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State v. Chavez

Supreme Court of Kansas

August 23, 2019

State of Kansas, Appellee,
v.
Samuel Chavez, Appellant.

         SYLLABUS BY THE COURT

         1. K.S.A. 2018 Supp. 21-5202 creates three categories of criminal intent by describing culpable mental states, classified according to relative degrees, from highest to lowest, as follows: (1) intentionally; (2) knowingly; and (3) recklessly. But K.S.A. 2018 Supp. 21-5202(c) establishes the legal possibility that the State can prove the culpability required for the charged crime by proving a higher degree of culpability, e.g., if recklessness suffices to establish an element of the charged crime, that element is established by proof the person acted knowingly or intentionally.

         2. Because K.S.A. 2018 Supp. 21-5202(c) permits recklessness to be proved by establishing the defendant acted knowingly, the presumption under K.S.A. 2018 Supp. 21-5427(c)-that a person who violates a protective order after having been served with the order acts knowingly-is not internally inconsistent with the recklessness element of stalking under K.S.A. 2018 Supp. 21-5427(a)(3).

         3. A protected person under a Protection from Abuse court order (PFA order) does not have the authority to unilaterally modify the court order by waiving its restraints or consenting to its violation. Consequently, in a stalking prosecution under K.S.A. 2018 Supp. 21-5427(a)(3), the defendant is not entitled to have the jury instructed on the principles of an implied waiver.

         4. Pursuant to K.S.A. 2018 Supp. 22-3414(3), a defendant challenging the omission of an unrequested jury instruction has the burden to establish that the instruction error was clearly erroneous. Reversibility based upon the omission of an unrequested jury instruction is subject to unlimited review on appeal, based on the entire record. To reverse on the omission of an unrequested jury instruction, an appellate court must be firmly convinced that the omission adversely affected the jury's verdict.

         5. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 4, 2017.

          Appeal from Wyandotte District Court; Bill Klapper, judge. Judgment of the Court of Appeals affirming in part, reversing in part, and vacating in part the district court is affirmed. Judgment of the district court is affirmed in part, reversed in part, and vacated in part.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Daniel G. Obermeier, assistant district attorney, argued the cause, and Edward J. Bain, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.

          OPINION

          Johnson, J.

         A jury convicted Samuel Chavez of aggravated burglary, stalking, and criminal threat. On direct appeal, the Court of Appeals reversed Chavez' aggravated burglary conviction but affirmed his stalking and criminal threat convictions. Chavez petitioned this court for review and argues that the Court of Appeals erred in: (1) rejecting his argument that the stalking conviction was legally impossible under Kansas statutes; (2) failing to address his claim that he was entitled to an instruction and argument regarding a defense that the victim waived her right to enforce a protection from abuse order; (3) holding that a limiting instruction is not legally appropriate if prior crimes or civil wrongs evidence is admitted to prove an actual element of the charged crime; and (4) refusing to grant him a new trial due to cumulative error. On the issues before this court, we find no reversible error and affirm the Court of Appeals' decision to affirm the stalking and criminal threat convictions.

         Factual and Procedural Overview

         The State charged Chavez with multiple crimes stemming from events that allegedly took place between Chavez and his estranged wife, Sandra Jaimes-Martinez (hereinafter Jaimes), on August 31, 2014 and September 1, 2014. The State alleged that on August 31, Chavez committed aggravated burglary, aggravated assault, stalking, domestic battery, and criminal damage to property; and that on September 1, Chavez committed aggravated burglary, stalking, and criminal threat. Chavez' case proceeded to a jury trial on all charges, but Chavez was only convicted of the crimes that the State alleged occurred on September 1, 2014.

         At Chavez' jury trial, Jaimes testified that she and Chavez lived together at a particular residence from 2009 to March 2014, when their relationship ended and Chavez moved out. The couple had a child together.

         In July 2014, Jaimes obtained a "Final Order of Protection from Abuse" (PFA) listing Jaimes as the plaintiff and Chavez as the defendant. The district judge initialed the order indicating that "[t]he matter was heard and submitted to the court which finds that Plaintiff has proved the allegations of abuse by the preponderance of the evidence as required by K.S.A. 60-3107." The PFA granted Jaimes exclusive possession of the particular residence. The PFA further provided "[t]he defendant shall not contact the protected person(s), either directly or indirectly, except as authorized by the court in paragraph 8(b) of this order." In paragraph 8(b), the district court granted Jaimes sole temporary legal custody of the couple's child. The PFA was effective until July 16, 2015, and stated "ONLY THE COURT CAN CHANGE THIS ORDER."

         Jaimes and Chavez related different accounts of their relationship following Chavez' receipt of the PFA. According to Jaimes, between July and September 2014, Chavez was not allowed at her home. But Chavez would frequently text and call her. Jaimes said she was scared of Chavez, but she answered some of his calls because he had previously left her voicemails threatening to come home if she did not answer.

         On August 31, 2014, Jaimes said Chavez arrived uninvited at her house and beat her, threw a beer bottle at her, pushed her onto the sofa, held her down, retrieved some children's scissors, and threatened to kill her. Jaimes eventually got away from Chavez and called the police. By that time, Chavez was leaving. As he left, he knocked over a television sitting on the porch.

         Chavez came back uninvited the next day, knocked strongly on the door, and told Jaimes to open it or he would kill her. Chavez eventually forced the door open but left because Jaimes was on the phone with the police.

         According to Chavez, he knew about the PFA and therefore knew he should not have been communicating with Jaimes. But despite the PFA and troubles in their relationship, he and Jaimes were in regular contact and planned to get back together. Chavez presented text messages as evidence of consensual communication.

         Chavez denied Jaimes' version of events leading to the criminal charges against him. With respect to September 1, Chavez said that during a phone conversation, Jaimes agreed to lend Chavez some money and told Chavez to come to her house to get it. When he arrived, he knocked and Jaimes opened the door. Jaimes said she would give him the money if she could have his cell phone to erase text messages and phone calls she made to him. After he refused, Jaimes tried to close the door. Chavez pushed the door with his arm to keep it from closing, which broke the chain on the door. Jaimes then called the police and Chavez left.

         The district court granted Chavez' request for a directed verdict on the August 31 criminal damage to property charge, and the jury acquitted Chavez on the remaining August 31 charges. For his convictions on the September 1 charges, the district court sentenced Chavez to 41 months for aggravated burglary, 6 months for stalking, and 6 months for criminal threat, to run concurrent to each other.

         The Court of Appeals reversed Chavez' aggravated burglary conviction. State v. Chavez, No. 115, 602, 2017 WL 3321375, at *4-6 (Kan. App. 2017) (unpublished opinion). The panel affirmed the remainder of Chavez' convictions, rejecting his argument that his stalking conviction required the State to prove legally impossible mental states. 2017 WL 3321375, at *7-8. The panel further held that Chavez was not entitled to a K.S.A. 60-455 limiting instruction regarding the PFA because existence of the PFA was an element of the stalking charge. 2017 WL 3321375, at *8-9. The panel did not address Chavez' claim that he was entitled to an instruction on implied waiver of a PFA before it rejected Chavez' cumulative error argument. 2017 WL 3321375, at *9.

         Chavez petitioned this court for review of the rulings adverse to him. The State did not cross-petition on the Court of Appeals' reversal of the aggravated burglary conviction.

         Stalking Under K.S.A. 2018 Supp. 21-5427(a)(3)

         Preservation

         Chavez was charged with stalking under K.S.A. 2018 Supp. 21-5427(a)(3). For the first time on appeal, Chavez asserted that K.S.A. 2018 Supp. 21-5427 is internally inconsistent because subsection (a)(3) requires proof of reckless conduct while subsection (c) creates a presumption the defendant's conduct was knowing. Consequently, he contended that when the State charges and presents evidence that a person committed stalking after being served with a protective order, it has the statutory burden to prove ...


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