State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 114,245

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KYLE R. WILLIAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed February 10,
2017. Affirmed in part, reversed in part, and remanded with directions.

Randall L. Hodgkinson, 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., ARNOLD-BURGER and BRUNS, JJ.

Per Curiam: Kyle R. Williams appeals his convictions after a jury trial of two
counts of theft. Williams argues he was improperly convicted of two mutually exclusive
charges and asks this court to reverse both convictions and remand for a new trial on only
one of the charges. Williams also claims the district court erred in refusing to grant a
mistrial after a potential juror commented on the honesty of two of the State's witnesses
during voir dire and in failing to issue a jury instruction on the lesser included offense of
misdemeanor theft. Finally, Williams claims cumulative errors require reversal in this
case. For the reasons stated below, we reverse the conviction for felony theft as charged
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in Count 2 of the amended complaint but otherwise affirm the decisions made by the
district court.

FACTS

In June 2014, Peris Wanjiku drove her 1997 green Honda Accord to go shopping.
When she walked out to the parking lot after she was finished, Wanjiku could not find the
car. After searching the parking lot for approximately 15 minutes, Wanjiku called the
police to report that her car was stolen.

That same afternoon, Detective Bart Evans of the Derby Police Department was
patrolling a Derby neighborhood. Evans saw an unfamiliar green Honda Accord backed
into the driveway of a home in a neighborhood in which he patrolled frequently; he also
observed several people, including Williams, standing around the car. Because he could
not see the license plate, Evans parked at a nearby business and waited for the car to
leave the driveway. While he was waiting, Evans observed two women drive up to the
house in a Chevy Yukon, and then he saw Williams drive the Accord out of the driveway
followed by the women in the Yukon. Evans was able to observe the Accord's license
plate number and ran a records check, but the Accord had not yet been reported stolen.
Evans then watched as Williams parked the Accord on the side of the road and get into
the Yukon.

As Evans was driving back toward the police station, he heard a 911 broadcast
advising officers to be on the lookout for a stolen green Honda with a license plate
number matching the Accord that Evans had just seen. Evans drove back to where the
Accord was parked and called for backup. Shortly after Master Police Officer Chad
Carson arrived on the scene, the officers saw Williams driving towards them in a vehicle
that was pulling a flatbed trailer. Carson stopped the vehicle and placed Williams in
custody. Carson conducted a pat down, during which he found several car keys on a key
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ring in Williams' pocket that appeared to have been shaved down. The officers
recognized keys that have been shaved down as a common item used to open a car for
which a person does not have a key. One of the keys on the key ring was identified as the
spare key to the Accord.

Williams was arrested and interviewed at the Derby police station, where he
denied stealing the car. Williams initially was charged with a single count of felony theft
under the theory that he unlawfully obtained control over stolen property. The State
subsequently amended its complaint to add an alternative count of felony theft alleging
that Williams stole the Accord.

At trial, Williams' defense was that he had no knowledge or participation in
stealing the Accord but instead simply moved it from his friend's driveway to park it
down the street. Williams' girlfriend, Destiny Taylor, testified that they were cleaning up
her rental properties when a friend called and told them that a suspicious car had been
parked in the driveway of her house. When they got to the house, Williams agreed to
move the car and park it down the street. Taylor testified that after Williams moved the
car, they went to Williams' parents' house to retrieve a flatbed trailer to finish cleaning
out the rental properties.

The jury convicted Williams on both counts of felony theft. At the sentencing
hearing, defense counsel argued that the two counts of felony theft were multiplicitous
and asked the court to dismiss Count 2. The court ultimately sentenced Williams only on
Count 1, imposing a 10-month prison sentence. The court opted not to dismiss Count 2
but rather held it "in abeyance" and did not sentence Williams on that count.




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ANALYSIS

1. Multiplicity

Williams contends the jury improperly convicted him of two mutually exclusive
counts on the same set of facts by returning a guilty verdict on both alternative theories of
theft and possessing stolen property. As a remedy, Williams asks this court to reverse
both of the convictions and remand for a new trial on only one count. The State argues
that Williams was properly charged with two theories of felony theft—in the
alternative—and suffered no prejudice because the court entered judgment and imposed a
sentence for the conviction on Count 1 but held the conviction on Count 2 in abeyance
and did not impose any sentence.

Williams makes his multiplicity argument for the first time on appeal. Generally,
an issue not properly preserved in the district court cannot be raised for the first time on
appeal. However, there is a recognized exception for issues involving purely legal
questions arising on proved or admitted facts that will be finally determinative of a case.
State v. Foster, 290 Kan. 696, 702, 233 P.3d 265 (2010). Determining whether
convictions are mutually exclusive is strictly a question of law, which this court reviews
independently without any deference to the district court. See State v. Eddy, 299 Kan. 29,
32, 321 P.3d 12 (2014). Because this issue presents a purely legal question and is
determinative of Williams' case, this court may address this issue.

K.S.A. 2015 Supp. 21-5801(a) lists five alternative acts that constitute theft. Two
of those acts are relevant here: subsection (a)(1) prohibits obtaining or exerting
unauthorized control over property or services, and subsection (a)(4) prohibits obtaining
control over stolen property or services knowing the property or services to have been
stolen by another. When the evidence might support more than one of the alternative acts,
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our Supreme Court has held that it is proper for the State to charge the defendant in the
alternative:

"Where there is a question in the mind of the prosecutor as to what the evidence
will disclose at trial, the correct procedure is to charge the defendant in the alternative
under those subsections of K.S.A. 1979 Supp. 21-3701 [now codified at K.S.A. 2015
Supp. 21-5801] which may possibly be established by the evidence. This may properly be
done under Kansas law by charging several counts in the information to provide for every
possible contingency in the evidence. By so doing, the jury may properly be instructed on
the elements necessary to establish the crime of theft under any of the subsections
charged and the defendant will have no basis to complain that he has been prejudiced in
his defense." State v. Saylor, 228 Kan. 498, 503-04, 618 P.2d 1166 (1980).

Although charged in the alternative, the different theories of theft should be
presented to the jury in separate counts. See PIK Crim. 4th 68.090 (recommending that
alternative charge instruction not be given, but rather allowing jury to enter verdict upon
each alternative; if jury returns guilty verdicts to multiple charges, trial court must accept
only the verdict as to the greater charge under doctrine of merger). When the jury
examines alternative theories as separate counts, it is possible for the jury to return
inconsistent verdicts. When this happens, however, the court may convict the defendant
of only one offense. State v. Blanchette, 35 Kan. App. 2d 686, 704, 134 P.3d 19 (2006).
In that case, the State charged Blanchette with one count of rape and, in the alternative,
one count of aggravated indecent liberties with a child. The jury found Blanchette guilty
on both counts. At sentencing, the trial court adjudged Blanchette guilty of both offenses
but declined to impose the sentence for aggravated indecent liberties with a child because
it was an alternative charge. The Court of Appeals held:

"If a defendant is charged in a complaint or information with alternative counts,
the jury is free to enter a verdict on each count. However, the defendant may be convicted
of only one offense. State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992); PIK Crim. 3d
68.09-A. Here, the trial court appeared to understand that it could not impose a sentence
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for each alternative count. Nevertheless, the trial court adjudged Blanchette guilty on
both counts, and the journal entry of judgment reflects that Blanchette has been convicted
of both crimes. As the State concedes, Blanchette's conviction of aggravated indecent
liberties with a child must be reversed." Blanchette, 35 Kan. App. 2d at 704.

Here, the State properly charged Williams in the alternative on two separate
theories of felony theft. In Count 1, the State charged Williams with unlawfully obtaining
control over stolen property; in Count 2 the State charged Williams in the alternative with
unlawfully obtaining or exerting unauthorized control over the property. The jury
instructions and verdict form were not presented in the alternative, but rather the two
alternative theories of felony theft were presented as counts one and two. Following the
jury instructions, the jury returned a guilty verdict for both counts.

At Williams' sentencing, the district court judge and the attorneys for the State and
defense discussed the inconsistency between the two alternative theories of felony theft.
The judge ultimately sentenced Williams only on Count 1 as follows:

"I find the primary crime that controls the base sentence to be Count 1, a severity 9,
nonperson, nondrug felony, placing the defendant in grid box E with a sentencing range
of 9, 10 or 11 months in prison. Upon those findings, I sentence the defendant to a term
of 10 months in the custody of the Secretary of Corrections."

Although the district court held in abeyance Williams' felony theft conviction as
charged in Count 2, the journal entry retained the conviction for both counts. As
explained above, however, a defendant may not be convicted of both offenses when the
crimes are charged in the alternative. See Blanchette, 35 Kan. App. 2d at 704; see also
State v. Garza, 290 Kan. 1021, 1036, 236 P.3d 501 (2010) ("Dixon clearly holds that a
defendant cannot be convicted of both offenses when the crimes are charged in the
alternative."). The district court understood that Williams could not be punished twice for
the same crime, as it did not sentence Williams for Count 2. But the journal entry records
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the guilty verdict for both offenses; thus, the proper remedy is to set aside the felony
conviction in Count 2. Accordingly, we reverse the conviction for felony theft as charged
in Count 2 and remand with directions to prepare a corrected journal entry and enter
judgment accordingly.

2. Mistrial

In his second issue on appeal, Williams argues that the district court erred in
denying his request for a mistrial after a potential juror commented on the credibility of
two of the State's witnesses. During voir dire, a potential juror said he was a retired
Derby police officer and had worked with two of the police officers listed as anticipated
witnesses. The potential juror worked with one of the officers for more than 10 years and
the other for a few years less. He supervised one of the officers before he retired. When
asked by the district court judge whether his relationship with the officers would
influence his judgment as a juror on the case, the potential juror stated, "I believe them to
be honest" and it "could" influence his judgment. Upon further questioning by the court
about whether he would give the officer's testimony more weight than another witness,
the potential juror stated, "I have never known them [to] not be honest." The juror was
struck for cause.

Defense counsel moved for a mistrial before the end of voir dire, arguing that the
potential juror's responses amounted to "testimony in regards to the credibility of the
witnesses." Williams argued that the juror's comments necessarily would cause the
remaining jurors to believe the police officers more credible when they testified and
therefore deprive him of an impartial jury. The district court judge denied the motion for
mistrial, noting that during voir dire there "are often responses from jury panelists that in
some way or another may be argued somehow taint the panel." The court suggested that
these issues are commonly dealt with by the attorneys on voir dire, which was not
complete at the time of the motion. Stating that there was no evidence that any prejudice
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had occurred or tainted the jury panel, the court also indicated that it would consider
issuing a limiting instruction at the close of evidence if either party so desired.

K.S.A. 22-3423(1)(c) permits the district court to declare a mistrial if prejudicial
conduct occurs during the proceedings that make it impossible for the trial to proceed
without injustice. The statute creates a two-step process: (1) The court must determine
whether there was some fundamental failure in the proceeding, and if so, (2) it must
determine whether it is possible to continue the trial without injustice. State v.
Betancourt, 299 Kan. 131, 144, 322 P.3d 353 (2014).

On appeal, the district court's denial of a motion for mistrial is reviewed using an
abuse of discretion standard. A district court abuses its discretion if its action is (1)
arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the
view adopted by the trial court; (2) is based on an error of law; or (3) is based on an error
of fact, i.e., if substantial competent evidence does not support a factual finding on which
a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292
Kan. 541, Syl. ¶¶ 2-3, 256 P.3d 801 (2011). The burden of proof is on the party alleging
that the court abused its discretion. State v. Wells, 289 Kan. 1219, 1226, 221 P.3d 561
(2009).

This court will not find that a district court abused its discretion in denying a
mistrial in the absence of substantial prejudice to the defendant. See, e.g., State v. Harris,
293 Kan. 798, 816-17, 269 P.3d 820 (2012); State v. McCorgary, 224 Kan. 677, 687, 585
P.2d 1024 (1978). Williams alleges that "the jury pool was exposed to prejudicial
information" and that those comments were "particularly prejudicial" and "especially
meaningful" given the juror's status as a retired police officer and former professional
relationship with the witnesses. But the fatal flaw in Williams' argument is that he does
not allege, let alone establish, that he suffered any substantial prejudice as a result of the
conduct at issue. Williams simply argues that the potential juror's statement "would have
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weighed in jurors' minds." This is not a sufficient showing of substantial prejudice. See
Harris, 293 Kan. at 816-17 (no showing of substantial prejudice where appellant's brief
merely "says that the juror's credentials coupled with his statements 'was likely to
prejudice the jury'").

Williams argues in the alternative that the district court should have taken curative
measures to mitigate the prejudicial effect of the potential juror's comments, such as
questioning the remaining jurors about their inclination to evaluate the veracity of
witnesses based on the opinions voiced by other jury members, or to issue an instruction
not to base credibility decisions on the comments made by other jurors. Williams fails to
point out that he did not take advantage of the curative options specifically offered to him
by the court during trial. In denying the motion for mistrial, the district court judge
advised that counsel could address the issue during voir dire and, in addition, indicated
that if either party wanted the court to instruct the remaining jurors regarding the
potentially prejudicial comments, the court would "certainly consider that appropriate."
Yet defense counsel did not mention the alleged prejudicial comments during his voir
dire, nor did he request the court to issue a general instruction to the jury pool. Williams
may not now argue that the court's failure to instruct the jury is in error. See Betancourt,
299 Kan. at 146 ("The defense did not ask for permission to conduct an examination of
the jury for prejudice and did not request an instruction directing the jury to disregard
unsworn statements by jury members.").

Furthermore, the potential jurors had ample opportunity to express any concerns
regarding their ability to be impartial during voir dire, but no juror responded. See State
v. Moore, 302 Kan. 685, 692, 357 P.3d 275 (2015) ("[D]efense counsel specifically gave
the jury pool the opportunity to discuss anything that they thought would prevent them
from acting as fair and impartial jurors, but none responded."); see also State v. Warren,
302 Kan. 601, 610, 356 P.3d 396 (2015) (no evidence that jury pool was in fact
prejudiced where no one in jury pool expressed concern when asked if there was anything
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the parties or court should know about, and defense counsel did not request individual
polling of the jury pool to investigate existence of prejudice).

The district court did not abuse its discretion in denying the motion for mistrial
based on the potential juror's comments during voir dire.

3. Lesser included instruction

Williams argues that the district court erred by failing to issue a lesser included
offense instruction regarding misdemeanor theft. Defense counsel did not request the
instruction at trial, nor did counsel object to the lack of a lesser included offense
instruction. When a jury instruction error is raised for the first time on appeal, the failure
to give a legally and factually appropriate instruction will result in reversal only if the
failure was clearly erroneous. K.S.A. 2015 Supp. 22-3414(3). To establish a clearly
erroneous instruction error, the defendant must firmly convince the court the jury would
have reached a different result without the error. State v. Williams, 295 Kan. 506, 516,
286 P.3d 195 (2012).

The distinction between felony theft and misdemeanor theft under K.S.A. 2015
Supp. 21-5801 is the value of the property: theft of property with a value of at least
$1,000 but less than $25,000 is a felony under subsection (b)(3), whereas theft of
property with a value of less than $1,000 is a class A nonperson misdemeanor under
subsection (b)(4). Misdemeanor theft is a legally appropriate lesser included offense of
felony theft. See State v. Simmons, 282 Kan. 728, 742, 148 P.3d 525 (2006).

Under K.S.A. 2015 Supp. 22-3414(3), a district court must instruct the jury on a
lesser included offense where there is some evidence that would reasonably justify a
conviction of the lesser offense. "[F]or a lesser included offense to be factually
appropriate, there must be actual evidence in the record, together with reasonable
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inferences to be drawn from that actual evidence, that would reasonably support a
conviction for the lesser crime." State v. Wade, 295 Kan. 916, 926, 287 P.3d 237 (2012).

Here, there is only evidence to support the finding of felony theft; there is no
evidence in the record that the car was valued at less than $1,000. Wanjiku expressly
testified that her car was worth at least $1,000 but less than $25,000. She stated that it
was in good working order and that she received an insurance payout for more than
$1,000 for the vehicle. An owner is qualified to express an opinion as to the value of the
items taken. See State v. Owens, 248 Kan. 273, 284-85, 807 P.2d 101 (1991).

In contrast, there is no evidence that the jury could have relied upon to find that
the car was valued at less than $1,000. Williams did not challenge Wanjiku's testimony
regarding the value of the car during the trial, nor did he present independent evidence
about the value of the car. Simply put, the misdemeanor theft instruction was not
factually appropriate. It is not necessary to give the lesser included instruction where the
value of the stolen goods is established to be over the felony limit and where there is no
evidence of a value of less than the felony limit. See State v. Robinson, 4 Kan. App. 2d
428, 429, 608 P.2d 1014 (1980). Therefore, the district court did not err in failing to give
a lesser included offense instruction.

Finally, Williams argues that a heightened standard of review must be applied
because the failure to give a lesser included offense instruction implicates his
constitutional right to a jury trial. For support, Williams cites a recent Mississippi
Supreme Court case, Harrell v. State, 134 So. 3d 266 (Miss. 2014). A panel of this court
recently dismissed the same issue in State v. Williams, No. 108,394, 2015 WL 8174299
(Kan. App. 2015) (unpublished opinion), petition for rev. filed January 4, 2016, stating
the following:

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"Williams cites a recent Mississippi Supreme Court case, Harrell v. State, 134 So. 3d 266
(Miss. 2014), but we don't find it persuasive for the point Williams is making. In Harrell,
the trial court instructed the jury on the elements of capital murder but failed to instruct
the jury on the elements of the underlying felony. Because the jury had not been
instructed on the elements of the underlying felony, it could not have decided whether the
defendant was guilty of each and every element of the crime charged, thus violating the
defendant's constitutional right to a jury trial. 134 So. 3d at 272-73, 275. Because the
deficient instruction violated the defendant's right to a jury trial, the Mississippi Supreme
Court held that 'it is always and in every case reversible error for the courts of Mississippi
to deny an accused the right to have a jury decide guilt as to each and every element.' 134
So. 3d at 275.
"That's not the case here: Williams' jury was instructed on every element of the
crime charged. Moreover, the Kansas Supreme Court has held that the failure to give a
lesser-included-offense instruction is subject to clear-error review under the standards we
have applied here, not under the harmless-error test applicable for errors of constitutional
magnitude. [Citations omitted.]" 2015 WL 8174299, at *12.

Like in Williams, we find Harrell does not require this court to analyze a
constitutional issue with a heightened standard of review. The district court did not err in
failing to give a lesser included misdemeanor theft instruction.

4. Cumulative error

When a party argues that the cumulative impact of alleged errors is so great that
they result in an unfair trial, this court aggregates all errors and, even if those errors
individually would be considered harmless, analyzes whether their cumulative effect is so
great that they collectively cannot be determined to be harmless. State v. King, 297 Kan.
955, 986, 305 P.3d 641 (2013). However, this doctrine does not apply if no error or only
one error supports reversal. See State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007).
Finding that there was only one error in this case, this court need not apply the doctrine
here; there was no cumulative error.

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Affirmed in part, reversed in part, and remanded with directions to prepare a
corrected journal entry vacating the conviction for felony theft as charged in Count 2 and
enter judgment accordingly.