State v. Burton

1

NOT DESIGNATED FOR PUBLICATION

No. 111,713

IN THE COURT OF APPEALS OF THE STATE OF KANSAS


STATE OF KANSAS,
Appellee,

v.

JESSE W. BURTON,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed October 2, 2015.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before HILL, P.J., BUSER, J., and WILLIAM R. MOTT, District Judge, assigned.

Per Curiam: Trial judges must ask jurors to consider the evidence and the law
when reaching their verdict. The judge should not distract them from this task by asking
them to consider extraneous matters such as the cost and inconvenience of a new trial. In
this direct appeal, Jesse Burton complains about an instruction given to his jury before
any testimony was heard which told the jurors that a mistrial is an expensive inconvenient
burden. We agree with Burton that the district court erred by inserting such language into
the instruction; but under the facts here, we hold it was not reversible error. Additionally,
2

Burton claims the district court failed to give an instruction on the lesser included offense
of simple battery. We disagree. The district court only has a duty to instruct on all
possible offenses supported by substantial evidence. Finally, we follow Kansas Supreme
Court precedent and find no error concerning Burton's criminal history determination.

A dispute over a bicycle turns violent.

On June 5, 2013, Marco Hinostroza approached Burton after one of Hinostroza 's
sons had told Hinostroza that Burton had stolen Hinostroza's other son's bicycle.
Hinostroza tapped Burton on the shoulder while Burton's back was turned and he was
working on a bicycle. Hinostroza told Burton that he was going to call the police. Burton
stood up and hit Hinostroza on the head with a pair of handlebars from a bicycle. Burton
continued to hit Hinostroza on the shoulder and the rib cage. Hinostroza went to the
hospital, where he received stitches for a cut on his head and was treated for broken ribs
and a bruised shoulder.

The State charged Burton with one count of aggravated battery in violation of
K.S.A. 2011 Supp. 21-5413(b)(2)(B), a severity level eight person felony, and theft of
property with a value less than $1,000, a Class A misdemeanor.

At trial, Burton contended that he had acted out of self-defense. According to
Burton, Hinostroza's son sold him a bicycle and he was using parts from it to build a new
bicycle for his own son. Burton testified that he had decided to give the bicycle back and
was dissembling the new bicycle he was building when Hinostroza and his son knocked
him to the ground and attacked him. Burton claimed that while he was being attacked he
heard his son scream and hit the ground. Burton testified that he had picked up the
handlebars and began swinging without aiming at anyone, trying to get Hinostroza and
his son to stop hitting him. He believed they were also hurting his son.

3

The district court instructed the jury on Burton's theory of self-defense. The jury
found Burton guilty of aggravated battery but acquitted him on the theft charge. The
district court imposed an 18-month prison term but granted 18 months' presumptive
probation. Based on its finding that the underlying crime was committed with a deadly
weapon, the district court ordered Burton to register as a violent offender for 15 years.

The district court gave an erroneous preliminary instruction to the jury.

On appeal, Burton first complains of a preliminary jury instruction given by the
district court at the outset of his trial.

The district court provided the jury with preliminary instructions which included
the following statement:

"That is why it is so important that you base your verdict only on the information
you receive in this courtroom. You must not engage in any activity or be exposed to any
information that might unfairly effect the outcome of this case. Any juror who violates
these restrictions I have explained to you jeopardizes the fairness of these proceedings
and mistrial could result that would require the entire to [sic] trial process to start over.
"As you can imagine a mistrial is a tremendous expense and inconvenience to the
parties, the Court, and the taxpayers. If any juror's exposed to any outside information or
has any difficulty whatsoever of following these instructions, please notify the Court
immediately. If any juror becomes aware that one of your fellow jurors has done
something that's violated these instructions, you are obligated to report that to the Court
as well." (Emphasis added.)

The record indicates that the preliminary instructions were given by the judge
without the parties having an opportunity to read, comment on, or object to them. Such a
procedure for preliminary instructions is ill-advised because it prevents the parties from
lodging any objection they may have. Burton nevertheless concedes that he did not
4

contemporaneously object to this instruction. Because Burton did not object, this court
applies a clear error rule. See K.S.A. 2014 Supp. 22-3414(3).

An appellate court uses a two-step process in determining whether the challenged
instruction was clearly erroneous: (1) the court must determine whether there was any
error at all by considering whether the subject instruction was legally and factually
appropriate, employing an unlimited review of the entire record; and (2) if the court finds
error, it must assess whether it is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred. State v. Smyser, 297 Kan. 199,
204, 299 P.3d 309 (2013). Reversibility is subject to unlimited review and is based on the
entire record. The party claiming error in the instructions has the burden to prove the
degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322
P.3d 353 (2014). Therefore, Burton must show us that this is reversible error.

In State v. Salts, 288 Kan. 263, 265-67, 200 P.3d 464 (2009), the Kansas Supreme
Court ruled a "burden-type" instruction was erroneous. Our Supreme Court held: "[t]he
language '[a]nother trial would be a burden on both sides' in PIK Crim. 3d 68.12 is error."
288 Kan. at 266. The court stated the pattern instruction should be changed:

"The PIK Committee should strike this language from this instruction. If the Committee
believes that the message the State wishes to deliver — that jurors should treat the matter
seriously and keep an open mind —should be communicated to criminal juries, then the
pattern instruction should be changed to state exactly that." Salts, 288 Kan. at 266-67.

Since Salts, our Supreme Court has consistently held that informing the jury that
another or second trial would be a burden on both sides is erroneous. See, e.g., State v.
Gleason, 299 Kan. 1127, 1180, 329 P.3d 1102 (2014); State v. King, 297 Kan. 955, Syl. ¶
7, 305 P.3d 641 (2013); State v. Parks, 294 Kan. 785, 801, 280 P.3d 766 (2012).
5

Most of what the district court read in the preliminary instructions can be found in
PIK Crim. 4th 50.010. The inserted language, "As you can imagine a mistrial is a
tremendous expense and inconvenience to the parties, the Court, and the taxpayers" is not
found in the PIK. The State nevertheless tries to explain why it is not misleading to tell a
jury a mistrial would be a burden and argues that to find the language used here
erroneous would require this court to ignore the context of the instructions. The State
points out that these instructions were given to ensure Burton received a fair trial free
from misconduct and were not given in the course of normal jury instructions prior to the
jury adjourning.

Unfortunately, the State does not explain how the context makes the language at
issue legally appropriate. Under the rationale of Salts, the district court's remarks are just
as coercive and constituted legal error. In State v. Davis, No. 111,902, 2015 WL
4366527, at *4-5 (Kan. App. 2015) (unpublished opinion), a panel of this court found the
preliminary instruction "[a]s you can imagine, a mistrial is an expense and inconvenience
to the parties, the Court, and the taxpayers" is erroneous. We agree with that ruling. We
must now decide if this error requires reversal.

We are not convinced that the jury would have reached a different verdict if the
district court had not given this portion of the preliminary instructions. Burton concedes
that this case "amounted to a credibility contest." And this court does not reweigh the
evidence, assess the credibility of the witnesses, or resolve conflicting evidence. See
State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). Looking at the entire record, the
State presented sufficient evidence to support the verdict even in light of the erroneous
jury instruction. Burton admitted he struck Hinostroza with the bicycle handlebars.
Hinostroza testified that he received 12 stitches, three broken ribs, an injured fourth rib,
and a bruised shoulder. In other words, Burton has not proved the degree of prejudice
necessary for reversal. We hold that even though the preliminary instruction was
erroneous, we will not overturn Burton's conviction because it was not clearly erroneous.
6

A lesser included offense instruction of simple battery was not required.

Next, Burton complains that the jury might have convicted him of simple battery
instead of aggravated battery had the district court instructed the jury on this lesser
included offense. We do not think so.

The general rule requires some evidence. "In cases where there is some evidence
which would reasonably justify a conviction of some lesser included crime . . . the judge
shall instruct the jury as to the crime charged and any such lesser included crime." K.S.A.
2014 Supp. 22-3414(3). Because Burton did not ask for an instruction on simple battery
or object to the district court's failure to give this instruction, he must once again show us
that this is reversible error to fail to give the instruction. See K.S.A. 2014 Supp. 22-
3414(3).

Burton argues that the lesser included offense instruction on simple battery was
appropriate because the same evidence that supported the reckless causing of bodily harm
for the felony charge would support the reckless causing of bodily harm for simple
battery; thus, leaving the only possible question for the jury being the manner in which
Burton inflicted the bodily harm—causing bodily harm or causing bodily harm in a
manner that can cause great bodily harm.

Under K.S.A. 2012 Supp. 21-5413, simple battery can be committed in two ways:
"(1) Knowingly or recklessly causing bodily harm to another person; or (2) knowingly
causing physical contact with another person when done in a rude, insulting or angry
manner." Here, the jury found sufficient evidence to convict Burton of severity level 8
aggravated battery based upon him "recklessly causing bodily harm to another person . . .
in any manner whereby great bodily harm, disfigurement or death can be inflicted."
K.S.A. 2012 Supp. 21-5413(b)(2)(B).

7

The State also concludes that because all of the elements of simple battery under
K.S.A. 2012 Supp. 21-5413(a)(1) are contained in the aggravated battery severity level 8
person felony under K.S.A. 2012 Supp. 21-5413(b)(2)(B), Burton is correct in arguing
that failing to give the simple battery instruction was error. Thus, the State is essentially
agreeing that the lesser included offense instruction of simple battery was legally
appropriate here or is warranted in all instances when a defendant is charged with
aggravated battery. However, both Burton and the State fail to consider that before
making a clearly erroneous determination, we must necessarily look first at whether the
instruction was not only legally appropriate but also whether it was factually appropriate.
Smyser, 297 Kan. at 204.

Burton does not directly contend that Hinostroza suffered only bodily harm. Nor
does Burton cite a definition of bodily harm, cases discussing bodily harm or great bodily
harm, or argue the evidence. The substance of Burton's argument is based on his claim
that the jury may have convicted him of aggravated battery "simply because [Hinostroza]
was injured." Burton asserts that even though the jury rejected his theory of self-defense,
had they considered the lesser included offense of simple battery there was a possibility
they "would convict him of the lesser because they did not think [or] believe that the
injury was caused in a manner that would result in great bodily harm, disfigurement, or
death."

We do not agree. The dispositive question here is whether the evidence factually
supported an instruction for lesser degrees of a single crime. Our Supreme Court has
made it clear,"[w]here there is no substantial testimony applicable to the lesser degrees of
the offense charged and all of the evidence taken together shows that the offense, if
committed, was clearly of the higher degree, instructions relating to the lesser degrees of
the offense are not necessary." State v. Shortey, 256 Kan. 166, Syl. ¶ 2, 884 P.2d 426
(1994); see K.S.A. 2014 Supp. 22-3414(3).
8

We find the record does not support a lesser included offense instruction for
simple battery. The district court only has a duty to instruct on all possible offenses
supported by substantial evidence. State v. Brice, 276 Kan. 758, Syl. ¶ 4, 80 P.3d 1113
(2003). Such an analysis is conducted on a case-by-case basis. Brice, 276 Kan. at 774. If
the evidence showed that the harm to Hinostroza was slight, trivial, minor, or moderate,
such as bruising, then the district court was required to give a lesser included offense
instruction on simple battery. Alternatively, if the evidence showed Hinostroza's injury
was not slight, trivial, moderate, or minor, then it would not be error for the district court
to forgo a simple battery instruction. See State v. Smith, 39 Kan. App. 2d 64, 70, 176 P.3d
997, rev. denied 286 Kan. 1185 (2008).

At trial, Burton admitted to hitting Hinostroza with the bicycle handlebars.
Hinostroza testified that as a result of being hit by Burton he received 12 stitches in his
head, three broken ribs and a fourth rib with ripped cartilage, and a bruised shoulder. In
closing arguments, Burton's counsel acknowledged his client had fought with Hinostroza
and that as a result, Hinostroza was injured. However, counsel contended that Burton was
defending himself from being attacked by Hinostroza and suggested, at most, Hinostroza
only had two broken ribs and had received four to five stitches. Counsel questioned the
extent of Hinostroza's injuries based on the testimony from Officer Justin Hill that
Hinostroza had informed him the day after the incident that he had two broken ribs and
that he thought he received four to five stitches, but was not sure.

Regardless of the conflicting testimony regarding the extent of Hinostroza's
injuries, which we will not resolve, it is uncontested that Burton struck Hinostroza with
the bicycle handlebars with sufficient force to hospitalize Hinostroza for broken ribs and
a cut requiring stitches, injuries that were not slight, minor, trivial, moderate, or akin to
mere bruising. His injuries required surgical repair. See Brice, 276 Kan. at 774.
Moreover, Burton's defense was not that he did not hit Hinostroza with the bicycle
handlebars or that he committed simple battery, but that he hit Hinostroza in self-defense.
9

Thus, Burton was either guilty of aggravated battery or not guilty at all. See State v.
Davis, 236 Kan. 538, 542-43, 694 P.2d 418 (1985). The district court did not err in failing
to instruct the jury sua sponte on the lesser included offense of simple battery.

We review the criminal history issue.

Finally, Burton argues the district court violated Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it enhanced his sentences based
upon his criminal history without first requiring his prior convictions be alleged in the
complaint and be proven beyond a reasonable doubt. Burton concedes that the Kansas
Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d
781 (2002), but raises it to preserve federal review.

Our Supreme Court recently reaffirmed Ivory in State v. Baker, 297 Kan. 482, 485,
301 P.3d 706 (2013). This court is duty bound to follow Kansas Supreme Court precedent
absent some indication that the court is departing from its earlier position. See State v.
Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946
(2012). Since there is no indication our Supreme Court is departing from Ivory, we are
compelled to conclude that the district court did not violate Apprendi in sentencing
Burton.

Affirmed.