardson were correct that giving the multiple acts instruction implied
he was guilty of more than one act of battery, it would not have amounted to clear error
looking at the entire record. The State did not present any evidence to suggest that any
battery took place other than the one at the jail. The State did not suggest in its arguments
that multiple batteries took place. As for the other instructions, the district court
instructed the jury that it must "decide the case by applying these instructions to the facts
as you find them," and the jury's fact-finding should be based on admitted evidence. The
court also instructed the jury that it should presume Richardson was not guilty unless the
State proved beyond a reasonable doubt that he was guilty. As the State points out, the
multiple acts instruction informed jurors that they must unanimously agree on a single act
of battery in order to find Richardson guilty.

As for the evidence of Richardson's guilt, Officer Taylor testified that Richardson
was belligerent at the time of the incident. Taylor said he gently pushed down on
Richardson's shoulder, but Richardson responded by slapping his hand away and pushing
him. Richardson did not present any evidence to directly controvert Taylor's testimony.
Rather, his defense counsel argued that Taylor initiated contact, and Richardson was
simply reacting. Looking at this evidence, the other instructions, and counsel's arguments,
the erroneous multiple acts instruction likely did not impact on the verdict in
Richardson's case, and Richardson has failed to establish clear error.

Jury Nullification Instruction

Richardson argues the district court erroneously instructed the jury against
nullification. At the beginning of voir dire, the court explained this was a criminal case
and the State had the burden of proof. In explaining reasonable doubt, the court told the
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jury: "If you have a reasonable doubt, your obligation is to vote not guilty, and if you
have no reasonable doubt and you think the State has met their burden, your obligation
becomes to vote guilty." Shortly thereafter, the court stated: "It's only unless and until
you are convinced beyond a reasonable doubt that the State has met its burden that the
presumption leaves the defendant, Mr. Richardson, and your obligation then becomes to
vote guilty."

After swearing in the jury, the district court gave preliminary instructions: "First
of all, it is important that you understand the duties of the jury and the duties of the judge
in this trial. The jury is the judge of the facts. In other words, you must determine guilt or
innocence." In its written and oral instructions after the close of evidence, the court
instructed the jury in Instruction 1: "You must decide the case by applying these
instructions to the facts as you find them." The court also instructed the jury in
Instruction 14: "Your verdict must be founded entirely upon the evidence admitted and
the law as given in these instructions." Richardson requested both Instruction 1 and
Instruction 14.

Richardson argues the district court's instructions and comments erroneously
instructed the jury against nullification. He specifically points to Instruction 14, which
stated: "Your verdict must be founded entirely on the evidence admitted and the law as
given in these instructions." (Emphasis added.) Richardson contends that this instruction,
along with other comments made by the district court, improperly informed the jury that
it could not legally nullify the verdict. He further argues that, but for this error, the jury
would likely have nullified.

The State responds that Richardson proposed the instruction at issue, so the invited
error doctrine precludes review of this issue. The State also asserts the issue is without
merit as the court in State v. Mitchell-Boyles, No. 114,799, 2017 WL 129949, at *12
(Kan. App. 2017) (unpublished opinion), rev. denied 306 Kan. __ (June 29, 2017), has
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already found the instruction at issue to be legally appropriate. The State argues that any
error in giving the instruction was harmless because there was overwhelming evidence of
Richardson's guilty.

Before reaching the merits of this issue, we must first determine if Richardson's
claim is barred by the invited error doctrine. Under the invited error doctrine, a litigant
may not invite error at the district court level and then complain of the error on appeal.
State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). The invited error doctrine
applies only when a party both fails to object and invites the error by other actions.
Appellate courts will review an invited error only if it is structural error. State v. Logsdon,
304 Kan. 3, 31, 371 P.3d 836 (2016). Whether the doctrine applies presents a question of
law, and this court generally exercises unlimited review over questions of law. State v.
Hankins, 304 Kan. 226, 230, 372 P.3d 1124 (2016).

Richardson requested the instruction at issue, and he did not object to its use. He
also does not claim that it is structural error. See also State v. Bradford, No. 115,008,
2016 WL 7429318, at *3 (Kan. App. 2016) (unpublished opinion) (finding allegedly
instructing jury against nullification is not structural error), rev. denied 306 Kan. ___
(August 23, 2017). Presumably, then, the invited error doctrine bars review of this claim.

Richardson urges us to review the issue anyway, relying on State v. Hargrove, 48
Kan. App. 2d 522, 293 P.3d 787 (2013). The Hargrove court held that it may relax the
invited error doctrine if defense counsel negligently requests a jury instruction that
compromises the defendant's constitutional rights. It also held, however, that we will not
presume negligence rather than a tactical decision from a silent record. 48 Kan. App. 2d
at 551-54.

The record in this case is silent as to why defense counsel requested this
instruction. Richardson contends "the record shows there was no strategic or tactical
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reason for Mr. Richardson's counsel to not object." Just because there was no apparent
tactical reason to request the instruction, though, does not necessarily mean defense
counsel acted negligently. As the Hargrove court stated: "There may be factors informing
[defense counsel's] choice that are obscure or wholly invisible in the appellate record." 48
Kan. App. 2d at 551. Without evidence in the record that defense counsel acted
negligently, the invited error doctrine still applies and prevents us from reviewing this
issue.

Even if the invited error doctrine did not bar this issue from review, it fails on its
merits. Richardson argues Instruction 14 was an incorrect statement of law. He contends
that juries have an inherent right to nullification, but the use of the word "must" rather
than "should" in Instruction 14 conveyed to the jury that nullification was not an option.

In Silvers v. State, 38 Kan. App. 2d 886, 888, 173 P.3d 1167 (2008), the court
explained jury nullification as follows:

"'A jury's knowing and deliberate rejection of the evidence or refusal to apply the
law either because the jury wants to send a message about some social issue that is larger
than the case itself or because the result dictated by law is contrary to the jury's sense of
justice, morality, or fairness.' [Citation omitted.]"

Our Supreme Court has held that juries have the inherent power to nullify a verdict, but
the district court must not instruct on jury nullification. State v. Naputi, 293 Kan. 55, 65-
66, 260 P.3d 86 (2011); State v. McClanahan, 212 Kan. 208, Syl. ¶¶ 3, 4, 510 P.3d 153
(1973). Conversely, our Supreme Court has also held that the district court may not
instruct against nullification or compel a jury to convict. State v. Smith-Parker, 301 Kan.
132, 164, 340 P.3d 485 (2014).

Richardson claims juries have an inherent right to nullification, but Kansas courts
appear to have only recognized that juries have the power to nullify verdicts. See, e.g.,
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State v. Stinson, No. 112,655, 2016 WL 3031216, at *3 (Kan. App. 2016) (unpublished
opinion) ("Nullification rests on an unchecked power of the jurors, not a legal right
belonging to them or to a defendant."), rev. denied 306 Kan. __ (September 28, 2017).

Despite Richardson's claims to the contrary, Instruction 14 neither encourages
nullification nor forbids it. The challenged language in the instruction is taken directly
from PIK Crim. 4th 68.010. The instruction is consistent with the statutory directive in
K.S.A. 22-3403(3), which states: "When the trial is to a jury, questions of law shall be
decided by the court and issues of fact shall be determined by the jury." It is also
consistent with K.S.A. 2016 Supp. 60-247(d), which states: "The jurors must swear or
affirm to try the case conscientiously and return a verdict according to the law and the
evidence." The Court of Appeals has repeatedly held that the instruction at issue does not
impermissibly preclude jury nullification. See State v. Trotter, No. 114,753, 2017 WL
3668908, at *3-5 (Kan. App. 2017) (unpublished opinion), rev. granted on other issue
306 Kan. ___ (August 30, 2017); State v. Ulmer, No. 114,315, 2016 WL 7428362, at *8-
9 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. ___ (September 28,
2017).

The Mitchell-Boyles court has also specifically rejected Richardson's argument
that the use of the word "must" in the instruction was improper. 2017 WL 129949, at *12.
Richardson acknowledges that the court in Mitchell-Boyles rejected the argument he
raises here. He maintains, however, that Mitchell-Boyles is distinguishable when one
looks at the record as a whole in his case. He points to the district court's comments to the
jury that if the State meets its burden of proof, the jury is obligated to vote guilty.

As the State notes, however, our Supreme Court has already addressed an
argument regarding similar comments. In State v. Carter, 305 Kan. 139, 159, 380 P.3d
189 (2016), the district court told prospective jurors before voir dire that if the State met
its burden of proof, "'the presumption [of innocence] then leaves the defendant and then
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your obligation becomes to vote guilty, if you are convinced beyond a reasonable doubt.'"
The Carter court held that the district court's comments were erroneous, but it was not
clear error because the comments occurred before voir dire began and the district court
properly instructed the jury regarding reasonable doubt at the close of evidence. 305 Kan.
at 160.

The district court's comments here are almost identical to the court's comments in
Carter. The district court also gave an appropriate reasonable doubt instruction, based on
PIK Crim. 4th 51.010, to the jury at the close of evidence. Richardson does not explain
how a legally appropriate instruction combined with erroneous comments later corrected
by proper jury instructions leads to clear error. He also does not provide any further
argument on the other instructions he highlighted in his brief.

Moreover, the evidence of Richardson's guilt was overwhelming. Two
eyewitnesses identified him as the man who broke into Accent Bridal and took the safe.
A third eyewitness identified him at the scene. Officer Taylor's testimony established the
criminal damage and battery charges, and defense counsel did little to damage his
credibility on cross-examination.

Despite the evidence of guilt, Richardson argues that the jury likely would have
nullified for a variety of reasons, including abandonment of the safe and the relatively
minor damage to the window of Taylor's patrol car. Richard is, of course, presuming that
the jury at his trial was willing to ignore evidence of his guilt to nullify his verdict. If this
were so, however, the jury would also presumably not feel constrained by the instructions
it intended to disregard. See Trotter, 2017 WL 3668908, at *5 (discussing paradox of
proposed remedy for challenged instruction). Thus, this argument does not establish clear
error, and Richardson's claim is without merit.

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Sufficiency of the Evidence

Richardson argues the State did not provide sufficient evidence that he battered
Officer Taylor. He asserts the State provided evidence of Taylor's subjective opinion that
Richardson made physical contact in a rude manner, but it did not establish that a
reasonable onlooker would believe Richardson had acted in a rude, angry, or insulting
manner. According to Richardson, a reasonable onlooker would have concluded that he
was reasonably responding to Taylor's rough treatment. The State responds that if looked
at in a light most favorable to the State, the evidence was sufficient to establish
Richardson committed battery against the officer.

"'When the sufficiency of evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
fact-finder could have found the defendant guilty beyond a reasonable doubt.' [Citation
omitted.]" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016). "'In making a
sufficiency determination, the appellate court does not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility.' [Citations
omitted.]" State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016).

The jury convicted Richardson of battery against a law enforcement officer.
K.S.A. 2016 Supp. 21-5413(c)(1)(B) defines battery against a law enforcement officer as
"battery as defined in subsection (a)(2) committed against a . . . uniformed or properly
identified state, county or city law enforcement officer . . . while such officer is engaged
in the performance of such officer's duty." Subsection (a)(2) defines battery as
"knowingly causing physical contact with another person when done in a rude, insulting
or angry manner." K.S.A. 2016 Supp. 21-5413(a)(2). In determining the manner in which
the defendant acted, the Cooper court applied an objective standard from the point of
view of a reasonable onlooker. State v. Cooper, No. 113,401, 2016 WL 4585096, at *3.
(Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. ___ (May 24, 2017). The
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subjective perspective of the defendant, victim, or witnesses is not controlling. See 2016
WL 4585096, at *3; In re C.T., No. 107,841, 2012 WL 5205752, at *4-5 (Kan. App.
2012) (unpublished opinion).

Richardson contends that the evidence presented at trial does not establish that he
touched Taylor in a rude, insulting, or angry manner from the point of view of a
reasonable onlooker. Rather, he asserts it only establishes that the touching was rude
from a subjective standard, relying on Taylor's perspective. He then posits a number of
speculative, subjective interpretations of the event based on the particularities of
Richardson's condition or the experiences of his imagined onlooker. For example, he
suggests a reasonable onlooker in this case would have been someone in the officer's
work area, possibly someone who had been in Richardson's shoes or had often seen
similar occurrences. According to Richardson, this onlooker would have seen "a 53-year-
old sweaty, shirtless black man who was riding a roller coaster of emotions." According
to Richardson, this proposed onlooker would have seen the contact and concluded an
upset man was responding defensively to an officer's rough handling.

While any of Richardson's suggested scenarios may be possible, the existence of
alternative outcomes is not the standard of review for sufficiency of the evidence. Rather,
we must determine if the evidence supports the conviction when viewed in a light most
favorable to the State. Viewed this way, the evidence was sufficient to support a
conviction for battery. Officer Taylor testified that while he was filling out paperwork,
Richardson became belligerent and began cussing. Richardson got up and moved toward
the secured door between the officer's work area and the booking area. Taylor repeatedly
asked Richardson to sit down, but he refused to do so and continued to cuss and yell.
Taylor said he placed his hand on Richardson's shoulder and gently pushed down, again
telling Richardson to sit down. Richardson responded by slapping his hand away and
pushing Taylor in the chest. Taylor testified that the physical contact was rude. From the
perspective of a reasonable onlooker, slapping and pushing someone after yelling,
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cussing, and acting belligerently would appear rude, insulting, or angry. Therefore, the
State provided sufficient evidence for a rational fact-finder to find Richardson guilty of
battery against a law enforcement officer.

Cumulative Error

Richardson argues that even if none of the previous three errors on its own
requires reversal, the combined effect of the errors deprived him of a fair trial. The test
for cumulative error asks whether the totality of the circumstances establish that the
defendant was substantially prejudiced by cumulative errors and was denied a fair trial. In
assessing the cumulative effect of errors during trial, we examine the errors in the context
of the entire record, considering how the district court dealt with the errors as they arose;
the nature and number of errors and their interrelationship, if any; and the overall strength
of the evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). See also State v.
Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016). The court will find no cumulative
error when the record fails to support the errors defendant raises on appeal. State v.
Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015).

Cumulative error did not deprive Richardson of a fair trial. The only errors here
were the giving of the multiple acts instruction and the district court's comments to the
jury about reasonable doubt before voir dire. The multiple acts instruction did not affect
the verdict, however, and the final jury instruction on reasonable doubt corrected any
error introduced by the court's comments. These errors were not interrelated, and neither
would have compounded the other. The State presented a strong case for Richardson's
guilt on all counts.

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Consecutive Sentences

Richardson challenges his sentence. He argues the district court abused its
discretion when it ran his misdemeanor sentences consecutive to his felony sentences. He
contends the court relied on incorrect law and facts in determining his sentence, and no
reasonable person could agree with the sentence the court imposed. The State responds
that Richardson has taken the district court's comments out of context, and his sentence
was not unreasonable.

A district court has discretion to determine whether a sentence should run
concurrent with or consecutive to another sentence. K.S.A. 2016 Supp. 21-6606(a);
K.S.A. 2016 Supp. 21-6819(b); State v. Mosher, 299 Kan. 1, 2, 319 P.3d 1253 (2014). A
judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court; (2) the action is based on an error of law; or (3) the
action is based on an error of fact. Marshall, 303 Kan. at 445. The party asserting the
district court has abused its discretion bears the burden of proof. State v. Robinson, 303
Kan. 11, 90, 363 P.3d 875 (2015), cert. denied 137 S. Ct. 164 (2016).

Richardson's presentence investigation (PSI) report indicated he had a criminal
history score of A. It showed he had juvenile adjudications for first-degree murder and
aggravated robbery from 1977. He also had two adult convictions for person felonies:
aggravated robbery in 1984 and robbery in 1992. In addition to his two person felony
convictions, he had two person misdemeanor convictions—battery/domestic violence in
1997 and criminal restraint in 2014.

Richardson faced a presumptive prison sentence of 30, 32, or 34 months for his
burglary charge. For his felony theft charge, he faced a presumptive sentence of 5, 6, or 7
months of probation. The maximum jail sentence for his misdemeanor criminal damage
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charge was 6 months, and the maximum jail sentence for his misdemeanor battery charge
was 12 months. K.S.A. 2016 Supp. 21-6602(a)(1) and (2).

At sentencing, Richardson's counsel argued for a downward dispositional
departure. He pointed out that if the district court did not include Richardson's person
felonies when calculating his criminal history score, his score would only be an E. The
following colloquy then occurred:

"THE COURT: If I ignored all his criminal history, he would be a criminal
history I. But the fact is that is his criminal history. That is what he has done with his life.
That is what he carries around with him, and every time he commits a new offense, he is
a criminal history A.
"[DEFENSE COUNSEL]: I understand that, Your Honor, but this is a recognized
factor, age of the prior and the fact that he doesn't have similar priors for a period of over
24 years. I think that is substantial, and I'm asking the Court to view that as substantial
and compelling.
"The fact that he is no longer a person who presents such a violent risk to society,
that is borne out by the nature of these convictions in the last 24 years.
"THE COURT: Well, criminal restraint, entry number 24, albeit, it's a person
misdemeanor. DV battery in '96, '97 was the conviction date. And Counts 3 and 4 are
criminal damage to property, where he kicked out or damaged the back window or
window frame of the Wichita Police Department's patrol vehicle and battery of an LEO
when he shoved the police officer in the booking desk or booking facility while being
booked into jail. It's just a consistent demonstration of his behavior. He is a public safety
issue, even if he wasn't criminal history A, but I don't see any reason, substantial or
compelling, to deviate from the presumed disposition."

Richardson argues these comments indicate the district court relied on incorrect
law in sentencing him. The court stated it did not see any substantial or compelling
reason to depart from the presumptive disposition in this case. According to Richardson,
this has no relevance in misdemeanor sentencing because there is no presumptive
disposition for misdemeanors. Instead, the district court should have sentenced him in
19

accordance with K.S.A. 2016 Supp. 21-6601, which requires the court to deal with
defendants "in accordance with their individual characteristics, circumstances, needs and
potentialities."

Richardson is correct that there is no presumptive sentence for misdemeanors.
K.S.A. 2016 Supp. 21-6602; K.S.A. 2016 Supp. 21-6803(q). As the State points out,
however, the court's comments came during a discussion of Richardson's motion for a
dispositional departure, including for his felony burglary charge. In order to depart from
the presumptive prison sentence for that felony, the court would have had to find
substantial and compelling reasons. K.S.A. 2016 Supp. 21-6815(a). The court's
comments appear to be in response to defense counsel's arguments regarding substantial
and compelling reasons to depart from Richardson's presumptive felony sentence. Thus,
there is no indication the court relied on incorrect law in sentencing Richardson for his
misdemeanors.

Richardson also claims the district court relied on incorrect facts in sentencing
him. He points to the court's statement that "he shoved the police officer in the booking
desk or booking facility while being booked into jail." Richardson first asserts he did not
push the officer into a desk. As the State argues, however, the court likely misspoke when
it said desk, because it immediately corrected itself by saying "booking facility."

Richardson also argues he was not in booking at the time of the battery; he was
waiting for Officer Taylor to finish paperwork so he could be booked into jail. This is
splitting hairs. While Taylor was not actually booking Richardson into the jail, he was
completing paperwork that had to done as part of the entire process. Additionally, even if
the court was not technically correct, the record does not suggest the court focused on the
timing or location of the battery in determining Richardson's sentence. Thus, it is not
clear what effect, if any, this mistake of fact would have had on Richardson's sentence.

20

Richardson also takes issue with the district court's comment that, "it's just a
consistent demonstration of his behavior." Richardson contends his criminal history does
not show a consistent demonstration of person crimes. According to his PSI report,
though, Richardson was adjudicated for first-degree murder and aggravated robbery in
1977, convicted of aggravated robbery in 1984, convicted of robbery in 1992, convicted
of battery/domestic violence in 1997, and convicted of criminal restraint in 2014. He had
committed six person crimes over a span of 37 years, with his most recent one occurring
only a few years ago. There is substantial competent evidence to support the conclusion
that Richardson showed a consistent demonstration of person crimes.

Richardson also argues the evidence does not support the district court's
conclusion that he is "a public safety issue, even if he wasn't criminal history A."
Richardson interprets this comment to mean his behavior on the night of the incident
made him a public safety threat. He argues the evidence does not support this conclusion
because he was not in public at the time he committed criminal damage and battery. What
makes Richardson a public safety threat, however, is the nature of the crimes, not the
exact location in which they occurred. To conclude otherwise would mean that only
people who commit crimes of violence in public areas could be considered public safety
threats.

Finally, Richardson contends his sentence was unreasonable because neither of the
parties suggested the sentence the district court imposed. This does not establish
unreasonableness, though, because district courts may impose sentences independent of
any sentencing recommendation. State v. Chetwood, 38 Kan. App. 2d 620, 624-25, 170
P.3d 436 (2007). At the sentencing hearing, the district court explained that Richardson's
criminal history as well as his behavior on the night in question indicated he was a public
safety risk, and it sentenced Richardson to multiple consecutive sentences. A reasonable
person could agree with the district court's decision. Furthermore, it is consistent with
K.S.A. 2016 Supp. 21-6601, which states "dangerous offenders shall be correctively
21

treated in custody for long terms as needed," and offenders should only be sentenced to
probation if it is "not detrimental to the needs of public safety." Therefore, the district
court did not abuse its discretion in sentencing Richardson, and we affirm.

Restitution

Finally, Richardson contends the district court abused its discretion when it set the
amount of restitution for Scott Bell and Accent Bridal. He asserts the court improperly
relied on the State's statements in setting the amount, and there is no reliable evidence to
support it. The State counters that reliable evidence supports the amount of restitution
because Bell provided testimony and a victim statement regarding the cost of repairing
Accent Bridal's door.

Bell provided some testimony regarding the damage to Accent Bridal's door but
never gave a specific amount regarding the cost of repairs. At trial, he testified that "the
whole door [jamb] was knocked clear out and [lying] on the floor" when he arrived at the
store after the break-in. He also testified "[t]he door was completely broken in." At the
preliminary hearing, Bell testified that he repaired the door himself because the repair
costs would not have met the $500 deductible for his insurance.

The PSI report recommended a restitution amount of $400 for Scott Bell of Accent
Bridal. At the sentencing hearing, the State requested $400 in restitution for Accent
Bridal "not for any property, because obviously it was returned, but the damage to the
door [frame]." Richardson's counsel stated that "[t]here was very little, definitely not
$400 worth of monetary harm," and he did not understand how the materials used to fix
the door jamb totaled $400. He told the court he had "seen the itemization" but he
thought it "sound[ed] like a windfall." The district court ultimately ordered restitution in
the amount of $400 for Bell.

22

We review the amount of restitution and the manner in which it is made to a
victim under an abuse of discretion standard. State v. Shank, 304 Kan. 89, 93, 369 P.3d
322 (2016). "'Although the rigidness and proof of value that lies in a civil damage suit
does not apply in a criminal case, the court's determination of restitution must be based
on reliable evidence which yields a defensible restitution figure.' [Citation omitted.]"
State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002). A district court abuses its
discretion if it enters an order of restitution without any evidence to support it. State v.
Cole, 37 Kan. App. 2d 633, 637, 155 P.3d 739 (2007).

Richardson argues the district court determined the amount of restitution based
solely on comments made by the State at sentencing, and there was no other evidence to
support the restitution amount. Richardson is correct that the State's comments were
insufficient to support the restitution order because statements of counsel are not
evidence. See Cole, 37 Kan. App. 2d at 636-37 (finding district court abused its
discretion by relying solely on State's representations in setting restitution amount).
However, Richardson is incorrect that this was the only information provided to support
the restitution amount.

On the same page of the PSI report that recommended the $400 restitution amount,
it also said: "Copies of any victim's statements or requests for restitution will be included
in the court's copy of the Presentence investigation if received by this office." The State
requested an addition to the record, adding Scott Bell's statement of loss. Bell's statement
listed $400 as the cost of fixing the door and the door jamb. Contrary to Richardson's
assertion, the record indicates there was other evidence to support the amount of
restitution. Additionally, in State v. Vandorn, No. 109,640, 2014 WL 2871320, at *8
(Kan. App. 2014) (unpublished opinion), the court upheld restitution amounts supported
only by a victim's statement of loss. On appeal, Richardson does not challenge the
reliability of Bell's statement of loss, thus, any such argument is waived and abandoned.
See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).
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Conclusion

Richardson has brought a number of challenges to both his convictions and his
sentence, but they are all without merit. The district court erred in giving a multiple acts
instruction on battery, but the record as a whole establishes the error did not affect the
verdict. Richardson's claim that the court erroneously instructed the jury against
nullification is invited error but also fails on the merits. The State provided sufficient
evidence under an objective standard that Richardson acted in a rude, insulting, or angry
manner when he slapped Officer Taylor's hand and pushed him. The district court did not
abuse its discretion in running Richardson's misdemeanor sentences consecutively, nor
did it abuse its discretion in setting the amount of restitution because Bell's statement of
loss supported the amount.

Affirmed.