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State v. Gonzalez

Supreme Court of Kansas

March 9, 2018

State of Kansas, Appellee,
v.
Pablo Alberto Gonzalez, Appellant.

         SYLLABUS BY THE COURT

         1. Determining a statute's constitutionality is a question of law subject to unlimited review. An appellate court presumes statutes are constitutional and must resolve all doubts in favor of a statute's validity. Further, the appellate court must interpret a statute in a manner rendering it constitutional if there is any reasonable construction that will maintain the Legislature's apparent intent.

         2. A statute must clearly violate the constitution before it may be struck down.

         3. In determining whether a criminal statute is so vague that it violates due process, appellate courts conduct a two-prong inquiry, asking: (a) whether the statute gives fair warning to those potentially subject to it; and (b) whether it adequately guards against arbitrary and unreasonable enforcement.

         4. Unintentional second-degree murder requires that the defendant acted recklessly under circumstances showing extreme indifference to the value of human life. A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result of the defendant's actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation.

         5. K.S.A. 2016 Supp. 21-5403(a)(2) does not require a jury to imagine an ordinary reckless killing to determine if a defendant killed a human being "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." A jury only has to look at the facts as alleged, determine whether those facts are properly proven, and then apply them to the offense's elements.

         6. To meet the sufficiency of evidence standard, there must be evidence supporting each element of a crime. An appellate court reviews sufficiency by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

         7. Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. When a party fails to brief an issue, that issue is deemed waived or abandoned.

         8. A district court's response to a mid-deliberation jury question is reviewed for abuse of discretion.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed June 10, 2016.

         Appeal from Pottawatomie District Court; Jeffrey R. Elder, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Randall L. Hodgkinson, of the same office, was on the brief for appellant.

          Steven J. Obermeier, assistant solicitor general, argued the cause, and Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          BILES, J.

         An intoxicated Pablo Gonzalez shot and killed his friend, Levi Bishop, while they celebrated New Year's Eve. A jury convicted Gonzalez of unintentional second-degree murder. On appeal, Gonzalez challenges: (1) the unintentional second-degree murder statute's constitutionality; (2) the evidence's sufficiency; (3) the trial court's actions in answering a jury question; and (4) the court's failure to give a limiting instruction about certain evidence. The Court of Appeals affirmed. State v. Gonzalez, No. 112, 841, 2016 WL 3202555 (Kan. App. 2016) (unpublished opinion). We affirm.

         Factual and Procedural Background

         The facts are mostly undisputed, except whether Gonzalez knew his gun was loaded as events unfolded.

         Gonzalez and his friends-Levi (the victim), Bailey Bishop (Levi's sister; Gonzalez' girlfriend), Jeff Swisher (Levi's step-brother), and Zachary Cashman- attended various New Year's Eve parties. At some point, the four men wanted to return to the first party and Gonzalez drove them. Cashman and Swisher passed out in the back seat.

         Around 4:30 a.m. on January 1, 2014, Gonzalez drove to Andrew Schindler's house. Gonzalez and Levi got out of the car. When Gonzalez stepped out, his gun fell onto the ground. He picked it up, put it in his pocket, and walked around the car where Schindler and Levi were talking. According to Schindler, Gonzalez "was pointing [the gun] around and being stupid." Schindler testified Gonzalez pointed the gun at Schindler's head once or twice. He told Gonzalez to stop. Schindler headed into the house to get cigarettes so they would leave. Schindler saw John Syrokos walking toward Gonzalez and Levi from down the street.

         Syrokos testified he left a party around 4:30 a.m. and started walking home. He saw Gonzalez pull his handgun out and chamber a round. Gonzalez called out asking Syrokos to identify himself. Feeling scared, Syrokos said his name, and, as they got closer, Gonzalez put the gun under his coat. Syrokos continued home after 10 or 15 minutes. When he got home, he called the sheriff's office to report what he saw.

         Shortly thereafter, the shooting occurred only a couple of blocks from Schindler's house. Schindler testified it must have happened "[w]ithin five minutes of [them] leaving [his] house." At approximately 4:45 a.m., St. Marys Police Officer Mark Lamberson was at the police station when he saw a car pull into the parking lot and heard honking. Gonzalez approached and banged on the station door.

         Lamberson described Gonzalez as intoxicated, "emotional, scared, frantic, [and] distraught." Gonzalez said he needed "help" because he had "shot [his] boy in the face." As the two approached the car, the officer noticed a gun on the ground near the driver's side. Levi was dead in the passenger seat. Swisher stood outside and Cashman was crying in the back seat. Lamberson took the gun, which had one round in the chamber. He arrested Gonzalez.

         The State charged Gonzalez with intentional second-degree murder, an alternative count of unintentional second-degree murder, and one count of aggravated assault. A jury convicted him of unintentional second-degree murder and acquitted him of aggravated assault. The court imposed a 123-month prison sentence. Gonzalez timely appealed.

         A Court of Appeals panel affirmed. Gonzalez, 2016 WL 3202555, at *1. Gonzalez petitioned this court for review, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals' decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018).

         Constitutionality of the Crime of Conviction

         Gonzalez claims for the first time on appeal that the statute defining unintentional second-degree murder is unconstitutionally vague. He advances three reasons. First, he claims State v. Deal, 293 Kan. 872, 269 P.3d 1282 (2012), blurred the distinction between unintentional second-degree murder and involuntary manslaughter because it held the second-degree murder statute focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death. Second, he asserts amendments to the definition of "'recklessly'" in K.S.A. 2016 Supp. 21-5202(j), made unintentional second-degree murder and involuntary manslaughter the same crime. Third, he cites Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), to argue the unintentional second-degree murder statute requires a jury to first make a determination of the "ordinary" reckless killing, which "creates grave uncertainty."

         Additional Facts

         In discussing Gonzalez' vagueness claim, it is helpful to review how the jury was instructed about two of the crimes charged. After instructing the jury on intentional second-degree murder, which is not relevant here, the trial court instructed on unintentional second-degree murder under K.S.A. 2016 Supp. 21-5403(a)(2) and involuntary manslaughter under K.S.A. 2016 Supp. 21-5405(a)(1). The relevant instructions provided as follows:

         Instruction No. 11 stated:

"If you do not agree that the defendant is guilty of Murder in the Second Degree, committed Intentionally, you should then consider the lesser included offense of Murder in the Second Degree, committed Unintentionally.
"To establish this charge, each of the following claims must be proved:
"1. The defendant killed Levi William Bishop unintentionally but recklessly under circumstances that show extreme indifference to the value of human life.
"2. This act occurred on or about the 1st day of January, 2014, in Pottawatomie County, Kansas.
"A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that a result of the defendant's actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation." (Emphasis added.)

         Instruction No. 11 further stated:

"If you do not agree that the defendant is guilty of Murder in the Second Degree, committed Unintentionally, you should then consider the lesser included offense of Involuntary Manslaughter.
"To establish this charge, each of the following claims must be proved:
"1. The defendant killed Levi William Bishop.
"2. It was done recklessly.
"3. This act occurred on or about the 1st day of January, 2014, in Pottawatomie County, Kansas.
"A defendant acts recklessly when the defendant consciously disregards a substantial and unjustifiable risk that a result of the defendant's actions will follow. This act by the defendant disregarding the risk must be a gross deviation from the standard of care a reasonable person would use in the same situation."

         Instruction No. 7 stated:

"Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge."

         Instruction No. 10 stated:

"When there is a reasonable doubt as to which of two or more offenses defendant is guilty, he may be convicted of the lesser offense only."

         Standard ...


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