State v. Wright

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NOT DESIGNATED FOR PUBLICATION

No. 114,815

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RODNEY ALLEN WRIGHT,
Appellant.

MEMORANDUM OPINION


Appeal from Greenwood District Court; DAVID A. RICKE, judge. Opinion filed December 2,
2016. Affirmed.

Rick Kittel, of Kansas Appellate Defender Officer, for appellant.

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

Before MCANANY, P.J., PIERRON, J., and BURGESS, S.J.

Per Curiam: A jury convicted Rodney Allen Wright of one count of criminal
threat and one count of criminal damage to property. The district court sentenced him to
15 months in prison. Wright appeals, arguing the district court erred by failing to give a
voluntary intoxication jury instruction. We affirm.

On March 29, 2015, at around 7 p.m. Joe Morgan met Justin Cook at a property
Morgan was buying. An older house and Rodney Wright's camper both stood on the
property. This property was next door to a property Morgan already owned.

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Morgan and Cook began examining the house for possible repairs. Wright came
out of his camper and told Morgan he was trespassing. Morgan told Wright he was
buying the property and Wright had 30 days to vacate. Morgan also told Wright he owed
Morgan for an electric bill. By agreement, a nearby shop Morgan owned supplied the
electricity to Wright's camper. Wright became angry and told Morgan, "In 30 days, you'll
be dead."

Wright then swung at Morgan and knocked his glasses off. Morgan tried to call
the police on his flip phone, but Wright grabbed the phone and broke it in half. Morgan
got out his other phone to call 911, but it was not getting any service. Morgan went to his
truck, opened the door, and reached for his shotgun. Cook told Morgan not to pick up the
gun, so Morgan left it in the truck.

Wright grabbed Morgan by the shoulders and spun him around. Morgan took out a
knife and stabbed Wright. Wright pulled up his shirt and said, "Look what you did to
me." Wright ran to a neighbor's house and then returned to his camper. Morgan testified
at trial that he feared for his life because Wright had told him several times that when "he
fights, he fights to kill."

Deputy Oakley arrived at around 7:20 p.m. He made contact with Wright, who
showed Deputy Oakley his stab wound. Wright explained that he and Morgan had a
disagreement over property. Morgan had told him he would be evicted in 30 days, and
Wright responded that he could not be evicted because he was on his own property.
Wright said he pushed Morgan, and Morgan stabbed him.

Wright resisted medical treatment at the scene. Deputy Oakley noticed a strong
odor of alcohol coming from Wright while the emergency medical service (EMS)
personnel attempted to treat him. Deputy Oakley determined Wright was too intoxicated
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to decide for himself whether he was injured. The EMS transported him to the hospital
even though Wright was not under arrest.

At the hospital, Wright told Deputy Oakley that he was working undercover for a
law enforcement agency in Topeka. He yelled several times that he needed to get out of
the hospital because his cover had been blown. Wright became so agitated that Deputy
Oakley handcuffed him to the bed. Wright then said he was going to kill Morgan in 30
days.

Wright testified at trial that he had known Morgan for "20 some years" and he was
just joking when he told Morgan he was trespassing. Wright stated that Morgan had told
him he had a week to vacate the property. Morgan then reached for his phone. According
to Wright, Cook must have thought he was going to grab Morgan, so Cook grabbed
Wright. Wright swung free from Cook and in the process knocked Morgan's glasses off.
When Morgan stepped forward, Wright heard something break. At the time, he thought
Morgan had broken his glasses. At trial, however, Wright testified he "guess[ed] it was
his phone." Wright denied ever touching Morgan's phone.

Wright testified that Morgan ran to his pickup truck and he caught up to Morgan
just as he opened the truck's door. Morgan had his hand on his shotgun, but then spun
around and stabbed Wright. Wright testified, "If the man stabbed me, he was going to
shoot me. That's what I was worried about, and I got away from him." Wright then went
to a neighbor's house, and someone called law enforcement.

Wright denied ever threatening Morgan. He denied taking any medication or
anything that would cloud his recollection. He testified he began drinking a six pack of
beer that day around 2:30 p.m. and finished around 7 p.m. During that time, he also ate a
sandwich, drank a Pepsi, and took a nap. He did not believe he was intoxicated at the
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time of the incident. After the incident, he returned to his trailer and drank half a can of
beer, which had already been opened.

Wright did not remember telling Deputy Oakley that he was an undercover officer
with the Shawnee County Sheriff's Office. He added, though, that at the time he was
"pretty freaked out" and "anything could have happened." He also did not remember
telling the officer at the hospital that he was going to kill Morgan in 30 days.

After the close of evidence, the district court held a jury instructions conference.
Neither party requested or discussed a voluntary intoxication instruction. Defense counsel
did not present a voluntary intoxication defense in closing argument.

The jury found Wright guilty of criminal threat and criminal damage to property
and acquitted him of criminal restraint and battery. The district court sentenced him to 15
months in prison. Wright appeals.

Wright argues the district court erred when it failed to instruct the jury sua sponte
on the defense of voluntary intoxication. He contends the instruction was legally
appropriate because criminal threat is a specific intent crime. He asserts it was factually
appropriate because there was sufficient evidence of his intoxication. Finally, he argues
there was a real possibility the jury would have returned a different verdict if given an
instruction on voluntary intoxication.

The State argues the district court did not err in not moving sua sponte to provide
a jury instruction on voluntary intoxication. It argues that such an instruction would have
been legally appropriate. The State contends, however, that the instruction would not
have been factually appropriate because Wright did not provide sufficient evidence of his
intoxication. The State also asserts that even if the court did err in not giving the
instruction, the error was harmless given the evidence presented at trial.
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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).

Wright did not request an instruction on involuntary intoxication nor did he object
to the district court's failure to give one. When a defendant challenges a district court's
failure to give a jury instruction for the first time on appeal, we apply the clearly
erroneous standard identified in 2015 Supp. K.S.A. 22-3414(3). To establish clear error
under this standard, "'the defendant must firmly convince the appellate court that the
giving of the instruction would have made a difference in the verdict.' [Citation omitted.]"
State v. Cooper, 303 Kan. 764, 771, 366 P.3d 232 (2016).

A defendant may use a voluntary intoxication defense to negate the intent element
of a specific intent crime. State v. Hilt, 299 Kan. 176, 192, 322 P.3d 353 (2014). Under
K.S.A. 2015 Supp. 21-5202(h), a specific intent crime is any crime "in which the mental
culpability requirement is expressed as 'intentionally' or 'with intent.'" Criminal threat is
"any threat to: (1) Commit violence communicated with intent to place another in fear."
(Emphasis added.) K.S.A. 2014 Supp. 21-5415(a)(1). Because it has the requisite mental
culpability requirement, criminal threat is a specific intent crime. See also State v.
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Meinert, 31 Kan. App. 2d 492, 499, 67 P.3d 850 (2003) (finding criminal threat requires
specific intent based on an earlier version of the statute).

Even though a voluntary intoxication defense was legally appropriate for Wright's
charged crime, a jury instruction on voluntary instruction would have conflicted with
Wright's theory of defense at trial. Wright correctly points out that a defendant may rely
upon a voluntary intoxication defense even if it is inconsistent with the defendant's other
theories of defense. State v. Shehan, 242 Kan. 127, 130-31, 744 P.2d 824 (1987). Still,
Kansas courts have shown reluctance to reverse district courts for failing to give the
theory of defense instructions sua sponte.

For example, in State v. Sappington, 285 Kan. 158, 169 P.3d 1096 (2007), the
defendant relied on a mental disease or defect defense at trial and did not request a
voluntary intoxication instruction. On appeal, however, he argued the district court
should have sua sponte given a voluntary intoxication instruction. Our Supreme Court
held that the district court did not err in failing to give the instruction sua sponte. In
reaching this conclusion, the court noted the ability to present a theory of defense is
fundamental to a fair trial and "imposing a defense upon a defendant which is arguably
inconsistent with the one upon which he completely relies—by providing the jury with a
defense instruction that neither party requests—is akin to denying the defendant the
meaningful opportunity to present his chosen theory of defense." 285 Kan. at 165.
Accordingly, the Sappington court held that district courts do not have "to instruct juries
on every possible theory of defense for which some evidence has been presented when
the defendant has not relied upon that defense." 285 Kan. at 165; see State v. Brown, 291
Kan. 646, 658-59, 244 P.3d 267 (2011); State v. Trussell, 289 Kan. 499, 505, 213 P.3d
1052 (2009).

In this case, Wright presented a self-defense theory at trial and made no mention
of a voluntary intoxication defense. In State v. Gonzales, 253 Kan. 22, 24, 853 P.2d 644
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(1993), our Supreme Court found that the district court did not err in failing to give a
voluntary intoxication instruction sua sponte when the defendant had relied on a theory
of self-defense at trial. The Gonzales court noted such an instruction would have
undermined the defendant's chosen theory of self-defense because "[t]he very credibility
of his theory of self-defense depended on his convincing the jury that he was alert and
aware of the danger to himself from the victim." 253 Kan. at 24. Similarly, if the district
court here had instructed the jury about voluntary intoxication, this would have
undermined Wright's chosen defense that he was aware of the danger that Morgan
presented and he was reacting to that danger. Therefore, the district court did not commit
clear error in not giving the instruction at issue.

Affirmed.