State v. Smith

1

NOT DESIGNATED FOR PUBLICATION

Nos. 117,423
117,424

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CURTIS A. SMITH,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed December 21,
2018. Affirmed.

Peter Maharry, 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 MALONE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: A jury convicted Curtis A. Smith of aggravated kidnapping, rape,
aggravated battery, three counts of criminal threat, criminal damage to property, and
violation of a protection order. The district court sentenced Smith to a total of 911 months
of incarceration and ordered each sentence to run consecutively. Smith appeals. We
affirm.

Smith met D.S. on the dating website Plenty of Fish in the spring of 2015. For
their first date, D.S. picked Smith up at his grandmother's house. He took a large bag with
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him. They went to her apartment to hang out with her adult son and some friends. After
the rest of the company had left, Smith asked to shower there. Smith spent that night at
D.S.'s apartment and when she asked him to leave, he asked to stay a couple days because
he had just returned to Wichita and was trying to figure out living arrangements. At first,
they were good friends, but eventually they became involved in a romantic relationship.

As time went on, D.S. asked Smith a few times about his living arrangements and
he always replied that he was working on it. Things began going downhill the longer
Smith stayed. He took control of her car, money, and phone. He also became verbally
abusive, calling her names and threatening to burn her alive and pimp her out on Back
Page. D.S. testified, "Oh, everything was Back Page, everything was burn me alive,
everything was I'm gonna check your temperature when you get home," which meant he
was going to beat her. Smith was "always drunk" and grabbed D.S. several times. One
time, she refused to go to the liquor store for him and he grabbed her and flung her on the
bed. He told her, "You're lucky I'm not gonna go full fledge." It was easier for D.S. to
surrender and do as he asked than to continue the fight. D.S. also reported incidents of
nonconsensual sex, times in which Smith proceeded to have intercourse with her without
her consent. This included one time when she verbalized she did not want to have sex and
"he just went ahead and did it."

In reference to the escalation of behaviors, D.S. testified, "I guess I let it happen, I
got scared. I lived in fear, every day. I was sick to come home, I didn't want to come
home from work, you know." She continued asking Smith to leave, but he refused. When
her son, T.G., was about to be discharged from the military, she asked him to return to
Wichita to help her.

T.G. moved in on October 2, 2015. Initially, Smith treated D.S. well, but as time
went on, T.G. saw more of his bad behaviors surface. He testified: "Her mobile devices
were all basically on lock, she wasn't allowed to leave the house really as much, always
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questioning when she did anything, where she was going, what she was doing, the time,
just every little thing was monitored, micromanaged." Smith threatened to burn T.G. and
D.S. with gasoline while they were sleeping. T.G. did not intervene when Smith was
verbally abusive out of fear that the conflict would become physical.

D.S.'s employer participated in domestic violence awareness in the month of
October. While D.S. was in a training class at work, Smith sent her threatening texts that
she shared with her class. A supervisor later pulled her out of class to talk about getting
help. D.S. hesitated because she did not want the situation to get worse.

Shortly thereafter, Smith and D.S. were arguing about her not going to buy him
more alcohol. Smith punched D.S. then pinned her against the wall by her throat. T.G.
ran in and told Smith "if he ever touched my mother again, I'll kill you."

Two days later, the human resources director from D.S.'s job took her to the
district court to obtain a protection from abuse (PFA) order. She testified that she did not
include everything that had happened in her application for the PFA order, because,

"at the time I was scatter-brained, I was just in a rush and I put the basic in there to be
able to get this approved, as I was on work time and . . . I needed the money so I had to
hurry up and get right back to work."

D.S. stated she did not want any issues; she just wanted him to take his things and leave.

After work, T.G. took D.S. to the Wichita Police Department. She gave the
officers her house key and the paperwork to serve Smith. Officer Katherine Goebel went
with another officer to D.S.'s apartment at approximately 8 p.m. on October 21, 2015.
Smith was under the influence of alcohol and argumentative when she served him. He
took about 15 to 20 minutes to gather his things. He called S.R. to pick him up.
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S.R., had known Smith since she was 14. She took Smith to her house so he could
make some calls. Smith acted like he did not know why D.S. had obtained a PFA and he
denied all her allegations. He messaged some people on Facebook and when he had not
been able to get a hold of anybody, he asked to stay the night. S.R. agreed to let him stay
that night only. The next day, she took him to a few places to help him find a place to
stay, but she realized he was just trying to buy marijuana.

After they returned to S.R.'s house, Smith became upset and blamed S.R. for
ruining his life. She offered to talk to D.S. and see if they could work things out. Smith
grabbed her by the back of her neck and shoved her, telling her, "you ain't makin' nothin'
better, in fact, you're gonna put your shoes on, you're gonna go beat her ass. I can at least
get some enjoyment out of all of this." When she refused, he choked her, pinning her
against her dresser for 5 or 6 seconds. As he held her by the throat, he told S.R. that he
was not going anywhere now that he finally had her. S.R. stated she did not call police
because she knew it would only get worse if she did. Plus, Smith had taken her phone and
would not give it back.

Every day, S.R. drove Smith to D.S.'s apartment complex. He claimed he needed
to get money from somebody who owed him. On October 27, 2015, as she drove through
the lot, Smith, who had a glass full of liquor, "flipped out", and spilled the alcohol on the
floorboard and on himself. She tried handing him something to wipe off with, but he had
gotten out of the car and was cussing at her. He broke the rain guard off her passenger
window and threw it straight through the car, grazing S.R.'s eye. He walked around to the
driver's side, reached through the open window, and slammed S.R.'s head against the side
of the vehicle. Smith said something like "you need to park your little ass over there or
leave" and so she left. As she drove off, her vision started getting "fuzzy" so she pulled
into a parking lot to check her eye and find her phone. When she looked up, Smith was
walking toward the vehicle and he looked angry. He grabbed her head again and
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slammed it against the side of the vehicle. He told her she needed to start listening and
know her role. Smith got back into the passenger seat and told her to go home. S.R. told
Smith he had to leave. He agreed to get his things and find somewhere else to stay.

On the way home, she pulled in behind a police car and tried to stay close. She
told Smith that it might have been best to call police and have an officer present at the
house to make sure everything went smoothly. Smith did not want police involved and
she knew something bad was going to happen. S.R. then drove into the Wendy's parking
lot and tried to go inside. He grabbed her by the arm and forced her back into the car. He
told her to calm down and just go home. He assured her there would be no problems.

When they arrived at S.R.'s home, she asked him to stay in the car. As she
unlocked the door, Smith flung the door open, shoved her into the house, took her keys,
and slammed the door behind them. S.R. threatened to call 911, but Smith would not
allow it. He smacked the phone out of her hand and every time she tried to leave, he
grabbed her by the hair to keep her in the house. Then Smith began beating her. He
knocked her to the floor and punched her repeatedly on the side of her head. S.R.
testified:

"He's standing over me, just whaling on me. My face was like the main part, my head and
my face and my throat were the main parts that he was going after, it was just blow after
blow after blow to my head, my face, punching me over and over again, choking me until
that went on for I couldn't tell you how long. I begged for him to stop and – he wasn't
having it. And I was like, something is seriously wrong, please stop, like, I need medical
attention now, like something is really, really wrong. And he was like – just wouldn't
stop, he just kept just blow after blow . . .".

At one point, Smith grabbed S.R. by the throat with one hand as he punched her
with the other. He choked her to the point she could not breathe and she lost
consciousness. When she woke up, she was on the floor and confused. Her head was
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throbbing, her eyes were swelling, and her nose hurt. When she went to the bathroom to
see the damage, Smith followed behind her. She asked him why he was doing that to her
and he told her "you just don't know when to stop, you need to shut your fuckin' mouth . . .
you'll learn your role." She sat on the couch and asked him for medical treatment. He told
her that neither of them were leaving.

S.R. asked Smith to take her to her mother's house. He grabbed her from behind,
threw her on the couch, and began beating her again. He choked her again to the point
she lost consciousness. When she awoke, Smith continued beating her until she lost
consciousness again. S.R. stated that although the violence lasted only minutes, it felt like
hours.

When Smith stopped, S.R. begged him for hours to let her get medical treatment
or at least go to her mother's house. Smith refused because he knew the police would get
involved. At one point, he professed his love for her, admitting that he had been in love
with her for years. He told her, "now that he had [S.R.], he wasn't letting [her] go."

Smith wanted her to go to her bedroom, but she was afraid of what might happen
if she did. She finally went, hoping that Smith would fall asleep and she could escape.
She put her body pillow between them and turned her back to him. As she laid on the
bed, she cried, thinking she was dying. He continued telling her how much he loved her
and said, "oh, my God, I wanna make love to you so bad right now." While he removed
her clothing, she cried and repeatedly begged him, "don't do this." He shushed her and
told her it would be okay and that he loved her. She never consented to having sex with
Smith. After all that had occurred that evening, she did not have the strength to fight him
off. Smith penetrated her vagina with his penis. After he ejaculated, he got up and got a
washcloth to clean her up.

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The next morning, Smith still refused to allow her to seek medical treatment,
repeating that neither of them were going anywhere. He insisted that he loved her and he
would never let her go. He was going to nurse her back to health so he could feel better
about what he had done. Smith told S.R. that he was going to kill D.S. and he needed a
small blunt object.

S.R. was finally able to run out of the house. She ran to the next block, but her
eyes were so swollen she could not see. Smith drove up in her car and agreed to take her
to her mother's house. He dropped her off and told her she better be ready in 45 minutes.
Her mother called the police and took her to the hospital.

After Smith dropped off S.R., he sideswiped Pheasant Weber's vehicle as she was
waiting to turn, damaging her back bumper and wheel. Repairs cost $3,500. Smith
continued driving after he struck Weber's vehicle and she followed while she called 911.
Smith got out of S.R.'s vehicle and attempted to open Weber's driver's side door and
when he could not, he hit her window and windshield. By the time police arrived, Smith
was gone.

That evening, T.G. was home with D.S. and a friend. He heard loud music coming
from a vehicle in front of the apartment. T.G. saw Smith in the car. Smith pointed his
fingers like a gun toward T.G. and the apartment. T.G. yelled to D.S. to call 911 because
he perceived the gun-like gesture as a threat. Smith drove away but returned and drove
into the parking lot—getting closer to the apartment and looking up at their balcony.
Three police vehicles entered the lot. Smith drove around the parking lot and crashed
S.R.'s vehicle before running on foot. Police tased Smith and arrested him.

On November 2, 2015, the State charged Smith with aggravated kidnapping, rape,
two counts of aggravated battery, violation of a protective order, two counts of criminal
threat, and criminal damage to property in case number 15CR3128 for the incidents that
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occurred after Smith was removed from D.S.'s house on October 21, 2015. Police did not
learn of Smith's criminal behaviors toward D.S. until she spoke with a detective at the
preliminary hearing. Because the information became available at the preliminary
hearing, rather than amending the charges, the State filed a second case against Smith for
the incidents that occurred while he was living with D.S. On December 28, 2015, the
State filed case number 15CR3717, alleging Smith committed aggravated battery, two
counts of criminal threat, and cruelty to animals.

On October 14, 2016, the State moved to consolidate the two cases or, in the
alternative, to admit evidence of prior crimes or bad acts under K.S.A. 2017 Supp. 60-
455. The State contended that all of the offenses were of the same general character as
Smith "controlled [his victims], beat them, choked them, forcefully had sex with them,
threatened to kill them, refused to let them leave their homes, and when they asked him to
leave he became violent with them." The State also asserted that the crimes were based
on two or more transactions constituting parts of a common scheme or plan, as permitted
for joinder under K.S.A. 22-3202(1).

Smith argued against consolidation because the acts were separate acts with
different victims at separate times. He contended the State was attempting to use the
behaviors in one case as evidence of Smith's propensity to commit the offenses in the
other case.

The district court granted the State's motion for consolidation, finding that the
offenses were very similar in nature. The court noted that under K.S.A. 2017 Supp. 60-
455(c) and (d), the Kansas Legislature opened the door to evidence of prior sex offenses
when a defendant is charged with a sex offense. Such evidence can be considered for its
bearing on any other matter to which it is relevant or probative. The court noted that with
domestic violence and rape allegations, the evidence deals with the relationship as well.
Not only can the victims testify to prior occurrences to show the relationship of the
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parties, but anyone else can testify to acts perpetrated against them under K.S.A. 2017
Supp. 60-455(d). The court reasoned that if the permissible 60-455 evidence were
presented in one case, and evidence of the other case was presented to the jurors, who
then used that information in deciding the verdict, the State might be presented with a
double jeopardy issue.

The district court conducted a five-day jury trial with the above facts. After the
lunch break on the second day of trial, Juror 12 reported she had been in the elevator with
some of the State's witnesses. Juror 12 said she heard somebody say, "shh, shh, shh, don't
say anything, be quiet." She reported the incident because it made her a little nervous and
she wanted to make sure she had not done anything wrong. Neither the State nor Smith
expressed any concern for Juror 12 remaining on the jury.

In the morning on the third day of trial, the district court called Juror 12 in because
after jurors had been released the previous day, she told the court's aide that she had some
anxiety or fear that the victims or the victims' families were going to follow her home or
there would be some problems. The State requested removal based on that statement
alone. Juror 12 stated:

"Well, we all park in the same parking garage, I guess I was just feeling uncomfortable
yesterday with that so. I'm okay now . . . . It's nothing . . . there was nothing said . . . I
guess it was just as I get older things bother me more, that didn't bother me before. So I'm
okay."

The district court expressed an overriding concern that, as a deciding juror, Juror 12
might not decide only on the evidence, uninfluenced by any personal experiences, biases,
personal views or any other factor. The State questioned Juror 12:

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"[State]: Do you still feel that if I prove this case beyond a reasonable doubt, not what
your verdict would be or where you're leaning, that you could enter an appropriate verdict
of guilt if the case is proven to you beyond a reasonable doubt?
"[Juror 12]: If all the evidence and everything from everything, could I make an accurate
decision, is that what you're –
"[State]: If it's proven.
"[Juror 12]: Is that what the question is?
"[State]: The question, just like we asked before, before in jury selection, if you are
convinced beyond a reasonable doubt of the defendant's guilt can you follow the law and
vote guilty?
"[Juror 12]: Yes, I can do what I need to do with everything presented, I can do what I
need to do once everything is laid on the table and all of us discussing the decision, yes."

Smith asked if the victims took any actions, made any looks or did anything that
made Juror 12 concerned. She stated the victim looked straight at her when the victim
took the stand but testified that none of these things would affect her ability to be fair to
the State and Smith. Before taking the issue under advisement, the district court noted
that even though Juror 12 ultimately answered the questions correctly, it remained
concerned that she hesitated before answering whether she could enter a guilty verdict if
the State proved Smith's guilt beyond a reasonable doubt. The court further expressed
concern that her answer was indirect and her concerns were irrational.

The following morning, the State proffered the information provided by the victim
witness coordinator who was escorting the witnesses in the elevator when Juror 12 rode
in the elevator with them. The coordinator stated that before entering the elevator, she
told the witnesses to be quiet but nobody said, "oh, shit, oh, shit, oh, shit" as reported by
Juror 12. The coordinator contended that nobody spoke a word in the elevator.

The district court expressed significant concerns about Juror 12's ability to be a
fair judge in the case. It noted her perception of what happened in the elevator did not
match that of the coordinator. The court found it concerning that she was susceptible to
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misperceiving things as threatening or intimidating when that was not the reality. The
court expressed further concern that Juror 12 had no basis for her fear of the victim, as
she never indicated she felt like the victims were following her around or that they made
comments to her. The court pointed out that witnesses are supposed to look at the jurors
and tell them their story. The court noted that when the State specifically asked about
Juror 12's ability to render a guilty verdict, she hesitated both times "for an extended
period of time and some awkward silence. And then her response was evasive, something
to the effect that she'll look at the evidence and you know, based on that render a verdict."
As a result, the court removed Juror 12 and sat an alternate juror.

The jury found Smith guilty of criminal threat to D.S. and T.G., criminal threat to
D.S., aggravated kidnapping, rape, aggravated battery against S.R., violation of a
protection order, criminal threat to T.G., and criminal damage to property. The district
court sentenced Smith to the high box number for each crime of conviction, with each
sentence to run consecutively. Smith's total sentence for both cases was 899 months in
the custody of the Kansas Department of Corrections and 12 months in county jail with
lifetime postrelease supervision.

Smith appeals.

Jury Nullification

Smith contends the district court undermined the jury's inherent right of jury
nullification by instructing the jurors to consider lesser included offenses sequentially
rather than simultaneously with the greater offenses and by instructing the jurors that they
"must" follow the law and that it was their "duty" to do so.

During the jury instruction conference, Smith stated that the instructions were the
result of consultation and informal meetings between counsel and the district court. The
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instructions complied with requests he made and he had no objection to the jury
instructions as prepared.

When analyzing jury instruction issues, an appellate court follows a three-step
process. First, we must determine whether we can or should review the issue, i.e.,
whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal. State v. McLinn, 307 Kan. 307, 318, 409 P.3d 1 (2018). If a party fails to object to
an instruction, we evaluate whether the instruction was a clear error. State v. Betancourt,
299 Kan. 131, 135, 322 P.3d 353 (2014). Because Smith failed to preserve the issue, the
court can review the issue, but the analysis of the next two steps is altered to reflect the
failure to preserve.

Second, we consider whether the instructions were legally and factually
appropriate, using an unlimited review of the entire record. McLinn, 307 Kan. at 318. If
the instructions were legally and factually appropriate, no error exists.

Finally, we must assess whether the error requires reversal. 307 Kan. at 318.
Smith's failure to preserve the jury instruction issue affects our reversibility inquiry in the
third step. K.S.A. 2017 Supp. 22-3414(3). We apply a clear error standard and will only
reverse the district court if an error occurred and we are firmly convinced that the jury
would have reached a different verdict if the instruction error had not occurred. The party
claiming error has the burden to demonstrate the necessary prejudice. 307 Kan. at 318.

Smith argues the district court impermissibly prohibited the jury from exercising
jury nullification, essentially challenging the legal appropriateness of the instructions.
Jury nullification occurs when the jury deliberately rejects the evidence or refuses to
apply the law to either send a message about a social issue or because the legal results are
contrary to the jurors' sense of justice, morality, or fairness. Silvers v. State, 38 Kan. App.
2d 886, 888, 173 P.3d 1167 (2008). "[C]riminal defendants are not entitled to have the
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jury instructed on jury nullification, but the jurors in a criminal case have the clear ability
to disregard both the rules of law and the evidence in order to acquit a defendant.
[Citation omitted]." 38 Kan. App. 2d at 890.

First, Smith challenges the sequential consideration of the lesser included offenses,
contending that the offenses should be considered simultaneously. The district court
prefaced each lesser included offense instruction with "If you do not agree that the
defendant is guilty of [the greater offense] you should then consider the lesser included
offense of [lesser offense]." Then, he challenges the instructions as containing mandatory
language, disallowing the jurors to disregard the rules of law and exercise the right of
nullification. The district court instructed the jury: "[I]t is your duty to consider and
follow all of the instructions" and "[y]our verdict must be founded entirely upon the
evidence admitted and the law as given in these instructions."

Sequential consideration of lesser included offenses is legally appropriate. Under
K.S.A. 2017 Supp. 22-3414(3), in cases in which some evidence would reasonably justify
a conviction of a lesser included crime, the district court shall instruct the jury as to the
crime charged and any lesser included crimes. The Kansas Supreme Court has held
sequential consideration of lesser included offenses in descending order of severity
promotes an orderly method for consideration. State v. Parker, 301 Kan. 556, 561, 344
P.3d 363 (2015) (citing State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 [1979]). In
Trujillo, the Supreme Court wrote, "As a matter of practice a trial court should instruct on
lesser included offenses in the order of severity beginning with the offense with the most
severe penalty." 225 Kan. at 324.

In Parker, the Supreme Court rejected the assertion that "if you cannot agree that
the defendant is guilty" coerced the jury into returning a guilty verdict for the more
severe charge. 301 Kan. at 562 (citing State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301
[1982]).
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"The words, 'if you cannot agree' when used to preface an instruction on a lesser charge
are not coercive and do not require the members of a jury to unanimously find the
accused innocent of the greater charge before proceeding to consider a lesser charge. The
words 'if you cannot agree' presuppose less than a unanimous decision and no inference
arises that an acquittal of the greater charge is required before considering the lesser."
231 Kan. at 661.

Therefore, instructing the jurors to consider the lesser included offenses sequentially in
descending order of severity is legally appropriate. The district court did not prevent the
jury from exercising its right of jury nullification.

Smith next contends the district court erred and prohibited the jurors from
exercising jury nullification by instructing them that it was their "duty to consider and
follow all of the instructions" and their "verdict must be founded entirely upon the
evidence admitted and the law as given in these instructions." He argues that by telling
the jurors they must base their determination on evidence and law provided, the court
basically told them they cannot use their sympathies and notions of right and wrong, as
required for jury nullification.

The instructions given in this case mirrored the Pattern Instructions for Kansas.
PIK Crim. 4th 51.010 (2017 Supp.) and PIK Crim. 4th 68.010 (2012 Supp.) Using the
PIK instructions is not mandatory, but is strongly recommended because they have been
developed by a knowledgeable committee to bring about accuracy, clarity, and
uniformity in jury instructions. State v. Allen, 52 Kan. App. 2d 729, 733-34, 372 P.3d 432
(2016) rev. denied 306 Kan. 1320 (2017). In State v. McClanahan, 212 Kan. 208, 216,
510 P.2d 153 (1973), the court wrote, "The jury must be directed to apply the rules of law
to the evidence even though it must do so in the face of public outcry and indignation." In
State v. Naputi, 293 Kan. 55, 66-67, 260 P.3d 86 (2011), the court wrote, "It is not the
role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to
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instruct the jury that it may ignore the rule of law, no matter how draconian it might be."
Directing jurors to base their verdict on admitted evidence and the law as instructed
coincides with the jurors' oath. K.S.A. 2017 Supp. 60-247.

Smith also asserts that in State v. Smith-Parker, 301 Kan. 132, Syl. ¶ 6, 340 P.3d
485 (2014), the court found that a jury instruction telling the jury it "must" or "will" enter
a verdict is too close to directing a verdict for the State. The statement, when removed
from its context, appears to be a broad rule covering all jury instructions. But the issue in
Smith-Parker was not a matter of using "must" or "will" anywhere in the jury
instructions, it was with regard to the burden of proof instruction where use of such
language prevented the jury from making any other determination. The jury instruction in
question read, "If you do not have a reasonable doubt from all the evidence that the State
has proven [charged offense or lesser included offenses], then you will enter a verdict of
guilty." 301 Kan. at 163. The court held that instructing jurors to enter a guilty verdict
was akin to directing a verdict for the State. However, PIK Crim. 4th 51.010 (2017
Supp.), which the district court here read to the jurors, reads, "If you have no reasonable
doubt as to the truth of each of the claims required to be proved by the State, you should
find the defendant guilty." Kansas courts have consistently found the use of "should"
"'does not upset the balance between encouraging jury nullification and forbidding it . . . .
[U]nlike the words must, shall, and will, the word should does not express a mandatory,
unyielding duty or obligation; instead, it merely denotes the proper course of action and
encourages following the advised path.' [Citation omitted.]" Allen, 52 Kan. App. 2d at
735. Here, the instructions the district court provided to the jury were legally appropriate.
The court did not prevent the jurors from exercising their right of jury nullification.

Because the jury instructions were legally and factually appropriate, no error
exists. We need not analyze reversibility.

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Dismissal of Juror 12

Smith further contends the district court erred in dismissing Juror 12 because the
court lacked reasonable cause and she testified that she could be fair and impartial. Smith
acknowledges that if we determine the district court abused its discretion, he has the
burden of showing that his substantial rights were prejudiced. However, Smith asserts
that because he claims a statutory error, the State, as the party benefitting from the error,
should persuade the court that there was no reasonable probability that the error affected
the trial's outcome in light of the entire record.

We review a district court's decision to discharge a juror and substitute an alternate
juror under an abuse of discretion standard. State v. Hilt, 307 Kan. 112, 121, 406 P.3d
905 (2017). The defendant bears the burden of showing an abuse of discretion. 307 Kan.
at 121. A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v.
Davisson, 303 Kan. 1062, 1065, 370 P.3d 423 (2016).

K.S.A. 2017 Supp. 22-3412(c), in part, reads:

"A trial judge may empanel one or more alternate or additional jurors whenever, in the
judge's discretion, the judge believes it advisable to have such jurors available to replace
jurors who, prior to the time the jury retires to consider its verdict, become or are found
to be unable to perform their duties."

It is not an abuse of discretion to replace a dismissed juror with an alternate where
reasonable cause exists. Hilt, 307 Kan. at 121-22. The defendant carries the burden of
establishing substantial prejudice before an appellate court will find that the district court
abused its discretion. State v. Martinez, 288 Kan. 443, 446, 204 P.3d 601 (2009).

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Smith does not specify whether he was challenging the district court's discretion as
arbitrary, fanciful, or unreasonable; based on error of fact; or based on error of law. He
recites the facts of the case and concludes that because Juror 12 testified that she could
remain fair and impartial and the interaction in the elevator would not influence her
deliberations, the court had no basis for her removal. Because Smith argues that the
court's findings were contrary to Juror 12's testimony, he seems to be challenging the
district court's determination as arbitrary, fanciful, or unreasonable. A district court acts
arbitrarily, fancifully, or unreasonably when it adopts a view that no reasonable person
would adopt. Davisson, 303 Kan. at 1065.

Smith argues the district court lacked reasonable cause to dismiss Juror 12 because
she testified that the elevator encounter would not have affected her ability to fulfill her
duties as a juror. But, despite what she said, the court had "significant concerns" about
Juror 12's ability to be a fair judge in the case. The court was concerned about her
perception of what happened in the elevator. She told the court's aide that somebody in
the elevator said, "oh, shit, oh, shit, oh, shit." However, the victim advocate recounted
that before she and the witnesses entered the elevator, she told the witnesses to be quiet
and nobody spoke a word in the elevator. The court noted that this "raises concerns about
[Juror 12's] perception or just that she appears to be very susceptible to misperceiving
things as intimidating or threatening or uncomfortable, when that's not the reality."

The district court further addressed its concern that Juror 12 might tend to develop
unreasonable fears. Specifically, she was afraid that the victims or their families would
follow her home. The court noted that there was no basis for this fear, considering the
victims had never followed her around or made comments to her. Her only reason had
been that everybody parked in the same parking garage and she lived in the same part of
Sedgwick County as the victims.

18

Additionally, Juror 12 feared one of the victims because she had looked at Juror
12 when the victim took the stand. The court noted that the victim did exactly what she
was supposed to because witnesses testify to the jurors. The court was concerned that
Juror 12 was susceptible to fears that are not associated with facts and are not reasonable.
Though the fears were specific to the victim, the court stated, "this raises a whole bunch
of concerns, one, is she gonna start thinking this about the defendant. Well, he looked at
me or I'm afraid he's gonna follow me . . . I'm gonna find him guilty . . . because I'm
fearful of him." The court noted that even if she remained fearful of only the victim, her
fear could influence her to render a guilty finding, contrary to evidence, to prevent the
victims from going after her.

The district court noted that both times she was specifically asked whether she
could render a guilty verdict if the State met its burden of proof, the juror hesitated "for
an extended period of time and some awkward silence." And when she answered, her
response was evasive. The court cited United States v. Blitch, 622 F.3d 658, 667 (7th Cir.
2010) (citing Skilling v. United States, 561 U.S. 358, 386, 130 S. Ct. 2896, 177 L. Ed. 2d
619 [2010]), stating, the district court appraises the "juror's inflection, sincerity,
demeanor, candor, body language and apprehension of duty." With that, the district court
stated, "In looking at her behavior, her demeanor, her facial expressions, her tone, the
way she responded, all of that, are things I take into consideration, as well. . . . And I'm
going to dismiss [Juror 12]."

In Skilling, the United States Supreme Court explained:

"Reviewing courts are properly resistant to second-guessing the trial judge's estimation of
a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors
impossible to capture fully in the record – among them, the prospective juror's inflection,
sincerity, demeanor, candor, body language, and apprehension of duty. In contrast to the
cold transcript received by the appellate court, the in-the-moment voir dire affords the
19

trial court a more intimate and immediate basis for assessing a venire member's fitness
for jury service." 561 U.S. at 386-87.

In Skilling, the Court reviews the measures the district court took to ensure against
prejudice in the jury and notes several times that the district court did not just take
potential jurors' at their word, but explored the issues further. 561 U.S. at 394-95. The
Court emphasized the importance of the district court's face-to-face questioning, which
provided the opportunity to gauge the demeanor and credibility of the jurors. 561 U.S. at
395.

Here, while several of the district court's concerns are apparent from the
transcripts, the court also described some of the factors it considered that we cannot glean
from the record. The district court's observations along with testimony presented supports
its conclusion that despite Juror 12's claim of impartiality, concerns of her ability to fulfill
her duties as a juror remained. The district court did not err in dismissing Juror 12.

Even if we determined the removal of Juror 12 was in error, before we will find
the district court abused its discretion, Smith must establish substantial prejudice.
However, he asserts he should not have to prove substantial prejudice, instead, we should
apply the harmless error standard. In which case, the State, as the party benefitting from
the district court's determination, would have to prove the error did not affect the
outcome of the trial. His argument fails because it is well established that the defendant
bears the burden of demonstrating substantial prejudice. Martinez, 288 Kan. at 446. We
are duty bound to follow Kansas Supreme Court precedent, absent some indication the
Supreme Court is departing from its previous position. State v. Meyer, 51 Kan. App. 2d
1066, 1072, 360 P.3d 467 (2015). Smith provided no indication the Supreme Court is
departing from this standard. Therefore, he has failed to establish his burden that the
dismissal of Juror 12 prejudiced him. The district court did not err.

20

Consolidation of Cases 15CR3128 and 15CR2717

Next, Smith contends the consolidation of the two cases against him was highly
prejudicial and permitted the State to paint Smith as a repeat offender although the cases
involved separate acts, separate victims, and occurred at different times.

The appellate court reviews potential joinder errors using a three-step analysis,
applying a different standard of review at each step. First, the court determines whether
K.S.A. 22-3202 permits joinder. Under that statute, multiple complaints against a
defendant can be tried together if the State could have brought the charges in a single
complaint. K.S.A. 22-3202(1) establishes the three conditions permitting the joining of
multiple crimes in a single complaint: (1) the charges must be of the "same or similar
character"; (2) the charges are part of the "same act or transaction"; or (3) the charges
result from "two or more acts or transactions connected together or constituting parts of a
common scheme or plan." Whether one of these conditions is satisfied is a fact-specific
inquiry, and the appellate court will review the district court's factual findings for
substantial competent evidence and the legal conclusions de novo. State v. Ritz, 305 Kan.
956, 961, 389 P.3d 969 (2017).

Second, because K.S.A. 22-3202(1) provides that "charges 'may' be joined, a
district court retains discretion to deny a joinder request even if a statutory condition is
met. We review this decision for an abuse of discretion." State v. Hurd, 298 Kan. 555,
561, 316 P.3d 696 (2013).

Finally, if an error occurred in the preceding steps, we determine whether the error
resulted in prejudice, i.e., whether the error affected a party's substantial rights. K.S.A.
2017 Supp. 60-261. State v. Hurd, 298 Kan. at 561.

21

Smith contends that although the crimes were similar in that they could both fall
under the general domestic violence category, the underlying facts were markedly
different. He noted that in Smith-Parker, the Supreme Court held that crimes are not
automatically of the same or similar character simply because they are similar to each
other. 301 Kan. at 157-58. Smith argues that the high level of violence involved in the
crimes against S.R. prevent consolidation for the charges in the two cases.

In his brief, Smith does not appear to challenge the district court's factual findings,
but challenges only the court's legal conclusion. The Kansas Supreme Court has
previously found joinder appropriate when the offenses in separate complaints are "'of the
same general character, require the same mode of trial and the same kind of evidence,
and occur in the same jurisdiction.'" State v. Ritz, 305 Kan. at 962 (quoting State v.
Crawford, 255 Kan. 47, 53, 872 P.2d 293 [1994]). The Supreme Court warned against
relying solely on generalities when considering joinder as joinder would not be
appropriate when "'there would inevitably be some jumbling of the two cases at the trial,
which would tend to prevent that concentrated consideration of each case which is
indispensable in matters of such gravity.'" 305 Kan. at 963 (quoting State v. Barksdale,
266 Kan. 498, 508, 973 P.2d 165 [1999]). The Kansas Supreme Court specifically
analyzed the "'same or similar character'" condition of joinder, noting that earlier Kansas
cases required multiple commonalities, not merely similar classification of charges. 305
Kan. at 963 (quoting Smith-Parker, 301 Kan. at 157.)

Here, the two cases both involve criminal threat and aggravated battery. Smith
contends the two separate situations are analogous to those in Smith-Parker, in which the
district court erred in consolidating Smith-Parker's two murder charges. In one homicide,
Smith-Parker targeted the victim in a burglary to steal drugs and the other homicide was
the result of an argument between two good friends. Smith argues that like the offense in
Smith-Parker, his offenses were only relatable in that they fell into the category of
domestic violence. He asserts the level of violence involved in the two cases disallow
22

consolidation. The State alleged that he violently beat and choked S.R. to the point she
lost consciousness, raped her, and she sustained injuries to her neck, chin, and eyes;
whereas, the State only alleged he slapped D.S. The crimes against S.R. included
aggravated kidnapping, a level 1 person felony; rape, a level 1 person felony; and
aggravated battery, a level 4 person felony. However, the crimes against D.S. included
aggravated battery, a level 7 person felony and two counts of criminal threat, level 9
person felonies. He claims the district court failed to look at the facts of each situation
and so erred in consolidating the cases.

However, Smith's case appears to be more analogous to the offenses in Ritz, in
which the State charged Ritz with multiple offenses stemming from two incidents that
both included fleeing or attempting to elude an officer, theft, and driving while a habitual
violator. In Ritz, the district court found that in both situations, Ritz fled because he
panicked when police approached him and his flight took place in residential
neighborhoods. Both incidents resulted with Ritz crashing. The district court additionally
found the cases required the same mode of trial and would result in the same punishment.
The significant difference between the two separate incidents was that in the second, Ritz
collided with another vehicle, killing the driver. The State charged Ritz with first-degree
felony murder. Despite the disparity between the severity of charges, the court recognized
the similarity of facts leading up to the murder that were sufficiently similar to warrant
consolidation.

Here, Smith operated similarly in both situations. He asked to stay with the
victims while he figured out his living arrangements, controlled their access to their cell
phones quickly, and controlled their use of their cars. In both situations, his victims asked
him repeatedly to leave but he refused and threatened them with violence if they called
the police. In both situations, Smith began by grabbing and shoving the victims, grabbing
them around the throat without squeezing, while pinning them and leaving them unable to
move. Smith became verbally abusive very quickly, calling the women names and
23

threatening them with further violence if they did not comply. With both victims, he
insisted that because he had them he would not let them go. Smith operated the same in
taking control over the women's lives and forcing them to comply out of fear. Also, D.S.
obtained the PFA and had Smith removed from her residence two days after he punched
her. He went straight to S.R.'s residence and became violent toward her the following
day. The incidents of violence were mere days apart.

Although there was a significant difference in the level of violence, there was a
significant factor that may have played a role—support from others. Even with T.G.'s
presence, Smith continued his abusive behaviors. But when he punched D.S., T.G. ran to
her rescue and they developed a plan to get Smith out of their lives. D.S. obtained the
PFA because her coworkers expressed concern and assisted her in getting to the
courthouse to file the application. Even though she did not have access to her phone or
car, she had access to others who helped her. However, S.R. did not have anybody in her
home to help her. She did not have access to her phone and could not reach out to
anybody without Smith monitoring. The difference in the level of violence is not
sufficient to disallow consolidation. If anything, it shows a continuation of behaviors in
an environment he could control even more. The district court did not err in consolidating
the cases as they were of the same or similar character.

A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it
is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).
The burden of demonstrating error is on the party alleging the abuse. State v. Burnett, 300
Kan. 419, 449, 329 P.3d 1169 (2014).

As the district court noted, had D.S. informed the police of Smith's offenses
against her prior to the preliminary hearing for 15CR3128, the State would have charged
all offenses in a single complaint. The only reason the State charged the acts separately
24

was because the parties were prepared and witnesses were present to move forward with
the preliminary hearing for the offenses charged in 15CR3128.

Additionally, as the district court pointed out, because one of the criminal threat
charges in 15CR3128 and the violation of the PFA both stem from the offenses charged
in 15CR3717, if the court had not consolidated the cases, the State likely would have
presented evidence in either trial that would have presented a double jeopardy issue in the
second trial. Under K.S.A. 2017 Supp. 21-5110(b)(1) [formerly K.S.A. 21-3108(2)(a)],
subsequent prosecution of an uncharged crime is barred if "'(1) The prior prosecution
must have resulted in either a conviction or an acquittal; (2) evidence of the present crime
must have been introduced in the prior prosecution; and (3) the present crime must be one
which could have been charged as an additional count in the prior case.' [Citations
omitted.]" State v. Jordan, 303 Kan. 1017, 1020, 370 P.3d 417 (2016).

Smith contends the prejudicial impact of the domestic violence against D.S. could
only be used to show that Smith was a serial abuser, leading the jury to convict him on
one because of the evidence of both. Kansas courts have rejected arguments that jurors
use evidence of one to prove the other when jurors have been instructed to consider each
charge separately on the evidence and law applicable to it. State v. Cruz, 297 Kan. 1048,
1058, 307 P.3d 199 (2013). The district court here provided the jurors with such an
instruction. "Appellate courts have ascribed to the hypothetical presumption that such an
instruction negates the inherently prejudicial effect of trying a person on multiple
counts." Cruz, 297 Kan. at 1058 (citing State v. Race, 293 Kan. 69, 77, 259 P.3d 707
[2011]; State v. Gaither, 283 Kan. 671, 687, 156 P.3d 602 [2007]).

The jury found Smith guilty of eight offenses and not guilty of four offenses.
Logically, if the jury improperly used the evidence of one offense as evidence of the
other, the jury would have convicted Smith of the aggravated battery against D.S. and
both counts of aggravated battery against S.R. However, the jury only found Smith guilty
25

of the more severe aggravated battery against S.R. The jury found him not guilty of
aggravated battery by strangulation against S.R. and the charged aggravated battery
against D.S. Smith has failed to meet his burden of establishing that the district court
abused its discretion in consolidating the two cases for trial.

Cumulative Error

The test here is whether the totality of the circumstances establishes that the
cumulative errors substantially prejudiced the defendant and denied him a fair trial. In
assessing the cumulative effect of errors during the trial, the appellate court examines the
errors in the context of the entire record, considering how the trial judge 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 State v. Walker, 304 Kan. 441, 457-58, 372 P.3d 1147 (2016).

We will find no cumulative error when the record fails to support the errors
defendant raises on appeal. Marshall, 303 Kan. at 451.

Smith contends that the errors raised on appeal in this case built on each other to
prejudice him and deny him a fair trial. However, the district court did not err in any of
the issues raised. Therefore, Smith has failed to show that he is entitled to relief.

Affirmed.