State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 112,894

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHARON JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed February 12,
2016. Affirmed.

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

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

Per Curiam: Sharon Jones appeals her jury trial conviction for aggravated
robbery, theft, and aggravated battery. On appeal, Jones claims the district court
committed two errors: (1) By answering a jury question in her absence, and (2) by using
a jury instruction involving eyewitness identification no longer approved by our Supreme
Court. Our review reflects that in the light of recent caselaw, the district court did err in
proceeding to answer the jury question in Jones' absence, but it was harmless. As to her
second issue, Jones requested the district court instruct on the degree of certainty factor in
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the eyewitness instruction, thereby inviting the error, and is now barred from complaining
on appeal. Affirmed.

FACTS

On March 8, 2010, Stephanie Battisti was in the Walmart parking lot loading
groceries into her car when Laneshia Williams jumped out of the Suburban she was
driving and grabbed Battisti's purse. Williams returned to the back seat of the vehicle and
Battisti gave chase. Battisti jumped on the running board of the Suburban and struggled
with Williams to get her purse back. Another woman sitting in the passenger seat slid into
the driver's seat and started driving the vehicle. The woman had a ponytail and was
wearing a coat. Shortly thereafter, the vehicle reversed, accelerated, and braked suddenly,
throwing Battisti from the vehicle. Battisti attempted to chase the vehicle on foot, but was
unable to catch the vehicle or get a license plate number.

When police arrived, Battisti told the officer what had happened and then went
home. Approximately 45 minutes after the theft, an officer arrived at Battisti's house and
took her to a traffic stop. The officer told her "they may have found the people who stole
[your] purse." At the scene, Battisti identified Williams as her assailant and Sharon Jones
as the vehicle's driver. Battisti identified Jones based solely on her ponytail and jacket.
Officers recovered some of Battisti's property from the vehicle. Jones was charged with
aggravated robbery, theft, and aggravated battery.

At trial, Battisti testified she was certain Jones was involved. During jury
deliberations, the jury submitted a question asking to review Jones' counsel's closing
argument. After contacting the prosecutor and Jones' counsel, the district court
determined the jury could not review the closing argument. Jones was not present during
this discussion. The district court provided a written response to the jury indicating it
could not review the defendant's closing argument.
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Jones filed a motion for new trial and a motion for judgment of acquittal. The
district court denied both motions. Jones timely appeals her conviction claiming it was
error for the district court to answer the jury's question without her being present, and the
district court erred by including the degree of certainty factor in the eyewitness
identification jury instructions.

ANALYSIS

Determining the answer to a jury question outside of Jones' presence was harmless error.

Failure to answer a jury question in the defendant's presence in open court is
reviewed under the federal constitutional harmless error standard. State v. King, 297 Kan.
955, 967-68, 305 P.3d 641 (2013).

Because the answer occurred outside Jones' presence, the error infringes upon her
federal constitutional right. A court will declare a constitutional error harmless only when
the party benefitting from the error persuades the court "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., proves there is no reasonable possibility that the error affected the
verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594 (2012) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705,
reh. denied 386 U.S. 987 [1967]). To determine whether the failure to answer a jury
question in the defendant's presence is harmless beyond a reasonable doubt, we consider:

"(1) the overall strength of the case against the defendant; (2) whether either party
objected to the manner in which the judge handled the communication; (3) whether the
judge's communication with the jury "concerned a critical aspect of the trial or rather
involved an innocuous and insignificant matter," and also how the communication was
conveyed to the jury; and (4) the ability of any posttrial remedy to "mitigate the
constitutional error." State v. Bolze-Sann, 302 Kan. 198, 216-17, 352 P.3d 511 (2015)
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Here, the district court's failure to answer the jury's question in Jones' presence
was clearly harmless. First, a reasonable jury could have convicted Jones based on the
evidence presented. Indeed, a reasonable jury did convict her. However, the State's case
relied heavily on the victim's identification of Jones. In her closing argument, Jones'
counsel stressed the inconsistencies in the victim's identification of Jones. The jury
wanted to hear the closing argument of her attorney again. Since the jury could have
concluded the victim misidentified Jones, this factor weighs in favor of Jones.

Secondly, Jones' attorney failed to timely object to the way in which the district
court handled the matter. Jones argues this factor should weigh in her favor because she
was unable to voice an objection since she was not there. In Bolze-Sann, the jury sent a
note to the district court questioning whether there were any alternate meanings for
"killed." The district court, the State, and Bolze-Sann's attorney conferred, but the record
was unclear whether Bolze-Sann was present. The Kansas Supreme Court presumed
Bolze-Sann was not present, but found her attorney's failure to object to her lack of
presence weighed against her in the harmless error analysis. Bolze-Sann, 302 Kan. at 217.
Here, not only did Jones' counsel not object, she specifically informed the district court
not to wait for Jones since it was obvious the jury would not be allowed to hear the
closing argument again. This factor weighs against Jones.

Third, though the judge's communication with the jury concerned a critical aspect
of the trial and was written instead of given in open court, the content of the
communication was innocuous and insignificant. Jones argues she has a constitutional
right to present a closing argument. She exercised this right.

K.S.A. 22-3420(3), the statute in effect at the time of trial, read:

"After the jury has retired for deliberation, if they desire to be informed as to any part of
the law or evidence arising in the case, they may request the officer to conduct them to
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the court, where the information on the point of the law shall be given, or the evidence
shall be read or exhibited to them in the presence of the defendant." (Emphasis added.)

However, closing arguments are not evidence. See State v. Hall, 292 Kan. 841,
846, 257 P.3d 272 (2011). Here, the jury asked the district court if it could review defense
counsel's closing statements. Closing arguments are not evidence and the jury was not
entitled to rehear defense counsel's closing argument. Since the jury was not entitled to
have the closing argument presented to them a second time, the communication with the
jury was innocuous and insignificant and the outcome would not have changed had Jones
been present. Thus, this factor weighs against Jones.

Finally, despite filing both a motion for a new trial and a motion for acquittal,
Jones did not seek posttrial relief based on the error. This factor likewise weighs against
Jones.

Our analysis reflects three of the four factors set forth in Bolze-Sann in
determining whether the error was harmless weighed against her. 302 Kan. at 216-17.
There is no reasonable possibility the district court's error affected the verdict because,
even if Jones had been present, the answer to the jury would have been the same. Thus,
the error had no impact on the jury verdict and was harmless.

Invited Error

During the instruction phase of the trial, the district court instructed the jury it
could consider a witness' degree of certainty expressed when assessing the credibility of
his or her eyewitness testimony. In State v. Mitchell, 294 Kan. 469, 481, 275 P.3d 905
(2012), the Kansas Supreme Court disapproved of the degree of certainty factor because
it "prompts the jury to conclude that an eyewitness identification is more reliable when
the witness expresses greater certainty, which places undue weight on eyewitness
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certainty evidence." At the time of Jones' jury trial, the eyewitness instruction given had
previously been approved by our Supreme Court. See State v. Hunt, 275 Kan. 811, 815,
69 P.3d 571 (2003). This prior approval was withdrawn in Mitchell, which occurred more
than 1 year after the jury convicted Jones. On appeal, Jones now argues the district court
erred when it gave the eyewitness identification instruction containing the degree of
certainty factor, even though she requested it.

A defendant may not invite error and then complain of the error on appeal. State v.
Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014). Jones proposed the jury instruction she
now complains of on appeal. Her proposed instruction packet submitted to the district
court contains the degree of certainty language. Likewise, Jones failed to object to the
instruction during the instruction conference or when it was read to the jury. Because
Jones specifically requested the eyewitness identification instruction containing the
degree of certainty factor, she invited the error she complains of on appeal.

Relying on State v. Brammer, 301 Kan. 333, 343 P.3d 75 (2015), Jones argues
"the only relevant time for a party's input into the instructions is the instruction
conference. Any action taken prior to that is irrelevant for the purposes of challenging the
district court's actions on appeal." Jones' argument misconstrues the Kansas Supreme
Court's holding. Instead, Brammer held that simply submitting a proposed instruction was
insufficient to preserve the district court's failure to give a requested instruction for
appeal. 301 Kan. at 341.

Further, Brammer is distinguishable in that the issue was whether the defendant
preserved a jury instruction challenge for appeal. The district court did not incorporate all
of Brammer's proposed instructions into its draft jury instructions. At the instruction
conference, the district court asked if either party requested any other instructions.
Brammer said no. He did not re-offer the proposed instructions or object to the
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instructions' exclusion. The Kansas Supreme Court held this was insufficient to preserve
the requested instructions for appeal. 301 Kan. at 341.

Here, Jones proposed the eyewitness instruction including the degree of certainty
factor. The district court gave the proposed instruction as requested by Jones verbatim.
The issue is not whether Jones preserved the issue for appeal, but whether she invited the
error. Thus, the holding in Brammer, which only applies to the preservation of jury
instruction challenges, is inapplicable. Since Jones invited the error, her claim on appeal
is without merit.

Affirmed.