Opinion
No. 106,869.
2013-06-7
STATE of Kansas, Appellee, v. Anthony L. TAYLOR, Appellant.
Appeal from Sedgwick District Court; Eric R. Yost, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric R. Yost, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury found Anthony Taylor guilty of two counts of aggravated indecent liberties with a child. In this direct appeal, he raises several allegations of trial error and contends the trial court abused its discretion in denying his motion for a downward durational and/or dispositional departure. We conclude that none of his allegations of trial error provides a basis for reversal. We further conclude that substantial competent evidence supported the court's factual reasons for denying the motion for a departure sentence and the court did not abuse its discretion in its denial. We affirm.
The victim in this case, a 13–year–old girl we will refer to as M .O., alleged that Taylor, age 43, had inappropriate sexual contact with her. Following an investigation of the allegations, the State charged Taylor with one count of rape in violation of K.S.A. 21–3502(a)(2) and two counts of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A). The State charged the offenses as off-grid felonies under Jessica's Law, K.S.A. 21–4643, in light of M.O.'s and Taylor's ages. After a 5–day trial, a jury acquitted Taylor of rape but found him guilty on both counts of aggravated indecent liberties.
In this appeal, Taylor does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to the State, the trial evidence relevant to the parties' arguments on appeal revealed that the following events took place.
M.O. and Taylor became acquainted in September 2009 when M.O. began attending psychosocial, skill-building group activities at a Wichita agency called the Urban League of Kansas (Urban League). At that time, she was residing at a youth residential center. Taylor drove a 15–passenger van for the Urban League, which required him to transport youths, including M.O., to and from Urban League activities and their residences. Taylor also owned a business in Wichita that bought, repaired, and sold used vehicles.
On or about September 12, 2009, M.O. told people at the youth residential center that Taylor had been sexually assaulting her. The residential director—also M.O.'s guardian—took her to a hospital for a sexual assault examination and reported her allegations to the authorities.
M.O.'s allegations against Taylor covered a span of 4 days during the second week of September 2009. During her trial testimony, a shy and tearful M.O. described how Taylor had taken her inside his body shop, put her inside a purple SUV, lifted her shirt and bra, and licked her breast. She also described how they kissed and how he touched her breasts and vagina with his hands and penis. M.O. further testified they had sex twice. Her testimony about whether Taylor had put his penis inside her vagina varied.
M.O. admitted throughout her testimony that there were some things she could not remember. The record of her cross-examination contains several inconsistencies in her various statements of exactly what happened. Despite the inconsistencies, M.O. always maintained during her testimony that she did not make up her allegations against Taylor, and the State offered corroborating evidence of her allegations. For example, M.O.'s trial testimony was fairly consistent with that of Sergeant Clay Germany, who was the lead detective in the case. He testified about what he learned during his interview of M.O. after her allegations were reported to police. M.O.'s testimony was also largely consistent with the testimony of the nurse who conducted the sexual assault examination concerning what M.O. had reported to her a day or two after the crimes. The jury also heard testimony from a DNA analyst about a saliva stain found on the inside of M.O.'s bra cup that was consistent with a mixture of both M.O.'s and Taylor's DNA.
Taylor, on the other hand, consistently and vehemently denied M.O .'s allegations to the police and during his trial testimony in his own defense.
Following the guilty verdict, the trial court denied Taylor's motion for a downward sentencing departure and imposed a hard 25 year life sentence (Hard 25) under Jessica's Law. See K.S.A. 21–3504(a)(3); K.S.A. 21–4643(a)(1). Taylor's criminal history placed him in category E. Our opinion will mention additional facts that are relevant to specific issues on appeal.
Judicial Misconduct
In his first issue, Taylor challenges the denial of his motion for a mistrial during the cross-examination of Sgt. Germany. The issue arose after the trial judge interjected himself into the questioning by clarifying that an error Sgt. Germany made in his affidavit about M.O.'s statement was inadvertent.
Taylor argues that appellate courts apply the abuse of discretion standard in reviewing the denial of a motion for mistrial. The crux of his complaint, however, involves judicial misconduct, an issue over which we conduct unlimited review. See State v. Gaither, 283 Kan. 671, 681, 156 P.3d 602 (2007). Likewise, we have unlimited review when, as here, a defendant claims his or her due process rights have been violated as a result of judicial bias or misconduct. See State v. Robinson, 293 Kan. 1002, 1032, 270 P.3d 1183 (2012).
Taylor's complaint stems from a discrepancy between an affidavit that Sgt. Germany prepared summarizing the information he obtained from M.O. and the actual transcript of his interview of M.O. The affidavit stated that M.O. told Sgt. Germany that Taylor had laid down on top of her in the passenger seat of the SUV, while the transcript of the interview contained no such statement by M.O. The discrepancy became a significant focus of Sgt. Germany's cross-examination by Taylor's counsel. On redirect examination by the State, Sgt. Germany conceded the transcript would constitute the most accurate representation of M.O.'s statements. Then on recross, the following exchange between defense counsel and Germany occurred:
“Q. [Defense Counsel:] This case will be a defining moment in the life of Mr. Taylor, would you agree with that?
“[State]: Objection, relevance and outside the scope of ... redirect.
“[Defense counsel]: I'll tie it together, Judge.
“THE COURT: Please do.
“Q. [Defense Counsel:] Would you agree with that?
“A. Yes, sir.
“Q. Thank you. So something that important, that can [a]ffect a man's life, would you agree requires a certain amount of attention and detailed attendance to duty, would you agree with that?
“A. Yes.
“Q. Are you telling us in your testimony, Sergeant Germany, that your sworn affidavit is mistaken and inaccurate and you put words in that affidavit that you never heard from the complaining witness, [M.O.], is that what you're telling us sir? “A. Yes, sir.
“Q. And you did that under oath, didn't you?
“A. My—yes sir.
“[Defense counsel]: Thank you.
“THE COURT: Well, I want to clarify, he did it inadvertently.
“[Sgt. Germany:] Yes, that was—“ (Emphasis added.)
Further redirect and recross-examination confirmed that Sgt. Germany's error in the affidavit was inadvertent.
As soon as Sgt. Germany left the witness stand, the trial judge advised the jury of the impropriety of his question:
“I'm going to tell the members of the jury that since this day, and a week of admitted mistakes, I'm going to tell you I just made a mistake by asking a question of the witness, whether or not it was inadvertent. I did that because I wanted to clarify, and I assume maybe you all wanted to clarify whether he did it on purpose, but I shouldn't have done that.
“So please disregard the fact that I asked that question. Apparently [the State] was going to ask it anyway. And in no way do I wish to signal to you as to what I think of the credibility of this or any other witness.”
The trial court then dismissed the jury for the evening, and Taylor moved for a mistrial. In support, Taylor argued the trial court had improperly assumed the role of an advocate for the State by interjecting itself to emphasize the inadvertence of Sgt. Germany's mistake.
The trial court denied Taylor's motion for mistrial explaining that it felt compelled “at that split second” to comment on and clarify what the court believed to be the parties' collective position that the discrepancy between Sgt. Germany's affidavit and the interview was inadvertent because the court did not feel Taylor had adequately relayed that position to the jury. The judge also commented that he “shouldn't have [made the comment]”; apologized if anyone felt the court had overstepped its boundaries; and stated, “I hope I didn't create any damage with the jury.”
Taylor argues on appeal that the trial court should have ordered a mistrial because the apology and admonishment to the jury could not undo the prejudice caused by the appearance of bias in favor of the State.
In our review of an allegation of judicial misconduct, we first determine whether the complaining party has met his or her burden to establish that misconduct occurred and, second, that it prejudiced the party's substantial rights. State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010).
When, as here, “a trial judge deems it necessary to cross-examine [or question] a witness, the judge must exercise great care to prevent giving the jury the impression that he or she is biased against a party and the judge must not forget the function of a judge and assume that of an advocate.” State v. Plunkett, 257 Kan. 135, 140, 891 P.2d 370 (1995) (citing State v. Boyd, 222 Kan. 155, Syl. ¶ 1, 563 P.2d 446 [1977] ); see also Supreme Court Rule 601B, Kansas Code of Judicial Conduct, Canon 2, Rule 2.3 (2012 Kan. Ct. R. Annot. 724) (discussing judge's duty to perform duties of judicial office without bias or prejudice). As our Supreme Court cautioned in Kemble, the ‘ “ “better practice’ “ “ for a trial judge who ‘ “ “believes that additional information should be obtained from a witness in order to clarify the evidence and enable the jury to arrive at the true facts' “ “ is ‘ “ “to discuss the matter with counsel outside the presence of the jury and request counsel to pose the questions to the witness.’ “ [Citations omitted.]” 291 Kan. at 115. It is the trial court's failure to follow that better practice in Taylor's case that brings us here.
The State disputes Taylor's contention that the trial court's comment expressed bias towards the State's case and amounted to judicial misconduct. It suggests the court was merely using “whatever reasonable means [were] necessary to see that the full truth is developed by the evidence.” The State cites two cases in support that held the trial court did not err when it assisted the prosecutor in phrasing questions in order to expedite the admission of relevant evidence. See State v. Norwood, 217 Kan. 150, 535 P .2d 996 (1975), and State v. Mayes, 33 Kan.App.2d 9, 98 P.3d 294 (2004).
We conclude those cases are distinguishable from the present case. Here, the trial judge was not merely helping the prosecutor form a proper question to overcome continuing technical objections by the defendant. Rather, he interjected himself in the examination of a State's witness (Sgt.Germany) in a manner that could reasonably be perceived as rehabilitating the witness during defense counsel's attack on the witness' credibility. In doing so, the court effectively “crossed the line” of demarcation that our Supreme Court has recognized “separate[s] the duties of each of the players in a criminal trial [and] are sacrosanct, i.e., the prosecutor representing the people; the defense counsel representing the accused; the trial judge representing the interpreter of the law; and the jury representing the finder of facts.” Kemble, 291 Kan. at 120.
Turning to whether he has suffered prejudice to his substantial rights, Taylor argues that he need not show actual prejudice. He maintains the trial court's interjection was “presumptively prejudicial” and, despite the court's comments to the jury afterward, it could not “wiring the bell” of the advocacy it exhibited on behalf of the State.
We acknowledge that our Supreme Court has held that under some exceptional circumstances prejudice is presumed from judicial bias. See State v. Schaeffer, 295 Kan. 872, 875, 286 P.3d 889 (2012), where the court cited the statement from Robinson, 293 Kan. at 1032, that “bias or prejudice may be presumed when, based on objective standards, the probability of actual bias is too high to be constitutionally tolerable.” Schaeffer then discussed a limited number of instances where prejudice may be presumed, such as where an adjudicator has been the target of abuse or criticism of a party before him or her and has a pecuniary interest in the case's outcome as in Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975); a person with a stake in the case had a “ ‘significant and disproportionate influence” ‘ in fundraising and campaigning for the judge's election while litigation was pending or imminent as in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–84, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009); and an attorney involved in an adjudication had multiple roles that “created [an] objective probability of actual bias too high to be tolerable,” as in Davenport Pastures v. Board of Morris County Comm'rs, 291 Kan. 132, 144–46, 238 P.3d 731 (2010). See Schaeffer, 295 Kan. at 875–76.
We disagree with Taylor. This is not an exceptional case such as those mentioned in Schaeffer that warrant a finding of presumptive prejudice. We must then examine whether actual prejudice existed.
Since Taylor alleges a violation of his rights under the Due Process Clause of the United States Constitution stemming from judicial misconduct, we apply the harmless-error standard established in State v. Ward, 292 Kan. 541, 550–69, 256 P.3d 801 (2011), cert. denied 532 S.Ct. 1594 (2012). That is, the State bears the burden of proving “beyond a reasonable doubt” that the judicial misconduct here “did not affect the outcome of the trial in light of the entire record.” 292 Kan. at 569. In other words, the State must prove “there is no reasonable possibility that the error affected the verdict.” 292 Kan. at 569.
The State argues it has met its burden and that the trial court's comment did not prejudice Taylor because it was an isolated incident. The remainder of the trial record reveals the court acted fairly and impartially. We agree.
A review of several Kansas Supreme Court cases that reversed convictions due to judicial misconduct or bias which permeated or polluted the entire proceedings reveals several more egregious incidents of judicial bias than are present here. First, in Plunkett, 257 Kan. at 138–43, the court reversed convictions for rape and aggravated criminal sodomy because of several improper comments by the district judge during voir dire, his interruption of defense counsel's opening statement, his questioning of a witness in manner that identified and emphasized the State's theory of guilt, his interjection and unwarranted comment during the cross-examination of the complaining witnesses that indicated defense counsel was objecting for personal rather than legal reasons, and his statement to jury as it left to deliberate that the court would have to carry out its final obligation in the case, implying that the jury would find defendant guilty. Second, in State v. Hamilton, 240 Kan. 537, 547, 731 P.2d 863 (1987), our Supreme Court reversed and remanded for a new trial finding that under the totality of the circumstances the trial judge's “injection of himself and his personal beliefs and observations into the trial proceedings ... seriously prejudiced” the defendant and denied the defendant his constitutional right to a fair trial. See also State v. Hayden, 281 Kan. 112, 116–26, 130 P.3d 24 (2006) (holding trial judge's frequent interruptions of witness examinations, rude and impatient treatment of parties and witnesses, failure to remain attentive to proceedings, and exhibition of open hostility toward counsel for both parties deprived defendant of fair trial because it “thoroughly polluted the trial, affecting the performance of all concerned”).
We also note that the alleged misconduct occurred during the portion of Sgt. Germany's testimony pertaining to details about the rape allegations. The acquittal on the rape combined with the jury's extensive deliberations, requests for the readback of testimony, and questions to the court during deliberations, all indicate the jury appeared to base its verdict on the evidence and the court's instructions rather than any other statements or conduct of the trial judge.
A review of the entire record reveals that the judicial misconduct here did not affect the outcome of the trial, and the district court did not err in denying Taylor's motion for mistrial based on judicial misconduct.
The Encounter between the Bailiff and a Spectator
Taylor next argues the trial court erred in not granting his motion for a mistrial due to an encounter between the bailiff and a court spectator that several jurors witnessed during a recess.
At the beginning of the third day of trial, outside the presence of the jury, Taylor moved for a mistrial based on circumstances that defense counsel learned had occurred the day before during a trial break. Taylor's counsel argued that Lasheeka Edwards, a friend of Taylor's, was on an elevator when she encountered the bailiff, Becky Gragg, who was escorting four jurors down to the first floor. Defense counsel argued that when Gragg told Edwards she would have to leave the elevator, Edwards replied in a very loud, strident, and hostile voice that she had a right to stay on the elevator since she was there first and Gregg and her four jurors should get another elevator.
Defense counsel concluded by arguing that Taylor was, per se, entitled to a mistrial based on prejudice stemming from this “unpleasant” and “hostile confrontation” because it denied him his right to a fair trial and could not be cured by interviewing jurors or with a “simple instruction.”
The prosecutor responded that he had witnessed some of the incident. He had overheard Edwards “yelling at Ms. Gragg” and suggesting she was “free to do as she pleased,” after “Ms. Gragg, speaking quietly, told Ms. Edwards that she was not to be leaving the courtroom until the jurors had left the floor, [and] she had violated the court's order.” The prosecutor also mentioned that he had witnessed members of Taylor's family disregarding the court's admonitions to maintain a certain distance from jurors and potential jurors.
Outside the presence of the jury, the trial court denied the motion for mistrial. It noted that while the encounter was “a very unfortunate incident,” it did not believe it would so prejudice the jury that it would not render a fair and impartial verdict. The court then reminded everyone in the courtroom that “they need to wait until after the jury has left the room and has left the floor before leaving the courtroom”. The jury then returned to the courtroom and the trial resumed.
K.S.A. 22–3423 governs mistrials. Taylor apparently relies on that portion of the statute providing that the court “may terminate the trial and order a mistrial at any time that he finds termination is necessary because ... [p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22–3423(l)(c).
In Ward, our Supreme Court set forth a two-step analysis that a trial court must use in considering whether a mistrial is warranted under K.S.A. 22–3423(1)(c). 292 Kan. at 550. In our review of a denial of a mistrial, we must then answer two questions:
“(1) Did the trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?” 292 Kan. at 551.
See also State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012) (recognizing that “[t]rial courts are granted broad discretion to determine whether the jury was or could have been influenced by a disturbance”). 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. Ward, 292 Kan. at 550.
The trial court appears to have focused its decision on the prejudice prong of its required analysis. The State then focuses its arguments on that same prong. It recognizes that because this issue implicates Taylor's due process right to a fair trial, it bears the burden of proof on this second prong. That is, the State must prove beyond a reasonable doubt that the error complained of did not affect substantial rights, meaning it did not contribute to the verdict obtained. See Ward, 292 Kan. at 569.
Taylor contends he suffered prejudice because of the bad light he and his family were placed under after the confrontation between a family friend and the bailiff. In the alternative, he argues the case should be remanded for further proceedings in order for the trial court to determine the extent of any prejudice.
The case of State v. Coburn, 220 Kan. 743, 556 P.2d 376 (1976) is instructive to our review of the present case. There, a juror promptly notified the trial judge that during a noon recess, he had received an anonymous phone call imploring him to ‘ “make sure that he did the right thing.’ “ 220 Kan. at 746. The juror said “he didn't get any impression whether the caller was referring to a vote of guilty or one of not guilty.” 220 Kan. at 746. However, the juror also said that in discussing the call with the other jurors, “one other juror stated she had received a phone call regarding the case—‘supposedly from a friend.’ “ 220 Kan. at 746. The defendant argued the trial court should have granted a mistrial, not because of juror misconduct, but because “the calls produced sufficient distraction to the jurors that the verdict should be set aside and a new trial had.” 220 Kan. at 746. The Supreme Court concluded the district court did not abuse its discretion in not granting a new trial. 220 Kan. at 476–47.
While the facts are distinguishable, Coburn states principles that are applicable here in our review of whether sufficient prejudice exists that entitles Taylor to a new trial or remand. Coburn pointed out:
“Not every jury is to be disqualified because of some improper communication or contact made to a juror prior to or during trial ... [citation omitted.]. To warrant reversal of a judgment because of improper contact or communication between a juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury [citation omitted]. The substance of the communication may be important. If the comment relates to the merits of the case, it will be more likely to be found prejudicial. However, if it relates to the case merely in a general or incidental manner it will more likely be found harmless (citation omitted).” (Emphasis added) 220 Kan. at 746–47[citing Annot., 64 A.L.R.2d 162, 165–66, 175–77, 185–86).
Obviously, the confrontation here between the bailiff and a family friend of Taylor had no relationship to the merits of the case. Also, the juror encounter was far less alarming than were the direct phone calls to jurors in Coburn as Taylor's family friend directed her comments to the bailiff and not a juror or group of jurors. The elevator incident provides no basis for reversing Taylor's convictions.
In the alternative, Taylor requests that we remand for further hearings on the prejudice issue for the trial court to investigate by at least questioning Edwards, the bailiff, and possibly the jurors who were on the elevator.
Taylor cites Remmer v. United States, 347 U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed.2d 654 (1954), as authority for his remand request. He appears to suggest the Supreme Court held as a matter of law that a defendant is entitled to a hearing to determine the effects and impact of prejudicial occurrences on a jury. We disagree with this view of the case. Remmer held such a hearing was necessary on the particular facts in that case, i.e., without the defendant's knowledge, the trial court and prosecutor had been made aware of and had the FBI investigate an allegation of possible jury tampering. 347 U.S. at 228–30. Obviously, jury tampering is not at issue here. Moreover, Remmer certainly does not support Taylor's apparent suggestion that the trial court was required to sua sponte conduct a hearing to further explore the effect of the elevator encounter on the jury. In fact, in moving for a mistrial below, defense counsel specifically told the trial court that he was not seeking any sort of instruction or interview of the four jurors involved. Taylor cannot now complain that it was an abuse of discretion for the trial court not to do so.
In sum, we conclude the State has met its burden to prove beyond a reasonable doubt that trial court did not abuse its discretion in concluding the elevator incident did not affect the verdicts in this case. Other than suggesting the court should have interviewed those involved in the elevator incident, Taylor does not allege that the court's finding of no prejudice was based on an error of law or fact. We simply cannot say that the court's denial of Taylor's motion for mistrial was arbitrary, fanciful, or unreasonable.
A Limiting Instruction Regarding Prior Bad Acts
Taylor next argues the trial court erred in not giving a limiting instruction after the State offered evidence that M.O. told the sexual-assault exam nurse that, on one of the four dates encompassing the charges, Taylor “made her hold” his penis. According to Taylor, a limiting instruction was necessary because evidence of this act “constituted prior crimes evidence ... controlled by K.S.A. 60–455.” Taylor did not object to the evidence at trial, nor does he raise an issue of the admissibility of the evidence in this appeal.
Our Supreme Court has recently allowed such an issue to be raised as instructional error even when the defendant fails to object to the evidence at trial. See State v. Holman, 295 Kan. 116, 125–28, 284 P.3d 251 (2012). Taylor admits that because he did not request the limiting instruction at trial, we apply a clearly erroneous standard of review. See 295 Kan. at 128 (citing, in part, K.S.A. 22–3414[3] ).
Since Holman, our Supreme Court has clarified the standard of review of allegations of clearly erroneous instructional error under K.S.A. 22–3414(3) by breaking it down into two steps. See State v.. Williams, 295 Kan. 506, 510–16, 286 P.3d 195 (2012). The appellate court first conducts unlimited review in light of the entire record to determine “whether the subject instruction was legally and factually appropriate.” 295 Kan. 506, Syl. ¶ 4. If it was, the court then “assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. “The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” 295 Kan. 506, Syl. ¶ 5.
Turning to the facts here, in order to determine whether Taylor is entitled to the limiting instruction required for K.S.A. 60–455 evidence, we must determine whether that statute controls the admissibility of the statement to the sexual-assault exam nurse by M .O. that Taylor “made her hold” his penis. At the time of Taylor's offenses, K.S.A.2009 Supp. 60–455 provided, in pertinent part:
“(a) Subject to K.S.A. 60–445, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.” (Emphasis added.)
Obviously, for the statute to apply and require the limiting instruction, the prior acts must have occurred on another occasion and not be part and parcel to the criminal actions that are charged. In State v. Adams, 294 Kan. 171, 184, 273 P.3d 712 (2010), the court interpreted the emphasized language above to apply only “to evidence ‘the person committed another crime or civil wrong on another specified occasion.’ “ 294 Kan. at 184. The court concluded that “by its plain language, K.S.A. 60–455 does not apply to a circumstance involving the same occurrence.” 294 Kan. at 184.
Taylor argues the complaint and the instructions to the jury as to the elements of the crimes charged mentioned only that Taylor had touched M.O. and not that M.O. had touched Taylor. As such, he argues that any incident in which M.O. touched Taylor was a prior and separate wrong under K.S.A.2009 Supp. 60–455 that required a limiting instruction if admitted.
The evidence the State presented here reflects that Taylor engaged in several inappropriate sexual contacts with M.O. from September 8, 2009, through September 11, 2009. Those included kissing her, groping various parts of her body, sexual intercourse, and having her hold his penis in her hand. The State chose to charge two counts of aggravated indecent liberties as occurring between the two dates above without specifying exactly the details of the touching. Our review of the record reveals that the evidence that Taylor argues requires the limiting instruction occurred during the time frame mentioned in the charges and was a part of the course of conduct charged. As such, Taylor's placing of his penis in M.O.'s hand did not occur on “another specified occasion” and K.S.A.2009 Supp. 60–455 does not apply. Therefore, a limiting instruction was not legally and factually appropriate, and we need not reach the issue of whether the jury verdict would have been different had the limiting instruction been given to the jury.
Prosecutorial Misconduct
Taylor next argues the prosecutor committed prejudicial prosecutorial misconduct during his closing argument when he made a legally erroneous statement. Even though Taylor did not object to the statement, we will address the issue since our standard of review is the same with or without an objection. That two-step review standard is well known. First, we determine whether the comments were outside the wide latitude a prosecutor is allowed when discussing the evidence. If not, there was no misconduct. If it was, we must then decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied him a fair trial. State v. Wilson, 295 Kan. 605, 622, 289 P.3d 1082 (2012).
Our Supreme Court has stated that a misstatement of controlling law by a prosecutor falls outside the considerable latitude given to prosecutors. See State v. Bell, 280 Kan. 358, 371, 121 P.3d 972 (2005); see also State v. Brinklow, 288 Kan. 39, 48–50, 200 P.3d 1225 (2009) (misrepresentation of burden of proof in closing argument); State v. Gunby, 282 Kan. 38, 63–65, 144 P.3d 48 (2006) (misstatements about what constitutes premeditation).
The prosecutor's statements at issue occurred while he was explaining the jury unanimity instruction. That instruction directed: “The State claims distinct multiple acts which each could separately constitute the crime of Aggravated Liberties. In order for the defendant to be found guilty of Aggravated Indecent Liberties, you must unanimously agree on the act.” To reiterate, each instruction on the two aggravated indecent liberties with a child charges directed that the jury had to find among other things “[t]hat the defendant fondled or touched the person of [ M.O.] in a lewd manner ..., (Emphasis added.) Neither instruction mentioned that M.O. had fondled or touched Taylor. After arguing that the DNA evidence established that Taylor had licked M.O.'s breasts, the State made the following argument about which Taylor now complains:
“You've heard other examples, ladies and gentlemen, of things of which each could separately constitute the act of the aggravated indecent liberties. Instruction number seven talks about that, you must all be unanimous in which act you're talking about. And the point of that is you can't half of you go back there and say you know what, I believe he licked her breast and half of you say well, I believe his penis was in her hand. If you do that, that's not unanimity. You all have to be unanimous, you have to all agree he put his mouth on her breast. If you all agree, then you can find him guilty of one count of aggravated indecent liberties.
“If you all 12 believe that he also had his penis in her hand or that there was kissing on the mouth or other lewd touching that you heard, that she testified to, that Sergeant Germany testified to, so long as you're all unanimous about what act occurred, you can find him guilty on each count of aggravated indecent liberties.” (Emphasis added.)
Taylor argues the emphasized comments misstated the law because the State did not charge that M.O. had touched or fondled Taylor.
We first note that the aggravated indecent liberties statute under which the State charged Taylor specifies that either a touching by the defendant of the victim or by the victim of the defendant constitutes the crime. See K.S.A. 21–3504(a)(3)(A) (defining aggravated indecent liberties with a child as “engaging ... with a child who is under 14 years of age [in][a]ny lewd fondling or touching of either the child or the offender, done or submitted with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both” [Emphasis added.] ). It appears from the final amended complaint in the case that the State charged Taylor in the alternative, i.e., a touching by Taylor of M.O. or a touching by M.O. of Taylor.
However, for a reason or reasons unknown to us, both of the trial court's instructions to the jury specifying the elements of aggravated indecent liberties that the State had to prove mentioned only a touching by Taylor of M.O. and not a touching of Taylor by M.O. Taylor then argues that the prosecutor's argument that the jury could consider M.O.'s touching of Taylor as a crime for which it could convict him was a misstatement of the law under the facts here. We agree. While the State certainly could have and originally did charge Taylor with also committing the crime by being fondled by M.O ., the jury was instructed that it should only consider touching of M .O. by Taylor. Then, in two separate places in the jury instructions the trial court told the jury that it must decide the case based solely on the evidence and the law contained in its instructions. Thus, any touching by M.O. of Taylor was no longer an act that the jury could find constituted one of the indecent liberties charges for which it could find Taylor guilty. As such the prosecutor's comments that Taylor complains about were misstatements of the law under the facts here and fell outside the wide latitude afforded the prosecutor in discussing the evidence.
Turning to the second step in our prosecutorial misconduct analysis, was the prosecutor's misconduct so prejudicial that it denied Taylor his right to a fair trial? To answer the question, we consider three factors: (1) whether the misconduct was gross or flagrant; (2) whether the misconduct was motivated by ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror. State v. Marshall, 294 Kan. 850, Syl. ¶ 3, 281 P.3d 1112 (2012). No individual factor is controlling, and the third factor may not supersede the other two factors unless the State proves beyond a reasonable doubt that the error complained of did not affect the outcome of the trial based upon the entire record. State v. Sprung, 294 Kan. 300, 313, 277 P.3d 1100 (2012).
First, whether a prosecutor's conduct was gross or flagrant depends largely on whether the prosecutor repeated or emphasized the conduct. Marshall, 294 Kan. at 861–62. Here, the prosecutor's back-to-back suggestions that the jury could consider M.O. touching Taylor's penis as aggravated indecent liberties with a child were not gross or flagrant. The error was not repeated in the rebuttal portion of his closing argument where the prosecutor referred only to acts involving Taylor touching M.O. Taylor's contrary suggestions that the State improperly commented on the penis-touching incident “over and over again,” and was attempting “to strengthen its case by offering several incidents alleged” lack support in the record.
Second, was the prosecutor's misconduct motivated by ill will such as in cases where the conduct was deliberate, repeated, or in apparent indifference to a court's ruling. 294 Kan. 850, Syl. ¶ 7. The record reveals no such circumstances here. Accord State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (citing State v. Washington, 275 Kan. 644, 672, 68 P.3d 134 [2003] in recognizing “a few comments included in [a] lengthy transcript does not establish gross and flagrant conduct or ill will”).
Third, as to the strength of the evidence, there were some inconsistencies in M.O.'s testimony about the precise days and exact locations where the crimes took place. On the other hand, the evidence consistently established they all occurred within the dates listed in the charging document and on the premises of Taylor's automotive shop. M.O.'s testimony also pretty much paralleled the statements she gave to the Sgt. Germany and the sexual assault nurse within a day or two of the crimes. Also, DNA testing established that pubic hair was found on the floor of Taylor's shop where M.O. said she was raped, and Taylor's DNA was found in M.O.'s bra.
Taylor claims the jury was confused as to which act or acts should constitute aggravated indecent liberties with a child as evidenced by two questions it asked during its deliberations. We disagree. The jury simply asked: “Why aggravated, please explain” and “Why is there two Liberties Instruction[s].” The trial court responded to the first question saying: “The name given to a criminal offense is not a matter to be considered by the jury.” It answered the second question by saying that there were two “instructions because there are two counts of aggravated indecent liberties.” Neither question suggests the jury was confused about which act to consider.
We also note the State's evidence contained several incidents of inappropriate touching of M.O. by Taylor. Given the lack of ill will by the prosecutor or any indication that the prosecutor's misconduct was gross and flagrant, combined with the scientific evidence against Taylor and the corroboration of M.O.'s testimony by the detective and the nurse, we conclude the State has met its burden of proving beyond a reasonable doubt that the prosecutor's remarks made no difference in the outcome of the trial.
As a final point on this issue, while the failure to object to a prosecutor's remarks in closing (as occurred here) does not preclude appellate review of the issue, our Supreme Court has stated that “the absence of an objection may figure into the court's analysis of the alleged misconduct. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).” State v. Breedlove, 295 Kan. 481, 496, 286 P.3d 1123 (2012). Also, in State v. Bunyard, 281 Kan. 392, 133 P.3d 14 (2006), the dissent suggested that the lack of an objection might factor into the prejudice component of the analysis, i.e., it might have indicated that a prosecutor's statements alleged to be misconduct on appeal “were not glaring misstatements or conspicuously offensive.” 281 Kan. at 419 (McFarland, C.J., dissenting in part).
Cumulative Error
Taylor next argues he is entitled to a new trial based on the doctrine of cumulative error. To address this issue, we must review ‘ “whether the totality of the circumstances [cumulative errors] substantially prejudiced the defendant and denied the defendant a fair trial.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Where there are no errors to cumulate, the doctrine does not apply.
As our opinion indicates, we have determined that the trial court committed no errors in its rulings before, during, and after the trial. “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Our opinion does state that the trial judge on one occasion improperly interjected himself into the questioning of a State's witness but that he did not err in denying the motion for a mistrial that followed. We have also determined the prosecutor made some improper comments during closing argument which drew no objection at trial, but they did not warrant a new trial.
Nor do we think the two incidents in combination require remand. As we stated, the trial judge admonished the jury at length to ignore his question to the witness. He told them that he should not have interjected himself and that they should draw no inference about what he thought of the credibility of the witness. We believe this properly removed any taint of unfairness or prejudice the interjection may have originally caused in the trial. Consideration of this incident then in combination with the prosecutor's comments did not increase the likelihood of unfair prejudice that would afford Taylor a new trial.
Alleged Abuse of Discretion in the Denial of a Sentencing Departure
In his final issue on appeal, Taylor suggests the district court used an incorrect legal standard in denying his motion for a downward departure sentence.
An appellate court will not reverse a denial of a departure motion under Jessica's Law unless the appellate court determines the trial court's findings of fact are not supported by substantial competent evidence or that the court abused its discretion in considering the mitigating and/or aggravating circumstances. State v. Floyd, 291 Kan. 859, 862, 249 P.3d 431 (2011). Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) 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. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
There is no dispute here that Taylor faced a presumptive sentence of life imprisonment with a mandatory term of imprisonment of not less than 25 years on each of his two convictions of aggravated indecent liberties with a child. This is commonly referred to as a hard 25 sentence under Jessica's Law. See K.S.A. 21–4643(a)(1)(C). Nor is there any dispute that the trial court was statutorily obligated to impose that sentence unless it found “substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21–4643(d). Our Supreme Court has stated: “[T]he status quo is that the legislature has provided that someone without a prior criminal history who is convicted of [a qualifying crime under Jessica's Law] will receive a hard 25 life sentence. To justify a more lenient sentence, [the defendant] must establish a substantial and compelling reason.” State v. Baptist, 294 Kan. 728, 734, 280 P.3d 210 (2012).
K.S.A. 21–4643(d) lists six mitigating circumstances that a trial court can consider when deciding whether to depart from a hard 25 sentence under Jessica's Law. This list, however, is nonexclusive and the court can consider other factors that are not listed. Also, “a district court is not obligated to depart simply because a mitigating factor exists.” Baptist, 294 Kan. at 734.
Taylor's motion for a departure sentence did not focus on the mitigating circumstances contained in the above statute, and it appears that none of them would apply in this case. Rather, Taylor advanced the following mitigating circumstances in support of his motion: (1) The only credible evidence was that 13–year–old M.O. desired a physical relationship with Taylor, i.e., “[s]he asked for it,” not that Taylor forced himself upon her; (2) it can be inferred from the jury's acquittal on the rape charge that the jury did not find M.O. credible; (3) the evidence supporting the aggravated indecent liberties charges was weak and there were alternate explanations for the presence of that evidence; (4) the evidence was neither strong nor compelling and did not indicate the use of violence; (5) the harsh nature of the hard 25 sentence was unjust and unfair under the circumstances of this case; (6) Taylor did not have a prior history involving any sexual misconduct; and (7) the degree of harm to M.O. was less than what is typically associated with the offense of aggravated indecent liberties with a child.
The State strongly opposed Taylor's departure motion. In support, it contended Taylor's argument was little more than an attack upon M.O.'s credibility and the sufficiency of the evidence, which had already been conclusively decided by the jury and were not a proper consideration for the trial court on a motion for departure. The State also cautioned the court against relying solely on a minor victim's consensual participation in such crimes to support a departure sentence.
Prior to, during, and after the parties' arguments on the motion for a departure, the trial court made several comments regarding sentencing under Jessica's Law. For example, in denying Taylor's motion, the trial judge commented on the harshness of Jessica's Law, noting that he “hated this case ... [not] because of anything that happened at trial, but because of the very high penalty that is to be imposed[, which] colors an awful lot of what we do, it effects what we do, and probably rightly so.” During arguments on Taylor's motion, the judge also questioned the parties about the minimum sentence it could legally impose if it did not grant a departure and even returned to chambers to retrieve his copy of the sentencing guidelines to check what that was. The judge further clarified with the State during its argument that “the aggressiveness of the victim” is not one of the statutory mitigating factors. The judge then denied Taylor's motion, explaining, “I've taken an oath of office, and while I would like to find a reason to depart, I cannot find that any of the reasons listed or described here today are legally sufficient.”
It appears that the gist of Taylor's complaint on appeal in this issue is tied to this last comment by the trial court. He contends the trial court erred as a matter of law “[b]y requiring the departure factors to be ‘legally sufficient,’ “ as opposed to “substantial and compelling.” In other words, Taylor suggests the trial court abused its discretion in denying his motion for a departure sentence because it failed to consider or apply the correct legal standard. See Brinklow, 288 Kan. at 42 (citing State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 [2006], in pointing out that district court's failure to properly consider or apply correct legal standard affects highly deferential abuse of discretion standard).
We disagree. We have reviewed the record and conclude that Taylor's argument on this issue takes the trial court's comment about legal sufficiency out of context. In considering the transcript of the sentencing as a whole, it appears to us that the court understood the legal standards pertinent to its consideration of Taylor's motion for a departure sentence. It also appears that the court exercised its discretionary authority in considering and denying Taylor's motion. By commenting on the legal sufficiency of the reasons for a departure advanced by Taylor, the court did not misapply or change the applicable legal standard. Rather, it simply stated that standard was not met under the facts of this case, i.e ., that the reasons advanced by Taylor were not substantial and compelling reasons to justify the court's departure from the hard 25 sentence.
In conducting our appellate review, we find that substantial competent evidence supports the factual reasons given by the trial court for denying the motion for departure, and it did not abuse its discretion in doing so.
Affirmed.