Opinion
No. 105,838.
2012-10-12
STATE of Kansas, Appellee, v. Michael D. BLANKS, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Blanks appeals his jury conviction and sentence of one count of rape. Blanks argues that the district court erred when it denied his motion for a change of venue. Blanks also claims there was insufficient evidence to sustain his rape conviction, that the prosecutor committed misconduct during closing argument, and that the district court improperly included several Florida felonies in calculating his criminal history score. We affirm.
The evening of May 11, 2010, H.C. and her three roommates had a party at their house to celebrate the end of the school year. The party started around 10 p.m. During the party, H.C. consumed two beverages containing vodka, orange juice, and tonic water. At some point in the evening, H.C. and a group of 20 to 30 individuals left H.C.'s house and walked to Mueller's, a bar located about one block away from H.C.'s house. While at the bar, H.C. consumed two oatmeal cookie shots, which H.C. believed contained three different types of alcohol, including Bailey's and Peach Schnapps. H.C. also consumed a Long Island Iced Tea during a chugging contest with a friend. H.C. testified that a Long Island Iced Tea contains alcohol equivalent to seven mixed drinks. Mindy Smith, a bartender at Mueller's, testified that there are approximately 5 to 7 ounces of liquor in each Long Island Iced Tea served at Mueller's.
H.C. testified that after she chugged her Long Island Iced Tea, she had difficulty remembering what happened during the remainder of the night. She testified that she knew she needed to go home because her “state was not right” and she felt intoxicated. The next thing that H.C. remembered was waking up in a field, wearing only her shirt, and struggling against a man. H.C. was able to run to a residential area where she took shelter in an abandoned house. Several hours later, H.C. left the abandoned house and ran approximately 1 mile to a different house that was occupied by June Jones, who contacted law enforcement.
Even though H.C. told law enforcement that she did not believe that she was raped, law enforcement took H.C. to the local hospital for a sexual assault exam. The exam did not reveal any bruising, tearing, or abrasions to H.C.'s vaginal walls. Urinalysis showed that H.C. was not under the influence of any drugs, but a blood test showed that her blood-alcohol content was “elevated, but nothing significant.”
After she was released from the hospital, H.C. went to the police station where she viewed photographs and eventually identified Blanks as the assailant she ran away from at the park. Law enforcement brought Blanks to the police station, where he agreed to an interview with Detective Terry Kelley. Blanks told Kelley that he met H.C. at Mueller's, that H.C. smelled of alcohol, and that she appeared to be a little bit drunk. Blanks said that the two of them went to Blanks' car and H.C. performed oral sex on him. Blanks claimed that this was the only sexual contact that occurred between himself and H.C. on the night in question.
After Kelley collected an oral swab from Blanks, Blanks told Kelley that after he left Mueller's, he drove by there a little while later and picked up H.C. Blanks said that he drove H.C. to a construction site and H.C. performed oral sex on him a second time. Blanks said that the two of them also engaged in sexual intercourse. Blanks told Kelley that after he and H.C. finished having sex, he watched H.C. walk away, and he then drove home.
Blanks then changed his version of events and told Kelley that H.C. did not perform oral sex on him in his car outside of Mueller's. He said that he picked up H.C. and drove to the construction site where H.C. performed oral sex on him and they engaged in sexual intercourse. Blanks advised that after they finished having sex, H.C. walked away, and he drove home.
Blanks then said that after he left the construction site, he drove around and saw H.C. walking on Kansas Avenue and picked her up again. It was then that he drove the two of them to a park just outside of town where H.C. performed oral sex on him a second time, and then the two of them again engaged in sexual intercourse. Blanks stated that while the two of them were having sex, there was a flash of lightning and that after the lightning struck, H.C. became upset and started cursing at Blanks because H.C. believed that Blanks was trying to photograph her while the two of them were having sex. Blanks informed Kelley that H.C. took off running, that he saw her run up on the porch of a house, and that he decided to leave.
Blanks' oral swabs and H.C.'s rape kit results were sent to the Kansas Bureau of Investigation (KBI) for testing. The tests revealed that the seminal fluid obtained from H.C.'s rape kit was consistent with Blanks' genetic profile.
The State charged Blanks with two counts of rape and two counts of aggravated criminal sodomy. Prior to trial, Blanks moved the district court for a change of venue. The district court denied this motion. Blanks subsequently filed a second motion requesting a change of venue, arguing that he would be unable to receive a fair trial in Atchison County because the local newspaper had published two stories describing the details of the alleged crimes. The district court denied this motion.
During Blanks' jury trial, several witnesses testified about H.C.'s alcohol consumption and her level of intoxication on the night of the alleged rape. Lauren Russell testified that she saw H.C. drinking some type of alcoholic beverage at H.C.'s house and that she watched H.C. drink her Long Island Iced Tea in a chugging contest. Russell further testified that she believed H.C. was intoxicated before chugging the Long Island Iced Tea and that when everyone decided to leave Mueller's, H.C. was “very out of it.” Specifically, Russell recalled that H.C.'s “eyes were barely open” and H.C. was “swerving and stumbling” as they walked back to H.C.'s house.
Erin O'Connor, one of H.C.'s roommates, testified that she observed H.C. drink one or two shots and chug her Long Island Iced Tea. She testified that after the group left Mueller's and walked back to their house, she saw H.C. stumbling. She had to assist H.C. to walk up approximately 12 steps and help her to her bedroom. O'Connor testified that she put H.C. on her bed, shut the door to H .C.'s room, and locked the front door of the house. Tom Joerger, a next door neighbor of H.C.'s, testified that he believed that H.C. was intoxicated because he witnessed H.C. “stumbling all over the place,” and he believed that she was going to fall down the stairs.
John Bourneuf, another neighbor of H.C.'s, described H.C.'s condition as “totally drunk.” He testified that H.C. was pretty drunk before everyone went to Mueller's, but at the end of the night, he stated that H.C.'s balance was off, her speech was slurred, and she was totally intoxicated. Bourneuf testified that sometime around 2 a.m., after H.C. had been put in her room by O'Connor, he was sitting in a swing outside his house with his girlfriend, Kristin Thorne, and he heard Thorne say that H.C. had fallen down while walking over to his house. Thorne testified she observed H.C. leave her house and fall face forward as she was walking over to Bourneuf's house. Thorne explained that she helped H.C. walk back to her house, walked her up the stairs to her room, laid H.C. on her bed, and locked the front door to H.C.'s house after she left. According to Thorne, H.C. was “pretty drunk” before she consumed her Long Island Iced Tea. Thorne testified that H.C.'s level of intoxication was “pretty bad,” that her eyes were really heavy, and that she was “really stumbly.”
Mindy Smith, an employee at Mueller's, testified that H.C. was “very drunk” and that her level of intoxication was “pretty bad.” Smith testified that she witnessed H.C. pulling down the back of her shorts at Mueller's. Smith testified that she gave H.C. two separate warnings, telling her that she would need to refrain from engaging in that behavior or else she would be asked to leave the bar. Smith testified that with a little help from one of H.C.'s friends, she was able to get H.C. to stop pulling the back of her shorts down, and after she stopped this behavior, H.C. went back to mingling with her friends. Smith testified that H.C. left Mueller's with her friends when the bar closed at around 2 a.m. but that sometime around 2:15 or 2:30 a.m., H.C. came back to Mueller's. Smith stated that she witnessed H.C. “stumbling her way to the bar” and “walking obviously drunk.” Smith further explained that she had a little bit of difficulty communicating with H.C. but that she was able to understand that H.C. was looking for Peter.
Blanks testified at trial that sometime after Mueller's had closed, he encountered H.C. in a parking lot outside of the bar while he was talking with an acquaintance. Blanks testified that H.C. asked to ride around with Blanks in his car and he allowed her to do so. He explained that H.C. began touching his thighs and chest, rubbing her hands through his hair, and then unzipped his pants and performed oral sex on him. Blanks testified that he drove to a construction site and that he and H.C. got out of his car and engaged in sexual intercourse at the construction site. Blanks stated that after he and H.C. finished, H.C. walked away, but he picked her up again and H.C. performed oral sex on him a second time in his car. Blanks testified that he drove the two of them to a park on the outskirts of town and that he and H.C. engaged in sexual intercourse in the parking lot of the park. Blanks explained that while he and H.C. were having sex, there was a flash of lightning, which caused H.C. to become angry because she believed that Blanks was taking pictures of her. Blanks stated that H.C. ran off towards a house and he got back in his car and drove away. Blanks testified that H.C. did not appear to be intoxicated because he never saw her stumble, her speech was not slurred, she was able to get in and out of Blanks' car without any difficulty, and she was able to dress and undress without any problems.
The jury found Blanks guilty of one count of rape, acquitted him on both counts of aggravated criminal sodomy, and was unable to reach a unanimous verdict on the remaining rape charge. At sentencing, the presentence investigation (PSI) report classified Blanks with a criminal history score of E. Blanks objected, arguing that the five nonperson felonies listed in the PSI report should not be used to calculate his criminal history because his adjudication on those felony counts was deferred pending his successful completion of probation and the trial court never made a finding of guilt as to those felonies. The district court overruled Blanks' objection to his criminal history and sentenced him to 234 months' imprisonment. Blanks filed a timely notice of appeal.
Change of Venue Motion
The determination of whether to grant a change of venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. State v. Ruebke, 240 Kan. 493, 498, 731 P.2d 842,cert denied483 U.S. 1024 (1987). Although the decision to grant or deny a request for a change of venue rests within the trial court's sound discretion, an appellate court has a duty to make an independent assessment of the circumstances to ensure that the defendant received a fair trial. See State v. Parker, 48 Kan.App.2d ––––, Syl. ¶ 2, 283 P3d 643 (2012).
Blanks argues that the district court abused its discretion in denying his requests for a change of venue because pretrial publicity exposed the community to prejudicial information about him, thereby contaminating the potential jury pool and depriving him of a fair trial.
K.S.A. 22–2616(1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
In order to obtain change of venue, the burden is on the defendant to show the existence of prejudice in the community, not as a matter of speculation but as a demonstrable reality, and the prejudice must rise to such a level that it is reasonably certain that the defendant would be unable to receive a fair trial. State v. Higgenbotham, 271 Kan. 582, 591–92, 23 P.3d 874 (2001).
It is well settled that media publicity alone is never sufficient to establish prejudice warranting a change of venue. Higgenbotham, 271 Kan. at 593. In assessing whether a defendant was entitled to a change of venue, an appellate court weighs the following factors: (1) the particular degree to which the publicity circulated throughout the community; (2) the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; (3) the length of time which elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the ease encountered in the selection of the jury; (5) the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors; (6) the challenges exercised by the defendant in the selection of a jury, both preemptory and those for cause; (7) the connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn. Ruebke, 240 Kan. at 499–500.
Prior to trial, the local newspaper in Atchison published at least two stories mentioning Blanks. The first story, published on June 9, 2010, referred to Blanks as a “drug snitch” and mentioned that he had worked as a confidential informant for law enforcement by helping to arrange a drug buy. A second story, published on August 25, 2010, mentioned Blanks' history of working as an informant for law enforcement and also stated that Blanks' attorney had accused the prosecutor of telling the local media that Blanks had worked as an informant. Although Blanks contends that media coverage prevented him from obtaining a fair trial in Atchison County, the relative lack of difficulty that both sides encountered in selecting a jury indicates otherwise.
In this case, jury selection took approximately a half of a day; seven members of the jury panel were dismissed for cause. Of those seven, five were struck because they indicated a relationship with Blanks or they had knowledge about him that would prevent them from remaining fair and impartial. Another prospective juror was struck because she indicated that her past experience as a victim of a sexually motivated crime would not allow her to remain fair and impartial. Finally, another panel member was removed because he indicated that he had a close relationship with one of the witnesses that would cause him to give more weight to that particular witness' testimony. Blanks' attorney unsuccessfully attempted to strike two additional jurors for cause. However, the State exercised one of its peremptory strikes to eliminate one of those two prospective jurors, while the other prospective juror was ultimately selected to serve on the jury.
Twenty-three prospective jurors indicated that they had learned details about the case through the local media or through word of mouth. Other than the seven jurors discussed above, all of the prospective jurors who had learned about the case indicated that their knowledge would not influence or affect their ability to be a fair and impartial juror.
“Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice.” Ruebke, 240 Kan. at 500–01.
Blanks has not demonstrated that the coverage provided by the local media deprived him of a fair trial or that the district court abused its discretion in denying his motion for a change of venue.
Nevertheless, Blanks asserts that the nine factors weighed by a Kansas court in determining the necessity for a change of venue do not account for the prejudice that could possibly arise in a small community. Blanks invites the panel to adopt the reasoning of the Utah Court of Appeals in State v. Stubbs, 84 P.3d 837, 840 (Utah App.2004), in which that court considered the following four factors in its change of venue analysis: “(1) the standing of the victim and accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity.” Specifically, Blanks asks the panel to consider the first factor and determine whether Blanks' reputation in the Atchison community prevented him from obtaining a fair trial and necessitated a change of venue.
However, the nine factors listed in the Higgenbotham case already take into account the defendant's reputation in a small community. Specifically, the fifth factor—the familiarity with the publicity and its effect upon the jurors—addresses any prejudice or bias that jurors may harbor towards the defendant due to negative media coverage or the defendant's reputation in the community. Furthermore, the first factor—the particular degree to which the publicity circulated throughout the community—and the ninth factor—the particular size of the area from which the venire is drawn—address any potential juror prejudice that may arise in a small community. Presumably, the smaller the community, the faster information will spread, which would result in more potential jurors getting information that could prejudice the defendant. Thus, the Stubbs case adds nothing to this analysis.
Finally, Blanks argues that he was deprived of his right to a trial by an impartial jury because the pretrial publicity was so pervasive and inflammatory that Blanks suffered presumed prejudice and the panel should disregard the prospective jurors' answers that they could be fair and impartial. Alternatively, Blanks argues that he also suffered actual prejudice because the answers of the prospective jurors indicated that they were biased against him. In support of his argument, Blanks cites Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
In Irvin, the United States Supreme Court analyzed whether pretrial publicity deprived Irvin of his right to a trial by an impartial jury. In that case, 8 of the 12 jurors indicated during voir dire that they believed the defendant was guilty, some of the jurors stated that it would take evidence to overcome their belief, and one juror stated that he had a “ ‘somewhat’ certain fixed opinion” as to the defendant's guilt. The Supreme Court held that Irvin was deprived of his right to a trial by an impartial jury because the pretrial publicity resulted in actual prejudice. Irvin, 366 U.S. at 727–28.
In Sheppard, the Supreme Court noted that the publicity, both before and during the trial, created a circus-like atmosphere and likely exposed the jurors to extraneous and prejudicial details about the case that were not brought forth during the trial. The Sheppard Court pointed out that the local media had circulated hundreds of stories about the case, the media was granted virtually unfettered access to the courtroom and to the jury, photographs of the jurors were published by the press, jurors were contacted about their involvement in the case, jurors were not prohibited from accessing information about the case through the media, and several jurors admitted hearing news broadcasts that contained inflammatory material about the defendant. The Court concluded there was presumed prejudice because there was no doubt that the “deluge of publicity reached at least some of the jury.” Sheppard, 384 U.S. at 357.
In this case, the pretrial publicity and its resulting impact on the prospective jurors did not rise to the level of the media coverage and jury contamination that was present in both Irvin and Sheppard. The local media published two articles that relayed factual details underlying the crime and explained that Blanks had also worked as an informant for local law enforcement, and several jurors mentioned that they had also heard about the case on the local radio. This limited media coverage can hardly be classified as pervasive and inflammatory. Furthermore, all of the potential jurors who indicated that they had learned some details about the case from the local media stated that they would be able to disregard any details they had learned and decide the case based on the evidence presented in court. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin, 366 U.S. at 723. Thus, Blanks has failed to demonstrate that he suffered actual or presumed prejudice because he has not shown that the jurors were biased against him or that media coverage was so pervasive and inflammatory that it rendered the jurors' promises of impartiality ineffective.
Finally, Blanks argues that he was entitled to a change of venue because he suffered presumed prejudice when the local newspaper articles mentioned that he had worked as an informant for local law enforcement. However, Blanks' argument is without merit because reports by the news media that a defendant has prior involvement with law enforcement or prior criminal history do not mean that a defendant is unable to be tried by a fair and impartial jury in the community where those news stories were published and circulated. See Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (declining to find presumed prejudice as a matter of constitutional concern in cases in which jurors learned about a defendant's criminal record from news sources); Parker, 48 Kan.App.2d at –––– (concluding that Parker failed to show he was unable to obtain a fair trial in Saline County even though local news sources had published that Parker had prior criminal history).
Blanks has failed to demonstrate that he was entitled to a change of venue because he has not shown that he was unable to receive a fair trial in Atchison County or that he suffered actual or presumed prejudice due to pervasive and inflammatory media coverage. Therefore, we find that the district court did not abuse its discretion in denying Blanks' motion for a change of venue.
Sufficiency Of The Evidence
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
The jury convicted Blanks of one count of rape under K.S.A. 21–3502(a)(1)(C), which proscribes sexual intercourse with a person who does not consent when “the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by the offender or was reasonably apparent to the offender.” Blanks argues that there was insufficient evidence upon which a rational factfinder could rely to find him guilty of rape because he did not know or was not able to ascertain H.C.'s level of intoxication. Blanks also contends that there was insufficient evidence to sustain his conviction because he testified that when he encountered H.C. she was able to walk, get in and out of his car, take off and put on her clothing, and speak coherently.
Contrary to Blanks' claim that there was insufficient evidence to support his conviction for rape, there was ample evidence that the jury could have relied upon in order to find Blanks guilty. The jury heard H.C. testify that on the night in question, she consumed two mixed vodka drinks, two oatmeal cookie shots, and a Long Island Iced Tea, containing around 5 to 7 ounces of liquor. H.C. explained that she chugged her Long Island Iced Tea while participating in a chugging contest, and after she chugged that drink, she stated that her “state was not right,” that she felt intoxicated, and that she could not remember what happened afterwards until she was in a field with Blanks standing in front of her. H.C. testified that she was “really drunk” and that she believed that her alcohol consumption had rendered her unconscious. She further testified that she did not remember engaging in any sexual acts with Blanks and never consented to engage in any type of sexual acts with him.
The jury also heard testimony from several witnesses who had observed H.C. and several of H.C.'s friends who had observed her behavior and demeanor after she had been drinking. Several witnesses testified that at the point in time that everyone left Mueller's to go back to H.C.'s house, H.C. was extremely intoxicated, was slurring her words, and demonstrated noticeable physical coordination difficulties. Furthermore, Russell and Thorne testified that H.C.'s eyes appeared to be really heavy and were barely open. Thome and O'Connor also testified that they had to help H.C. enter her house, walk her up the stairs to her bedroom, and put her to bed. Thorne further testified that sometime around 2 a.m., she observed H.C. leave her house and fall face forward as H.C. was trying to walk over to her neighbor's house.
Although the evidence that H.C. was unable to give consent to sex with Blanks was circumstantial, “circumstantial evidence and the logical inferences therefrom can be sufficient to support a conviction of even the most serious crime.” State v. Herron, 286 Kan. 959, 967, 189 P.3d 1173 (2008). Viewed in the light most favorable to the State, this evidence provided a sufficient basis upon which a rational factfinder could rely in order to infer that H . C.'s level of intoxication rendered her incapable of consenting to sexual intercourse and that her condition was known or reasonably apparent to Blanks. Our Supreme Court has recognized that lay people are familiar with the effects commonly associated with consumption of alcohol and that if a jury finds that a victim was “drunk enough to be unable to consent to sex, we should give great deference to that finding.” State v. Chaney, 269 Kan. 10, 20, 5 P.3d 492 (2000).
Blanks, however, contends that his conviction should be reversed because in cases in which defendants were convicted of rape when the victim was unable to consent due to impairment, the defendants were with the victims and were aware of the amount of alcohol that the victims had consumed. Blanks cites Chaney and State v. Smith, 39 Kan.App.2d 204, 178 P.3d 672,rev. denied 286 Kan. 1185 (2008), and requests that the panel reverse his conviction because those two cases are factually dissimilar to this case.
In both Chaney and Smith, the defendants were with the victims when the victims consumed alcohol, were aware of how much each victim had to drink, and knew that each victim was intoxicated. However, simply because the defendants in those cases were convicted of rape because the victims' intoxication made them incapable of consenting to sexual intercourse does not mean that those are the only circumstances in which a defendant can be found guilty of rape under that statutory variant of the crime. State v.. Yost, No. 104,183, 2011 WL 6382751 (Kan.App.2011) (unpublished opinion), is partially helpful in addressing this argument, even though the defendant in that case did not allege that there was insufficient evidence to support his attempted rape conviction.
In Yost, the victim consumed alcohol at a bar and became impaired due to the combined effects of the alcohol with her prescription medication. The victim and her friends went to a different bar, but instead of joining her friends inside, the victim remained in her friend's car that was parked in the parking lot. When the victim's friends came back outside sometime later, they observed the victim with her clothing partially removed and the defendant with his hands and head between the victim's legs. The jury convicted the defendant of attempted rape even though there was apparently no evidence to show that the defendant had been present with the victim when she consumed alcohol and took her prescription medication. Thus, Blanks' conviction for rape was supported by sufficient evidence even though there was no evidence that Blanks was with H.C. while she was drinking or was aware of the precise quantity of alcohol that H.C. had consumed.
Blanks has failed to demonstrate that there was insufficient evidence upon which a rational factfinder could have found Blanks guilty of rape. Therefore, we affirm his conviction.
Prosecutorial Misconduct
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury during closing argument requires a two-step analysis. First, the appellate court decides whether the 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 prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011).
Blanks claims that four specific comments the prosecutor made during closing argument were improper and denied him a fair trial.
First Comment
At the beginning of the prosecutor's rebuttal closing argument, the prosecutor made the following statements to the jury:
“[Prosecutor]: Here we go. Let's blame the victim. Why is it every time there's a sex case, people want to blame the victim for it? Why is it [H.C.'s] fault that Michael Blanks took her out and raped her? It's not [H.C.'s] fault. It's Michael Blanks' fault. Sure, [H.C.] drank the liquor. Sure, [H.C.] was intoxicated. But does that make it open season to be raped?
“You know, if Mr. Blanks had been walking down the street, there was a drunk guy sitting on the curb, and he beat him up and stole his wallet, would we say, oh, it's his fault he got robbed, it's his fault he was drunk.”
Blanks argues that the prosecutor's hypothetical example of an intoxicated pedestrian who is beaten and robbed was an inappropriate statement designed to inflame the passions of the jury.
A prosecutor is not permitted to make statements intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law. State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). A statement comparing the case or the defendant to a high-profile crime or the individual that committed the crime may constitute an inflammatory statement. State v. McMillan, 44 Kan.App.2d 913, 917, 242 P.3d 203 (2010), rev. denied 291 Kan. 915 (2011).
In McMillan, the prosecutor referred to the Virginia Tech and Columbine shootings and the Kennedy assassination during his closing argument as examples of intentional killings where the motive of the perpetrators was unclear. A panel of this court concluded that the prosecutor's comments did not constitute misconduct because the prosecutor cited those tragic incidents as “examples of incidents with unclear motives that the jury was likely familiar with.” McMillan, 44 Kan.App.2d at 919. In State v. Castillo, 34 Kan.App.2d 169, 115 P.3d 787,rev. denied 280 Kan. 985 (2005), overruled on other grounds as noted in State v. Medlock, No. 100,947, 2009 WL 3837640 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1100 (2010), the prosecutor, during his closing argument, used an analogy of a parent who discovers a sexually explicit magazine in the shared bedroom of the parent's 13– and 5–year–old sons in order to clarify the concept of nonexclusive possession in a situation where the living area is accessible by more than one individual. A panel of this court found that the prosecutor's analogy did not constitute misconduct and was within the bounds of fair argument. Castillo, 34 Kan.App.2d at 175.
Here, the prosecutor's statement during his rebuttal closing argument contained a mixture of elements of the prosecutors' statements in McMillan and Castillo; the prosecutor used an analogy to explain a broader principle but also described a different criminal offense than the ones with which Blanks was charged. In context, the prosecutor was not stating that Blanks should be regarded as an individual that committed a robbery or that Blanks had committed other violent crimes in his past. Instead, the prosecutor was arguing that the jury should not cast blame on a victim who becomes intoxicated and thereby places the individual in a circumstance in which that individual is more susceptible to becoming the victim of a crime. One of the central issues in the case and an issue that was the focus of a substantial portion of the testimony during the 2–day trial had to do with the amount of alcohol that H.C. consumed and what effect that alcohol consumption had on H.C.'s ability to consent to sexual intercourse. The prosecutor's analogy was within the bounds of the wide latitude granted to a prosecutor in discussing the evidence, and the statements did not constitute misconduct.
Second Comment
Blanks next argues that the prosecutor made an impermissible appeal to the jurors' personal interests as members of a community when the prosecutor made the following statements:
“[H.C.] is a young girl who got involved with alcohol and probably didn't know the true effects it might have. She got in deeper than she probably realized with the alcohol.
“But we cannot have a society where just because some woman is drunk, that men can just go and take advantage of them. That's not the way it works.”
A prosecutor is not permitted to make statements designed to appeal to a juror's personal interests as members of a community. State v. Jordan, 250 Kan. 180, 193, 825 P.2d 157 (1992). In this case, the prosecutor violated this rule by effectively telling the jury that society cannot tolerate a situation in which a man commits rape by taking advantage of an intoxicated woman. See State v. Finley, 268 Kan. 557, 571–72, 998 P.2d 95 (2000) (concluding that prosecutor's comments that “[w]e cannot tolerate this kind of drug use in our community, especially when a person dies. You have to find him guilty,” were improper); Jordan, 250 Kan. at 193 (holding that prosecutor engaged in misconduct by stating “if you want to live in a community where a person can kill another person ... and excuse it because he had a few drinks, that's up to you”).
After determining that a prosecutor's statements were improper, an appellate court determines whether the prosecutor's conduct was so prejudicial that it denied the defendant his or her right to a fair trial. In analyzing this issue, a court considers three factors: (1) whether the misconduct was gross or 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 mind of a juror. State v. Marshall, 294 Kan. 850, Syl. ¶ 3, 281 P.3d 1112 (2012). No individual factor is controlling, and the third factor may not supersede the other two factors unless the State proves beyond a reasonable doubt that the error complained of did not affect the outcome of the trial based upon the entire record. State v. Sprung, 294 Kan. 300, 313, 277 P.3d 1100 (2012).
First, in determining whether a prosecutor's conduct was gross or flagrant, a court considers whether the prosecutor repeated or emphasized the conduct and whether a prosecutor's conduct was of an impromptu nature and intended to respond to arguments made by defense counsel. Marshall, 294 Kan. at 861–62. Here, the prosecutor's comments were isolated and the objectionable statement about society not tolerating the defendant's conduct was made once. Moreover, the prosecutor's improper remarks were made during rebuttal closing argument and in response to defense counsel's argument that the case was about choices and that H.C. made several poor choices on the night in question. Thus, the prosecutor's statements were not gross or flagrant.
Second, in determining whether a prosecutor's conduct was motivated by ill will, a court considers whether the conduct was deliberate, repeated, or in apparent indifference to a court's ruling. Marshall, 294 Kan. 850, Syl. ¶ 7. In this instance, the prosecutor's comments were not repeated and did not contravene a direct court order. Moreover, the comments were likely not deliberate but were made extemporaneously in response to defense counsel's closing argument. Our Supreme Court has recognized that a statement made extemporaneously and in response to a defense argument “is a mitigating factor countering a conclusion that a prosecutor acted with ill will.” Marshall, 294 Kan. at 862.
Finally, the third factor considers whether there was direct and overwhelming evidence such that the prosecutor's misconduct would have little weight in the minds of the jurors. Marshall, 294 Kan. 850, Syl. ¶ 3. As noted previously, the main issue in this case was whether the victim's intoxication impaired H.C.'s ability to consent to sexual intercourse and whether that impairment was known or reasonably apparent to Blanks. During the trial, the jury heard the victim testify about her alcohol consumption and the effect it had on her, as well as testimony from six additional witnesses who all testified about the victim's intoxication and how it affected her speech, physical appearance, and motor-physical capabilities. Therefore, there was direct and overwhelming evidence on the issue of H.C.'s impairment due to her consumption of alcohol and how that impairment was perceived by those who were with her. There is no reasonable possibility that the prosecutor's remarks affected the outcome of the trial.
Third Comment
Blanks next argues that the prosecutor improperly vouched for the credibility of H.C. when the prosecutor stated, “Why would [H.C] make up any of that? No, [H.C] sat there and told you the truth.” Blanks argues that this statement was improper because it placed the imprimatur of the State on H.C.'s testimony and likely caused the jury to find her testimony more credible.
Our Supreme Court has held that a prosecutor is not permitted to comment on the credibility of a witness. State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005). Such comments are prohibited because they constitute unsworn, unchecked testimony and are not commentary of the evidence in the case. State v. Peppers, 294 Kan. 377, 396, 276 P.3d 148 (2012). Here, the prosecutor violated, and has admitted to violating, the prohibition by saying during his rebuttal closing that H.C. told the truth. See Marhsall, 294 Kan. at 857 (concluding that prosecutor's statements that the victim was honest were improper comments on the credibility of a witness); Elnicki, 279 Kan. at 64 (concluding that prosecutor's statements “ ‘you know she's telling the truth’ “ and “ ‘the truth shows you beyond a reasonable doubt the defendant is guilty of the crimes with which he is charged’ “ were inappropriate comments on the victim's credibility).
Although the prosecutor's comment that H.C. told the truth constituted an inappropriate comment on H.C.'s credibility, a review of the trial records reveals that this improper comment did not deprive Blanks of a fair trial. The prosecutor's objectionable statement was not gross or flagrant or motivated out of ill will because the prosecutor commented on H.C.'s credibility one time, the remark was made extemporaneously during rebuttal closing, and the comment did not violate an order of the court. Furthermore, looking at the prosecutor's statement in context, it is evident that the prosecutor tied the comment to factual elements of H.C.'s testimony.
“[H.C] got up the next morning and ran a full mile across a field of crops, through the mud, in the woods, over a barbed-wire fence. She's all scraped up and injured. Why would [H.C] make up any of that? No, [H.C] sat there and told you the truth. She told you she got drunk. She told you about guzzling a Long Island Iced Tea.
“She told you all the dirty laundry that she's probably embarrassed to have to talk about. But she did it. She did it because she believes she was taken advantage of.”
A prosecutor's comment on the credibility of a witness is not as objectionable when such a comment is made within the context of a discussion of the evidence and asks the jurors to draw reasonable inferences based upon that evidence. See State v. Chanthaseng, 293 Kan. 140, 148,261 P.3d 889 (2011).
A review of the entire trial record also assuages any reasonable doubt that the prosecutor's improper comment on H.C.'s credibility affected the outcome of the trial. H.C. testified about her alcohol consumption, but she was unable to remember the events that transpired from the time that she chugged her Long Island Iced Tea to the time that she remembered coming to and seeing Blanks standing in front of her. The critical issue in the case was whether H.C.'s intoxication during that time period impaired her ability to consent to sexual intercourse and whether this impairment was known or readily apparent to Blanks. There was direct and overwhelming testimony from several of H.C's friends and other witnesses who saw H.C. during this period of time, and this testimony showed that H.C's impairment impacted her physical and cognitive functions. Thus, there is no reasonable possibility that the prosecutor's misconduct affected the outcome of the trial.
Fourth Comment
Finally, Blanks argues that the prosecutor argued facts not in evidence during the rebuttal closing when the prosecutor stated, “For all he cared, she could have gone off and died in the ditch. She could have fell [sic] down and injured herself or who knows what happens.”
During closing argument, a prosecutor must confine his or her comments to facts that are in evidence, and it is improper for a prosecutor to state facts that are not in evidence. State v. Ly, 277 Kan. 386, Syl. ¶ 4, 85 P.3d 1200,cert. denied541 U .S. 1090 (2004). Blanks has failed to demonstrate that the prosecutor's comments fell outside the wide latitude granted to a prosecutor in discussing the evidence. Specifically, the following exchange that occurred during the State's cross-examination of the defendant is relevant to this analysis:
“[Prosecutor]: You didn't care, did you?
“[Defendant]: I did care.
“[Prosecutor]: You had gotten what you wanted and you didn't care what happened to her, did you? Did you care?
“[Defendant]: I cared that she up and ran like that.
“[Prosecutor]: Did you care about her well-being at that point in time?
“[Defendant]: At that point in time, no, I didn't.
“[Prosecutor]: You didn't care at all, did you? Did you?
“[Defendant]: No, I didn't.
“[Prosecutor]: You'd gotten sex and that's all you were interested in, is that right?
“[Defendant]: Yes.”
The prosecutor's comment that Blanks did not care if H.C. had suffered injuries or died after she ran away from him was a reasonable inference based upon the admissions elicited from Blanks during cross-examination. Thus, the prosecutor did not argue facts not in evidence and did not engage in misconduct during that portion of the rebuttal closing.
Blanks has failed to demonstrate that the prosecutor's statements during closing argument prejudiced the jury and deprived him of a fair trial. We affirm Blanks' conviction.
Criminal History Score
Interpretation of the Kansas Sentencing Guidelines Act is a question of law over which an appellate court exercises unlimited review. State v. Davis, 275 Kan. 107, 124, 61 P.3d 701 (2003). Whether the proof presented by the State is sufficient to show a prior conviction is a factual issue. An appellate court's review is limited to determining whether substantial competent evidence supports the district court's finding that a prior offense should be used in calculating the defendant's criminal history score. State v. Presha, 27 Kan.App.2d 645, 648, 8 P.3d 14,rev. denied 269 Kan. 939 (2000).
Blanks contends that the district court erred in calculating his criminal history by including five Florida felonies in his criminal history. Blanks argues that the district court should not have included those felonies in his criminal history because even though he pleaded no contest to those felonies, the Florida trial court granted Blanks a deferred adjudication and never made a finding of guilt.
Prior to sentencing, Blanks objected to the criminal history contained in the PSI report and provided copies of the journal entries from Florida showing that Blanks had pleaded no contest to five felonies and two misdemeanors. The Florida journal entries showed that the trial court withheld adjudication as to the five felony charges, adjudicated Blanks guilty of the two misdemeanor charges, and sentenced Blanks to a term of probation. The journal entries specified that in the event that Blanks violated the terms and conditions of his probation, the trial court “may revoke your probation/community control, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence which it may have imposed before placing you on probation/community control, or require you to serve the balance of said sentence.” The district court overruled Blanks' objection to his criminal history, finding that the Florida journal entries adequately demonstrated the proceedings in Florida would have resulted in a finding of guilt under Kansas law and that the Florida felonies were properly included in Blanks' criminal history.
Blanks argues that the district court erred in including his Florida felonies in his criminal history because Florida's deferred adjudication procedure is analogous to a diversion in Kansas, and therefore, those Florida felonies should not be included in his criminal history.
In Presha, a panel of this court recognized that diversions are not included in criminal history. Presha, 27 Kan.App.2d at 648 (citing K.S.A. 21–4710[a] ). However, Blanks' argument that Florida's deferred adjudication procedure is the equivalent of a diversion is not persuasive. Fla. Stat § 948.01 (2010) governs when a trial court may place a defendant on probation. Specifically, Fla. Stat. § 948.01(1) provides:
“Any state court having original jurisdiction of criminal actions may at a time to be determined by the court, with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of a defendant in a criminal case, except for an offense punishable by death, who has been found guilty by the verdict of a jury, has entered a plea of guilty or a plea of nolo contendere, or has been found guilty by the court trying the case without a jury.”
Pursuant to this statute, a Florida trial court has the discretion to impose probation in three situations: (1) when the defendant has been found guilty by a jury; (2) when the defendant has entered a plea of guilty or no contest; or (3) when the defendant has been found guilty by the court after a trial to the bench. Moreover, the trial court has the discretion to impose probation in these three circumstances regardless of whether the court adjudicates the defendant guilty of the offense or withholds adjudication.
Presha and State v. Macias, 30 Kan.App.2d 79, 39 P.3d 85,rev. denied 273 Kan. 1038 (2002), are helpful in addressing Blanks' argument that Florida's deferred adjudication procedure is equivalent to a diversion. In Presha, a panel of this court held that Presha's prior juvenile adjudication from Florida was properly included in his criminal history even though the Florida trial court withheld adjudication. The panel compared the Florida juvenile adjudication procedures to those in Kansas and discerned that Kansas law required adjudication if the district court found that the juvenile violated the law but that Florida law granted the trial court the discretion to withhold adjudication if the court found that the juvenile violated the law. Presha, 27 Kan.App.2d at 648–49. The panel concluded that once the foreign court finds that the defendant violated the law, the question of whether that offense is included in the defendant's criminal history in Kansas turns on “whether under Kansas law the defendant would have been deemed to have been adjudicated.” Presha, 27 Kan.App.2d at 648.
In Macias, the defendant argued that several Texas crimes should not have been included in his criminal history because he received a deferred adjudication, which the defendant argued was the equivalent of a diversion in Kansas. The Macias court rejected this argument, noting that a trial court in Texas may defer adjudication only after the defendant has pled guilty or no contest or is found guilty at trial. In contrast, the panel noted that a Kansas diversion required an offer from the prosecutor, did not require the defendant to enter a plea or go to trial, and did not require the district court to find the defendant guilty. Macias, 30 Kan.App.2d at 81–82. The panel concluded that Macias' deferred adjudications were properly included in his criminal history because his guilt had been factually established during the proceedings in Texas. The panel observed that the critical matter is “whether the foreign state concluded the defendant did the crimes, not whether he or she ultimately had to do the time.” Macias, 30 Kan.App.2d at 83.
Presha and Macias are dispositive and necessitate the conclusion that Blanks' deferred adjudications were properly included in his criminal history. The deferred adjudications that Blanks received in Florida do not share any of the earmarks of a diversion. His deferred adjudications were not contingent upon an offer from the prosecutor and required the trial court to make a finding of guilt after there was a trial or a plea. Furthermore, even though the Florida trial court had the discretion to withhold adjudicating Blanks guilty after he pled no contest to several felonies, the court still had to find that Blanks committed the offenses to which he pled.
Blanks argues that both Presha and Macias are distinguishable. First, Blanks argues that Presha is distinguishable because a court has no discretion to accept a plea in juvenile cases. Blanks focuses on K.S.A.2011 Supp. 38–2345, which provides that a district court shall adjudicate a juvenile to be a juvenile offender after accepting the juvenile's plea. In contrast, Blanks points out that K.S.A.2011 Supp. 22–3210(a) provides that a district court may accept a no contest plea after procedures are followed, including ensuring that there is a factual basis for the plea. See K.S.A.2011 Supp. 22–3210(a)(4). Therefore, Blanks asserts that for criminal history purposes, a no contest plea entered by an adult in a Florida case should not be treated like a juvenile no contest plea in a Florida case because, under Kansas law, a judge would be required to accept the juvenile plea but has discretion to accept a no contest plea entered by an adult. Second, Blanks argues that Macias is distinguishable because the trial court in Texas reviewed the evidence and found that Macias' guilty plea had factual support. Blanks argues that there was no evidence showing that the Florida court acted likewise before accepting his pleas.
Blanks' attempts to distinguish Presha and Macias are unpersuasive. First, the fact that a district court has the discretion to accept a no contest plea entered by an adult, provided that certain conditions are satisfied, is inconsequential. Under Florida law, when a defendant pleads guilty or no contest, a trial court has the option of imposing probation after it withholds adjudication. Blanks concedes that he pleaded no contest in his Florida case, and the journal entries show that Blanks was placed on probation. Had Blanks entered his no contest pleas in Kansas, the district court would have had to have accepted his pleas and found him guilty before it could have placed him on probation. Because Blanks would have been deemed to have been adjudicated under Kansas law, the district court properly included his Florida felonies in his criminal history.
Second, the fact that the journal entries do not specifically declare that the Florida trial court considered evidence or received a factual proffer after taking Blanks' no contest pleas does not mean that Blanks' factual guilt was not established at the time of his pleas. Fla. Stat. § 948.01(1) allows atrial court to withhold adjudication after a defendant is found guilty at a jury trial, a bench trial, or after a defendant enters a guilty or no contest plea. Although the phrase “found guilty” is used only when referring to guilt established after a jury trial or a bench trial, a defendant's plea of guilty or no contest establishes that a defendant violated the law. Therefore, Blanks' no contest pleas and subsequent deferred adjudications had the same effect as the pleas and deferred adjudications in Presha, and the district court properly included Blanks' Florida felonies in his criminal history.
There was substantial competent evidence to support the district court's inclusion of Blanks' Florida felonies in his criminal history score. We affirm Blanks' sentence.
Affirmed.