State v. Scarbrough

1

NOT DESIGNATED FOR PUBLICATION

No. 117,751

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN S. SCARBROUGH,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; MARY E. MATTIVI, judge. Opinion filed June 28, 2019.
Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before SCHROEDER, P.J., GREEN and POWELL, JJ.

PER CURIAM: Brian S. Scarbrough appeals claiming there was insufficient
evidence to support his misdemeanor domestic battery conviction. For the first time on
appeal, he also claims he was justified in pushing his wife, Michelle, because he was
entitled to stand his ground and defend himself against her yelling. We find no evidence
to support Scarbrough's claim he could push his wife in response to her yelling at him,
and the evidence presented was sufficient to support Scarbrough's conviction for
misdemeanor domestic battery. We affirm.

2

FACTS

Brian and Michelle had a heated argument in 2017 after Michelle grew angry for
not being paid babysitting fees from someone else. After their argument, Michelle and
her minor son, V.C., called the Topeka Police Department and officers arrested Brian at
the family's home. The State charged Brian with domestic battery. See K.S.A. 2018 Supp.
21-5414(a)(2), a class B person misdemeanor.

At Brian's bench trial, Topeka Police Officers Jason Oyler and Derek Parrett,
V.C., Michelle, and Brian testified. Oyler and Parrett responded to the domestic dispute
and met with Michelle, V.C., and Brian. Oyler testified he took Michelle's statement.
Michelle reported Brian had pushed her onto a bed, onto the floor, pulled her by her
ponytail, and put his hands around her neck. Oyler did not see marks on Michelle's neck
but her statement corroborated V.C.'s statement.

Parrett testified he interviewed V.C. V.C. reported he went downstairs after he
heard Michelle and Brian yelling. V.C. saw Brian's hand on Michelle's neck and another
hand holding her hair back. V.C. reported Michelle then threw a cell phone to V.C. and
he started to call the police. Michelle got away from Brian, went upstairs with V.C., and
reported the incident to the police.

Oyler conducted a post-Miranda interview with Brian in his patrol vehicle. Brian
admitted he pushed Michelle, grabbed her by her neck, and grabbed her by her ponytail.

Eleven-year old V.C.'s testimony corroborated the testimony from the police
officers. V.C. testified he heard yelling downstairs and saw Brian grabbing Michelle.
V.C. demonstrated how Brian grabbed his mother, but the appellate record does not
indicate what V.C. showed the district court. V.C. did not believe Brian's actions were
intended to be comforting to his mother.
3

Michelle's and Brian's testimony contradicted testimony from the police officers
and V.C. Michelle testified she has cataplexy, a neurological disorder causing her to lose
all muscle control and completely collapse when she has an "attack." Michelle's disorder
prevents her from speaking, moving, or functioning from 30 seconds to a few minutes.
Her disorder is triggered by stressful situations or severe anger. According to Michelle,
she started "screaming belligerently in [Brian's] face," he pushed her and yelled at her,
telling her to go upstairs and calm down. Brian had previously witnessed Michelle's
cataplexy but her children had not. Michelle testified she had a cataplexy episode, V.C.
came downstairs and saw Michelle and Brian, but V.C. did not see Brian push her.
Michelle also testified she did not remember what she told the police. Oyler could not
recall if Michelle told him about any medical condition and no medical condition was
included in his report.

Brian testified he tried to separate himself from Michelle during their argument by
making Michelle go upstairs, but she had a cataplexy attack and fell over the corner of
the bed. Brian testified Michelle's head fell back and her eyes rolled back into her head,
so he stretched across the bed to grab her from the back of her head and held her chin to
prevent her from falling over. According to Brian, V.C. then came downstairs, became
upset, and Michelle came out of her cataplexy attack. She then threw the phone at V.C.
and told him to call the police.

The district court found Brian guilty of misdemeanor domestic battery.

ANALYSIS

Brian claims there was insufficient evidence to support his conviction because he
did not knowingly cause physical contact with Michelle in a rude, insulting, or angry
manner. As discussed later, he has abandoned this argument.

4

Appellate courts find a party has waived and abandoned his or her argument when
the party fails to explain why he or she is entitled to raise a new argument for the first
time on appeal, or when the party incidentally raises an issue but does not argue it. State
v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (arguments raised for the first
time on appeal are subject to Supreme Court Rule 6.02[a][5] [2019 Kan. S. Ct. R. 34]);
see State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) (points incidentally raised
are waived and abandoned).

Self-defense raised for first time on appeal

Brian now claims he had the right to stand his ground and use appropriate force to
deescalate the argument with Michelle under K.S.A. 2018 Supp. 21-5230. He has not
explained why he is entitled to raise this new argument for the first time on appeal. See
Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34). Although Brian cites to State v.
McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012), and State v. Walters, 284 Kan. 1,
16, 159 P.3d 174 (2007), he provides no argument to explain why these cases are
applicable to his case. McCullough and Walters address the use of deadly force—an issue
not present in Brian's case. McCullough, 293 Kan. at 975; Walters, 284 Kan. at 9.

Even though it was not raised below, we will consider Brian's self-defense
argument for the first time on appeal because the newly asserted theory involves only a
question of law arising on proved or admitted facts and is finally determinative of the
case. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). Even so, Brian's
self-defense argument is unpersuasive.

Brian's argument requires statutory interpretation where we exercise unlimited
review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most
fundamental rule of statutory construction is that the intent of the Legislature governs if
that intent can be ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417
5

(2016). An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. When a
statute is plain and unambiguous, an appellate court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. State v. Barlow, 303 Kan. 804, 813,
368 P.3d 331 (2016).

Brian argues he is entitled to stand his ground under K.S.A. 2018 Supp. 21-5230.
K.S.A. 2018 Supp. 21-5230 allows

"[a] person who is not engaged in an unlawful activity and who is attacked in a
place where such person has a right to be has no duty to retreat and has the right to stand
such person's ground and use any force which such person would be justified in using . . .
under . . . 21-5220 through 21-5231, and amendments thereto."

K.S.A. 2018 Supp. 21-5222(a) authorizes a person to "the use of force against
another when and to the extent it appears to such person and such person reasonably
believes that such use of force is necessary to defend such person or a third person
against such other's imminent use of unlawful force." (Emphasis added.)

Here, Brian alleges he had no duty to retreat and had the right to use reasonable
force to push Michelle. Brian's argument is unpersuasive. Under the plain language of
K.S.A. 2018 Supp. 21-5222(a), Brian would only be entitled to use reasonable force
against Michelle's imminent use of unlawful force.

There is no factual basis to support Brian's claim he was entitled to stand his
ground and push Michelle while the two were yelling at each other. No one testified
Michelle was about to use any force on Brian or that Brian believed Michelle was about
to use any force on him. Michelle and Brian both testified she was belligerently yelling in
6

Brian's face, but neither testified she threatened him. Brian responded by yelling back and
pushing Michelle. Based on the evidence presented, Michelle's yelling is not unlawful
force. Finding otherwise would insert meaning into K.S.A. 2018 Supp. 21-5222(a) that
does not exist. See Barlow, 303 Kan. at 804.

Brian also argues he was justified in using force because Michelle's actions might
have been sufficient to establish an assault under K.S.A. 2018 Supp. 21-5412. Brian
provides no pertinent authority to support this claim, so he has failed to brief this issue.
See State v. Pewenofkit, 307 Kan. 730, 731, 415 P.3d 398 (2018) (a failure to support a
point with pertinent authority is akin to failing to brief the issue). Further, Brian fails to
cite to any facts indicating Michelle's belligerent yelling placed him in reasonable
apprehension of immediate bodily harm, a necessary element to establish Michelle
assaulted Brian. See K.S.A. 2018 Supp. 21-5412(a). Brian has the burden to designate
those facts in the record and his failure to do so allows this court to presume the district
court acted properly. State v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015). The
record reflects Brian was not in apprehension of immediate bodily harm. Michelle
testified Brian yelled back at her and told her to go upstairs and calm down because Brian
was worried about Michelle's cataplexy, not fearful of his own circumstances. Simply
put, the only unlawful force exerted in this instance was from Brian, not Michelle. The
record before us does not support Brian acted in self-defense by standing his ground and
pushing Michelle.

Sufficient evidence supports Brian's conviction

Brian also argues there is insufficient evidence to support his conviction.

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
7

resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

The State charged, and the district court found, Brian guilty beyond a reasonable
doubt for misdemeanor domestic battery. K.S.A. 2018 Supp. 21-5414(a)(2) defines
domestic battery as "knowingly causing physical contact with . . . a family or household
member, when done in a rude, insulting or angry manner."

Even if we were to find Brian was entitled to stand his ground and push Michelle,
the evidence here supports Brian's conviction because he choked his wife and pulled her
ponytail. Brian has never challenged this evidence, therefore, he has waived this
argument. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).

In the light most favorable to the State, substantial competent evidence supports
the district court's findings Brian was guilty of domestic battery. V.C., Oyler, and Parrett
testified V.C. and Michelle separately reported Brian choked her and pulled her ponytail.
After Oyler read Brian his Miranda rights, Brian confessed to pushing Michelle down,
pulling her ponytail, and holding her around the neck. When the incident was reported,
no one told the police officers Michelle suffered from cataplexy. Based on this evidence,
a rational fact-finder could have found Brian guilty beyond a reasonable doubt of
knowingly causing physical contact with his wife in a rude, insulting, or angry manner.
K.S.A. 2018 Supp. 21-5414(a)(2). The district court did not err in convicting Brian of
domestic battery. See Chandler, 307 Kan. at 668.

Affirmed.