State v. Sieg

S
                           NOT DESIGNATED FOR PUBLICATION

                                            No. 121,864

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                     ORVILLE WILLIAM SIEG,
                                           Appellant.


                                  MEMORANDUM OPINION

        Appeal from Leavenworth District Court; MICHAEL D. GIBBENS, judge. Opinion filed April 2,
2021. Reversed and remanded with directions.


        Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.


        Shawn M. Boyd, assistant county attorney, Todd Thompson, county attorney, and Derek Schmidt,
attorney general, for appellee.


Before GREEN, P.J., MALONE and WARNER, JJ.


        PER CURIAM: Orville William Sieg appeals his conviction for aggravated assault.
He argues that the trial court made two jury instruction errors. First, he contends that the
trial court erred by not including an instruction for the lesser included offense of assault.
We disagree and affirm. Second, Sieg asserts that the trial court erred by not giving the
jury a limiting instruction on prior crime evidence. Because the trial court did not limit
the jury's consideration and use of prior crimes, we reverse and remand for a new trial.


        In April 2017, a bounty hunter named Marlin Smith was driving around the city of
Leavenworth looking for Sieg. Smith saw a white Chevy Impala which Smith knew was

                                                  1
related to Sieg in some way. A woman, later identified as Jennifer Moore, was driving.
Smith could see Sieg lying in the back seat of the car. Smith followed the car until it
parked. Smith parked behind it, blocking it in. Smith saw Moore walking away from the
car.
          Sieg testified that he was in the back of the car, trying to conceal himself, when he
heard Smith say, "Get out of the car." Sieg testified that he saw Smith pointing a gun at
him. Sieg said that he did not see Smith's badge or other indication that Smith worked for
a bonding company. Sieg was not aware that he had missed a court date and did not know
the details of his bail bond because his deceased wife had arranged the bail bond. Sieg
testified that Smith called him by name. Sieg lied and said, "My name's not Orville; that's
my brother." Sieg immediately jumped into the front seat of the car and drove off. Sieg
testified that Smith came up and struck the car window. As Sieg was driving away, Smith
shot at the car. A bullet fragment lodged into Sieg's left hip. Sieg testified that he went to
a friend's house and passed out. When Sieg woke up, he was at the house of a medical
doctor, who then treated Sieg's bullet wound. Sieg did not go to a hospital or call the
police.


          Smith testified that he was wearing street clothes when he walked up to the car
and showed Sieg his badge. Smith asked Sieg if his name was Orville, and Sieg said no.
Smith testified that he could see Sieg from the chest up and saw that Sieg pulled out a
gun. When Smith saw the gun, he took a step back and drew his own gun, holding it to
his side. Smith asked Sieg to get out of the car, but Sieg moved to the driver's seat
instead. Smith went to the driver's door, tried to open it, then hit the window with his
hand. Smith testified that Sieg started the car and then displayed a gun. When Smith saw
the gun, he stepped back. The car started to pull away and Smith heard a gunshot. Smith
fired three rounds at the car, aiming at the tires.


          Smith returned to his truck, calling 911 as he went. When police arrived, Smith
gave them permission to search his truck and take his gun. Police found one shell casing
that matched Smith's gun, but no other shell casings.
                                                2
       Another officer found the Chevy Impala two days after the shooting. The officer,
with the car owner's permission, photographed two bullet holes in the passenger side
doors. Although the officer obtained consent to take photographs of the car, he never
asked to search the interior of the car and thus, no weapon was recovered from the car
and the State did not introduce any other forensic evidence of a gun being fired from
within the car.


       The driver and owner of the car, Jennifer Moore, testified that she saw Smith's
truck when she walked away from the car. Moore has known Sieg since she was 17. She
loves Sieg and was pregnant with his child when the shooting occurred. She said that
Sieg did not have a gun and that there was no gun in her car. Sieg also testified that he
did not have a gun because he had a felony record.


       The State charged Sieg with aggravated assault, in violation of K.S.A. 2016 Supp.
21-5412(b)(1) (assault with a deadly weapon). The jury convicted Sieg as charged. The
trial court sentenced Sieg to 32 months in prison, followed by 12 months of postrelease
supervision.


       Sieg timely appeals.


Did the Trial Court Err by Refusing Sieg's Request for an Instruction on Assault?


       Sieg argues that the trial court committed reversible error by failing to give an
instruction on the lesser included offense of assault. The State responds that an
instruction on assault would have been legally appropriate, but not factually appropriate.


       When the giving of or failure to give a lesser included offense instruction is
challenged on appeal, appellate courts apply the analytical framework for jury instruction
issues. The first step is determining whether the party preserved the issue. The second
                                             3
step is determining the merits of whether an error occurred during the trial, and at this
step, the appellate court exercises unlimited review to determine whether the instruction
is legally and factually appropriate. The third step is whether the error—if there is one—
requires reversal. The standard at this step depends on whether the instruction was
requested in the trial court. If the defendant requested the instruction, the trial court's
failure to give it is grounds for reversal unless the State shows that there is no reasonable
probability the absence of error would have changed the jury's verdict. If the defendant
did not request the instruction, the appellate court applies a clear error standard to assess
whether it is firmly convinced that the jury would have reached a different verdict if the
instruction error did not occur. The defendant has the burden to establish clear error, and
appellate courts consider the entire record de novo to determine whether the defendant
met this burden. See State v. Gentry, 

310 Kan. 715

, 720-21, 

449 P.3d 429

(2019).


       When evaluating whether a lesser included instruction is factually appropriate in
an individual case, courts use the following test: "Is there some evidence when viewed in
the light most favorable to the defendant that would allow a rational factfinder to find the
defendant guilty of the lesser included offense?" State v. McLinn, 

307 Kan. 307

, 324-25,

409 P.3d 1

(2018); see K.S.A. 2020 Supp. 22-3414(3). See also State v. Randle, 

311 Kan.
468

, 472, 

462 P.3d 624

(2020) (expressly disapproving of often-used statement from
State v. Fisher, 

304 Kan. 242

, 258, 

373 P.3d 781

[2016], that "'[i]f, after a review of all
the evidence viewed in the light most favorable to the prosecution, we are convinced that
a rational factfinder could have found the defendant guilty of the lesser crime, failure to
give the instruction is error,'" as unsupported by caselaw).


       At the close of evidence, Sieg requested a lesser included instruction for assault.
On appeal, Sieg argues that the trial court erred in denying this request because
aggravated assault includes all the elements of assault. Thus, by Sieg's reasoning, if the
State presented sufficient evidence to show aggravated assault, then the facts also
establish assault.


                                               4
       To show that the trial court erred in omitting the lesser included offense
instruction, Sieg must show that the instruction was legally and factually appropriate. A
lesser included offense must be a lesser degree of the same crime or a crime where all the
elements of the lesser crime are identical to some of the elements of the crime charged.
K.S.A. 2016 Supp. 21-5109(b). Assault is a lesser degree of aggravated assault and also
all of the elements of assault are identical to some of the elements of aggravated assault.
See K.S.A. 2016 Supp. 21-5412(a)-(b); State v. Williams, 

220 Kan. 610

, 611, 

556 P.2d
184

(1976). An instruction for assault was legally appropriate.


       But the trial court correctly determined that an instruction for assault was not
factually appropriate. The instruction would only have been factually appropriate if there
was some evidence which would reasonably justify a conviction of the lesser included
crime. 

McLinn, 307 Kan. at 324-25

. The trial court considered this point thoroughly at the
jury instruction conference, stating the following,


       "I'm looking for any evidence of an assault, a simple assault. Do you know of any that
       I—I thought about it overnight, and I just don't know of any. Looks to me like it was
       either done with a firearm or it wasn't done at all, under the evidence I've heard."


       Sieg offered the idea that Smith might have had a reasonable apprehension of
bodily harm when Sieg started driving the car. Sieg suggested that Smith was close
enough to the car that he may have thought the car would hit him. The trial court
correctly decided that the evidence did not support Sieg's theory. Smith had testified that
he only believed that Sieg would harm him when Sieg pointed the gun. The evidence
showed that the car only moved away from Smith, not toward him. Thus, the evidence
only supported a charge of aggravated assault for Sieg pointing a gun at Smith. Because
an instruction on assault was not factually appropriate, Sieg’s argument fails.




                                                     5
Did the Trial Court Err by Failing to Give a Limiting Instruction on Prior Crime
Evidence?


       Sieg argues that the trial court committed reversible error by failing to give a
limiting instruction regarding prior crime evidence. The State argues that the instruction
was not legally or factually appropriate or, alternatively, that omitting the instruction was
harmless error. Because the trial court failed to mitigate the prejudicial effects of prior
crime evidence, this court should reverse and remand.


       A defendant can challenge the lack of a K.S.A. 2016 Supp. 60-455(b) limiting
instruction as clearly erroneous even if the defendant did not object to the admission of
the other crimes evidence at trial. See State v. Breeden, 

297 Kan. 567

, 579-80, 

304 P.3d
660

(2013). In evaluating whether an instruction rises to the level of clear error, the issue
of "[r]eversibility is subject to unlimited review and is based on the entire record. It is the
defendant's burden to establish clear error under K.S.A. 22-3414(3) [Citation omitted.]"
State v. Betancourt, 

299 Kan. 131

, 135, 

322 P.3d 353

(2014).


       To establish clear error, "'the defendant must firmly convince the appellate court
that the giving of the instruction would have made a difference in the verdict.' [Citation
omitted.]" State v. Cooper, 

303 Kan. 764

, 771, 

366 P.3d 232

(2016). The clear error
determination must review the impact of the erroneous instruction in light of the entire
record including the other instructions, counsel's arguments, and whether the evidence is
overwhelming. In re Care & Treatment of Thomas, 

301 Kan. 841

, 849, 

348 P.3d 576

(2015).


       Sieg did not request a limiting instruction on prior crime evidence or object to its
omission. Thus, this court reviews the jury instructions for clear error. Under K.S.A.
2016 Supp. 60-455(a), evidence that a person committed a crime on some other occasion
is inadmissible to prove that the person has a criminal disposition and has committed this
crime. If evidence of a prior crime is admitted for a different purpose, the trial court must
                                               6
give a limiting instruction informing the jury of the specific reason that evidence was
admitted. State v. Gunby, 

282 Kan. 39

, 48, 

144 P.3d 647

(2006).


       Sieg contends that the jury heard two instances of prior crimes which together
were prejudicial enough to affect the jury's verdict. First, the State presented information
that Sieg had failed to appear in court as required under the terms of his bail bond.
Second, Sieg testified that he did not have a gun when he met Smith. And to bolster the
credibility of his previous statement, Sieg stated: Because he was a convicted felon, he
was legally precluded from possessing a firearm. Thus, he did not want to risk being
convicted as a felon in possession of a firearm and being sentenced to prison. Sieg
correctly argues that the introduction of these two facts into evidence obligated the trial
court to give a limiting instruction. See 

Breeden, 297 Kan. at 581

.


       The State notes that Sieg himself brought up his felony record, with no further
information about any convictions. The State argues that, therefore, a limiting instruction
would not have been factually appropriate on this prior crime evidence. But the need for a
limiting instruction on prior crime evidence does not depend on which party introduces
the evidence. State v. Molina, 

299 Kan. 651

, 660, 

325 P.3d 1142

(2014). Our Supreme
Court's statement in Breeden instructs trial courts without caveats: "[A] trial court judge
who admits K.S.A. 2012 Supp. 60-455(b) evidence must give a limiting instruction
informing the jury of the specific purpose for admission of the evidence to avoid 

error.”
297 Kan. at 579

. Thus, the obligation of the trial court does not change based on which
party introduces the evidence. 

Molina, 299 Kan. at 660

.


       Sieg has the burden of showing that the error of omitting the limiting instruction is
reversible error. Other Kansas appellate decisions suggest that a defendant will not meet
this burden when the evidence against the defendant is overwhelming. See 

Gunby, 282
Kan. at 59

; 

Molina, 299 Kan. at 659

; State v. Enriquez, 

46 Kan. App. 2d 765

, 770-71, 

266
P.3d 579

(2011). For example, in Enriquez, Rodolfo Enriquez was convicted of
conspiracy to commit first-degree murder and possession of cocaine. The police found
                                              7
Enriquez and cocaine in the same motel room, and they found bullets in the pockets of
his coat. On top of the physical evidence, Enriquez' three coconspirators testified that
Enriquez asked them to help kill the intended victim. This court ruled that the evidence
against Enriquez was so overwhelming that it was not likely that the verdict would have
been different if the court had given a limiting instruction. In Enriquez, the presence of
physical evidence and the corroborating testimony of multiple witnesses made the error
harmless.


       But this case is unlike Enriquez because Sieg contends that he did not have a gun,
and police never found a gun or any shell casings other than Smith's. The only evidence
that Sieg had a gun was the testimony of Smith, making this case much more like State v.
Berney, 

51 Kan. App. 2d 719

, 725-26, 

353 P.3d 1165

(2015). In Berney, a jury convicted
Jeramie Berney of theft. The theft charge stemmed from allegations that Berney took a
tip jar from a bar where Jo Ann Standifer worked as a bartender. Berney testified that he
took the tip jar with Standifer's permission. Standifer, however, testified that she did not
give Berney permission to take the tip jar. Surveillance video showed that Berney took
the tip jar, but not why. A detective testified that he had found Berney's photo by looking
for mugshots in the "mug system," suggesting to jurors that Berney had previous arrests
or convictions. This court ruled that the trial was a credibility contest and the surveillance
video did nothing to disprove Berney's defense. Based on those facts, this court was
firmly convinced that the jury would have reached a different verdict had it been given
the limiting instruction that the trial court was required to 

give. 51 Kan. App. 2d at 726

.


       Just as in Berney, this case is also a credibility contest. The prior crime evidence
here was slightly stronger and, thus, more prejudicial than in Berney. In Berney, the jury
knew only that Berney's mugshot was available to police, with some testimony that
mugshots coincide with arrests. The jury was not told what Berney was arrested for or
charged with. Here, the jury knew that Sieg was on bail, meaning he had been arrested,
charged with a crime, and released for appearance in court on another day. The jury was
not told what Sieg was arrested for or charged with.
                                              8
       In explaining why Sieg would not carry a gun, both Sieg and Moore testified that
Sieg was a convicted felon. No one provided the jury with any further details about Sieg's
prior felony conviction or convictions. The only evidence that Sieg had a gun was Smith's
testimony that he saw a gun. Smith testified that Sieg fired a shot, but the only shell
casing found by police was from Smith's own gun. No physical evidence showed that
Sieg even had a gun, let alone displayed or fired it.


       The jury here did not hear or see any independent corroborating evidence to
suggest that Sieg had produced a gun and pointed it or fired it at Smith. The evidence at
trial amounted to a "credibility contest" between Smith's testimony that there was a gun
and Sieg and Moore's testimonies that there was no gun. Without other strong evidence of
Sieg's guilt, the evidence of Sieg's prior crimes looms large. The full trial record
convincingly shows that the jury would have reached a different verdict had the jury been
given the limiting instruction that the trial court was required to give.


       The trial court had a duty to give an instruction limiting the jury's consideration of
prior bad act evidence. In this case, the trial court's failure to give the instruction was not
harmless.


       For the preceding reasons, we reverse and remand for a new trial.


       Reversed and remanded with directions.




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