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State v. Dixon6/3/2005
ns of force or deception for which there is little or no evidence. K.S.A. 60-261 defines harmless error as any error by a court which is not inconsistent with substantial justice. We conclude, therefore, that including the term 'deception' as a means of kidnapping in the jury instructions in this case constitutes harmless error. In light of the overwhelming evidence of Johnson's guilt on the kidnapping charge, we can see no injustice done by this verdict." Johnson, 27 Kan. App. 2d at 923-26.
Here, like Grissom, there was strong evidence supporting at least one theory of each burglary and no evidence of at least one other theory. Thus, following Grissom, the erroneous burglary instructions in this case were harmless.
8. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN EXCLUDING EVIDENCE?
Terry Jones testified that he did not want to testify in Dixon's case and received no benefit from doing so. For the purpose of impeachment, Dixon sought to introduce a copy of Jones' motion seeking a downward departure in his sentence for his cooperating with the State. Jones' motion recites that he "has provided information and testified on another matter in another jurisdiction." When asked by the trial judge about the hearsay implications, defense counsel conceded that the exhibit was being offered for the truth of its statement that Jones had cooperated with the State in order to get his sentence reduced. After consulting with co-counsel, defense counsel suggested that it was admissible under the content-of-an-official-record exception to the hearsay record. The trial judge disagreed:
"Yes, if we're talking about an official record, but we're talking about a pleading made by an attorney filed in court. And it strikes me that if I buy your argument that 60-460 applies in this case that all I do to make something a truthful argument to be used against somebody is I go up and I file a pleading and I have it certified and then anybody can use it for anything."
The State echoed the trial judge's view in stating that the motion documented Jones' attorney's belief rather than Jones', and the State added that it therefore was not relevant to impeach Jones. The trial judge declined to admit the document:
"It's bad hearsay, but as a practical matter, given the rather vague nature of this, I can't tell that there is any relevance to this proceeding that we have before us. But if you want to make the efforts to re-call Mr. Jones and shore this up or to modify it in some way beyond what you can, which I am not very doubtful that you're going to get much more out of Mr. Jones than you've already got because he's denied he's testified for anybody on anything, you can do so . . . ."
Defense counsel assured the trial judge that he could be ready the next morning to do whatever further examination of Jones he was going to do.
The next morning, defense counsel again offered the document into evidence, relying on a previously uncited hearsay exception--the statement concerned a matter within the scope of an agency of the parties. The trial court again refused admission. Defense counsel recalled Jones, who testified that he had provided testimony in no other case. Jones, who the day before had said that he did not approve of the downward departure motion being based on his cooperation in another case, further testified that he had not objected at his sentencing proceeding to the basis of the motion.
The admission or exclusion of evidence lies within the sound discretion of the trial court. One who asserts that the court abused its discretion bears the burden of showing such abuse. State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (20
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