Opinion
No. 110983.
2015-03-27
STATE of Kansas, Appellee, v. Jose Antonio PEREZ–AGUILERA, Appellant.
Appeal from Ford District Court; Daniel L. Love, Judge.Tessa French, of Miller Law Firm, LLC, of Liberal, for appellant.Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Daniel L. Love, Judge.
Tessa French, of Miller Law Firm, LLC, of Liberal, for appellant. Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MCANANY, P.J., ATCHESON, J., and HEBERT, S. J.
MEMORANDUM OPINION
PER CURIAM.
Jose Antonio Perez–Aguilera appeals his convictions for two counts of aggravated indecent liberties with a child and one count of aggravated intimidation of a witness. Perez–Aguilera argues that the trial court abused its discretion by excluding evidence that the victim's mother had a motive for inducing false testimony against him. He also contends that the trial court erred in failing to give a unanimity instruction and that there was insufficient evidence to support the jury verdict.
Factual and Procedural Background
Deisy Sotelo Martinez had an on again/off again relationship with Perez–Aguilera, beginning in the fall of 2008. Martinez lived in a trailer house with her children, M.S. and A.S. The father of M.S. and A.S. had recently been deported. On July 16, 2009, Martinez gave birth to Perez–Aguilera's son, A.P. Perez–Aguilera had initially stayed at the trailer house on weekends but moved in after Anthony was born. Perez–Aguilera lived at the trailer for about 8 months but then moved out because he was having a relationship with another woman. Martinez and Perez–Aguilera worked out their differences and he again stayed over on the weekends, but after Perez–Aguilera “cheated on her again” they separated.
In March 2012, Martinez and Perez–Aguilera were talking on the phone about getting back together and Perez–Aguilera moving back to the trailer. M.S., who was 12 years old, overheard the conversation and informed her mother that she didn't want Perez–Aguilera living with them. When Martinez repeatedly questioned her as to why, she began crying and told Martinez that Perez–Aguilera had been “touching her private parts.” M.S. told her mother that she had not told her previously because Perez–Aguilera had told her that Martinez would not believe her. Martinez called Perez–Aguilera and confronted him with the accusations, which he denied. Martinez then called the police. Perez–Aguilera came to Martinez' house and gave the police a statement denying that he had ever abused or molested M .S.
Shortly after the initial report, M.S. was interviewed by trained investigators at the Meadowlark House Child Advocacy Center and related a series of incidents involving Perez–Aguilera which spanned a period of over 2 years. Although she was unable to place dates to specific incidents, she described numerous incidents of improper touching of her private parts and graphically described incidents of anal and oral sodomy. Most of the incidents occurred when M.S. would take care of A.P. in the room where Perez–Aguilera was sleeping and while Martinez was at work.
On June 18, 2012, the State charged Perez–Aguilera with multiple crimes. Prior to the trial in July 2013, the State filed an amended information charging Perez–Aguilera with one count of rape, four counts of aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, and one count of aggravated intimidation of a witness. All of the crimes were alleged to have occurred between August 1, 2008, and March 4, 2012.
M.S. testified at the trial, and the video recording of her interview at Meadowlark House was also presented to the jury. Perez–Aguilera testified in his own defense. After a 3–day trial, the jury acquitted Perez–Aguilera on the rape charge and the four counts of aggravated criminal sodomy but convicted him on both counts of aggravated indecent liberties with a child and the count of aggravated intimidation of a witness.
The district court denied Perez–Aguilera's motion for a departure sentence and imposed the presumptive sentence of life imprisonment with a mandatory minimum parole eligibility of 25 years on each count of aggravated indecent liberties, with the sentences ordered to run concurrently. The court imposed a consecutive sentence of 24 months' imprisonment for aggravated intimidation of a witness.
Perez–Aguilera filed a timely appeal.
Exclusion of Evidence
Perez–Aguilera first argues that the district court abused its discretion by refusing to allow a line of questioning during cross-examination of Martinez attempting to establish that she had a motive to fabricate testimony against him.
Standard of Review
A district court's decision to admit or exclude evidence is assessed using a three-step standard of review. First, the court addresses whether the evidence in question is relevant. State v. Reed, 300 Kan. 494, 508, 332 P.3d 172 (2014). Relevant evidence is that which has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). Relevance has two elements: probative value and materiality. State v. Marks, 297 Kan. 131, 142, 298 P .3d 1102 (2013). Evidence is probative if it furnishes, establishes, or contributes toward proof. Probativity is reviewed for abuse of discretion. Evidence is material if it tends to establish a fact that is at issue and is significant under the substantive law of the case. Materiality is reviewed de novo. 297 Kan. at 142. Second, the court reviews de novo what rules of evidence or other legal principles apply. Finally, the court applies the appropriate evidentiary rule or principle. Review of the district court's application of evidentiary rules depends on the rule applied. Reed, 300 Kan. at 508.
The Evidence
On direct examination by the State, Martinez, testifying through an interpreter, answered that she had not coached M.S. to say anything about what Perez–Aguilera is charged with and that she did not formulate the story for revenge.
On cross-examination, defense counsel attempted to question Martinez regarding her difficulty in finding employment due to her illegal residency status and about her application for an immigration U–Visa. Under federal immigration regulations, an undocumented immigrant who is the victim of certain crimes can apply for a U–Visa providing temporary relief from deportation and acquire temporary nonimmigrant status if local law enforcement authorities certify that the alien would be of assistance in an investigation or prosecution. 8 C.F.R. § 214.14 (2013).
In response to the State's objection, Perez–Aguilera's counsel proffered information that in 2011, prior to M.S.'s revelations to her mother of any sexual abuse by Perez–Aguilera, Martinez had, with assistance of counsel, applied for such a U–Visa based on a separate municipal court case of domestic violence against Perez–Aguilera. The Dodge City Police Department had endorsed the application. M.S. was not listed as a victim on the application, and sexual abuse was not cited as the reason for the application. Perez–Aguilera's counsel proffered that the application was still in process when M.S. came forth with her allegations and that some of the letters of support which were submitted after the initial application referred to the current allegations of sexual abuse against M.S. He further proffered a general outline of his proposed line of questioning—that it would be easier for Martinez to find employment if her paperwork went through and that she had some incentive, therefore, to induce M.S. to fabricate the allegations against Perez–Aguilera in order to reinforce the U–Visa application.
After reviewing the application files and documents and hearing the arguments from counsel, the district judge stated that he could find no “nexus” between the proffered evidence and the defense theory. He ruled that the proposed line of questioning was irrelevant and prejudicial, thereby sustaining the State's objection.
Analysis
K.S.A. 60–420, which allows a party to attack or support the credibility of a witness, states:
“Subject to K.S.A. 60–421 and 60–422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.”
Our Supreme Court had ruled that “bias, interest, or improper motives of a witness may always be shown in order to place the witness' testimony in proper perspective.” State v. Bowman, 252 Kan 883, Syl. ¶ 1, 850 P.2d 236 (1993); see State v. Ross, 280 Kan. 878, 886, 127 P.3d 249, cert. denied 548 U.S. 912 (2006). In State v. Scott, 39 Kan.App.2d 49, 56, 177 P.3d 972 (2008), this court observed that “[o]ne of the methods or techniques for attacking the credibility of a witness is to show partiality, including bias, motive, and interest in the outcome.”
When evaluating the relevance of evidence from which a reasonable jury could infer that a witness has an ulterior motive to testify, the proposed inference need not be the only one that could be drawn, or even the most probable. At the admissibility stage, the threshold question is only whether a jury could find that the witness had a motive to testify in a certain manner; whether the witness actually has such a motive, and, if so, whether the motive has influenced the testimony, are separate and subsequent questions for the jury.
Here, defense counsel proffered a sufficient foundation for the admission of the evidence regarding Martinez' prior U–Visa application and the supplemental evidence in support of the application referring to the evidence of sexual abuse against M.S. in the present case. This evidence had a tendency, however remote, to support Perez–Aguilera's suggestion that Martinez had a personal interest to induce M.S. to falsify allegations against Perez–Aguilera. Thus, the district court improperly excluded the proffered evidence.
Harmless Error
In the context of this case, we find that any error by the district court in excluding the U–Visa evidence was harmless.
The testimony of M.S. alleged with a fair degree of detail a series of many sexual assaults occurring over a substantial period of time, rather than a single isolated incident. She testified reasonably consistently during the forensic interview and at trial and had at least vaguely revealed incidents of “touching” to her friends long prior to revealing the abuse to her mother. Martinez had limited fluency in the English language and was apparently relying upon an immigration attorney to handle the U–Visa process. There is little else in the record which would tend to support an inference that Martinez induced M.S. to fabricate such an elaborate scenario in order to improve the chances they would be given U–Visas. The possibility is sufficiently remote that we conclude there was no reasonable possibility the erroneous exclusion of the evidence altered the guilty verdicts the jury returned. State v. Burnett, 300 Kan. 419, 434, 329 P.3d 1169 (2014) (improper exclusion of evidence reversible error only if ‘ “there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record’ ”) (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 [2011], cert. denied 132 S.Ct. 1594 [2012] ).
Because we reverse and remand the convictions for aggravated indecent liberties with a child for other reasons, we anticipate Perez–Aguilera may be retried on those charges. In a retrial, his lawyer should be permitted to explore, within the bounds of the rules of evidence, the possibility Martinez induced M.S. to make false accusations against him for the ulterior purpose of avoiding deportation. Although the evidence supporting that theory may be quite thin, it is, nonetheless, admissible-a standard considerably more relaxed than that for finding harmless error.
The Unanimity Instruction
Next, Perez–Aguilera argues that the trial court erred by not giving a requested unanimity instruction, thereby denying him the assurance of a unanimous verdict.
Standard of Review
The applicable standards of review with regard to jury instruction issues were revisited and updated in State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012). ‘ “When a criminal defendant has requested a jury instruction that the trial court declines to give that failure is reviewed as a question of law.’ “ 295 Kan. at 160. “If an instruction is legally appropriate and factually supported, a district court errs in refusing to grant a party's request to give the instruction.” 295 Kan. at 162. “ ‘If a right guaranteed by the United States Constitution is not implicated, [the reviewing court] must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.’ “ 295 Kan. at 162. The court set forth the four-step progression of analysis to be utilized in reviewing such issues. 295 Kan. at 163; see State v. Smyser, 297 Kan 199, 203–04, 299 P.3d 309 (2013).
Perez–Aguilera requested that the district court give a “unanimity” instruction. PIK Crim. 4th 68.100, is the basic unanimity instruction: “The State claims distinct multiple acts which each could separately constitute the crime of [____]. In order for the defendant to be found guilty of [____] you must unanimously agree upon the same underlying act.”
Perez–Aguilera claims that the evidence in the record as a whole establishes numerous separate acts which could be used to support each of the two counts of aggravated indecent liberties with a child as set forth in Instruction No. 10 (Count Six) and Instruction No. 11 (Count Seven). He argues that the jury should have been instructed to reach unanimity as to which specific act supported each charge. After hearing arguments of counsel and generally stating his understanding of how the specific evidence related to the specific charges, the district court declined to give the requested instruction. By making his request for the instruction at the instruction conference which the district court conducted on the record, Perez–Aguilera has preserved the issue for appeal.
Whether the elements of a crime could have been established by one of many acts or whether the crime involved a single continuous act is a question of law over which this court has unlimited review. State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007). Under Kansas law, a defendant is entitled to a unanimous verdict. K.S.A. 22–3421; State v. Stevens, 285 Kan. 307, 313, 172 P.3d 570 (2007). This means that in a case where multiple, several, and distinct acts could constitute the charged crime, either the State must elect and instruct the jury on which act it is relying for the charge or the court must give a unanimity instruction to the jury. State v. Colston, 290 Kan. 952, 968, 235 P.3d 1234 (2010).
Multiple Acts
In this case, the victim, M.S., testified fairly specifically as to multiple separate incidents of alleged sexual abuse by Perez–Aguilera. Some of these incidents involved allegations supporting the charges of rape and aggravated criminal sodomy of which Perez–Aguilera was acquitted. But several of the allegations testified to by M.S. involved “touching” of her “privacies,” which she variously described as being both her crotch and her breasts. Although she was vague about dates, it is clear from the record that these incidents were widely separated in time and were not a unified course of conduct constituting a single event. Similarly, while again somewhat vague as to timing and exact details, M.S. testified to several incidents in which Perez–Aguilera allegedly had her touch or fondle his penis. Again, the time intervals would suggest separate incidents rather than a unified course of conduct.
Based on our review of the record, the requested instruction was legally appropriate and factually supported. In ruling on the requested instruction the district court seemed to acknowledge that the State was alleging acts which occurred on different days and were separate incidents, but still denied the requested unanimity instruction. The court erred in so ruling.
The error in denying the instruction could have been cured had the State, in its closing argument, designated a specific incident upon which it relied to support each charge and reminded the jury of its duty to reach unanimity as to that incident. Indeed, the State attempted to do so, but under the facts as argued, the attempted election fell short of providing the necessary protections to insure a unanimous verdict.
Regarding Count Six, Instruction No. 10, the prosecutor asked the jury “to consider the allegation [M.S.] made when she said he touched my privacy.” The prosecutor acknowledged that M.S. was calling both her crotch area and her breasts “her privacy” and that M.S. had told an interviewer, Terri Trent, that Perez–Aguilera had touched here “there” “at least once.” Indeed, M.S.'s testimony regarding touching of her “privacy” indicated substantially more than one such incident. This is hardly the specificity which would require the jury to unanimously agree on one specific incident. In Colston, the court noted that the State fails to properly elect the act it is relying upon even by arguing merely that only one act supports the charge since this is not the same as informing the jury that it cannot consider evidence of other acts supporting the same charge or that it must agree on the same underlying criminal act. 290 Kan. 952, Syl. ¶ 5.
The lack of specific election with regard to Count 7, Instruction No. 11, is even more egregious. The prosecutor referred to the allegation that Perez–Aguilera “submitted to lewd fondling or touching of himself.” The record, while somewhat vague, would support an inference that such fondling or touching occurred on more than one occasion, yet the prosecutor made no effort to narrow the charge down to any specific incident. It appears from the record that the actual reason for making any explanation at all was merely “to make sure [the jurors] understand the difference” between Counts 6 and 7. Unanimity as to a supporting incident for each count was never discussed.
Reversible Error
We proceed then to determine whether the error requires the reversal of Perez–Aguilera's conviction on the two counts of aggravated indecent liberties.
Voyles suggests that this court should apply the “clearly erroneous” provision of K.S.A.2013 Supp. 22–3414(3). 284 Kan. at 245–47; see State v. King, 297 Kan 955, 978–84, 305 P.3d 641 (2013); State v. Trujillo, 296 Kan 625, 631, 294 P.3d 281 (2013); Colston, 290 Kan. at 969. Such analysis would require reversal only if this court is convinced that the jury would have reached a different verdict had the instruction error not occurred.
While these cases deal with the failure of the court to give a unanimity instruction, they are all distinguishable from the instant case in one key aspect-all of the above cited cases deal with a situation where the defendant had not requested a unanimity instruction and where the trial court had not so instructed sua sponte. Here, we are dealing with the district court's denial of a unanimity instruction requested by the defense. Thus, we apply the standard set forth in Plummer, cited above, that we must be persuaded there is no reasonable probability the error will or did not affect the outcome of the trial. We are not so persuaded.
Here, the victim testified regarding many incidents, albeit vaguely as to when, where, and how many times they occurred over, the period of nearly 2 years. The jury here was obviously unable to reconcile the testimony regarding specific incidents alleging rape and aggravated criminal sodomy in order to arrive at unanimous guilty verdicts on those charges. We are not confident that, properly instructed, the jury could have reconciled M.S.'s testimony sufficiently as to agree upon a specific incident of “touching” or “lewd fondling.” There exists, therefore, a reasonable probability that a properly instructed jury could have reached a different verdict.
In order to protect Perez–Aguilera's right to a unanimous verdict, we are constrained to reverse the convictions for each count of aggravated indecent liberties with a child and remand those charges for new trial.
Sufficiency of Evidence
In his final argument, Perez–Aguilera contends that the evidence presented at trial was insufficient to support his convictions.
Standard of Review
In considering this issue we have a well-established standard of review:
“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.” State v. Quails, 297 Kan. 61, Syl. ¶ 1, 298 P.3d 311 (2013).
Perez–Aguilera argues that his conviction rested solely upon the allegations of a young child, without corroborating evidence, physical evidence, or confession. He points to “troublesome” conduct by Martinez after M.S. revealed the abuse and again raises the specter of Martinez's illegal residence as a motive to fabricate the allegations. Perez–Aguilera argues that his conduct and cooperation with law enforcement are not the actions of a guilty person.
In making these arguments, Perez–Aguilera is simply asking this court to invade the province of the jury by reweighing the evidence and judging the credibility of the witnesses. This is precisely what we cannot do; the jury heard all the evidence and found M.S.'s testimony regarding the crimes of conviction to be more credible than Perez–Aguilera.
Perez–Aguilera argues that the testimony of a young child victim is insufficient without corroborating evidence. Several factors militate against this conclusion. First of all, M.S. was 10 years old when the abuse began and was 12 years old when she testified at trial; this does not equate to being an impressionable “young child .” Second, the trial judge conducted an appropriate colloquy on the record and determined that M.S. understood her duty to testify truthfully. Third, our Supreme Court had held that the testimony of a complaining witness alone can be sufficient to sustain a sex crime conviction without further corroboration as long as the evidence is clear and convincing and is not so incredible and improbable as to defy belief. State v. Borthwick, 255 Kan. 899, 904, 880 P.2d 1261 (1994).
Here, M.S. testified at trial consistently with her testimony given in a forensic interview a year earlier. She had mentioned the “touching” to her contemporaries long before revealing the situation to her mother. She maintained consistently that Perez–Aguilera had told her not to tell her mother because her mother would not believe her. Although somewhat indefinite as to specific times and details, her testimony was not so incredible and improbable as to defy belief. Martinez corroborated that Perez–Aguilera could have had access to M.S. while staying at the trailer house during the period in question. The evidence was legally sufficient for a rational and properly instructed fact finder to have concluded beyond a reasonable doubt that Perez–Aguilera was guilty of the crimes of conviction.
Although, as explained above, we have reversed and remanded the convictions for aggravated indecent liberties due to the failure to adequately provide the jury with instruction regarding unanimity as to specific incidents; supporting their verdicts, the conviction for aggravated intimidation of a victim or witness is affirmed.
Affirmed in part, reversed in part, and remanded with directions.