Opinion
No. 105,438.
2012-08-10
STATE of Kansas, Appellee, v. Daniel OJEDA, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
After two women were attacked about a week apart on a recreational trail in Leawood, Daniel Ojeda was convicted of raping and sodomizing one of them and attempting to rape the other. Ojeda contends there wasn't sufficient evidence to support rape or sodomy convictions because the evidence showed that he only penetrated the woman with his penis, while the jury was instructed that rape and sodomy include any penetration by a penis, a finger, or any other object. But that instruction merely tells the jury that penetration by any of those objects constitutes rape or sodomy; it doesn't create alternative means of committing these crimes with a corresponding requirement that all of them be proved by evidence.
Ojeda also objects that the judge made an error in responding to a jury question. The jury asked whether it could consider the events in the first attack (on which the jury convicted Ojeda of rape) in considering Ojeda's intent in the second one (on which it convicted him of attempted rape). The court said that it could. Ojeda argues that this impermissibly allowed the jury to consider Ojeda's inclination to commit such acts in deciding whether he was the perpetrator in the second offense. But a trial judge must provide a meaningful response to a jury question, and the judge's response accurately answered the jury's question. Ojeda admitted in testimony that he'd intended to rape the first woman. While Ojeda decided not to testify at all about the second attack, the jury was free to consider his admitted intent in the first one in considering whether he had intended to rape the second woman.
Ojeda also appeals an aspect of his sentencing, but we have no jurisdiction to consider that issue. Finding no error on issues we have jurisdiction to consider, we affirm Ojeda's convictions.
Factual Background
To set the stage for our discussion of the legal issues, we must first go through the facts in some detail. We will begin with the version presented by the victims and investigating officers.
The first attack occurred on April 7, 2004. H.T., a 23–year–old woman, was walking on the Tomahawk Creek Trail in Leawood. She noticed a man who twice rode past her on his bike. When he came back a third time, he got off the bike and put her in a “bear hug” from behind, pinning her arms to her side. He dragged her off the trail and into the woods; he then forced her down on her hands and knees before pulling down her pants and underwear. He fondled her breasts, pulled down his pants, and then penetrated her with his penis first vaginally and then anally.
H.T. said that the man also rubbed his penis on her and may have penetrated her a second time vaginally, although she wasn't sure. At some point, though, he ejaculated, which she felt on her thigh. H.T. said she didn't consent to any of this and that the man rode away on his bicycle afterwards. She described him as about 5–foot, 10–inches tall, 185 pounds, 25 to 30 years old, clean shaven, and Hispanic, with dark hair and a decent build.
The second attack took place April 15, 2004. C.H., a 29–year–old woman, was jogging on the same trail. She said she was attacked from behind by a man who tried to pull a duct-tape gag over her mouth. C.H. grabbed the man's forearms, screamed, and threw her elbows back. The attacker dropped the duct tape and ran away. She didn't see his face but said the man was between 5–foot, 9–inches and 5–foot, 11–inches tall, extremely fit, and had dark hair.
While investigating the second attack, officers found a witness, Mark Adams, who had seen a Hispanic man put his bike into the back of a tan Ford Explorer and quickly leave the parking lot along the recreational trail. So officers staked out the parking lot the next day watching for vehicles matching that description. Ojeda drove in, and officers talked with him. Ojeda provided both fingerprints and a saliva swab for DNA testing. Ojeda's fingerprints matched some found on duct tape discovered at the scene of the attack, and his DNA matched DNA from semen found on H.T.'s jeans, shirt, and underwear.
The State charged Ojeda with rape and aggravated criminal sodomy for the April 7 attack and attempted rape for the April 15 attack. In addition, because H.T. had been moved from the visible trail into a less visible area before she was raped, the State charged Ojeda with aggravated kidnapping against her. The State also charged Ojeda with attempted aggravated kidnapping against C.H. based on the premise that, had he gained physical control of her, Ojeda had been about to move her away from the trail just as he had done with H.T.
In trial testimony, Ojeda admitted that he had attacked H.T. with the intent to rape her. But he said he ejaculated before any penetration could occur because he was so excited and nervous. He also denied having drug H.T. away from the trail path. Ojeda didn't testify about the events of April 15.
During deliberations, the jury sent a question to the judge: “Can we consider the events of April 7th to determine the intent of [the] April 15th events?” The judge responded: “Evidence of the events of April 7 may be considered for the purpose of proving the defendant's intent on April 15.”
The jury convicted Ojeda on all charges, and the district court sentenced Ojeda to a controlling prison sentence of 330 months.
Ojeda has appealed to this court.
Analysis
I. There Was Sufficient Evidence to Support Ojeda's Convictions Because Neither the Statutes Nor the Jury Instructions Defined Alternative Means of Committing the Crimes of Rape or Aggravated Criminal Sodomy.
Ojeda claims that when the district court's jury instructions defined both rape and aggravated sodomy by noting that any of several objects might be used to penetrate the woman, the district court defined “alternative means” of committing each offense so that—to convict—there had to be evidence that Ojeda used all of the listed objects. Otherwise, Ojeda contends, the evidence is insufficient and we must reverse his convictions altogether.
Ojeda is correct, of course, that the statutes in place in 2004 when these crimes were committed provided that the penetration necessary to commit the crimes might be done by a body part (such as the penis or a finger) or another object. K.S.A. 21–3501(1) (Furse 1995) defined sexual intercourse as “any penetration of the female sex organ by a finger, the male sex organ or any object,” and K.S.A.2004 Supp. 21–3502(a)(1)(A) defined rape as sexual intercourse without consent when the victim is overcome by force or fear. Similarly, K.S.A. 21–3501(2) (Furse 1995) defined sodomy to include “anal penetration, however slight, of a ... female by any body part or object,” and K.S.A. 21–3506(a)(3)(A) (Furse 1995) defined aggravated criminal sodomy as “sodomy with a person who does not consent to the sodomy ... [w]hen the victim is overcome by force or fear.” Consistent with pattern jury instructions, the district court in Ojeda's case used language tracking these statutes to define sexual intercourse, rape, and aggravated sodomy.
Ojeda is also right that when a statute defines a crime through alternative means, either of which might be committed, the jury may convict without agreement on which of the means took place so long as there is sufficient evidence to support each of the means. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). But “alternative means” is a legal term of art, meaning the term has a specific meaning apart from its general usage—it is only when a statute creates “materially different” ways of committing a crime, truly “distinct ways of committing an offense,” that there are alternative means for the purpose of an argument like Ojeda makes here. See State v. Johnson, 46 Kan.App.2d 870, Syl. ¶ 8, 265 P.3d 585 (2011). So we must first determine whether rape and aggravated sodomy are alternative-means crimes in the way Ojeda contends.
There is no substantive difference between the rape and sodomy statutes on this point—both describe penetration either by a body part or by an object—so a precedent in either situation could guide our consideration. Our court recently held in State v. Schreiner, 46 Kan.App.2d 778, 264 P.3d 1033 (2011), petion for review filed December 5, 2011, that the rape statute did not create an alternative means so as to require evidence of penile penetration, finger penetration, and penetration by some other object to convict a defendant of rape:
“The statutes actually define a single means of committing rape; it is nonconsensual penetration of the female genitalia with something. The definitional statute then characterizes the instrumentality as a finger, the male sex organ, or an object. All of those terms, strictly speaking, may be unnecessary. If they were omitted, sexual intercourse would be defined as penetration of the female sex organ. Anything used to accomplish the act of penetration would meet that definition....
“... The wording reflects verbal redundancy rather than differing ways or alternative means of committing a criminal offense. In short, the definition of sexual intercourse cannot reasonably be viewed as creating alternative means of committing rape.” 46 Kan.App.2d at 783–84.
The Schreiner court acknowledged that some degree of redundancy is acceptable in criminal statutes in the interests of comprehensibility, completeness, and giving fair notice of the criminalized conduct. 46 Kan.App.2d at 785.
The Schreiner decision has been followed by several other panels of this court. See, e.g., State v. Boyd, 46 Kan.App.2d 945, 949, 268 P.3d 1210 (2011), petition for review filed January 23, 2012; State v. Martinez, No. 104,695, 2012 WL 1524034, at *4–5 (Kan.App.2012) (unpublished opinion), petition for review filed May 29, 2012; State v. Jones, No. 105,480, 2012 WL 1072761, at *2–3 (Kan.App.2012) (unpublished opinion), petition for review filed April 19, 2012; State v. Brooks, No. 105,358, 2012 WL 309075, at *3–4 (Kan.App.2012) (unpublished opinion), petition for review filed February 27, 2012; State v.. Ochoa, No. 104,746, 2012 WL 98508, at *6 (Kan.App.2012) (unpublished opinion), petition for review filed February 6, 2012. Additionally, this court has ruled that explanatory definitions in jury instructions do not create an alternative means for committing a crime. See State v. Waldrup, 46 Kan.App.2d 656, 668–69, 263 P.3d 867 (2011) (holding jury instruction's explanatory definition of sale of cocaine did not create alternative means of committing crime because the broad definition of the term “sale” did not reasonably confuse the jury about what criminal conduct the State had to prove to find defendant guilty), petition for review filed November 16, 2011. We agree with these previous opinions that the Schreiner decision is well reasoned and highly persuasive. The State wasn't required to present evidence that H.T. was penetrated by something other than Ojeda's penis for him to be convicted of rape or aggravated sodomy.
We close our discussion of this issue by noting that Ojeda also raised it with respect to his conviction for the attempted rape of C .H. Ojeda argues that he couldn't be convicted of the attempted rape of C.H. because “there was no evidence ... of the possibility of the use of any object to penetrate her.” Of course, since C.H. fought Ojeda off before he either undressed C.H. or took off his clothes, there was no evidence that Ojeda was about to penetrate her with his penis, either. The claim of an alternative-means problem with respect to the April 15 attack on C.H. is even more tenuous than the one made regarding the April 7 attack on H.T. We find no merit to the argument in either case.
II. The District Court Did Not Abuse Its Discretion in Answering a Jury Question.
Jurors have a tough job, one in which they must not only figure out what happened factually but also must understand legal concepts unfamiliar to them. Not surprisingly, then, the district court has a duty to help jurors do their job.
Specifically, K.S.A. 22–3420(3) provides that if the jurors during deliberations “desire to be informed as to any part of the law or evidence,” they may ask the bailiff “to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them.” Although the statute speaks of the jurors asking the bailiff “to conduct them to the court” should they have a question, actual practice involves them usually sending out a written question about any requests the jury may have. This allows the judge, counsel, and the defendant to consider the matter—outside the jury's presence—before responding.
But the statute provides that when the jury has a question, “the information on the point of law shall be given, or the evidence shall be read or exhibited to them.” (Emphasis added.) K.S.A. 22–3420(3). The district court has no discretion about whether to help the jury: it must offer appropriate information on the point of law or evidence at issue. See State v. Bruce, 255 Kan. 388, 396–97, 874 P.2d 1165 (1994). The judge “must respond in some meaningful manner or seek additional clarification or limitation of the request.” State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995). But the district court does have discretion in fashioning an appropriate response. We review the sufficiency or propriety of the response for abuse of discretion. State v. Jones, 41 Kan.App.2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010). A district court abuses its discretion when no reasonable person would agree with the choice it made or when its ruling is based on an error of law or fact. See State v. Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012).
The jurors in Ojeda's case asked a good question—could they consider the events of April 7 when trying to figure out Ojeda's intent on April 15? A pattern jury instruction given to this jury, as in most cases involving more than one charge, had told the jury that it “must decide each charge separately on the evidence and law applicable to it uninfluenced by your decision as to the other charge.” Yet even on appeal Ojeda doesn't argue that it would have been improper for the jury to consider what took place on April 7 when considering his intent on April 15. We conclude that the district judge accurately told the jury it could do so.
Instead, what Ojeda argues is that the district judge should have gone further and told the jury that—as to the charges involving victim C.H.—the jury could consider the events of April 7 only on the issue of intent. Ojeda contends that the identity of the attacker on April 15 was far from certain, and that the jury could not consider the April 7 events as an indicator that Ojeda had a propensity for attacking women—concluding that he must have been the attacker on April 15 because he'd attacked a woman on April 7.
We do not find Ojeda's argument convincing. First, the jury asked a simple question: “Can we consider the events of April 7th to determine the intent of [the] April 15th events?” The judge accurately answered that question. Second, the jurors didn't ask whether they could consider the information for any other purpose, and there's no reason to suspect that they did. As we've already noted, they were instructed to consider each charge separately, and they took that instruction seriously enough that they asked the follow-up question about whether they could consider the events of April 7 for a specific purpose relative to the April 15 events. The district court's answer was legally correct, and we find no abuse of discretion in its response.
III. We Have No Jurisdiction to Consider Ojeda's Challenge to His Sentence.
Ojeda's final argument relates to his sentence. There were guideline sentences for all of Ojeda's crimes of conviction, and the Kansas sentencing guidelines offer sentencing judges three choices for each crime; a low number, called the mitigated sentence; a middle number, called the standard sentence; and a higher number, called the aggravated sentence. See K.S.A. 21–4704(e)(1) (Furse 1995); State v. McMillan, 44 Kan.App.2d 913, 935, 242 P.3d 203 (2010), rev. denied 291 Kan. 915 (2011). The district court here chose the aggravated sentence for each crime. Ojeda argues that this violates his constitutional rights.
But the Kansas sentencing guidelines also provide that a defendant has no right to appeal the district court's choice among the numbers in the appropriate guidelines grid box. See State v. Johnson, 286 Kan. 824, 841–42 190 P.3d 207 (2008). And our Supreme Court has recently reiterated this point against an argument similar to the one Ojeda makes. See State v. Deal, 293 Kan. 872, 890–91, 269 P.3d 1282 (2012). We have no jurisdiction to consider Ojeda's challenge to his sentence.
We affirm the district court's judgment.