State v. Portillo
274 P.3d 640
| Kan. | 2012Background
- Portillo was convicted of rape of a child under 14 for an on-grid offense.
- At sentencing, the State sought to apply Jessica's Law (hard-25 life) by amending the PSI to reflect an off-grid offense.
- The district court treated the off-grid designation as a clerical error and sentenced Portillo to 240 months.
- The court later remanded to resentence, holding the error did not prejudice Portillo.
- The information charged the on-grid offense and omitted any age element or off-grid designation.
- On appeal, Portillo argues due process, admissibility of evidence, and sufficiency of penetration evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Off-grid sentencing without age element violates due process | Portillo | State | Information defective; remand for on-grid sentencing |
| Admission of Sunflower House interview videotape | Portillo | State | No abuse of discretion; admissible evidence of state of mind and corroborating consistency |
| Sufficiency of evidence for penetration | Portillo | State | Rational juror could find penetration; evidence sufficient |
Key Cases Cited
- State v. Prine, 287 Kan. 713 (2009) (penetration evidence sufficiency; consistency of victim statements)
- State v. Hall, 246 Kan. 728 (1990) (defective information and arrest of judgment rule; Hall approach)
- State v. Inkelaar, 293 Kan. 414 (2011) (age/offs-grid charging under Jessica's Law concerns)
- State v. Reyna, 290 Kan. 666 (2010) (age element as essential for off-grid offense)
- State v. Gonzales, 289 Kan. 351 (2009) (off-grid rape and charging considerations)
- State v. Gracey, 288 Kan. 252 (2009) (charging defects under Jessica's Law)