State v. Lynn

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NOT DESIGNATED FOR PUBLICATION

No. 120,285


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASON MICHAEL LYNN,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed November 15, 2019.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., BRUNS, J., and WALKER, S.J.

PER CURIAM: A jury convicted Jason Michael Lynn of numerous crimes. Lynn
appeals a single aggravated battery conviction, arguing that insufficient evidence
supported that conviction. He also argues that the trial court wrongly classified his
previous New Jersey conviction for "promoting prostitution" as a felony offense for
criminal history purposes. Because neither of Lynn's arguments are persuasive, we
affirm.

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A jury convicted Lynn of one count of criminal restraint, one count of aggravated
intimidation of a witness, two counts of aggravated battery, two counts of battery, three
counts of aggravated assault, three counts of criminal threat, and three counts of domestic
battery. Lynn committed the crimes against his then-girlfriend, H.R., H.R.'s roommate,
L.H., and L.H.'s ex-boyfriend, B.S. On appeal, however, Lynn challenges the sufficiency
of the evidence supporting his first aggravated battery conviction alone. The facts
surrounding his first aggravated battery conviction presented at trial were as follows:

On May 31, 2017, Lynn accused H.R. of cheating on him with another man.
According to H.R., after she denied cheating on Lynn, Lynn hit her in the head. Lynn
then "forcefully pushed [her] against the wall," "put[ting] both hands around [her] neck[,]
kind of . . . pinn[ing her] up against the wall." H.R. explained that although she did not
lose consciousness, things "[got] a little blurry." She asserted that although it felt "like 30
minutes" when Lynn had his hands around her neck, she guessed it was "probably about
two or three seconds." H.R. explained that after Lynn released her neck from his grip, he
prevented her from leaving the room they were in. Lynn later hit H.R. in the back and the
head. He also told H.R., "Bitch, I will kill you."

On cross-examination, when asked whether Lynn gripped his hands around her
neck tight, H.R. stated, "Not super tight, but there was pressure. I mean—." H.R. also
admitted during cross-examination that she did not suffer physical injuries from Lynn
"put[ting] his hands around [her] neck."

Lynn testified on his own behalf. Lynn admitted that he had been drinking "quite a
lot" before he accused H.R. of cheating on him. Lynn and his attorney had the following
exchange about when Lynn "grab[bed H.R.]" during their "little argument."

"[Lynn]: . . . And when I grab her, I kind of grab her like this, and like up on the
bed type [sic], because our bed's a little bit higher. So I kind of grabbed her like that, kind
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of pushed her on the bed. And I realized—I backed up a little bit. I said, [l]isten, I need to
know what's going on, you know, tell me the truth, like, don't—
"[Defense counsel]: Okay.
"[Lynn]: Okay.
"[Defense counsel]: Tell me how—you said you grabbed her. Did you grab her
around the shoulders?
"[Lynn]: I grabbed her, like, right up in here, like if you were to grab somebody
and you would—I mean—
. . . .
"[Defense counsel]: You're pointing to the top part of your chest?
"[Lynn:] Top part of my chest, neck area, like, I was just kind of grabbing her,
like, pushing her upwards.
. . . .
"[Defense counsel]: All right. Let me stop you there. Did you squeeze her neck
or chest area at that time?
"[Lynn]: To be honest, I mean, I didn't strangle the girl, no. I didn't squeeze—I
mean, like I said, I grabbed up in here.
"[Defense counsel]: Okay. All right.
"[Lynn]: I didn't squeeze nobody's neck like this. I didn't grab her neck in a way
to cut her circulation off. But, I mean, if you want to call it, like, just kind of grabbing
somebody, I mean, I don't know how to explain it. I didn't strangle nobody. I didn't—I
mean, I did grab her around her neck area and push her back on the bed, yes, I did do
that."

At sentencing, Lynn challenged the inclusion of his New Jersey "promoting
prostitution" conviction in his criminal history as an adult person felony. The State
argued that the trial court could consider Lynn's promoting prostitution conviction as a
person felony based on State v. Rodriguez, No. 117,297, 2018 WL 1973455 (Kan. App.
2018) (unpublished opinion), which involved whether the court could consider a different
New Jersey crime a person felony for criminal history purposes. In the end, the trial court
determined that Lynn's New Jersey conviction for promoting prostitution should be
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considered a nonperson felony for criminal history purposes. This resulted in lowering
Lynn's criminal history score from B to C.

Next, the trial court ruled that Lynn's convictions of misdemeanor battery for
hitting H.R. in the head and misdemeanor domestic battery for hitting H.R. in the back
and the head merged into his aggravated battery conviction for grabbing H.R.'s neck. The
trial court sentenced Lynn to a controlling term of 76 months' imprisonment followed by
24 months' postrelease supervision.

Lynn timely appealed.

Does Sufficient Evidence Support Lynn's Aggravated Battery Conviction?

Lynn argues that insufficient evidence supported his aggravated battery conviction
because "a 'bit of pressure' [on H.R.'s neck] for 2 or 3 seconds" could not cause great
bodily harm or death as required to commit an aggravated battery. He asserts that the
contact between him and H.R. had to be "of greater duration" to constitute an aggravated
battery. He further asserts that "'[a] bit of pressure' could be the result of a mere touching
of another person." Lynn contends that "[i]f the acts of striking [H.R.] in the head were
simple batteries, then [his] act of putting his hands on [H.R.'s] neck should also be
considered a simple battery." Last, Lynn stresses that since he committed his crimes, the
Legislature has created the crime of "aggravated domestic battery," which makes it a
felony for persons in a dating relationship to choke one another. See K.S.A. 2018 Supp.
21-5414(b)(1). Lynn argues that the plain language of the new aggravated domestic
battery statute establishes that a person cannot commit an aggravated battery by grabbing
another person's neck without impeding the other person's breathing or blood circulation.

The State responds that based on prior caselaw, it is readily apparent that sufficient
evidence supported Lynn's aggravated battery conviction.
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An appellate court will find that sufficient evidence supported a defendant's
conviction if, after reviewing all the evidence in the light most favorable to the State, the
court believes that a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). An
appellate court will reverse a defendant's conviction based on sufficiency of the evidence
only in the rare cases where the testimony supporting the conviction is too incredible to
be believed by a rational fact-finder. See State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945
(1983).

The jury convicted Lynn of aggravated battery under K.S.A. 2016 Supp. 21-
5413(b)(1)(B), which states: "Aggravated battery is: . . . knowingly causing bodily harm
to another person . . . in any manner whereby great bodily harm . . . or death can be
inflicted." K.S.A. 2016 Supp. 21-5413(b)(1)(B) "does not require the State to prove great
bodily harm or disfigurement was inflicted, only that it could have been inflicted."
(Emphasis added.) State v. Morton, 38 Kan. App. 2d 967, Syl. ¶ 4, 174 P.3d 904 (2008).
Great bodily harm required to commit an aggravated battery differs from the bodily harm
required to commit a simple battery because great bodily harm does not include "slight,
trivial, minor or moderate harm, . . . [like] mere bruises." State v. Dubish, 234 Kan. 708,
715, 675 P.2d 877 (1984). Yet, what act may cause great bodily harm or death under
K.S.A. 2016 Supp. 21-5413(b)(1)(B) is a jury question. State v. Simmons, 295 Kan. 171,
177, 283 P.3d 212 (2012); Morton, 38 Kan. App. 2d at 972.

In the past, our Supreme Court has held that "[s]trangulation can result in great
bodily harm or death." State v. Williams, 308 Kan. 1439, 1458, 430 P.3d 448 (2018).
Moreover, this court has recognized that "[c]hoking, in general, can result in death." State
v. Curreri, 42 Kan. App. 2d 460, 465, 213 P.3d 1084 (2009), rev. denied 290 Kan. 1097
(2010).

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In his brief, Lynn focuses on the new aggravated domestic battery law to argue
that a defendant cannot commit an aggravated battery by grabbing the victim's neck
unless the defendant also impeded the victim's breathing and blood circulation. To be
sure, this court has upheld aggravated battery convictions when evidence supported that
the victims could not breathe. For example, in State v. Tisdale, 30 Kan. App. 2d 524, 525,
43 P.3d 835 (2002), this court rejected Tisdale's argument that insufficient evidence
supported his aggravated battery conviction because the victim blacked out twice while
he had his hands around the victim's throat. This court determined that the victim's lack
of bruising around her neck was irrelevant. 30 Kan. App. 2d at 525-26. In State v. Hill,
No. 116,788, 2018 WL 4656168, at *4 (Kan. App. 2018) (unpublished opinion), this
court rejected Hill's argument that insufficient evidence supported his aggravated battery
conviction because he choked the victim to the point she was unable to breath.

Yet, because evidence in this case supports that Lynn impeded H.R.'s breathing,
we need not decide whether a defendant must impede the victim's breathing or circulation
to commit the crime of aggravated battery. Although Lynn testified that he never
strangled H.R., the act of grabbing another person's neck and exerting pressure upwards
is consistent with strangling or choking. Moreover, Lynn testified that he "grab[bed H.R.]
around her neck area and push[ed] her back on the bed." The word "grab" means "to seize
or snatch suddenly; take roughly and quickly." Webster's New World College Dictionary
627 (5th ed. 2014). Accordingly, by using the word "grab," Lynn recognized that he
seized H.R.'s neck suddenly and roughly. Moreover, a rational fact-finder could deduce
that the act of grabbing a person's neck with both hands while also "pushing . . . upwards"
could result in substantial force being placed on the neck. Indeed, Lynn seemingly
recognized that he had placed substantial force on H.R.'s neck when he testified that after
he "pushed [H.R.] on the bed," "I realized—I backed up a little bit."

Meanwhile, although H.R. testified that Lynn's hands were "[n]ot super tight"
around her neck, she also testified that Lynn exerted pressure to the point that her vision
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became blurry. Rational fact-finders could use their common knowledge and experience
to deduce that H.R.'s vision became blurry because H.R. was beginning to black out. In
other words, Lynn impeded H.R.'s breathing and blood circulation. Further, the trial court
provided the jury with an instruction stating that the jury could use its "common
knowledge and experience" when considering witness testimony. See PIK Crim. 4th
50.020 (2014 Supp.). Thus, despite Lynn's argument to the contrary, evidence supported
that Lynn impeded H.R.'s breathing and blood circulation.

Moreover, Lynn's arguments ignore the circumstantial evidence supporting that he
intended to cause H.R. great bodily harm or death. For example, Lynn hit H.R. multiple
times. He told H.R. he was going to kill her. He also threatened H.R. with a kitchen knife.
In short, Lynn's other violent acts provided the jury with a reasonable inference that Lynn
desired to cause H.R. great bodily harm or death when he grabbed her by the neck. See
State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016) (holding that a verdict may be
supported by circumstantial evidence).

Next, Lynn's argument that he could not have committed an aggravated battery
because his "physical contact [with H.R. needed to be] of greater duration" ignores that
K.S.A. 2016 Supp. 21-5413(b)(1)(B) includes no time requirement. A person may violate
K.S.A. 2016 Supp. 21-5413(b)(1)(B) in an instant if, in that instant, the person engages in
an act that could result in great bodily harm or death. Thus, whether evidence supports
that the defendant knowingly caused bodily harm in a manner that could result in great
bodily harm or disfigurement is key in determining whether sufficient evidence supports
a defendant's conviction. As addressed in the preceding paragraphs, here, evidence
supported that Lynn could have caused H.R. great bodily harm or death when he seized
her neck to the point her vision began to blur. As a result, Lynn's argument is
unpersuasive.

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Lynn's argument comparing his aggravated battery conviction to his simple battery
convictions is similarly unpersuasive. Lynn notes that he was charged and convicted of
simple batteries for hitting H.R. in the head and aggravated battery for grabbing H.R.'s
neck. Yet, Lynn contends that hitting H.R. in the head and grabbing H.R.'s neck were
similar criminal acts. Thus, Lynn argues that he should have been charged with the same
crime for both acts.

In making his argument, however, Lynn ignores the appellate precedent
supporting that strangling or choking somebody may constitute an aggravated battery.
Williams, 308 Kan. at 1458; Curreri, 42 Kan. App. 2d at 465. Lynn ignores the specific
facts of his case establishing that he could have caused great bodily harm or death when
choking H.R. to the point her vision began to blur from a lack of oxygen. Simply put, the
facts surrounding Lynn's simple battery crimes are irrelevant as long as sufficient
evidence indicated that Lynn intended to cause great bodily harm or death by grabbing
H.R.'s neck. Lynn also ignores that the trial court provided the jury with an instruction on
simple battery as a lesser included offense of aggravated battery. But the jury found Lynn
guilty of aggravated battery. Thus, the jury considered Lynn's contention that grabbing
H.R. by the neck constituted a simple battery and rejected it.

In summary, none of Lynn's arguments about why insufficient evidence supports
his aggravated battery conviction are persuasive. In the light most favorable to the State,
a rational fact-finder could have found Lynn guilty beyond a reasonable doubt for
aggravated battery based on his act of grabbing H.R. by the throat. As a result, we affirm
his conviction.

Does Lynn Have an Illegal Sentence?

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Appellate courts have unlimited review when considering whether a sentence is
illegal as meant under K.S.A. 22-3504. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415
(2016).

When Lynn committed his crimes, K.S.A. 2016 Supp. 21-6811(e)(2) provided as
follows:

"An out-of-state crime will be classified as either a felony or a misdemeanor
according to the convicting jurisdiction:
(A) If a crime is a felony in another state, it will be counted as a felony in
Kansas.
(B) If a crime is a misdemeanor in another state, the state of Kansas shall refer to
the comparable offense in order to classify the out-of-state crime as a class A, B or C
misdemeanor. If the comparable misdemeanor crime in the state of Kansas is a felony,
the out-of-state crime shall be classified as a class A misdemeanor. If the state of Kansas
does not have a comparable crime, the out-of-state crime shall not be used in classifying
the offender's criminal history."

Lynn argues that the trial court should not have classified his New Jersey
conviction for promoting prostitution as a felony for criminal history purposes. Lynn
contends that New Jersey handled his conviction for promoting prostitution the same way
Kansas handles misdemeanor offenses. Particularly, Lynn stresses that after he violated
his probation, he spent less than a year in county jail for his promoting prostitution
conviction.

Even so, there are two problems with Lynn's argument. First, Lynn's argument
about how the trial court scored his promoting prostitution conviction for criminal history
purposes is moot. Appellate courts do not decide moot questions or make advisory
opinions. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012). In this case, it is
readily apparent that Lynn's argument is moot because even if we scored his promoting
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prostitution conviction as a nonperson misdemeanor, as he argues, Lynn would still have
a criminal history score of C.

Moreover, if we rejected Lynn's argument and counted Lynn's promoting
prostitution conviction as a nonperson felony for criminal history purposes, Lynn would
have a criminal history score of C. And if we assumed for argument's sake that Lynn's
promoting prostitution conviction constituted a nonperson misdemeanor for criminal
history purposes, Lynn would still have a criminal history score of C. Under K.S.A. 2016
Supp. 21-6804(a), defendants with one person felony and one nonperson felony receive a
criminal history score of C. Once a defendant has achieved a criminal history score of C,
only the commission of additional person felonies would result in a defendant achieving
a higher criminal history score. Thus, so long as a defendant with a criminal history score
of C does not commit a new person felony, that defendant may commit an infinite
amount of nonperson felonies and still keep a criminal history score of C.

Here, even if we excluded Lynn's promoting prostitution conviction from his
criminal history entirely, Lynn's criminal history includes one person felony and two
nonperson felonies. Because the trial court already determined that Lynn's promoting
prostitution conviction was a nonperson crime, and no party challenges the classification
of Lynn's promoting prostitution conviction as a nonperson crime, classification of
Lynn's promoting prostitution conviction as a nonperson misdemeanor offense would
have no effect on Lynn's criminal history score. For this reason, Lynn's criminal history
score challenge is moot.

Notwithstanding the preceding, the trial court correctly determined that Lynn's
New Jersey conviction for promoting prostitution constitutes a felony for criminal history
purposes. In his brief, Lynn argues that because the trial court in his New Jersey
promoting prostitution case sentenced him to under a year in jail after he violated his
probation, his crime is comparable to a Kansas misdemeanor. But K.S.A. 2016 Supp. 21-
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6811(e)(2) requires courts to look to the convicting jurisdiction to determine whether a
crime should be classified as a felony or misdemeanor.

New Jersey's promoting prostitution statute—N.J. Stat. Ann. § 2C: 34-1—
constitutes a crime of the second or third degree. "In the case of a crime of the third
degree," trial courts may sentence a defendant "for a specific term of years which shall be
fixed by the court and shall be between three years and five years." N.J. Stat. Ann.
§ 2C:43-6a.(13). "In the case of a crime of the second degree," trial courts may sentence a
defendant "for a specific term of years which shall be fixed by the court and shall be
between five years and 10 years." N.J. Stat. Ann. § 2C:43-6a.(2).

New Jersey has never classified its crimes as felonies and misdemeanors. Initially,
the state classified crimes as misdemeanors and high misdemeanors. Later, the state also
adopted statutes that classified crimes as either first-, second-, third-, or fourth-degree
crimes. See Rodriguez, 2018 WL 1973455, at *5 (discussing the classification of New
Jersey crimes). Because New Jersey labeled its crimes differently than other jurisdictions,
the New Jersey Supreme Court created a test for determining whether New Jersey crimes
constituted misdemeanors or felonies. In State v. Doyle, 42 N.J. 334, 349, 200 A.2d 606
(1964), the New Jersey Supreme Court held crimes that "are punishable by imprisonment
for more than a year in state prison" were equatable to a common-law felony. See also
Kaplowitz v. State Farm Mut. Auto. Ins. Co., 201 N.J. Super. 593, 598, 493 A.2d 637
(Law. Div. 1985) (holding that a third-degree crime constituted a felony under the Doyle
test). Several courts, including this court in Rodriguez, adopted the Doyle test to
determine whether a defendant's prior New Jersey conviction constituted a felony or a
misdemeanor for criminal history purposes. Rodriguez, 2018 WL 1973455, at *5; see
United States v. Brown, 937 F.2d 68, 70 (2d Cir. 1991); State v. Hogan, 234 N.C. App.
218, 227, 758 S.E.2d 465 (2014); State v. Gillison, No. 08-1146, 2009 WL 606230, at *1
(Iowa Ct. App. 2009) (unpublished opinion).

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Lynn includes no argument why the Rodriguez court's adoption of the Doyle test
was errant. As a result, Lynn has abandoned any argument he may have had about the
appropriateness of applying the Doyle test. State v. Arnett, 307 Kan. 648, 650, 413 P.3d
787 (2018) (holding that an issue not briefed is deemed waived and abandoned).

Next, Lynn's argument about the amount of time he spent in jail ignores that under
the Doyle test, courts consider the punishment that a defendant could receive. Lynn
received a jail sentence under a year after the trial court revoked his probation.
Nevertheless, N.J. Stat. Ann. § 2C:43-6a.(2)-(3) plainly provides that the trial court could
have sentenced him to 3 to 10 years' imprisonment, which is greater than the 1-year
imprisonment sentence the Doyle court classified as a felony.

As a result, under the Doyle test, New Jersey would classify Lynn's crime of
promoting prostitution as a felony. In turn, under K.S.A. 2016 Supp. 21-6811(e)(2),
Lynn's New Jersey crime for promoting prostitution constitutes a felony for criminal
history purposes. Thus, the trial court properly classified Lynn's New Jersey promoting
prostitution conviction as a felony for criminal history purposes.

Affirmed.