Opinion
No. 104,494.
2012-06-8
STATE of Kansas, Appellee, v. Terry L. ANTALEK, Appellant.
Appeal from Sedgwick District Court; Jeffrey E. Goering, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey E. Goering, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Terry L. Antalek appeals his convictions for attempted first-degree murder, aggravated assault, and two counts of aggravated criminal sodomy. Antalek argues the trial court erred in refusing to admit the testimony of his daughter, that he was denied his right of self-representation by being refused legal materials in jail, he was denied effective assistance of counsel, the trial court erred in admitting testimony of the examining nurse, and that cumulative error denied him a fair trial. We affirm.
Antalek and his wife K.A. were married in February 1997. They had a son and a daughter who at the time of the events in this case, March 2007, were 9 and 6 years old respectively. Antalek also had an adult son, Ryan, from a previous marriage. In the months leading up to March 2007, Antalek and K.A. were experiencing some marital difficulties, including financial constraints because of hospital expenses for their daughter, Antalek's jealous personality, and K.A. wanted a separation. Approximately 2 weeks before the attempted murder, Antalek was hospitalized for an attempted suicide when he pointed a gun at himself and said that he was going to kill himself. K.A. said that Antalek was going to do it for the insurance money and because he was starting to see the dissolution of his marriage. Antalek was taken into custody and hospitalized at Osawatomie State Hospital (Osawatomie).
While at Osawatomie, Antalek and K.A. had phone conversations about their relationship-some good, some bad. K.A. does not dispute that she told physicians at Osawatomie that Antalek would be returning home to her and their two children when he was released. Specifically, Dr. Patil told K.A. that Antalek would need a lot of family support. However, K.A. testified that she intended to get a divorce and she wanted Antalek to get her and their daughter an apartment.
When Antalek was released from Osawatomie, the first thing he did when he returned to Wichita was to stop by K.A.'s place of business and get her cell phone out of her car. Antalek testified that he wanted to check her cell phone for messages from J.G., who Antalek claimed was responsible for their marital problems. He discovered that K.A. had in fact been in contact with J.G. Antalek had the phone service terminated later that day. He then picked up the children from school and went home.
K.A. said that when she returned home from work, Antalek was angry. She testified they talked about their relationship and she told him she wanted a divorce. Antalek testified he and his son went to a hockey game and got into an uncomfortable situation when they met one of their hockey buddies. Antalek said he became upset because the friend knew about the situation between K.A. and J.G. Antalek and his son went home and talked about moving to Texas. Antalek left again and visited a gentleman's club, but then returned and started drafting divorce papers on the computer. K.A. testified that when Antalek returned home, the kids were asleep, she was tired, and she went to bed.
The parties presented opposing testimony concerning the sexual events later that night. K.A. testified she was awakened shortly after midnight by Antalek pulling her clothes off. Antalek demanded they have sex and that she was going to perform her “wifely duties.” K.A. repeatedly told him no, but he forced himself on her and forced her to perform oral sex on him to get him aroused. K.A. said that Antalek told her he would break her neck if she did not comply. K.A. testified Antalek penetrated her vaginally and anally with his penis and a sex toy. K.A. testified she was able to sleep for an hour or so and realized that it was about time to wake the children for school. K.A. said Antalek forced her to perform another sex act, but she did not fight him this time just to get it over with and get out of the house for help.
K.A. got the children ready for school and said that Antalek was by her side the entire time—he “wouldn't let me leave the room without him.” Antalek told K.A. that she would not be going to work and needed to call in sick. Antalek drove the children to school with K.A. in the front passenger seat and the children in the back. K.A. testified that Antalek told her that if she tried to run when they got to school he would run her over and any kids that got in the way.
Antalek told a different story of the events leading up to this point in the timeline. He testified he got off the computer because he could not focus on the divorce papers and he crawled into bed with K.A. He told K.A. that maybe he could “get some of those friends with benefits.” Antalek said K.A. initially told him no, but that he began to scratch her back, which she enjoyed, and they spent the night making love. He said they had passionate kisses and she laid her head on his chest and played with the hair on his chest. Antalek said they fell asleep for awhile and when they woke up in the morning, K.A. jumped on top of him for more sex.
Antalek said they drove the kids to school and on the way home, he told K.A. he did not like the idea of a separation and he was not going to pay for her to live in an apartment. He testified that K.A. threatened that if he did not pay for an apartment she would tell everyone that he had raped her last night and because of his prior rape conviction everyone would believe her.
Antalek does not dispute what happened after the car ride home. Antalek said he was so “inflamed” by her threat of rape charges that he punched her in the mouth. K.A. jumped out of the car and ran across the street to the neighbor's house. She knocked on the door and screamed for help, but nobody was home. Antalek caught up with K.A., grabbed her around the neck, and dragged her back to their home. Antalek told K.A. she had “fucked up.” K.A. attempted to fight back, but realized that he had a knife. Another neighbor, Jaquelynne Smith and her daughter, heard K.A. screaming and came around to the front of their house to witness Antalek dragging K.A. across the street and into their house. Smith said that K.A. was trying to get away and she made eye contact with Antalek. Smith called the police.
Antalek dragged K.A. into their bedroom and forced her to take off her clothes. She said that Antalek cut off her bra and underwear with the knife. Antalek removed his own clothes, pushed her onto the bed, and then climbed on top of her. K.A. said they were both naked and Antalek told her he was going to kill her and chop her into little pieces. When Antalek heard the phone ring and the police knocking on the front door, he pushed a dresser up against the bedroom door and then got back on top of K.A. K.A. was able to block Antalek's attempt to stab her eye, but he cut her face. Antalek stabbed K.A. three times in the throat. K.A. testified that when the police got to the bedroom door, they were unable to open it because of the barricaded door. K.A. said that Antalek eventually moved the dresser after he took his time getting dressed. Antalek testified that he was actually holding the dresser against the door as he tried to think what to do next.
Antalek was arrested and K.A. was rushed to the hospital. Doctors at the hospital testified that K.A. suffered a superficial cut to her face and three puncture wounds to her neck, one of them a very deep, penetrating injury that lacerated her jugular vein.
Detective Scott Wiswell of the Wichita Police Department Sex Crimes unit interviewed Antalek about the incident. Antalek told him that he and K.A. had consensual sexual relations on the evening in question. He did not deny stabbing K.A. in the neck. Antalek told Wiswell he had told K.A. he was going to stab her in the neck as soon as the police arrived and he made good on the promise. Wiswell testified that Antalek told him that he wanted K.A. to be naked when she died and he wanted to be naked with her. Wiswell testified Antalek expressed frustration that K.A. would not die that morning and the reason he stabbed her three times was that she was not bleeding very much and “he said he plunged the knife in and then ripped it out, and the words that he used was that he just couldn't believe she wouldn't die.”
Antalek was charged with attempted first-degree murder, rape, aggravated assault, and two counts of aggravated criminal sodomy. Before this case ever got to trial, Antalek was afforded 23 continuances and his trial counsel was the eighth attorney appointed to represent him. The jury acquitted Antalek of the rape charge, but convicted him on all other counts. After denying Antalek's motion for a new trial and a motion for downward departure, the trial court sentenced him to a presumptive term of 618 months' incarceration on the attempted first-degree murder conviction, 147 months' incarceration on each of the aggravated criminal sodomy convictions, and 13 months' incarceration for aggravated assault. The trial court ordered the sentences of the attempted murder and one of the aggravated criminal sodomy convictions to run consecutively, and the remainder of the sentences to run concurrently for a total incarceration of 765 months.
Antalek first argues the trial court abused its discretion in refusing to admit his daughter's testimony that K.A. had coached her to say that Antalek had threatened to kill K.A.
Whether evidence has been properly excluded by the district court under the rules of evidence involves a multistep analysis. The Kansas Supreme Court has explained:
“We review the exclusion of evidence first by determining whether the evidence is relevant. K.S.A. 60–401(b) defines relevant evidence as ‘evidence having any tendency in reason to prove any material fact.’ This definition encompasses two components: (1) whether the evidence is probative; and (2) whether it is material. State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 (2009); State v.. Henson, 287 Kan. 574, 578, 197 P.3d 456 (2008). Probative evidence is evidence that ‘furnishes, establishes or contributes toward proof.’ Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998). Whether evidence was probative is reviewed under an abuse of discretion standard. Dixon, 289 Kan. at 69, Material evidence goes to a fact at issue that is significant under the substantive law of the case. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The determination of whether evidence is material is reviewed under a de novo standard. Dixon, 289 Kan. at 70.” State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010).
If the evidence is relevant,
“the evidentiary rules governing admission or exclusion of evidence are applied as a matter of law or in the exercise of judicial discretion, depending on the applicable rule. But, if the adequacy of the legal basis is questioned, appellate courts review this question de novo. Dixon, 289 Kan. at 70;State v. Gunby, 282 Kan. 39, 47–48, 144 P.3d 647 (2006).” Martinez, 290 Kan. at 1009.
Antalek argues that the exclusion of his daughter's testimony was fatal to his defense. “The exclusion of evidence that forms an integral part of the defendant's theory of the case violates the defendant's right to a fair trial. See State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). But the State accurately points out that the defendant's right to present a defense is subject to the rules of evidence and caselaw on the subject. See State v. Bornholdt, 261 Kan. 644, 666 932 P.2d 964 (1997).
Antalek maintains the trial court violated his right to a fair trial by excluding his testimony because the testimony would have shown that K.A. had coached her, K.A. was willing to have her own daughter commit perjury, and K.A. was ultimately lying about the sexual offenses.
The trial court gave great thought and exhibited great patience in working with Antalek as a pro se defendant at his trial. The court provided very specific factors in denying the daughter's testimony, namely that she was not on the State's witness list, was not an endorsed State's witness, she had said nothing incriminating to the case detectives who were investigating the case, the first time the statement was made was in the courtroom to the judge during a voir dire, the statement was sought for impeachment purposes only, and most importantly, the statement was made out of the presence of the jury.
The trial court's decision was sound. The jury never heard the daughter's statement so there was no need to impeach that statement before the jury. While testimony that K.A. coached her to make the statement somewhat impeaches K.A.'s credibility, outside of Antalek's statement that he thought he could get his daughter to say she was coached, there is no evidence that she had been coached.
Antalek also argues that his daughter's testimony was relevant to explain the mood in the house that night, whether she heard anything happen throughout the night, and the mood in the car on the ride to school that day.
Antalek did not seek admission of his daughter's testimony based on these reasons at trial. Consequently, this new objection is improperly alleged for the first time on appeal and we will not consider it. See State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011) (A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground).
Even if it was error to exclude the daughter's testimony—which it was not—the erroneous exclusion of evidence is subject to an analysis for harmlessness under K.S.A. 60–261. State v. Shadden, 290 Kan. 803, Syl. ¶ 18, 235 P.3d 436 (2010). Antalek's due process right to present a defense was not implicated, as he presented his own testimony that K.A. was lying, with corroboration from his son Ryan who testified that K.A. told him that “she wouldn't actually consider it being rape, that she never told you no or forcefully tried to keep you from having sex with her, that it was more of a consensual deal.” See State v. Pennington, 281 Kan. 426, 439, 132 P.3d 902 (2006) (“The defendant's fundamental right to a fair trial is violated if relevant, admissible, and noncumulative evidence which is an integral part of the theory of the defense is excluded.” [Emphasis added.] ).
Most importantly, the jury must have believed Antalek's defense because he was acquitted of the most serious of the sex charges—the rape charge. Thus, even if the exclusion had been error, the State carried its burden to demonstrate that it was harmless. See State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012). Further, the inferential evidence that K.A. was lying because she would go to the extremes of coaching her own daughter to lie was cumulative evidence attacking K.A.'s credibility and harmless under K.S.A. 60–261 (evidentiary error not grounds for new trial unless inconsistent with substantial justice); See also State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (reasonable probability that error will or did affect the outcome of the trial in light of the entire record).
Next, Antalek argues he was denied access to the courts and his right to self representation when prison officials refused his request for legal materials.
Whether Antalek was denied access to the courts or access to legal materials—a denial of due process—is a question of law reviewed de novo. See State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008) (we review de novo whether a trial court's ruling violated a criminal defendant's right to due process).
On the last day of trial, Antalek told the court:
“I had plenty of time to rest in a very nice, quiet cell. I didn't have anyone to bother me, and, in fact—and I want to put it on the record that while I was in that cell they denied me my legal materials, and I made a request three times for my legal materials while I was in there. So I think that was inappropriate.”
At sentencing, in the context of his motion for new trial, Antalek argued:
“I would argue, Your Honor, that during the trial there were several things that violated my rights. Number one is that during the trial I was placed into—on a Thursday, prior to the Friday when we had closing arguments, I was placed into a suicide cell, was denied my legal notes that I had had from the day. I was denied the right to have pencil and paper with which to prepare my closing arguments. Therefore, I had to rely on Mr. Sullivan to do my closing arguments. I believe that had I been afforded the opportunity to present my own closing arguments and prepare them, that the outcome of the trial would have been different.”
The Sixth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation. State v. Vann, 280 Kan. 782, Syl. ¶ 2, 127 P.3d 307 (2006). A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel. See Vann, 280 Kan. 782, Syl. ¶ 3. “The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” (Emphasis added.) Faretta v. California, 422 U.S. 806, 819–20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
A petitioner alleging a violation of his or her right of access to the courts must establish some actual impairment of that right, not merely a theoretical one. Lewis v. Casey, 518 U.S. 343, 351–52, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Smith v. McKune, 31 Kan.App.2d 984, 990, 76 P.3d 1060,rev. denied 277 Kan. 925 (2003).
Antalek cites Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), for his argument that he was effectively denied the right to represent himself because he was denied legal materials. In Bounds, the United States Supreme Court considered an appeal by prison inmates who claimed that they were denied access to law libraries or legal assistance to challenge their sentences and conditions of imprisonment. The Bounds court held: “[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates [who are not entitled to court-appointed counsel] in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. at 828.
Later, the United States Supreme Court in Lewis v. Casey, 518 U.S. 351, stated: “ Bounds did not create an abstract, freestanding right to a law library,” but acknowledged “the (already well-established) right of access to the courts. [Citation omitted.]” Antalek cites Bounds for the court's statement: “It is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents with notarial services to authenticate them, and with stamps to mail them.” 430 U.S. at 824.
Although Antalek's restriction of legal materials was untimely because it happened the day before closing arguments, the untimeliness was not related to the trial of the case or an intentional denial of materials. Rather, the restriction was due to the administrative regulations of the jail and the fact that he was on suicide watch and put in a suicide-prevention cell. Antalek does not dispute that he was very emotional after the day's events in his trial because of the viewing of the suicide videos he made prior to his suicide attempt and brief stay at Osawatomie. On the last day of trial, Antalek conceded this emotional response when he told the court:
“Well, I just wanted to make sure the court didn't think that I was being pushed over the edge by some witnesses' testimony or by viewing some emotional video. I'm perfectly fine. I have things to live for.
“Again, I apologize for the emotional response yesterday in watching the video. It's not easy to look back and record your emotional nightmare in the past and see it in front of the public, but now I—after doing some time in my pseudo-suicide cell, I had the opportunity to think about some of the statements that were made in the courtroom....”
At odds in this case is Antalek's right to represent himself and have access to legal materials and the administration of a jail and its duty to prisoners. The Kansas Supreme Court recently affirmed the duty of jailers to take reasonable steps to prevent prisoners from being harmed or harming themselves, specifically potential suicide situations. See Thomas v. County Com'rs of Shawnee County, 293 Kan. 208, 262 P.3d 336 (2011). The Thomas court relied on the following authority:
“[A] ‘majority of courts [in other jurisdictions] hold that the sheriff or other officer owes a duty to the prisoner to keep him safely and to protect him from unnecessary harm, and it has also been held that the officer must exercise reasonable and ordinary care for the life and health of the prisoner.’ Annot., 14 A.L.R.2d 353 § 2[a] (citing series of cases including: Smith v. Miller, 241 Iowa 625, 628, 40 N.W.2d 597 [1950] [sheriff owes general duty to prisoners to save from harm; sheriff liable for negligence causing injury, death]; City of Topeka v. Boutwell, 53 Kan. 20, 20, 35 P. 819 [1894] [duty of keepers of jail to treat prisoners humanely]; O'Dell v. Goodsell, 149 Neb. 261, 265, 30 N.W.2d 906 [1948] [sheriff bound to exercise control, management of jail to degree of care necessary for reasonably adequate protection of prisoners]; City of Belen v. Harrell, 93 N.M. 601, 603, 603 P.2d 711 [1979] [jail custodian has duty to exercise reasonable, ordinary care for protection of life, health of person in custody] ).” 293 Kan. at 223.
In the case at bar, the trial court denied Antalek's motion for a new trial, in part, by stating that it had very little control over jail administration. The court stated that it really was not an issue of whether or not the court could have prevented the situation, but what recourse was available to Antalek after the trial resumed the next day. The court stated Antalek's remedy was to ask for a continuance of the closing argument so he could review the legal materials and prepare an argument or alternatively ask his appointed attorney to give the closing argument. The court held that Antalek was representing himself at the time and it was his decision, whether he knew it or not, and he chose to have his appointed attorney give the closing argument. The trial court pointed out that Antalek's attorney did a good enough job in the case, including the closing argument, that Antalek was acquitted of the very serious charge of rape. The court stated it was difficult to find any prejudice that resulted from Antalek's attorney giving the closing argument.
When Antalek argued that he was denied his notes, pen, and paper so he could prepare a closing argument, the only prejudice he alleged was that if he would have been afforded the opportunity to prepare and present his own closing arguments, the outcome of the trial would have been different. We are not convinced by this general plea. We pause to note that on the second to last day of trial, Antalek proceeded pro se most of the day. It was not until he became emotional at the end of that day that he did not want to proceed pro se any longer and wanted his attorney to again take over the case. As Antalek sat in the suicide-prevention cell, his attorney was back in control of the case. Since he was not pro se at that point, there was no guarantee that the trial court would have even let Antalek return to pro se status. However, upon Antalek's return to court the next morning, the trial court obliged him and allowed him return to pro se status. As the trial court repeatedly pointed out, it was not a good idea for Antalek to represent himself, but the direction of the case was back in Antalek's control.
In State v. Brockenshire, 26 Kan.App.2d 902, 907, 995 P.2d 905,rev. denied 269 Kan. 935 (2000), the court relied on Bounds and Lewis, among other cases, and held:
“A defendant's right to represent himself or herself does not obligate officials to provide a defendant held in custody pending trial access to a law library, where alternate means are available. When a defendant alleges a violation of his or her right to effectively represent himself or herself, the defendant is required to show actual injury to that right.”
In Smith v. Harvey County Jail, 889 F.Supp. 426, 431 (D.Kan.1995), the court stated that a prisoner's “right of access to the court is adequately protected where the [prisoner] is represented by counsel, even if the [prisoner] is not allowed access to legal materials to personally conduct legal research. [Citations omitted.]”
During the time that Antalek was denied his notes, pen, and paper, his shadow counsel was preparing a closing argument. Antalek's attorney arrived at the trial on the morning of the last day prepared to deliver the closing argument to the jury. It was not until Antalek again asked to proceed pro se was there any doubt that appointed counsel would be giving the closing. As for the content of the closing argument, appointed counsel argued Antalek's defenses that the sex acts were consensual and that he never intended to kill K.A. It is also worth noting that Antalek took the stand in the defense case-in-chief and gave an over 30–minute, mostly uninterrupted, recitation of his version of the events and his defenses. We are hard pressed to find, nor does Antalek allege, there were any additional arguments that he or his appointed attorney could have given at closing argument. See Battrick v. State, 267 Kan. 389, 396, 985 P.2d 707 (1999) (A person's right to access the courts means having a reasonable opportunity to present his or her judicial claims.).
Next, Antalek claims that his trial counsel was ineffective, denying him his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 685–86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But Antalek did not raise this issue in district court. As the State points out, absent extraordinary circumstances, an appellate court will not consider an allegation of ineffective assistance of counsel raised for the first time on appeal. Trotter v. State, 288 Kan. 112, Syl. ¶ 10, 200 P.3d 1236 (2009). One reason for this rule is because the district court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court and should be the first to make a determination of such issue. Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009).
A defendant's remedy for ineffective assistance of counsel is generally confined to a motion under K.S.A. 60–1507 and will not be resolved on direct appeal. However, our Supreme Court has carved out an exception allowing an appellate court to remand the case to the district court to consider the defendant's ineffective assistance of counsel claim prior to a final decision on the appeal. See State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986). In seeking remand, however, it is incumbent on appellant's counsel to do more than read the record and determine that he or she would have handled things differently. “[T]o assert a claim of ineffective assistance of counsel without any independent inquiry and investigation apart from reading the record is questionable to say the least.” 239 Kan. at 120–21.
Here, Antalek has not argued for a Van Cleave remand and his appellate counsel does not contend that any independent inquiry or investigation has been performed concerning Antalek's claim of ineffective assistance of trial counsel. This court is not in position to resolve Antalek's ineffective assistance of counsel claim based on the record on appeal. Thus, we decline to address the merits of this issue in Antelek's direct appeal.
Next, Antaiek argues the trial court abused its discretion in admitting testimony from the nurse examiner that K.A.'s injuries were painful. On appeal, Antaiek states that “the State moved to admit testimony from SANE nurse Kathy Gill–Hopple that K.A.'s injuries to her vagina and anal areas were painful.” (Emphasis added.) A reading of the trial transcript demonstrates that Nurse Gill–Hopple was only being questioned about anal tearing when the challenged testimony occurred. During redirect by the State, the following questioning occurred by the prosecutor:
“Q. Just one point of clarification. Counsel just asked you if the analtearing could've been a forceful injury or consensual. The fact that there are lacerations, would that not mean that they are a forceful injury, period?
“A. It would make sense to me.
“Q. Where they're consensual or not is not your particular area?
“A. That is true.
“Q. Were they painful? Would you be able to say that?
“A. Absolutely, yes.
[DEFENSE COUNSEL]: Objection. Speculation.
“THE COURT: I think she can offer based on her area of expertise.
“A. Based on my experience, I would say they were very painful.”
Antaiek argues the prosecutor's line of questioning called for speculation by Gill–Hopple and was highly prejudicial because it showed that the sexual intercourse was not consensual. Antaiek contends that everyone has a different threshold of pain and it was improper for Gill–Hopple to speculate that K.A.'s injuries would be painful. Antaiek also states that whether an injury is painful is not outside of the general understanding of a lay person and the jury can make the determination whether K.A.'s injuries were painful.
We have previously discussed our standard of review. Once relevance and materiality have been proven, the trial court's decision to admit evidence is subject to an abuse of discretion standard. We review the admission of evidence to determine whether the district court abused its discretion. State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004). An abuse of discretion occurs if substantial competent evidence does not support a factual finding that is a prerequisite to a conclusion of law or upon which the exercise of discretion is based. Ward, 292 Kan. at 550.
“ ‘Generally, the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion.’ “ State v. Reyna, 290 Kan. 666, 682, 234 P.3d 761 (2010) (quoting State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 [2008] );K.S.A. 60–456(b)(2) (expert testimony is within the scope of the special knowledge, skill, experience or training possessed by the witness.). The party alleging the abuse of discretion bears the burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001).
Further, if a trial court abuses its discretion in admitting expert testimony, the error is subject to harmlessness analysis. State v. Carapezza, 286 Kan. 992, 1005, 191 P.3d 256 (2008). K .S.A. 60–261 requires the court to find an erroneous admission of evidence to be harmless unless it “affects the defendant's substantial rights.” 286 Kan. at 1005. In Ward, the court confirmed that the standard for harmlessness of nonconstitutional error is whether the court is persuaded that there is no reasonable probability that the error affected the outcome of the trial. 292 Kan. at 565–66. The burden of demonstrating harmlessness of a nonconstitutional error is on the party benefiting from the error. See McCullough, 293 Kan. 970, Syl. ¶ 9.
The admission of Gill–Hopple's testimony that the anal tears suffered by K.A. were very painful was harmless if it was erroneous. K.A. herself testified that the anal penetration was painful. Gill–Hopple repeatedly testified that she had no opinion one way or the other whether K.A.'s injuries were as a result of consensual or nonconsensual activity—the ultimate issue in the case. We are convinced the admission of Gill–Hopple's testimony was harmless beyond a reasonable doubt.
Last, Antalek argues that cumulative trial errors require the reversal of his convictions because these errors deprived him of the right to a fair trial.
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. [Citation omitted.]” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).
Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. The only claim by Antalek with merit is the admission of Gill–Hopple's opinion. That one error was harmless and not sufficient for cumulative error. “One error is insufficient to support reversal under the cumulative effect rule. [Citation omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Affirmed.