State v. Celestine ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,091
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MARSHALL LEE CELESTINE,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed February 12,
2021. Conviction reversed and sentence vacated.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GARDNER, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Marshall Lee Celestine appeals his conviction after a bench trial for
criminal possession of a firearm by a convicted felon. Celestine raises other claims of
error, but, for the reasons set out below, we decline to address those issues. After a
careful review of the record, we find the State failed to establish beyond a reasonable
doubt Celestine was in possession of a firearm at the time the previous crimes occurred in
1975. Thus, we reverse his conviction and vacate his sentence.
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FACTS
In August 2018, Overland Park Police Officer Brian Caniglia participated in a
briefing prior to starting his patrol where he was told to be on the lookout for a green
Honda Accord with a specific Missouri license plate and Celestine. It was thought
Celestine was in the vehicle and the Kansas City, Missouri Police Department wanted to
question him about a homicide in Missouri. During his patrol, Caniglia found a vehicle
matching the green Honda Accord in a Walmart parking lot in Overland Park.
After he verified the license plate information, Caniglia advised dispatch he found
the vehicle. Once backup arrived, Caniglia approached the passenger side of the vehicle
to see whether anyone was inside and noticed there was a person, later identified as
Celestine, asleep in the driver's seat. When Caniglia was near the passenger window,
Celestine awoke and started waving around a handgun. Caniglia told Celestine to put the
gun down, but Celestine did not follow Caniglia's directions. A tactical team was called
to resolve Celestine's refusal to follow Caniglia's directions.
Overland Park Police Officer Nicholas Berkland was the crisis negotiator called to
the scene. Berkland communicated with Celestine and learned Celestine was concerned
about being found with a firearm in his possession based on a previous felony conviction.
Eventually, Celestine agreed to get out of the vehicle and was taken into custody. He left
the firearm in the car, and it was secured by Detective Donald Snyder.
Celestine was charged with criminal possession of a firearm by a convicted felon
in violation of K.S.A. 2018 Supp. 21-6304, with robbery and aggravated battery as the
previous felonies.
Celestine waived his right to a jury trial. At his bench trial, the State filed an
amended complaint. The State explained that "the person felony was incorrectly listed as
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robbery and aggravated battery" in the original complaint, when it should have listed
"aggravated battery, kidnapping and aggravated kidnapping to comport with Exhibit 8
which was the certified copy of Mr. Celestine's convictions from Sedgwick County."
In addition to the testimony of Caniglia, Berkland, and Snyder provided above, the
State admitted the firearm and ammunition taken from Celestine's vehicle. The State also
called Kyla Skinner, an employee of the Kansas City, Missouri Police Department Crime
Laboratory, to testify as an expert in firearms examination. Skinner testified the firearm
found with Celestine was a functional F.I.E. .38 Special revolver.
The final piece of evidence the State offered was the 1975 journal entry of
conviction, which indicated Celestine "was found guilty of three counts of aggravated
battery, three counts of kidnapping and one count of aggravated kidnapping on August
18th, 1975." The State rested after it asked the district court to take judicial notice of the
aggravated battery, kidnapping, and aggravated kidnapping statutes as they existed in
1975. Celestine did not call any witnesses or present any evidence. The district court then
invited arguments.
The State, during its short closing argument, said, "[T]he evidence speaks for itself
and I would just ask that you find Mr. Celestine guilty . . . ." Celestine responded the
State failed to prove he possessed a weapon during the commission of his 1975 crimes, a
required element under K.S.A. 2018 Supp. 21-6304(a)(1), and asked the district court to
dismiss the case. The State replied the district court could find Celestine guilty based on
the journal entry, but Celestine argued the 1975 felonies could have been committed in
ways other than by the use of a firearm. Celestine also argued that, in accordance with
Pattern Instructions for Kansas (PIK) Crim. 4th 63.040 (2014 Supp.), the State had to
show Celestine was in possession of a firearm at the time his previous crimes were
committed. Ultimately, the district court did not rule on the pending motion to dismiss,
took the matter under advisement, and scheduled another hearing.
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Prior to the scheduled hearing, the State filed a motion to reopen its case. The
State argued the district court was permitted to reopen the case based on our Supreme
Court's decision in State v. Murdock, 286 Kan. 661, Syl. ¶¶ 4-5, 187 P.3d 1267 (2008).
The State also attached two exhibits to the motion, one of which was a copy of the
original complaint from the 1975 case. The complaint revealed, among other things, that
Celestine was armed with a "Browning 6-millimeter automatic pistol and a Ruger .22
caliber automatic pistol" when the previous offenses were committed. Celestine filed a
response to the State's motion to reopen case, objecting to the State's request.
At the hearing on the State's motion to reopen the case, the State largely relied on
the motion it filed and said it was surprised it was able to get the complaint from the
original case because it was so old. Celestine argued the district court should deny the
State's request based on the timeliness and prejudice factors outlined in Murdock. The
district court found the decision to reopen the State's case was a discretionary call and
granted the State's motion without addressing Celestine's pending motion to dismiss. The
complaint was also admitted into evidence over Celestine's objection.
After doing so, the district court gave Celestine the opportunity to request a
continuance to respond to the State's newly admitted evidence, but he declined the
opportunity. Both the State and Celestine presented closing arguments. Thereafter, the
district court found Celestine guilty and, at sentencing, imposed a sentence of 14 months'
imprisonment based on his criminal history score.
ANALYSIS
On appeal, Celestine now raises five issues for us to resolve: (1) The district court
acquitted him when it concluded the State failed to prove he possessed a firearm during
the commission of his prior felony convictions; (2) the district court erred when it failed
to rule on his motion for dismissal/acquittal before taking the case under advisement and
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eventually allowing the State to reopen its case; (3) the district court abused its discretion
when it granted the State's motion to reopen the case; (4) there was insufficient evidence
to convict him; and (5) the statute prohibiting a person previously convicted of a felon
from possessing a firearm is unconstitutional because it violates section Four of the
Kansas Constitution Bill of Rights.
The district court, upon hearing a motion to dismiss/acquit, must decide the motion on
the evidence presented at the time the motion is made.
Celestine now argues the district court erred when it took the case under
advisement instead of immediately ruling on his motion at the conclusion of the first
bench trial. The parties are not in agreement on what Celestine intended with his motion
at the conclusion of the evidence. Celestine now characterizes his request for a dismissal
as a motion for judgment of acquittal made after the State rested its case. The State, on
the other hand, characterizes Celestine's request for a dismissal as his closing argument
upon both sides resting.
After the State asked the district court to take judicial notice of the aggravated
kidnapping and aggravated robbery statutes as they existed in 1975, it rested. The district
court then asked whether Celestine was going to present evidence, and he told the district
court he was not going to present any evidence. Thereafter, the parties presented closing
arguments. The State asked the district court to find Celestine guilty, stating: "Your
Honor, I believe the evidence speaks for itself and I would just ask that you find Mr.
Celestine guilty of felony possession of a firearm."
In response, Celestine's counsel argued:
"Judge, Mr. Celestine is charged I believe under K.S.A. 21-6304(a)(1). An
element of that offense is that the defendant was found in possession of a firearm at the
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time of the prior crime. I don't believe there has been any evidence that Mr. Celestine was
in possession of a firearm during the commission of his 1975 felonies.
"When [the State] read the statutes out loud to the Court, I don't believe those
statutes necessarily require that a firearm was possessed to commit those offenses. So I
don't believe there has been any evidence presented of that element of the crime, so I
would ask for a dismissal."
Because Celestine chose not to present evidence, the State is correct Celestine
requested a dismissal at the close of all evidence. See K.S.A. 22-3419. But in State v.
Roberts, 293 Kan. 29, 36, 259 P.3d 691 (2011), our Supreme Court held that "'where a
motion to dismiss challenges the sufficiency of the evidence, the proper motion should be
for a judgment of acquittal.' [Citations omitted.]" The State later argues the district court
characterized Celestine's motion as a request for a dismissal and not a motion for
judgment of acquittal. However, "[i]t does not matter how a party or a district court labels
a motion or order; that characterization does not control." 293 Kan. at 35. Thus, Celestine
is correct his motion is properly characterized as a motion for judgment of acquittal and
the district court should have addressed it in accordance with K.S.A. 22-3419(1).
The timing of a motion to dismiss was also addressed by a prior panel of this
court, where it observed:
"Keller's trial counsel clearly argued for acquittal at the close of all the evidence. It is
true, as Keller points out, that his counsel did not formally move for acquittal, but there
was little reason to do so at a bench trial. See K.S.A. 22-3419(2) (governing motion of
acquittal in jury trials). Considering that the judge was also the trier of fact, it was not
unreasonable for counsel simply to make his points in closing argument." State v. Keller,
No. 98,517, 2008 WL 941002, at *2 (Kan. App. 2008) (unpublished opinion).
This analysis by the Keller panel reconciles with our understanding of when a motion to
dismiss can be presented in a bench trial. The district court should have responded to the
motion at the close of all of the evidence when Celestine chose not to present any
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evidence. The time delay between Celestine announcing he was not going to present
evidence and making the motion at the close of all the evidence would have been just a
minute or two. The record was complete at the time the motion to dismiss was made for
the judge to determine if the State had presented sufficient evidence to convict Celestine
beyond a reasonable doubt.
K.S.A. 22-3419 governs how Kansas courts should consider motions to dismiss or
for judgment of acquittal. Because the argument hinges on interpretation of a statute, our
review is unlimited. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). K.S.A.
22-3419 states, in part:
"(1) The court on motion of a defendant or on its own motion shall order the
entry of judgment of acquittal of one or more crimes charged in the complaint, indictment
or information after the evidence on either side is closed if the evidence is insufficient to
sustain a conviction of such crime or crimes. If a defendant's motion for judgment of
acquittal at the close of the evidence offered by the prosecution is not granted, the
defendant may offer evidence without having reserved the right.
"(2) If a motion for judgment of acquittal is made at the close of all the evidence,
the court may reserve decision on the motion, submit the case to the jury and decide the
motion either before the jury returns a verdict or after it returns a verdict of guilty or is
discharged without having returned a verdict."
Under K.S.A. 22-3419(1), a district court has no discretion to reserve judgment on
a motion for judgment of acquittal. But under K.S.A. 22-3419(2), if the "motion for
judgment of acquittal is made at the close of all the evidence, the court may reserve
decision on the motion and submit the case to the jury . . . ." (Emphasis added.)
As previously stated, Celestine's motion for judgment of acquittal came at the
close of all evidence, which triggered K.S.A. 22-3419(1) in this case since this was a trial
to the bench.
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Here, the district never ruled on the motion before taking it under advisement. The
question becomes did the district court have an obligation to rule on the motion to
dismiss before it granted the State's motion to reopen the evidence, which it filed nine
days after the original bench trial? We believe it did and look to Murdock for guidance.
There, our Supreme Court said:
"K.S.A. 22-3419(1) states that a court 'shall order the entry of judgment of acquittal' if
the evidence offered is insufficient to support the conviction. The decision to grant a
motion for judgment of acquittal is not discretionary. Instead, the determinative question
for both a district court and an appellate court on review is whether there was sufficient
evidence in the record at the time of the motion on which a rational factfinder could find
the defendant guilty beyond a reasonable doubt." 286 Kan. at 668.
This instruction was again repeated by our Supreme Court in State v. Llamas, 298
Kan. 246, 253, 311 P.3d 399 (2013): "When Llamas presented his motion for acquittal to
the trial court, the court was obligated to 'order the entry of judgment' if there was not
sufficient evidence of each element of a charged crime. K.S.A. 22-3419(1)." Therefore,
we find the district court was required by K.S.A. 22-3419(1) to rule on the motion to
dismiss to either grant it or deny it once Celestine presented it to the district court at the
conclusion of the evidence, and the district court erred in not ruling on the motion.
At the time of Celestine's motion to dismiss, the State had not presented sufficient
evidence to convict Celestine of criminal possession of a firearm by a convicted felon.
We now turn to the evidence of the crime of criminal possession of a firearm by a
convicted felon presented by the State to the district court at the time Celestine argued his
motion to dismiss. Fundamentally, the Due Process Clause of the Fourteenth Amendment
to the United States Constitution requires proof beyond a reasonable doubt of each
element of the crime charged. State v. Douglas, 230 Kan. 744, 745, 640 P.3d 12598
(1982). It is the function of the appellate court to determine whether the evidence is
sufficient to support a finding of guilt beyond a reasonable doubt. 230 Kan. at 745.
Before we consider the evidence presented, we review the various elements the
State was required to prove beyond a reasonable doubt for a conviction under K.S.A.
2018 Supp. 21-6304. For this exercise, we turn to the PIK instructions for guidance
because our 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).
While not controlling in this case, we find the PIK instructions clearly set out the
elements and what the State is required to prove for the crime of criminal possession of a
firearm by a convicted felon. The instruction defining K.S.A. 2018 Supp. 21-6304 is
found at PIK Crim. 4th 63.040 and reflects the following elements of the crime must be
proved:
• Celestine possessed a weapon in Johnson County, Kansas.
• Celestine had been convicted of a person felony.
• Celestine was found to be in possession of a weapon at the time of the prior
crime.
With the elements of the crime in mind, we move from the instruction to the
evidence presented by the State to the district court at the time the motion to dismiss was
made:
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• Celestine was found in possession of a weapon in Johnson County, Kansas.
• Celestine was convicted in 1975 of the person crimes of aggravated battery,
kidnapping, and aggravated kidnapping as reflected in the journal entry of
conviction.
• The State presented no evidence of Celestine possessing a weapon during
the commission of the crimes of conviction in 1975.
Celestine immediately recognized at the close of the evidence that the last
element—he possessed a firearm during the commission of his 1975 crimes—had not
been presented and asked the district court to dismiss the charge for the State's failure to
produce evidence of the fact he possessed a firearm at the time his 1975 crimes were
committed. The State responded:
"As the Court is aware, the—I believe that given the statute requirements or elements of
those offenses in 1975, I believe that the Court can, by the evidence of the journal entry,
find that it was, in fact, committed with a firearm or a weapon. As the Court is aware in
the Pattern Instructions 'weapon' means firearm or knife for this particular offense and
we'd ask that you find him guilty."
The State was required to show evidence beyond a reasonable doubt that Celestine
possessed a weapon in 1975 as part of his crimes. However, the record reflects no
evidence was admitted at the bench trial that Celestine possessed a weapon during the
commission of his 1975 crimes. The State, at the conclusion of the trial, just asked the
district court to find Celestine guilty of possession of a weapon or a firearm by a
convicted felon because Celestine could have committed the crimes of conviction in 1975
while in possession of a "firearm or a weapon." One cannot infer he did by the nature of
the convictions because Celestine's aggravated robbery conviction in 1975 was the only
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crime where the possession of a "dangerous weapon" could have been an element of the
conviction. But aggravated robbery provides two distinct elements the State can prove to
support the conviction: the robbery was "committed by a person who is armed with a
dangerous weapon" or the robbery was "committed by a person . . . who inflicts bodily
harm upon any person in the course of such robbery." K.S.A. 21-3427. The district court
here could not determine beyond a reasonable doubt based on the scant evidence
presented at the bench trial whether Celestine committed the crime while "armed with a
dangerous weapon" or by inflicting "bodily harm upon any person in the course of such
robbery." See K.S.A. 21-3427.
At the time Celestine made his motion to dismiss, the State had not presented any
circumstantial evidence—when viewed in a light most favorable to the State—to reflect
Celestine possessed a dangerous weapon during the commission of the crimes in 1975.
See Murdock, 286 Kan. at 666. The State argued Celestine was concerned and nervous
about being caught in possession of a firearm at the time of his arrest, but that still does
not support sufficient circumstantial evidence he possessed a firearm during the 1975
crimes. There was no evidence presented that Celestine admitted to the officers during his
arrest the facts of his 1975 convictions. To conclude Celestine possessed a dangerous
weapon during the commission of his prior crimes simply because he was nervous during
the present arrest would require impermissible inference stacking. See State v. Chandler,
307 Kan. 657, 670, 414 P.3d 713 (2018). Even though the gravest of crimes may be
supported by circumstantial evidence, that is not the case here. See State v. Logsdon, 304
Kan. 3, 25, 371 P.3d 836 (2016).
We find that when both parties had rested and Celestine moved for dismissal, there
was insufficient evidence in the record to convict Celestine of criminal possession of a
firearm by a convicted felon. As the Murdock court recognized in applying K.S.A. 22-
3419(1): "[A] court 'shall order the entry of judgment of acquittal' if the evidence offered
is insufficient to support the conviction," and further clarified "the decision to grant a
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motion for judgment of acquittal is not discretionary." 286 Kan. at 668. Celestine's
conviction for criminal possession of a firearm by a convicted felon is reversed and the
sentence is vacated. With this determination, we decline to address Celestine's remaining
issues.
Conviction reversed and sentence vacated.
***
GARDNER, J., concurring: I concur. The decision to grant a motion for judgment of
acquittal under K.S.A. 22-3419(1) is not discretionary. State v. Murdock, 286 Kan. 661,
668, 187 P.3d 1267 (2008). Instead, the district court had a duty to examine whether the
record contained sufficient evidence to find the defendant guilty beyond a reasonable
doubt when the defendant moved for judgment of acquittal. 286 Kan. at 668 ("[T]he
determinative question for both a district court and an appellate court on review is
whether there was sufficient evidence in the record at the time of the motion on which a
rational factfinder could find the defendant guilty beyond a reasonable doubt." [Emphasis
added.]). See State v. Llamas, 298 Kan. 246, 253, 311 P.3d 399 (2013) ("When Llamas
presented his motion for acquittal to the trial court, the court was obligated to 'order the
entry of judgment' if there was not sufficient evidence of each element of a charged
crime." [Emphasis added.]).
But this case presents an issue not presented in Llamas or Murdock—whether a
district court may allow a State to reopen its case to prove a missing element of the crime
charged rather than grant a defendant's pending motion for judgment of acquittal. See
Murdock, 286 Kan. at 671 ("Thus, this case does not involve circumstances where the
prosecution has failed to present evidence on a critical element of a criminal charge but
nevertheless rested its case and then sought to reopen."). We answer that question no.
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The only time a district court may substantially delay in ruling on a motion for
acquittal is in a jury trial. Then,"[i]f a motion for judgment of acquittal is made at the
close of all the evidence, the court may reserve decision on the motion, submit the case to
the jury and decide the motion either before the jury returns a verdict or after it returns a
verdict of guilty or is discharged without having returned a verdict." K.S.A. 22-3419(2).
Of course, that statute does not apply here because the trial was to the bench. And even
for jury trials, that statute contemplates no delay beyond the date the court discharges the
jury—certainly not the three-week delay in ruling on the motion for acquittal that
occurred here. So the court had a mandatory duty to rule on Celestine's motion for
acquittal before deciding whether, in its discretion, to grant the State's motion to reopen
the case—a motion the State filed a week after Celestine moved for acquittal.
The district court took Celestine's motion for acquittal under advisement so it
could research a question of law about the elements of the crime. That is both
understandable and reasonable. Yet once the court resolves the legal issue, it must rule on
a motion to acquit by looking at the facts in evidence at the time the motion was made—
not by considering curative evidence presented later. See Murdock, 286 Kan. at 671-72.
("Because there was sufficient evidence in the record at the time that Murdock moved for
judgment of acquittal for a jury to conclude that he was guilty beyond a reasonable doubt
of the crime charged, the district court correctly denied his motion, and that denial does
not factor into our consideration of the district court's subsequent decision allowing the
State to reopen its case." [Emphasis added.]).
The district court's failure to rule on Celestine's motion for acquittal before
considering the State's motion to reopen the case functioned as a denial of his motion.
And for the reasons aptly stated in the majority opinion, that denial was in error.
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