Opinion
No. 106,210.
2013-01-11
STATE of Kansas, Appellee, v. Christina Mika Isabel ORTEGA, Appellant.
Appeal from Finney District Court; Michael L. Quint, Judge. Randall L, Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jennifer V. Cunningham, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, Judge.
Randall L, Hodgkinson, of Kansas Appellate Defender Office, for appellant. Jennifer V. Cunningham, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christina Mika Isabel Ortega appeals from her convictions for attempted aggravated interference with parental custody and disorderly conduct. She argues that the jury instructions were clearly erroneous; the State committed prosecutorial misconduct; the evidence was insufficient to convict her of attempted aggravated interference with parental custody; and there was cumulative error. We affirm.
Ortega was charged with attempted aggravated interference with parental custody, in violation of K.S.A.2010 Supp. 21–3301 and K.S.A. 21–3422a(a)(2)(C), and disorderly conduct, in violation of K.S.A. 21–4101, stemming from an incident at her daughter's school.
Facts
At Ortega's jury trial, Donna Johnstone, a social worker with Garden City Social and Rehabilitation Services (SRS), testified about Kansas' child custody process. She explained that Saint Francis Community Services (St.Francis) was an SRS contractor which specializes in foster care placement and monitoring; how a child becomes a ward of the State—an affidavit is filed with the court, a hearing is held, and a judge decides whether the child should be placed in SRS custody; and what happens when a child becomes a ward of the State—SRS, St. Francis, and the court have legal authority to make decisions regarding the child, so a biological parent cannot take the child out of town or state. Johnstone also testified that on September 9, 2010, SRS had custody of Ortega's daughter, 14–year–old V.O., who had been placed in foster care.
The “Order Authorizing Removal of Juvenile,” issued on August 30, 2010, states the following: (1) the court found that “[r]easonable efforts are not required to maintain the juvenile in the home because an emergency exists which threatens the safety of the juvenile—[m]other and father's whereabouts are unknown, grandmother is caring for child, but has no legal authority to do so”; (2) the court further found that “remaining in the home ... is contrary to the welfare of the juvenile and/or immediate placement is in the best interest of the juvenile—[c]hild lacks proper care and control, necessary for her safety and well being, as parents have abandoned the child. It is in the child's best interests to be placed in SRS custody, placement at their discretion, preferred placement with Juana Ortega, grandmother”; and (3) the court ordered that “the above named juvenile shall be ... placed in the custody of ... SRS.” A copy of the order was sent to the county attorney, guardian ad litem, and SRS, but not to any interested party. The order was admitted into evidence.
Johnstone further testified that parents usually attend the custody hearing, but Ortega did not because she was in Colorado and had been for 6 weeks. The court mailed a summons but Johnstone did not know whether Ortega received it. Johnstone did not notify Ortega of the custody hearing or order, but St. Francis is required to notify parents, if their whereabouts are known, within 24 hours of an SRS referral. V.O. was initially placed with her maternal grandmother, but St. Francis moved her into foster care because her grandmother “could not continue caring for the children.” Finally, Johnstone testified that SRS did not give Ortega permission to take V.O. out of school or state.
Juana Ortega testified that she had been watching V.O. while her daughter, Ortega, was out of town. During that time, V.O. was taken from Juana and placed with SRS; Juana attended the custody hearing. When Ortega called from Colorado with news that she was having trouble getting back to Kansas for financial reasons, Juana told her SRS had taken custody of V.O. Ortega had moved in with Juana in September 2010. Juana told Ortega the children had been placed in foster care but Ortega “could go pick them up.” Juana thought Ortega would pick up the children but did not think she would take them to Colorado “because in Colorado she didn't have anywhere to live.” Juana did not know that Ortega could not pick up V.O.
Armida Perez, the attendance secretary at Kenneth Henderson Middle School, testified that on September 9, 2010, in the early morning, Ortega entered the front office and told Perez “she had a good job in Colorado” and “was there to take [V.O.] with her to Colorado.” Ortega, who appeared upset and nervous, also told Perez “how unhappy she was with this fucking state” and mumbled something about St. Francis. Perez pointed to a paper and told Ortega to sign V.O. out. Perez told Ortega that she was going to get V.O., but she went to the associate principal's office instead.
The “Student Check–Out Sheet,” which Perez saw Ortega sign, included the following columns: Date; Student's Name; Reasons for Leaving; Time Left; Checked Out By; and Time Returned. The first row was filled out this way: 9/9, [V.O.], going out of town, 11:00pm, C.O. [signature]. The teacher “Sign Out Sheet,” which Ortega mistakenly signed, includes the following columns: Name; Reason for Leaving; Date; Time Out; Time In. One row was filled out this way: [V.O.], trip, 9/9, 8:49. Both sign-out sheets were admitted into evidence.
Tamara Delarosa, the associate principal, testified she discussed the release of V.O. with Perez. Perez stated she was hesitant to release V.O. to Ortega because Perez knew V.O. was in foster care through St. Francis. Delarosa summoned Officer Brandy Unruh, the school resource officer, for assistance. Delarosa also called security because she heard Ortega “raising her voice” and “getting agitated.” V.O. told Delarosa she was in foster care, was not allowed to have contact with her mother, and would not leave with her mother. Delarosa decided not to release V.O.
Officer Unruh testified she called St. Francis to ascertain V.O.'s custodial status. After being informed that Ortega did not have custody of V.O., Unruh met with Ortega in the lobby where she had been intercepted by Robert Padilla, the campus supervisor. Ortega was yelling: “You white bitches can't keep me from my child”; “You white bitches have picked on ... the wrong Mexican”; “[T]his fucking school is nothing but a bunch of prejudiced people, including you, Mother Fucker”; “Kansas is black and white, and [I'm] Mexican, ... Fucking Kansas is stupid”; and “Kansas doesn't know who they're messing with, ... When Aztlan rises, we're going to take our lands back.” Officer Unruh called another police officer for backup. Ortega admitted she knew that V.O. was in foster care. When Officer Unruh and Padilla told her V.O. was in SRS custody and could not be taken, Ortega said angrily that “it didn't matter ... she was going to take [V.O.] anyway” because “she ha[d] a house and a job in Colorado and she was going to raise her kids there, and that Kansas is not the place to raise her kids.”
Officer Unruh testified that she told Ortega she had to leave the school and could contact St. Francis with any questions. Unruh thought Ortega might come back because her parting words were: “[Y]ou're going to regret this. You're ... messing with the wrong Mexican.... Don't worry, you haven't seen the last of me.” Ortega left the school without ever contacting V.O. The school did not go into lockdown, but they locked every outside door except the front ones because Ortega was “so angry” and “really wanted to get to her daughter.” Padilla watched the front doors until he received word that Ortega was in police custody.
Officer Andrew Roush, a Garden City police officer, testified he responded to Officer Unruh's call and encountered Ortega at the curb of the school. Ortega waved her arms and yelled obscenities at him. She said, “I'm here, I'm here,” and something about “a crazy white cop.” Officer Roush did not pursue Ortega because he and Officer Unruh were called to an Amber Alert a few blocks away. He revisited Ortega's case the next day, though, when St. Francis called to report that she had been there. Officer Roush tracked down Ortega at SRS and arrested her. She responded to news of the attempted aggravated interference with parental custody charge this way: “That was my goal, to piss everyone off.”
Ortega took the stand in her own defense. She testified she had left V.O. with Juana in August 2010 and gone to Colorado with the intention of staying there for 3 days. But she ended up staying for “a little over a month” because she had lost her purse and did not have any money or identification to get back. She did not have a forwarding address, but she called Juana twice a week from borrowed phones “to make sure that the children were okay.” When she returned to Garden City on September 8, 2010, Juana told her V.O. had been “taken away.” The next day, Ortega went to the school to see V.O. She was not aware that V.O. was in SRS custody—she had not been notified of the custody hearing, had not received any paperwork regarding V.O.'s custodial status, and had no idea what SRS custody meant. Therefore, she did not know that she could not have contact with V.O. or take her out of school. Ortega explained that although she told school officials she might be taking V.O. out of town, she “wasn't really planning on going anywhere” because she “didn't have any money to go out of town.” She had no intention of going to Colorado “in the immediate future”—she had $10 in her pocket, no household belongings or suitcases packed in her car, and no home or job in Colorado. She just wanted to take V.O. out of school so that she could see her.
Ortega further testified that had she been able to collect V.O., V.O. would have been back at school the next day. Ortega was upset, did not want V.O. to be in SRS custody, and, “to a certain extent” would have done whatever she could to prevent her from living in a foster home. But she would not have intentionally broken the law to get V.O. out of SRS custody.
The jury found Ortega guilty on both counts. The district court granted her motion for durational departure and sentenced her to a controlling term of 10 months' imprisonment. She timely appeals.
Jury Instructions
Ortega first argues the district court committed clear error by failing to instruct the jury on the defense of ignorance or mistake; failing to instruct the jury on the lesser included offense of attempted interference with parental custody; and instructing the jury on reasonable doubt using the old pattern instruction.
Ortega did not propose instructions on the defense of ignorance or mistake or the lesser included offense of attempted interference with parental custody. The State, however, did propose the lesser included offense instruction. Ortega did not object to the district court's selected instructions.
The Kansas Supreme Court recently clarified the standard of review applicable to jury instruction issues. The threshold determination is whether the issue is reviewable. A defendant who did not object at trial can raise a jury instruction issue on appeal but bears the burden of showing clear error. See K.S.A. 22–3414(3) (“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto ... unless the instruction or the failure to give an instruction is clearly erroneous.”). The appellate court must then determine whether an instruction error occurred, which is a question of law subject to unlimited review, before determining whether the instruction error was reversible, which is a question that requires de novo review. State v. Williams, 295 Kan. 506, 286 P.3d 195, 202 (2012) (instruction error is clearly erroneous where “the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”).
Ortega's first complaint is that the district court did not give the jury the instruction on ignorance or mistake. PIK Crim.3d 54.03 provides: “It is a defense in this case if by reason of ignorance or mistake the defendant did not have at the time the mental state which the statute requires as an element of the crime.” See K.S.A.2010 Supp. 21–3203(1) (“A person's ignorance or mistake as to a matter of either fact or law ... is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.”). Because Ortega failed to request PIK Crim.3d 54.03 or object to its omission, we must first determine whether it was error at all to omit the instruction.
“Interference with parental custody is leading, taking, carrying away, decoying or enticing away any child under the age of 16 years with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.” K.S.A. 21–3422(a). “Aggravated interference with parental custody is ... the commission of interference with parental custody, as defined by K.S.A. 21–3422 ..., by a person who ... takes the child outside the state without the consent of either the person having custody or the court.” K.S.A. 21–3422a(a)(2)(C).
Attempt and interference with parental custody are specific intent crimes. State v. Brown, 291 Kan. 646, 654–55, 244 P.3d 267 (2011) (K.S.A. 21–3301[a] defines attempt as an overt act toward the perpetration of a crime done “by a person who intends to commit such crime.”); State v. Wiggett, 273 Kan. 438, 444, 44 P.3d 381 (2002) (Interference with parental custody is removal of the child “with the specific intent to detain or conceal the child” from the lawful custodian or parent.).
Ortega testified that when she went to the school on the day in question, she knew that her children had been taken from Juana but she did not know that SRS had custody of V.O. Under this version of events, Ortega attempted to take V.O. from school, but she did not attempt to commit aggravated interference with parental custody because she lacked the specific intent to detain or conceal V.O. from her lawful custodian. An instruction error did occur because Ortega's ignorance of the fact that SRS had custody of V.O. negated the specific intent necessary to commit attempted aggravated interference with parental custody.
But the instruction error was not clearly erroneous because we are not firmly convinced that the jury would have acquitted Ortega of attempted aggravated interference with parental custody had PIK Crim.3d 54.03 been given. Defense counsel was not prevented from arguing that Ortega lacked the intent to detain or conceal V.O. from SRS. See State v. Diaz, 44 Kan.App.2d 870, 873, 241 P.3d 1018 (2010) (“Although termed a ‘defense,’ the mistake-of-fact doctrine merely encapsulates the State's burden to prove every element of the offense,” e.g., the requisite mental state), rev. denied 29 Kan. 913 (2011). Defense counsel presented evidence that when Ortega drove to the school, she did not even know the meaning of SRS custody, let alone that V.O. was in SRS custody. In his opening and closing statements, he focused on the fact that Ortega did not attend the custody hearing and was not provided paperwork regarding V.O.'s custodial status. But the jury evidently believed the sea of contrary evidence presented by the State—Juana's testimony that she told Ortega V.O. was in SRS custody, Perez' testimony that Ortega said she was upset with the State of Kansas, and Unruh's testimony that Ortega said she knew V.O. was in foster care.
Ortega's also contends the district court did not give the jury the instruction on the lesser included offense of attempted interference with parental custody. Again, because Ortega failed to request the instruction or object to its omission, we must first determine whether it was error at all to omit the instruction. To make such a determination, we “must necessarily look first at whether it was legally and factually appropriate for the district court to give a lesser included offense instruction” on attempted interference with parental custody. Williams, 295 Kan. at _.
Here, the instruction would have been legally permissible because attempted interference with parental custody is a lesser included offense of attempted aggravated interference with parental custody. See K.S.A. 21–3107(2)(b) (A lesser included crime is a “crime where all elements of the lesser crime are identical to some of the elements of the crime charged.”). Further, the giving of a lesser included crime instruction is not a matter of discretion with the district judge. See K.S.A. 22–3414(3) (“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime ..., the judge shall instruct the jury as to the crime charged and any such lesser included crime.”). An instruction error did occur because there was conflicting evidence regarding where Ortega intended to take V.O. Perez testified that Ortega stated her intention to take V.O. to Colorado, and Unruh testified that Ortega said she had a house and job in Colorado and planned to raise her children there. Whereas Juana testified that Ortega would not take the children to Colorado because she did not have a place to live there, and Ortega testified that she intended to take V.O. out of school for 1 day rather than take her to Colorado because she had no money, belongings, prospective housing, or employment.
However, the instruction error was not clearly erroneous because we are not firmly convinced of which crime the jury might have chosen, as between attempted aggravated and attempted simple interference with parental custody. See Williams, 295 Kan. at 524 (“That degree of certainty, or perhaps more accurately, that degree of uncertainty falls short of what is required to meet the clearly erroneous standard.”).
Ortega's final complaint is that the district court's insertion of the word “any” in place of the word “each” in the reasonable doubt instruction constituted structural error because it “improperly relieved the prosecution of the burden to prove ‘each and every element beyond a reasonable doubt.’ “ Here, the jury was instructed: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” Because Ortega failed to object to this instruction, we must first determine whether it was error at all to give the instruction.
In State v. Beck, 32 Kan.App.2d 784, 785, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004), the defendant objected to the same reasonable doubt instruction given at Ortega's trial. The Beck court found that district courts should use the current version of PIK Crim.3d 52.02—“If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty”—because it provides the most accurate test for reasonable doubt. In other words, an instruction error occurs where, as here, the old pattern reasonable doubt instruction is used.
But the instruction error was not clearly erroneous because we are not firmly convinced that the jury would have acquitted Ortega had the current version of PIK Crim.3d 52.02 been given. The Beck court held that the elements instruction negated the possibility that the defendant had been convicted where only one element of the crime had been proven. 32 Kan.App.2d at 787–88. Here, the jury instructions on attempted aggravated interference with parental custody and disorderly conduct stated: “To establish this charge, each of the following claims must be proved....” Like in Beck, this language negated any potential confusion that may have been caused by the old pattern reasonable doubt instruction.
Beck has been consistently followed by the Court of Appeals. See State v. Womelsdorf, 47 Kan.App.2d 307, 332–34, 274 P.3d 662 (2012), petition for review filed May 10, 2012; State v. Myers, No. 105,252, 2012 WL 2476978, at *8–10 (Kan.App.2012) (unpublished opinion), petition for review filed September 4, 2012; State v. Kling, No. 106,361, 2012 WL 2045375, at *2–3 (Kan .App.2012) (unpublished opinion), petition for review filed July 2, 2012. But see State v. Derringer, No. 106,119, 2012 WL 4373006, at *5–6 (Kan.App.2012) (unpublished opinion) (reasonable doubt instruction error considered in reversal for cumulative error), petition for review filed October 18, 2012.
Therefore, the jury instructions were not clearly erroneous.
Prosecutorial Misconduct
Ortega next argues the State committed prosecutorial misconduct by violating the order in limine; improperly bolstering the credibility of witnesses; and misstating the law on the defense of ignorance or mistake.
Ortega filed a pretrial motion in limine to preclude the prosecution and any State's witnesses from “offering, introducing, displaying, exhibiting, referring to, or mentioning in the presence of the jury any prior crimes alleged or proven as having [Ortega] involved,” and “from ... testifying to ... or implying [any] prior crimes of [Ortega].” The district court sustained her motion.
The prosecutor made the following statement in his opening argument: “We have not charged this additional information, but we will also present you evidence that on the same day, on September 9th, the defendant had another child named [E.B.]. We will present you evidence that this [E.B.] was at school on the same day.” When Ortega objected on relevance grounds, the district court reserved its ruling. The prosecutor continued:
“We will present you evidence that on the exact same day she tried to do the exact same thing. She went to pick up another one of her children [E.B.]. And when she did that, when she arrived at the school to pick up [E.B.], she told the people there, I want my child. I'm taking my child out of town. I'm taking my child to Colorado.”
Before the State finished presenting its case-in-chief, the district court held a hearing on the proffered evidence regarding E.B. The court ruled that the prosecutor had violated the order in limine because “there was at least an inference that Ms. Ortega could have been charged with another incident, certainly that some wrongdoing was occurring as a result of her involvement with her son .” But the court refused to grant Ortega's motion for a mistrial because “there isn't anything that has been said or done so far that would unfairly prejudice the defense.”
The prosecutor made the following statements in his closing argument:
“And this is going to be a big issue in this case because you're going to have to judge the credibility of witnesses.... The defendant in this case is testifying, and she remembers some things very good, things that help her. Things that don't help her she does not remember quite so well. That is a factor you can use in determining whether anything she said is worthy of your belief today.
“The defendant obviously has a reason for shading the truth in her direction: she doesn't want to be convicted of any crimes. But remember, witnesses came in here and they testified that they saw the defendant, they knew it was her, and they knew that she said these things. What reason do they have to lie to you? Perhaps somebody who might think, well, police officers do this all the time. I don't necessarily know why you would think that, but that's the most cynical possible thing I can think of. Well, set that aside. Do middle school secretaries come into court and lie all the time? Did Ms, Perez or Ms. Delarosa, the principal, have a reason to come in here and tell you that the defendant did something or said something that she didn't really do?
“... But any information about whether or not the defendant got notice about that custody hearing is irrelevant. It doesn't matter.”
Finally, the prosecutor made the following statements in rebuttal:
“Just as an aside, there is some testimony about her mother said to her, ‘But it's okay, you can go ahead and take the kids.’ That's not a defense. That is not a legal defense to this crime, if your mother, who is not a judge or a lawyer, tells you, ‘Yeah, the kids are in SRS custody, but it's okay, you can go get them.’ That is not a defense to this crime. And why would any reasonable person believe that, that because their mother says that they can go get their kids, who are in foster care, who are in SRS custody, they can go ahead and do so?....
“... And she didn't get notice of the hearing. Again, that does not matter.”
A claim of prosecutorial misconduct based on comments made during opening or closing argument, which are not evidence, will be reviewed on appeal even where no contemporaneous objection was made at trial. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Appellate courts use a two-prong analysis to review such a claim. First, the appellate court must decide whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011). If the appellate court finds misconduct under the first prong,
“[it] conducst a harmlessness inquiry, determining whether the misconduct was so prejudicial that it denied the defendant a fair trial. Three factors are considered in making this determination. First, was the misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror. None of these three factors is individually controlling. [Citations omitted.]” State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012).
See State v. Inkelaar, 293 Kan. 414, 430–31, 264 P.3d 81 (2011) (misconduct is “gross and flagrant” if it was repeated or emphasized; deliberate indifference to a court ruling constitutes “ill will”; and evidence is so “direct and overwhelming” if there is no reasonable possibility that the error affected the verdict).
The first prong of the prosecutorial misconduct analysis is met where the prosecutor violated the order in limine in his opening statement. See State v. Breedlove, 295 Kan. 281, 495, 286 P.3d 1123 (2012). By saying, “[O]n the exact same day she tried to do the exact same thing. She went to pick up another one of her children [E.B.],” the prosecutor implied that Ortega had committed another crime. That implication constituted misconduct because it directly contravened the district court's order in limine.
But the prosecutor's statement regarding E.B. was not so prejudicial that it denied Ortega a fair trial. The statement was not gross and flagrant because the prosecutor only once said that Ortega tried to take E.B. from school to Colorado. The statement did not constitute ill will because the prosecutor did not believe it violated the order in limine. He claimed he did not infer that Ortega had committed another crime because “[E.B.] was not in SRS custody” when she tried to take him. Finally, there is no reasonable possibility that the statement affected the verdict because it was duplicative of the plethora of evidence that Ortega intended to take V.O. from school to Colorado.
The first prong of the prosecutorial misconduct analysis is met where the prosecutor offered his or her personal opinion of a witness' credibility. See State v. Stone, 291 Kan. 13, 19, 237 P .3d 1229 (2010). But a prosecutor can make statements based on reasonable inferences from the testimony, explain what the jury should look for when assessing witness credibility, and assert that one of two conflicting stories should not be believed. State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). The prosecutor asked, “What reason do [the school officials] have to lie to you?” The prosecutor did not offer his personal opinion on witness credibility. He merely explained what the jury should look for when assessing the credibility of the school officials and asserted that Ortega's story should not be believed. Most importantly, he reminded the jurors of their duty to “judge the credibility of witnesses.” The prosecutor's statement on the credibility of the school officials did not constitute misconduct because it was within the wide latitude afforded the State to discuss evidence.
The first prong of the prosecutorial misconduct analysis is also met where the prosecutor misstated the law. See State v. Magallanez, 290 Kan. 906, 915, 235 P.3d 460 (2010). By saying, “[Ortega's] mother said to her, ... ‘[Y]ou can go ahead and take the kids.’ That's not a defense,” the prosecutor correctly explained that Ortega could not assert the mistake-of-law defense, i.e., she did not know a child in SRS custody could not be taken. See K.S.A. 21–3203(2) (“A person's reasonable belief that his conduct does not constitute a crime” is only a defense in enumerated circumstances.).
Conversely, by saying, “[W]hether or not [Ortega] got notice about that custody hearing is irrelevant,” the prosecutor incorrectly suggested that Ortega could not assert the mistake-of-fact defense, i.e., she did not know V.O. was in SRS custody. See K.S.A. 21–3203(1) (“A person's ignorance or mistake as to a matter of either fact or law ... is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.”). That suggestion constituted misconduct because it misstated the law.
But the prosecutor's statement on the mistake-of-fact defense was not so prejudicial that it denied Ortega a fair trial. The statement was not gross and flagrant because the prosecutor only deemed Ortega's notice of the custody hearing irrelevant twice. The statement did not constitute ill will because it did not violate a court ruling. There is no reasonable possibility that the statement affected the verdict. The prosecutor correctly explained to the jury that the State was not required to prove Ortega received notice of the custody hearing. The testimony of three witnesses indicated that despite her lack of notice of the custody hearing, Ortega knew V.O. was in SRS custody.
Therefore, the State did not commit prosecutorial misconduct.
Sufficiency of the Evidence
Ortega also argues the evidence was insufficient to support her attempted aggravated interference with parental custody conviction because the State failed to present evidence that she performed an overt act towards the commission of the crime, or intended to decoy or entice V.O. away from SRS.
To convict Ortega of attempted aggravated interference with parental custody, the State had to prove she performed an overt act towards the commission of the crime, and acted with the intent to commit the crime, which required her to take, carry, decoy, or entice V.O. away from SRS and take her out of state. See K.S.A.2010 Supp. 21–3301(a), K.S.A. 21–3422(a), K.S.A. 21–3422a(a)(2)(C).
When sufficiency of the evidence is challenged in a criminal case, the appellate court must consider all the evidence, viewed in the light most favorable to the prosecution, and determine whether 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). Because it is the jury's function to weigh the evidence and determine the credibility of witnesses, we will not reweigh the evidence. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011); see State v. Peterman, 280 Kan. 56, 61, 118 P.3d 1267 (2005) ( “It is the jury's function to determine whether an overt act occurred.”). Additionally, “[t]he question of whether alternatives within a statute define alternative means or ‘an option within a means' is a question of law subject to de novo review. [Citation omitted.]” State v. Rojas–Marceleno, 295 Kan. 525, 285 P.3d 361, 377 (2012).
Ortega's first evidentiary claim is that filling out sign-out sheets was not an overt act towards the commission of aggravated interference with parental custody. “Although the overt act does not have to be the last proximate act in the consummation of the crime, it must be either the first or some subsequent step in a direct movement toward the commission of the crime....” Peterman, 280 Kan. at 61; see State v. Garner, 237 Kan, 227, 238–40, 699 P.2d 468 (1985) (arriving at scene where the crime was to occur constituted an overt act).
Here, a rational factfinder could have found that Ortega performed the first step in a direct movement toward the crime by going to V.O.'s school, and a subsequent step toward the crime by filling out the sign-out sheets. Furthermore, a rational factfinder could have found that Ortega performed the overt acts with the intent to take V.O. to Colorado, based on her comments to school officials. The State certainly was not required to prove that Ortega performed the next step toward the crime (took V.O. out of school) and the final act in the consummation of the crime (took her to Colorado).
Ortega's second evidentiary claim is that “leading, taking, carrying away, decoying or enticing away any child” creates alternative means of committing attempted aggravated interference with parental custody. She does not argue that there was insufficient evidence of the first three means—leading, taking, or carrying away. Instead, she argues that the State did not present sufficient evidence of the last two means—decoying or enticing away.
Appellate courts use a two-step analysis to review alternative means claims. First, the appellate court must determine whether the case truly presents an alternative means issue. If the court identifies an alternative means issue, it must then determine whether there was sufficient evidence of each means alleged by the State and included in the jury instructions. Rojas–Marceleno, 295 Kan. at ____.
In State v. Brown, 295 Kan. 181, 199–200, 284 P.3d 977 (2012), our Supreme Court summarized Kansas' alternative means methodology:
“In summary, in determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.”
To determine whether this case presents an alternative means issue, we must examine the language of the relevant statutes. K.S.A.2010 Supp. 21–3301(a) defines attempt as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21–3422a(a)(2)(C) defines aggravated interference with parental custody, in part, as “the commission of interference with parental custody,” which is defined in K.S.A. 21–3422(a) as “leading, taking, carrying away, decoying or enticing away any child ... with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child.”
The language of the charge and the jury instruction in this case were consistent with the statutory language. The charge alleged Ortega violated K.S.A.2010 Supp. 21–3301 and K.S.A. 21–3422a(a)(2)(C) and asserted “[t]hat on or about the 9th day of September, 2010, in Finney County, Kansas, Christina Mika Isabel Ortega, then and there being present did unlawfully and feloniously [attempted to] lead, take, carry, decoy or entice away a child under sixteen (16) years of age ... with the intent to detain or conceal said child from the person having lawful charge of said child.” (Emphasis added.) The jury was instructed in relevant part that (1) the State was required to prove “the defendant performed an overt act towards the commission of the crime of aggravated interference with parental custody ... with the intent to complete commission of the crime,” and (2) “[t]he elements of the completed crime ... are ... [t]hat the defendant led, took, carried, decoyed or enticed the child away ... with the intent to detain or conceal the child from a person having lawful charge.”
We find that the legislature did not define the requisite actus reus element for interference with parental custody under K.S.A. 21–3422(a) in two or more distinct ways. The gravamen of the crime is the defendant's act of removing a child from lawful custody. The terms “decoy” or “entice” can be accurately described as merely descriptive of the types of factual circumstances that may form the State's proof of the act element of the crime. Accordingly, this case does not present an alternative means issue. See Rojas–Marceleno, 291Kan. at __; Brown, 295 Kan. at 202.
Even if this case did present an alternative means issue, the State presented sufficient evidence that Ortega intended to decoy or entice V.O. away.
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]’ “ State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
See State v. Wright, 290 Kan. 194, 202–03, 224 P.3d 1159 (2010) (reversal required if super-sufficiency of the evidence standard not met).
“[A] conviction ‘can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom.’ “ State v. Drayton, 285 Kan. 689, 711, 175 P.3d 861 (2008) (quoting State v. Bird, 240 Kan. 288, 299, 729 P.2d 1136 (1986), cert. denied481 U.S. 1055 [1987] ). “ ‘If an inference is a reasonable one, the jury has the right to make the inference.’ “ Drayton, 285 Kan. at 711 (quoting State v. Ordway, 261 Kan. 776, 804, 934 P.2d 94 [1997] ).
By charging Ortega with attempted aggravated interference with parental custody, the State had to prove she intended to (1) take, carry, decoy, or entice V.O. away from SRS and (2) take her out of state, not that she actually did those two things. The prosecutor explained this to the jury during his rebuttal: “[T]hat the defendant ... led, took, carried, decoyed, or enticed the child away. Remember, we don't have to prove that she did it. We have to prove that she attempted to do it.” Based on Delarosa's testimony that V.O. would not have left with Ortega, and Ortega's testimony that she would have done whatever she could to prevent V.O. from living in a foster home, the jury could have reasonably inferred that Ortega intended to decoy or entice V.O. away from SRS.
Therefore, there was sufficient evidence to convict Ortega of attempted aggravated interference with parental custody.
Cumulative error
Finally, Ortega argues that cumulative error deprived her of a fair trial.
Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State v.. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3 1105 (2009).
Our Supreme Court has recognized that the federal and state constitutions do not guarantee a perfect trial, but they do guarantee a fair one. See Magallanez, 290 Kan. at 926. Ortega's trial was not perfect: the district court failed to give instructions on ignorance or mistake and attempted interference with parental custody, and used the old pattern reasonable doubt instruction, and the prosecutor committed misconduct by violating the order in limine and misstating the law on the mistake-of-fact defense. But these flaws do not negate the evidence that Ortega committed attempted aggravated interference with parental custody—namely the testimony of school officials that Ortega arrived at the school, filled out the sign-out sheets, and said she was taking V.O. to Colorado, and Unruh's testimony that Ortega said she was going to take V.O. despite V.O. being in SRS custody. Imperfections notwithstanding, Ortega's trial on the evidence was fair.
Therefore, there was not cumulative error.
Affirmed.
* * *
MALONE, J., dissenting.
I respectfully dissent from the majority's conclusion that the district court's failure to give a jury instruction on the lesser included offense of attempted interference with parental custody was not clearly erroneous. In this case, the difference between attempted aggravated interference with parental custody and attempted interference with parental custody is whether Christina Mika Isabel Ortega intended to take V.O. out of state to Colorado. See K.S.A. 21–3422a(a)(2)(C). Based on the evidence presented at trial, there was a substantial fact dispute on this issue. Armida Perez, the attendance secretary at Kenneth Henderson Middle School, testified that Ortega stated her intention to take V.O. to Colorado. Officer Unruh also testified that Ortega said she planned to take V.O. to Colorado. However, Ortega testified that she only intended to take V.O. out of school for 1 day rather than take her to Colorado because she had no money, belongings, prospective housing, or employment in Colorado. Juana Ortega, V.O.'s grandmother, confirmed that Ortega would not have taken V.O. to Colorado because she did not have a place to live there.
The State recognized that a jury instruction on attempted interference with parental custody was warranted because the State submitted an instruction on the lesser offense. I am firmly convinced there is a real possibility that the jury could have found Ortega guilty of the lesser offense of attempted interference with parental custody had the district court given the appropriate jury instruction. Thus, I conclude that the district court's failure to give the lesser offense instruction constituted reversible error.
Furthermore, I believe the prosecutor committed gross and flagrant misconduct by blatantly disobeying the order in limine and by misstating the law on the defense of ignorance or mistake. These errors denied Ortega a fair trial on the charge of attempted aggravated interference with parental custody, but the errors probably had no impact on the disorderly conduct charge. Thus, I would reverse Ortega's conviction of attempted aggravated interference with parental custody and remand for a new trial on that charge.