State v. Jordan ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,848
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
WILLIE B. JORDAN JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed July 29, 2022.
Affirmed.
Nicholas David, of The David Law Office LLC, of Lawrence, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: In 2017, Willie B. Jordan Jr. broke into Mindy Ackerson's
apartment with a shotgun in hand. He fired once, hitting Ackerson's houseguest, Gregory
Huggins, in the arm. A stray shotgun pellet struck another houseguest, Leona
Hammerland, in the foot. Hammerland fled to the apartment balcony and jumped. Jordan
was quickly apprehended, and the State charged him with several crimes, including
aggravated assault against Hammerland. At trial, Hammerland testified she did not feel
fearful during the incident and never believed she was in harm's way. Even so, the jury
convicted Jordan on all counts, including aggravated assault. The district court sentenced
him to 117 months in prison. On appeal, Jordan contends the State failed to present
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sufficient evidence to sustain his conviction for aggravated assault given that
Hammerland testified she did not fear for her life during the incident. However, the
record before us contains other evidence to establish that a reasonable jury could
conclude that Hammerland experienced significant fear during the attack, despite her
contentions to the contrary when required to testify in Jordan's presence. Thus, following
a review of the evidence in the light most favorable to the State, we have no hesitancy in
concluding that sufficient evidence was adduced at trial to support the jury's guilty
verdict for the aggravated assault of Hammerland.
FACTUAL AND PROCEDURAL BACKGROUND
On April 29, 2017, Mindy Ackerson hosted a dinner gathering for her friends
Leona Hammerland, Gregory Huggins, and one other acquaintance. While Ackerson
finished meal preparations in the kitchen, Willie Jordan Jr.—an acquaintance of
Ackerson's—burst into her apartment wielding a sawed-off shotgun. He fired once, which
struck Huggins in the right arm, and a stray buckshot pellet hit Hammerland in the foot.
Ackerson and Hammerland sought refuge on the balcony but, seemingly unconvinced of
her safety, Hammerland opted to jump to the ground below. Ackerson reentered the
apartment and found that Jordan had left so she drove Huggins to the hospital.
Meanwhile, Hammerland secreted herself in the building's basement and called her
mother.
Jordan was arrested a few months later and a Shawnee County grand jury indicted
him on two counts of aggravated battery and one count each of aggravated burglary,
aggravated assault with a deadly weapon, criminal possession of a weapon, and criminal
damage to property.
Jordan's case proceeded to trial. Hammerland testified that she and Jordan shared a
friendship and that Huggins and Jordan argued over money just before the shooting. She
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told the jury that Jordan broke into Ackerson's apartment and shot Huggins in the arm,
and a stray buckshot pellet struck her left foot. As for Hammerland's escape to the
balcony, the following exchange occurred:
"[PROSECUTOR]: Right, Ms. Hammerland, I want to go back to the apartment. We had
just gotten through that you had stated that Mr. Huggins got shot. He was shot by Willie
Jordan. That you also got some of the spray into your foot, and that's part of the injuries
that we just went through with the pictures. You testified you jumped off the balcony—
"[HAMMERLAND]: Yes, I did.
"Q: When—when you heard these shots—
"A: I don't remember, I just did it.
"Q: Okay. Now when you heard the shots, were you ever in fear?
"A: I wouldn't really say fear. I would say, kind of, shocked. I don't know what—I don't
know how—I don't know. I was just—I didn't want to be involved in it.
"Q: Right. Did you think you were going to be in some type of harm's way, and that's
why you jumped?
"A: I'd say no."
Topeka Police Officer Zachary Goodman was present when Hammerland
identified Jordan in a lineup and testified that Hammerland was visibly upset and
trembling during that process. The State also presented an audio recording of
Hammerland's interview with Detective Charles Wilson during which she could be heard
sobbing and telling the detective "I'm so scared" as she recounted the shooting.
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At the conclusion of the parties' respective cases, the court instructed the jury on
the charged offenses. As for the aggravated assault instruction, the district court informed
the jury that the State carried the burden to prove three elements in order to establish
Jordan's guilt beyond a reasonable doubt: (1) Jordan knowingly placed Hammerland in
reasonable apprehension of immediate bodily harm; (2) he did so with a deadly weapon;
and (3) the act occurred on April 29, 2017, in Shawnee County. The jury returned a guilty
verdict on all counts, and the district court sentenced him to serve 117 months in prison.
Jordan timely brings his case before us to assess the sufficiency of the evidence to
support his aggravated assault conviction.
ANALYSIS
THE STATE PRESENTED SUFFICIENT EVIDENCE TO SUSTAIN JORDAN'S
CONVICTION FOR AGGRAVATED ASSAULT
Jordan's sole argument on appeal is that the State failed to present sufficient
evidence to convict him of aggravated assault. He directs our attention to Hammerland's
denial that she ever feared for her life during the shooting—a statutory prerequisite of
aggravated assault. See K.S.A. 2016 Supp. 21-5412(b)(1). The State counters this
assertion with references to several pieces of evidence adduced at trial that demonstrated
Jordan's actions caused Hammerland to fear for her life.
When a criminal defendant challenges the sufficiency of evidence underlying a
conviction, this court reviews the evidence in a light most favorable to the State to
determine whether a rational fact-finder could have found the defendant guilty beyond a
reasonable doubt. A conviction of even the gravest offense may be based entirely on
circumstantial evidence and the inferences fairly deducible therefrom. State v. Potts, 304
Kan. 687, 694, 374 P.3d 639 (2016).
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The jury convicted Jordan of aggravated assault in violation of K.S.A. 2016 Supp.
21-5412(b)(1), which makes it a crime to knowingly place a person in reasonable
apprehension of immediate bodily harm through the use of a deadly weapon. On the other
hand, a foundation for the offense is lacking when the intended victim does not suffer
such apprehension. State v. Deutscher, 225 Kan. 265, 272, 589 P.2d 620 (1979); State v.
Martinez, 20 Kan. App. 2d 824, 834, 893 P.2d 267 (1995). Jordan contends
Hammerland's testimony undercuts the State's theory, and thus there is no evidence to
support his conviction.
Jordan rests his argument on State v. Warbritton, 215 Kan. 534, 527 P.2d 1050(1974). In that case, Michael Warbritton shot his wife in their bedroom and then
confronted his mother-in-law, Mary Bailey, in the living room. He pointed a gun at
Bailey, who was holding Warbritton's baby. At trial, Bailey testified she did not fear for
her life because she did not believe Warbritton would shoot her while she was holding his
child. Yet, the jury still found him guilty of the aggravated assault of Bailey. On appeal,
the Kansas Supreme Court acknowledged that while "the atmosphere was heavily fraught
with danger and was threatening enough to have induced apprehension on the part of
Mrs. Bailey for her personal safety," the aggravated assault statute, K.S.A. 1971 Supp.
21-3410, required both objectively fearful circumstances and the subjective fear of the
victim. 215 Kan. at 537. The court determined that since Bailey testified she did not
experience fear during the incident, which was the only evidence introduced regarding
her emotional state, the State failed to prove the necessary elements of the offense. 215
Kan. at 537-38.
The State challenges Jordan's assertion by guiding us toward several cases which
have sought to clarify Warbritton's rule. In State v. Lessley, 271 Kan. 780, 782, 26 P.3d
620 (2001), Gregory Lessley accosted a woman in the parking lot of an apartment
complex and brandished a gun in front of Sarah Blackman, who was in the passenger seat
of a nearby car. The woman pleaded with Blackman not to leave, but once Blackman saw
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Lessley's gun, she directed her husband to drive away. The State charged Lessley with
the aggravated assault of Blackman, but Blackman testified at trial that she never feared
Lessley would hurt her so long as she distanced herself from the dispute. Blackman's
husband, on the other hand, testified that Blackman was frightened during the incident.
The jury convicted Lessley of the aggravated assault of Blackman and he appealed,
arguing that Warbritton required reversal of his conviction. The Kansas Supreme Court
disagreed and held that a reasonable jury could conclude that Blackman's insistence for
her husband to drive away, in the face of the other woman's pleas that they stay, stemmed
from her fear of harm. 271 Kan. at 790. Thus, despite Blackman's testimony that she was
not scared, the court determined that contrary testimony provided sufficient evidence to
convict Lessley of aggravated assault.
The Supreme Court followed Lessley in State v. Brown, 300 Kan. 565, 331 P.3d
797 (2014). In that case, Quartez Brown pointed a gun at Ashley Green during a home
invasion and directed her to lie down on the floor. The State charged Brown with several
crimes, including aggravated assault of Green. At trial, Green testified that while she did
feel fearful during the incident, she also thought there might be a chance Brown and his
cohorts were friends of her boyfriend and just playing around. The jury still convicted
Brown of aggravated assault, and he also argued on appeal that Warbritton required
reversal of that conviction. The Kansas Supreme Court rejected that argument and found
the facts of his case bore greater similarity to Lessley:
"Although Green testified that she initially thought the men might be playing a joke on
[her boyfriend], she clearly said that she considered it a threat when they pointed the guns
at her. Moreover, if she were not afraid, why did she immediately comply with the armed
men's demand to get on the ground? If a person complies with a demand made at
gunpoint, it is logical to infer that the compliance was motivated by a fear of bodily
harm." 300 Kan. at 584.
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In short, the court determined that Green's behavior offered a compelling factor to
consider. In the case before us, Hammerland testified she did not experience any fear
during the confrontation at Ackerson's apartment. But her actions belie that assertion.
Hammerland and Ackerson both testified that after Hammerland was shot, she escaped to
Ackerson's balcony and promptly jumped over the edge. When she landed on the ground
below, she immediately sought sanctuary in the building's basement and called her
mother. Again, the jury also heard Officer Goodman's testimony that Hammerland was
shaking and looked scared when she identified Jordan as the assailant. And in
Hammerland's recorded interview with Detective Wilson, that the prosecutor played for
the jury, Hammerland cried when she provided him with details about the shooting and
remarked that she was very afraid.
Thus, while Hammerland claimed to be unafraid during the shooting, the other
evidence adduced at trial suggested otherwise. This evidence, viewed in the light most
favorable to the State, is sufficient to support the jury's finding that Jordan was guilty
beyond a reasonable doubt of aggravated assault.
Affirmed.
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