State v. Alvis

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NOT DESIGNATED FOR PUBLICATION

No. 116,575

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK ALVIS,
Appellant.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed December
22, 2017. Affirmed.

James Crux, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender Office, for
appellant.

Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: Mark Alvis appeals his jury trial conviction for aggravated assault,
criminal possession of a firearm by a convicted felon, and battery. He claims the district
court erred in admitting evidence—pursuant to K.S.A. 2016 Supp. 60-455(b)—of prior
acts involving beatings of N.J., his girlfriend. He also claims the district court gave an
incomplete limiting instruction for the K.S.A. 2016 Supp. 60-455(b) evidence and the
district court erred by not instructing the jury of a lesser included charge of simple
assault.

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The record reflects the district court failed to do a complete analysis on the record
of the K.S.A. 2016 Supp. 60-455(b) evidence to determine its probative value versus the
prejudicial effect. Based on our review of the record, this error was harmless given the
overwhelming nature of the evidence against Alvis. The second issue involves the district
court's failure to properly limit how the K.S.A. 2016 Supp. 60-455(b) evidence could be
used through an instruction. However, Alvis agreed to the instruction, and if error, it was
invited error. The final issue involves the failure to give the lesser included charge of
assault, which Alvis did not request. Therefore, we look for clear error on this point and
we find none. We are convinced the lesser included instruction would not have made a
difference in the outcome of the jury verdict. We affirm.

FACTS

Alvis and N.J. were in an on-again, off-again dating relationship. The relationship
terminated in May 2015. A few days prior to March 26, 2016, Alvis began texting N.J.,
threatening to break her things and injure her. At approximately 3 a.m. on March 26,
2016, N.J. awoke to loud knocking at the door. When she answered the door, Alvis
pushed his way into N.J.'s apartment while in possession of a gun, began beating her, and
threatening to kill her. Eventually, N.J. calmed Alvis down and he allowed her to use the
bathroom. While in the bathroom, N.J. contacted police who arrived shortly thereafter
and arrested Alvis.

The State charged Alvis with aggravated assault, criminal possession of a firearm
by a convicted felon, and battery. The State moved for admission of prior crimes or bad
acts. At the pretrial motion hearing, the district court ruled:

"[I]f [N.J.] takes the stand and begins to minimize and recant or discredit her prior earlier
statements about what happened, which would be inconsistent with the earlier reporting
and the injuries noted, then I think it triggers then the ability of the State to offer prior
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instances of his bad acts that have been reported . . . to law enforcement . . . to show that
there has been a history of this, to explain the witness's testimony."

At trial, N.J. testified she dated Alvis on and off for approximately three and one-
half years. The prosecutor asked N.J. to describe the relationship and she indicated, "after
a while, it was just bad." Then the following exchange occurred:

"Q. Okay. It was bad? How did it get bad?
"A. Well, he just—he just doesn't really have very good anger management
control, and he would get mad over nothing at all and . . .
"Q. Okay. Did—was your relationship ever violent?
"A. Yes.
"Q. Can you describe that violence?
"A. Like in full detail?
"Q. Yes. Please.
"A. Well, I didn't—well, there wasn't too many days I went without a black eye
or he ended up stabbing me and (indicating)—
"Q. So you said there wasn't too many days you went without a black eye?"

Alvis objected based on the district court's prior ruling and renewed his objection
to the admission of K.S.A. 2016 Supp. 60-455(b) evidence. The district court overruled
the objections and allowed the answers to stand. The line of questioning continued with
N.J. explaining Alvis usually hit her with his fists, but once used a bat, and previously
used a knife to stab her.

N.J. then testified to the events of March 26, 2016. She told the jury she had taken
a Xanax and awoke about 3 a.m. to a loud banging on her front door. She answered the
door and Alvis hit her in the face with a pistol and began beating her. She indicated Alvis
lost the gun, began strangling her, and said he was going to kill her. Eventually, Alvis
retrieved the gun. He calmed down; N.J. went to the bathroom and texted police her
address for help.
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After N.J. notified police, she asked Alvis to leave the apartment. He pushed her
into the kitchen and put the gun to her head. Police eventually arrived, and N.J. let them
in. She told them Alvis hid a gun in the kitchen cabinet and he was upstairs. N.J. testified
she was scared of him that night. Then the following exchange occurred:

"Q. So you were scared of him that night. Are you scared of him today?
"A. If I was to see him, me and him alone in a room, yeah.
"Q. So if you were alone in a room with him, you'd be scared of him? Is that —
"A. (Nods.) Ever since the day he stabbed me, yeah.
. . . .
"Q. Okay. So the main reason that you broke up with him is because he stabbed
you?
"A. Well, that and a lot of other things at the time. But I told him when I went to
visit—he went to jail after he stabbed me on an unrelated thing, and—but when I went to
visit him, I just cried and told him I couldn't be around him again, I was scared.
"Q. Okay. What did he stab you with?
"A. A knife.
"Q. Okay. And do you have any scars from that?
"A. Yeah. When he tried to stab me in my head, I was I was down on the ground,
and he tried to stab me in my head, and I put my arm up (indicating) and . . .
"Q. Did you have to get stitches from that?
"A. Yeah. But I waited three days because I didn't know what to tell them."

N.J. testified at the trial that her testimony was different during the preliminary
hearing because she was scared of Alvis and the look in his eyes.

After N.J. finished testifying, the district court excused the jury for lunch and
briefly discussed the K.S.A. 2016 Supp. 60-455(b) issue with the parties. The court
indicated, based on State v. Humphrey, 258 Kan. 351, 362-63, 905 P.2d 664 (1996),
evidence that the victim of an aggravated assault and the defendant frequently argued and
the defendant abused her was admissible to establish a relationship and continuing course
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of conduct. The district court stated it was admitting the evidence under that theory as
well as for motive. It continued:

"Also, some of the prior instances of things that happened to her and then she not
reporting becomes part of motive or plan, being able to come and be involved in some
threatening behavior and not concerned that it's going to be reported. So I think that
comes into—under 60-455 under a little different theory that was presented, I think, last
week."

Officer Ward Richards and Officer Ted Glass testified they were dispatched to
N.J.'s house. Upon arrival, they heard yelling through the door. N.J. answered the door
and whispered Alvis was upstairs. She also told them there was a gun in the kitchen
cabinet. The State introduced the gun as evidence. However, Officer Richards
acknowledged no one sent the gun to the KBI for testing or fingerprint analysis.

The State rested and Alvis opted to rest without presenting any evidence. During
the final jury instruction conference, the district court asked if Alvis would like a limiting
instruction on the K.S.A. 2016 Supp. 60-455(b) evidence, and Alvis answered
affirmatively. The State suggested language for an instruction, and Alvis' counsel
indicated he was "fine with" the proposed limiting instruction.

The jury convicted Alvis of all three charges: aggravated assault, criminal
possession of a firearm by a convicted felon, and battery. Alvis was sentenced to 31
months' imprisonment for aggravated assault and 9 months' imprisonment for criminal
possession of a firearm. Those two sentences ran consecutively. On the misdemeanor
battery charge, Alvis was sentenced to 6 months in jail concurrent to his sentences for
aggravated assault and criminal possession of a firearm.



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ANALYSIS

Probative Value of Evidence Versus the Prejudicial Effect

Alvis argues the district court erred when it admitted evidence of his prior bad
acts. He contends the evidence was not material because Alvis and N.J.'s prior
relationship had no bearing on this case and the prejudicial effect outweighed any
probative value. Alvis also notes the district court failed to weigh the probative value
against the prejudicial effect on the record. Further, he argues the erroneous admission of
prior bad-act evidence required reversal because it was not harmless.

Under K.S.A. 2016 Supp. 60-455(b), evidence a person committed a prior crime
or civil wrong is admissible "when relevant to prove some other material fact, including
motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake
or accident." K.S.A. 60-401(b) defines relevant evidence as evidence having "'any
tendency in reason to prove any material fact.' [Citation omitted.]" State v. Page, 303
Kan. 548, 550, 363 P.3d 391 (2015). This definition encompasses two elements: a
materiality element and a probative element. Standards of review for each element vary.
The appellate standard of review for materiality is de novo. Page, 303 Kan. at 550. An
appellate court reviews probativity for an abuse of discretion. State v. McCormick, 305
Kan. 43, 47, 378 P.3d 543 (2016).

"We hereby state unequivocally that the list of material facts in K.S.A. 60-455 is
exemplary rather than exclusive. It may be that other crimes and civil wrongs evidence is
relevant and admissible to prove a material fact other than the eight listed. Should this be
a district judge's determination; however, the evidence must be subjected to the same sort
of explicit relevance inquiries, particularized weighing of probative value and prejudicial
effect, and prophylactic limiting instruction we have required when any other K.S.A. 60-
455 evidence is admitted.
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"This enables our return to sensible application of K.S.A. 60-455 and puts an end
to the practice of admission of other crimes and civil wrongs evidence independent of it.
. . . Other crimes and civil wrongs evidence that passes the relevance and prejudice tests
we have set up and is accompanied by an appropriate limiting instruction should always
have been admissible, even if the particular material fact on which it was probative was
not explicitly set forth in the statute. . . . Henceforth, admissibility of any and all other
crimes and civil wrongs evidence will be governed by K.S.A. 60-455.
"Under this reinvigorated reading to K.S.A. 60-455, should a district judge
neglect to apply the safeguards we have outlined to any other crimes or civil wrongs
evidence, we will find error. But we also hereby unequivocally resolve the second
problem that has plagued our cases in this area: We explicitly recognize that the
admission of K.S.A. 60-455 evidence without the explicit relevance inquiries,
particularized weighing of probative value and prejudicial effect, or prophylactic limiting
instruction is not inevitably so prejudicial as to require automatic reversal. On the
contrary it may be harmless." (Emphasis added.) State v. Gunby, 282 Kan. 39, 56-57, 144
P.3d 647 (2006).

Here, the district court did not explicitly conduct a relevance inquiry or discuss the
prejudicial effect of the evidence when it initially admitted the evidence of Alvis' prior
bad acts. After N.J.'s testimony, the district court discussed its ruling and found the
evidence admissible to show motive, plan, or intent. The State suggested it was also
relevant to show the nature of the relationship and marital discord.

However, the district court failed to particularize its weighing of the probative
value and the prejudicial effect of the evidence. The State argues the district court need
only determine the probative value outweighed the prejudicial effect. It contends an
explicit, on the record, determination is unnecessary. This argument ignores the language
in Gunby—which we are duty bound to follow—requiring a particularized weighing of
probative value and prejudicial effect. Since the district court did not particularize its
weighing of the probative value against the prejudicial effect, the district court erred in
admitting evidence of Alvis' prior bad acts. However, this does not end the analysis.
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Gunby instructs the erroneous admission of prior bad acts evidence is subject to a
harmless error analysis pursuant to K.S.A. 2016 Supp. 60-261. 282 Kan. at 57. In State v.
Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), the Kansas Supreme Court held that to
find an error harmless under K.S.A. 2016 Supp. 60-261, a Kansas court must be able to
declare the error "did not affect a party's substantial rights, meaning it will not or did not
affect the trial's outcome." The party benefiting from the error always bears the burden of
proving it harmless under this standard. See State v. Logsdon, 304 Kan. 3, 39, 371 P.3d
836 (2016). Where, as here, an error implicates a statutory but not a federal constitutional
right, the party benefiting from the error must persuade this court there is no reasonable
probability the error affected the trial's outcome in light of the entire record for it to be
deemed harmless. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012).

In Gunby, the Kansas Supreme Court recognized at least three types of prejudice
resulting from the admission of prior bad acts evidence:

"'First a jury might well exaggerate the value of other crimes as evidence proving that,
because the defendant has committed a similar crime before, it might properly be inferred
that he committed this one. Secondly, the jury might conclude that the defendant deserves
punishment because he is a general wrongdoer even if the prosecution has not established
guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might
conclude that because the defendant is a criminal, the evidence put in on his behalf
should not be believed.' [Citation omitted.]" Gunby, 282 Kan. at 48-49.

The State argues reversal is unnecessary because any error was harmless. Its
argument is persuasive. While N.J.'s preliminary hearing testimony differed dramatically
from her trial testimony, she also explained why. She told the jury the preliminary
hearing was the first time she had seen Alvis since March 26, 2016, and she was afraid of
him. She told the jury her trial testimony was truthful. In addition, N.J.'s trial testimony
was consistent with the version of events she described to police officers on March 26,
2016. Furthermore, though N.J. admitted she suffered from mental health issues
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including hallucinations, she told the jury she was not hallucinating on March 26th. The
record also reflects two photographs were admitted into evidence of N.J.'s injuries and
the gun. We find there is no reasonable probability the district court's failure to
particularize its weighing of the probative value of the evidence versus the prejudicial
effect of Alvis' prior bad acts affected the trial's outcome in light of the entire record. The
error was harmless.

No Objection to the Limiting Instruction

Alvis contends the district court clearly erred because its limiting instruction did
not inform the jury it could only consider evidence of Alvis' prior bad acts in relation to
the aggravated assault charge. To establish clear error, "'the defendant must firmly
convince the appellate court that the giving of the instruction would have made a
difference in the verdict.' [Citation omitted.]" State v. Cooper, 303 Kan. 764, 771, 366
P.3d 232 (2016). In evaluating whether an instruction rises to the level of clear error, the
issue of "[r]eversibility is subject to unlimited review and is based on the entire record. It
is the defendant's burden to establish clear error under K.S.A. 22-3414(3)." State v.
Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). The clear error determination must
review the impact of the erroneous instruction in light of the entire record including the
other instructions, counsel's arguments, and whether the evidence is overwhelming. In re
Care & Treatment of Thomas, 301 Kan. 841, 849, 348 P.3d 576 (2015).

However, a litigant may not invite error and then complain of the error on appeal.
State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Under the invited error
doctrine, a defendant cannot challenge an instruction on appeal, even as clearly erroneous
under K.S.A. 2016 Supp. 22-3414(3), when there has been an on-the-record agreement to
the wording of the instruction at trial. State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148
(2012).
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Here, Alvis' counsel agreed to the wording of the instruction on the record. At the
instruction conference, the district court presented four options. The State suggested the
first of those options, which stated: "Evidence has been admitted tending to prove that
the defendant committed crimes other than the present crime charged. This evidence may
be considered solely for the purpose of proving the defendant's motive and continuing
course of conduct." Then the district court asked Alvis' counsel what he would suggest
with regard to the 60-455 instruction. Alvis' counsel replied: "Well, I would just suggest
that we stick to the pattern instructions as close as possible, and I'm—I'm fine with the—
the first proposed instruction on this list." Clearly, his counsel agreed on the record to the
wording of the jury instruction. Given the totality of the evience, we are not convinced
this instruction was given in error, but if it was, Alvis invited the error and cannot
challenge the instruction on appeal. The error was not clearly erroneous as we are not
convinced the giving of a different, more restrictive instruction would have made a
difference in the verdict.

Assault is a Lesser Included Offense of Aggravated Assault

Alvis' final contention is the district court should have given a jury instruction on
simple assault as a lesser included instruction of aggravated assault. He contends there
was a real possibility the jury would have convicted him of simple assault instead of
aggravated assault if the district court had properly instructed the jury.

The State asserts the district court did not err because a simple assault instruction
was not factually appropriate. It also argues that, even if the instruction was factually
appropriate, Alvis has not established clear error.

When a party challenges the failure to give a lesser included offense instruction,
appellate courts apply the analytical framework for jury instruction issues. The steps in
this framework are: (1) determining whether the appellate court lacks jurisdiction to
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consider the issue or the party failed to preserve the issue; (2) determining the merits of
the claim as to whether an error occurred during the trial; and (3) determining whether
the error was harmless or requires reversal. State v. Dupree, 304 Kan. 377, 391-92, 373
P.3d 811 (2016).

The trial court shall instruct the jury on lesser included offenses where there is
some evidence to reasonably justify a conviction of the lesser included offense. K.S.A.
2016 Supp. 22-3414(3). This duty to instruct applies even if the evidence is weak,
inconclusive, and consists solely of the defendant's testimony. State v. Maestas, 298 Kan.
765, Syl. ¶ 6, 316 P.3d 724 (2014).

Factually appropriate?


Failure to instruct on the lesser included crime is erroneous only if the instruction
would have been factually appropriate under K.S.A. 2016 Supp. 22-3414(3). See State v.
Molina, 299 Kan. 651, 661, 325 P.3d 1142 (2014). When evaluating whether a lesser
included instruction is factually appropriate in the individual case, the standard of review
is: "If, after a review of all the evidence viewed in the light most favorable to the
prosecution, we are convinced that a rational factfinder could have found the defendant
guilty of the lesser crime, failure to give the instruction is error." State v. Fisher, 304
Kan. 242, 258, 373 P.3d 781 (2016). But see State v. Charles, 304 Kan. 158, 165, 372
P.3d 1109 (2016) (considering State's request, after close of evidence, for an expansive
lesser included offense instruction).

The State argues the assault lesser included instruction was not factually
appropriate. For support, it cites State v. Sutherland, 248 Kan. 96, 102, 804 P.2d 970
(1991). However, Sutherland is distinguishable. In Sutherland, the defendant was
convicted of aggravated robbery with a deadly weapon. On appeal, he contended the
district court should have given a jury instruction on robbery as a lesser included offense.
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The Kansas Supreme Court held the failure to give an instruction on robbery was not
error because it was undisputed Sutherland's accomplice had displayed a knife during the
robbery. 248 Kan. at 103. Here, Alvis' use of a gun was disputed. N.J. testified Alvis had
a gun. However, N.J. also acknowledged that, while testifying at the preliminary hearing,
she denied ever seeing Alvis with a gun. Unlike in Sutherland, whether Alvis had a gun
when he assaulted N.J. was disputed by her conflicting testimony. The State's reliance on
Sutherland is misplaced.

A simple assault instruction was factually appropriate. Assault is "knowingly
placing another person in reasonable apprehension of immediate bodily harm." K.S.A.
2016 Supp. 21-5412(a). Here, N.J. testified Alvis began strangling her and told her he
was going to kill her. N.J. testified Alvis did not have a gun at this time since it had
landed behind N.J.'s couch and Alvis stopped strangling her when he realized he lost the
gun. This evidence would reasonably support a conviction for assault. An instruction on
assault as a lesser included offense of aggravated assault was factually appropriate.

Legally appropriate?

Since all of the elements of simple assault are included in the elements of
aggravated assault with a deadly weapon, simple assault is a lesser included offense of
aggravated assault with a deadly weapon. State v. Nelson, 224 Kan. 95, 97, 577 P.2d
1178 (1978). As such, an instruction on simple assault was legally appropriate.

Clearly erroneous?

Since we found the instruction was both legally and factually appropriate, failing
to give the instruction was error. As a result, we must now determine whether it was
clearly erroneous to not give the lesser included offense instruction. Alvis has the burden
to show "'the failure was clearly erroneous, i.e., the defendant must firmly convince the
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appellate court that the giving of the instruction would have made a difference in the
verdict.' [Citation omitted.]" State v. Cooper, 303 Kan. 764, 770, 366 P.3d 232 (2016).

Alvis argues "there is a real possibility" the jury would have convicted him of
assault instead of aggravated assault had it been instructed on assault. He contends N.J.
suffered from paranoia, delusions, hallucinations, and had previously testified Alvis did
not have a gun when he entered the home. He also asserts there was no physical evidence
he ever touched the gun. However, his arguments are not persuasive.

While N.J. admitted she suffered from paranoia, delusions, and hallucinations, she
also testified she was not hallucinating when Alvis put the gun to her head. Further, N.J.
explained she was afraid of Alvis, which was why she previously testified he did not have
a gun. She told the jury her statements to the police and her testimony at trial were
accurate. Finally, the jury convicted Alvis of criminal possession of a firearm by a
convicted felon. It clearly believed N.J. when she testified Alvis had a gun. He has not
provided any evidence to suggest the jury believed her testimony that he had a gun, but
not her testimony he put the gun to her head and threatened her with it. Alvis has not met
his burden to show the lesser included instruction of simple assault would have made a
difference in the verdict. It was not clearly erroneous for the district court to not give the
lesser included instruction of simple assault under the facts of this case.

Affirmed.