Opinion
No. 105,010.
2012-05-25
STATE of Kansas, Appellee, v. Petre HARMON, Appellant.
Appeal from Shawnee District Court; Jan W. Leuenberger, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Jan W. Leuenberger, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Petre Harmon appeals his jury conviction of criminal sodomy and aggravated indecent liberties with a child at least 14 years old but less than 16 years old. We affirm.
Harmon has cerebral palsy and a learning disability and was 18 years old when the criminal acts which are the subject of this appeal took place. Throughout his youth, Harmon attended Easter Seals Capper Foundation (Capper), a facility that provides disabled young people the opportunity to participate in activities and interact with individuals outside of their home and school. During his time at Capper, Harmon befriended 15–year–old S.V., who also has cerebral palsy and is only able to ambulate with the assistance of a wheelchair or walker. Harmon had spent many weekends at S.V.'s home, was like a part of the family, and often referred to S.V. as his brother. S.V.'s family hired Harmon to be a companion to S.V. and assist him at home.
On February 1, 2008, Harmon, who lives on his own in an apartment, called his social worker, Gay Fund, and wanted her to come to his apartment. Hearing the distress in Harmon's voice, she immediately determined that something “was terribly wrong with him.” When Fund arrived, Harmon told Fund that he wanted to hurt himself and that she should “[j]ust take [him] to jail” because he was a child molester “just like [his] father.”
Fund determined Harmon needed to go to a hospital. Fund drove Harmon to Stormont–Vail West, and on the way, Harmon told her that he had hurt S.V. by having sex with him. When Fund asked whether he forced S.V., Harmon replied, “[Y]es.” Harmon was admitted to the facility and met with social worker Samantha Charay. Charay testified that Harmon felt “an overwhelming amount of grief and guilt” because of his sexual relationship and “intercourse” with S.V.
While at Stormont–Vail, Harmon called David Sechrist, S.V.'s mother's fiance. Sechrist testified about that conversation with Harmon during Harmon's trial, stating:
“And I said, ‘Well, do you have something to tell me?’ And he said yes, and I says, ‘Well, what?’ And he says, ‘Well, I molested [S.V.].’ And I said, ‘Well, what do you mean?’ And he said, ‘Well, I molested him.’ And I said, ‘[Harmon], do you mean you played with his penis?’ He said yes. I said, ‘Did you make him play with yours?’ And he says yes. And I said, ‘Well, [Harmon], did you put your penis in him,’ and he says yes.”
Several social workers, as well as family members, attempted to talk to S.V. about what happened; however, S.V. acted very embarrassed and would only answer “yes” or “no” questions. During trial, S.V. answered “yeah” when asked whether Harmon had ever touched his penis. When asked, “[D]id [Harmon] ever put his penis in your butt,” S.V. replied, “Yeah.”
At trial, the State played the April 17, 2008, video recording of Harmon's interview with a detective. During the interview Harmon told the detective that he had “molested” S.V., which meant that Harmon had touched S.V.'s penis and had “stuck” his penis “into [S.V.'s] behind.” Harmon told the detective that he had used his mouth on S.V.'s penis once or twice and that S.V. had put his mouth on Harmon's penis. He also stated that he and S.V. had used their hands on each other's penises and that Harmon had put his penis in S .V.'s anus twice. Harmon testified at trial that S.V. agreed to the sexual activity.
The jury convicted Harmon of criminal sodomy of a child at least 14 but less than 16 years of age and aggravated indecent liberties with a child of at least 14 but less than 16 years of age. Harmon filed a motion for a dispositional departure, which was granted. Harmon was sentenced to 36 months' probation with an underlying prison sentence of 59 months. Harmon timely appeals.
Sufficiency of the Evidence for the Criminal Sodomy Conviction
On appeal, Harmon argues there was insufficient evidence for the jury to find him guilty of criminal sodomy. Sodomy is defined as oral contact of the male genitalia or anal penetration, however slight. K.S.A. 21–3501(b)(2). Material facts of a crime may be proved by direct testimony or circumstantial evidence, or a combination of both. State v. Griffin, 210 Kan. 729, 731, 504 P .2d 150 (1972).
“When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Ward, 292 Kan. 541, Syl. ¶ 11, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The State presented evidence of criminal sodomy by oral contact. During the video-recorded interview with Harmon, Detective Ludolph asked, “So when [S.V.] touched you what body part did he use?” Harmon replied, “Mostly his hand.” Detective Ludolph then asked, “Did [S.V.] use his mouth?” Harmon replied, “Maybe once or twice .” Detective Ludolph also asked whether Harmon had had used his mouth on S.V.'s penis, to which Harmon replied, “Maybe.”
Harmon argues that his statements were “extrajudicial admissions” that were uncorroborated and, therefore, there was insufficient evidence to convict him. Harmon cites State v. Tillery, 227 Kan. 342, 606 P.2d 1031 (1980). In Tillery, our Supreme Court relied on Opper v. U.S., 348 U.S. 84, 93, 75 S.Ct. 158, 99 L.Ed. 101 (1954), in which the Court focused on the reliability and trustworthiness of a statement. Here, Harmon's statements to Detective Ludolph were recorded, and the video recording was shown to the jury. The jury was able to both see and hear Harmon's confession. The jury was able to assess the trustworthiness and reliability of Harmon's confession and to observe that the statements were not coerced by Detective Ludolph.
Harmon's confession was corroborated by testimony from Fund, Sechrist, Charay, and Britt Klindt, a social work specialist. S.V. testified that Harmon touched S.V.'s penis with his hand and that Harmon put his penis in S.V's “butt.” Harmon suggests that because S.V. could not clarify whether he meant anus or “crack,” this is not sufficient to show sodomy. Harmon told Fund and Charay that he had sex with S.V. Sechrist stated he asked Harmon, “Did you put your penis in him?” Harmon replied, “Yes.” Harmon also answered affirmatively when asked whether he had penetrated S.V.
During the interview with detectives, Harmon admitted having anal sex with S.V. Detective Ludolph asked, “When was it that you stuck your penis into his behind?” Harmon answered, “Just the last couple of times.” Detective Ludolph then asked, “So you have at least stuck your penis into [S.V.'s] behind twice?” Harmon replied, “Yeah.” Lastly, Detective Ludolph asked, “What body part did you use to touch [S.V.'s] anus with?” Harmon responded, “My dick.”
Harmon's confession was corroborated through the testimony of Fund, Sechrist, Charay, and Klindt. S.V., who according to Harmon had the mentality of a 6–year–old, even stated that Harmon put his penis into his “butt.” There was sufficient evidence to convict Harmon of criminal sodomy.
Sufficiency of Evidence for Alternative Means of Committing Criminal Sodomy
Again, “[w]hen examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” Ward, 292 Kan. 551.
“ ‘ “In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.] “ ‘[Citation omitted.]” State v. Wright, 290 Kan. 194, 202, 224 P.3d 1159(2010).
The district court instructed the jury on the alternative means by which it could find Harmon guilty of criminal sodomy, either by “oral contact of the male genitalia” or “anal penetration, however slight, of a male by any body part,” On appeal, Harmon argues that “[b]ecause the State failed to present sufficient evidence of each of these alternative means, this Court must reverse [ ] Harmon's conviction.”
An alternative means issue arises when a district court instructs a jury that “ ‘a single offense may be committed in more than one way.’ “ State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). Here, the district court instructed the jury that criminal sodomy “may be committed in more than one way.” Harmon argues on appeal that the State failed to present sufficient evidence to support each of the means of committing criminal sodomy by (1) oral contact of the male genitalia and by (2) anal penetration, however slight, of a male by any body part. See Wright, 290 Kan. at 201, 206.
On appeal, Harmon admits the State presented evidence that he had anal sex with S.V. but contends the State did not present evidence that Harmon “engaged in criminal sodomy by oral contact.” Here, Harmon stated in his interview with Detective Ludolph that he had oral and anal sex with S.V, There is sufficient evidence to support each means of committing sodomy.
Failure to Give Unanimity Instruction
Harmon claims that the district court erred in failing to give a unanimity instruction on the aggravated indecent liberties charge. He did not request a unanimity instruction and failed to object to the omission of the instruction. Thus, this court must apply a clearly erroneous standard of review. See K.S.A. 22–3414(3). “Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Evans, 270 Kan. 585, 588, 17 P.3d 340 (2001).
Harmon argues that the district court violated his constitutional rights to a unanimous verdict when it failed to give a unanimity instruction. To determine whether the failure to provide the unanimity instruction was error, our Supreme Court has adopted a three-part test. State v. Voyles, 284 Kan. 239, 244–45, 160 P.3d 794 (2007).
The threshold question is whether the appellate court is “presented with a multiple acts case.” 284 Kan. at 244. In a multiple acts case, “ ‘several acts are alleged and any one of them could constitute the crime charged.’ “ State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2005). Whether a case is a multiple acts case is a question of law over which this court has unlimited review. Voyles, 284 Kan. at 244.
Here, Harmon told Detective Ludloph that the sexual acts occurred more than once, although Harmon could not say whether it was more than five times. S.V. also testified that Harmon touched him more than once and on different days. Based on this evidence, the jury could have believed that any of the acts were the crime charged, which is a multiple acts case.
In a multiple acts case, this court requires that “either the State must inform the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.” State v. Dean, 272 Kan. 429, 439, 33 P.3d 225 (2001). The failure to do so is error. Voyles, 284 Kan. at 245.
Here, the State did not elect which act to direct the jury to rely upon during its deliberations but only gave a general time frame. The district court then provided the jury with an aggravated indecent liberties instruction that did not allege a specific instance but gave a general time frame and did not give an instruction requiring a unanimous agreement on a specific act for the charge. This failure by both the State and the district court constitutes error.
Because Harmon did not request a unanimity instruction and failed to object to the omission of the instruction, this court applies a clearly erroneous standard of review. See K.S.A. 22–3414(3). “An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.” State v. Martinez, 288 Kan. 443, 451–52, 204 P.3d 601 (2009).
The failure to give a unanimity instruction is generally reversible, “except when the defendant presents a unified defense.” Voyles, 284 Kan. at 253. Our Supreme Court has explained that, “in one of its purest forms,” a unified defense is “a mere credibility contest between the victim and the alleged perpetrator.” 284 Kan. at 253. In this case, Harmon admitted to the conduct; his only defense was that it was consensual. Harmon did not provide a specific defense to each act. Thus, the district court's failure to provide a unanimity instruction is not reversible error. There was not a real probability that the jury would have rendered a different verdict if the error had not occurred. See Martinez, 288 Kan. at 451–52.
Prosecutorial Misconduct
Harmon did not contemporaneously object to the State's comments during closing argument; however, a timely objection is not required to preserve a prosecutorial misconduct claim that occurs during closing arguments. State v. Foster, 290 Kan. 696, 722, 233 P.3d 265 (2010).
This court applies a two-step analysis in determining whether prosecutorial misconduct occurred. First, we determine whether the prosecutor's comments were outside the wide latitude allowed prosecutors in discussing the evidence. If so, the court considers whether those comments constituted plain error; that is, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial. If the court finds plain error, reversal is required. State v. Hall, 292 Kan. 841, 846, 257 P.3d 272 (2011).
To determine whether there is plain error, this court considers:
“(1) whether the misconduct was so gross and flagrant it denied the defendant a fair trial; (2) whether the remarks showed ill will; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the prosecutor's statements would not have much weight in the jurors' minds.” Foster, 290 Kan. at 723.
None of these factors are controlling. See Foster, 290 Kan. at 723. Further, the error will only be considered harmless if there is no reasonable probability that the error affected the verdict. The party benefitting from the error bears the burden of demonstrating “beyond a reasonable doubt that the error complained of ... did not affect the outcome of the trial in light of the entire record.” Ward, 292 Kan. 541, Syl. ¶ 6.
On appeal, Harmon argues that the State committed misconduct during closing arguments—inflaming the passions of the jury “by pointing out the victim's disability.” Harmon complains of the following remarks during the State's closing argument:
“Well, Miss Sewell says she believes it's a waste of tax payers' dollars to prosecute this kind of case. [S.V.] is not worthy of people's protection because of his disability? Because he can't remember things? He's an easy target. But because of his limitations, both mentally and physically, apparently he's not worthy of our consideration. That's wrong. Anyone else has a child with disabilities to that extent I will fight for them as well. Because they can't fight for themselves. This isn't wrong to prosecute this case. It's wrong not to prosecute this case. And I'll admit it's hard, because of all of the parties involved. But it's right and it's just and it has to be done.
“There isn't any gray here, ladies and gentlemen. It is cut and dry. It is black and white. You know what happened between these two. You know the defendant for whatever reason crossed that line. And there's a victim because of it. And there needs to be accountability. Otherwise what? ‘[S.V.], sorry, Buddy, we know you're disabled. We know you can't think much more than a six year old can think, but that's just the way it goes. You couldn't really tell us all of the details, all of the inside and outside. The defendant did but we need to hear to from you, [S.V.], before we'll convict him.’
“No, that's not what you need. You know what happened between these two. And it's time for you to do your job, to do what's right, to do what's fair, to do what's just. The defendant admitted repeatedly to Gay Fund, David Gilchrist [ ], Daryl Ludolph, Samantha Charay, that he molested [S.V.]; that he touched his penis, and that he penetrated his anus. Those are crimes, ladies and gentlemen, no matter who commits those.”
Harmon argues that these statements suggest that his attorney “believed S.V. was not worthy of justice because of his disability” and that the prosecutor was there “to fight for those who cannot fight for themselves,” which “gave the jury extra incentive to convict even if (1) the evidence was not overwhelming, and (2) the inconsistencies in the evidence might have amounted to reasonable doubt.”
However, the State's comments during closing were within the wide latitude allowed to prosecutors. The prosecutor was not attempting to inflame the passions of the jury, but merely responding to Harmon's argument. During closing, defense counsel stated: “Well, folks, I'm not sure I feel so bad for [Harmon] as I feel bad for us as a society that we decide we need to spend tax dollars to prosecute a case like this.” The prosecutor's statements were properly made in response to defense counsel's closing argument and did not go beyond the wide latitude given to a prosecutor when discussing the evidence and making arguments to the jury. See State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). Because the prosecutor's comments were proper, there is no need to address the second part of the prosecutorial misconduct analysis. 288 Kan. at 325–26.
Even if the statements were outside the wide latitude afforded to prosecutors during closing arguments, the statements do not constitute reversible error. The statements were not gross and flagrant misconduct because they were unlikely to affect the jurors to the prejudice of Harmon. See State v. Villanueva, 274 Kan. 20, 34, 49 P.3d 481 (2002).
This court must look at the particular facts of each case, viewed in the light of the trial record as a whole, and not whether an isolated incident by itself constitutes reversible error. State v.. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999). In light of the trial record as a whole, the prosecutor's comments fail to demonstrate ill will. The prosecutor's comments did not rise to the level of misconduct.
Lastly, Harmon states there was not overwhelming evidence to convict him. However, as stated above, there was ample evidence to convict Harmon of the charges.
Affirmed.