1. K.S.A. 60-455 does not prohibit the admission of evidence regarding other crimes and civil wrongs if the evidence relates to acts committed as part of the events surrounding the crimes or civil wrongs at issue in the trial.
2. If a rule of evidence prohibits the admission of evidence, res gestae evidence does not become admissible simply because it establishes the circumstances surrounding the criminal act or civil wrong. On the other hand, res gestae evidence is not automatically inadmissible; rather, if the evidence is relevant it can be admitted unless a rule of evidence prevents its admission.
3. Under K.S.A. 22-3420(3), any question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent. Statements to the contrary in State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012), are overruled.
4. The failure to answer a question from the jury in open court and in the defendant's presence creates an error that is subject to the harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967). Under this standard, error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.
5. The unit of prosecution defined in K.S.A. 21-3419(a)(1) is a single communicated threat; a communicated threat constitutes only one offense even if it is perceived and comprehended by multiple victims.
6. In a multiple acts case where a unanimity instruction has not been given, inconsistencies in the evidence can lead to jury confusion and lack of unanimity even though the defendant presented a unified defense based on a general denial of wrongdoing. In such a case, if the defendant failed to request a unanimity instruction, an appellate court must review the record as a whole to determine if it is firmly convinced that the jury would not have reached a different verdict had the error not occurred.
7. A deadlocked jury instruction is erroneous if it informs the jury that the need for a second trial would be a heavy burden on both sides and that there is no reason to believe another jury would be better situated to decide the case.
8. In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect is such that collectively they cannot be determined to be harmless. In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial?
9. The use of a defendant's prior convictions in the determination of a criminal history score to enhance a sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Review of the judgment of the Court of Appeals in an unpublished decision filed August 27, 2010. Appeal from Wyandotte District Court; Robert P. Burns, judge.
Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was on the brief for appellant.
Jennifer L. Myers, assistant district attorney, argued the cause, and Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, were on the brief for appellant.
Kameron King was convicted by a jury of one count of arson, three counts of criminal threat, one felony count of criminal damage to property, one misdemeanor count of criminal damage to property, one count of assault, one count of battery, and one count of domestic battery. We reverse two of King's convictions for criminal threat, rejecting the State's theory that the unit of prosecution for a criminal threat is the number of victims who perceive and comprehend the threat. Instead, we hold there can only be one conviction for a single communicated threat, regardless of the number of victims who perceive and comprehend the threat. We also reverse King's conviction for felony criminal damage to property because the evidence established multiple acts, the trial court did not instruct the jury it had to unanimously agree on the act that supported the conviction, and we are not firmly convinced that the error did not affect the verdict.
In addition, we find two other errors but determine these errors were harmless when considered both individually and cumulatively. One of these errors was committed when the trial court failed to obtain a waiver of King's right to be present in open court and then violated that right by answering a question posed by the jury during deliberations without King being present. The other error occurred when the trial court gave the jury an erroneous deadlocked jury instruction.
We reject the other arguments advanced by King. One of these arguments is that K.S.A. 60-455 prohibited the admission of evidence of other crimes that were committed at the same time as the crimes for which King was on trial. The other is that it was unconstitutional for the sentencing court to consider King's criminal history when that history had not been alleged in the complaint or proven to a jury.
Facts and Procedural Background
King's convictions result from a series of events that occurred on June 20, 2006. At trial, the State and King presented different versions of these events. A detailed summary of this evidence is necessary because several of King's arguments require us to determine whether an error was harmless. In our discussion of the facts, we will refer to everyone except King by first name because many of the witnesses share surnames.
One witness, Kelly Riley, testified she had known King for 14 years and he was the father of three of her four children. King and Kelly had separated in early 2006. Kelly testified that on June 20, 2006, she received approximately 45 telephone calls from King during which he screamed and yelled at her because she was seeing another man. She also said that King threatened to steal and burn her van and kill several people, including her.
King's anger at Kelly was apparent in his interaction with others on June 20, 2006. For example, King approached Kelly's aunt, Theresa Smith, at a baseball game. Theresa indicated King's breath smelled of alcohol, and she described him as being "pretty angry" about Kelly having a boyfriend.
King was also upset with his father, James King, because James had indicated he was going to evict Kelly from the house she was renting from King's grandmother. King allegedly acted on this anger by ramming a stolen white flatbed truck into vehicles owned by his father. James testified that at approximately 10:30 p.m. he heard a loud, crashing noise outside his house. He described the noise as sounding like one vehicle colliding with another. Three vehicles—a van, a truck, and an El Camino—were parked in front of James' garage. James went outside and saw that his van had been shoved into the garage; he did not see any damage to the other vehicles.
An eyewitness testified she saw a white flatbed truck repeatedly drive into the van in James' driveway before driving off. The eyewitness testified the truck only hit the van, but the van was pushed into the El Camino. The witness described the truck to James.
Meanwhile, King drove to Kelly's house, arriving about an hour after his last telephone call to her. Kelly's four children; her friend, Katie Kelly; and a friend of Katie's were also present. King entered the house without a shirt and was visibly bleeding from his chest. He told Kelly he had been injured while fighting with a friend. He then grabbed a beer from the kitchen, sat down in the living room, and started arguing with Kelly. Both Kelly and Katie testified that King slapped Kelly across the face with an open hand while they were arguing.
A short time later, Theresa called to warn Kelly about King's behavior at the baseball game. Kelly told Theresa that King had already slapped her and that she would call if she needed help. After a while, Theresa called again. Kelly answered the telephone crying, and Theresa could hear King throwing things in the background. Theresa asked to talk to King to see if she could calm him down. King took the telephone and stated that it was his house, and he would burn it down if he wanted.
James also called Kelly and told her someone had hit his cars. Kelly asked King if he caused the damage. He denied responsibility and said he was driving a yellow car. James decided to make the 5-minute walk to Kelly's house. He saw a white flatbed truck with a damaged front end parked near Kelly's house. James confronted King about the damaged cars. King again denied responsibility and started physically fighting with James. While they were fighting, Kelly noticed the white flatbed truck, but she could not tell if there was any damage to the front end.
When the fighting ended, King got back into the white flatbed truck, and headed in the direction of James' house. James also returned to his house where he found that his van had been further damaged and his El Camino had been damaged. The eyewitness testified that the same white flatbed truck and driver she had seen earlier returned approximately 5 to 10 minutes after the original incident. She observed the truck slam into James' vehicles again. At trial, the eyewitness identified King as the driver of the truck.
While King and James were fighting, Katie put Kelly's children into Katie's car and took them to Shawn and Amanda Velasquez' house. Shawn and Amanda had known King and Kelly for many years, but King and Amanda did not get along. Then, Katie returned with Amanda and another woman. King was gone when they first arrived, but he returned before they went into the house. When King saw Amanda, he yelled at her, told her she had no business on the property, and told her to leave before he started throwing things at her. Acting on his words, King started throwing handfuls of small rocks at Amanda, a few of which hit her.
Meanwhile, Kelly called Shawn, who quickly arrived and began physically fighting with King. Kelly, Amanda, and Katie were within 15 feet of the fight. Each of them testified about threats King made. Kelly testified that King yelled that he was going to shoot everyone, everyone was going to die, and everyone was going to get shot if they did not get off his property. While making these threats, King reached behind his back as if he had a gun. Amanda testified that King told them to get off his property and that he kept putting his hand in his back pocket. Amanda further testified that King was directing the threats toward Shawn. Katie similarly testified that King acted like he had a gun and that he said "he had a gun and we all needed to leave, he was going to shoot Shawn." According to Shawn, King told him that he "had ten seconds to leave. Said he was counting to ten and then he was going to shoot me, so I left." Shawn also indicated that King kept reaching behind his back as if he had a gun.
Kelly went back into the house and locked the doors, and the others left. King then kicked down the front door. Kelly fled the house while King threw full beer cans at her. Kelly stopped nearby and watched King go to a shed and back to the house. A few minutes later, Kelly saw that the house was on fire; eventually, the fire destroyed the home.
About 3 minutes after Kelly first noticed flames, she saw King get into her van, which he did not have permission to drive. Law enforcement officers arrived at this point, and King tried to drive away. He wrecked the van and then took off on foot. King was arrested a few days later.
King testified at trial and presented a very different account of the events of June 20, 2006. In describing what led up to his arrival at Kelly's house that night, he explained that he ran into Shawn at a gas station. Shawn was driving a white flatbed truck, and he asked King to get in with him. As they were driving, Shawn dropped a cigarette and swerved while trying to pick it up. In doing so, Shawn hit James' El Camino. King denied any knowledge about damage to his father's van. He explained that neither he nor Shawn wanted a confrontation with King's dad, so they went to Kelly's house. He denied having called Kelly earlier in the day.
When they arrived at Kelly's house, he got out of the truck and went inside while Shawn stayed outside. Kelly started yelling at King, so he took his children next door to his grandmother's house. King then talked to Shawn and told Shawn that he needed to pay for the damage to the El Camino. Shawn took a swing at King, and the two were fighting when James arrived. At one point, King accidentally shoved James. James then confronted King about hitting the vehicles, which King continued to deny. Then James went to King's grandmother's house, and King told Shawn to drive the white flatbed truck away before the police arrived. Shawn left and Amanda arrived. King told her to get off the property, but Amanda went inside Kelly's house. King returned to his grandmother's, told her goodbye, left her house by the back door, and went to a friend's house.
A jury convicted King of all counts with which he had been charged, except for a count of child endangerment. King was sentenced to 63 months' incarceration.
King appealed his convictions and sentences to the Court of Appeals. That court rejected King's claims of error on some issues and agreed with his claims on others but found those errors harmless. Consequently, his convictions and sentences were affirmed. State v. King, No. 99, 479, 2010 WL 3488659 (Kan. App. 2010) (unpublished decision).
King filed a petition for review, asserting the same eight arguments he brought before the Court of Appeals: (1) The trial court erred in denying his motion for mistrial based on the admission of prior crimes evidence; (2) his right to be present during a critical stage of the trial was violated; (3) the trial court misstated the law in responding to a jury question; (4) his three convictions for criminal threat are multiplicitous in violation of double jeopardy; (5) the trial court failed to give a unanimity instruction for the felony criminal damage to property count; (6) the trial court erred in giving an Allen-type instruction; (7) cumulative error warrants reversal of his convictions; and (8) the trial court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to calculate his sentence.
This court granted King's petition for review and has jurisdiction under K.S.A. 20-3018(b) (petition for review).
No Error in Denial of Mistrial
First, King argues the trial court committed reversible error when it denied his request for a mistrial based on the improper admission of K.S.A. 60-455 evidence.
A mistrial is appropriate if there is "[p]rejudicial conduct, in or outside the courtroom, [which] makes it impossible to proceed with the trial without injustice to the defendant or the prosecution." K.S.A. 22-3423(1)(c). In applying this statute, a trial court utilizes a two-part test. "First, the trial court must decide if '"there is some fundamental failure of the proceeding."' [Citations omitted.] If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an 'injustice.'" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
On appeal from a trial court's decision to deny a mistrial, an appellate court focuses on the two questions and asks if the trial court abused its discretion in analyzing those questions. Ward, 292 Kan. at 551.
In this case, the trial court ruled that the evidence on which King based his motion for mistrial was not evidence covered by K.S.A. 60-455; in other words, the court determined there was not a fundamental failure in the proceeding. Hence, we must determine if the trial court erred in this determination.
The objected-to evidence, which related to threats King made toward Amanda and to whether she saw King with a gun, was admitted during the State's redirect examination of Amanda. To understand its significance, it is helpful to place the evidence in context. The question that King objected to on redirect appears to have been prompted by Amanda's testimony during defense counsel's cross-examination of her. Defense counsel asked her if it was "true that you told the detective that you saw a gun that night?" The reference was clearly to June 20, 2006. Amanda replied by stating: "That's what my statement says." In the exchange that followed, Amanda indicated she had not seen a gun, and she was not sure why her statement read that way. She speculated that the detective "may have misunderstood what I said, because [King] kept reaching in his back pocket like he had a gun." Then, on redirect examination, the prosecutor asked Amanda to read the portion of the statement referred to by defense counsel. Amanda complied, reading the following statements: "[H]e's done threatened me several times. He—he showed me that he's got the gun." The prosecutor then asked Amanda if she had described the gun. She responded: "I did. I don't—I don't know why—I mean, I did not see a gun." When the prosecutor asked if she was speaking of a gun she saw on June 20 or before, defense counsel objected before Amanda could answer. Defense counsel immediately moved for a mistrial on the grounds that evidence had been admitted in violation of K.S.A. 60-455. After the trial court denied the motion based on its conclusion that K.S.A. 60-455 did not apply, the prosecutor resumed questioning Amanda without her answering the objected-to question and without the prosecutor asking any further questions about her statement or the gun.
On appeal, the Court of Appeals agreed the evidence had not been erroneously admitted. The Court of Appeals noted that "after reading Amanda's entire testimony, it appears . . . Amanda was talking about how King threatened her several times that night, not about times he may have threatened her in the past." King, 2010 WL 3488659, at *4-5. The Court of Appeals then stated: "An important prerequisite to the exclusion of evidence under ...