A jury in Finney County District Court convicted defendant Christopher Franco of aggravated criminal sodomy. He appeals on multiple grounds, including instructional error, insufficiency of the evidence, and prosecutorial misconduct in closing argument. We find no error and affirm.
Factual Background and Procedural History
Given the issues, we do not linger over the facts. T.W.K., the victim, is a man in his mid-20s and has some mental disability. In April 2011, when the incident occurred, T.W.K. was living independently with his girlfriend in an apartment in Garden City. T.W.K.’s girlfriend had been in a relationship with Franco and bore their child. T.W.K. and Franco became acquainted when Franco visited his son. During those visits, Franco sometimes demonstrated boxing techniques and wrestling moves with T.W.K. The record evidence clearly indicates Franco was larger, stronger, and physically more adept than T.W.K. and easily dominated him during those demonstrations.
On April 20, Franco called and asked to come over to the apartment. T.W.K. agreed even though his girlfriend and her son were out of town. Franco arrived with his current girlfriend. After awhile, Franco whispered something to the woman, and she left the apartment. According to T.W.K.’s account, Franco walked into the bedroom. He told T.W.K. to follow along because he had a surprise. Franco then forcibly performed anal intercourse on T.W.K., who repeatedly implored him to stop. Franco did not. Franco remained at the apartment until his girlfriend returned. The couple tiren left.
T.W.K. immediately contacted representatives of a social service agency that provided assistance to him because of his disability. He explained what happened. The agency representatives called the Garden City police. The police department began an investigation. Franco met with Detective Tanya
At trial, T.W.K. described how Franco forcibly sodomized him. Testifying in his own defense, Franco told the jury that T.W.K. had suggested several times that they have sex and continued to pester him about it. So Franco said he finally agreed. During the sex act, T.W.K. complained that it hurt. Franco testified he immediately stopped. The jury essentially had to resolve directly conflicting testimony from the participants as to whether T.W.K. willingly took part in the sex act.
The jury convicted Franco of aggravated criminal sodomy and acquitted him of battery. Based on Franco’s criminal history and the severity of the offense, the district court imposed a standard guidelines sentence of 620 months in prison for the conviction. Franco has timely appealed.
Legal Analysis
Jury Instructions
On appeal, Franco argues two errors in the jury instructions. First, he contends the district court should have given an instruction to the effect that no crime is committed when a willing participant in a sex act withdraws consent during the encounter and the other participant—the defendant in the criminal case—stops within a reasonable time. See State v. Bunyard,
The Kansas Supreme Court recently outlined the analytical steps in assessing a challenge to jury instructions in a criminal case. State v. Plummer,
Turning to the first alleged error, we look to Bunyard, as do the parties. The Bunyard court recognized that under Kansas law, rape occurs when the victim has initially consented to sexual intercourse with the
Because lack of consent is an element common to the crimes of rape and aggravated criminal sodomy, Franco argues the rule in Bunyard applies in this case and, therefore, the juiy should have been instructed on the legal effect of a victim’s withdrawal of consent. For purposes of evaluating the point, we assume jurisdiction and preservation consistent with the Plummer analysis. We find that Bunyard would govern in a prosecution for aggravated criminal sodomy, so an instruction would be legally appropriate. Our finding seems a safe one in that lack of consent is treated identically in tire statutes criminalizing rape and aggravated criminal sodomy. K.S.A. 21-3502(a)(l) (lack of consent, rape); K.S.A. 21-3506(a)(3) (lack of consent, aggravated criminal sodomy).
Franco’s argument founders, however, on the third Plummer consideration—factual appropriateness in the particular case. In measuring factual propriety, we look at the trial evidence in a light favoring Franco’s version of events and, in doing so, resolve any credibility disputes his way. See Plummer,
The purpose of a Bunyard instruction is to apprise jurors of the governing law in the uncommon rape prosecution: The victim initially agrees to have sex with the defendant and withdraws that consent during the act; and despite the victim’s communicated unwillingness to continue, the defendant doesn’t stop for some measurable time. The instruction basically informs the jurors that a defendant has a “reasonable time” to stop after consent has been withdrawn before continuation of the sex act will be considered criminal. In short, a Bunyard instruction assists jurors in assessing the legal implications when a defendant continues a sex act after the other participant no longer consents.
The instruction was factually inapposite and, thus, unnecessary here. In Franco’s version, T.W.K. initially consented to the sex act; and as soon as he indicated he no longer wished to participate, they stopped. According to Franco, then, there was no measurable time the act continued after T.W.K. withdrew consent. So the jurors needed no guidance on how to determine the legal culpability of a defendant who chose to continue engaging in a sex act after the other participant had withdrawn consent. On that basis, the district court did not err in omitting a Bunyard instruction.
In filis case, die district court instructed the jury on the elements of aggravated criminal sodomy using an appropriately tailored version of PIK Crim. 3d 57.08-B, which is identical to PIK Crim. 4th 55.070. With respect to consent, the instruction informed the jury the State had to prove “[t]he act of sodomy was committed without die consent of [T.W.K.] under circumstances when [T.W.K.] was overcome by force or fear.” The instruction adequately informed the jurors of the law to be applied to the factual scenario Franco described in his testimony. The instruction the district court gave effectively advised the jurors that the sex act and the lack of consent had to exist simultaneously to establish the crime of aggravated criminal sodomy. The jurors, thus, understood that if—as Franco contended—the act ceased as soon as T.W.K. protested, then the charged crime had not been committed. Simply put, in Franco’s version, the act of sodomy was committed only with and during the time of T.W.K.’s consent. So if the jurors believed Franco’s
Even if a Bunyard instruction might have been appropriate under a peculiar stretch of the evidence, we cannot say that its omission was clearly erroneous as outlined in Williams,
For his second instructional error, Franco contends the district court should have informed the jury it could have considered criminal sodomy, a misdemeanor, as a lesser included offense of aggravated criminal sodomy. At trial, Franco did not request an instruction on criminal sodomy, and the district court did not give the jury one.
Pertinent here, criminal sodomy, as set out in K.S.A. 21-3505(a)(1) and recodified in K.S.A. 2013 Supp. 21-5504(a)(l), prohibits consensual anal intercourse and oral-genital contact between persons of the same sex who are 16 years of age or older. See also K.S.A. 21-3501(2) (identifying those acts within the definition of sodomy); K.S.A. 2013 Supp. 21-5501(b) (recodification of definition of sodomy). Those acts are not crimes if they are performed by consenting individuals of the opposite sex who are at least 16 years old.
Under the Plummer analysis, Franco’s challenge based on the omission of an instruction on criminal sodomy as a lesser included offense of aggravated criminal sodomy should be reviewed on appeal for clear error. See K.S.A. 22-3414(3). In light of the statutoiy language criminalizing each, all of the elements of criminal sodomy are also elements of aggravated criminal sodomy. Aggravated criminal sodomy materially differs from criminal sodomy insofar as it requires proof of lack of consent. That makes criminal sodomy a lesser included offense of aggravated criminal sodomy. See K.S.A. 21-3107(2)(b) (a crime is a lesser included offense if all its elements are some of the elements of the greater offense).
Commonly, an instruction on a lesser included offense is not only legally appropriate but statutorily required if the facts of the case support it. K.S.A. 22-3414(3). And the facts viewed favorably to Franco would warrant the instruction, since he cast the encounter with T.W.K. as consensual. All of that suggests the district court should have given the jury an instruction on criminal sodomy as a lesser included offense.
But this is an uncommon issue, as both sides acknowledge in debating it on appeal. As the parties have framed the debate, we must decide whether the criminal sodomy statute may be constitutionally enforced to proscribe and punish anal intercourse between consenting adults of the same sex. The State relies on Lawrence v. Texas,
In Lawrence, the Court considered the constitutionality of a Texas statute criminalizing consensual anal intercourse and oral-genital contact between persons of the same sex.
The United States Supreme Court is the final arbiter when it comes to interpreting and applying the United States Constitution. Other courts—state and federal alike—are bound by stare decisis to abide by that precedent. See State v. Ruggles,
Because Franco could not have been successfully prosecuted for criminal sodomy—the prosecution would have been constitutionally impermissible under Lawrence—we do not see how that could be a lesser included offense of aggravated criminal sodomy. Anal intercourse between consenting adults is no offense at all. And that was true when Franco went to trial.
Franco’s rejoinders are unavailing. The United States Supreme Court’s decision in Lawrence struck down as unconstitutional (and, thus, unenforceable) provisions of a Texas criminal statute that are legally indistinguishable from relevant portions of the Kansas criminal sodomy statute, K.S.A. 21-3505(a)(l), and its recodification, K.S.A. 2013 Supp. 21-5504(a)(l). There can be no reasonable doubt that Lawrence compels the conclusion that the Kansas criminal sodomy statute is unconstitutional and unenforceable to the same extent, and there can be no colorable argument otherwise. Contrary to Franco’s suggestion, that conclusion need not be formally pronounced in a precedential decision from a Kansas appellate court to be valid. Neither Franco nor other criminal defendants would have been entitled to lesser included offense instructions on criminal sodomy during the decade-long lag between Lawrence and this case. Decisions of the United States Supreme Court construing federal constitutional rights
The Kansas Legislature’s decision, made as part of the 2010 re-codification of the criminal code, to readopt those portions of the criminal sodomy statute that violate the Due Process Clause doesn’t resuscitate them. They still violate tire federal Constitution. So that could not have been a valid basis to afford Franco a lesser included offense instruction.
Franco’s argument runs counter to the purpose and effect of the Supremacy Clause, art. VI, cl. 2, of the United States Constitution. In pertinent part, the Supremacy Clause states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.” U. S. Const., art. VI, cl. 2. The Supremacy Clause renders state statutes and common law ineffective to the extent they materially conflict with or impede federal law. Cipollone v. Liggett Group, Inc.,
Franco has presented no viable argument for reversing his conviction based on the jury instructions.
Sufficiency of the Evidence
Franco argues the evidence presented at trial was legally insufficient to support his conviction. In reviewing a criminal defendant’s challenge to the sufficiency of the evidence, an appellate court examines the record in a light most favorable to the State, as the party prevailing at trial, and in support of the jury’s verdict. State v. Hargrove,
And Franco’s credibility in front of the jurors wasn’t free of blemishes. Most notably, perhaps, he gave inconsistent renditions to law enforcement officers investigating the matter. Franco initially denied anything happened between him and T.W.K. He then admitted they had sex but claimed it was consensual. That is not an inconsistency likely born of an honest if faulty recollection. The jurors reasonably could take Franco to be a prevaricator. And they equally reasonably could conclude that had he been deliberately false in one claim, he may have been false in others. See State v. Moreno,
Sorting out testimonial inconsistencies and evaluating credibility is a function uniquely entrusted to jurors. And “[t]he judicial process treats an appearance on the witness stand, with the talcing of an oath and the rigor of cross-examination, as perhaps tire most discerning crucible for separating honesty and accuracy from mendacity and misstatement.” State v. Bellinger,
In arguing insufficiency of the evidence, Franco basically submits drat the questions about T.W.K.’s version of the sexual encounter were sufficiently pronounced that the jurors should have entertained a reasonable doubt about guilt. The argument, however, asks us to do precisely what we cannot—to weigh the evidence and to credit witnesses to reach a result at odds widr the jurors’ collective determination of the facts. We would impermis-sibly invade the province of die jurors as fact-finders to hold for Franco on this point.
States Closing Argument
Franco contends the prosecutor’s closing argument to the jury misstated tire law by impermissibly diluting die State’s burden to prove guilt beyond a reasonable doubt. He points to the prosecutor’s rebuttal argument. After Franco’s lawyer hammered at T.W.K.’s credibility in her argument, the prosecutor went over die evidence supporting T.W.K.’s version and undermining Franco’s. The prosecutor told the jurors diat they had to decide who was more credible based on the evidence and invited them to conclude T.W.K. to be so.
On appeal, Franco specifically cites two portions of die prosecutor’s rebuttal argument. First, the prosecutor told the jurors:
“The instructions tell you that you can use your common sense and experience, and you have to resolve the credibility of the witnesses. The credibility is an importantissue here. We do have two versions of the events. The question is, Who do you believe more? Do you believe [T.W.K.] or do you believe Chris Franco?”
Later in die argument, the prosecutor said:
“[T.W.K.] has nothing to gain from Chris Franco’s testimony. He does have something to gain from it. It’s totally self-serving and it is totally in his own interest. The question comes down to credibility. We have two versions of the events. Who is more believable? Who do you believe?”
Although not directly mentioned in Franco’s brief, the prosecutor also concluded the rebuttal this way: “[T.W.K.] is simply more credible. That is what the evidence shows. And I ask you to convict the defendant of both offenses.”
Franco submits the prosecutor’s suggestion that the jurors find T.W.K. more credible than he diminishes the requirement that the State prove the elements of the offense beyond a reasonable doubt. We disagree.
The appellate courts use a well-established framework to assess allegations of improper closing argument in criminal cases. This court recapitulated the standard of review to be applied on this issue:
“Appellate review of alleged prosecutorial error in argument to a jury entails a two-step analysis. First, the appellate court must decide whether the comments fall outside die wide latitude afforded a prosecutor in discussing the evidence and the law. Second, if the prosecutor has exceeded those bounds, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury to the extent the defendant was denied a fair trial. State v. McReynolds,288 Kan. 318 , 323,202 P.3d 658 (2009) (outlining mode of analysis); see State v. King,288 Kan. 333 , 351,204 P.3d 585 (2009) (noting considerable range permitted advocates, including prosecutor, in arguing their causes in juiy summations).” State v. Schreiner,46 Kan. App. 2d 778 , 793-94,264 P.3d 1033 (2011), rev. denied296 Kan. 1135 (2013).
An appellate court also must review “counsels’ remarks injury summations in light of the overall thrust of the point being made rather than as isolated snippets removed from the surrounding commentary-—commentary that often lends material shading and depth to what might otherwise appear to be of questionable propriety standing alone.” Schreiner,
“ '(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A.'60-261 [refusal to grant new trial is inconsistent with substantial justice] 'and Chapman v. California,386 U.S. 18 , [22,]17 L. Ed. 2d 705 ,87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met.’ [Citations omitted.]” McReynolds,288 Kan. at 323 .
The Kansas Supreme Court recently reiterated the test in State v. Ochs,
In this case, the jurors faced a central task in determining whether T.W.K. consented to engaging in anal intercourse with Franco. As a step in that process, they had to decide which version of the encounter was more credible. If the jurors found Franco more believable, they necessarily would acquit. That conclusion would establish reasonable doubt. The prosecutor spent considerable time during argument parsing the evidence to demonstrate why the jurors should not come to that conclusion and should, rather, find T.W.K. to be more believable.
Rather, as the district court properly instructed the jurors, they had to find each defined element of the offense of aggravated criminal sodomy proven beyond a reasonable doubt. Nothing suggests the jurors abdicated that responsibility. See State v. Becker,
In making their ultimate decision on a verdict, the jurors, of course, presumably considered the testimony and other evidence they found credible. The jurors, however, were not required to give the same weight or credit to each piece of physical evidence or each portion of any witness’ testimony. They were to assess all of the record evidence to reach an ultimate conclusion on whether the State had proven the elements of the offense beyond a reasonable doubt. See Hargrove,
The disputed argument from die prosecutor focused on how best to evaluate some of that evidence and why diat evidence favored T.W.K.’s version of the material circumstances. The Kansas Supreme Court has found that sort of argument to be an unobjectionable means of addressing witness credibility. See State v. Duong,
Sentencing Considerations
Finally, Franco contends the district court improperly considered his criminal history in imposing sentence. Franco argues that the district court’s use of his past convictions in determining an appropriate sentence impairs his constitutional rights because the fact of those convictions was not determined beyond a reasonable doubt by the jury. He principally relies on the United States Supreme Court’s decision in Apprendi v. New Jersey,
Affirmed.
Notes
Justice O’Connor joined in the judgment in Lawrence, but she relied on an equal protection analysis to find the Texas statute unconstitutional because it treated gays and lesbians, as a class, disparately—the crime of deviant sexual intercourse, by definition, applied only to same-sex participants.
Franco argues that even if the purported errors he has asserted did not individually deprive him of a fair trial, their cumulative impact did, so his conviction should be reversed on that basis. See McCaslin,