Jоhn Arthur Dority appeals his convictions of domestic battery and endangering a child. Dority argues that there was insufficient evidence to support his convictions. He also argues that he did not receive a fair trial due to the trial judge’s preconceived stereotype of domestic violence victims. For the reasons set forth herein, we affirm the district court’s judgment.
On the afternoon of May 2, 2012, Kimberly Scourten called for an ambulance and she and her 4-month-old daughter, T.D., went to the hospital so that medical personnel could check T.D. for possible head trauma. While at the hospital, Scourten told police that she had been involved in an argument with Dority, hеr boyfriend and T.D.’s father. Scourten seemed upset at the hospital and looked as though she had been crying.
Officer Erie Seibel of the Topeka Police Department interviewed Scourten at the hospital. Scourten told Seibel that she and Dority had been yelling at each other at their home and that she went into the living room, рicked up T.D., and sat down on the couch. Scourten reported that when she began to stand up, Dority shoved her back down onto the couch. When she started to stand up again, Dority shoved her from behind, knocked T.D. out of her hands and onto the floor, and hit Scourten in the back of the head.
Officer Alexander Wall also spoke with Scоurten, who told him that Dority had pushed her down as she tried to get off the couch and that she and T.D. both fell to the floor. Scourten told Wall that the bruise on T.D.’s head came from T.D. landing on the ground after Dority pushed Scourten. Wall spoke with Dority that night as well. Dority told Wall that he had argued with Scourten, that she had pushed and shoved him, and that he had used his body to shield T.D., who was on the couch. At first, Dority said that he was unaware T.D. was hurt, but he then told Wall that T.D.’s injury probably occurred from Dority making contact with T.D. while trying to protect her from Scourten.
Dority was arrested for domestic battery, and Scourten helped him post bond. The next day, Scourten went to the district attorney’s office and filled out a “Request to Modify Contact” form in which she stated that Dority “did not mean to do this (shove me) with our daughter in my hands.” On July 16, 2012, the State charged Dority with one count of domestic battery and one count of endangering a child. The domestic battery charge was alternatively based on intentional or reckless conduct.
At the bench trial on March 5, 2013, Scourten’s testimony diffеred from what she had told Seibel and Wall at the hospital. Scour-ten testified that she and Dority had an argument on the day in question, during which she put T.D. on the couch. Dority picked up T.D. and, when Scourten handed him a bottle, began to feed T.D. Scourten testified that she hit Dority while he was feeding T.D. After Scourten hit Dority, he left their home, at which time T.D. began rubbing her head and crying. Scourten stated that T.D. had fallen off the couch 2 days earlier, so when she saw T.D. rubbing her head, she became concerned and called an in-home nurse who worked with the family. The nurse told Scourten to take T.D. to the emergency room in case T.D.’s actions were related to her previous fall off the couch.
Regarding her statements to the police at the hospital, Scourten largely recanted them. She testified that she did not tell police that Dority shoved her and that she did not recall
Seibel testified for the State, as did Wall; both offiсers recounted what Scourten had told them on the day in question. Additionally, Seibel testified that Scourten never told him that she had hit Dority or that she had caused T.D.’s bruise. He testified that Scourten’s version of events as she related it on the day in question was consistent with T.D.’s injuries and he believed it was accurate.
Dority testified on his own behalf, stating that althоugh he could not remember what the argument was about, Scourten had hit him on the back of the head while he was holding T.D:, at which point he placed T.D. on the couch and walked out the door to give Scourten time to cool down. Dority explicitly denied having physical contact with Scourten; he testified that he did not hit her, did not bump her, did not jоstle her, did not brush past her, and did not threaten her. He also denied harming T.D. in any way.
After hearing the evidence, the district court found Dority guilty as charged. In rendering the verdict, the trial judge commented that based on his experience in this type of case, it is common for victims of domestic violence to recant their initial police reрorts when testifying at trial. The trial judge found that Scourteris version of events that she gave to the police was far more persuasive than her testimony at trial. The district court sentenced Dority to a total of 18 months in jail but placed him on probation. Dority timely appealed the district court’s judgment.
On appeal, Dority argues that there was insufficient evidence to support his convictions. Regarding his domestic battery conviction, Dority contends that domestic battery is an alternative means crime and that the State failed to introduce sufficient evidence to convict him of each alternative means of committing the crime. Dority also argues that the conflicting and inconsistent nature of the testimony was insufficient to convict him of both charges beyond a reasonable doubt.
“ “When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, tire appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.] An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citation omitted.]” State v. Lowrance,298 Kan. 274 , 296,312 P.3d 328 (2013).
Initially, Dority points out that the domestic battery chargе was alternatively based on intentional or reckless conduct and that the State failed to introduce sufficient evidence to convict him of each alternative means of committing the crime. In response, the State asserts that alternative means jurisprudence is inapplicable in instances, such as here, where there was a bench trial instead of a jury trial.
Our Supreme Court has stated that alternative means jurisprudence stems from a concern for jury .unanimity:
“In State v. Timley,255 Kan. 286 , 289,875 P.2d 242 (1994) (quoting State v. Kitchen,110 Wash. 2d 403 , 410,756 P.2d 105 [1988]), this court established that “‘[W]here a single offense may be committed in more tiran one way, there must be jury unanimity as to guilt for the single crime charged.’” . . . Recently, the majority in State v. Wright,290 Kan. 194 , 201, 206,224 P.3d 1159 (2010), reiterated that jury unanimity is statutorily required in Kansas and explained that tire alternative means rule and super-sufficiency requirement emanating from Timleij ⅛ die only choice to ensure a criminal defendant’s statutory entitlement to jury unanimity.’ ”State v. Foster, 298 Kan. 348 , 352-53,312 P.3d 364 (2013).
Specifically, this court has noted that “alternative means jurisprudence developed as a method of ensuring a criminal defendant’s stаtutoiy right to a unanimous jury verdict. [Citation omitted.] The same juiy unanimity concerns do not apply when evidence is presented to a single factfinder, as in a bench trial. [Citation omitted.]” In re C.T., No. 107,841,
Here, as in the cases cited above, diere was only one factfinder: the district court judge. Because this was a bench trial, jury unanimity was not a concern in this case. Accordingly, Dority’s alternative means argument is inapplicable.
Dority also argues that the conflicting and inconsistent nature of the testimony given by Scourten, Wall, and Sеibel rendered it impossible for a rational factfinder to have found him guilty of the crimes. Specifically, Dority points out that Seibel and Wall were not present for die argument between Scourten and Dority; rather, the officers talked widi Scourten and Dority after the fact. Additionally, Scourten and Dority both testified at trial that Scourten shoved Dority, not the otiier way around.
As the State responds, Dority is asking this court to reweigh the evidence and the witnesses’ credibility. This court does not undertake such tasks. See Lowrance,
Next, Dority argues that he did not receive a fair trial due to the trial judge’s stated beliefs about domestic violence victims. In rendering his verdicts on the two charges, the trial judge stated, in part:
“So it’s up to this Court to decide, as best it can, which version of the incident is the most persuasivе and as I’ve said before, we tell juries that when drey are acting as finders of fact, as I am in this case, they can use common knowledge and experience about which a witness has testified to. And using my common knowledge and experience I can say it is absolutely not uncommon for the victims in these kinds of cases to come in at the time of trial and totally change their story around and say either they didn’t tell the police what the police say they told them or that they toere not being truthful for some other motive or whatever and that, in fact, none of this violence took place.
“And so I don’t find that particularly persuasive at all, particularly when the physical evidence, State’s Exhibits 2, 3, the photos, and then 4, the statеment that was made the following day at the district attorney’s office, all are consistent with die testimony of the police officers as to what the victim from the crime, alleged victim actually told them and I can find, with no problem at all, that she told the police what they said she told them. . . .
“And that being the case, I dunk her version that she gave tо the police, by far and away, is far more persuasive of what actually took place. I have no problem whatsoever finding beyond a reasonable doubt the defendant guilty on both counts ... of tire charging document and so that is my verdict on each of these counts.” (Emphasis added.)
Dority points to the one sentence in which the trial judge commented that based on his experience in this type of case, it is common for victims of domestic violence to recant their initial police reports when testifying at trial. Dority claims the district court improperly relied on personal knowledge about domestic violence victims instead of relying on the еvidence provided at trial. A district court abuses its discretion when it relies upon facts that are not supported by substantial
Dority cites State v. Prewitt, No. 106,725,
Although not cited by either party, we find two unpublished opinions by this court to be instructive. In Lambert v. Cromer, No. 98,906,
In reversing the judgment, this court noted that there was no direct evidence that the defendant was negligent in maintaining his pasture fence.
In In re Marriage of Henry, No. 105,861,
“I will tell you that having been on the bench 14 years, I have seen many situations, many instances in which people who are either out-of-state or they only get summer visitаtion, they will end up filing a motion at some time right before the end of that summer to try to change custody, and that’s always land of a red flag for me . . .2012 WL 1450489 , at *2.
On appeal, the petitioner cited Lambert and argued that the trial judge improperly relied upon his personal experience. The Henry court distinguished the cases, however, by pointing out (1) the Lambert judge “relied on specialized training and expеrtise gained outside the courtroom” while the Henry judge “merely noted a situation he had encountered many times during 14 years as a judge”; (2) although “an expert witness would have been required to testily about the reasonable practices of maintaining pastureland fences, no expert would be needed to say that it can be a "red flаg’ when a parent tries to change custody right before that parent’s summer parenting time is coming to an end”; and (3) the judge in Henry did not indicate that he based his decision on the knowledge at issue — he properly considered the statutory factors implicated in child-custody determinations.
Lambert and Henry stand for the proposition that a trial judge, as the factfinder in a bench trial, is not allowed to use his or her special knowledge of a particular subject to decide an issue without hearing evidence
The facts of the case at hand follow Henry much more closely than Lambert. As in Henry, the judge here merely noted a situation he had encountered previously in cases involving domestic batteiy. Additionally, as in Henry, an expert witness would not be required to testify that it is common for a domestic violence victim to change his or her story prior to trial. This belief did not represent specialized knowledge or expertise personal to the trial judge. Finally, and importantly, the trial judge indicated that he was not basing his guilty verdicts solely on his common knowledge and experience about domestic violence victims. The trial judge also indicated that he was considering the physical evidence, including the photographs of the injuries and the written statement that Scourten made at the district attorney’s office the day aftеr the incident. Considering all the evidence, the trial judge found that Scourten’s version of events that she gave to the police was far more persuasive than her testimony at trial.
We conclude that Dority was not denied a fair trial due to tire trial judge’s stated beliefs about domestic violence victims. Indeed, almost 10 years ago, while determining whether prior inconsistent statements of a witness can be used as substantive evidence to prove the elements of a crime, this court noted that “victims of domestic violence often recant their initial statements to police.” State v. Coppage,
Affirmed.