Opinion
No. 106,079.
2012-06-8
STATE of Kansas, Appellee, v. Jesus AGUERO–HERNANDEZ, Appellant.
Appeal from Ford District Court; Van Z. Hampton, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Kevin Salzman, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Ford District Court; Van Z. Hampton, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Kevin Salzman, assistant county attorney, Terry J. Malone, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., MARQUARDT and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jesus Aguero–Hernandez appeals his jury convictions of kidnapping, aggravated burglary, and misdemeanor battery. He contends that (1) the evidence was insufficient to prove he was the perpetrator, and (2) instructing the jury to consider the case without favoritism or sympathy for either party was clear error. Finding that there was sufficient evidence for the jury to find Aguero–Hernandez guilty and that the mere giving of a sympathy instruction in this case was not error, we affirm Aguero–Hernandez' conviction.
Factual and procedural History
A jury convicted Aguero–Hernandez of kidnapping, aggravated burglary, and misdemeanor battery. His convictions were based on the following events that started on February 29, 2008, and ended in the early morning hours of March 1, 2008.
Blanca Ramirez, formerly Blanca Millan, worked the second shift at Cargill, from 3:15 to 11:45 p.m. Before Blanca left for work on Friday, February 29, her ex-husband, Oscar Millan, called and asked if she was going to work that day because he wanted her to meet him at the SRS office to settle some bills. Millan told Blanca he was in town that day. Blanca thought the phone call was “weird” because Millan had never called to ask whether she was going to work, and she believed he was working in Oklahoma; she was surprised he was in town. Two weeks earlier, Blanca and Millan argued over money she had received for selling something. Millan wanted Blanca to give him the money, but she refused. Millan then threatened Blanca, saying he was going to ruin her life or that she was going to pay for this.
Blanca was a little late for work on February 29 and, as a result, she could not park in her usual spot. Blanca never locked her van, which her ex-husband knew. After working her shift, Blanca clocked out shortly after midnight, the morning of March 1. As she entered her van, she noticed the rear view mirror had been tilted up but, apparently, thought nothing more about it. As Blanca was leaving Cargill's parking lot, she called her boyfriend—at 12:07 a.m. She next called a friend, but the friend did not answer. Cell phone records showed that call was made at 12:14 a.m.
After Blanca completed the call to her friend, and about the time she was driving past the Youthville complex, she heard a noise in the back of her van. She asked who was there and turned on the dome light. A male, speaking in Spanish, told her to turn off the light and not turn around. The kidnapper moved behind her, and Blanca felt something—possibly a gun—pressed to the back of her head. Blanca pleaded with the kidnapper not to hurt her. She told him if he wanted the van, he could have it. The kidnapper said he was only doing his job, and he did not want the van—“[t]hey want you.” The kidnapper told Blanca not to call police and threatened that he knew where her daughters went to school and where they lived. He also knew how many sisters she had. The kidnapper mentioned, “It took us a while to find the van.”
The kidnapper gave Blanca specific driving directions. They eventually turned off Matt Down Road and West Park Street on a dirt road running south from the intersection. The road ended at locked gates. After Blanca stopped the van, the kidnapper tried to put a rag over her face. Blanca struggled to remove it because it smelled bad and she was having difficulty breathing. Blanca managed to wrest the rag from the kidnapper. The kidnapper then jumped into the front passenger seat. Blanca noticed the kidnapper was wearing a black mask over his face; she could see only his eyes and mouth. She saw the kidnapper was not wearing gloves and described his skin color as light brown. The kidnapper asked Blanca to give him all her money. She told him she had only 2 dollars. He said she should have more since she just got off work.
The kidnapper told Blanca to get out of the van. She got out, and the kidnapper exited the passenger side. Blanca saw the kidnapper was carrying a 2–to 3–foot pipe. As the kidnapper was coming around the front of the van, Blanca jumped back in the van, locked the door, and drove off. As she backed the van around, the headlights shined on the kidnapper. Blanca described the kidnapper as wearing gray pants and a black sweatshirt, 5' 7? to 5' 10?, and very skinny.
As Blanca sped away, she called her boyfriend. Records showed this call was made at 12:33 a.m. Blanca reported that at the time of this call, she had reached the intersection of West Park Street and 14th Avenue. After arriving home, Blanca called Millan. She was sure Millan was not the kidnapper, but she asked him if he had anything to do with it. Patrol Sergeant John Hunter responded to the dispatch. When he arrived at Blanca's home, he found her very distraught and emotional. Sergeant Hunter contacted Michael Albert, an investigator with the Ford County Sheriff's Office, to process the van.
Albert was able to lift three fingerprints and a palm print from the van's front passenger door. A computer found a probable match with Aguero–Hernandez. Aguero–Hernandez also worked the second shift at Cargill. Timecard records showed that he consistently clocked out after midnight the week of the kidnapping except for Friday, February 29. On that night, he clocked out at 11:38 p.m. Aguero–Hernandez agreed to come in for an interview. He came in with Maria Alvarez, his girlfriend.
Aguero–Hernandez denied knowing Oscar Millan and denied any involvement in the kidnapping. Aguero–Hernandez asked Albert when and at what time the kidnapping occurred. Albert told him around midnight. Aguero–Hernandez said he was working until 1:00 a.m. on that date. When Albert produced Cargill's time records showing Aguero–Hernandez clocked out much earlier, he had no explanation. Aguero–Hernandez explained the presence of his fingerprints on Blanca's van by saying; perhaps, he had walked by and touched it.
Aguero–Hernandez told Albert that Alvarez usually picked him up after work; he does not call her because she knows when to pick him up. When Albert showed Aguero–Hernandez phone records, he admitted he may have called Alvarez to pick him up that night. Aguero–Hernandez also admitted he was familiar with the area where the kidnapping occurred because it was near his uncle's ranch or farm. Cell phone records showed Aguero–Hernandez called Alvarez at 12:02 a.m., then again at 12:30 a.m. and 12:41 a.m. on March 1.
Alvarez recalled that Aguero–Hernandez had called her sometime in late February or early March to tell her she did not need to pick him up after work; he was catching a ride home with friends. He called her a little later, asking her to pick him up at the intersection of Matt Down Road and West Park Street. He explained to Alvarez that his friends' truck had broken down, and they pulled it around to a garage located on West Park, a 1/2 mile from the intersection. Aguero–Hernandez wanted her to pick him up at the intersection because he thought she would be more familiar with that area. He called a third time to tell Alvarez she had driven past him. Alvarez testified she found Aguero–Hernandez sitting down on the dirt road leading to his uncle's ranch. When she asked Aguero–Hernandez what happened to his friends, he told her they had already left with the tow truck. Alvarez testified it was a cold evening, but Aguero–Hernandez had on a short-sleeve t-shirt and no coat.
Aguero–Hernandez told Albert that Alvarez was mistaken; this incident occurred in January. He stated he remembered he had to buy a battery for his pickup truck the day after and was able to produce a receipt for a truck battery dated January 22, 2008. January 22, 2008, was a Tuesday, but Alvarez remembered the incident occurred on a Friday. Aguero–Hernandez' cell phone records from January 2008 showed no calls to Alvarez consistent with his story. Aguero–Hernandez gave Albert only the first names or nicknames of his friends who allegedly gave him a ride from work. Albert could not locate these friends. Aguero–Hernandez accompanied Albert to West Park so he could point out the house where the truck broke down, which he later said was a Mercury Cougar. Aguero–Hernandez pointed out the house. Jose Del Real and his wife live at the house identified by Aguero–Hernandez. The Del Reals' testified they did not know Aguero–Hernandez, and no vehicle had ever broken down at or near their property. Albert contacted tow operators; there were no calls for service in that area between February 29 and March 1,2008.
Later in the investigation, Albert asked Blanca if she had any new information on her case. She mentioned that a coworker, Carlos Garcia–Martinez, came up to her and asked how her kidnapping case was coming along. Blanca was taken aback because no one knew about the kidnapping. Garcia–Martinez explained that he had been in jail and talked to Aguero–Hemandez. When Albert interviewed Garcia–Martinez, Garcia–Martinez stated he was in jail a few days for driving under the influence. He knew Aguero–Hernandez from work. Aguero–Hemandez told him he was in jail because he was waiting for a ride and leaned back on the hood of a van, leaving his fingerprints. Aguero–Hernandez told Garcia–Martinez that he knew Millan; they would sometimes get together. Aguero–Hernandez also said he knew that someone was paid to scare Blanca.
Millan testified he did not recall having an argument with Blanca over a sum of money or telling her he was going to ruin her life. He denied knowing Aguero–Hernandez and testified he was working on February 29, 2008. Albert testified that records from Millan's employer at the time showed Millan was paid for stand-by, but he was not called into work on February 29.
Eric Moore, a Kansas Bureau of Investigation (KBI) forensic scientist, testified that the fingerprints on the van's passenger door indicated the door was open when the prints were made. Moore further testified he had no doubt in his mind that the prints belonged to Aguero–Hernandez.
After Aguero–Hernandez' conviction, the district court sentenced him to a controlling prison term of 59 months. Aguero–Hernandez timely appeals.
Additional facts will be included in the analysis where necessary to the discussion.
Sufficiency of the Evidence
On appeal, Aguero–Hernandez contends the State failed to prove he was the person who committed these crimes. Aguero–Hernandez points out he denied any involvement in the crimes; Blanca was not able to identify the perpetrator; and Aguero–Hernandez and Blanca both worked the second shift at Cargill, so it was reasonable to believe he could have touched her van while it was in the parking lot.
When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. 292 Kan. at 581. We proceed to review the evidence under this standard.
Aguero–Hernandez may be correct that Blanca never identified her kidnapper, but the fingerprint evidence combined with circumstantial evidence was sufficient for the jury to find beyond a reasonable doubt that Aguero–Hernandez was the perpetrator. The KBI forensic scientist testified that the position of the fingerprints left on Blanca's van indicated the front passenger door was open at the time the prints were made. This negates Aguero–Hernandez' suggestion that he may have merely touched the van on the Cargill parking lot in passing or while leaning against the hood while waiting for a ride.
The following circumstantial evidence all pointed to Aguero–Hernandez as the perpetrator. Aguero–Hernandez had no explanation for clocking out of work approximately half an hour early on February 29, 2008, when he had consistently clocked out after midnight the entire week. The timing of cell phone records, both Aguero–Hernandez' and Blanca's, were consistent with Blanca's version of events the night of the kidnapping. Aguero–Hernandez called Alvarez shortly after midnight to inform her she did not need to pick him up. It can be inferred that by this time, Aguero–Hernandez had found Blanca's van, and Aguero–Hernandez was hiding in the back of the van waiting for her. Aguero–Hernandez' second call to Alvarez, asking her to now pick him up near his uncle's ranch, the area where the kidnapping ended, coincided with the time frame necessary to drive from the Youthville complex, where Blanca had just ended her call to a friend, to the dirt road, and for Blanca to escape from her kidnapper and reach the corner of 14th Avenue and West Park Street, where she called her boyfriend.
Albert could find no evidence to substantiate Aguero–Hernandez' story of why Alvarez had to pick him up in the vicinity of his uncle's ranch. Further, there were inconsistencies in Aguero–Hernandez' story. He claimed he was working until 1 a.m. the night of the kidnapping, but Cargill time records showed he clocked out earlier than normal. Aguero–Hernandez changed his story from getting a ride home in a truck to getting a ride in a Mercury Cougar. Finally, despite Aguero–Hernandez' denial that he knew Millan, Garcia–Martinez testified that Aguero–Hernandez admitted he sometimes hung out with Millan.
The law clearly allows a conviction of even the gravest offense to be based on circumstantial evidence. Ward, 292 Kan. at 581;State v. Tyler, 286 Kan. 1087, 1095, 191 P.3d 306 (2008) (“Circumstantial evidence is evidence of events or circumstances from which a reasonable factfinder may infer the existence of a material fact in issue.”). The events and circumstances occurring on the night in question would have allowed a reasonable factfinder to infer that Aguero–Hernandez was the perpetrator of the kidnapping, aggravated burglary, and battery.
No–Sympathy Instruction
Next, Aguero–Hernandez notes Instruction No. 2, the no-sympathy jury instruction, has been disapproved in all but the most unusual circumstances. Aguero–Hernandez contends, because his case did not present any unusual circumstances and the instruction implied the jury could not consider evidence that might have elicited sympathy for him, the instruction was prejudicial and clearly erroneous.
Instruction No. 2 stated in part: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” Because Aguero–Hernandez did not object to this instruction, the appellate court applies a clearly erroneous standard of review. See K.S.A. 22–3414(3). “ ‘ “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” [Citation omitted.]’ “ State v. Colston, 290 Kan. 952, 969, 235 P.3d 1234 (2010) (citing State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 [2007] ).
The no-sympathy instruction, PIK Crim.3d 51.07, has been removed from the Pattern Instructions for Kansas and disapproved for general use. Nevertheless, the instruction is considered appropriate in very unusual factual circumstances—where the trial judge believes that the jury may be influenced by sympathy or prejudice. See State v. Baker, 281 Kan. 997, 1004–05, 135 P.3d 1098 (2006); State v. Rhone, 219 Kan. 542, 545, 548 P.2d 752 (1976) (sympathy instruction approved when State's key witness was so ill and feeble that jury was taken to witness' residence to hear her testimony). That is not to say that giving the no-sympathy instruction without the presence of unusual factual circumstances is error, let alone clear error. See State v. Sully, 219 Kan. 222, 226, 547 P.2d 344 (1976); State v. Williams, 42 Kan.App.2d 725, 727–28, 216 P.3d 707 (2009), rev. denied 290 Kan. 1104 (2010) (sympathy instruction is no different than many other jury instructions that tell the jury what not to do).
Aguero–Hernandez did not attempt to elicit sympathy from the jury; his sole defense was challenging the identity of the perpetrator. However, defense counsel elicited sympathy for the victim when cross-examining Blanca and stating she must have been very afraid. If anything, the no-sympathy instruction benefited Aguero–Hernandez. Regardless, in Williams this court pointed out that only two Kansas cases have found the trial court committed reversible error in giving a no-sympathy instruction—State v. Harmon, 254 Kan. 87, 97–98, 865 P.2d 1011 (1993) (no-sympathy instruction potentially caused juror confusion when, in the sentencing phase, the jury was also instructed regarding consideration of mitigating circumstances), and State v. Maggard, 26 Kan.App.2d 888, 892–93, 995 P.2d 916,rev. denied 269 Kan. 938 (2000) (no-sympathy instruction combined with the trial court's refusal to instruct on diminished capacity had the effect of preventing the jury from considering the mentally handicapped defendant's capacity to form the necessary intent). 42 Kan.App.2d at 728–29.
This case did not present unusual circumstances warranting the no-sympathy instruction. Regardless, any potential for jury sympathy would have been elicited for the victim, in which case, Aguero–Hernandez benefited from the instruction. In any case, there was no real possibility the jury would have reached a different verdict had the trial court withheld the no-sympathy instruction. Aguero–Hernandez has failed to show clear error. Accordingly, his claim fails.
Affirmed.