Opinion
No. 103,958.
2012-06-29
STATE of Kansas, Appellee, v. Carl BENGSTON, Jr., Appellant.
Appeal from Reno District Court; Richard J. Rome, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Richard J. Rome, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Carl Bengston, Jr., was convicted of two counts of aggravated burglary, one count of felony lewd and lascivious behavior, one count of misdemeanor lewd and lascivious behavior, and one count of misdemeanor theft. In this direct appeal, Bengston claims there was insufficient evidence to convict him of two of the crimes charged; the district court erred in denying his motion to suppress, denying his motion to question jurors, and admitting evidence of his prior convictions; and that cumulative trial errors denied him a fair trial. We find no merit to any of Bengston's claims on appeal and, therefore, affirm his convictions.
Facts
L.P. lived on the second floor of a large house in Hutchinson with her infant son, G.P. The house had been divided into separate apartments. Two apartments were located on the second floor—Apartments 2 and 3. L.P. lived in Apartment 3, and Bengston lived in Apartment 2. L.P. and Bengston were not acquaintances but had contact with each other when they were coming to and from their apartments. Residents could access either apartment by two different stairways leading to the front and back doors of the apartments.
On January 3, 2009, L.P.'s friend, Mary, and her fiance, J.G., came to Hutchinson to visit L.P. at her apartment. At some point during the early evening hours, L.P. and Mary decided to leave the apartment to go to a nearby Dillon's to pick up a few things, and J.G. decided to stay at the apartment and take a nap. J.G. went into L.P.'s bedroom to lie down, and the two women left the apartment, leaving the apartment door unlocked because of J.G. staying behind.
At around 5:30 p.m., J.G. woke from his nap after hearing a noise. He sat up in bed and through the semi-darkness of the apartment saw a naked man facing away from him in the kitchen area of the apartment. Apparently, when J.G. sat up in bed, the naked man realized that another person was in the apartment and immediately thereafter ran out the front door. J.G. only saw the man for a matter of seconds and could only describe him as a white male of average height (around 5'8?) who had dark brown hair and tan lines.
J.G. reported that after the man fled from the apartment, he did not hear the man run down the stairs to the ground floor. Shortly after the man left, J.G. opened the front door and looked outside. J.G. concluded that the man probably went into Apartment 3 (Bengston's apartment), the only place the man could have gone without going down the stairs.
After L.P. and Mary returned from the store, J.G. delayed telling L.P. about seeing a naked man in her apartment. Once she was told about the incident, L.P. immediately contacted the police. An officer arrived at L.P.'s apartment later that evening and spoke to L.P. and J.G. about the incident. The officer then went to Bengston's apartment and knocked on the front door, but nobody answered. Ultimately, the officer filed a criminal trespass report, and the case was turned over to detectives for further investigation.
After the January 3 incident, L.P. started spending the majority of nights with a friend who lived in Hutchinson. During the next several months, L.P. noticed that several pairs of her underwear were missing. At the time, L.P. thought she may have lost her underwear while doing laundry.
On April 9, 2009, L.P. stayed overnight with her friend and returned to her apartment (with her son) sometime between 8 and 8:30 a.m. on April 10. L.P., while holding G.P., entered her apartment through the front door and observed a naked Bengston coming out from behind a blanket that L.P. had hung between her kitchen and bedroom. Bengston immediately ran out the backdoor of L.P.'s apartment, and L.P., carrying G.P. with her, ran out the front door and called the police from her car.
Officer Jim Wilson and two other police officers from the Hutchinson Police Department were dispatched to the scene. Upon arrival the officers observed L.P. holding her son and crying. L.P. told Wilson that she saw Bengston inside her apartment while he was naked and that he ran out of the apartment as soon as she entered. L.P. told Wilson that she believed Bengston retreated back into his apartment after running from her apartment.
As L.P. was speaking to the police about the incident, she noticed that Bengston was leaving the apartment building and walking to his car. L.P. identified Bengston to the officers, and they arrested him before he could leave. As the officers approached Bengston, he appeared to be pulling a shirt out of the front of his pants. Bengston eventually was transported to the Reno County jail, after which the staff had him take off his clothes and put on an orange jail uniform. As Bengston was changing out of his clothes, a pair of women's underwear fell out of his pants.
Bengston was questioned that morning by Detective John Moore. Detective Moore was not aware at the time he interviewed Bengston that a pair of women's underwear had been discovered inside Bengston's pants. After being given verbal and written notices of his Miranda rights, Bengston signed a written waiver agreeing to speak to Moore about the incident. During the interview (which lasted a little over 20 minutes), Bengston admitted to being inside L.P.'s apartment while naked and claimed that his purpose for being inside the apartment was not sexual but was to steal CD's and DVD's. While speaking to Bengston, Moore did not detect anything in Bengston's demeanor that would indicate he was under the influence of drugs or alcohol. To that end, the video recording of the interview reflects Bengston had no difficulty having a conversation with Moore about the incident.
After jail staff informed Officer Wilson about finding women's underwear in Bengston's pants, Wilson resumed questioning later that day in order to ask Bengston about the underwear. During a short, 10– to 15–minute interview, Wilson showed Bengston the underwear and asked him where he got them. Bengston admitted to taking the underwear from the floor of L.P.'s bedroom and admitted that, before officers arrested him outside the apartment building, he tucked the underwear down the front of his pants. Like Moore, Wilson did not detect anything in Bengston's demeanor that would indicate he was under the influence of alcohol or drugs during this interaction.
L.P. came to the law enforcement center that day and identified the underwear found on Bengston as belonging to her.
The police searched Bengston's vehicle and apartment but did not find any of L.P.'s property within either area. During the search of Bengston's apartment, however, Detective Moore found a small amount of marijuana (Moore estimated the amount as 1/16 of an ounce and described it as consisting of “shake marijuana leaves”) on a metal tray underneath a couch in Bengston's apartment. Because it was such a small amount, Moore decided not to save it as evidence for a future criminal prosecution. Accordingly, he had an officer flush the leaves down the toilet in Bengston's apartment.
In order to determine whether a person inside L.P.'s apartment could hear someone walking up and down the front and back stairways leading to the second floor of the building, Moore had his partner walk on both sets of stairs as Moore stood in L.P.'s apartment and listened. According to Moore, the sound of someone using either set of stairs easily could be heard within L.P.'s apartment.
The State ultimately charged Bengston with aggravated burglary and misdemeanor lewd and lascivious behavior occurring on January 3, 2009, and with aggravated burglary, felony lewd and lascivious behavior, and misdemeanor theft occurring on April 10, 2009.
Bengston filed a pretrial motion to suppress the statements he made to Moore and Wilson. In support of his motion, Bengston argued he was under the influence of drugs when he spoke to them, which necessarily made his statements to them involuntary. The court conducted a hearing on the motion to suppress at which Moore, Wilson, and Bengston testified and the video of Bengston's interview with Moore was played. After hearing all of the evidence and arguments of counsel, the district court concluded that Bengston's statements were voluntarily made and, as a result, denied his motion to suppress the statements.
Citing K.S.A. 60–455, the State filed a pretrial motion to admit into evidence Bengston's two prior convictions in Kansas for lewd and lascivious behavior and his three prior convictions in Nebraska for public indecency. After conducting a hearing on the issue presented, the district court granted the State's motion.
At trial, the State presented L.P., J.G., Officer Wilson, and Detective Moore as witnesses to testify to the facts set forth above. Before Wilson and Moore testified about their respective interviews with Bengston, and before the State introduced the video recording of Moore's interview, Bengston lodged contemporaneous objections to the evidence, presenting the same arguments as in his motion to suppress. Bengston also raised a timely objection at trial when the State introduced evidence of his prior convictions under K.S.A. 60–455.
Bengston testified on his own behalf at trial and specifically denied going into L.P.'s apartment on January 3, 2009. Furthermore, Bengston testified that he was 5'4? (shorter than what J.G. estimated as the height of the naked man he saw in L.P.'s apartment) and that he was not tanning himself in January 2009 (J.G. said the naked man had tan lines).
With regard to the April 10, 2009, incident, Bengston admitted he was inside L.P.'s apartment while naked but claimed that because he had consumed cocaine, methamphetamine, and marijuana the evening before and into the early morning hours of April 10, he did not know what he was doing when he went inside her apartment. He said the only thing he remembered from the incident was sitting in the L.P.'s apartment and staring at the front door. He also said he vaguely remembered L.P. coming into the apartment.
Bengston claimed that when he spoke with Moore, he was still under the influence of all the drugs he had ingested. He said he felt pressured and coerced when he spoke to Moore because he was not in his “right state of mind” and because he felt pressure from all the police who had spoken to him who were trying to get him to answer questions at the same time. Bengston further claimed that he told Moore he went into L.P.'s apartment to steal items from her because he thought, while under the influence of drugs, that was what Moore wanted him to say. Bengston denied telling Officer Wilson that he had taken the underwear from L.P.'s apartment and denied that any underwear was found in his possession at the jail.
On cross-examination, Bengston conceded he never told any of the officers with whom he had contact on April 10 that he was under the influence of drugs. He also admitted that, during the interview, he never expressed confusion.
At the close of evidence, the district court gave voluntary intoxication instructions to the jury for the charges stemming from April 10, 2009 (aggravated burglary, felony lewd and lascivious behavior, and misdemeanor theft). The court also instructed the jury that evidence of Bengston's prior crimes only could be considered for the purpose of proving intent, plan, and absence of mistake or accident.
The jury ultimately found Bengston guilty of all five charges. The district court imposed consecutive prison sentences for the two aggravated burglary convictions and the felony lewd and lascivious behavior conviction, resulting in a prison term of 169 months. With regard to Bengston's convictions for misdemeanor theft and misdemeanor lewd and lascivious behavior, the court imposed consecutive jail sentences of 12 months and 6 months, respectively. The court ordered the jail sentences to run consecutive to Bengston's prison sentences.
ANALYSIS
Sufficiency of the Evidence
In his first claim of error on appeal, Bengston argues the State failed to present sufficient evidence to convict him of the crimes alleged to have taken place on January 3, 2009—aggravated burglary and misdemeanor lewd and lascivious behavior. Specifically, Bengston argues that the State did not present any credible evidence to establish identity of the perpetrator; in other words, evidence to establish that he was the naked man J.G. saw inside L.P.'s apartment.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, taken in the light most favorable to the State, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In making this determination, an appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicting evidence. State v. Gant, 288 Kan. 76, 80, 83, 201 P.3d 673 (2009). Furthermore, “[a] conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.” State v. McCaslin, 291 Kan. 697, Syl. ¶ 9, 245 P.3d 1030(2011).
At trial, J.G. testified that on January 3, 2009, he was inside L .P.'s apartment taking a nap in her bed when a noise woke him around 5:30 p.m. Despite the time of the day and the lights being off, J.G. sat up in bed and saw a naked man in the kitchen area of the apartment. At about the same time that J.G. sat up in bed, the naked man ran out the front door of the apartment, giving J.G. only a matter of seconds to look at him. J.G. said the man was white, had brown hair, tan lines, and was of average height, which J.G. estimated as 5'8?.
After the man ran out of the apartment, J.G. did not hear any noise indicating that the man ran down the stairs to the ground floor. Based on this fact, J.G. believed the man he saw ran into Apartment 2 (Bengston's apartment)—the doorway of which was located near the front door of L.P.'s apartment. Police later confirmed that a person inside L.P.'s apartment could easily hear someone outside the apartment walking up and down the front and back stairways leading to the second floor. Notably, Bengston testified at trial that he was the only person living at his apartment during the time period in question, which could lead a reasonable factfinder to conclude that if the naked man escaped into Bengston's apartment, the naked man likely was Bengston.
On the morning of April 10, 2009, L.P. saw a naked man inside her apartment. Unlike J.G., however, L.P. was able to positively identify the man as Bengston, her next door neighbor. Bengston acknowledged at trial that he was the naked man L.P. saw inside her apartment on April 10. Obviously, L.P.'s positive identification and Bengston's acknowledgement were both relevant to prove Bengston was guilty of the crimes occurring on April 10. Given the April 10 incident was strikingly similar to the incident occurring on January 3, however, the evidence showing that Bengston was naked inside L.P.'s apartment on April 10 could lead a reasonable factfinder to conclude that Bengston was the naked man J.G. saw in L.P.'s apartment on January 3. See State v. Cromwell, 253 Kan. 495, 508–12, 856 P.2d 1299 (1993) (in case where charges with similar underlying facts but relating to two different victims were properly joined for trial, court held that it was not erroneous for district court to instruct jury that evidence tending to prove defendant's guilt for crimes committed against one victim could be used to establish defendant's identity as perpetrator of crimes committed against other victim and vice versa), modified on other grounds State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993).
Albeit circumstantial, we find the evidence presented in this case provides a sufficient basis from which to draw a reasonable inference that Bengston was the naked man J.G. saw inside L.P.'s apartment in January 2009. In so finding, we acknowledge there was evidence presented at trial detracting from such an inference: Bengston's testimony claiming that he was only 5'4? tall, that he was not tanning himself in January 2009, and his specific denial of being inside L.P.'s apartment on January 3. Nevertheless, this court cannot reweigh evidence, assess the credibility of witnesses, or resolve conflicting evidence. See Gant, 288 Kan. at 80. Viewing the evidence in a light most favorable to the State, we conclude that a rational factfinder could have found beyond a reasonable doubt that Bengston was the naked man J.G. saw in L.P.'s apartment on January 3, 2009, and thus could properly have found him guilty of committing aggravated burglary and misdemeanor lewd and lascivious behavior on that date.
Motion to Suppress
Next, Bengston argues the district court erred when it found that the statements he made to law enforcement on April 10 were voluntary and not a result of being under the influence of drugs, leading the court to deny his motion to suppress. Bengston contends that the factual basis for the district court's decision—that he was not under the influence of drugs when he made his statements—was not supported by substantial competent evidence. Instead, Bengston argues that the evidence before the district court established that he had consumed illegal drugs prior to being arrested and that his resulting drug-induced condition caused him to make incriminating statements to the police. In other words, the statements were not a product of his free will and, accordingly, should have been suppressed.
In reviewing a district court's determination regarding whether a defendant's statements should be suppressed, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. On appeal, this court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicts in the evidence. State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010).
“When a defendant claims his or her confession was not voluntary, the prosecution has the burden of proving by a preponderance of the evidence that it was voluntary. The essential inquiry is whether the statement was the product of an accused's free and independent will. The court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language.” 291 Kan. 13, Syl. ¶ 8.
Bengston's argument naturally centers on the first factor—his mental condition. Mere intoxication or drug use, however, does not automatically render an accused's statements involuntary. In State v. Holmes, 278 Kan. 603, 613, 102 P.3d 406 (2004), the defendant similarly argued that, among other things, his extensive drug use prior to being questioned rendered his confession involuntary. But the evidence before the district court showed that during his interview with police, the defendant appeared coherent, answered questions rationally, and recalled events leading up to the shooting. In addition, he was cooperative with the detectives and showed no signs of being under the influence of drugs except for appearing tired. Accordingly, the Holmes court found substantial evidence supported the district court's findings that the statements at issue were not involuntary due to the defendant's drug use. 278 Kan. at 613–14; see also State v. White, 275 Kan. 580, 597–98, 67 P.3d 138 (2003) (despite defendant testifying that he was high when detectives interrogated him, evidence showed that defendant was coherent, wide awake, and showed no signs of being under influence of “wet” [a cigarette or marijuana dipped in chemicals such as PCP or formaldehyde]; court found substantial evidence supported district court's finding that statement was voluntarily made); State v. Jacques, 270 Kan. 173, 188–89, 14 P.3d 409 (2000) (court found that defendant's confession after using cocaine was voluntarily given because he was “able to answer questions in a coherent manner, follow the conversation, understand what was being asked of him, had experience with the Miranda form, and had been questioned by the police on a previous occasion”); State v. Harden, 206 Kan. 365, 370–72, 480 P.2d 53 (1971) (though defendant was under influence of alcohol while detectives interrogated him, detectives could not detect that drinking interfered with his responses or understanding of their questions because defendant's answers were very precise and normal; court concluded that defendant's mental condition had not been impaired to extent to render his statement involuntary).
The facts of this case are similar to the facts of the cases cited above and, therefore, strongly support the same conclusion. At the suppression hearing, Officer Wilson testified that when he arrested Bengston on the morning of April 10, he did not notice anything about Bengston that would suggest to him that Bengston was under the influence of alcohol or drugs. Although Wilson conceded that Bengston's clothes appeared disheveled when he was arrested, Wilson attributed this to Bengston dressing in a hurry. Detective Moore also conceded at the suppression hearing that Bengston had a disheveled appearance while being interviewed. But Moore said that, based on his previous experiences with Bengston, his appearance during the interview was not abnormal.
The video recording of Moore's interview of Bengston was played at the suppression hearing and is included in the record on appeal. We have reviewed the video, which shows that during the interview (which lasted a little more than 20 minutes), Bengston was able to have a conversation with Moore, was able to understand Moore's questions, and was able to give coherent answers. Bengston also expressed an understanding of his Miranda rights and indicated a familiarity with the Miranda waiver form he ultimately signed. Although Bengston's voice, as depicted on the video recording, possibly could be described as “slurred,” Moore testified that, based on previous experiences with Bengston, he regularly slurred his speech. Moore also testified at the suppression hearing that he had been trained in how to identify people who are under the influence of alcohol or drugs and that, while speaking to Bengston, he did not notice anything about Bengston that would indicate to him that Bengston was under the influence.
Wilson also testified about speaking with Bengston later that day upon learning that a pair of women's underwear had fallen out of Bengston's pants as he was changing into a jail uniform. After Bengston acknowledged that he had been informed earlier of his Miranda rights, Wilson proceeded to interview Bengston, and Bengston admitted to taking the underwear from L.P.'s apartment and stuffing them down the front of his pants prior to being arrested. Wilson stated Bengston did not appear to be under the influence of alcohol or drugs during this interview.
We find the testimony of Wilson and Moore at the suppression hearing and the video of Bengston's interview with Moore provide substantial competent evidence to support the district court's factual findings that Bengston was not under the influence of drugs when he made his statements to law enforcement on April 10 and that his statements were voluntarily given. Although Bengston testified at the suppression hearing that (1) he consumed illegal drugs before being arrested, (2) he was still under the influence of these drugs when he was arrested, and (3) his drug-induced state affected his ability to comprehend what was going on during his interview with Moore, we cannot reweigh the evidence presented at the suppression hearing, assess the credibility of the witnesses, or resolve conflicts in the evidence. See Stone, 291 Kan. at 21. Accordingly, we affirm the district court's decision to deny Bengston's motion to suppress.
Request to Question Jurors
Next, Bengston argues the district court abused its discretion when it denied his request during trial to question jurors about conversations they may have had or overheard while viewing the crime scene. A district court's decision to deny a request to question a jury about possible misconduct is reviewed for abuse of discretion. See State v. Overton, 279 Kan. 547, 557, 112 P.3d 244 (2005). Abuse of discretion is found when (1) no reasonable person would have taken the view adopted by the district court, (2) the district court's exercise of discretion was based on an error of law, or (3) the facts upon which the district court made the discretionary decision are not supported by substantial competent evidence in the record. State v. Gonzalez, 290 Kan. 747, 755–56, 234 P.3d 1 (2010). A high degree of appellate deference is given to a district court judge's exercise of discretion in assessing the perceived impact of an allegedly prejudicial event. Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993). “The party asserting prejudicial error bears the burden of establishing such error. [Citation omitted.]” Overton, 279 Kan. at 557.
Before trial, the district court granted the State's motion under K.S.A. 22–3418 to allow the jury to view the building where L.P.'s and Bengston's apartments were located. Before the jurors were taken to view the building, the district judge provided the following instructions to them:
“THE COURT: All right. Ladies and Gentlemen of the Jury, we are now going to allow you to have a view of the premises [located at] 108 West 5th. You're going out on the R–Cat bus. Don't talk about the case or discuss it among yourselves, or allow anyone to talk to you about it, Ms. Potter will be there. She's the court reporter. And I think they're not requiring me to go, right? And—but the defense attorneys are going to be out there and just go through and look at the place. Don't discuss it. And if there are any objections, Marsha will be there to take them.
“MR. MAXWELL [the prosecutor]: Well, if you're not there we can't really do that so.
“THE COURT: Well, do you—I'll go. I'll go. Every other time I've never missed one but I don't really need to go down on [W]est 5th. I'll be out there.” (Emphasis added.)
After returning from viewing the building, defense counsel brought up an issue to the court outside the presence of the jury:
“[U]pon our arrival [at the apartment building], it came to our attention as we were standing outside that there was a member of the Hutchinson News who was standing at the gate, or the entrance of the house with her notepad open and her pen. There were voices that were heard and so certainly we went inside but we noticed that beforehand. The representative or reporter from the Hutchinson News went up with the jury, up the stairs into the apartment, walked through the ... apartment with the jury; and also was reported to have been questioning the current owner of the apartment. Certainly, since the jury was there, they could have been within earshot of anything that was said. But I'm asking for a mistrial at this point. I don't think it's appropriate that the reporter be present with the jury when they're viewing a scene. So I would ask for [a] mistrial, Judge.
“THE COURT: Mr. Maxwell?
“MR. MAXWELL: First, Judge, I didn't note that the Hutch reporter could go over there. I didn't see her do anything further. The jury went up first. She went up later behind counsel and the defendant. It's a public view. She can view it. If the owner of the house let her through there, that's fine. I don't think the owner of the house had any objections to people walking through. That's what happened. I don't believe there's any conversation I'm aware of with anyone....
“THE COURT: Kelly, anything further?
“MS. DRISCOLL [defense counsel]: Only that it appears very improper, Judge.
“THE COURT: Well, I don't think that there was anything improper about either incident that you complained of, and unless there was some prejudice here that I'm unaware of, if there was conversation, or I'm going to overrule the request for a mistrial on both counts.
“MS. DRISCOLL: Perhaps, Judge, we should ask the jurors because we heard conversation?
“THE COURT: With Mary Clarkin?
“MS. DRISCOLL: And the jurors.
“THE COURT: I don't know. I, I mean, I, I admonished the jury when they went out there not to discuss this case among themselves or with anyone else. I don't know whether they talked to each other about, it's cold. I know I said it's cold out there.
“MR. MAXWELL: I certainly said it was cold, too, Judge, but that's not conversation about the case.
“THE COURT: No, I'm going to limit it right now. Overrule the request. Okay.”
After the jury reached its verdict finding him guilty, Bengston filed a motion for judgment of acquittal or, in the alternative, a new trial. In the motion, Bengston argued that the district court erred when it denied his request for mistrial, which was based on the fact that a news reporter was present while the jurors viewed the apartment building “and was reportedly seen talking to the current owner of the property, which could have been heard by potential jurors.” Bengston did not attach to his motion any affidavits from jurors regarding whether they heard the alleged conversation. The district court denied Bengston's motion.
“Communication between jurors and third parties is broadly termed juror misconduct. Juror misconduct is not the basis for reversal, new trial, or mistrial unless it substantially prejudices a defendant's rights. [Citations omitted.]” Overton, 279 Kan. at 557. In State v. Coburn, 220 Kan. 743, 747, 556 P.2d 376 (1976), the Supreme Court stated:
“To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury [Citation omitted]. The substance of the communication may be important. If the comment relates to the merits of the case, it will be more likely to be found prejudicial. However, if it relates to the case merely in a general or incidental manner it will more likely be found harmless [Citation omitted].”
Bengston claims the district court abused its discretion when it denied him the opportunity to question jurors regarding conversations they may have had or overheard while viewing the scene—particularly the alleged conversation that occurred between the news reporter and the owner of the building, Bengston contends that the district court's decision constituted an abuse of discretion because it prevented him from establishing that prejudicial conduct had transpired at the apartment building.
Bengston's argument is similar to the argument raised by the defendant in Overton. In that case, the defendant argued that the district court abused its discretion when it denied his request, made during trial, to question jurors regarding the impact a trial spectator's comment may have had on them. While in a hallway and in the presence of several jurors, the spectator said, ‘He'll get his judgment when the day comes.’ “ 279 Kan. at 557. Like Bengston, the defendant in Overton claimed that because the district court prevented him from questioning jurors about the statement, he was unable to establish prejudice warranting a mistrial. See 279 Kan. at 557–58.
The Supreme Court rejected the defendant's argument, concluding that the district court had acted within its discretion in denying the request to question the jurors. In support of its decision, the court found that the district court personally heard the spectator's remark and was qualified to determine whether the remark would have prejudiced the jury against the defendant. As added support for finding that no abuse of discretion had been shown, the court noted that the defendant could have obtained affidavits from jurors (but failed to do so) regarding the spectator's comment and attached them to his motion for a new trial. Overton, 279 Kan. at 558.Cf. State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842 (Recalling a jury for a posttrial hearing “should never be utilized as a fishing trip upon a losing party's hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking an order to recall the jurors to show the necessity for the order.”), cert. denied483 U.S. 1024 (1987).
Here, defense counsel informed the district court of the possibility that jurors had spoken to each other while viewing the apartment building and may have overheard a news reporter at the scene questioning the owner of the building. The prosecutor responded to defense counsel's statements by saying that he was not aware of the reporter speaking to anyone, and the district court judge, who was at the scene, noted that there was a good chance that the jurors were merely speaking about the weather—a subject unrelated to the trial. After noting that he had admonished the jurors, prior to them viewing the scene, not to speak about the case amongst themselves or with anyone else, the district court decided to overrule the request. Based on the record before us, which does not include any posttrial affidavits from jurors, we find the district court did not abuse its discretion in refusing Bengston's request to question jurors about conversations they may have had or overheard while viewing the apartment building.
Prior Convictions
In his fourth claim of error, Bengston argues the district court erred in granting the State's K.S.A. 60–455 motion to introduce evidence of his prior Kansas convictions for lewd and lascivious behavior and his prior Nebraska convictions for public indecency. In order to properly frame the issue presented by Bengston here, we find it helpful to review the procedural history leading up to this particular claim of error.
The State charged Bengston with sex crimes alleged to have been committed on January 3, 2009, and April 10, 2009. Shortly thereafter, amendments were made to K.S.A. 60–455, which is the statute governing admission of a party's past crimes or civil wrongs. In July 2009, after the amendments to K.S.A. 60–455 became effective, the State filed a pretrial motion for permission to introduce evidence at trial of Bengston's prior Kansas convictions for lewd and lascivious behavior and his prior Nebraska convictions for public indecency. Justifiably cautious about whether the new provisions of K.S.A. 60–455 would be applicable at trial, the State supported its motion by providing argument under both the old and the new versions of the statute. Citing to the old version of K.S.A. 60–455, the State argued Bengston's prior Kansas and Nebraska convictions for crimes sexual in nature were admissible at trial for purposes of proving intent, absence of mistake or accident, and plan. See K.S.A. 60–455(b). Citing to the new version of K.S.A. 60–455, the State argued Bengston's prior Kansas and Nebraska convictions for crimes sexual in nature were admissible at trial for purposes of proving any matter to which the prior convictions were relevant and probative. See K.S.A.2009 Supp. 60–455(d).
After conducting a hearing, the district court granted the State's motion. At trial, Bengston properly preserved the issue for review by objecting when the State sought to introduce the prior convictions. The district court overruled the objection but, at Bengston's request, instructed the jury that the prior crimes evidence introduced at trial must only be considered for purposes of proving intent, absence of mistake, and motive.
In light of this procedural history, and as specifically framed by Bengston on appeal, the issue presented to us for determination is whether the district court erred in permitting the State to introduce evidence of Bengston's prior convictions for purposes proving intent, absence of mistake, and motive. To that end, the Kansas Supreme Court has established a three-part test for determining whether evidence about a person's prior bad acts may be admitted under K.S.A. 60–455. These steps were recently summarized in State v. Inkelaar, 293 Kan. 414, 423–24, 264 P.3d 81 (2011).
First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court. 293 Kan. at 424.
Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion. 293 Kan. at 424.
Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion. 293 Kan. at 424.
If the evidence meets all of these requirements, it is admitted, but in a jury trial the district court must give the jury a limiting instruction telling the jurors the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose). 293 Kan. at 424.
Intent and Absence of Mistake or Accident
A defendant's intent is at issue, and thus material, when he or she admits to committing the underlying acts supporting criminal charges, but offers some explanation for why he or she committed the acts that would prevent the State from convicting him or her of the charges. In such a situation, the State can present evidence of the defendant's prior convictions to show that the defendant, when committing similar acts in the past, acted with the requisite criminal intent and did so again when he or she engaged in the acts currently at issue. Similarly, if a defendant explains that the acts at issue are due to a mistake or accident, the State can present evidence showing that the defendant committed similar criminal acts in the past, thereby negating the defendant's assertion that he or she did not act with the requisite criminal intent when committing the current acts. See State v. Prim, 287 Kan. 713, 726–28, 200 P.3d 1 (2009) (noting that reasons for admitting prior crimes evidence under K.S.A. 60–455 to prove intent and absence of mistake or accident “are largely intertwined”); State v. Graham, 244 Kan. 194, 197, 768 P.2d 259 (1989) (Absence of mistake or accident and intent are related concepts. Absence of mistake denotes an absence of honest error, and evidence of prior acts helps to demonstrate that the criminal act alleged was intentional.); State v. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974) ( “Where an act in itself may be susceptible of two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character.”).
But a defendant's intent and the presence or absence of a mistake or accident to explain the defendant's actions are not at issue, and thus not material, when the defendant denies committing the underlying acts supporting criminal charges. See Prine, 287 Kan. at 727–28;State v. Plaskett, 271 Kan. 995, 1020, 27 P.3d 890 (2001) (“Intent and related facts are not at issue in that defendant denied all allegations.”); State v. Nunn, 244 Kan. 207, 212–13, 768 P.2d 268 (1989) (evidence of prior sexual misconduct against children not admissible to prove intent because intent was not in issue; defendant denied any involvement).
In this case, Bengston admitted to being inside L.P.'s apartment while naked on the morning of April 10, 2009, and remaining there until L.P. (with her infant son, G.P.) arrived at the apartment. Based on these facts, the State charged Bengston with felony lewd and lascivious behavior, which required the State to prove, among other things, that Bengston publicly exposed his penis in the presence of G.P. with the intent to arouse or gratify the sexual desires of himself or another. See K.S.A. 21–3508(a)(2), (b)(2); State v. Bryan, 281 Kan. 157, Syl. ¶ 2, 130 P.3d 85 (2006) (“The legislature's combination of the words ‘exposing,’ and ‘presence’ with a specific intent element indicates the legislature's intent to criminalize lewd and lascivious behavior whether or not the victim has actually seen or perceived the offending act or acts.”). Bengston claimed at trial that because he had consumed excessive amounts of illegal drugs prior to going into L.P.'s apartment, he did not know what he was doing when he entered the apartment and remained there while naked. If believed by the jury, Bengston's story would have resulted in him being found not guilty of lewd and lascivious behavior because his explanation for his behavior would establish that he did not act with the requisite criminal intent when he publicly exposed his sex organ in the presence of G.P. See State v. Brown, 291 Kan. 646, Syl. ¶ 4, 244 P.3d 267 (2011) (“Although voluntary intoxication is not a defense to general intent crimes, a voluntary intoxication defense may be used to negate the intent element of specific intent crimes.”). Clearly then, whether Bengston acted with the requisite criminal intent when he publicly exposed his sex organ and whether his actions could be explained by a mistake or accident ( i.e., consuming illegal drugs) were disputed, material issues at trial.
Having determined intent and lack of mistake or accident were material issues in dispute, we now must determine whether evidence of Bengston's prior convictions were relevant to establishing his criminal intent and the lack of a mistake or accident to explain his purpose for being naked inside L.P.'s apartment on April 10. Again, evidence is considered relevant if it has any tendency in reason to prove a material fact at issue. K.S.A. 40–401(b); Inkelaar, 293 Kan. at 424.
At trial, Stephen Tellatin, the retired deputy chief of police for the Fremont, Nebraska, Police Department, testified about separate incidents leading to Bengston's three separate convictions for public indecencies in Nebraska. The first incident occurred on September 5, 1994, in Fremont where a 22–year–old woman reported hearing someone knocking on her house late at night. She then saw Bengston outside masturbating in front of her. On May 6, 1996, Bengston again exposed himself and masturbated in front of a 38–year–old Fremont woman. Finally, on July 21, 1996, two Fremont girls (ages 11 and 12) reported a man exposing himself to them in the high school parking lot. Bengston was later apprehended within the vicinity of the school and identified as the perpetrator.
With regard to Bengston's prior Kansas convictions, Clay Rothe of the Hutchinson Police Department testified that on May 21, 1998, a female reported that a man had stood outside of her bedroom window and masturbated in front of her while trying to have a conversation with her. When police responded to the woman's apartment complex, they found Bengston behind the complex, pushing a bike and wearing nothing but shorts. Subsequently, on September 6, 1998, three children (ages 7, 6, and 3) reported seeing a man, later identified as Bengston, standing at his bedroom window while fondling himself in front of them. As a result of these actions, Bengston was convicted twice of lewd and lascivious behavior.
Although the facts related to the prior convictions differ from the facts presented to the jury for the felony lewd and lascivious charges here, we find the prior convictions are relevant and have a tendency in reason to prove that Bengston engaged in the act of being naked inside L.P.'s apartment with the intent to arouse or gratify the sexual desires of himself or another and that his actions did not result from him being in a drug-induced state.
This finding brings us to the final K.S.A. 60–455 inquiry: whether the probative value of Bengston's prior convictions outweighs the potential for undue prejudice against him. An appellate court is not concerned with the garden-variety prejudice necessary for any successful prosecution. An appellate court is only concerned with undue or unfair prejudice. Prine, 287 Kan. at 736. Evidence of other crimes or civil wrongs is unduly prejudicial when it actually or probably brings about the wrong result under the circumstances of the case. Inkelaar, 293 Kan. at 425.
Applying this standard, we find the district court did not abuse its discretion in deciding that Bengston's prior convictions were not unduly prejudicial, i.e., introduction of the evidence would not bring about the wrong result. As a preliminary matter, we note that the State found it necessary to introduce prior crimes evidence at trial to prove intent only because Bengston, during his interview with Detective Moore, denied going into L.P.'s apartment for a sexual purpose on April 10. At the suppression hearing, Bengston thereafter claimed that he was in a drug-induced state on April 10—reaffirming the need to introduce prior crimes evidence at trial to prove not only intent, but also absence of mistake or accident ( i.e., Bengston's acts could be explained by something other than the consumption of illegal drugs). Finally, Bengston's testimony at trial (claiming he did not know what he was doing on April 10 because of consuming drugs) further confirmed the need to introduce Bengston's prior convictions into evidence.
Notably, the State presented other evidence (besides the prior convictions) to show Bengston had complete control over his senses when he entered L.P.'s apartment on April 10. Officer Wilson and Detective Moore both testified that during their encounters with Bengston that morning, they did not notice anything about him that would indicate that he was under the influence drugs. This evidence established not only that Bengston had the necessary intent to commit felony lewd and lascivious behavior when he entered L.P.'s apartment naked, it also established the requisite intent for convicting him of the other crimes occurring on April 10—aggravated burglary (entering into a building with intent to commit a theft therein) and theft (intent to deprive owner permanently of the use or benefit of the owner's property. See K.S.A. 21–3701 (theft); K.S .A. 21–3716 (aggravated burglary).
Simply put, we find the probative value of the prior crimes evidence outweighed the potential for producing undue prejudice to Bengston at trial, i.e., the evidence did not bring about the wrong result at trial.
Plan
If evidence of prior crimes was properly admitted to prove one disputed, material fact under K.S.A. 60–455, the issue of whether the evidence should have been admitted to prove another material fact is moot. Because we have found the evidence of Bengston's prior crimes was admissible to prove the disputed, material facts of intent and absence of mistake or accident, we find it unnecessary to address the issue of whether such evidence was admissible to prove “plan.” See State v. Garcia, 285 Kan. 1, 18, 169 P.3d 1069 (2007).
Cumulative Error
Finally, Bengston claims that he is entitled to have his convictions reversed based on cumulative trial errors.
Although one error may not warrant reversal, cumulative errors, considered collectively, may warrant reversal where the totality of the circumstances demonstrate the errors substantially prejudiced and denied a defendant a fair trial. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). But a single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010). We have found no error; thus, there is no merit to Bengston's claim of cumulative error.
Affirmed.