who alleged that his statutory speedy trial rights were
violated and that cumulative error deprived him of a fair
trial is not entitled to reversal of his convictions because
his statutory speedy trial rights were not violated; the
State presented sufficient evidence of aggravated burglary;
the jury instructions were proper; and any error was harmless
beyond a reasonable doubt.
of the judgment of the Court of Appeals in an unpublished
opinion filed February 13, 2015. Appeal from Wyandotte
District Court; Thomas L. Boeding, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause and Ashley R. Iverson, legal intern, was
with him on the brief for appellant.
Christopher L. Schneider, assistant district attorney, argued
the cause, and Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, were with him on the brief for
August 24, 2010, an argument between Jason Robinson and his
girlfriend, L.C., at her home escalated into violence. The
parties presented conflicting accounts at trial-L.C.
testified that Robinson kicked in the door and struck her in
the face. Robinson claimed that L.C. broke the door and he
acted in self-defense. The State presented substantial
evidence of abuse, as well as corroborating testimony from a
responding officer and the treating physician. However, L.C.
recanted some statements she made to law enforcement.
Ultimately, the jury convicted Robinson of aggravated
burglary, aggravated battery, and criminal damage to
appeal, Robinson claims that seven errors-arising from all
stages of the trial-warrant reversal either standing alone or
cumulatively. However, we conclude that Robinson's
statutory speedy trial rights were not violated; the State
presented sufficient evidence of aggravated burglary; and the
"bodily harm" jury instruction was not erroneous.
Though the district court failed to give a K.S.A. 60-455
limiting instruction and issued written responses to the
deliberating jury's questions, these errors were
harmless. Robinson's remaining challenges are
unpreserved. Finding no cumulative error, we affirm
and Procedural Background
February and August 2010, Robinson lived intermittently with
his girlfriend, L.C., and their children. On August 24, 2010,
Robinson and L.C. had an argument, and Robinson left the
house. The accounts given of the ensuing violence were very
different. L.C. claimed that she refused to let Robinson back
inside and pushed a couch against the door to prevent his
entry, to no avail. Robinson kicked in the door and struck
her in the face. Robinson, though, claimed self-defense,
alleging that he went peacefully inside to pack his things
when L.C. attacked him with a knife.
Robinson left the house, L.C. called the police. While L.C.
was on the phone with the police, Robinson returned, threw
bricks through the windows of her minivan, and left again.
When Officer Michael Moulin arrived at the scene, he observed
that L.C.'s minivan was damaged, her front door "had
been kicked in, " and L.C. was "crying, angry, and
hysterical." He noticed that L.C. "had a swollen
right eye and blood on her nose." He also found a couch
pushed up against the front door. The police offered L.C.
medical treatment, but she declined.
the police left, L.C. noticed that her right eye kept
swelling. The next day, a caseworker took L.C. to the
hospital because L.C. was unable to drive herself-her
windshield was broken and she could not see out of her right
eye. At the hospital, emergency physician Dr. Matthew
Robbinett examined L.C.'s right eye. In his deposition,
Dr. Robbinett explained that L.C. sustained an orbital wall
fracture and a corneal abrasion, which could cause infection
or permanent double vision and require surgery. Dr. Robbinett
said L.C. told him that her baby's father hit her. He
recalled that the nurse's notes showed L.C. had a history
of abuse and was struck with a fist or gun. He also noted
that L.C. had signs of an "old infarct, " which was
"probably a remote injury."
State charged Robinson with aggravated burglary, aggravated
battery, aggravated assault, and felony criminal damage to
property. Robinson waived formal arraignment at his probable
cause hearing on October 28, 2010. The trial was initially
set for January 10, 2011. On that date, the district court
granted Robinson's request for a continuance to analyze
his jail calls and rescheduled the trial for February 22,
week before trial, the State moved for a continuance,
asserting that Dr. Robbinett-the only physician who diagnosed
and treated L.C.'s eye injury-was a material witness who
would be unavailable on the second trial date because he
would be working on a traveling rotation in Pittsburg,
Kansas, at that time. On February 17, 2011, the district
court held a hearing on the motion. The State explained that
the hospital system had delayed delivery of the subpoena to
Dr. Robbinett; the State was unable to conduct a deposition
before trial because Dr. Robbinett was already in Pittsburg
on this rotation; and the State needed Dr. Robbinett to
provide evidence of the bodily harm element of aggravated
battery. The State assured the court that it would obtain Dr.
Robbinett's schedule for the next month.
generally objected to the continuance but did not contest Dr.
Robbinett's materiality or unavailability. The district
court granted the State's motion, and Dr. Robbinett was
later deposed to accommodate the third and final trial date,
April 25, 2011.
morning of trial, the court heard motions in limine. The
subject of much debate was the admissibility of
Robinson's jail calls to L.C. in which he told her not to
come to court. Robinson objected to admission of the jail
calls, citing a lack of foundation and a violation of K.S.A.
60-455. The court ruled that the calls would be admissible if
the foundation was laid "not pursuant to 60-455 but
simply to show that the defendant's trying to persuade a
critical witness from testifying in this case and that's
the only purpose."
also moved to redact portions of Dr. Robbinett's
deposition testimony. First, Robinson argued that L.C.'s
statement to Dr. Robbinett, "[M]y baby's father hit
me, " was irrelevant and constituted inadmissible
hearsay. Second, Robinson argued that Dr. Robbinett's
references to L.C.'s "historic injuries" that
he observed violated K.S.A. 60-455 because the jury could
infer that Robinson caused them. The court denied both
motions, concluding that the medical records were not hearsay
and Dr. Robbinett's only testimony regarding a historic
injury-"an old infarct, " which was "probably
a remote injury"-was not prejudicial to Robinson.
Robinson moved to dismiss the case on statutory speedy trial
grounds, claiming that the State's continuance counted
against the State and therefore the 90-day statutory speedy
trial deadline had expired. The court disagreed, concluding
that "this is a material witness continuance and so the
record will speak for itself, but the motion to dismiss for a
violation of speedy trial is denied."
trial, the State called L.C. and Officer Michael Moulin as
witnesses and played Dr. Robbinett's deposition video for
the jury. L.C. testified that on August 24, 2010, she and
Robinson had an argument, and Robinson left the house. When
Robinson returned and knocked on the door that night, she
refused to let him inside. Robinson started banging on the
door, and L.C. was scared. L.C. recalled that she tried to
push a couch against the door to bar Robinson's entry,
but he kicked in the door. When the two began to argue,
Robinson beat L.C. with his fists and struck her in the face.
The State entered photos into evidence that showed L.C.'s
swollen eye and a large bruise on her arm.
L.C. recanted certain statements she made to law enforcement.
For example, L.C. first told police that Robinson choked her,
pulled her hair, hit her with a stick, and put a gun to her
head and said, "Bitch, I will kill you." At trial,
L.C. said she lied about those details and exaggerated her
story to the police because she was mad at Robinson. L.C.
also testified that she never told the doctor that her
baby's father hit her- even though Dr. Robbinett stated
otherwise in his deposition.
counsel asked L.C. if she ever told the State that she lied
to the police. L.C. responded that yes, she did, but the
State did not believe her. L.C. explained that her kids were
removed from her home after she made her original police
report. She claimed that someone from the "DA's
office" said the State would use L.C.'s original
story and threatened that L.C.'s kids would not return
home and L.C. could get "locked up." L.C. admitted
that she had a battery conviction against Robinson and
previously had threatened him with a knife. She testified
that she went to get a knife that night when Robinson was
playing Dr. Robbinett's deposition video for the jury,
the court asked defense counsel whether he wished to put
anything on the record, but he proffered nothing. Defense
counsel also lodged no contemporaneous objections while the
deposition video was played. However, when the deposition was
taken, the defense objected on hearsay grounds to Dr.
Robbinett's statement that L.C. told him, "My
baby's father hit me."
the State rested, the defense moved for a judgment of
acquittal. The court granted the motion for the aggravated
assault count, reduced the criminal damage count to a
misdemeanor, and denied the motion for the remaining counts.
defense called Robinson as its only witness. Robinson
testified that on August 24, 2010, he got into an argument
with L.C. and left the house for a few hours. When he
returned home, L.C. was angry and started hitting him.
Robinson explained that he tried to pack up his things, but
L.C. threatened him with a knife. He managed to lock L.C.
outside, but she broke in the door. However, Robinson later
testified that the door was broken the week before.
said he was scared because L.C. had attacked him with a knife
before. He testified that when L.C. got back into the house,
she charged at him with the knife again. He claimed that he
threw a bag at L.C. to dislodge the knife, and she "got
the bruise on her arm from me hitting and pulling her arm
trying to get the knife out of her hand." He recounted
that he escaped by tossing L.C. over the couch and running
out the door. Robinson showed the jury a scar on his back,
claiming he incurred scratches from the fight but did not
seek medical attention.
State asked Robinson, "[D]id you ever contact [L.C.] and
tell her not to come to court?" Defense counsel objected
that the State was soliciting evidence of other bad acts. The
court overruled the objection, stating that "this all
goes to credibility of the defendant as a witness."
However, defense counsel did not request a limiting
instruction, and the court did not give one.
responded that he told L.C. not to come to court because
people were threatening her. With this admission, the State
did not enter the jail calls into evidence. Robinson further
admitted that he threw bricks through L.C.'s car windows.
jury found Robinson guilty of aggravated burglary, aggravated
battery (bodily harm), and misdemeanor criminal damage to
property. The district court sentenced Robinson to a total of
114 months' imprisonment. The Court of Appeals affirmed,
holding the trial court erred when it provided written
answers to the jury's deliberation questions and failed
to give a limiting instruction concerning Robinson's
testimony that he told L.C. not to come to court, but such
errors were harmless. State v. Robinson, No. 110,
040, 2015 WL 770167, at *14-15 (Kan. App. 2015) (unpublished
opinion). We granted Robinson's petition for review.
1. Robinson's statutory speedy trial rights were not
contends that his statutory speedy trial rights were violated
because the district court erroneously granted the State a
continuance for Dr. Robbinett as an unavailable material
witness under K.S.A. 22-3402(5)(c), which extended the
State's statutory speedy trial deadline by another 90
days. Robinson does not contest that Dr. Robbinett was
material to the case. Instead, he claims for the first time
on appeal that the district court erred by finding Dr.
Robbinett was unavailable for trial because the State
demonstrated at most an inconvenience, which is insufficient
to prove unavailability. Robinson argues that, were it not
for this continuance-and the 90-day extension it
triggered-the statutory speedy trial deadline would have
expired before he was tried.
pause to note that, during the pendency of this appeal, the
statutory speedy trial deadline was extended from 90 to 150
days. L. 2014, ch. 139, sec. 5. However, we need not resolve
the question of K.S.A. 2016 Supp. 22-3402(a)'s
retroactivity today. Because we find no abuse of discretion,
Robinson's statutory speedy trial rights were not
violated under the 90-day-let alone the 150-day-period.
Therefore, for purposes of this appeal, we will assume that
the 90-day deadline applies.
review a district court's decision to grant a continuance
under K.S.A. 22-3402(5) for abuse of discretion. State v.
Dobbs, 297 Kan. 1225, 1232-33, 308 P.3d 1258 (2013).
"'A district court abuses its discretion if its
decision is (1) arbitrary, fanciful, or unreasonable; (2)
based on an error of law; or (3) based on an error of
fact.'" State v. Sherman, 305 Kan. 88, 119,
378 P.3d 1060 (2016) (quoting State v. Moore, 302
Kan. 685, 692, 357 P.3d 275');">357 P.3d 275 ). Robinson bears the
burden to establish that an abuse of discretion occurred.
Dobbs, 297 Kan. at 1232-33.
22-3402 states, in relevant part:
"(1) If any person charged with a crime and held in jail
solely by reason thereof shall not be brought to trial within
90 days after such person's arraignment on the charge,
such person shall be entitled to be discharged from further
liability to be tried for the crime charged, unless the delay
shall happen as a result of the application or fault of the