State v. Perkins ( 2020 )

NOT DESIGNATED FOR PUBLICATION
Nos. 121,304
121,305
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMES L. PERKINS,
Appellant.
MEMORANDUM OPINION
Appeal from Pawnee District Court; DALE E. SNYDER and JULIE F. COWELL, magistrate judges.
Opinion filed September 25, 2020. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., STANDRIDGE and GARDNER, JJ.
PER CURIAM: James L. Perkins appeals his conviction for harassment by
telecommunications device and the revocation of his probation in a prior domestic battery
case. He argues that there was insufficient evidence to convict him of harassment by
telecommunications device because his messages were neither abusive nor threatening
and that the court abused its discretion in revoking his probation. For the reasons stated
below, we affirm Perkins' conviction and dismiss as moot the challenge to his probation
revocation issue.
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FACTS
On September 24, 2018, Perkins pled no contest to domestic battery. The district
court sentenced Perkins to a 6-month jail term, suspended to 2 days, and ordered 12
months' probation. The court also ordered Perkins to have no contact with his ex-
girlfriend, M.S., who was the victim in the domestic battery case.
On October 5, 2018, the State moved to revoke Perkins' probation, alleging that he
violated the conditions of his probation by contacting M.S. several times between
September 8, 2018, and October 2, 2018. Based on this same conduct, the State
separately charged Perkins with harassment by telecommunications device in violation of
K.S.A. 2018 Supp. 21-6206(a)(1)(C).
On October 25, 2018, the district court revoked Perkins' probation and ordered
him to serve his 6-month jail term, less 25 days of jail credit. Perkins filed a timely notice
of appeal. Perkins completed serving his sentence on the domestic battery conviction on
March 30, 2019.
On April 8, 2019, the district court held a bench trial on Perkins'
telecommunication harassment charge. M.S. and Larned Police Sergeant Anthony Boor
testified for the State. The State also introduced two exhibits into evidence, which
showed Perkins' text messages and phone calls to M.S. The information within these
exhibits reflects that Perkins had texted or called M.S. 37 times in less than a month.
Perkins sent many of these texts during the first few days of his probation term. Perkins
did not testify or present any evidence.
At the close of the State's evidence, defense counsel moved for a directed verdict
on grounds that the State failed to establish Perkins had specific intent to commit the
crime of harassment by telecommunications device. Defense counsel asserted that the
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statute does not allow inference stacking and that there was "no effort . . . made to elicit
any statement whatsoever from Mr. Perkins and nobody on the State side gave any
evidence supporting the finding of intent." The State responded that the district court was
permitted to make reasonable inferences from the evidence presented and that the actual
words used supported an inference that Perkins intended to harass or otherwise abuse
M.S. The court denied Perkins' motion.
Defense counsel then introduced Sergeant Boor's probable cause affidavit as
supporting evidence and renewed the motion for a directed verdict. The district court
denied the renewed motion. The court then found Perkins guilty of harassment by
telephone and imposed a 180-day suspended jail sentence with 12 months' probation. In
support of its guilty verdict, the district court found that "reasonable inferences can be
made from the text messages as submitted in State's Exhibit A" that Perkins sent the texts
in order to harass M.S. "because . . . by the time that we get to the end of these
[messages] there's really no other inference that can be made."
Perkins timely appealed his conviction. After the appeal was docketed, this court
granted Perkins' request to consolidate the appeal of his probation revocation and the
appeal of his conviction.
ANALYSIS
Appeal from conviction
Perkins argues there was insufficient evidence to convict him of harassment by
telecommunications device. When a defendant challenges the sufficiency of the evidence
in a criminal case, we review the entire record in a light most favorable to the State and
ask whether we are convinced that a rational fact-finder could have found the defendant
guilty beyond a reasonable doubt. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 7133
(2018). For the evidence to be sufficient, "there must be evidence supporting each
element of [the] crime." State v. Kettler, 299 Kan. 448, 471, 325 P.3d 1075 (2014). In
making this inquiry, we will not reweigh evidence, resolve evidentiary conflicts, or make
determinations about the credibility of witnesses. Chandler, 307 Kan. at 668; State v.
Lloyd, 299 Kan. 620, 632, 325 P.3d 1122 (2014). And convictions need not be proved by
direct evidence; circumstantial evidence may be sufficient to support a verdict so long as
"it permits the factfinder to draw a reasonable inference regarding the fact(s) in issue."
State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017).
The State charged Perkins with violating K.S.A. 2019 Supp. 21-6206(a)(1)(C),
which prohibits using a "telecommunications device" to "make or transmit any comment,
request, suggestion, proposal, image or text with intent to abuse, threaten or harass any
person at the receiving end." A telecommunications device "includes telephones, cellular
telephones, telefacsimile machines and any other electronic device which makes use of
an electronic communication service, as defined in K.S.A. 22-2514, and amendments
thereto." K.S.A. 2019 Supp. 21-6206(d). In this case, all the contacts occurred through
Facebook Messenger, a messaging application for Facebook users to contact each other
by sending messages or images or by making audio or video calls through their
smartphone or on a personal computer.
To support his claim of insufficient evidence under the statutory elements, Perkins
argues the State failed to prove his messages were threatening or abusive. Contrary to
Perkins' argument, however, a conviction for violating K.S.A. 2019 Supp. 21-
6206(a)(1)(C) is not limited to abusive or threatening statements. The crime includes
messages intended to abuse, threaten, or harass another person. See K.S.A. 2019 Supp.
21-6206(a)(1)(C). So the State only needed to prove that Perkins used a
telecommunications device to send a message with the intent to harass M.S.
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The statute itself does not define what it means to "harass" someone, but the
dictionary definition of "harass" is "to trouble, worry, or torment, as with cares, debts,
repeated questions or demands, etc." Webster's New World College Dictionary 660 (5th
ed. 2014). Another dictionary, this one cited by the State, defines "harass" as "to annoy
persistently" or "to create an unpleasant or hostile situation for[,] especially by uninvited
and unwelcome verbal or physical conduct." Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/harass (last visited September 18, 2020). In
order to meet its burden, the State introduced Exhibits A and B into evidence. Exhibit A
showed photographs of the Facebook messages Perkins sent to M.S., while Exhibit B
showed Sergeant Boor's notes detailing a chronological account of the contacts from
Perkins to M.S. These two exhibits reflect the following contacts:
Unknown date
• Unknown time—(poop emoji)
September 8
• 1:23 a.m.—"Really, who did u have while I was in jail"
• 1:46 a.m.—"Don't matter it's what you been doing robbing me for u and ur dicks."
September 9
• 11:31 p.m.
o (kiss emoji)
o (teddy bear sticker)
September 11
• 3:31 a.m.
o (missed call and five-second voice message)
o "Who said to leave u the fuck alone"
• 5:26 a.m.—(missed call)
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September 12
• 1:39 p.m.—(missed call from M.S. to Perkins)
• 1:40 p.m.—(missed call)
September 13
• 3:36 p.m.—(kiss emoji)
• Unknown time
o "So waitn 4 u to call"
o (winking/kissing emoji)
September 18
• 3:02 a.m.—(image)
September 19
• 1:43 a.m.—"So u and fucking Jeff and Scott how much you make"
• 4:01 a.m.—"So what the fuck u robbing me again why u leave. I have witness . . .
Playing who brought u Jeff"
• 4:22 a.m.—(missed call)
• 1:52 p.m.—(missed video chat)
September 20
• 12:22 p.m.
o "Hi"
o "Wish we could of talked the other morning y did u leave what we're u doing"
o "Waiting to see what's wrong with the car."
• 12:57 p.m.—"Never mind ur plotting I feel as if you hadn't done enough how's the
surprise coming."
• 7:07 p.m.—(missed call)
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• 8:31 p.m.
o "Thanks for the ring u have a date if so so be it I know how much u like to
cum"
o (text saying "A contact set the emoji to [hand showing peace sign]")
o "U busy"
September 22
• 1:38 a.m.—(missed call)
• 3:24 a.m.—"Love you go ahead and u won u destroyed me. That's what you wanted to
do and u have in the whole since of the word."
September 23
• 3:35 a.m.—"Will you please talk to me"
• 3:41 a.m.—(missed video chat)
• 3:59 a.m.—(missed call)
• 4:27 a.m.
o "I finally got ur message open u wanted me to hear u fucking whoever. U were
doing that for weeks. Why we're u creeping around the house? Did you hear
me fucking? And that morning Denise ran In to u n the back yard I had no idea
she was coming did . . . "
o "nothing with her she thought since u were gone we would be a couple,
WRONG she left crying and now they got u right where they want and need.
Like nevertheless ur so white which is blue eyed Devils"
• 5:30 a.m.
o "Hello I now I going away and I wish you would say something"
o "I'm going away do you want a fish tank"
• 7:44 a.m.—"If ur with someone else say so. You are . . . ."
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Either September 23 or 24
• Unknown time—"If ur with someone else say so. You are a good woman"
• Unknown time—(dog with heart sticker)
September 24
• 11:39 p.m.—"Happy"
September 27
• 2:37 a.m.
o "Wishing you were able to understand that I had to get a PFA so I didn't go
back to jail for you. They are getting what they want. I will never understand
why you started that fight why?"
o "You can run tell doug nothing matters now. I never thought I would be in a
situation like this at this point in my life and I do miss you"
• 2:55 a.m.—"Guess I'm the talk of the town u really know how to get to a person.
Anyways you already have another the word is that u were planning this for awhile.
Funny how much you love to hate me you were good. All this to be with someone
else"
September 28
• Unknown time—"[W]hy didn't you just go. I didn't know how much you hated me
that you made sure I would go to jail. So so sad you have to be like that. But it makes
you feel better. I see you are looking at these sure u and ur dick are having a good
laugh. So I guess I'll go so you can talk about what a wonderful job you have done
and I get arrested again."
• 2:40 a.m.
o (crying/laughing emoji from M.S. to Perkins)
o "U going to talk to me?"
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o "Just having a laugh at me. (broken heart emoji)"
• 3:03 a.m.—"Thanks for the ring good bye."
• 3:56 a.m.—"Love u and sorry for taking ur love for granted. But my payback is
enduring ur wrath. Promise to leave u alone with ur new lover."
• 10:32 p.m.—"Sorry for bothering you but wish I could see you soon. T J's truck is
parked in the yard he's not living here. Can you please answer."
• 11:05 p.m.—"Just say fuck off not used to u not saying anything."
September 30
• 4:42 a.m.—(crying/laughing emoji)
October 1
• 1:01 a.m.—"We need to talk about the things you took and the scooter is sold don’t
need the key . . . want to keep things ugly?"
• 4:17 a.m.—(missed call)
• 12:29 p.m.—"Bringing ur mail"
• 12:51 p.m.—"Let's see how far teddy can go." (linked image of teddy bear with text
"We are sending TEDDY on a journey for cancer awareness. Please share and see
how far he can get!")
The evidence presented in these exhibits shows Perkins sent close to 40 messages
to M.S.—including accusations of infidelity and theft, as well as often using obscene
language—and attempted to call her eight times between September 8 and October 1,
2018. During this time, Perkins had been ordered not to have contact with M.S. because
of the previous domestic battery case. Considering the evidence in the light most
favorable to the State, we find the text messages and the attempted phone calls were
sufficient for a rational fact-finder to have found beyond a reasonable doubt that Perkins
made and transmitted to M.S. comments, requests, suggestions, proposals, images, and
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text with the intent to trouble, worry, torment, annoy persistently, and create an
unpleasant or hostile situation by uninvited and unwelcome verbal conduct. For this
reason, we affirm Perkins' conviction for harassment by telecommunications device in
violation of K.S.A. 2019 Supp. 21-6206(a)(1)(C).
Probation revocation
Perkins next argues the district court abused its discretion in revoking his
probation and imposing the underlying sentence for his domestic battery conviction. But
Perkins concedes that he completed this sentence on March 30, 2019. For this reason, the
State argues that Perkins' claim on this issue is moot.
As a general rule, Kansas appellate courts do not decide moot questions or render
advisory opinions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). The
mootness doctrine is one of court policy, under which the court is to "'determine real
controversies relative to the legal rights of persons and properties which are actually
involved in the particular case properly brought before it and to adjudicate those rights in
such manner that the determination will be operative, final, and conclusive.'" 295 Kan. at
840. An issue is moot if "'it [is] clearly and convincingly shown the actual controversy
has ended, the only judgment that could be entered would be ineffectual for any purpose,
and it would not impact any of the parties' rights.'" 295 Kan. at 840-41. Because
mootness is a doctrine of court policy, appellate review is unlimited. State v. Hilton, 295
Kan. 845, 849, 286 P.3d 871 (2012).
As the party asserting mootness, the State bears the burden of establishing a prima
facie showing of mootness, which can be done by showing the defendant has "fully
completed the terms and conditions of his or her sentence." State v. Roat, 311 Kan. 581,
593, 466 P.3d 439 (2020). Here, the State relies on Perkins' own statement in his brief
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that he already has served his underlying term of incarceration. The State therefore has
satisfied its initial burden of showing a prima facie case of mootness.
A final "determination of mootness must . . . include analysis of whether an
appellate judgment on the merits would have meaningful consequences for any purpose,
including future implications." 311 Kan. at 592-93. The defendant has the "burden of
demonstrating the existence of a meaningful interest that would be impaired by
dismissal." 311 Kan. at 593. But Perkins makes no claim on appeal that the existence of a
meaningful interest would be impaired by dismissal of his claim as moot. Nor does
Perkins claim that an exception to the mootness doctrine applies. See State v. Kinder, 307
Kan. 237, 244, 408 P.3d 114 (2018) (exception to mootness doctrine applies for cases
that are otherwise moot but raise issues that are capable of repetition and present
concerns of public importance); see also Roat, 311 Kan. at 590 (deeming mootness a
prudential doctrine subject to exceptions and therefore not a jurisdictional issue). Given
Perkins' failure to allege impairment of a meaningful interest or an exception to the
mootness doctrine, we dismiss as moot Perkins' claim alleging the district court abused
its discretion in revoking his probation.
Affirmed.
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