State v. Ortiz

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NOT DESIGNATED FOR PUBLICATION

No. 116,990

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ZACHARY J. ORTIZ,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed June 8, 2018.
Affirmed.

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

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE, J., and STUTZMAN, S.J.

PER CURIAM: Zachary Ortiz appeals his conviction of aggravated assault of a law
enforcement officer. He argues that (1) the district court erred by refusing to give a
unanimity instruction to the jury; (2) the district court erred by failing to hold a hearing
on his motion for investigative services; and (3) cumulative error warrants reversal of his
conviction. For the reasons stated herein, we affirm the district court's judgment.

The facts are undisputed. Around midnight on June 22, 2014, a Lawrence resident
called 911 to report the sound of gunshots. Officer Skyler Richardson responded to the
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call and the caller pointed Richardson to a house on the corner of the street. A man
outside the house—Ortiz' father—told Richardson that his son was drunk inside the
house. Richardson asked Ortiz' father if he could see his son to make sure he was safe.
Ortiz' father agreed and led Richardson through the garage and into the house.

When Richardson entered the house, Ortiz was in the living room holding either a
baseball bat or golf club over his head. Richardson believed Ortiz was about to strike his
father with the object, so he drew his gun and announced that he was a police officer.
Richardson told Ortiz to drop the object or he would be tased or shot. Ignoring the order,
Ortiz ran into his bedroom in the back of the house and his father ran after him.
Richardson exchanged his gun for a taser and followed.

Ortiz' bedroom was above a short set of stairs. When Richardson reached the
bottom of the stairs, he saw Ortiz pointing a shotgun in his direction. Richardson
continued up the stairs to get out of the line of sight, told Ortiz' father to get behind him,
and exchanged his taser for his gun. Richardson then caught a glimpse of Ortiz loading
the shotgun. At that point, Richardson stepped into the room and shot Ortiz four times.

Ortiz survived and the State charged him with aggravated assault of a law
enforcement officer. Ortiz hired his own attorney, but he filed a motion with the district
court seeking to be declared partially indigent so he could receive funds for expert and
investigative services. The motion did not specify the nature of the investigative services
Ortiz was seeking or why the services were necessary to prepare his defense. The district
court denied the motion without holding a hearing, deciding that if Ortiz wished to be
found partially indigent he would need to receive court appointed counsel.

Ortiz' case proceeded to a jury trial. At the conclusion of the evidence, Ortiz
requested a unanimity instruction which the district court denied, finding that the case did
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not involve multiple acts. The jury found Ortiz guilty of aggravated assault of a law
enforcement officer. Ortiz timely appealed his conviction.

UNANIMITY INSTRUCTION

Ortiz first argues that the district court committed reversible error by refusing to
give a unanimity instruction to the jury. He argues that the jury could have relied on two
separate acts to convict him of aggravated assault of a law enforcement officer: (1)
pointing the shotgun at Officer Richardson; and (2) loading the shotgun. Ortiz claims that
without a unanimity instruction, it is unclear which act the jury relied on to convict him
of the charge, denying Ortiz his right to a unanimous verdict.

The State asserts that the district court did not need to provide a unanimity
instruction to the jury because Ortiz' conduct leading to the charge did not consist of
multiple acts. In the alternative, the State argues that any error in failing to give a
unanimity instruction was harmless.

Under Kansas law, a defendant is entitled to a unanimous jury verdict. K.S.A. 22-
3421; State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014). When a case involves
multiple acts, any one of which could constitute the crime charged, the jury must be
unanimous in finding which specific act constitutes the crime. See State v. De La Torre,
300 Kan. 591, 595, 331 P.3d 815 (2014). To ensure jury unanimity in these cases (known
as multiple acts cases), the State must elect which act it is relying upon for the charge, or
the court must instruct the jury that it must unanimously agree on the specific act
constituting the crime charged. State v. Akins, 298 Kan. 592, 618, 315 P.3d 868 (2014);
State v. Voyles, 284 Kan. 239, 244-45, 160 P.3d 794 (2007).

A court follows a three-part test when analyzing multiple acts cases. State v. King,
297 Kan. 955, 979, 305 P.3d 641 (2013). First, it must determine whether the case
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involves multiple acts or a unified course of conduct. 297 Kan. at 979. This is a question
of law over which an appellate court exercises unlimited review. Santos-Vega, 299 Kan.
at 18. If the court finds the defendant's conduct was unitary, then the analysis ends and
the district court is affirmed. See Voyles, 284 Kan. at 244. If, however, the court decides
multiple acts were involved, the next question is whether error was committed because
either the district court failed to instruct the jury to agree on the specific act for each
charge or the State failed to inform the jury which act to rely upon during its
deliberations. King, 297 Kan. at 979. Finally, if error was committed, the appellate court
must determine whether the error was harmless. 297 Kan. at 979.

Proceeding to the first step, we must decide whether Ortiz' acts involved multiple
acts or unitary conduct. "Multiple acts" are legally and factually separate incidents that
independently satisfy the elements of the charged offense. See King, 299 Kan. at 980;
State v. Soto, 299 Kan. 102, 111, 322 P.3d 334 (2014). "The threshold question in a
multiple acts analysis is whether defendant's conduct is part of one act or represents
multiple acts which are separate and distinct from each other." State v. Kesselring, 279
Kan. 671, 682, 112 P.3d 175 (2005). Incidents are factually separate when independent
criminal acts occurred at different times or different locations, or when a criminal act is
motivated by a fresh impulse or interrupted by an intervening event. King, 297 Kan. at
981 (quoting State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 [2006]).

To convict Ortiz of aggravated assault of a law enforcement officer, the jury was
instructed that it must find that Ortiz knowingly used his shotgun to place Richardson—a
Lawrence police officer acting in the line of duty—in reasonable fear of immediate
bodily harm. Ortiz claims that two separate acts could have fulfilled these elements—
pointing the shotgun at Richardson and loading the shotgun. Ortiz points to the fact that
the State spoke of the two acts separately throughout the trial to support his claim that the
acts are separate and distinct.

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In Kesselring, the defendant appealed his conviction of aggravated kidnapping,
arguing that the jury should have received a unanimity instruction. He claimed there were
multiple acts that could have constituted the crime—one when he took the victim to the
car, one when the victim ran away and was taken back to the car by gunpoint, and
another when the victim was forced out of the car. Our Supreme Court decided that the
defendant's acts were part of a continuous incident that could not be factually separated,
and "the fact that [the victim] was momentarily free when he attempted to escape was not
a sufficient interruption to say that a new criminal impulse or new act of kidnapping had
occurred." 279 Kan. at 683.

Here, Ortiz' acts are best characterized as part of a continuous incident rather than
legally and factually separate criminal acts. Ortiz pointed the shotgun at Richardson and
loaded the shotgun in a brief period of time, and both acts occurred at the same location.
The facts do not indicate that Ortiz' motivation ever changed or that he was interrupted by
any kind of intervening event.

Ortiz suggests that he had a separate criminal impulse for each act. He argues that
he could have believed that Richardson was an intruder and that he needed to point the
shotgun at the intruder to scare him away. Then, when the intruder followed him up the
stairs, Ortiz had a fresh impulse to use actual force and loaded the shotgun. But this
argument is unsupported by the trial evidence. Richardson testified that he announced to
Ortiz that he was a Lawrence police officer as soon as he entered the home. There was no
evidence to suggest that Ortiz believed Richardson was an intruder.

To sum up, this is not a multiple acts case. Ortiz' conduct of pointing a shotgun at
Richardson and then loading the shotgun were not separate multiple acts requiring a
unanimity instruction. Because the district court did not err by refusing to give a
unanimity instruction to the jury, we need not assess whether the error was harmless.

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MOTION FOR INVESTIGATIVE SERVICES

Next, Ortiz argues that the district court committed reversible error by failing to
hold a hearing on his motion for investigative services. The State argues that the district
court was entitled to summarily deny Ortiz' motion for investigative services, but even if
any error occurred, it was harmless and did not affect the outcome of the trial.

Resolution of this issue requires interpretation of a Kansas statute—K.S.A. 22-
4508. Interpretation of a statute is a question of law over which an appellate court has
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

Under K.S.A. 22-4508, an attorney for a criminal defendant who cannot afford
investigative or expert services for trial may request funding from the court:

"An attorney other than a public defender who acts as counsel for a defendant
who is financially unable to obtain investigative, expert or other services necessary to an
adequate defense in the defendant's case may request them in an ex parte application
addressed to the district court where the action is pending. Upon finding, after
appropriate inquiry in the ex parte proceeding, that the services are necessary and that the
defendant is financially unable to obtain them, the district court shall authorize counsel to
obtain the services on behalf of the defendant." K.S.A. 22-4508.

Ortiz was represented at trial by retained counsel—that is, an attorney who was
neither a public defender nor court appointed. Ortiz' attorney filed a motion with the
district court seeking funds for expert and investigative services under K.S.A. 22-4508.
The motion did not specify the nature of the investigative services Ortiz was seeking or
why the services were necessary to prepare his defense.

The district court summarily denied Ortiz' motion, relying on Morrow v. State, 18
Kan. App. 2d 236, 849 P.2d 1004 (1993). In that case, Morrow sought assistance from
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the State to obtain transcripts for his appeal. Although Morrow paid for retained counsel
at trial, he filed a motion with this court claiming that he was unable to afford the cost of
obtaining trial transcripts. Denying Morrow's motion, this court noted that "an indigent
defendant cannot retain counsel of his own choosing and then ask for the State to pay
expenses." 18 Kan. App. 2d at 242-43.

The district court applied the reasoning in Morrow to conclude that Ortiz could not
obtain State funds for investigative services under K.S.A. 22-4508 while paying for
retained counsel. But our Supreme Court recently distinguished Morrow in Landrum v.
Goering, 306 Kan. 867, 397 P.3d 1181 (2017), finding that defendants with retained
counsel may obtain funding for investigative services through K.S.A. 22-4508. The
Landrum court stated: "[A] district court has a duty under K.S.A. 22-4508 to conduct an
ex parte hearing when an attorney other than a public defender, including an attorney
employed by the defendant, asks the court to consider a defendant's request for
investigative, expert, or other services." 306 Kan. at 874.

Here, Ortiz was represented by retained counsel, and he filed a motion seeking to
obtain funding for investigative services. Based on Landrum, the district court had a duty
to conduct a hearing to determine (1) whether Ortiz was financially unable to pay for the
services, and (2) and whether the services were necessary for his defense. The district
court erred by denying Ortiz' motion for investigative services without holding a hearing.

The State suggests that any error to provide a hearing was harmless. Funding for
investigative and expert services to partially indigent defendants is provided by statute in
Kansas, but those services are not a constitutional right. When an error implicates a
statutory but not federal constitutional right, the party benefitting from the error must
persuade the court that there is no reasonable probability that the error affected the trial's
outcome in light of the entire record for it to be deemed harmless. State v. McCullough,
293 Kan. 970, 981-83, 270 P.3d 1142 (2012).
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Here, the State presented a strong case against Ortiz—Richardson testified at trial
about the events of the night in question, a forensic scientist testified that Ortiz' DNA was
on the shotgun, and the State presented photographs of shotgun shells in Ortiz' bedroom.
Ortiz' defense at trial was that Richardson overreacted to the situation and could not have
seen Ortiz pointing a shotgun before Richardson entered the bedroom and fired shots
from his weapon. There is no indication in the record that investigative services would
have helped Ortiz' case or supported his defense; in fact, Ortiz does not even state what
investigative services he was requesting. The motion did not specify the nature of the
investigative services Ortiz was seeking or why the services were necessary to prepare
his defense. We conclude there is no reasonable probability that the district court's
error—denying the motion for investigative services without holding a hearing—affected
the outcome of Ortiz' trial in light of the entire record, and any error was harmless.

CUMULATIVE ERROR

Finally, Ortiz argues that the cumulative effect of multiple trial errors denied him a
fair trial. For cumulative error, the test is whether the totality of the circumstances
establish that the defendant was substantially prejudiced by all the trial errors and was
denied a fair trial. In assessing the cumulative effect of the trial errors, the appellate court
examines the errors in the context of the entire record, considering how the district court
dealt with the errors, the nature and number of errors, and the overall strength of
evidence. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 312 (2014). Logically, a single
error cannot constitute cumulative error. State v. Waller, 299 Kan. 707, 728, 328 P.3d
1111 (2014). Because there was only one error here—failure to hold a hearing for
investigative services—there cannot be cumulative error.

Affirmed.