State v. Fugate

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NOT DESIGNATED FOR PUBLICATION

No. 117,283

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JULIUS A. FUGATE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed March 16, 2018.
Affirmed.

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

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., GREEN, J., and HEBERT, S.J.

PER CURIAM: A jury convicted Julius A. Fugate of aggravated robbery,
aggravated burglary, and criminal threat. On appeal, Fugate seeks a new trial, claiming
the district court erroneously admitted irrelevant and prejudicial evidence at trial by
allowing the victim to testify as to how she felt while she was reviewing videos of her
previous statements to police. Because we agree with the district court that such evidence
was admissible as it was not only relevant, but the probative value of the evidence
outweighed any prejudicial effect, we affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

In October 2014, Kallie Solwa lived in a two-bedroom apartment in Lawrence,
Kansas, with Will Spates, the father of her two young children. On the night of October
15, 2014, Solwa return home around 7 p.m. after visiting her sister. As she was preparing
her one-year-old son and two-year-old daughter for bed, their neighbor, Marcel Williams,
came over to borrow a movie and then left. Williams and his girlfriend, Jalisa Simms, had
moved into the next door apartment only a few months before.

After Solwa put her children to bed, Spates left the apartment around 8 p.m. Solwa
was expecting her sister to come over around 9 p.m. to watch a television show with her.
In the meantime, Solwa started her evening routine. As a regular user of marijuana,
Solwa was preparing to smoke a blunt, a cigar containing marijuana and tobacco, and to
work on her online college classes. Solwa stated that Spates did not sell marijuana but
that he would get it for her and his friends if they asked. Solwa also testified that the
blunt contained the only marijuana in the apartment.

Before Solwa could start her routine, however, her daughter woke up and came
into the living room. Solwa then heard a knock on her front door that sounded like the
one used by her neighbor, Williams. Thinking it was Williams, Solwa opened the door
and was confronted with two guns held about a foot from her face. The first person she
saw was a black male with dreadlocks carrying a black handgun. Solwa testified he wore
a dark-colored hoodie, a hat, and either jeans or dark canvas pants. The man also had a
box of bullets in his hoodie pocket. Solwa described the second person as a mixed-race or
Mexican male with messy hair and dirty hands and fingernails. She stated that he wore a
dark-colored hoodie and either jeans or dark-colored canvas pants. Solwa testified at trial
that he wore a white fingerless, golf-style glove on his left hand in which he carried a
silver colored handgun. She identified the second male as Fugate at trial.

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As the two men forced Solwa to retreat backwards into the apartment, the male
with the dreadlocks, later identified as Duane Russell, told Solwa to stay quiet and
demanded of Solwa, "Where is it at?" and, "We know that you have drugs here." He also
told her that Spates had made their bosses mad and that they were sent to look for him.
Solwa testified that she repeatedly told him that she did not have any drugs in the house
and that she had her kids there.

At the same time, Fugate demanded an answer to the same question, "Where is it
at?" and he went into her bedroom. She stated that she saw him going through her dresser
and generally tearing apart her room and closet. He then went through the laundry room
and emptied multiple shoe boxes she had used to organize her possessions.

After Fugate went through Solwa's apartment, he came back into the living room
where she was sitting with her daughter on the sofa. He made her turn around and pushed
her to her knees. Fugate then stood behind Solwa and put his gun to her head. He kept
saying, "I know you know where it's at," and she kept denying that she knew or had
anything. After giving Solwa one more chance to tell him, Fugate pulled the trigger and
she heard a click. He repeated the question, and Solwa fell forward. Once she got back up
and turned around, Solwa saw Fugate had her daughter with the gun to her head. She
pleaded with him to put the gun back to her head, but after Solwa again told Fugate that
she did not know where anything was, he pulled the trigger and she heard a click. Fugate
then dropped Solwa's daughter, who ran crying and screaming to Solwa. At that point, a
commercial came onto the television which stated the show she was planning to watch
with her sister was about to come on. Solwa told the men that her sister would be there
any minute. The men decided to leave but told her that they would be back, and Russell
took the blunt cigar.

After the men left, Solwa watched them jump over a small fence by her apartment;
she tried to lock her door and called 911. Her sister and brother-in-law arrived at the
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apartment shortly after she called the police. Solwa testified that she was pretty hysterical
and crying at that time. Her neighbors, Simms and Williams, came outside to ask her
what happened, and Solwa told them that someone came into her house with a gun and
put it to her and her daughter's head. Solwa testified that when the police arrived she did
her best to tell them what happened, but at trial she admitted that it was a bit of a blur and
that she had trouble remembering the exact details of her conversations.

One of the first responding officers, Lawrence Police Officer Peter Kerby, stated
that he heard a woman scream when he first approached the apartment complex. He then
identified the victim as Solwa and described her demeanor as distraught, crying, and
screaming. The crime scene investigators conducted an investigation that night of the
apartment but were unable to find any usable fingerprints.

Later that night, Solwa was interviewed by Lawrence Police Detective Michael
McAtee. Solwa identified three different guns that the two males may have carried during
the incident but admitted she did not have a lot of experience with guns. Solwa picked
out a black semiautomatic gun that looked like the handgun carried by Russell and two
guns—a silver revolver and silver handgun—that looked like the gun carried by Fugate.

Following the interview, Solwa went home and began to look for the men on
Facebook. She began by looking at her neighbors' friend list first because Simms and
Williams had recently moved in, and Solwa stated she and Spates had not had trouble
before then. After she was unable to find anyone who resembled the men, Solwa looked
at Simms' brother's page. Simms testified at trial that her brother's full name was Jeffrey
Belaire, Jr.

The first comment on Belaire's page was from a black male with dreadlocks who
Solwa recognized as one of the men from the incident. She clicked on the photo and his
name was listed as "Young Huss." Solwa contacted McAtee that night and went back to
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the Lawrence Police Department to show them the picture that she found. Solwa testified
at trial that she followed the page until it was taken down two days later.

In a separate incident in Lawrence at 1 a.m. the next morning, Lawrence Police
Officer Eric Barkley approached a 2003 Ford gray pickup truck with a Texas license
plate that was parked at the Eighth Street boat ramp. At first, Barkley believed the truck
contained two people. He checked for warrants and identified the driver as Fugate and the
passenger—whom he recognized from his time as a school resource officer—as Belaire.
Barkley stated that Fugate had long straight hair pulled back into a ponytail. Upon
running the tag number, Barkley learned the pickup truck was registered to Carol Sue
Gregory-Fugate. Barkley then approached the vehicle a second time and realized the
truck cab had one more person in it, whom he identified as Russell. He described Russell
as a black male with dreadlocks.

The next day, Solwa showed Simms the picture of the man with dreadlocks, and
Simms told her the man was her brother's friend named Dreads. Simms testified that she
had seen Dreads with her brother about a year before and, most recently, about one week
before the incident when he came to her apartment to borrow a basketball. She also
testified that Dreads was a passenger in a light-colored pickup truck with another man
whom she described him as light-skinned, possibly mixed-race, and with long hair.
According to Solwa's testimony at trial, Simms told Solwa that Dreads would come to
Lawrence so that Belaire and Dreads could rob people. McAtee later determined that
Dreads was Russell.

McAtee prepared an arrest warrant for Russell. He learned that Barkley had had
contact with three individuals in a Ford gray pickup truck and had the tag number.
McAtee learned that the vehicle was owned by Fugate's mother and was bought from a
small finance company that had installed a GPS tracker in the truck. Upon contacting the
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finance company, McAtee learned that the GPS tracker confirmed the truck was in
Lawrence near the Eighth Street boat ramp on October 15, 2014.

On October 20, 2014, McAtee drove to Dallas, Texas, after being notified that the
Dallas police had apprehended Russell on the Lawrence arrest warrant. While in Dallas,
McAtee assisted in apprehending Fugate during a traffic stop of the Ford truck. McAtee
testified that upon searching the truck he found a brief case that contained documents
belonging to Fugate and a small dark-colored pellet gun that was similar to a semi-
automatic handgun. During an interview with McAtee, Fugate admitted that he was in
Lawrence on October 15, 2014, but stated he was there to meet some girls. He also
admitted that he had contact with Barkley at the Eighth Street boat ramp. McAtee
testified that Fugate had fresh tattoos on his hands and stated that his hands and
fingernails were a little dirty. About a week later, McAtee prepared two photo lineups,
and Solwa identified Russell as photo number five in the first lineup and Fugate in the
second lineup as photo number three.

In August 2015, a jury found Fugate guilty of aggravated robbery, aggravated
burglary, and criminal threat. The district court sentenced Fugate to a total of 102 months'
imprisonment.

Fugate timely appeals.

DID THE DISTRICT COURT ERR IN ADMITTING PREJUDICIAL EVIDENCE AT TRIAL?

On appeal, Fugate asserts the district court erred in permitting Solwa to tell the
jurors how she felt while refreshing her memory by viewing the videos of her interactions
with police shortly after the incident. Fugate claims this evidence was both irrelevant and
unduly prejudicial.

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Our review of questions involving the admission of evidence is a multistep one.
First, we must determine whether such evidence is admissible. Generally, "all relevant
evidence is admissible." K.S.A. 60-407(f). K.S.A. 60-401(b) defines relevant evidence as
evidence having "any tendency in reason to prove any material fact."

"'Relevance has two elements: probative value and materiality. State v. Marks,
297 Kan. 131, 142, 298 P.3d 1102 (2013). Evidence is probative if it furnishes,
establishes, or contributes toward proof. Probativity is reviewed for abuse of discretion.
Evidence is material if it tends to establish a fact that is at issue and is significant under
the substantive law of the case. Materiality is reviewed de novo. 297 Kan. at 142.'"
McCormick, 305 Kan. at 47 (quoting State v. Coones, 301 Kan. 64, 77-78, 339 P.3d 375
[2014]).

During the trial, the defense confronted Solwa on cross-examination with some
prior inconsistent statements. At one point, Solwa denied being able to recall her prior
statements even after reviewing them. On redirect examination, the State asked Solwa to
describe the emotions she was feeling on the day the video of the first responders was
recorded. Then, the State asked her:

"Q. [by the State] What was going through your mind when you watched those
videos this morning?

"[Defense Counsel]: Objection, Your Honor. Relevance.

. . . .

"[The State]: I think it goes to her demeanor and her testimony today,
Your Honor.

"The Court: Overruled. You may answer.

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"A. [Solwa]: (The witness is crying.) Um, well, I have spent the last several
months trying to forget everything that had happened. It just brought everything back.
And so for the little things that I haven't been able to forget and move on, it's all back
now."

Fugate raised a contemporaneous objection in the district court to Solwa's
testimony on relevancy grounds, thus preserving the relevance issue for appeal. The State
argues that Solwa's testimony was relevant because it related to her credibility as a
witness. We agree. Under K.S.A. 60-420:

"Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting
the credibility of a witness, any party including the party calling the witness may examine
the witness and introduce extrinsic evidence concerning any conduct by him or her and
any other matter relevant upon the issues of credibility."

Another panel of this court has stated that evidence relating to a witness' credibility is
relevant. State v. Salas, No. 103,605, 2011 WL 2637432, at *2 (Kan. App. 2011)
(unpublished opinion) (citing State v. Ross, 280 Kan. 878, 886, 127 P.3d 249, cert. denied
548 U.S. 912 [2006]). The Salas panel specifically discussed the evidence as relevant
when attacking a witness' credibility:

"Credibility can be attacked in any number of ways. A witness might not have
gotten a good look at the incident about which he or she is testifying or might have
trouble recalling the circumstances. A witness may have given differing accounts of the
pertinent events on various occasions. A witness might have a bias or prejudice disposing
him or her toward one side or against the other. Similarly, a witness could have
something to gain or lose by testifying favorably for one side or the other. All of those are
generally appropriate and admissible considerations in challenging a witness. Whether
they should be engaged in a given case or with a given witness goes more to counsel's
trial strategy than limitations imposed by the rules of evidence." 2011 WL 2637432, at
*2.

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At the time of the alleged error, the State was conducting a redirect examination of
Solwa following a cross-examination that pointed out inconsistencies between Solwa's
trial testimony and prior statements. "[P]rior statements by a witness are generally
material and probative, i.e., relevant, because the consistency or lack thereof between the
statement and the testimony either corroborates or undercuts the witness' credibility."
State v. Reed, 300 Kan. 494, 506, 332 P.3d 172 (2014). "A witness may be asked
questions on redirect examination to clarify or modify statements made on cross-
examination. A witness on redirect may also explain the effect of new matters brought
out on cross-examination." State v. Wade, 244 Kan. 136, 145, 766 P.2d 811 (1989).

Here, the challenged testimony explains why Solwa may have given less credible
testimony based on her lack of memory. Generally, a witness or victim's credibility
becomes material to a criminal case if it has a "legitimate and effective bearing on the
jury's determination of whether [the defendant] had committed the criminal acts against
[the victim]." State v. Stafford, 296 Kan. 25, 44, 290 P.3d 562 (2012). "The reliability of
a witness is an essential jury consideration, one upon which guilt or innocence may
ultimately rest." State v. Sean, 306 Kan. 963, 991, 399 P.3d 168 (2017).

Solwa was the only person who could identify Fugate and testify about his
involvement in the events that unfolded inside her apartment on October 15, 2014. The
lack of physical evidence and corroborating witnesses rendered Solwa's credibility in
describing and identifying Fugate material and probative to the case. See Stafford, 296
Kan. at 44. While Solwa's credibility was in dispute following cross-examination,
Solwa's testimony about her feelings while she reviewed videos of her prior statements
was material and probative to explaining the gaps in her memory. Specifically as to the
probity of the evidence, Solwa's ability to identify Fugate renders those pertinent facts
more or less true based on the quality of her memory. Accordingly, we find that the
district court did not err in admitting her testimony on redirect examination as relevant.

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Fugate also argues that the evidence, even if relevant, was unduly prejudicial and
should not have been admitted. The district court has the discretion to exclude evidence
where it finds that the probative value of the evidence is outweighed by its potential for
producing undue influence. K.S.A. 60-445. We review any such determination for an
abuse of discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).

However, Fugate never objected at trial to the admission of Solwa's testimony on
prejudice grounds.

"This court has long held, and the rule has been embodied in K.S.A. 60-404, that
a 'verdict or finding shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection.' [Citation omitted.]" State v. Bryant, 272 Kan.
1204, 1208, 38 P.3d 661 (2002).

Moreover, "a defendant may not object to the introduction of evidence on one ground at
trial and then assert a different objection on appeal." State v. Gilliland, 294 Kan. 519,
527, 276 P.3d 165 (2012). While Fugate did assert a contemporaneous objection at trial,
his objection was specific only to the relevance of Solwa's testimony, not that her
testimony was prejudicial. Therefore, we find that Fugate has failed to preserve the
prejudice argument for appeal. See State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543
(2016).

However, even assuming Fugate had properly preserved this issue for appeal, we
still find the district court did not err in admitting Solwa's testimony regarding her
feelings that night. We agree with the State's assertion that nothing in Solwa's response or
in the record indicates that her testimony encouraged the jury to consider the emotional
harm done by defense counsel's questioning or to view Fugate and his counsel with
disdain. For these reasons and for the reasons outlined above in our relevancy analysis,
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Solwa's testimony was not unduly prejudicial, and the district court did not err in
admitting it.

Affirmed.