Opinion
No. 107,015.
2013-05-3
STATE of Kansas, Appellee, v. Deon JOHNSON, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Korey Kaul and Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Korey Kaul and Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Deon Johnson appeals from his conviction of aggravated sexual battery. He argues that (1) the prosecutor committed misconduct during closing argument by improperly bolstering the credibility of the victim and (2) the district court erred in failing to instruct the jury on the lesser included offense of misdemeanor sexual battery. For the reasons stated below, we affirm.
Facts
Max Hsiao and his girlfriend, R.B., lived together with their roommate, Jason Jinks. On the evening of January 28, 2011, Deon Johnson came over to hang out and work on cars with Hsiao and Jinks. Johnson was Hsiao's best friend, and R.B. had known Johnson for 10 or 11 years. That evening, R.B. took a muscle relaxer and fell asleep on the couch in an office area on the main floor of the house. Hsiao decided to move R.B. to their basement bedroom so that she could sleep undisturbed while the three men continued to socialize. Hsiao asked Johnson to help carry R.B. downstairs. R.B. woke up while being carried downstairs but fell asleep once she got into bed. Hsiao and Johnson went back upstairs where they hung out and played video games.
R.B. later awoke to someone touching her breasts. She thought it was Hsiao so she kicked him away and fell back asleep. Thereafter, R.B. again awoke to someone touching her breasts. R.B. kicked the person she thought was Hsiao, said that she was tired, and fell back asleep. When R.B. woke up a third time, her sweat pants were pulled down to her thighs and she felt someone's finger inside of her vagina. R.B. heard a voice that she recognized as Johnson's say, “[C]ome on, [R.B.], you know you want it.” R.B. immediately pulled up her pants, ran to the bathroom, and locked the door. While R.B. was in the bathroom, she heard someone go up the stairs. R.B. waited a couple of minutes in the bathroom and then went upstairs to look for Hsiao. R.B. saw that Hsiao was sleeping on a couch, while Johnson was lying on a love seat covered with a blanket all the way over his head. R.B. woke Hsiao up and the two went downstairs, where she told him what had happened. They turned on the lights in the basement and discovered a head indentation on Hsiao's pillow and black hair that did not belong to him.
R.B. called the police to report the incident. When questioned by law enforcement, Johnson denied that he had gone back downstairs after helping carry R.B. to bed and denied that he had sexually touched R.B. Law enforcement swabbed both of Johnson's hands for evidence and also collected a bed sheet, a pillow case, and two hair fibers. DNA testing determined that R.B. could not be excluded as a contributor to the DNA profile from Johnson's right hand.
Johnson was charged with one count each of rape and aggravated sexual battery. The case initially resulted in a mistrial because the jury was unable to agree on a verdict. Following a second trial, the jury convicted Johnson of aggravated sexual battery but was unable to reach a verdict on the rape charge. The State later dismissed the rape charge. The district court sentenced Johnson to 41 months' imprisonment with lifetime postrelease supervision.
Analysis
Johnson raises the following issues on appeal: (1) the prosecutor committed misconduct during closing argument by improperly bolstering R.B.'s credibility and (2) the district court erred in failing to instruct the jury on the lesser included offense of misdemeanor sexual battery. We address each of these issues in turn.
I. Prosecutorial Misconduct
Johnson claims the prosecutor committed reversible misconduct during closing argument by improperly bolstering R.B.'s credibility. Specifically, Johnson claims the prosecutor expressed a personal opinion that people tend to recall stressful and traumatic events with more clarity and precision than mundane activities.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012); see State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005).
Johnson complains of the following comments made by the prosecutor during the State's rebuttal closing argument:
“[Defense counsel] is right. On the night of the 28th of January, that was just a regular day. It's just like September 10, 2001. What were you doing that day? I don't know. But what were you doing September 11th? Yeah, we remember that. It was a significant day. It became significant—September 11th became significant when we were attacked—when this country was attacked by terrorists. And January 29th became significant when [R.B.] was attacked by ... her boyfriend's best friend. When things become significant, that is when your memory quickens, that is when you are able to accurately recount what was going on.”
Johnson argues the prosecutor used the terrorist attacks of September 11, 2001, to offer her personal opinion of R.B.'s credibility by suggesting that stressful and traumatic experiences create a heightened ability to accurately recall events. Johnson contends that comparing R.B.'s ability to recall the events in question to the events of 9/11 was outside the wide latitude afforded counsel in closing arguments because the comments were misleading, unfairly prejudicial, and not supported by the evidence presented at trial because the events of 9/11 had no bearing on the trial or R.B.'s ability to accurately recall the events in question.
Generally, prosecutors cannot offer juries their personal opinions on the credibility of witnesses. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). We prohibit the prosecutor from expressing personal opinions on the credibility of a witness because such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). But prosecutors may explain “to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.” Stone, 291 Kan. at 19, 237 P.3d 1229 (citing State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 [2009] ). Nevertheless, the jury must be left to draw the ultimate conclusion regarding the credibility of a witness. State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003).
For purposes of analyzing Johnson's claim of prosecutorial misconduct, we will assume, without deciding, that the reference to 9/11 made by the prosecutor in rebuttal argument was outside the wide latitude allowed in discussing the evidence. Accordingly, we move to the second step of the prosecutorial misconduct analysis, which requires us to decide whether the reference prejudiced the jury against Johnson and denied him a fair trial. This step specifically requires us to determine 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. Anderson, 294 Kan. 450, 461–62, 276 P.3d 200 (2012).
The record reflects that the prosecutor's reference to 9/11 did not demonstrate gross and flagrant behavior on her part. In order to determine “whether a comment was gross and flagrant, Kansas courts often consider whether the prosecutor repeated or emphasized the misconduct.” State v. Madkins, 42 Kan.App.2d 955, 961, 219 P.3d 831 (2009), rev. denied 291 Kan. 915 (2010). The comment made by the prosecutor here was an isolated incident that occurred during the State's rebuttal closing argument. The prosecutor made no other reference to 9/11 at any other point in the proceedings, including the State's initial closing argument. Given the isolated and remote nature of the comment, the prosecutor's conduct was not gross and flagrant.
In addition, our review of the record reflects that the comment was not motivated by ill will. “Evidence of ill will is reflected through deliberate and repeated misconduct or indifference to a court's rulings. [Citation omitted.]” Madkins, 42 Kan.App.2d at 961, 219 P.3d 831. As noted above, the comment was a single, isolated incident during the State's rebuttal closing argument. The prosecutor did not argue that the events of 9/11 were relevant to the present case or otherwise state her personal belief that R.B.'s testimony was credible. Rather, the prosecutor connected R.B.'s ability to recall what happened to her to the jurors' ability to recall what they were doing on 9/11 and asked the jurors to draw their own conclusion. Moreover, when viewed in context, it appears the prosecutor's comment was in response to prior arguments and statements made during defense counsel's closing argument. Defense counsel challenged the State's evidence by arguing that the witnesses had all testified as to “widely different” timelines, and suggested R.B. had been so sedated that she simply dreamed that someone had sexually touched her. The prosecutor responded by discussing how people typically remember details of significant events, using 9/11 as an example that the jurors could relate to, and asked the jurors to use their own personal experiences and common knowledge when assessing R.B.'s testimony. “No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel. [Citation omitted.]” McReynolds, 288 Kan. at 325, 202 P.3d 658.
Having found the prosecutor's comment was not gross and flagrant or motivated by ill will, the remaining issue is whether the State has demonstrated that the evidence presented at trial was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. Given R.B.'s testimony at trial and the nature and extent of physical evidence introduced at trial that directly supported that testimony, we find the State has met its burden on this issue. In sum, then, we find the prosecutor's comment did not prejudice or deprive Johnson of his constitutional right to a fair trial. As such, Johnson's claim of prosecutorial misconduct fails.
II. Lesser Included Instruction
Johnson argues the district court erred in failing to instruct the jury on the lesser included offense of misdemeanor sexual battery.
Lesser included offense instructions are governed by K.S.A.2012 Supp. 22–3414(3): “In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A.2012 Supp. 21–5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” In other words, lesser included offense instructions must be given when there is some evidence, emanating from whatever source and proffered by whichever party, that would reasonably justify a conviction of some lesser included crime. State v. Simmons, 295 Kan. 171, Syl. ¶ 3, 283 P.3d 212 (2012); see State v. Williams, 295 Kan. 506, 521, 286 P.3d 195 (2012) (“[T]he giving of lesser included crime instructions is not a matter of discretion with the trial judge.”). “The court's duty to instruct on lesser included crimes is not foreclosed or excused just because the lesser included crime may be inconsistent with the defendant's theory of defense.” Simmons, 295 Kan. 171, Syl. ¶ 3, 283 P.3d 212. To determine whether a lesser included offense instruction should have been given, this court views the evidence in a light most favorable to the defendant. State v. Tahah, 293 Kan. 267, 273, 262 P.3d 1045 (2011).
Johnson did not request a misdemeanor sexual battery instruction at trial. Our Supreme Court recently outlined the analytical framework for jury instruction issues that arise for the first time on appeal.
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.”
“To determine whether an instruction or failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶¶ 3–5, 286 P.3d 195.
A misdemeanor sexual battery instruction would have been legally appropriate because sexual battery is a lesser included offense of aggravated sexual battery. See K.S.A.2012 Supp. 21–5109(b)(1) (“A lesser included crime” is defined as “[a] lesser degree of the same crime.”). As charged here, aggravated sexual battery is defined in K.S.A. 21–3518(a) as
“the intentional touching of the person of another who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another under any of the following circumstances:
....
“(2) when the victim is unconscious or physically powerless.”
Misdemeanor sexual battery is defined in K.S.A. 21–3517 as “the intentional touching of the person of another who is 16 years or more of age, who is not the spouse of the offender and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another.” Thus, the distinction between aggravated and misdemeanor sexual battery is that aggravated sexual battery requires the victim to be unconscious or physically powerless while misdemeanor sexual battery does not.
Although legally appropriate, a misdemeanor sexual battery instruction would not have been factually appropriate under the facts presented here. Johnson disagrees, contending that a misdemeanor sexual battery instruction was warranted because a question of fact existed as to whether R.B. was unconscious or physically powerless at the time her breasts were touched. Johnson claims the jury could have found him guilty of misdemeanor sexual battery based on R.B.'s testimony that she was conscious enough on two occasions to recall thinking that Hsiao was the person touching her and conscious enough to stop the unwanted touching and return to sleep.
But the evidence presented clearly established that R.B. was asleep when she was twice awoken to someone touching her breasts. Whether R.B. had conscious thoughts about the touching or was able to stop the touching after she woke up does not change the fact that R.B. was asleep when the touching started, and was therefore unable to prevent it from happening in the first place. Thus, there was no evidence which would reasonably justify a conviction of misdemeanor sexual battery. Consequently, the district court did not err in failing to so instruct the jury.
Affirmed.