Opinion
No. 107,486.
2013-05-10
STATE of Kansas, Appellee, v. Johnathan RIFFE, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Johnathan Riffe appeals his conviction and sentence for aggravated sexual battery. Riffe argues that evidence of the breakup between C.H.—the victim—and her boyfriend was relevant and should have been admissible; that C.H. should have been required to undergo an independent psychological evaluation; and that the State committed prosecutorial misconduct during closing argument. Riffe also asserts that his constitutional rights were violated when his prior convictions were not presented to a jury and proven beyond a reasonable doubt by the State. Finding no error, we affirm.
Factual and Procedural History
C.H. went to a Halloween party with some friends at a bar in Hutchinson. While at the bar, C.H. lost track of her friends, with whom she had planned on riding home. Around midnight, C.H. decided that she wanted to go home. She could not locate her friends in the bar and expressed the desire to return home to several people at the bar. Riffe was among those people, and he offered her a ride home, which she accepted. What happened next, as presented by the testimony of both C.H. and Riffe at Riffe's trial, varied substantially.
According to C.H., after leaving the bar, C.H. got into Riffe's truck and she gave him directions to her house. At no point did C.H. and Riffe discuss the desire or possibility of having sexual intercourse. Riffe turned onto a street that C.H. did not direct him to turn onto. C.H. informed him that he made a wrong turn, but Riffe stopped talking and grabbed C.H.'s hair. Riffe pulled into an empty and dark parking lot, and C.H. attempted to get out of his grasp. Riffe pulled C.H. out of the truck through the driver's side door and ripped off C.H.'s skirt, underwear, and shirt. All the while, C.H. was fighting him. Riffe moved her to the back of the truck and bent her over the tailgate, which was down. He slammed her head against the tailgate and attempted to pin her against the tailgate with her legs spread apart, but she refused to hold still. C.H. was able to get one of her legs free and she kicked Riffe in the groin, which gave her enough time to kick him again and run away. C.H. was able to run through a field, avoiding Riffe's headlights by dropping to the ground as he apparently attempted to find her. Wearing only her bra, she made it to a nearby hotel, and the desk clerk called the police.
The clerk at the hotel testified that C.H. came into the hotel lobby in the early morning hours crying and upset, wearing only a bra. She explained that she had been attacked, her clothes had been ripped off, she had run away, and she needed help. The clerk called the police and obtained a trash bag to cover C.H. When the police arrived, they took pictures of her feet to show they were dirty from running through the field. They also noted redness around her neck, on her side, and on her upper stomach. She also had bumps on her head. A doctor who examined her the next day testified that he identified four injuries to C.H., including bruising, abrasions, and two “goose eggs” caused by blunt force trauma.
According to Riffe, while he was at the bar ordering a drink, C.H. approached him and began conversing with him. She positioned herself really close to him. Riffe felt like they were hitting it off and C.H. told him that she wanted to leave the bar. As they were leaving the bar to go to a hotel, they began to kiss heavily. They walked arm and arm to Riffe's truck and left the parking lot. C.H. attempted to kiss Riffe while he was driving to the hotel, but he asked her to move back so he could concentrate on his driving. Riffe drove to the hotel and parked the truck. C.H. got out of the truck and they walked to the hotel room door, but the key did not work. They left the hotel and C.H. began telling Riffe where to go. As they were driving, C.H. began to take off her shoes, stockings, skirt, and underwear. She also began to touch and caress Riffe. Riffe needed to use the restroom so he pulled into a parking lot and parked the truck. After Riffe finished, he walked to the passenger door and opened it. C.H. nearly fell out of the truck and Riffe caught her before she hit the ground. Riffe decided that he no longer wanted anything to do with C.H. so he helped her to the tailgate of the truck and tried to put her clothes on her so that he could take her home. However, while attempting to clothe her, C.H. became enraged and stood up in the center of the truck bed. When Riffe attempted to coax her to sit down and let him help her, she jumped over the side of the truck bed. C.H. ran off, and Riffe tried to locate her but was unsuccessful. He returned to the bar, spoke to another woman at the bar, and ordered a few more drinks. After the bar closed, he drove to the back of the hotel connected to the bar and was stopped by a police officer.
When questioned by the police officer, Riffe admitted to having an encounter with C.H., explaining that he was taking her home and they stopped the car because they both had to urinate. He said they were mutually taking each other's clothes off and she changed her mind halfway through their encounter. He said she was inside the truck and when he went around to the passenger side in an attempt to help her get her clothes back on, she ran away. The officer noted that Riffe had scratches on his neck that were bleeding, scratches on his lower stomach, and a bruise mark on his side. A search of Riffe's truck located C.H.'s shoes and stockings on the passenger seat, a strand of blond hair, and the top portion of C.H.'s Halloween costume wadded up and shoved under the driver's seat. The zipper of the costume was damaged, and there was blood on the sleeve. Other items of clothing—C.H.'s panties, socks, and skirt—were found in the parking lot where Riffe and C.H. both claimed the incident took place.
After a jury trial, Riffe was found guilty of aggravated sexual battery but not guilty of aggravated kidnapping and attempted rape. He was sentenced to 47 months' imprisonment.
Riffe filed a timely notice of appeal.
Analysis
The district court did not err when it excluded evidence of C.H.'s breakup with her boyfriend.
Riffe contends that evidence of C.H.'s recent breakup with her boyfriend was admissible as relevant and probative. Riffe asserts that this evidence was relevant to show C.H.'s motive to deny that the acts between her and Riffe were consensual and to show that C.H.'s portrayal of the facts was inaccurate.
When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A.60–401(b).
There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The issue of whether evidence is probative is reviewed under an abuse of discretion standard, whereas the materiality of evidence is reviewed de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010).
Prior to trial, the State filed a motion in limine asking that the court prohibit defense counsel from asking any questions regarding the victim's prior sexual behavior or any questions regarding any actions taken prior to the date of the charged offense. At a hearing on the motion, defense counsel responded that he had no intention of going outside the events of the evening in question. The court granted the State's motion and warned counsel that no such questions were to be asked until a hearing could be held outside the presence of the jury to determine their relevance. During the cross-examination of Officer Chad Agnew, Riffe's attorney asked, “[C.H.] didn't mention to you that she'd recently broken up with her boyfriend and had a protection from abuse order out against him?” The prosecutor objected to the question as irrelevant and improper. The district court sustained the objection and admonished the jury.
Riffe's attorney then asked, “In a sexual assault case it would be relevant to you to learn who the person may have had past relationships with?” The prosecutor objected again, and the district court sustained the objection, warning Riffe's attorney not go into C.H.'s past life. The district court stated that it was undisputed who the involved individuals were during the incident.
Later, during a recess, Riffe's attorney again asked to go into C .H.'s dissolved relationship with her previous boyfriend. Riffe's attorney asserted that the information on C.H.'s past relationship was relevant to show her motive to deny having a consensual encounter with Riffe, and argued her past relationship may have caused her to have a change of heart during the consensual encounter. The district court denied the request.
Riffe's attorney again renewed his request to delve into C.H.'s past relationship after a video was played of her interview with police where she discusses that she had recently broken up with her boyfriend. Riffe's attorney argued that this video opened the door for him to explore C.H.'s past relationship. The district court again denied his request.
Riffe argues that the evidence of C.H.'s previous breakup with her boyfriend was relevant to show that C.H.'s version of events on the night of the incident was inaccurate or distorted. He asserts that the previous breakup gave C.H. a reason to distort the facts. However, we are unable to discern any logical connection between C.H.'s previous relationship and breakup and her version of the events on the night of the incident. There is no indication that this evidence is probative or material so as to deem it relevant, and the district court did not abuse its discretion in so finding.
The district court did not err when it denied Riffe's motion for C.H.'s independent psychological evaluation.
Riffe argues that the district court should have required C.H. to undergo an independent psychological evaluation because he believed that any psychological issues C.H. possibly had may have impacted her perception of the events that occurred. We review for an abuse of discretion a district court's decision on a motion requesting that the victim undergo an independent psychological evaluation. State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
In Berriozabal, 291 Kan. at 581, our Supreme Court listed six nonexclusive factors a court must consider when evaluating the totality of the circumstances to determine whether an order should be issued for the independent psychological evaluation of a victim. Those factors are as follows:
“(1) whether there was corroborating evidence of the complaining witness' version of the facts,
“(2) whether the complaining witness demonstrates mental instability,
“(3) whether the complaining witness demonstrates a lack of veracity,
“(4) whether similar charges by the complaining witness against others are proven to be false,
“(5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and
“(6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.” 291 Kan. at 581.
Riffe's reasons for requesting that C.H. undergo an independent psychological evaluation are as follows: (1) C.H. made contradictory and inconsistent statements at the preliminary hearing; (2) C.H. was the victim of a prior assault or trauma that would have affected her perception of the events; (3) C.H. minimized her consumption of alcohol on the night of the incident; and (4) the severe stress that she underwent at the time of the sexual battery could impact her recall of the events. In addition, Riffe suggested that the psychological evaluation would help in his defense by determining whether C.H. suffered from any psychological distress which would affect her memory of the events and her testimony at trial.
After reviewing the Berriozabal factors, the district court denied Riffe's motion, finding that he failed to present any compelling reasons for C.H. to undergo the independent psychological evaluation and that the motion appeared to be more akin to a fishing expedition. We agree. There was corroborating evidence of C.H.'s version of the events. Riffe presented no evidence that C.H. was mentally unstable. The fact that C.H. made some inconsistent statements does not clearly demonstrate a lack of veracity. Riffe presented no evidence that C.H. had presented similar charges in the past that had proven to be false. C.H. did not provide any unusual responses regarding her responsibility to tell the truth. Because Riffe presented no evidence to support his motion, the district court was correct to describe it as a fishing expedition, and the district court did not abuse its discretion when it denied Riffe's request.
Comments made by the prosecutor during closing argument did not veer outside the wide latitude that a prosecutor is allowed in discussing evidence.
Riffe asserts that several comments made by the prosecutor during closing argument went outside the wide latitude afforded prosecutors, which denied Riffe his right to a fair trial and constituted reversible error. Riffe claims that the prosecutor's comments attacked his character and credibility and were also intended to inflame the passions and prejudices of the jurors.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the 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, the appellate court must 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).
In the second step of the two-step analysis, the appellate court considers 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.” 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 reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).
During the State's rebuttal closing argument, the prosecutor stated, “Well, to hear the defense tell it, this was all [C.H.'s] fault. This was all [C.H.'s] fault. She was the sexual aggressor.” Riffe's trial attorney objected, arguing that the State was mischaracterizing the defense's argument. The district court admonished the jury, informing it that counsels' arguments are not evidence. However, the prosecutor continued to reiterate the argument and said that defense counsel emphasized “[t]he way she was dressed she must have wanted sex.” Riffe's trial counsel again objected.
We find that these comments were not outside the wide latitude afforded prosecutors. In his closing argument, Riffe's attorney argued that C.H. was “dressed to get attention, and dressed to attract attention of men,” she was “dressed to impress,” and that by taking off her shoes and stockings in the car she had committed “an alluring act” that showed her intent and that there must have been some ulterior motive for her to take a ride from someone she had just met. The prosecutor's statements that the defense was implying the incident was all C.H.'s fault and that she was the sexual aggressor did not mischaracterize the evidence; it was fair comment on Riffe's defense theory. In addition, Riffe fails to address how and why this comment went outside the wide latitude afforded to prosecutors. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
Moreover, the district court admonished the jury and informed the jury that counsels' arguments were not evidence, which would have cured any error if an error had occurred. The court will not find reversible error where the district court sustained the defendant's objection to the prosecutor's error unless it was so prejudicial as to be incurable. Generally, any prejudice from the prosecutor's error is cured if the trial court admonishes the jury to disregard it. The defendant has the burden to show the prosecutor's error was so prejudicial as to be incurable. State v. Angelo, 287 Kan. 262, 285, 197 P.3d 337 (2008). Riffe makes no such argument here.
Riffe also takes issue with the following comments made during the State's rebuttal closing argument: “Now, [C.H.] said the reason she got in the truck with him [was] she thought he was a nice guy. I guess that turned out to be a mistake ‘cause he didn't turn out to be a nice guy.” Riffe's trial attorney objected and asserted that the State was arguing about Riffe's character.
We also find that these comments were not outside the wide latitude afforded prosecutors. It was not a comment regarding Riffe's character, but was instead a comment on the evidence and a rational inference from it. During C.H.'s cross-examination, she stated, “I just thought [Riffe] was a nice guy.”
In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000). Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence. 268 Kan. at 507.
In this case, the prosecutor's comment appears to be a reasonable inference based on C.H.'s comment that she thought Riffe was a nice guy and her testimony as to what happened to her on the night of the incident. Therefore, this comment does not go outside the wide latitude afforded to prosecutors.
Finally, Riffe asserts that the State committed prosecutorial misconduct when the prosecutor told the jury to look at Riffe's credibility and stated:
“There's no indication, any reason why [C.H.] would make this story up. No indication of a motive why she would do that.
“But of course there is a lot of reason for the defendant to tell you his side. He's the one that's facing charges.”
Riffe's trial attorney objected, arguing that the State was commenting on Riffe's credibility.
At first blush, this does appear to be an improper comment on Riffe's credibility. In general, prosecutors are not allowed to “offer juries their personal opinions on the credibility of witnesses. [Citation omitted.] We prohibit the prosecutor from expressing personal opinions on the credibility of a witness because such comments are ‘unsworn, unchecked testimony, not commentary on the evidence of the case.’ [Citation omitted.]” State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). But our Supreme Court went on to explain in Duong that
“we permit lawyers to make statements during closing arguments that draw reasonable inferences from the evidence. [Citation omitted.] Specifically, prosecutors may explain ‘ “to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.” ‘ [Citations omitted.] We recognize that it is proper for a prosecutor to assert ‘reasonable inferences based on the evidence and that, when a case turns on which of two conflicting stories is true, certain testimony is not believable.’ [Citation omitted.] Nevertheless, the jury must be left to draw the ultimate conclusion regarding the credibility of a witness. [Citation omitted .]” Duong, 292 Kan. at 830.
In this case, in his closing statement, Riffe's attorney propounded the following motive for C.H. to lie:
“[W]hy would she make up this story? And this is something that's been nagging at me that I knew you guys would want to know. Well, why would she, why would she say this if it didn't happen?
“But I ask you to watch the video of her interview with Detective Moore. In that video she gives you a reason why she would suddenly have regrets for what she was about to do. She phrases it by saying, you know, I would normally stay out later but on this night, and she gives a reason why she didn't stay out. I would suggest to you that the reason she gives for not staying out is also the reason that she had regrets about doing what she was going to do.
“And this is the State's evidence. This is what they introduced into evidence. Listen to the video and ask yourself, does that explain why she may have suddenly had a change of heart and freaked out and become regretful about what she was about to do and to try and get away from the situation.”
It appears that the prosecutor was responding to defense counsel's suggestion that there was a motive for C.H. to lie by stating that the evidence did not support such a conclusion. He was simply making a reasonable inference of credibility using the difference between Riffe's and C.H.'s two conflicting stories. Therefore, we find that the prosecutor's comments did not stray outside of the wide latitude afforded to prosecutors during closing argument.
Because none of the comments Riffe complains of went outside the wide latitude afforded to a prosecutor during closing argument, we find there was no prosecutorial misconduct.
The district court did not violate Riffe's constitutional rights at sentencing.
Riffe asserts that the district court erred when it sentenced him based on a criminal history score that relied on prior convictions that were neither included in the complaint nor proven to a jury beyond a reasonable doubt. Riffe relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), but acknowledges our Supreme Court's holding in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and raises this issue to preserve it for federal review.
Absent some indication that our Supreme Court is departing from its position in Ivory, this court is duty bound to follow that ruling. See 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 apply its decision in Ivory without divergence. See, e.g., McCaslin, 291 Kan. at 731–32 (affirming Ivory, 273 Kan. at 46–48). Similarly, the United States Supreme Court reaffirmed that prior convictions need not be proven to a jury beyond a reasonable doubt. See James v. United States, 550 U.S. 192, 214 n. 8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Thus, we reject Riffe's claim that his rights were violated under Apprendi.
Affirmed.