State v. Tucker

NOT DESIGNATED FOR PUBLICATION

No. 121,260

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CARL D. TUCKER,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS and CHRISTOPHER M. MAGANA, judges.
Opinion filed December 11, 2020. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., GREEN and STANDRIDGE, JJ.

PER CURIAM: Carl D. Tucker appeals his convictions of criminal possession of a
firearm and misdemeanor battery. Tucker argues this court should reverse his convictions
because (1) the district court applied the wrong legal standard when it denied his motion
for immunity from prosecution based on self-defense and (2) his criminal possession of a
firearm conviction is unconstitutional in light of the 2010 amendments to section 4 of the
Kansas Constitution Bill of Rights. We are not persuaded by Tucker's first argument and
find his second argument is not properly preserved. Accordingly, we affirm Tucker's
convictions.

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 FACTS

On August 22, 2017, the State charged Tucker with aggravated battery and
criminal possession of a firearm. The State's charges stemmed from Tucker's August 19,
2017 altercation with his landlord Ronald Crumble. During this altercation, Tucker fired
his handgun at Crumble a single time. The bullet entered and then exited Crumble's left
forearm before finally lodging in Crumble's stomach.

After the charges were filed, Tucker filed a motion under K.S.A. 2017 Supp. 21-
5222(b) arguing he was immune from prosecution under K.S.A. 2017 Supp. 21-5231(a)
because he shot Crumble in self-defense. The State responded that Tucker's motion was
without merit because Tucker provoked the altercation, which meant that he was not
entitled to immunity from prosecution. See K.S.A. 2019 Supp. 21-5226(b). Alternatively,
the State argued that the district court should deny Tucker's motion for immunity because
Tucker's use of deadly force against Crumble was neither subjectively nor objectively
reasonable under the facts of his case.

The district court held an evidentiary hearing on Tucker's immunity motion.
Multiple people testified at the evidentiary hearing. Yet, only Crumble and Tucker
testified about what occurred during their August 19, 2017 altercation.

During his testimony, Crumble admitted that he previously had attempted to extort
utility bill payments directly from Tucker, notwithstanding the fact that the Wichita
Housing Authority paid him directly for Tucker's utility bills. And Crumble also appeared
to concede that once his extortion attempts failed, he decided to evict Tucker. Crumble
testified that after giving Tucker an eviction notice around August 8, 2017, Tucker told
him "that he was going to get [him]."

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 As for the August 19, 2017 altercation, Crumble explained that earlier in the day,
he had collected tree limbs from his residence to burn in the backyard of the duplex he
owned and at which Tucker resided. Shortly after he arrived at the duplex, Tucker exited
the backdoor of his duplex apartment and approached Crumble. As Tucker got closer,
Crumble saw the shape of a handgun through Tucker's shorts' pocket. Crumble said
Tucker was gripping the handgun's handle, which was sticking out of the top of Tucker's
shorts' pocket.

Once he realized Tucker was approaching him while gripping a handgun, Crumble
feared Tucker was going to shoot him. So Crumble grabbed Tucker's wrist in an attempt
to gain control over Tucker's handgun. Crumble went on to say that

"when I grabbed his wrist and things, we kind of tussled a little bit and we fell up against
a tree. . . . He was talking to me. He mentioned the fact that some people, I guess
whoever he was informing for, wanted me dead or something and that he wasn't going to
do [any] time, something like that. He basically twisted the pistol up [inside his shorts'
pocket] and shot me."

After Tucker shot him, Crumble said he somehow was able to pin Tucker to the
ground and seize Tucker's handgun. Crumble admitted that once he seized Tucker's
handgun, he considered killing Tucker with the handgun. He said he ultimately decided
not to kill Tucker because other tenants who were watching urged him not to. At this
point, one of the other tenants took Tucker's handgun from Crumble and called the
police. Crumble continued to pin Tucker to the ground until the police arrived.

Tucker also testified at the evidentiary hearing. Tucker said Crumble physically
threatened him during the time Crumble was trying to extort utility payments from him.
He explained that Crumble's physical threats scared him into acquiring the handgun. On
the day of the altercation, Tucker decided to put a single bullet in his handgun, place his
handgun in his shorts' pocket, and then sit on the back porch of his duplex apartment.

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Shortly after Tucker sat down, Crumble arrived with the tree limbs. Tucker described
what happened then:

"Well, Your Honor, after that [Crumble] saw me and he said, hey, I need to
holler at you. So[,] I'm armed but I've got one bullet in the gun. And I go over to him and
he says you need to have your ass out of here by September 1st. I guess he saw the
imprint of the gun or something and he just rushed all of a sudden and he went for that
gun and I'm, like, oh, man.
"The way I remember, I start struggling for the gun and I'm telling him get off the
gun, get off the gun. We're struggling for the gun and somehow in between there the gun
went off and I shot him, but it was not my intent to shoot him. I was trying to get away
from him, but he was trying to get that gun. We were struggling for the gun, Your Honor.
....
"He told me . . . . [L]ike I said, I guess he saw the imprint of the gun or
something. He went for it. I never pulled that gun. I never pulled it. I never had my hand
down in my pocket. But he rushed to get it and started grabbing for that gun, struggling
for the gun. I told him get off the gun, get off the gun, get off the gun.
....
"And the gun went off and I'm, like, oh, man. I remember after that I'm, like—
well, I know there's only one shell in the gun, Your Honor, so I kind of let the gun go. I
think, if I remember right, it fell out and he grabbed it, and by that time we're rassling
[sic] and he's on top of me. And I remember him putting that gun to my head, but I knew,
Your Honor, that I didn't have anything to worry about because the gun—the round that
was in it had been discharged."

Regarding his decision to put a single bullet in his handgun, Tucker said:

"Well, it was my intention actually, Mr. Price [defense counsel], I know it might
be hard to believe, but really as a bluff. I had it so I was hoping by him seeing the imprint
of it he'd think, well, hey, yeah, he's not such a pushover after all, he's got a gun. But for
some reason I guess he says, well, no it [does not] make any difference. Because I
remember him telling me while we were struggling, he said, well, I'm going to take this
gun and kill you with your own gun, that's what I'm going to do. I'm like, oh, man. I

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 remember struggling for the gun and getting my hand in some kind of way and then it
went off."

After the hearing, the district court took the parties' respective arguments under
advisement. Four days later, the district court ruled on Tucker's motion for immunity
from the bench. The court held that under the totality of the circumstances, Tucker's use
of deadly force against Crumble was not statutorily justified because Tucker provoked
the altercation.

Tucker's case proceeded to a jury trial. The jury found Tucker guilty of the lesser
included offense of misdemeanor battery as well as criminal possession of a firearm. The
district court sentenced Tucker to 20 months' imprisonment followed by 12 months'
postrelease supervision for his criminal possession of a firearm conviction, with a
consecutive six-month jail term for his battery conviction.

ANALYSIS

Immunity based on self-defense

Tucker claims the district court erred in finding that he provoked the altercation and,
based on that finding, that his use of deadly force against Crumble was not statutorily
justified.

Relevant here, the Kansas Legislature enacted a series of statutes in 2010
addressing the use of force—including the use of deadly force—in defense of a person or
property. See K.S.A. 2019 Supp. 21-5220 et seq. Before we address the merits of
Tucker's argument on appeal, we find it helpful to summarize the particular statutes
relevant to our analysis.

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 K.S.A. 2019 Supp. 21-5222(b) provides that a person is justified in the use
of deadly force if the person both subjectively and reasonably believes that deadly
force is necessary to prevent imminent death or great bodily harm to that person or
a third person.

K.S.A. 2019 Supp. 21-5226(b) provides that a person who initially
provokes the use of any force with the intent to use that force as an excuse to
inflict bodily harm upon an assailant are not entitled to immunity from prosecution
under K.S.A. 2019 Supp. 21-5222.

K.S.A. 2019 Supp. 21-5226(c)(1) provides that a person who initially
provokes the use of any force is not entitled to immunity from prosecution unless
that person had reasonable grounds to believe they were in imminent danger of
death or great bodily harm and had exhausted every reasonable means to escape
that danger other than use of deadly force.

K.S.A. 2019 Supp. 21-5231(a) provides that a person who uses force
justified under K.S.A. 2019 Supp. 21-5222 is immune from criminal prosecution
for the use of that force.

So a defendant may move for immunity from prosecution when and if that person
subjectively and reasonably believes that deadly force is necessary to prevent imminent
death or great bodily harm to that person or a third person. K.S.A. 2019 Supp. 21-
5222(b); K.S.A. 2019 Supp. 21-5231(a). But a defendant who initially provokes the use
of force is not entitled to immunity from prosecution unless the person has reasonable
grounds to believe he or she is in imminent danger of death or great bodily harm and has
exhausted every reasonable means to escape the danger presented. K.S.A. 2019 Supp. 21-
5226(c)(1).

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 In State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020 (2013), the Kansas
Supreme Court determined that the standard of proof for whether a defendant is entitled
to immunity from criminal prosecution is probable cause. The Ultreras court held that the
State bears the burden of establishing probable cause to believe that a defendant's use of
force was not statutorily justified. 296 Kan. at 845.

In State v. Hardy, 305 Kan. 1001, Syl. ¶ 1, 390 P.3d 30 (2017), the Kansas
Supreme Court clarified the role of the district court in deciding a motion for immunity
from prosecution. When considering a motion for immunity, "the district court must
consider the totality of the circumstances, weigh the evidence before it without deference
to the State, and determine whether the State has carried its burden to establish probable
cause that the defendant's use of force was not statutorily justified." 305 Kan. 1001, Syl.
¶ 1. The court also set forth the applicable standard of review on appeal, stating:

"An appellate court will apply a bifurcated standard of review to a district court's
determination of probable cause pursuant to K.S.A. 2016 Supp. 21-5231. When a district
court's ruling entails factual findings arising out of disputed evidence, a reviewing court
will not reweigh the evidence and will review those factual findings for supporting
substantial competent evidence only. The ultimate legal conclusion drawn from those
facts is reviewed de novo. When there are no disputed material facts, a pure question of
law is presented over which an appellate court exercises unlimited review." 305 Kan.
1001, Syl. ¶ 5.

On appeal, Tucker argues the district court applied an incorrect standard in ruling
on his immunity motion. Specifically, Tucker claims that instead of utilizing a "totality of
the circumstances" test, the court erroneously analyzed the evidence in the light most
favorable to the State by "bas[ing] its ruling solely on a credibility determination, finding
that it did not accept any of the evidence presented by Mr. Tucker as valid or truthful."
Tucker argues that the district court's "wholesale dismissal of Mr. Tucker's testimony was

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the functional equivalent of reviewing the evidence in a light most favorable to the State,
a standard of review that the Hardy Court explicitly rejected."

In making his argument, Tucker acknowledges that the district court cited to
Hardy and expressly stated that it had reviewed the evidence using the totality of the
circumstances standard before deciding to deny his immunity motion. But Tucker asserts
the district court citation to language about credibility determinations from the
unpublished opinion In re Guardianship & Conservatorship of L.M.H., No. 108,297,
2013 WL 2395900 (Kan. App. 2013) (unpublished opinion), necessarily leads to the
conclusion that the court did not utilize the requisite totality of the circumstances
standard. Although Tucker's argument is not entirely clear, Tucker appears to believe that
the district court wrongly relied on this unpublished opinion to make a credibility
determination against him without first considering the evidence under Hardy's totality of
the circumstances test. He then contends that the district court "necessarily considered the
evidence under a 'light most favorable to the State' standard" by making the credibility
determination against him.

The State counters that the district court correctly applied the totality of the
circumstances test as required by Hardy when denying Tucker's immunity motion. It
asserts that, when viewed in context, the district court's citation to the unpublished
opinion and credibility determinations against Tucker were both proper. We agree with
the State.

In this case, the district court denied Tucker's immunity motion from the bench.
Before it issued its ruling, however, the district court first discussed the law it was relying
on to deny Tucker's motion. The court informed the parties that it had reviewed Hardy as
well as other older cases from our Supreme Court involving immunity motions. The court
stated that it also had reviewed the applicable statutes, see K.S.A. 2019 Supp. 21-5231,

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K.S.A. 2019 Supp. 21-5222, and K.S.A. 2019 Supp. 21-5226. The court then made the
following comments on the issue of credibility determinations:

"Credibility of witnesses is critical in a fact-intensive motion and case like this.
Case law recognizes the powerful vantage point of the district court or the trial judge in
observing witnesses as they testify. An appearance on the witness stand is, and this is a
quote, perhaps the most discerning crucible for separating honesty and accuracy from
misstatement. I skipped some of the verbiage in there. That's a really good statement
from an unrelated case of [In re Guardianship & Conservatorship of L.M.H.] That's an
unpublished case from May 31st, 2013.
"I just like that language because it identifies the importance of live testimony
and how that testimony can affect credibility and decisions about credibility that have an
effect on the outcome of a motion like this and the importance of seeing that testimony
and hearing that testimony and observing the witnesses. In a case like this and in fact this
case, being able to see and hear witnesses as they testify have borne the truth of that
statement out."

After discussing the law upon which it relied to make its ruling, the district court
made numerous findings of fact. Those fact-findings included the following:

"Defendant initially provoked Ronald Crumble by, one, coming out of his
residence and approaching Ronald Crumble, thereby creating a dangerous situation; two,
carrying a loaded firearm to confront Ronald Crumble. The defendant did not have to
load the gun to create a 'bluff,' as the defendant testified was his purpose. Three, carrying
the loaded firearm in a manner that it was visible and obvious to Ronald Crumble that the
defendant possessed a firearm either by creating an 'imprint' of the gun in his shorts,
which was the defendant's testimony, or by holding the grip of the firearm outside of the
right pants pocket of his shorts, which was Mr. Crumble's testimony. I would refer to
K.S.A. 21-5226."

Finally, after making its findings of fact, the district court denied Tucker's
immunity motion. Specifically, the court held that it had reviewed the totality of the

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circumstances and found that the State had met its burden of establishing that Tucker's
use of force was not statutorily justified.

So before making its decision to deny Tucker's motion for immunity, the court
first cited the law, including language from the Hardy opinion and language from an
unrelated unpublished opinion on the import of a district court's credibility determination.
The court then made findings of fact, including factual determinations that were
inconsistent with Tucker's testimony but consistent with Crumble's testimony about who
provoked the altercation. Although the district court did not expressly convey that it was
making a credibility determination against Tucker, it undoubtedly did so. Specifically, the
court cited to the language about credibility determinations in the unpublished opinion
before finding Crumble's testimony—that Tucker provoked the altercation—to be more
credible. Finally, the district court relied on its factual findings, including its credibility
determination against Tucker, to deny Tucker's immunity motion.

Simply put, we are not persuaded by Tucker's argument that the district court's
citation to language about credibility determinations from the unrelated unpublished
opinion means the court failed to consider the evidence under a totality of the
circumstances standard. District courts are permitted to make credibility determinations
when considering a defendant's immunity motion. Indeed, in the recent immunity case
State v. Macomber, 309 Kan. 907, 916-18, 441 P.3d 479 (2019), our Supreme Court
affirmed the district court's denial of Macomber's immunity motion because substantial
competent evidence supported the district court's credibility determination against
Macomber. In reaching this holding, the Macomber court emphasized that it must defer
to credibility determinations made by the district court under the substantial competent
evidence standard of review. 309 Kan. at 916. So contrary to Tucker's argument, a district
court may make credibility determinations when ruling on an immunity motion while
also complying with the totality of the circumstances' test set forth in Hardy. And that is
precisely what happened here.

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 Finally, it is worth noting that although Tucker does not challenge the adequacy of
the evidence supporting the district court's credibility determination against him,
Crumble's testimony supported the district court's fact-finding that Tucker provoked the
altercation. Again, Crumble testified that Tucker approached him while gripping his
handgun in the manner that made him believe that Tucker intended to shoot him.
Although Crumble's criminal history and attempts to extort utility payments from Tucker
raise questions about Crumble's credibility, Tucker had credibility issues too. Indeed,
Tucker testified that he first met Crumble when they were both serving time in prison.
The district court was in the difficult position of discerning the truth from two witnesses
who had credibility issues. This is why appellate courts defer to a district court's
credibility determinations. See Macomber, 309 Kan. at 916 (appellate court does not
reweigh evidence, resolve conflicts in evidence, or pass on credibility of witnesses when
reviewing district court's factual findings for substantial competent evidence). Crumble
testified that Tucker provoked the altercation; therefore, substantial competent evidence
supports the district court's credibility findings about who started the altercation.

Failure to preserve constitutional challenge

Tucker argues his criminal possession of a firearm conviction is unconstitutional
in light of the 2010 amendments to section 4 of the Kansas Constitution Bill of Rights. In
support of his argument, Tucker maintains that the language in the amended
constitutional provision grants to the citizens of Kansas an unfettered and individual right
to possess a firearm, regardless of past criminal activity. Because the statute criminalizes
the possession of a firearm by certain convicted felons, Tucker claims K.S.A. 2019 Supp.
21-6304 infringes on the right to possess a firearm as guaranteed by section 4.

In 2010, Kansans voted to amend section 4 of the Kansas Constitution Bill of
Rights to read as follows:

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 "A person has the right to keep and bear arms for the defense of self, family,
home and state, for lawful hunting and recreational use, and for any other lawful purpose;
but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated,
and the military shall be in strict subordination to the civil power." L. 2009, ch. 152, § 1.

Before the amendment, the language in section 4 did not expressly provide
Kansans an individual right to bear arms. The original version provided: "The people
have the right to bear arms for their defense and security; but standing armies, in time of
peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in
strict subordination to the civil power." See L. 1861, p. 48. This older version of section 4
more closely mirrored a person's right to bear arms under the Second Amendment to the
United States Constitution, which provides that "[a] well regulated Militia, being
necessary to the security of a free State, the right of the people to bear Arms, shall not be
infringed."

In his brief, Tucker argues section 4 of the Kansas Constitution Bill of Rights
gives Kansans a greater right to bear arms than the Second Amendment's right to bear
arms for two reasons: (1) because section 4 expressly provides Kansans with an
individual right to bear arms and (2) because section 4 contains no language limiting a
person's individual right to possess a firearms. Based on this argument, Tucker claims
this court must reverse his criminal possession of a firearm conviction because "no level
of infringement" on his individual right to possess a firearm under the 2010 amendments
to section 4 is acceptable. Alternatively, Tucker argues that this court must consider the
constitutionality of the criminal possession of a firearm statute in light of the 2010
amendments to section 4 under a strict scrutiny constitutional analysis. He contends that
his conviction is unconstitutional under that analysis.

In his brief, Tucker candidly acknowledges that he did not raise this constitutional
argument—either as a facial challenge or as the statute applies to him—before the district

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court. Tucker also implicitly recognizes that this court generally does not consider
arguments raised for the first time on appeal. See State v. Daniel, 307 Kan. 428, 430, 410
P.3d 877 (2018). Still, Tucker contends that this court may consider his argument for the
first time on appeal under "the first and second exceptions" to the preceding general rule.
See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014) (this court may consider
argument raised for first time on appeal if [1] new argument involves question of law
arising on proved or admitted facts that is finally determinative of case, [2] consideration
of new argument is necessary to serve ends of justice, or [3] district court's judgment may
be upheld as right for wrong reason).

But Tucker's contention that this court should consider his constitutional challenge
for the first time on appeal is conclusory in nature. In fact, Tucker's entire preservation
analysis is set forth within a single paragraph. In this paragraph, Tucker mentions "the
first and second exceptions" to the general rule barring appellate courts from considering
arguments raised for the first time on appeal but fails to cite any law to support his
argument. Significantly, Tucker fails to explain why one of those exceptions applies
under the particular facts here.

When an appellant fails to adequately brief his or her argument, this court will
deem that argument waived or abandoned. State v. Salary, 309 Kan. 479, 481, 437 P.3d
953 (2019). Similarly, when an appellant raises an argument incidentally in his or her
brief without adequate analysis, this court will deem that argument waived or abandoned.
State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018). Also, this court will not
consider an argument not supported by pertinent authority. Salary, 309 Kan. at 481.

We find Tucker's preservation argument to be inadequately briefed, insufficiently
analyzed, unsupported by legal authority, and wholly conclusory. Under Supreme Court
Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34), Tucker had a duty to explain why he did not
raise his constitutional challenge below and why this court should consider his

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constitutional challenge for the first time on appeal. See State v. Godfrey, 301 Kan. 1041,
1044, 350 P.3d 1068 (2015) (appellant's violation of Rule 6.02 is akin to improperly
briefing argument). He failed to satisfy that duty. See State v. Johnson, No. 121,187,
2020 WL 5587083, at *5-6 (Kan. App. 2020) (unpublished opinion) (declining to review
unpreserved claim that criminal possession of firearm conviction is unconstitutional in
light of 2010 amendments to section 4 of the Kansas Constitution Bill of Rights based on
general rule that constitutional issues may not be raised for first time on appeal and
failure by appellant to show that exception to this rule justified review), petition for rev.
filed October 19, 2020. Because he failed to properly preserve his constitutional
argument, we decline to consider it on appeal.

Affirmed.

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