Opinion
No. 107,409.
2013-08-29
STATE of Kansas, Appellee, v. Damian K. MAYES, Appellant.
Appeal from Harvey District Court; Richard B. Walker, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Jason R. Lane, assistant county attorney, David E. Voder, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court; Richard B. Walker, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Jason R. Lane, assistant county attorney, David E. Voder, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Damian K. Mayes appeals after a jury convicted him of aggravated indecent liberties with a child and aggravated criminal sodomy. Mayes raises four issues on appeal: (1) whether he is entitled to a new trial because one of the State's witnesses allegedly vouched for the minor victim's credibility; (2) whether the reasonable doubt jury instruction given by the district court created reversible error; (3) whether the prosecutor committed misconduct during closing arguments; and (4) whether the district court abused its discretion in denying Mayes' request for a downward dispositional departure. For the reasons set forth in this opinion, we affirm.
Facts
In the early morning hours of November 29, 2008, Officer James Pfannenstiel responded to a 911 call from a house in Newton. Upon arriving at the house, Officer Pfannenstiel spoke to F.W.L., Sr., who reported that when he arrived home shortly before he made the 911 call, he observed Mayes performing oral sex on a person who he initially thought was his fiancee's son. When F.W.L., Sr., went into the house, he determined that Mayes was actually performing oral sex on his 11–year–old son, F.W.L, Jr. By the time the police arrived at the scene, Mayes was no longer present.
Officer Pfannenstiel spoke with F.W.L., Jr., and asked “if Mayes had touched him somewhere on his body where it's not okay to touch.” In response, F.W.L., Jr., stated that Mayes touched him on his privates. Officer Pfannenstiel then asked F.W.L., Jr., “If Mayes had touched his mouth to his privates.” F.W.L., Jr., responded by shaking his head affirmatively, and Officer Pfannenstiel stopped questioning him.
On December 3, 2008, Officer Brad Celestin conducted a Finding Words forensic interview with F.W.L., Jr. During the interview, F.W.L., Jr., stated that while he was playing video games, Mayes kept putting his hand on F.W.L., Jr.'s penis. In addition, F.W.L., Jr., stated that Mayes also put F.W.L., Jr.'s penis in his mouth.
Two days later, Detective Craig Douglass interviewed Mayes at the Newton Police Station regarding the alleged incident. Detective Douglass learned that Mayes—who was 33 years old and a paraprofessional at an elementary school—had known F.W.L., Sr.'s fiancee, S.B., for around 7 years. According to Mayes, he went to the house that night to babysit F.W.L., Jr., and S.B.'s two sons. Mayes stated that he spent most of the night in the bedroom shared by F.W.L., Jr., and one of S.B.'s sons.
Mayes indicated that he lay with the boys on the floor of the bedroom, watching movies and playing video games. Mayes told Detective Douglass that at one point, F.W.L., Jr., was “lying down on the floor all sprawled out” in just a pair of shorts “in somewhat of a suggestive position,” so he covered F.W.L., Jr., up with a comforter. At one point in the interview, Mayes started to say something about either F.W.L., Jr., lying on top of him or him lying on top of F.W.L., Jr. But Mayes quickly corrected himself to say that he was lying beside F.W.L., Jr.
When Detective Douglass asked whether there was any touching or physical contact between Mayes and the boys that night, he said that while wrestling with the boys, S.B.'s son kept trying to grope Mayes' crotch. According to Mayes, the boys suggested that they wrestle naked because it was hot in the house, but he did not allow them to do so. Moreover, Mayes stated that at one point, F.W.L., Jr., said, “If you touch it, it gets hard.” When Detective Douglass asked if there could have been any accidental contact with the boys that F.W.L., Jr., could have perceived as inappropriate, Mayes indicated there was none that he could recall.
Mayes told Detective Douglass that S.B. came home around 2 or 2:30 a.m. After telling him to turn off the TV and to shut the door when he left, S.B. went upstairs. Around 3 or 3:30 a.m., F.W.L., Sr., came home and Mayes heard banging on the bedroom door, and a male voice yelled to get out. Mayes assumed it was F.W.L., Sr., but he only saw S.B.'s other son in the living room when he left the house.
On June 30, 2009, the State filed a criminal complaint against Mayes charging him with one count each of aggravated indecent liberties with a child and aggravated criminal sodomy. The district court held a 3–day jury trial, commencing on November 17, 2010. At trial, Officer Pfannenstiel, Officer Celestin, and Detective Douglass testified on behalf of the State. Likewise, F.W.L., Jr., and F.W.L., Sr., testified regarding the events on November 29, 2008. Further, a video recording of Officer Celestin's Finding Words interview with F.W.L., Jr., was shown to the jury. The defense called Mayes' wife to testify regarding telephone calls between her, S.B., and Mayes. She also testified about the cell phone calls she received from Mayes on the night of the alleged incident.
After weighing the evidence presented by the parties, the jury found Mayes guilty on both charges. Following the trial, Mayes filed a motion for a new trial, a motion for judgment of acquittal, and a motion for downward dispositional and durational departure. At a hearing held on March 1, 2011, the district court denied Mayes' motion for a new trial and motion for judgment of acquittal. Although the district court granted Mayes' motion for a downward durational departure, it denied his request for a downward dispositional departure. Hence, Mayes was sentenced to imprisonment for a term of 214 months.
Analysis
Testimony of Officer Celestin
Mayes contends the district court erred in allowing Officer Celestin to testify regarding whether the minor victim's actions during the Finding Words interview were consistent with his training and experience interviewing children who he believed were being coached. Mayes argues that Officer Celestin's testimony constituted an improper comment regarding the credibility of another witness.
Questions that compel a witness to comment on the credibility of another witness are generally improper because it is the province of the jury to weigh the credibility of the witnesses. State v. Martis, 277 Kan. 267, 289, 83 P.3d 1216 (2004). On appeal, our review of this issue is unlimited. See State v. Elnicki, 279 Kan. 47, 51, 105 P.3d 1222 (2005).
During the State's redirect examination of Officer Celestin, the prosecutor asked him how many forensic interviews he had conducted since receiving Finding Words training. Officer Celestin answered that he had done somewhere around 80 to 100 such interviews with minors. Then the following exchange occurred:
“Q. [Prosecutor:] Have you had circumstances where you have interviewed children where it would appear, based upon your training and experience, that maybe the child had been coached?
“A. [Officer Celestin:] Yes, sir.
“Q. Did you get any kind of impression like that when you were conducting the interview?
“[Defense counsel]: Object as his opinion.
“THE COURT: I'm sorry?
“[Defense counsel]: I object to his opinion about whether this child had been coached or not.
“THE COURT: No, I'm not going to permit it—inquiries whether you've [sic] been coached or not. I'm going to permit an opinion as to whether—why it was perhaps consistent, but overrule the objection—well, granted to the extent I'm not going to allow you to ask that question in that fashion.
“[Prosecutor]: Yes, I will rephrase it.
“Q. Detective Celestin, when you conducted this interview on December the 3rd of 2008, with [F.W.L., Jr.], was his description of events to you, the interview, your interaction with him, his attitude and demeanor—was that consistent with your experience before where you have seen children that have, in your opinion, been coached?
“A. No, sir, it was not consistent.
“[Defense counsel]: Objection. Again, I'd ask that question be stricken. He's giving his opinion. He's certainly not an expert in this area. There's no showing that he has a degree in psychology or anything else that would make him able to testify whether or not he believes a child has been coached.
“THE COURT: Overruled. He was testifying as to his experience. You can have recross on that point. Continue.”
After that, the prosecutor had no further questions, and defense counsel did not bring the issue up again on recross-examination.
In State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), the defendant was accused of sodomizing an 11–year–old child. A mental health therapist with expertise in treating sexually abused victims testified that the child's progress in therapy was consistent with what he would expect when a young boy who has been sodomized. The Kansas Supreme Court found that the testimony was proper, reasoning:
“Although the complained-of testimony was close to the line of impermissibility, it does not cross the line. The witness did not give an opinion as to whether or not [the victim] was telling the truth. Rather, the testimony may be compared to a situation where a patient tells his treating physician he had been held without food and water in a certain type of environment, and the physician testifies the victim's initial condition and progress in treatment are consistent with the events related to him by the patient. The physician, under such circumstances, is not testifying that any particular person committed a criminal act against his patient or that his patient is telling the truth as to how or by whose acts he suffered injury. The door is thus left open to cross-examination relative to other causal circumstances which might also be consistent with the physician's opinion as to his patient's condition and progress.” 241 Kan. at 80.
Similarly, the Kansas Supreme Court found a witness' testimony to have been permissible in State v. Arrington, 251 Kan. 747, 753, 840 P.2d 477 (1992). In Arrington, the prosecutor asked a sexual abuse therapist—over the objection by defense counsel—whether one of the child victims “ ‘was distrustful or was being manipulative or deceitful in any way.’ “ 251 Kan. at 751. On appeal, our Supreme Court held:
“In the present case, [the expert witness] was not asked and did not directly testify that in her opinion [the victim] was telling the truth but merely testified that based upon her treatment of [the victim] and considering his mental age and severe retardation, she did not think he was capable of being purposely deceitful. While the question may be a close one, we hold that when the testimony objected to is taken in its full context under the facts of this case, the trial court did not abuse its discretion in admitting the testimony.” 251 Kan. at 753.
In State v. Mullins, 267 Kan. 84, 96–97, 977 P.2d 931 (1999), however, the Kansas Supreme Court concluded that a district court had erred in allowing the assistant director of the sexual abuse program at the University of Kansas Medical Center to testify that she had no indication the minor victim had been coached. Although our Supreme Court once again noted it was “a close question,” it found:
“There are subtle and not so subtle distinctions in the manner in which the questions leading to a suggestion of truthfulness of the victim are asked. When the trial court overruled defense counsel's objection, [the witness] rephrased the question, ‘I thought he had been coached?’ and answered, ‘No.’ Technically, as prohibited by [State v.] Lash[, 237 Kan. 384, 699 P.2d 49 (1985) ], and [State v.] Jackson [, 239 Kan. 463, 721 P.2d 232 (1986) ], the question asked of [the witness] does not allow the giving of an opinion that [the victim] had been sexually assaulted by Muliins or render an opinion that he was telling the truth. This does not, however, mean the question was proper, as it implies truthfulness.” 267 Kan. at 96.
See State v. Plaskett, 271 Kan. 995, 1007–09, 27 P.3d 890 (2001).
In the present case, the State argues that its question was permissible because it was asked response to defense counsel's attempt to show that Officer Pfannenstiel—who originally responded to the 911 call—had coerced F.W.L., Jr., into making the accusations against Mayes by asking leading questions. The fact that the prosecutor asked the question during redirect examination after Officer Celestin was cross-examined by defense counsel concerning proper interview techniques for child victims further supports the State's argument. Thus, as in the cases cited above, we are presented with a close question.
Nevertheless, even if we assume that the question and answer were improper, K.S.A. 60–261 provides that “[no] error in the admission or exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict ... unless ... such action appears ... inconsistent with substantial justice.” In other words, the erroneous admission of evidence is harmless unless it “ ‘affects the defendant's substantial rights.’ [Citation omitted.]” State v. Gaona, 293 Kan. 930, 940, 270 P.3d 1165 (2012). An error is harmless if there is no reasonable probability that it affected the outcome of the trial. State v. Ward, 292 Kan. 541, 565–66, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The burden of demonstrating harmlessness is on the party benefiting from the error. See State v. McCullough, 293 Kan. 970, 982–83, 270 P.3d 1142 (2012). Here, it is the State that benefited from the admission of the evidence in question. In attempting to show that the admission of the evidence was harmless, the State points out that the minor victim's testimony was corroborated by other witnesses. Moreover, the State contends that this case is distinguishable from those in which a conviction has been reversed on the grounds of one witness commenting on the credibility of another witness because Officer Celestin did not expressly testify that F.W.L., Jr., was telling the truth.
In Martis, the Kansas Supreme Court addressed a similar argument regarding harmlessness of the improper admission of evidence. Our Supreme Court held:
“Although the questioning was improper, the detective did not expressly testify that the eyewitnesses were telling the truth as in Jackson and Plaskett. Moreover, this case did not hinge on the credibility of one witness, and it is unlikely that the jury would have given much credit to the detective's opinion when it had the opportunity to listen to the witnesses testify themselves. The detective gave very brief answers to the prosecutor's questions and did not go into specific details regarding the eyewitnesses' versions of events. We conclude that this brief exchange in the middle of extensive trial testimony had [no reasonable probability of affecting] the outcome of this case. Thus, the improper questioning amounted to harmless error.” 277 Kan. at 293.
See Ward, 292 Kan. at 565–66.
Based on our review of the record in this case, we conclude that—similar to Mortis—there is not a reasonable probability that the jury would have rendered a different verdict based on the admission of Officer Celestin's brief testimony that he did not find the description of events given by F.W.L., Jr., during the Finding Words interview to be consistent with the descriptions given by those who have been coached. This is particularly true because the jury had the opportunity to listen to the testimony of F.W.L., Jr., and to view the video of the Finding Words interview at trial. Additionally, the jury had the opportunity to hear the testimony of F.W.L., Sr., regarding what he observed during the early morning hours of November 29, 2008.
We, therefore, conclude that even if the district court admitted the testimony in question erroneously, any such error was harmless under the circumstances presented.
Reasonable Doubt Instruction
Mayes also contends that he is entitled to a new trial because the reasonable doubt jury instruction given by the district court violated his constitutional rights. Specifically, Mayes argues that his rights under the Fifth and Sixth Amendments to the United States Constitution were violated when the district court instructed the jury that it could return a guilty verdict upon proof of any element of the charged offense rather than each element of the charged offense. In response, the State argues that the jury instructions—taken as a whole—properly stated the burden of proof.
The Kansas Supreme Court has held that the “progression of analysis and corresponding standards of review on appeal” for jury instruction issues are as follows:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, [565–66,] 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Hence, we must first determine the reviewability of the issue using an unlimited standard of review. 295 Kan. 156, Syl. ¶ 1. Under K.S.A. 22–3414(3), a party cannot attempt to assign error to the giving or failure to give a jury instruction on appeal unless an objection is asserted before the jury retires to deliberate. Notwithstanding, even when a defendant fails to object to or request a jury instruction, we can review the instruction on appeal to determine whether the giving of or failure to give the instruction was clearly erroneous under K.S.A. 22–3414(3). See State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012). Thus, because Mayes failed to object to the reasonable doubt instruction given to the jury at the trial of this case, we apply a clearly erroneous analysis.
The first step in the clearly erroneous standard is to determine whether there is error. Williams, 295 Kan. 506, Syl. ¶ 4. Here, the district court gave a reasonable doubt instruction to the jury, which stated in part:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. 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.” (Emphasis added.)
Mayes argues that the italicized any should have been replaced with the word each in order to be a proper instruction of law. Mayes bases his argument, in part, on an unpublished opinion by a panel of this court that is currently on review by the Kansas Supreme Court. Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), rev. granted March 4, 2013. The Miller panel determined that the defendant should be granted a new trial based on an erroneous reasonable doubt instruction. 2012 WL 401601, at *9.
Unlike the present case, the reasonable doubt instruction given to the jury in Miller transposed each and any in the version of PIK Crim.3d 52.02 in effect at that time. See PIK Crim.3d 52.02 (2004 Supp.). The Miller panel found that allowing these words to be transposed would “turn proof beyond a reasonable doubt inside out and permit the State to convict with patently insufficient evidence.” 2012 WL 401601, at *2. We do not find the same to be true of the reasonable doubt instruction given to the jury in the present case.
Here, the district court simply used any in both locations. This court has previously found that a reasonable doubt instruction identical to the one given in Mayes' case did not create reversible error. In State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233 rev. denied 278 Kan. 847 (2004), this court found that use of the word any in both places does not create ambiguity and does not allow a jury to convict a defendant when only one element of the crime is proven. This is particularly true where an instruction defining the crime charged provides that each of the elements had to be proved beyond a reasonable doubt. 32 Kan.App.2d at 787–88.
In 2005, the PIK Committee modified the reasonable doubt instruction. Mayes argues the modified version of the jury instruction should have been given at trial. Although it would have been better if the modified version of PIK Crim.3d 52.02 had been used, this does not mean the old version of the reasonable doubt instruction is bad law. In fact, the Kansas Supreme Court found that the prior version of PIK Crim.3d 52.02—which is identical to the instruction given to the jury in the present case—accurately reflects the law of this state because it properly advises a jury regarding the burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997).
Similarly, when considering the jury instructions given in the present case as a whole, we find that they accurately state the law of this state. A review of the instructions reveals that the jury was instructed as to each of the State's charges against Mayes that “[t]o establish this charge, each of the following claims” must be proved. (Emphasis added.) And the instructions properly advised the jury that each element must be proven by the State beyond a reasonable doubt. We, therefore, conclude that the district court did not commit reversible error when instructing the jury regarding reasonable doubt.
Prosecutorial Misconduct
Mayes next contends that he was denied a fair trial based on allegedly improper statements made by the prosecutor during closing arguments. Specifically, Mayes argues that the prosecutor inappropriately attributed statements to him that were not supported by the evidence. Also, Mayes asserts that the prosecutor argued facts that were not before the jury as evidence. In addition, Mayes claims that the prosecutor misstated the law.
Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, this court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, this court must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The second step of the analysis requires the appellate court to consider three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether 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.]” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012). “ ‘None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, [22,] 17 L.Ed.2d 705, 87 S.Ct. 824 (1967) (conclusion beyond a reasonable doubt that the error had [no reasonable possibility of affecting] the results of the trial), have been met.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011); see Ward, 292 Kan. 565–66.
A prosecutor must confine his or her remarks during closing argument to the facts in evidence and must not misstate the facts. A prosecutor is allowed, however, to draw reasonable inferences from the evidence and has some latitude in drawing inferences. See State v. Stano, 284 Kan. 126, 151, 159 P.3d 931 (2007).
“The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is clearly improper for the prosecutor to state facts that are not in evidence. When the prosecutor argues facts that are not in evidence, the first prong of the prosecutorial misconduct test is met, and an appellate court must consider whether the misstatement of fact constitutes plain error.” State v. Ly, 277 Kan. 386, Syl. 14, 85 P.3d 1200,cert. denied541 U.S. 1090 (2004).
In the present case, the comments Mayes complains about come from the following two paragraphs found near the end of the rebuttal portion of the prosecutor's closing argument:
“The inconsistencies, ladies and gentlemen of the jury, come from the defendant's statements and his explanation of what happened. I didn't touch them, but boy, these boys were sure approaching me. They were sure—what did he describe? [F.W.L., Jr.,] [lying] sprawled out in a suggestive pose. What 11–year–old boy knows what a suggestive pose is?
“The defendant—this is key. The defendant—he's talking to a law enforcement officer and he's describing these boys' behavior in a sexual manner. He is seeing these boys as sexual objects [lying] in a suggestive pose sprawled out.
....
“His statements—he claims that [F.W.L., Jr.,] approached him and told him if you touch it, it will get hard, but I didn't do anything. These kids putting the moves on me. They were trying to seduce me.... [ S.B.'s son ] was grabbing my crotch and they suggested wrestling naked. They were approaching me but I held off.” (Emphasis added.)
Although Mayes did not object to these statements, a claim of prosecutorial misconduct based on comments made during closing argument may be reviewed on appeal even when a contemporaneous objection has not been made at trial because the statements made by attorneys during closing arguments are not evidence. See State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
Mayes asserts that at no point during the trial did anyone testify that he had said the boys were “putting the moves on” him or “trying to seduce” him. Mayes also asserts that he never said he “held off from allowing himself to be seduced by the boys. Finally, he notes that he never said S.B.'s son “was grabbing his crotch.” Thus, although Mayes concedes that it is permissible for a prosecutor to draw inferences from the evidence during closing argument, he contends that the rebuttal argument in this case was impermissible because it inferred that Mayes had actually said the things that were attributed to him by the prosecutor.
Based on our review of the record, we find that the prosecutor was drawing inferences during the rebuttal portion of his closing argument based on the statements Mayes made to Detective Douglass during an interview conducted about a week after the alleged incident. As such, we conclude that the comments in question fall within the wide latitude given to a prosecutor during closing arguments.
Next, Mayes contends that the prosecutor misstated the controlling law when he told the jurors, “The other element which is on your verdict forms is you have to make a determination beyond a reasonable doubt—or at least a unanimous decision that the defendant was over the age of 18.” He argues this was a misstatement of the law, which provides that every element of a charged offense must be proved beyond a reasonable doubt. See State v. Bello, 289 Kan. 191, 198–200, 211 P.3d 139 (2009). A misstatement of controlling law must be reviewed on appeal, regardless of a timely objection at trial, to protect a defendant's right to due process. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006). When a misstatement of controlling law is made deliberately, it is outside the considerable latitude given to prosecutors during their arguments. 282 Kan. at 63.
The Kansas Supreme Court has found that even when a district court has failed to instruct the jury that the defendant's age is an element of the offense, the error is harmless if there is sufficient evidence in the record establishing the defendant's age. See State v. Inkelaar, 293 Kan. 414, 435–37, 264 P.3d 81 (2011). Here, the record clearly establishes that Mayes was over 18 years of age. In fact, there is evidence in the record that Mayes was 33 years old at the time he allegedly molested F.W.L., Jr. Accordingly, even if we assume that the prosecutor misstated the law, the error was harmless.
Dispositional Departure
Finally, Mayes argues the district court erred in denying his motion for a dispositional departure because the district court considered evidence—over his objection—of his sexual orientation. We review the denial of a motion to depart filed under K.S.A. 21–4643(d) for abuse of discretion. State v. Woodard, 294 Kan. 717, 726, 280 P.3d 203 (2012).
Judicial discretion is abused
“if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” Ward, 292 Kan. at 550 (citing State v. Gonzalez, 290 Kan. 747, 755–56, 234 P.3d 1 [2010] ).
In support of his motion for dispositional and durational departures, Mayes' counsel presented oral argument and provided the district court with 33 letters of support. In response, the State presented the testimony of James Kevin Chisham, who testified that in the spring of 2009, he was eating lunch with Mayes at a restaurant. According to Chisham, Mayes told him that a busboy—who appeared to be between 14 and 16 years old—“was kind of cute.” When Chisham stated that the boy was awful young, Mayes supposedly said that “16 is legal.” Chisham also testified that Mayes “commented that once a boy gets to 18 that's getting too old for me....”
Furthermore, over the objection of defense counsel, the district court allowed the prosecutor to ask Chisham if he believed that Mayes was sexually interested in males. In response, Chisham answered, “Yes.” When the prosecutor argued against departure, however, he did not suggest that the departure should be denied because Mayes was sexually attracted to males.
In response to the State's witness, Mayes called two witnesses who were also at the lunch in 2009 when he allegedly made the comments attributed to him by Chisham. Both witnesses testified that they did not hear Mayes make the comments.
In deciding the issue of departure, the district judge stated:
“The other letters, which I give great weight and credit to and credence to, and that is the good things that Mr. Mayes has done in the community. He's a productive member of society. He's very active in a number of different contexts in the community. If we can lay aside what happened here and I'm not really going to do that, but if I mentally lay that aside, the picture is almost uniformly good.
“And I don't know what happened in this restaurant. Obviously we've got a difference of opinion in that. My concern is regardless of what happened on the prior—regardless of the kinds of discussions that occurred, what happened here was a such a rip in the fabric of society that the Court is compelled to respond to it in a very, I think, forceful kind of way. That's the expectation of the legislature, and I'm pledged to uphold public policy using my conscience as a guide within the boundaries of the law that's given to me, but as I do that it reinforces the feeling of sadness that so, so much damage has been done to the victim and to the family and the friends that it's just—it's a situation if I had some time machine, I could turn back the clock so none of this happened, so that Mr. Mayes could focus on the positive things that were going on in his life, that the young victim here would not have had to experience this—but I can't do that. We're where we are.”
Thereafter, the district court denied Mayes' request for a downward dispositional departure, finding that such departure would be inappropriate under the facts of this case. The district court did, however, grant Mayes a downward durational departure.
Based on our review of the record, we do not find that the district court based its decision regarding the downward dispositional departure on Mayes' alleged sexual attraction to males. Rather, a review of the record shows that the district court considered all the evidence presented and made a decision based on the proper standards. In particular, the district court based its decision on the seriousness of the crimes for which Mayes had been convicted and the damage done to the victim. Therefore, we conclude that the district court did not abuse its discretion in denying Mayes' motion for a downward dispositional departure.
Affirmed.