State v. Young

S
                           NOT DESIGNATED FOR PUBLICATION

                                              No. 122,569

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                           TERRY RAY YOUNG,
                                               Appellant.


                                    MEMORANDUM OPINION


        Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed April 23, 2021.
Affirmed.


        Rick Kittel, of Kansas Appellate Defender Office, for appellant.


        Andrew R. Davidson, assistant district attorney, Thomas R. Stanton, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., POWELL and CLINE, JJ.


        PER CURIAM: Terry Ray Young was convicted by a jury of his peers of stalking
and violating a protection from stalking order. On appeal, he argues there was insufficient
evidence for the jury to convict him of these crimes. After reviewing the record, we find
no merit to Young's arguments and affirm.




                                                    1
                       FACTUAL AND PROCEDURAL BACKGROUND


       On January 29, 2019, Hutchinson police officers were dispatched to Laurie and
Daniel Berner's home to investigate a report of trouble with a subject. At around 6:40
a.m., Laurie arrived home after working a night shift and noticed her neighbor, Young,
approaching her vehicle. Laurie called her husband and then began recording Young's
behavior as he was yelling outside the driver's side window of her car. Laurie was fearful
of Young because she was alone, it was dark outside, and Young was preventing her
from exiting her vehicle.


       About a month prior to this incident, Laurie had requested a protection from
stalking order against Young after family friends spotted Young on the Berners' property.
Young was standing in the Berners' yard allegedly checking on their 11-year-old
daughter who Young thought was home alone. The Berners installed video surveillance
around their home after this incident. The district court issued a temporary protection
order, and Young was served with both the stalking petition and the temporary order on
January 4, 2019. A hearing on the protective order was scheduled for January 29, 2019.


       After arriving at the scene on the morning of January 29, 2019, Officer Robert
Winslow located Young in front of his residence, and Officer John Mies placed Young
under arrest for violating Laurie's protection from stalking order.


       The State charged Young with stalking, in violation of K.S.A. 2018 Supp. 21-
5427(a)(3), a severity level 9 person felony under K.S.A. 2018 Supp. 21-5427(b)(3)(A);
violation of a protection from stalking order, in violation of K.S.A. 2018 Supp. 21-
5924(a)(6), a class A person misdemeanor under K.S.A. 2018 Supp. 21-5924(b)(1); and
disorderly conduct, in violation of K.S.A. 2018 Supp. 21-6203(a)(3), a class C nonperson
misdemeanor. The State subsequently dismissed the disorderly conduct charge.



                                             2
Laurie Berner's Testimony


       At trial, Laurie testified she had lived on North Park Drive for 14 or 15 years with
her husband and 11-year-old daughter. The Berner family had lived next door to Young
since 2008. Laurie explained she applied for a protection from stalking order against
Young after an incident in December 2018.


       On January 29, 2019, Laurie worked a night shift and headed home around 6:40
a.m., about 20 minutes earlier than usual. She pulled up to the curb at her residence in a
vehicle she had owned for about four years. Young was standing on the edge of his
property when Laurie arrived home and started walking to the driver's side of Laurie's
car. Laurie testified Young scared her and she did not know what to do, so she called her
husband who was inside their home at the time. Laurie stated Young was very close to
her window, yelling and talking about root canals. She began recording the event on her
cell phone for about two and half minutes and waited in her car until her husband came
out of the house.


       A court date was scheduled that afternoon on the petition for a protection from
stalking order Laurie had filed against Young. Laurie testified she applied for the
protective order because Young had been on her property a month before. The Berners
installed a home security system because of Young's activities and behavior around their
residence. The Berners' surveillance video showed Young walking near the property line
until Laurie arrived home from work that morning.


Daniel Berner's Testimony


       Laurie's husband, Daniel, corroborated Laurie's testimony and explained he
received a phone call from his wife stating Young would not let her out of her car. When
Daniel got outside, Young was about 100 feet away and walking toward his own


                                             3
property. Daniel called the police, who arrived 15-20 minutes after the incident. Daniel
testified he was concerned for his wife and daughter's safety.


Law Enforcement Testimony


       Deputy David Post, a patrol sergeant in the civil process unit of the Reno County
Sheriff's Department, testified he served Young with the temporary protection order at
the beginning of January 2019 and made sure Young understood he was not to have
contact with the person on the order, Laurie Berner.


       Winslow testified he was dispatched to Park Street for a "PFA violation." After
arriving at the scene, Winslow went to Young's residence and found Young standing in
his front yard. Winslow asked Young whether he had been over by the Berners' property.
In response, Young pointed toward the Berners' property and stated he went over there
but did not go on their property. Young also told Winslow he was going for a walk that
morning and Laurie was in her car at the time.


       Mies testified he was dispatched to North Park Street for "trouble with [a]
subject." Upon arrival, the Berners informed Mies of the protection order against Young,
and Mies placed Young under arrest. Young told Mies he never stepped onto the Berners'
property.


Terry Young's Testimony


       Young chose to testify in his defense, and it conflicted with the other witnesses'
statements. He explained he woke up early on the date of the incident to go for a walk
and was walking in the street because there are no sidewalks. He stopped at the edge of
his property line when he saw an unfamiliar vehicle approaching. Young claimed to be
concerned because his house had recently been robbed. He approached the vehicle to


                                             4
determine whether the driver was lost or needed help, but the driver never opened the
door or rolled down the window. Young saw a light come on inside the vehicle, but he
could not see inside.


       Young claimed he did not recall telling Winslow he approached Laurie and further
claimed he did not know her name until the State charged him. On cross-examination,
however, Young admitted receiving the paperwork at the beginning of January ordering
him to stay away from the Berners and their residence.


       The jury found Young guilty of stalking and violating a protection from stalking
order. The district court sentenced him to 15 months in prison for stalking and 12 months
in the county jail for violating the protective order, with the sentences to run consecutive
to each other.


       Young timely appeals.


        DID THE STATE PRESENT SUFFICIENT EVIDENCE TO PROVE STALKING AND
                 VIOLATION OF A PROTECTION FROM STALKING ORDER?

       Young argues his convictions for stalking and violation of a protection from
stalking order must be reversed because the State failed to present sufficient evidence to
prove his convictions beyond a reasonable doubt.


       In considering whether sufficient evidence supports a defendant's conviction, we
review "'the evidence in a light most favorable to the State to determine whether a
rational factfinder could have found the defendant guilty beyond a reasonable doubt.'"
State v. Rosa, 

304 Kan. 429

, 432-33, 

371 P.3d 915

(2016). In our evaluation, we do not
"reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations." State v. Kettler, 

299 Kan. 448

, 472, 

325 P.3d 1075

(2014).


                                              5
A.     Stalking Conviction


       Young argues the State failed to prove beyond a reasonable doubt (1) he recklessly
approached the victim and (2) his actions would cause fear in a reasonable person to
sustain his conviction for stalking.


       The State charged Young with stalking under K.S.A. 2018 Supp. 21-5427(a)(3),
which defines stalking as:


       "after being served with, or otherwise provided notice of, any protective order . . . that
       prohibits contact with a targeted person, recklessly engaging in at least one act listed in
       subsection (f)(1) that violates the provisions of the order and would cause a reasonable
       person to fear for such person's safety, or the safety of a member of such person's
       immediate family and the targeted person is actually placed in such fear."


       Subsection (f)(1) contains a nonexclusive list of stalking actions, including
following, approaching, or confronting the targeted person or a member of such person's
immediate family; appearing in close proximity to the targeted person's residence; or
trying to communicate with the targeted person in any way. K.S.A. 2018 Supp. 21-
5427(f)(1)(B), (C), and (G).


       Young contends the State failed to prove he committed the offense "recklessly"
and simply argues he did not recklessly approach or confront Laurie because he did not
know with whom he was speaking in the car. A person acts "'recklessly'" when such
person consciously disregards a substantial and unjustifiable risk that a result will follow
from the person's acts. K.S.A. 2020 Supp. 21-5202(j).


       Laurie arrived home from work within 20 minutes of her normal arrival time in a
vehicle she had owned for about 4 years. Laurie parked in front of her house, though it
was near the property line. Young approached the driver's side of her vehicle and was

                                                     6
yelling and talking about root canals. Young's testimony was inconsistent as he claimed
he was asking the driver of an unfamiliar vehicle if he or she was lost or needed help. But
Winslow testified Young stated shortly after the incident he was going for a walk and
tried talking to Laurie. Surveillance video shows Young standing around his property
which also contradicts his testimony that he was out for an early walk.


       It was the jury's job to evaluate the credibility of the evidence presented to it.
Viewing this evidence in the light most favorable to the State, a rational juror could have
found Young waited for Laurie to come home, recognized her vehicle pull up to the curb,
and recklessly approached and confronted her, thus violating the protection order.


       Young also argues the State failed to prove beyond a reasonable doubt his actions
would cause fear in a reasonable person. Again, viewing this evidence in the light most
favorable to the State, a rational juror could have found Young's actions would cause fear
in a reasonable person. Young approached the vehicle and was yelling and talking
irrationally for over two minutes. A jury could have rationally determined that a
reasonable person could be placed in fear if such person pulled over the vehicle in the
dark and an individual approached the vehicle while yelling and engaging in unusual
behavior.


       Sufficient evidence supports Young's stalking conviction.


B.     Violation of a Protection from Stalking Order Conviction


       Young also argues the State failed to prove he knowingly violated a protection
from stalking order. The State argues Young knew Laurie was in the vehicle because he
told Winslow he tried to talk to Laurie.




                                              7
       The State charged Young with violation of a protection from stalking order
contrary to K.S.A. 2018 Supp. 21-5924(a)(6), which defines the offense as knowingly
violating a protection from stalking, sexual assault, or human trafficking order. A person
acts "knowingly" when such person knows his or her conduct is reasonably certain to
cause the result. K.S.A. 2020 Supp. 21-5202(i).


       At trial, Winslow explicitly testified Young admitted he tried to talk to Laurie:


               "Q.     Did you approach Mr. Young and ask him if he had been over by the
       Berners' property?
               "A.     Yes, I did.
               "Q.     And what did Mr. Young tell you?
               "A.     He pointed toward their property and said that he had went over there
       and he never went on their property, he stayed in the street. And he, I asked if he talked to
       anybody while he was over there and he said yes, he tried to talk to Laurie."


       Again, it was the job of the jury to evaluate the credibility of the witnesses, and a
rational juror could have found Winslow's testimony more credible than Young's
regarding his knowledge of the driver's identity when he approached the vehicle. Laurie
was driving a vehicle she had owned for about four years and pulled up to the curb in
front of her own house. Young had lived next to the Berners for over 10 years. While it is
true the incident occurred early in the morning while it was dark outside, we are not
permitted to reweigh the evidence or resolve evidentiary conflicts. See 

Kettler, 299 Kan.
at 472

. The jury could draw a reasonable inference the vehicle was not unfamiliar to
Young, and it chose to convict him. Thus, there is sufficient evidence to support Young's
conviction for violation of a protection from stalking order.


       Affirmed.




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