State v. Wininger

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NOT DESIGNATED FOR PUBLICATION

No. 114,431

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDMOND LEE WININGER,
Appellant.


MEMORANDUM OPINION

Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge. Opinion filed March 17,
2017. Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ.

Per Curiam: Edmond Lee Wininger appeals from his convictions for aggravated
indecent liberties with a child and indecent liberties with a child. On appeal, Wininger
contends that the district court erred by failing to instruct the jury on general intent.
Under the circumstances presented in this case, we find that a general intent instruction
would have been unnecessary and superfluous. Moreover, in light of the legally
appropriate instructions the district court gave regarding the intent required to find a
defendant guilty of aggravated indecent liberties and indecent liberties, we find that a
general intent instruction would likely have caused confusion to the jury. Thus, we
affirm.
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FACTS

The State charged Wininger with one count of aggravated indecent liberties with a
child under the age of 14, an alternative count of indecent liberties with a child between
14 and 16, and one count of indecent liberties with a child between 14 and 16.
Specifically, the State alleged that Wininger had inappropriate contact with the child—
who was his stepgranddaughter—on several occasions. At the conclusion of a 3-day jury
trial, the jury convicted Wininger on each of the charges.

The parties are well aware of the facts and we will not repeat them all in this
opinion. In summary, the evidence at trial showed that Wininger had inappropriately
kissed C.G. on multiple occasions. Moreover, the evidence showed that Wininger
inappropriately touched C.G. on at least one occasion. The evidence further showed that
when law enforcement officers interviewed Wininger, he admitted to an open mouth kiss
as well as to touching C.G. on the breast and on the buttocks.

During the jury instruction conference following the close of evidence, Wininger's
counsel generically requested a general intent instruction. Although the district court
found it to be unnecessary to instruct the jury regarding general intent, it offered
Wininger's attorney the opportunity to present authority in support of his request and said
that it would consider a substitute instruction. However, it appears from the record that
Wininger's attorney did not produce a substitute instruction and the issue was not
addressed again.

Following his convictions, Wininger moved for a judgment notwithstanding the
verdict and, in the alternative, for a new trial. The district court denied the motion and
sentenced Wininger to life in prison with a mandatory 25-year minimum and lifetime
postrelease supervision on the aggravated indecent liberties with a child conviction. The
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district court also sentenced him to a consecutive 34-month sentence for the indecent
liberties with a child conviction. Subsequently, Wininger timely filed a notice of appeal.

ANALYSIS

On appeal, Wininger contends that the district court erred in failing to instruct the
jury on his defense that the "lewd fondling or touching" must be intentional. In response,
the State contends that a general intent instruction was not legally or factually
appropriate. In addition, the State contends that even if the district court erred in failing to
give a general intent instruction, any such error was harmless.

The standard of review when addressing challenges to jury instructions is based
upon the following analysis:

"'"(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012)."' [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-
57, 373 P.3d 781 (2016).

The State argues that Wininger failed to properly preserve this issue for appeal.
Specifically, the State notes that Wininger did not request a specific jury instruction. As a
general rule, we decline the opportunity to consider issues that have not been raised
before the district court. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008).
Here, the record reflects that Wininger did object to the element instructions as given and
requested that "knowingly and intentionally" be added. Accordingly, we conclude that
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Wininger sufficiently preserved the issue of whether the district court should have added
the words "knowingly and intentionally" to the element instructions for appeal.

Moving on to the second and third steps of the analysis, we look to see if the jury
instruction is legally and factually appropriate. Even if we assume that adding
"knowingly and intentionally" to the element instructions would be legally and factually
appropriate, such additional language is not necessary and could result in confusion to the
jury. We note that each of the element instructions given to the jury by the district court
appropriately included an intent element. Specifically, the district court instructed the
jury that Wininger could only be found guilty of aggravated indecent liberties with a
child and/or indecent liberties with a child if the State proved beyond a reasonable doubt
that he "engaged in lewd fondling or touching of C.G. with the intent to arouse or satisfy
the sexual desires of C.G., [Wininger], or both." See K.S.A. 2010 Supp. 21-
3504(a)(3)(A); K.S.A. 21-3503(a)(1).

Finally, even if the district court erred, a review of the record on appeals reveals
that any such error was harmless. "'Before a Kansas court can declare an error harmless it
must determine the error did not affect a party's substantial rights, meaning it will not or
did not affect the trial's outcome.'" State v. Plummer, 295 Kan. 156, 162, 283 P.3d 202
(2012) (quoting State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 [2011]). Here, Wininger
admitted that he had kissed C.G. in a "romantic" manner and that he touched her with his
hand "roaming" up and down her body. Furthermore, C.G. and her sister testified at trial
regarding Wininger's interactions with C.G. Additionally, the district court did not prevent
Wininger from raising any of his defenses to the jury. Thus, we find no real possibility
that adding "intentionally and knowingly" to the elements instruction—or even giving a
separate general intent instruction—would have changed the outcome of the trial in light
of the overwhelming evidence against Wininger.

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In conclusion, we find that the district court properly instructed the jury that the
State was required to prove beyond a reasonable doubt that Wininger specifically
intended to arouse or satisfy the sexual desires of himself, C.G., or both. To have also
instructed the jury on general intent would have been superfluous and confusing to the
jurors in their deliberations. In particular, it would have blurred the lines between general
and specific intent. See State v. Ellmaker, 289 Kan. 1132, 1141, 221 P.3d 1105 (2009).
Accordingly, we affirm Wininger's convictions.

Affirmed.