State v. Proveaux

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NOT DESIGNATED FOR PUBLICATION

No. 115,461

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HARRY JOSEPH PROVEAUX,
Appellant.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; RON SVATY, judge. Opinion filed April 21, 2017.
Affirmed.

Donald E. Anderson II, of Robert A. Anderson Law Office, of Ellinwood, for appellant.

Joe Shepack, county attorney, and Derek Schmidt, attorney general, for appellee.

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

Per Curiam: After evidence and argument at a trial to the court, the district judge
found Harry Joseph Proveaux guilty of domestic battery as charged. Proveaux appealed,
contending both that the State's evidence was insufficient to support his conviction and
that the district court abused its discretion when it denied his motion for new trial. For
reasons explained below, we disagree and affirm.

FACTS AND PROCEDURAL BACKGROUND

The fundamental facts are neither complicated nor disputed. On May 6, 2015, the
State charged Proveaux with domestic battery, a class B misdemeanor, in violation of
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K.S.A. 2014 Supp. 21-5414. The complaint alleged Proveaux "willfully and intentionally
cause[d] physical contact with the person of his wife, [D.P.], . . . in a rude or angry
manner." Proveaux pled not guilty and waived his right to a jury trial.

At the bench trial, the State presented two witnesses, the reporting officer and
D.P., plus photo exhibits and a written statement. Proveaux chose to testify on his own
behalf but did not call any other witnesses. The district court found Proveaux guilty of
domestic battery and sentenced him to 180 days in jail, with probation granted for 2 years
after serving 2 days. Proveaux filed a motion for acquittal and a motion for new trial. The
district court denied both motions and Proveaux timely appealed. Additional undisputed
facts are discussed below where required.

ANALYSIS

Sufficiency of the evidence

Proveaux's first issue on appeal is his claim that the State's evidence at trial was
insufficient to support a conviction for domestic battery. K.S.A. 2014 Supp. 21-5414(a)
defines that crime:

"Domestic battery is:
"(1) Knowingly or recklessly causing bodily harm by a family or household
member against a family or household member; or
"(2) knowingly causing physical contact with a family or household member by a
family or household member when done in a rude, insulting or angry manner."

As used in that section, "family or household member" means:

"[P]ersons 18 years of age or older who are spouses, former spouses, parents or
stepparents and children or stepchildren, and persons who are presently residing together
or who have resided together in the past, and persons who have a child in common
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regardless of whether they have been married or who have lived together at any time."
K.S.A. 2014 Supp. 21-5414(c)(1).

Specifically, Proveaux contends the State failed to present any evidence that D.P. was 18
or older at the time of the incident that led to the charge. Proof of the victim's age is an
element of the crime of domestic battery.

When sufficiency of the evidence is challenged in a criminal case, the appellate
court reviews all evidence in the light most favorable to the State. A conviction will be
upheld if the appellate court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt based on the evidence. State v. Laborde, 303
Kan. 1, 6, 360 P.3d 1080 (2015). Appellate courts generally do not reweigh the evidence
or assess the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074
(2016). A verdict may be supported by circumstantial evidence if that evidence provides
a basis for a reasonable inference by the factfinder regarding the fact in issue. To be
sufficient, circumstantial evidence need not exclude every other reasonable conclusion.
State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016).

Proveaux relies heavily on the decision of this court in a factually similar case,
State v. Perez-Rivera, 41 Kan. App. 2d 579, 203 P.3d 735 (2009), to support his
argument that there is nothing to which the State can cling to remedy the omitted
evidence of age. In Perez-Rivera the defendant also was charged with domestic battery
and the State also failed to present direct evidence of the age of the alleged victim who,
as here, was the defendant's wife.

The State responded that the jury could have found Perez-Rivera's wife was 18 or
over at the time of the charged incident based on her "appearance and demeanor at trial,"
as well as from the testimony of both the defendant and his wife that they had been
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married for about 2 1/2 years, considered with the defendant's testimony that they were
married in Las Vegas, where Nevada law required that a person be 16 to marry.

The panel in Perez-Rivera rejected the State's argument, holding that "[a] jury
simply cannot speculate or infer through its own observations or personal knowledge that
an element of a crime has been proven." 41 Kan. App. 2d at 582. The jurors' collective
impression of the victim's age based on her appearance and demeanor, therefore, was not
a proper substitute for evidence and, since the State presented no evidence on the law of
Nevada concerning that state's marriage age, jurors would had have to rely on their
personal knowledge or assumptions to find the element proven. The court acknowledged
that:

"[W]hile it is true that a conviction may be sustained by circumstantial evidence, guilt
may never be based on inference alone. Reasonable presumptions and inferences may be
drawn from facts established by direct or circumstantial evidence, but a presumption may
not be based upon a presumption or an inference upon an inference. [Citations omitted.]"
41 Kan. App. 2d at 582.

Here, the State principally distinguishes Perez-Rivera on the basis that this case
was heard by the court, not a jury, and the State asserts that reliance on the personal
knowledge of the district judge about "some matters of law" is different from reliance on
the personal knowledge of jurors. Particularly, the State contends the district judge's
knowledge of the drinking age in Kansas could be combined with D.P.'s admission to
being in a bar and consuming alcoholic drinks to prove she was 21 or older. Proveaux
argues that "testimony . . . that the alleged victim was drinking at a bar or that she had
been married for 4 years in and of itself does not prove the element that the alleged
victim was at least 18 years old."

This court addressed a similar argument in State v. McConnell, No. 103,976, 2011
WL 6413620 (Kan. App. 2011) (unpublished opinion), rev. denied 296 Kan. 1133 (2013).
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There, a defendant challenged his domestic battery conviction, alleging that the State had
failed to prove he was 18 at the time of the incident. The State conceded there was no
direct evidence to prove the defendant's age but argued that testimony that the defendant
had entered and stayed at a local bar was sufficient to prove he was over 21 years old.
That panel rejected the State's argument, reasoning that a rational factfinder could not
infer the defendant was 21 simply because he entered a bar. The panel noted, "The State
does not contend that a minor may not enter an establishment where liquor is sold to
adults" and found it "significant that there was no evidence at trial that [the defendant]
had consumed any alcohol that night." 2011 WL 6413620, at *2.

The present case is distinguishable from Perez-Rivera, where the jury was left
without any facts in evidence upon which to infer the age of the victim. D.P. admitted
being in a bar and, unlike the situation before the panel in McConnell, in this case D.P.
also testified she consumed alcohol while there. Further, we do not find it unreasonable to
attribute to the district judge a knowledge of the drinking age in this state.

Additionally, Proveaux testified that he and D.P. had been married for "about four
years." As with knowledge of the drinking age, we find it reasonable to attribute to a
district judge the knowledge that marriage licenses in Kansas generally are issued to
people who are at least 18 years old. With certain permissions, however, a license may be
granted to those who are 16 or 17 and, in what are assuredly rare situations, a judge may
grant permission for the marriage of a 15-year-old. K.S.A. 2016 Supp. 23-2505(c). The
fact of Proveaux's marriage to D.P. for about 4 years was in evidence. From that fact, the
district judge could infer that, even in the unlikely event that D.P. was 15 at the time of
the marriage, she still would have been at least 18 at the relevant time for this case.

The district court here was not required to stack inference upon inference to find
support for this element of the crime. The district judge was the factfinder and, viewing
the evidence and reasonable inferences in the light most favorable to the State, we find
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the district court had evidence upon which to find the element of D.P.'s age had been
proven.

We note that in its brief the State relied "more significantly" on judicial notice
taken by the district court of a protection from abuse (PFA) case filed in that county by
D.P. against her husband. At the State's urging, the district court took notice of that case
and a divorce case, filed and later dismissed, "for whatever they're worth." Neither case
appears in the record. The State attached, as Appendix B to its brief, one page represented
to be from D.P.'s PFA filing documents. The State contends the district court's judicial
notice of the PFA case necessarily included that page, and the page shows D.P.'s date of
birth; therefore, the district judge had the necessary evidence to support the age element.

The document contained in Appendix B of the State's brief gives no indication that
it is part of the record for the prior PFA case between D.P. and Proveaux. More
importantly, however, the official record for this case contains no documents from that
PFA case. The State, therefore, has failed to substantiate the document contained in
Appendix B is part of the record, in violation of Kansas Supreme Court Rule 6.03 (2017
Kan. S. Ct. R. 35) ("an appellee's brief may contain an appendix containing limited
extracts from the record on appeal for the same purpose and subject to the same
limitations prescribed for the appellant's appendix under Rule 6.02"). See Supreme Court
Rule 6.02(b) (2017 Kan. S. Ct. R. 34) (appendix is for the court's convenience and is not
a substitute for the record itself). See also State v. Jones, 287 Kan. 547, Syl. ¶ 4, 198 P.3d
756 (2008) ("Material annexed to an appellate brief by way of an appendix that does not
appear in the record on appeal cannot be considered."). For these reasons, we do not
consider this argument from the State.




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Denial of motion for new trial

Proveaux next contends the district court abused its discretion when it denied his
motion for new trial. He argues that a new trial should have been granted because his trial
counsel failed to call certain witnesses to testify on his behalf.

A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the district court; (2) the action is based on an error of
law; or (3) the action is based on an error of fact. State v. Marshall, 303 Kan. 438, 445,
362 P.3d 587 (2015).

At the hearing on his motion for new trial, Proveaux took issue with his trial
counsel's representation, stating: "Well, I had pictures of evidence of markings on me that
I asked [my defense counsel] to enter into evidence, and he didn't do that. I had witnesses
that I asked him to call, and he didn't call any of them to talk to them." Proveaux added
that these uncalled witnesses "[could have] attest[ed] to prior incidents of things like this
happening."

Proveaux identified four additional witnesses who he claimed should have testified
at his trial. When asked, Proveaux stated that one witness would have testified regarding
"[h]ow [D.P.] gets when she's intoxicated." Another witness would have testified to
"[p]retty much everything up to the incident about how [Proveaux] tried to get [D.P.] to
leave the bar and was being calm and collective and all that stuff." Yet another witness,
Proveaux said, would have spoken about how "something like this [incident] had
happened probably a year before . . . [and] that one of our mutual friends had helped
[D.P.] put marks on herself after one of these incidents." Proveaux argued this testimony
constituted "additional evidence that could have been and maybe . . . should have been
presented on [his] behalf." Nonetheless, the district court denied Proveaux's motion.

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Forty years ago, our Supreme Court noted the delineation of responsibilities and
authority between a criminal defendant and his or her counsel:

"When a defendant chooses to have counsel, the conduct of the defense of the
case rests with the attorney. The decisions on what witnesses to call, whether and how to
conduct cross-examination, what jurors to accept or strike, what trial motions to make,
and all other strategic and tactical decisions are the exclusive province of the attorney
after consultation with his client." State v. Ames, 222 Kan. 88, Syl. ¶ 8, 563 P.2d 1034
(1977).

The court continues to apply those principles. See Bledsoe v. State, 283 Kan. 81, 92, 150
P.3d 868 (2007).

During closing arguments at the trial, Proveaux's counsel stated: "We know that
there's a difference in testimony as to what happened here between the witnesses. The
only two witnesses that actually have any actual knowledge would be Mr. Proveaux and
Ms. Proveaux." The district judge also recognized that reality, observing that "almost all
domestic violence cases are one-on-one statements." The judge, as factfinder, then
summarized his basis for decision, stating: "In this case I find the victim's testimony to be
more credible than the defendant's."

The district court's reliance on the credibility of the only two witnesses present
makes it unlikely Proveaux's other witnesses, even assuming their evidence would have
been admissible, would have had any effect. Nevertheless, Ames and the cases that follow
it make clear that it was well within the defense counsel's discretion to assess all
witnesses and ultimately determine who should testify. The district court did not abuse its
discretion when it denied Proveaux's motion for new trial.



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Conclusion

Neither of Proveaux's appeal issues supports a finding of error by the district court.
Accordingly, we affirm.