Opinion
No. 110454.
05-08-2015
STATE of Kansas, Appellee, v. Emmanuel Sahr ELLIE, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., HILL and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Emmanuel Ellie appeals following his convictions of rape, aggravated kidnapping, and aggravated battery. Ellie claims: (1) there was insufficient evidence to support his aggravated kidnapping conviction; (2) the district court erred by allowing the State to present the victim's preliminary hearing testimony at trial; (3) the district court erred by denying his motion for mistrial; and (4) the district court violated his constitutional rights when it sentenced him to the highest term in the sentencing grid box. Finding no reversible error, we affirm the district court's judgment.
The criminal charges underlying this appeal stemmed from the events of October 31, 2011, and involved a young woman, W.H.; her boyfriend, Ellie; and Ellie's friends, Rodney Blue and Brandon Clarke. Because each of these individuals testified to a different version of the events of that night and because sufficiency of the evidence is one of the issues in the appeal, we will set forth the testimony of each witness in detail.
Factual and Procedural Background
W.H.'s testimony
Ellie and W.H., both in their 20s, began dating in September 2010. By October 31, 2011, W.H. believed they were in an exclusive relationship and assumed that she would see Ellie that evening, but she could not get in touch with him. Because she could not reach Ellie, W.H. took her daughter trick-or-treating, then went to Saints Pub & Patio (Saints), a bar in Lenexa, with a female friend. The women arrived at Saints at approximately 11:30 p.m. and, while they were outside smoking cigarettes, W.H. saw Ellie get into his car in the parking lot with a person she thought was Heather Steele. W.H. knew Ellie had dated Steele previously but thought the relationship had ended.
W.H. immediately called Ellie and accused him of being with Steele, but Ellie laughed and denied it. Upset, W.H. told Ellie their relationship was over. W.H. went back inside Saints, where she ran into Blue. W.H. told Blue that she believed Ellie was cheating on her and she began drinking with Blue. W.H. and Blue later went to Ugly Joe's bar in Kansas City, Missouri, and continued drinking.
Ultimately, W.H. and Blue went back to Blue's apartment. The couple went into the bathroom, where W.H. performed oral sex on Blue. After a few minutes, however, W.H. stopped, feeling as though she were cheating on Ellie. According to W.H., Blue did not become angry; instead, he laughed it off and told her she could sleep on the couch and he would take her home in the morning. W.H. lay down on the couch and fell asleep.
The next thing W.H. remembered was Blue opening the door to let Ellie and his friend Clarke inside the apartment. Ellie immediately began punching W.H. in the face. Ellie hit W.H. at least 10 times, knocking her to the floor and kicking her in the mouth and on her back, arms, and groin. Ellie called W.H. a bitch and a whore and accused her of having sex with Blue, which W.H. denied. W.H. testified that Clarke and Blue were in the apartment while Ellie beat her and that while Clarke never touched her, she believed Blue helped prop her upright while Ellie punched her.
Ellie ripped off W.H.'s clothes and said, “ ‘If you want to act like a whore, I'll treat you like a whore.’ “ He shoved his fingers into her vagina multiple times. W.H. heard Blue say, “ ‘I don't want that bitch's blood on my carpet.’ “ Ellie then grabbed W.H.'s hair and Blue picked up her feet and they began to carry her out of the apartment. Meanwhile, Clarke stood by, holding his cell phone up as though he was recording the scene. W.H. believed they would throw her over the balcony outside the apartment, so when they got to the door, she grabbed the doorframe to resist being taken outside.
The two men dragged her outside anyway. A neighbor opened a door, which spooked the men. Ellie and Clarke ran down the stairs, but Blue walked back into his apartment. According to W.H., she grabbed Blue's leg as he passed her and asked, “ ‘Why did you do this?” ‘ She testified that Blue looked down at her in disgust, shrugged to get her off his leg, and continued back into his apartment. Blue later came back out of the apartment, stepped over W.H., walked down the stairs, and left. W.H. remembered crawling down the stairs, hearing sirens, and collapsing.
Clarke's testimony
In October 2011, Clarke and Ellie were good friends and roommates. Ellie was dating W.H., Steele, and another woman named Kenzie Starling, but Clarke did not believe any of the women knew about the others. On the night in question, Clarke and Ellie began the evening with Steele and a friend of hers at another bar. Clarke and Ellie decided to go to Saints, but the women did not accompany them. At some point, Ellie received a phone call from W.H., who was upset because she thought Ellie had another girlfriend. Ellie laughed it off and denied it. Clarke and Ellie did not go into Saints. Instead, they drove to a bar in Westport and then to a fourth bar, where they met Starling and stayed until approximately 3 a.m.
Clarke and Ellie were returning to their apartment when Blue either texted or called Ellie. Ellie told Clarke that Blue said W.H. was at Blue's apartment, and Ellie was curious as to whether W.H. was “cheating” on him. Ultimately, Clarke and Ellie headed to Blue's apartment. When they arrived at Blue's apartment building, Ellie got out of the car and headed straight for the apartment, while Clarke stopped to talk with Blue, who was outside. Clarke asked Blue what was happening and when Blue would not answer, Clarke ran up to Blue's apartment on the second floor of the building. Through the open front door of the apartment, Clarke saw Ellie pulling W.H., who had some white cloth over her, through the living room from the direction of the bedroom. Clarke heard W.H. saying, “ ‘I didn't fuck Rodney Blue.’ “ At that point, Ellie walked over and shut the front door with Clarke and Blue still outside. Clarke heard arguing, screaming, and the sounds of physical violence from inside the apartment.
After approximately 5 minutes, Blue opened the door and Clarke saw Ellie standing over W.H., punching her repeatedly. Clarke saw blood “all over” the apartment. By this time, W.H. was on the ground, naked, while Ellie cursed at her, called her names, and kicked her at least twice. Clarke and Blue entered the apartment and Clarke took a picture of the scene with his cell phone and sent it to a mutual friend to show “how crazy our friend had got over this particular woman.”
Clarke went outside and, the next thing he knew, Ellie and Blue were dragging W.H. out of the apartment. She was still naked and grabbed the doorframe to resist being taken outside, but Blue broke her grip on the door. Clarke saw Ellie stand over W.H., who was outside and was curled on the ground in the fetal position. Clarke took another picture of the scene with his cell phone. After Ellie either punched or kicked W.H. again, a neighbor asked if he should call the police. Clarke ran down the steps and back to the car. When Ellie arrived at the car a moment later, they drove back to their apartment. Ellie was crying and saying he could not believe W.H. had cheated on him.
Blue's testimony
Blue's version of the events differs from both W.H.'s and Clarke's. According to Blue, on the night in question, he and a friend went to Saints at approximately 10:30 or 11 p.m., where they ran into W.H., who was upset with Ellie because of other women. Blue and W.H. later went to Ugly Joe's bar because W.H. wanted to continue drinking. Toward the end of the evening, W.H. told Blue that she wanted him to take her back to his apartment. Blue testified that W.H. performed oral sex on him on their way back to his apartment. At the apartment, Blue called or texted Ellie to tell him that W.H. was there and “being flirtatious.” W.H. and Blue then had sex in the living room.
After having sex with W.H., Blue got up and went outside to smoke. While Blue was walking down the steps outside his apartment, he saw Ellie and Clarke. Ellie asked, “[D]id you do it?” and Blue responded, [Y]eah.” Ellie walked up the steps and went into the apartment. According to Blue, he and Clarke walked upstairs, but the door was closed and, when Blue tried to open it, it was locked. Blue and Clarke were outside for 5 or 6 minutes and could hear both Ellie and W.H. yelling. When Ellie finally opened the door for them, Blue saw W.H. was naked, bloody, and lying on the floor.
Blue testified that he picked up W.H. and, cradling her, walked toward the front door, but he set W.H. down when she began yelling and struggling. Ellie pulled on W.H.'s feet and when she grabbed the doorframe, Blue took her hands off the doorframe because he was worried Ellie would shut her hands in the door. Blue gathered W.H.'s clothes and purse and set them near her, but Ellie threw the clothes over the railing. At that point, Blue went back inside and shut the door because he was afraid of being blamed for what had happened. When he went back outside, Clarke and Ellie were already gone and Blue walked around W.H. and left.
Police investigation
Police were dispatched to Blue's apartment building on November 1, 2011, just after 4 a.m. Officer Ronald Cantrell of the Olathe Police Department was the first officer on the scene and, when he arrived, he saw W.H., almost completely naked, stumbling through the parking lot. Cantrell asked what had happened, but W.H. collapsed at his feet without responding. Cantrell called for paramedics, who responded to the scene.
W.H. was taken to the hospital, and Officer Dennis Soto followed. Soto spoke with W.H. after medical personnel stabilized her. Soto later testified that W.H. was very upset, did not want to talk with him, and did not want to identify her attacker. According to Soto, W.H.'s face was swollen and covered in blood and the left and right sides of her jaw moved separately when she spoke. When asked if she had been sexually assaulted, W.H. said no and stated that she did not want a rape kit.
Dr. Stephen Behrends, a general surgeon, treated W.H., who was suffering from multiple abrasions, contusions, and a fractured left mandible. The jaw fracture was a grossly displaced anterior mandibular fracture, which meant that the two halves of W.H.'s jaw moved independently. W.H. underwent surgery in which medical personnel opened her jaw, inserted a metal plate and metal bars, and wired her mouth closed. Behrends later testified that it took a lot of force to break a jaw that badly. W.H. remained in the hospital 3 to 4 days as a result of her injuries.
Meanwhile, back at the apartment building, a bystander took Cantrell and Officer Bell, another Olathe police officer, to the apartment building from which W.H. had come As he approached the building, Cantrell noticed clothing strewn about on the lawn and sidewalk and blood on the sidewalk and stairwell of the building. The bystander pointed Cantrell upstairs, and Cantrell followed the blood trail up the stairs to the door of apartment 1615—Blue's apartment. Noticing blood on the apartment door's handle, Cantrell began knocking while Bell looked through the window. No one responded and, when Bell told Cantrell that he saw a pool of blood inside the apartment, Cantrell forced entry to see if anyone was inside and injured. Inside, Cantrell saw blood on the floor and walls and bloody handprints on the wall next to the doorframe.
The criminal prosecution
As a result of these events, the State filed multiple criminal charges against Blue, Clarke, and Ellie. The charges against Clarke eventually were dismissed. Blue negotiated a plea deal in which he pled guilty to reckless aggravated battery in exchange for his testimony against Ellie. Ellie was charged with one count each of rape, aggravated kidnapping, and aggravated battery. The preliminary hearing began on February 3, 2012, and Clarke and W.H. testified. Because of time constraints, the district court continued the preliminary hearing to February 15, 2012, but W.H. failed to appear that day.
The district court held the third day of the preliminary hearing on March 14, 2012, and Ellie's attorney cross-examined W.H. At the conclusion of the evidence, the district court bound Ellie over for trial on the charges. After numerous continuances, the trial ultimately was scheduled to begin on January 28, 2013.
On January 16, 2013, the State filed a motion to admit W.H.'s preliminary hearing testimony at trial, alleging she was an unavailable witness. After hearing evidence, the district court found that W.H. was an unavailable witness and allowed the State to present her preliminary hearing testimony at trial in lieu of live testimony.
The trial began on January 28, 2013, and lasted 3 days. Clarke and Blue testified for the State as well as numerous law enforcement officers. W.H.'s preliminary hearing testimony was read to the jury. Ellie declined to present any evidence. After hearing the evidence, the jury found Ellie guilty as charged.
The district court held a sentencing hearing on May 2, 2013. The district court sentenced Ellie to 165 months' imprisonment for the rape conviction, 155 months' imprisonment for the aggravated kidnapping conviction, and 41 months' imprisonment for the aggravated battery conviction. The sentences for the rape and aggravated kidnapping convictions were ordered to run consecutively, for a controlling sentence of 320 months' imprisonment and lifetime postrelease supervision. The district court also ordered lifetime offender registration. Ellie timely appealed the district court's judgment.
Sufficiency of the Evidence
Ellie first challenges the sufficiency of the evidence to support his aggravated kidnapping conviction. Ellie's argument is two-pronged. First, Ellie argues there was insufficient evidence that he confined W.H. by force or threat. Second, Ellie asserts that the phrase “to inflict bodily injury or to terrorize the victim or another” creates alternative means of committing the crime of aggravated kidnapping. Proceeding on that theory, Ellie argues there was insufficient evidence that he acted with the intent to terrorize W.H.
The State responds by taking issue with Ellie's identification of inflicting bodily injury and terrorizing the victim as alternative means within the kidnapping statute. The State also asserts that it presented sufficient evidence that Ellie confined W.H. Finally, the State argues that if there was error, the remedy is remand for a new trial.
“ ‘When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.’ [Citation omitted.]” State v. Frierson, 298 Kan. 1005, 1010, 319 P.3d 515 (2014).
K.S.A.2014 Supp. 21–5408, the statute defining aggravated kidnapping states, in part:
“(a) Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person:
(1) For ransom, or as a shield or hostage;
(2) to facilitate flight or the commission of any crime;
(3) to inflict bodily injury or to terrorize the victim or another; or
(4) to interfere with the performance of any governmental or political function.
“(b) Aggravated kidnapping is kidnapping, as defined in subsection (a), when bodily harm is inflicted upon the person kidnapped.”
Confining by force or threat
To support his contention that the State failed to prove that he confined W.H. by force or threat, Ellie asserts that “there was no evidence presented that Mr. Ellie prevented W.H. from going anywhere .” Ellie asserts that the evidence showed that he intended to keep Clarke and Blue out of the apartment rather than keeping W.H. in the apartment. Ellie points out that Blue testified that while he and Clarke were outside, he did not see anyone turning the doorknob or attempting to leave the apartment. He also points out that W.H. testified that she did not remember trying to fight or crawl away.
Viewed in the light most favorable to the prosecution, there was sufficient evidence to prove that Ellie confined W.H. in Blue's apartment by force or threat. Blue testified that when he tried to open the door to the apartment while W.H. and Ellie were inside, the door was closed and locked. When Ellie opened the door approximately 5 to 6 minutes later, W.H. was naked, bleeding, and lying on the floor. Clarke similarly testified that Ellie shut the door, as he stood outside, just before Clarke heard arguing, screaming, and sounds of a physical altercation happening inside the apartment.
In Kansas, the taking requirement of kidnapping does not involve any particular distance of removal, nor does the confinement requirement involve any particular time or place. “Under our present statute it is still the fact, not the distance, of a taking (or the fact, not the time or place of confinement) that supplies a necessary element of kidnapping.” State v. Buggs, 219 Kan. 203, 214, 547 P.2d 720 (1976).
The Buggs court also held the element of “taking” or “confining” for kidnapping would not be satisfied by conduct which was merely incidental to the underlying crime committed. As a result, the court devised a three-prong test to establish the existence of movement or confinement sufficient to support the crime of kidnapping:
“If a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” 219 Kan. at 216.
Here, the State alleges that Ellie confined W.H. to inflict bodily injury upon her, rather than to facilitate flight or the commission of another crime. Nevertheless, the threeprong test in Buggs can be adapted to the facts of Ellie's case to help us determine whether there was sufficient confinement of W.H. to constitute aggravated kidnapping.
First, we find that Ellie's act of closing and locking the apartment door was not slight, inconsequential, and merely incidental to the other crimes for which he was charged, i.e., rape and aggravated battery. Second, the act of closing and locking the apartment door was not inherent in the nature of the other crimes. Third, the act of closing and locking the door had some significance independent of the other crimes. By closing and locking the apartment door, Ellie made it more difficult for W.H. to flee and impossible for anyone else to enter; thereby making it substantially easier for Ellie to inflict bodily injury on W.H. and substantially reducing the risk of detection. See State v. Weigel, 228 Kan. 194, Syl. ¶ 4, 612 P.2d 636 (1980) (defendant's act of forcing bank employees into vault and attempting to lock door sufficient to constitute kidnapping).
“ ‘A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.’ [Citation omitted.]” State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). Although W.H. never directly testified that Ellie confined her to Blue's apartment by force or threat, her testimony that Ellie woke her up by beating her so severely that he knocked her off the couch onto the floor, where he continued to kick her to the point that she was incapable of even sitting upright, combined with Clarke's testimony that Ellie shut the door and Blue's testimony that the door was locked, provided sufficient evidence to support a conclusion that Ellie confined W.H. to the apartment by force or threat. Thus, Ellie's argument on this point fails.
Alternative means of intent to hold W.H. (1) to inflict bodily injury or (2) to terrorize W.H.
Ellie's next argument is based on the premise that subsection (3) of the kidnapping statute creates alternative means by the language “to inflict bodily injury or to terrorize the victim or another.” See K.S.A.2014 Supp. 21–5408(a)(3). Although Ellie concedes there was evidence that he intended to hold W.H. to inflict bodily injury, he contends there was no evidence that he intended to hold W.H. to terrorize her.
“ ‘Whether a statute creates alternative means of committing a crime is a matter of statutory interpretation and construction and is a question of law subject to de novo review on appeal.’ [Citation omitted.]” State v. Castleberry, 301 Kan. 170, 181, 339 P.3d 795 (2014). Our Supreme Court established the framework for alternative means analysis in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012). Brown directs courts to first examine the plain language of the statute to determine whether the legislature intended to create alternative means of committing the crime. 295 Kan. at 193.
As stated above, the statutory language at issue is: “Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: ... (3) to inflict bodily injury or to terrorize the victim or another.” K.S.A.2014 Supp. 21–5408(a)(3). As the Brown court stated, in order to determine whether a statute presents 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.” 295 Kan. at 199–200. The Brown court recognized that the structure of a statute may be a clue to legislative intent. 295 Kan. at 200. Here, the asserted alternative means lie within the same subsection of the statute.
A statute's punctuation is not dispositive, however. See State v. Foster, 298 Kan. 348, 354–55, 312 P.3d 364 (2013) (“Regardless of the statutory structure, the legislature may list multiple descriptors within a single means of committing a crime that Brown labeled ‘options within a means.’ [Citation omitted.]”). As the Brown court noted, a court considering alternative means should determine the purpose of the disjunctive “or”:
“Is it to list alternative distinct, material elements of a crime—that is, the necessary mens rea, actus reus, and, in some statutes, a causation element? Or is it to merely describe a material element or a factual circumstance that would prove the crime? The listing of alternative, distinct material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a jury instruction.” 295 Kan. at 194.
State v. Haberlein, 296 Kan. 195, 290 P.3d 640 (2012), cert. denied 134 S.Ct. 148 (2013), is an instructive case. In that case, Robert Martin Haberlein, convicted of aggravated kidnapping, asserted that the kidnapping statute created alternative means by the language “to facilitate flight or the commission of any crime,” language now located at K.S.A.2014 Supp. 21–5408(a)(2). See 296 Kan. at 209. The Supreme Court disposed of Haberlein's argument as follows:
“When we examine the language of the entire statute, it appears the legislature did signal through structure an intent to define alternative means of proving the mens rea for kidnapping and aggravated kidnapping. It did not stop with ‘intent to hold’ but listed several motivations for that intent to hold. Each of the subsections that follows states an additional and distinct way of committing the crime, and proof of one of these additional and distinct material elements must be shown in order to support a conviction. Thus, the different subsections create alternative means of committing a kidnapping.
“But the language on which Haberlein relies is within subsection (b). Facilitation of flight and facilitation of the commission of a crime are mere options within a means. The members of the legislature grouped certain potentially distinct and potentially overlapping items, which must mean they did not want jurors to have to split hairs over whether a kidnapping or aggravated kidnapping was committed to facilitate flight or the commission of any crime. [Therefore], we need not reach the question of whether the evidence was sufficient on each.” 296 Kan. at 209.
Although Haberlein is not directly on point, its rationale is equally applicable to the statutory subsection Ellie alleges creates alternative means in his case. See K.S.A.2014 Supp. 21–5408(a)(3). Inflicting bodily injury and terrorizing the victim or another are options within a means of proving the required mens rea for kidnapping or aggravated kidnapping. They are not alternative means, and the State is not required to present substantial evidence of both in order to support a conviction of aggravated kidnapping.
In sum, considering the evidence in the light most favorable to the prosecution, the State presented sufficient evidence to allow the jury to find beyond a reasonable doubt that Ellie confined W.H. by force or threat with the intent to inflict bodily injury on her. Moreover, the statutory language “to inflict bodily injury or to terrorize the victim or another” does not create alternative means of committing aggravated kidnapping. Thus, we conclude there was sufficient evidence to support Ellie's conviction of aggravated kidnapping.
Use of W.H.'s Preliminary Hearing Testimony at Trial
Next, Ellie contends he was denied a fair trial when the district court allowed the State to present W.H.'s preliminary hearing testimony at trial. Specifically, Ellie argues that the State did not exercise due diligence in its efforts to locate W.H. and therefore the district court abused its discretion in finding she was an unavailable witness. The State argues the opposite, claiming that the district court correctly found W.H. was unavailable.
As our Supreme Court has recognized, “the admission of a witness' preliminary hearing testimony from the same case does not violate a defendant's constitutional rights under the Confrontation Clause if the court finds that the witness is otherwise unavailable to testify.” State v. Stano, 284 Kan. 126, 140, 159 P.3d 931 (2007). K.S.A. 60–459(g) gives five situations in which a witness is unavailable, including when the witness is “absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.”
As the parties agree, this court reviews for abuse of discretion a district court's decision on whether a party's efforts to secure a witness' presence were adequate. See State v. Jefferson, 287 Kan. 28, 32–33, 194 P.3d 557 (2008). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Brown, 300 Kan. 565, 571, 331 P.3d 797 (2014).
At the January 2013 hearing on the State's motion to admit at trial W.H.'s preliminary hearing testimony, the State called Detectives Rick Parsons and Matt Campbell of the Olathe Police Department to testify. Parsons testified that he had been looking for W.H. since late November or early December 2012. Parsons was present when an unrelated search warrant was executed at W.H.'s last known address on Locust Street in Olathe. However, W.H. was not present when the search warrant was executed.
Parsons also testified that he had searched a database called Cop Link, which he described as a “database of metro area police reports,” but Cop Link showed W.H.'s most recent address as the Locust Street address. In addition, Parsons searched the Regional Justice Information System database with similar results. Parsons further testified that 2 days prior to the hearing, the Kansas Department of Social and Rehabilitation Services (SRS) provided him with a new address at which W.H. might be located. Parsons had gone to that address, but W.H. was not there.
Campbell, the lead detective on Ellie's case, testified that he had been assigned to serve W.H. her subpoena but had not been able to locate her. Campbell checked a database called I–Leads, which he described as “our internal data base [sic ] that has police reports from our jurisdiction, as well as others in Johnson County.” I–Leads did not reveal new information or an address for W.H. Campbell also searched Acurent, another database “primarily used by law enforcement that has addresses, work history, relative information dat[ing] back several years.” Campbell had a phone number for W.H.; but when he called it the day before the hearing, he heard an automated voice message stating that the phone number was not accepting calls at that time.
Campbell also spoke with W.H.'s probation officer who stated she had not seen W.H. since mid-November 2012. Campbell sent officers to two addresses associated with W.H., as well as W.H.'s mother's residence, but W.H. was not at any of those locations. Campbell spoke with the Johnson County Sheriff's Department but did not turn up any new information about W.H.'s whereabouts. After hearing the evidence, the district court ruled that W.H. was unavailable to testify, that the State had made diligent efforts to locate her, and that her preliminary hearing testimony would be admitted at trial.
On appeal, Ellie cites State v. Plunkett, 261 Kan. 1024, 934 P.2d 113 (1997), to support his argument that the State failed to make adequate efforts to locate W.H. In that case, the defendant attempted to introduce a defense witness' testimony from the defendant's first trial into evidence at a second trial. In order to show its exercise of due diligence in attempting to locate the witness, the defense offered evidence that it had been unable to locate the witness at his last known address; it had unsuccessfully checked water department, jail, and court records; and attempts to contact the witness through a telephone listing for him in Minnesota determined that he did not reside there. The district court denied the motion to admit the testimony from the first trial, “reasoning that the defense's efforts to locate [the witness] were inadequate.” 261 Kan. at 1034–35. On appeal, our Supreme Court affirmed the district court's ruling, noting that apparently no one maintained contact with the witness after the first trial and that “[t]he defense had the best source of information as to [the witness'] location but failed to pursue it.” 261 Kan. at 1035.
Ellie points out that the State knew W.H. was a reluctant witness because she failed to appear at the second portion of the preliminary hearing in February 2012 and did not appear as ordered for the scheduled beginning of Blue's trial in July 2012. Ellie argues that the State's waiting until January 2, 2013, to issue a subpoena for W.H. to testify at Ellie's trial, scheduled for January 28, 2013, shows that its efforts to locate W.H. were not adequately diligent. Finally, Ellie contends that based on Plunkett, the State was “required” to maintain contact with W.H. while the case was pending.
For its part, the State points to State v. Zamora, 263 Kan. 340, 949 P.2d 621 (1997), in which the State's attempts to locate a witness included calling the witness' phone number; calling the Lamed State Hospital Youth Center, where the witness had previously resided; learning that the witness had reportedly gone to California and that the witness' parents lived in Oklahoma; obtaining a last known address from SRS; calling the local sheriff's office to see if it could locate the witness; running a check on the National Crime Information Computer; and asking another person involved in the case if he knew where the witness was located. The district court found that the witness was unavailable and that the State had exercised reasonably diligent efforts to locate the witness. On appeal, our Supreme Court affirmed, emphasizing that it was “consider[ing] this issue under an abuse of discretion standard of review, not as a trial court deciding the issue in the first instance.” 263 Kan. at 347–48.
As our Supreme Court reiterated in Zamora: “ ‘The question of availability turns on the totality of the facts and circumstances of each case.’ [Citation omitted.]” 263 Kan. at 342. Here, Parsons and Campbell testified extensively about their efforts to locate W.H. beginning 2 months prior to the scheduled start of Ellie's jury trial. The State was not required to maintain contact with W.H. while the case was pending. Considering the totality of the evidence presented at the hearing, we cannot say that the district court abused its discretion in finding that the State exercised reasonable diligence in its efforts to locate W.H. and therefore she was unavailable as a witness. Thus, the district court did not err when it allowed the State to present W.H.'s preliminary hearing testimony at trial.
Motion for Mistrial
Next, Ellie argues that the district court erred in denying his motion for mistrial after the prosecutor made what Ellie characterized as misstatements of the evidence during closing argument. This issue refers to testimony about a white cloth or white sweater draped over W.H. inside Blue's apartment, as well as statements the prosecutor made during closing argument. While Clarke was testifying at trial that he saw Ellie pulling W.H. across the living room, the prosecutor asked what W.H. was wearing, and Clarke replied, “She had some white cloth over her, what appeared to be some kind of white cloth. I couldn't quite tell.” On cross-examination, defense counsel asked:
“Q. And you said she had a white cloth?”
“A. Yeah. I couldn't make out exactly what it was because I was out the door.
“Q. Was she actually wearing anything at that time?
“A. No. There was a white cloth over her. I don't know.
“Q. But she didn't physically have it on?
“A. No.”
During closing argument, in order to corroborate W.H.'s testimony, the prosecutor attempted to summarize Clarke's testimony by stating that W.H. was “wearing something white.” Defense counsel objected on the grounds that the prosecutor had misstated the evidence. The gist of defense counsel's argument was that the prosecutor had told the jury that W.H. was wearing something white, perhaps a white sweater, as Ellie dragged her across the room, whereas Clark's actual testimony was that W.H. had a white cloth draped over her. The district court overruled the objection.
During deliberations, at the jury's request, Clark's testimony was read back to the jury. Afterward, the jury continued deliberating and defense counsel requested a mistrial based on his prior objection about the prosecutor allegedly misstating Clark's testimony about whether W.H. was wearing something white. After a discussion between the district court and counsel, the district court denied the motion for mistrial.
K.S.A. 22–3423(1)(c) allows a district court to declare a mistrial “at any time that [the court] finds termination [of the trial] is necessary because ... [p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” On appeal, the district court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. State v. Waller, 299 Kan. 707, 722, 328 P.3d 1111 (2014). Judicial discretion is abused if the decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on a error of fact. 299 Kan. at 722.
Ellie contends that the prosecutor's statements during closing argument were prejudicial misconduct that required a mistrial because W.H. was the only person who testified that Ellie committed the acts constituting rape—that he put his fingers into her vagina. Ellie also points out that no one, including W.H., testified that W .H. was wearing the white sweater. Because the prosecutor spoke of W .H. wearing the white sweater later found with her blood on it in the context of collaborating the rape accusation, and the district court did not correct the misstatement, Ellie claims that the statement warranted a mistrial. The State responds by asserting that there was no prejudicial conduct that made it impossible to proceed with the trial without injustice to the parties.
Without further explanation by Ellie, it is difficult to understand how the prosecutor's misstatement that W.H. was wearing a white sweater constituted prejudicial conduct of the magnitude that necessitates a mistrial. As the district court recognized, the prosecutor's “misstatement” that Clarke testified that he saw W.H. “wearing” something white was a reasonable inference, since Clarke testified he saw something white “over her.” Moreover, the prosecutor included her comment about the white sweater in the portion of her closing argument focusing on the rape charge, but the rape charge was not related to whether W.H. wore a white sweater. Any misstatement by the prosecutor about Clarke testifying that W.H. wore a white sweater was not such a misstatement of the evidence that it prevented the trial from continuing without prejudice to either party. Thus, the district court did not abuse its discretion by denying Ellie's motion for mistrial.
Sentencing Issue
Finally, Ellie contends that the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 146 L.Ed.2d 435 (2000), when it sentenced him to the aggravated sentence from the sentencing grid box without first requiring the State to prove aggravating factors beyond a reasonable doubt to a jury. Ellie concedes that the Kansas Supreme Court already has decided this issue adverse to his position in State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008). This court is duty bound to follow Kansas Supreme Court precedent absent an indication that our Supreme Court intends to depart from its position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). The Johnson court held that any sentence within a grid box “may be considered a presumptive sentence, and appellate courts lack jurisdiction” to hear this type of challenge. 286 Kan. at 842. There is no indication that our Supreme Court is departing from its position in Johnson. Thus, this court lacks jurisdiction to consider Ellie's sentencing claim, and this issue is dismissed.
Affirmed in part and dismissed in part.