State v. Rhoades

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NOT DESIGNATED FOR PUBLICATION

No. 116,945

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

ROBERT DALE RHOADES,
Appellee.

MEMORANDUM OPINION


Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed December 22, 2017.
Reversed and remanded.

Rachel L. Pickering, assistant district attorney, Jodi Litfin, deputy district attorney, Michael F.
Kagay, district attorney, and Derek Schmidt, attorney general, for appellant.

Matthew R. Williams, of Topeka, for appellee.

Before PIERRON, P.J., ATCHESON, J., and WALKER, S.J.

PIERRON, J.: The State appeals the district court's finding that probable cause did
not exist to bind over Robert Dale Rhoades for trial on the charges of aggravated battery,
intentional, great bodily harm; or in the alternative aggravated battery, physical contact.

Robert was charged with battery-physical contact, or in the alternative, battery-
bodily harm on February 10, 2016. The alleged incident was said to have occurred on
December 6, 2014. An amended complaint was filed on August 31, 2016, which charged
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Robert with aggravated battery, intentional, great bodily harm; or in the alternative
aggravated battery, physical contact.

The preliminary hearing was held on November 17, 2016. Sandra Holly testified
that on December 6, 2014, she and her husband, Danny Holly, went to Robert and Peggy
Rhodes' house to watch a football game. Sandra stated the four were drinking beer and
Fireball. She had seven to eight shots that night and three beers while at Robert's house.
Around 9:30 p.m. they turned off the game and started listening to loud music. Everyone
started dancing. Sandra testified she went to the bathroom, and when she came out she
saw Peggy dancing with Danny. Robert approached her and said, "Don't let that bother
you." Sandra walked towards a sitting area when Robert jumped in front of her and said
"you're mad, you're mad." Sandra insisted she was not mad, but Robert continued to tell
her she was mad.

Sandra stated that Robert stepped in front of her, backed her up, and grabbed her
shirt. Robert was aggressive and told her she was not going over there "and start shit with
[her husband]." Sandra turned to get around Robert, and he grabbed her by the neck and
backed her up to a hot tub very quickly. Sandra hit the corner of the hot tub, and Robert
hyperextended her over the hot tub. He was very aggressive and Sandra was scared.
Sandra told Robert to let go of her neck, and he pushed her around the corner of the hot
tub. She tried to move, and Robert threw her to the floor and she landed on all fours. He
came up behind her and put his hands on her neck and pushed her down. Sandra thought
he was going to put one of his wrestling moves on her. Sandra screamed at Peggy and
Peggy ran to Robert. Robert got off of Sandra and stood up.

The testimony varied. Sandra testified that Robert ran at her "like a bullet" with his
hands up. He grabbed her shoulder and pushed over to the hot tub. He grabbed her neck
with both of his hands and started squeezing. Peggy was screaming at Robert. Sandra
stated her eyes started rolling back in her head and she felt like she was going to pass out.
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Robert jumped off the hot tub and because he had ahold of her neck, Sandra followed
him "like a dog on a leash." Sandra hit Robert in the eye, and Robert kicked her feet out
from under her and slammed her to the floor on her back. He then hit her eye about five
times, hit her jaw five times, hit her temple, and hit in the upper eye five times. He hit her
in the mouth several times. Sandra stated she was "in and out of it." When she came to he
hit her forehead and hit her head on the floor.

Sandra was able to leave the house at some point and went to a neighbor for help.
She went to the hospital after the incident and received treatment. She stated that since
the incident she has had memory loss and a scar on her face and agreed that her face "isn't
as symmetrical" anymore.

Sandra testified on cross-examination that she is about 6 feet tall and Robert is
about 5 feet 3 inches tall. Before the incident, she had a few beers before they went to
dinner around 3:30 p.m. At the restaurant she had three rum and cokes. After the
restaurant, they went to Robert's house and had the beer and shots. She further testified
she has gotten angry when she has been drunk before. After the incident the police had to
detain her.

Officer Kelsey Krogmann responded to the incident at Robert's home. He
contacted Sandra and Danny outside the home and they appeared to be intoxicated.
Officer Krogmann stated Sandra was not very cooperative at the scene. He had to restrain
her and place her in his patrol vehicle. She then started kicking at the windows in the
patrol vehicle.

Officer Krogmann met with Robert who had a cut lip. Robert told Krogmann that
his face had been bloody but he had cleaned it up. Robert stated that Sandra had attacked
him and struck him approximately two times. Robert then told Krogmann he had struck
Sandra approximately six to eight times. Krogmann determined the initial aggressor was
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Sandra through verbal altercation. Krogmann testified that Robert and Peggy were fairly
calm that evening, while Sandra appeared angry. He indicated Sandra had a swollen eye
and a lot of blood on her as well as some marks on her neck.

Peggy testified that at some point in the evening they turned the football game off
and turned on music instead. She started dancing with Danny. She stated that in her
house, when you exit the bathroom you can see the front doors and the hot tub, but you
cannot see the kitchen. The bathroom is on the other side of the house from the kitchen.
When you exit the bathroom you have to walk through the entire house to get to the
kitchen. Peggy stated Danny, Robert, and she were sitting at the table and Sandra was not
present. Robert got up and walked towards the kitchen. She heard a scuffle and saw
Robert and Sandra struggling back and forth. Robert had blood dripping off of his chin
and he was yelling "she hit me, she hit me," and they went down on the floor. Peggy
stated she got in-between them trying to break them up and there were fists flying. She
indicated this was nowhere near the hot tub. She testified she never saw Robert throw a
punch or choke Sandra. Danny was in the room the entire time.

After the incident, Peggy cleaned up Robert's face. His tooth had put a hole in his
lip. She stated that throughout the incident she did not see Robert acting aggressively.

Peggy testified that when Sandra and Danny showed up at her house before
dinner, Sandra seemed as though she had already been drinking and she was "pretty
tipsy." Since she was driving that evening, she was trying not to drink and had a pretty
clear memory of what happened.

Robert testified Sandra hit him twice and he hit her back after she had attacked
him. He had been sitting at the table with Peggy and Danny when he went into the
kitchen. He stated he had never strangled Sandra, slammed her against the wall, or
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punched her. The incident had occurred on the opposite side of the house from the hot
tub, and he never bent her over backwards on the hot tub.

At the end of hearing evidence, the district court stated it found it very difficult to
believe any of the witnesses who were present because they were intoxicated and the
event had occurred two years prior. It found Sandra's testimony was inconsistent with the
layout of the Rhoades household. The court indicated that while it must view the
evidence in the light most favorable to the State, that did not mean it could ignore
contradictory testimony. The court stated there were various levels of intoxication and to
a point, Robert was defending himself, and it could not tell that he was ever the
aggressor. Ultimately, based on the information and testimony the court had heard, it
found there was no probable cause to believe that either of the felonies charged as
alternatives were committed in this case.

The State appeals. It argues the district court erred when it found there was no
probable cause to bind over Robert on the charges of aggravated battery, intentional,
great bodily harm; or in the alternative aggravated battery, physical contact. We
reluctantly agree with the State.

Appellate courts exercise de novo review over a district court's probable cause
determination at a preliminary hearing. State v. Fredrick, 292 Kan. 169, 171, 251 P.3d 48
(2011).

In reviewing the evidence, the district court draws inferences in favor of the State.
Moreover, the evidence need only show probable cause, not guilt beyond a reasonable
doubt. Even if the evidence is weak, the defendant should be bound over for trial if the
evidence tends to establish that the offense was committed and that the defendant
committed it. State v. Washington, 293 Kan. 732, 733-34, 268 P.3d 475 (2012).

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At a preliminary hearing, the district court examines the evidence to determine "(1)
whether a crime has been committed and (2) whether there is probable cause to believe
that the accused committed the crime." 293 Kan. at 733. The evidence does not need to
prove guilt beyond a reasonable doubt, just probable cause. 293 Kan. at 733. Probable
cause is "evidence sufficient to cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the accused's guilt." State v. Berg, 270
Kan. 237, 238, 13 P.3d 914 (2000) (citing State v. Puckett, 240 Kan. 293, Syl. ¶ 1, 729
P.2d 458 [1986]). The judge at a preliminary hearing must draw inferences favorable to
the State from the evidence presented and should not be concerned with sufficiency of the
evidence to support a conviction. Washington, 293 Kan. at 734. Even if the evidence is
weak, the defendant should be bound over for trial if there is probable cause that the
offense charged was committed and that the defendant committed it. 293 Kan. at 734.

In order to bind over Robert for aggravated battery, intentional great bodily harm,
under K.S.A. 2016 Supp. 21-5413(b)(1)(A), the State had to prove that Robert knowingly
caused great bodily harm or disfigurement to Sandra. In the alternative, in order to bind
Robert over for the charge of aggravated battery, physical contact, under K.S.A. 2016
Supp. 21-5413(b)(1)(C), the State had to prove that Robert knowingly caused physical
contact to Sandra in a manner whereby great bodily harm, disfigurement, or death could
be inflicted.

At the preliminary hearing, Sandra, Robert, and Peggy presented contradictory
testimony. Everyone present for the incident was intoxicated. Sandra had a few beers
before going to dinner around 3:30 p.m., three rum and cokes at the restaurant, and seven
to eight shots and three beers while at Robert's house. Sandra's testimony on how the
events occurred was inconsistent with the layout of Robert and Peggy's home.

Officer Krogmann testified he believed Sandra was the initial aggressor in the
altercation between her and Robert. He stated Sandra was very angry and uncooperative
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while Robert and Peggy were fairly calm. He did note that Sandra had a swollen eye and
a lot of blood on her as well as some marks on her neck. Robert had a cut on his lip.

There was testimony presented that would support the positions of both sides. The
district court's comments on the intoxication of almost everyone and the lapse of time
since the incident were well taken. A jury might well find there was insufficient evidence
to convict Rhoades. However, even if the evidence is contradictory, there was evidence
supporting the State's contention that there was probable cause to bind over Rhoades on
the charges. We note that the judge at a preliminary hearing must draw inferences
favorable to the State from the evidence presented. A serious physical altercation
occurred, and if the State's contentions are accepted, there was evidence to support a
finding of probable cause. There were significant injuries cause by the physical
altercation.

We find there was probable cause that the crimes charged were committed by
Rhoades. We reverse the district court's finding that there was no probable cause. We
remand for further proceedings consistent with this decision.

Reversed and remanded.