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No. 104,295 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. STEVEN HOWARD WEIS, Appellant.

SYLLABUS BY THE COURT 1. The admissibility of any and all other crimes and civil wrongs evidence, including res gestae evidence, is governed by K.S.A. 60-455.

2. Determining whether evidence was properly admitted pursuant to K.S.A. 60-455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard for reviewing materiality is de novo. The appellate court must also determine whether the material fact is disputed, i.e., the element or elements being considered must be substantially at issue in the case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate court reviews relevance--in particular, the probative element--of K.S.A. 60-455 evidence for abuse of discretion. The burden of proof is on the party alleging the discretion is abused. The court must also determine whether the probative value of the

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evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion.

3. When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury.

4. When a party neither suggests an instruction nor objects to its omission at trial, the instruction will be examined to determine if the giving or failure to give the instruction was clearly erroneous. Under the clearly erroneous standard of review, an appellate court must be able to declare a real possibility existed that the jury would have returned a different verdict if the trial error had not occurred.

5. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

6. Under the facts of this case, the district court's factual finding that the defendant used a deadly weapon in the commission of reckless aggravated battery which resulted in the court's order for the defendant to register under the Kansas Offender Registration Act, K.S.A. 2010 Supp. 22-4902(a)(7), did not violate the Sixth and Fourteenth Amendments to the Constitution of the United States.

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Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed June 15, 2012. Affirmed.

Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.

Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

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

BUSER, J.: A jury found Steven H. Weis (Steven) guilty of two counts of reckless aggravated battery, K.S.A. 21-3414, and one count of criminal use of a weapon, K.S.A. 21-4201(a)(1). Steven appeals his convictions and sentencing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND This case arose from a disturbance between Steven and Anthony Napoleone, Thomas Nece, and Justin Lakkari in the early morning hours of Sunday, July 13, 2008. Anthony and Justin were friends. Steven had been dating Alicia Napoleone, Anthony's sister and Thomas' stepsister. At the time of this incident, Steven was living on a farm near Brookville. Alicia lived in Salina.

There was some evidence that Steven was not on friendly terms with Anthony, Thomas, and Justin. Specific disagreements, however, were not admitted at trial. These included that Anthony disliked Steven for introducing Alicia to methamphetamine use, that Steven had fought Justin after hitting Justin's girlfriend, and that Steven had fought Thomas in a bar. The trial court reasoned that even if the four men "had 20 fights in the past or 20 arguments in the past," "those matters were settled" and were not "really relevant as to what happened" on July 13, 2008.

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On Saturday evening, July 12, 2008, Alicia went out drinking with Anthony, Thomas, Justin, and others. Alicia had met the group at a house belonging to Ryan and Chelsea Haden. The plan was to ride in the Hadens' van and visit drinking establishments. At about 1:30 a.m., on Sunday, July 13, 2008, Alicia was still out partying with the group when Steven called to say he was on his way to Salina to spend the night with her.

After receiving Steven's phone call, Alicia left the group and started walking towards her house. Steven soon arrived with his stepbrother, who was giving him a ride. The men picked up Alicia and drove to the Hadens' house to retrieve Alicia's vehicle, an older Jeep in poor mechanical condition. After Steven's stepbrother left, Steven and Alicia discovered the Jeep would not start. By that time, the group which had been partying returned to the Hadens' house. From this point on, the accounts of what occurred were dramatically different.

At trial, Alicia testified that she and Steven began walking to her house after one of the group approached the Jeep. Steven agreed, adding "[t]hat's when I found out that her friends, family were there." Steven said he told Alicia, "I was going to go, she can come if she wanted to," and that Alicia had to run "around the Jeep to catch up with me." Of note, Steven and Alicia specifically denied there was any argument or violence between them while they were at or around the Jeep.

Alicia testified that she soon noticed Anthony, Thomas, and Justin following them. According to Alicia, Anthony and Thomas started yelling at Steven, calling him "a bitch and a pussy," and "telling him to come back and fight." Alicia said she told Steven to keep walking.

Alicia said Anthony, Thomas, and Justin continued to follow them, and she "eventually turned around to kind of stop it, because it was just kind of monotonous." She 4

again told Steven to keep walking. Alicia testified that Anthony passed by her towards Steven with a look of anger on his face. Alicia tried to talk to Thomas and Justin, but they soon bolted past. Alicia testified she turned around and "all four of them . . . were all kind of fighting together."

In his defense, Steven's testimony substantially corroborated Alicia's testimony. Steven said the followers were "shouting, hey, pussy, come back here and fight" and that he recognized Anthony's voice among them. Steven said Alicia "stopped to talk to her brothers and she told me to keep walking." He said he heard "somebody running up behind me" and that when he turned it was Anthony "about a foot away from me . . . and just yelling, leave his sister alone or he was going to kick my ass." Steven testified Thomas ran up "waiving [sic] something shinny [sic]" and the "[n]ext thing I know Anthony is tackling me at my feet." Steven said he did not swing at Anthony and that he was eventually able to free himself and run away.

Anthony, Thomas, Justin, and the other State's witnesses provided a markedly different account. Anthony testified that after the group had returned to the couple's house, he noticed Steven and Alicia arguing in the Jeep. Anthony said he then saw Steven "smack her in the face." Anthony said he "took a deep breath and minded my own business for a second."

Anthony stated that Steven then left the Jeep and that Alicia followed him. But, according to Anthony, Steven "smacked her again" and "turned back to me and said, what's the matter, pussies, you not going to fight me tonight, something like that." Anthony said this statement "pushed my button . . . [s]o, I started walking after him." When asked why he had followed Steven, Anthony answered, "Because I was angry that he had hit my sister."

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Anthony testified that Steven and Alicia stopped together "and waited for me." Anthony admitted, "I was screaming at him," but he could not recall at trial what he had said. Anthony said Alicia was screaming as well, but at trial he had "no idea" what she said. His next memory was Steven taking a swing at him. Anthony said he ducked and fell to the ground. He was unable to feel his legs.

Thomas testified regarding the events in the early morning. He testified that he was entering the Hadens' house when "someone said that Steven and Alicia were out front arguing and then Justin said that he . . . saw him hit her." Thomas recalled that Steven and Justin "exchanged some words," and then Steven "turned around. He said, what, you pussies don't want to fight tonight." At that point, Thomas said, Steven "backhanded" Alicia.

Thomas said he approached Steven and told him, "[H]ey, man, you can't be doing that shit, what's your problem." Thomas said Steven replied, "[expletive deleted] you, whatever, I'll do what I want, pussies, [you] can't do anything to stop me, or something like that." Thomas agreed with Anthony that Steven and Alicia stopped together, and he agreed with Alicia that it was Anthony who approached the couple because "that's his blood sister, so he's like, you know, I'll go take care of this." Soon after, according to Thomas, Steven "grabbed Anthony and hit him in the back, and then Anthony was laying [sic] on the ground."

Justin also testified at trial. He was inside the Hadens' house when he heard someone yell. He looked out and saw Steven and Alicia outside the Jeep. Justin said he "witnessed [Steven] either punch or slap [Alicia]. I don't know exactly what it was. But he hit her."

Justin said Steven and the other men were yelling at each other, but he could not recall in detail what each one said. He did remember that Anthony "said something about 6

hitting my sister. He said, why don't you do that over here, or something like that, in front of my face."

Justin said Anthony and Thomas followed Steven and Alicia as they walked away, but "I couldn't see very well. I didn't have my glasses on." Justin and his wife followed at some distance while the four individuals "kept yelling at each other." Eventually, when "Anthony had gotten close to Steven," Steven "kind of turned around and punched." Justin said Anthony fell to the ground and did not get up.

Justin said he put Steven in a bear hug, that the two fell and wrestled on the ground, and that Steven managed to break loose and began hitting him. Justin said he was scratched and cut, but that he never saw a weapon. There was broken glass at the scene because Alicia threw beer bottles at Thomas and Justin during the fight.

The State also called Thomas' wife, Lynnsey Nece, and Justin's wife, Jennifer Ruston Lakkari, whose testimony was generally consistent with that of Anthony, Thomas, and Justin. Lynnsey, who as the designated driver was not drinking that night, testified, "I heard Steven say, what, you don't want to fight tonight, pussies. And then about that time it looked as if he had struck Alicia." Anthony's girlfriend, Shannon Jay, similarly agreed with the account given by Anthony, Thomas, and Justin.

In his defense, Steven called Jeremy Watkins, an investigator with the Salina Police Department, who interviewed Anthony at the hospital after the fight. Watkins said Anthony told him that "he didn't like Steven and Alicia being together, and that he went out to talk to Alicia and try to get her to come back to the house and stay away from Steven." Anthony did not tell Watkins that Steven had slapped Alicia.

Whatever triggered the fight, the tragic result was that Anthony's spinal column was severed by the broken tip of a knife which lodged in his spine and paralyzed him 7

from the rib cage down. Forensic testing matched the broken tip with a knife found at the scene. Additionally, Thomas suffered numerous stab wounds, and DNA taken from the remaining portion of the knife's blade matched a DNA sample taken from Thomas.

At trial, Steven denied the possession or use of the knife. But when Steven called 911 after the fight, he reported that someone had been stabbed. And when interviewed by the police soon thereafter, Steven said he "didn't know" if he had carried a knife. Steven told the police he "hit one of the men," that "he might have had something in his hand," and that he "might have had some keys in his hand." At trial, however, Steven admitted that he had no keys during the fight.

The State charged Steven with aggravated battery against Anthony, Thomas, and Justin and with criminal use of a weapon. The jury returned guilty verdicts on the lesser included offenses of reckless aggravated battery as to Anthony and Thomas, but acquitted Steven of aggravated battery with respect to Justin. The jury also returned a guilty verdict on the criminal use of a weapon charge. The district court sentenced Steven to 41 months' imprisonment. He appeals.

ADMISSION OF K.S.A. 60-455 EVIDENCE Prior to trial, the State moved to admit evidence under K.S.A. 60-455 that Steven slapped Alicia in the presence of the group shortly before the stabbing. The State argued the slap was "necessary . . . to prove motive" and "relevant to show the reason why the altercation began." Additionally, the State argued that because Steven's defense theory "involve[s] self-defense," together with the victims' statement, "motive is a material issue in this case."

The trial court conducted a K.S.A. 60-455 hearing. Steven's counsel disputed the propriety of an instruction on motive, arguing the only possible motive shown by the

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challenged evidence was "the reason these three people attacked my client." The trial court allowed the evidence, but it did not instruct the jury on motive. Rather, it instructed the jury: "Evidence has been admitted tending to prove that the defendant committed battery against Alicia Napoleone. This evidence may be considered solely for the purpose of explaining the events leading up to the altercation on July 13, 2008."

In State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), our Supreme Court directed: "Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455." Steven asserts in passing that the trial court admitted "res gestae evidence . . . independent of K.S.A. 60-455." Our general rule is to disregard passing assertions, State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010), but Steven's assertion is contrary to the record.

The trial court did not admit the evidence Steven slapped Alicia independent of K.S.A. 60-455. The State moved for the admission of this evidence pursuant to that statute and at the hearing the trial judge announced, "I have before me today the State's Motion to Admit Evidence pursuant to K.S.A. 60-455." The trial court then carefully conducted a thorough analysis of the challenged evidence in accordance with the dictates of K.S.A. 60-455 and Gunby. Given this record, we see no reason to consider a supposed use of res gestae evidence independent of K.S.A. 60-455. We will consider Steven's primary argument, however, that the trial court "did not correctly apply the K.S.A. 60455 three-part test . . . set out in Gunby." (Emphasis added.)

Our Supreme Court has refined the test for the admissibility of evidence under K.S.A. 60-455 since Gunby:

"Determining whether evidence was properly admitted pursuant to K.S.A. 60455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the

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court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard for reviewing materiality is de novo. The appellate court must also determine whether the material fact is disputed, i.e., the element or elements being considered must be substantially at issue in the case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate court reviews relevance--in particular, the probative element--of K.S.A. 60-455 evidence for abuse of discretion. The burden of proof is on the party alleging the discretion is abused. The court must also determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion." State v. Hollingsworth, 289 Kan. 1250, Syl.

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