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State v. Morton

January 18, 2008

STATE OF KANSAS, APPELLEE,
v.
TIM MORTON, APPELLANT.



Appeal from Morton District Court; NELS P. NOEL, Judge.

SYLLABUS BY THE COURT

1. When the sufficiency of the evidence is reviewed in a criminal case, an appellate court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. Under aggravated battery, great bodily harm is more than slight, trivial, minor, or moderate harm and does not include mere bruising, which is likely to be sustained by simple battery. Unless specifically designated great bodily harm as a matter of law, the issue of whether an injury constitutes great bodily harm is a question of fact for the jury.

3. Disfigurement has no single technical meaning or single definition and should be considered in the ordinary sense. When an injury has been established, the question of whether it constitutes great bodily harm or disfigurement is normally a question to be determined by the trier of fact.

4. K.S.A. 21-3414(a)(1)(B) does not require the State to prove great bodily harm or disfigurement was inflicted, only that it could have been inflicted.

5. A contemporaneous objection to alleged prosecutorial misconduct is not required in order to preserve the issue for appeal; an appellate court will apply the same standard of review regardless of whether the defendant lodged an objection.

6. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

7. In the second step of the two-step analysis, the appellate court considers three factors: (a) whether the misconduct was gross and flagrant; (b) whether the misconduct showed ill will on the prosecutor's part; and (c) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and the federal constitutional standard have been met.

8. Generally, a prosecutor's personal opinion in closing argument regarding the credibility of a witness is improper. However, reasonable inferences may be drawn from the evidence and considerable latitude is allowed the prosecutor in discussing the evidence. If an improper opinion is expressed, the court must next consider whether the opinion statements constitute plain error.

9. A misstatement of the law by a prosecutor denies the defendant a fair trial when the facts are such that the jury could have been confused or misled by the statement.

10. The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is clearly improper for the prosecutor to state facts that are not in evidence. When the prosecutor argues facts that are not in evidence, the first prong of the prosecutorial misconduct test is met, and an appellate court must consider whether the misstatement of fact constitutes plain error.

11. Repetitive or cumulative prosecutorial misconduct, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.

12. Under the facts of this case, the prosecutorial error, if any, did not constitute plain error or deprive the defendant of a fair trial.

13. The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Including a defendant's prior criminal convictions in his or her criminal history has been held to be proper. The Supreme Court of Kansas has consistently held criminal history does not need to be submitted to the trier of fact and proved beyond a reasonable doubt.

The opinion of the court was delivered by: Knudson, J.

Affirmed.

Before MARQUARDT, P.J., and LEBEN, J., and KNUDSON, S.J.

Tim Morton appeals his convictions for aggravated battery of a law enforcement officer and aggravated assault on a law enforcement officer. The issues on appeal are: (1) was there prosecutorial misconduct; (2) was the evidence sufficient to support the aggravated battery of a law enforcement officer conviction; and (3) were prior criminal convictions improperly considered in determining Morton's criminal history.

We affirm. There was prosecutorial misconduct, but it did not prejudice Morton's right to a fair trial. The evidence was sufficient to support both convictions. Including prior criminal convictions in an offender's criminal history without submission to a jury or requiring proof beyond a reasonable doubt is proper. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Underlying Circumstances

On September 7, 2005, the Morton County Sheriff's Department apprehended Tim Morton who had escaped from lawful custody. Sheriff Loren Youngers transported Morton from his jail cell to the local hospital for treatment of an arm laceration Morton had sustained during his escape. While being treated in the emergency room, Morton escaped from custody a second time by feigning diarrhea and sneaking out of the bathroom.

When Youngers discovered Morton was missing, he left the hospital and drove several blocks away to a house owned by one of Morton's relatives. He immediately observed Morton enter the residence. Youngers chased Morton into the basement and discovered Morton attempting to hide on top of a freezer at the base of ...


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