NOT DESIGNATED FOR PUBLICATION
No. 121,771
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DALE WAYNE BIRCH,
Appellant.
MEMORANDUM OPINION
Appeal from Atchison District Court; DAVID J. KING, judge. Opinion filed January 29, 2021.
Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Sherri L. Becker, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.
PER CURIAM: Dale Wayne Birch appeals from his convictions for interference
with law enforcement and battery of a law enforcement officer. He argues that the State
failed to prove the felony interference charge because the evidence showed he was only
fleeing from an arrest for a misdemeanor, and that the State failed to present sufficient
evidence to support the alternative means of reckless battery against a law enforcement
officer. After reviewing the record and the issues presented, we find no error and affirm
Birch's convictions.
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FACTUAL AND PROCEDURAL HISTORY
At around 7 a.m. on a winter morning, Katie Thomas called 911 to report that an
unknown person was knocking on the back door of her house and trying to enter through
the window. Officers from the Atchison Police Department responded to the call. As they
approached the residence, a man, later identified as Birch, who was standing outside ran
away. During the pursuit, Birch fell and one of the officers ordered him to stay on the
ground, but Birch kicked the officer in the leg and then punched him in the ribs and ran
away again. The officer caught up with Birch and deployed his taser, causing Birch to fall
to the ground again and roll. Birch then stood back up and ran another 5 to 7 yards before
falling into a muddy area. There, three officers were eventually able to physically restrain
Birch in handcuffs and place him under arrest. During a search incident to his arrest, the
officers discovered a blue pipe with marijuana residue inside.
Relevant to this appeal, the State originally charged Birch with three felonies: one
count of attempted aggravated burglary; one count of interference with law enforcement;
and one count of battery against a law enforcement officer. The complaint also charged
Birch with three misdemeanors: criminal damage to property; possession of marijuana;
and possession of drug paraphernalia.
The State later amended the complaint by dropping the attempted aggravated
burglary charge and adding another misdemeanor charge for attempted criminal trespass.
The State also amended the marijuana possession charge to possession of a controlled
substance, specifically tetrahydrocannabinol, or THC.
At his arraignment in March 2019, the trial court granted Birch's motion to dismiss
appointed counsel and allowed him to represent himself with the assistance of standby
counsel.
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The State's first witness at the two-day jury trial, Katie Thomas, testified that she
knew Birch for about four years, and he was a welcome guest in her home at the time of
the incident leading to his arrest. On the morning in question, Thomas said two female
friends and her kids were spending the night at her house. At around 5 a.m., her friends
texted her that somebody was knocking on the east door of the house, so she texted back
to tell them not to open the door because she did not know who it was. The person began
moving around the exterior of the house, knocking on the south door and the windows.
The friends also texted Thomas that they heard what sounded like glass breaking, so she
went to the kitchen to investigate. Thomas testified repeatedly that she did not know who
was outside her house or what they wanted, and it made her upset. She said that usually
when someone wants to come over, they will call or text her to make sure she was home.
Thomas eventually went back into her bedroom with her children and called 911 to report
the incident.
On the call, Thomas told the dispatcher that someone was knocking on her doors
and windows and that she did not know who it was. She also told the dispatcher that she
had locked the doors and windows, that she was inside her bedroom with her children,
and her friends were in another room. After law enforcement arrived, Corporal Joshua
Sinclair spoke with Thomas but did not tell her the identity of the suspect they had
apprehended. Thomas testified that if she had known Birch was the person knocking on
the doors and windows, she would have let him in because she and Birch were friends.
He had been staying with her on and off for about a year and a half.
Sinclair testified that he was one of the first officers to arrive on the scene to
handle a "prowler call." As he approached the house, he saw an unknown black male with
dark clothing standing on the porch, later identified as Birch. He told Birch, "[H]ey,
police officer, come here, talk to me, what's going on." Birch took a couple of steps
toward Sinclair and then took off running around the house without saying anything.
Sinclair radioed that the individual was running and gave a physical description. He
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started to follow but lost sight of Birch and eventually heard Sergeant Kurtis Page and
Birch yelling, so he cut through the houses to their location. Sinclair said Page was trying
to control Birch on the ground, but Birch was "actively resisting." Helped by a third
officer, they managed to place Birch in handcuffs. While checking Birch for injuries,
Birch spun away and began running again, but the officers caught up to him and
eventually placed him in a transport unit.
Sinclair also testified that Thomas told him she was awakened by someone
banging on the door. She was too scared to physically check to see who it was, so she
called 911, secured her kids, and waited for the officers to arrive. Thomas also told
Sinclair that a person named Maize had been staying with her for a couple of days, but
that around 1:30 a.m. the night before she had told him to find somewhere else to stay.
After Maize left, she double-bolt locked the doors and went to bed with her kids. She
later told Sinclair that the person she was referring to as Maize was the defendant, Dale
Birch. Sinclair also testified the officers did not know Birch had not gained entry to the
home until after speaking with Thomas.
Page testified that he responded to the 911 call as well, stating that he was
investigating "a felony aggravated burglary." When pressed on this point on cross-
examination, Page said his "thought process is, when someone is rattling the windows
and trying to get in through a window, they're merely not just walking around, they're
trying to get into the property." After parking in the alleyway and exiting his vehicle, he
could see and hear Sinclair speaking with Birch. He heard Sinclair say that Birch started
running, then saw Birch run into the alley. Page began chasing him while yelling "stop,
police" multiple times. At one point, Birch slipped and fell "hard," losing a backpack and
other things he was carrying in the process. The area where Birch fell was under
construction, so it contained loose gravel and wet mud. Page ordered him to stay on the
ground or he would Taser him, but Birch got back up and ran across the street. As he was
running, Birch began taking his pants off and tripped and fell to the ground again. Page
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finally caught up to Birch and ordered him to get on his belly. As Page was leaning in to
try to turn him over, Birch kicked him in the lower left leg, knocking him back and
causing an injury to Page. Birch started to get up again, but Page pushed him down and
tried to grab his left wrist. Birch then punched Page in the left side of the ribs, so Page let
go and backed off, allowing Birch to take off running again. At that point, Page deployed
his Taser, causing Birch to fall down and roll. Page said that when Birch rolled,
something either happened to the wires or one of the probes came unattached, so Birch
managed to get up and run again. Birch ran another 5 to 7 yards and then fell down in the
mud. Page got on Birch's back and held him down at that point, although he struggled to
continue to hold Birch down or get him in handcuffs. Once the other two officers arrived,
the three of them successfully placed Birch in handcuffs.
Officer Matthew Stout testified that he also responded to the 911 call. When he
arrived, he encountered a woman who told him where Birch and the other officers had
run. He parked in a driveway nearby and ran that direction, eventually finding Sinclair
and Page trying to handcuff Birch on the ground. They were telling him to stop resisting,
but Birch would not comply. Stout said he placed his handcuffs on Birch because Page's
handcuffs were "impacted with mud." Stout then went to retrieve his vehicle so that Birch
could be placed inside, and while doing so, Sinclair said over the radio that Birch had
taken off running again. Because Birch was still actively resisting arrest, they decided not
to put him Stout's patrol car and instead waited for a caged patrol vehicle.
During the jury instruction conference, Birch objected to "the limited amount of
information for the possession charge." The trial court explained, "[t]hat's the language
from the PIK Instruction," to which Birch responded, "Okay. That's fine." Birch also
asked why the court included "the last Instruction" about his defense—"In circumstances
where law enforcement officers use excessive force in making an arrest, the defendant is
entitled to exercise his right of self-defense." The court explained that it included the
instruction to honor his "absolute right to have the jury instructed on the basis of his
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defense." Birch ultimately said he had no other objections or requests for other
instructions.
After both parties rested, the trial court instructed the jury:
"To establish this charge, each of the following claims must be proved:
"1. Atchison Police Department Officers Kurtis Page and Joshua Sinclair were
discharging their official duties by attempting to arrest Dale W. Birch for commission of
a felony;
"2. The defendant, Dale W. Birch, knowingly obstructed, resisted, or opposed
Kurtis Page and Joshua Sinclair by fleeing to avoid apprehension;
"3. The act of the defendant substantially hindered or increased the burden of the
officers in the performance of the officers' official duty;
"4. At the time the defendant knew or should have known that Kurtis Page and
Joshua Sinclair were law enforcement officers; and
"5. This act occurred on or about January 8, 2019, in Atchison County, Kansas."
The court also instructed the jury on this charge:
"The offense of interference with law enforcement in the case of a felony with
which the defendant is charged includes the lesser offense of interference with law
enforcement in the case of a misdemeanor.
"You may find the defendant guilty of interference with law enforcement in the
case of a felony, interference with law enforcement in case of a misdemeanor, or not
guilty.
"When there is a reasonable doubt as to which of two offenses defendant is
guilty, he may be convicted of the lesser offense only, provided the lesser offense has
been proven beyond a reasonable doubt.
"The classification of the obstruction as a felony or misdemeanor depends upon
the knowledge and the intent of the officers as to whether a felony or a misdemeanor
arrest was being made.
"An arrest for attempted aggravated burglary is a felony arrest.
"An arrest for attempted criminal trespass is a misdemeanor arrest.
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"An arrest for battery against a law enforcement officer is a felony arrest."
In closing argument, the State argued in relation to the interference charge that the
officers were investigating an attempted aggravated burglary when Birch "knowingly
obstructed" the officers in performing that duty by running away. He continued to run
and actively resisted arrest, at one point kicking Page. As for the battery charge, the State
argued that Birch caused injuries to Page by fighting back when the officers tried to arrest
him.
During deliberations, the jury submitted a question to the trial court asking, "What
is the difference between burglery [sic] and aggravated burglery [sic], also differentially
from attempted breaking and entering, trying to get clarification on the last paragraph of
instruction no. 9." The State offered that the court could inform the jury that a burglary is
a felony but objected to providing "the elements of the particular offenses" because
"[o]bviously, it is based on the belief of the officer at the time that they are investigating."
Even though the State chose not to charge Birch with aggravated burglary, the officers
"subjective[ly]" believed they were "investigating an attempted aggravated burglary,
which is a felony."
Birch pointed out that Sinclair testified he was there investigating a "prowler," to
which the trial court responded "[b]ut prowling is not an offense." The court and the State
then agreed that "breaking and entering" is not a crime but would "most likely be
considered in common understanding as a burglary." The State confirmed that attempted
burglary, burglary, and aggravated burglary were all felonies. After a recess, the court
presented the parties with the following response:
"The jury is instructed that all of the crimes upon which a decision is to be made
on whether the Interference with Law Enforcement was in the case of a felony or a
misdemeanor are described in Instruction No. 9.
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"An Aggravated Burglary is a felony.
"A burglary is a felony.
"Kansas law does not have a crime defined as 'breaking and entering.'"
Birch at first objected, asking whether "there is an option for a misdemeanor in
this matter or only options for felonies in this matter?" The trial court responded:
"Well, the option would be that if they find that the interference was while the
officers were making an arrest on an aggravated burglary, it is a felony; if it is an
attempted criminal trespass, it is a misdemeanor; if it is battery against a law enforcement
officer, it is a felony; and if the State failed to prove that element, then they would have
to fall down and give the lesser included offense or not guilty."
Birch then agreed to the response as written, and the court submitted it to the jury.
The jury ultimately found Birch guilty of the charged crimes. Based on a criminal
history score of E, the trial court sentenced him to 27 months in prison with 12 months
postrelease supervision on the felony charges and a total of 6 months in the county jail on
the misdemeanor charges, to be served consecutively to the felony sentence.
Birch timely appealed.
ANALYSIS
The State presented sufficient evidence to prove felony interference with a law
enforcement officer.
Birch argues his conviction for felony interference with law enforcement must be
reversed because the State only presented evidence to show he fled from an arrest for
misdemeanor attempted trespass. He essentially frames his challenge as three questions:
8
(1) whether the State presented sufficient evidence to prove flight from an arrest for a
felony; (2) whether the trial court should have instructed on the elements of burglary; and
(3) whether the trial court responded appropriately to the jury's question during
deliberations?
In response, the State asserts that the officers were initially investigating an
attempted aggravated burglary based on the 911 call and then shifted to investigating a
felony battery against a law enforcement officer once Birch fled and resisted arrest. As
for the instruction error claim, the State argues that Birch failed to object to the
instructions below and invited any error by agreeing to the trial court's response to the
jury's question. In the alternative, the State contends the court responded accurately to the
jury's question about the classification of the offenses related to the interference charge.
Given the framing of Birch's arguments on this issue, there are several standards of
appellate review involved. For that reason, we will discuss the three separate claims
Birch is making, whether: (1) there is sufficient evidence to support a felony interference
conviction; (2) the trial court committed a jury instruction error by omitting an instruction
on the elements of attempted aggravated burglary; and (3) the trial court adequately
responded to the jury's mid-deliberation question.
There was sufficient evidence to support felony interference with law enforcement.
Birch first argues that there was insufficient evidence to support the felony
interference conviction, mainly because the evidence established only that he was fleeing
from apprehension for a misdemeanor attempted criminal trespass. Thus, he contends he
could be convicted only of a misdemeanor interference since there was no underlying
felony. In response, the State asserts that the underlying offense was the felony battery
against a law enforcement officer during Birch's attempt to escape, or that alternatively,
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there was sufficient evidence to believe Birch had committed an attempted aggravated
burglary.
"'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).
If resolving a sufficiency challenge involves interpretation of a statute, that presents a
question of law subject to unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432
P.3d 1015 (2019).
The State charged Birch with interference with law enforcement under K.S.A.
2018 Supp. 21-5904(a)(3), which defines the offense as "knowingly obstructing, resisting
or opposing any person authorized by law to serve process in the service or execution or
in the attempt to serve or execute any writ, warrant, process or order of a court, or in the
discharge of any official duty." More specifically, the complaint alleged Birch committed
the offense when he "ran from Sgt. Kurtis Page and Cpl. Joshua Sinclair of the Atchison
Police Department during an arrest on a felony."
The statute also provides that a conviction for interference with law enforcement is
a felony in the case of interference with a felony investigation or arrest, and a
misdemeanor in the case of a misdemeanor investigation or arrest. K.S.A. 2018 Supp. 21-
5904(b)(5). In State v. Hudson, 261 Kan. 535, 538, 931 P.2d 679 (1997), the Kansas
Supreme Court held under a previous version of the statute that "official duty" is defined
in terms of the arresting officer's subjective knowledge and intent upon first approaching
the defendant. In Hudson, the defendant ran a stop sign and fled from the police, but
unbeknownst to the officers at the time, the defendant had outstanding felony arrest
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warrants. The State later charged the defendant with felony obstruction based on the
warrants, which the trial court ultimately reduced to a misdemeanor charge. When the
State appealed, the Kansas Supreme Court relied on the officer's subjective intent as he
discharged his official duty—i.e., at the time of the traffic violation—in affirming the
trial court's ruling. 261 Kan. at 538-39.
Just two years later, the Kansas Supreme Court discussed the holding from
Hudson in State v. Seabury, 267 Kan. 431, 436-37, 985 P.2d 1162 (1999). In Seabury, the
defendant interfered with officers during the execution of a search warrant at his home
related to the defendant's son, who was the target of a felony drug trafficking
investigation. Although the officers discovered drug paraphernalia and a small amount of
marijuana (both misdemeanors), the State did not charge any felony associated with these
items. The State appealed from the trial court's reduction of the felony obstruction charge
to a misdemeanor, arguing that the statute did not require an underlying felony be
charged because the officers were investigating felony drug trafficking.
Our Supreme Court affirmed the trial court's ruling, determining that even though
the officers subjectively believed they were investigating a felony, reducing the
obstruction charge to a misdemeanor was proper because there was no underlying felony
committed or charged. 267 Kan. at 439. After reiterating the holding from Hudson that
the "[c]lassification of an obstruction charge . . . depends on the reason the officer
approached the defendant," the Seabury court held that "'in the case of a felony'" means
"an underlying felony is required (either felony charges have been filed or there has been
a felony committed)." 267 Kan. at 437.
Birch argues in his brief that this case is like Seabury because the officers did not
discover any evidence of a felony burglary nor did the State charge him with any type of
burglary offense. Similarly, he points out that he was charged with and convicted of
misdemeanor attempted criminal trespass. His argument is unpersuasive for two reasons.
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First, it bears mentioning that the State had in fact originally charged Birch with
attempted aggravated burglary but later replaced that charge in an amended complaint
with attempted criminal trespass. So Birch's assertion that the State did not charge him
with attempted aggravated burglary is not entirely accurate. But more importantly, his
reliance on the fact that the State charged him, and the jury ultimately convicted him of a
misdemeanor offense is misplaced. Simply put, both Hudson and Seabury direct that the
proper inquiry centers on the moment the officers first approached Birch and depends on
the information available to them at the time. In that way, the facts here are
distinguishable from Seabury because the officers were investigating what they believed
to be some form of burglary and then Birch fled the scene.
Although neither party cites it, this case is much like State v. Johnson, 40 Kan.
App. 2d 196, 190 P.3d 995 (2008). In that case, the officers testified they were
investigating a felony forgery charge based on information that the defendant had tried to
pass a bad check at a Home Depot. The defendant took off running when approached by
the officers in the parking lot. Although the State never charged the defendant with
forgery and the jury acquitted him of the only other possible underlying felony, the
district court ultimately denied a motion for acquittal of the felony obstruction charge
because a felony was still charged.
On appeal, the panel affirmed that ruling, finding that Seabury did not alter the
"broader holding" from Hudson that "the 'touchstone' for the classification of an
obstruction offense is the reason the officer approached the defendant, and not the status
of the defendant." (Emphasis added.) 40 Kan. App. 2d at 202-03. And because the
officers believed they were investigating a felony "based upon the information available
to them at the time," the panel concluded the trial court did not err in denying the motion
for acquittal. 40 Kan. App. 2d at 203. In other words, the lack of a conviction for an
underlying felony did not preclude a charge for felony obstruction based on an arrest and
subsequent charge for a felony.
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Here, the officers who responded to the 911 call testified similarly about the nature
of the initial investigation. Sinclair said, "[i]t was a prowler call," meaning that
"[s]omeone [was] attempting to get into a residence." Page summarized the call as "for
someone trying to get into the reporting party's house through a window," and
specifically said, "[a]t that point [he] would have been [investigating] a felony aggravated
burglary." Officer Stout testified that they "received a call for a subject attempting to
break into a house."
A reasonable person viewing this evidence favorably to the State could conclude
that the officers believed they were investigating some sort of burglary at the start of the
encounter. "Dictionary definitions are good sources for the 'ordinary, contemporary,
common' meanings of words." Midwest Crane & Rigging v. Kansas Corporation
Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017). The Merriam-Webster Dictionary
online defines "prowler" as "a person who moves through an area or place in a quiet and
stealthy way in order to commit a crime." https://www.merriam-webster.com/dictionary/
prowler (last visited January 12, 2021). The Oxford Dictionary online, United States
version, defines "prowler" as "[a] person who moves stealthily around or loiters near a
place with a view to committing a crime, especially burglary." https://www.lexico.com/
en/definition/prowler (last visited January 12, 2021). And Webster's New World College
Dictionary 1172 (5th ed. 2014) defines to prowl as "to roam about furtively, as in search
of prey or loot."
Further, "burglary" is generally defined as the "act of breaking into a building to
commit theft or some other crime." Webster's New World College Dictionary 199 (5th
ed. 2014). Burglary and attempted burglary—either simple or aggravated—are classified
as felony offenses. K.S.A. 2018 Supp. 21-5807(c) (classifying each of the various levels
of burglary as felonies). And since Birch never disputes that he fled immediately, a
reasonable person could find him guilty of "knowingly obstructing, resisting or opposing"
the officers from investigating further by trying to evade capture for a felony arrest for
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what the officers believed was some type of burglary. See K.S.A. 2018 Supp. 21-
5904(a)(3).
Second, even if the State could not sustain a conviction for felony interference
based on the original reason for the 911 call, that was not the only possible underlying
felony in this case. The officers also arrested Birch and the State then charged him for a
felony battery of a law enforcement officer, specifically based on Page's testimony that
Birch kicked him the first time Birch fell after he ran from the house. The trial court
instructed the jury that an arrest for either an attempted aggravated burglary or the battery
of a law enforcement official could supply the necessary element for a felony arrest.
On this point, Birch asserts that no evidence supported a conviction for
interference with law enforcement based on an arrest for battery of a law enforcement
officer because no officer testified that they were trying to arrest him for the battery. He
points out that Sinclair did not see him kick or punch Page, thus he "could not be trying
to arrest Mr. Birch for a battery that he was not aware of." He then asserts that "[t]he
flight from the house to the arrest was one continuous course of conduct that began
outside the house," and that he was fleeing to avoid apprehension only for the attempted
trespass.
It would strain credulity to accept Birch's view of the facts in this case. While it
may be true that Sinclair did not know about the battery, Page knew what had happened
and continued pursuing Birch until Page, Sinclair, and Stout were finally able to
apprehend and take Birch into custody. Page was the primary officer who eventually
apprehended Birch, since Page was holding him down when Sinclair caught up to them.
Even after placing Birch in handcuffs, he continued trying to run away. Based on these
facts, a reasonable person viewing the evidence in a light favorable to the State could also
conclude that Birch was guilty of felony interference by trying to evade capture for the
battery of Page.
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The court did not commit clear error by omitting an instruction for attempted
aggravated burglary.
Birch also argues briefly that the trial court erred by not instructing the jury on the
elements of burglary, and thus the jury was "left to rely on the officers' incorrect
testimony that a prowler trying to 'get into' a house was a felony or was aggravated
burglary." Yet the State points out, Birch's only objections at the instruction conference
were unrelated to the charge that is the subject of this appeal.
Kansas appellate courts analyze jury instruction issues using a three-step process.
First, this court must determine whether it "'can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal.'" State
v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018). Second, this court will consider the
merits of the claim "'to determine whether error occurred below.'" 307 Kan. at 317. Third,
this court will then assess "'whether the error requires reversal, i.e., whether the error can
be deemed harmless.'" 307 Kan. at 317.
At the second step, as Birch notes, this court assesses error by determining
whether the instruction was legally and factually appropriate. 307 Kan. at 318. Whether
an instruction was legally appropriate is a question of law subject to unlimited review.
State v. Johnson, 304 Kan. 924, 931, 376 P.3d 70 (2016). Whether an instruction was
factually appropriate is reviewed for sufficient evidence, by viewing the evidence in the
light most favorable to the requesting party to determine whether there was sufficient
evidence to support the instruction. State v. Williams, 303 Kan. 585, 598-99, 363 P.3d
1101 (2016).
This court's review at the third step depends on whether the requesting party
preserved the jury instruction challenge for appeal. McLinn, 307 Kan. at 317. Birch
concedes that he did not object below, so this court applies the clear error standard and
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will only reverse if an error occurred and the court is firmly convinced that the jury
would have reached a different verdict if the instruction error had not occurred. The party
claiming a clear error has the burden to show the necessary prejudice. 307 Kan. at 318.
Thus, Birch's failure to object below means that he must show the omitted
instruction led to an error—i.e., the omitted instruction was both legally and factually
appropriate—and convince this court that the jury would have returned a different
verdict. See McLinn, 307 Kan. at 318. We find that Birch cannot meet this burden.
First, an instruction on the elements of burglary would not have been factually
appropriate because there was not sufficient evidence presented at trial to support the
instruction. See Williams, 303 Kan. at 598-99. As mentioned, the State chose to replace
the attempted aggravated burglary charge with attempted criminal trespass before trial
and thus had no responsibility to present any evidence to establish Birch attempted to
commit burglary. In short, the evidence presented at trial showed only that the officers
believed they were investigating a burglary or attempted burglary. But after apprehending
Birch and speaking with Thomas, there was no evidence suggesting Birch had committed
a burglary or attempted burglary.
Second, an instruction on the elements of burglary would not have been legally
appropriate because the State did not need to prove he was guilty beyond a reasonable
doubt of some form of burglary to sustain a conviction for interference with law
enforcement. A legally appropriate jury instruction must "'fairly and accurately state the
applicable law.'" State v. Kleypas, 305 Kan. 224, 302, 382 P.3d 373 (2016).
Instruction No. 8 covered the interference charge and mirrored the current
recommended pattern instructions, providing that the State must prove that officers Page
and Sinclair "were discharging their official duties by attempting to arrest Dale W. Birch
for commission of a felony" and that Birch "knowingly obstructed, resisted or opposed
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[the officers] by fleeing to avoid apprehension." See PIK Crim. 4th 59.040 (2019 Supp.).
In State v. Scott, 28 Kan. App. 2d 418, Syl. ¶ 5, 17 P.3d 966 (2001), a panel of this court
approved an instruction patterned after what was then PIK Crim. 3d 60.09, despite the
absence of an instruction for the underlying felony:
"Use of PIK Crim. 3d 60.09 is favored when the State charges obstruction of an
officer in the discharge of his or her duty. An instruction on the elements of the
underlying felony is unwarranted when all of the instructions coupled with the evidence
at trial clearly specify the crime charged."
Likewise, PIK Crim. 4th 59.040 does not mention the elements of the underlying
felony as a necessary inclusion. In other words, the jury instructions given by the trial
court did not materially differ from the recommended PIK instructions. See State v.
Barber, 302 Kan. 367, 377-78, 353 P.3d 1108 (2015) (finding that the Kansas Supreme
Court "strongly recommend[s] the use of PIK instructions [for] accuracy, clarity, and
uniformity [of jury] instructions"). So Birch has not established the requested instruction
would have been legally appropriate.
Finally, even if an instruction on the elements of attempted aggravated burglary
was legally and factually appropriate to avoid jury confusion, Birch cannot show that the
result would have been any different. Birch was convicted of an underlying felony from
which the State argues he was fleeing. The definition of felony battery against a law
enforcement officer was provided to the jury, and Birch was convicted of that charge.
Moreover, Birch never argued that he did not flee from the house and again from Page
after allegedly kicking and wrestling with Page. His defense was that he was justified in
fleeing due to injuries inflicted upon him by police. He did not present any evidence to
support this theory at trial, except to show pictures of an ear injury that required 50
stitches, a CT scan that was normal, and Sinclair's testimony that he heard Birch "yelling
curse words, get the fuck off me, you're hurting me, you're killing me." The judge pointed
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out at the hearing on Birch's motion for a new trial that Birch could not be compelled to
testify in his own defense. But if he was asserting an affirmative defense that he was
justified in fleeing due to the use of excessive force by police, he must put on sufficient
evidence of that fact. He presented no such evidence at trial.
For these reasons, we find that Birch has failed to show that the trial court erred by
omitting any instruction on the elements of burglary.
The trial court responded appropriately to the mid-deliberation jury question.
Birch's claim that the trial court should have instructed the jury on the elements of
burglary is somewhat related to his challenge to the trial court's response to a question
about Instruction No. 9. In that instruction, the trial court explained that:
"The classification of the obstruction as a felony or misdemeanor depends upon
the knowledge and the intent of the officers as to whether a felony or a misdemeanor
arrest was being made.
"An arrest for attempted aggravated burglary is a felony arrest.
"An arrest for attempted criminal trespass is a misdemeanor arrest.
"An arrest for battery against a law enforcement officer is a felony arrest."
During deliberations, the jury sought clarification "on the last paragraph" of
Instruction No. 9, specifically asking, "What is the difference between burglery [sic] and
aggravated burglery [sic], also differentially from attempted breaking and entering[?]"
After consulting with the parties, the court drafted a response directing that "all of the
crimes upon which a decision is to be made on whether the Interference with Law
Enforcement was in the case of a felony or a misdemeanor are described in Instruction
No. 9," and clarifying that burglary and aggravated burglary were both felonies. At the
time, Birch briefly objected but ultimately agreed after the court explained that the jury
18
still had the option to find him guilty of misdemeanor interference or not guilty of any
interference.
Now on appeal, Birch argues that the trial court's response was inadequate and did
not go far enough to clarify the crime of burglary for the jury. He asserts that the jury was
left to rely on "legally inaccurate testimony from the officers that entry alone constituted
a burglary," thus denying him a fair trial. The State responds that Birch invited any error
by ultimately agreeing to the court's response. In the alternative, the State contends that
the court accurately advised the jury by explaining that burglary and aggravated burglary
were felony offenses and that there is no such crime titled "'breaking and entering'" in
Kansas. The State is correct on both points.
To start, whether the doctrine of invited error applies is a question of law subject
to unlimited review. State v. Parks, 308 Kan. 39, 42, 417 P.3d 1070 (2018). The Kansas
Supreme Court in State v. Bruce, 255 Kan. 388, 397-98, 874 P.2d 1165 (1994), applied
the invited error doctrine to a defendant's objection for the first time on appeal to the trial
court's response to a jury question. In Bruce, the jury had asked for written copies of the
court testimony, but defense counsel and the State agreed to the court's response that "'[i]t
is not possible to have written transcripts prepared for your review at this time. Please
rely on your collective memory.'" 255 Kan. at 396.
Similarly, Birch's only concern below was whether the response would still allow
the jury to find him guilty of misdemeanor interference. In other words, he never argued
below that the jury was confused about the elements of burglary, so we find he invited
any error by accepting the trial court's written response. But even after considering the
merits of Birch's argument, we find no error because the response accurately stated the
law in answering the jury's question.
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As Birch notes, this court reviews a trial court's response to a mid-deliberation jury
question for an abuse of discretion. State v. Gonzalez, 307 Kan. 575, 593, 412 P.3d 968
(2018) (quoting State v. Lewis, 299 Kan. 828, 856, 326 P.3d 387 [2014]). A judicial
action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2)
it is based on an error of law; or (3) it is based on an error of fact. State v. Ingham, 308
Kan. 1466, 1469, 430 P.3d 931 (2018).
Yet Birch omitted additional clarifications on this standard of review that seem
appropriate based on his challenge. When it becomes necessary for this court to
determine whether a trial court's response was a correct statement of law, that presents a
legal question subject to unlimited review. Lewis, 299 Kan. at 856. In contrast, when
considering whether the trial court erred giving one of multiple legally appropriate
responses, the appellate court gives the district court deference and determines only
whether no reasonable person would have given the response adopted by the district
court. 299 Kan. at 856.
Relying on State v. Stieben, 292 Kan. 533, 536, 256 P.2d 796 (2011), Birch asserts
that the jury was confused about the elements of burglary. In that case, the Kansas
Supreme Court said that:
"Where the jury is 'obviously confused' on a point of law, the court has an
obligation to provide further instruction, even if the original jury instruction would
normally have been sufficient. The failure of the trial court to give the jury additional
information was clearly prejudicial and denied the defendant a fair trial."
But given the jury's question, a reasonable person could find that the jury simply
wanted to know the classification of certain crimes falling between attempted aggravated
burglary and attempted criminal trespass. Presumably, the jury was unsure whether they
could convict Birch of a felony interference if they believed the officers' testimony only
20
showed they were investigating some other form of burglary. The trial court's response
then directed the jury's attention back to the offenses described in Instruction No. 9,
before informing them that aggravated burglary and burglary are both felonies and that
"'breaking and entering'" is not a statutorily defined crime. This was a reasonable and
accurate statement of law because it informed the jury that a felony interference
conviction would still be the proper verdict even if the officers' testimony only showed
they were investigating an attempted burglary.
Moreover, nothing about the jury's question suggested confusion about what the
State needed to prove for the interference charge, which according to Hudson and
Seabury was that the officers subjectively believed they were investigating a felony when
Birch fled from apprehension. Responding to the jury's question with the recommended
PIK instructions for burglary, aggravated burglary, and the attempt version of both
offenses would have unnecessarily complicated the answer to the question posed by the
jury because the State did not need to prove those offenses occurred beyond a reasonable
doubt to secure a conviction for interference. See Johnson, 40 Kan. App. 2d at 202-03.
And as discussed, even if the jury believed Birch had not committed any type of burglary
or attempt, there was still sufficient evidence supporting an interference conviction based
on Birch's extended flight from arrest for battery of a law enforcement officer.
In sum, Birch has failed to establish he is entitled to have his felony interference
with law enforcement conviction overturned.
The State presented sufficient evidence for a jury to find that Birch committed the crime
of battery against a law enforcement officer.
Birch also argues his battery against a law enforcement officer conviction—for
knowingly or recklessly causing bodily harm to Page—must be reversed because the
evidence could not support a finding of guilt on the alternative means of committing the
21
offense. He concedes the evidence supported a knowing battery against a law
enforcement officer but not a reckless battery against a law enforcement officer.
The State asserts that proving Birch committed the offense "knowingly,"
necessarily established "reckless" conduct because knowingly is a higher culpable mental
state. In the alternative, the State argues that there was sufficient evidence presented to
find Birch guilty of a reckless battery because the officers' testimony established that
Birch fought and struggled to get away from them, thus making enough contact to
establish the offense.
Birch correctly notes that the Kansas Supreme Court has addressed the merits of
an alternative means issue even though it was being raised for the first time on appeal
"because it implicates sufficiency of the evidence." State v. Wells, 297 Kan. 741, 756-57,
305 P.3d 568 (2013) (citing State v. Cheffen, 297 Kan. 689, 699, 303 P.3d 1261 [2013]),
superseded on other grounds by statute as stated in State v. De La Torre, 300 Kan. 591,
601-02, 331 P.3d 815 (2014). But the threshold question for this court is whether the
relevant statute presents alternative means of committing battery against a law
enforcement officer. See State v. Butler, 307 Kan. 831, 841, 416 P.3d 116 (2018) ("[W]e
must initially consider whether the jury was ever presented with an alternative means
case."); see also State v. Hankins, 304 Kan. 226, 232, 372 P.3d 1124 (2016) (parties not
allowed to stipulate to legal conclusions from admitted facts). The distinction matters
because if a crime presents alternative means, "'[u]nanimity is not required . . . as to the
means by which the crime was committed so long as substantial evidence supports each
alternative means.'" State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012). Whether a
crime presents alternative means involves statutory interpretation, which presents a
question of law subject to unlimited review. Butler, 307 Kan. at 841.
22
Battery against a law enforcement officer creates two alternative means because
the crime can be committed either knowingly or recklessly.
"A statute states alternative means of committing a crime when it lists 'distinct
alternatives for a material element of the crime,' but not when it 'merely describe[s] a
material element or a factual circumstance that would prove the crime.'" State v. Davis,
312 Kan. 259, 264, 474 P.3d 722 (2020) (quoting Brown, 295 Kan. at 184). The Kansas
Supreme Court has said the "touchstone" of determining whether a statute creates
alternative means of committing an offense is the Legislature's intent. Brown, 295 Kan. at
193. "Alternative means are legislatively determined, distinct, material elements of a
crime, as opposed to legislative descriptions of the material elements or of the factual
circumstances that would prove the crime." State v. Foster, 298 Kan. 348, Syl. ¶ 4, 312
P.3d 364 (2013).
As Birch notes, the Kansas Supreme Court has held that the definition of a crime
with two distinct mental states presents an alternative means issue. State v. Ultreras, 296
Kan. 828, 849-50, 295 P.3d 1020 (2013) (determining that previous version of aggravated
battery statute had "at least" five alternative means based partially on different mental
states) (citing State v. O'Rear, 293 Kan. 892, 896, 270 P.3d 1127 [2012]); see also State
v. Williams, 303 Kan. 750, 761, 368 P.3d 1065 (2016) (criminal threat statute creates
alternative means by using different mental state requirements across subsections).
Likewise, the structure of K.S.A. 2018 Supp. 21-5413 suggests battery against a law
enforcement officer also presents an alternative means crime.
The State charged Birch under K.S.A. 2018 Supp. 21-5413(c)(2)(B), which
provides that "[b]attery against a law enforcement officer is . . . battery, as defined in
subsection (a)(1), committed against a: . . . uniformed or properly identified state, county
or city law enforcement officer . . . while such officer is engaged in the performance of
such officer's duty." Battery is defined as "[k]nowingly or recklessly causing bodily harm
23
to another person." (Emphasis added.) K.S.A. 2018 Supp. 21-5413(a)(1). This language
plainly presents two distinct culpable mental states by which a battery can be committed
and does not merely "describe" a material element. As a result, to be entitled to relief,
Birch must show that one or both alternative means was not supported by sufficient
evidence.
Birch concedes that there was sufficient evidence supporting a knowing battery,
which is a higher culpable mental state than reckless battery.
Culpable mental states in Kansas "are classified according to relative degrees,
from highest to lowest, as follows: (1) Intentionally; (2) knowingly; (3) recklessly."
K.S.A. 2018 Supp. 21-5202(b). As the State notes, Kansas law also provides that
"knowingly" is a higher culpable mental state than "recklessly." K.S.A. 2018 Supp. 21-
5202(c) ("If recklessness suffices to establish an element, that element also is established
if a person acts knowingly or intentionally."). Because Birch does not dispute that the
State presented sufficient evidence to support a knowing battery, we will move on to
whether it also presented sufficient evidence of reckless conduct.
There was sufficient evidence to support a finding of reckless battery.
Kansas law provides that "[a] person acts 'recklessly' or is 'reckless,' when such
person consciously disregards a substantial and unjustifiable risk that circumstances exist
or that a result will follow, and such disregard constitutes a gross deviation from the
standard of care which a reasonable person would exercise in the situation." K.S.A. 2018
Supp. 21-5202(j). We find that Birch has failed to establish that the evidence is lacking in
support of a reckless battery in this case.
Birch notes that Page's testimony shows Birch punched and kicked him
deliberately in resistance of Page's efforts to apprehend him. But even if Birch's actions
24
were deliberate, this testimony also shows that his primary goal was to evade capture. A
rational person could conclude based on this evidence that kicking and punching an
officer while trying to escape an arrest constitutes a conscious disregard that doing so
would cause bodily harm to the officer and amount to a gross deviation from the standard
of care a reasonable person would exercise in the situation. As a result, we find that there
was sufficient evidence to support the alternative means of reckless battery against a law
enforcement officer.
Affirmed.
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