Opinion
No. 105,155.
2012-07-13
STATE of Kansas, Appellee, v. Sheldon YARBROUGH, Appellant.
Appeal from Stevens District Court; Clint B. Peterson, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Paul F. Kitzke, county attorney, and Derek Schmidt, attorney general, for appellant.
Appeal from Stevens District Court; Clint B. Peterson, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Paul F. Kitzke, county attorney, and Derek Schmidt, attorney general, for appellant.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Sheldon Yarbrough appeals his conviction by a jury of one count of aggravated indecent liberties with a child, a severity level 3 persona felony, in violation of K.S.A. 21–3504(a)(1). Yarbrough argues (1) the State failed to prove the alternative means of the crime, (2) improper admission of other crimes evidence, (3) prosecutorial misconduct, (4) improper jury instructions, (5) failure to give limiting instructions, and (6) cumulative error.
S.P. lived with her mother, Brenda, and her stepfather, Yarbrough. She was 14 years old at the time of the events in this case. On December 11, 2009, S.P., Yarbrough, and J.J. Serrato were at Brenda and Yarbrough's home. Serrato and Yarbrough had been drinking throughout the day. S.P. testified they were bored and Yarbrough suggested they go to Wal–Mart and buy panties for S.P. and Brenda. At Wal–Mart, the group purchased three panties, a negligee, toe socks, and an energy drink.
S.P. testified that when they returned home, Yarbrough said that he wanted S.P. to model the panties. She told him no, but Yarbrough persisted until she agreed to do it. S.P. modeled the panties for Yarbrough and Serrato in Yarbrough's bedroom. S.P. also wore a pink negligee. S.P. testified that a video camera was used to record her modeling the panties. When S.P. changed panties. Yarbrough would have Serrato leave the room and then tell him when he could come back in. S.P. testified that she tried on around five pairs of panties and Serrato left the room each time she changed.
S.P. testified that during the modeling, Yarbrough would sometimes pull up the sides of her panties so they would be light on her private area and also show her butt. Yarbrough made comments like. “Damn, boy, that looks good,” and “I like how that looks.” S.P. said Yarbrough told her he “liked how ... my ass hangs out of the panties.” S.P. said the modeling made her feel awkward and uncomfortable. After the show was over. Serrato left and S.P. went into another bedroom and changed into her night clothes.
S.P. testified that Yarbrough came into her bedroom and sat down on the corner of the bed. He asked S.P. if she would model her panties again. S.P. reluctantly agreed. S.P. said that while she was lacing away from him, Yarbrough moved her panties aside and stuck his finger in her vagina. She thought his finger went halfway in. S.P. pushed his arm away and moved away. S.P. said that Yarbrough left the room. S.P. started to pack up her things and Yarbrough came back in and told her he was sorry and repeatedly apologized. S.P. left and stayed the night at her grandmother's house down the street. Brenda and Yarbrough were in their bedroom when she left.
The next day, S.P. told Brenda what had happened with Yarbrough. Brenda told S.P. that she knew something like this was going to happen and she was going to get a divorce. Neither S.P. nor Brenda called the police.
Serrato corroborated S.P.'s version of the events in this case. He said that while they were at the house, Yarbrough suggested they go to Wal–Mart and S.P. could buy underwear and stuff like “thongs, underwear, her panties, whatever.” Serrato testified that Yarbrough told S.P. to go and try on her underwear in his bedroom and give them a show. He said Yarbrough positioned S.P. for the video camera so that he could sometimes film her front and sometimes her back. Serrato said he did some of the videotaping. Serrato left when Yarbrough said he was tired and that Serrato needed to leave.
Brenda confirmed S.P. told her about the incident with Yarbrough, but she had not done anything about it. She had had an altercation with Yarbrough a few days before and she told S.P. to just stay away from Yarbrough because she was not going to be with him anymore. Brenda never filed for divorce. Brenda said she and Yarbrough had a relationship filled with violence and abuse.
Yarbrough took the stand in his own defense. He said he and S.P. returned home around 7 p.m. from a party in Rolla and they were just sitting around the house. He said it was S.P.'s idea to go to Wal–Mart and they called Serrato so he could drive them there. They went to Wal–Mart around 1:30 a.m. When they returned home, Yarbrough testified that he lay down on the couch, watched TV, and dozed on and off. He heard S.P, say she was going to go try on the clothes she got from Wal–Mart.
Yarbrough dozed off again and then got up to go to the bathroom As he passed his bedroom, Yarbrough said that he heard giggling and he opened the door. He saw S.P. and Serrato sitting on the corner of the bed. He said they jumped when he opened the door. He testified that when he went into the bedroom, S.P. went into the other bedroom and he told Serrato to go home. He said that he went into his bedroom and lay down on the bed. He called Brenda at her mom's house and she came home because he wanted sex. Yarbrough denied any of the modeling, videotaping, or inserting his finger in S.P.'s vagina. Yarbrough offered his opinion that he thought S.P. was making up this story so that he would be out of the picture because of all the stuff that had happened between Brenda and Yarbrough.
Elizabeth Hamre, a special investigator for the Kansas Department of Social and Rehabilitation Services, testified that she received an anonymous phone call reporting that S.P. had been abused. Hamre interviewed S.P. and S.P. gave details of how Yarbrough had stuck his finger in her vagina while she was changing clothes. Hamre reported the incident to law enforcement. Officers discovered some of the items purchased on the night in question and also the video camera allegedly use to videotape S.P. modeling, but they did not discover a videotape with the modeling evidence on it.
The State charged Yarbrough with one count of aggravated indecent liberties with a child, a severity level 3 person felony, in violation of K.S.A. 21–3504(a)(1). A jury convicted Yarbrough as charged. Due in part to Yarbrough's lengthy criminal history, his presumptive sentencing range was 206–216–228 months' incarceration. The trial court denied Yarbrough's request for departure and sentenced him to a presumptive term of 216 months of incarceration. Yarbrough appeals.
Yarbrough first argues the State failed to present sufficient evidence of the two alternative means to commit aggravated indecent liberties with a child that were charged.
The jury in a criminal case is required to arrive at a unanimous verdict with regard to the crime charged. In a case where the jury is presented with alternative means by which one crime can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on the other alternative means. The defendant's right to a unanimous verdict is not undermined when this happens so long as there was sufficient evidence presented at trial to support each alternative means for committing the crime. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
In this case, the instructions permitted the jury to convict Yarbrough of aggravated indecent liberties with a child, which defined sexual intercourse as any penetration of the female sex organ by a finger, by the male sex organ, or by any object. Yarbrough asserts these instructions provided the jury with alternative means by which sexual intercourse could be accomplished and therefore, can find his aggravated indecent liberties conviction resulted from a unanimous verdict only if there was sufficient evidence presented at trial to support each alternative means of sexual intercourse. Because there was no evidence that he penetrated the victim by the male sex organ or any object, Yarbrough argues he was deprived of his statutory right to a unanimous verdict and his conviction must be vacated.
In State v. Schreiner, 46 Kan.App.2d 778, 264 P.3d 1033 (2011), the court recently considered a similar argument. Schreiner argued that the statute defining “sexual intercourse,” K.S.A. 21–3501(1), creates alternative means of committing the crime of rape. The Schreiner court set forth a test for determining when a true alternative means issue is presented:
“Alternative means essentially entail materially different ways of committing a particular crime based on the statutory definition or elements of the offense. When criminal statutes create two or more distinct ways of committing an offense, those ways reflect alternative means. Other criminal statutes establish only one way to commit an offense, although they may use synonymous or redundant terms to define the prohibited conduct. Such statutes do not set forth alternative means.” 46 Kan.App.2d 778, Syl. ¶ 1.
In rejecting Schreiner's alternative means argument, the court held: “The wording [of K.S.A. 21–3501(1) ] reflects verbal redundancy rather than differing ways or alternative means of committing a criminal offense. In short, the definition of sexual intercourse cannot reasonably be viewed as creating alternative means of committing rape.” 46 Kan.App.2d at 784. In so holding, the Schreiner court reasoned:
“The statutes actually define a single means of committing rape; it is nonconsensual penetration of the female genitalia with something. The definitional statute then characterizes the instrumentality as a finger, the male sex organ, or an object, All of those terms, strictly speaking, may be unnecessary. If they were omitted, sexual intercourse would be defined as penetration of the female sex organ. Anything used to accomplish the act of penetration would meet that definition....
....
“Here, the common meaning of ‘object’ encompasses both fingers and male sex organs. In using a broad term such as object, the legislature intended to criminalize nonconsensual penetration without regard to the type of instrumentality used.” 46 Kan.App.2d at 783–85.
The legal analysis in Schreiner is well-reasoned and persuasive. Consistent with that holding, we find the instructions defining aggravated indecent liberties with a child provided to the jury in this case a single means of committing the crime, as opposed to alternative means that would require evidence sufficient to support each means submitted to the jury. Accordingly, there is no merit to Yarbrough's claim that he was deprived of his statutory right to a unanimous verdict on the aggravated indecent liberties with a child charge.
Yarbrough also argues he was denied a fair trial after a witness for the prosecution alleged other instances of misconduct. Yarbrough contends the trial court should have granted his motion for mistrial.
Under K.S.A. 22–3423(l)(c), a trial court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution. This statute creates a two-step process. First, the trial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue the trial without an injustice to either party. In other words, the trial court must decide if the prejudicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012); see State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011).
Appellate courts review a district court's ruling on a motion for mistrial for an abuse of discretion. Judicial discretion is abused if judicial action
“(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is 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.” Ward, 292 Kan. at 550.
The Ward court articulated this standard by dividing the appellate court's abuse of discretion inquiry into two parts: “(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.
This case involves a violation of evidentiary limitations set forth in K.S.A.2009 Supp. 60–455, not a constitutional right. Thus, we apply the statutory harmless error standard from K.S.A. 60–261, which disregards errors that do not affect the substantial rights of the parties, to determine if there is a “reasonable probability that error will or did affect the outcome of the trial in light of the entire record.” 292 Kan. at 569. The State has the burden of proof. See State v. McCullough, 293 Kan. 970. Syl. ¶ 9,270 P.3d 1142 (2012) (“Under the nonconstitutional harmlessness standard of K.S.A. 60–261, the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record.”).
During the prosecution's case-in-chief, Hamre testified about her interview with S.P. The following questioning occurred:
“[PROSECUTOR]: And just explain to us, please, what happened or how this conversation came about and what you said to her and what she said to you.
“[HAMRE]: Towards the end of the interview, I asked [S.P.] if there was anything else that I needed to be aware of. She was silent for a few moments, and then she spoke very quietly and told me that her stepfather molested her. I asked her to proceed ... and she provided details of a number of instances in which
“[DEFENSE COUNSEL] Your Honor
“[PROSECUTOR]: And we're focusing—we're just focusing on
“[DEFENSE COUNSEL]: Your Honor, I'm going to object, at this point. We had some pretrial discussions about this, and you're certainly getting off track here.
“THE COURT: Objection is sustained.
“[DEFENSE COUNSEL]: And if I may, Your Honor
“THE COURT: Well, before that, I'll instruct the jury to disregard the witness' last statement. It's not pertinent to this case.”
At the close of the State's case, defense counsel requested a mistrial based on Hamre's testimony about other instances of misconduct. The trial court denied the request as follows: “Well, there's certainly ... a reference to some other incidences. The witness who made that reference did not repeat, there was no other repeating of the references to other alleged bad acts. The jury was admonished. Motion's denied.”
We agree Hamre's statements about possible other instances of molestation were improper and violated K.S.A.2009 Supp. 60–455. However, the trial court appropriately sustained defense counsel's objection and cured any residual implication by advising the jury to disregard Hamre's answer. Generally, an admonition to the jury cures the prejudice from an improper admission of evidence. State v. Navarro, 272 Kan. 573, 582, 35 P.3d 802 (2001). “Accordingly, where the trial court sustains an objection and admonishes the jury to disregard the objectionable testimony, reversal is not required unless the remarks are so prejudicial as to be incurable.” State v. Gleason, 277 Kan. 624, 642, 88 P.3d 218 (2004).
Based on our review of the entire record, we do not find the above-cited exchange significant enough to believe there was any reasonable probability this inappropriate question affected the trial's outcome. This is particularly true when Yarbrough had the benefit of the trial court's jury admonition to disregard the improper testimony. In any event, the key issue was the credibility of S.P. and Yarbrough. The statement in this case was an isolated incident, and no specific details of any prior conduct were revealed. We find the trial court did not abuse its discretion by denying Yarbrough's motion for mistrial.
Yarbrough also challenges a couple of instances of what he believes to have been prosecutorial misconduct during closing argument.
“[A]n objection is not required for alleged prosecutorial misconduct during opening and closing argument.” State v. Miller, 293 Kan. 535, 550, 264 P.3d 461 (2011). Claims of prosecutorial misconduct are analyzed under a familiar two-step analysis:
“First, the appellate court decides whether the remarks were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper remarks prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Adams, 292 Kan. 60, 66–67, 253 P.3d 5 (2011); State v. Huerta–Alvarez, 291 Kan. 247, 261, 243 P.3d 326 (2010); State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).” 293 Kan. at 550.
Yarbrough argues that the State committed prosecutorial misconduct during its closing argument by: (1) telling the jury to consider the courage it took S.P. to report the crime; and (2) telling the jury that Yarbrough's testimony could not be further from the truth.
The court in Miller discussed how, in determining if the prosecutor's remark is within the wide latitude allowed a prosecutor during his or her argument, an appellate court may consider whether the prosecutor's remark is provoked or made in response to defense counsel's remarks. 293 Kan. at 551 (citing State v. Hunt, 285 Kan. 855, 867, 176 P.3d 183 [2008] and State v. McKinney, 272 Kan. 331. 347–48,33 P.3d 234 [2001],overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 [2006] ). The prosecutor in Miller stated in rebuttal closing argument: “Think how frightened four-year-old [N.A.] was that night, when an adult family friend begins to touch her.' “ 293 Kan. at 551. The State argued the prosecutor's remark was not a request for the jury to feel sympathy for N.A. Rather, the remark was an appropriate response to Miller's closing argument, which questioned how N.A.'s mother did not see or hear anything if the attack occurred in the living room when she was nearby on the computer. The State maintains it was “ ‘asking the jury to understand why a four year old [sic] might be too frightened to yell out during an attack and too frightened to immediately report.’ “ 293 Kan. at 551.
The Miller court held the prosecutor's closing argument was within the wide latitude given a prosecutor because the remarks in rebuttal were an appropriate response to defense counsel's arguments and were not inappropriate in the context in which they were made. Consequently, the Miller court found no prosecutorial misconduct occurred, and it did not even address the second step of the prosecutorial misconduct analysis. 293 Kan. at 552.
In the first instance of alleged misconduct at Yarbrough's trial, the prosecutor was commenting on Brenda's testimony and how she chose to protect Yarbrough over her own daughter, hoping the situation would “just go away.” Next, the prosecutor stated:
“Thank God it didn't just go away. Thank God [S.P.] had the ability to talk to SRS and tell her what happened. And thank God [S .P.] has the guts to sit here in front of you 12 people and talk about this. I'm sure that cannot be easy. I'm sure it would be much easier for her to do that with a stranger as opposed to somebody who's been in her life for 10 years. Obviously, they haven't been 10 good years, but somebody who ... is her stepfather, someone she's partied with. It would be a lot easier if a stranger at Wal–Mart grabbed you in the parking lot, stuck his finger in your vagina and went on. Of course, there's no attachment there. But she had the courage to come in and talk about this.”
We are convinced the tone of the above-challenged statements by the prosecution was a response to defense counsel's statements in closing that S.P. was lying and her motive was to protect her mother from additional domestic abuse at the hands of Yarbrough. Repeated times, defense counsel expressed his feelings in closing argument that 14–year–old girls, like S.P., are liars:
“Ladies and gentlemen, I've been in this business for over 30 years, and I will tell you that the most dangerous instrument that I see in this world is a 14–year–old girl. They have the capacity and the ability in this day and age to say what they want in regard to sexual allegations, and boom, here we are....
....
“... This is a 14–year–old girl. She's been to school. They've got sex ed. in this community....
....
“... But remember what I said about 14–year–old girls. They are very dangerous, they will say things for the wrong reasons, and they will lie about things when they shouldn't.”
Applying our standard of review, similar to Miller, the prosecutor's comments about S.P.'s courage in coming forward against Yarbrough were within the wide latitude given a prosecutor because the remarks in rebuttal were an appropriate response to defense counsel's arguments. Consequently, there was no prosecutorial misconduct in this instance, and we need not address the prejudice step of the prosecutorial misconduct analysis.
The second allegation of prosecutorial misconduct occurred at the conclusion of the prosecutor's closing argument:
“[PROSECUTOR]: ... Ladies and gentleman, the evidence shows what [S.P.] testified about. The evidence shows what J.J. Serrato testified about. And the testimony presented by [Yarbrough] couldn't be further from the truth. And I would ask that you look
“THE COURT: [Prosecutor], please don't comment on the veracity of the witnesses.
[PROSECUTOR]: And you can compare the stories. And I say that—look at Mr. Yarbrough's story, look at the evidence in the case. And I would ask that you come back with a finding of guilt to the only count you're given. And I thank you for your time.”
A prosecutor is not permitted to express a personal opinion on the credibility of witnesses. State v. Pabst, 268 Kan. 501, 506–07, 996 P.2d 321 (2000). Other cases have held that suggestions that a defendant has had time to reflect on the evidence do not amount to misconduct. In State v. Davis, 275 Kan. 107, 122, 61 P.3d 701 (2003), the prosecutor stated in closing arguments that statements made in the heat of the moment are more likely true “ ‘than something that comes ten months later with plenty of time for reflection and creation.’ “ The court noted that the prosecutor did not blatantly call the defendant a liar and held that there was no prosecutorial misconduct. 275 Kan. at 122–23.
In Pabst, 268 Kan. 501, the court found there was prosecutorial misconduct when the prosecutor called the defendant a liar several times throughout the course of the closing arguments. Here, the prosecutor did not call Yarbrough a liar but did use a derivative of liar in stating that Yarbrough's testimony could not be further from the truth. In State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005), the court stated:
“In the instant case, in describing what the prosecutor argued were four versions of Elnicki's statements regarding the episode, she did not use the specific word ‘lie,’ but used terms such as ‘yarn,’ ‘fairy tale,’ ‘fabrication,’ ‘tall tale, and ‘spin.’ Nevertheless, in State v. Finley, 273 Kan. at 247, we held, ‘ Pabst informs us the use of the word ‘lie’ or its derivative should be avoided by prosecutors....' “
Although the statements in the present case could be interpreted as the prosecutor commenting on the credibility of the witness and guilt of the defendant, the comments are not so gross and flagrant as to prejudice the jury and deny the defendant a fair trial. See State v. McCorkendale, 267 Kan. 263, 279, 979 P.2d 1239 (1999). The trial court halted the prosecutor's train of thought with an admonishment for the prosecutor to avoid commenting on witnesses' veracity. This was an isolated incident. A jury is aware that the prosecutor believes the defendant is guilty. We find the prosecutor's comments did not deny Yarbrough a fair trial.
Next, Yarbrough claims the trial court erroneously instructed the jury regarding deliberations and the importance of reaching a verdict. Yarbrough contends that jury instruction No. 10 impermissibly pressured jurors to reach a unanimous verdict.
Yarbrough did not object to the instruction at trial. Where a party neither requested an instruction nor objected to its omission—as Yarbrough concedes he failed to do—the trial court's failure to give or reject an instruction is reviewed under a clearly erroneous standard. See K.S.A. 22–3414(3); State v. Richardson, 290 Kan. 176, 178, 224 P.3d 553 (2010). “ ‘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.’ “ State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Yarbrough's argument has previously been rejected by the court in State v. Cofield, 288 Kan. 367, 203 P.3d 1261 (2009). The Cofield court considered the same language, only it was contained in two separate instructions instead of all of the language packed into one instruction like No. 10 in the present case:
“This court has reviewed this type of instruction when given before deliberations commence and has concluded that the error, if any, is harmless. Most recently, in State v. Carter, 284 Kan. 312, 160 P.3d 457 (2007), the court addressed an argument substantially the same as presented in the present case. The court held:
I We have acknowledged that the outdated Allen-type instruction “has been the source of some controversy.” [Citation omitted.] We have disapproved of its use when given after deliberations have begun. [Citations omitted.] However, even in those situations, the giving of such an instruction has rarely resulted in a reversal. [Citation omitted.]
‘When, as here, the instruction accompanies all of the rest of the instructions given before deliberations begin, this court has concluded there is no error. [Citations omitted.] We will not depart from those holdings in this case. Even if it is not literally inevitable that “all cases ... must be decided sometime,” inclusion of the quoted language in this instruction, given before deliberations, does not render it clearly erroneous. [ State v.] Anthony, 282 Kan. [201,] 215–16[,] 45 P.3d 1 (2006) ]. There is no real possibility that the jury would have returned a different verdict had this instruction not been given.’ 284 Kan. at 330–31.
“Although the statement in instruction 20 that the case would have to be decided by a jury at some time was erroneous, our caselaw has established that the instruction does not constitute clear error.
“Cofield also objects to instruction 21 as being impermissibly coercive. The instruction, patterned on PIK Civ.3d 101.09, has previously been held not to be unduly coercive. State v. Hall, 220 Kan. 712, 718, 556 P.2d 413 (1976); State v. Cummings, 242 Kan. 84, 90–91, 744 P.2d 858 (1987). Cofield contends that Hall and Cummings were decided incorrectly and asks this court to reconsider those decisions.
....
“Although Cofield stresses that a juror might feel coerced into going along with the majority in order to reach a unanimous verdict, the language of the instruction as a whole mitigates against such coercion, expressly directing jurors to vote according to their honest judgment. This instruction was presented prior to deliberation, and there was no indication that the jury was close to being deadlocked. As this court noted in State v. Struzik, 269 Kan. 95, 109, 5 P.3d 502 (2000), ‘[o]ne of the primary concerns with an Allen-type instruction has always been its timing. When the instruction is given before jury deliberations, some of the questions as to its coercive effect are removed.’
“The previous rulings of this court have determined that neither instruction, when given prior to deliberations, constitutes error. The reasoning has been that unanimity does not favor either party and that, in the absence of a deadlock or a potential deadlock, the instructions lack an ‘explosive’ effect on jurors to move them from a set position. See Whitaker, 255 Kan. at 126.” 288 Kan. at 375–77.
We do not find the trial court's giving jury instruction No. 10 to be clearly erroneous
Next, Yarbrough argues the trial court erred by failing to give a limiting instruction when the jury heard evidence that he took S.P. to Wal–Mart to buy panties for a sexual performance, encouraged her to perform in the panties, and tape-recorded the performance. Yarbrough contends this evidence demonstrated the illegal promoting of a sexual performance by a minor. Yarbrough also cites other evidence that he touched S.P. and pulled up her panties, exposing the contours of her private parts, as prior bad acts evidence of indecent liberties with a child. He contends that with a limiting instruction, there is a real possibility the verdict would have been different.
K.S.A.2009 Supp. 60–455 governs the admission of evidence of other crimes or civil wrongs in this case:
“(a) Subject 10 K.S.A. 60–447, 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.
“(b) Subject to K.S.A. 60–445 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
....
“(d) Except as provided in K.S.A, 60–445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or K.S.A. 21–5401 through 21–5609, 21–6104, 21–6325, 21–6326, or 21–6418 through 21–6421, and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.”
If a district court admits K.S.A. 60–455 evidence, the court must provide a limiting instruction to the jury, identifying the specific purposes for which that evidence may be considered. State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006); see State v.. Magallanez, 290 Kan. 906. 918–19.235 P.3d 460 (2010).
Preliminarily, it is questionable whether Yarbrough preserved this issue for appeal. When a defendant fails to object to the admission of K.S.A. 60–455 evidence at trial, the defendant may not challenge the admission of that evidence on appeal. State v. Marler, 290 Kan. 119, 122–23, 223 P.3d 804 (2010); see State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). Following King, at least one panel of this court has applied the same rule to a defendant's challenge to the failure to provide a limiting instruction for K.S.A. 60–455 evidence. See State v. Whetstone, 43 Kan.App.2d 650, 653–54, 229 P.3d 399 (2010) (declining to review district court's failure to provide a limiting instruction for K.S.A. 60–455 evidence when defendant failed to file a motion in limine to exclude that evidence and failed to object to admission of that evidence at trial). Here, Yarbrough failed to object to testimony that he now challenges on appeal, and he failed to preserve this issue for appeal.
In any event, our Supreme Court has consistently applied the clearly erroneous standard in the context of the failure to provide a limiting instruction for K.S.A. 60–455 evidence. See, e.g., Magallanez, 290 Kan. at 918;Gunby, 282 Kan. at 58–59; see also State v. Mason, No. 100,240, 2009 WL 1393817, at *2–3 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1283 (2010) (reviewing defendant's claim that district court failed to give limiting instruction for K.S.A. 60–455 evidence under clearly erroneous standard, but discussing the difficulty in applying that standard when defendant neither requested the instruction, objected to its omission, or suggested what would have constituted an appropriate limiting instruction). The failure to give a jury instruction is clearly erroneous only if we are firmly convinced there is a real possibility the jury would have rendered a different verdict had the instruction been given. State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
We reject Yarbrough's argument that he was entitled to a limiting instruction under K.S.A. 60–455 on the contested evidence. We conclude that K.S.A. 60–455 is not applicable to this situation because the conduct at issue is not that of a prior crime but rather is conduct that occurred at the same time as the alleged crime. See State v. Gordon, No. 103,029, 2011 WL 420743, *2 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (2011); State v. Holloman, No. 101,538, 2010 WL 1687858, at *6–7 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1099 (2010) (possession of marijuana occurred at the same time as defendant's alleged possession of cocaine). The court recently stated in State v. Peppers, 294 Kan 377, 276 P.3d 148, 158 (2012):
“Our decision in Gunby eliminated res gestae as an independent basis for the admission of evidence. It did not eliminate the admission of evidence of events surrounding a commission of the crime under the applicable rules of evidence. In fact, as noted by the State, this court has determined that gang-related evidence can be admissible when the evidence ‘forms a part of the events surrounding the commission of the crime’ in post- Gunby cases. See Brown, 285 Kan. at 297 (citing Goodson, 281 Kan. at 922); see also Tatum, 281 Kan. at 1109;Winston, 281 Kan. at 1135.”
We conclude K.S.A. 60–455 was not implicated by the contested evidence Yarbrough challenges on appeal. Even under a clearly erroneous standard, there is no real possibility the jury would have returned a different verdict if a limiting instruction had been given. Accordingly, we conclude the trial court did not clearly err when it, sua sponte, failed to provide a limiting instruction.
Last, Yarbrough argues that even if we find the above errors to be harmless when viewed individually, his convictions should be reversed because the cumulative effect of the errors substantially prejudiced him and deprived him of his right to receive a fair trial. The only two errors alleged by Yarbrough on appeal that had merit were the admission of testimony of other sexual misconduct and the prosecutor's limited comment on the witness' credibility.
The testimony regarding additional sexual misconduct was not significant enough to cause us to believe there was any reasonable probability the inappropriate testimony affected the trial's outcome. Yarbrough had the benefit of the trial court's jury admonition to disregard the improper testimony. The statement was an isolated incident, and no specific details of any prior conduct were revealed. Any error was harmless.
With respect to the claimed prosecutorial misconduct, the trial court immediately admonished the prosecutor to avoid commenting on witnesses' veracity. It was an isolated incident. We conclude that Yarbrough was not harmed by the prosecutor's brief and ill-advised comment.
The issue is whether the cumulative effect of what are at most harmless errors was so great as to require reversal. A defendant is not entitled to a perfect trial, but a fair one. See State v. Ulate, 42 Kan.App.2d 971, 993, 219 P.3d 841 (2009); See also State v. Jones 47 Kan.App.2d 512, 276 P.3d 804, 814 (2012) (“But defendants are not entitled to a perfect trial. [Every practitioner at the bar will agree that such an event is rare indeed .] Defendants are entitled to a fair trial. Here, the prosecutor's questions did not so taint the trial as to require us to set aside the jury's verdict.”). The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
Our examination of the record as a whole leads us to conclude that these two incidents during the course of the trial did not deprive Yarbrough of a fair trial. Yarbrough is not entitled to relief under the cumulative error doctrine.
Affirmed.