State v. Holmes

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NOT DESIGNATED FOR PUBLICATION

No. 116,338


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LONNIE ALONZO HOLMES,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed November
22, 2017. Reversed and remanded.

Jennifer C. Roth and Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for
appellant.

Michael G. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and GREEN, JJ.

PER CURIAM: Lonnie A. Holmes was convicted by jury of one count of
aggravated battery. Holmes appeals, arguing (1) that the prosecutor committed reversible
error during voir dire and closing arguments; (2) that the trial court committed clear error
in failing to instruct the jury on the lesser included offense of simple battery; (3) that the
trial court committed clear error in failing to provide a limiting instruction to the jury in
light of evidence admitted under K.S.A. 2015 Supp. 60-455; (4) that in the alternative, he
is entitled to relief under the cumulative error doctrine; and (5) that the trial court violated
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Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in
sentencing him without requiring the State to prove his criminal history beyond a
reasonable doubt.

While reviewing the record on appeal and the briefs filed by the parties, this court
became aware of another issue which might be dispositive of his appeal in this case. As a
result, this court issued a show cause order to the parties. The parties were directed to
brief the issue of whether the trial court's instructions to the jury allowed the jury to
convict Holmes of an offense different from the offense charged in the State's complaint.
We determine that because the trial court's jury instructions broadened the basis for
Holmes' conviction beyond the acts charged in the State's complaint, this was reversible
error. Accordingly, we reverse and remand for a new trial.

On August 14, 2015, Lonnie Holmes was charged with aggravated battery under
K.S.A. 2015 Supp. 21-5413(b)(1)(B). The complaint read: "That on or about the 14th
day of August, 2015, in Leavenworth County, Kansas, Lonnie Alonzo Holmes, then and
there being present did unlawfully, feloniously and knowingly cause bodily harm to
another person . . . in any manner whereby great bodily harm, disfigurement or death can
be inflicted." The complaint was drawn in the language of K.S.A. 2015 Supp. 21-
5413(b)(1)(B), which reads: "(b) Aggravated battery is: . . . (1)(B) knowingly causing
bodily harm to another person . . . in any manner whereby great bodily harm,
disfigurement or death can be inflicted."

The arrest warrant issued for Holmes also indicated that he was being charged
with aggravated battery under K.S.A. 2015 Supp. 21-5413(b)(1)(B), as did the
Leavenworth Police Department's probable cause affidavit.

On March 21, 2016, Holmes' jury trial began. At jury selection, the State made
reference to the charges under K.S.A. 2015 Supp. 21-5413(b)(1)(B). While not expressly
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mentioning the statute, the prosecutor told the jury that "it's an allegation of aggravated
battery, which means that the State has alleged that the defendant . . . caused bodily harm
. . . in a manner where great bodily harm, disfigurement, or death can be inflicted." The
prosecutor referenced "bodily harm" two more times in his remarks to the jury. The
prosecutor's statements reinforce that the State was proceeding under a theory aligned
with the language of K.S.A. 2015 Supp. 21-5413(b)(1)(B).

When the trial court gave its preliminary instructions to the jury, however, the
elements it identified that needed to be proved by the State were not those referenced in
K.S.A. 2015 Supp. 21-5413(b)(1)(B). The court instructed the jury as follows:

"The defendant is charged with aggravated battery. The defendant pleads not guilty. To
establish this charge, each of the following claims must be proved: One, the defendant
knowingly caused physical contact with Amanda Aldridge in a rude, insulting, or angry
manner, in any manner whereby great bodily harm, disfigurement, or death can be
inflicted; . . ."

The trial court's preliminary instruction differs from the language referenced in K.S.A.
2015 Supp. 21-5413(b)(1)(B), insofar as the instruction requires "physical contact in a
rude, insulting, or angry manner" and (b)(1)(B) requires "bodily harm." Upon closer
inspection, it becomes clear that the trial court's preliminary instruction was drawn from
the language of K.S.A. 2015 Supp. 21-5413(b)(1)(C), which reads: "(b) Aggravated
battery is: . . . (1)(C) knowingly causing physical contact with another person when done
in a rude, insulting or angry manner . . . or in any manner whereby great bodily harm,
disfigurement or death can be inflicted."

At the close of evidence, the parties met to discuss jury instructions. The trial court
indicated that the State had provided it with an aggravated battery instruction. The trial
court adopted the State's instruction. The aggravated battery instruction given at trial
read:
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"The defendant is charged with aggravated battery. The defendant pleads not guilty. To
establish this charge, each of the following must be proved:
"(1) The defendant knowingly caused physical contact with Amanda Aldridge in a
rude, insulting or angry manner in any manner whereby great bodily harm,
disfigurement or death can be inflicted."

Again, this instruction does not match the language from the complaint or from
K.S.A. 2015 Supp. 21-5413(b)(1)(B). Instead, it is apparent that this instruction was
drawn from the language of K.S.A. 2015 Supp. 21-5413(b)(1)(C). The trial court also
instructed the jury on the lesser included offense of simple battery, mirroring the
language from its aggravated instruction. The lesser included offense instruction was
drawn from the language of K.S.A. 2015 Supp. 21-5413(a)(2), which reads: "(a)
[b]attery is: . . . (2) knowingly causing physical contact with another person when done in
a rude, insulting or angry manner." The lesser included instruction read:

"If you do not agree that the defendant is guilty of aggravated battery . . . you should
consider the lesser included offense of battery. To establish this charge, each of the
following claims must be proved:
"(1) The defendant knowingly caused physical contact with Amanda Aldridge in a
rude, insulting or angry manner."

Both parties agreed that the instructions were proper. During closing arguments,
the State argued using the language of the aggravated battery instruction that was given.
The State contended that "[w]hat we do have is that there was physical contact in a rude,
insulting, or angry manner whereby great bodily harm, disfigurement, or death can be
inflicted"—thus mimicking the language from K.S.A. 2015 Supp. 21-5413(b)(1)(C). The
jury deliberated and returned a guilty verdict on the charge of aggravated battery.
Holmes' presentencing investigation report states that he was convicted of aggravated
battery under K.S.A. 2015 Supp. 21-5413(b)(1)(B). Holmes' sentencing journal entry of
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judgment also states that he was convicted of aggravated battery under K.S.A. 2015
Supp. 21-5413(b)(1)(B). Holmes was sentenced to 24 months' probation with an
underlying prison term of 13 months.

Here, the issue is whether it was legally appropriate for Holmes to be charged with
aggravated battery under K.S.A. 2015 Supp. 21-5413(b)(1)(B) and technically convicted
by a jury of aggravated battery under K.S.A. 2015 Supp. 21-5413(b)(1)(C) when no
amendment was ever attempted to charge him with this offense. We know that Holmes
was convicted under K.S.A. 2015 Supp. 21-5413(b)(1)(C) because the jury instruction
given at trial reflects the language from that section of the statute. Thus, when the jury
deliberated, it considered the elements from K.S.A. 2015 Supp. 21-5413(b)(1)(C) and not
the elements from K.S.A. 2015 Supp. 21-5413(b)(1)(B). This is true despite the
postconviction documents stating that Holmes had been convicted under K.S.A. 2015
Supp. 21-5413(b)(1)(B). The record on appeal shows that the complaint against Holmes
was never amended to charge him with aggravated battery as defined in K.S.A. 2015
Supp. 21-5413(b)(1)(C).

A review of the aggravated battery statute shows that convictions under K.S.A.
2015 Supp. 21-5413(b)(1)(B) and (b)(1)(C) are both classified as severity level 7, person
felonies. See K.S.A. 2015 Supp. 21-5413(g)(2)(B). Accordingly, it is unlikely that
Holmes' sentence was affected by the discrepancy between the complaint and the jury
instructions.

Did a Constructive Amendment of the Complaint in This Matter Occur When Holmes
Was Charged With Aggravated Battery Under K.S.A. 2015 Supp. 21-5413(b)(1)(B) and
Technically Convicted of Aggravated Battery Under K.S.A. 2015 Supp. 21-5413(b)(1)(C)
When No Amendment to Charge Him With This Offense Was Ever Attempted?

Holmes argues that "[t]he court's instruction was an impermissible constructive
amendment and constitutes structural error." Moreover, because constructive
amendments are per se reversible, Holmes asserts that we must reverse his conviction.
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Whether a criminal complaint has been impermissibly constructively amended is
reviewed de novo. United States v. Farr, 536 F.3d 1174, 1179 (10th Cir. 2008). The
State, on the other hand, argues that the issue is a simple jury instruction issue. The State
argues that because Holmes cannot show that the claimed jury instruction error amounted
to clear error, he is not entitled to relief.

Notably, the State does not address the constructive amendment argument in its
supplemental brief. Instead, the State frames the issue as a jury instruction issue. Because
Holmes did not object to the use of the incorrect jury instruction at trial, the State argues
that we should review the issue under a clearly erroneous standard. Under a clearly
erroneous standard, before this court could reverse Holmes' conviction it would have to
be "firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred." State v. Trujillo, 296 Kan. 625, 630, 294 P.3d 281 (2013).

Impermissible constructive amendments, on the other hand, are reversible per se.
See Farr, 536 F.3d at 1185 (citing United States v. Sells, 477 F.3d 1226, 1237 [2007]);
see also State v. Montes, No. 104,563, 2012 WL 307532, at *5 (Kan. App. 2012)
(unpublished opinion) (citing Sells, 477 F.3d at 1237).

The State concedes that the jury instructions given were erroneous but argues that
they did not amount to clear error—the standard required when a defendant fails to object
to a jury instruction at trial. See State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016).
The State specifically argues that the error does not amount to clear error because
sufficient evidence existed at trial to support a conviction under either subsection of the
aggravated battery statute—(b)(1)(B) as charged or (b)(1)(C) as instructed—and because
Holmes had notice of the facts supporting the charge against him. Accordingly, the State
requests that this court remand the case so that the trial court may issue an order nunc pro
tunc to change Holmes' journal entry of judgment to list the crime of conviction as
K.S.A. 2015 Supp. 21-5413(b)(1)(C) and not K.S.A. 2015 Supp. 21-5413(b)(1)(B).
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To support its ultimate conclusion that the error did not amount to clear error, the
State asserts that "[t]he issue is whether the defendant had sufficient notice of the crime
of which he was charged." This statement shows that the State misunderstands the issue
that we have identified. There is no dispute that Holmes had sufficient notice of the crime
of which he was charged. The dispute, however, is about whether Holmes had notice of
the crime on which the jury was instructed. Of course, we note that during arguments,
Holmes' counsel acknowledged that Holmes had sufficient notice of the facts supporting
the charge in the State's complaint. As a result, the State's mischaracterization of the
notice issue is not particularly troubling.

Holmes' lack of objection to the State's instructions does not escape our attention.
For example, our courts have recognized before that under the doctrine of invited error, a
defendant cannot generally challenge a jury instruction on appeal, even as clearly
erroneous, when the defendant has agreed to the wording of the instruction on the record.
State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). But we do not believe that
Holmes' failure to object to the jury instructions should be fatal to his appeal. To allow
the State and the trial court to avoid responsibility for their errors by way of the invited
error doctrine would not serve the ends of justice.

Moreover, this is not the first time that this particular trial court has made this
error. The same trial judge that oversaw Holmes' trial made the same mistake in State v.
Rhymes, No. 116,056, 2017 WL 4216192 (Kan. App. 2017) (unpublished opinion),
petition for rev. filed October 23, 2017. Although neither party cites Rhymes in their
briefs, it offers valuable guidance in this situation.

In Rhymes, the defendant was charged with traffic in contraband in a correctional
institution as defined in K.S.A. 2013 Supp. 21-5914(a)(1). The trial judge, however,
instructed the jury on traffic in contraband as defined in K.S.A. 2013 Supp. 21-
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5914(a)(3). 2017 WL 4216192, at *2. On appeal, the court did not address whether the
discrepancy between the charging document and the jury instructions amounted to a
constructive amendment. Instead, the panel addressed the issue as though it was a jury
instruction error after the defendant argued that the trial court did not have subject matter
jurisdiction. 2017 WL 4216192, at *3. The court eventually determined that the trial court
had erred but had not committed reversible clear error. Accordingly, the court affirmed
the defendant's conviction for traffic in contraband. 2017 WL 4216192, at *5.

At first glance, Rhymes may seem to lend support to the State's theory that we
should review our issue as though it was a simple jury instruction issue. Upon a closer
look, however, we note that Rhymes is distinguishable from Holmes' case. Furthermore,
we cannot ignore that this problem has very recently arisen in the same court under the
supervision of the same judge. "'The trial judge is not merely a moderator, but is the
governor of the trial.' [Citation omitted.]" State v. Kemble, 291 Kan. 109, 114, 238 P.3d
251 (2010). Moreover, as the governor of the trial, this trial judge has failed his most
important constituents—criminal defendants.

Turning once again to the Rhymes decision, we note that the defendant in Rhymes
argued that the trial court lacked subject matter jurisdiction because the jury was
instructed on a crime other than the one he was charged with. The trial court construed
the argument as a challenge to the jury instruction. Here, Holmes has actually advanced
an entirely separate argument—one we do not need to construe any way other than how it
is presented. Holmes clearly argues that the circumstances at his trial amounted to an
impermissible constructive amendment.

Furthermore, the trial court's error here permeated throughout the entirety of
Holmes' trial whereas the error in Rhymes was isolated to the final jury instructions. The
State clearly used the language from K.S.A. 2015 Supp. 21-5413(b)(1)(B) during voir
dire. Thus, the jury was impaneled based on their answers in relation to that specific
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subsection of the aggravated battery statute. Then, even before opening arguments began,
the trial court instructed the jury using the language from K.S.A. 2015 Supp. 21-
5413(b)(1)(C). Accordingly, the jury was viewing the entirety of the evidence presented
at trial through an incorrect lens—focusing on the elements of a crime that Holmes was
not charged with. There is no indication in Rhymes that any error occurred until the final
jury instructions were given. Thus, the error in Rhymes likely had less of an impact on the
jury than our error had.

Next, we must consider our standard of review. We note that both parties argue for
different frameworks for review of the issue: Holmes argues that our review should be
de novo for a constructive amendment, and the State argues that we should use the clear
error standard for a jury instruction error. Although those standards have been applied
together before, we acknowledge that they are somewhat at odds. As we have discussed,
the clearly erroneous standard is dependent upon a finding of prejudice. Under that
standard Holmes would be required to show that but for the error, the jury would have
reached a different verdict. But a constructive amendment amounts to structural error,
which means it is reversible per se without any showing of prejudice. Thus, we recognize
that an impermissible constructive amendment arising from a jury instruction error
amounts to clear error per se—even though a constructive amendment may not fit the
strict definition of "clear error."

Having settled the differences between the parties' frameworks for review, we
move on to analyze whether the trial court's errors amounted to an impermissible
constructive amendment. The Supreme Court of the United States has held "that a court
cannot permit a defendant to be tried on charges that are not made in the indictment
against him." Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 4 L. Ed. 2d 252
(1960). "Ever since Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849, was decided
in 1887, it has been the rule that after an indictment has been returned its charges may not
be broadened through amendment except by the grand jury itself." Stirone, 361 U.S. at
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215-16. Thus, "[a]n indictment is constructively amended if the evidence presented at
trial, together with the jury instructions, raises the possibility that the defendant was
convicted of an offense other than that charged in the indictment." United States v.
Apodaca, 843 F.2d 421, 428 (10th Cir. 1988). This is because "the language employed by
the government in its indictments becomes an essential and delimiting part of the charge
itself." Farr, 536 F.3d at 1181. Recognizing the rule against constructive amendments,
this court has held that "to allow such constructive amendment[s] sua sponte by the court
would render meaningless the procedural requirements established for amendment of
charging instruments. [Citations omitted.]" In re Weimer, No. 106,862, 2012 WL
6061619, at *5 (Kan. App. 2012) (unpublished opinion) (noting that K.S.A. 22-3201[e]
does not authorize constructive amendment for an additional or different crime).

"In assessing a claim of an impermissible constructive amendment, our ultimate
inquiry is whether the crime for which the defendant was convicted at trial was charged
in the indictment." Farr, 536 F.3d at 1180. Here, based on the errors of the trial court, we
answer that "ultimate inquiry" in the negative. Plainly stated, aggravated battery as
defined in K.S.A. 2015 Supp. 21-5413(b)(1)(C) was not charged in the complaint against
Holmes. Moreover, because the jury instructions given by the court broadened the basis
for conviction against Holmes, the trial court's error amounted to an impermissible
constructive amendment.

In Montes, a panel from this court applied the prohibition on constructive
amendments to a similar situation. The defendant was charged with and convicted of
conspiracy to manufacture methamphetamine. "The complaint alleged that Montes acted
in furtherance of the conspiracy when he obtained pseudoephedrine or obtained lithium
metal or obtained anhydrous ammonia or provided a coconspirator with items to
manufacture methamphetamine." 2012 WL 307532, at *5. The jury instruction on
conspiracy, however, stated that "the State had to prove that Montes acted in furtherance
of the conspiracy by manufacturing methamphetamine." 2012 WL 307532, at *4.
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On appeal, this court acknowledged that "[a] trial judge has a duty to inform the
jury of every essential element of a crime charged. Omission of an essential element in
jury instructions is clearly erroneous and requires reversal of the conviction." 2012 WL
307532, at *4 (citing State v. Richardson, 290 Kan. 176, 181-82, 224 P.3d 553 [2010]).
The court also acknowledged that "'[a] jury instruction on the elements of a crime that is
broader than the complaint charging the crime is erroneous.' [Citation omitted.]" 2012
WL 307532, at *4. Moreover, because the trial court's instruction broadened the basis for
Montes' conviction, this court held that it amounted to an impermissible constructive
amendment. 2012 WL 307532, at *5. Recognizing that a constructive amendment is
reversible per se, this court reversed Montes' conviction and remanded the case for a new
trial. 2012 WL 307532, at *5.

Here, it is not disputed that the jury was instructed on an entirely separate crime
than Holmes was charged with. Accordingly, it is not disputed that Holmes was
convicted at trial of a crime with which he was not charged. While both crimes fall under
the category of aggravated battery, the State concedes that "[h]ere, the instruction that
required a finding that Mr. Holmes made physical contact with Amanda Aldridge is
broader than the language of the complaint that required a finding that he caused bodily
harm to her." A simple reading of the statute supports the State's concession. "Physical
contact" is easier to prove than "bodily harm."

Because the trial court's instructions, and the State's arguments, impermissibly
broadened the basis for conviction against Holmes, they amounted to a constructive
amendment. Constructive amendments are reversible per se and amount to clear error.
For that reason, the State's argument that overwhelming evidence renders the error
harmless is of no consequence. Therefore, we reverse Holmes' conviction and remand for
a new trial.

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Because we have granted a new trial in this matter, it is unnecessary for us to
address the remaining contentions raised by Holmes in this appeal.

Reversed and remanded for a new trial.