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No. 101,818 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. TERRY LEE DIAZ, Appellant.

SYLLABUS BY THE COURT

1. A mistake of fact is a defense if it negates the crime's required mental state. K.S.A. 21-3203(1). Although termed a "defense," the mistake-of-fact doctrine merely reflects the State's burden to prove every element of the offense: the State cannot convict the defendant if it fails to show that the defendant had the required mental state when committing the crime.

2. Aggravated failure to appear for a court hearing while on bond is a general-intent offense, requiring only that the defendant willfully forfeits the appearance bond and fails to surrender within 30 days of the forfeiture. K.S.A. 21-3814(a). Forfeiture of an appearance bond occurs when the defendant fails to appear "as directed by the court and guaranteed by an appearance bond." K.S.A. 22-2807(1), (2).

3. The facts of this case do not negate the required mental state that would allow the mistake-of-fact doctrine to be a defense to the crime of aggravated failure to appear
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because the defendant knew the court hearing in his felony case was scheduled for a specific day; he read an appearance bond ordering him to attend on that day; and he intended to not appear at the hearing.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed October 29, 2010. Affirmed.

Randall L. Hodgkinson, and Jonathon L. Noble, legal intern, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Ramsey A. Olinger, legal intern, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.

Before LEBEN, P.J., PIERRON and BUSER, JJ.

LEBEN, J.: A jury convicted Terry Diaz of aggravated failure to appear after he didn't attend the pretrial conference for his felony drug possession charge and didn't turn himself in for over 8 months. Diaz insists on appeal that the evidence was insufficient to convict him because his failure to appear wasn't willful--his attorney told him that he didn't need to attend. He also argues that a mistake instruction should have been given.

Although a mistake of fact is a defense to a crime when it negates the crime's required mental state, Diaz' claimed mistake does not negate the required mental state for aggravated failure to appear. To be convicted, Diaz need only intend to do the conduct that the statute prohibits, i.e., not appear and not turn himself in. Here, Diaz intended to not attend; his attempt to justify that failure with reliance on his attorney's advice does not negate the mental state required to commit this crime. Therefore, a rational fact-finder could find him guilty beyond a reasonable doubt. Moreover, because his claim of mistake

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would not negate the intent, the district court's failure to give a mistake jury instruction was not in error. We therefore affirm Diaz' conviction.

FACTUAL BACKGROUND

Terry Diaz was charged with felony drug possession. On October 6, 2006, Judge Davis set the case's pretrial conference for December 8, 2006; Diaz and his retained attorney, Dave Gilman, were both present. Diaz and Gilman had known each other for over 25 years.

According to Judge Davis, his practice was to always tell defendants charged with a felony that they needed to appear at all hearings. But in this case, Judge Davis did not check the box on his bench notes indicating that he had told Diaz to appear and the written transcript of the hearing does not contain an order to appear either. Diaz also does not remember being ordered to appear. Diaz did sign an appearance bond that notified him of the hearing date and that he needed to appear; the hearing date was in bold font. Diaz said that he didn't read the part about the court date when he signed the appearance bond; he merely skimmed the document because he was eager to get out of jail.

After he was bonded out, Diaz visited Gilman. According to Diaz, Gilman told him that he didn't need to appear at the conference on December 8 since Gilman was going to ask for a continuance. Diaz explained that Gilman was going to ask for a continuance because Diaz wanted to go to trial and that Gilman would notify him of the new court date.

Then Gilman's wife suddenly died in October, and Gilman became ill shortly thereafter. Gilman's son, Frank, took over his father's cases. Frank told the prosecutor and

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Judge Davis about his father's illness, and he believes that he told Judge Davis that he would be unable to attend Diaz' pretrial conference. But Frank did not request a continuance that would excuse Diaz' presence, and presumably Gilman didn't request a continuance either.

Diaz did not appear on December 8. The district court forfeited Diaz' bond and issued a warrant for his arrest. Diaz testified that Frank called his girlfriend on December 9 but that he didn't speak with Frank; Frank does not remember contacting Diaz. Still, Diaz admitted that he knew on December 10 that a warrant had been issued for his arrest, and Diaz did not turn himself in within 30 days of the bond forfeiture. He testified that during this time he was still in town working and that he eventually went to Texas and then to Mexico in April 2007. Gilman had died in March 2007.

In August 2007, Diaz ended up in the custody of the border authorities, was brought back to Kansas, and was charged with aggravated failure to appear. Diaz claims that he turned himself in so that he could resolve these issues; the information the sheriff's office received from the border authorities did not indicate whether Diaz turned himself in or whether he was apprehended. But Diaz waived extradition, meaning he didn't fight being brought back to Kansas.

A jury found him guilty of the offense, and the district court sentenced him to an additional 7 months in prison. He appeals and argues that the evidence was insufficient to sustain the conviction and that the district court erred in not giving the jury a mistake instruction (PIK Crim. 3d 54.03).

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DISCUSSION

I.

Sufficient Evidence Existed to Convict Diaz of Aggravated Failure to Appear.

In considering Diaz' challenge to the evidence's sufficiency after a conviction, this court reviews all the evidence in the prosecution's favor and determines whether a rational fact-finder could have found Diaz guilty beyond a reasonable doubt. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009).

A defendant commits aggravated failure to appear when, after being charged with a felony and released on an appearance bond to appear before a court, he or she willfully forfeits the appearance bond and fails to surrender within 30 days of the forfeiture. K.S.A. 21-3814(a). Forfeiture of an appearance bond occurs when the defendant fails to appear "as directed by the court and guaranteed by the appearance bond." K.S.A. 222807(1), (2).

On appeal, Diaz contends that he did not have the required mental state for the offense--willfulness--because he was operating under a mistake of fact, the mistake being Gilman's advice that Diaz didn't need to attend the hearing because Gilman would request a continuance.

A mistake of fact is a defense if it negates the crime's required mental state. K.S.A. 21-3203(1). Although termed a "defense," the mistake-of-fact doctrine merely encapsulates the State's burden to prove every element of the offense: the State cannot convict the defendant if it fails to show that the defendant had the required mental state when committing the crime. See United States v. Platte, 401 F.3d 1176, 1184 (10th Cir. 2005).

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Like most other states today, Kansas defines its crimes by statute. State v. Stewart, 281 Kan. 594, 598, 133 P.3d 11 (2006); see Merrill, The Disposing Power of the Legislature, 110 Colum. L. Rev. 452, 457-58 (March 2010). The Kansas criminal code contains a different definition of criminal intent than the one Diaz argues: that the defendant merely intended the conduct that constitutes the crime. K.S.A. 21-3201(a) ("Criminal intent may be established by proof that the conduct of the accused person was intentional." [Emphasis added.]). In other words, the State doesn't need to prove that the defendant intended the precise harm or the result that occurred. In re C.P.W., 289 Kan. 448, 454, 213 P.3d 413 (2009). Crimes requiring only intent to commit the conduct are often called general-intent crimes, and the general rule is that mistake of fact is not a defense to general-intent crimes. See, e.g., State v. Gillon, 25 Kan. App. 2d 809, 974 P.2d 1115, rev. denied Kan. 266 Kan. 1112 (1999) (defendant was not entitled to mistake-offact instruction in prosecution for possession of sawed-off shotgun because State was required only to prove possession of outlawed weapon not knowledge of specific length of barrel as compared to legal minimum). A defendant's mistaken belief that the facts make his or her conduct innocent would not negate the mental state because the defendant still intended to do the conduct that constitutes the crime. In such a case, a mistaken belief that the conduct wasn't against the law would not negate the required mental state.

Some crimes, however, require more than intent to do the conduct; these crimes require an additional intent to achieve a particular consequence or harm. 289 Kan. at 45455; see, e.g., K.S.A. 21-3715(a) (burglary, defined as entering a building "with intent to commit a felony, theft or sexual battery therein"); K.S.A. 21-3503(a)(1) (indecent liberties with a child requires that the prohibited conduct be done with "intent to arouse or satisfy the sexual desires of either the child or the offender, or both"); K.S.A. 21-3419(a)

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(criminal threat is "any threat to . . . [c]ommit violence communicated with intent to terrorize another"); K.S.A. 21-3701(a) (felony theft is defined as the taking of another's property worth at least $1,000 "with intent to deprive the owner permanently of the possession, use or benefit" of the property); K.S.A. 21-3612(a)(4) (contributing to child's misconduct or deprivation is defined as "sheltering or concealing a runaway with intent to aid the runaway in avoiding detection or apprehension by law enforcement officers"). These crimes have been called specific-intent crimes, and mistake of fact is traditionally recognized as a defense to them because the defendant could not have intended to, for example, commit felony theft if he thought he had the owner's permission to take the property, even if that understanding was mistaken.

But the labels for general versus specific intent and their corresponding rules for whether mistake of fact can be a defense often tend to confuse courts and parties more than help them. See United States v. Iron Eyes, 367 F.3d 781, 784-85 (8th Cir. 2004); 1 LaFave, Substantive Criminal Law

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