IN THE SUPREME COURT OF THE STATE OF KANSAS
NO. 87,788
STATE OF KANSAS,
Appellee,
v.
DEREK DWAYNE BRICE,
Appellant.
SYLLABUS BY THE COURT
1. The Fifth and Sixth Amendments to the United States Constitution guarantee a defendant the opportunity for a jury to decide guilt or innocence. A necessary corollary is the right to have one's guilt determined only upon proof beyond the jury's reasonable doubt of every fact necessary to constitute the crime charged.
2. The trial court commits error when it instructs the jury that as a matter of law an element of the offense charged has been established by the evidence. Such instruction invades the province of the jury as the factfinder and violates the defendant's Fifth and Sixth Amendment rights to have the jury determine his guilt or innocence.
3. In reviewing jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
4. A defendant has a right to an instruction and the trial court has a duty to instruct on a lesser included offense which is supported by substantial evidence. Where there is no substantial evidence applicable to the lesser degrees of the offense charged and all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, however, instructions relating to the lesser degree of the offenses are not necessary.
5. The admission of expert testimony lies within the sound discretion of the trial court. Its decision will not be overturned absent an abuse of such discretion. One who asserts an abuse of discretion bears the burden of showing such abuse.
6. Although an expert may give an opinion on an ultimate issue as provided in K.S.A. 60-456(d), such witness may do so only insofar as the witness aids the jury in the interpretation of technical facts or assists the jury in understanding the material in evidence. An expert witness may not pass on the weight or credibility of evidence, for those matters are strictly within the province of the jury.
7. The judgment of a trial court, if correct, will be upheld even though the trial court relied upon the wrong reason for its decision.
Review of the judgment of the Court of Appeals in 31 Kan. App. 2d 293, 64 P.3d 444 (2003). Appeal from Labette district court; DANIEL L. BREWSTER, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with directions. Opinion filed December 12, 2003.
Randall L. Hodgkinson, deputy appellate defender, argued the cause, and Shawn Minihan, assistant appellate defender, was with him on the briefs for appellant.
Steven W. Wilhoft, county attorney, argued the cause, and Carla J. Stovall, former attorney general, and Phill Kline, attorney general, were with him on the briefs for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Derek Brice was convicted by a jury of one count of aggravated battery in violation of K.S.A. 21-3414(a)(1)(A) and sentenced to 41 months' imprisonment. Brice appealed his conviction, and the Court of Appeals affirmed that conviction in State v. Brice, 31 Kan. App. 2d 293, 64 P.3d 444 (2003). This court granted Brice's petition for review.
The Court of Appeals' recitation of facts was not questioned by Brice in his petition for review. The following facts are summarized from the Court of Appeals' opinion:
Brice replaced Ivory Kelly in a relationship with a woman named Nichole Kendrick, with whom Kelly had three children. Kendrick testified that Kelly did not like Brice, had threatened to "kick his ass," and had told her not to allow Brice to drive any of the three cars that Kelly and Kendrick owned together.
In February 2001, Kendrick and Brice dropped off one of the cars at Kelly's house. When Kelly asked Kendrick about her allowing Brice to drive one of their cars, Kendrick ignored him. Kelly then went to a store to buy food for the children and saw Brice and Kendrick in the parking lot. Kelly and Kendrick argued about Brice and the cars. Kelly instructed Brice to give Kendrick the keys to the car so she could take the children home.
As Kendrick left the parking lot, Kelly walked toward the store and Brice. When they were approximately 2 feet apart, Brice shot Kelly with a 9mm handgun.
Kendrick took Kelly to the emergency room. The treating physician, Dr. Myers, testified that the bullet missed bone, major arteries, veins, and nerves. He testified "that it was a through and through injury." A police officer and Kelly testified that the bullet entered Kelly's upper right thigh and exited through his right buttock.
Kelly was kept overnight at the hospital and checked by Dr. Myers the following day for circulation in the leg. He was given pain medication and released. Kelly said he limped for approximately 1 week but did not use crutches. He missed a week and a half of work and has a scar at both the entry and exit points.
Brice turned himself in to the police approximately 10 hours after the shooting. He was given a Miranda warning and consented to an interview. He told Detective Gofourth, who testified at trial as to the conversation, that Kelly and Kendrick pushed and grabbed each other at the store, which led to an altercation between Kelly and himself. Brice said Kelly knocked the car keys from his hand and struck him. First, Brice said he "just blacked out" and did not know if he shot Kelly or not. During a second interview, however, Brice said he shot Kelly because he was afraid of him. He admitted to having the gun because he was afraid of Kelly. Brice is much smaller than Kelly.
Brice raises four issues on appeal:
1. Did the trial court err in instructing the jury that the term "great bodily harm" means a "through and through bullet wound?"
2. Should the trial court have instructed the jury on lesser included offenses of severity levels 7 and 8 aggravated battery?
3. Did the trial court's exclusion of a defense witness violate due process?
4. Was the defendant deprived of a fair trial by cumulative errors?
As the Court of Appeals noted, Brice's first three issues on appeal are interrelated as each one involves the legal differences between bodily harm and great bodily harm under K.S.A. 21-3414. The first two issues involve what instructions should have been given, and there is a significant overlap in the reasoning on these two issues. For this reason, these two issues will be discussed and considered together.
In reviewing jury instructions, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
With regard to all the instructions given in this case, the Court of Appeals stated:
"The State asks us to look at all of the instructions, especially No. 8, which stated:
'The defendant is charged with the crime of level 4 aggravated battery.
'The defendant pleads not guilty.
'To establish this charge, each of the following claims must be proved:
'1. That the defendant intentionally caused great bodily harm to another person, to-wit: Ivory Kelly; and
'2. That this act occurred on or about the 11th day of February, 2001, in Labette County, Kansas."
. . . .
"When we look at all of the jury instructions in this case as Mitchell teaches us to do, we find the elements of level 4 and level 5 aggravated battery which are required to be proved beyond a reasonable doubt are correctly set forth in instructions Nos. 8 and 10. Instruction No. 11 relates to Brice's claim of self-defense and is clearly stated. The next two instructions, Nos. 12 and 13, are essentially definitional instructions, as is the complained-of instruction No. 14 regarding the through and through bullet wound.
"Instruction No. 12 reads: 'As used in these instructions, the term Intentional Conduct means, conduct that is purposeful and willful and not accidental. The terms "knowing," "willful," "purposeful," and "on purpose" are included within the term "intentional."'
"Instruction No. 13 reads:
'As used in these instructions, the term Reckless Conduct means, conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms "gross negligence," "culpable negligence," "wanton negligence" and "wantonness" are included within the term "recklessness" as used in this code.'" 31 Kan. App. 2d at 305-06.
As we have seen, the jury was instructed that Brice was charged with severity level 4 aggravated battery and that to establish the charge it must be proved that he intentionally caused great bodily harm to Ivory Kelly under K.S.A. 21-3414(a)(1)(A). The jury also was instructed on the lesser offense of recklessly causing great bodily harm under K.S.A. 21-3414(a)(2)(A). The instruction (No. 14) that is at issue stated: "As used in these instructions, the term Great Bodily Harm means, a 'through and through bullet wound.'" The jury found Brice guilty of severity level 4 intentional aggravated battery.
Various degrees of aggravated battery are set forth in K.S.A. 21-3414, which states:
"(a) Aggravated battery is:
(1) (A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(2) (A) recklessly causing great bodily harm to another person or disfigurement of another person; or
(B) recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.
"(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. Aggravated battery as described in subsection (a)(2)(A) is a severity level 5, person felony. Aggravated battery as described in subsection (a)(2)(B) is a severity level 8, person felony. A person convicted of aggravated battery shall be subject to the provisions of subsection (h) of K.S.A. 21-4704 and amendments thereto."
An essential element of severity level 4 aggravated battery is great bodily harm or disfigurement. As the Court of Appeals noted, disfigurement did not become a jury question in the present case. Hence, the Court of Appeals' discussion centered on the differences between the terms "bodily harm" and "great bodily harm." 31 Kan. App. 2d at 299.
In considering whether the trial court properly instructed the jury that a through and through bullet wound constituted great bodily harm, the Court of Appeals reviewed cases that involve the current statutory definitions of aggravated battery, which became effective in 1993. See L. 1993 ch. 291, sec. 29. The Court of Appeals had to expand the precedent set by those cases in approving the trial court's instruction. 31 Kan. App. 2d at 298-304.
The first case discussed by the Court of Appeals was State v. Ochoa, 20 Kan. App. 2d 1014, 895 P.2d 198 (1995), which was largely disapproved in State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996). One shot fired by Ochoa hit a victim in the abdomen, missed vital organs, and went out through the victim's back. He shot another victim in both calves, and a third victim was hit in the leg by something that caused a small bruise. The Court of Appeals stated that the question of whether Ochoa inflicted bodily harm or great bodily harm was a fact question to be decided by the jury. 20 Kan. App. 2d at 1020. Accordingly, the Ochoa Court of Appeals concluded that the trial court's failure to instruct the jury on the lesser included offenses of severity levels 5, 7, and 8 aggravated battery was reversible error. 20 Kan. App. 2d at 1021.
In Valentine, the defendant fired four or five shots at the victim. One bullet struck him in the arm, another severed his spine and paralyzed him from the waist down. Relying on Ochoa, Valentine argued that the trial court erred in failing to instruct the jury on the lesser included offense of severity level 7 aggravated battery. The court disagreed with the Court of Appeals:
"In Ochoa, the victim received a 'through and through' bullet wound. The bullet entered the victim's stomach and exited through his back without hitting any vital organs. A 'through and through' bullet wound in the abdomen does not present a question of fact as to whether it is mere bodily harm or great bodily harm. This constitutes great bodily harm. See State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). There may be instances where a bullet wound is not 'great' bodily harm when, for example, it grazes the skin, but we cannot envision a 'through and through' bullet wound, as occurred in Ochoa, that does not amount to great bodily harm. That part of Ochoa, inconsistent with this opinion, is disapproved. As such, we have no difficulty in finding that a bullet wound which severs the spinal cord and causes paralysis, a much worse wound than a through and through bullet wound, qualifies as great bodily injury as a matter of law. The trial court did not err when it did not give an instruction on level 7 aggravated battery. The defendant was either guilty of level 4 aggravated battery or not guilty." 260 Kan. at 435.
Based on Valentine and testimony in the present case, the Brice Court of Appeals stated that "the 'through and through' bullet wound in our case must be considered to amount to great bodily harm as a matter of law and lesser included instructions of severity levels 7 and 8 'bodily harm' aggravated battery were not appropriate or required." 31 Kan. App. 2d at 301. The Court of Appeals continued its inquiry by examining State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996), which was cited in Valentine.
In Whitaker, which was decided a few months before Valentine, the issue was sentencing. In that context, the court said:
"Whether bodily harm is great is generally a question of fact for the jury, not the trial judge. See State v. Sanders, 223 Kan. 550, 552, 575 P.2d 533 (1978); State v. Ochoa, 20 Kan. App. 2d 1014, 1020, 895 P.2d 198 (1995). Here, however, where the determination of great bodily harm is made in the context of classifying the severity level of a crime, the trial judge is required to explore that question and determine if great bodily harm occurred.
"Did great bodily harm occur? The facts indicate that Neal had an intent to cause great bodily harm. The police officer received a 'through and through' wound to his right arm, although a more damaging injury could have occurred had the officer been hit in a more vital area of his body or if the bullet had struck a bone. The officer missed 3 days of work as a result of his injury. The officer here suffered more than a mere bruise or scratch. The sentencing judge properly classified Whitaker's offense as a severity level 3 crime based on the intent to cause great bodily harm." 260 Kan. at 94.
Commenting on Whitaker in the present case, the Brice Court of Appeals stated: "The language in Whitaker makes it clear that in the context of classifying the severity level of a crime the trial judge is required to explore the question and make a determination from the facts or testimony. Whitaker can be expanded in its reasoning or limited in its holding to only sentencing matters." 31 Kan. App. 2d at 302.
The most recent aggravated battery case included in the Court of Appeals' discussion was State v. Moore, 271 Kan. 416, 23 P.3d 815 (2001), in which the defendant used a hot iron to burn his victim's legs, breast, and inner thighs. Moore was charged with intentionally causing great bodily harm or disfigurement. The trial court declined to instruct on the lesser offense of simple battery: see K.S.A. 2002 Supp. 21-3412(a). The court quoted the following principle governing when lesser offense instructions are required from State v. Gibbons, 256 Kan. 951, 955, 889 P.2d 772 (1995): "'Where there is no substantial evidence applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary.'" Moore, 271 Kan. at 419. Stating that the victim's injuries were not trivial, minor, or in the nature of bruising, the Moore court framed the question before it as "whether a reasonable jury could have found that the injuries constituted 'moderate' harm, which would necessitate a giving of a simple battery instruction. [Citation omitted.]" 271 Kan. at 420. The court concluded that
"no reasonable jury could have found the injuries to constitute moderate harm. Rather, the offense if committed, was clearly of the higher degree, and the trial court did not err in failing to give an instruction on the lesser offense of simple battery, as there was simply no evidence from which a reasonable jury could have convicted the defendant of that offense. See Gibbons, 256 Kan. at 955." 271 Kan. at 421.
After the Court of Appeals in the present case discussed Moore, it stated:
"We likewise conclude that based on the evidence before the trial court, the offense, if committed, was clearly either a severity level 4 (intentional) or level 5 (reckless) aggravated battery based on great bodily harm resulting from the 'through and through bullet wound' as a matter of law. The evidence excluded any theory of guilt of aggravated battery of the lesser severity levels. It was not error to refuse to give instructions relating to levels 7 and 8 aggravated battery. The holdings and logic of Whitaker, Valentine, and Moore clearly support our decision." Brice, 31 Kan. App. 2d at 304.
An additional question, not only whether lesser offense instructions were proper, is raised by the trial court's instructing the jury in the present case that great bodily harm means a through and through bullet wound. The additional question requires an extension of the holdings and logic of Whitaker, Valentine, and Moore. The Brice Court of Appeals majority found no reason not to make the extension:
"If it is necessary for the trial court to consider the evidence and find that a through and through gunshot wound has been inflicted on the victim and the Kansas Supreme Court has legally defined this as constituting great bodily harm, why is it not proper to so instruct the jury? Logic would tell us this is nothing more than providing an applicable definition for the jury's usage in considering all of the instructions." 31 Kan. App. 2d at 304.
Judge Knudson dissented from the majority's holding that the trial court did not err when it instructed the jury: "As used in these instructions, the term Great Bodily Harm means, a 'through and through bullet wound.'" He wrote that, although "the majority's holding is logical and an understandable expansion in light of the holdings" in Valentine and Whitaker, it would improperly infringe upon a defendant's rights under the Fifth and Sixth Amendments to the United States Constitution "to have a jury determine guilt beyond a reasonable doubt on every element of a charged offense. United States v. Gaudin, 515 U.S. 506, 510, 132 L. Ed. 2d 444, 115 S. Ct. 2310 (1995)." Brice, 31 Kan. App. 2d at 308-09.
Gaudin, 515 U.S. 507, is a unanimous decision of the United States Supreme Court, holding that it was unconstitutional for the trial judge to refuse to submit to the jury the question of materiality of defendant's statements in a prosecution for making false statements on Federal Housing Administration (FHA)/Department of Housing and Urban Development (HUD) loan documents. Gaudin was charged with knowingly inflating the appraised value of the mortgaged property and misrepresenting which party was to pay closing costs. The government called several FHA/HUD program administrators as witnesses to explain why the information Gaudin allegedly falsified was important. The trial judge instructed the jury that one of the elements the government was required to prove in order to convict Gaudin was that the alleged false statements were material to the activities and decisions of HUD. "But, the court further instructed, '[t]he issue of materiality . . . is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements.'" 515 U.S. at 508.
The Ninth Circuit Court of Appeals reversed Gaudin's convictions, holding that "taking the question of materiality from the jury denied respondent a right guaranteed by" the Due Process Clause of the Fifth Amendment and the Sixth Amendment right of criminal defendants to a trial by an impartial jury. 515 U.S. at 509. On certiorari, the government argued that the principle of requiring the jury to decide all the elements of a criminal offense was inapplicable because the question of materiality was a question of law. The Supreme Court rejected the argument on the grounds that materiality is a mixed question of law and fact and that mixed questions historically have been determined by juries in reaching criminal verdicts. 515 U.S. at 512-15. The Supreme Court stated:
"The Fifth Amendment to the United States Constitution guarantees that no one will be deprived of liberty without 'due process of law'; and the Sixth, that '[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." We have held that these provisions require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-278[, 124 L. Ed. 2d 182, 113 S. Ct. 2078] (1993)." 515 U.S. at 509-10.
In affirming the judgment of the Ninth Circuit Court of Appeals, the Supreme Court concluded: "The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge's refusal to allow the jury to pass on the 'materiality' of Gaudin's false statements infringed that right." 515 U.S. at 522-23.
In our Court of Appeals, Brice argued that his right to have every element of the offense determined by the jury was violated by the through and through bullet wound instruction. Although Brice's constitutional argument is very nearly the same as Judge Knudson's dissenting view, the approach taken by Brice in the Court of Appeals and pursued in this court with additional authority is less direct than that of the dissenting judge. Because the trial court, instead of refusing to allow the jury to pass on great bodily harm, instructed the jury that great bodily harm means a through and through bullet wound, Brice identifies the error in the instruction as creating a burden-shifting presumption rather than as taking the issue from the jury. He contends that the challenged instruction creates a mandatory presumption by instructing the jury that it must infer the presumed fact of great bodily harm if the State proved that Kelly suffered a through and through bullet wound.
The Court of Appeals' majority, however, had the opposite view based on the authorized practice in Kansas courts of defining terms for jurors. The court stated that "[e]very element of the crime charged remained to be proved beyond a reasonable doubt. It is not improper or unconstitutional to give a jury a proper definitional instruction as was done in our case." 31 Kan. App. 2d at 306. The Court of Appeals' majority compared the great bodily harm instruction to "the myriad of definitional instructions we find in PIK Crim. 3d 53.00" (definitions) and to PIK Crim. 3d 56.04 (homicide definitions). 31 Kan. App. 2d at 306. The great bodily harm instruction in the present case was formatted as suggested in the introduction of PIK Crim. 3d 53.00: "'As used in these instructions, the term (means) (includes) .'"
Brice also argues that the complained-of instruction removed a required element from the case in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). The Court of Appeals rejected Brice's argument, stating that Apprendi "involves sentencing for actions not found by a jury beyond a reasonable doubt and is not applicable to our factual situation." Brice, 31 Kan. App. 2d at 307. There is no reason to reconsider this argument.
The issue we must resolve is that stated by Judge Knudson: Whether the through and through bullet wound instruction deprived Brice of his rights under the Fifth and Sixth Amendments to have a jury determine guilt beyond a reasonable doubt on every element of a charged offense. This case can be distinguished from Gaudin, the case cited by Judge Knudson, but it is a distinction without a difference. In Gaudin, as we have seen, the constitutional error was in the trial judge's not submitting the materiality element of the charged offense to the jury. In the present case, the element of great bodily harm was submitted to the jury, but in instructing the jury that great bodily harm means what the State's evidence showed, the trial judge effectively instructed the jury that the element had been proved. In both cases, the jury was told that an element had been established by the evidence. The Brice Court of Appeals' majority called the challenged instruction "an applicable definition," 31 Kan. App. 2d at 304, but the dissenting judge disagreed: "Instruction No. 14 removes from jury consideration whether the State proved great bodily harm beyond a reasonable doubt. That decision was made by the trial court and effectively eliminated the defendant's right of trial by jury on that element of the crime." 31 Kan. App. 2d at 310.
In addition to citing Gaudin, Judge Knudson quoted the following from United States v. Mentz, 840 F.2d 315, 319 (6th Cir. 1988):
"'The Sixth Amendment to the Constitution guarantees to a defendant the opportunity for a jury to decide guilt or innocence. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). A necessary corollary is the right to have one's guilt determined only upon proof beyond the jury's reasonable doubt of every fact necessary to constitute the crime charged.'" 31 Kan. App. 2d at 309 (Knudson, J., dissenting).
Mentz was charged with robbing two banks in August 1986 in violation of 18 U.S.C. § 2113(a) (1982), which required the government to prove that the deposits of the banks were insured by the Federal Deposit Insurance Corporation (FDIC) at the time of the robberies. At the close of the government's case, the defendant argued for dismissal of the charges on the ground that the evidence failed to establish that the banks were FDIC insured at the time the robberies occurred. The government on this element called one witness for each bank involved. One witness testified that his bank was federally insured and produced the bank's FDIC certificate, dated 1985; the other witness identified a letter from the FDIC, dated January 1985, certifying that his bank was federally insured and testified that "in his eighteen years of service with the bank he was not aware of any cancellation of FDIC insurance." 840 F.2d at 318. The trial judge denied the motion and later, over Mentz' objection, instructed the jury that the deposits of the banks were insured by the FDIC at the time the robberies occurred. The federal Court of Appeals reversed Mentz's convictions, concluding that his Sixth Amendment right to a jury trial had been violated. 840 F. 2d at 323.
The reasoning of the Sixth Circuit Court of Appeals is built on the established roles of judge and jury:
"In a criminal trial, the trial judge and the jury have well-defined roles, refined over many years of constitutional adjudication. The trial judge instructs the jury on the law applicable to the issues raised and, in appropriate circumstances, may comment on the evidence. United States v. White Horse, 807 F. 2d 1426, 1430 (8th Cir. 1986); United States v. Johnson, 718 F.2d 1317, 1322, 1324-25 (5th Cir. 1983) (en banc); 8A J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 30.05, at 30-40 (1987). The jury then independently determines the facts, and applies the law to those facts, in reaching its fateful decision. White Horse, 807 F.2d at 1430; Johnson, 718 F.2d at 1325. See also 2 C. Wright, Federal Practice & Procedure § 485, at 711 (1982). However, the trial judge invades the jury's province when, instead of simply instructing on the law, he applies the law to facts he has determined. See White Horse, 807 F.2d at 1430 ('when the judge is no longer deciding the law that applies to the evidence, but rather is applying the law to the factsfacts that are determined after assessing the probative value of evidence introduced at trialthe