State v. Ashe

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NOT DESIGNATED FOR PUBLICATION

No. 113,414

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

CHAD ERIC ASHE,
Appellee.


MEMORANDUM OPINION

Appeal from Cherokee District Court; KURTIS I. LOY, judge. Opinion filed February 5, 2016.
Reversed and remanded with directions.

Jacob A. Conard, deputy county attorney, and Derek Schmidt, attorney general, for appellant.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.

Before BRUNS, P.J., MCANANY, J., and JOHNSON, S.J.

Per Curiam: The State appeals the district court's decision dismissing a charge of
aggravated battery against Chad Eric Ashe. The district court determined that there was
insufficient evidence presented at the preliminary hearing to bind Ashe over for trial on
this charge. Based on our review of the record, however, we conclude that the State
presented sufficient circumstantial evidence to cause a person of ordinary prudence and
caution to entertain a reasonable belief that Ashe committed aggravated battery on Paul
Nixon by striking him on the head and causing him to suffer significant injuries. Thus,
we reverse the order dismissing the charge of aggravated battery and remand this case to
the district court with instructions to bind Ashe over for trial on this charge.
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FACTS

On the evening of April 8, 2013, Nixon was drinking beer at the Hideaway
Shack—a tavern in Baxter Springs. After a couple of hours, Ashe and his father—who
Nixon knew—also arrived at the bar. Because Nixon knew that Ashe had recently broken
up with his girlfriend, he told Ashe that "it would be all right and . . . not to worry about
it." Evidently, Ashe was offended and upset about Nixon's comment.

At some point later in the evening, Nixon was talking to Ashe's father. During the
conversation, Nixon referred to Ashe's grandfather—who had recently passed away—as
Don. Ashe, who was sitting about 20 feet away, overheard this and told Nixon, "'Asshole,
I told you his name was Jerry.'" Subsequently, Nixon saw that Ashe still seemed to be
upset. According to Nixon, he patted Ashe on the shoulder and said, "'Just calm down,
everything will be okay.'" Ashe, however, claimed that Nixon was hitting him in the ribs.

Thereafter, Ashe—who had also been drinking beer—took off his shirt, went
outside the bar, and started yelling. Ashe walked down the highway near the bar and then
returned about 5 to 10 minutes later. After he returned, Ashe and Nixon yelled at each
other through the tavern's door. At the time, Nixon was still in the bar sitting with Ashe's
father.

Subsequently, Nixon went outside and Ashe took a swing at Nixon and missed.
Ashe and Nixon then started wrestling with one another, and Nixon was able to pin Ashe
to the ground on his stomach. At that point, a man Nixon did not know—but who he
believed to be with Ashe that night—began choking Nixon from behind. In response, one
of Nixon's friends pulled the man off of Nixon.

Eventually, Nixon told Ashe that he would let him get up off the ground if he
promised not to hit him. After Nixon let Ashe stand up, the two men shook hands and
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leaned forward to butt heads in a nonaggressive manner. Nixon then looked over his right
shoulder and saw his friend wrestling on the ground by at the edge of the parking lot with
the man who had choked him. Just as he turned away from Ashe, Nixon was punched in
the face. At that time, there were several people outside but only four had been involved
in the conflict—Nixon, Ashe, and the two men who were wrestling on the ground at the
time Nixon was punched.

The punch knocked Nixon to the ground, and he had to be helped back inside the
bar. Nixon's eye immediately swelled, and he could not close his mouth. Nixon's father
drove him to a hospital in Joplin, Missouri, and because his swelling was so bad, he was
immediately transferred to a hospital in Springfield. At the hospital, it was determined
that Nixon's orbital socket was broken, but he was too swollen for surgery at that time.

A few days later, Nixon returned to Springfield for surgery. As Nixon was
travelling back to the hospital for surgery, he received a telephone call from Ashe.
According to Nixon, Ashe "apologized and told [him] he was going to try and get his
medicine lined out." However, Ashe did not specifically admit that he was the person that
had punched Nixon. After receiving the telephone call, Nixon did not hear from Ashe
again.

In Springfield, Nixon had surgery on his eye and cheek bone. During the surgery,
he developed a blood clot, which required doctors to insert a tube behind his eye. Nixon
also suffered permanent nerve damage that causes part of his face to be numb. He did not
lose his vision, but his eyesight is not as good as it was before. It is anticipated that Nixon
will eventually have to have more surgery to tighten the muscles that hold his eye into the
socket, which had to be stretched during surgery.

Several months after the incident, the State charged Ashe with one count of
aggravated battery, and the district court conducted a preliminary hearing on February 2,
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2015. At the preliminary hearing, Nixon testified about the events on the night he was
injured. In doing so, he candidly admitted that he never actually saw who punched him in
the face. Although he testified that there were other people standing outside the bar at the
time he was struck, Nixon stated that he knew nearly everyone who was there other than
the man that had choked him and was wrestling on the ground with his friend at the time.
He also testified about the telephone call that Ashe made to him a few days later.

After Nixon testified, the State asked for leave to amend the complaint to add a
count of criminal threat. The State also argued that Nixon's testimony was sufficient to
establish probable cause that it was Ashe who struck him in the face. In response, defense
counsel argued that Nixon's testimony was not sufficient to support either a charge of
criminal threat or a charge of aggravated battery.

At the conclusion of the preliminary hearing, the district court stated: "From what
I heard that [Nixon's injuries] happened when he was cheap shotted by somebody he has
no idea that did it." The district court then found that there was insufficient evidence that
it was Ashe who punched Nixon. The district court, however, determined that there was
sufficient evidence that Ashe committed battery against Nixon prior to the time he was
hit in the face.

According to the district court, it could not "speculate to the point of saying that it
was probably Mr. Ashe" who punched Nixon notwithstanding the fact that he had called
Nixon to apologize several days after the incident. The district court also denied the
State's request to amend the complaint to add a charge of criminal threat. Thereafter, the
district court arraigned Ashe on the charge of battery, accepted his plea of not guilty, and
scheduled the case for trial.

On February 13, 2015, the State filed a notice of appeal only pertaining to the
district court's dismissal of the aggravated battery charge. The notice of appeal became
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effective on March 11, 2015, when the district court entered its journal entry setting forth
its findings and conclusions from the preliminary hearing. See Supreme Court Rule
2.03(a) (2015 Kan. Ct. R. Annot. 13). After the State docketed its appeal, this court
issued a show cause order in which it asked the parties to address the finality of the case
in light of the battery charge that remained pending against Ashe. Although the State
responded to the order to show cause, Ashe did not do so. After reviewing the State's
response, the appeal was retained.

ANALYSIS

Our review of a district court's probable cause determination at a preliminary
hearing is unlimited. See State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48 (2011). When
the State appeals from the dismissal of a charge or charges, we must determine whether
the evidence presented at the preliminary hearing was sufficient to cause a person of
ordinary prudence and caution to entertain a reasonable belief that the defendant
committed the crime charged. In making this determination, we must draw reasonable
inferences from the evidence presented in a light most favorable to the State. "Moreover,
the evidence needs only to establish probable cause, not guilt beyond a reasonable doubt.
The court's role is not to determine the wisdom of the decision to file charges or to
determine whether the possibility of a conviction is likely or remote.' [Citation omitted.]"
292 Kan. at 171-72.

Accordingly, to bind over a defendant for trial on aggravated battery, the evidence
presented—viewed in the light most favorable to the State—must establish probable
cause to believe that the defendant knowingly caused great bodily harm to or
disfigurement of another person. See K.S.A. 2015 Supp. 21-5413(b)(1)(A) (definition of
aggravated battery); K.S.A. 2015 Supp. 22-2902(3) (preliminary hearing standard).
Moreover, the Kansas Supreme Court has held that "[e]ven if the evidence is weak, if
some evidence tends to disclose the charged offense was committed by the defendant, the
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case should go to a jury. [Citation omitted.]" State v. Brown, 299 Kan. 1021, 1030-31,
327 P.3d 1002 (2014); see also State v. Washington, 293 Kan. 732, 733-34, 268 P.3d 475
(2012).

On appeal, the State contends that it presented sufficient circumstantial evidence
to establish probable cause of the alleged offense. The Kansas Supreme Court has
recognized that

"there is no distinction between direct and circumstantial evidence in terms of probative
value. [Citation omitted.] 'A conviction of even the gravest offense can be based entirely
on circumstantial evidence and the inferences fairly deducible therefrom. If an inference
is a reasonable one, the jury has the right to make the inference.' [Citation omitted.]"
State v. McClelland, 301 Kan. 815, 820, 347 P.3d 211 (2015).

In response, Ashe contends that there was not sufficient evidence presented at the
preliminary hearing to establish probable cause that he committed aggravated battery on
Nixon. Specifically, Ashe argues that the only circumstantial evidence offered by the
State in his case was that he had initially been the aggressor in a fight with Nixon.
Further, Ashe maintains that his call to apologize to Nixon was not circumstantial
evidence that he had landed the blow that caused Nixon's serious injuries but was merely
a general apology.

Ashe disregards the evidence presented at the preliminary hearing that Ashe had
shown aggressive behavior throughout the evening against Nixon; that Ashe had swung
at Nixon when he came out of the bar; that Nixon had him pinned on the ground only
moments before he was blindsided by a punch to the face; and that Nixon had just turned
his back on Ashe before being stuck. Ashe also disregards the fact that the evidence
presented at the preliminary hearing identified only four people who were involved in the
fight outside the bar and that the other two men were wrestling on the ground by the edge
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of the parking lot at the time Nixon was punched. As such, all of the known participants
in the fight were accounted for when Nixon was struck in the face.

It was understandable that Nixon could not identify who had actually struck him
due to the nature and viciousness of the attack. But direct evidence is simply not required
to bind someone over for trial. Rather, we conclude that the circumstantial evidence
presented at the preliminary hearing—when viewed in the light most favorable to the
State—was sufficient to cause a person of ordinary prudence and caution to reasonably
believe that it was Ashe who violently punched Nixon in the face and that this act
constituted aggravated battery.

We, therefore, conclude that the district court's order dismissing the charge of
aggravated battery should be reversed and that this case should be remanded for Ashe's
arraignment on the charge of aggravated battery.

Reversed and remanded with directions.