State v. Boldridge ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,942
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
BRYAN CURTIS BOLDRIDGE,
Appellant.
MEMORANDUM OPINION
Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed August 13, 2021.
Conviction reversed and sentence vacated in part.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Sherri L. Becker, county attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and BURGESS, S.J.
PER CURIAM: Bryan Curtis Boldridge timely appeals his jury conviction for
attempted voluntary manslaughter. He was also convicted of criminal discharge of a
firearm, criminal damage to property, and theft. He does not challenge those convictions
on appeal. Before us, he raises four claims of error challenging his conviction for
attempted voluntary manslaughter: (1) There was insufficient evidence to convict him of
attempted voluntary manslaughter; (2) the district court made multiple jury instruction
errors related to attempted voluntary manslaughter; (3) the district court erred in
admitting a photograph of a sign on Boldridge's property stating trespassers would be
shot; and (4) cumulative error deprived him of a fair trial. Upon our extensive review of
1
the record, we find the evidence was insufficient to convict Boldridge of attempted
voluntary manslaughter—heat of passion. Therefore, we reverse his conviction and
vacate his sentence. We also find with this reversal it is not necessary for us to address
the other issues raised on appeal.
FACTS
A locked cage had previously been placed around Boldridge's water meter to
ensure the water could not be turned on. He was delinquent on paying his water bill. On
October 31, 2018, two maintenance workers from the Atchison Water Department, Justin
Harmon and Earl Brown, went to Boldridge's home to check if his water was shut off.
Harmon and Brown saw the lock and cage had been removed. Harmon called the
Atchison Police Department to report suspected theft of services. Atchison Police Officer
Darren Kelley was dispatched in response to Harmon's call. Kelley spoke with Harmon
and Brown, who told him the lock had been cut off. As Kelley was speaking to Harmon
and Brown, Boldridge returned to his residence.
Kelley testified that Boldridge got out of his vehicle and was carrying a military-
style rifle as well as a sidearm on his waistband. Boldridge appeared to get agitated and
told Kelley and the city maintenance workers they were trespassing and needed to leave
his property. Kelley approached Boldridge and told him they were on his property to
investigate why the locked cage had been cut off the water meter. Boldridge told Kelley
he knew the lock had been cut off and he would "do anything to provide for [his] family."
Based on Boldridge's statements, Kelley believed he had probable cause to arrest
Boldridge for theft of services and asked Boldridge to walk down to the street so they
could talk further. But before walking down to the street, Kelley asked Boldridge to lay
down his rifle, and Boldridge complied. Kelley also radioed for back up.
2
When they got to the street, Kelley told Boldridge he was under arrest for theft of
services. The relevant portion of their interaction along the street was recorded on
Kelley's dash camera video; however, there is no accompanying audio during this
timeframe. Boldridge became upset and told Kelley he wanted the police to look for his
wife who he had earlier reported missing. Kelley told Boldridge he would be issuing a
notice to appear, which would only require taking Boldridge to the police station for
fingerprints and a mug shot, then he would be released. However, Boldridge became
increasingly upset and began yelling, asserting he was not under arrest and would not go
with Kelley. Boldridge then began walking away from Kelley, and Kelley told him to
stop multiple times. Kelley claimed Boldridge made a gesture toward his sidearm at
which point Kelley drew his taser.
Boldridge asked Kelley not to use his taser, but Kelley did so anyway. Kelley
believed the taser did not take full effect but acknowledged it caused Boldridge to
stumble. Kelley claimed he saw Boldridge draw his gun, so he drew his own service
weapon in response. Kelley testified Boldridge pointed the gun at him and shot it. Kelley
tripped as he was backing away from Boldridge and heard another shot as he got up. At
that point, Kelley returned fire. In total, Kelley fired 10 rounds in Boldridge's direction.
Kelley stopped firing when he saw Boldridge's gun was no longer pointed at him; he
approached Boldridge, told him not to move, and held Boldridge at gunpoint until backup
officers arrived.
Boldridge testified he came to the house out of concern things were being stolen
from his property. Earlier that day he had learned his son was missing from school, so he
contacted Atchison Police to talk about it and ask about their investigation of his previous
report his wife was missing. When Boldridge arrived at the house, he saw Kelley and the
city workers and initially thought Kelley was there to talk about his missing wife and son.
Boldridge claimed he put down his rifle on his own accord and also asked Kelley if he
should lay down his sidearm, but Kelley told him it was not necessary. Boldridge asserted
3
he asked Kelley and the city workers to get off his property as they were not there to talk
about his wife or son; therefore, he believed they were trespassing. He claimed he was
not angry and used a normal tone. He acknowledged discussing the issue of the water
meter with Kelley when they got near the street and admitted he told Kelley he would do
what was necessary to provide for his family.
Boldridge claimed Kelley never told him he was under arrest; his understanding
was he would simply receive a notice to appear. Boldridge became nervous when Kelley
began gesturing toward his taser. However, Boldridge claimed he did not know whether
it was a taser or a gun and it looked like a gun to him. When Kelley reached for his taser,
Boldridge believed he was going to be shot. Boldridge testified he asked Kelley what he
was doing after he pointed the taser at him. He claimed he did not move or reach for his
gun and was afraid he would be killed. Kelley then shot Boldridge with the taser. At that
point, Boldridge fell down a small slope on his lawn and reached for his gun. Boldridge
claimed he heard shots fired before reaching for his gun. He admitted to pointing his gun
and firing in Kelley's direction but claimed he did not intend to kill Kelley; rather, he felt
it was the only way to get him to stop shooting.
The State charged Boldridge with one count each of attempted second-degree
murder, theft, criminal discharge of a firearm, and criminal damage to property. At the
outset of trial, Boldridge pled guilty to theft, and the case went forward on the remaining
three charges. At the instruction conference, the district court stated it was going to
instruct the jury on attempted voluntary manslaughter committed in the heat of passion as
a lesser included offense of attempted second-degree murder. But the district court denied
Boldridge's request for an instruction on imperfect self-defense as a basis for attempted
voluntary manslaughter. The district court also denied Boldridge's request for a self-
defense instruction.
4
The jury convicted Boldridge of attempted voluntary manslaughter, criminal
damage to property, and criminal discharge of a firearm. The district court sentenced
Boldridge to 32 months' imprisonment for attempted voluntary manslaughter with 24
months' postrelease supervision, concurrent jail sentences of 12 months for theft and 6
months for criminal damage to property, and a consecutive 30-day jail sentence for
criminal discharge of a firearm. Additional facts are set forth as necessary herein.
ANALYSIS
Boldridge argues there was insufficient evidence to support his conviction for
attempted voluntary manslaughter.
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
To convict Boldridge of attempted voluntary manslaughter, the State needed to
prove Boldridge specifically intended to commit voluntary manslaughter. See K.S.A.
2018 Supp. 21-5404(a). The core elements of voluntary manslaughter are an intentional
killing and legally sufficient provocation. State v. Campbell, 308 Kan. 763, 775, 423 P.3d
539 (2018). An attempt is "any overt act toward the perpetration of a crime done by a
person who intends to commit such crime but fails in the perpetration thereof or is
prevented or intercepted in executing such crime." K.S.A. 2020 Supp. 21-5301(a); State
v. Louis, 305 Kan. 453, 460, 384 P.3d 1 (2016). Accordingly, the State had to prove
Boldridge acted with legally sufficient provocation in order for us to uphold his
conviction. See State v. Zapata-Grimaldo, No. 117,831, 2018 WL 6071478, at *3 (Kan.
App. 2018) (unpublished opinion).
5
Here, Boldridge focuses on the fact the district court only instructed the jury as to
the variation of voluntary manslaughter committed in the "heat of passion." See K.S.A.
2018 Supp. 21-5404(a)(1) ("Voluntary manslaughter is knowingly killing a human being
committed . . . [u]pon a sudden quarrel or in the heat of passion."). Specifically, the
district court instructed the jury, in pertinent part, the State was required to prove:
"1. [Boldridge] performed an overt act toward the commission of voluntary
manslaughter.
"2. [Boldridge] did so with the intent to commit voluntary manslaughter.
"3. [Boldridge] failed to complete the commission of voluntary manslaughter.
"4. It was done in the heat of passion."
The district court further instructed the jury, in pertinent part:
"The elements of the crime of voluntary manslaughter, if completed are as
follows:
"1. [Boldridge] knowingly killed Darren Kelley.
"2. It was done in the heat of passion.
....
"'Heat of Passion' means any intense or vehement emotional excitement which
was spontaneously provoked from circumstances. The emotional state of mind must be of
such degree as would cause an ordinary person to act on impulse without reflection."
Our Supreme Court has held whether a person acts in the heat of passion is subject
to an objective test. It requires an emotional state of mind of such degree as to cause an
ordinary person to act on impulse without reflection. The emotional state must arise from
circumstances constituting legally sufficient provocation, which is also subject to an
objective test—the provocation must be sufficient to cause an ordinary person to lose
control of actions and reason. State v. Gallegos, 286 Kan. 869, 875, 190 P.3d 226 (2008);
State v. Dixon, 252 Kan. 39, 45-46, 843 P.2d 182 (1992), abrogated on other grounds by
State v. Albright, 271 Kan. 546, 555, 24 P.3d 103 (2001).
6
Boldridge asserts he could not have acted with legally sufficient provocation
because he was reacting to Kelley's attempt to make an arrest and a person ordinarily
cannot use force to resist an arrest even if he or she believes the arrest is unlawful. See
K.S.A. 2020 Supp. 21-5227(a) (officer can use force in making arrest); K.S.A. 2020
Supp. 21-5229 (a person cannot lawfully resist arrest even if arrest itself is unlawful).
Accordingly, Boldridge asserts the circumstances did not give rise to legally sufficient
provocation for the jury to find he acted in the heat of passion because a reasonable
person would not have unlawfully resisted an officer's lawful use of force in making an
arrest by discharging a firearm in the officer's direction.
We find Boldridge's argument is correct even if the result it mandates feels wrong.
Generally, the existence of legally sufficient provocation would make Boldridge's actions
less culpable, i.e., the jury could convict him of attempted voluntary manslaughter as
opposed to attempted second-degree murder. But, the jury had the option to convict
Boldridge of attempted second-degree murder and declined to do so. Its verdict,
therefore, stands or fails based on the sufficiency of the evidence for attempted voluntary
manslaughter. Our role is to resolve issues of law, not questions of fact or matters of
equity. See Chandler, 307 Kan. at 668. Here, an essential element of the offense—legally
sufficient provocation—is lacking. See Campbell, 308 Kan. at 775.
Oddly, the State in its brief did not make any argument the evidence was
sufficient. Instead, the State unpersuasively argues any insufficiency in the evidence
underlying Boldridge's conviction is the result of invited error. The State incorrectly
asserts Boldridge requested an instruction for heat of passion. However, the record
reflects Boldridge only asked for an instruction on imperfect self-defense. Boldridge's
trial counsel explained he had been "going back and forth" about asking for an instruction
on heat of passion in addition to imperfect self-defense. But Boldridge's counsel did not
ask for the instruction. Although Boldridge did not explicitly object to the heat of passion
7
instruction, the record shows he did not affirmatively ask for it to be given. Accordingly,
the State's invited error argument lacks support in the record.
Other panels of this court have soundly rejected the State's argument in similar
contexts. See State v. LeGrand, No. 108,389, 2013 WL 6331597, at *14 (Kan. App.
2013) (unpublished opinion) (holding invited rule did not apply even when defendant
requested instruction because defendant was challenging sufficiency of evidence); State
v. Creason, No. 105,450, 2012 WL 3289946, at *4 (Kan. App. 2012) (unpublished
opinion) (same); State v. Folley, No. 89,368, 2004 WL 1714918, at *1 (Kan. App. 2004)
(unpublished opinion) ("[T]he invited error rule simply cannot trump a defendant's right
to have every element of the crime proved.").
Ultimately, Boldridge raises a challenge to the sufficiency of the evidence, not the
instruction itself. The instruction is relevant to our analysis of the sufficiency of the
evidence because the jury's verdict can only stand on the particular means of committing
the crime for which it is instructed. See State v. Johnson, 310 Kan. 835, 839-40, 450 P.3d
790 (2019). However, the process through which the district court ultimately decided to
give the instruction should not be determinative.
The State's argument is particularly unpersuasive as our Supreme Court has held:
"[T]here is no backing away from the requirement that the State prove every element of
the offense charged by proof beyond a reasonable doubt. The State must do so in order to
gain a conviction." State v. Bethel, 275 Kan. 456, 474, 66 P.3d 840 (2003). "Under the
Due Process clause of the 14th Amendment, no person may be convicted of a crime
unless every fact necessary to establish the crime with which he is charged is proven
beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed.
2d 368 (1970)." State v. Switzer, 244 Kan. 449, 450, 769 P.2d (1989). No facet of a
criminal jury trial could be more essential than the State's burden to prove all elements of
8
the crime(s) charged beyond a reasonable doubt. Thus, the State's invited error argument
is unavailing as a matter of law.
Here, the district court denied Boldridge's request for an instruction on imperfect
self-defense as a basis for voluntary manslaughter. The district court also did not instruct
the jury on voluntary manslaughter committed as the result of a "sudden quarrel." See
K.S.A. 2018 Supp. 21-5404(a)(1). Had either of these instructions been given,
Boldridge's attempted voluntary manslaughter conviction would almost certainly have to
be affirmed. However, the specific instruction the district court gave here—heat of
passion—was erroneous as a matter of law because no reasonable person would believe
he or she could discharge a firearm in order to prevent a police officer from making an
arrest. See K.S.A. 2020 Supp. 21-5227(a); K.S.A. 2018 Supp. 21-5229. Accordingly,
there was no basis for the jury to find legally sufficient provocation underlying
Boldridge's actions to convict him of voluntary manslaughter in the heat of passion. See
Gallegos, 286 Kan. at 875.
We find, given the record before us, there was legally insufficient evidence to
support Boldridge's conviction for attempted voluntary manslaughter. With this finding it
is not necessary for us to address the other issues raised on appeal by Boldridge. We
reverse Boldridge's conviction for attempted voluntary manslaughter and vacate his
sentence for that conviction. Because Boldridge did not challenge his other three
convictions and sentences on appeal, they are not affected and stand.
Conviction reversed and sentence vacated in part.
9