Elston v. State

1
NOT DESIGNATED FOR PUBLICATION

No. 112,715

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RICHARD E. ELSTON, JR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; MICHAEL J. MALONE, judge. Opinion filed December 23,
2015. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Kylie R. Kuhns, legal intern, Patrick Hurley, assistant district attorney, Charles E. Branson,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., PIERRON, J., and HEBERT, S.J.

Per Curiam: Richard E. Elston, Jr., was convicted by a jury of one count of
aggravated burglary, two counts of misdemeanor theft, and one count of criminal use of a
financial card. His motion for a new trial was denied, and his convictions and
presumptive sentence were affirmed on direct appeal in State v. Elston, No. 99,341, 2009
WL 2242421 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1097 (2010).
He then filed a K.S.A. 60-1507 motion claiming that his trial counsel was ineffective in
several instances. The district court denied the motion after conducting an evidentiary
hearing.
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We affirm the judgment of the district court.

Factual and Procedural Background

On December 18, 2006, Elston was charged in Douglas County District Court with
one count of aggravated burglary, a severity level 5 person felony; two counts of theft of
property less than $1,000 in value, both class A nonperson misdemeanors; and one count
of criminal use of a financial card, a class A nonperson misdemeanor. The charges
stemmed from an incident in which a couple reported someone broke into their house at 4
a.m. and stole the woman's purse which contained her ATM cards, driver's license, and a
Palm Pilot PDA. Approximately 1 hour after the burglary, Elston was caught on a
surveillance camera withdrawing $300 from the victim's bank account. Police recovered
the victim's Palm Pilot and driver's license at Elston's home.

Elston remained in the Douglas County jail during the pendency of the action.
John C. Johnson represented him at trial. At trial, the State presented testimony from
Larry Smith, an inmate who claimed to have been in the same "pod" as Elston in the
Douglas County jail. Smith testified Elston told him that he and a man named Joey had
been driving around smoking crack on the night of the burglary. He claimed Elston told
him he kicked in the front door of a residence on Elm Street and stole a purse. Johnson
cross-examined Smith and attempted to impeach him using his criminal history score and
by establishing Smith was testifying in exchange for a favorable plea deal. In a later
hearing on a motion for new trial, the district court called Johnson's impeachment of
Smith "excellent."

Elston took the stand at trial and testified it was Joey, who was his wife's cousin,
who stole the purse. He admitted he withdrew the money from the victim's bank account
but claimed Joey gave him the ATM card and pin and told him to withdraw the money.
Joey invoked his Fifth Amendment privilege against self-incrimination and was excused
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from testifying. Elston also denied confessing to Smith in jail, claiming Smith obtained
his paperwork and had learned all of the details about the case from the police reports.

Johnson also called Jacob Waldrup to the stand. Waldrup testified he had been at
the Douglas County jail at the same time as Elston and Smith and that he had read the
discovery from Elston's case because other inmates consider him a "jailhouse lawyer."
Waldrup claimed Smith had said things to him that made him believe he was trying to
find out more information about Elston's case.

At the conclusion of the case, the jury was instructed on the law and the elements
of each charge. Pursuant to a request by defense counsel and after discussion on the
record, the district court included both PIK Crim. 3d 54.01, the general presumption of
intent, and PIK Crim. 3d 54.01-A, regarding the State's burden to prove intent and the
definition of intent. The district court also instructed the jury to consider with caution the
testimony of an informant.

The jury found Elston guilty as charged. Prior to sentencing, Johnson filed a
motion for new trial alleging there was newly discovered evidence in the case. In the
motion, Johnson claimed two witnesses from the Douglas County jail—Tony Ashcraft
and Cody Larrick—had come forward with information that would support Elston's
account that Smith had concocted the confession story using the police reports.

The district court held a hearing on the motion for new trial. Ashcraft and
Armando Jimenez testified at the hearing they had been in the Douglas County jail at the
same time as Elston and Smith and had witnessed Smith reading Elston's police reports.
Two other witnesses were unavailable to testify because they either invoked their Fifth
Amendment rights or were unable to be located. The district court denied the motion
finding the new witnesses added nothing to the evidence except for issues concerning
credibility, which usually do not warrant the need for a new trial. The court found the
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witnesses' testimony would not have changed the outcome of the trial. It noted Johnson
had impeached Smith at trial and had called a witness to corroborate Elston's story about
Smith's access to the police reports. The court also mentioned that Smith's statements
about Elston's confession had been corroborated by other evidence. The court found that
this evidence, along with the cautionary jury instruction about Smith's credibility, was
sufficient and the new witnesses would not have added anything substantial warranting a
new trial.

Elston was sentenced to 130 months' imprisonment, and he appealed his
convictions and sentencing issue. A panel of this court affirmed the district court. 2009
WL 2242421, at *3-7.

Through counsel, Elston filed a K.S.A. 60-1507 motion claiming his trial counsel
was ineffective. Elston's ineffective assistance of counsel claims were based on four
separate grounds: Counsel was ineffective for (1) failing to object to the presumption of
intent instructions; (2) failing to hold the State to its burden of a unanimous verdict; (3)
failing to request a directed verdict after the State allegedly failed to produce evidence
regarding the ownership and value of the ATM debit card; and (4) not investigating or
subpoenaing certain witnesses. The district court held an evidentiary hearing on the
motion on May 1, 2012. Elston and his trial counsel Johnson both testified at the hearing.
The district court denied the motion, and Elston timely appealed.

Elston's original 60-1507 motion also argued that his appellate counsel was also
ineffective, but that claim has not been pursued on appeal and is not addressed in this
opinion.




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The District Court Did Not Err In Denying Elston's K.S.A. 60-1507 Motion.

Elston argues that the district court erred in denying his K.S.A. 60-1507 motion
and again contends that his trial counsel was ineffective for the four reasons previously
set forth and argued before the district court.

Standards of Review

Where the district court has conducted an evidentiary hearing on a K.S.A. 60-1507
motion, we review the underlying factual findings for support by substantial competent
evidence and the legal conclusions based on those facts are reviewed de novo. See State
v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). Since Elston does not challenge the
district court's findings of fact, we review the district court's legal conclusions de novo.

The now well-established standards used to analyze claims of ineffective
assistance were set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), and adopted by the Kansas Supreme Court in Chamberlain v. State,
236 Kan. 650, 656-57, 694 P.2d 468 (1985). This test has been consistently followed and
applied. See Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014); Thompson v. State,
293 Kan. 704, 715-16, 270 P.3d 1089 (2011).

Under the Strickland test, the movant must establish (1) that counsel's performance
was constitutionally deficient, which requires a showing that counsel made errors so
serious that his or her performance was less than that guaranteed by the Sixth
Amendment to the United States Constitution, and (2) that counsel's deficient
performance prejudiced the defense, which requires a showing that counsel's errors were
so severe as to deprive the defendant a fair trial. See Miller, 298 Kan. at 929. To establish
prejudice, the movant must show a reasonable probability that, but for counsel's deficient
performance, the outcome of the proceeding would have been different, with reasonable
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probability meaning a probability sufficient to undermine confidence in the outcome. 298
Kan. at 934.

The purpose of the Sixth Amendment effective assistance guarantee is not to
"improve the quality of legal representation" but to "simply ensure that criminal
defendants receive a fair trial." Strickland, 466 U.S. at 689.

When applying the Strickland test, a reviewing court must strongly presume that
counsel's conduct fell within the broad range of reasonable professional assistance. State
v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). Judicial scrutiny of counsel's
performance must be highly deferential, and a fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at that time. Thompson, 293 Kan. at 715 (quoting
Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 [2007]).

When considering a claim of ineffective assistance of counsel, a reviewing court
must consider it is generally within the province of a lawyer to decide what witnesses to
call, whether and how to conduct cross-examination, and other strategic and tactical
decisions. Sola-Morales v. State, 300 Kan. 875, 887-88, 335 P.3d 1162 (2014). Strategic
decisions made by counsel after thorough investigation of the law and the facts are
virtually unchallengeable. Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006).

The Intent Instructions

Elston first argues that his trial counsel was ineffective for not only failing to
object to a jury instruction, but for advocating its inclusion in the instructions ultimately
given to the jury.
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After a colloquy with counsel and repeated requests from defense counsel, the
district court, with some apparent misgivings, instructed the jury in accordance with both
PIK Crim. 3d 54.01 and PIK Crim. 3d 54.01-A, both dealing with the issue of intent. PIK
Crim. 3d 54.01 states:

"Ordinarily a person intends all of the usual consequences of (his)(her) voluntary
acts. This inference may be considered by you along with all the other evidence in the
case. You may accept or reject it in determining whether the State has met its burden to
prove the required criminal intent of the defendant. This burden never shifts to the
defendant."

PIK Crim. 3d 5401-A states:

"In order for the defendant to be guilty of the crime charged, the State must prove
(his)(her) conduct was intentional. Intentional means willful and purposeful and not
accidental.
"Intent or lack of intent is to be determined or inferred from all the evidence in
the case."

Elston claims his counsel was ineffective for advocating that the court give both
intent instructions. He claims he was charged with two crimes requiring specific intent
and the inclusion of both intent instructions may have misled the jury. He contends the
two instructions conflict with one another and do not accurately instruct on the actual
specific intent required for conviction.

In its decision denying Elston's K.S.A. 60-1507 motion, the district court admitted
"Elston's counsel should not have asked for PIK Crim. 3d 54.01-A to be given since
Elston was charged with specific intent crimes, and the court should not have given the
instruction to the jury." The court, however, reviewed the instruction under a clearly
erroneous standard and examined the instructions as a whole to determine there was no
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prejudice by including PIK Crim. 3d 54.01-A. The court noted the specific intent required
for aggravated burglary and theft was not at issue at trial. The question of who committed
the crimes, not whether Elston had the intent to commit the crimes, was the primary issue
for the jury to resolve and, therefore, there was no real possibility the jury could have
rendered a different verdict had it not been given PIK Crim. 3d 54.01-A.

The question here is not whether the district court erred by acceding to counsel's
requests to instruct the jury—the district court essentially acknowledged that it should not
have given both instructions. The issues before us are whether Elston's trial counsel was
ineffective for requesting the instruction, and, if so, whether Elston was prejudiced by
such ineffective assistance. Since there was obviously no objection to the instruction, we
apply a clearly erroneous standard to determine if the instruction was prejudicial. See
K.S.A. 2014 Supp. 22-3414(3).

We apply a two-step process in determining whether the challenged instruction
was clearly erroneous. First, we must consider whether there was any error at all by
considering whether the instruction at issue was both legally and factually appropriate,
employing an unlimited review of the entire record. If we find error, we must assess
whether we are firmly convinced the jury would have reached a different verdict without
the error. See State v. Clay, 300 Kan. 401, 408, 329 P.3d 484, cert. denied 135 S. Ct. 728
(2014). "We examine 'jury instructions as a whole, without focusing on any single
instruction, in order to determine whether they properly and fairly state the applicable law
or whether it is reasonable to conclude that they could have misled the jury.' [Citation
omitted]." State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014).

As mentioned above, Elston takes issue with his trial counsel's request to include
PIK Crim. 3d 54.01-A—General Criminal Intent—along with PIK Crim. 3d 54.01—
Inference of Intent—in the jury instructions.

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The Notes on Use under PIK Crim. 3d 54.01 state, in relevant part:

"This instruction must not be confused with PIK Crim. 3d 54.01-A, General Criminal
Intent. The above instruction is a rule of evidence and does not deal with the required
element of criminal intent necessary for conviction in those cases where criminal intent is
a necessary element of the offense. [Citation omitted.]"

The Notes on Use under PIK Crim. 3d 54.01-A state, in relevant part:

"This instruction is not recommended for general use. The PIK instruction defining the
crime should cover either specific or general criminal intent as an element of the crime. This
instruction should be used only where the crime requires only a general criminal intent and the
state of mind of the defendant is a substantial issue in the case. [Citations omitted.]"

Elston was charged with one count of aggravated burglary, one count of criminal
use of a financial card of another, and two counts of theft. Each of these crimes requires a
specific intent (aggravated burglary: intent to commit a theft therein; criminal use of a
financial card of another: intent to defraud; and theft: intent to deprive). Therefore,
according to the Notes on Use under PIK Crim. 3d 54.01-A, it was inappropriate for the
district court to give the general criminal intent instruction because it is intended only to
be used when a crime requires a general criminal intent.

The Kansas Supreme Court has, however, held that it is not error for a court to
give the general intent instruction in trials for specific intent crimes. See State v. Mitchell,
262 Kan. 434, 442-44, 939 P.2d 879 (1997). In Mitchell, the defendant was on trial for
felony murder, felony auto theft, criminal deprivation of property, and various
misdemeanor traffic infractions. The jury was instructed using PIK Crim. 3d 54.01-A,
and the defendant argued the instruction was clearly erroneous because his theft charges
required a specific intent. The Kansas Supreme Court found the instruction was
appropriate given the facts of the case and was most persuaded by the fact the jury was
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instructed on the specific intent necessary for a conviction of theft. 262 Kan. at 444. The
court held, when considering the jury instructions together and read as a whole, "the
instruction's general statement of law does not conflict with the requirement of specific
intent the jury was charged it had to find to convict Mitchell of theft." 262 Kan. at 444.
The court noted that while it would have been better had the court not given the
instruction, the instruction itself did not affect the outcome of the trial. 262 Kan. at 444.

The district court here likewise instructed the jury on all the elements of the
specific intent crimes with which Elston was charged. The instructions for each of the
crimes plainly stated the jury must find Elston guilty if it finds that he committed the
crimes with the specific intent required. Although Elston would suggest that there is
irreconcilable conflict in giving both instructions, the Kansas Supreme Court has also
clarified that instructing the jury using PIK Crim. 3d 54.01 does not mislead the jury as to
what the State is required to prove when used along with other instructions that instruct
the jury as to each element of the crime. See State v. Adams, 292 Kan. 60, 80-81, 253
P.3d 5 (2011). There is likewise nothing in the language of PIK Crim. 3d 54.01-A that
would mislead or confuse the jury regarding what level of intent was required for
conviction.

Our analysis leaves us firmly convinced that in any event the jury would not have
reached a different verdict had the court not given PIK Crim. 3d 54.01-A. The
instructions did not change the requirement for the jury to find specific intent. We further
note that intent was not even the primary issue in the trial, but rather the main thrust was
the issue of identity—who committed the crime, Elston or someone else?

Because the instruction was not clearly erroneous and resulted in no prejudice to
Elston, his counsel was not ineffective for requesting and not objecting to the court's
instructions regarding intent, particularly as set forth in PIK Crim. 3d 54.01-A.

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Alternative Means/Unanimity

Elston also argues that his trial counsel was ineffective because he failed to hold
the State to its burden of a unanimous verdict. Specifically, he claims that his counsel
failed to identify and argue that the theft instructions given to the jury presented an
alternative means of committing the same crime, requiring a unanimity instruction which
was not requested or given. In an alternative means case, the jury must be unanimous as
to guilt for the single crime charged but does not have to be unanimous as to the
particular means by which the crime was committed so long as there is substantial
evidence to support each alternative means. State v. Becker, 290 Kan. 842, 854-55, 235
P.3d 424 (2010).

Elston was charged with theft under K.S.A. 2006 Supp. 21-3701(a)(1), which
stated:

"(a) Theft is any of the following acts done with intent to deprive the owner
permanently of the possession, use or benefit of the owner's property:
(1) Obtaining or exerting unauthorized control over property."

Elston claims the terms "obtaining" and "exerting" create alternative means to
committing theft and that his counsel was ineffective for failing to raise the unanimity
issue before the district court.

As noted by the district court, this court has specifically rejected this argument in
State v. Rollins, 46 Kan. App. 2d 17, 22, 257 P.3d 839 (2011), rev. denied 293 Kan. 1112
(2012). The Rollins court found that there was "no quantifiable difference" between the
actions that constituted exerting and obtaining control, noting:

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"One must necessarily obtain property one has exerted control over, and one must
necessarily exert control over property one has obtained.
"Therefore, although stated in the disjunctive in K.S.A. 21-3701(a)(1), the terms
are not different as they relate to the substantive elements of theft; they merely describe
the same conduct. Consequently, this is not an alternative means case." 46 Kan. App. 2d
at 22.

Although the Kansas Supreme Court denied review in the Rollins case, this court's
decision has been reaffirmed in multiple cases. See, e.g., State v. Snover, 48 Kan. App. 2d
298, Syl. ¶ 2, 287 P.3d 943 (2012), rev. denied 299 Kan. 1273, aff'd on other grounds by
State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014); State v. Ramsey, No. 107,742,
2013 WL 5507284 (Kan. App. 2013) (unpublished opinion), rev. denied 300 Kan. 1106
(2014); State v. Holt, No. 106,711, 2013 WL 517657 (Kan. App. 2013) (unpublished
opinion), rev. denied 297 Kan. 1251 (2013).

Elston provides no reason why this court should depart from Rollins. In the face of
settled law, counsel was not ineffective for failing to address an alternative means issue at
trial.

Motion for Directed Verdict

Elston also claims his counsel was ineffective for failing to request a directed
verdict at the conclusion of the State's evidence. Elston argues the State had not proven
an element of the crime, the value of the stolen ATM card, and the outcome of the trial
would likely have been different had his counsel moved for a directed verdict.

Elston was charged with misdemeanor theft under K.S.A. 2006 Supp. 21-
3701(a)(1) for the theft of the ATM debit card which the State valued at less than $1,000.
He claims the State presented no evidence to prove the value of the ATM debit card,
which is an essential element of the crime.
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The district court rejected this argument finding the Kansas Supreme Court's
decision in State v. Gomez, 234 Kan. 447, 450-51, 673 P.2d 1160 (1983), provides
guidance. In Gomez, the Kansas Supreme Court found all personal property has some
value, even if it is just a "small token value," and upheld a robbery conviction where the
defendant stole "funny money" from the victim, finding the district court properly took
notice of the nominal value of the stolen property. 234 Kan. at 450-52

The Kansas Supreme Court cited Gomez in its decision State v. Charles, 298 Kan.
993, 1001-02, 318 P.3d 997 (2014). In Charles, the court held the State did not have to
prove the value of property when prosecuting a misdemeanor theft case because all
property has some value:

"Because of the presumption that property has some value, when the State puts on
evidence of stolen private property in a theft case, it simultaneously puts on evidence of
value, satisfying, at a minimum, the proof requirement for the misdemeanor level of the
crime. [Citation omitted.] Only if the State seeks a guilty verdict on felony-level theft is it
compelled to put on proof of value equal to or exceeding $1,000." 298 Kan. at 1001-02.

Here, the State charged Elston with misdemeanor theft of the ATM debit card.
Based on the Kansas Supreme Court's holding in Charles, the State effectively put on
evidence of the value of the ATM debit card when it elicited testimony from the victim
that her ATM card was stolen. Elston's counsel was not ineffective for failing to move for
a directed verdict because his motion would not have been granted.

Potential Witnesses

The State called Smith to testify at trial. Smith claimed he was in jail with Elston
and Elston confessed the crime to him. Elston denied confessing to Smith and asserted
Smith got the information about the crime by looking at police reports. Elston's counsel
also called Waldrup, another inmate who was in jail at the same time as Smith and
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Elston, to impeach Smith's testimony. Elston, however, claimed he gave his trial counsel
the name of Waldrup and multiple other inmates who could corroborate his story, but his
counsel did not investigate, interview, or subpoena those witnesses to testify at trial. He
contends that his counsel was ineffective because had he called these witnesses at trial,
the outcome would have been different.

When reviewing an attorney's decisions at trial in an ineffective assistance claim, a
reviewing court must consider it is generally within the province of a lawyer to decide
what witnesses to call, whether and how to conduct cross-examination, and other
strategic and tactical decisions. Sola-Morales, 300 Kan. at 887-88. Strategic decisions
made by counsel after thorough investigation of the law and the facts are virtually
unchallengeable. Flynn, 281 Kan. at 1157.

Elston's counsel filed a motion for new trial alleging he had newly discovered
evidence in the form of testimony from Elston's fellow inmates. The district court held an
evidentiary hearing on the motion and heard testimony from Ashcraft and Jimenez who
claimed they had been in the Douglas County jail at the same time as Elston and Smith
and had witnessed Smith reading Elston's police reports. Two other witnesses were
unavailable to testify because they either invoked their Fifth Amendment rights or were
unable to be located.

The district court denied the motion for new trial finding the new witnesses added
nothing to the evidence except for issues concerning credibility, which did not necessitate
a new trial. The court noted that Johnson had done an "'excellent job'" impeaching Smith
at trial and had even called a witness to corroborate Elston's story about Smith's access to
the police reports. The trial court also mentioned that Smith's statements about Elston's
confession had been corroborated by other evidence that was not available in the police
report. The court had also instructed the jury in accordance with PIK Crim. 3d 52.18-A
that it should consider the testimony of an informant, such as Smith, with caution. Based
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on the totality of the circumstances, the court determined that the testimony of the
proposed witnesses would not have changed the outcome of the trial.

At the K.S.A. 60-1507 hearing, Johnson testified he could not specifically
remember Elston providing him names of other impeachment witnesses but would not
deny it happening. He testified he would not have done anything differently in Elston's
trial and it was likely that even if he had known about these other witnesses, he might not
have been able to find them for lack of investigative resources.

The district court found Johnson was not ineffective because the outcome of the
trial would not have been different had the additional witnesses testified on behalf of the
defense. The court again found Johnson rigorously cross-examined Smith, exposed his
extensive criminal history, and also called Waldrup as an impeachment witness. The
court also noted Smith testified to details about the crime that were not included in the
police report he allegedly read and that these details would only be known to someone
who had first-hand knowledge of the crime. This fact could not have been diminished by
additional witnesses who could testify they saw Smith reading Elston's police report.

On appeal, Elston argues that even rigorous cross-examination is not a substitute
for impeachment witness testimony. It is telling, however, that even though Elston was
able to suggest several potential such witnesses for the new trial motion hearing, some
were unavailable or unwilling to testify.

Elston has failed to make a case for how additional witness testimony would have
affected the outcome of the trial. Johnson effectively cross-examined the State's witness,
and did, in fact, call an impeachment witness at trial. The State presented other
corroborating evidence, and the jury was correctly instructed to consider the testimony of
the informant with caution. We are persuaded that the district court properly determined
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Johnson was not ineffective for not investigating or subpoenaing other impeachment
witnesses at trial.

The judgment of the district court denying Elston's K.S.A. 60-1507 motion is
affirmed.

Affirmed.