State v. Ortega, 300 Kan. 761

Background

Ortega’s 14-year-old daughter (V.O.) was placed in SRS custody after Ortega left children with her mother while she was in Colorado; Ortega returned Sept. 8, 2010.
A Finney County CINC hearing occurred Aug. 30, 2010; Ortega was not present and there is no record she received formal notice; SRS placed V.O. in foster care with St. Francis.
On Sept. 9, 2010 Ortega went to V.O.’s middle school, signed student sign-out sheets, told school staff she planned to take V.O. to Colorado, and became loud and threatening when prevented from taking the child.
School staff confirmed V.O. was in SRS custody; Ortega was escorted out and later arrested; she admitted at arrest she wanted to “piss everyone off.”
Ortega was convicted of attempted aggravated interference with parental custody and disorderly conduct; the Court of Appeals found multiple trial errors (prosecutorial misstatements and instructional errors) but affirmed; Chief Judge Malone dissented on reversal for the attempted aggravated-interference count.
The Kansas Supreme Court affirmed in part, reversed in part: it reversed the attempted aggravated interference conviction based on prejudicial prosecutorial misstatements and failure to instruct on mistake-of-fact, but affirmed the disorderly conduct conviction.

Issues

Issue	Ortega’s Argument	State’s Argument	Held
Sufficiency — overt act for attempted aggravated interference	Evidence (going to school, signing out sheets) insufficient; she lacked means/intent to remove child from state	Circumstantial evidence (school visit, signing sheets, statements about Colorado) sufficed as overt acts toward the greater offense	Affirmed sufficiency: a rational juror could find overt acts and intent toward removing the child from Kansas
Whether statute lists alternative means (leading, taking, decoying, enticing)	These are alternative means and State had to prove each instructed means	The listed verbs describe factual options establishing the gravamen (detaining/concealing), not distinct statutory alternative means	Held they are options within a means, not alternative statutory means; State need not prove each verb separately
Prosecutorial misconduct — vouching / misstating law on mistake-of-fact	Prosecutor improperly vouched and misstated that lack of notice was irrelevant to Ortega’s mistake defense	State argued prosecutor’s comments were reasonable inferences about witness motives and properly discussed law on mistake of law vs. mistake of fact	Vouching claim rejected (comments were permissible credibility argument); but prosecutor misstated law on mistake-of-fact — that misstatement was misconduct
Prejudice / instructional error — failure to instruct on mistake-of-fact and lesser included offense	Failure to instruct and prosecutor’s misstatements deprived Ortega of fair trial on attempted aggravated-interference; cumulative error requires reversal	State did not cross-petition on errors; argued errors were harmless and not clearly erroneous	Court reversed attempted aggravated-interference conviction: prosecutor’s misstatements (repeated, uncorrected) plus failure to instruct on mistake-of-fact were prejudicial; disorderly conduct conviction affirmed

Key Cases Cited

State v. Peterman, 280 Kan. 56 (explains overt-act standard for attempt)
State v. Lowrance, 298 Kan. 274 (circumstantial overt acts can support attempt)
State v. Brown, 295 Kan. 181 (distinguishing alternative means vs. options within a means)
State v. Wright, 290 Kan. 194 (alternative-means jury unanimity principles)
State v. Bennington, 293 Kan. 503 (two-prong test for prosecutorial argument review)
State v. King, 288 Kan. 333 (permitted inference-based credibility argument in closing)
State v. McReynolds, 288 Kan. 318 (prosecutor may explain what jury should consider in assessing credibility)
State v. Scaife, 286 Kan. 614 (closing argument credibility commentary within latitude)
State v. Magallanez, 290 Kan. 906 (improper bolstering of witness credibility found prosecutorial misconduct)
State v. Miller, 298 Kan. 921 (discussing permissibility of older reasonable-doubt instruction)
State v. Smyser, 297 Kan. 199 (older PIK reasonable-doubt instruction held legally appropriate)
State v. Waggoner, 297 Kan. 94 (same as to older reasonable-doubt instruction)
State v. Herbel, 296 Kan. 1101 (older PIK instruction not preferred but legally appropriate)
State v. LaMae, 268 Kan. 544 (statutory mistake-of-fact/law defense analysis)
State v. Qualls, 297 Kan. 61 (entitlement to instructions supporting defense theory)
State v. Cummings, 297 Kan. 716 (instructional error can cause jury to apply incorrect legal standard)
State v. Marshall, 294 Kan. 850 (factors for gross and flagrant prosecutorial misconduct)
State v. Bridges, 297 Kan. 989 (harmlessness review interplay with constitutional standard)
Chapman v. California, 386 U.S. 18 (constitutional harmless-error standard)