State v. Filbert

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NOT DESIGNATED FOR PUBLICATION

No. 117,326

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEREMY A. FILBERT,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed May 25, 2018.
Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Daniel G. Obermeier, assistant district attorney, Jennifer S. Tatum, assistant district attorney,
Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., LEBEN and SCHROEDER, JJ.

PER CURIAM: Jeremy A. Filbert raises two issues on appeal. First, Filbert claims
the district court erred by not giving a sympathy instruction as he requested. Second, he
complains there was insufficient evidence to support his convictions for aggravated
criminal sodomy based on instruction Nos. 7, 9, and 12. Our review of the record reflects
the district court acted properly in denying Filbert's requested sympathy instruction, and
there was sufficient evidence to support Filbert's convictions for aggravated criminal
sodomy as the jury was instructed. We affirm.

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FACTS

On October 23, 2015, the State charged Filbert with two counts of rape and two
counts of aggravated criminal sodomy. In all four counts, the victim was Filbert's half-
sister, J.F., a child less than 14 years old. The State subsequently amended its information
to include a count of aggravated indecent liberties with a child and three more counts of
aggravated criminal sodomy. Again, J.F. was the victim in each count.

At trial, J.F., then 13 years old, testified she and Filbert engaged in vaginal, oral,
and anal sex. J.F. had trouble remembering the dates or the number of sexual encounters.
During cross-examination, J.F. began to cry. The district court paused for a moment to let
her regain her composure, but J.F. did not want to take a break.

Filbert testified in his own defense. At the end of his direct examination, he broke
down crying. As with J.F., the district court paused the proceedings so Filbert could
regain his composure. Again, from the record, it appears the incident was brief and the
district court did not take a recess.

During the instruction conference after the close of evidence, the State dismissed
two of the aggravated criminal sodomy charges. Filbert specifically requested a sympathy
instruction to instruct the jury to decide the case without favoritism or sympathy for or
against either party. The district court noted there had been "crying situations with both
the victim and the defendant" but, based on State v. Williams, 299 Kan. 1039, 1044, 329
P.3d 420 (2014), declined to give the instruction.

The district court instructed the jury on each count of aggravated criminal sodomy:

"The defendant is charged . . . with Aggravated Criminal Sodomy. The defendant
pleads not guilty.
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"To establish this charge, each of the following claims must be proved:
"1. The defendant caused J.F. to engage in sodomy with a person.
"2. At the time of the act, J.F. was less than 14 years old. The State need not
prove the defendant knew the child's age.
"3. The defendant acted intentionally.
"4. The defendant was 18 or more years old at the time the sodomy occurred.
"5. The act occurred between May 1, 2015 and September 14, 2015, in
Wyandotte County, Kansas."

Instruction Nos. 7 and 12, defined sodomy as "anal penetration, however slight, of
a female by any body part or object." Instruction No. 9 defined sodomy as "oral contact
of the male genitalia."

The jury convicted Filbert on all six counts. The district court sentenced Filbert to
life imprisonment without the possibility of parole for 25 years on each count but ran all
counts concurrently.

ANALYSIS

No Error to Decline Filbert's Requested No-Sympathy Instruction

Filbert requested the district court give PIK Crim. 3d 51.07 (1995 Supp.), which
states: "You must consider this case without favoritism or sympathy for or against either
party. Neither sympathy nor prejudice should influence you." The district court declined
to give the instruction based on its reading of Williams.

"When analyzing jury instruction issues, [an appellate court] follows a three-step
process: '(1) Determining whether the appellate court can or should review the issue, i.e.,
whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) considering the merits to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
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harmless.' [Citation omitted.]" State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877
(2015).

"At the second step, we consider whether the instruction was legally and
factually appropriate, employing an unlimited review of the entire record. If the district
court erred, and the error did not violate a constitutional right, 'the error is reversible only
if [the court] determine[s] that there is a "reasonable probability that the error will or did
affect the outcome of the trial in light of the entire record."' [Citations omitted.]" State v.
Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016).

When, as here, the defendant requests an instruction at trial, appellate courts
review the evidence in the light most favorable to the defendant. Williams, 299 Kan. at
1046 (citing State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 [2104]). In Williams, the
Kansas Supreme Court reiterated "'[t]he sympathy instruction should only be used under
very unusual circumstances.' [Citations omitted.]" 299 Kan. at 1044. However, as the
State concedes, a no-sympathy instruction is not prohibited and is therefore legally
appropriate. As the Williams court noted, the "tougher question is whether the instruction
was factually appropriate, i.e., whether the facts of this case present[] very unusual
circumstances." 299 Kan. at 1044. The facts of this case do not create unusual
circumstances.

In only one case, the Kansas Supreme Court has found circumstances to be
sufficiently unusual to support a sympathy instruction. See State v. Baker, 281 Kan. 997,
1004-05, 135 P.3d 1098 (2006) (citing State v. Rhone, 219 Kan. 542, 548 P.2d 752
[1976]). Rhone was charged with aggravated burglary, felony theft, and rape. Because the
aggravated burglary victim suffered from advanced lung cancer which had spread to most
of her body, it was better for her health if her testimony occurred at her home. As a result,
the judge, jury, attorneys, and the defendant went to the victim's residence to hear her
testimony. The defendant requested the district court instruct the jury not to give the
victim's testimony any additional credibility because of the circumstances of her
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testimony but the trial court refused. The Rhone court held this was not error because the
district court gave a sympathy instruction and an instruction on witness credibility. 219
Kan. at 545.

Filbert argues the Williams court impliedly held a sympathy instruction was
appropriate. In Williams, the State requested a sympathy instruction and Williams
objected. The district court acknowledged the instruction was disapproved for general use
but agreed to give the instruction, explaining:

'"I rarely give this instruction but I think this is one that is appropriate. Just because a
witness may cry on the witness stand, I don't think it's sufficient in and of itself. But . . .
in addition to [the defendant] crying a number of times on the witness stand, she has
frequently been very emotional in front of the jury throughout the trial. It's all—it's on a
daily basis and it's a number of times each day that I see her breaking down in the
courtroom.'" 299 Kan. at 1042.

Williams appealed, arguing the no-sympathy instruction denied her a fair trial. The
Williams court noted a no-sympathy instruction was only appropriate in unusual
situations. It continued:

"Certainly, a defendant's display of emotion is not as unusual as conducting court
in an ailing victim's home. Nevertheless, we should view the cold record through a
deferential lens, recognizing that the veteran trial judge was in a better position to assess
whether the defendant's courtroom demeanor was an unusual circumstance that needed to
be addressed for the jury." 299 Kan. at 1044.

The Williams court found it was inclined to side with the trial court's discretion
and determined the district court's inclusion of a no-sympathy instruction was not
reversible error. 299 Kan. at 1045.

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Filbert correctly suggests the district court did not make factual findings regarding
the appropriateness of the instruction. The district court considered Williams and then
ruled the instruction was inappropriate as a matter of law. Despite this, Filbert argues the
district court committed error and argues, "[g]iven the extreme emotions on both sides
. . . the circumstances were more unusual than those in Williams," and "the instruction
was factually appropriate." This argument is unpersuasive, even viewing the facts in the
light most favorable to Filbert. In Williams, the defendant cried multiple times while on
the witness stand and was "emotional in front of the jury" daily. Here, J.F's cross-
examination was briefly disrupted due to her crying. However, J.F. quickly regained her
composure and did not want a break. Similarly, Filbert began crying at the close of his
testimony, and the district court gave Filbert time to regain his composure. Both instances
were brief and in neither instance did the district court feel it was necessary to take a
recess. As such, Williams is distinguishable. We also note from experience some crying
on the witness stand is not an unusual experience during trial.

Instead, this case is more closely analogous to State v. Holmes, 278 Kan. 603, 102
P.3d 406 (2004). During Holmes' murder trial, one or two of the victim's family members
began crying and were escorted from the courtroom. He requested a sympathy instruction
which the district court denied. The Kansas Supreme Court found, even in the light most
favorable to Holmes, the instruction was not warranted because the incidents were brief
and the family members were escorted from the courtroom after they began crying. 278
Kan. at 635-36.

The district court's denial of Filbert's requested sympathy instruction was not
error. Furthermore, even if the failure to give the instruction was error, the error was
harmless. The prosecutor began her closing argument by addressing Instruction No. 4,
which informed the jury they had the right to use their common knowledge and
experiences when discussing witness testimony. She continued: "We're not to use
emotion or sympathy in our deliberations, but you can use your common knowledge and
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experience when you're thinking about the facts of this case." By doing so, she reminded
the jury not to let sympathy or prejudice influence them in their deliberations. Filbert is
not entitled to relief even when the instruction is considered in a light most favorable to
him. The district court did not err when it denied Filbert's requested sympathy instruction.

There was sufficient evidence to convict Filbert of aggravated criminal sodomy.

Filbert argues there was insufficient evidence supporting each of the three counts
of aggravated criminal sodomy based on the language of the jury instructions. Filbert
contends K.S.A. 2017 Supp. 21-5504(b), sets forth alternative means of committing
aggravated criminal sodomy. He contends the district court instructed the jury based on
the wrong means of committing aggravated criminal sodomy, and there was no evidence
supporting the means it instructed.

The State contends the invited error rule applies, citing State v. Schreiner, 46 Kan.
App. 2d 778, 791-92, 264 P.3d 1033 (2011). It argues Filbert is precluded from raising
this claim because he did not object to the aggravated criminal sodomy instruction as
written. This argument is unpersuasive because Schreiner is distinguishable. In
Schreiner, the defendant proposed a sodomy jury instruction that matched the instruction
the district court gave. Schreiner's instruction expanded the scope of the charged offense
in a way that provided alternative means. The Schreiner panel found this was invited
error not because Schreiner failed to object, but because Schreiner got what he asked for.
Here, Filbert did not propose the aggravated criminal sodomy instructions' language, the
State proposed the language. While Filbert did not object to the aggravated criminal
sodomy instructions, for invited error to apply, the party must do more than simply fail to
object to a proposed instruction. State v. Sasser, 305 Kan. 1231, 1235, 391 P.3d 698
(2017). Further, he was not required to object to the aggravated criminal sodomy
instructions in order to preserve a claim for the sufficiency of the evidence supporting
them.
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Although he frames the issue as an alternative means issue, Filbert really
challenges the sufficiency of the evidence supporting his conviction. Indeed, there is no
basis for an alternative means challenge in this case. The district court instructed the jury:

"The defendant is charged . . . with Aggravated Criminal Sodomy. The defendant
pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant caused J.F. to engage in sodomy with a person.
"2. At the time of the act, J.F. was less than 14 years old. The State need not
prove the defendant knew the child's age.
"3. The defendant acted intentionally.
"4. The defendant was 18 or more years old at the time the sodomy occurred.
"5. The act occurred between May 1, 2015 and September 14, 2015, in
Wyandotte County, Kansas."

Instruction Nos. 7 and 12, defined sodomy as "anal penetration, however slight, of
a female by any body part or object." Instruction No. 9 defined sodomy as "oral contact
of the male genitalia." The instructions for each count of aggravated criminal sodomy
only listed one means of committing aggravated criminal sodomy, and sodomy is defined
in only one way in each instruction. Since the instructions only listed one means of
committing aggravated criminal sodomy, alternative means are not at issue.

The crux of Filbert's argument, however, is that the district court instructed the
jury under the wrong subsection of K.S.A. 2017 Supp. 21-5504(b). Filbert contends
K.S.A. 2017 Supp. 21-5504(b)(1) prohibits engaging in sodomy with a person under the
age of 14 while K.S.A. 2017 Supp. 21-5504(b)(2) prohibits causing a person under the
age of 14 to engage in sodomy with a third person. He argues there was no evidence he
caused J.F. to engage in sodomy with a third person and, therefore, his convictions must
be reversed. The State concedes the instruction should have been better drafted to reflect:
"The Defendant engaged in sodomy with J.F." We agree. However, the State contends
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Filbert is a person, and the evidence supported the fact he caused J.F. to engage in
sodomy with him. Therefore, it argues reversal is unnecessary.

"'When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt.' [Citation
omitted.]" State v. Rosa, 304 Kan. 429, 432-33, 371 P.3d 915 (2016).

The State's argument that we must read each instruction in its entirety is more
persuasive. Here, the instruction at issue clearly defined sodomy. Instruction Nos. 7 and
12 defined sodomy as: "[A]nal penetration, however slight, of a female by any body part
or object." Instruction No. 9 defined sodomy as: "[O]ral contact of the male genitalia."

In support of each of these charges, J.F. testified about the many times Filbert
touched her to have either vaginal, anal, or oral sex. Although J.F. could not remember
the exact dates, she testified where the event occurred and what sexual conduct was
involved. She never mentioned the involvement of anyone else and consistently testified
it was Filbert who made her have vaginal, anal, or oral sex with him. Filbert is a person.

With these specific instructions, we find each instruction when read in its entirety
did not reflect a different crime was instructed than what Filbert was charged with. There
was sufficient evidence when viewed in a light most favorable to the State to support the
jury's verdict for each count of aggravated criminal sodomy.

Affirmed.