State v. Johnson

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NOT DESIGNATED FOR PUBLICATION
No. 113,906
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,
v.
DAQUANTRIUS JOHNSON,
Appellant.



MEMORANDUM OPINION


Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed

September 8, 2017. Affirmed.



Sam Schirer, of Kansas Appellate Defender Office, for appellant.



Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek

Schmidt, attorney general, for appellee.



Before BRUNS, P.J., MCANANY and BUSER, JJ.



BUSER, J.: Daquantrius Johnson appeals his convictions after a jury found him
guilty of aggravated burglary, robbery, and theft. On appeal, Johnson contends there was
insufficient evidence presented at trial to find him guilty of robbery, that the district court
erred in instructing the jury, and that the prosecutor committed error by misstating the
evidence during closing argument. Johnson also contends that the district court erred by
enhancing his sentence based upon his criminal history without first requiring the State to
prove his prior convictions to a jury beyond a reasonable doubt. Because we find no
reversible error, we affirm Johnson's convictions and sentence.
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FACTS


On the night of December 29, 2013, Johnson, Keith Hickles, and Quanique
Thomas-Hameen went to a Taco Bell in Wichita. While Thomas-Hameen went inside the
restaurant to order food, Johnson and Hickles saw a pickup truck hit the drive-thru
speaker box and come to a stop. Johnson ran to the pickup truck and saw that the driver—

later identified as 43-year-old Danielle Zimmerman—appeared to be unconscious.
Instead of helping Zimmerman, Johnson grabbed her hand and took the wedding ring off
Zimmerman's finger. In addition, Johnson took Zimmerman's iPhone and her purse from
the pickup. After taking the items from Zimmerman, Johnson, Hickles, and Thomas-
Hameen drove away.


Several people came to Zimmerman's aid, including a Taco Bell employee who
found her slumped over to the left side of her steering wheel. An off-duty nurse also
assisted Zimmerman and found her to be unresponsive. Emergency personnel arrived at
the scene and transported Zimmerman to the hospital where it was determined that she
had suffered a brain aneurysm. The police called Zimmerman's husband of 21 years, and
he noted that his wife's wedding ring, iPhone, and purse—containing about $150 cash,
credit cards, a checkbook, and other personal items—were missing. Unfortunately,
Zimmerman died at the hospital the following day.


After leaving the Taco Bell, Johnson, Hickles, and Thomas-Hameen rifled through
Zimmerman's purse and removed several items. The three men eventually arrived at the
house of Jessica Saenz. Upon arriving at her house, Johnson told Saenz that he had
robbed a "[d]umb white bitch" who had "passed out behind the wheel." Johnson also
showed Saenz a cell phone and two rings. We note from a photograph in the record on
appeal that the ring stolen from Zimmerman consisted of both an engagement ring and a
wedding band. Moreover, Johnson showed Zimmerman's credit cards to Saenz. At some
point, the stolen credit cards and driver's license were placed in Saenz' trash can.
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Several days later, Saenz informed the police regarding what had occurred. Shortly
thereafter, the police arrested Johnson, Hickles, and Thomas-Hameen. The State charged
Johnson with aggravated burglary, robbery, and theft. A jury ultimately found him guilty
of each of the charges. The district court sentenced Johnson to a 136-month prison term
with 36 months' postrelease supervision. Thereafter, Johnson timely filed this appeal.


ANALYSIS


Sufficiency of Evidence


On appeal, Johnson first contends there was insufficient evidence to convict him

of robbery as defined in K.S.A. 2016 Supp. 21-5420(a). Specifically, Johnson argues that
the required element of "force" was not satisfied because Zimmerman was evidently
unconscious when he removed her wedding ring from her finger. When a criminal
defendant challenges the sufficiency of evidence, we review all evidence in the light most
favorable to the State. It is not our role to reweigh the evidence presented to the jury or to
assess the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074
(2016). Moreover, we are to uphold a conviction if we are convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt based on the
evidence presented. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015).


After the State rested, Johnson's counsel filed a motion for acquittal arguing that
there was "no testimony that there was any sort of force exerted for the taking of the
alleged ring." The State countered, arguing that there was testimony from Zimmerman's
husband "that she never took the ring off, so it was on her hand." Furthermore, the State
argued that Zimmerman "was a living, breathing person according to the testimony from
the nurse at the time it was taken" and that "[s]ome degree of force would have been
required" to take the wedding ring off Zimmerman's finger. The district court agreed with
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the State and overruled Johnson's motion for acquittal, reasoning that "the question of any
force as to . . . the robbery count is a factual question for which the jury must make a
determination . . . ."


K.S.A. 2016 Supp. 21-5420(a) defines robbery as "knowingly taking property from
the person or presence of another by force or by threat of bodily harm to any person."
(Emphasis added.) Johnson admits that there was sufficient evidence that he removed the
wedding ring from Zimmerman's finger without her consent. However, he argues that the
force required to satisfy the statute requires that "a defendant must engage in an act of
violence or resistance." In support of this position, Johnson relies on State v. Aldershof,
220 Kan. 798, 556 P.2d 371 (1976).


In Aldershof, the defendant grabbed the purses of tavern patrons off their table
during a power outage and quickly left. One of the victims ran after the defendant. She
caught up with the defendant outside the tavern in the parking lot and managed to grab
him. As she did so, the defendant turned and struck her in the eye. A jury convicted the
defendant of robbery, but the Kansas Supreme Court reversed. In doing so, our Supreme
Court concluded: "[T]he crime of robbery by forcibly taking money from the person of
its owner . . . is not committed where the thief has gained peaceable possession of the
property and uses no violence except to resist arrest or to effect his escape." (Emphasis
added.) 220 Kan. at 803.


Here, a review of the record reveals circumstances that are substantially different
from those in Aldershof. Johnson did not merely take Zimmerman's wedding ring from
her car. Instead, Johnson removed it from her finger after she suffered a medical
emergency. Clearly, Zimmerman could not have consented to Johnson taking her ring nor
could she have taken it off her finger herself because she was unresponsive. Instead, it is
reasonable to infer that Johnson would have had to have grabbed Zimmerman's hand and
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pulled the ring off her finger. Thus, unlike the defendant in Aldershof, Johnson did not
gain "peaceable possession" of Zimmerman's wedding ring.


The Kansas Supreme Court has found the snatching of a purse from a victim's arm
to be robbery. State v. McKinney, 265 Kan. 104, 113-14, 961 P.2d 1 (1998). In reaching
this conclusion, it found the holding in Aldershof to be instructive, noting that the
Aldershof court declared that "'[r]obbery is not committed where the thief has gained
peaceable possession of the property.'" McKinney, 265 Kan. at 114 (quoting Aldershof,
220 Kan. 798, Syl. ¶ 3). Our Supreme Court went on in McKinney to conclude that "[t]he
flip side of the coin is that theft is not committed where the thief has used force to gain
possession of the property." 265 Kan. at 114.


Black's Law Dictionary defines "force" as "[p]ower, violence, or pressure directed
against a person or thing." Black's Law Dictionary 760 (10th ed. 2014). We note that in the
context of an excessive force claim against a law enforcement officer, our Supreme Court
has held that "degree of force" is a question of fact. Dauffenbach v. City of Wichita,
233 Kan. 1028, Syl. ¶ 3, 667 P.2d 380 (1983). We believe the same is true regarding the
question of the degree of force necessary to commit robbery in violation of K.S.A. 2016
Supp. 21-5420. Accordingly, we agree with the district court that whether Johnson
removed the wedding ring from Zimmerman's finger by force—in other words, by power,
violence, or pressure—was a question of fact to be decided by the jury.


Reviewing all of the evidence presented at trial in the light most favorable to the
State, we find that there was evidence presented from which a reasonable finder of fact
could conclude that Johnson asserted force in removing the wedding ring from the finger
of the 43-year-old unconscious victim who had been married for 21 years. Therefore, we
are convinced that there is sufficient evidence in the record upon which a rational
factfinder could have concluded beyond a reasonable doubt that Johnson knowingly took
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property from Zimmerman's person by force in violation of K.S.A. 2016 Supp. 21-

5420(a).



Aggravated Burglary Instruction


Johnson next contends the district court erroneously failed to include the statutory
elements of theft in the aggravated burglary instruction it gave to the jury. Because
Johnson did not object to aggravated burglary instruction given at trial, we may only
consider whether the district court committed a clear error. See K.S.A. 2016 Supp. 22-
3414. We use a two-step process in determining whether the challenged jury instruction
is clearly erroneous. See State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).


When determining whether an instruction was clearly erroneous, the appellate
court first determines whether there was any error at all. In making that determination,
the appellate court must consider whether the subject instruction was legally and factually
appropriate, employing an unlimited review of the entire record. If the appellate court
determines that the district court erred in giving a challenged instruction, then the
analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly
convinced that the jury would have reached a different verdict had the instruction error
not occurred. The party claiming an instruction is clearly erroneous—in this case
Johnson—maintains the burden of establishing the degree of prejudice necessary for
reversal. State v. Williams, 295 Kan. 506, Syl. ¶¶ 4, 5, 286 P.3d 195 (2012).


At trial, the district court gave the following jury instruction for aggravated
burglary:


"INSTRUCTION 4



"The defendant is charged in Count 2 with Aggravated Burglary. The defendant
pleads not guilty.
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"To establish this charge, each of the following claims must be proved:



"1. The defendant entered a vehicle,

"2. The defendant did so without authority,

"3. The defendant did so with the intent to commit a theft therein,

"4. At the time there was a human being, to wit: Danielle Zimmerman [the
victim], in the vehicle, and
"5. This act occurred on or about the 29th day of December, 2013, in Sedgwick

County, Kansas.



"The State must prove that the defendant committed Count 2 intentionally. A
defendant acts intentionally when it is the defendant's desire or conscious objective to do
the act complained about by the State."


The language used in Instruction No. 4 is substantially similar to the language of
K.S.A. 2016 Supp. 21-5807(b)(3), which defines aggravated burglary to be where a
person "without authority, enter[s] into or remain[s] within any . . . (3) vehicle . . . in
which there is a human being with intent to commit a felony, theft, or sexually motivated
crime therein." The language of Instruction No. 4 also mirrors the language in PIK Crim.
4th 58.130 (2016 Supp.). As the Kansas Supreme Court has made clear, district courts are
strongly recommended to use "PIK instructions, which knowledgeable committees
develop to bring accuracy, clarity, and uniformity to [jury] instructions." State v. Barber,
302 Kan. 367, 377-78, 353 P.3d 1108 (2015).



We also note that the Kansas Supreme Court has found that "[w]hen a statute
makes . . . the intent to commit a crime an element of another crime, the jury instructions
must set out the statutory elements of the underlying offense." State v. Richardson, 290
Kan. 176, 182, 224 P.3d 553 (2010). However, Instruction No. 4 was not the only
instruction given to the jury on the subject of theft. As our Supreme Court noted in State
v. Brice, 276 Kan. 758, 761, 80 P.3d 1113 (2003):
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"In reviewing jury instructions, an appellate court is required to consider all the
instructions together, read as a whole, and not to isolate any one instruction. If the
instructions properly and fairly state the law as applied to the facts of the case and a jury
could not reasonably have been misled by them, the instructions do not constitute
reversible error even if they are in some way erroneous."


In addition, our Supreme Court has held that we should presume that juries follow
the instructions given to them by district courts. State v. Holt, 300 Kan. 985, 1005, 336
P.3d 312 (2014). Here, the very next instruction, Instruction No. 5, included the elements

of theft as follows:





guilty.
"The defendant is charged in Count 3 with Theft. The defendant pleads not


"To establish this charge, each of the following claims must be proved:



"1. Danielle Zimmerman was the owner of the property,

"2. The defendant obtained unauthorized control over the property, to wit: purse,
purse contends and cell phone,
"3. The defendant intended to deprive Danielle Zimmerman permanently of the
use or benefit of that property,
"4. The value of the property was less than $1,000, and

"5. This act occurred on or between the 29th day of December, 2013, in

Sedgwick County, Kansas.



"The State must prove that the defendant committed Count 3 intentionally. A
defendant acts intentionally when it is the defendant's desire or conscious objective to do
the act complained about by the State."


Accordingly, in reviewing the instructions together, we find that the jury was not
misled.
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Even if we assume that Instruction No. 4 should have also listed the elements of
theft, we are not firmly convinced the jury would have reached a different verdict without
the error. Instead, we find that the instructions given to the jury fairly stated the law as
applied to the facts. In particular, reading the instructions as a whole, we find that they
adequately informed the jury that in order to convict Johnson of aggravated robbery, it
must unanimously find beyond a reasonable doubt that Johnson entered Zimmerman's
vehicle without authority—while she was in it—with the intent to permanently deprive
her of property.



Furthermore, we find that the alleged instructional error was harmless. An error is
harmless if the appellate court is persuaded "beyond a reasonable doubt that the error
complained of . . . did not affect the outcome of the trial in light of the entire record,
i.e., . . . there is no reasonable possibility that the error affected the verdict." State v. Ward,
292 Kan. 541, 569, 256 P.3d 801 (2011). Here, we find the evidence is overwhelming that
Johnson entered Zimmerman's car while she was incapacitated for the purpose of
committing theft. This is confirmed by Johnson's statement to Saenz that he had robbed a
"[d]umb white bitch" who had "passed out behind the wheel." There is absolutely no
evidence in the record that he entered Zimmerman's vehicle to render aid or for any reason
other than to steal her property. Accordingly, we find that the district court's failure to
include the statutory elements of theft in the aggravated burglary instruction was not
clearly erroneous.


Prosecutorial Error


Next, Johnson contends the prosecutor committed error during closing arguments
by misstating the evidence presented during the trial. We employ a two-step process to
evaluate claims of prosecutorial error. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060
(2016). First, we must determine if error occurred by deciding whether the prosecutor's
actions "fall outside the wide latitude afforded prosecutors to conduct the State's case and
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attempt to obtain a conviction in a manner that does not offend the defendant's
constitutional right to a fair trial." 305 Kan. at 109. If error has occurred, then we must
determine whether the error prejudiced the defendant's right to a fair trial under the
constitutional harmless error standard. "[P]rosecutorial error is harmless if the State can
demonstrate 'beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.' [Citation omitted.]" 305
Kan. at 109.



Here, Johnson argues that the following argument was erroneous:



"All right, now let's look at [Thomas-Hameen's] testimony. . . . [A]s we saw during cross-
examination, [Thomas-Hameen's] version of [t]he timeline just doesn't check out, but
whose version, who[se] timeline does check out?


"At 8:47 [Thomas-Hameen's] is leaving the store. A minute and 20, 30 seconds
later Chris Payne [a Taco Bell employee] is looking out the window because he hears the
crash. Chris Payne's out the door later that same minute and the silver car from the video
is right there, drives off a couple minutes later. So [Thomas-Hameen] is saying that this
happens right when he gets outside, but that's when Hickles is coming in but we know
there is at least a minute where that's not the case and [Thomas-Hameen] even said
during the plea hearing he's here to help Mr. Johnson. He tells you a different story today.

. . . Again, weigh the credibility." (Emphasis added.)



Johnson argues that the emphasized portion of this statement was a significant
misstatement of the evidence and was extremely prejudicial to his defense. Specifically,
Johnson argues that Payne did not actually hear the crash. Surveillance video taken from
inside the Taco Bell on the night of December 29, 2013, established that Thomas-Hareem
entered the restaurant at 7:46 p.m. About a minute later, he exited the restaurant. About
two minutes after Thomas-Hareem left, Payne leaned out the drive-thru window.
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At trial, Payne testified that he was caught off guard when the victim pulled up to
the drive-thru speaker box at Taco Bell and then did not respond for 30 to 45 seconds.
This delay—and not any particular noise—caused Payne to lean out the drive-thru
window. It was at that point that he noticed Zimmerman had crashed her car. The
combination of the restaurant's surveillance video and Payne's testimony thus established
that Zimmerman wrecked her vehicle sometime around 7:48 p.m.


Thomas-Hareem, who was called as a witness by Johnson, testified that he and
Hickles witnessed Zimmerman crash her car into the drive-thru speaker as they entered
the Taco Bell. According to Thomas-Hareem, Hickles then walked back outside and it
was Hickles who went to the victim's car and stole her property. Although there is a
discrepancy between the testimony of Thomas-Hareem and Payne, the Taco Bell's
surveillance video bolsters Payne's version of the events on the night of December 29,
2013.



In its brief, the State argues that the prosecutor's statements in his closing
arguments were "merely pointing out for the jury that [Thomas-Hareem's] assertion was
in direct opposition to the evidence captured from [the Taco Bell surveillance camera]."
"The import of [these] statements," the State argues, "is the contradiction in timing [and]
the precise reason why Chris Payne leaned out the window is merely a benign
explanation." We agree.


Although it appears that the prosecutor misspoke regarding Payne hearing the
crash, this was an isolated statement that simply highlighted the fact that Thomas-Hareem
and Payne gave conflicting testimony regarding the timing of events. Indeed, during his
testimony at trial, Thomas-Hareem recognized that "it's his word against mine." Thus, the
fact that there were discrepancies between the testimony of Thomas-Hareem and Payne
was known to jury, and we do not find the misstatement about why Payne leaned out the
drive-thru window rises to the level of prosecutorial error.
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Even if the misstatement by the prosecutor constituted prosecutorial error, we do
not find that it prejudiced Johnson's constitutional right to a fair trial. We evaluate
prejudice using the traditional constitutional harmless error standard of Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). To determine the
harmlessness of an error, we "consider any and all alleged indicators of prejudice, as
argued by the parties, and then determine whether the State has met its burden—i.e.,
shown that there is no reasonable possibility that the error contributed to the verdict."
Sherman, 305 Kan. at 111.


Based on our review of the record, we find no reason to conclude that the
prosecutor's statement prejudiced Johnson's ability to defend himself. The evidence
against Johnson was significant—if not overwhelming—and the prosecutor's
misstatement did not influence the jury's decision to convict Johnson. As previously
noted, surveillance video bolstered Payne's version of the events. Moreover, Saenz
testified that Johnson admitted to her that he had robbed a "[d]umb white bitch" who had
"passed out behind the wheel." She further testified that Johnson later showed her a cell
phone and two rings that he had stolen.


We, therefore, conclude that the State did not commit prosecutorial error during
closing arguments and, even if it did, the alleged error did not prejudice Johnson's
constitutional right to a fair trial.


Criminal History


Finally, Johnson contends the district court violated Apprendi v. New Jersey, 530

U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it enhanced his sentence based
upon his criminal history without first requiring the State to include his prior convictions
in its complaint and to prove those convictions to a jury beyond a reasonable doubt. The
Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan.
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44, 46-48, 41 P.3d 781 (2002). Since then, this state's Supreme Court has reaffirmed
Ivory on multiple occasions. See State v. Williams, 299 Kan. 911, 941, 329 P.3d 400
(2014); State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Fewell, 286
Kan. 370, 394-96, 184 P.3d 903 (2008).



We are required to follow precedent absent some indication that our Supreme

Court is departing from its earlier position. State v. Belone, 51 Kan. App. 2d 179, 211,

343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We find no indication that our Supreme
Court plans to depart from its position set forth in Ivory. Thus, we conclude that the
district court did not violate Apprendi when it used Johnson's criminal history as part of
its sentencing calculations.


Affirmed.