State v. Ramirez

NOT DESIGNATED FOR PUBLICATION

No. 113,985

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUAN C. RAMIREZ,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed September 16,
2016. Affirmed in part, reversed and vacated in part, and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., LEBEN, J., and HEBERT, S.J.

LEBEN, J.: Juan Ramirez pushed a man down to the ground outside a gas station
and took the man's hat. Taking the evidence in the light most favorable to Ramirez, he
did nothing more; two other men then hit and kicked the victim while he was on the
ground. Ramirez is appealing his conviction for a serious form of aggravated battery—
knowingly causing harm to another person in a manner that could inflict great bodily
harm. He contends that the jury should have had the option to consider a lesser form of
aggravated battery. Specifically, Ramirez argues that while he may have recklessly put
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the victim on the ground, where he might have been in danger of great bodily harm from
the other two men, Ramirez didn't knowingly put the victim into that danger.

That argument brings into play a rule that's key to this appeal: When deciding
whether to instruct a jury on a lesser offense—giving the jury the option to convict the
defendant on that lesser crime—the district court must look at the evidence in the light
most favorable to Ramirez. While Ramirez did knowingly put the victim on the ground,
it's not clear that Ramirez knew the other two men would then beat the victim while he
lay there. In that light, the court should have given the additional jury instruction.
Because we cannot say here that there is no reasonable probability that the jury would
have ruled differently with the additional instruction, we must set aside the aggravated-
battery conviction and send the case back for a new trial on that charge.

Ramirez was also convicted of aggravated robbery, and he asks to set that
conviction aside too—on the basis that the district court should have acted on Ramirez'
complaints about his court-appointed attorney and given him a new one. But Ramirez had
to show justifiable dissatisfaction in the form of some conflict of interests, an
irreconcilable disagreement, or a complete breakdown in communication between him
and his attorney. The district court properly investigated Ramirez' claims, and we find no
abuse of discretion in its decision not to replace Ramirez' attorney before trial.

FACTUAL AND PROCEDURAL BACKGROUND

The victim in our case, Cory Larsen, stopped at a gas station on his way to work.
Unfortunately, as it turns out, he was wearing a red Chicago Bulls hat—and the color red
is associated with some Wichita gangs. Larsen was not a gang member.

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When Larsen walked out of the gas station, two men, including Ramirez,
approached him. Ramirez and his friends were associated with a gang whose primary
color was blue, though Ramirez said he wasn't an active member at the time.

Ramirez and another man approached Larsen. According to Larsen, Ramirez then
asked Larsen for the hat. Larsen took off the hat but then turned to run into the gas
station. Ramirez and the other man rushed Larsen, pushing him to the ground. At that
point, a third man came over, and some or all of the men punched and kicked Larsen
while he was on the ground. At some point, they took the Bulls hat and left Larsen on the
ground.

Ramirez and the other men then left the gas station together; Larsen's girlfriend
took down the license-plate number on their car as they left. An officer tracked it down at
a residence a few miles away, where the police found Ramirez and three others—as well
as Larsen's hat—in the basement.

Ramirez spoke to the police that day, and his statements are especially important
since we must look at the evidence in the light most favorable to him on the jury-
instruction issue. Ramirez didn't testify, so what we have are his statements as reported at
trial by a police detective, Francois Do, who was called as a witness by the prosecution.
Ramirez told Do that Ramirez and another man in his group, Jose, went up to Larsen at
the gas station. Jose then asked Larsen, "Are you banging[?]," apparently asking if he
was a gang member. At that point, Jose tried to grab for the hat and punched Larsen.
Ramirez then pushed Larsen "basically down into the ground." Ramirez said that another
person in his group then joined Jose and that the two of them punched and kicked Larsen
while he was on the ground. Ramirez admitted pushing Larsen down but not kicking or
punching him.

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Larsen reported that Ramirez and another man (presumably Jose) had punched
him and pushed him to the ground. Larsen said that another man then joined them, and all
three punched and kicked him while he was on the ground.

The State charged Ramirez with two offenses:
 aggravated robbery—knowingly taking property from Larsen by force while
inflicting bodily harm on Larsen; and
 aggravated battery—here, knowingly causing bodily harm to Larsen in a manner
that could inflict great body harm, disfigurement, or death.
Ramirez was convicted of both offenses after a 2-day jury trial. The district court
sentenced him to prison for 66 months on the aggravated-robbery conviction and for 12
months on the aggravated-battery conviction. The sentences were made concurrent to one
another, so the total sentence Ramirez is serving is 66 months in prison, along with 36
months of postrelease supervision afterward.

Two additional procedural developments factor into our appeal. Before trial,
Ramirez filed two motions seeking to replace his court-appointed attorney. Both times,
the district court asked Ramirez about his concerns but then denied the motion. During
trial, Ramirez' attorney asked that the court give the jury the option of considering
whether Ramirez had committed a less serious form of aggravated battery. The district
court refused to give the jury an instruction about that option, and the jury convicted
Ramirez of the more serious form of aggravated battery.

Ramirez has now appealed to our court, raising appellate issues regarding the jury-
instruction issue and the district court's refusal to appoint a new attorney for him.

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ANALYSIS

I. The District Court Erred in Refusing the Defendant's Request to Give the Jury the
Option to Convict on a Less Serious Form of Aggravated Battery.

We begin with Ramirez' claim of error in the legal instructions the district court
gave the jury. Here, Ramirez was charged with aggravated battery, a crime that has
several levels of severity—and punishment—depending on the severity of the conduct
involved and on whether the conduct was knowing or reckless. The most serious form of
aggravated battery, a severity-level-4 felony, is knowingly causing great bodily harm or
disfigurement to another person. The least serious form, a severity-level-8 felony, is
recklessly causing bodily harm to another person, either while using a deadly weapon or
in a manner that could cause great bodily harm, disfigurement, or death. See K.S.A. 2015
Supp. 21-5413.

The State charged Ramirez with a form of aggravated battery that is a severity-
level-7 felony—specifically that he knowingly caused bodily harm to Larsen in a way
that could have caused great bodily harm, disfigurement, or death. Ramirez argues that
the district court should have allowed the jury to consider the lesser, severity-level-8
version of aggravated battery—that Ramirez committed the aggravated battery only
recklessly, not knowingly.

Under Kansas law, a person acts "knowingly" if he or she "is aware of the nature
of [the] person's conduct or that the circumstances exist" and "is aware that [his or her]
conduct is reasonably certain to cause the result." K.S.A. 2015 Supp. 21-5202(i); see
State v. Hobbs, 301 Kan. 203, Syl., 340 P.3d 1179 (2015). A person acts "recklessly"
when he or she "consciously disregards a substantial and unjustifiable risk that
circumstances exist or that a result will follow, and such disregard constitutes a gross
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deviation from the standard of care [that] a reasonable person would exercise in the
situation." K.S.A. 2015 Supp. 21-5202(j).

The Kansas Supreme Court has set out a four-step process for considering a
defendant's claim of jury-instruction error on appeal:
 First, we consider whether we can review the question at all. State v. Salary, 301
Kan. 586, Syl. ¶ 1, 343 P.3d 1165 (2015). Here, there are no questions about our
jurisdiction to consider the issue or Ramirez' preservation of the issue for appellate
review: His attorney requested the instruction from the district court, and the State
makes no challenge to our ability to consider the issue on appeal.
 Second, we must determine whether the instruction was legally appropriate. 301
Kan. 586, Syl. ¶ 1. Recklessly committing the same aggravated battery is a lesser-
included offense of the knowing violation. Accordingly, the State makes no
suggestion that the instruction Ramirez requested was for any reason legally
inappropriate.
 Third, we must determine whether there was sufficient evidence—taking the
evidence in the light most favorable to Ramirez—to support giving this instruction
to the jury. 301 Kan. 586, Syl. ¶ 1. The parties are in dispute about this question.
 Fourth, if we find that the district court erred, we must decide whether the error
was harmless. Different standards apply depending on whether the instruction was
requested and on whether the error in some way deprived the defendant of a
constitutional right. 301 Kan. 586, Syl. ¶ 1. We will discuss and apply these tests
as the final step in our analysis.

So we begin our detailed discussion with the evidence. In a criminal jury trial, the
jury is tasked with determining what happened based on the evidence. Then, based on the
court's instructions about the law, the jury determines the consequences—in a criminal
case, whether the State has proved the defendant guilty of the charged offense beyond a
reasonable doubt. To make sure that it's the jury, not the judge, that determines what
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happened, the court must determine whether to give an instruction the defendant asked
for based on the evidence viewed in the light most favorable to the defendant. If, viewed
in that light, there is evidence that a rational factfinder could agree supports the defense
theory, then the court must give the instruction. 301 Kan. 586, Syl. ¶ 2.

As charged, the aggravated battery here consisted of two things: (1) causing bodily
harm to Larsen and (2) doing so in a manner that could cause great bodily injury,
disfigurement, or death. To convict Ramirez of knowingly committing this offense, he
must have knowingly done both parts. As our Supreme Court said in Hobbs, the State
would have to prove that the defendant "acted while knowing that some type of great
bodily harm or disfigurement of another person was reasonably certain to result." Hobbs,
301 Kan. 203, Syl. Only in that circumstance would the defendant have knowingly
committed the offense.

So we must determine whether the evidence could have supported not only the
State's theory of knowing conduct but also the defendant's theory of recklessness. And
here, when we view the evidence in the light most favorable to the defendant, we
conclude that the district court should have given the jury the option of finding that
Ramirez committed aggravated battery recklessly, not knowingly. Ramirez admitted that
he pushed Larsen to the ground. But it's not beyond debate whether Ramirez did so
knowing that it was reasonably certain that others would then pummel Larsen while he
lay on the ground. If not, then the jury should be allowed to consider whether Ramirez
acted knowingly or only recklessly.

We recognize—and the State emphasized in its brief—evidence that would
support the jury's verdict of knowing aggravated battery. Some of the witnesses testified
that Ramirez struck blows, even after Larsen was on the ground. But the jury wasn't
required to accept the testimony of every witness, and Ramirez' statements to police
indicated that while he pushed Larsen down, he didn't punch or kick him.
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There is one more hurdle that Ramirez must overcome to obtain a new trial on this
issue—we must still look to see whether the error was a harmless one that didn't impact
the jury's verdict. The test for determining harmlessness varies depending on whether a
defendant's constitutional rights were at stake. Ramirez argues that's the case here; he
says that failing to give a lesser-included-offense instruction deprives a defendant of the
constitutional right to present his or her defense. But the State counters that we should
apply the test for nonconstitutional error because the right to have jury instructions on
lesser-included offenses is provided by a statute, K.S.A. 2015 Supp. 22-3414(3), not the
federal or state constitution.

The Kansas Supreme Court has adopted the State's position. In the Salary case, as
here, the defendant had requested a lesser-included-offense instruction that was denied by
the district court; in Salary, it was a lesser-included-offense instruction to a murder
charge. The Salary court found the requested instruction legally appropriate and assumed
for the purpose of its decision that it was factually appropriate too. So the issue had to be
resolved on whether the assumed error in refusing the instruction was harmless. The court
then accepted the State's position that since the right to a jury instruction on a lesser-
included offense is a statutory one, the nonconstitutional harmless-error test applies. 301
Kan. at 598-99.

Under that test, we can find the error harmless only if we are persuaded that there
is no reasonable probability that the error affected the trial's outcome. 301 Kan. at 599.
We are not able to do so here. The events occurred quickly, and eyewitness testimony is
not always accurate. Although a jury certainly could still have convicted Ramirez of
knowing aggravated battery even if it had the option of reckless aggravated battery, there
is a reasonable probability it would not have.

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In any criminal case, the State has the burden to prove the defendant guilty beyond
a reasonable doubt. When a lesser offense is supported by the evidence and the jury was
not allowed to consider it, it is difficult to determine whether the State met its burden on
the charge for which the jury convicted the defendant. The evidence here was not so
clear-cut that the jury could only have reached one conclusion. Accordingly, we must set
aside the conviction for aggravated battery and send the case back for a new trial on that
charge.

II. The District Court Did Not Err When It Declined to Replace Ramirez' Court-
Appointed Attorney.

Ramirez separately asks that his convictions be set aside because the district court
refused his requests before trial to appoint a new attorney to represent him. Ramirez was
unable to afford an attorney, so the court had appointed one to represent him.

Ramirez filed his first motion for new counsel about 5 months after his arrest. At a
hearing, he said he didn't feel that the attorney was representing his interests, and he
expressed dissatisfaction with the attorney's failure to get him released on bond pending
trial. He also said that he was dissatisfied with a plea offer that his attorney had brought
him from the prosecution; Ramirez felt he should get probation, but the plea deal offered
only a shorter prison sentence. And Ramirez said that he felt the attorney was trying to
force him to take the plea deal rather than go to trial.

His attorney, James Crawford, responded that he had been unable to get Ramirez
released before trial due to a federal immigration hold. He said he couldn't force the State
to make a better plea offer, and he said that he was willing and nearly prepared to defend
Ramirez at trial if Ramirez chose to go that route.

The district court said it wasn't persuaded that there was an irreconcilable conflict
or a complete breakdown in communications between Ramirez and Crawford. Still, the
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court said that it wasn't "necessarily closing the door absolutely" on reconsidering the
matter later.

About 2 months later, Ramirez filed another motion for a new attorney. This time,
Ramirez alleged that Crawford was racist and thought Ramirez was guilty because of his
immigration status. At a hearing, Ramirez said, "I don't really like the dude, to be honest
with you."

Crawford said he hadn't formed a personal belief about Ramirez' guilt but that he
had discussed the evidence with Ramirez several times, including how it was likely to be
viewed at trial. Crawford said he wasn't racist, citing his own African-American heritage
and courtroom work, and again said that he couldn't get Ramirez released before trial due
to an immigration hold.

Ramirez denied there was a hold, but the district court checked and determined
that there was. Ramirez then said, "Well, if I would have understood I had a hold, I
wouldn't be asking him to do all these things."

The court again denied Ramirez' motion, concluding that he had not shown
"justified dissatisfaction" with Crawford. The court said, "There is no basis here other
than Mr. Ramirez doesn't want to work with Mr. Crawford."

With that background in mind, we turn to the standards that guide our review.
While a criminal defendant's right to have effective representation includes being given a
court-appointed attorney if the defendant cannot afford one, he or she does not have a
right to choose the specific attorney who will be appointed. Accordingly, a defendant
must show "justifiable dissatisfaction" with the appointed attorney to get a new one;
justifiable dissatisfaction may be shown through a conflict of interest between attorney
and client, an irreconcilable disagreement, or a complete breakdown in communication.
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State v. Staten, 304 Kan. ___, ___ P.3d ___, 2016 WL 4258150, at *8 (2016); State v.
Brown, 300 Kan. 565, Syl. ¶¶ 2-3, 331 P.3d 797 (2014). We review the district court's
denial of a motion for new counsel for abuse of discretion. Accordingly, unless the
district court made a factual or legal error, we reverse its decision only if no reasonable
person would agree with it. State v. Pfannenstiel, 302 Kan. 747, 760-62, 357 P.3d 877
(2015); State v. Smith, 291 Kan. 751, 755, 247 P.3d 676 (2011).

Here, Ramirez did not show justifiable dissatisfaction. While he didn't "like" his
attorney, his complaints did not show any conflict of interest, irreconcilable
disagreement, or complete breakdown in communication. When we look for justifiable
dissatisfaction, we focus on whether the attorney is providing appropriate representation
in the adversarial process, not the relationship between the defendant and the attorney.
Pfannensteil, 302 Kan. at 761-62 (quoting United States v. Baisden, 713 F.3d 450, 454
[8th Cir. 2013]). While Ramirez was understandably disappointed that he wasn't offered a
better plea deal, that's a choice made by the prosecutor, not defense counsel. Ramirez
didn't point to any specific trial preparation that Crawford had failed to do. And Ramirez'
complaint about not getting out on bond pending trial wasn't well-founded; the district
court confirmed the immigration hold that prevented his release. A reasonable person
could agree with the district court that it was appropriate to keep Crawford on the case
rather than starting over with a new attorney. Accordingly, the district court properly
denied Ramirez' motions for a new attorney.

We reverse Ramirez' conviction for aggravated battery, vacate that part of the
sentence, and remand for further proceedings consistent with this opinion on that charge.
The district court's judgment is otherwise affirmed.