State v. Looney

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NOT DESIGNATED FOR PUBLICATION

No. 117,398

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAMION K. LOONEY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed July 20, 2018.
Affirmed in part, reversed in part, sentence vacated, and remanded with directions.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.

PER CURIAM: Damion K. Looney appeals from a jury verdict finding him guilty
of criminal discharge of a firearm, criminal possession of a firearm, reckless aggravated
battery, and two counts of aggravated assault. We agree that Looney's convictions for
criminal possession of a firearm and for aggravated assault of Wells were improper, and
that Looney must be resentenced. But we otherwise affirm.



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Factual and procedural background

After receiving some bad news, Damion Looney and his fiancé Breeanna Connell
went to a Wichita bar. By the end of the night, each had taken at least ten shots of vodka.
While there, Connell met up with some of her friends, including Quinton Edwards, Sean
O'Neil, Christian Wells, and David McCoy. After an incident in which Looney used
mace in the bar, bouncers kicked Looney out of the bar. Connell followed Looney,
intending to leave with him because he had her purse and phone in his truck, and so he
would not be upset. But the bouncers would not let Connell leave with Looney because
they saw him behaving aggressively and ramming his truck at the wall. Looney left. He
later testified that he wished Connell had gone with him because he had her things and
did not know how she was going to get home.

Some of Connell's friends invited her to go with them to a different bar, and she
did so. She later called Looney and told him that she would not be coming home that
night. Upon hearing this, Looney became upset and got a gun out of his truck with the
intention of shooting himself. He testified that he had the gun to his head but at the last
second pulled the gun away and shot the couch instead. Looney tried calling Connell
several times, but he could not get ahold of her.

While they were out, Connell asked McCoy, Edwards, O'Neil, and Wells to take
her home because she was concerned about Looney. Although they were worried about
the situation, her friends agreed and drove her home. The parties' testimony varies as to
what happened after they dropped Connell off at her home. We summarize the testimony
below.




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Connell's version of events

When Connell got back to the house, she went inside and grabbed a container of
cottage cheese from the refrigerator. As she walked into the living room, she heard a
gunshot. As Connell went to ask Looney why he was using guns and mace, Looney
backed her onto the couch, holding the gun between her eyes. Connell slammed the
container of cottage cheese into Looney's face, grabbed her phone, and ran outside to call
her friends to come back and pick her up. Looney followed her outside and tackled her to
the ground. While they were outside, Connell's friends showed up. Edwards and McCoy
approached Connell and Looney, walking calmly with their hands in the air. Connell was
screaming and warned them that Looney was dangerous and had a gun. Eventually, they
helped Connell get into their car.

Connell and Edwards decided to return to the house to retrieve Connell's dog.
When they were walking up to the house, Edwards saw Looney walking around to the
front of the house, still brandishing his gun. Once they were inside, Edwards locked the
door so that Looney could not come in and took Connell to the basement for her safety.
Looney was yelling and unsuccessfully tried to kick in the door. Looney turned to
McCoy, who was also outside the front door, pointed the gun at him, and told him that he
would shoot him if he did not get the door open. When McCoy was unsuccessful at
opening the front door, Looney hit him in the forehead with the nose of the gun.

After realizing that neither the front nor the side door would open, Looney noticed
Wells and O'Neil waiting in the vehicle parked on the street. Looney approached the
vehicle and pointed the gun at Wells. O'Neil was on the phone with law enforcement.
Looney told them that if anyone called the police, he would shoot everyone. He turned to
O'Neil and told him that he better not be contacting the police, still threatening to shoot.
Looney then ran back toward the house. A bleeding McCoy ran to the vehicle, told them
to leave the area, and then ran back toward the house. O'Neil and Wells heard a gunshot
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as they were pulling away. O'Neill remained on the phone with 911 dispatch, narrating
what he saw and heard.

Looney made it to the side of the house right when Edwards was at the top of the
stairs. Looney yelled for Connell to get out of the house and then fired shots into the
house. A shot hit Edwards in the back of the head, and he fell backwards down the stairs.
Connell heard someone at the door, ran upstairs, and saw McCoy, who called the police.
Edwards survived but has significant long-term effects of his injuries.

Looney's version of events

According to Looney, about an hour after he almost attempted suicide, he saw a
car pull up outside his house, and Connell got out. When Connell entered the house, she
and Looney began arguing. Looney told Connell how upset he had been and that he had
shot the couch instead of himself, but Connell did not believe him. Looney pointed out
that Connell had come home without her engagement ring on. Connell asked for her
phone and went outside, and Looney went into the bathroom and cried.

When Connell came back in the house, the door opened behind her and Edwards
ran into the house and grabbed her, picking her up and carrying her out the front door.
Looney grabbed his gun and ran after them. Looney saw Edwards trying to put Connell in
his car, heard Edwards yell for her to get in the car, and heard Connell yell that she was
not going. Looney testified that he was terrified. He screamed and ran toward Connell as
she broke loose of Edwards. Connell then ran into the house, with Edwards and McCoy
running behind her. Looney pulled out his gun, pointed it at Edwards and McCoy, and
told them to leave.

Connell was also yelling at the men to leave, but Edwards came through the front
door and entered the house. Looney pointed the gun at Edwards and told him to get out,
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but McCoy grabbed Looney from behind, pinning Looney's arms to his side. Looney
fired two shots into the floor to scare McCoy, hoping McCoy would let him go. Instead,
Edwards and McCoy dragged Looney out of the house and locked the front door. Looney
could hear Connell screaming from inside and could see that she was on the floor. He
tried to kick in the door.

McCoy ended up outside the house with Looney. The two got into a fight, and
Looney put the gun to McCoy's head and threatened to shoot him. Instead of shooting
him, Looney hit McCoy on the head with the gun. After the scuffle, Looney ran to the
side of the house, looked through the door, and saw Connell being dragged down the
stairs. When he saw someone coming up the stairs, Looney shot through the side door.
Not aiming at anyone or anything in particular, he shot as an instinctive reaction to
having seen Connell being dragged down the stairs without making a sound. After
shooting, Looney saw Edwards with a bloody face, bleeding from the head.

Looney ran away, put the gun in a tree, spent the night in an alley, and was found
the next day by police.

Looney was tried on one count of criminal discharge of a firearm, three counts of
aggravated battery, two counts of aggravated assault, and one count of criminal
possession of a firearm. The jury found Looney guilty of criminal discharge of a firearm,
reckless aggravated battery of Edwards, both aggravated assault counts, and criminal
possession of a firearm. The jury found him not guilty of the aggravated batteries of
McCoy and Connell. The district court sentenced Looney to 239 months in prison, to run
consecutive to a 12 month jail term. Looney appeals.



6

Was Looney's Texas deferred adjudication properly considered a prior conviction in
Kansas?

We first address Looney's contention that the district court erred in treating his
deferred adjudication from Texas as a conviction in Kansas. First, he argues that the
deferred adjudication cannot satisfy the prior felony requirement of his criminal
possession of a firearm charge. Second, he argues that the district court improperly
classified his prior deferred adjudication as a felony when calculating his criminal history
score. We agree on both counts.

Analysis

The underlying facts of the Texas proceeding are not in dispute. Looney pleaded
guilty to aggravated assault with a deadly weapon in Travis County, Texas. The Texas
district court found a sufficient factual basis for Looney's guilty plea, but the court never
entered a judgment or adjudication of guilt. The Texas district court stated, "the Court [is]
of the opinion that the best interests of society and the defendant will be served in this
cause by deferring further proceedings without entering an adjudication of guilt pursuant
to Article 41.12, Section 5 of the code of Criminal Procedure." Looney received a
deferred judgment with conditions and was placed on Community Supervision for 10
years.

Whether Kansas can consider the deferred adjudication a conviction depends on
how we interpret a Kansas statute. Interpretation of a statute is a question of law over
which we have unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015). The State argues that the plain language of K.S.A. 2017 Supp. 21-5111(d) says
that a conviction includes the acceptance of a guilty plea. But the section provides that
the Kansas definition of conviction "includes a judgment of guilt entered upon a plea of
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guilty." K.S.A. 2017 Supp. 21-5111(d). The State's argument about the statutory language
is therefore unconvincing, as it leaves out the judgment of guilt requirement.

The Kansas Supreme Court has recently reaffirmed that a judgment of guilt is
necessary to meet the statutory definition of a conviction. In State v. Hankins, 304 Kan.
226, 372 P.3d 1124 (2016), the defendant pleaded guilty to an offense and received a
deferred judgment in Oklahoma. He completed the procedure in accordance with
Oklahoma law, resulting in a discharge without a judgment of guilt. After being charged
with several felonies in Kansas, the defendant claimed that the court used an incorrect
criminal history score because it had included the deferred judgment from Oklahoma as a
prior conviction. The Kansas Supreme Court held that the defendant's sentence was
illegal, holding that the Oklahoma deferred conviction could not be considered a
conviction in Kansas because the Oklahoma court had never entered a judgment of guilt
as required in K.S.A. 21-5111(d). 304 Kan. at 233-34.

Although Hankins is factually distinguishable from our case, as the defendant
there had completed his probationary period and Looney had not, that difference is not
vital to Hankins' holding that an entry of guilt is necessary for a prior adjudication to be
considered a conviction in Kansas. 304 Kan. at 235, 238. We are bound by the Kansas
Supreme Court's holding that "under Kansas law, the entry of a judgment of guilt by the
foreign court is necessary to meet this State's definition of a conviction." 304 Kan. at 238.
Establishing a factual basis for a guilty plea is necessary, but insufficient for this purpose.
304 Kan. at 236. We cannot consider Looney's Texas deferred adjudication, which had
no judgment of guilt entered against him, to be a conviction in Kansas.

This error affects Looney's case in two ways. First, it negates an element of his
criminal possession of a firearm charge. K.S.A. 2017 Supp. 21-6304 criminalizes the
possession of a firearm by a person who has been convicted of a felony in Kansas or in
another jurisdiction. The criminal possession of a firearm by a convicted felon is defined
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as possession of a weapon by a person who within the preceding 10 years has been
convicted of aggravated assault with a deadly weapon. K.S.A. 2017 Supp. 21-
6304(a)(3)(A). The State alleged that Looney violated this statute by unlawfully
possessing a handgun when he had been convicted of a felony within the previous 10
years, and relied on Looney's Texas deferred adjudication as that underlying felony. But
because no entry of a judgment of guilt has been shown, Looney's Texas deferred
adjudication cannot meet the Kansas definition of a conviction. Thus, the State cannot
prove the required elements of this felon in possession statute. As a result, the district
court erred in denying Looney's motion to dismiss the criminal possession of a firearm
charge, and we must reverse this conviction.

Second, this error affects Looney's criminal history score. "[T]he sentencing
guidelines for criminal defendants [from the Kansas Sentencing Guidelines Act] are
generally based upon two factors: the crime severity ranking of the current crime of
conviction and the criminal history classification of the defendant." State v. Neel, 292
Kan. 625, 630-31, 258 P.3d 365 (2011); K.S.A. 2017 Supp. 21-6803, 6804. Kansas courts
use all prior felony convictions to determine an offender's criminal history classification,
including an offender's out of state convictions and juvenile adjudications. K.S.A. 2017
Supp. 21-6811(e). The district court counted Looney's Texas deferred adjudication as a
prior conviction. But because Looney's deferred adjudication does not meet the Kansas
definition for a conviction, we cannot use his deferred adjudication in calculating his
criminal history score. We must remand for resentencing.

Does sufficient evidence support Looney's conviction of aggravated assault of Christian
Wells?

We next consider Looney's argument that the State did not present sufficient
evidence of aggravated assault of Wells because it failed to prove Wells had any
apprehension of immediate bodily harm. Again, we agree.
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Standard of review

When evaluating whether a conviction is supported by sufficient evidence, we
review all the evidence in the light most favorable to the State. We will uphold the
conviction if we are convinced that a rational fact-finder could have found the defendant
guilty beyond a reasonable doubt based on that evidence. State v. Laborde, 303 Kan. 1, 6,
360 P.3d 1080 (2015). In determining whether sufficient evidence supports a conviction,
we will not reweigh the evidence or the credibility of witnesses. State v. Daws, 303 Kan.
785, 789, 368 P.3d 1074 (2016).

Analysis

The aggravated assault charge was based on the following event. On the night of
the incident, Wells was driving the car, O'Neil was in the passenger seat, and McCoy and
Edwards were inside the house with Connell. Wells was parked in front of Looney's
house when Looney ran up to the car with his gun. Looney held the gun up to Wells' head
or chest and told him to drive away. He continued yelling at Wells and O'Neil,
threatening to shoot them if they called the police and did not leave. Looney then
returned to the house. After McCoy came out of the house and told them to leave, Wells
drove away.

To sustain a conviction for this aggravated assault, the State had to prove that
Looney used a deadly weapon to knowingly place Wells in reasonable apprehension of
immediate bodily harm. K.S.A. 2017 Supp. 21-5412(b)(1). "[A]ggravated assault is based
on both a subjective apprehension by the victim, i.e., whether the victim had an
apprehension of immediate bodily harm, as well as an objective determination that the
apprehension was reasonable." State v. Angle, No. 116,152, 2017 WL 4216161, at *3
(Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 988 (2018). Both are
necessary. Since the legislature added the reasonableness requirement, our courts have
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addressed the objective reasonableness of a victim's fear. See State v. Bulk, No. 114,462,
2016 WL 7494359, at *5-6 (Kan. App. 2016) (unpublished opinion), rev. denied 306
Kan. 1321 (2017). But the statute continues to require a subjective fear as well. Without
some evidence that the victim had a subjective apprehension of imminent bodily harm,
the court cannot determine whether that apprehension was reasonable.

We find no evidence that Wells subjectively apprehended imminent bodily harm,
either through his testimony about how he felt or through his actions during and
immediately following the incident. Instead, Wells testified that he was not afraid that
Looney was going to shoot him, and he did not testify that he feared any other type of
injury. The State acknowledges that Wells' testimony shows no apprehension of
imminent bodily harm.

The State argues, instead, that the jury could reasonably infer that a victim had the
necessary fear by the victim's actions and reactions at the scene. State v. Lessley, 271
Kan. 780, 790, 26 P.3d 620 (2001). This is a valid legal proposition, but the facts do not
support its application here. Wells did not drive away when Looney approached the
vehicle brandishing his weapon, when Looney threatened to shoot the passenger, or even
when Looney returned to the house. Instead, Wells did not drive away until after Looney
returned to the house and McCoy came out and told them to leave. Then, when Wells did
drive away, O'Neil testified that he did so "very slowly." Wells' acts do not reflect that he
feared imminent bodily harm.

This is not a case in which a victim denies feeling afraid, but his or her actions
contradict that testimony. See Lessley, 271 Kan. at 788; State v. Carrell, No. 101,176,
2010 WL 2545637, at *4-5 (Kan. App. 2010) (unpublished opinion). Instead, this case is
most like State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974), in which the victim
denied that she was afraid, denied that she thought the defendant would harm her, and
showed no indication of fear. The Kansas Supreme Court held: "In the face of positive
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testimony such as this we cannot say, as urged by the district attorney, that the
circumstances were such that, as a matter of law, [the victim] had fear for herself." 215
Kan. at 538. The same is true here.

Because insufficient evidence supports Looney's conviction of aggravated assault
of Wells, we must reverse that conviction.

Did the district court err by not instructing the jury on self-defense for the charges of
aggravated assault?

Looney claims that the district court erred by failing to instruct the jury on self-
defense for the charges of aggravated assault. The incident underlying these charges
occurred when Looney ran to the car and threatened O'Neil and Wells with a gun, as
discussed above.

At most trials, a self-defense or defense of others instruction is not tied to specific
charges. But here it was. Instruction 20 told the jury that Looney raises "use of force in
defense of a person as a defense." Instruction 21 told the jury that Looney claims "his use
of force was permitted as the defense of Breeanna Connell in count two, and as self-
defense in count three," and then explained the defense. Count II charged aggravated
battery of Edwards, and Count III charged aggravated battery of McCoy. Thus the
instructions limited the jury's consideration of this defense to the aggravated battery
charges.

Standard of review

We follow a three step process when analyzing jury instruction issues. First, we
determine if Looney preserved this issue for review. Second, we determine whether error
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occurred. Third, we determine whether any error was harmless. State v. Pfannenstiel, 302
Kan. 747, 752, 357 P.3d 877 (2015).

Analysis

Aggravated assault charges

Looney argues that the district court erred in denying his request to instruct the
jury on self-defense for the aggravated assault charges. This issue is properly preserved,
as Looney requested the self-defense instruction on this charge and objected when the
district court declined to give it.

We thus determine whether the instruction would have been legally and factually
appropriate. An instruction is legally appropriate when the instruction fairly and
accurately states the applicable law. When determining whether an instruction is legally
appropriate, our review is unlimited. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202
(2012). An instruction is factually appropriate when sufficient evidence, viewed in the
light most favorable to the requesting party, supports a factual basis for the instruction. In
this analysis, we do not reweigh the evidence or redetermine issues of credibility. 295
Kan. at 161-62.

A defendant is entitled to an instruction on an affirmative defense that is supported
by competent evidence. Competent evidence is that which could allow a rational fact-
finder reasonably to conclude that the defense applies. K.S.A. 2017 Supp. 21-5108(c).
The right to use force in self-defense is codified in K.S.A. 2017 Supp. 21-5222(a):

"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
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force is necessary to defend such person or a third person against such other's imminent
use of unlawful force."

This statute presents a two-pronged self-defense test. The first test is subjective
and requires a showing that the defendant sincerely and honestly believed it was
necessary to kill to defend himself. State v. McCullough, 293 Kan. 970, 975, 270 P.3d
1142 (2012). A defendant's own assertions may be enough to establish this factor. State v.
Walters, 284 Kan. 1, 9, 159 P.3d 174 (2007). The second prong is objective and requires
a showing that a reasonable person in the defendant's circumstances would have
perceived the use of deadly force in self-defense as necessary. McCullough, 293 Kan. at
975.

Even if Looney could meet the subjective prong of this test by virtue of his own
assertions, he cannot meet its objective prong—a reasonable person in Looney's
circumstances would not have thought deadly force was necessary to defend himself from
Wells or O'Neil's imminent use of unlawful force. Looney's assertion that he went out to
the car with a loaded weapon because he thought the two men in the car posed additional
threats to him, is not reasonable. Nothing shows that Wells or O'Neil used unlawful force,
were armed, threatened to harm Looney, or intended to enter Looney's house. The two
men never left the car or approached the house. Although Wells and O'Neil were
associated with McCoy and Edwards, neither had interacted with Looney whatsoever
before he ran up to their car armed with a gun. And once Looney got to the car, he
seemed to initiate the conflict rather than react in self-defense. He threatened Wells and
O'Neil at gunpoint to leave and warned them he would shoot them if they contacted law
enforcement. A reasonable person in Looney's circumstances would likely not have
believed it necessary to grab a weapon and run to a car containing two unarmed and
relatively uninvolved men.

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A self-defense instruction was not factually appropriate. Thus, the district court
did not err in refusing to give a self-defense instruction with respect to the aggravated
assault charges.

Did the district court commit clear error by not instructing the jury on defense of others
for the criminal discharge of a firearm charge?

Looney also contends that the district court committed reversible error by failing
to instruct the jury on the defense of others for the criminal discharge of a firearm charge.
That statute defines unlawful discharge of a firearm as "the reckless discharge of a
firearm within or into the corporate limits of any city." K.S.A. 2017 Supp. 21-6308a(a).
But the statute then provides that the prohibition does not apply if "[t]he firearm is
discharged in the lawful defense of one's person, another person or one's property."
K.S.A. 2017 Supp. 21-6308a(b)(1). Looney claims that he discharged his firearm into his
house in the city limits in lawful defense of Connell. Thus, the jury had to consider this
defense in relation to this charge.

But Looney did not request this instruction at trial. Because Looney brings this
claim for the first time on appeal, he must show that clear error occurred without the
instruction. K.S.A. 2017 Supp. 22-3414(3). To establish clear error, "'the defendant must
firmly convince the appellate court that the giving of the instruction would have made a
difference in the verdict.' [Citation omitted.]" State v. Cooper, 303 Kan. 764, 771, 366
P.3d 232 (2016).

Analysis

Even assuming that giving this instruction would have been factually and legally
appropriate, we find that Looney cannot show that giving it would have made any
difference in the verdict. The criminal discharge of a firearm charge arose from Looney's
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firing of his gun into his house and shooting Edwards. Although the jury was not
instructed on the defense of others as to the criminal discharge of a firearm charge, it was
instructed on the defense of others as to the aggravated battery charge involving Edwards,
which occurred when Looney shot Edwards, upon discharging his firearm. The jury was
not persuaded by that defense. Instead, the jury found Looney guilty of reckless
aggravated battery even though it was specifically instructed to consider Looney's
defense of others claim as to that charge. We thus have no reason to believe that the jury
would have acquitted Looney of reckless discharge of a firearm based on Looney's
defense of others claim, had it been permitted to do so. Such a result would have been
inconsistent with the jury's rejection of that defense on the charge of aggravated battery
of Edwards.

Did the district court violate Looney's Sixth and Fourteenth Amendment rights by using
his criminal history score to increase his sentence?

Finally, Looney argues that the district court violated his constitutional rights by
using his prior criminal history to increase his sentence, citing Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Looney acknowledges that the
Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 46-48, 41
P.3d 781 (2002), but he raises the issue to preserve it for federal review.

Our Supreme Court recently reaffirmed Ivory in State v. Scuderi, 306 Kan. 1267,
1268, 403 P.3d 1206 (2017). We are duty bound to follow Kansas Supreme Court
precedent absent some indication that the court is departing from its earlier position. See
State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Since there is no
indication our Supreme Court is departing from Ivory, we conclude that the district court
did not violate Apprendi in sentencing Looney.

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We reverse Looney's convictions for criminal possession of a firearm and for
aggravated assault of Wells. We remand for resentencing without consideration of
Looney's Texas deferred adjudication for aggravated assault with a deadly weapon. We
affirm in all other respects.