Opinion
Nos. 107,375 107,376.
2013-10-11
STATE of Kansas, Appellee, v. Richard GONZALEZ, Appellant.
Appeal from Douglas District Court; Sally D. Pokorny, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Crystalyn Oswald, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Sally D. Pokorny, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Crystalyn Oswald, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Richard Gonzalez of aggravated sodomy and aggravated indecent liberties with a 4–year–old child. Gonzalez seeks a new trial based on three allegations of evidentiary error and a claim of prosecutorial misconduct during closing arguments. He also raises case-specific challenges to the constitutionality of his two hard 25 life sentences imposed for both crimes under Jessica's Law. We find no error related to these claims and therefore affirm Gonzalez' convictions. Finally, Gonzalez argues, and the State concedes, that the sentencing court could not order that Gonzalez be subjected to lifetime monitoring upon his release to parole. Accordingly, we remand this case to the district court for entry of a nunc pro tunc order deleting the reference in the journal entry to lifetime electronic monitoring.
Factual and Procedural History
On July 13, 2009, R.K. was 4 years old and attended Gloria Windholz' home daycare. Richard Gonzalez was Windholz' father and resided at the home. Gonzalez went by “Grandpa” among the children. During naptime, the other children slept in one room on cots while R.K. stayed in the living room because she was transitioning away from naptime.
On August 25, 2009, while R.K.'s mother was taking her to swim lessons, Mother asked R.K. if she had taken a nap during the day. R .K. responded that she did not take a nap because Grandpa kept bothering her. Mother asked R.K. what she meant, and R.K. responded, “ ‘Well, he makes me suck on his fingers.’ “ Mother then asked R.K. why Grandpa did that and R.K. stated, “ ‘I don't know. He sticks his finger in my poopie hole and it hurts.’ “ Mother then asked R.K. where Windholz was at the time, and R.K. told her that she was resting upstairs. Mother also asked R.K. if she had told Windholz about the incident, and R.K. responded in the negative. Mother went on to R.K.'s swim lesson because she did not want to scare R.K. or for her to think that anything was wrong.
After R.K.'s swim lesson, Mother and Father took R.K. to Lawrence Memorial Hospital but were then directed to take R.K. to Stormont–Vail in Topeka, Kansas. At Stormont–Vail a nurse proceeded with a vaginal exam of R.K. and took some swabs. Mother also gave law enforcement the underwear that R.K. was wearing that day because she noticed a white spot on them.
Two days later, on August 27, 2009, Detective Rita Fulton–Mays and Lindsay Bishop, a social work specialist, interviewed R.K. about the incident with Grandpa. The interview was videotaped and shown at the jury trial. During the interview, R.K. told Bishop that she did not like napping on the couch because “Grandpa keeps doing stuff to me.” R.K. told Bishop that Grandpa holds and touches her cheeks; i.e., her buttocks. In addition, R.K. said that Grandpa makes her suck his fingers and that he sucks her fingers. R.K. then said that Grandpa put his finger up R.K.'s poopie spot; i.e., her anus. She said that Grandpa also licked her anus, her tummy, and her buttocks. R.K. said that Grandpa touched her potty parts; i.e., her vagina. At the end of the interview, using anatomically correct male and female dolls, R.K. described that Grandpa put his finger in her anus and that “it hurt so bad.” Using the dolls, she also showed Bishop that Grandpa showed her his wee wee/pee pee; i.e., his penis, and made her touch it.
Joy Thomas, a nurse at Stormont–Vail, performed the sexual assault examination on R.K. During the exam Thomas noticed redness around the anal area. She also noticed that there was petechiae at the 6 o'clock location and an abrasion at the 7 o'clock location of R.K.'s rectum. Thomas determined that the petechiae and the abrasion were abnormal and could have been caused by the penetration of any hard object, such as a finger, but could also be caused by a hard stool. Thomas indicated that the petechiae was more consistent with an object going in rather than coming out. Thomas also took swabs from R.K.'s anal area and DNA samples from R.K.'s mouth.
Gonzalez voluntarily provided a DNA sample from the inside of his cheek. Gonzalez' and R.K.'s DNA samples as well as R.K.'s underwear were sent to the Kansas Bureau of Investigation (KBI) to be tested. The results indicated that there were traces of amylase on R.K.'s underwear that were consistent with Gonzalez' Y DNA which occurred once in 1,786 individuals in the general population.
On March 5, 2010, the State charged Gonzalez with one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child.
The jury found Gonzalez guilty of both aggravated criminal sodomy and aggravated indecent liberties with a child. The sentencing court sentenced Gonzalez to two concurrent hard 25 life sentences with lifetime electronic monitoring while on parole.
Gonzalez filed a timely notice of appeal.
Admission of the Videotape
Two days after R.K. reported to her mother that Grandpa bothered her during naptime, she was interviewed by a social work specialist about her interaction with Grandpa/Gonzalez. The interview was videotaped.
At trial, R.K. was presented as a witness. During her direct testimony, R.K. remembered that Gloria had a dad that lived at the day care and that R.K. took naps at the daycare on the couch. She remembered no one else was in the room with her when she took her naps, but Gloria's dad would come into the room during naptime. She further reported that she told her mother what happened to her during naptime and she remembered speaking to Lindsay, the social work specialist, about naptime and Grandpa. She stated she did not remember anything else and she did not want to talk about it. The prosecutor pressed her on her failure to remember details:
“Q. Okay. And, [R.K.], is this something you don't want to talk about today?
“A. I don't want to talk about it today.
“Q. Okay. Are you saying you don't remember because you don't want to talk, or because you really don't remember?
“A. I really don't remember.”
The defense then cross-examined R.K. and asked her about naps, her imaginary friends, and whether her imaginary friends bothered her during naps. R.K. responded that she liked naps and that her imaginary friends never bothered her during naps. That was the extent of the cross-examination. The defense never questioned R.K. about Gonzalez or what happened during naptime at Windholz' day care. It should also be noted that the district court never made a finding that R.K. was unavailable.
The videotaped interview of R.K. was admitted during Bishop's testimony after R.K. was excused from the witness stand.
Gonzalez argues that R.K. was unavailable as a witness when the videotaped interview was shown to the jury and should not have been admitted as evidence because he did not have the opportunity to confront R.K. about the allegations she made against him. Because of this, his right to confront R.K. was denied and such an error was not harmless.
A criminal defendant has the right “to be confronted with witnesses against him” under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Similarly, a criminal defendant has the right “to meet the witness[es] face to face” under § 10 of the Kansas Constitution Bill of Rights. The United States Supreme Court, in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), determined that testimonial hearsay statements are inadmissible unless the declarant is unavailable to testify and the criminal defendant had a prior opportunity to cross-examine the declarant. R.K.'s interview with Bishop was testimonial. See State v. Henderson, 284 Kan. 267, 281–94, 160 P.3d 776 (2007).
Appellate courts use a de novo standard of review when considering issues pertaining to the Confrontation Clause. State v. Noah, 284 Kan. 608, 612, 162 P.3d 799 (2007). If a court determines that a criminal defendant's right to confrontation has been violated, the constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is applied. Henderson, 284 Kan. at 294.
Gonzalez relies on State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980), for his argument that R.K. was unavailable as a witness because she never repeated any of the allegations she made previously against Gonzalez and because she could not remember what happened during naptime at Windholz' daycare. In Lomax & Williams, our Supreme Court found that when a witness completely fails to testify regarding the events in question, then that witness is unavailable for cross-examination and the admission of previous allegations violates a criminal defendant's right to confrontation. 227 Kan. at 660–62. However, the court also distinguished the facts in Lomax & Williams by stating: “This is not a case where a witness, acting in good faith, was unable to testify as to the subject matter of her prior statement because, through no fault of her own, she had lost her memory in regard to such events.” 227 Kan. at 661–62.
The State primarily relies on State v. Stafford, 296 Kan. 25, 49, 290 P.3d 562 (2012), where our Supreme Court relied on State v.. Osby, 246 Kan. 621, 632–33, 793 P.2d 243 (1990), for the following rule on witness unavailability:
“[I]f the declarant, while testifying at trial, answers some questions concerning the subject matter of the out-of-court statement, yet refuses or is unable to answer other questions, the declarant is considered ‘available’ for cross-examination and, accordingly, his or her prior out-of-court statement may be properly admitted into evidence under K.S.A 60–460(a).” Stafford, 296 Kan. at 49.
Because R.K. was able to testify that she attended Windholz' daycare; that she was the only child who took naps on the couch; that she remembered Gonzalez being at the daycare; that she saw Gonzalez during her naptime; that she told her mother what had occurred at naptime; and she told Bishop what had occurred at naptime, then R.K. is considered an available witness despite the fact that she could not remember what occurred during her naptime at Windholz' daycare.
Therefore, because R.K. was available for cross-examination and because Gonzalez did, in fact, cross-examine her, then the admission of the videotaped interview was not a violation of Gonzalez' right to confrontation. Merely because Gonzalez chose not to cross-examine R.K. on the events that occurred during naptime does not result in R.K.'s unavailability as a witness.
Brady Violation and K.S.A. 21–2512
Because the State failed to provide Gonzalez with the test results of the anal swabs taken from R.K. until after his conviction and sentence, which show that his DNA was not found on the swabs, he asserts that the State committed a Brady violation and that he should be granted a new trial. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d. 215 (1963) (prosecutors have a positive duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment). In addition, he contends that the test results constitute newly discovered evidence under K.S.A. 21–2512, which would also require a new trial.
“The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A.2012 Supp. 22–3501. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Warrior, 294 Kan. 484, 510, 277 P.3d 1111 (2012). However, an appellate court exercises unlimited review on a district court's determination as to the existence of a Brady violation with deference given to district court's findings of fact. See Warrior, 294 Kan. 484, Syl. ¶ 13.
Brady Violation
During R.K.'s examination at the hospital, two anal swab samples were taken and given to law enforcement. The KBI screened the two swabs, but the swabs were not sent on for DNA testing. After the trial and sentencing were complete, a KBI employee reviewed the file and noticed a discrepancy between the report and the case notes performed by the screener. The report indicated that amylase was not found on the swabs, but according to the screener's notes, there had not been amylase testing done on the swabs. Because of this discrepancy, the swabs were returned to the KBI and a DNA test was performed. The test indicated that there was no male DNA on the swabs. However, because R.K. went to swim lessons before the swabs were taken, the possibility was reduced that any other DNA could be obtained.
In addition, a question arose about the terms “preserved” and “not preserved” used by the KBI. When a sample is preserved it means the KBI keeps the sample, but when a sample is not preserved it means that the sample is sent back to the contributor. In this case, after the initial testing, the two swabs were not preserved so they were returned to the Douglas County Sheriff's Office.
Gonzalez filed a motion for new trial and asserted that because the swabs tested negative for male DNA then this evidence is exculpatory and the State failed in its duty to provide all exculpatory evidence. Because of this failure to provide exculpatory evidence, the State violated Gonzalez' due process rights under Brady, 373 U.S. at 87.
The State has a duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment, regardless of whether the prosecution acted in good or bad faith. See Brady, 373 U.S. at 87;Warrior, 294 Kan. 484, Syl. ¶ 7. There are three components or essential elements to a claim that a criminal defendant's rights, under Brady, have been violated: “(1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.” Warrior, 294 Kan. 484, Syl. ¶ 10.
Addressing the first element needed to show that there was a Brady violation, exculpatory evidence is evidence that “ ‘tends to disprove a fact in issue which is material to guilt or punishment .’ “ State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997), disapproved on other grounds Warrior, 294 Kan. 484. It does appear that the lack of male DNA on the swabs could have been used to impeach any testimony that Gonzalez digitally penetrated R.K.'s anus. However, the lack of male DNA on the swabs could have been caused by the fact that R.K. attended her swim lesson just before the swabs were taken.
The second element to consider regarding a Brady violation is the State's suppression of the evidence. In this case, the swabs were returned to the Douglas County Sheriff's Office and may not have been accurately tested by the KBI; so, in the interests of thoroughness, the swabs were returned to the KBI and were fully tested, which established that there was no male DNA on either of the swabs. In the original testing report, it indicated that the swabs had not been preserved. Defense counsel assumed that meant discarded; however, “not preserved” merely meant that the samples were returned to the original contributor. Thus, the two samples were always available and had not been discarded. It appears that defense counsel was unaware of the evidentiary procedures, specifically for DNA test results and items, used by the State. There is no Brady violation when the information in question was available to the defendant through reasonable diligence. See State v. Wilson, 41 Kan.App.2d 37, 51, 200 P.3d 1283 (2008). In essence, defense counsel is blaming the State for defense counsel's own ignorance. Because defense counsel could have obtained the two samples through reasonable diligence, the State did not suppress evidence.
Finally addressing the third element needed for a Brady violation, the evidence must be material so as to establish prejudice. “ ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.’ [Citations omitted.]” Warrior, 294 Kan. at 507. The reasonable probability test does not require that disclosure of the evidence in question would result in the acquittal of the defendant. “Instead, it must be shown that ‘ “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” [Citation omitted.]’ [Citation omitted.]” 294 Kan. at 508.
In this case, it was not merely an evidentiary case of he said/she said. Thomas testified that there were petechiae at the 6 o'clock location and an abrasion at the 7 o'clock location of R.K.'s rectum. Thomas determined that the petechiae and the abrasion were abnormal and could have been caused by the penetration of any hard object, such as a finger, but could also be caused by a hard stool. Thomas indicated that the petechiae were more consistent with an object going in rather than coming out. In addition, R.K.'s underwear had traces of amylase DNA that were consistent with Gonzalez' DNA. Merely because the two anal swabs did not have male DNA does not put the whole case in a different light or undermine the confidence in the verdict. In addition to the independent physical evidence, the video of the interview with R.K. has been independently reviewed by this court. The detail with which R.K. described, without prompting, what Gonzalez did to her was compelling evidence of his guilt.
Gonzalez has failed to prove all three elements required in a request for new trial based upon a Brady violation. Although the State failed to disclose the fact that there was no male DNA evidence on the two anal swabs, which could be used as impeachment evidence, Gonzalez failed to show that the State suppressed the evidence and that the evidence was material so as to show prejudice. Therefore, the district court's denial of his motion for new trial was not an abuse of discretion.
K.S.A. 21–2512Although both parties question whether K.S.A. 21–2512 applies, it is of little matter because the same result would occur under this sub-issue as under the Brady violation analysis.
K.S.A. 21–2512(f)(2) provides the following:
“If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner; or
(iv) granting a new trial.”
When reviewing a district court's decision denying a motion for new trial under K.S.A. 21–2512, our appellate courts
“conduct a de novo review of the determination of whether the evidence has favorable probative value, giving deference to the district court's factual findings. Consistent with Kansas' long-standing standard, we will determine if a reasonable person would agree with the district court's decision regarding whether the postconviction DNA test results were not of such materiality that a reasonable probability exists that it would result in a different outcome at trial.” Haddock v. State, 295 Kan. 738, 765, 286 P.3d 837 (2012).
Based upon the above Brady violation analysis on materiality, Gonzalez again fails to show that the evidence would create a reasonable probability that would result in a different outcome at trial. Therefore, the district court did not abuse its discretion when it denied Gonzalez' motion for new trial under K.S.A. 21–2512.
Limitation on the Scope of Gonzalez' Closing Argument
During closing argument the defense attorney stated the following, to which the prosecutor objected:
“Ladies and gentlemen, you've heard that he lived with Gloria Windholz for ten years while she was providing a day care. Hear about anything else like this ever happening? Don't think for a moment that the State would have hesitated to bring it in front of you if they had.
“[STATE]: Your Honor, I am going to object at that point because that's
“THE COURT: Sustained.
“[STATE]:—improper.
“[DEFENSE]: Nothing. Ten years been with this daughter while she's running this day care, not a single allegation, not a whiff of anything, nothing.
“THE COURT: [Defense].
“[STATE]: I
“THE COURT: I've already ordered that that's not argument to the jury.”
Gonzalez argues that the district court deprived him of his right to present his theory of defense during closing argument when he was not allowed to argue that the State would have brought in evidence of other similar crimes if there had been any such evidence. Because of this, Gonzalez believes that his convictions should be reversed and the case should be remanded for a new trial. The State contends that Gonzalez has improperly characterized his argument and that it is more in line with the district court's ability to limit closing arguments to facts that have been admitted into evidence and that the argument was an attempt to vouch for Gonzalez' credibility.
Since the scope of closing argument is within the district court's discretion, this court examines the record for any abuse of that discretion; i.e., a ruling on the scope of closing argument that no reasonable judge would make. See State v. Kuone, 243 Kan. 218, 234, 757 P.2d 289 (1998); State v. Williams, No. 98,603, 2008 WL 4966472 (Kan.App.2008) (unpublished opinion), rev. denied 289 Kan. 1285 (2009); State v. Monies, 28 Kan.App.2d 768, 775, 21 P.3d 592,rev. denied 271 Kan. 1040 (2001).
Gonzalez relies on State v. Broyles, 272 Kan. 823, 831, 36 P.3d 259 (2001), for the proposition that
“it is not reversible error for either party to comment during closing argument on the failure of the other party to produce witness testimony that would presumably bolster that party's theory, so long as the witnesses were available to the party and the argument would not infringe on the defendant's right to remain silent.”
Gonzalez contends that his argument was an attempt to comment on the State's failure to present any witness testimony regarding Gonzalez' past criminal history, or lack thereof, towards children. However, Gonzalez' arguments fails to acknowledge that there were no witnesses presented or available to Gonzalez or the State to support the argument that the State would have brought in evidence of previous similar crimes if there had been any. Thus, Broyles is of no use to Gonzalez.
In essence, defense counsel was speculating that the State would have brought in evidence of previous criminal activity similar to the evidence presented at trial if there had been any evidence of the sort available. This argument is founded on facts that were not admitted at the jury trial. “In summing-up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it. [Citations omitted.]” State v. Johnson, 210 Kan. 288, 296–97, 502 P.2d 802 (1972). Therefore, the district court did not abuse its discretion when it limited Gonzalez' scope in closing argument.
Prosecutorial Misconduct
Gonzalez argues that the State committed prosecutorial misconduct during closing argument by appealing to the jury to protect R.K. and by misstating the applicable law regarding multiple acts. We will examine each alleged error in turn after first examining our standard of review.
Standard of Review
A two-step analysis is applied to allegations of prosecutorial misconduct. First, an appellate court must consider whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. If so, it then must determine whether those comments prejudiced the jury against the defendant and denied him or her a fair trial. This second step requires determining whether: (1) the misconduct was gross and flagrant; (2) the misconduct showed ill will on the prosecutor's part; and (3) 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. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011). The third factor of the second step of the prosecutorial misconduct test may not override the first two factors unless the State proves beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011).
Furthermore, to uphold a conviction in the face of a finding of prosecutorial misconduct, the error must meet the “dual standard” of both constitutional harmlessness and statutory harmlessness under K.S.A. 60–261. See State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004). Under the harmless error analysis defined in K.S.A. 60–261, the court must “determine if there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). With these standards in mind, we turn to the prosecutor's closing argument.
Protecting the victim
During closing argument the prosecutor made the following argument:
“The defendant kept doing sexual things to that little girl, and she had nobody there to help her and nobody there to protect her, and the only thing she had to protect her was the ability to tell somebody else about it, to tell Mom, because Mom will make it all right; Mom will help; Mom will do something about it; and so she told her Mom. And now she's at a point where she had protection that day. The protection she had was the truth, and the truth protects her here in court, and the law protects her here in court. And those are then given to you, given to you to look at all the evidence, and then determine that this really did happen to this little four-year-old girl when she was all alone at nap, and you do that by returning your verdict of guilty on both of the charges.”
Our Supreme Court was faced with similar arguments made by the same prosecutor in both State v. Smith, 296 Kan. 111, 133–34, 293 P.3d 669 (2012), and, more recently in State v. Ochs, 297 Kan. ––––, ––––, 306 P.3d 294 (No. 104,710, filed August 16, 2013), slip op. at 10–14. In both, our Supreme Court found the prosecutor's repeated invocation of the “truth” and calls on the jury to protect the victim were error. See also State v. Elnicki, 279 Kan. 47, 59–60, 105 P.3d 1222 (2005) (prosecutor invoked the use of the word “truth” to comment improperly on the credibility of the State's evidence). Likewise, in State v. Duong, 292 Kan. 824, 834, 257 P.3d 309 (2011) (citing State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 [2010] ), our Supreme Court reiterated that it is “error for a prosecutor to appeal to parental instincts or urge the jury to protect the victim.”
We agree that the prosecutor led the jurors down a path that asked them to use the truth and the law to protect R.K. The prosecutor repeatedly equated R.K. with the truth and repeatedly indicated that R.K. needed protection and that the law could give her that protection. Finally, the prosecutor essentially placed both the invocation of the truth and R.K.'s protection through the law into the jurors' hands. We have no hesitation finding that the prosecutor's comments were misconduct.
Likewise, because the comments were planned and calculated, having been made in the past by the same prosecutor, and because the comments violate long-standing rules in Kansas regarding any claims that the truth is on the side of the prosecution or attempt to inflame the jury's passions or prejudices, we find they were gross and flagrant. Moreover, such deliberate misconduct is indicative of ill will. See Ochs, 297 Kan. at ––––, slip op. at 14.
Finally, we turn to our constitutional harmless error analysis. We find that the evidence against Gonzalez was abundant; i.e., R.K.'s videotaped interview containing her allegations, the DNA on R .K.'s underwear that was consistent with Gonzalez' DNA, and Thomas' testimony regarding the petechiae and abrasion on R.K.'s anus. Accordingly, we find that the prosecutor's error was harmless under both the K.S.A. 60–261 standard and the standard under Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).
Misstating the law
During closing argument the prosecutor made the following statement regarding the unanimous jury instruction as it related to aggravated sodomy and aggravated indecent liberties with a child:
“Now, when—you have this one instruction which says that, ‘The State claims distinct multiple acts which could each separately constitute the crime of aggravated criminal sodomy and aggravated indecent liberties with a child.’ What does that mean? Let's talk about that. It means that on the aggravated criminal sodomy we have charged that the defendant penetrated, with his finger, [R.K.]'s anus, no matter how slight. Okay, you have to find that during that time frame, July 13th to August 25th, that it happened at least once. And all 12 of you have to agree, yes, at least on one occasion he stuck his finger in her anus.
“The other thing that it means, on Count II, the aggravated indecent liberties, again you all together have to agree that an act happened on the same day at least once. But you also have to, if you remember from the verdict correctly, you have to pick one of those acts. Was it him having her touch his penis; was it him touching her female genitalia, potty parts; or was it him licking her anal area after removing her clothes? You have to pick one or all of those, but you have to unanimously agree on that. That's what that instruction tells you, okay? That's to ensure the unanimous verdict of guilty on each of those counts.”
“Misstating the law is not within the wide latitude given to prosecutors in closing arguments.” State v. Wells, 296 Kan. 65, Syl. ¶ 3, 290 P.3d 590 (2012). Contrary to what the State suggests, Gonzalez' case is analogous to Wells. In Wells, the prosecutor told the jury that it could find the defendant guilty on the first count of rape if it unanimously agreed that the victims were raped “ ‘at least once,’ “ and could find the defendants guilty for the second count of rape if the jury found that the victims were raped “ ‘at least a second time.’ “ Wells, 296 Kan. at 78–79.
In this case, when discussing the sodomy charge and the allegation that Gonzalez digitally penetrated R.K., the prosecutor stated that “you have to find that during that time frame, July 13th to August 25th, that it happened at least once.” This statement is also similar to those made in Wells. Although the prosecutor attempted to clear up any miscommunication when describing the unanimous jury instruction's applicability to the indecent liberties charge, the prosecutor failed to clear up any possible misstatement regarding the unanimous jury instruction's applicability to the sodomy charge. Therefore, the prosecutor misstated the law, which constituted misconduct.
Likewise, as the court found in Wells, we find that the misstatement of the law was gross and flagrant. It was repeated twice and has been clearly erroneous under our Supreme Court rulings since 2001. See 296 Kan. at 80–81. But, just as the court in Wells, we are unable to conclude that the misstatement of the law was gross and flagrant or demonstrative of ill will. And finally, as stated above, the evidence is copious against Gonzalez. We have no uncertainty in finding that the prosecutor's error was harmless under both the K.S.A. 60–261 standard and the Chapman standard.
In sum, although the comments made by the prosecutor during closing argument constituted misconduct, we find the misconduct to be harmless.
Cumulative Error
Gonzalez relies on the alleged errors discussed above to argue that cumulative error denied him the right to a fair trial.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when “ ‘the totality of circumstances substantially prejudiced the defendant and denied the [defendant] a fair trial.’ “ Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. 293 Kan. at 721.
“Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error cannot constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Because the only errors uncovered were the misconduct of the prosecutor during closing argument and such errors were harmless, cumulative error did not deny Gonzalez the right to a fair trial.
Constitutionality of Gonzalez' Life Sentence Under § 9 of The Kansas Constitution Bill of Rights
Gonzalez asserts that his hard 25 life sentences were unconstitutional under § 9 of the Kansas Constitution Bill of Rights.
“Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010); State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). In Freeman, our Supreme Court set out three factors to aid in administering this principle, stating:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
No one factor controls the outcome. State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010). “Ultimately, one consideration may weigh so heavily that it directs the final conclusion,” but “consideration should be given to each prong of the test.” State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).
Because an application of these factors requires a sentencing judge to make both legal and factual determinations, on appeal appellate courts employ a “bifurcated standard of review: without reweighing the evidence the appellate court reviews the factual underpinnings of the district court's findings under a substantial competent evidence standard, and the district court's ultimate legal conclusion drawn from those facts is reviewed de novo. [Citations omitted.]” State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012). First Freeman Factor
The first Freeman factor requires the court to consider the nature of the offense and the character of the offender. Addressing this factor, the sentencing judge stated:
“And in looking at this type of offense, when you—if you look at the term ‘the nature of the offense,’ well, what we have here is our most vulnerable population that has been preyed upon.
“And the most vulnerable of our population, who cannot defend themselves, and in some ways can hardly report it because they don't have the words to even tell somebody what has happened to them, or to explain this thing that they know isn't right and they didn't think should happen, but they just don't know how to put it in context of their world.
“And so they are, one, vulnerable in that they cannot report and tell; and because of that vulnerability and the inability to report and tell, it is so easy for these children to then continue to be victimized even by the same person, because they can't get it stopped.”
The sentencing judge also found Gonzalez' expert witness lacked credibility in his testimony. The sentencing judge found that the rate of recidivism is high in these types of cases.
The sentencing judge went on to say,
“And we are looking here at the fact that, fortunately, this child is alive and she's with her mother and father, but she was injured. She maybe didn't have open, bleeding wounds, but there was injury that was caused to her.
“She testified that it hurt and that she was hurt. And not only are we looking at physical—at a physical injury, we are looking at an ongoing potential psychological injury.
“And in some ways, I think this type of offense is—can be harder on the adults in a child's life than it may be on the child. I'm sort of giving this from my own personal—from personal experience as an attorney and having dealt with these kind of cases, that many children, once it's out in the open and it's discussed and it's not a hidden secret, can accept that this is a thing that happened to them, it was a bad thing, then they move on and have a perfectly healthy, normal life after that.
“There are some children who never recover from this. For whatever reason, they cannot move on with their life.”
Gonzalez attempts to counter these points by noting that the acts were not particularly violent, that his criminal history consisted of only one burglary conviction from 1960, and that his expert witness testified that Gonzalez did not show signs of pedophilia. However, our Supreme Court has recognized that aggravated indecent liberties with a child is itself a violent crime. See K.S.A. 22–3717(d)(2)(C) (aggravated indecent liberties with a child under K .S.A. 21–3504 is a sexually violent crime); State v. Mossman, 294 Kan. 901, 910, 281 P.3d 153 (2012). Moreover, the sentencing court found Gonzalez' expert witness' testimony contradictory.
In addition, other facts weigh in favor of finding that Gonzalez' sentence is not cruel or unusual under the first Freeman factor. Gonzalez enjoyed a position of trust in R.K.'s life as a grandfatherly figure at Windholz' daycare, and he breached that trust on more than one occasion. See State v. Conrad, 297 Kan. 76, 298 P.3d 320, 323 (2013).
Considering the facts surrounding Gonzalez' convictions, Gonzalez' punishment was not disproportionate to his crime, and the first Freeman factor does not weigh in Gonzalez' favor. Second Freeman Factor
Gonzalez focused much of his argument on the second Freeman factor—comparison of the punishment with punishments imposed in Kansas for more serious offenses. Gonzalez argues that his life sentences for aggravated indecent liberties with a child and aggravated criminal sodomy are disproportionate because he would have received a less severe sentence had he committed the more severe crime of murdering R.K. Our Supreme Court has already addressed and rejected this argument in Woodard, 294 Kan. at 723–24. In Woodard, the court stated the following:
“The fact that the penalty for certain categories of homicide may be less severe than the penalties for other, nonhomicide crimes does not automatically render the penalties for the nonhomicide crimes unconstitutional. There is no strict linear order of criminal activity that ranks all homicides as the most serious crimes and all nonhomicide crimes as less serious, with the corresponding penalties necessarily ranking in diminishing durations of imprisonment.
....
“Comparing the penalty under K.S.A. 21–4643(a)(1)(C) with the punishments imposed for other offenses in Kansas, we do not conclude that the penalty set out in Jessica's Law is disproportionately harsh.” 294 Kan. at 723–24.
Gonzalez fails to present any new persuasive arguments or any reason this court should reexamine the conclusion in Woodard. Therefore, we agree with the sentencing court that Gonzalez' sentences are not unconstitutionally disproportionate to other sentences provided for in Kansas statutes. Third Freeman Factor
Under the third and final Freeman factor, this court compares the penalty under Jessica's Law for aggravated indecent liberties with a child and aggravated criminal sodomy with the penalties for the same offense in other jurisdictions. See Freeman, 223 Kan. at 367. Gonzalez provides an extensive review of other states' statutes to support his argument that Kansas' Jessica's Law statute “provides for one of the four harshest sentences for sodomy of a child, or for indecent liberties with a child, in the nation.”
Even if we accept Gonzalez' argument that Kansas has one of the harshest penalties in the nation for aggravated indecent liberties with a child and aggravated criminal sodomy; thus, allowing the third Freeman factor to weigh in favor of Gonzalez' constitutional argument, our Supreme Court has found that “persuasive force on the third prong does not counterbalance the first and second prongs.” State v. Newcomb, 296 Kan. 1012, 1021, 298 P.3d 285 (2013).
Thus, Gonzalez' concurrent life sentences are not disproportionate to his crime and his sentences do not violate § 9 of the Kansas Constitution Bill of Rights.
Constitutionality of Gonzalez' Life Sentence Under the Eighth Amendment to the United States Constitution
Gonzalez contends—under the case-specific analysis of the Eighth Amendment—that the two hard 25 life sentences imposed for each of his convictions of aggravated criminal sodomy and aggravated indecent liberties with a child violated the Eighth Amendment to the United States Constitution. Specifically, Gonzalez asserts that his hard 25 life sentences are grossly disproportionate and, therefore, cruel and unusual punishment under the Eighth Amendment. According to Gonzalez, this is because the offenses of aggravated criminal sodomy and aggravated indecent liberties with a child involve only sexual contact and are not as severe as when a person commits a violent crime or has a motive to cause violence. In addition, Gonzalez puts forth that his criminal history contains only a burglary conviction from 1960 and that his propensity for violence is relatively low.
The Eighth Amendment, applicable to the states through the Fourteenth Amendment to the United States Constitution, provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend. VIII. In Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the United States Supreme Court was asked to determine whether the Cruel and Unusual Punishment Clause of the Eighth Amendment was violated when a juvenile offender is sentenced to life in prison without parole for a nonhomicide crime. The majority noted in its analysis that the concept of proportionality was central to the Eighth Amendment. Punishment for a crime should be graduated and proportioned to the offense. Although the United States Supreme Court ultimately held that such a sentence was contrary to the Eighth Amendment, in examining the proportionality of a crime, the Court noted that its cases fall into two general classifications: (1) challenges to the length of term-of-years sentences given all the circumstances in a particular case and (2) categorical restrictions to the death penalty. 130 S.Ct. at 2021.
It should be noted that case-specific challenges (the first classification above) and categorical challenges (the second classification above) are analytically independent of each other. State v. Seward, 296 Kan. 979, 985, 297 P.3d 272 (2013). “A case-specific claim challenges the length of a term-of-years sentence, given all of the relevant circumstances in a particular case. [Citations omitted.]” 296 Kan. at 983. Although Gonzalez' issue statement suggests that he is presenting a categorical challenge, it appears that his analysis presents a case-specific challenge.
A case-specific challenge is inherently factual and requires the court to compare the gravity of the offense with the severity of the sentence. This analysis considers the offender's mental state and motive, the actual harm caused to the victim or society, and the offender's criminal history and propensity to violence. If this analysis leads to an inference of gross disproportionality, then the court compares the offender's sentence with the sentence of other offenders in the same jurisdiction and the sentences imposed for the same crime in other jurisdictions. Gomez, 290 Kan. 858, Syl. ¶ 5. Because a case-specific challenge is factually intensive and district courts, not appellate courts, make factual determinations, failure to raise a case-specific challenge in the district court and ensure sufficient findings and conclusions for appellate review precludes raising the issue for the first time on appeal. 290 Kan. at 864–65. Gonzalez did raise this argument to the district court.
Our Supreme Court has acknowledged that analysis of a § 9 challenge under the Freeman factors applies with equal force to a case-specific Eighth Amendment challenge. State v. Seward, 296 Kan. 979, 990, 297 P.3d 272 (2013). Based upon the preceding analysis regarding Gonzalez' constitutional argument under § 9 of the Kansas Constitution Bill of Rights, and the similarity between the analysis required of the Freeman factors and an Eighth Amendment case-specific challenge, Gonzalez' Eighth Amendment argument that his hard 25 life sentences are grossly disproportionate and, thus, cruel and unusual, must also fail.
Even if Gonzalez' argument could be construed as a categorical challenge under the Eighth Amendment to his two hard 25 life sentences—as his issue statement suggests—our Supreme Court in State v. Ruggles, 297 Kan. 675, 304 P.3d 338 (No. 104,262, filed June 21, 2013), found that the Cruel and Unusual Punishment Clause of the Eighth Amendment did not categorically prohibit a hard 25 life sentence from being imposed in the case of an adult offender convicted of the crime of indecent liberties with a child by soliciting a child to engage in lewd fondling or touching in violation of K.S.A. 21–3504(a)(3)(B).
In Ruggles, Ruggles pleaded guilty to two counts of aggravated indecent liberties with a child. Ruggles was over the age of 18 when he solicited a child under the age of 14 to engage in lewd fondling or touching in violation of K.S.A. 21–3504(a)(3)(B). On appeal, Ruggles argued that a hard 25 life sentence for an adult offender who merely solicits a child under the age of 14 to engage in any lewd fondling or touching is categorically disproportionate and violates the proscription against cruel and unusual punishment of the Eighth Amendment. Our Supreme Court disagreed. Ruggles, slip op. at 17. In Ruggles, the Kansas Supreme Court recognized Ruggles' claim as a categorical disproportionality claim.
After a thorough review of the Graham case, as well as Miller v. Alabama, 567 U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Kansas Supreme Court noted that
“in order for an individual to successfully raise a categorical challenge to a sentencing practice, the individual must satisfy the second prong of a categorical proportionality analysis, i.e., he or she must show that, based on the characteristics of the class of offender he or she belongs to and the nature of the offense at issue, the sentencing practice is disproportionate with the offender's culpability.” Ruggles, slip op. at 12–13.
The court found that Ruggles could not meet this prong.
“Unlike the defendant in Graham—who belonged to a category of offenders ( i.e., juveniles) traditionally considered as having a lesser culpability for criminal actions and, thus, less deserving of the harshest penalties—there is nothing distinguishable about the category of offender to which Ruggles belongs ( i.e., adult offenders) that would warrant special consideration. The law clearly presumes that people 18 years of age or older have reached a level of maturity that renders them fully culpable for the crimes they commit.” Ruggles, slip op. at 13.
The court further found that the category of crime was the crime of conviction—aggravated indecent liberties with a child. It noted that this was a serious, nonhomicide crime but declined to read Graham in such a way as to question the constitutionality of the imposition of a life sentence with the possibility of parole on an adult offender. Ruggles, slip op. at 13–14. The Kansas Supreme Court quoted from the United States Supreme Court decision in Miller for the proposition that life without parole is permissible for nonhomicide offenses, except those committed by children. Ruggles, slip op. at 14. The Kansas Supreme Court noted that while a hard 25 life sentence was certainly severe, it was not as severe as the death penalty or life without parole, which are the only situations in which the United States Supreme Court has found categorical disproportionality. Ruggles, slip op. at 14. The court quoted from its prior decision in Woodard, 294 Kan. at 722, that the “ ‘legislative intent underlying Jessica's Law is to protect children by removing perpetrators of sexual crimes against children from society,’ “ Ruggles, slip op. at 16. The court noted that sex offenders are more likely than any other type of offender to commit a violent crime after their release and therefore the State has a compelling interest in their incarceration as a means of protecting children. The extent of harm they cause is great. Ruggles, slip op. at 16.
The Ruggles court concluded that the cruel and unusual punishment clause of the Eighth Amendment did not categorically prohibit a hard 25 life sentence from being imposed in the case of an adult offender convicted of the crime of indecent liberties with a child by soliciting a child to engage in lewd fondling or touching in violation of K.S.A. 21–3504(a)(3)(B). Likewise, based on the court's rationale in Ruggles, we conclude that the Eighth Amendment does not categorically prohibit a hard 25 life sentence from being imposed in the case of an adult offender convicted of the crime of aggravated indecent liberties with a child in violation of K.S.A: 21–3504(a)(3)(A) and aggravated criminal sodomy in violation of K.S.A. 21–3506(a)(1).
Electronic Monitoring Upon Release to Parole
Gonzalez argues and the State concedes that the sentencing court erred when it ordered Gonzalez to undergo electronic monitoring while on lifetime parole. Gonzalez asserts that only the parole board, under K.S.A. 22–3717(u), can order an inmate be electronically monitored as a condition of parole.
The sentencing court ordered that Gonzalez be subjected to electronic monitoring while on lifetime parole.
Our Supreme Court has held that the imposition of parole conditions, including lifetime electronic monitoring, is within the authority of the parole board (now prisoner review board) but outside the jurisdiction of the sentencing court. State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011) (citing K.S.A. 22–3717[u] and K.S.A. 21–4603d). The sentencing court erred by imposing lifetime electronic monitoring. State v. Antrim, 294 Kan. 632, 636–37, 279 P.3d 110 (2012), controls because its facts are analogous to those of this case. Accordingly, this court need not vacate any portion of Gonzalez' sentences. Instead, this court must “remand this case to the district court for entry of a nunc pro tunc order deleting the reference in the journal entry to lifetime electronic monitoring.” See 294 Kan. at 636–37.
Affirmed in part and remanded with directions.