Opinion
No. 108,096.
2013-07-19
STATE of Kansas, Appellee, v. David YARBROUGH, Appellant.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
MALONE, C.J.
David Yarbrough appeals his convictions and sentences following a jury trial at which he was convicted of multiple counts of sexual abuse of his step-granddaughter, A.G. Yarbrough argues that the prosecutor committed misconduct during voir dire and that the district court erred in denying his motion for a mistrial based on prejudice in the jury pool. He also contends that the district court erred in denying his motion for new trial based on ineffective assistance of counsel. With respect to his sentences, Yarbrough argues that the district court erred in denying his motion for a downward dispositional departure and erred in sentencing him to life imprisonment with parole eligibility after a mandatory minimum of 25 years rather than a mandatory minimum of 20 years. Finding no reversible error, we affirm the district court's judgment.
Factual and Procedural Background
Yarbrough was charged with 19 counts, including three counts of rape, four counts of aggravated indecent liberties with a child, two counts of attempted aggravated indecent liberties with a child, eight counts of aggravated criminal sodomy, and two counts of attempted aggravated criminal sodomy for allegedly molesting his step-granddaughter, A.G., on numerous occasions between February 1, 2009, and July 31, 2010. A.G. was under 14 years old at the time of the alleged offenses.
During jury voir dire, the prosecutor read the 19 counts to the jury pool and asked if any potential jurors thought it would be too traumatic for them to listen to the evidence in the case. Fourteen potential jurors stated that they could not be fair and impartial jurors based solely on the nature and/or number of charges against Yarbrough, even though they agreed that Yarbrough was presumed innocent and that they had not yet heard any evidence. Those jurors were excused from further service.
Later during voir dire, the prosecutor asked if any potential jurors had known a child to make false allegations of sexual abuse against another person. One potential juror answered yes. The following exchange then occurred:
“[PROSECUTOR]: And how did you come to learn that the allegations were false?
“[POTENTIAL JUROR]: I was at—actually told by an employee in the prosecutor's office they didn't believe the allegations in the first place.
“[PROSECUTOR]: Now, did you take— did the system work as far as weeding the case out before the case went to trial ?
“[POTENTIAL JUROR]: The case was dismissed six days before trial, 20 months after the allegations were made so it sat and sat and sat and obviously the alleged victims, the alleged victim family, our family, suffered a great deal during that 20 months.
“[PROSECUTOR]: Okay. But the case was ultimately dismissed?
“[POTENTIAL JUROR]: Yes, it was.
“[PROSECUTOR]: It never went to trial?
“[POTENTIAL JUROR]: Correct.
“[PROSECUTOR]: Now, is there anything about that experience that you think you cannot be fair and impartial in this case?
“[POTENTIAL JUROR]: Listening to some of your questions, I'm like okay, I can see both sides of answering them, for example, the medical evidence. There's some pretty severe allegations in there about some very, you know, specific and concrete contact between the alleged perpetrator and the alleged victim. I would more often than not—not always necessarily expect some medical evidence, not have to, but kind of anticipate some of it. Knowing how the system works having been a paralegal working at the table, having been involved with the family of someone involved in the allegations and having a prosecutor actually tell me they never believed the charges in the first place, it's hard to sit back and be unbiased knowing also that they knew the detective failed in his job.
“[PROSECUTOR]: Do you think you could listen to the evidence and do you think you could put that experience aside and just make your decision only on the evidence you hear in this case?
“[POTENTIAL JUROR]: If I am confident that everybody followed proper protocol and procedures, I'm okay with it. It's when the system clearly fails and they all turn a blind eye to somebody not doing their job, then I have a problem.
“[PROSECUTOR]: Okay. Thank you.” (Emphasis added.)
That potential juror ultimately was not selected to sit on the jury. The following day, after the parties made their opening statements but before any evidence was heard, Yarbrough moved for a mistrial on the basis that the jury pool was prejudiced by the number of potential jurors who stated that they could not be impartial based on how many counts had been filed in the case. The district court summarily denied the motion.
Trial Testimony
A.G.'s mother, Jasmine, testified that for many years, A.G. and her younger sister would spend the night approximately every other weekend at the house of their paternal grandmother, Gracie Yarbrough (Gracie), and her husband, Yarbrough. Jasmine stated that A.G. would sometimes indicate that she did not want to go to her grandparents' house, but that A.G. appeared to get along with her grandparents and that the families generally had a good relationship. At the time, A.G. was receiving good grades at school and did not have any discipline or attendance problems. In July 2010, Jasmine's nephew was killed. The family became occupied with that situation, so A.G. and her sister visited their grandparents' house less frequently. Around the same time, A.G. developed sleeping problems, although A.G. never told Jasmine why she was having trouble sleeping.
Jasmine testified that during the early morning hours of February 18, 2011, while A.G. and her younger sister were staying with their grandparents, Jasmine received a text message from A.G. stating that she had been “touched” by Yarbrough since she was 9 or 10 years old and that she believed he had raped her the year before. Jasmine immediately called Gracie, told Gracie what A.G. had texted, drove over to the house, and waited outside with her daughters until police arrived. Police officers who responded to the scene testified that A.G. told them that Yarbrough had been molesting her since she was 9 or 10 years old and that the last incident occurred in July 2010. Because the last incident allegedly occurred over 6 months earlier, police did not attempt to locate or preserve any DNA evidence. A.G. did undergo a medical exam, although the results of that exam were not discussed at trial.
Later in the day on February 18, 2011, A.G. was taken to Sunflower House, a children's advocacy center, to be interviewed by a forensic interviewer specially trained in non-leading interview techniques. The forensic interviewer who interviewed A.G. testified that during the interview, A.G. stated that Yarbrough touched her breasts underneath her clothes with his hands and mouth, touched her vagina with his finger both on the inside and outside on multiple occasions, inserted his finger and his penis into her anus on multiple occasions, and inserted his penis into her vagina on one occasion. A.G. stated that Yarbrough had asked her to touch his penis with her mouth and her hand, but she refused. A.G. also stated that Yarbrough had told her to keep it a secret and had offered her driving practice and gave her money. The forensic interviewer testified that it was not unusual for a child victim to delay disclosing abuse. A video of A.G.'s interview at Sunflower House was admitted into evidence.
At trial, A.G. testified that Yarbrough began touching her when she was around 9 or 10 years old while she was at her grandparents' house. She stated that Yarbrough would use his hands to touch her butt, vagina, and breasts, both over and underneath her clothes, and that she would take off her clothes when Yarbrough told her to do so. Yarbrough would also touch her butt, vagina, and breasts with his mouth. A.G. further testified that Yarbrough put his finger inside her anus and her vagina on multiple occasions. He also put his penis inside her anus on multiple occasions. On at least one occasion, he put his penis inside her vagina. Yarbrough also asked her to touch his penis with her mouth, but she refused. According to A.G., the last incident occurred in July 2010, when Yarbrough put his penis inside her vagina.
A.G. stated that these incidents always occurred at night. Usually, she would be asleep and Yarbrough would wake her up and ask her to come into the back room or into the second bedroom. On at least one occasion, A.G. was awake and watching television in the living room with Gracie, and Yarbrough asked A.G. to come into the back room. After the touching occurred, A.G. returned to the living room with Gracie. Every time an incident occurred, both Gracie and A.G.'s younger sister were in the house, although they usually were asleep and always in a different room. Yarbrough told A.G. not to tell anybody, and she believed he let her practice driving his car because she let him touch her. A.G. testified that she finally sent her mother a text about these incidents because she was afraid that Yarbrough might start touching her younger sister.
Gracie testified on Yarbrough's behalf. She testified that she saw A.G. and her younger sister 2 to 3 days per week and most weekends from February 2009 to July 2010. She denied that Yarbrough was ever alone with the girls. When the girls stayed overnight, they slept with Gracie in her room while Yarbrough slept elsewhere in the house. However, A.G. sometimes fell asleep on the couch in the living room. Gracie never noticed Yarbrough go somewhere in the house alone with A.G., even though the house is very small. She also stated that she has insomnia, so she expressed disbelief that Yarbrough would take A.G. to the back room in the middle of the night knowing that she (Gracie) might awake. Gracie stated that A.G. was becoming belligerent toward Yarbrough, but she thought that A.G .'s attitude change was simply because she was entering her teenage years. Gracie testified that, in general, A.G. and her family got along with Gracie and Yarbrough.
Yarbrough testified on his own behalf. He denied that he ever had any sexual contact with A.G. and stated that he always slept in a separate room when A.G. and her younger sister stayed over at the house. He stated that A.G. had some attitude problems toward him but that they generally got along. Yarbrough testified that he was hurt by A.G.'s allegations and did not understand why she would make such allegations.
Before the jury began deliberations, the district court granted Yarbrough's motion for a directed verdict on the two counts of attempted aggravated indecent liberties with a child and the two counts of attempted aggravated criminal sodomy. The jury returned a guilty verdict on the remaining 15 counts of rape, aggravated indecent liberties with a child, and aggravated criminal sodomy. The verdict was delivered on September 8, 2011.
Posttrial Proceedings
Yarbrough filed a motion for new trial on October 20, 2011. He argued that the district court erred in denying his motion for a mistrial on the basis that the jury pool was prejudiced by the number of potential jurors who stated they could not be fair and impartial based solely on the nature and/or number of charges against him. He also argued that the jury's verdict was not supported by substantial competent evidence and that the district court erred in denying his motion for a directed verdict on all counts.
The district court held a hearing on the motion the following day. After hearing the arguments of counsel, the district court denied the motion. The district court found that voir dire had been properly performed and that Yarbrough was not unduly prejudiced by the number of prospective jurors who said they could not be fair and impartial jurors. The district court also found that A.G.'s testimony, which the jury apparently found more credible than Yarbrough's testimony, sufficiently supported the jury's verdict. Yarbrough then personally addressed the district court and asked for a new trial because he believed that his trial counsel, W. Fredrick Zimmerman, did not adequately represent him at trial. The district court allowed Zimmerman to withdraw and appointed new counsel to represent Yarbrough on the issue of ineffective assistance of counsel.
On February 2, 2012, Yarbrough filed a second motion for new trial. He argued that his trial counsel, Zimmerman, was ineffective for failing to investigate A.G.'s personal, social, and mental health background, for failing to call the medical professional who examined A.G. to testify that she showed no signs of sexual abuse, and for failing to examine the basis of the medical professional's statistic in the medical report that “ '90–95% of children who have been sexually abused have normal examinations.' “
The district court held an evidentiary hearing on the second motion for new trial. Zimmerman agreed that there was no physical evidence in the case and that the case hinged on A.G.'s credibility as a witness. He testified that he had discussions with Yarbrough and Gracie about A.G.'s background, but based on that information, he did not have any reason to request a mental health examination of A.G., and he did not believe that A.G. had any mental issues that would rise to a level of defense in the case. Other than the information he had from Yarbrough and Gracie, he did not make any effort to determine whether A.G. was undergoing any mental health treatments or had previously made any abuse allegations. He did not subpoena A.G.'s school records.
With respect to his failure to call a medical professional to testify that the medical exam of A.G. showed no signs of sexual abuse, Zimmerman stated that he believed the value of that testimony would have been outweighed by the likelihood that the professional would also testify that normal exam results do not equate with lack of sexual abuse. Zimmerman also testified that he did not independently examine the basis for the statistic that “ '90–95% of children who have been sexually abused have normal examinations' “ because he believed it was simply another way of saying that it is not uncommon for victims of sexual assault to show no signs of physical trauma.
Dionne Scherff testified as an expert defense counsel. She stated that in cases that hinge on the credibility of a child witness, she would investigate into the background of the child and find out if there were any behavioral or mental health issues that would explain why the child was making allegations of abuse or that would undermine the child's credibility. In particular, she would subpoena the child's educational records to look for signs of behavior changes or disruptive conduct and would make a demand for all of the child's counseling records. Scherff stated that it would be unreasonable for a defense counsel to fail to make such an investigation. She believed that in Yarbrough's case, there was a possibility that the outcome of trial would have been different if Zimmerman had performed more investigation into A.G.'s background.
As to Zimmerman's failure to present the evidence that A.G.'s medical exam results were normal, Scherff believed that the failure was objectively unreasonable, especially in light of the allegations of repeated anal penetration. Furthermore, Scherff believed that A.G.'s medical exam results should have been presented to the jury, even though the medical professional likely would have testified that normal results do not equate with lack of sexual abuse. But Scherff could not say that the outcome of the trial would have been different if A.G.'s medical exam results had been presented to the jury.
After hearing the evidence, the district court denied Yarbrough's second motion for new trial. The district court found that Zimmerman had spoken with Yarbrough and Gracie with respect to A.G.'s background and had discovered no good-faith basis to pursue a mental health evaluation of A.G., and therefore Zimmerman was not ineffective for failing to further pursue such an evaluation. The district court also found that because A.G.'s medical exam did not take place until more than 6 months after the last alleged incident of abuse, Zimmerman was not ineffective for failing to present evidence that A.G.'s medical exam results were normal. Finally, the district court found that even if Zimmerman had presented evidence of A.G.'s medical exam results, that evidence would not have made any difference in the outcome of the case.
At the sentencing hearing, Yarbrough made an oral motion for a downward durational departure from a Jessica's Law sentence to an aggravated grid-box sentence of 165 months' imprisonment. Yarbrough argued that because he was 56 years old, he would almost certainly serve the remainder of his natural life in prison unless he were granted a downward departure. The district court denied the motion, finding that the evidence showed that the sexual abuse was a continuing course of conduct and Yarbrough was found guilty on 15 counts. The district court sentenced Yarbrough on all counts to life sentences with parole eligibility after a mandatory minimum of 25 years, with two counts to run consecutive to one another and the remaining counts to run concurrently. Yarbrough timely appealed the district court's judgment.
Prosecutorial Misconduct During Voir Dire
Yarbrough argues that the prosecutor committed misconduct in a series of questions during voir dire, in which the prosecutor asked a potential juror who knew someone falsely accused by a child of sexual abuse if “the system work[ed] as far as weeding the case out before the case went to trial.” He contends that the prosecutor's questions violated his presumption of innocence by implying that because his case made it to trial, the allegations against him were likely to be true. The State argues that when viewed in context, the prosecutor's questions did not misstate the defendant's presumption of innocence and were designed to determine whether a particular juror was biased.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Stafford, 296 Kan. 25, 55, 290 P.3d 562 (2012). Under the second step, an appellate court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct was motivated by ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors' minds. None of these three factors are individually controlling. 296 Kan. at 58. If the defendant establishes misconduct of a constitutional magnitude, the State, as the party benefitting from the error, bears the burden of proving beyond a reasonable doubt that the error did not affect the defendant's rights, i.e., there is no reasonable possibility in light of the entire record that the error affected the outcome of the trial. 296 Kan. at 59.
The prosecutor's question about whether “the system work[ed] as far as weeding the case out before the case went to trial” in reference to a potential juror's family member who was falsely accused of sexual abuse, when read in isolation, could be construed as implying that the allegations against Yarbrough were true because his case had gone to trial. Thus, the statement could be understood as violating Yarbrough's presumption of innocence or impermissibly shifting the burden of proof to the defense, which are outside the wide latitude afforded to prosecutors. But a prosecutor's comments must be evaluated in context and can be mitigated by jury instructions regarding the burden of proof. See State v. Peppers, 294 Kan. 377, 397–99, 276 P.3d 148 (2012).
Here, the prosecutor's question about the system weeding out a case involving false allegations of sexual abuse was part of a longer colloquy aimed at identifying biases in the jury pool. When read in context, it is clear that the prosecutor's question and follow-up questions were meant to determine the extent of the potential juror's possible bias and whether the potential juror could set aside that bias and be a fair and impartial juror. Furthermore, any statements made by the prosecutor that could be construed as violating the defendant's presumption of innocence or shifting the burden of proof were mitigated by the prosecutor's repeated reminders throughout the course of voir dire that the defendant was presumed innocent, the burden of proof was on the State to prove the defendant guilty beyond a reasonable doubt, and the jury's job was to make a decision based solely on the evidence presented at trial.
Prior to the presentation of evidence, the district court instructed the jury on the defendant's presumption of innocence and the State's burden of proof. Finally, it is worth noting that Yarbrough did not object at trial to the prosecutor's questions, which deprived the district court of the opportunity to address any potentially incorrect or misleading statements. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (presence or absence of an objection may figure into analysis of alleged prosecutorial misconduct during voir dire, opening statement, or closing argument).
For these reasons, we conclude the prosecutor's questions during voir dire were not improper and no misconduct occurred. But even if the questions were improper, the misconduct was not gross or flagrant and showed no ill will on the part of the prosecutor. See State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (collecting cases stating that isolated comments in lengthy transcript do not establish gross and flagrant conduct or ill will). Likewise, the prosecutor's isolated question about the system weeding out a case involving false allegations of child abuse likely had little weight in the jurors' minds. Therefore, there is no reasonable possibility that any misconduct by the prosecutor affected the outcome of trial. We conclude that Yarbrough was not denied a fair trial based on prosecutorial misconduct during voir dire.
Motion for Mistrial
Yarbrough contends that the district court erred in denying his motion for a mistrial on the basis that the jury pool was prejudiced by the number of potential jurors who stated that they could not be impartial based on how many counts had been filed in the case. Yarbrough points out that the district court did not admonish the jury pool to disregard the statements made by fellow potential jurors. The State argues that no prejudice occurred where the prosecutor repeatedly reminded the potential jurors that the defendant was presumed innocent and the jury must make a decision based on the evidence presented at trial. The State also notes that Yarbrough did not object, ask for an admonition, or move for a mistrial at the time the allegedly prejudicial comments were made by the potential jurors.
Under K.S.A. 22–3423(l)(c), a district court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the State. Under this statute, the district court must first determine if there was some fundamental failure in the proceeding. If so, the district court must then consider whether it is possible to continue without an injustice. In other words, the district court must decide if the prejudicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the district court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012).
An appellate court reviews a district court's ruling on a motion for mistrial for an abuse of discretion. An abuse of discretion occurs if the judicial decision (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. 293 Kan. at 814 (citing State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011]cert. denied132 S.Ct. 1594 [2012] ).
Yarbrough acknowledges that as a general matter, the fact that individual potential jurors on a panel may have indicated prejudice or bias is not a sufficient ground for a successful challenge to the entire panel. See State v. Cuddy, 22 Kan.App.2d 605, 611–12, 921 P.2d 219 (1996) (relying on State v. Ferguson, Washington & Tucker, 228 Kan. 522, 618 P.2d 1186 [1980], and State v. McCorgary, 224 Kan. 677, 585 P.2d 1024 [1978] ). But Yarbrough argues that Cuddy, Ferguson, and McCorgary are distinguishable because each of those cases involved statements of prejudice by only one potential juror and because the district court admonished the jury pools to disregard the potential juror's remarks. In contrast, at least four potential jurors stated that they could not be fair and impartial based on the number of charges against Yarbrough. Furthermore, the district court did not admonish the jury pool to disregard the potential jurors' remarks.
Although an admonition by the district court would have been appropriate in this case, the State reasonably points out that Yarbrough did not contemporaneously object to the potential jurors' comments, never requested an admonition, and did not move for a mistrial until the following day. More importantly, the record shows that throughout the series of questions related to the potential jurors' ability to remain impartial despite the number and nature of charges against Yarbrough, the prosecutor repeatedly reminded the potential jurors that they were charged with making a decision based solely on the evidence. Under these circumstances, it cannot be said that no reasonable person would have taken the view adopted by the district court. Thus, we conclude the district court did not abuse its discretion in denying Yarbrough's motion for mistrial.
Motion for New Trial
Yarbrough contends that the district court erred in denying his motion for new trial based on ineffective assistance of counsel. He argues that counsel was ineffective for failing to adequately investigate A.G.'s personal, social, and mental health background and for failing to call the medical professional who examined A.G. to testify that A.G. showed no signs of sexual abuse. The State contends that trial counsel's decisions were strategic choices supported by reasonable professional judgment but, in any case, Yarbrough was not prejudiced by counsel's alleged failures.
Jurisdiction
Although the issue is not raised by either party, we will first examine whether this court has jurisdiction to consider Yarbrough's claims of ineffective assistance of counsel. Whether jurisdiction exists is a question of law over which an appellate court exercises unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P .3d 1105 (2009). An appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, the appellate court must dismiss the appeal. See State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352–53, 241 P.3d 45 (2010).
The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. Ellmaker, 289 Kan. at 1148. Furthermore, if the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
Under K.S.A.2012 Supp. 22–3501, a criminal defendant has 14 days after the verdict to file a motion for new trial when that motion is not based on newly discovered evidence. Within that 14–day period, a district court may extend the deadline. Otherwise, the deadline is not discretionary. See State v. Torrance, 22 Kan.App.2d 721, 729, 922 P.2d 1109 (1996). Here, the verdict was rendered on September 8, 2011. Yarbrough's first motion for new trial was filed on October 20, 2011. At the hearing on that motion, Yarbrough raised claims of ineffective assistance of counsel. He was appointed new counsel, who filed a second motion for new trial on February 2, 2012. Both motions were filed beyond the 14–day time limit of K.S.A.2012 Supp. 22–3501, and the record does not indicate that Yarbrough requested or that the district court granted an extension within the 14–day period. Thus, both motions were untimely.
Kansas caselaw is inconsistent with respect to a court's jurisdiction over an untimely motion for new trial based on ineffective assistance of counsel. In some cases, Kansas appellate courts have held that a district court lacks jurisdiction over such a motion, and thus an appellate court cannot acquire jurisdiction over the matter on appeal. In State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980), the defendant filed a timely motion for new trial, which was denied, and the case was appealed. About a year later, while the case was pending appeal, the defendant filed a second motion for new trial based in part on ineffective assistance of counsel, which the district court denied without holding an evidentiary hearing. 228 Kan. at 414. On appeal, our Supreme Court refused to consider the district court's denial of the defendant's second motion for new trial with regard to his ineffective assistance of counsel claim because that issue was not timely raised before the district court. 228 Kan. at 422–23.
In State v. Lee, 45 Kan.App.2d 1001, 257 P.3d 799 (2011), rev. denied 293 Kan. –––– (2012), the defendant filed an untimely pro se motion for new trial based in part on ineffective assistance of counsel. Defense counsel also filed a separate motion for new trial. At sentencing, the district court heard arguments and then denied counsel's motion for new trial. Counsel stated that the defendant had filed a pro se motion, which counsel believed he was ethically prohibited from arguing because of allegations against himself, but that the defendant did not wish to make an oral argument on the pro se motion. The district court never explicitly ruled on the pro se motion. On appeal, this court held that the district court lacked jurisdiction over the defendant's pro se motion because it was not timely filed, and accordingly this court did not acquire jurisdiction over the matter on appeal. 45 Kan.App.2d at 1020–22. See also State v. Yost, No. 104,183, 2011 WL 6382751, at *5 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. –––– (2013) (district court lacked jurisdiction to rule on defendant's untimely motion for new trial based on ineffective assistance of counsel and this court lacked jurisdiction on appeal).
But in other cases, Kansas appellate courts have considered the merits of a defendant's untimely motion for new trial based on ineffective assistance of counsel. In State v. Kingsley, 252 Kan. 761, 851 P.2d 370 (1993), the defendant made an untimely pro se motion for new trial based on ineffective assistance of counsel and made a fairly lengthy presentation of his motion to the district court. The district court denied the motion on its merits and made no mention of its untimeliness. On appeal, the defendant did not contend that his trial counsel was ineffective but argued that the district court erred in denying his motion without appointing a new counsel to represent him. Our Supreme Court appeared to agree with the State that the defendant's claims were “ ‘more properly viewed as a postconviction motion’ “ and found that before counsel need be appointed, the district court must scrutinize the motion for a “ ‘realistic basis' “ for a new trial. 252 Kan. at 764–67. Based on the record on appeal, our Supreme Court found that the defendant's motion contained no “ ‘realistic basis' “ for a new trial and thus the district court did not err in failing to appoint counsel. Our Supreme Court also noted that the motion was untimely. 252 Kan. at 767.
In State v. Kirby, 272 Kan. 1170, 39 P.3d 1 (2002), defense counsel filed a timely motion for new trial. The defendant later filed an untimely pro se amendment to the motion for new trial, adding allegations of ineffective assistance of counsel. The motions were denied after a nonevidentiary hearing. Relying on Kingsley, our Supreme Court found that it could construe the defendant's untimely pro se pleading as a postconviction motion. Our Supreme Court proceeded to address the merits of the defendant's claims that the district court had erred in denying his pro se motion for new trial. 272 Kan. at 1192–96. See also State v. Smith, 27 Kan.App.2d 152, 152–53, 999 P.2d 280 (2000) (appellate court would construe defendant's untimely motion for new trial alleging ineffective assistance of counsel as K.S.A. 60–1501 motion and thus appellate court had jurisdiction over the subject matter on appeal).
This court recently addressed this issue in State v. Reed, No. 106,807, 2013 WL 451900 (Kan.App.2013) (unpublished opinion), petition for rev. filed March 1, 2013, cross-petition for rev. filed March 4, 2013. In Reed, the defendant filed three motions for new trial. The first motion was timely and alleged insufficiency of the evidence. The second motion was untimely and alleged various trial errors. The third motion also was untimely and raised for the first time a claim of ineffective assistance of counsel. The district court noted that the third motion was untimely but treated it as a motion for postconviction relief similar to a K.S.A. 60–1507 motion. The district court ultimately denied the motion after holding an evidentiary hearing. 2013 WL 451900, at *3.
On appeal, the State challenged the district court's jurisdiction to hear the defendant's claims of ineffective assistance of counsel because those claims were first raised in an untimely motion for new trial. 2013 WL 451900, at *4. The Reed court found Myrick and Lee to be distinguishable on the basis that in each of those cases, the district court never considered the merits of the defendants' respective ineffective assistance of counsel claims. But in Kingsley and Kirby, as in Reed, the district court did consider the merits of the defendants' ineffective assistance of counsel claims despite the fact that those claims were raised in untimely motions for new trial. Reed, 2013 WL 451900, at *5. Based on the authority of Kingsley and Kirby, as well as appellate courts' general authority to address claims of ineffective assistance of counsel for the first time on appeal if the record is sufficiently complete (see State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 [2000] ), the Reed court found that it had jurisdiction and could consider the merits of the defendant's ineffective assistance of counsel claims even though they were not timely raised before the district court. Reed, 2013 WL 451900, at *6.
Although there is conflicting authority, it appears that under Kirby, the most recent Supreme Court case addressing the issue, an untimely motion for new trial based on ineffective assistance of counsel may be construed as a motion for postconviction relief. In such cases, the district court has jurisdiction over the merits of the claim, and an appellate court likewise has jurisdiction on appeal. Furthermore, since the district court held an evidentiary hearing on the motion, the record is sufficiently complete, and this court may appropriately address Yarbrough's claims. Thus, we conclude this court has jurisdiction, and we will address Yarbrough's claims of ineffective assistance of counsel.
Merits of the claim
Turning to the merits, an appellate court reviews a district court's decision on a motion for new trial for abuse of discretion. State v. Fulton, 292 Kan. 642, 648, 256 P.3d 838 (2011). As previously stated, a judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would take the view adopted by the district court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. Ward, 292 Kan. at 550.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). An appellate court reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). If the district court made either an error of law or an error of fact in determining that Yarbrough did not receive ineffective assistance of counsel, then it necessarily abused its discretion in denying his motion for new trial on that basis.
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris, 288 Kan. at 416. If counsel had made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. Strategic decisions made after a less than comprehensive investigation are reasonable exactly to the extent a reasonable professional judgment supports the limitations on the investigation. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009).
To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making such a determination, the reviewing court must consider all the evidence before the judge or jury. Harris, 288 Kan. at 416.
Yarbrough first contends that counsel's performance was deficient because the limitations on counsel's investigation into A.G.'s personal, social, and mental health background were unreasonable. According to Yarbrough, counsel's failure to obtain a psychological evaluation or otherwise challenge A.G.'s credibility based on her personal, social, and mental health background could not be dismissed as trial strategy. Yarbrough argues that he was prejudiced by counsel's failure to undertake an adequate investigation of A.G.'s background because the case hinged on A.G.'s credibility and counsel could have found information with which to impeach her.
The district court found that counsel had conducted a limited investigation into A.G.'s background by questioning Yarbrough and Gracie, with whom A.G. spent a substantial amount of time, about whether A.G. had any mental or behavioral issues. The district court found that counsel's failure to conduct further investigation was a reasonable limitation because the initial investigation revealed no basis for conducting further inquiries or requesting a psychological evaluation of A.G. Based on counsel's testimony at the evidentiary hearing, substantial competent evidence supported the district court's finding that counsel conducted a limited investigation into A.G.'s background and found nothing that would help the defense or warrant further investigation, which in turn supported the district court's legal conclusion that counsel's performance was not constitutionally deficient.
But even assuming for the sake of argument that counsel's limited investigation into A.G.'s background was professionally unreasonable and thus his performance was constitutionally deficient, Yarbrough still must show that he was prejudiced by counsel's failure. Yarbrough argues only that further investigation “could have” turned up information to impeach A.G.—not that there was in fact, nor that there was reasonably likely to be, any such information. Jasmine and A.G. both testified at trial that A.G. did well in school and had no attendance or behavioral issues. Gracie acknowledged that other than A.G.'s adolescent attitude issues, she and Yarbrough did not have any problems with A.G. According to counsel's testimony at the evidentiary hearing, neither Yarbrough nor Gracie gave him any information suggesting that A.G. had any mental or behavioral issues. Under these circumstances, Yarbrough has failed to show that there is a reasonable probability that further investigation would have revealed impeachable information about A.G., which in turn could have influenced the outcome of trial.
Next, Yarbrough argues that counsel's failure to call the medical professional who examined A.G. to testify that A.G. showed no signs of sexual abuse could not be dismissed as trial strategy. As to prejudice, Yarbrough again notes that the case hinged on A.G.'s credibility and argues that the medical exam results showing no signs of sexual abuse would have impeached A.G.'s version of events.
The district court found that counsel's decision not to call the medical professional who examined A.G. to testify as to her normal medical exam results was not unreasonable in light of the evidence that the last alleged sexual contact occurred over 6 months before the exam and thus normal results would have been expected. The district court found that the testimony would have been of limited value to the defense and counsel's decision not to present that testimony was a matter of trial strategy. In addition to trial testimony about the lapse of time between the last alleged sexual contact and the medical exam, both counsel and the defense expert testified at the evidentiary hearing as to their understanding that normal medical exam results cannot necessarily exclude sexual abuse. The defense expert even acknowledged her belief that testimony regarding the prevalence of normal exam results in children who had in fact been sexually abused would be admissible. Substantial competent evidence supported the district court's finding that the testimony would have been of limited value, which in turn supported the district court's legal conclusion that counsel's decision not to present the testimony was trial strategy and was not constitutionally deficient.
Yarbrough challenges the district court's conclusion by arguing that counsel's failure to present testimony of A.G.'s normal medical exam results was based on an inadequate investigation into the statistic that “ '90–95% of children who have been sexually abused have normal examinations.' “ This argument is not persuasive. Counsel testified that he did not examine the basis for the 90–95% figure but stated that he viewed the statistic as simply another way of saying that it was not uncommon for victims of sexual assault to show no signs of physical trauma. It is apparent from the record that counsel's decision was based on a desire to keep that general information, which the defense expert agreed was correct, from the jury. Counsel's failure to investigate the 90–95% figure does not undermine the district court's factual findings regarding the limited value of A.G.'s normal medical exam results nor its legal conclusion that counsel's failure to present those results was not constitutionally deficient.
In summary, the district court did not make any factual or legal errors in denying Yarbrough's claims of ineffective assistance of counsel. Furthermore, it cannot be said that no reasonable person would have taken the view adopted by the district court. Therefore, the district court did not abuse its discretion in denying Yarbrough's motion for new trial based on ineffective assistance of counsel.
Motion for Durational Departure
Yarbrough argues that his lack of criminal history and his advanced age constituted substantial and compelling reasons to depart and therefore the district court erred in denying his motion for a downward durational departure. He notes that because of his age—56 at the time of sentencing—his Jessica's Law sentence of life imprisonment with parole eligibility after a mandatory minimum of 25 years is essentially a life sentence without the possibility of parole. The State contends that the district court appropriately exercised its discretion in denying Yarbrough's motion.
K.S.A. 21–4643(d) authorizes a sentencing judge to depart from the life sentence and mandatory minimum of Jessica's Law: “[T]he sentencing judge shall impose the mandatory minimum term of imprisonment ... unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” Where the district court denies a departure under K.S.A. 21–4643(d), an appellate court will not reverse the denial unless the appellate court determines that the district court's findings of fact are unsupported by substantial competent evidence or that the district court abused its discretion in considering the mitigating and/or aggravating circumstances. State v. Floyd, 291 Kan. 859, 860–62, 249 P.3d 431 (2011).
A defendant's lack of criminal history and a defendant's age at the time of the crime are both mitigating circumstances contained in the nonexclusive list of mitigating circumstances set forth in K.S.A. 21–4643(d). But as the State points out, Yarbrough did not raise his lack of criminal history as a mitigating circumstance at the time he made his departure motion. In any case, it is clear that the district court found that a downward departure was not warranted in light of the evidence showing that Yarbrough engaged in a continuing course of sexual abuse of his step-granddaughter over a substantial period of time. Although the defendant's age at the time the crime is committed is a statutory mitigating circumstance under K.S.A. 21–4643(d), our Supreme Court has specifically rejected the argument that the length of a sentence in relation to a defendant's probable lifespan can constitute a substantial and compelling reason for downward departure from a Jessica's Law sentence. State v. Spencer, 291 Kan. 796, 813, 248 P.3d 256 (2011). We conclude the district court did not abuse its discretion in denying Yarbrough's motion for a downward durational departure.
Mandatory Minimum of 25 Years
Finally, Yarbrough argues that the district court erred in sentencing him to life imprisonment with parole eligibility after a mandatory minimum of 25 years under K.S.A. 22–3717(b)(5) and K.S.A. 21–4643(a)(1)—part of the Jessica's Law sentencing scheme—instead of parole eligibility after a mandatory minimum of 20 years under K.S.A. 22–3717(b)(2)—part of the general sentencing scheme. He claims that because both sentencing schemes apply to his offenses, the rule of lenity requires that he receive the lesser sentence under K.S.A. 22–3717(b)(2). The State contends that the rule of lenity is inapplicable because there is no reasonable doubt as to the meaning of the sentencing schemes and that Yarbrough is plainly subject to the requirement under K.S.A. 22–3717(b)(5) and K.S.A. 21–4643(a)(1) that he serve a mandatory minimum of 25 years before he is eligible for parole.
As both parties acknowledge, our Supreme Court decided this exact issue adversely to Yarbrough's position in State v. Cash, 293 Kan. 326, 328–29, 263 P.3d 786 (2011), and State v. Chavez, 292 Kan. 464, 466–69, 254 P.3d 539 (2011). In Chavez, our Supreme Court ruled that K.S.A. 22–3717(b)(5) and K.S.A. 21–4643(a)(1) are the more specific sentencing statutes that control over the general provisions of K.S.A. 22–3717(b)(2). 292 Kan. at 469. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). There is no indication that our Supreme Court is departing from its precedent in this area. Thus, the district court did not err in sentencing Yarbrough to life imprisonment with parole eligibility after a mandatory minimum of 25 years under K.S.A. 22–3717(b)(5) and K.S.A. 21–4643(a)(1).
Affirmed.