Opinion
109,985.
10-10-2014
STATE of Kansas, Appellee, v. Christian J. McCORMICK, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Matthew B. Metcalf, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Matthew B. Metcalf, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christian J. McCormick appeals his conviction of one count of rape and one count of unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage. First, he argues that his constitutional right to a fair trial was violated when irrelevant evidence was admitted at trial over his objection. Second, he asserts that the district court improperly considered an aggravating factor when it denied McCormick's motion to depart from a life sentence under Jessica's Law. Finally, he argues that the district court erred by denying his departure motion because substantial and compelling reasons existed to depart.
Facts
On January 13, 2012, K.C. and B.P. went to McCormick's house around 9 p.m. Later that night, K.C.'s father called Mallory Zavala because he could not find K.C. Zavala was K.C.'s friend and knew B.P. Zavala is also McCormick's cousin. After speaking with K.C.'s father, Zavala called one of K.C.'s friends and learned that K.C. and B.P. were with McCormick. Based on this information, Zavala went to McCormick's house. She found McCormick in the garage. He did not want her to go downstairs. Nevertheless, Zavala eventually did go down into the cellar. There, she found B.P. and K.C. B.P. was lying on a couch and K.C. was on the floor. K.C. was not wearing any pants or underwear. B.P. was covered with a blanket, but when she got up, she was not wearing any pants either. Zavala could not remember whether B.P. had on underwear.
Later that evening, Kurt Vogel, an officer with the Wellington Police Department, was dispatched to the residence of B.P.'s parents because B.P. came home intoxicated. After speaking to B.P.'s mother, Officer Vogel went to McCormick's house. Connie McCormick, the homeowner, signed a form consenting to a search of her home. McCormick also signed the form as a witness. Vogel searched the basement and spoke to McCormick at length. McCormick agreed to go to the police station with Vogel to be interviewed further. At about 3 a.m. on January 14, 2012, Vogel drove McCormick to the police station. After reading McCormick his Miranda rights, McCormick discussed the previous evening's events. During the interview, McCormick admitted to having sex with B.P.
McCormick was charged with one count of unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage and one count of rape. He pled not guilty. A jury trial was held on December 11 and 12, 2012.
B.P. testified at trial that she and K.C. gave McCormick and a friend of his money to purchase vodka. On January 13, 2012, she and K.C. went to McCormick's house. While there, B.P. drank six or seven shots of vodka and later fell asleep. When B.P. woke up, Zavala was there and B.P. was not wearing any pants. B.P. did not remember having any physical contact with anyone that night. After B.P. put on K.C.'s pants, McCormick's grandmother dropped B.P. off at her house. At the suggestion of a police officer, B.P. went to a hospital to have a rape kit performed. At the hospital, swabs were collected from B.P.'s vaginal area. Dawn Ford, a forensic biologist with the Kansas Bureau of Investigation, compared the vaginal swabs with known oral swabs from McCormick. Ford testified at trial that McCormick's seminal fluid was found on B.P.'s labia.
McCormick did not present any evidence at trial. The jury found McCormick guilty of rape and unlawfully hosting a minor consuming alcohol. The jury also found beyond a reasonable doubt that McCormick was over the age of 18 when the rape was committed.
Because of his age and the age of his victim, McCormick was subject to a mandatory life sentence under K.S.A.2013 Supp. 21–6627. McCormick filed a motion requesting a dispositional and durational departure. The district court denied the motion and sentenced McCormick to life in prison without the opportunity of parole for 25 years.
McCormick timely appeals.
Analysis
McCormick's right to a fair trial
McCormick argues that the district court erroneously allowed the State to present evidence regarding K.C.'s condition on the night of McCormick's offense because K.C. was not an alleged victim in this case.
Relevance
First, McCormick argues the evidence was not relevant. Except as otherwise provided by statute, all relevant evidence is admissible. K.S.A. 60–407(f). Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60–401(b). Thus, in order to be relevant, evidence must be both material and probative. The standards of review for the two components vary. State v. Holman, 295 Kan. 116, 132, 284 P.3d 251 (2012). A fact is material if it “has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency to prove any material fact.” State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). Appellate courts review materiality de novo. A district court's finding regarding whether evidence is probative is reviewed by an appellate court for abuse of discretion. State v. Ultreras, 296 Kan. 828, 857, 295 P .3d 1020 (2013). 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. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 106, cert denied 134 S.Ct. 162 (2013).
Based on the legal principles set forth above, we first must determine if Zavala's testimony relating to K.C. was material. The following is the testimony at issue:
“[Prosecutor]. When you got into the cellar, can you describe what you saw?
“A. There was like a couch up against the wall, and then there's like a littleanother couch to the left as you walk in, and then [B.P.] was laying on the couch, and then [K.C.] was on the floor.
“Q. Can you describe how [K.C.] appeared?
“A. She didn't have any pants on.
“Q. Okay. When you say she didn't have any pants on, can you tell us what you mean?
“A. She was naked from the waist down.
“Q. Okay. So she didn't have anything on at all?
“A. Huh uh.
“Q. Were you able to see her vagina?
“A. If you stood in front of her, yes.
“Q. Okay. Could you describe how she was positioned on the floor?
“A. She was sitting on her side up against the couch and her head just kind of slouched over.
“Q. She was sitting on her side?
“A. Urn huh.
“Q. Were you able to wake [K.C.]?
“A. No.
“[Defense]: All right. I'm objecting as to relevance in regarding [K.C] She's not the alleged victim in this case. It's [B.P.] So objection as to relevance.”
The district court overruled the objection. It is difficult to discern from the objection what portion of the testimony precisely was being challenged or if the challenge was timely, but the district court noted that it believed all the testimony was relevant. For the reasons set forth below, we agree that the testimony was admissible.
McCormick correctly argues that K.C. was not the victim McCormick was alleged to have raped. However, in addition to one count of rape, McCormick was charged with one count of unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage.
“Unlawfully hosting minors consuming alcoholic liquor or cereal malt beverage is recklessly permitting a person's residence or any land, building, structure or room owned, occupied or procured by such person to be used by an invitee of such person or an invitee of such person's child or ward, in a manner that results in the unlawful possession or consumption therein of alcoholic liquor or cereal malt beverages by a minor.” K.S.A.2013 Supp. 21–5608(a).
K.C. was 13 years old on the night in question. Her condition had a legitimate and effective bearing on whether she had consumed alcohol at McCormick's house. McCormick even admitted in his brief that the fact K.C. could not be awakened was probative to whether she drank alcohol. However, he argues on appeal that the fact that the girls drank alcohol was undisputed and therefore was not material. This argument is without merit. “A defendant's not guilty plea places in dispute all of the elements of the crime and requires the State to prove each and every element beyond a reasonable doubt.” State v. Crum, 286 Kan. 145, Syl. ¶ 5, 184 P.3d 222 (2008). Because McCormick pled not guilty to both charges against him, he effectively disputed that a minor had consumed alcohol at his house. As a result, Zavala's testimony regarding K.C.'s condition, which was consistent with that of someone who has had too much to drink, was material to the State's case against McCormick.
Next, we must determine whether the evidence at issue was probative. K.C.'s state of undress and Zavala's inability to wake her tend to prove that K.C. had consumed alcohol at McCormick's house. Further, McCormick admitted in his brief that the fact K.C. was passed out was probative to whether she had consumed alcohol. Consequently, the district court did not abuse its discretion in finding that the evidence was probative.
Finally, the district court judge listed several reasons he believed the evidence regarding K.C. was relevant, all of which McCormick challenges on appeal. But it is unnecessary to discuss each of the judge's reasons. If a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012). As discussed above, the evidence relating to K.C.'s condition was material and probative. Therefore, no further analysis is necessary to determine the district court did not err in overruling McCormick's objection to the relevance of the evidence.
Undue prejudice
Next, McCormick argues that, if even if the evidence relating to K.C.'s condition was relevant, any probative value of the evidence was outweighed by its potential to produce undue prejudice. K.S.A. 60–445 states:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
At trial, McCormick objected to the evidence as irrelevant, but did not argue that the probative value was outweighed by the potential for undue prejudice. A party is not permitted to object to evidence on one ground at trial and then assert another ground on appeal. State v. Hollingsworth, 289 Kan. 1250, 1256, 221 P.3d 1122 (2009).
Citing State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009), McCormick asserts that the Kansas Supreme Court has held that part of the analysis when determining relevancy of evidence is whether its probative value outweighs the potential for undue prejudice. However, that case dealt specifically with whether evidence was properly admitted under K.S.A. 60–455, which allowed evidence of other crimes or civil wrongs to be admitted under certain circumstances. The Kansas Supreme Court noted that a district court must weigh the probative value of evidence against the potential for undue prejudice when a party seeks to admit evidence under K.S.A. 60–455, but this is because that statute specifically invoked K.S.A. 60–445. Wells, 289 Kan. at 1227. Therefore, the analytical framework used in that case is not applicable here. Because McCormick did not object on the basis that the probative value of Zavala's testimony was outweighed by its potential to produce undue prejudice, he did not properly preserve the issue for appeal.
Harmless error
Even if this court assumes the district court did err by admitting the evidence regarding K.C.'s condition, the error was harmless. McCormick alleges that his Sixth Amendment right to a fair trial was violated by the admission of this evidence. Because the issue involves a right guaranteed by the United States Constitution, a heightened standard of review is used to determine whether the error was harmless. Under this standard, the State bears the burden of showing “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 [1967] ), cert. denied 132 S.Ct. 1594 (2012).
In its brief, the State correctly notes that McCormick's seminal fluid was found on B.P.'s labia and that McCormick admitted to Officer Vogel that he had sex with B.P. Given this strong evidence, there is no reasonable possibility that the verdict on the rape count would have been different had Zavala's testimony regarding K.C. been excluded as evidence in this case. Therefore, even if the district court committed error by permitting the evidence at issue to be introduced, the error was clearly harmless.
McCormick's motion to depart from a Jessica's law sentence
McCormick argues that the district erred by improperly considering an aggravating factor when it denied his motion to depart from a Jessica's Law sentence. He did not raise this issue below. Generally, issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). But an issue may be reviewed for the first time on appeal if it involves only a question of law arising on proved or admitted facts and is finally determinative of the case. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). Analysis of this issue requires the interpretation of K.S.A.2013 Supp. 21–6627. Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). Because this issue could affect McCormick's sentence, it is also finally determinative, and this court may consider it.
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to determine legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). When the language of a statute is plain and unambiguous, an appellate court will not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013).
K.S.A.2013 Supp. 21–6627(d)(1) states in relevant part:
“On or after July 1, 2006, for a first time conviction of an offense listed in subsection (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” (Emphasis added.)
McCormick argues that, although K.S.A.2013 Supp. 21–6627 clearly requires mitigating factors to be considered by the court, it does not direct the sentencing judge to consider aggravating factors or to weigh mitigating and aggravating factors. McCormick asserts that the lack of an explicit reference to aggravating factors in K.S.A.2013 Supp. 21–6627 is conspicuous and indicates that the legislature intended to prohibit the court from considering aggravating factors.
Moreover, McCormick notes that the statute which governs the imposition of sentences under the Kansas Sentencing Guidelines as well as the statutes that control sentencing in capital crimes all explicitly direct the sentencing court to consider both aggravating and mitigating factors. Additionally, he cites the following language from a 2011 Kansas Supreme Court case:
“On structure, no balance between mitigators and aggravators such as that implied in K.S.A. 21–4716 or explicitly provided for in K.S.A. 21–4624(e) or K.S.A. 21–4635(b)–(d) is necessary when Jessica's Law is the starting point. The only way for Jessica's Law to operate is to intensify, if not lengthen, a sentence. It makes 25 years a mandatory minimum, unless certain mitigators justify a departure. Simply put, there is nowhere to go but to a less-intense place. Under K.S.A. 21–4716, in contrast, departure either upward or downward is possible. Likewise, when a jury is asked to deliberate on a life sentence versus a death sentence, it is sensible and appropriate for both mitigators and aggravators to play a role in the choice between a show of mercy and the ultimate penalty; neither is the otherwise automatic sentence. The same can be said when a judge weighs mitigators and aggravators to determine whether a hard 40 or 50 sentence should be imposed.” State v. Spencer, 291 Kan. 796, 809, 248 P.3d 256 (2011).
McCormick takes this language to mean only mitigating factors may be part of the sentencing equation in a Jessica's Law case. But the language quoted by McCormick does not support his argument. This language merely explains the absence of any reference to aggravating factors in K.S.A.2013 Supp. 21–6627. The Supreme Court stated that the weighing of aggravating and mitigating factors is unnecessary when faced with a Jessica's Law sentence because a Jessica's Law sentence cannot be aggravated at the time of sentencing. Spencer, 291 Kan. at 809. Under Jessica's Law, a life sentence is mandatory unless mitigating factors justify a departure. K.S.A.2013 Supp. 21–6627(a)(1). The only power a sentencing court has is to lessen a defendant's sentence, so when faced with that decision, the statute only mandates the consideration of mitigating factors.
More significantly, the Supreme Court has consistently interpreted K.S.A.2013 Supp. 21–6627(d)(1) to allow consideration of both aggravating and mitigating factors when considering a motion to depart from a Jessica's Law sentence. As recently as this year, the Supreme Court has stated:
“[A] district court has the discretion to either grant or deny [a motion to depart from a Jessica's Law sentence]. In exercising this discretion, a district court first reviews the mitigating circumstances and then weighs those circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure. [Citation omitted.]” State v. Remmert, 298 Kan. 621, 630, 316 P.3d 154(2014).
This court is duty bound to follow Kansas Supreme Court precedent absent some indication the court is departing from its previous position. State v. Acevedo, 49 Kan.App.2d 655, 670, 315 P.3d 261 (2013). The Kansas Supreme Court has clearly interpreted K.S.A.2013 Supp. 21–6627(d)(l) to allow sentencing courts to consider aggravating factors as well as mitigating factors when determining whether to depart from a Jessica's Law sentence. Therefore, as a matter of law, the district court did not err when it considered an aggravating factor when it denied McCormick's departure motion.
McCormick's motion for a downward durational and dispositional departure
Finally, McCormick argues that the district court erred in denying his departure motion because there were substantial and compelling mitigating factors justifying departure. A district court's decision to deny a departure motion is reviewed on an abuse of discretion standard. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012). 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. Northern Natural Gas Co., 296 Kan. at 935. A decision is arbitrary, fanciful, or unreasonable when no reasonable person would have taken the view of the district court. State v. Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013).
McCormick advances two arguments. First, he argues that the district court based its decision on an error of law because he considered an aggravating factor. As already discussed above, it was not improper for the district court to consider aggravating circumstances when deciding whether to depart from a Jessica's Law sentence. Second, McCormick argues that because several mitigating factors existed, the district court erred in denying the departure motion. This amounts to an argument that the district court's decision below was arbitrary, fanciful, or unreasonable.
McCormick argues in his brief that his age, lack of criminal history, intoxication at the time of the offense, and his acceptance of responsibility for his actions were all mitigating factors. Further, he notes that in her victim impact statement, B.P. stated that 4 to 6 years in prison would be an appropriate sentence and that the crime had not affected her as much as it did K.C. Finally, the State agreed that a departure to the grid was appropriate and did not oppose the request for a durational departure. McCormick argues that these were substantial and compelling reasons for departure and therefore the district court erred in denying his motion to depart.
In reviewing the district court's decision, this court must affirm the denial of the departure motion if it finds that even one reasonable person would agree with the district court judge. This is a substantial burden. Florentin, 297 Kan. at 602. The district court reviewed the circumstances of the case and noted that there were some substantial mitigating factors to consider. But based on B.P.'s severe inebriation at the time McCormick had sexual intercourse with her, the court found the mitigating factors did not amount to substantial and compelling reasons to depart from the default Jessica's Law sentence. A reasonable person could agree with the district court's decision. As a result, the district court did not abuse its discretion when it denied the departure motion and sentenced McCormick to life in prison.
Affirmed.