Opinion
No. 108,364.
2013-11-22
STATE of Kansas, Appellee, v. Timothy SUMPTER, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
Memorandum Opinion
PER CURIAM.
Timothy Sumpter appeals his convictions and sentences for various sex crimes against four women. He argues the district court erred by consolidating his three cases for trial, admitting into evidence his statement to law enforcement officers, and instructing the jury on multiple acts. He also contends the State committed prosecutorial misconduct and there was cumulative error. As to his sentences, he argues the court erred in using his prior convictions to enhance his aggravated kidnapping sentence, in imposing the aggravated sentences in the grid boxes for his other convictions, and in imposing a no-contact order. We affirm the convictions and sentences and vacate the no-contact order.
Charges and Pretrial Motions
The State filed three separate cases against Sumpter. In 11CR1290, it charged him with attempted rape or aggravated sexual battery for an incident in the park involving A.C. and aggravated sexual battery for an incident at Dillons involving A.P. In 11CR1638, it charged Sumpter with aggravated kidnapping, rape (amended to attempted rape after preliminary hearing), and aggravated sexual battery for an incident in the Old Town area involving J.B. And in 11CR1187, the State charged him with kidnapping and aggravated sexual battery for an incident in his vehicle involving A.E. Sumpter pled not guilty to the charges. Before trial, the district court granted the State's motion to consolidate the three cases for trial and denied Sumpter's motion to suppress his statement to law enforcement officers.
Testimony at Trial
In September 2010, 23–year–old A.C. met Sumpter at a party. The two exchanged phone numbers and agreed to meet in person after exchanging a few text messages. After meeting at a fast food restaurant at around 8 p.m., Sumpter drove himself and A.C to a nearby nature center where they walked and talked for almost 2 hours. He began to act strangely and attributed his behavior to a pill he had taken earlier that evening. When she tried to run away, he tackled her and repeatedly fondled her buttocks while he masturbated. She tried to push him away, but he held her down. She eventually convinced him to stop and called a friend to pick her up. Later that evening, he told her via text message that a nurse at the hospital said the pill must have been Oxycontin. A.C. reported the incident to the police the next day, identifying her attacker as “Timothy.”
In January 2011, 22–year–old J.B. was at bar in the Old Town area of Wichita. She left alone at around 1 a.m. to retrieve something from her car. As she approached the car, a stranger began to follow her and ask her questions. A video surveillance camera captured their encounter. She told him twice to leave her alone. He told her he was not trying to be disrespectful, but a beautiful woman such as herself should not be walking alone at that hour and he wanted her to be safe. Because he said something else funny, she let her guard down and allowed him to walk with her. He tried to force his way into her car. He punched her in the face, and she fought back. Then, with his knee to her throat, he grabbed her buttocks and moved his hands towards her vagina, but he stopped when she told him she was on her period. She blacked out and when she woke up, he was masturbating and made her touch his penis. By feigning sexual interest, she managed to force him out and lock the car, but he had her keys. When she opened the door to retrieve them, he forced his way inside again. He hiked up her skirt and pressed his body against her. She managed to force him out of the car again just as another car pulled up. He told the driver, “[I]t's just my girlfriend, she's crazy.” J.B. knew her attacker as “Justin” and reported the incident to police that night. She was intoxicated and falsely reported that she had bitten his penis. The next morning, she underwent a sexual assault examination, during which scrapings were taken from underneath her fingernails.
In February 2011, 24–year–old A.P. worked at Dillons and began chatting with Sumpter, who was a regular customer. They exchanged phone numbers so they could arrange a double date. At around 2 a.m. one morning, he called her because he was upset about a friend's death and wanted to talk. She told him she needed to sleep because she had to get up early for work. When she got to work at 6:40 a.m., he was waiting for her in the parking lot. He asked her several times to get into his white SUV, but she refused and told him he had to come into the store if he wanted to talk. He said he wanted to talk in a private place so no one would see him cry. When they were alone in one of the store aisles, he told her his friend had died and he started to cry. They got off topic and he asked what her favorite part of her body was. When she humored him and said her buttocks, he grabbed it. She told him to stop but he grabbed it again, and when she tried to leave, he bear-hugged her and grabbed it yet again. A.P. reported the incident to the police that day, identifying her attacker as “Tim.” When Sumpter called A .P. later to apologize, he spoke to her boyfriend and told him his name was “Dustin”
In April 2011, 19–year–old A.E. met Sumpter at the home of her friend's potential boyfriend. He was drinking. They ended up alone together, talking. He insinuated that he wanted to have sex with her. He exposed his penis and masturbated. When she tried to leave, he started to cry and told her “about his dead dad.” She listened because she felt bad for him. They went outside so he could smoke, but it was cold so he suggested they sit in his white SUV. He decided to drive them around. He talked about wanting to kill himself and said he had a gun in the vehicle. He drove them to a park and seemed determined to kill himself. She tried to jump out of the vehicle, but he stopped her by putting his arm around her neck and waist. She kicked and screamed, but he did not let her go until a security car pulled up. He agreed to take her back to the party if she did not say anything to the security guard. After being told to leave the park because it was after hours, he continued to drive them around. He stopped on an isolated dirt road and started to touch her. She told him to stop and tried to push him away, but he put his hands down her pants and grabbed her buttocks. A deputy sheriff pulled in behind them at around 2:30 a.m. A.E. reported the incident, and Sumpter was arrested. No weapons were found in the vehicle. Sumpter told the deputy he “had been in a relationship [with A.E.] for over a year.”
Detective Wiswell was the lead detective in A.P.'s case. During his investigation, he learned about A.C.'s case and that both victims had a connection to Sumpter, who was in custody in connection with A.E.'s case. He set up an interview with Sumpter, in which Detective Wendy Hummel, who was investigating J.B.'s case, also participated. During the recorded interview, Sumpter denied knowing A.C., denied going to the park with her, and denied going to the hospital that night. Sumpter admitted knowing A.P. but denied having any contact with her beyond her cashing his checks at Dillons. Sumpter denied knowing J.B. but admitted going to Old Town and defending himself when a woman who had given him a fake phone number attacked him for calling her a liar. Sumpter denied that he drove a white SUV and refused to give a DNA sample.
Detective Hummel testified that during the interview Sumpter initially denied having any contact with J.B., but he then admitted “it could have been him [on the surveillance video], but it wouldn't have been the way he normally acts.” Sumpter admitted he had a drinking problem and when he drinks he gets emotional and sometimes violent. Later, the detectives secured a court order to obtain Sumpter's DNA and discovered he could not be excluded as a minor contributor to the DNA found under the fingernails of J.B.'s left hand.
Sumpter testified to the following: He tried to have sex with A.E .; he did not masturbate in front of her; he held her in his vehicle to save her life; and he did not grab her buttocks in the vehicle. He touched A.C.'s buttocks with one hand and his penis with the other; he accidentally pulled her pants down when he was grabbing her buttocks and she walked away; and he did not go to the hospital, but he had a friend call a nurse about the pill he took. He touched A.P.'s buttocks as he was hugging her. Sumpter admitted it was him in the Old Town surveillance video. He slapped J.B. because she spit on him. He did not push her into the car; instead, she pulled him in by his shirt. He choked her because she was hitting him with her keys. He touched her buttocks, exposed his penis, and masturbated because she came onto him. She touched his penis, but he did not try to touch her vagina or push his body against her buttocks. He did not tell police everything during his interview because he was scared, nervous, worried about losing his job, SUV, and apartment, and did not know what to do. On cross-examination, he admitted to committing sexual battery against A.C., A.P., and J.B. and “lik[ing] butts.” He also admitted his father had died in 2009.
Regarding the incident with A.E., the jury found Sumpter guilty of the lesser included offense of criminal restraint and aggravated sexual battery. Regarding A.C., the jury found him not guilty of attempted rape and guilty of the lesser included offense of sexual battery. Regarding A.P., the jury found him guilty of the lesser included offense of sexual battery. Regarding J.B., the jury found him guilty of aggravated kidnapping, attempted rape, and aggravated sexual battery. The district court sentenced him to a controlling term of 351 months' incarceration—315 months in prison consecutive to 36 months in jail—and ordered him to have no contact with the victims.
Consolidation of Cases
First, Sumpter argues the district court erred by consolidating all three of his cases for trial because the crimes involving J.B. were not of the same or similar character as the other crimes.
A district court may order two or more cases be tried together if the crimes could have been joined in a single complaint, information, or indictment. K.S.A. 22–3203. Two or more crimes may be charged in separate counts of the same complaint, information, or indictment, if the crimes: (1) are of the same or similar character; or (2) are based on the same act or transaction; or (3) are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. State v. Cruz, 297 Kan. 1048, Syl. ¶ 1, 307 P.3d 199 (2013).
Crimes are “of the same or similar character” where “ ‘all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment.’ [Citation omitted.]” State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999). Crimes are “connected together” when “the defendant provides evidence of one crime while committing another”; “some of the charges are precipitated by other charges”; or “all of the charges stem from a common event or goal.” State v. Donaldson, 279 Kan. 694, 699–700, 112 P.3d 99 (2005).
Our standard of review on such issues has been stated as follows:
“ ‘When analyzing an issue of joinder, an appellate court determines which of the three conditions precedent the district court relied on (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); whether there is substantial competent evidence to support the district court's findings of fact, using a deferential standard; whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and whether the district court abused its discretion in allowing joinder.’ [Citation omitted.]”. Cruz, 297 Kan. at –––– (307 P.3d at 205). (for abuse of discretion analysis appellate court must “consider whether any reasonable person would have reached the same conclusion as the trial judge”).
All four victims testified at the preliminary hearing and identified Sumpter as their attacker. After the preliminary hearing and before trial, the State file a motion to consolidate 11CR1187 (A .E.), 11CR1290 (A.C. and A.P.), and 11CR1638 (J.B.). Sumpter filed a motion to severe 11CR1290. The district court heard the arguments of the parties at a nonevidentiary hearing and reviewed the motions and the relevant statutes and caselaw.
The district court then made the following rather detailed factual findings: (1) “All four victims are between the ages of 18 and 24 years old.... They are all white females. They're all of a slight build.... [A]ll of them had long brown hair”; (2) “[I]n three of the cases, ... those involving [J.B.], [A.P.], and [A.E.], those three cases all involve an emotional appeal of some kind”; (3) “[I]t appears that the defendant initiated specific and purposeful contact with the victims, two of those cases ... by the same phone”; (4) “[T]here was a prior relationship or acquaintance”; (5) “I believe in all or most of the cases, at least three, the defendant's SUV [was] involved.... [T]his [was] a common identifier”; (6) “[A]ll four of these there's certainly an emphasis on the woman's buttocks, all victims' buttocks' seemed to be the focal point ... or ... the motive”; (7) “Two of the cases [involving A.C. and J.B.] would involve exposure of the penis”; (8) “[A]ll of these are assaultive in nature. In fact, all four charges involve the specific charge of aggravated sexual battery. All four ... involve the grabbing of victims as they struggled to get away.... [T]here was basically initial contact and when there was a resistance ... there was always a second effort”; (9) “[T]he length of time in between all four of these alleged incidents ... is ... seven months”; (10) “[D]efendant isolated all of the victims”; (11) “[T]here was no holding of a weapon or gun or a rope or a cord ... [or a] threat to kill”; (12) “[T]he mode of trial ... is the same, same type of allegations, type of witnesses, type of testimony”; (13) “The punishment would be the same”; (14) “[T]he charges are the same or similar”; (15) “The character of the charges is similar, they all involved a sexual touching”; (16) “[T]here's overlapping proof, that being one of the last charges triggered identification for the other charges”; (17) “[T]hese all occurred in the same jurisdiction ... even [in] the same general location in the City of Wichita[, the Old Town area]”; and (18) “Finally, there [are] similar witnesses, mostly in the law enforcement, but certainly the type of witnesses that would be involved.” Based on these findings—and after reviewing the relevant statutes and caselaw—the court concluded that Sumpter's cases and counts were of the same or similar character.
The district court also concluded “There are some common ... similarities or ... goals ... between all four cases,” given “the method to ... accomplish the goals, the profile of the victims, isolation, the use of sympathy or playing on emotions, female anatomy, that being the buttocks, location in Wichita.”
The district court ultimately granted the motion to consolidate because consolidation would not “prevent [Sumpter] from getting a fair trial,” it would promote “judicial economy,” and the required jury instructions would “provide sufficient safeguards.”
It appears the district court relied on two condition precedents, only one of which is necessary, to order consolidation—crimes of same or similar character and crimes based on two or more acts constituting parts of a common scheme or plan. Interestingly, Sumpter only challenges the court findings and conclusions as to the “same or similar character” condition, not those pertaining to the “common scheme or plan” condition.
As to the “same or similar character” condition that the district court found existed, a review of the testimony reveals there is substantial competent evidence to support the district court's findings of fact in this regard. The record reveals that the case involving all victims feature: (1) a white brunette woman of slight build in her late teens or early twenties (all cases); (2) an incident that occurred between September 2010 and April 2011 (all cases); (3) an incident that occurred late at night (A.C. around 10 p.m.; J.B. around 1 a.m.; and A.E. around 2:30 a.m.); (4) an incident that occurred in Wichita (all cases); (5) a calm initial interaction with the victim (all cases); (6) an appeal to the victim's emotions (told J.B. she was pretty and should not be walking alone at night; told A.P. his friend died; and told A.E. about his father's death); (7) isolation of the victim (A.C. in park; J.B. in car in parking lot; A.P. in store aisle; and A.E. in SUV on dirt road); (8) grabbing of the victims' buttocks (all cases); (9) masturbation (J.B., A.C, and A.E.); (10) victim restrained by physical force not a weapon (all cases); (11) an aggravated sexual battery charge (all cases); and (12) the testimony of Detective Wiswell (J.B., A.P., and A.C).
Based upon this evidence, we find the district court properly concluded that the condition precedents had been met. We acknowledge that the crimes against J.B. were more violent than the other crimes and they occurred in central Wichita (Old Town), not in northeast Wichita like the other crimes. However, these differences do not prohibit consolidation because there are many other marked similarities—Sumpter obtained his victim's trust by appealing to her emotions, accompanied her to an isolated location, used physical force to restrain her, and touched her in a sexual manner against her will. See State v. Castille, No. 106,927, 2013 WL 3867000, at *1–7 (Kan.App.2013) (unpublished opinion) (crimes of same or similar character where defendant lured both victims to his apartment, but he raped one by penile penetration and the other by digital and penile penetration at gunpoint); see generally State v.. Bunyard, 281 Kan. 392, 401, 133 P.3d 14 (2006) (“Crimes against persons, particularly ... sex crimes ..., have variances in the facts. No such crime is a clone of another.”). Moreover, the fact that there was only one overlapping witness does not prevent consolidation. See Barksdale, 266 Kan. at 509 (finding cases required the same mode of trial, same kind of evidence, and same kind of punishment, although only one witness testified about both crimes).
Finally, we conclude the district court did not abuse its discretion in allowing joinder. It cannot be said that no reasonable person would have found the crimes against J.B. to be similar to the crimes against the other women. Also, the court instructed the jury that each charge constituted “a separate and distinct offense” and that the jury should “decide each charge separately on the evidence and law applicable to it.” See Cruz, 297 Kan. at –––– (307 P.3d at 207) (explaining that “such an instruction negates the inherently prejudicial effect of trying a person on multiple counts”). Finally, the jury demonstrated its ability to follow this instruction and judge each case independently when it acquitted Sumpter of the attempted rape of A.C. and convicted him of the sexual battery of A.E., A.C., and A.P. (rather than aggravated sexual battery) and the criminal restraint of A.E. (rather than kidnapping). See Cruz, 297 Kan. at –––– (307 P.3d at 207) (explaining that “acquittals a[re] compelling evidence of a jury's ability to differentiate between charges joined for trial”).
The district court did not err in consolidating Sumpter's cases for trial.
The Statement to Law Enforcement Officers
Sumpter argues that the district court erred in denying his motion to suppress his statement to police and admitting it at trial because it was involuntary, given his youth, incarceration, precarious emotional state, and lack of knowledge that the interview was being recorded.
In reviewing a district court's ruling on a motion to suppress a confession, we review the factual underpinnings of the decision under a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts de novo. We do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Randolph, 297 Kan. 320, 326–27, 301 P.3d 300 (2013).
The State has the burden to prove the voluntariness of a confession by a preponderance of the evidence—that the statement was the product of the defendant's free and independent will. State v. Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010). The district court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. State v. Harris, 293 Kan. 798, 807–08, 269 P.3d 820 (2012).
Additionally K.S.A.2010 Supp. 60–460(f) provides in pertinent part that a confession is an exception to the hearsay exclusionary rule when the following elements exist:
“[T]he accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
Also, a defendant's mental condition alone should never dispose of the inquiry into constitutional voluntariness. State v. Lane, 262 Kan. 373, 386, 940 P.2d 422 (1997). In order to exclude a confession due to the defendant's mental condition, there must be a link between the State's coercive activity and the confession. State v. Mays, 277 Kan. 359, 376, 85 P.3d 1208 (2004). A law enforcement officer's recording of an interview without a suspect's knowledge is insufficient to render a statement involuntary. See State v. Hermosillo, 272 Kan. 589, 596–98, 35 P.3d 833 (2001) (affirming district court's finding that statement was voluntary, despite officer's failure to tell defendant his interview was being recorded, because there was no evidence of coercion).
At the hearing on the motion to suppress, the district court heard the testimony of the lead detective in the case who interviewed Sumpter and took his statement. The court also viewed a video recording of the interview. At the conclusion of the hearing, the court concluded that Sumpter gave his statement “freely, voluntarily and intelligently” and it was “the product of his free will.”
In exercising our scope of review and applying the legal principles above, we find that even if Sumpter was extremely emotional at the time of his statement, there was absolutely no evidence of coercion. The video recording reveals the interview lasted about 2 hours with one break; he waived his Miranda rights with knowledge of why he was being interviewed; Sumpter was alert and had no trouble answering questions; Sumpter cried twice but was not debilitated by his emotions; law officers did not employ coercive or intimidating tactics; and Sumpter never invoked his rights or asked that the interview be terminated. The recording of the interview without Sumpter's knowledge did not render his statement involuntary. See Hermosillo, 272 Kan. at 598. Substantial competent evidence—the video recording—supports the district court's findings that Sumpter understood his rights, was alert, had no trouble tracking the detectives' questions, and was not threatened or pressured into making a statement. Based upon those facts, the court reached the correct legal conclusion—that Sumpter's statement was voluntary.
The district court did not err in denying Sumpter's motion to suppress and admitting into evidence his statement to law enforcement officers.
The Multiple Acts Instruction
Sumpter argues the use of the word “could” in the pattern multiple acts instruction constituted clear error because the jury may have interpreted it as an instruction to direct a verdict.
At the conclusion of the trial, the court gave the following instruction:
“Instruction [15/27] as to [A.C./J.B.], the State claims distinct multiple acts which each could separately constitute the crime of aggravated sexual battery or sexual battery of [A.C./J.B.]. In order for Timothy Sumpter to be found guilty of aggravated sexual battery or sexual battery of [A.C./J.B.], you must unanimously agree upon the same underlying act.”
Neither party's proposed instructions included PIK Crim.3d 68.09–B. At the jury instruction conference, the district court explained that the parties had “hashed ... out” and agreed on the instructions the day before. The court proceeded to review each instruction. Defense counsel verified that she was “okay with” the multiple acts instruction, thought it was “appropriate,” and had no objection to it.
Since, Sumpter did not object at trial to the above instruction, he bears the burden on appeal to show clear error. See State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012) (citing K.S.A. 22–3414[3]; clearly erroneous standard of review). We must then exercise unlimited review to determine whether an instruction error occurred, before making a de novo determination of whether the instruction error was reversible. See 295 Kan. 506, Syl. ¶¶ 4–5 (instruction is clearly erroneous where “the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”).
The giving of the multiple acts instruction set out above did not constitute error. The district court instructed the jury using the exact language of PIK Crim.3d. 68.09–B. This pattern instruction accurately states the current law on multiple acts. See State v. King, 297 Kan. 955, 305 P.3d 641, 660 (2013) ( “When several acts are alleged, any one of which could constitute the crime charged, the court is presented with a multiple acts case that requires the jury to be unanimous as to which one of the acts the defendant committed.” [Emphasis added.] ); State v. Torres, 294 Kan. 135, 146–48, 273 P.3d 729 (2012) (encouraging the use of PIK Crim.3d 68.09–B). One definition of “could” (found under “can”) is “used to indicate possibility.” Webster's II New College Dictionary 160 (1995). The district court properly instructed the jury that more than one act possibly, not certainly, constituted aggravated sexual battery or sexual battery of A.C. and J.B.
The district court did not err in instructing the jury on multiple acts.
The Prosecutor's Closing Argument
Sumpter argues the State committed prosecutorial misconduct by repeatedly and improperly commenting on his credibility during its initial closing argument. We have quoted the statements complained of in context with other portions of the prosecutor's argument:
“Let's consider the defendant's statements throughout this case. He tells [A.E.] he's sad about his father's death. He tells Deputy Oehm she's my girlfriend. You'll recall that when he testified, that was the first excuse that he gave, oh, that's my girlfriend. He tells [A.C], after the event, I'm sorry for whatever I did. I'm going to the hospital. And 50 minutes later, oh, the nurse said it was [Oxycontin]. Well, he didn't actually go to the hospital. And I don't know, how many nurses do you know at a hospital who would give out that kind of information over the phone.
“He told detectives I don't know that girl, talking about [A.C.]. I don't date bigger girls. I've never been to the nature center by Home Depot. Consider all of these things, are any of them true? Is a single statement so far that we've talked about here, any of them true? Maybe he was sad about his father's death. But I'd suggest to you that was mostly lying, a ruse to try to get [A.E.] isolated.
“He told [A.P.], my friend's been shot. Again, now he's changed it to well, he may have been shot. He told Shawn, my name is Dustin, when he called to apologize for what he had done. He told detectives, I don't know that girl, speaking of [A.P.]. Oh, that's right, she did cash my check, but that's it, I've never had any contact with her away from that cashier's stand.
“I don't use that cell phone number, the one that he had given to [A.P.] and to [A.C.]. And I don't have access to a white SUV. Oh, but I do. He does. Are any of these statements true? He tells [J.B.], call me Justin. Causes detectives to start looking for somebody named Justin, who might be a suspect in the case. He tells James Curry, again, when caught, when somebody comes along and stops him, that's my girlfriend, she's crazy, don't listen to her. Again, that same excuse.
“And then he tells detectives, I don't know her. I did fight with a girl down in Old Town, but it was never by a car and it was a woman wearing jeans, not a skirt. And now, ladies and gentlemen, he comes in here to court, almost a year later, since the last case, and he is telling you, you know what, I remember all of these things perfectly clear. And yes, I did some things, but all I did were the lesser included offenses.
“And I ask you, do you believe him when he said that I didn't know they were lesser included crimes until today? When back in February, the evidence is, he wrote a letter to the Court, suggesting to the Court that he thought he was guilty of the lesser included offense? Do you believe him when he tells you that [J.B.] attacked me, she pulled me into the car twice? Is there any reason to believe what he says? ” (Emphasis added.)”
Appellate courts use a well-known, two-prong analysis in reviewing prosecutorial misconduct claims. First, the court must determine whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the court must then 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).
Three factors are considered in the plain error prong: “(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); see State v. Inkelaar, 293 Kan. 414, 429–30, 264 P.3d 81 (2011) (misconduct is gross and flagrant if it was repeated or emphasized; deliberate and repeated misconduct or indifference to a court ruling constitutes ill will).
None of the three factors is individually controlling. Before the third factor can ever override the first two, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, [22,] 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have been met. State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004). Under the constitutional harmless error test, the party benefitting from the misconduct must prove beyond a reasonable doubt that the misconduct did not affect the outcome of the trial in light of the entire record ( i.e., where there is no reasonable possibility that the misconduct contributed to the verdict). Under the statutory harmless error test, the court must determine if there is a reasonable probability that the misconduct did affect the outcome of the trial in light of the entire record. State v. Bridges, 297 Kan. 989, 306P.3d 244, 260 (2013).
Generally, prosecutors may not present their personal opinion of a witness' credibility to the jury because such comments constitute “ ‘unsworn, unchecked testimony.’ “ State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012) (quoting State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 [2000] ); see Kansas Rule of Professional Conduct 3.4(e) (2012 Kan. Ct. R. Annot. 589–90) (“A lawyer shall not: ... (e) in trial ... state a personal opinion as to ... the credibility of a witness....”). “ ‘Courts caution prosecutors against characterizing testimony as a “lie” because such categorical and conclusory opinions make the prosecutor an unsworn witness and invade the province of the jury to determine credibility.’ “ Bridges, 297 Kan. at –––– (306 P.3d at 261) (quoting Gershman Prosecutorial Misconduct § 11:27, p. 526 [2d ed.2012] ).
On the other hand, prosecutors have wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). Specifically, when a case turns on which of two conflicting stories is true, a prosecutor may argue that “one version is more likely to be credible based on the evidence.” Marshall, 294 Kan. at 864; see State v. Hart, 297 Kan. 494–505, 301 P.3d 1279 (2013) (a prosecutor may advocate for reasonable inferences that suggest one story is not believable). And a prosecutor may comment on any inconsistencies in a defendant's statements or point out the weaknesses in a particular story. Bridges, 297 Kan. at –––– (306 P.3d at 260); see State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009) (“When a defendant has told one story during interrogation and a completely different story at trial, it would be difficult for a prosecutor to comment on the evidence without suggesting that untruths existed.”). Nevertheless, the jury must be left to draw the ultimate conclusion about the credibility of witnesses. State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011).
Here, the suggestion that Sumpter was mostly lying and the rhetorical questions regarding his credibility were part of the prosecutor's identification of reasonable inferences to be drawn from the evidence. See State v. Lumley, 266 Kan. 939, 959–61, 976 P.2d 486 (1999) (prosecutor's comments must be viewed in context of the whole argument). Sumpter's theory of defense was that he committed the lesser included crimes. The prosecutor responded by listing the numerous false statements Sumpter had made to law enforcement during his interview. The prosecutor did not offer his personal opinion assailing Sumpter's credibility. Cf. Stone, 291 Kan. at 19. Rather, the prosecutor invited the jury to consider Sumpter's prior inconsistent statements when judging his credibility. See Bridges, 297 Kan. at –––– (306 P.3d 260); McReynolds, 288 Kan. at 325 (“[the defendant] intentionally gave them false information” was a fair comment on the evidence because the defendant openly admitted to making false statements during the investigation). The prosecutor's comments were part of a permissible argument that the trial testimony of the victims was more likely to be credible, based on the evidence, than Sumpter's trial testimony. See Marshall, 294 Kan. at 864.
We conclude the challenged comments fell within the wide latitude afforded to prosecutors, and the prosecutor did not commit misconduct during closing arguments. We need not then consider the second prong in the misconduct analysis.
Cumulative Error
Sumpter argues that the cumulative effect of multiple errors requires reversal.
For errors to have a cumulative effect that transcends the effect of the individual errors, there obviously must have been more than one individual error. See State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009); State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007). Since, no errors occurred at trial, Sumpter's argument on this point fails.
The District Court's Use of Sumpter's Prior Convictions to Enhance His Aggravated Kidnapping Sentence
Sumpter argues the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior convictions to enhance his aggravated kidnapping sentence without requiring the State to prove them to a jury beyond a reasonable doubt.
Sumpter acknowledges this issue was decided against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and he presents it strictly to preserve his federal review. We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Eikins, 44 Kan.App.2d 974, 984–85, 242 P.3d 1223 (2010), rev. denied 292 Kan. 967 (2011). Since there is no indication that the Supreme Court intends to depart from its position on this issue, this argument fails. See State v. Parks, 294 Kan. 785, 805–06, 280 P.3d 766 (2012) (reaffirming Ivory ).
Imposition of the Aggravated Sentences in the Grid Boxes for Other Convictions
Sumpter also argues the district court violated his constitutional rights under Apprendi, 530 U.S. 466, and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), by imposing the aggravated sentence in the grid box without requiring the State to prove the aggravating factors to a jury beyond a reasonable doubt.
Sumpter acknowledges this issue was decided against him in State v. Johnson, 286 Kan. 824, 851–52, 190 P.3d 207 (2008), and he presents it strictly to preserve his federal review. Again, we are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. Elkins, 44 Kan.App. at 984–85. Again, there is no indication that the Supreme Court intends to depart from its position on this issue. See Parks, 294 Kan. at 805 (reaffirming Johnson ). Again, Sumpter's argument fails.
The No–Contact Order
Finally, Sumpter argues the district court's imposition of a no-contact order at the time of his sentencing resulted in an illegal sentence. The State concedes this issue. We exercise unlimited review over issues of statutory interpretation. State v.. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
At sentencing, the district court ordered Sumpter to have no contact with any of the victims who testified in the case and who were listed in the affidavit of probable cause. The journal entry of judgment notes the no contact order.
Our Supreme Court has held that a no-contact order included in a prison sentence constitutes an illegal sentence. State v. Plotner, 290 Kan. 774, 781–82, 235 P.3d 417 (2010) (reaffirming interpretation of K.S.A.2004 Supp. 21–4603d(a) in State v. Post, 279 Kan. 664, 664–69, 112 P.3d 116 [2005] ). The relevant portions of K.S.A. 21–4603d(a) remain unchanged. See K.S.A.2010 Supp. 21–4603d(a). Accordingly, the no-contact order portion of Sumpter's sentence must be vacated. See State v. Smyser, 297 Kan. 199, 206, 299 P.3d 309 (2013).
Sumpter's convictions and sentences are affirmed, with the exception of the no-contact order which is vacated.
Affirmed in part and vacated in part.
ATCHESON, J., concurring.
I join in affirming Defendant Timothy Sumpter's convictions. As to the consolidation of the charges for trial, I concur in the result based on how the parties framed and argued the issue on appeal.