State v. Arten

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NOT DESIGNATED FOR PUBLICATION

No. 114,975

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KAMAL OMAR ARTEN,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed August 18, 2017.
Affirmed in part and dismissed in part.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Kendall Kaut, temporary assistant district attorney, Chadwick J. Taylor, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN and HILL, JJ.

Per Curiam: A jury convicted Kamal Omar Arten of aggravated burglary,
attempted aggravated robbery, and criminal threat. Arten appeals his attempted
aggravated robbery conviction, arguing that the trial court committed reversible error
when it failed to instruct the jury on attempted robbery as a lesser included offense of
attempted aggravated robbery. Arten also argues that the trial court abused its discretion
when it denied his departure motion. We disagree. The attempted robbery instruction was
not factually appropriate, and this court lacks jurisdiction to consider Arten's argument
concerning the denial of his departure motion. As a result, we dismiss Arten's appeal to
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the extent it concerns his departure motion challenge and we affirm Arten's attempted
aggravated robbery conviction.

The State charged Arten with the following: (1) one count of aggravated burglary,
a severity level 5 person felony in violation of K.S.A. 2016 Supp. 21-5807(b); (2) one
count of attempted aggravated robbery, a severity level 5 person felony in violation of
K.S.A. 2016 Supp. 21-5420(b)(2); and (3) one count of criminal threat, a severity level 9
person felony in violation of K.S.A. 2016 Supp. 21-5415(a). All of these charges
stemmed from events that allegedly transpired between Arten and Lena Rivera at a Kwik
Shop gas station in Topeka, Kansas, on April 14, 2014.

At Arten's jury trial, testimony indicated that Arten had been living at the Topeka
Rescue Mission until April 14, 2014, when he was expelled at 7:19 p.m. for alcohol
consumption. Following his expulsion, Arten called a friend, Marvin Hall, to ask if he
could spend the night at his place. Hall told Arten that he would have "Craig" or one of
Craig's friends give him a ride to his place at some point that evening. Arten left the
Rescue Mission and went to the Kwik Shop gas station where he continued to drink.
Sometime around 7:45 p.m., Arten traded his coat with a man named Augustine Salters,
who was walking home from work. Arten and Salters talked and drank "a beer or two"
before Salters continued to walk home. Arten remained at the gas station. Shortly before
10:15 p.m., Rivera parked her car next to a pump at the gas station.

According to Rivera, as she went inside to pay for gas, she passed by a man who
she later learned to be Arten. Rivera testified that Arten was standing at a pump close to
the pump where she had parked her car. She testified that she could tell that Arten did not
have a car because there was no car next to the pump he was standing by. She testified
that she told Arten "hello" because she had seen him about a week earlier at the bar she
owned. She explained, however, that she and Arten were not friends or even
acquaintances; Arten had simply been to her bar before.
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Rivera testified that once she paid for gas, she went back to the pump and put gas
in her car. She testified that when she had completed pumping gas, she got into the
driver's seat of her car. Arten immediately "jumped in" her car. Arten had opened her
front passenger side door and attempted to sit down in her front passenger side seat.
Rivera testified that as soon as Arten was in her car, Arten grabbed her purse. She
explained that she reacted by grabbing her purse, and a struggle for her purse ensued. She
asserted that during the struggle, Arten yelled, "I'll shoot you," which scared her, so she
started screaming and honking her car horn. She testified that when she started screaming
and honking her car horn, Arten punched her face and then fled.

Rivera asserted that Arten never asked her if she was his ride, never asked her if
he could have a ride, and never asked her for money. She explained that one moment he
was by a different pump and the next moment he was in her car grabbing her purse. She
further explained that Arten's punch to her face cut the inside of her lip, scarring the
inside of her mouth. She testified that because of the struggle to keep her purse, her wrists
were also cut.

Arten's testimony conflicted with Rivera's testimony. According to Arten, when
the woman, who he later learned to be Rivera, went into the gas station, she told him
"hello" and "[w]ait a minute." Arten testified that based on those statements, he believed
that Rivera had been sent by Hall to give him a ride to Hall's place. He testified that after
she finished pumping gas into her car, he tried to sit down in the front passenger seat. He
explained that as soon as he tried to sit down, however, Rivera started screaming and
hitting him in the face with her purse. He asserted that because Rivera was hitting him
with her purse, he grabbed the purse and "pushed back." He asserted this was when he
realized that Rivera was "not [his] ride," so he "g[o]t out of there." Arten denied
threatening to shoot Rivera, and he denied punching Rivera in her face.

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Arten further testified that the afternoon and evening of April 14, 2014, he took his
prescription medication and drank a pint of vodka and 22 beers. Arten testified that when
he mixes his prescription medication with alcohol, he sometimes has difficulty
remembering what he did while he was under the influence of the prescription medication
and alcohol. He testified that this was why he could not recall anything about getting into
Rivera's car during his April 15, 2014, interview with the police. He testified that he
remembered the incident with Rivera about 2 to 4 weeks after his police interview.

In addition to Rivera's and Arten's testimony, Jeremy Hawkins and Doris Carlson,
who were both at the gas station when the alleged crimes occurred, testified about what
they saw. Hawkins testified that he saw a man sprint to Rivera's car and enter into
Rivera's car through the front passenger door, with his legs hanging outside the passenger
door. Hawkins testified that he knew a struggle was occurring inside the car because the
man was kicking his legs. Carlson testified that as she walked towards the gas station, she
saw a man near Rivera's car. When she turned to look in a different direction, she
immediately heard Rivera scream and honk the horn of her car. Evidently, Carlson
looked back at Rivera's car, at which point she realized that the man and Rivera were
struggling inside Rivera's car. Both Hawkins and Carlson testified that after the man fled
from Rivera's car, Rivera exited her car with blood on her face.

During the jury instruction conference, Arten did not request any lesser included
offense instructions. Instead, Arten's trial attorney told the court that he was specifically
not requesting "any lesser-included offenses" because Arten's defense was voluntary
intoxication and mistake. Arten's attorney's closing argument focused on Arten's
voluntary intoxication and mistake defense. Also, the jury was instructed on the voluntary
intoxication and mistake as defenses.

The jury found Arten guilty on all counts. Before sentencing, Arten moved for a
dispositional departure, or alternatively, a durational departure. The trial court denied the
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departure motion and sentenced Arten to a controlling sentence of 126 months'
imprisonment followed by 24 months' postrelease supervision. For each of his
convictions, Arten received a presumptive Kansas Sentencing Guidelines Act (KSGA)
grid sentence.

Arten timely appealed.

Did the Trial Court Err in Instructing the Jury?

Arten's primary argument on appeal is that the trial court erred by not giving an
instruction on attempted robbery as a lesser included offense of attempted aggravated
robbery. Arten recognizes that he did not request this instruction below. Nevertheless,
Arten argues that the trial court's failure to give the instruction resulted in clear error,
requiring reversal of his attempted aggravated robbery conviction. On the other hand, the
State contends that although an instruction on attempted robbery as a lesser included
offense of attempted aggravated robbery would have been legally appropriate, it was not
factually appropriate. The State's argument hinges on (1) the fact Arten has not disputed
the existence of Rivera's injuries and (2) the fact that Arten presented a voluntary
intoxication defense.

When reviewing jury instruction challenges, appellate courts engage in a four-part
analysis:

'""(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
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degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" [Citation omitted.]" State v. Fisher, 304 Kan. 242, 256-
57, 373 P.3d 781 (2016).

Yet, when a defendant has failed to raise the jury instruction challenge below, like
Arten has done in this case, the fourth part of the analysis changes. In such instances, the
defendant must establish that the failure to give the complained-about instruction was
clearly erroneous. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014). The
defendant will not be entitled to reversal based upon clear error unless he or she "'firmly
convince[s] 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).

Here, because there is no dispute about whether Arten's argument is properly
before this court under the clearly erroneous test or whether the attempted robbery
instruction was legally appropriate, we skip to the third part of the jury instruction
challenge analysis concerning factual appropriateness. To engage in this analysis,
however, it is first important to review the statutes at issue in Arten's challenge.

Once again, Arten was charged and convicted of attempted aggravated robbery
under K.S.A. 2016 Supp. 21-5420(b)(2). "An attempt is any overt act toward the
perpetration of a crime done by a person who intends to commit such crime but fails in
the perpetration thereof or is prevented or intercepted in executing such crime." K.S.A.
2016 Supp. 21-5301(a). As it applies in this case, an aggravated robbery involves
defendants "knowingly" taking property from a person or a person's presence while also
"inflict[ing] bodily harm upon any person in the course of such robbery." K.S.A. 2016
Supp. 21-5420(a), (b)(2). The only difference between an aggravated robbery and a
robbery is that an aggravated robbery requires the infliction of bodily harm. See K.S.A.
2016 Supp. 21-5420(a), (b)(2). Thus, as it concerns Arten's attempted robbery as a lesser
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included offense jury instruction challenge, Arten has the burden of establishing that the
facts of his case supported an instruction for a simple attempted robbery as opposed to an
instruction for attempted aggravated robbery alone.

Next, Arten's entire defense during his trial was that what happened between him
and Rivera was a misunderstanding caused by his extreme level of intoxication. K.S.A.
2016 Supp. 21-5205(b)—the voluntary intoxication defense provision—states:

"An act committed while in a state of voluntary intoxication is not less criminal
by reason thereof, but when a particular intent or other state of mind is a necessary
element to constitute a particular crime, the fact of intoxication may be taken into
consideration in determining such intent or state of mind."

Hence, when defendants use voluntary intoxication to defend against any crime, their
defense speaks to whether they had the "state of mind" required to commit the underlying
crime. For an attempted crime, like Arten's attempted aggravated robbery crime,
defendants' voluntary intoxication defense speaks to whether they "intended to" commit
the underlying crime at issue.

Turning our attention back to the parties' arguments, we note that Arten's only
argument regarding the factual appropriateness of the attempted robbery instruction as a
lesser included offense is that his testimony supported that Rivera hurt herself while he
"attempted to defend himself by pushing the purse back towards her." What Arten
neglects to consider in making this argument, however, is his voluntary intoxication
defense as well as his concession that Rivera suffered injuries.

Through his voluntary intoxication defense, Arten asserted that he could not have
"intended to" commit any crimes because the entire incident between him and Rivera was
a misunderstanding created by his extreme level of intoxication. Moreover, as part of his
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defense, Arten conceded that he had grabbed Rivera's purse. His concession came
through his testimony that he pushed Rivera's purse towards her in an effort to prevent
her from hitting him in the face with the purse. The effect of this testimony was that
Arten gave the jury an explanation why Rivera had injuries and an explanation why he
was not guilty of attempted aggravated robbery. In fact, Arten's trial attorney even told
the jury during closing arguments that under the circumstances of Arten's drunken
misunderstanding, it was "reasonable" to conclude that Rivera could have been "hit in the
mouth with either her own hand or [Arten's]."

Thus, there are two key takeaways from Arten's defense below. First, his entire
defense was whether he had the requisite state of mind to commit any crime against
Rivera. Second, the existence of Rivera's injuries was not in dispute. In turn, the only
issue for the jury to decide was whether Rivera was hurt during a misunderstanding
between her and Arten resulting from his drunken stupor or whether Rivera was hurt
during an attempt by Arten to take Rivera's purse from her person. The manner in which
Arten presented his defense did not give the jury the option of finding that Rivera had not
been injured during whatever transpired between her and Arten. Thus, as the State argues
in its brief, Arten was either "guilty of [attempted] aggravated robbery or nothing."
Consequently, an attempted robbery instruction was not factually appropriate.

Yet, even if we assume that the attempted robbery instruction was factually
appropriate, Arten has failed to establish that the failure to give this instruction was clear
error. Arten's argument is that if the jury had been given the attempted robbery
instruction, there would have been "a real possibility that the jury may have found that
the cause of Rivera's injury was the result of her own actions in striking [him] with her
purse and that [he] lacked the intent to take her purse by striking her." Arten asserts that
the instruction would have allowed the jury to "accept [his] credibility with respect to
certain components of his defense, but perhaps not his entire recollection of the
situation."
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Nevertheless, as emphasized by the State in its brief, the phrasing of Arten's
arguments plainly shows that he has failed to meet the clearly erroneous test. For
instance, Arten asserts that if the jury had been given the attempted robbery instruction
there would have been "a real possibility" of a different jury verdict. Nonetheless, to
establish clear error, Arten must "'firmly convince [this] court that the giving of the
instruction would have made a difference in the verdict.' [Citation omitted.]" Cooper, 303
Kan. at 771. Arten's argument that there would have been "a real possibility" of a
different verdict but for the failure to give the instruction falls far short of "firmly
convincing" this court that the jury's verdict would have been different as required under
the clearly erroneous test.

Furthermore, the only evidence supporting Arten's voluntary intoxication defense
was his own testimony that what transpired was a misunderstanding caused by his
extreme intoxication. As indicated by the jury's guilty verdicts, however, it is readily
apparent that the jury rejected Arten's voluntary intoxication defense. In consequence,
this court can safely conclude that the jury found Arten's version of events, including any
testimony indicating that Rivera's injuries were somehow the result of her own actions,
unbelievable. Because the jury found Arten's version of events not credible, there is no
reason to believe that the jury would have reached a different verdict had it been given an
attempted robbery instruction. As a result, Arten's argument fails.

Did the Trial Court Err in Sentencing?

Arten's next argument is that the trial court erred when it denied his departure
motion at sentencing. Arten alleges that he provided the trial court with substantial and
compelling reasons to depart his sentence either dispositionally or durationally. Based
upon this belief, Arten argues that the trial court abused its discretion by denying his
motion. The State responds that this court lacks jurisdiction to consider Arten's argument
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because he received presumptive KSGA grid sentences for each of his convictions.
When a party challenges the existence of jurisdiction, this court has unlimited review.
State v. Rizo, 304 Kan. 974, 984, 377 P.3d 419 (2016).

The State is correct in that Arten received presumptive KSGA grid sentences for
each of his convictions. The trial court sentenced Arten to standard-box KSGA grid
sentences for both his aggravated burglary and criminal threat sentences. Additionally,
the trial court sentenced Arten to the low-box KSGA grid sentence for his attempted
aggravated robbery conviction.

The State is also correct in that in almost all circumstances, appellate courts lack
jurisdiction to review presumptive KSGA grid sentences. This court has previously held
that appellate courts are "without jurisdiction to consider any sentence within the
presumptive sentencing range for the crime." State v. Grebe, 46 Kan. App. 2d 741, Syl.
¶ 5, 264 P.3d 511 (2011); see Rizo, 304 Kan. at 984. For example, in the Grebe case, this
court explained that it was without jurisdiction to consider Grebe's arguments why the
trial court should have granted his motion for dispositional or durational departure
because Grebe had been sentenced to the presumptive KSGA sentence for his crime.
Grebe, 46 Kan. App. 2d at 745. A very limited exception to this rule exists, but only
when a defendant argues that the trial court failed to understand its sentencing authority.
See State v. Warren, 297 Kan. 881, 885, 304 P.3d 1288 (2013).

Here, however, Arten has in no way argued that the trial court failed to understand
its sentencing authority. As a result, any argument he may have had about the trial court
failing to understand its sentencing authority has been abandoned. See State v. Williams,
303 Kan. 750, 758, 368 P.3d 1065 (2016) (holding that issues not briefed are deemed
waived and abandoned.) In turn, Arten's case and argument is no different than Grebe's
case and argument. Arten asserts that the trial court should have departed his sentence
either dispositionally or durationally because he believes he provided substantial and
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compelling reasons to do so. Yet, because the trial court sentenced him to presumptive
grid sentences under the KSGA, this court lacks jurisdiction to consider his departure
sentencing challenge. Consequently, Arten's argument fails.

Affirmed in part and dismissed in part.