State v. Horne

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NOT DESIGNATED FOR PUBLICATION

No. 111,945

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEVERTIS HORNE,
Appellant.

MEMORANDUM OPINION


Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed November 6, 2015.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Barry K. Disney, senior deputy county attorney, Barry Wilkerson, county attorney, and Derek L.
Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: Levertis Horne appeals his convictions for aggravated burglary,
aggravated battery, and two counts of attempted aggravated robbery. He was acquitted of
two additional counts of aggravated robbery. In this direct appeal, Horne raises two
claims involving the jury instructions. First, he argues the district court failed to instruct
the jury with the applicable definition of "knowingly" committing the aggravated battery.
The State concedes the district court's error but argues it was harmless. Second, Horne
argues the district court failed to give the lesser included offense instruction of reckless
aggravated battery. We affirm.
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According to Horne's arguments, this case involves a drug deal gone wrong. He
does not deny his involvement in the incident. Horne testified he went to an address given
to him by his marijuana supplier to purchase a quarter pound of marijuana for $1,200. He
testified that once inside the apartment, he was hit by one man and then jumped by two
men. Horne was adamant that he did not have a gun. Horne claimed that as he attempted
to protect himself during the attack, he heard a gunshot and he then ran away. He claimed
one of the men hit him in the face with a hammer. Horne testified he did not seek medical
treatment or call the police concerning the incident because, "it was a drug deal." Horne's
cell phone and black do-rag (head covering) were found in the apartment. Horne admitted
to police that he intended to purchase marijuana at the apartment that day.

Tyler Sweet, Andrew Johnson, Austin Miller, and Chase Cargile all lived together
in an apartment in Manhattan. Sweet testified that on October 5, 2013, he and Cargile and
Miller were watching a movie when they heard a knock at the door. Johnson was in the
kitchen. As Sweet opened the door, Horne, dressed in all black with a bandana over his
face rushed in and started yelling for the men to "give him everything." Sara Steinhauser,
Johnson's girlfriend, was in Johnson's bedroom when she heard a commotion in the living
room and someone yelling to get on the ground or he would shoot. Steinhauser looked
out into the hallway, saw Horne holding a pistol. She hid in a closet and called 911.

Sweet testified he said he did not have anything and then Horne hit him with the
pistol in the right eye. The blow knocked Sweet out briefly. When Sweet regained
consciousness, Horne was holding the gun to his head saying he was not afraid to kill
anyone and for everyone to lay down in the middle of the floor. Sweet laid down on the
floor with his head covered. When he saw his friends wrestling with Horne and heard a
gunshot, he ran out of the apartment and to a friend's house. When he returned to the
apartment, the police were there.

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Miller testified he had purchased marijuana in Colorado and had it in the
apartment to sell. Miller's testimony about Horne's entrance to the apartment and his
demand for marijuana was similar to Sweet's. Miller said he was the first person to get a
container of marijuana from his bedroom. Cargile also got a container of marijuana and
placed it on the dining room table. When Horne's attention was distracted, Cargile lunged
at him with a pocketknife. Cargile testified that as they scuffled, Horne shot him twice,
once in the adam's apple and once in the collar bone.

As Cargile and Horne scuffled, Miller decided to run at Horne as well and tackle
him. He testified he heard a gunshot and then heard Cargile yelling that he had been shot.
Miller tackled Horne and a second shot was fired. Miller said Horne struck him in the
head with the gun. Horne fired a shot at Miller but missed. Miller rushed Horne again.
Horne struck Miller with the gun causing Miller to lose his vision for a couple of
seconds. Horne ran out of the apartment. Miller grabbed a hammer and threw it at Horne
striking him in the face.

The State charged Horne with the aggravated battery of Cargile, the attempted
aggravated robbery of Sweet, the attempted aggravated robbery of Johnson, the
aggravated robbery of Miller, the aggravated robbery of Cargile, and aggravated
burglary. The jury convicted Horne on 4 of the 6 counts. The jury acquitted Horne of the
aggravated robbery charges involving Miller and Cargile. The trial court sentenced Horne
to a combined sentence of 73 months' imprisonment. Horne appeals.

Horne first argues the trial court erred in failing to give the jury the appropriate
definition concerning that he "knowingly" committed aggravated battery.

For a knowing aggravated battery, the State must prove that the defendant "acted
while knowing that some type of great bodily harm or disfigurement of another person
was reasonably certain to result from the defendant's action." State v. Hobbs, 301 Kan.
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203, 213, 340 P.3d 1179 (2015). In this case, Horne claims the trial court failed to
instruct the jury with the appropriate definition: that Horne acted knowing great bodily
harm was reasonably certain to result.

Although Horne did not object to the instruction, we may review for clear error.
State v. Williams, 295 Kan. 506, Syl. ¶ 3, 510-11, 286 P.3d 195 (2012). We first
determine whether the instruction was appropriate, a legal question subject to unlimited
review. If the trial court erred, then we next consider a reversibility inquiry. 295 Kan.
506, Syl. ¶¶ 4-5.

The trial court's instruction on the definition of a knowing aggravated battery was
erroneous because it was not legally correct. See Williams, 295 Kan. 506, Syl. ¶ 4 (The
designation of "error" encompasses an instruction that is not legally appropriate.); State v.
Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012) (An instruction that does not
accurately state the applicable law would be legally infirm.). The State concedes this
point to Horne based on Hobbs, 301 Kan. at 210-11, where the court held:

"Harmonizing K.S.A. 2011 Supp. 21-5413(b)(1)(A) and K.S.A. 2011 Supp. 21-
5202(f), (g), and (i) to the greatest extent possible—see State v. Coman, 294 Kan. 84, 93,
273 P.3d 701 (2012) (court considers provisions of an act in pari materia with view to
reconciling, bringing provisions into workable harmony); State v. Frierson, 298 Kan.
1005, 1012, 319 P.3d 515 (2014) (court assumes legislature does not intend to enact
useless, meaningless legislation)—leads us to conclude that the legislature does not
intend for 'general intent' to necessarily mean what it once did and that 'knowingly,' as
used in K.S.A. 2011 Supp. 21–5413(b)(1)(A), means that the accused acted when he or
she was aware that his or her conduct was reasonably certain to cause the result. This
does not mean that the accused must have foreseen the specific harm that resulted.
Instead, it is sufficient that he or she acted while knowing that any great bodily harm or
disfigurement of the victim was reasonably certain to result from the action."

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In the present case, concerning the aggravated battery charges involving Cargile,
the trial court instructed the jury that the defendant, "acts knowingly when the defendant
is aware of the circumstances in which he was acting." Horne did not object to this
definition. However, as stated in Hobbs, it was error for the court to not instruct that
Horne must have been aware that his conduct was reasonably certain to cause the result.
301 Kan. at 211. While that ends the discussion on the question of whether the instruction
was legally correct, we are not convinced the error changed the outcome of the trial.

Once we find error, we then consider a "reversibility inquiry." For an instruction
error not objected to, the standard is clearly erroneous. Williams, 295 Kan. 516; see also
State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (court must be firmly
convinced there is a real possibility the jury would have returned a different verdict).

Horne argues the evidence supports a finding that a jury properly instructed on the
elements of a knowing aggravated battery could have reached a different result; that the
shooting was accidental. Specifically, Horne relies on the following evidence presented at
trial to justify his argument: (1) Miller testified that Cargile and Horne scuffled, and (2)
Miller later tackled Horne, and as he did, two shots were fired off the side of Miller's
head in Cargile's direction. From that evidence, Horne argues the jury, if instructed that it
was required to find an awareness that the conduct was reasonably certain to cause the
result, could have concluded that Horne had not knowingly caused great bodily harm.

Based upon the evidence presented, the jury would not have reached a different
verdict if properly instructed on the elements of a knowing aggravated battery. There is
no evidence any of the acts in this case were accidental. The State presented evidence that
when Horne entered the apartment he clearly told all the occupants to lay down in the
middle of the floor and that he was not afraid to shoot and kill anyone. Cargile testified
about putting the marijuana on the table instead of giving it Horne:

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"Q: [PROSECUTOR] Okay. Do you say anything about that point in time?
"A. [CARGILE] He says to me to bring the money and the marijuana to him, otherwise
he will shoot me in the kneecap.
"Q. Okay. And what - - what do you do in response to that?
"A. I tell him to go fuck himself.
"Q. And you worry about saying that word, but I told you you have to say what was said,
correct?
"A. Yes, sir.
"Q. Okay. So then what happens?
"A. He tells me to bring him the money and the marijuana, otherwise he's going to start
shooting my friends. [Cargile refuses and lays down].
. . . .
"Q. And then what happens?
"A. He tells me to get the money and the marijuana and bring it to him, otherwise he's
going to shoot me."

Miller also testified that Horne pointed the gun directly at him and shot it but he missed.
All the acts in this case were intentional. Horne knew his actions of firing the gun at
Cargile knowingly caused great bodily harm.

There is a difference between a defendant's awareness that his or her conduct is
reasonably certain to cause a result and the defendant's awareness of the nature of his or
her conduct. However, in this case the State presented evidence of how and when Horne
fired the gun and several witnesses who saw Horne fire the gun. A jury properly
instructed on the definition of knowingly would not have reached a different result; i.e.,
reckless conduct.

Next, Horne argues the evidence at trial supported a lesser included offense
instruction for reckless aggravated battery, i.e., "recklessly causing great bodily harm to
another person or disfigurement of another person." K.S.A. 2011 Supp. 21-
5413(b)(2)(A). Horne maintains the trial court erred in not instructing the jury on that
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lesser included offense. The State asserts the court was not required to give the requested
lesser included offense instruction because no evidence had been presented that would
reasonably justify a conviction on reckless aggravated battery.

We follow the Supreme Court's recent analysis and corresponding standards of
appellate review for issues involving jury instructions:

"(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
degree of certainty set forth in [State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801
(2011) cert. denied 132 S. Ct. 1594 (2012)]." Plummer, 295 Kan. at 163.

With regard to preservation, Horne requested the lesser include offense instruction
and the State objected to its inclusion. The State argued the lesser included instruction
was wholly inconsistent with Horne's testimony and his defense. The trial court agreed
with the State and denied Horne's request. The issue was properly preserved in the trial
court.

In light of proper preservation, Horne shifts the discussion to whether an
instruction for a reckless aggravated battery was legally appropriate. When an appellate
court considers the legal appropriateness of an instruction, "appellate review is unlimited,
as with all questions of law." Plummer; 295 Kan. at 161. In the context of lesser included
offense instructions, an appellate court asks whether the lesser crime is "legally an
included offense of the charged crime." 295 Kan. at 161. Neither party challenges the
legality of the lesser instruction. See K.S.A. 2014 Supp. 21-5109(b)(1) (lesser included
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crime defined); K.S.A. 2011 Supp. 21-5413(b)(1)(A) (severity level 4 aggravated
battery); K.S.A. 2011 Supp. 21-5413(b)(2)(A) (severity level 5); or K.S.A. 2011 Supp.
21-5413(b)(2)(B) (severity level 8). Because a severity level 5 or 8 aggravated battery is
a lesser degree of a severity level 4 aggravated battery, the former crime is a lesser
included offense under Horne's level 4 aggravated battery charge. Hence, Horne's request
for a reckless aggravated battery instruction was legally appropriate.

Despite its legal appropriateness, we find there is insufficient evidence to support
the instruction. Even if the instruction is legally appropriate when viewed in isolation, it
must be supported by the particular facts of the case at bar. Plummer, 295 Kan. at 161.
Thus, our primary focus concerning Horne's argument is to determine whether a lesser
included offense instruction was appropriate based on the facts of this case. Even though
the giving of lesser included crime instructions is not a matter of discretion with the trial
judge, our Supreme Court recently pointed out that the giving of the instruction depends
on the underlying facts of the case. The Plummer court described the inquiry as follows:

"[P]ursuant to the language of K.S.A. 22-3414(3), a lesser included offense instruction is
only required 'where there is some evidence which would reasonably justify a conviction
of some lesser included crime.' Therefore, a district court does not err in refusing to give
a lesser included offense instruction on a crime which is unsupported by the evidence in
that particular case." 295 Kan. at 161.

Horne argues that the State presented evidence that would reasonably justify a
conviction for reckless aggravated battery when viewed in the light most favorable to
him. Specifically, Horne relies on the following evidence presented at trial to justify his
argument: (1) Miller testified that Cargile and Horne scuffled and (2) Miller later tackled
Horne, and as he did two shots were fired off the side of Miller's head in Cargile's
direction. Horne argues that from the testimony the jury could have concluded that his
conduct was reckless in committing an armed robbery and he had consciously
disregarded the substantial and unjustifiable risk that an accidental shooting would result.
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Horne also objects to the State's argument that he was not entitled to the lesser
included instruction because his defense was inconsistent with the lesser instruction and
he did not present any evidence to support the lesser instruction. Horne cites State v.
Simmons, 295 Kan. 171,176, 283 P.3d 212 (2012),where the court stated: "We have held
that the evidence which would support a conviction on a lesser included crime is not
restricted to that which was proffered by the defense, but rather it can include evidence
presented by the State, as well."

In his appellate brief, Horne concedes the State's evidence was not consistent with
his theory of defense, but argues we must look at all the evidence to see if the lesser
included instruction was necessary. However, Horne's arguments do not point to evidence
that would justify a conviction for reckless aggravated battery. K.S.A. 2014 Supp. 21-
5413(b)(2)(A) defines reckless aggravated battery as "recklessly causing great bodily
harm to another person or disfigurement of another person." Recklessness is also defined
by statute. K.S.A. 2014 Supp. 21-5202(j) provides: "A person acts 'recklessly' or is
'reckless,' when such person consciously disregards a substantial and unjustifiable risk
that circumstances exist or that a result will follow, and such disregard constitutes a gross
deviation from the standard of care which a reasonable person would exercise in the
situation." By contrast, intentional conduct occurs when it is someone's "conscious
objective or desire to engage in the conduct or cause the result." K.S.A. 2014 Supp. 21-
5202(h).

Horne cites State v. Ochoa, 20 Kan. App. 2d 1014, 895 P.2d 198 (1995), overruled
in part by State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996), for authority that
the difference in the levels of aggravated battery is the mindset of the defendant. 20 Kan.
App. 2d at 1020-21. However, the Ochoa court did not find that reckless battery
constituted a lesser offense of intentional aggravated battery as a matter of law. Ochoa
testified he did not intend to shoot anyone. Instead, he shot his pistol into the air to
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frighten those advancing toward him. Based on Ochoa's testimony, the court found there
was evidence to support a conviction of either intentional or reckless aggravated battery.
Therefore, instructions on both were appropriate. Furthermore, the Ochoa court found
that based on the specific facts of the case, there was a real possibility the verdict would
have been different if the lesser instructions had been given. 20 Kan. App. 2d at 1021.
Facts even remotely similar to Ochoa are not present in this case.

The State cites the case of State v. Roberts, No. 91,322, 2004 WL 2977478, (Kan.
App. 2004) (unpublished opinion), as a drug-deal-gone-bad situation in light of Horne's
testimony that he went to the apartment to purchase marijuana. In Roberts, the victim
testified Roberts had intentionally shot him, whereas Roberts' version was that during a
struggle the gun went off accidentally. The Roberts court ruled the trial court did not err
in failing to instruct on reckless aggravated battery because the evidence showed that
either Roberts intentionally shot the victim or the gun discharged accidentally; there was
no evidence Roberts acted recklessly. 2004 WL 2977478, at *1-2. In Tucker v. State, No.
89,661, 2004 WL 90056, (Kan. App. 2004) (unpublished opinion), the court also rejected
the defendant's contention that the trial court should have provided the jury an instruction
on reckless aggravated battery as a lesser included offense because the only evidence at
trial was the victim's testimony that the defendant intentionally shot her. 2004 WL 90056,
at *5.

The State argues the evidence does not support a conviction for reckless
aggravated battery. We agree. Horne did not argue the theory of reckless conduct at trial.
The evidence left the jury with the following options—Horne shot Cargile intentionally
or the gun discharged accidentally. There was no evidence Horne acted merely
recklessly. There is no evidence here that Horne shot a gun into the air or swung a knife
in the air or engaged in any conduct with a gun that amounted to only a reckless act. The
court in Roberts stated:

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"While it may be said that engaging in a drug deal is reckless, it does not follow that a
shooting which occurs during the transaction is by its nature a reckless act. Again, the
evidence here supports only the fact that the shooting resulted from an intentional act or
an accident." 2004 WL 2977478, *3.

Sweet testified that Horne had rushed through the door with a gun in his hand. Horne
yelled that he was not afraid to shoot and kill anyone who did not bring him marijuana.
Horne also hit Sweet with the gun. Miller and Cargile both testified that Horne held them
at gunpoint and demanded they give him all the marijuana they had in the apartment.
Steinhauser saw Horne holding a gun. Miller testified Horne shot the gun at him but
missed.

Consequently, the trial court properly refused to give an instruction on the lesser
included offense of reckless aggravated battery.

Affirmed.