Appeal from Ford District Court; VAN Z. HAMPTON, judge.
SYLLABUS BY THE COURT 1. The standard of proof for whether a defendant is entitled to immunity from criminal prosecution pursuant to K.S.A. 21-3219 is probable cause. 2. The State bears the burden of establishing proof that force was not justified as part of the probable cause determination required under K.S.A. 21-3219(b) and (c). 3. The application of an erroneous standard and burden of proof when ruling on a motion to dismiss that is based on a claim of immunity under K.S.A. 21-3219 may be harmless if, under the test of K.S.A. 60-261 and K.S.A. 60-2105, there is no reasonable probability the error affected the outcome of the trial. 4. The Kansas Legislature did not state alternative means of committing aggravated battery when it provided in K.S.A. 21-3414(a)(2)(A) that aggravated battery could be committed by "recklessly causing great bodily harm to another person or disfigurement of another person." The term "disfigurement" merely describes a factual circumstance that proves great bodily harm. As such, disfigurement is an option within a means and not an alternative means of committing aggravated battery. 5. The Kansas Legislature did not state alternative means of committing aggravated battery when it provided in K.S.A. 21-3414(a)(2)(B) that aggravated battery could be committed by "recklessly causing bodily harm to another person with a deadly weapon" or by "recklessly causing bodily harm to another person . . . in any manner whereby great bodily harm, disfigurement or death can be inflicted." The term "deadly weapon" is defined as an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury. This means that the phrase "with a deadly weapon" is merely a factual circumstance describing a manner whereby great bodily harm, disfigurement, or death, can be inflicted. As such, it is an option within a means rather than an alternative means of committing aggravated battery. 6. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. In order to ensure jury unanimity as to the specific act for which the defendant is convicted, the district court must either require the State to elect the particular criminal act upon which it will rely or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt. 7. A three-part test determines when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the district court to instruct. Third, the court must determine whether the error is reversible. 8. Acts are multiple acts if they are factually separate and distinct. Factors to consider when determining whether there is unitary conduct or multiple acts include whether: (1) the acts occurred at or near the same time; (2) the acts occurred at the same location; (3) a causal relationship existed between the acts, in particular whether an intervening event separated the acts; and (4) a fresh impulse motivated some of the conduct. 9. Evidence that a witness failed to honor a subpoena is material to credibility. 10. Under the constitutional harmless error standard, the party benefitting from the error has the burden of proving beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record, i.e., there is no reasonable possibility the error contributed to the verdict. 11. Whether an error in the exclusion of evidence is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.
The opinion of the court was delivered by
This appeal raises first-impression issues regarding the burden of proof when a criminal defendant asserts immunity from criminal prosecution under the justified use-of-force provisions of K.S.A. 21-3219. We hold that the burden of production to negate a claim of immunity rests with the State and the controlling standard of proof is probable cause. Applying those holdings to the facts of this case, we conclude the district court erred in requiring the defendant to prove by a preponderance of the evidence that the use of force was lawful. Nevertheless, we hold this error was harmless.
In another issue we consider alternative means arguments relating to the aggravated battery statute, K.S.A. 21-3414. We hold the Kansas Legislature did not state alternative means of committing aggravated battery by separately referring to "bodily harm" and "disfigurement" in K.S.A. 21-3414(a)(2)(A) or "causing bodily harm . . . with a deadly weapon" and "causing bodily harm . . in any manner whereby great bodily harm, disfigurement or death can be inflicted" in K.S.A. 21-3414(a)(2)(B).
In response to other issues raised by the defendant, we conclude: The district court did not commit error by not giving a unanimity instruction because the defendant did not commit multiple acts of battery against the victim at issue in count II and, while the district court may have erred in denying the defendant the right to cross-examine witnesses regarding why they did not honor their subpoenas, the error was harmless beyond a reasonable doubt. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Manuel Ultreras directly appeals his convictions for three counts of aggravated battery. In count I, Ultreras was convicted of the aggravated battery of Miguel Mendoza by recklessly causing great bodily harm or disfigurement in violation of K.S.A. 21-3414(a)(2)(A). In counts II and III, Ultreras was convicted of the aggravated battery of two brothers-Victor Urbina-Gonzales and Oscar Urbina, respectively. Count II was also a violation of K.S.A. 21-3414(a)(2)(A) while count III was a violation of K.S.A. 21-3414(a)(2)(B), which prohibits "recklessly causing bodily harm . . . to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted."
The convictions stem from a fight on the night of June 2, 2007, at a bar owned by Ultreras' father where Ultreras worked. Around 10 p.m., a group of men, including the three victims, arrived at the bar. Several of the men in the group were underage; consequently, the bar employees kept a close watch on the men to make sure those who were underage were not drinking. When two security guards saw Urbina-Gonzales, who was underage, drink from another person's alcoholic beverage, Ultreras' brother, who also worked at the bar, approached Urbina-Gonzales. Urbina-Gonzales denied drinking and refused a request to leave. The security guards began to physically escort Urbina-Gonzales out of the bar. Urbina-Gonzales resisted, and Urbina rushed to help him. A fight broke out.
According to testimony from the employees, Urbina-Gonzales punched one of the security guards in the face and Urbina picked up a pool stick as he approached the group.
A security guard grabbed the pool stick and shoved Urbina against a ledge. The bar employees continued to move the group to the door.
Ultreras was behind the bar and near the door as the scuffle moved past him. He picked up a metal baton and joined in the fight, which moved outside to the sidewalk. The bar employees testified that, once outside, the group of men kept coming toward them. The employees tried to block the door, but individuals grabbed the door, threw punches, and refused to leave.
Urbina-Gonzales testified the security guards put him in a headlock and Ultreras hit him on "my head, my ribs, my arms," causing him to "blackout" for a "[c]ouple of seconds, 20, 20 seconds, 15-20 seconds." He explained he was inside the club when he blacked out and "[t]he next thing I know we were outside the club. They were still attacking us [on] the sidewalk." At that point, Ultreras hit him with the metal baton, causing him to lose one tooth and reduction of two other teeth to form a crown.
Urbina testified that when he came to his brother's defense, he told the security guards he would remove his brother from the bar. The bar employees pushed him out of the bar and, once outside on the sidewalk, Ultreras hit him with the metal baton. Urbina testified that after he and his brother moved toward their car, he came back and asked if he could go back inside to retrieve his brother's cell phone. Ultreras denied the request and swung the baton at Urbina's head. Urbina raised his arm in defense, and the resulting blow to his arm led to a bump that Urbina still had at the time of the trial.
A third victim, Mendoza, testified that he voluntarily left the club after Urbina-Gonzales and Urbina had been removed. Once outside, Mendoza walked across the street, away from the altercation but, after watching the Urbina brothers take additional blows on the sidewalk, he walked to the middle of the street and yelled for the Ultreras brothers and the security guards to stop. Ultreras then approached Mendoza in the middle of the street and said in Spanish, "Oh, you want some too, fucking cowboy." Ultreras then struck Mendoza in the testicles with the baton, causing Mendoza to double over in pain. According to Mendoza, Ultreras hit him with the baton three more times.
When the police arrived at the scene, several people were "fighting or arguing" in the street. According to officers' testimony, all three victims were on their feet, agitated, and excited. All three victims refused medical treatment at that time, but a short time later Mendoza went to a hospital. He was diagnosed with severe trauma to his right testicle. He remained under a urologist's care for several months, during which he continued to experience pain and swelling. Approximately 80 days after the incident, he required surgery because of a growing mass in his testicle that was caused by the trauma.
Ultreras was ultimately charged with three counts of aggravated battery. Before trial, Ultreras filed a motion to dismiss claiming immunity from criminal prosecution under K.S.A. 21-3219. He argued his actions were justified in defense of others or property other than a dwelling.
The district court held a hearing on the motion. At the hearing, the parties argued about who had the burden of proof for the motion and what the proper procedure was for raising an immunity claim under K.S.A. 21-3219. The district court acknowledged that there was very "little law which [gave] . . . any guidance on this particular statute." Relying in part on a Colorado decision, the court concluded Ultreras, as the movant, had the burden to prove by a preponderance of the evidence that his use of force was necessary. The district court then determined that Ultreras had failed to meet that burden. The court rejected Ultreras' reliance on defense of property, noting that Ultreras' testimony indicated that he had not acted in an attempt to prevent property damage as the fight progressed toward the door or because of an attempt to protect the bar's license. The judge then addressed Ultreras' claim that he was defending himself or others, stating:
"So really we're looking based on your testimony and your brother's testimony whether or not you have met by a preponderance of the evidence that use of force was necessary in defense of a person. The law does not allow someone to use force to protect someone and then become an aggressor. There is evidence in the record that would support, . . . you did maybe initially get involved in this incident to protect your security guards and your brother, but then once it moved outside you became an aggressor. But that's ultimately something a jury is going to have to decide. I have to decide merely if there's enough evidence here by a preponderance that you are entitled to statutory immunity under defense of a person.
"It appears to me that based even on you and your brother's testimony that you and the security guards were able to handle this situation in a non particularly violent manner. I'm sure there [were] hands on each other and pushing and shoving but you were able to get this group of people outside. You could have shut the door behind you and the situation would have been over. You chose to stay out on the side and by your own testimony that's when you began hitting the one person you have identified you struck with the metal [baton]. Therefore, based on that evidence it does not appear by a preponderance that you are entitled to statutory immunity . . . ."
Consequently, the case proceeded to trial, during which the jury was instructed on Ultreras' theories of defense of others and defense of property. After apparently rejecting Ultreras' defense, the jury convicted him on all three counts. His direct appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
IMMUNITY UNDER K.S.A. 21-3219
Ultreras complains that the district court improperly interpreted the requirements for establishing immunity from criminal prosecution under K.S.A. 21-3219. He challenges the court's finding that the burden to prove immunity by a preponderance of the evidence rested with him, argues the court improperly factored his failure to retreat into the immunity consideration, and ultimately disagrees with the district court's finding that the evidence did not prove his use of force was justified.
His arguments require us to interpret and apply K.S.A. 21-3219. Issues of statutory interpretation present questions of law over which this court exercises unlimited review. State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012); Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276 P.3d 188 (2012).
"(a) A person who uses force which, subject to the provisions of K.S.A. 21-3214, and amendments thereto, is justified pursuant to K.S.A. 21-3211, 21-3212 or 21-3213, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, 'criminal prosecution' includes arrest, detention in custody and charging or prosecution of the defendant.
"(b) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (a), but the agency shall not arrest the person for using force unless it determines that there is probable cause for the arrest.
"(c) A county or district attorney or other prosecutor may commence a criminal prosecution upon a determination of probable cause."
In this case, questions of the application of the statute arose after an information and complaint were filed, a summons was issued, and a detached magistrate found probable cause at Ultreras' first appearance. Hence, procedurally, the case had moved past the stages of prosecution addressed in K.S.A. 21-3219(b) (arrest) and K.S.A. 21-3219(c) (commencing a criminal prosecution). Ultreras, therefore, was seeking immunity from continued prosecution, apparently based on the last sentence of K.S.A. 21-3219(a) that defines "criminal prosecution" to include "charging or prosecution of the defendant."
He argues that once he raised the issue of immunity under K.S.A. 21-3219 it became the State's burden to prove that his use of force was not justified. The State argues that a probable cause determination related to the prosecution had been repeatedly made-by the prosecutor before filing the case and by the magistrate who authorized the issuance of a summons. Regarding the first of these determinations, the State suggests that K.S.A. 21-3219(c), which allows a prosecutor to prosecute upon a determination of probable cause, merely incorporates the well-established burden on the State to make a probable cause determination before starting a criminal prosecution. See Kansas Rules of Professional Conduct (KRPC) 3.8 (2012 Kan. Ct. R. Annot. 602) ("The prosecutor in a criminal case shall: [a] refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."). Regarding the second finding of probable cause, K.S.A. 22-2302 requires a magistrate to find probable cause before issuing a warrant or summons. Accordingly, the State contends the legislature must have intended that the probable cause determination in K.S.A. 21-3219 already include a finding that the defendant's use of force was not justified because, otherwise, subsection (c) would be useless or redundant. See State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006) ("it is presumed that the legislature does not intend to enact useless or meaningless legislation"). Once the probable cause determination is made, the State argues that the burden then shifts to the defendant to challenge that decision by filing a motion to dismiss, which should be granted if the defendant shows by a preponderance of the evidence that his or her use of force was justified.
Ultreras responds that such an interpretation of subsection (c) is "absurd" because the State's discretion about whether to prosecute exists regardless of the statute. He urges this court to view the statute as providing additional protection for persons justified in the use of force. Specifically, he contends that the only way the statute makes sense is by placing the burden on the party seeking to overcome immunity before subjecting the party seeking immunity to further prosecution.
As the parties point out, there has been only one opinion issued in this jurisdiction addressing K.S.A. 21-3219, McCracken v. Kohl, 286 Kan. 1114, 1120, 191 P.3d 313 (2008), and it is of little assistance to the analysis of the issues presented in this appeal. In that case, McCracken had been charged and had received a preliminary hearing before he filed a writ of habeas corpus claiming he was immune from criminal prosecution under K.S.A. 21-3219. The State filed a motion to dismiss the writ, arguing that a habeas petition under K.S.A. 60-1501 was an improper method for raising the immunity claim because it was a collateral attack on the outcome of the preliminary hearing. The State asserted that the defendant's claim of immunity must be raised prior to the judicial determination of probable cause. The district court denied the State's motion and concluded that the writ of habeas corpus was both proper and timely. Nevertheless, after holding an evidentiary hearing, the district court concluded that McCracken had failed to meet his burden to prove by a preponderance of the evidence that he qualified for immunity under K.S.A. 21-3219.
This court, on direct appeal, declined to address the district court's denial of the State's motion to dismiss regarding the appropriateness of the procedural aspects of the case-that is, the use of the K.S.A. 60-1501 motion to claim immunity and the timing for filing an immunity claim-because the State had failed to file a cross-appeal raising those issues. McCracken, 286 Kan. at 1119-20. Significant to our consideration, the McCracken court noted: "[W]e have not been presented with any challenge to K.S.A. 21-3219. Therefore, we do not offer any opinion on the statute's provisions or the burden of proof anomalies which it might create." McCracken, 286 Kan. at 1120. The court "narrowly restrict[ed]" its decision to the issue as presented by the parties that incorporated, without argument, a preponderance of the evidence standard. McCracken, 286 Kan. at 1120.
Consequently, this court has not addressed the burden of proof issues regarding which party has the burden of production or determined what standard of proof applies when a defendant seeks immunity under K.S.A. 21-3219 from continued prosecution of a pending criminal case. (For a note on terminology, see Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. ___, ___, 131 S. Ct. 2238, 2245 n.4, 180 L. Ed. 2d 131  [discussing "burden of proof" and distinguishing "burden of persuasion" that "specif[ies] which party loses if the evidence is balanced," "burden of production" that "specif[ies] which party must come forward with evidence at various stages in the litigation," and "standard of proof" that specifies the "'degree of certainty by which the factfinder'" or a reviewing court must be persuaded by the party bearing the burden of production]; State v. Ward, 292 Kan. 541, 562, 567-69, 256 P.3d 801 , cert. denied 132 S. Ct. 1594 .)
Courts in three other states, applying similar statutes, have addressed these questions; however, the results have not been uniform. The Colorado Supreme Court, whose decision was relied upon by the district court in this case, and the Florida appellate courts have held a defendant carries the burden of persuasion and must establish by a preponderance of the evidence that the use of force was lawful. On the other hand, the Kentucky Supreme Court has imposed the burden on the prosecutor to ...