Opinion
No. 108,304.
2013-11-8
STATE of Kansas, Appellee, v. Javier CORADO, Appellant.
Appeal from Wyandotte District Court; Robert P. Burns, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Elizabeth A. Evers, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Javier Corado appeals after being convicted of attempted rape. He contends the evidence was insufficient to support the conviction and that the district court erred in excluding evidence of E.G.'s prior conviction for prostitution.
We conclude the evidence presented at trial supports the jury's determination Corado committed attempted rape. We further conclude the district court did not err in excluding evidence of E.G.'s prior conviction for prostitution.
Evidence to support attempted rape
E.G. testified that on February 7, 2009, Corado took her to his home where he became violent and attempted to rape her. Her testimony of a violent encounter was supported by the testimony of several witnesses. Felice Myers testified that at about 5 p.m. on February 7, 2009, she was outside barbecuing when she heard cries for help coming from Corado's house. She described the pleas for help as desperate. She then heard glass breaking and saw a woman's head coming out of a window and hitting the bars on the outside of the window. The witness called the police.
David Stanley, a church pastor, testified he was picking up Myers' boys for an evening church service and they told him that their mom was calling 911 because of a commotion near their home. Stanley also called 911 and drove down the block. He rolled down his window and could hear a female screaming for help from the house. Stanley drove past the house while on the phone with 911 because he was not sure if it was safe to stop in front of the house. He then turned his car around and parked at the end of the street. About a minute later, police arrived. Stanley stated that he briefly returned to the Myers' home, and when he left again, he saw a woman sitting on the porch of Corado's house with blood coming down her face.
Officer Lucas Pruitt testified that he was on patrol and responded to a disturbance at approximately 5 p.m. on February 7, 2009. When he got out of his patrol car, he could hear yelling coming from the house. It sounded as if the people inside the house were fighting and arguing. Pruitt observed broken glass in the front porch area and there was a hole through a plastic covering on the inside of a window. Pruitt could see through the window into the kitchen of the house. On the kitchen floor, he saw a male on top of a female, engaged in a struggle. He would later learn the male was Corado and the female was E.G. E.G.'s bra was lifted above her breasts, and Corado was not wearing a shirt. Although Pruitt could see the area between Corado's belly button and private area, he did not see the waistline of pants. Pruitt testified that when he saw the two fighting on the floor, he called out and E.G. got up and told him that Corado was trying to rape her. Corado got up and disappeared behind a wall.
Pruitt noticed that when E.G. came out the front door she was wearing a bra which was raised above her breasts and a pair of underwear that had been ripped and hanging down, exposing her private area. E.G. had scratches and bruises on her body as well as a cut on her finger. Pruitt and another officer then went inside to locate Corado.
The two police officers went through the kitchen and found a locked door that led downstairs; they were able to pry it open, and Pruitt called downstairs but did not receive an answer. He then gave three verbal warnings before eventually deploying his canine unit. Once the dog barked, Pruitt went downstairs and located Corado lying in a bathtub. He was wearing jeans and a flannel shirt. Corado had scratch marks and red marks on his face, forehead, chest, and arm.
Evidence to support a finding of attempted rape
Corado argues that the State failed to prove an essential element of the charged crime of attempted rape, namely that he committed an overt act toward sexual penetration.
When the sufficiency of evidence is challenged in a criminal case, this court reviews such claims “by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there was sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
The jury was instructed that it could find Corado guilty of attempted rape if the State proved beyond a reasonable doubt that he “performed an overt act toward the commission of the crime of rape ... with the intent to commit the crime of rape,” but that he “failed to complete commission of the crime.” Rape was defined as “sexual intercourse ... without the consent of [E.G.] under circumstances when: (a) she was overcome by force.” Sexual intercourse was defined as “any penetration of the female sex organ by the male sex organ.” These instructions generally conform to K.S.A. 21–3301(a), K.S.A. 21–3501(1), and K.S.A. 21–3502(a)(1)(A) and are not being challenged on appeal.
Here, the State provided evidence that Corado used force against E.G. by introducing testimony that he pinned her down, choked her, punched her in the face, and pulled her hair. Officer Pruitt testified that he saw Corado in a state of undress on top of E.G. on the kitchen floor, and neighbors testified that they heard pleas for help coming from the house. The State provided evidence that E.G. did not consent to sexual intercourse by soliciting E.G.'s testimony that she told Corado, “[N]o.... I don't want this,” as well as her recollection that she screamed for him to stop and screamed for help. This was also corroborated by the neighbors' testimony. Evidence of intent “is rarely established by direct evidence and may be proven by facts, circumstances, and inferences reasonably deducible from the evidence.” State v. Halt, No. 99,430, 2009 WL 3428551, at * 10 (Kan.App.2009) (unpublished opinion) (citing State v. Griffin, 279 Kan 634, 638, 112 P.3d 862 [2005] ),rev. denied 291 Kan. 914 (2010). Here, intent to commit the crime of rape was supported by evidence that Corado forcibly removed E.G.'s clothing, tore her underwear, and pinned her down. He also had previously offered her money for sex, which she declined. After Corado fled, the police found him hiding in a bathtub in the basement, wearing pants and a shirt. Taken together, these facts support a reasonable inference that Corado was attempting to rape E.G. and was thwarted by the arrival of police responding to the neighbors' 911 calls. We conclude the evidence was sufficient to support Corado's conviction for attempted rape.
Evidence of E.G.'s prior conviction for prostitution properly excluded
E.G. had been convicted of prostitution in 2006. In a pretrial motion, Corado sought an order from the district court authorizing admission of the journal entry of conviction and cross-examination of E.G. concerning her conviction. Corado averred that four of the Perez factors supported admission of the evidence. See State v. Perez, 26 Kan.App.2d 777, 781, 995 P.2d 372 (1999) (adopting State v. Hudlow, 99 Wash.2d 1, 11, 659 P.2d 514 [1983] ) (discussing factors for relevance of evidence of prior sexual activity under the rape shield law, K.S.A. 21–3525), rev. denied 269 Kan. 939 (2000). Responding to Corado's motion, the State filed a motion in limine requesting that the court prohibit admission of any evidence of prior sexual conduct of the victim.
At a pretrial hearing to resolve these competing motions, the district court ruled that evidence of E.G.'s prior conviction of prostitution was not admissible under K.S.A. 60–421 because prostitution is not a crime of dishonesty. The district court made a preliminary ruling that the evidence was also excluded by the rape shield law, K.S.A. 21–2535, because none of the Perez factors appeared to apply.
At trial, Corado renewed his motion in a timely manner. The district court declined to modify its pretrial rulings excluding evidence of E.G.'s prior prostitution conviction.
An appellate court exercises de novo review of a challenge to the adequacy of the legal basis of a district court's decision on the admission or exclusion of evidence. State v. Gunby, 282 Kan. 39, 47–48, 144 P.3d 647 (2006).
K.S.A. 21–3525(a)(l) and (15) apply to prosecutions for attempted rape, and the statute provides that “evidence of the complaining witness' previous sexual contact with any person including the defendant shall not be admissible” unless the district court finds that the evidence “is relevant and is not otherwise inadmissible as evidence.” K.S.A. 21–3525(b). A defendant seeking admission of a complaining witness' previous sexual conduct must file a pretrial motion together with an affidavit in which an offer of proof is stated. K.S.A. 21–3525(b). The Perez factors that may be considered for relevance are:
“(1) whether there was prior sexual conduct by complainant with defendant; (2) whether the prior sexual conduct rebuts medical evidence on proof of origin of semen, venereal disease, or pregnancy; (3) whether distinctive sexual patterns so closely resembled defendant's version of the alleged encounter so as to tend to prove consent or to diminish complainant's credibility on the questioned occasion; (4) whether prior sexual conduct by complainant with others, known to the defendant, tends to prove he or she believed the complainant was consenting to his or her sexual advances; (5) whether sexual conduct tends to prove complainant's motive to fabricate the charge; (6) whether evidence tends to rebut proof by the prosecution regarding the complainant's past sexual conduct; (7) whether evidence of sexual conduct is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the acts charged; and (8) whether the prior sexual conduct and the charged act of the defendant are proximate in time.” 26 Kan.App. 777, Syl. ¶ 3.
On appeal, Corado does not present argument on all of the four factors from Perez as he did in district court. He now argues E.G.'s prior conviction for prostitution should have been admitted under the third factor (distinctive sexual patterns) and the fifth factor (motivation to fabricate the charge). Consequently, we do not review the other Perez factors to determine if the district court erred. An issue not raised or briefed on appeal is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
No showing of a distinctive sexual pattern
In State v. Monies, 28 Kan.App.2d 768, 774, 21 P.3d 592,rev. denied 271 Kan. 1040 (2001), the district court's determination was upheld that no distinctive sexual pattern was shown where the prior act involved sex for drugs with one partner but the charged act involved sex for drugs with multiple partners. Another panel of our court refused to find distinctive sexual patterns where the defendant alleged that he often made jokes about raping the complainant when, for the first time, he introduced violence and physical restraint into their sexual relationship. State v. Wyler, No. 102,336, 2011 WL 2039731, at *6 (Kan.App.) (unpublished opinion), rev. denied 293 Kan. (November 4,2011).
Here, Corado's motion was not accompanied by an affidavit, and his proffer was limited to a journal entry of E.G.'s 3–year–old conviction for prostitution. Corado's failure to provide an affidavit is both legally and factually significant. Without an affidavit, the underlying circumstances of E.G.'s conviction are unknown. In addition, Corado's theory of defense proffered to support his motion for admission of E.G.'s conviction was not pursued at trial. Significantly, in its ruling in limine, the district court did not bar Corado from pursuing a defense; rather, he would not be allowed to bring up E.G.'s prior prostitution conviction. At trial, Corado did not testify or present any other evidence. Consequently, there is no evidence in the record that there was a proposed money-for-sex discussion and that a fight ensued because E.G. was displeased by the amount paid. Accordingly, we conclude the district court did not err in excluding the evidence because there was no showing of a distinctive sexual pattern.
No showing of relevant evidence
Corado contends E.G.'s conviction for prostitution was relevant to show a motive to fabricate the charge of attempted rape. He argues that E.G. did not want to be caught a second time having sex for money. This argument is without legal merit. First, there is no evidence in the record to support his unsubstantiated theory of consensual sex for money. As we previously noted, Corado did not testify at trial or present any witnesses to support his theory. In its rawest form, Corado's argument is that the journal entry of conviction for prostitution was relevant to prove E.G.'s motive to tell the police that he was attempting to rape her rather than the truth that she had agreed to have sex for money and a violent quarrel ensued. However, there was no foundation evidence presented at trial in support of his argument.
Second, Corado conveniently ignores the evidence that was presented at trial. E.G. testified she had been released from jail for a probation violation and had recently been convicted of theft by deception, a crime of dishonesty. Thus it appears Corado's theory of E.G.'s motive to fabricate to avoid the long arm of the law could have been fully developed without reference to her conviction for prostitution, a class B misdemeanor under K.S.A. 21–3512. We conclude Corado's efforts to lay E.G.'s conviction for prostitution before the jury was not to present relevant evidence as to motive, but rather it was proffered to show she was a prostitute and not to be believed.
Prostitution not a crime of dishonesty
Corado also contends that under K.S.A. 60–420 and K.S.A. 60–421, E.G.'s prostitution conviction was admissible. K.S.A. 60–420 allows “extrinsic evidence concerning any conduct by [a witness] and any other matter relevant upon the issues of credibility” for “the purpose of impairing ... the credibility of [the] witness.” An exception to that general rule appears at K.S.A. 60–421, which prohibits the admission of evidence that a witness has committed “a crime not involving dishonesty or false statement” to impair the witness' credibility. Because E.G. was a witness in Corado's trial, evidence of “any other matter relevant” to her credibility could be introduced by the defense, unless that evidence was of a “crime not involving dishonesty or false statement.” See K.S.A. 60–420; K.S.A. 60–421. Thus, admission of the evidence of her conviction of prostitution turns on whether prostitution is a crime of dishonesty.
Crimes of dishonesty include “perjury, criminal fraud, embezzlement, forgery, or any other offense involving some element of deceit, untruthfulness, or lack of integrity in principle. The issue in determining the admissibility of prior convictions is whether dishonesty is an inherent element of the offense. ” (Emphasis added.) Bick v. Peat Marwick & Main, 14 Kan.App.2d 699, 711–12, 799 P.2d 94,rev. denied 247 Kan. 703 (1990). He argues that prostitution is a crime that lacks “integrity in principle” because it is a “ ‘crime against the public morals.” ’ If adopted by this court, his interpretation would render the exclusion of K.S.A. 60–421 meaningless because all crimes would involve a lack of integrity in principle. Instead, this court should focus on whether dishonesty is the essential element in the crime. The essential elements of prostitution are (1) an exchange of value for (2) sexual intercourse. See K.S.A. 21–3512. Neither of those elements involve dishonesty, and Corado's interpretation of the phrase “crime of dishonesty” is not persuasive.
Affirmed.