State v. Williams

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NOT DESIGNATED FOR PUBLICATION

No. 114,525

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHAVEZ WILLIAMS,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 13, 2017.
Affirmed.

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

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., ATCHESON and ARNOLD-BURGER, JJ.

Per Curiam: Defendant Chavez Williams appeals his convictions for burglary and
theft on the grounds the Reno County District Court erred in declining to instruct the jury
on a defense of compulsion. Nothing in the trial evidence—including Williams' own
testimony—established a factual basis for the defense. For the first time on appeal,
Williams also disputes a portion of the restitution award for damage to the store he
burglarized because the jury acquitted him of criminal damage to property. His complaint
about the restitution fails both procedurally and substantively. We, therefore, affirm the
convictions and the sentence.

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FACTUAL AND PROCEDURAL HISTORY

In June 2014, Williams broke into a convenience store in Pretty Prairie and stole
several cartons of cigarettes. The next day, the owner of the store found a broken window
but couldn't identify any missing merchandise. The crime came to light a couple of weeks
later when two men brought packs of cigarettes to the store and explained to the owner
that Williams had asked them to hold on to the cigarettes. According to the men,
Williams said he had gone into the store through a back window and stole the cigarettes.
The owner then reported the break-in to the police.

Reno County Sheriff's Deputy Andrew Soule investigated the crime.
Conveniently, Williams had taken up residence at the Reno County jail as the result of
another criminal charge. During the second of two interviews with Deputy Soule,
Williams admitted breaking into the convenience store and stealing six cartons of
cigarettes. According to Williams, he had been hanging around with Mason Phillips and
Gage Benson, and the three wound up in the parking lot behind the store after it had
closed for the day. In Williams' account of the caper, Benson jokingly suggested breaking
into the store and stealing some merchandise. Phillips went to the back window and
broke it with his elbow. Phillips then announced that either Williams or Benson had to go
inside and take some stuff and if they didn't, he knew people who would come find them
if they "ratted" on him for breaking the window. At trial, Williams testified that he
understood Phillips to be making a threat to have him beaten up sometime in the future if
he didn't participate in the break-in. Williams told the jurors that's why he entered the
store and took the cigarettes. The State called Phillips and Benson as witnesses. Each of
them denied participating in the break-in or even being at the convenience store with
Williams.

The State charged Williams with burglary, a felony; misdemeanor theft; and
misdemeanor criminal damage to property. Williams asked the district court to instruct
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the jury on compulsion as a defense. See K.S.A. 2015 Supp. 21-5206(a). The district
court refused because the evidence taken in the best light for Williams would not support
the defense. The jury convicted Williams of burglary and theft and found him not guilty
of criminal damage to property.

The district court later sentenced Williams to 16 months in prison for the burglary
and a concurrent jail term of 12 months for the theft and placed him on probation for 24
months. The State asked the district court to order Williams to pay $119.50 in restitution
to the owner of the convenience store, itemized this way: $89.80 for the stolen cigarettes;
$12.20 for a replacement window; and $17.50 for labor to install the new window.
Williams' trial lawyer told the district court Williams had no objection to the restitution.
The district court ordered restitution as the State had requested. Williams has appealed.

LEGAL ANALYSIS

On appeal, Williams contends the district court erred in refusing to instruct the
jury on compulsion and in ordering him to pay $29.70 in restitution for repair of the
broken store window. We take those points up in that order.

Compulsion Defense

The defense of compulsion excuses otherwise criminal conduct, except for murder
or voluntary manslaughter, if an individual acts because of a threat of "the imminent
infliction of death or great bodily harm" on him or her or on a member of his or her
immediate family. K.S.A. 2015 Supp. 21-5206(a). In that circumstance, the person
commits all of the elements of the coerced crime but does so not with a requisite bad
intent or moral blameworthiness but to avoid serious injury or death. The law generally
treats that sort of compelled conduct as insufficiently culpable to be criminally punished.
See United States v. Mitchell, 725 F.2d 832, 835 (2d Cir. 1983); McMillan v. State, 428
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Md. 333, 348-51, 51 A.3d 623 (2012); State v. St. Clair, 262 S.W.2d 25, 27-28 (Mo.
1953) (recognizing defense of compulsion or duress and reversing robbery conviction).
But intentional homicides traditionally have been excepted from the compulsion defense
based on a moral judgment that a person may not kill with impunity to avoid his or her
own threatened death. McMillan, 428 Md. at 350-51.

As the language of K.S.A. 2015 Supp. 21-5206(a) reflects, compulsion requires an
immediate threat of grave physical harm. See State v. Matson, 260 Kan. 366, 385, 921
P.2d 790 (1996); State v. Pichon, 15 Kan. App. 2d 527, 536, 811 P.2d 517 (1991)
(compulsion defense no longer available to defendant "once the immediate threat . . . had
passed"). The paradigmatic case of compulsion or duress as a defense is the person who
acts with a gun to his or her head. So threats that might be carried out at some abstract
future time don't constitute compulsion within the scope of K.S.A. 2015 Supp. 21-
5206(a). Matson, 260 Kan. at 385. Implicit in the immediacy requirement is some
reasonable basis to believe the person making the threat also has the present ability to
carry it out. See State v. Anderson, 287 Kan. 325, 197 P.3d 409 (2008) (objective
standard of reasonableness applicable to compulsion defense).

Here, the temporal component of a colorable compulsion defense effectively
undoes Williams' claim. In his own testimony, Williams described a sort-of threat from
Phillips resting on Phillips' suggestion he or someone else might do something if the
break-in were traced to him. Phillips, of course, disavowed any connection to the crime.
The only evidence of the purported threat was Williams' description to the jury. The
testimony fails to come close to depicting an immediate threat. At best, the threat was
conditional and remote.

The nature of the threat itself was similarly abstract. According to Williams,
Phillips didn't describe what would happen. Williams inferred he might be beaten up.
That sort of inference about a vaguely described event that might (or might not) take
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place in the indeterminate future also likely fails to qualify as a threat of death or great
bodily harm.

A district court is obligated to instruct a jury on affirmative defenses that have
some support in the evidence. K.S.A. 2015 Supp. 21-5108(c) ("A defendant is entitled to
an instruction on every affirmative defense that is supported by competent evidence."). In
K.S.A. 2015 Supp. 21-5108(c), the legislature also codified what essentially had been the
accepted common-law definition of competent evidence by describing it as that evidence
"allow[ing] a rational fact finder to reasonably conclude . . . the defense applies." See
Anderson, 287 Kan. at 334 (common-law standard for instructing on defense requires
"'evidence which, viewed in the light most favorable to the defendant, is sufficient to
justify a rational factfinder finding in accordance with the defendant's theory'").
Measured against that standard, Williams failed to present evidence that, even if believed,
would support a compulsion defense. Accordingly, the district court properly refused to
provide an instruction to the jury on compulsion.

We, therefore, find no error in that respect and affirm Williams' convictions for
burglary and theft.

Restitution Order

For his other point on appeal, Williams contends he should not have been assessed
$29.70 in restitution for the repair of the broken store window. As we have mentioned,
Williams acceded to the district court's restitution order without objection. He has raised
the challenge for the first time in this court. To avoid the customary bar to consideration
of issues raised for the first time on appeal, see State v. Holt, 298 Kan. 469, 481, 313 P.3d
826 (2013) (noting and applying rule), Williams characterizes that part of the restitution
order as an illegal sentence covered by K.S.A. 22-3504(1). As provided in K.S.A. 22-
3504(1), a court may correct an illegal sentence at any time. Williams submits that
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ordering restitution for the broken window amounts to an illegal sentence because the
jury acquitted him of criminal damage to property, a charge based on that damage to the
store.

We doubt Williams accurately casts the restitution order as an illegal sentence
correctable under K.S.A. 22-3504. Although K.S.A. 22-3504 does not define an illegal
sentence, the Kansas Supreme Court has held that a motion may be brought under the
statute only when the sentencing court lacks jurisdiction, a sentence fails to conform to
the law either in character or term of punishment, or the sentence is in some material way
ambiguous as to how it must be satisfied. State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d
780 (2012). Here, the district court had jurisdiction, and there is nothing ambiguous about
the restitution order. Williams doesn't argue otherwise. But with respect to the broken
window, he says the restitution order represents an impermissible sentence because of its
character or term. We think not.

Restitution is not only an authorized component of a sentence for a defendant
placed on probation but a mandatory one. K.S.A. 2015 Supp. 21-6607(c)(2). So
restitution, by its character, obviously conforms to the law. That is, the law permits
restitution as a form of punishment. But punishment by ducking stool, for example,
presumably would be an illegal sentence in Kansas because of its character. Nowhere is it
or anything like it authorized in the sentencing statutes.

Similarly, the restitution order for the broken window did not exceed an
authorized "term" of punishment. An unauthorized term would be one that differs from
the statutorily permitted or required degree of punishment. For example, we have held
that a district court illegally sentences a defendant by imposing a finite term of
postrelease supervision for sex crimes that statutorily require mandatory lifetime
postrelease supervision. See State v. Rau, No. 115,228, 2016 WL 7031971 (Kan. App.
2016) (unpublished opinion). And misclassifying a defendant's past convictions for
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criminal history purposes also results in an illegal sentence if he or she is then assigned
too high a presumptive guideline punishment. See State v. Dickey, 305 Kan. 217, 220-22,
380 P.3d 230 (2016). Fines exceeding the statutory limits in K.S.A. 21-6611 would
amount to illegal sentences. But there is no comparable monetary cap on restitution.

A restitution award of $29.70 is of a character and term permitted under Kansas
law. Accordingly, Williams cannot invoke K.S.A. 22-3504 as a way to circumvent his
failure to dispute a portion of the restitution order in the district court. He presents no
other grounds for considering his claim of error for the first time on appeal. That is
sufficient to affirm the district court's order.

Even on the merits, however, Williams' challenge fails. As provided in K.S.A.
2015 Supp. 21-6607(c)(2), a district court placing a criminal defendant on probation
"shall order the defendant to . . . make reparation or restitution to the aggrieved party for
the damage or loss caused by the defendant's crime." (Emphasis added.) The amount of
restitution and how it should be paid largely rest within the district court's discretion and
typically will be reviewed on appeal for abuse of that authority. See State v. Shank, 304
Kan. 89, 93, 369 P.3d 322 (2016). A district court exceeds judicial discretion if it rules in
a way no reasonable judge would under the circumstances, if it ignores controlling facts
or relies on unproven factual representations, or if it acts outside the legal framework
appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co.,
296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013); State v. Ward, 292
Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Here, the
relevant facts are undisputed. Williams' argument turns on the legal principles or
framework governing restitution and whether the district court's order conformed to those
principles. The issue functionally presents a question of law.

Defendants may be ordered to pay restitution only if the loss has been caused by
their crimes of conviction unless they have agreed to pay restitution for crimes that were
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never charged or have been dismissed. State v. Dexter, 276 Kan. 909, Syl. ¶ 3, 80 P.3d
1125 (2003); State v. Chandler, No. 107,111, 2013 WL 1234223, at *2 (Kan. App. 2013)
(unpublished opinion). The Kansas Supreme Court has recognized the language in K.S.A.
2015 Supp. 21-6607(c)(2) does not require a direct causal link between the crime and the
loss—an indirect connection may be sufficient. In discussing the predecessor to K.S.A.
2015 Supp. 21-6607(c)(2), the court said: "Although not all tangential costs incurred as a
result of a crime should be subject to restitution, [citation omitted], there is no
requirement that the damage or loss be 'directly' caused by the defendant's crime." State v.
Hall, 298 Kan. 978, 990, 319 P.3d 506 (2014). It made the same point in State v. Hand,
297 Kan. 734, 739, 304 P.3d 1234 (2013) ("[T]he statute's reference to damage or loss
'caused by' a defendant's crime is not modified by the adverb 'directly.'").

Williams argues that because he was acquitted of the criminal damage to property
charge, he cannot be required to pay restitution for the broken window, since that was the
damage. There is, of course, an undeniable surface logic to the argument. And it would
be valid if the criminal damage to property charge were the only one related to the break-
in at the store. A defendant who has been acquitted of all of the charges against him or
her associated with a criminal episode can't be punished in any way for that episode. But
the jury here did convict Williams of burglarizing the store and stealing the cigarettes.

In turn, the burglary conviction bears a sufficient causal relationship to the broken
window to support a restitution order for that damage. There is, at the very least, an
indirect connection of the sort sufficient under K.S.A. 2015 Supp. 21-6607(c)(2) to
require restitution. The burglary count required the State to prove Williams entered or
remained in the store without the owner's authority and with the intent to commit a theft
there. K.S.A. 2015 Supp. 21-5807(a)(1). Breaking the window was the means of entry
and, therefore, entailed an integral part of the burglary. That causal connection
sufficiently supports a restitution order for the damage. See State v. Miller, 51 Kan. App.
2d 869, 873-74, 355 P.3d 716 (2015) (damage to building done when entering as part of a
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burglary properly included in restitution order). Had the State never charged Williams
with criminal damage to property—so the jury would not have rendered a verdict on it
one way or the other—the restitution order plainly could have (and should have) included
the cost of repairing the window based on the burglary conviction.

Moreover, evidence from the trial proved the requisite causal connection between
the burglary and the damage to the store necessary for the restitution order. Williams
testified that he acted in concert with Phillips and Benson to break into the store and steal
the cigarettes. By his own admission under oath, Williams acted as a coconspirator and
an aider and abettor of the burglary and theft, including Phillips' breaking of the window
to gain access to the store—assuming he wasn't coerced into participating (and he
wasn't). All of that establishes an unbroken connection between the burglary and the
damage to the window. The broken window was part and parcel of the burglary,
according to Williams. The connection is more than sufficient to impose restitution on
him for the repairs.

In short, the jury's decision to convict Williams of the burglary coupled with his
own testimony at trial furnished adequate factual and legal bases for the district court to
order him to pay restitution for the repair of the window. He can't escape the legal
consequences of his admissions at trial that render him a culpable participant in the
burglary. The jury's decision to acquit Williams of criminal damage to property neither
negates that evidence nor breaks the causal connection between the burglary and the
broken window for purposes of imposing restitution on him consistent with K.S.A. 2015
Supp. 21-6607(c)(2). Cf. State v. Hargrove, 48 Kan. App. 2d 522, 559, 293 P.3d 787
(2013) ("This court may consider evidence relevant to both charges in deciding whether
the record supports the jury's guilty verdict on attempted aggravated burglary irrespective
of the not guilty verdict on the criminal damage to property charge.").

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We typically ought not read very much into verdicts convicting defendants of
some charges and acquitting them of other, related charges. General verdicts tend to be
inscrutable as to a jury's reasoning or motives in arriving at what sometimes seem
discordant conclusions on interlocking charges. Courts may take into account all of the
trial evidence in considering the sufficiency of that evidence to support guilty verdicts
even when defendants have been acquitted of related or even predicate crimes. As the
Hargrove court explained:

"In Powell, a unanimous Supreme Court acknowledged that a jury's not guilty
verdict on one charge may appear inconsistent with its guilty verdict on another charge
against the same defendant. But a reviewing court typically should not try to look behind
the verdicts to discern a particular motive, purpose, or meaning in the jury's actions. See
[United States v. Powell], 469 U.S. [57] at 64–65, [105 S.Ct. 471, 83 L. Ed.2d 416
(1984)]. The jurors might have been confused about how to perform their duty, resulting
in seemingly discordant verdicts. Or they may have chosen to show lenity toward the
defendant by returning a not guilty verdict on one or more charges despite the evidence
and the instructions—exercising the absolute, if unsanctioned, power of nullification
afforded juries in criminal cases. A court, however, cannot insightfully analyze the basis
for the result and, therefore, ought not impute a particularized meaning to it. 469 U.S. at
65–67. Delving into a jury's verdicts to accurately discern what may have prompted them
insinuates the court into processes that have typically and traditionally been treated as
nearly sacrosanct. 469 U.S. at 67.

"In turn, the Powell Court recognized that inconsistent verdicts should not
influence the review of a defendant's challenge to the sufficiency of the evidence
supporting the offense on which a jury brought back a guilty verdict. The Court stated:
'Sufficiency-of-the-evidence review involves assessment by the courts of whether the
evidence adduced at trial could support any rational determination of guilty beyond a
reasonable doubt. [Citations omitted.] This review should be independent of the jury's
determination that evidence on another count was insufficient.' 469 U.S. at 67. The
Kansas Supreme Court embraced the reasoning of Powell and drew heavily from that
decision in [State v.] Beach, 275 Kan. [603] at 618–20, [67 P.3d 121 (2003)]." Hargrove,
48 Kan. App. 2d at 560.
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The rationale of Powell and Beach should apply with equal force to the restitution issue
before us. If a court can consider evidence to support a jury's guilty verdict on one charge
notwithstanding an acquittal on another charge largely dependent upon much of the same
evidence, surely that court must be able to consider the evidence in assessing restitution
against a duly convicted wrongdoer. Accordingly, the district court properly ordered
Williams to pay restitution for the broken window, since he admitted being a participant
in the burglary that directly resulted in the damage and the jury convicted him of that
crime.[*]

[*]In this case, there is a fairly logical explanation for the jury's split verdict, apart
from confusion or nullification. The jury was never instructed on the criminal liability of
aiders and abettors. See PIK Crim. 4th 52.140 (person responsible for any other crime
committed in carrying out the intended crime if the other crime is reasonably
foreseeable). The jury appears to have generally credited Williams' version that he acted
in concert with Phillips and Benson—otherwise it would have convicted him of all three
charges. But in Williams' account, Phillips actually broke the window. Without being
informed of the law on aiding and abetting, the jury reasonably could have concluded
Williams should not be convicted of criminal damage to property because he personally
didn't break the window even though that act was essential to the burglary. The State's
theory of the case had Williams acting alone, and it called Phillips and Benson to testify
to that effect. In keeping with that testimony, the State did not argue the jury should
convict based on the concerted action of Williams, Phillips and Benson. Nor did it
request jury instructions, such as PIK Crim. 4th 52.140, consistent with concerted action.
The jury wasn't so much confused about the law as it was less than fully informed. Of
course, it's entirely possible the jury accepted the State's theory and simply found the
criminal damage to property charge to be prosecutorial piling-on, leading to a limited
exercise of nullification. Regardless, however, Williams' burglary conviction supports the
restitution award.

Affirmed.