State v. Nunez

1

NOT DESIGNATED FOR PUBLICATION

No. 118,722

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EDDIE NUNEZ,
Appellant.

MEMORANDUM OPINION


Appeal from Reno District Court; TRISH ROSE and TIMOTHY J. CHAMBERS, judges. Opinion filed
December 14, 2018. Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: In January 2015, while Eddie Nunez was an inmate at Hutchinson
Correctional Facility (HCF), he attacked a correctional officer. A jury later convicted him
of battery of a state correctional officer. Nunez appeals, arguing the evidence was
insufficient to support his conviction and the district court committed clear err in giving
the jury instructions. Finding no error, we affirm.

Holly Seaver was a correctional officer at HCF. HCF had a "medication line"
every night when inmates were allowed out of their cell house to get their prescription
2

medication. Two officers monitored the inmates during this time. One officer
accompanied the inmates to get their medication, and one officer stayed in the cell house
to let the inmates in and out and to monitor the security of the cell house.

On the night of the incident in question, Seaver was the officer who remained in
"Charlie" cell house during the medication line. Nunez was an inmate housed in that cell
house. One of the inmates leaving for the medication line told Seaver that Nunez wanted
to empty his trash. Seaver had never had any problems with Nunez, so she let him out of
his cell to empty his trash.

After Nunez emptied his trash, Seaver turned her attention to the inmates returning
from the medication line. When Seaver turned her attention back to Nunez, he was next
to her, and he punched her in the right eye. Seaver ducked down, but Nunez continued to
hit her. During the one to two minute attack, Nunez hit or kicked Seaver 20 to 40 times,
and she was never able to strike back. She also could not reach her radio. She eventually
screamed, and other officers came to her aid.

Brandon Schmucker, another correctional officer at HCF, ran to Seaver after he
heard her scream. He saw Nunez standing over Seaver and stomping on her. Schmucker
ordered Nunez to stop, but Nunez continued to stomp on her. Schmucker tackled Nunez
and put him in handcuffs. Another correctional officer took Nunez to segregation. On the
way, Nunez said, "I'm a piece of shit, . . . I'm sorry for what I did, I deserve what I get."

As a result of the attack, Seaver received a black eye and some bruising and
abrasions. Photographs were taken of her injuries that night. Some more photos were also
taken a couple days later.

The State charged Nunez with battery of a state correctional officer. See K.S.A.
2017 Supp. 21-5413(c)(3)(A). At trial, the State entered the photographs of Seaver's
3

injuries into evidence. Seaver testified the uniform she was wearing in court was the
same uniform she was wearing the night of the attack.

The jury convicted Nunez of battery of a state correctional officer. Nunez moved
for a judgment of acquittal and a new trial, arguing the evidence was insufficient to
support his conviction. The district court denied both motions and sentenced Nunez to 55
months in prison, to run consecutive to his prior sentence. Nunez appeals.

Sufficient Evidence

Nunez first argues the evidence was insufficient to support his conviction because
the State failed to prove Seaver was a state correctional officer. "'When sufficiency of the
evidence is challenged in a criminal case, the standard of review is whether, after
reviewing all the evidence in a light most favorable to the prosecution, the appellate court
is convinced a rational factfinder could have found the defendant guilty beyond a
reasonable doubt.'" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). We do
not reweigh evidence, resolve evidentiary conflicts, or redetermine witness credibility.
307 Kan. at 668.

The jury convicted Nunez of battery of a state correctional officer. To support this
conviction, the State had to prove (1) Nunez knowingly caused bodily harm to Seaver;
(2) Nunez was in the custody of the Secretary of the Kansas Department of Corrections
(KDOC); (3) Seaver was a state correctional officer; and (4) Seaver was engaged in the
performance of her duty. See K.S.A. 2017 Supp. 21-5413(c)(3)(A). A state correctional
officer is "any officer or employee of the [KDOC] or any independent contractor, or any
employee of such contractor, whose duties include working at a correctional institution."
K.S.A. 2017 Supp. 21-5413(h)(2). A correctional institution is "any institution or facility
under the supervision and control of the secretary of corrections." K.S.A. 2017 Supp. 21-
5413(h)(1).
4


The State must sustain its burden of proof on each of these elements. State v. Scott,
285 Kan. 366, 372, 171 P.3d 639 (2007). To meet this burden, the State may rely on
circumstantial evidence as long as that evidence provides a basis for the jury to make a
reasonable inference about the fact in issue. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d
836 (2016). In determining the weight and credibility to give to testimony, a jury may
"'use common knowledge and experience in regard to the matter about which a witness
has testified.'" State v. Calderon-Aparicio, 44 Kan. App. 2d 830, 839, 242 P.3d 1197
(2010); PIK Crim. 4th 51.060. But the State cannot support a conviction by asking the
jury to make a presumption based on another presumption. State v. Banks, 306 Kan. 854,
859, 397 P.3d 1195 (2017).

At trial, Seaver testified she was a correctional officer who worked at HCF. Nunez
acknowledges this testimony, but he argues it was insufficient to show Seaver was a state
correctional officer. He also contends no other evidence established that Seaver was a
state correctional officer under K.S.A. 2017 Supp. 21-5413(h)(2) or that HCF was a
correctional institution under K.S.A. 2017 Supp. 21-5413(h)(1).

In making his argument, Nunez relies on State v. Star, 27 Kan. App. 2d 930, 936,
10 P.3d 37 (2000). The Star court found the evidence was insufficient to prove the
defendant sold cocaine within 1,000 feet of a school. 27 Kan. App. 2d at 936. While the
State established that the defendant sold cocaine within 1,000 feet of Hickock School, the
court noted the State also had to prove Hickock School was "'a structure used by a unified
school district or an accredited nonpublic school for student instruction or attendance or
extracurricular activities of pupils enrolled in kindergarten or any of the grades one
through 12'" under K.S.A. 1999 Supp. 65-4161(d). 27 Kan. App. 2d at 936. Because the
State did not provide evidence of this, the court held that the jury could not "speculate or
infer through its own observations that the structure complies with the statutory definition
of a school." 27 Kan. App. 2d at 936.
5


Nunez' case is distinguishable from Star. In Star, the State did not establish any
facts from which the jury could reasonably infer Hickock School met the statutory
definition of school. But here, the State introduced evidence from which the jury could
reasonably infer Seaver was a state correctional officer.

Seaver testified she was in uniform at the time of the attack, and photographs were
taken of her injuries shortly afterward. In one of those photographs, Seaver was wearing a
shirt with an embroidered badge with the words "Kansas Department of Corrections" and
"Seaver." In addition, one of the officers who investigated the attack testified he was a
special agent supervisor for HCF, and he had been a special agent supervisor for the
KDOC for the past nine years. Viewed in a light most favorable to the State, the jury
could reasonably infer from these facts that Seaver met the statutory definition of a state
correctional officer. See State v. Johnson, No. 104,595, 2012 WL 686702, at *3-4 (Kan.
App. 2012) (unpublished opinion) (finding jury could infer victim was over age 16 by
considering her appearance and testimony about her job).

Lesser Included Offense Instruction

Next, Nunez argues the district court erred in failing to instruct the jury on the
lesser included offense of battery. Nunez acknowledges he requested no instruction on
battery, so we will not reverse his conviction unless he can show the district court's
failure to give the instruction was clearly erroneous. K.S.A. 2017 Supp. 22-3414(3); State
v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877 (2013). In reviewing for clear error, we
first consider whether the instruction was legally and factually appropriate, using an
unlimited review of the entire record. State v. Louis, 305 Kan. 453, 457, 384 P.3d 1
(2016). If we determine the instruction was erroneous, it requires reversal if we are firmly
convinced the jury would have reached a different verdict without it. State v. Cooper, 303
Kan. 764, 770, 366 P.3d 232 (2016). In evaluating whether an instruction rises to the
6

level of clear error, we conduct an unlimited review of the entire record. State v.
Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).

Legally Appropriate

First, we must determine whether a jury instruction on battery would have been
legally appropriate. For a battery instruction to be legally appropriate, battery must be a
lesser included crime of battery of a state correctional officer. Whether a crime is a lesser
included offense of another is a question of law over which we have unlimited review.
State v. Armstrong, 299 Kan. 405, 432, 324 P.3d 1052 (2014).

A lesser included crime is "a crime where all elements of the lesser crime are
identical to some of the elements of the crime charged." K.S.A. 2017 Supp. 21-
5109(b)(2). To convict a defendant of battery of a state correctional officer, the State
must prove all the elements of battery under K.S.A. 2017 Supp. 21-5413(a) as well as
several other elements. K.S.A. 2017 Supp. 21-5413(c)(3). Battery is thus a lesser
included crime of battery of a state correctional officer, and an instruction on battery
would have been legally appropriate.

Factually appropriate

Next, we must determine whether an instruction on battery was factually
appropriate. For an instruction on a lesser included crime to be factually appropriate,
evidence in the record, along with reasonable inferences drawn from that evidence, must
reasonably support a conviction for the lesser crime. State v. Wade, 295 Kan. 916, 926,
287 P.3d 237 (2012); see also K.S.A. 2017 Supp. 22-3414(3) (district court must instruct
on a lesser included crime if some evidence would reasonably justify a conviction of the
lesser included crime).

7

Nunez makes several arguments on this point. First, he claims Seaver was not
identifiable as a state correctional officer at the time of the attack. But unlike battery of a
law enforcement officer under K.S.A. 2017 Supp. 21-5413(c)(1) and (c)(2), state
correctional officers do not have to be uniformed or properly identified. K.S.A. 2017
Supp. 21-5413(c)(3); State v. Whiters, No. 89,613, 2003 WL 22532950, at *2 (Kan. App.
2003) (unpublished opinion) (holding State did not have to prove state correctional
officer was uniformed or properly identified to convict defendant of battery of a state
correctional officer). That said, Seaver testified she was in uniform at the time of the
attack.

Next, Nunez argues the State did not prove she was acting within the scope of her
duties when she let Nunez out of his cell. Nunez asserts Seaver's duty at the time of the
attack was ensuring certain inmates made it to and from medication line safely. Granted,
letting Nunez out of his cell to empty his trash may not have been Seaver's primary duty
at the time of the battery. But nothing in the record suggests Seaver lacked the authority
to do so. See State v. Smith, No. 108,408, 2014 WL 642037, at *4 (Kan. App. 2014)
(unpublished opinion) (finding nothing in record suggested correctional officer was
acting outside performance of his duties when he entered inmate's cell without backup).

Finally, Nunez argues the State did not prove Seaver was a state correctional
officer, but this argument also lacks merit. At trial, Seaver's status as a correctional
officer was never in doubt, and Nunez presented no defense theory that Seaver was not a
correctional officer. Nor did Nunez present evidence or argue that Seaver was anything
but a state correctional officer. As noted in the previous issue, Seaver's uniform identified
her as an employee of the KDOC. As a result, an instruction on the lesser included crime
of battery was not factually appropriate.

While a battery instruction may have been legally appropriate, the district court
did not err in failing to give one because it was not factually appropriate. But even if it
8

were error, it did not rise to clear error. Nunez never challenged Seaver's status as a state
correctional officer at trial, and her uniform identified her as such. Even with the
instruction, the jury likely would have reached the same verdict. Nunez' argument fails.

Jury Nullification

Finally, Nunez argues the district court improperly instructed the jury on the
burden of proof, as the given instruction precluded the possibility of jury nullification.
The instruction at issue comes from PIK Crim. 4th 51.010 and reads, in part: "If you have
no reasonable doubt as to the truth of each of the claims required to be proved by the
State, you should find Eddie Nunez guilty." (Emphasis added.) Nunez opposes the use of
the word "should," arguing it directs a verdict in favor of the State and divests the jury of
its inherent power of nullification.

Nunez again concedes he did not object to the challenged instruction, so we will
not reverse the verdict unless he can show the giving of the instruction was clearly
erroneous. K.S.A. 2017 Supp. 22-3414(3); Pfannenstiel, 302 Kan. at 752.

Jury nullification is the inherent power of juries "to disregard the rules of law and
evidence in order to acquit the defendant based upon the jurors' sympathies, notions of
right and wrong, or a desire to send a message on some social issue." State v. Allen, 52
Kan. App. 2d 729, 734, 372 P.3d 432 (2016), rev. denied 306 Kan. 1320 (2017). Jury
nullification is always a possibility. See Silvers v. State, 38 Kan. App. 2d 886, 890, 173
P.3d 1167 (2008). Even so, our Supreme Court has held that the district court must not
instruct on jury nullification. See State v. McClanahan, 212 Kan. 208, Syl. ¶¶ 3, 4, 510
P.3d 153 (1973). On the other hand, our Supreme Court has also held that the district
court may not instruct against nullification or compel a jury to convict. State v. Smith-
Parker, 301 Kan. 132, 164, 340 P.3d 485 (2014).

9

In making his argument, Nunez relies on our Supreme Court's decisions in Smith-
Parker and Lovelace. In Smith-Parker, the defendant challenged a reasonable doubt
instruction, which read: "'If you do not have a reasonable doubt from all the evidence that
the State has proven murder in the first degree on either or both theories, then you will
enter a verdict of guilty.'" 301 Kan. at 163. The Smith-Parker court held that the use of
the word "will" in this way comes too close to directing a verdict in favor of the State.
301 Kan. at 164.

Smith-Parker also revisited an earlier case, State v. Lovelace, 227 Kan. 348, 607
P.2d 49 (1980). There, the defendant challenged an instruction telling the jury that it
"must" find the defendant guilty if there is no reasonable doubt about the State's claims.
The Lovelace court rejected this argument, noting "should" and "must" were
interchangeable in criminal instructions. 227 Kan. at 354. But the Smith-Parker court
overruled Lovelace, finding that the use of the word "must" also comes too close to
compelling a guilty verdict. Smith-Parker, 301 Kan. at 164.

In his brief, Nunez emphasizes that Lovelace reasoned the words "should" and
"must" were interchangeable in a reasonable doubt instruction. He argues that while
Smith-Parker held "must" was inappropriate in a reasonable doubt instruction, it did not
overrule Lovelace's conclusion that "should" and "must" were interchangeable. As a
result, he reasons that "should" is also inappropriate in a reasonable doubt instruction.

If the Smith-Parker court had intended to comment on the appropriateness of
"should" in a reasonable doubt instruction, it could have done so explicitly. Instead, it
limited its holding to use of the word "must." This limitation suggests that Lovelace's
approval of the word "should" is still binding precedent. See State v. McDuffie, No.
113,987, 2017 WL 2617648, at *8-9 (Kan. App. 2017) (unpublished opinion) (rejecting
similar argument), rev. denied 306 Kan. 1327 (2017); State v. Benewiat, No. 114,676,
10

2017 WL 66355, at *7-8 (Kan. App. 2017) (unpublished opinion) (same), rev. denied 306
Kan. 1321 (2017).

Many opinions of this court have also found that use of the word "should" in the
reasonable doubt instruction does not prohibit jury nullification. See, e.g., Allen, 52 Kan.
App. 2d 729, Syl. ¶ 5; State v. Singleton, No. 112,997, 2016 WL 368083, at *4-5 (Kan.
App. 2016) (unpublished opinion), rev. denied 305 Kan. 1257 (2016); State v. Hastings,
No. 112,222, 2016 WL 852857, at *3-5 (Kan. App. 2016) (unpublished opinion), rev.
denied 306 Kan. 1324 (2017). In fact, the Allen court distinguished "should" from "must,"
explaining "[u]nlike the words 'must,' 'shall,' and 'will,' the word 'should' does not express
a mandatory, unyielding duty or obligation; instead, it merely denotes the proper course
of action and encourages following the advised path." 52 Kan. App. 2d 729, Syl. ¶ 5.

Nunez not only asks us to find the district court erred in giving the challenged
instruction, he asks us to find the error was structural. For support, he cites to Sullivan v.
Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), and Miller v. State,
298 Kan. 921, 219 P.3d 155 (2014), that hold a reasonable doubt instruction that
misstates the State's burden of proof amounts to structural error. But Nunez' case is
distinguishable because the challenged instruction does not raise any questions that the
jury did not find Nunez was guilty to the "constitutionally required degree of certainty."
Miller, 298 Kan. at 938. And while juries have the power to nullify the verdict, they have
no legal right to exercise that power. McClanahan, 212 Kan. 208, Syl. ¶ 3. Likewise,
criminal defendants do not have a right to jury nullification. State v. Trotter, No. 114,743,
2017 WL 3668908, at *3 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan.
993 (2018).

Because any possible error was not structural, Nunez must firmly convince us that
the jury would not have convicted him if not for the challenged instruction. His only
argument on this point is the jury may have felt Seaver's injuries were not serious enough
11

to warrant his lengthy prison sentence. Looking at the record as a whole, Nunez'
argument is not persuasive. Nunez attacked Seaver unprovoked, and he did not stop
hitting and kicking her until someone pulled him off of her.

Affirmed.