State v. Dake

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NOT DESIGNATED FOR PUBLICATION

No. 116,029

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ASHLEY JEANETTE DAKE,
Appellant.

MEMORANDUM OPINION

Appeal from Harvey District Court; WILLIAM F. LYLE JR., judge. Opinion filed October 13, 2017.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.

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

PER CURIAM: Ashley Dake appeals her convictions of criminal threat, interference
with law enforcement by obstructing official duty, and two counts of aggravated assault
on a law enforcement officer. She claims the evidence at trial was insufficient to support
her convictions and that the court improperly instructed the jury on the applicable law.

Dake's convictions arose out of an incident in May 2014, which began when she
called 911 and threatened to kill someone. The 911 operator dispatched sheriff deputies
to Dake's home and informed them that there was an armed female who was threatening
to kill someone. Dake then called back and reported that while she was armed with a
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pistol, it was in a holster and she did not intend to shoot anyone. But this apparently was
after Sheriff Deputies Tim Boese and Carmen Clark were on their way.

Boese arrived first at Dake's home. Clark arrived shortly thereafter as backup.
They parked on the road quite some distance from the home, where they observed Dake
pacing around on the front porch with a gun in her hand.

Boese yelled at Dake to come to them unarmed, but she came off the porch and
began approaching with the gun still in hand. Boese told Dake to stop and put down the
gun. Dake refused to drop the gun. She began cursing at the deputies. Dake had her finger
on the holster of the gun in the same position where the trigger was located, but she did
not point the gun directly at the deputies. Clark could see that the gun was in its holster
and that the holster strap was undone. Boese could not see the holster and believed that
Dake had her finger near the trigger. Boese was worried that he would have to use his
weapon if Dake did not stop. Clark believed that he and Boese could be struck if Dake
began firing.

Boese finally coaxed Dake to stop, but she did not drop the gun. She squatted
down and held the gun between her knees and began concentrating on the ground in front
of her. Boese believed Dake was stressed to the point that she was going to have to
choose whether to surrender or fight. He was worried that he was either going to have to
shoot Dake or that she was going to start shooting at them. Boese ordered Dake to drop
the gun and step away from it, which she finally did. Boese and Clark then took Dake
into custody.

When Clark secured the gun, Boese saw that the gun was in a holster and the strap
for the holster was unhooked. Dake told Clark that she wanted to kill Judge Joe
Dickinson and Gloria Arellano of the police department regarding a child custody
dispute.
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The following day Officer Shawn Chapman interviewed Dake, and she told
Chapman that she had told Clark that she wanted to kill Judge Dickinson and Arellano.
She further explained why she was mad at each person.

At trial, the district court instructed the jury that aggravated assault on a law
enforcement officer required proof that Dake used a deadly weapon to knowingly place
uniformed or properly identified deputies in reasonable apprehension of immediate
bodily harm while they were engaged in the performance of their official duties on the
date in question in Harvey County, Kansas. (Separate but otherwise identical instructions
were given for the charge related to Clark and the charge related to Boese.)

The jury found Dake guilty as noted earlier, and Dake was granted probation for
24 months with an underlying 38-month prison sentence. Dake's appeal brings the matter
to us.

Sufficiency of the Evidence of Aggravated Assault

Dake argues the evidence at trial was insufficient to find her guilty of aggravated
assault on a law enforcement officer because the State failed to prove the officers had a
reasonable apprehension of immediate bodily harm. Because of the steps she would have
had to take to discharge her weapon, she argues that the threat to the deputies may have
met the more generous standard of being "imminent" but not the more restrictive standard
of being "immediate." She relies on our Supreme Court's opinion in State v. Hundley, 236
Kan. 461, 693 P.2d 475 (1985), for support.

In considering this claim, we examine the evidence in the light favoring the State
to determine whether a rational fact-finder could have found Dake guilty beyond a
reasonable doubt based on the evidence at trial. See State v Laborde, 303 Kan. 1, 6, 360
P.3d 1080 (2015). In doing so, we do not reweigh the evidence or the credibility of
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witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074 (2016). But we are permitted
to consider reasonable inferences arising from the facts. State v. Herndon, 52 Kan. App.
2d 857, 862, 379 P.3d 403 (2016), petition for rev. filed August 15, 2016. Even verdicts
based wholly on circumstantial evidence will not be overturned so long as the evidence
provides a reasonable basis for a fact-finder to find guilt beyond a reasonable doubt. See
State v. Logsdon, 304 Kan. 3, 25-26, 371 P.3d 836 (2016).

The immediacy of anticipated harm was found in State v. Brown, No. 114,808,
2016 WL 7429424, at *4 (Kan. App. 2016) (unpublished opinion), petition for rev. filed
January 18, 2017, when the knife-wielding defendant was advancing and less than 5 feet
from the victim because "an armed aggressor advancing with a weapon . . . does in fact
present an immediate threat."

In State v. Eichman, 26 Kan. App. 2d 527, 531-32, 989 P.2d 795 (1999), the
immediacy requirement was satisfied when the defendant raised his hand from the center
console of his truck holding a pistol, though he did not point it at the officers. The jury
could infer from this conduct that the defendant exhibited the gun in order to make the
officers fear immediate bodily harm.

With respect to Deputy Boese, he arrived at the scene knowing that Dake was
armed, angry, upset, and harbored the intent to kill someone. Boese confirmed that Dake
was angry and upset from the manner in which she paced around her front porch. He
could see she was armed, though he did not immediately see the holster. Her index finger
appeared to be on the trigger. He ordered her to stop and drop the weapon, to which she
did not immediately respond. Her anger was addressed to the deputies at the time, as she
cursed them while she waived the gun around. When she squatted down with the gun
between her knees, Boese thought she might charge at him and shoot him.

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Viewing this testimony and the reasonable inferences arising from this testimony
in the light favoring the State, a reasonable juror would conclude that an angry and upset
Dake, advancing with her index finger on the trigger of a handgun, placed Boese in
reasonable apprehension of immediate bodily harm.

With respect to Deputy Clark, the only difference was that Clark could see that
Dake's handgun was in a holster with the strap unbuttoned. But he could see Dake's
trigger finger poised over the trigger guard, and he feared that Dake could draw the gun
from its holster and fire at them quite rapidly. Further, he could see that Dake was close
enough that if she fired she could have hit him. Like Boese, Clark knew Dake was angry
and upset and had threatened to kill someone. Under these circumstances, viewing the
evidence in the light favoring the State, the evidence was sufficient to support a finding
that Dake presented an immediate threat of bodily harm to Clark.

As noted earlier, in Hundley, 236 Kan. at 469-70 (McFarland, J., dissenting), our
Supreme Court recognized a substantive distinction between the adjectives "immediate"
and "imminent." Dake asserts the State and its witnesses used the word "imminent"
throughout the trial and, therefore, the State has failed to prove the "immediate" element
of an assault.

It is interesting to note that Dake's counsel used the word imminent throughout
trial to describe the immediacy of the threatened harm, thereby inviting the use of this
adjective. A party may not invite error and then complain of it on appeal. State v. Verser,
299 Kan. 776, 784, 326 P.3d 1046 (2014). Besides, Hundley does not control here.
Immediate is the proper adjective that applies to the deputies' apprehension of bodily
harm. The court instructed the jury that the State had to prove the threatened harm was
immediate, not imminent. The jury applied the instructions' requirement of immediacy
rather than imminence to the testimony of Boese and Clark and found that the
apprehension they experienced was of immediate bodily harm. There was substantial
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competent evidence to support this finding of immediacy and to support Dake's
convictions for aggravated assault on a law enforcement officer.

Sufficiency of the Evidence of Obstruction

Next, Dake argues that the evidence at trial was insufficient to find her guilty of
interference with law enforcement officers by obstructing them in doing their official
duty because (1) the officers were not substantially hindered in completing their duty and
(2) her actions did not increase the burden on the officers.

When the sufficiency of the evidence is challenged in a criminal case, we apply
the same test discussed earlier in this opinion.

Even verdicts based wholly on circumstantial evidence will not be overturned so
long as the evidence provides a reasonable basis for a fact-finder to find guilt beyond a
reasonable doubt. Logsdon, 304 Kan. at 25.

Under K.S.A. 2016 Supp. 21-5904(a)(3), a finding of guilt on this charge requires
the State to prove beyond a reasonable doubt that the defendant knowingly obstructed,
resisted, or opposed any person authorized by law in the discharge of any official duty. In
addition to these statutory elements of the crime, our caselaw requires the State to prove
that the defendant "'substantially hindered or increased the burden of the officer in
carrying out his official duty.'" State v. Brown, 305 Kan. 674, 690, 387 P.3d 835 (2017)
(quoting State v. Parker, 236 Kan. 353, 364, 690 P.2d 1353 [1984]).

Whether the defendant has obstructed an officer's exercise of an official duty
depends on the facts of each case. Parker, 236 Kan. at 364-65. The courts have
interpreted the obstruction element, and thus the substantial hindrance or increasing the
burden on the officer element, quite broadly. State v. Lee, 242 Kan. 38, 40-41, 744 P.2d
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845 (1987) (recognizing that "[a]t common law, obstruction included any act which
impeded justice"); Parker, 236 Kan. at 364-65 (recognizing that words alone could
constitute obstruction); State v. Latimer, 9 Kan. App. 2d 728, 733, 687 P.2d 648 (1984)
(recognizing that providing false information in course of a criminal investigation can
constitute obstruction). In Brown, 305 Kan. at 690, the court recognized that

"'[t]he principal purpose of criminalizing conduct that resists and obstructs officers in the
performance of their duty is to protect officers from physical harm . . . . The statutes de-
escalate the potential for violence which exists whenever a police officer encounters an
individual in the line of duty, and the concern is not limited to the officer's safety but
extends to all parties involved, including the prospective arrestee.' [Citation omitted.]"

In Brown, 305 Kan. at 691, the court held that the defendant substantially
increased the burden on the officers when he failed to comply with an officer's request to
come out of the home, thereby increasing the safety issue for the officers and delaying the
officers in making the arrest by 5 or 10 minutes. The court noted that "the officers had to
engage in additional actions to address the heightened safety concerns." 305 Kan. at 691.

In State v. Everest, 45 Kan. App. 2d 923, 929-30, 256 P.3d 923 (2011), a three-
minute delay caused by the defendant giving a false name was insufficient to support a
conviction for interference with a law enforcement officer by obstruction of official duty.
Under Everest, a short temporal delay is not enough. There must be an actual increase in
the threat or additional actions that the officer must take as a result of the defendant's
conduct.

Here, viewing the facts in the light favoring the State, Dake failed to comply with
Boese's order to stop and put down the gun. Dake's failure to comply with this order
required Boese to engage in additional action to address the heightened safety concerns
caused by the armed and upset Dake approaching the deputies. Boese had to tell Dake
again and again to stop and put down the gun and to make plans for what was going to
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happen if she did not put down the gun and continued to approach the officers. As found
in Brown, increasing the safety concern for the officer and making him plan for the
additional safety concern can be enough to find obstruction of official duty. Further, the
duration of the delay was consistent with that found to be sufficient in Brown.

There was sufficient evidence to support Dake's conviction for interference with
law enforcement officers by obstructing them in doing their official duty.

Multiplicity

Dake argues that the prosecution presented evidence of multiple acts, any one of
which individual jurors could have relied upon in finding her guilty of criminal threat.
She further argues the district court could have protected against this by giving the jury a
unanimity instruction, but it failed to do so.

Convicting Dake for making a criminal threat required proof that she made a
threat to commit violence and communicated it with the intent to place another person in
fear or with a reckless disregard of the risk of causing fear. See K.S.A. 2016 Supp. 21-
5415(a)(1).

Dake contends that the district court should have given a unanimity instruction to
avoid jury confusion because the State produced evidence at trial of multiple acts that
could have constituted criminal threat. Dake contends that the jury could have found
criminal threat for her conversation with the 911 dispatcher that occurred over the phone,
for her conversation with Clark and Boese that occurred in the field, or for her
conversation with Shawn Chapman that occurred at the police station the following day.
Dake also argues that the State never clearly elected which act it was charging for the
crime, and the State discussed all of the different acts during its closing arguments.

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"When a case involved multiple acts, the jury must be unanimous in finding which
specific act constitutes the crime." State v. King, 297 Kan. 955, 977, 305 P.3d 641 (2013).
When the party does not request a unanimity instruction at trial but raises the issue for the
first time on appeal, as is the case here, we use the clear error standard of review. See
K.S.A. 2016 Supp. 22-3414(3). King provides the detailed steps we must take in
reviewing the trial court's failure to give a unanimity instruction.

Whether there were multiple acts is a question of law over which we have
unlimited review. 297 Kan. at 981. Multiple acts are found when several acts are alleged
and any one of them could constitute the crime charged. Multiple acts are found when the
incidents in question are separate and distinct from one another and not part of a single
continuous course of conduct. When determining whether defendant's acts are a single
course of conduct the court generally considers the following factors: (1) the temporal
proximity of the acts, (2) the location where the acts occurred, (3) the causal relationship
between the acts and if there were any intervening circumstances, and (4) whether there
was a fresh impulse that motivated the additional acts. 297 Kan. at 981.

The fact that there were multiple potential victims does not make this a multiple
acts case. Here, Dake's threat was directed at the same victims in each instance, namely
Judge Dickinson and Arellano. Dake originally threatened that she was going to kill
someone and later identified that someone as Judge Dickinson and Arellano. The mere
fact that there were multiple victims of the same threat does not mean that the threat was
more than one act for which a unanimity instruction should have been given. State v.
Williams, 303 Kan. 750, 755-56, 368 P.3d 1065 (2016).

Dake thought Judge Dickinson and Arellano had wronged her by taking away her
children and by failing to give her the information she requested, so she threated to kill
them. The stimuli for the threats against Judge Dickinson and Arellano did not change.
Her later explanation of the individuals against whom her threat was directed did not
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constitute a separate instance upon which a conviction could be based. The court did not
need to give a unanimity instruction if the jury could not have found Dake guilty of the
crime for each individual act. See State v. Bourbon, No. 103,910, 2011 WL 2135157, at
*3-4 (Kan. App. 2011) (unpublished opinion).

The expression of Dake's threat to kill Judge Dickinson and Arellano was a single
continuous act with no intervening circumstance or fresh impulse that prompted a new
threat. There was no need for the district court to issue a unanimity instruction.

Lack of an Instruction Defining "Immediate"

Dake argues that the jury should have been instructed on the definition of the word
"immediate" as used in setting forth the elements of the crime of aggravated assault on a
law enforcement officer and that the trial court's failure to give the instruction was clear
error.

When a party fails to object to the jury instructions or fails to request the jury
instruction, as is the case here, we may reverse only upon a showing of clear error.
K.S.A. 2016 Supp. 22-3414(3). Our review of this issue is unlimited. State v. Betancourt,
299 Kan. 131, 135, 322 P.3d 353 (2014). 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).

Dake argues that under Hundley there is a distinction between a consequence
being immediate and a consequence being imminent. She argues that the time period for
an immediate consequence is much shorter than the more relaxed time period for an
imminent consequence, thus requiring a definition for the jury of "immediate," the term
used in the aggravated assault on a law enforcement officer statute. Dake contends that
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the definition of immediate must include the phrase "without any considerable loss of
time."

Defining the word "immediate" for the jury would not have changed the outcome
of this case. Dake was close enough to Clark and Boese that she could have shot them
without any considerable loss of time. Dake held the gun in her hand. The gun was in an
unfastened holster. Dake could have easily taken the gun out of the holster and
discharged it at Clark and Boese without any considerable loss of time. Failing to instruct
the jury on the definition of "immediate" was not clear error.

Affirmed.