Appeal from Wichita District Court; WENDEL W. WURST, judge.
BY THE COURT
1. In reviewing whether the State presented sufficient evidence of a crime, an appellate court examines the evidence in a light most favorable to the prosecution and determines whether a reasonable factfinder could have found beyond a reasonable doubt that the defendant committed the crime. In evaluating the sufficiency of the evidence, a reviewing court does not reweigh evidence, resolve conflicts between evidence, or make credibility determinations.
2. A premeditated act is not necessarily one that is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation.
3. Several factors can give rise to an inference of premeditation: (1) the nature of the weapon used; (2) a lack of provocation; (3) the defendant's conduct before and after the incident; (4) the defendant's threats and declarations before and during the incident; and (5) whether the defendant dealt lethal blows after the victim was helpless.
4. To prove child endangerment, the State must prove more than a faint or remote possibility of harm.
5. A district court's refusal to grant a motion for new trial is reviewed for an abuse of discretion. When a motion for new trial is based only on prosecutorial misconduct, which does not involve issues requiring factfinding, the question is essentially one of law; and when a district court fails to order a new trial after reversible prosecutorial misconduct has been committed, it abuses its discretion.
6. It is error for a prosecutor to ask the jury to convict a defendant to give the victim justice.
William K. Rork, of Rork Law Office, of Topeka, argued the cause, and Wendie C. Miller and Kenneth B. Miller, of the same firm, were with him on the briefs for appellant.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
[298 Kan. 1060] OPINION
A jury convicted Todd Schumacher of first-degree premeditated murder and endangering a child after he shot and killed his ex-wife while his daughter watched nearby. In this direct appeal, he seeks reversal of both convictions based on insufficient evidence. Alternatively, he contends the district court abused its discretion in denying his motion for a new trial based on prosecutorial misconduct in rebuttal closing argument.
Because we find the State presented sufficient evidence of both convictions and the prosecutor did not commit misconduct justifying reversal, we affirm Schumacher's convictions.
Factual and Procedural Background
Generally, the evidence presented at Schumacher's trial showed that on March 22, 2010, Schumacher learned that his ex-wife Ann was seeking child support and full custody of two of the couple's three children. The following morning, Schumacher went to Ann's home before the children left for school. Schumacher had a brief conversation with Ann at the door of the home before pulling a gun out of his jacket and firing it at Ann, killing her instantly as their 15-year-old daughter watched nearby. Afterward, Schumacher drove to the Wichita County Sheriff's Office and turned himself in. More specifically, the evidence presented at trial showed as follows.
Marnie Johnson had been dating Schumacher for approximately 3 months when she received a phone call from him early in the evening of March 22, 2010. Johnson could tell Schumacher had been drinking because his speech was slurred. Schumacher told her he was angry because he received paperwork from Ann informing him she was seeking custody of their two youngest children. A few hours later, Schumacher sent Johnson a text message saying: " It ends tonight."
After receiving the text, Johnson initially thought Schumacher might be suicidal so she called him to check on him. In that conversation, Schumacher told Johnson that he loved her and he was sorry. Schumacher also remarked that he was " going to kill her." Johnson inferred from context that the " her" Schumacher referred [298 Kan. 1061] to was Ann. Johnson testified that Schumacher previously had threatened to harm Ann, but Johnson had not taken the threat seriously. But because of the tone of Schumacher's voice, Johnson believed Schumacher might be serious this time. So after ending her call with Schumacher, Johnson called Schumacher's sister-in-law, Laura Schumacher.
Laura, who is married to Schumacher's brother Tracy, testified Johnson called her and told her Schumacher had been drinking and had threatened to kill Ann. Laura told Johnson she would handle the situation.
Laura then called Schumacher, who told Laura he was heading to his friend Dale Gerstberger's home. Laura could tell Schumacher was drunk. Laura testified Schumacher was " distraught and upset" because Ann was seeking custody of two of the couple's children. In an attempt to calm Schumacher, Laura reminded him the custody dispute could be resolved in court and told him not to confront Ann. Schumacher replied, " [I]f she takes my kids away, I'm going to kill her." Laura told Schumacher that his children needed two parents and that he would go to prison for killing Ann. Schumacher replied that his kids would be better off without him. Laura testified that in the past Schumacher had made this remark when he was suicidal but she did not know his meaning on this occasion. During the call, Schumacher seemed to calm down.
While Laura was still talking with Schumacher, she asked her husband Tracy to go to Ann's home to insure that Schumacher did not confront Ann. On cross-examination, Laura testified she did not believe Schumacher would harm Ann but she was worried that he would do something " wrong." Laura testified that if Schumacher had gone to Ann's home, she would have called the police.
Tracy testified he had never heard Schumacher threaten Ann before and while he took the threat seriously enough that he went to Ann's home, Tracy never imagined Schumacher would shoot Ann. Tracy waited in his vehicle in front of Ann's home until he spoke by phone with Gerstberger and verified that Schumacher had arrived at Gerstberger's home.
Gerstberger testified that when Schumacher arrived at Gerstberger's home about 11 p.m., he was " terribly drunk" and upset [298 Kan. 1062] with Ann. Over the next hour and a half, Schumacher told Gerstberger two or three times that he wanted to kill Ann. Gerstberger had never previously heard Schumacher threaten Ann, and he thought Schumacher was just drunk. As the two men sat drinking coffee, Gerstberger said Schumacher became more " rational and not as upset" and stopped threatening Ann. Gerstberger thought Schumacher was mostly sober when he left at around 2 a.m.
At the time of these events, Schumacher and Ann's 17-year-old daughter, Megan, lived with Schumacher. Megan testified that on the evening of March 22, 2010, her aunt, Laura Schumacher, called to tell her that Schumacher was upset and drunk and had threatened to kill Ann. But Megan testified, " [Laura] said that [Schumacher] stated that, but I don't know. He just was really upset about what had happened." Nevertheless, Megan sent a text message to a cousin that evening: " Well, I guess mom filed for full custody and dad is going to kill her."
When Megan woke up on the morning of March 23, 2010, she saw that Schumacher had sent her a text about 2 a.m. as he was leaving Gerstberger's home. In the text, Schumacher told Megan she was his " everything" and he loved her. Schumacher was not home when Megan got up that morning.
Schumacher and Ann's 15-year-old daughter, M.S., testified that she and her brother were both still at Ann's home when Schumacher arrived the morning of the shooting. As M.S. prepared to go to a neighbor's home where she had a ride to school, she saw Schumacher just outside the front door talking to Ann. M.S. heard her parents arguing and decided to ...