State v. Dull, 298 Kan. 832

Background

In July 2009 Dull (age 20) gave a ride to two 13-year-old girls, D.P.A. (victim) and K.E.B.; sexual acts occurred in Dull’s bedroom according to D.P.A. and corroborating witnesses. Dull denied sexual contact and initially lied to police about his presence.
Dull was charged in Case No. 09CR3875 with aggravated criminal sodomy, rape, and aggravated indecent liberties (jury trial). While that jury deliberated, the court tried Case No. 09CR3876 (burglary and misdemeanor theft) on stipulated facts and found Dull guilty.
The jury convicted Dull on all three sex offenses. At sentencing under Kansas’s Jessica’s Law the judge denied Dull’s motion for departure from the 25‑year mandatory minimum but did not state on the record the reasons for rejecting the departure. Dull received concurrent hard-25 life sentences plus concurrent terms in the burglary/theft case.
On appeal Dull raised five issues: prosecutorial misconduct (opening statement comment about the victim telling her mother “the truth”); admission of evidence about the brother having sex in the next room; ineffective assistance of trial counsel; sufficiency of the evidence in both cases; and whether the judge’s failure to make on‑the‑record findings when denying departures rendered the burglary/theft sentences illegal.
The Kansas Court of Appeals found (1) the prosecutor’s isolated statement was improper but harmless beyond a reasonable doubt given corroborating evidence; (2) no preserved error on admission of the brother evidence (no objection at trial); (3) ineffective‑assistance claims were not decided on direct appeal and no remand was requested; (4) sufficiency challenges failed as a rational factfinder could convict; and (5) no procedural requirement compelled on‑the‑record reasons for denying the Jessica’s Law departure. The convictions and sentences were affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct (opening)	Prosecutor may comment on witness credibility; Dull contends comment was improper	Dull: prosecutor vouched for victim by saying she told her mother “the truth,” denying fair trial	Comment was improper but isolated and harmless beyond a reasonable doubt; no reversal
Admission of evidence about brother’s sexual activity	State: evidence relevant/corroborative of events that night	Dull: evidence prejudicial and should have been excluded	Not preserved (no trial objection); appellate court did not reach merits
Ineffective assistance of counsel	Dull asserts counsel’s performance violated Sixth Amendment	Dull argues trial counsel was ineffective on various grounds	Claims not resolved on direct appeal; remand for evidentiary hearing not sought by appellate counsel, so court declined to address merits
Sufficiency of evidence (sex crimes & burglary/theft)	State: testimony and corroboration support convictions	Dull: victim’s memory lapses, inconsistencies, and inducement undermine proof; stipulated facts inadequate for burglary/theft	Viewing evidence in prosecution’s favor, rational juror could convict on sex crimes; burglary/theft challenge abandoned/insufficient; convictions upheld

Key Cases Cited

State v. Tosh, 278 Kan. 83 (discusses factors for evaluating prosecutorial misconduct)
State v. Bridges, 297 Kan. 989 (harmlessness standards and interaction of constitutional and statutory harmless‑error analyses)
Chapman v. California, 386 U.S. 18 (constitutional harmless‑error standard)
State v. Ward, 292 Kan. 541 (harmless error burden on party benefiting from error)
State v. Marshall, 294 Kan. 850 (prosecutor may not vouch for witness credibility)
State v. Inkelaar, 293 Kan. 414 (gross and flagrant prosecutorial conduct considerations)
Rowland v. State, 289 Kan. 1076 (ineffective assistance claims ordinarily require Van Cleave remand)
State v. Remmert, 298 Kan. 621 (no requirement to state on record reasons when denying Jessica’s Law departure)
State v. Spencer, 291 Kan. 796 (relationship of Jessica’s Law departure to sentencing grid and further durational departures)