State v. Deere ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,259
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DARREL G. DEERE,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed May 6, 2022.
Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., CLINE, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Darrel G. Deere appeals his convictions for one count of felony
fleeing or attempting to elude a law enforcement officer, one count of felony interference
with a law enforcement officer, two counts of misdemeanor assault on a law enforcement
officer, and two counts of failure to signal a turn. Deere contends the district court erred
in failing to properly instruct the jury about the various charges alleged by the State.
Deere also contends that his conviction for fleeing or attempting to elude a law
enforcement officer is multiplicitous and that the prosecutor misstated the law during
closing argument. Finally, he contends that he did not receive a fair trial because of
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cumulative error. Based on our review of the record on appeal, we find no reversible
error. Thus, we affirm Deere's convictions.
FACTS
On the evening of January 3, 2019, Wichita Police Department Officers Jess
Bernard and Robert Thatcher—both in full uniform displaying a badge logo and in a
well-marked patrol vehicle with lights and sirens—were monitoring a vehicle with a
Missouri license plate for a possible tag violation. When the vehicle did not move for
some time, the officers resumed their patrol. Later that evening, they spotted a vehicle
they believed to be the one that they were previously monitoring—a maroon Saturn
sedan—as it turned in front of them onto Pawnee Street and started travelling westbound.
Officer Bernard turned the patrol vehicle around and followed the Saturn as it accelerated
and turned south onto Seneca Street.
As the officers followed the Saturn onto Seneca Street, the driver—later identified
as Deere—failed to signal before turning east onto Savannah Street. After observing the
traffic violation, Officer Bernard activated the emergency lights and siren on the patrol
vehicle to initiate a traffic stop. Deere then accelerated and turned north onto Osage
Street, once again without using his turn signal. As Deere approached Pawnee Street, he
failed to stop at a stop sign and failed to signal before turning east.
At that point, two other uniformed Wichita police officers—Officers Kyle Perry
and Christopher Ronen—took over the lead of the pursuit in their marked patrol vehicle
with their lights and sirens on. The officers were also both equipped with Axon body
cameras that captured the pursuit. The State would later introduce the footage from the
body cameras into evidence at trial.
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After Officers Perry and Ronen took over the pursuit, Deere once again failed to
use his turn signal as he turned north onto McClean Boulevard. While travelling on
McClean Boulevard, the officers estimated the Saturn's speed to be approximately 70
miles per hour in a 40 or 45 mile-per-hour zone. Meanwhile, Officer Steven McKenna—
who was positioned ahead of the pursuit—tried to deploy "stop sticks" at the intersection
of McLean Boulevard and Lincoln Street. However, Deere veered into oncoming lanes of
traffic and avoided the tire deflation device.
After avoiding the stop sticks, Deere ran a stoplight and failed to signal as he
turned west. He again failed to signal before turning north onto Osage Street. Next, Deere
ran a stop sign before turning back to the west on Dayton Street through a residential
neighborhood. At that point, the Saturn was travelling around 40 to 50 miles per hour in a
30 mile-per-hour zone. During the pursuit by the police, the officers observed the Saturn
bottoming out at times and sparks flying from underneath the car.
Deere ran a stop sign while crossing Seneca Street and nearly hit a truck in the
intersection. Deere ran another stop sign before turning south on Vine Street without
using a turn signal. He then ran yet another stop sign before crossing over McCormick
Street. Deere then ran another stop sign as he turned west onto Walker Street and struck a
curb as he turned. Next, Deere turned north onto Hiram Street. The officers were finally
able to catch up with the Saturn as it started losing air in its tires after hitting the curb.
Finally, Deere turned east onto Irving Street without using a turn signal, crossing Glenn
Street, and entering a dead-end street before coming to a stop.
After Officer Ronen parked the patrol vehicle he was driving behind the Saturn,
Officer Perry exited the vehicle and positioned himself behind the passenger door with
his gun drawn. Suddenly, Deere revved the engine of the Saturn, shifted into reverse, and
struck the front of the patrol vehicle. Officer Perry jumped out of the way and would
testify at trial that he feared that he would be knocked to the ground, run over, and killed.
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Likewise, Officer Ronen would testify at trial that he was scared for Officer Perry and
was also concerned that Deere's car might "ramp up on top of my car and crush me and
hurt me . . . ." Deere then shifted the Saturn back into drive and accelerated forward until
the car struck a fence and came to a stop. At trial, evidence would be presented that the
impact from the collision caused $538.60 in damage to the patrol vehicle and that hitting
the fence caused $265 in damage.
After coming to a stop for a second time, Deere exited the vehicle and ran to the
north. Officers Perry and Ronen gave chase on foot and commanded that Deere stop.
Following a short chase, Deere was taken into custody. A passenger—who was later
identified to be Deere's girlfriend—had remained in the car throughout the police pursuit
and foot chase. During a search of the Saturn, Officer Bernard recovered a black metal
hatchet and Deere later stipulated at trial to having a prior felony conviction that
prohibited him from possessing a weapon.
During a post-Miranda interview with Officer Perry, Deere admitted that he knew
the officers were pursuing him early in the pursuit. But Deere claimed that he had not
seen the stop sticks because he was already swerving to negotiate a turn onto Lincoln
Street. Deere also claimed that he did not mean to ram the Saturn into the police vehicle
after he was initially stopped. Instead, he stated that he had mistakenly put the car into the
wrong gear.
Based on these events, the State charged Deere with two counts of aggravated
assault on a law enforcement officer and two counts of felony fleeing and eluding; one
count each of felony interference with law enforcement for fleeing on foot, criminal
possession of a weapon, criminal damage to the police car, and criminal damage to the
fence; and two counts of failure to signal turns. The district court conducted a jury trial
from September 30, 2019, to October 3, 2019. At trial, several police officers testified
about what they observed during the pursuit. Additionally, the State introduced 29
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exhibits into evidence. The exhibits included footage of the pursuit taken from dashboard
and body cameras.
Deere testified in his own defense at trial. Although he admitted that he was the
driver of the Saturn that fled from the police, he claimed that he did not initially realize
that they were trying to pull him over. According to Deere, once he realized the police
were trying to pull him over, he was scared and hit the accelerator in an attempt to avoid
going to jail. Deere also admitted that the lights and sirens of the patrol vehicles were on
as he tried to get away.
During his testimony, Deere admitted to running several stop signs and at least one
stoplight. Moreover, he admitted to speeding and failing to use his turn signal when
making turns. Deere testified that he only stopped after he hit a curb and his tires started
to deflate. Although Deere did not deny striking the patrol vehicle with the Saturn he was
driving, he claimed that he accidentally bumped the gear shift into reverse as he leaned
over to kiss his girlfriend.
After considering the evidence and the instructions given by the district court, the
jury convicted Deere of two counts of misdemeanor assault on a law enforcement
officer—which had been given as lesser-included offenses, one count of felony fleeing or
eluding a law enforcement officer based on committing five or more moving violations
during the police pursuit, one count of felony interference with a law enforcement officer,
one count of criminal damage relating to hitting the fence, and two counts of failure to
signal turns. The jury acquitted Deere of one count of felony fleeing or eluding a law
enforcement officer based on causing intentional damage during a police pursuit, one
count of criminal damage to the police vehicle, and one count of criminal possession of a
weapon. The district court subsequently denied a motion for a new trial or for judgment
of acquittal filed by Deere following the trial.
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The district court ultimately sentenced Deere to a controlling term of 22 months in
prison—which included a 15-month prison sentence for felony fleeing and eluding a law
enforcement officer and a consecutive 7-month prison sentence for felony interference
with law enforcement. The district court ran the remaining misdemeanor sentences
concurrent with the felony sentences. Thereafter, Deere filed a timely notice of appeal.
ANALYSIS
Challenges to jury instructions
Deere makes several challenges to the jury instructions. When reviewing
challenges to jury instructions, an appellate court follows a multi-step process:
"'First, it considers the reviewability of the issue from both jurisdiction and
preservation viewpoints, exercising an unlimited standard of review; next, it applies
unlimited review to determine whether the instruction was legally appropriate; then, it
determines whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and
finally, if the district court erred, this court determines whether the error was harmless,
utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256
P.3d 801 (2011), cert. denied 565 U.S. 1221 [132 S. Ct. 1594, 182 L. Ed. 2d 205] (2012).'
[Citation omitted.]" State v. Owens, 314 Kan. 210, 235, 496 P.3d 902 (2021).
Deere acknowledges that he failed to request the instructions that he now claims
should have been given by the district court. Under these circumstances, we are only to
find reversible error upon a showing of clear error. See K.S.A. 2020 Supp. 22-3414(3);
Owens, 314 Kan. at 235. The party claiming a clearly erroneous instruction—in this case
Deere—maintains the burden to establish the degree of prejudice necessary for reversal.
State v. Castleberry, 301 Kan. 170, 180, 339 P.3d 795 (2014). The "'clearly erroneous'"
principle is not a framework for determining whether error occurred but provides a basis
for determining whether an error requires reversal of a conviction. State v. Williams, 295
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Kan. 506, 510, 286 P.3d 195 (2012); see also State v. Lewis, 299 Kan. 828, 856, 326 P.3d
387 (2014).
1. Failure to give lesser-included offense instructions on misdemeanor fleeing or
attempting to elude a law enforcement officer
Deere first argues that the district court should have given a lesser included
offense instruction for misdemeanor fleeing or attempting to elude a law enforcement
officer. In response, the State argues that because the evidence of five or more underlying
moving violations required for the felony conviction was "overwhelmingly clear," the
lesser included instruction for misdemeanor fleeing and eluding a law enforcement
officer was unnecessary. As indicated above, because Deere did not request this
instruction, we review the failure to give it for clear error. See K.S.A. 2020 Supp. 22-
3414(3); Owens, 314 Kan. at 235.
Our initial inquiry is whether the district court committed instructional error.
Under the first step of the analysis, we first determine whether the lesser-included
instruction was legally appropriate. A lesser-included offense includes a lesser degree of
the crime charged. K.S.A. 2020 Supp. 21-5109(b)(l). "In cases where there is some
evidence which would reasonably justify a conviction of some lesser included crime . . .
the judge shall instruct the jury as to the crime charged and any such lesser included
crime." K.S.A. 2020 Supp. 22-3414(3). A lesser included offense instruction is legally
appropriate when the lesser crime is an included offense of the crime charged, and it is
factually appropriate when some evidence would reasonably justify convicting the
defendant of the lesser included crime. K.S.A. 2020 Supp. 22-3414(3); State v. Holley,
313 Kan. 249, 255, 485 P.3d 614 (2021); State v. Armstrong, 299 Kan. 405, 432, 324
P.3d 1052 (2014).
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It is undisputed that misdemeanor fleeing and eluding a law enforcement officer is
a lesser included offense of felony fleeing or attempting to elude a law enforcement
officer. This is because all the elements of the misdemeanor offense are also elements of
the felony offense. See K.S.A. 2020 Supp. 8-1568(a)-(b); K.S.A. 2020 Supp. 21-
5109(b)(2). Accordingly, we find that a lesser included offense instruction of
misdemeanor fleeing and attempting to elude a law enforcement officer was legally
appropriate.
Turning to the second step of the analysis, we also find the facts support a lesser
included offense instruction because the State presented evidence that met all the
elements of misdemeanor fleeing and eluding a law enforcement officer. In determining
whether an instruction was factually appropriate, courts must determine whether there
was sufficient evidence, viewed in the light most favorable to the defendant or the
requesting party, that would have supported the instruction. Holley, 313 Kan. at 255. In
this case, all the elements of misdemeanor fleeing or attempting to elude were met.
Even though the lesser-included offense instruction was legally and factually
appropriate, Deere bears the burden of showing that the failure to give the instruction was
clear error and not harmless error. See Owens, 314 Kan. at 235. In other words, Deere has
the burden to show that the jury would have reached a different verdict if the error had
not occurred. See State v. Cooper, 303 Kan. 764, 772, 366 P.3d 232 (2016). Based on our
review of the record on appeal, we find that Deere has not met this burden.
Deere concedes that the State presented evidence of "several" traffic infractions.
Still, he claims that it is unclear whether the jury found that Deere committed five or
more offenses as specified in the instructions. He asserts that it is possible that the jury
may not have found him guilty of the five or more traffic offenses in addition to the two
failure to signal a turn offenses that were charged separately.
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The record reflects that the district court instructed the jury regarding two types of
speeding violations: "speeding: maximum speed limits" and "speeding: rules governing
speed of vehicles." In addition, the district court instructed the jury on failure to obey a
traffic-control signal and failure to obey a stop sign. The district court also defined each
of these moving violations by its elements for the jury. The jury was instructed that the
first type of speeding required that the State prove that Deere operated a vehicle "at a
speed in excess of the maximum speed limit." In addition, the jury was instructed that it
could find a moving violation for speeding if it found that Deere operated a vehicle "at a
speed greater than reasonable and prudent under the conditions and without regard for the
actual hazards then existing."
The record on appeal—including the officers' testimony as well as the video
evidence presented to the jury—establishes that the State presented sufficient evidence
that Deere committed five or more moving violations during the pursuit by police. In
particular, we find sufficient evidence in the record to show that Deere committed
speeding violations under both definitions. Additionally, Deere admitted at trial to
running a stoplight, speeding, and running "a couple" of stop signs. In fact, a review of
the video of the pursuit shows that Deere failed to obey a traffic-control signal at least
once, that he failed to obey a stop sign at least five times during the pursuit, and
committed several other traffic violations.
Deere also argues that "given [his] state of mind, one or more jurors could have
formed a reasonable doubt about several of the . . . alleged traffic violations." However,
traffic offenses are historically strict liability crimes in Kansas. As a result, a particular
mental state is generally not required to show culpability. See K.S.A. 2020 Supp. 21-
5203. Consequently, we find that the felony fleeing and eluding a law enforcement
officer charge did not require the State to prove a specific state of mind to establish that
Deere had committed five or more moving violations.
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Looking at the totality of the evidence, we have no difficulty concluding that the
State presented sufficient evidence of at least five moving violations to support Deere's
conviction for felony fleeing and eluding a law enforcement officer. As discussed above,
this evidence includes the video footage captured by dash cameras during the police
pursuit. Even if speeding was not counted as more than one violation, the evidence in the
record shows that Deere failed to stop at a stop sign on at least five occasions during the
pursuit.
Furthermore, the record reflects that the district court appropriately instructed the
jury regarding the type of traffic offenses that could be considered in determining
whether Deere committed five or more moving violations. On appeal, we presume that
the jury followed the instructions given by the district court. State v. Hillard, 313 Kan.
830, 845, 491 P.3d 1223 (2021); State v. Thurber, 308 Kan. 140, 194, 420 P.3d 389(2018). Under the circumstances presented, we do not find that the jury would have
reached a different result if the district court had given the lesser-included offense
instruction at the trial of this case. Therefore, we conclude that it was not clearly
erroneous for the district court to not provide the jury with the lesser-included instruction
of misdemeanor fleeing or attempting to elude a law enforcement officer.
2. Failure to instruct that the moving violations must occur during a police pursuit
For his second instructional issue, Deere argues that the district court erred by
failing to include an essential element of the crime of fleeing or attempting to elude a law
enforcement officer when it did not instruct the jury that the moving violations occurred
"during a police pursuit." To establish a violation of K.S.A. 2018 Supp. 8-1568(b)(1)(E),
the State had to prove that Deere committed five or more moving violations during a
pursuit by the police. Deere argues that he also committed offenses prior to the police
pursuit, and that the jury should have been instructed to only consider those moving
violations that occurred after the police attempted to stop the vehicle he was driving. In
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response, the State argues that when the jury instructions are read as a whole, it is
apparent that the moving violations had to occur after a driver is given a visual or audible
signal to bring the motor vehicle to a stop.
Once again, Deere acknowledges that he did not request that the district court add
the language to the proposed jury instruction. So, he has the burden to show that the
district court committed clear error. See K.S.A. 2020 Supp. 22-3414(3); Owens, 314 Kan.
at 235. A review of the record shows that Instruction No. 11—which was given by the
district court and provided the required elements of fleeing and attempting to elude a law
enforcement officer to the jury—was based on PIK Crim. 4th 66.110 (2014 Supp.). The
Kansas Supreme Court "'strongly recommend[s] the use of PIK instructions, which
knowledgeable committees develop to bring accuracy, clarity, and uniformity to
instructions.'" State v. Butler, 307 Kan. 831, 847, 416 P.3d 116 (2018). Here, it is
important to recognize that the recommended PIK instruction does not include the
additional language suggested by Deere. See PIK Crim. 4th 66.110.
Instruction No. 11 as given by the district court provided:
"l. The defendant was driving a motor vehicle.
"2. The defendant was given a visual or audible signal by a police officer to bring the
motor vehicle to a stop.
"3. The defendant willfully failed or refused to bring the motor vehicle to a stop for, or
otherwise fled or attempted to elude, a pursuing police vehicle.
"4. The police officer's vehicle, from which the signal to stop was given, was
appropriately marked showing it to be an official police vehicle.
"5. The defendant committed five or more moving violations: speeding: maximum speed
limits; speeding: rules governing speed of vehicles; failure to obey a traffic-control
signal; failure to obey a stop sign.
"6. This act occurred on or about the 3rd day of January, 2019, in Sedgwick County,
Kansas."
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So, the district court's instruction is nearly identical to the one recommended in
PIK Crim. 4th 66.110. However, the district court modified the fifth element to include
the types of traffic offenses that the jury could consider in determining whether Deere
committed five or more traffic offenses. We find this modification to be appropriate
considering the facts of this case. Although Deere suggests that the jury may have been
confused because the officers were investigating a possible tag violation before
attempting to initiate the traffic stop and he failed to signal a turn immediately prior to the
initiation of the police pursuit, neither of these offenses were included in Instruction No.
11 as the type that could be considered in determining whether Deere had committed five
or more moving violations during the police pursuit.
Of course, jury instructions should be considered as a whole to determine whether
they properly and fairly state the applicable law and whether the jury could have been
misled by them. See State v. Dupree, 304 Kan. 377, 394, 373 P.3d 811 (2016). When the
jury instructions in this case are read as a whole, it is evident that the State had the burden
to prove that Deere committed five or more moving violations of the type described in
Instruction No. 11 after "[t]he defendant was given a visual or audible signal by a police
officer to bring the motor vehicle to a stop." Furthermore, a review of the record reveals
that the moving violations relied on by the State to meet its burden all occurred after the
police officers attempted to stop the vehicle that Deere was driving.
We also find that the sequential order of the sections of Instruction No. 11 was
sufficient to inform the jury that it must find that the five or more moving violations
occurred after the officers signaled for Deere to bring the vehicle he was driving to a
stop. We note that this court has previously rejected the argument that failure to include
the words "during a police pursuit" constitutes reversible error. See State v. Powell, No.
117,914, 2019 WL 5849831, at *8 (Kan. App. 2019) (unpublished opinion); State v.
Gilmore, No. 110,833, 2015 WL 4366429, at *3 (Kan. App. 2015) (unpublished opinion).
Thus, we conclude that he has failed to show clear error, and reversal is not required.
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3. Failure to instruct regarding the culpable mental state for each of the moving
violations
Next, Deere argues that the district court erred by failing to instruct the jury as to
the culpable mental state for each of the moving violations he committed while fleeing or
attempting to elude the police. In response, the State argues that the moving violations on
which it based its charge are strict liability offenses and, as a result, no instruction about
Deere's mental state was required. Again, Deere acknowledges that he did not request an
instruction regarding his mental state. As a result, reversal of his conviction is only
required upon a showing of clear error. See K.S.A. 2020 Supp. 22-3414(3); Owens, 314
Kan. at 235.
As discussed above, the district court instructed the jury regarding several
potential moving violations, including two types of speeding violations, failure to stop at
a traffic-control signal, and failure to obey a stop sign. None of these traffic offenses are
of the nature that would require a culpable mental state to be proven. In Kansas, traffic
offenses have historically been considered to be absolute liability offenses. As our
Supreme Court found in State v. Lewis, 263 Kan. 843, Syl. ¶ 5, 953 P.2d 1016 (1998),
"[a] person may be guilty of an offense without having criminal intent if the crime is a
. . . traffic infraction and the statute defining the offense clearly indicates a legislative
purpose to impose absolute liability for the conduct described."
When Lewis was decided, K.S.A. 1997 Supp. 21-3204 also provided: "A person
may be guilty of an offense without having criminal intent if the crime is . . . a traffic
infraction and the statute defining the offense clearly indicates a legislative purpose to
impose absolute liability for the conduct described." In 2011, K.S.A. 21-3204 was
repealed and replaced with K.S.A. 21-5203. Like its predecessor, K.S.A. 2020 Supp. 21-
5203 states: "A person may be guilty of a crime without having a culpable mental state if
the crime is: (a) A misdemeanor, cigarette or tobacco infraction or traffic infraction and
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the statute defining the crime clearly indicates a legislative purpose to impose absolute
liability for the conduct described . . . ."
We pause to note that the Kansas Legislature recodified the Kansas Criminal Code
in 2011 and provided a new scheme related to culpable mental states. Deere argues that
this new scheme—in particular K.S.A. 2020 Supp. 21-5202—places a requirement on the
Kansas Legislature to affirmatively state that an offense does not require a mental state
for it to remain a strict liability crime. Nevertheless, the statutes setting forth the traffic
offenses that Deere committed during the police pursuit—K.S.A. 2020 Supp. 8-1508(c),
K.S.A. 8-1528, K.S.A. 8-1557, and K.S.A. 2020 Supp. 8-1558—have not been found by
either the Kansas Supreme Court or our court to require a culpable mental state. Even
though Deere makes a generalized argument that a mental state should be required where
a statute has no explicit statement to the contrary, he provides us with no analysis
regarding legislative intent behind the statutes at issue.
The question before us is whether the district court's failure to instruct the jury
regarding a culpable mental state for these violations amounts to clear error. Deere asserts
that had the jury been instructed to find at least a reckless mental state, there is a
possibility the outcome would have been different on one or more of the alleged traffic
violations. Nevertheless, based on our review of the record—especially Deere's own
testimony—we find that the State presented sufficient evidence upon which a reasonable
juror could find beyond a reasonable doubt that Deere's actions in fleeing from the police
and committing numerous moving violations in the process were intentional. Specifically,
Deere testified that he chose not to stop when the police attempted to initiate the traffic
stop and instead tried to get away in an effort to avoid arrest. Likewise, the officers'
testimony and the videotape evidence corroborate Deere's testimony that he acted
intentionally to avoid being taken into custody. Of course, intentional conduct is the
highest culpable mental state. K.S.A. 2020 Supp. 21-5202(b) and (c). Under these
circumstances, we do not find that the jury would have reached a different verdict if the
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jury had been instructed to find a culpable mental state associated with each of the
moving violations committee by Deere during the police pursuit. For these reasons, we
conclude Deere has failed to show clear error.
4. Failure to give a lesser-included offense instruction of misdemeanor
interference with a law enforcement officer
Deere also argues that the district court erred by not instructing the jury on the
lesser included offense of misdemeanor interference with a law enforcement officer.
Since Deere did not request a jury instruction for the lesser included offense of
misdemeanor interference with a law enforcement officer, Deere has the burden to show
clear error. See K.S.A. 2020 Supp. 22-3414(3); Owens, 314 Kan. at 235. In response to
Deere's argument, the State candidly concedes that misdemeanor interference with a law
enforcement officer under K.S.A. 2020 Supp. 21-5904(a)(3), (b)(5)(B) can be a lesser
included offense of felony interference with a law enforcement officer under K.S.A. 2020
Supp. 21-5904(a)(3), (b)(5)(A). See State v. Hudson, 261 Kan. 535, 536, 931 P.2d 679(1997). However, the State argues that it is not appropriately considered as a lesser
included offense under the facts of this case.
The classification of a charge of interference with a law enforcement officer as a
felony or a misdemeanor depends on the officer's authority, knowledge, and intent.
Hudson, 261 Kan. at 538. "The touchstone for the classification of the offense is the
reason for the officer's approaching the defendant who then flees or otherwise resists, and
not the status of the defendant. Thus, the [correct] classification under [K.S.A. 2020
Supp. 21-5904] depends on what the officer believed his duty to be as he discharged it."
261 Kan. at 538-39.
Deere suggests that the lesser included offense instruction is supported by the fact
that the officers attempted to stop him for a misdemeanor traffic violation. But the
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evidence in support of the felony interference with a law enforcement officer charge
flows not from the initial attempt to stop Deere for a traffic infraction. Instead, the charge
stems from Deere's decision to flee from the police on foot after he had initially stopped,
backed into a police vehicle, and crashed into a fence.
Officer Perry testified that when Deere first came to a stop—unlike a "routine
traffic stop"—he followed a specific procedure by exiting the patrol vehicle with his
service weapon drawn to try and apprehend Deere in a "controlled and safe" manner.
Likewise, Officer Perry testified that after Deere backed the Saturn into the police vehicle
and attempted to drive away, they were conducting a felony car stop. To support the
charge of felony interference with a law enforcement officer, the State presented
evidence that both Officers Perry and Ronen believed they were apprehending Deere for
a felony when he fled on foot after hitting the fence.
We find no evidence in the record to suggest that the interference charge here
stemmed from Deere "knowingly obstructing, resisting or opposing" arrest for a
misdemeanor or traffic infraction. Rather, we find that the evidence presented at trial
supported the officers' belief that they were attempting to make a felony arrest when they
pursued Deere on foot. As such, a lesser-included instruction for misdemeanor
interference with law enforcement would not have been factually appropriate under the
circumstances presented. See K.S.A. 2020 Supp. 22-3414(3). Thus, we conclude the
district court properly instructed the jury regarding felony interference, and a lesser-
included offense instruction for misdemeanor interference was not appropriate.
5. Failure to instruct that the interference occurred in the case of a felony
Deere's next claim of instructional error is based on his assertion that the district
court erred by not instructing the jury that interference with law enforcement officer must
occur "in the case of a felony." See K.S.A. 2020 Supp. 21-5904. Once again, Deere failed
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to request that the district court add the words "in the case of a felony" to the interference
with a law enforcement instruction. As such, reversal of his conviction is only required if
Deere can show clear error. See K.S.A. 2020 Supp. 22-3414(3); Owens, 314 Kan. at 235.
The jury was instructed that it could convict Deere of interference with a law
enforcement officer if it found the following elements:
"l. Kyle Perry and Christopher Ronen were discharging an official duty, namely
arrest for fleeing or attempting to elude an officer.
"2. The defendant knowingly resisted Kyle Perry and Christopher Ronen in
discharging that official duty.
"3. The act of the defendant substantially hindered or increased the burden of the
officer in the performance of the officer's official duty.
"4. At the time the defendant knew or should have known that Kyle Perry and
Christopher Ronen were law enforcement officers.
"5. This act occurred on or about the 3rd day of January, 2019, in Sedgwick
County, Kansas."
As we addressed previously, our Supreme Court "'strongly recommend[s] the use
of PIK instructions, which knowledgeable committees develop to bring accuracy, clarity,
and uniformity to instructions.' [Citation omitted.]" Butler, 307 Kan. at 847. Here, we
find that the instruction given by the district court is consistent with PIK Crim. 4th
59.040 (2019 Supp.), which does not include the words "in the case of a felony." The
Notes on Use for the PIK Instruction explain that "[i]nterference with law enforcement by
obstructing official duty is a severity level 9, nonperson felony in the case of a felony, or
resulting from parole or any authorized disposition for a felony." In addition, the
comments to PIK Crim. 4th 59.040 cite to the holding in Hudson and note that the
classification of the offense turns upon the knowledge and intent of the officer. See
Hudson, 261 Kan. 535.
17
In Instruction No. 12, the district court instructed the jury that in order to convict
for felony interference with a law enforcement officer, it had to find that "Kyle Perry and
Christopher Ronen were discharging an official duty, namely arrest for fleeing or
attempting to elude an officer." Although the words "in the case of a felony" would have
been legally appropriate to add to the instruction, the evidence presented at trial
supported a finding that Deere had committed a felony before attempting to escape on
foot. Moreover, Deere presented no evidence to suggest that Officers Perry and Ronen
subjectively believed they were pursuing an arrest for a misdemeanor at the time of the
foot chase. See Hudson, 261 Kan. at 535. Hence, we conclude that the words "in the case
of a felony" were not necessary under the circumstances presented and that the district
court did not commit clear error.
6. Failure to give a lesser-included offense instruction of simple assault
Deere's final claim of instructional error is that the district court erred by failing to
instruct the jury on the offense of simple assault as a lesser-included offense of assault of
a law enforcement officer. Yet again, since Deere did not request a jury instruction for
the lesser-included offense of simple assault, he has the burden to show clear error
requiring reversal. See K.S.A. 2020 Supp. 22-3414(3); Owens, 314 Kan. at 235. Based on
our review of the record on appeal, we find that he has not met his burden.
In Kansas, the offense of simple assault is defined by statute as "knowingly
placing another person in reasonable apprehension of immediate bodily harm." K.S.A.
2020 Supp. 21-5412(a). The district court instructed the jurors as to the elements of
aggravated assault of a law enforcement officer and the lesser included offense of assault
of a law enforcement officer. Deere was found guilty of two counts of the lesser-included
offense of assault of a law enforcement officer.
18
To find Deere guilty of assault of a law enforcement officer, the jury was
instructed that it had to find:
"1. The defendant knowingly placed [Kyle Perry or Christopher Ronen] in reasonable
apprehension of immediate bodily harm.
"2. [Kyle Perry or Christopher Ronen] was a uniformed or properly identified city law
enforcement officer.
"3. [Kyle Perry or Christopher Ronen] was engaged in the performance of his duty.
"4. This act occurred on or about the 3rd day of January, 2019, in Sedgwick County,
Kansas."
At trial, the State presented evidence that Officers Perry and Ronen were properly
identified law enforcement officers engaged in the official performance of their duty
when Deere backed into their marked patrol vehicle. Furthermore, Deere admitted that he
was fleeing from the police to avoid arrest and detention. We find that this evidence
excluded the possibility of Deere being guilty of the lesser-included offense of simple
assault at the time of the collision. If the jury concluded an assault took place, then Deere
was guilty of assaulting a law enforcement officer based on the evidence. As a result, we
conclude that a jury instruction for simple assault was not factually appropriate based on
the evidence presented at trial.
Challenge to conviction as multiplicitous
For the first time on appeal, Deere contends that his single conviction for fleeing
or attempting to elude a law enforcement officer is multiplicitous. In support of this
claim, Deere speculates that the jury may have counted a single moving violation for
speeding as more than one moving violation in finding the five moving violations
necessary to support his conviction. In response, the State maintains that a claim of
multiplicity must necessarily involve two convictions, and Deere is only challenging one
conviction as multiplicitous.
19
Generally, this court does not consider issues raised for the first time on appeal.
State v. Gonzalez, 311 Kan. 281, 295, 460 P.3d 348 (2020). However, our Supreme Court
has heard multiplicity issues for the first time on appeal under the exception for
preventing the denial of fundamental rights. 311 Kan. at 295. An appellate court's review
of multiplicity challenges is unlimited. 311 Kan. at 295. "The Double Jeopardy Clause
prevents a defendant from being punished more than once for the same crime." 311 Kan.
at 296. Multiplicity occurs when a single offense is charged as several offenses in a
charging document. 311 Kan. at 296.
Here, the jury convicted Deere of one count of fleeing or attempting to elude a law
enforcement officer. Deere argues that the underlying moving violations supporting the
conviction make the single conviction multiplicitous. A similar multiplicity argument has
previously been rejected by this court in State v. Young, No. 107,056, 2013 WL 4778148(Kan. App. 2013) (unpublished opinion). In Young, the defendant argued that his felony
fleeing or attempting to elude a law enforcement officer conviction was "multiplicitous
because the elements of the offense were proved by multiple instances of two different
moving violations." 2013 WL 4778148, at *6. In rejecting this argument, this court
recognized that there could be no multiplicity when a defendant was convicted of one
crime.
The Young panel explained:
"Moreover, his interpretation defeats the purpose of the felony fleeing or eluding statute,
ostensibly designed to enhance public safety by deterring extended chases. If a car flees
from police by running 20 stop signs in a row, Young argues this is only a single moving
violation. Although appellate courts must strictly construe statutes in favor of the
accused, judicial interpretation must be reasonable and sensible to effect legislative
design and intent. State v. Coman, 294 Kan. 84, 96, 273 P.3d 701 (2012). Clearly,
Young's argument lacks merit when multiple traffic violations occur. Each time a new
stop sign is run, another violation occurs.
20
"According to the record and Young's stipulation at the bench trial, his behavior
constituted at least five moving violations—failing to observe two stop signs and one
traffic light, failing to yield to an emergency vehicle, and two speeding violations. He
was found guilty at the bench trial. The single count of felony fleeing or attempting to
elude a police officer by means of five or more moving violations is not multiplicitous—
it is only one charge." Young, 2013 WL 4778148, at *6-7.
Subsequently, in State v. Cruse, No. 108,923, 2014 WL 1362647 (Kan. App.
2014) (unpublished opinion), this court again rejected a similar multiplicity argument. In
Cruse, the defendant argued that multiple instances of unsafe turning and failing to signal
a turn were multiplicitous. The Cruise panel found that the multiplicity analysis ends
before it even begins when there is only one conviction at issue. The panel reasoned that
a "single count of fleeing and eluding or attempting to elude a law enforcement officer by
means of five or more moving violations is not multiplicitous—it is a single criminal act
and is represented by only one charge and one conviction." 2014 WL 1362647, at *3. We
agree with this analysis and conclude that there is no multiplicity issue when there is a
single conviction.
Deere also suggests that his conviction for fleeing and eluding should be reversed
based on State v. Richardson, 290 Kan. 176, 224 P.3d 553 (2010). But unlike
Richardson, the district court in this case gave the jury much more extensive instructions
regarding the types of moving violations that the State must prove to support the fleeing
and eluding charge. The district court defined each type of moving violation for the jury.
As such, we find that the jury was properly instructed in this case regarding the State's
burden to establish that Deere committed five or more moving violations during the
police pursuit.
21
Prosecutorial Error
Deere also contends that his conviction for fleeing or attempting to elude a law
enforcement officer should be reversed because of prosecutorial error. In support of his
argument, Deere points to a misstatement that the prosecutor made during closing
argument. Deere asserts that the misstatement invited the jury "to convict [him] of felony
fleeing and eluding based on moving violations that were not part of the instructions
given to the jury."
We use a two-step process to evaluate claims of prosecutorial error: error and
prejudice. To determine whether prosecutorial error has occurred, we must first decide
whether the prosecutorial acts fall outside the wide latitude afforded the prosecutor to
conduct the State's case. If error is found, we must next determine whether the error
prejudiced the defendant's due process rights to a fair trial. Prosecutorial error is harmless
if the State can show there is no reasonable possibility that the error contributed to the
verdict. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).
A prosecutor commits error by misstating the law. State v. Watson, 313 Kan. 170,
179, 484 P.3d 877 (2021). When a misstatement of controlling law is made deliberately,
it is outside the considerable latitude given to prosecutors during their arguments. State v.
Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006). Here, the misstatement occurred when the
prosecutor was reviewing the jury instructions and the evidence she believed supported
each charge.
When the prosecutor came to Instruction No 11, she argued:
"Instruction No. 11. This goes to Count 4 with flee an[d] elude with five or more
moving violations. So the elements here are similar to that of Instruction 10 but a little bit
different. Similar in that the defendant's driving. Defendant's given the visual and audible
22
signal by law enforcement to stop, that the defendant fails to make the stop, that it is a
marked patrol vehicle. All of those things being the same as the prior one.
"But here's where it's different: That the defendant committed five or more
moving violations, those being speeding, going excessive speed limits, failing to obey the
traffic control signals, failing to obey a stop sign.
"There was testimony from a number of different officers of all the traffic
violations that the defendant committed; that the defendant, himself, admitted that he ran
stop signs, that he ran stoplights, that he made turns without turning on his signal.
There's plenty of evidence to find five or more of those moving violations." (Emphasis
added.)
So, the record reflects that the prosecutor initially correctly stated what moving
violations the jury could consider as part of the five or more moving violations. However,
the prosecutor then mistakenly included the failure to turn violations when speaking
about the evidence she believed supported five or more moving violations. It appears
from the record that the misstatement was isolated and not repeated. Likewise, it appears
that the misstatement was not made intentionally to mislead the jury. Even so, it was
erroneous.
Because the prosecutor erred, we must turn to the question of whether the error
was harmless beyond a reasonable doubt under the standard set forth in Chapman v.
California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). In making this
determination, we view the isolated misstatement in the light of the entire record. We also
presume that the jury followed the instructions given by the district court. Hillard, 313
Kan. at 845. Here, we find that the district court appropriately instructed the jury as to the
types of moving violations that could be considered in reviewing the fleeing and eluding
charge. In addition, the district court instructed the jury that "[s]tatements, arguments,
and remarks of counsel are intended to help you in understanding the evidence and
applying the law, but they are not evidence. If any statements are made that are not
supported by evidence, they should be disregarded."
23
Furthermore, a review of the record reveals that the State presented overwhelming
evidence of five or more moving violations that did not include failure to signal a turn.
This evidence included Deere's own admissions, the testimony of several police officers,
and video evidence depicting numerous moving violations committed after the pursuit
began. Consequently, when we consider the entire record, we find no reasonable
possibility that the isolated misstatement by the prosecutor contributed to the verdict or
denied Deere the right to a fair trial. Sherman, 305 Kan. at 109.
Cumulative Error
Finally, Deere argues that cumulative error requires reversal of his convictions. In
some cases, the cumulative effect of errors at trial may indeed require reversal of the
defendant's conviction. State v. Hirsh, 310 Kan. 321, 345, 446 P.3d 472 (2019). In
considering whether cumulative error requires reversal, we consider whether the totality
of the circumstances substantially prejudiced the defendant and denied him or her a fair
trial.
When the evidence in support of a conviction is overwhelming, the defendant
cannot establish prejudicial error. 310 Kan. at 345-46. Moreover, reversal is not
warranted if there has been no error or only one error at trial. See State v. Bowser, 312
Kan. 289, 308-09, 474 P.3d 744 (2020). Having found only one error in this case, we find
no cumulative error.
In conclusion, based on our review of the record on appeal, we find that the
evidence presented by the State at trial was overwhelming. We also find that Deere
received a fair trial. We, therefore, affirm his convictions.
Affirmed.
24