Opinion
110,338.
11-14-2014
STATE of Kansas, Appellee, v. Jealani ALLEY, Appellant.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jealani Alley appeals from his conviction and sentence after a jury convicted him of aggravated robbery. On appeal, Alley raises three issues: (1) insufficient evidence, (2) prosecutorial misconduct, and (3) error by the district court in denying his motion for a downward sentencing departure. Neither of Alley's first two arguments has merit, and this court does not have jurisdiction to consider his third argument. Accordingly, we affirm in part and dismiss in part.
Facts
Sometime between midnight and 1 a.m. on October 21, 2011, Donald Silverson, who was working as a taxi driver, was dispatched to 1449 North Volutsia in Wichita. When Silverson arrived at the location, a man came out of the house and told Silverson he had another rider coming. Approximately 30 seconds later, another man with a black and green bandanna covering his face came to the driver's door with a gun and said he was there to rob Silverson. He then hit Silverson in the face with the butt of the gun. Silverson thought he had been shot because his glasses flew off his face.
Silverson tried to drive away, but the man grabbed onto the car. Silverson drove about a half a block before the man grabbed the steering wheel and caused the vehicle to jump the curb. The man ran away but left the gun, which was wrapped in a bandanna. Silverson called his dispatcher, who called 911.
At approximately 1 a.m., Wichita Police Officer Stacy Woodson was dispatched to the location of a possible shooting after the cab company informed the police that one of the company's drivers had called to say he had been shot. Less than 2 to 3 minutes after receiving the call, Officer Woodson arrived at the location reported by the cab company, but there was no one there. She drove west until she saw a yellow cab. A man whose face was bleeding was standing outside the cab. The man identified himself as Silverson.
In her report, Officer Woodson indicated that Silverson described the person who tried to rob him as a being a 5–foot 9–inch, skinny, black male. Silverson told Officer Woodson that he tried to drive away but the person grabbed the steering wheel and forced the car up and over the curb. There was a physical altercation during which, Silverson stated, he was either shot or punched in the face. Silverson told Officer Woodson that before the person who tried to rob him fled, Silverson took the gun from the person and tried to shoot him with it, but the gun did not work. At that point, Silverson said the person let go of the vehicle and ran back south on Volutsia. The paramedics arrived to assist Silverson, so Officer Woodson's interview with him ended. Silverson was transported to the hospital, where he required stitches above his eye.
Officer Woodson, meanwhile, went back to the cab and found Silverson's glasses, which were broken. She also found what she believed to be a paintball gun wrapped in a bandanna on top of the vehicle.
The address to which the taxi had been called was an abandoned residence. But the police were able to determine that the phone number used to call for the taxi was registered to Erin Gonzalez, who was listed in the police database as living at 1443 North Volutsia. Officers went to that address and knocked on the door. A female who identified herself as Gonzalez answered the front door.
Gonzalez initially told the officers that her cell phone was not at the house because she had loaned it to a girlfriend earlier in the evening. She also initially stated that the only people in the house were her children and her roommate. Eventually, however, Gonzalez stated that her boyfriend was sleeping in her bedroom. Officers went to the bedroom and found her boyfriend, who was identified as Alley, lying in the bed. He was wearing a white tank top and a pair of underpants or undershorts.
At that point, Gonzalez admitted that the cell phone the police had asked her about was on the nightstand, and she handed the phone to an officer. Sergeant Jason Pfeifer spoke to Gonzalez, who apologized for her earlier statements and said she just did not want to get involved. She stated that her boyfriend came over at 9:30 that night and they went to bed at 10 p.m. But she stated she was a heavy sleeper, so she would not have known if Alley had stayed in bed.
Sergeant Jason Stephens was present in Gonzalez' bedroom when they found Alley. He noticed a black bandanna and a black hoodie on a chair in the room. There was a pair of black sweatpants on the floor next to the chair. They were the only items of male clothing in the room. When Sergeant Pfeifer asked Gonzalez if the male clothing in her bedroom was Alley's, she stated that she assumed it was. Gonzalez told Sergeant Pfeifer that Alley was wearing a black hoodie and gray pants when he arrived at her house.
When officers asked Alley if the male clothing was his, he stated that the sweatpants were his but that the hoodie and the bandanna were not. Officers collected the bandanna and hoodie. Sergeant Pfeifer did not notice any blood, dirt, or holes in the sweatpants or hoodie.
Sergeant Stephens had some other officers put together a sequential photo array lineup—which he described as being at least six photographs obtained from sources such as driver's license photos. Officers showed the lineup to Silverson, but Silverson was unable to make any kind of positive identification. Silverson provided the police with a DNA sample.
On January 5, 2012, Gonzalez contacted the police and told a different story. She stated that around 5 p.m. on the day of the attempted robbery, Alley was outside her house with his three friends, Andrue Case, Joseph Irara, and Jawan Nixon–Stewart. They were there approximately 10 to 15 minutes before they left. Alley came back alone around 9 p.m., wearing a black hooded sweatshirt and black sweatpants. When Gonzalez went to sleep at 10 p.m. Alley was with her in bed. At approximately midnight, Gonzalez woke up as Alley was getting into bed. At that time he had on only a tank top and boxer shorts. His hands were cold and wet. She asked him why his hands were cold and wet, and he responded it was because he had just washed blood off his hands. He told her that he had beaten up a cab driver after attempting to rob him. Alley told Gonzalez that if the police came, she must tell them that he was with her all night.
After Gonzalez provided this new information, Detective Thomas Krausch obtained a search warrant for a DNA sample from Alley. He also obtained voluntary waivers to collect DNA samples from Case, Irara, and Nixon–Stewart.
On February 17, 2012, Alley was charged with one count of attempted aggravated robbery under K.S.A.2011 Supp. 21–5420(b)(1) or, in the alternative, under K.S.A.2011 Supp. 21–5420(b)(2). His codefendant Irara was charged in the same complaint.
The district court held a 3–day jury trial. At trial, Silverson could not identify Alley as the person who tried to rob him. Several officers from the Wichita Police Department testified about their involvement in the case. Gonzalez also testified about Alley committing the robbery, including the fact that she changed her story to the police.
Case testified for the State. At the time of his testimony, Case was incarcerated at a juvenile correctional facility after pleading guilty to attempted aggravated robbery. He testified that he and Alley and two other friends decided to rob a cab driver to get some money. Case broke into the abandoned house that was the address to which they called the taxi and waited until the taxi arrived. He then walked out the front door and down to the taxi. He asked the driver to wait because there was another passenger. Case testified that after he talked to the driver, Alley came up to the car with the paintball gun. He told the driver to give him his money, but the driver did not. When the driver started to drive away, Alley jumped into the vehicle. After that, Case ran.
The doctor who tested the DNA from the bandanna found at Gonzalez' house testified that a blood stain on the bandanna matched the DNA of Silverson. Another DNA sample taken from the back side of the bandanna was a mixture of three people, one of whom was Alley. Neither of the other two DNA samples found on the bandanna belonged to Silverson, Nixon–Stewart, Irara, or Case.
Alley's defense at trial was that he had planned the robbery, but before the robbery occurred, he withdrew, quit, and did not participate in the robbery. Alley testified that he gave someone else his bandanna and the paintball gun and that person completed the robbery.
After hearing all of the evidence described above, the jury found Alley guilty on both of the counts charged. The district court sentenced Alley under count 1 to 31 months' imprisonment. Count 2 was dismissed “pursuant to double jeopardy.”
Analysis
Sufficiency of the evidence
Alley argues that the State presented alternative means of how he could have committed the robbery—as a principal and as an aider and abettor—and because the State failed to present sufficient evidence that Alley committed the crime as a principal actor, this court must vacate his conviction.
Because Alley raises the issue as sufficiency of the evidence, the following standard of review applies. When the sufficiency of evidence is challenged in a criminal case, appellate courts review the challenge by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
Alley's argument is flawed for at least two reasons. First, we are not persuaded by Alley's argument that the evidence presented of his role as a principal “was simply not credible to the extent that it was sufficient to prove Mr. Alley acted as a principal beyond a reasonable doubt.” In the standard of review he cited in the page preceding this argument, Alley admitted that appellate courts look at all the evidence in a light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In this case, there was evidence presented from at least two witnesses who testified that Alley acted as the principal and robbed the taxi driver. Contrary to Alley's argument, the physical evidence also supported his conviction as a principal. His DNA and Silverson's DNA were on the bandanna found in Gonzalez' apartment. The fact that the DNA from two other unidentified individuals also was found on the bandanna does not contradict a finding by the jury that Alley acted in the role of a principal. This fact goes to the weight of the evidence, something the jury considers, rather than the legal sufficiency of the evidence. Viewing that evidence in the light most favorable to the prosecution, it was sufficient to prove beyond a reasonable doubt that Alley committed the robbery as a principal.
Even if there were insufficient evidence to prove beyond a reasonable doubt that Alley committed the robbery as a principal, Alley's argument fails for a second reason. Specifically, he does not dispute that there was sufficient evidence to prove beyond a reasonable doubt that Alley aided and abetted commission of the robbery. Instead, he contends that charges as an aider and abetter and as a principal are alternative means; thus, there must be sufficient evidence of both alternative means presented at trial in order to sustain a conviction. In support of this contention, Alley cites State v. Cato–Perry, 48 Kan.App.2d 92, 284 P.3d 363 (2012), rev. granted 299 Kan. –––– (May 29, 2014).
After Alley filed his brief, however, the holding in Cato–Perry was overruled by the decision announced in State v. Betancourt, 299 Kan. 131, 140–41, 322 P.3d 353 (2014). In Betancourt, the Kansas Supreme Court decided that aiding and abetting is not an alternative means for committing a crime, so the State does not have to prove both theories in order for there to be sufficient evidence to support a conviction of one. 299 Kan. at 138–39 ; see also State v. Cato–Perry, 50 Kan.App.2d ––––, Syl. ¶ 1, 332 P.3d 191 (2014). Thus, even if we had found insufficient evidence that Alley had acted as the principal in committing the robbery, his conviction still stands based on the sufficiency of the evidence related to his role as an aider and abettor.
Prosecutorial misconduct
Next, Alley argues that the prosecutor improperly commented on witness credibility during closing argument. Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett 293 Kan. 840, 850, 270 P.3d 1115 (2012). Although Alley did not object to the prosecutor's comments at trial, an appellate court may review a claim of prosecutorial misconduct based on comments that are not evidence, such as comments made during closing argument, even when a contemporaneous objection was not made at the trial level. See State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Alley argues the prosecutor impermissibly commented on the credibility of witnesses during closing argument. Specifically, Alley objects to the following statements:
“Let's talk about the other defense, the claim that this Demarcus Wright came in and took over for the defendant's role.... Is that believable to you?
“Defendant says that Wright took over the gun and the bandanna from the defendant as the cab is literally pulling up to the address where this is supposed to take place. How is it that if Marcus [sic] Wright is there and takes over he has the time to wrap the bandanna and tie it around his face, get this gun, get out from the bushes and get over to the cab as Andrue Case is walking away saying, Hang on, another ride is coming? Is that believable to you?”
Alley contends that the prosecutor then went “on to discuss the credibility of the State's witnesses and then ‘compares and contrasts' the credibility of the State's witnesses with the defendant's testimony.” These are the only statements Alley challenges.
“ ‘Generally, a prosecutor may not offer the jury his or her personal opinion as to the credibility of witnesses. [Citation omitted.] On the other hand, a prosecutor is free to craft an argument that includes reasonable inferences to be drawn from the evidence. [Citation omitted.] That latitude would include explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.’ [Citation omitted.]” State v. Huerta–Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010).
None of the statements about which Alley complains constitute an opinion on witness credibility. The prosecutor simply argued that the State's version of events was more believable based on the evidence presented at trial. This was not an impermissible vouching for a certain witness' credibility. The prosecutor's statements were not outside the wide latitude the prosecutor is allowed when discussing the evidence. Because the prosecutor's comments did not amount to misconduct, this court does not need to determine whether there was plain error. See Burnett, 293 Kan. at 850.
Departure motion
Finally, Alley argues the district court erred in denying his departure motion at sentencing. Alley contends that this is an issue of statutory interpretation subject to unlimited review. But Alley fails to consider K.S.A.2013 Supp. 21–6820(c)(1), which states that an appellate court shall not review any sentence that is within the presumptive sentence for the crime. Alley received a presumptive sentence; therefore, this court lacks jurisdiction to consider the issue on appeal. See State v. Huerta, 291 Kan. 831, 837, 247 P.3d 1043 (2011) (reaffirming that K.S.A.21–4721 [c][1]—now K.S.A.2013 Supp.21–6820 [c] [1]—eliminates appeals of presumptive sentences). Accordingly, we dismiss this particular claim of error based on lack of subject matter jurisdiction.
Affirmed in part and dismissed in part.