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State v. Harris

Supreme Court of Kansas

December 13, 2019

State of Kansas, Appellee,
Samuel L. Harris, Appellant.


         1. The "taking or confining" element for the crime of kidnapping under K.S.A. 2018 Supp. 21-5408 is satisfied if the purpose of the taking or confining was to "facilitate" the commission of another crime. The term "facilitate" means something more than to just make the crime's commission more convenient. The taking or confining must have some significant bearing on making the other crime's commission easier.

         2. To constitute a kidnapping under K.S.A. 2018 Supp. 21-5408(a)(2) when a taking or confining is alleged to have been done to facilitate another crime's commission, the resulting taking or confinement: (a) must not be slight, inconsequential, or merely incidental to the other crime; (b) must not be of the kind inherent in the nature of the other crime; and (c) must have some significance independent of the other crime in that it makes the other crime's commission substantially easier or substantially lessens the risk of detection.

         3. The statutory language "to facilitate flight or the commission of any crime" in K.S.A. 2018 Supp. 21-5408(a)(2) does not create alternative means. It merely provides options within a means.

         4. The test for determining whether cumulative error requires reversal of a defendant's conviction is whether the totality of the circumstances substantially prejudiced the defendant and denied that defendant a fair trial.

         5. State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), does not apply to collateral attacks challenging jurisdiction based on the charging document in a criminal case so long as the charged offense is a crime under Kansas law and the defendant was adequately apprised of that alleged offense.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed December 16, 2016.

Appeal from Lyon District Court; Jeffry J. Larson, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause and was on the briefs for appellant.

          Laura L. Miser, assistant county attorney, argued the cause, and Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.


          BILES, J.

         Samuel L. Harris appeals from his convictions for robbery, kidnapping, and criminal threat. These crimes stemmed from a 2013 incident during which he controlled his victim for two hours, repeatedly forcing her to move from room to room within a small apartment while demanding money. Before a Court of Appeals panel, Harris claimed several trial errors and ineffective assistance of defense counsel. The panel held there were two trial errors and rejected the ineffective assistance contention. It determined the trial errors were harmless both individually and collectively. State v. Harris, No. 112, 883, 2016 WL 7325012 (Kan. App. 2016) (unpublished opinion). Harris now challenges the panel's analysis concerning the evidence supporting his kidnapping conviction, the jury instructions, cumulative error, and his ineffective assistance issue. We affirm, although our rationale differs from the panel's reasoning on some questions.

         Factual and Procedural Background

         Harris was at Victoria Lujan's apartment. He kept talking to her while she was trying to sleep, so she asked him to leave. He became frustrated by this and pushed her across the bed. She hit her head against a wall, leaving a mark under one eye. Harris panicked and said, "[O]h, my gosh, what happened to your eye? Did I do that? I'm going to go back to prison." Lujan said she would not call the police, but again asked him to leave. He refused and demanded money so he could get away. He knew Lujan typically kept $900 in cash each month for rent and living expenses.

         Throughout the next two hours, Harris grabbed Lujan's arms and forcefully moved her from the bedroom to the bathroom, to the living room, and to the kitchen. She testified they went back and forth into each room at least twice. While doing so, he repeatedly demanded money. He threatened to kill her dog in front of her before killing her. Eventually, she gave him roughly $700.

         A jury found Harris guilty of kidnapping, robbery, criminal restraint, and criminal threat. But the district court reversed the criminal restraint conviction, holding it was incorporated within the kidnapping conviction. The court sentenced Harris to 216 months in prison.

         Harris appealed, asserting multiple trial errors and ineffective assistance of defense counsel. The panel remanded the case for a Van Cleave hearing to consider the ineffective assistance issues. See State v. Van Cleave, 239 Kan. 117, ¶ 2, 716 P.2d 580 (1986) (acknowledging appellate court's authority to remand ineffective assistance of counsel challenges to the trial court for an initial determination). On remand, the district court conducted an evidentiary hearing and found Harris was not entitled to relief. Harris incorporated that adverse ruling into his appeal. The panel ultimately determined there were two trial errors, but affirmed the convictions because those errors were harmless both individually and collectively. Harris, 2016 WL 7325012, at *15.

         Harris sought our review. Among his challenges, we have determined some are not sufficiently briefed or argued to merit substantive consideration, i.e., three of the four contentions raised at the Van Cleave hearing, as well as assertions against evidence admissibility and arguments about Harris' criminal history score. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) ("When a litigant fails to adequately brief an issue it is deemed abandoned."); Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S.Ct. R. 53) (court will not consider issues not presented or fairly included within the petition for review).

         For the remaining issues, we first address two evidence sufficiency arguments and then discuss four jury instruction challenges. And because we determine two trial errors existed from these issues, we proceed to consider the cumulative effect of those errors. Finally, we discuss the ineffective assistance of counsel argument. We affirm the convictions.

         Sufficiency of the Evidence

         Harris argues there is insufficient evidence to sustain his kidnapping conviction. First, he asserts the evidence fails to show he took or confined Lujan. Second, he insists the evidence fails to establish his intent to facilitate flight.

         Additional facts

         Lujan testified her one-bedroom apartment was arranged in an open rectangle. All agree Harris forcefully moved her to different rooms, first taking her from the bedroom, where the incident began, to the bathroom. There, Lujan said, Harris was "firm . . . adamant about getting the money." He held a body pillow as if he might suffocate her. He said, "I'm not playing. Victoria, you need to give me your money and I need to get away. I'm not playing." She was too scared to try to break free.

         Next, he took her back to the bedroom. Harris sat on the bed and said, "'Lord, please forgive me for this murder I'm about to commit.'" This terrified Lujan even more. She was nude and asked to get dressed, but Harris refused. He told her "'if you get dressed, then you can run out the door and you're not going to run outside naked.'" He also took her cell phone.

         After this, Harris moved Lujan into the living room, where he sat on a love seat and made her sit on the floor in front of him. She offered sex to distract him, but he refused. While in the living room, he threatened to kill her dog in front of her and then to kill her. He then took her into the kitchen, where he demanded she help him untangle several extension cords so he could tie her up. They failed at this, so he gave up and took her back to the living room where he again made her sit on the floor. He said, "'I'm not playing . . . . I have a gun on the back side of me. I've killed three people before, it's not going to be a problem to kill you.'" At that point, he punched her in the jaw with a closed fist.

         After being hit, Lujan retrieved her money. She gave Harris $70 to $90 at first, but he demanded more. They went back to the bedroom and got her remaining cash. Harris then took her from the bedroom back to the living room where he made her sit on the sofa. He put two pillows over her ears while he called a friend, David Deck, to ask for a ride. She could hear Harris saying, "I need to get out of town."

         After that, Harris smoked a cigarette near the front door, which he opened because the smoke bothered Lujan. He made her stand next to him. He said again he was going to "hog tie" her with an extension cord and kill her. Lujan tried, but failed, to get through the door.

         She then ran to the wall of an adjoining apartment and banged on it while yelling out to her neighbor. Harris knew Lujan had a system for alerting the neighbor if Lujan needed help, so he ran away. The neighbor testified she heard muffled voices and yelling coming from Lujan's apartment. The neighbor called 911 when Lujan banged on the wall. Lujan came to the neighbor's apartment naked and crying hysterically.

         Deck testified he went to an area near Lujan's apartment after receiving the call from Harris, who was agitated when Deck arrived. The pair went to Deck's house. When Deck left to buy beer, Harris gave him a $20 bill and Deck saw that Harris had a large amount of cash.

         Although the State charged Harris with aggravated kidnapping, the jury found him guilty of the lesser included offense of kidnapping. The jury instructions listed the alleged kidnapping's three elements as: (1) Harris took or confined Lujan by force or threat; (2) he took or confined her "to facilitate flight or the commission of any crime"; and (3) the "act occurred on or about the 3rd day of May, 2013, in Lyon County, Kansas." Harris challenges the sufficiency of the evidence admitted to support those first two elements.

         Standard of review

         When a criminal defendant challenges the sufficiency of the evidence used to support a conviction, an appellate court looks at all the evidence "in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Rizal, 310 Kan. 199, 209, 445 P.3d 734 (2019). A reviewing court "generally will 'not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.'" State v. Gonzalez, 307 Kan. 575, 586, 412 P.3d 968 (2018).

         1. Kidnapping's taking or confinement element

         K.S.A. 2018 Supp. 21-5408(a) specifies that the crime of kidnapping can be accomplished "by force, threat or deception" with the specific intent to achieve certain objectives. K.S.A. 2018 Supp. 21-5408(a) ("[1] For ransom, or as a shield or hostage; [2] to facilitate flight or the commission of any crime; [3] to inflict bodily injury or to terrorize the victim or another; or [4] to interfere with the performance of any governmental or political function."); State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976). In Harris' case, we are focused on the second alleged statutory objective, i.e., "to facilitate flight or the commission of any crime." See K.S.A. 2018 Supp. 21-5408(a)(2).

         The trial court's instructions advised the jury it had to find Harris "took or confined" Lujan "by force or threat" and did so "to facilitate flight or the commission of any crime." Harris disputes whether he had the required specific intent to achieve the proscribed objective.

         The term "facilitate" means "something more than just to make more convenient." 219 Kan. at 215. The Buggs court discussed what is needed for a taking or confining to sustain a kidnapping conviction:

"[I]f a taking or confining is alleged to have been done to facilitate the commission of another crime, to be kidnapping the ...

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