State v. Sutton ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 120,603
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SEAN P. SUTTON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JOHN J. KISNER JR., judge. Opinion filed January 29, 2021.
Affirmed.
Jennifer C. Roth, 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 WARNER, P.J., POWELL, J., and MCANANY, S.J.
PER CURIAM: A jury found Sean Sutton guilty of aggravated assault after he
threatened his mother with a kitchen knife. He appeals, arguing that various statements
the prosecutor made during closing argument and the wording of the verdict form
deprived him of a fair trial. Sutton also claims that the district court's posttrial finding in a
journal entry that he committed this offense with a deadly weapon was insufficient to
require him to register as a violent offender under the Kansas Offender Registration Act
(KORA). After considering the parties' arguments and the record before us, we affirm
Sutton's conviction and obligation to register under KORA.
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FACTUAL AND PROCEDURAL BACKGROUND
In March 2018, Sean Sutton was living with his girlfriend in his 73-year-old
mother's basement in Wichita. Sutton came home late one evening in a foul mood,
apparently upset with his boss after he had a bad day at work. When he arrived home,
Sutton was staggering and his pupils were dilated, causing his mother to believe he was
drunk.
Sutton asked his mother where dinner was; she replied that dinner was ready to eat
in the kitchen. Sutton responded by shouting at her that he needed a "fucking steak
knife." Sutton's mother went to get a knife for him and said something that apparently
upset him. The two then began arguing about Sutton's behavior and proceeded to struggle
over the cutlery drawer, which broke in the process. Sutton's girlfriend went outside to
smoke a cigarette to avoid the fight, but she could still hear Sutton and his mother yelling
from outside.
According to Sutton's mother, he then picked up a steak knife and "he stuck the
knife in my face and said, you need to die so I can live the way I want to." Sutton's
mother later testified that although he never made physical contact with her and she was
not injured in any way, Sutton had the knife pointed at her face and was aggressively
waving it around in a slashing motion. (Sutton's girlfriend painted a different picture of
the altercation, stating that although Sutton was only a couple feet from his mother, he
never put the knife directly in her face.) Sutton's mother, who was scared and believed
her son might stab her in the face, ran to the living room and called the police.
The State charged Sutton with aggravated assault and domestic battery. Sutton's
case proceeded to trial, and the jury found him guilty of aggravated assault but not guilty
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of domestic battery. Sutton appeals his conviction and the requirement that he register as
a violent offender under KORA.
DISCUSSION
1. Sutton received a fair trial.
Sutton challenges several aspects of the State's actions and the district court's
rulings at trial. He claims that the prosecutor committed reversible error during closing
argument by misrepresenting various aspects of Kansas law. And he asserts the verdict
form the district court provided to the jury undermined the presumption of his innocence
and diminished the State's burden of proof. Sutton contends that these alleged errors,
individually or in combination, deprived him of his right to a fair trial.
In the discussion that follows, we address each of Sutton's claims and find no error
by the State or the district court. We thus affirm his conviction for aggravated assault.
1.1. The State did not commit prosecutorial error during closing argument.
Sutton first challenges the fairness of his trial by asserting that the State committed
prosecutorial error during closing argument. Sutton claims that the prosecutor's argument
veered from the acceptable bounds of argument in three ways—by misstating an element
of aggravated assault, by inaccurately telling the jury how to consider the lesser-included
offense of assault, and by providing incorrect information concerning the defense of
voluntary intoxication.
Appellate courts use a two-step analysis for evaluating claims of prosecutorial
error. State v. Chandler, 307 Kan. 657, Syl. ¶ 5, 414 P.3d 713 (2018). First, we determine
whether a prosecutor's actions fall outside the latitude afforded to attorneys arguing at
trial. If a prosecutor engaged in impermissible conduct (that is, if the prosecutor erred),
we proceed to the second step and consider whether the error is reversible—whether the
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prosecutor's actions prejudiced the defendant's right to a fair trial under the constitutional
harmless-error standard provided in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967). Chandler, 307 Kan. 657, Syl. ¶¶ 6-7.
Sutton argues that the prosecutor first misled the jury in her arguments relating to
the elements of aggravated assault. To prove Sutton committed this offense, the State
needed to show that he knowingly placed another person (his mother) in reasonable
apprehension of immediate bodily harm with a deadly weapon (the steak knife). K.S.A.
2019 Supp. 21-5412(b). Sutton contends that, despite this requirement, the prosecutor at
one point during closing argument invited the jury to conclude merely that a reasonable
person—not Sutton's mother herself—would have feared being injured by the knife.
Sutton points to the following line of argument by the prosecutor:
"You have the testimony of both [Sutton's mother] as well as the testimony of [Sutton's
girlfriend], who was at the time in a relationship with the defendant and is still in a
relationship with the defendant. Both of them described the defendant's actions with the
knife that night. That these behaviors—would they be reasonable, would they put a
typical person in fear of their safety? Someone yielding a knife in front of them within a
short distance. Would it place someone in reasonable apprehension? Is it reasonable for
someone to be scared of their safety in that moment?"
This argument arose in the context of the prosecutor's explanation of the reasonable-
apprehension element. The prosecutor's statement cannot be viewed in isolation, but
rather must be understood in light of her argument. Immediately before making the
statement Sutton points to in his brief, the prosecutor stated:
"Looking at aggravated assault or even the lesser-included offense of assault, the
first element that the defendant knowingly placed [his mother] in reasonable
apprehension of immediate bodily harm. Basically did the defendant do something? Did
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he knowingly perform an action that made her scared that she would get hurt, that she
would be injured?" (Emphasis added.)
A prosecutor cannot deliberately misstate the law. State v. Stone, 291 Kan. 13, 18,
237 P.3d 1229 (2010); State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006). But the
prosecutor here did not do so. When viewed in context, the prosecutor correctly stated the
applicable element of aggravated assault. She then went on to explain why the State
believed that Sutton's mother feared immediate injury when Sutton brandished the knife
and why her fear was objectively reasonable. The prosecutor appropriately argued the
elements the State was required to prove and did not misstate the law.
Sutton also argues the State inaccurately described the sequence in which the jury
should consider the instructions relating to aggravated assault and the lesser-included
offense of assault. In her closing argument, the prosecutor explained that the jury need
only consider the lesser-included offense if the jurors did not agree on whether Sutton
committed an aggravated assault by using a deadly weapon. She argued:
"You only look at the lesser-included offense of assault if you cannot agree on
aggravated assault. Ultimately if you as a jury cannot agree that element 2, that the
defendant did so with a deadly weapon, if you cannot agree on that element and you are
steadfast that you will not be able to agree, that is the only time you look at the lesser-
included offense of assault. You don't even consider that instruction until you have
decided and made a decision with regard to the aggravated assault instruction."
(Emphases added.)
Sutton claims that this explanation was again a misstatement of the law. He argues
that under State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982), a jury is not
required to unanimously find a defendant innocent of a greater charge before moving on
to consider a lesser-included charge. Sutton suggests that the jury should instead have
simultaneously considered the charges for assault and aggravated assault.
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We note, at the outset, that the portion of the prosecutor's argument Sutton now
challenges was entirely consistent with the district court's instructions to the jury. In its
instructions, the court explained, "If you do not agree Mr. Sutton is guilty of aggravated
assault, you should consider the lesser-offense of assault." The court also instructed the
jury that "[w]hen there is a reasonable doubt as to which of the two or more offenses the
defendant is guilty, he may be convicted of the lesser offense only[,] provided the lesser-
offense has been proven beyond a reasonable doubt." Both instructions follow the Pattern
Jury Instructions approved by the Kansas Supreme Court. See PIK Crim. 4th 68.080
(2016 Supp.) (lesser-included offense instruction); PIK Crim. 4th 69.010 (2016 Supp.)
(providing an example of a sequential consideration of primary and lesser-included
offenses in the context of a first-degree murder charge); see also State v. Butler, 307 Kan.
831, 847, 416 P.3d 116 (2018) (the Kansas Supreme Court "'strongly recommend[s] the
use of PIK instructions, which knowledgeable committees develop to bring accuracy,
clarity, and uniformity'" to jury trials).
Sutton did not object to these instructions at trial and does not challenge either
instruction on appeal. Instead, he presents his claim as one of prosecutorial error,
apparently arguing that the prosecutor erred when she explained the law in the same
manner the court had instructed. We need not determine whether this is an appropriate
avenue for presenting this claim, however, because Sutton's argument regarding
simultaneous consideration is not supported by Kansas caselaw.
In State v. Sims, 308 Kan. 1488, 1501, 431 P.3d 288 (2018), the Kansas Supreme
Court found that there is no "statutory or constitutional foundation" for requiring
simultaneous consideration of a principle and lesser-included offense. After reviewing its
caselaw, the court held that "the practical considerations involved in mandating
simultaneous consideration by a jury of lesser included offenses weigh against the rule."
308 Kan. at 1503. The court thus overruled its earlier cases requiring simultaneous
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consideration of offenses and clarified sequential consideration—the approach described
by the prosecutor in Sutton's case—was "legally appropriate." 308 Kan. at 1505; see 308
Kan. 1488, Syl. ¶ 2.
It follows that the State did not err by telling the jury that it should proceed to
consider the lesser-included offense of assault only if it could not agree whether Sutton
committed aggravated assault. The prosecutor's statements did not misrepresent the law;
rather, they were consistent with the Kansas Supreme Court's decision in Sims and the
court's approved jury instructions. They were well within the bounds of permissible
argument.
Lastly, Sutton challenges the prosecutor's statements regarding the unavailability
of a voluntary-intoxication defense in this case. The district court did not instruct the jury
on voluntary intoxication or the legal impact, if any, of Sutton's drunken state when he
argued with his mother. But during the State's closing argument, the prosecutor
commented that Sutton's inebriated state at the time of the incident could not be
considered as a factor negating his mental culpability to commit aggravated assault: "You
do not have that instruction because it does not apply to these crimes." Sutton argues that
this was an incorrect statement of law and that the jury could have considered whether his
intoxication prevented him from acting knowingly.
This position is incorrect. Kansas law defines aggravated assault, as it relates to
this case, as "knowingly placing another person in reasonable apprehension of immediate
bodily harm," when "committed . . . [w]ith a deadly weapon." K.S.A. 2019 Supp. 21-
5412(a), (b)(1). Because the State must show a defendant committed this act knowingly,
aggravated assault is a general-intent crime. K.S.A. 2019 Supp. 21-5202(i); see State v.
Kershaw, 302 Kan. 772, 780-82, 359 P.3d 52 (2015) (concluding aggravated assault of a
law enforcement officer is a general-intent crime since the offense must be committed
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knowingly). And "[v]oluntary intoxication is not a defense to the prosecution of a general
intent crime." 302 Kan. at 782.
In Kershaw, our Kansas Supreme Court held that it was "legally appropriate" for a
district court to instruct the jury that "'voluntary intoxication is not a defense'" to the
crime of aggravated assault of a law enforcement officer. 302 Kan. at 782. The court
explained that "the legislature's designation of a general intent mental culpability
requirement where a crime is defined by the term 'knowingly' continues to express a
legislative intent that a voluntary intoxication defense is unavailable for that crime." 302
Kan. at 782.
Here, Sutton was charged with aggravated assault—a general-intent crime. As
such, the prosecutor's statement that voluntary intoxication was not an available defense
was a correct statement of the law. Sutton's third claim of prosecutorial error fails.
Sutton has not identified any error in the prosecutor's closing argument.
1.2. The verdict form was consistent with Kansas law and Kansas Supreme
Court precedent.
Sutton next challenges the organization of the verdict form, noting that the form
placed the line where the jury could find him "guilty" above the line where the jury could
find him "not guilty." He argues this arrangement inverted the presumption of innocence
under the Sixth and Fourteenth Amendments to the United States Constitution and
deprived him of a fair trial.
Kansas courts have traditionally reviewed verdict forms using the same standards
utilized to review jury instructions because the verdict form is included as part of the
packet sent to the jury. Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1197-98, 221 P.3d
1130 (2009). Despite the similarity of the standard of review, an important distinction
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remains as a verdict form serves a different purpose from the court's instructions. While
instructions inform the jury of the law it must follow and apply, the verdict form provides
no such guidance; it simply records the jury's decision on each count, claim, or question
presented.
Sutton argues that the arrangement of "guilty" and "not guilty" calls into question
whether the jury followed the court's instructions that Sutton was entitled to the
presumption of innocence and that the State bore the burden to prove his guilt beyond a
reasonable doubt. As a preliminary matter, we observe that the facts in this case tend to
undermine his argument—the verdict form included this same arrangement for both the
aggravated-assault charge and the domestic-battery charge, and yet the jury only found
him guilty of the former.
More importantly, however, Sutton's argument was rejected by the Kansas
Supreme Court in State v. Wesson, 247 Kan. 639, 652-53, 802 P.2d 574 (1990), cert.
denied 501 U.S. 1236 (1991), disapproved on other grounds by State v. Rodgers, 282
Kan. 218, 144 P.3d 625 (2006). Sutton claims Wesson was wrongly decided. But this
court is duty-bound to follow Kansas Supreme Court precedent unless the court has
indicated it is departing from its previous position. State v. Rodriguez, 305 Kan. 1139,
1144, 390 P.3d 903 (2017). For nearly 30 years, both this court and our Kansas Supreme
Court have consistently applied the holding in Wesson. See State v. Wilkerson, 278 Kan.
147, 159, 91 P.3d 1181 (2004); State v. Timmons, No. 119,831, 2020 WL 3885621, at *7
(Kan. App. 2020) (unpublished opinion). The verdict form was not erroneous.
1.3. Sutton has not shown that any error, let alone cumulative errors, deprived
him of a fair trial.
In his final challenge to his conviction, Sutton argues that even if none of his
arguments individually requires reversal, the combination—or cumulation—of the errors
deprived him of a fair trial. We have previously analyzed Sutton's arguments and have
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concluded that he has not shown any defect in his trial. See State v. Gonzalez, 307 Kan.
575, 598, 412 P.3d 968 (2018) (cumulative error presupposes the existence of more than
one error). Thus, Sutton's allegation of cumulative error is also without merit, and we
affirm his conviction for aggravated assault.
2. The district court's finding in its journal entry that Sutton committed the offense
with a deadly weapon is sufficient to trigger KORA's registration requirements.
Our discussion to this point has centered on Sutton's arguments regarding his jury
trial. Sutton also challenges the district court's posttrial order that he must register as a
"violent offender" under KORA.
The jury found Sutton guilty of aggravated assault based on his assault of his
mother with the kitchen knife. After the jury announced its verdict, the district court
provided Sutton with a written notice before sentencing that he would be subject to
KORA's registration requirements since he committed his offense with a deadly weapon.
At the sentencing hearing, the district court informed Sutton again that he was required to
register as a violent offender under KORA, though the court made no oral finding that the
aggravated assault was committed with a deadly weapon. Nevertheless, the journal entry
of sentencing did include a finding that Sutton "committed the current crime with a
deadly weapon as determined by the court." Sutton argues that this finding in the journal
entry was insufficient to subject him to KORA's registration requirements.
KORA imposes various post-conviction registration requirements on "violent
offender[s]." See K.S.A. 2019 Supp. 22-4902(e); see also K.S.A. 2019 Supp. 22-4901 et
seq. (discussing registration requirements and timing); State v. Marinelli, 307 Kan. 768,
788, 415 P.3d 405 (2018) (summarizing requirements). K.S.A. 2019 Supp. 22-4902(e)(2)
defines a violent offender, in part, as someone who is "convicted of any person felony"
when the court "makes a finding on the record that a deadly weapon was used in the
commission" of that offense. Whether Sutton falls within this definition is a question of
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law over which our review is unlimited. Marinelli, 307 Kan. at 788; State v. Gilkes, 307
Kan. 725, 728, 415 P.3d 427 (2018).
There is no question that Sutton's conviction of aggravated assault is a person
felony within the meaning of K.S.A. 2019 Supp. 22-4902(e)(2). The issue before us is
whether the district court's finding in the journal entry is sufficient to satisfy the
requirements of that statute. We conclude that it is.
Because aggravated assault is not an offense that automatically results in a
requirement to register under K.S.A. 2019 Supp. 22-4902(e)(1), Sutton's conviction of
aggravated assault, standing alone, does not trigger KORA's registration requirements.
See Marinelli, 307 Kan. at 783. Nor is a district court's notice "dispositive to whether a
person is an 'offender' and, therefore, subject to registration requirements." 307 Kan. at
791. Instead, the Kansas Supreme Court has interpreted K.S.A. 2019 Supp. 22-4902(e)(2)
to require the district court to find—on the record—that the predicate offense was
committed with a deadly weapon. State v. Thomas, 307 Kan. 733, 749, 415 P.3d 430(2018).
Our Kansas Supreme Court considered circumstances analogous to Sutton's case
in State v. Carter, 311 Kan. 206, 459 P.3d 186 (2020). There, the defendant was
convicted of aggravated robbery. At sentencing, the district court indicated that the
defendant would be required to register under KORA because there was "a dangerous
weapon involved"—not that the robbery was "committed with a deadly weapon" as
required by K.S.A. 2019 Supp. 22-4902(e)(2). But the district court's journal entry
indicated the robbery had been committed with a "deadly weapon," as required by the
statute.
The Kansas Supreme Court held that the finding recorded in the journal entry was
sufficient to subject Carter to KORA's registration requirements. 311 Kan. at 210-11. The
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court reasoned that KORA registration is not part of a defendant's sentence, but rather an
independent statutory requirement. Thus, there is no requirement that the requisite KORA
findings be pronounced from the bench. See 311 Kan. at 210 (citing Abasolo v. State, 284
Kan. 299, Syl. ¶ 3, 160 P.3d 471 [2007], and distinguishing KORA registration from a
defendant's sentence, which is effective upon pronouncement).
Though the district court made no oral finding regarding KORA's deadly-weapon
requirement at sentencing in this case, its journal entry—like the Carter journal entry—
includes that finding. As in Carter, we conclude that "the journal entry included in the
record of this case shows the district judge made the necessary finding under K.S.A. 2019
Supp. 22-4902(e)(2)." 311 Kan. at 211. Thus, Sutton's challenge to his KORA
registration requirement is without merit.
Affirmed.
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