Opinion
No. 106,026.
2012-09-28
STATE of Kansas, Appellee, v. Kwame O. HILL, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kwame O. Hill was convicted of two counts of rape. On appeal, he argues the State failed to present sufficient evidence establishing each alternative means of committing the two rapes included in the jury instructions. He also argues the prosecutor engaged in misconduct during his closing argument when he allegedly commented on Hill's failure to testify at trial. Finally, Hill argues his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when the district court used his prior convictions to determine his sentence under the Kansas Sentencing Guidelines without first requiring the State to prove the validity of those convictions to a jury beyond a reasonable doubt. We have considered each of the arguments presented by Hill and, for the reasons stated below, affirm his convictions.
Facts
V.T. had known Betsy Smith since 1993 and considered Betsy to be her best friend. She went out with Betsy's son, Hill, a couple of times but was not interested in having a romantic relationship with him.
During the evening of September 12, 2009, V.T. took Hill and his brother, Corie, to a Christian poetry event. When the event ended around midnight, V.T. took Hill and Corie back to Betsy's house. When they arrived, Corie got out of the car and went inside Betsy's house, but Hill, who was sitting in the front passenger seat, reached over and shifted the car in park, turned off the car, and removed the keys from the ignition. Hill then told V.T. that he wanted her to stay and talk to him about why she did not want to be in a relationship with him. V.T. asked for her keys back so that she could go home, but Hill refused to give them to her. V.T. then told Hill that she would have his mother tell him to return her keys. V.T. got out of the car and started walking towards Betsy's house.
When V.T. reached the porch of Betsy's house, Hill grabbed her from behind in a bear hug. V.T. told Hill to let her go and give her the keys, but he would not. She banged her arm against the house, and Betsy and Corie came outside to see what was going on. Betsy told Hill to let V.T. go, but Hill told his mother to go back inside the house before she made things worse. Corie told his brother to “quit tripping” and went back inside the house with his mother. V.T. started to struggle against Hill, but he kept control of her and was able to pull down her pants. After Hill told V.T. to be still before she made it worse, she stopped resisting, and Hill proceeded to have sexual intercourse with her on the deck of the house. When Hill was finished, he got a blanket from the garage and asked V.T. to sit and talk with him. V.T. refused, got her keys from Hill and left.
After leaving, V.T. was scared and did not know whether to report the incident given the fact that Hill was her best friend's son. Two days after the incident, however, V.T. told Betsy what had happened, and Betsy encouraged her to call the police. On September 14, V.T. went to the hospital for a sexual assault examination. The nurse practitioner performing the examination discovered a 1 by 1 1/2 centimeter tear of V.T.'s posterior fourchette. Ultimately, V.T. told the nurse that she did not want anyone to report the incident to the police.
After the incident, Hill tried to contact V.T. by repeatedly calling her on her phone. V.T. refused to answer her phone and told Betsy to tell Hill to stop calling her.
On the morning of September 18, V.T. returned home after taking care of her grandmother. When V.T. got out of her car, Hill, who apparently was hiding, quickly approached V.T. and told her that he wanted to talk to her. V.T. told him that she did not want to talk to him because he had raped her. Hill got mad and told her that he did not rape her then but was going to rape her now. Hill wrestled V.T. to the ground, reached under her dress and pulled down her underwear and proceeded to rape V.T. while he covered her mouth with his hand. Hill left after he was finished.
That same morning, V.T. returned to the hospital to undergo a second sexual assault examination. This time, V.T. requested staff at the hospital to report the rape to police. The nurse performing the sexual assault examination observed a bruise on V.T.'s upper left arm, a few abrasions on her perineum, and an 8–millimeter by 2 1/2–centimeter tear starting at V.T.'s fossa navicularis and extending to her posterior fourchette. Hill's DNA was discovered on swabs taken from inside V.T.'s vagina.
The State charged Hill with two counts of rape. Hill's case proceeded to a trial, at which Hill represented himself. In addition to V.T.'s testimony concerning the two incidents, the State presented the testimonies of Konnie Wheeler, the nurse practitioner who performed the sexual assault examination of V.T. on September 14, 2009, and Casey Krane, the registered nurse who performed the September 18, 2009, examination. Wheeler stated the 1–by 1 1/2–centimeter tear she observed on V.T.'s posterior fourchette was caused by blunt force trauma and that it was very unlikely the injury was caused by casual intercourse. Krane testified the 8–millimeter by 2 1/2–centimeter tear she observed on V.T.'s fossa navicularis and posterior fourchette was caused by blunt force trauma and would have caused V.T. a significant amount of pain. Krane also stated that, based on her experience, it was not likely this injury was caused during consensual intercourse.
The jury found Hill guilty of both rape counts.
Analysis
Alternative Means
Hill argues that when the district court's jury instructions on rape and sexual intercourse are read together, the instructions established three alternative means for committing each rape (i.e., that Hill penetrated V.T. with his penis, with his finger, or with any object). Hill concedes there was sufficient evidence presented at the trial to show that he raped V.T. on two separate occasions using his penis to penetrate her, but he contends there was no evidence presented at trial to show that he ever penetrated her with his finger or with any object. As a result, he contends that both of his rape convictions must be reversed.
The jury in a criminal case is required to arrive at a unanimous verdict. K.S.A. 22–3421. When the jury is presented with alternative means by which the crime charged can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on another alternative means. Notably, our Supreme Court has held that a defendant's right to a unanimous verdict is not undermined when this happens so long as there was sufficient evidence presented at trial to support each alternative means for committing the crime. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). If there is inadequate evidence to support a particular means for committing the crime, the conviction must be reversed. Wright, 290 Kan. at 203.
This court must first decide whether Hill's contention raises a legitimate alternative means issue. Resolution of this threshold issue requires statutory interpretation, which is a question of law subject to unlimited appellate review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Both of Hill's rape convictions came under K.S.A. 21–3502(a)(1)(A), which defines rape as “[s]exual intercourse with a person who does not consent” under circumstances when “the victim is overcome by force or fear.” K.S.A. 21–3501(1) defines “sexual intercourse” as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” (Emphasis added.) Here, the jury instructions given at trial conformed to the language of K.S.A. 21–3502(a)(1)(A) and included a definition of “sexual intercourse” consistent with K.S.A. 21–3501(1):
“In Count One, [Hill] is charged with the crime of rape. [Hill] pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“I. That [Hill] had sexual intercourse with [V.T.];
“2. That the act of sexual intercourse was committed without the consent of [V.T.] under circumstances when she was overcome by force or fear; and “3. That this act occurred on or about the 12th day of September, 2009, in Sedgwick County, Kansas.”
The jury instruction for the second rape charge was the same except the crime was alleged to have occurred on or about September 18, 2009. After instructing the jury on the two rape counts, the district court then gave its definitional instruction for sexual intercourse: “Sexual intercourse means any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” (Emphasis added.)
Our court recently considered whether the definition of sexual intercourse creates three alternative means of committing rape in State v. Schreiner, 46 Kan.App.2d 778, 264 P.3d 1033 (2011), pet. for rev. filed December 5, 2011 (pending). Just like Hill, Schreiner argued that K.S.A. 21–3501(1) created alternative means of committing the crime of rape. 46 Kan.App.2d at 781. The Schreiner court set forth a test for determining when a true alternative means issue is presented:
“Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. Such statutes do not set forth alternative means.” 46 Kan.App.2d 778, Syl. ¶ 1.
In rejecting Schreiner's alternative means argument, the court held: “The wording [of K.S.A. 21–3501(1) ] reflects verbal redundancy rather than differing ways or alternative means of committing a criminal offense. In short, the definition of sexual intercourse cannot reasonably be viewed as creating alternative means of committing rape.” 46 Kan.App.2d at 784. In so holding, the court reasoned that when K.S.A. 21–3501(1) and K.S.A. 21–3502(a) are read together, they
“actually define a single means of committing rape; it is nonconsensual penetration of the female genitalia with something. The definitional statute then characterizes the instrumentality as a finger, the male sex organ, or an object. All of those terms, strictly speaking, may be unnecessary. If they were omitted, sexual intercourse would be defined as penetration of the female sex organ. Anything used to accomplish the act of penetration would meet that definition.” 46 Kan.App.2d at 783.
The court construed the term “object” found in K.S.A. 21–3501(1) as encompassing “both fingers and male sex organs. In using a broad term such as object, the legislature intended to criminalize nonconsensual penetration without regard to the type of instrumentality used.” 46 Kan.App.2d at 784–85. Thus, the court read the phrase “penetration of the female sex organ by a finger, the male sex organ or any object” found in K.S.A. 21–3501(1) as simply establishing a single means of accomplishing sexual intercourse. Accordingly, the term “sexual intercourse” as used in K.S.A. 21–3502(a) does not create alternative means for committing a rape.
The legal analysis in Schreiner is well reasoned, persuasive, and has been adopted by several panels of this court in rejecting alternative means arguments concerning K.S.A. 21–3501(1) and K.S.A. 21–3502(a). See State v. Martinez, No. 104,695, 2012 WL 1524034, at *4–5 (Kan.App.2012), pet. for rev., filed May 29, 2012 (pending); State v. Jones, No. 105,480, 2012 WL 1072761, at *2–3 (Kan.App.2012), pet. for rev., filed April 19, 2012 (pending); State v. Martin, No. 104,756, 2012 WL 924829, at *5–6 (Kan.App.2012), pet. for rev., filed April 16, 2012 (pending); State v. Ochoa, No. 104,746, 2012 WL 98508, at *5–6 (Kan.App.2012), pet. for rev., filed February 6, 2012 (pending). Based on Schreiner's holding, we hold the definition of sexual intercourse found in K.S.A. 21–3501(1) and used to instruct the jury here establishes a single means of committing rape under K.S.A. 21–3502(a). Accordingly, there is no merit to Hill's claim that he was deprived of his statutory right to a unanimous verdict on the two rape charges. Prosecutorial Misconduct
Next, Hill argues that the prosecutor engaged in misconduct during rebuttal argument when he allegedly commented on Hill's failure to testify at trial. Hill did not object to the prosecutor's remarks at trial, but a contemporaneous trial objection is not required to review a prosecutorial misconduct claim based on remarks made during voir dire, opening statements, or closing argument. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
“Appellate review of an allegation concerning prosecutorial misconduct requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court determines whether those comments prejudiced the jury against the defendant and denied the defendant a fair trial. This second step requires determining whether: (1) the misconduct was gross and flagrant; (2) the misconduct showed ill will on the prosecutor's part; and (3) the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. [Citations omitted.]
“If the defendant establishes error of a constitutional magnitude, the State has the burden to prove beyond a reasonable doubt that the error did not affect the defendant's substantial rights because the State was the party benefitting from the error. [Citations omitted.]” State v. Anderson, 294 Kan. 450, 461–62, 276 P.3d 200 (2012).
As noted above, Hill represented himself at trial. In his opening statement to the jury, Hill did not deny that he had sex with V.T. on September 12 and 18 but maintained the sex was consensual. Based on the premise that the sex was consensual, Hill alleged V.T.'s claim of rape was a lie.
During Hill's cross-examination of V.T., she admitted to having consensual sex with Hill prior to the September 12 and 18 incidents. But she was adamant that the sexual intercourse that took place on September 12 and 18 was not consensual. Hill did not testify at trial nor did he present any evidence at trial that would suggest that V.T.'s allegations were false.
During closing argument, the prosecutor discussed the 8–millimeter by 2 1/2–millimeter tear that Krane (the nurse who performed the sexual assault examination on September 18, 2009) observed on V.T's fossa navicularis and posterior fourchette and Krane's statement at trial that this injury would have caused V.T. a significant amount of pain:
“That's a significant injury. That's an injury which would cause pain, significant pain. It's similar to the tissue in the inside of your cheek. If we bite it, it hurts. This isn't a bite. It is a tear, a tear that's an inch in length and the width of a fingernail wide. The evidence is it was caused by blunt force trauma, someone forcing their way in.”
Hill responded by presenting the following closing argument:
“All right. First off, he never proved that when she said—when he just said what he just said about the injuries and stuff, it was never proven that I caused those injuries. She never said that I caused the injuries to her to the point where he was just talking about. And she—she never did say in her statement that it hurt.
“And he hadn't proven his case that [V.T.] was raped or forced to be raped. The State has failed to meet its burden of proof. No rape has been proven. It's just her word against mine, and they don't know what happened. He wasn't there. He is just trying to prove something because this is his defendant he's defending. So he don't know nothing but what she's told him. It would be vice versa if I was the defendant. He would be defending me like that. “I just got to say there is no reason—there isn't any reasonable doubt of anything.”
The prosecutor then made the following statements during rebuttal argument:
“She did not say he caused the injuries. Nobody did say he caused the injuries. What we have testimony about is that she was injured. We have testimony there was fresh injury on the 18th. There was new injury from the prior incident. Maybe those two injuries are the same. We can't say that they are not.
“We've also heard that those injuries heal quickly. Maybe the first one healed and there was a new injury, but we can't say that. It's possible though that it's the same injury and it did—was broke even wider. Caused that second injury to be bigger because of the force again applied the second time.
“But assume that's true, assume that's true. How painful would it be to have a penis shoved in there again? Who's going to consent to letting somebody shove something in there again when you got that injury still there?
“You get to draw the conclusion about how that injury occurred. There is no other evidence about how that injury occurred. The question was asked of the nurses, well, is it possible this was self-inflicted? Yes, it's self-inflicted if somebody jams something up in there hard enough to cause a tear. That—does that make sense? Would a woman do that to herself, impale herself so hard that it causes a tear, not a cut? Maybe somebody who's cutting themselves. It's enough pressure applied to cause a tear with a blunt force object.
“ Ladies and gentlemen, the State has proven its case. What Mr. Hill says there is not evidence. You have to consider what evidence came in. He has no burden to testify and the judge has told you that. The constitutional right applies to him. He does not have to testify. What he says up here, no, that's not testimony. It's argument. You can't consider anything he says up here as argument, whether or not somebody's lying, whether or not I know what happened.
“I don't represent [V.T.]. I represent the State of Kansas. My job is to prosecute crimes. Your job is to determine what happened when I got evidence such as this that shows you a woman who was raped twice, who was sexually penetrated to the point that injury resulted twice.” (Emphasis added.)
Hill argues that the italicized portion of the prosecutor's rebuttal argument was an improper comment on his decision not to testify at trial. Hill maintains nothing he said during closing argument could be construed as an attempt on his part to present the jury with evidence; thus, there was no reason for the prosecutor to mention during his rebuttal argument that Hill did not testify at trial or that his comment during closing argument could not be construed as evidence.
“The Fifth Amendment to the United States Constitution, as well as § 10 of the Kansas Bill of Rights, forbid the prosecution from commenting directly or indirectly upon a defendant's silence. [Citations omitted.] An indirect comment violates the privilege against self-incrimination if it was ‘manifestly intended or was of such a character that the jury would necessarily take it to be a comment on the failure of the accused to testify.’ [Citation omitted .] In particular, a comment that the defense has not contradicted the State's evidence is impermissible if ‘it is highly unlikely that anyone other than the defendant could rebut the evidence.’ [Citations omitted.]” State v. Madkins, 42 Kan.App.2d 955, 959–60, 219 P.3d 831 (2009), rev. denied 291 Kan. 915 (2010).
For purposes of analyzing Hill's claim of prosecutorial misconduct, we will assume, without deciding, that the comment made by the prosecutor in rebuttal argument was outside the wide latitude allowed in discussing the evidence. Accordingly, we move to the second step of the prosecutorial misconduct analysis, which requires us to decide whether the comment prejudiced the jury against Hill and denied him a fair trial. As noted above, this step specifically requires us to determine whether: “(1) the misconduct was gross and flagrant; (2) the misconduct showed ill will on the prosecutor's part; and (3) the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” Anderson, 294 Kan. at 461.
The record reflects that the prosecutor's comment here did not demonstrate gross and flagrant behavior on his part. In order to determine “whether a comment was gross and flagrant, Kansas courts often consider whether the prosecutor repeated or emphasized the misconduct.” Madkins, 42 Kan.App.2d at 961 (citing State v. Miller, 284 Kan. 682, 719–20, 163 P.3d 267 [2007] ). The comment made by the prosecutor here—that Hill was not required to testify but that statements made by Hill in closing argument do not qualify as testimonial evidence—was an isolated incident that occurred during the State's rebuttal closing argument. The prosecutor made no other comments at any other point, including the State's initial closing argument. Given the isolated and remote nature of the comment, the prosecutor's conduct was not gross and flagrant.
In addition, our review of the record reflects that the comment was not motivated by ill will. “Evidence of ill will is reflected through deliberate and repeated misconduct or indifference to a court's rulings.” Madkins, 42 Kan.App.2d at 961. As noted above, the comment was a single, isolated incident during the State's rebuttal closing argument. In fact, the prosecutor reminded jurors that Hill had a constitutional right not to testify and reminded them of the district court's instruction regarding a defendant's decision not to testify: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference of guilt from the fact that the defendant did not testify, and you must not consider this fact in arriving at your verdict.”
Taken in context, it appears likely the comment was merely a response to Hill's assertion during his closing argument that “[n]o rape has been proven” and it was “just [V.T.'s] word against mine.” Because Hill did not testify at trial, the jury would have had to deduce from this assertion that his “word” came from his opening statement and the questions he asked of V.T. during cross-examination, which suggested that he and V.T. had consensual sex on September 12 and 18. Of course, statements of counsel are not evidence, see State v. Cole, 37 Kan.App.2d 633, 637, 155 P .3d 739 (2007); thus, it appears the prosecutor just wanted to remind the jury that Hill's assertions—made while he was representing himself during trial—should not be considered as evidence. Although our Supreme Court recently held that “a prosecutor's improper comment or argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting arguments made by defense counsel,” the court specifically noted that the extemporaneous, rebuttal nature of a prosecutor's argument is a factor that can be considered by an appellate court in considering prejudice. State v. Marshall, 294 Kan. 850, 281 P.3d 1112, 1120 (2012).
Having found the prosecutor's comment was not gross and flagrant or motivated by ill will, the remaining issue is whether the State has demonstrated that the evidence presented at trial was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. Given V.T.'s testimony at trial and the nature and extent of physical evidence introduced at trial that directly supported that testimony, we find the State has met its burden on this issue. In sum, then, we find the prosecutor's comment did not prejudice or deprive Hill of his constitutional right to a fair trial. As such, Hill's claim of prosecutorial misconduct fails. Prior Convictions
Hill argues that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court violated his Sixth and Fourteenth Amendment rights at sentencing when it used his prior convictions to determine his sentence under the sentencing guidelines without first requiring the State to prove the validity of those convictions to a jury beyond a reasonable doubt. He concedes that our Supreme Court has already decided this issue against him in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), but raises the issue to preserve it for federal review. This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011), Our Supreme Court continues to reaffirm its precedent in this area. State v. Barnes, 293 Kan. 240, 265, 262 P.3d 297 (2011). Thus, we find Hill's argument lacks merit and the district court did not violate his constitutional rights at sentencing.
Affirmed.