text:
    STATE of Kansas, Appellee, v. Casey SMITH, Appellant.
    No. 119,262
    Court of Appeals of Kansas.
    Opinion filed July 12, 2019.
    Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.
    Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Schroeder, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Casey Smith was convicted in a jury trial of aggravated assault of a law enforcement officer for driving his truck at Officer Blake Larsen. He raises three issues in his direct appeal: (1) Whether the State introduced sufficient evidence to support his conviction; (2) whether the district court erred in failing to sua sponte give a unanimity jury instruction; and (3) whether the district court violated his constitutional rights when it imposed an aggravated grid sentence against him. Finding a flawed argument in each of these issues, we affirm in part and dismiss in part.

During the early morning hours of November 21, 2016, Overland Park Police Officer Blake Larsen was working an overnight shift. He worked out of a marked police car equipped with a siren and red and blue lights. He also wore his full police uniform including his badge.

Officer Larsen's police car had a license plate scanner that read the license plates of passing vehicles. The scanner read the plate of a Dodge Ram truck and alerted Officer Larsen that the truck was possibly stolen. Officer Larsen decided to stop the truck. He followed the truck to a residential neighborhood in Overland Park. Officer Larsen had grounds to stop the truck because of the stolen auto alert and because the driver failed to use his turn signal at one point. The driver pulled the truck into a driveway.

Officer Larsen pulled his car up to the truck, parking his police car so that it was "angled at the truck but not directly behind it." He was about 10 to 15 feet behind the truck. He briefly turned on his siren, then turned it off but left on his flashing red and blue lights.

Then, a passenger got out of the truck. Officer Larsen, who at this point was standing in the "v" between his open car door and his car, twice asked the passenger to get back in the truck. The passenger "looked back in the truck ... almost like he was having an exchange with somebody else in the vehicle, then moved away from the truck."

Immediately after the passenger moved away from the truck, the truck's driver "rapidly and violently accelerate[d] out of the driveway" in reverse. Officer Larsen took out his handgun. The truck's passenger door was still open. Larsen stepped out of the "v" between his car door and his car, so that he would not be trapped in the door of his car if the truck hit his car door. The truck's passenger door slammed into the front of the police car. At this point, Officer Larsen was concerned for his personal safety and well-being as well as the safety of the passenger. He was "concerned about either being pinned against [his] vehicle or being run over."

After the truck hit the police car, the driver finished backing out of the driveway and the truck faced Officer Larsen head on. Officer Larsen pointed his handgun at the driver. The driver looked "directly at" Officer Larsen, then ducked behind the dashboard. Officer Larsen yelled at the passenger to get down. Rapidly, the truck went into drive and "violently accelerate[d]" towards Officer Larsen. Officer Larsen was again worried about his safety, and "concerned that [he] could die that day."

As the truck's driver drove towards him, Officer Larsen fired "between five and seven rounds" at the truck as he moved back and to the left. Larsen moved out of the street and up into a yard as he fired at the truck. The truck's driver drove away from the scene.

The State charged Smith with aggravated assault of a law enforcement officer in violation of K.S.A. 2016 Supp. 21-5412(d).

The case proceeded to a jury trial. Officer Larsen testified about his account of the incident and identified Smith as the driver of the truck. A crime scene technician who processed the scene testified that the truck's windshield sustained five bullet holes. She also testified that the passenger side window and the rear driver's side window were shattered out. A forensic scientist testified that DNA found in the truck matched Smith.

The State introduced into evidence pictures of the truck, the police car, and the general scene. The State also introduced into evidence the video footage from the police car and played it for the jury.

Smith did not testify on his own behalf, but he called a forensics expert to testify about the trajectory of the bullets. Smith's expert was unable to examine the truck itself, but used pictures of the truck to conclude: "All of the shots that were fired were fired from the passenger side of the vehicle at the time of the shooting, which indicates that the officer was not in front of the vehicle during the time of the shooting."

Smith did not request a unanimity instruction in his proposed jury instructions, nor did he object to the lack of a unanimity instruction in the State's proposed jury instructions. He also did not object to the district court's given jury instructions.

The jury found Smith guilty of aggravated assault of a law enforcement officer.

The presumptive sentences for Smith's conviction were as follows: aggravated-32 months; standard-30 months; and mitigated-28 months. At the sentencing hearing, the State requested that the judge impose the aggravated sentence. The State noted that Smith had engaged in a pattern of dangerously trying to avoid police officers. The State also pointed out that he had four previous convictions for resisting arrest in the past 10 years. Smith requested the mitigated sentence. Smith stated that he did not intend to hurt Officer Larsen and that no one was hurt during this crime. Smith also asserted that this crime likely stemmed from his drug problem, which he was working to address.

The district court judge imposed the aggravated sentence. The judge reasoned that

"on the day in question, you put this officer in grave danger. And even more so, perhaps some of the innocent citizens in that neighborhood that may have been hit by a stray bullet or may have been struck by you in the car with which you drove away.
"So what I am going to do is find that I am going to sentence you to the aggravated 32 months. You will serve that time, no probation."

Smith timely appealed.

Did the State Introduce Sufficient Evidence to Support Smith's Conviction?

Smith argues that the State failed to introduce sufficient evidence to support his conviction for aggravated assault of a law enforcement officer. Thus, he argues, this court must reverse his conviction. The State disagrees, arguing that when viewed in the light most favorable to the State, the evidence introduced at trial is sufficient to support Smith's 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, resolve evidentiary conflicts, or make witness credibility determinations.' [Citation omitted.]" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

Here, the State had the burden to prove each element of aggravated assault of a law enforcement officer. See State v. Douglas , 230 Kan. 744, 745, 640 P.2d 1259 (1982). Thus, the State had the burden to prove the following:

• Smith knowingly placed Officer Larsen in reasonable apprehension of immediate bodily harm. K.S.A. 2016 Supp. 21-5412(a).
• Smith used a deadly weapon to do so. K.S.A. 2016 Supp. 21-5412(d)(1).
• Smith did so while Officer Larsen was a uniformed or properly identified city law enforcement officer engaged in the performance of his duty. K.S.A. 2016 Supp. 21-5412(c)(1).

On appeal, Smith contends that the State admitted insufficient evidence to prove that (1) Smith acted knowingly and (2) Officer Larsen was placed in "reasonable apprehension of immediate bodily harm."

Knowingly

Aggravated assault of a law enforcement officer is a general intent crime. State v. Kershaw , 302 Kan. 772, 782, 359 P.3d 52 (2015). The aggravated assault of a law enforcement officer statute establishes "knowingly" as the requisite culpable mental state. K.S.A. 2016 Supp. 21-5412(a).

"A person acts 'knowingly,' or 'with knowledge,' with respect to the nature of such person's conduct or to circumstances surrounding such person's conduct when such person is aware of the nature of such person's conduct or that the circumstances exist. A person acts 'knowingly,' or 'with knowledge,' with respect to a result of such person's conduct when such person is aware that such person's conduct is reasonably certain to cause the result." K.S.A. 2018 Supp. 21-5202(i).

Here, the State argues that it introduced sufficient evidence for the jury to find that Smith acted knowingly. A jury's verdict may rely exclusively on circumstantial evidence if that evidence furnishes a basis for a reasonable inference by the jury. Further, circumstantial evidence sufficient to support a conviction need not exclude every other reasonable conclusion. State v. Logsdon , 304 Kan. 3, 25, 371 P.3d 836 (2016).

Officer Larsen testified that he "blipped" his siren and activated his lights after parking behind the truck. He also testified, and the police video confirms, that he twice yelled at the passenger to get back in the truck. From this, the jury could reasonably infer that Smith knew Officer Larsen was behind him. As the police video showed, Smith nevertheless chose to rapidly drive out of the driveway and then speed up in Officer Larsen's direction. Accordingly, the State presented sufficient evidence for the jury to reasonably conclude that Smith acted knowingly, that is, he chose to rapidly drive out of the driveway in a truck and speed towards Officer Larsen knowing that it could cause Officer Larsen to be in reasonable apprehension of bodily harm.

Reasonable apprehension

Next, Smith argues that the State failed to submit sufficient evidence for the jury to conclude that Officer Larsen was placed in "reasonable" apprehension of bodily harm. Officer Larsen testified that he feared for his life twice during his encounter with Smith: (1) when Smith reversed the truck towards Larsen's car which could have pinned Officer Larsen between his car and its door and (2) when Smith accelerated the truck towards Officer Larsen after pulling out of the driveway. Smith contends that Officer Larsen's fear was unreasonable. As the State correctly points out, this argument is unpersuasive.

This court reviews the evidence in the light most favorable to the State. Chandler , 307 Kan. at 668. Further, jurors are allowed to use their common knowledge and life experience to evaluate the evidence. State v. McCarty , 271 Kan. 510, 517, 23 P.3d 829 (2001). Officer Larsen testified, and the police video showed, that Smith rapidly backed the truck out of the driveway with its passenger door still open while Officer Larsen stood just a few yards behind the truck. Officer Larsen also testified that he had to quickly move out of the road to avoid being hit when the truck accelerated towards him. From this evidence, and using its common knowledge, the jury could conclude that Officer Larsen was in reasonable apprehension of immediate bodily harm when Smith rapidly backed a Dodge Ram truck out of the driveway and hit the police car mere feet from where Officer Larsen stood before accelerating toward Officer Larsen and then driving away.

Did the District Court Commit Reversible Error By Failing to Sua Sponte Give a Unanimity Jury Instruction?

"A defendant has a right to a unanimous jury verdict." State v. Santos-Vega , 299 Kan. 11, 18, 321 P.3d 1 (2014). Smith argues that the district court committed reversible error by failing to sua sponte give a unanimity jury instruction. He contends that "[t]he State alleged Mr. Smith committed at least two discrete acts that could constitute the crime of aggravated assault on a law enforcement officer." The State, on the other hand, argues that this case does not involve multiple acts and, therefore, a unanimity instruction was not factually appropriate. The State is correct.

Because Smith did not request a unanimity instruction, this court will review this issue for clear error. See State v. Sayler , 306 Kan. 1279, 1285, 404 P.3d 333 (2017). When clear error review applies, this court " 'will not disturb the conviction unless it is firmly convinced the jury would have reached a different verdict had the instructional error not occurred.' " State v. Lowery , 308 Kan. 1183, 1216, 427 P.3d 865 (2018). The burden is on Smith to show clear error. See State v. King , 299 Kan. 372, 379, 323 P.3d 1277 (2014).

Our Supreme Court has established a procedure and a test for a multiple acts case:

"In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. In order to ensure jury unanimity as to the specific act for which the defendant is charged, the trial court must either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt."
"This court will apply a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e. , whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e. , whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whether the error is reversible." State v. Colston , 290 Kan. 952, Syl. ¶¶ 1-2, 235 P.3d 1234 (2010).

Does this case involve multiple acts?

Smith argues that the State alleged he committed two separate acts: first, "revers[ing] his truck into Larsen's patrol car in the driveway" and second, driving "directly at Larsen in the street." The State, however, maintains that these do not constitute multiple acts.

Whether a case presents a multiple acts issue is a question of law, over which this court has unlimited review. King , 299 Kan. at 379.

"[Our Supreme Court] has determined that acts are multiple acts if they are factually separate and distinct. And incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a later criminal act is motivated by a 'fresh impulse.' State v. Colston, 290 Kan. 952, 962, 235 P.3d 1234 (2010). Factually separate and distinct incidents are not what this court calls 'unitary conduct.' 290 Kan. at 962. The factors we have used to determine the existence of unitary conduct are: '' ' ''(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." [Citation omitted.]' 290 Kan. at 962." King , 299 Kan. at 379.

Smith concedes that he reversed the truck out of the driveway and then drove it towards Officer Larsen "at or near the same time." The State emphasizes that this factor weighs heavily against a finding that this is a multiple acts situation. The State is correct. The police car video shows that the time between the truck reversing and the truck going forward was 11 seconds or less. The truck begins reversing out of the driveway at approximately 0:36. The truck's door hits the police car at 0:40. Officer Larsen is not visible in the video, but the last shot is heard at about 0:47. Thus, the entire incident, including the two so-called "multiple acts," lasted mere seconds.

Second, Smith argues that the acts "occurred in different locations-one in a driveway, and one in the street." This is not convincing. The entire incident took place in the immediate vicinity of Officer Larsen's parked car, which remained stationary in front of the same driveway for the entire incident.

Third, Smith argues that there was an "intervening event." He claims that Officer Larsen pulling his service weapon after Smith had backed out, but before he sped off, constituted an intervening event. He also argues that when Officer Larsen pulled his gun, this created a "fresh impulse motivating Mr. Smith's behavior." These arguments are unavailing.

This case is comparable to State v. Castleberry , 301 Kan. 170, 339 P.3d 795 (2014). There, a police officer unsuccessfully tried to stop Castleberry's car. Castleberry then led police on a 45-minute-high-speed chase. Ultimately, Castleberry stopped his car before hitting stop sticks placed in the road. Then he got out of his vehicle and behaved aggressively and antagonistically, moving in an " 'almost taunting' " or " 'threatening' " way; he even told officers to shoot him. 301 Kan. at 173. The officers had to tase him to subdue him before arresting him. A jury convicted him of obstruction of official duty.

Like Smith, Castleberry did not request a unanimity instruction but argued on appeal that the district court erred by failing to sua sponte give one. He argued that he committed two acts that could have been the basis for his obstruction of official duty conviction: "(1) fleeing in his car, and (2) after the car chase ended, resisting officers as they tried to handcuff and arrest him." 301 Kan. at 185. Our Supreme Court disagreed. It held:

"The shift in the action was caused by law enforcement's successful termination of the vehicle chase, rather than by Castleberry's fresh impulse to do something different. His attempts to elude arrest were continuous and uninterrupted, even though the resistance evolved from a vehicle chase to a physical altercation. Moreover, if the State had attempted to prosecute Castleberry on two counts of obstruction, it is likely that he would have claimed multiplicity." 301 Kan. at 187.

Similarly, here, the footage strongly suggests that both of what Smith refers to as separate acts were in fact part of one singular act: an attempt by Smith to get away from Officer Larsen as quickly as possible. Smith necessarily had to back the truck out of the driveway to get away. Thus, this case has no multiple acts issue. Accordingly, the district court did not err by failing to sua sponte give a unanimity instruction. See Castleberry , 301 Kan. at 187.

Did the District Court Violate Smith's Constitutional Rights By Imposing the Aggravated Grid Sentence?

Finally, Smith argues that the district court violated his United States Constitution Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey , 530 U.S. 466, 476, 120 S. Ct. 2348, 147 L. Ed. 2d. 435 (2000), by sentencing him to the aggravated box sentence without submitting the reasons for the aggravated sentence to the jury. As the State correctly points out, this argument is foreclosed by Kansas Supreme Court precedent.

In State v. Johnson , 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008), our Supreme Court held that "[a] sentence to any term within the range stated in a Kansas sentencing guidelines presumptive grid block does not violate Cunningham v. California , 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), or Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)." Here, Smith received the aggravated grid box sentence. Because Smith received a grid box sentence, this court lacks jurisdiction to consider his challenge to the sentence and therefore dismisses this part of his appeal. Johnson , 286 Kan. 824, Syl. ¶ 6. While Smith argues that Johnson was wrongly decided, this court is duty bound to follow our Supreme Court's precedent and, therefore, cannot consider this argument. See State v. Ottinger , 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011).

Affirmed in part and dismissed in part.


source: Caselaw Access Project

author: Leben, J.:

license: Public Domain

text:
    Ralph E. COREY, Appellant, v. STATE of Kansas, Appellee.
    No. 120,127
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019.
    Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
    David R. Huckabee, assistant county attorney, Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Malone and Gardner, JJ.
    MEMORANDUM OPINION
   Leben, J.:

After Ralph Corey's convictions for aggravated kidnapping, aggravated sexual battery, and criminal threat were upheld on appeal, he brought a habeas corpus action claiming that inadequate representation by his trial attorney had led to his convictions. The district court held an evidentiary hearing on Corey's claim, hearing testimony from the attorneys who represented Corey at trial and in his direct appeal and from Corey. The district court then denied relief to Corey.

It's important to recognize, as we'll explain in more detail later in the opinion, that there was no question that someone had committed the vicious crimes involved here. The only question was, who did it?

Corey was identified years after the crimes by DNA evidence. Corey was an over-the-road truck driver who didn't live anywhere near Ottawa, Kansas, where these crimes took place. But fuel-purchase receipts his attorney brought forward showed that he had bought fuel in Iowa the day before the crime and in Texas a day after. That left a likely route for the trucker to have gone to Ottawa on I-35. And Corey argues that this and other errors by his attorney constituted inadequate representation and led to his conviction.

But the district court found that the trial attorney's "representation of his defense was not deficient in any way." And that's supported by the attorney's testimony that Corey wanted the attorney to use court subpoenas to get the fuel records even though the attorney warned him that the State would learn whatever the records said-and the information would thus be coming in at trial no matter what it said. To obtain relief, Corey had to prove not only that his attorney provided inadequate representation but also that the poor representation affected the trial's outcome. On that second requirement, the district court held that "[e]ven if it could be argued that there was any error [by the attorney], it would not rise to the level that there is a reasonable probability of a different outcome at trial." We agree, and we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

With that overview, let's go into more detail about the case and the arguments Corey has raised on appeal. We will discuss only the most important facts to provide context for the issues of this appeal; a more detailed factual background can be found in the decisions of our court and the Kansas Supreme Court in Corey's direct appeal. See State v. Corey , 304 Kan. 721, 724-27, 374 P.3d 654 (2016) ; State v. Corey , No. 110,149, 2014 WL 6490503, at *1-7 (Kan. App. 2014) (unpublished opinion).

The crimes took place on February 19, 2000, in Ottawa. Sixteen-year-old L.H. worked at the Walmart there, and she had planned to go on a double-date that evening with her friend Tammy. But Tammy, waiting in the Walmart parking lot for L.H. to get off work, got spooked by a man coming toward her car and quickly moved it to another part of the parking lot. She then met up with the two boys she and L.H. were planning to meet. Tammy didn't see L.H. come out of the Walmart, but she saw a car that looked like L.H.'s leave the parking lot. It was driven by a white man with dark hair and facial hair, though, not by L.H. Eventually, Tammy and the boys left.

L.H. had left the store and gone to her car in the employee parking lot. Just as she was about to put her car into reverse, she saw something in the mirror. Then a man ran up and hit her car window with his open hand, opened the door, and punched her in the face. He hit her several times and forced his way into the car.

The man pushed her into the backseat and drove away-putting a stocking mask onto her head and obscuring her vision. When she asked where he was taking her, he told her to shut up or he would kill her. He went to a nearby parking lot and got into the backseat. He lifted up her sweater, shirt, and bra; he touched her breasts as she struggled and told her to shut up. He unbuttoned her pants and tried to pull them down, but she resisted. He then simulated sex, with his penis touching her stomach, and asked if she wanted sex. When she said no, he asked her age. When he learned she was only 16, he stopped what he was doing. She thanked him, but he then touched her breasts and masturbated. And then he took her to another parking lot and touched her breasts again.

Finally, he told her he knew where she worked and that he would come back to hurt her if she told anyone. He left and told her to count to 100 before she got out of the car.

When she got out, she called her mother. The two went to the local sheriff's office and reported what had happened. Officers found what they believed was pubic hair in her clothing and took DNA swabs from her stomach. They also found a stocking cap and a pair of gloves in L.H.'s car.

L.H. and Tammy met with a sketch artist, who worked from their recollections-L.H. of what she'd seen during the attack and Tammy of the man she'd seen in the parking lot. Investigators also were able to get partial DNA profiles from the cap and a glove, and they got a full DNA profile from the other glove. Each profile was consistent with a single person but not L.H. A partial profile was also developed from the sample taken from L.H.'s stomach.

But even though they had DNA evidence, the investigation soon floundered. The DNA information was entered into a national FBI database, but no matches came back.

A decade later, in 2011, a DNA sample in the FBI's database came back as a match. The DNA belonged to Corey, then serving a federal prison sentence. Corey denied any involvement in the attack on L.H., but after further investigation the State charged him.

Corey was twice convicted on all charges by a jury. After the first trial, the district court learned that the jury had done some independent research during deliberations, so the court declared a mistrial. A second jury also convicted Corey on all charges, and the district court sentenced him to a controlling term of 401 months in prison.

Corey's convictions and sentences were affirmed on direct appeal. Corey , 2014 WL 6490503, aff'd 304 Kan. 721. He then filed his habeas corpus claim. Although it raised several issues, the only claim being pursued on appeal is that his trial attorney, John Boyd, provided inadequate representation. The district court determined that Boyd provided appropriate representation and that "[e]ven if it could be argued there was any error, it would not rise to the level that there is a reasonable probability of a different outcome at trial."

ANALYSIS

The only claim Corey presents in this appeal is that his trial attorney provided inadequate representation. To gain relief on that claim, he must show two things: (1) that his attorney's performance was below the constitutionally required minimum level of competence and (2) that the inadequate performance prejudiced his defense. To show prejudice, Corey must convince us that there's a reasonable probability the jury would have reached a different result had the representation been adequate. See Sola-Morales v. State , 300 Kan. 875, 882, 335 P.3d 1162 (2014).

Because the district court held an evidentiary hearing, we look first to see whether its factual findings are supported by substantial evidence. We independently review its legal conclusion of whether the representation, based on the facts found by the district court, was adequate. 300 Kan. at 881 ; State v Adams , 297 Kan. 665, 669, 304 P.3d 311 (2013). To the extent that the district court's factual findings don't specifically address one of the specific claims Corey makes on appeal about Boyd's representation, we note that no request was made to the district court to make additional findings after it issued its 14-page ruling. In that situation, we presume the district court would have made any additional findings that would have supported its judgment if they were supported by substantial evidence. State v. Combs , 280 Kan. 45, 50, 118 P.3d 1259 (2005).

For most of the claims Corey presents about Boyd's representation, extended discussion here isn't required for two reasons. First, the district court didn't find any inadequacy, and its finding is supported by the evidence. Second, with only one exception (the fuel-receipts issue we'll discuss separately), Corey hasn't shown how any of these claims reshaped the trial. The district court also concluded that even if one were to assume error, the alleged errors wouldn't have affected the trial's outcome. That conclusion is also supported by the record here-and we note that the judge who heard the evidence at this habeas hearing was the same judge who presided over the trial. The judge who presided over both the trial and a habeas hearing is in the best possible position to determine whether adequate representation was provided and what may have affected the trial's outcome. See Wilkins v. State , 286 Kan. 971, 988, 190 P.3d 957 (2008) ; Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985).

Setting aside the fuel-receipts evidence, Corey argues that Boyd's preparation for the trial was inadequate in these ways:

• He didn't research the parking-lot lighting in place in 2000;
• He didn't interview L.H. outside court proceedings;
• He didn't adequately cross-examine L.H. and Tammy; and
• He didn't adequately prepare Corey for his trial testimony.

The district court didn't see any of these as failures that left the representation constitutionally inadequate, and we agree.

Perhaps more information about the parking-lot lighting could have helped in the cross-examination of L.H. and Tammy. But we don't know that because Corey didn't present information about the lighting conditions at the habeas hearing. His point about lighting is mere speculation. And the cross-examination of L.H. and Tammy was effective in showing several inconsistencies.

Inconsistencies aren't surprising, though, when a witness talks at first to the police and then testifies at a series of court hearings; even for a truthful witness, it's hard to have all the details line up. The jury obviously thought those inconsistencies were caused more by the gap in time from a 2000 crime to a 2012 trial than by some basic inaccuracy from the witnesses. And while Boyd didn't talk with L.H. before the preliminary hearing (though there's also no evidence she would have been willing to talk with him), the district court found Boyd was adequately prepared for trial based on the ability to question her at the preliminary hearing. Of course, Boyd also had a chance to fully cross-examine both L.H. and Tammy at the first jury trial. So by the time of the second trial, the one that created the convictions that remain in place and are now at issue, Boyd had substantial preparation for the cross-examination of both witnesses. In addition, as the district court said, "With the petitioner's DNA located in the mask, gloves and from the victim's body, cross examination could only accomplish so much."

The district court didn't specifically address the claim that Boyd didn't adequately prepare Corey to testify. Boyd and Corey had different recollections about their work together preparing for Corey's testimony. But the district court must have generally accepted Boyd's testimony about that and found the preparation adequate given the court's overall conclusions about Boyd's work:

"In this case, trial counsel's performance was reasonable and competent. There is no evidence of deficient conduct by petitioner's trial counsel. The Court is unaware of what else counsel could have done in his representation of the petitioner either before trial or during trial. The representation of his defense was not deficient in any way."

We will discuss the fuel-receipts issue separately because it's the one alleged deficiency that might have affected the trial's outcome. The fuel receipts showed Corey in Iowa the day before the attack and Texas the day after-in locations along or near I-35. Those receipts were found because of defense efforts, not as part of the law-enforcement investigators. Corey argues that his attorney should not have worked to discover information that helped the State's case against him.

But Corey ignores Boyd's testimony about how the records came to be discovered and produced. Boyd said that Corey proposed getting the fuel receipts to prove his innocence and show that he wasn't at the parking lot during the attack. The company that had employed Corey as a truck driver in 2000 had gone out of business, so records couldn't readily be obtained from that company. Boyd was also concerned that even if records could be obtained, it would be hard to get a records custodian to authenticate them. Boyd also had another consideration; he wanted to be able to get the records into evidence without Corey's testimony to preserve the option that Corey might not testify at trial. So Boyd said he discussed the evidentiary issues with Corey and that Corey agreed to permit Boyd to get the records from the credit-card company with a court subpoena and enter into a stipulation with the State that the records could be admitted at trial without the testimony of a records custodian. Boyd said he told Corey that if they used this approach, they would get the records, but the State would still be able to use them if they weren't helpful to the defense. Boyd said Corey agreed to that plan and wanted Boyd to pursue the fuel receipts.

As we now know, although Corey told Boyd the records would help the defense, that didn't turn out to be the case. But the district court credited Boyd's testimony on this as accurate; otherwise it would have been hard for the court to say that it found that the representation "was not deficient in any way." Boyd's testimony supports that conclusion on the process used to get the fuel receipts.

Even if we presume that a defense attorney should not get records that might prove problematic through a joint investigation with the State (and even with the client's consent), Corey still would have to show that this impacted the trial's outcome. The district court judge who had presided over the trial concluded that "[e]ven if it could be argued there was any error [by Boyd], it would not rise to the level that there is a reasonable probability of a different outcome at trial." We agree.

We must consider the fuel-receipts evidence in the context of the other evidence presented. The State's DNA expert witness testified that the chance of the left-glove DNA being from a Caucasian unrelated to Corey to be 1 in 7 billion. He said the same chances were 1 in 12 trillion for the DNA on the cap and 1 in 62 trillion for the full DNA-profile material found on the right glove. The partial DNA found on the stomach swab had a 1 in 9 chance of being from an unrelated male. So how did that DNA get there if Corey wasn't the attacker? His explanation wasn't convincing:

"Corey's only explanation for how his DNA was found on the hat and gloves was that he used many pairs of gloves over the years as a trucker and that the gloves frequently were left behind or transferred from driver to driver. However, no one else's DNA was discovered on the hat and gloves left behind in L.H.'s vehicle." Corey , 2014 WL 6490503, at *26.

Overall, then, the DNA evidence was powerful. And despite some inconsistencies, Tammy identified Corey as the man she had seen that night, and the jury had a chance to see the composite sketch as well as photos of Corey.

In its decision in Corey's direct appeal, the Kansas Supreme Court considered whether a jury-misconduct error in his second trial that implicated Corey's constitutional rights had had any impact on the trial's outcome. For an error involving constitutional rights, a more-stringent test for determining the effect on the trial outcome applied: the State had to show that the error was harmless beyond a reasonable doubt. Even under that higher standard, the Kansas Supreme Court found in the direct appeal that any error was harmless because the evidence against Corey was so strong:

"[T]he evidence was overwhelming. The only issue was whether Corey was the person who committed the crimes. In that regard, the State presented: (1) strong DNA evidence linking Corey to the stocking cap and gloves found in the back of the victim's vehicle; (2) weaker DNA evidence associating Corey to the DNA sample taken from the victim's stomach; (3) eyewitness testimony identifying Corey at the scene; (4) additional eyewitness testimony consistent with Corey being the attacker; and (5) Corey's fuel records demonstrating his opportunity to commit the crimes."
"We hold based on our review of the entire record that the jury misconduct was harmless beyond a reasonable doubt." Corey , 304 Kan. at 734.

In its analysis of the harmless-error issue, the Kansas Supreme Court did note the fuel receipts as one part of the "overwhelming" evidence. In our view, though, the fuel receipts were properly listed last on the list of incriminating evidence. The strongest evidence by far was the DNA evidence, and it was supplemented by eyewitness testimony. Even without the fuel receipts, Corey's job as an over-the-road truck driver could have easily put him in Ottawa, a city on I-35. And Corey admitted that his equipment as a truck driver included gloves and stocking caps like those found in L.H.'s car-with his DNA on them. Corey has not shown either that Boyd's representation was constitutionally deficient or that any inadequacy in the representation affected the trial's outcome.

We therefore affirm the district court's judgment.


author: Per Curiam:

text:
    Rodney S. KOCH, Appellant, v. STATE of Kansas, Appellee.
    No. 119,886
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019.
    Jessica J. Sokoloff, of Olathe, for appellant.
    Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Leben, P.J., Green and Powell, JJ.
    MEMORANDUM OPINION
   Per Curiam:

Rodney Koch appeals the district court's denial of habeas corpus relief based on the claim that his trial attorney did an inadequate job. After it heard testimony from Koch's trial attorney, the district court found that the attorney had valid reasons not to call the additional witnesses Koch now says could have been called to help his case at trial. And the district court also concluded that even if the attorney should have called those witnesses, that wouldn't have changed the trial result. Substantial evidence supports the district court's conclusions, and we therefore affirm its judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Koch claims that the ineffective representation of trial attorney, Carl Cornwell, led to Koch's 2004 conviction for attempted second-degree murder and aggravated robbery. In the direct appeal for that criminal case, our court summarized the case as shown at trial:

"In September 2001, a man with a shotgun came into a Minute Mart convenience store in Overland Park and demanded money. A man named Karin Khetani, working at the Minute Mart that evening, complied. As the robber started to leave the store, he turned around and fired the shotgun at Khetani. The blast hit some medicine boxes first and then the pellets hit Khetani in the chest and arm. Khetani called 911 and asked for police and an ambulance. Various witnesses later said the robber left the scene in an older, white Jeep Cherokee.
"Later in September 2001, Rodney S. Koch and his half-brother, Christopher Koch, were arrested after an armed robbery and police chase in California. Nicole Koch, Rodney's wife, and Christina Koch, Christopher's wife, both identified Rodney Koch as the person in a surveillance video and some photographs that were taken at the time of the robbery of the Minute Mart. Koch was charged with aggravated robbery and attempted first-degree murder. After his return to Kansas from California, Koch was convicted of aggravated robbery and attempted second-degree murder." State v. Koch , No. 95,069, 2008 WL 183321, at *1 (Kan. App. 2008) (unpublished opinion).

The district court sentenced Koch to serve 168 months in prison to be served consecutively to his sentence in California for the crimes committed there.

In April 2009, Koch filed a habeas corpus motion under K.S.A. 60-1507. As relevant here, the motion alleged that Cornwell failed to conduct an appropriate pretrial investigation, failed to properly prepare a defense, and failed to contact key defense witnesses. In October 2009, the district court ruled that Koch's allegations merited an evidentiary hearing. But the court held since Koch was then serving his California, there was no way a Kansas court could order him brought here for a hearing until he completed the California sentence. So the evidentiary hearing was postponed until Koch was sent to Kansas to serve his sentence here.

The district court held an evidentiary hearing on February 1, 2016. The court heard testimony from Cornwell, Koch, and Shawn Minihan, the attorney who had represented Koch in his direct appeal.

From the beginning of his case, Koch maintained his innocence and his defense centered on his alibi that he was with friends at the time of the robbery and could not have committed the crime. He provided Cornwell with the contact information for Mark Cravens, Jody Kieft, and a woman named Brenda, whom he claimed to have been with the night of the robbery. Koch insisted that he discussed the significance of his alibi witnesses several times with Cornwell and provided their contact information at each meeting. He claims with each conversation, Cornwell assured him an investigator was locating the witnesses and they would be ready before trial. Koch contends he did not know Cornwell had not secured any alibi witnesses until after he had testified at trial and the defense rested.

Cornwell testified that he did not have an independent recollection of the efforts he and his office staff put forth to locate and secure the alibi witnesses since the trial took place nearly 12 years before the habeas hearing. He said that he usually destroyed case files after 7 to 10 years, but he kept Koch's file longer upon Koch's request. But this file was destroyed one or two years before the hearing when Cornwell moved his office.

Cornwell testified Kieft was part of the case as she was allegedly in the Jeep during the Overland Park and California robberies. Although he did not remember what efforts might have been made to secure Kieft for trial, he said that because of her involvement, he felt that, if called to testify, she would have done more harm than good and that not calling her was a matter of trial strategy.

Cornwell confirmed that Cravens' testimony would have made him a significant alibi witness. He said that he had no independent memory of talking to Cravens though he believed he may have. Koch said he advised Cornwell to call Cravens at night and testified that Cravens did not answer calls from phone numbers he did not recognize, did not return calls to numbers he did not recognize, and did not have an answering machine. Cornwell said his best memory was that he couldn't reach the witnesses by phone. Consistent with that, in April 2004, Cornwell had mailed Koch a letter saying that Cornwell had been unable to reach the witnesses; he suggested that the alibi witnesses contact him instead.

The district court denied relief. It concluded that Koch had neither shown inadequate representation nor prejudice, while both were requirements for relief:

"Mr. Koch's request for a new trial is DENIED. This Court cannot find that Mr. Cornwell's performance was deficient as established by case law. Additionally, if Mr. Cornwell's performance could possibly be viewed to be deficient, this Court cannot find that Mr. Koch was prejudiced because of the overwhelming evidence presented against him at trial. The identification by Mr. Koch's wife and his sister-in-law in the surveillance tapes of the robbery makes it extremely difficult to present an alibi defense, especially when one of the witnesses is believed to [have] be[en] with Mr. Koch at the time of the crime."

Koch then appealed to our court.

ANALYSIS

Standards to Guide Our Review

To prevail on a claim of ineffective assistance of counsel, a defendant must establish to things: (1) that the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, by which we mean that there's a reasonable probability the jury would have reached a different result absent the deficient performance. See Sola-Morales v. State , 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984] ).

After a full evidentiary hearing on a habeas motion, an appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Our review of the district court's ultimate conclusions of law is de novo. State v. Adams , 297 Kan. 665, 669, 304 P.3d 311 (2013).

In both the district court and on appeal, judicial scrutiny of an attorney's performance is highly deferential and requires consideration of all the evidence before the judge or jury. We presume that counsel's conduct fell within the broad range of reasonable professional assistance. State v. Kelly , 298 Kan. 965, 970, 318 P.3d 987 (2014). The defendant's trial attorney is responsible for making tactical and strategic decisions, including which witnesses testify. Flynn v. State , 281 Kan. 1154, Syl. ¶ 5,136 P.3d 909 (2006). Strategic choices based on a thorough investigation of the law and facts are rarely second-guessed. 281 Kan. 1154, Syl. ¶ 5.

Discussion of the Ineffective-Assistance Claim

Koch claims that he presented enough evidence to show that Cornwell's performance fell below the objective standard of reasonableness. Koch argues that Cornwell failed to investigate and call alibi witnesses and that the district court's ruling to the contrary is unsupported by the evidence. Koch says that Cornwell had six months during which he could have hired an investigator (using funding from the Board of Indigents' Defense Services) who would have been able to contact the witnesses since Koch had provided Cornwell their contact information. Koch contends Cravens would have testified that they were together with Kieft and Brenda the evening of the robbery and Kieft would have corroborated Cravens' testimony.

Koch never knew Brenda's last name, and his argument on appeal is limited to the claim that Cornwell should have called Kieft and Cravens. Koch argues that Cornwell's decision not to call these witnesses can't be considered a strategic decision because Cornwell didn't adequately investigate their potential testimony. And Koch claims the failure to call these witnesses led to his convictions.

We disagree. We will consider separately the testimony of Kieft and Cravens.

There's evidence to support the district court's conclusion that Cornwell's investigation was adequate to determine whether to call Kieft. Though Cornwell did not contact Kieft, Cornwell reasonably concluded that she would have been more harmful than beneficial as a witness. As the district court determined, "[A]nybody that's a qualified attorney would not call her as a witness." The court reasoned that the evidence showed Kieft was in the Jeep during the car chase and wreck in California shortly after the armed robbery for which Koch and Christopher were charged here. The court noted Kieft "would have some baggage on that situation." And Christopher testified that Kieft was in the Jeep with him while Koch committed the Overland Park robbery and that they then stayed in a hotel room registered in Kieft's name and smoked crack cocaine all night before deciding to go to California. Because of Kieft's alleged proximity to both robberies, the risk to Koch's defense would have been great considering the little benefit her testimony could have provided.

It's harder to determine whether Cornwell's performance was deficient on the decision not to call Cravens; Cornwell had no specific memory of his attempts to secure Cravens for trial. Even so, an ineffective-assistance-of-counsel claim can be disposed of solely on the grounds that the defendant failed to establish that he suffered prejudice. Edgar v. State , 294 Kan. 828, 843, 283 P.3d 152 (2012). The district court pointed out that Koch didn't call Cravens as a witness at the evidentiary hearing. Koch didn't even provide an affidavit from Cravens to support the assertion that he would have provided convincing alibi testimony. Koch testified that he had not had contact with Cravens since February 2004. But while Koch complains that Cornwell had six months to find Cravens and secure his testimony, Koch has had years to do so. Instead, Koch relied only on his own testimony about what he believed Cravens would have testified to. Speculation like this is generally insufficient to meet the burden of proof to establish prejudice. State v. Speer , No. 115,632, 2018 WL 4039457, at *11 (Kan. App. 2018) (unpublished opinion) (citing Mullins v. State , 30 Kan. App. 2d 711, 719, 46 P.3d 1222 [2002] ), rev. denied 309 Kan. ---- (April 29, 2019). Additionally, the district court concluded that the evidence against Koch was overwhelming; that too is supported by the record. Christopher testified Koch carried out the robbery, and Christopher's and Koch's wives both testified that the robber in the surveillance video was Koch. Koch , 2008 WL 183321, at *1.

The district court's conclusion that Cornwell's decision not to follow up with Kieft to secure her testimony at trial was strategic is supported by the evidence: the potential harm from her testimony outweighed any potential benefit to his defense. And though the lapse in time and destroyed case file complicate any court's ability to say definitively whether Cornwell's performance was deficient in pursuing testimony from Cravens, Koch failed to show that he suffered prejudice as a result. Koch's speculation about what Cravens would have said cannot meet the burden of showing prejudice. Koch failed to show any reasonable probability the jury would have reached a different result if Cravens would have testified.

We therefore affirm the district court's judgment.


text:
    STATE of Kansas, Appellee, v. Miguel Jose MENDEZ, Appellant.
    No. 119,639
    Court of Appeals of Kansas.
    Opinion filed July 26, 2019.
    Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
    Natasha Esau, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Bruns, P.J., Malone, J., and Steven E. Johnson, District Judge, assigned.
    MEMORANDUM OPINION
   Per Curiam:

Miguel Jose Mendez was granted probation after being convicted of his third driving-under-the-influence conviction. After Mendez violated his probation a third time, the district court revoked his probation and ordered him to serve his original prison sentence. Mendez appeals the revocation of his probation, arguing that the district court abused its discretion. After review, we find no abuse of discretion and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2017, pursuant to a plea agreement, Mendez pled guilty to driving under the influence, third offense, and the State dismissed three other charges. The district court imposed an underlying sentence of 12 months in prison but granted Mendez 12 months of probation after he served 48 hours in jail and completed 2,112 hours of house arrest.

A few months after sentencing, Mendez admitted to violating his probation by driving with a revoked license. The district court imposed a three-day sanction in a county detention center for that violation.

About three weeks later, the State alleged that Mendez had violated his probation again, this time by walking in the middle of a road while intoxicated. Mendez served a 10-day sanction in a county detention center for that violation. The district court also ordered Mendez to enroll in the SCRAM alcohol-detection program until the end of his probation.

Shortly after that, Mendez violated his probation for a third time by testing positive for alcohol. For that violation, the district court revoked Mendez' probation and ordered him to serve his underlying prison sentence.

Mendez timely appeals.

On appeal, Mendez only argues that the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentence instead of giving him another chance at probation so that he might attend treatment he had arranged. The district court is not required to consider intermediate sanctions under K.S.A. 2018 Supp. 22-3716 before revoking an offender's postimprisonment supervision in a DUI case. See K.S.A. 2018 Supp. 8-1567 ; State v. Remy , No. 114,732, 2016 WL 6822484, at *3 (Kan. App. 2016) (unpublished opinion).

Generally, once there has been evidence of a violation of the conditions of probation, the decision to revoke probation rests in the district court's sound discretion. State v. Gumfory , 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A court abuses its discretion when its decision is based on an error of fact or law or when no reasonable person could agree with its decision. State v. Mosher , 299 Kan. 1, 3, 319 P.3d 1253 (2014). The party asserting the district court abused its discretion bears the burden of showing such an abuse of discretion. State v. Stafford , 296 Kan. 25, 45, 290 P.3d 562 (2012).

At his last revocation hearing, Mendez admitted that he had a drinking problem and asked the district court to give him another chance at probation so he could receive outpatient alcohol-abuse treatment. Although the district court acknowledged and appreciated Mendez' honesty about his problem, it concluded: "The best way to help you is to get this sentence served."

Mendez does not argue that the district court's order was based on either an error of fact or law. Rather, Mendez contends that the district court's decision to revoke his probation was unreasonable because supervised treatment was available to him. But considering Mendez was on probation for his third DUI conviction and had two alcohol-related violations while on probation, a reasonable person could agree that ordering Mendez to serve his underlying prison sentence was appropriate.

Because the district court's decision was not based on either an error of fact or law and a reasonable person could agree with the decision, the district court did not abuse its discretion in revoking Mendez' probation.

Affirmed.