Opinion
No. 111061.
05-29-2015
STATE of Kansas, Appellee, v. Curtis L. ANDERSON, Jr., Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Katie Devlin, assistant district attorney, and Derek L. Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Katie Devlin, assistant district attorney, and Derek L. Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN, and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is the direct appeal of Curtis L. Anderson, Jr., of his conviction for one count of aggravated indecent liberties with a child under the age of 14, an off-grid sex offense under Jessica's Law. He received a life sentence without the possibility of parole for 25 years. He contends the conviction should be overturned because of prosecutorial misconduct during closing argument and insufficient evidence. He also raises issues of an incorrect journal entry and an abuse of discretion by the trial court when it denied his sentencing departure motion. We see no reason to set aside his conviction.
A day of swimming leads to a criminal act.
In June 2012, 11–year–old D.W. went to the swim park with her mother Monique Washington, her cousin Tiffany, and the appellant, Anderson. Washington and Anderson had been dating since D.W. was 2. Anderson acted like a father towards D.W. and they got along well.
After going to the swim park, all four went to Tiffany's house and watched movies in the living room until they fell asleep. Tiffany eventually moved from one of the two couches in the living room to her bedroom. Washington and D.W. initially fell asleep on a mattress Washington had brought into the living room, then D.W. moved to the empty couch while Anderson continued sleeping on the second couch.
At some point, Washington woke up and saw Anderson kneeling by D.W., who was asleep on the couch. Accepting Anderson's explanation that he was getting some water, Washington dozed back off.
As D.W. was sleeping, she felt a hand go under her clothing and touch her “vagina area.” When D.W. sat up, Anderson removed his hand and pretended to be asleep on the mattress. D.W. went to Tiffany's room and told her what had happened. Meanwhile, Washington awoke again and noticed that D.W. was no longer on the couch. She searched the house and found D.W. in Tiffany's bed, crying. When asked what was wrong, D.W. said that Anderson had his hands in her pants. Washington confronted Anderson and then called police.
At approximately 2:27 a.m., patrol officer Sarah Lopez arrived at the address. Lopez observed that Washington was upset at Anderson and yelling at him. Washington told Lopez that D.W. had said that Anderson stuck his hand down her pants “in her private area.” When Lopez asked D.W. what happened, D.W. told Lopez that Anderson had stuck his hand “in her private area” and she had awoken to find him standing by her. Later that morning, D.W. told Detective Jackie Lynn what happened.
Two days after the incident, Cheryl Smith of Sunflower House, a children's advocacy center in Kansas City, interviewed D.W. The interview was recorded and the tape was played at trial. (The videotape is not included in the record on appeal.) D.W. told Smith, “she was awakened by hands being down-on top of and down her pants and rubbing on her privates” and when she opened her eyes, she observed Anderson lying down beside Washington.
The State charged Anderson with aggravated indecent liberties with a child under 14 years of age in violation of K.S.A.2011 Supp. 21–5506(b)(3)(A).
At the jury trial, the State presented evidence as summarized above. Anderson did not testify in his own defense. The jury found Anderson guilty as charged.
The district court denied Anderson's motion for downward durational departure and sentenced him to life without the possibility of parole for 25 years.
We analyze the counsel misconduct claim in two steps.
Anderson claims the prosecutor committed misconduct during the State's closing argument by improperly vouching for D.W.
We examine such questions in two steps. First, we must determine whether the prosecutor's comments were outside the wide latitude afforded prosecutors in discussing the evidence. Second, if we find misconduct we must then 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). Anderson's argument does not compel us to go past the first step.
Fundamentally, prosecutors may not introduce or comment on facts outside the evidence. State v. McCaslin, 291 Kan. 697, 722, 245 P.3d 1030 (2011). A prosecutor should not offer a personal opinion on his or her own witnesses' credibility. Such an opinion is unsworn, unchecked testimony, not commentary on the evidence of the case. State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012). However, a prosecutor has considerable latitude in discussing the evidence and drawing reasonable inferences based on the evidence. McCaslin, 291 Kan. at 722. In addition, prosecutors also are given a certain amount of leeway when responding to defense counsel statements or arguments. State v. Peppers, 294 Kan. 377, 394, 276 P.3d 148 (2012). And this court considers the alleged improper statements in the context of the entire closing argument and in conjunction with the instructions given at trial. Burnett, 293 Kan. at 851.
Anderson's complaint centers on comments made by the prosecutor in rebuttal.
“Now, what you've heard is from multiple people who told you that they responded to that house at 2:30 in the morning. Now, ask yourself this because you're given that instruction in instruction number four to use your common sense. This was an immediate disclosure. What child who makes this up wakes up in the middle of the night and just all of a sudden decides to make this disclosure and call the police out? Does that meet your common sense test or does that lend credibility to what she's saying?
“Why? Why would she make it up? She was living with her mom at the time; you've heard she's now not living with her mom. What does she gain out of this? What does she gain? She gains nothing out of this. Her life has been disrupted.
“What you have, the evidence that you have is a little girl who did the right thing. Someone hurt her, she went and took action, the police were called, a report was made.... do? ...
“What does she have to gain by making this up? And by the way, think about this, if somebody's making a story up, do they say oh, it was just a touching or does she say something like he inserted his finger in me or he grabbed my breasts or ... he raped me?
I mean if you're going to make something up, you go the distance, right? If we're trying to get somebody in trouble, we say the worst possible thing that we could say, right?
“Common sense and experience, ladies and gentlemen, use that common sense, look at those circumstances, listen to the testimony ... and find [Anderson] guilty as charged.” (Emphasis added.)
From the record, it is clear that the prosecutor's remarks were made in response to Anderson's closing argument where he questioned what the jury learned about D.W. and the thoroughness of Detective Lynn's investigation. Specifically, Anderson argued, “You don't know anything about her, things that Detective Lynn could have investigated to find out who is this little girl, does she have a reputation in her school of being honest or dishonest? ” (Emphasis added.) The State promptly objected, after which the district court stated that, “[a]rgument is not evidence.”
While the State initially did not comment on D.W.'s credibility, Anderson's reference to D.W.'s honesty in his closing argument clearly opened the door for the State to argue the jury should use its common sense to find D.W.'s testimony more credible or believable based on the evidence. See Peppers, 294 Kan. at 394.
Anderson takes issue with the prosecutor's repeated “imploring” of the jury to use its “common sense.” However, the Kansas Supreme Court has held it is not error for the prosecutor to mention common sense in the closing argument or to inform the jury it could use common sense when reaching its decision. See State v. Mitchell, 269 Kan. 349, 360, 7 P.3d 1135 (2000). Indeed, Instruction No. 4 reads, in part, “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” (Emphasis added.)
We do not see these comments as vouching for the credibility of the State's witness. Nor do they appear to be the product of ill will. The words do not go beyond the bounds of closing arguments and we will not go on to the second step of the analysis. There is no reversible error here.
Using the test we must use, the evidence is sufficient to support Anderson's conviction.
When asked to review the evidence for sufficiency, we look at all the evidence in a light most favorable to the prosecution and determine 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). Moreover, in determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find beyond a reasonable doubt that a guilty verdict would be reversed. State v.. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
To apply this standard, we consider the evidence as it relates to the elements of aggravated indecent liberties with a child less than 14 years of age. To prove the charge, the State had to show that (1) Anderson lewdly fondled or touched D.W.; (2) he engaged in this conduct with the intent to arouse or satisfy the sexual desires of either the child or the offender, or both; (3) D.W. was under the age of 14 at the time of the act; and (4) the conduct took place in Wyandotte County on or about the date alleged in the criminal complaint. See K.S.A.2011 Supp. 21–5506(b)(3)(A).
Anderson points to the evidence concerning the first two elements of the crime, the act of lewdly fondling or touching and the specific intent to arouse or satisfy the sexual desires of D.W., his sexual desires, or both.
A brief review of some points of law is helpful here.
A touch is prohibited under K.S.A.2011 Supp. 21–5506(b)(3)(A) if it meets the following common meaning of the term lewd: if the touch is ‘ “sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; [or] indecent, obscene, or salacious.’ [Citation omitted.]” State v. Reed, 300 Kan. 494, 500, 332 P.3d 172 (2014). In considering whether a touch is lewd, a jury should consider whether the touch tends to undermine the morals of a child and is clearly so offensive as to outrage the moral senses of a reasonable person. Reed, 300 Kan. at 500–01.
In examining the intent element of the offense, proof of actual arousal or satisfaction of the sexual desires of either the child or offender is not necessary to support a conviction for indecent liberties with a child under 14 years of age; instead, proof of a lewd touching with the intent to arouse sexual desires is sufficient. And it is well established that the State can prove specific intent with circumstantial evidence. Reed, 300 Kan. at 502.
Anderson argues that “a more in depth investigation and fact gathering” was necessary to prove the crime; Anderson is simply asking this court to reweigh the evidence and the credibility of the victim. This we will not do. See Hall, 292 Kan. at 859.
When the evidence in this case is viewed in the light most favorable to the State, the State presented sufficient evidence that Anderson lewdly fondled or touched D.W. Accepting D.W.'s testimony without any reweighing, she established that Anderson was touching her under her clothing on her “vagina area.” Moreover, Washington testified that D.W. told her that Anderson had his hands in her pants. D.W. told Detective Lynn that she saw Anderson's face while he was touching her “private area.” And in her interview with the social worker at Sunflower House, D.W. said Anderson's hands were “rubbing on her privates.”
A rational factfinder could have found that Anderson's touching and rubbing of D.W.'s genitalia tended to undermine the morals of D.W. and to outrage the moral sense of a reasonable person. And the touching and rubbing can be characterized as unchaste, licentious, indecent, obscene, or salacious. See Reed, 300 Kan. at 500–01.
Also, circumstantial evidence showed Anderson's intent to arouse or satisfy sexual desires. He intentionally placed and rubbed his hand on a child's genitalia under her clothing. See Reed, 300 Kan. at 502 ; State v. Clark, 298 Kan. 843, 849, 317 P.3d 776 (2014) ; State v. Clark, 11 Kan.App.2d 586, 592, 730 P.2d 1104 (1986). And there is evidence that D.W., though half asleep, became aware of what was happening. The Kansas Supreme Court has explained that “[t]o arouse or gratify the offender's sexual desires, it is necessary for only the offender to be aware of what is happening. To arouse or gratify the sexual desires of another, the other person must be aware of what is happening.” State v. Bryan, 281 Kan. 157, 160–61, 130 P.3d 85 (2006).
A rational factfinder could conclude beyond a reasonable doubt that Anderson's actions, coupled with the circumstantial evidence surrounding the incident, was sufficient to demonstrate his intent to arouse or satisfy his own sexual desires, the sexual desires of D .W., or both. See K.S.A.2011 Supp. 21–5506(b)(3)(A) ; Reed, 300 Kan. at 502.
There was sufficient evidence to support the conviction for aggravated indecent liberties.
We examine the denial of the motion to depart from the sentencing guidelines.
Anderson argues the district court, in denying his departure motion under Jessica's Law, abused its discretion when considering the mitigating circumstances. Judicial discretion is abused if the judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). If no reasonable person would have taken the action of the district court, the action constitutes an abuse of discretion. Floyd, 296 Kan. at 687. Anderson, as the party asserting the district court abused its discretion, bears the burden of showing such abuse. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
At his sentencing, Anderson sought a downward durational departure from a hard25 life sentence to a grid box sentence (3–H) prison term of 61, 66, or 71 months. The record indicates Anderson did not testify at sentencing. His counsel asserted two factors that, in his view, favored a reduced sentence: (1) Anderson had no significant criminal history; his criminal history score of H was based on four misdemeanor convictions; and (2) the crime against D.W. was only a single incident that caused a lesser degree of harm to D .W. when compared to other Jessica Law cases.
Under the statute controlling Anderson's sentence, a first-time offender who is 18 years or older and convicted of aggravated indecent liberties with a child under the age of 14 must be sentenced to a mandatory minimum life sentence of 25 years unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. K.S.A.2011 Supp. 21–6627(d)(1). Mitigating circumstances include, but are not limited to: (1) the defendant has no significant criminal history; (2) the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) the victim was an accomplice and the defendant's participation was relatively minor; (4) the defendant acted under extreme distress or substantial domination of another person; (5) the defendant's capacity to appreciate the criminality of his or her conduct or to conform such defendant's conduct to the requirements of the law was substantially impaired; and (6) the defendant's age at the time of the crime. K.S.A.2011 Supp. 21–6627(d)(2).
In determining if substantial and compelling reasons for departure exist, a “substantial” mitigating factor is something that is real and not imagined or ephemeral, while “compelling” implies that the facts of the case force the district court to leave the status quo or go beyond what is ordinary. Floyd, 296 Kan. at 688. In addition, mitigating circumstances do not necessarily equal substantial and compelling reasons. State v. Jolly, 301 Kan. 313, 327, 342 P.3d 935 (2015).
In a similar case, the Kansas Supreme Court found no abuse of discretion when the sentencing court concluded that the factors Anderson has argued did not warrant a departure sentence. In State v. Trevino, 290 Kan. 317, 323, 227 P.3d 951(2010), the court affirmed the denial of a departure motion where the defendant had little criminal history and claimed a lesser-degree of harm inflicted upon the victim than in the usual aggravated indecent liberties case.
Anderson committed aggravated indecent liberties on the 11–year–old daughter of a woman he had been in a relationship with for 9 years. The record reflects that the district court, in denying the departure motion, reviewed Anderson's motion and his two asserted mitigating factors. Then, without weighing the mitigating factors against any aggravating factors, the district court found that in considering the facts of the case Anderson's arguments were not “viable and justifiable reasons” to support a downward departure. In doing so, the district court agreed with Anderson that the nature of the crime was not as horrific as some crimes such as rape, but pointed out that D.W. was very young and the crime was horrific to her. The district court also pointed to Anderson's lack of remorse or taking responsibility for his actions and that Anderson had a relationship of trust with D.W. in that he treated her like his daughter.
Given the nature of Anderson's crime, with him being in a position of trust with the young victim in his case, we cannot say that no reasonable person would agree with the district court's decision to impose the presumptive sentence. See Florentin, 297 Kan. 594, 602, 303 P.3d 263 (2013). Anderson has not met his burden to show us that the district court abused its discretion in denying his departure motion.
We review two final issues.
In his brief, Anderson points out that the journal entry erroneously reflects that the district court sentenced him to lifetime postrelease supervision instead of parole. The State concedes this is erroneous. We have since been advised, via a motion filed by the State, that a corrected journal entry has already been filed. Therefore, we will not address the issue.
Finally, Anderson contends the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it enhanced his sentence, based upon his criminal history, without first requiring his prior convictions be alleged in the complaint and be proven beyond a reasonable doubt. He concedes that the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), but raises it to preserve federal review.
Our Supreme Court recently reaffirmed Ivory in State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Since there is no indication our Supreme Court is departing from Ivory, we are compelled to conclude that the district court did not violate Apprendi in sentencing Anderson.
Affirmed.