*1 100,402 No. Appellee, Huerta-Alvarez, Kansas, State Juan Jose Appellant.
(243 326) *2 Opinion 1, 2010. filed October Office, Cessna, cause of Defender argued Heather Kansas Appellate on for was the brief appellant. cause, Isherwood, K. district assistant attorney, argued Boyd A. Lesley Foulston,
Isherwood, Ñola district Tedesco attorney, assistant district attorney, Six, for with her on the brief appellee. Steve attorney general, was delivered court opinion two convic- from Huerta-Alvarez appeals Rosen, Juan J.: Jose with a child K.S.A. tions contrary fall both 21-3504(a)(3)(A). of the offenses on sides The dates *3 21-4643, known as which K.S.A. the date Supp. upon Jessica’s Law, effective; he was sentenced to became consequently, box, months, the Kansas the end of sentencing grid guidelines high count, 25 under and to life with hard K.S.A. on one on He several issues 21-4643 the other count. raises on appeal. 22-3601(b)(l). K.S.A. Our is under jurisdiction
Facts Noack officer Eric was On Wichita December police call. on a check welfare When to 1017 S. Woodlawn dispatched B.N., out her who was locked of he arrived he found 13-year-old her know mother and who him she did not where residence told Noack, to no other adults was. Officer present According mother, and un- arrived. B.N.’s when he Eventually, grandparents, all cle arrived. to mother Noack noticed B.N.’s
Officer trying keep kept her, uncomfortable her and talk to but B.N. B.N. close to appeared seem want to talk to her. B.N. had with her mother and did not to her had told her before mother earlier told the officer day B.N. out because was to her and problems causing pack things get The officer took and her mother’s between her mother boyfriend. at home. B.N. B.N. and asked her if she was aside having problems her mother’s she was with told him that boyfriend. having problems her. he was sexual advances toward She said that making Because called for im- the case departmental policy referring (EMCU), to the Children Unit mediately Exploited Missing Officer Noack did not much farther with He B.N. pursue topic did, however, information her basic from about get allegations. B.N. told him that over the 6 months there been had previous several times that the had tried to her to have sex boyfriend get him, her touch his She these said including asking penis. address, at a which she identified as things mostly happened prior 1401 South Pinecrest Wichita. uncle,
Officer Noack made for B.N. to with her arrangements go comfortable, with whom she was and referred the case to EMCU. Detective Tom Krausch was case and over assigned next few identified the s mother as days boyfriend Juan Jose Huerta-Alvarez, the He also interviewed B.N. Detective appellant. Krausch and B.N. were the State’s main at witnesses trial. Huerta-Alvarez with one count original complaint charged child, and two counts indecent liberties with a rape aggravated all as identified crimes after 2006. Fol- off-grid occurring July the first amended was lowing prehminary hearing, complaint filed, which added a count of criminal and al- aggravated sodomy ternative counts of indecent lib- attempted rape aggravated erties. One count of indecent liberties and alter- aggravated native counts attempted rape
were identified as crimes. A second amended off-grid was filed the State’s evidence at trial and was necessitated following *4 the fact that the State was unable to B.N. to get repeat testimony she had offered at the prehminaiy hearing.
B.N. was often and somewhat in her various vague contradictory statements about what had The closest she came to happened. dates of incident was to she whether any estabhshing particular say it had occurred when she was at the Pinecrest ad- thought living or dress at the Woodlawn address. in the second Ultimately, amended filed of the State’s following presentation trial, evidence at the State settled dates obtained from upon using Westar to records establish the dates of residence at the two utility addresses and thus the dates of the crimes. alleged incidents that B.N. recounted some There three reg- at the of these incidents occurred Pine- first however. ularity, that her mother had records established crest address where utility 2005, 23, until for the utilities from been August Sep- responsible school testified that it was before in 2006. B.N. tember not in the house. She came out of her mother was morning She retreated discovered Huerta-Alvarez naked. the bathroom and at him to dressed. to the bathroom get Eventually again yelled and she from bathroom he told her he was dressed reemerged he At that either she ran or to find him still naked. pulled only point her on bed and started into where he her the bedroom pinned his that he to to disrobe her. She testified penis attempted put to his hand and She her she was able bite but get away. vagina she clothes and ran back to bathroom. When her grabbed he and was in his had left sitting apartment emerged again, truck outside. B.N.
A incident which said at Pinecrest second happened her involved Huerta-Alvarez his hand down sticking apartment little testified that his her She finger penetrated vagina just pants. he The third incident bit and that it hurt because has big fingers. to his in her mouth involved Huerta-Alvarez attempting put penis she the couch. She testified that this incident while was on sitting also occurred at Pinecrest apartment.
At the B.N. testified repeatedly urging prosecutor, at other incidents both the Pinecrest and Woodlawn happened testified, also to the residences. She response prosecutors no to that she was not and had reason make lying up prompting, her story. evidence, informed the court and the State’s the State
Following 6 of the defense counsel Counts amended complaint be since B.N.’s at trial did not would dismissed testimony support therefore, filed to those counts. The second amended complaint, State the fol- conform to the evidence the had presented, alleged statutes, dates, and crime levels and cat- lowing charges, severity egories: 12/16/06; 21-3502(a)(2)(c); SL PF
I. 8/23/05 Rape 9/12/06; 21-3504(a)(3)(A); 8/23/05 SL PF II. Indecent Liberties Agg. *5 9/12/06; 21-3506(a)(l); III. Criminal to 8/23/05 SL PF Agg. Sodomy 12/16/06; 21-3504(a)(3)(A); IV. Indecent Liberties to 9/19/06 Agg. Off-grid. All three of the filed in the case contained Huerta- complaints birth, 1979, Alvarez’ in the of the but year caption complaint, none the counts in of the that he was any complaints alleged at over the of 18 the time of the offenses. All three of the age as to K.S.A. 2005 complaints identify charge rape pursuant 21-3502(a)(2)(c), crime; which identifies an how- Supp. off-grid ever, because of dates the amended and second alleged, amended both the crime as a level 1 complaints identify severity as an not crime. None of the counts of person felony, off-grid indecent liberties of the cite either aggravated any complaints sections, 21-3504(c) K.S.A. and K.S.A. 2006 statutory 21-4643, that felonies; however, enhance the crimes to off-grid counts, several of the two counts indecent including aggravated liberties a child and two counts of original complaint indecent liberties with a child in the amended com- aggravated and Count 4 of the second amended indicate at plaint complaint, the bottom of the that the sentence is page off-grid.
No evidence was at trial the defendant’s presented concerning in the evidence indicated what his age, nothing directly age would have been at time of the offenses. The instruc- alleged tions the defendant did not ask the to find the requested by jury defendant’s instructions the State were not age. Any requested by in the included record on The State had no appeal. objections the instructions the court. The instructions proposed given not did to find Huerta-Alvarez’ at the given require time of the offenses. it,
After the entire of B.N. read back to having testimony convicted Huerta-Alvarez of Counts Because of the dates in the sec- charges. alleged ond amended the conviction under Count 2 ais complaint, severity level 3 while the conviction under Count is an off- person felony, offense. grid
Huerta-Alvarez filed a for a motion downward from departure the life sentence Count 4. The motion as applicable alleges *6 convictions; was had that he the no that defendant prior grounds counts, which would the and criminal of sodomy rape acquitted serious; a and that to as the most be of impose normally thought defendant have “for of when would a count life sentence fondling is and unusual for the count of cruel a sentence received rape grid the United of the Amendment to violation Eighth punishment” 9 Kansas Bill and Section of the Constitution Constitution States be The further Huerta-AIvarez motion of requested Rights. months, low number to 55 the box for sentenced aggravated grid liberties. indecent the for district court denied motion
The departure imposed 25 chance of for on the life sentence with no a years parole primary with child contained of offense 2, On 4 of the second amended Count Count stating complaint. the the law back he was concerned change legislature might Law, the under the and lower sentences judge imposed Jessica’s months, number in the box. a sentence of 61 the high grid imposed Time, to se of Huerta-AIvarez filed a Notice of Out Appeal pro file was allowed to which the State did not The defendant object. out of time. his appeal
Analysis v. is another in the line of cases State This Gracey, including (2009); Bello, 1275 State v. 289 Kan. 200 P.3d Gonzales, (2009); 212 P.3d 139 State v. 289 211 P.3d 488, 213 1045 (2009); and 215 State Morningstar, a sex with a child was convicted of crime appellant 21-4643, and sentenced K.S.A. under years age pursuant Law, to the that he was a life sentence on fact premised Jessica’s offenses, he the than 18 of when committed older despite years age in the fact that the did not his State complaint, allege age was not instructed to find his reasonable beyond age result, that, his as a convictions doubt. Huerta-AIvarez argues violate the Sixth Amendment to Constitution sentence 10 of Kansas Constitution Bill United States and Section not limit does Huerta-AIvarez’ brief Although specifically Rights. conviction his to his under Count 4 of second argument amended is limited. so complaint, argument necessity Complaint
Huerta-Alvarez that the district court did have not argues juris- diction to sentence him under K.S.A. 21-4643 because was defective in he that was over failing allege of 18. This court reviewed the identical issue in recently 254-57, Gonzales, 288 Kan. at and State v. Gracey, Kan. at 365-69. an “Whether information is sufficient to confer matter subject jurisdiction *7 law over an of which court has
question
unlimited review.” State v.
appellate
261,
256,
Huerta-Alvarez
not
does maintain that the
was
complaint
fatally
Rather,
crime,
defective.
he maintains that it
a valid
charged
just
that,
not the crime for which he was
He
sentenced.
there-
argues
fore, the court lacked
to sentence him under K.S.A.
jurisdiction
chance of
for
with no
a life sentence
21-4643 to
parole
2006 Supp.
and the case
be vacated
must
the sentence
He maintains
25 years.
the
under
for
grid.
remanded
guidelines
resentencing
in
identical issue
the
court considered
Gracey.
document
depends
evaluate the sufficiency
charging
test used to
“The
661,
89 P.3d
277 Kan.
State v.
was first raised.
Shirley,
when the issue
upon
first time on
for the
ap-
document
challenged
When
charging
(1)
either:
that the
defect
prejudiced
must show
the defendant
alleged
peal,
defense; (2)
defendant’s
to
ability
plead
aof
impaired
defendant’s preparation
(3)
sub-
limited the defendant’s
or
in
prosecution;
the conviction
any subsequent
for the
‘The
it takes
“The
by reading
validity
charging
of the offense
and the elements
in its
the document
may
entirety,
the document as whole.
from
be
McElroy,
gleaned
reviewed
the court
Applying a matter as documents, as in this case is not set of simple charging Nonetheless, all three of in of the the review Gracey. complaint therefore, trial and filed the two the prior including complaints, defense, contained of Huerta-Alvarez’ the relevant to preparation of the in the the of his birth alleged complaint caption year liberties was indecent of one of the counts that at least an offense. off-grid that, concluded based on the limited standard of review
Gracey the district court’s decision to K.S.A.2006 applicable, apply 21-4643 in was not reversible error. In Gon- Gracey sentencing zales, 289 Kan. at court reviewed complaint virtually concluded, identical in of that the provisions light Gracey, in failure to that Gonzales was 18 allege specifically or older did not invalidate his conviction. years age in are, The facts this case with documents regard charging in identical to those in and Gonzales. Read- pertinent part, Gracey the documents as a whole indicates that Huerta-Alvarez was ing both informed of the crimes and the adequately alleged penalty There is no indication that Huerta-Alvarez was unaware proposed. of the of the crimes with which he was potential consequences or filed him charged anything complaints against prej- udiced his defense. There are no under this issue .grounds upon which to vacate his sentence. Instructions
Jury Huerta-Alvarez relies to a upon guarantee right jury trial in the Sixth and Fourteenth Amendments to the United States Constitution, with the similar contained Section along guarantee 10 of the Kansas Constitution Bill of and on Rights, Apprendi 466, 490, 147 New 435, 120 U.S. L. Ed. 2d S. Ct. Jersey, (2000), to that the failure to instruct the to find his argue jury at the error, time offenses was clear alleged requiring court to reverse the conviction and remand for a new trial. Again, Huerta-Alvarez does not limit this to his con specifically argument viction under Count 4 second amended but the complaint, so limited. argument necessarily Instructions are erroneous if the court is “only reviewing firmly convinced there is a real would have ren possibility dered a different if verdict the error had not occurred. [Citations Davis, omitted.]”
Further, Huerta-Alvarez out that failure to instruct points although error, on an element of the crime is this has court held that a constitutional harmless error can still See State v. analysis apply. Daniels, 53, 62-63, 91 P.3d cert. denied 543 U.S.
257
9,
Kan.
290
State
(2004);
Syl.
Reyna,
¶
Bello,
Gonzales,
of this
also
on
argument.
disposes
relying
ele-
essential
the defendant’s
age
also contends
omitting
“Gonzales
—an
re-
instructions
and from the
requires
document
ment —from
charging
liberties with a child under
indecent
for
versal of his conviction
aggravated
Bello, 289
the recent case of
no merit in
of
has
light
of 14. This argument
age
[195-200],
Kan. at
Gonzales,
a
indecent liberties with
was convicted of
Bello
aggravated
“Like
to both
criminal
With
14 and
sodomy.
regard
of
child under
aggravated
age
conviction,
and the
was 18
or older
because he
years
age
crimes of
of Bello’s
level crimes
the crimes
off-grid severity
under 14
victim was
years
age,
an
element
is
essential
that the defendant’s
K.S.A.
age
under
21-4706. Asserting
court, Bello
now
before this
that Gonzales
the same
brings
arguments
making
a
a
which establishes
21-4643 as statute
separate,
K.S.A.
characterized
the idea that
This court
enumerated crimes.
rejected
sep-
form of the
aggravated
the statute.
were created
arate crimes
“Instead,
Bello’s
of the statutes
aggra-
we observed that each
defining
crimes—
with a child—’sets forth
indecent liberties
criminal sodomy
aggravated
vated
the act which Bello com-
which can
of the offense
two
levels
apply
separate
offense,
an
offense.’
and the other
box
off-grid
mitted: one KSGA nondrug grid
Bello,
of which offense
We
determination
‘[t]he
This
does
of the issue whether
analysis
dispose
the failure to instruct the
to find Huerta-Alvarez’
renders
jury
age
his
Gonzales,
sentence invalid.
The State makes two First, relevant to this issue. it arguments cites line of cases convictions need not be holding prior in the document nor found alleged when charging juiy they are a fact that establishes the class or of the simply crime. penalty Second, the State makes an based con- argument upon statutory struction that the defendant’s is not an element of age indecent and, liberties with a therefore, child need not be juiy instructed to find it. Both of the State’s are invalid in arguments fact, other than the light fact holding Apprendi any conviction, of a that enhances the sentence prior the stat- beyond maximum must be determined utory by jury.
In the recent 681, cases of Garza, 290 Kan. at Reyna, 3,236 (2010), P.3d 501 Martinez, and State v. Syl. ¶ (2010), we held that we Syl. ¶ would harmless error to this issue and find harmless apply analysis error where the evidence before the of the sentence-enhanc- uncontroverted, fact was overwhelming essentially leading ing have found the existence the court to conclude would Daniels, instructed. See the fact had it been properly States, 1, 144 35, 119 64-65; L. Ed. 2d Neder v. United U.S. at 1827, (1999). In the defendant took the stand and S. Ct. Reyna, the trial. No direct evidence of stated his during comparably age case. After oral Huerta-Alvarez’ was this presented argument however, the State added to the publication Reyna, of a of Huerta-Alvarez’ interview record on appeal copy transcript that this with Detective Krausch. The State out points transcript *11 was admitted into evidence and went to deliberations the jury. columns, the The first of the is divided into two page transcript first as the second column contain containing dialogue given, the translation to of the conducted ing English any parts dialogue The are identified initials there Spanish. speakers although the initials. The on the is no full names to key matching dialogue first is as follows: page HUERTA ÁLVAREZ “JOSÉ JUAN #
CASE 07CR27 DC: I’ll this over here put a OA: Va la chamarra ah. He’s the coat there. poner going put OK JH: OA: Do case have the number you yet? DC: What’s that? Do have the' case
OA: number you yet? Uh, 97265 DC:
OA: . . .
DC: On
OA: ... on the date of birth I guess 1,5,79 DC:
OA: Aha that
DC: Is of birth? day ... his OA: address
DC: What’s with the Alvarez? up ... name” OA: his mom’s last 5, 1979,
Huerta-Alvarez’ date of but that is less birth January Further, than clear we are left to on face of this transcript. as to what extent or whether the even reviewed speculate circumstances, its deliberations. Under these transcript during there is no or uncontroverted evidence which overwhelming upon to base harmless error The life sentence must be vacated finding. and the case remanded for on Count 4 under the resentencing KSGA box. applicable grid the Evidence
Sufficiency of Huerta-Alvarez next that there was insufficient evidence argues his conviction on Count 4 because State failed to “[t]he support older, 18was or an element of [he] prove years aggra- 21-3504(a)(3)(A) vated indecent liberties under K.S.A. and K.S.A. 21-4643(a)(l).” “When defendant of the evidence in a criminal challenges sufficiency case, evidence, the standard of review is whether after all the viewed reviewing
in the
most favorable to the
light
court is convinced
prosecution,
appellate
that a rational factfinder could have found the defendant
a reason-
guilty beyond
Gant,
76, 83,
(2009)
able doubt.” State v.
Huerta-Alvarez his argues prosecutor infringed right a fair trial the State’switness by improperly bolstering during ques- and and his tioning closing argument by telling opinion the evidence The State that during closing argument. argues Huerta-Alvarez’ claims concerning by questioning prosecutor are not before the court because no properly contemporaneous was made at trial and that the statements objection prosecutor’s do not amount to miscon- closing argument prosecutorial during duct. all
A must be made to objection contemporaneous evidentiary and by including questions posed prosecutor responses claims— review. to those those claims for preserve appellate questions —to 333, 349, 204 (2009). 288 Kan. P.3d 585 No contem King, however, is to review a objection poraneous required, prosecutor’s made statements for misconduct. 288 during closing argument Kan. at 349. first
Huerta-AIvarez to B.N. complains questions posed at trial which elicited prosecutor (presumably by design) responses her from she was not and had no motive assuring lying to fabricate her Trial counsel failed to to these story. object ques- result, As a whether tions. amounted to miscon- they prosecutorial duct is not before the court. properly review of an misconduct
Appellate
allegation
prosecutorial
comments to the
involving improper
jury during closing argument
First,
court decides
requires
two-step analysis.
appellate
whether the
comments
outside the wide latitude that the
Second,
allowed
the evidence.
if mis-
prosecutor
discussing
found,
conduct is
court must determine whether the
appellate
error;
is,
comments constitute
whether the
improper
plain
statements
the defendant and denied
prejudiced
jury against
the defendant a fair trial. State v.
McReynolds,
In the second
court
step
two-step analysis,
appellate
considers three factors:
“ ‘(1)
(2)
whether the misconduct was
whether the miscon-
gross
flagrant;
(3)
duct
ill
showed will on the
whether the evidence was
prosecutor’s part;
of such a direct and
nature that the misconduct would
have
overwhelming
likely
had little
in the minds of
None of these three factors is
weight
jurors.
individually
Moreover, the third factor
not override the first two factors unless
controlling.
may
the harmless error tests of both K.S.A. 60-261
new
trial is incon-
[refusal
grant
22,]
18,[
sistent with substantial
386 U.S.
justice]
California,
Chapman
(1967)
L. Ed. 2d
have been met. [Citations omitted.]’ [Citation McReynolds, omitted.]” *13 at 323.
262 revers- claims that a committed a defendant
“When
prosecutor
misconduct,
nature of
errors is
the
ible
analyzed
alleged
prejudicial
State v.
a
Murray,
of the trial record as whole.”
in the context
Whitaker,
(2008)
Huerta-Alvarez .about by complains generally the B.N.’s the credibility during prosecu- concerning prosecutor and, made about one statement tor’s closing argument specifically, of his the rebuttal Generally, closing argument. during portion on B.N.’s since focused credibility prosecutor’s closing argument word. to her word Huerta-Alvarez’ the case boiled down against to the statement: Huerta-Alvarez objects following Specifically, this, not remember but when “There’s I to mention. You may something forgot case, At the end of the read the there were six you, charges. Judge charges me, 5 and there were some I dismissed Counts 4 and —or excuse because things stand, So, in case on the for reasons I don’t know. she couldn’t you just say 6,1 them and the State’s remember there were Counts 5 and dismissed you gave case.”
A review of the trial record as a whole reveals credibility in the case. of B.N. was the issue key offer the his or her as not “Generally, prosecutor may personal opinion hand, the other to the of witnesses. On omitted.] credibility prosecutor [Citation inferences to drawn from is free to craft an that includes reasonable be argument include to the evidence. That latitude would omitted.] explaining [Citation when the what it should look for in witness assessing credibility, especially witnesses.” State v. defense has attacked the of the State’s Scaife, credibility 614, 623-24,186 as Huerta-Alvarez now remarks closing, prosecutor’s in the nature of what B.N. reviewing complains, generally statements, said, of her to assess juiy credibility asking con- she would not have made more up queiying jury why if at all. The ar- venient in fact she had fabricated story story when the within the latitude allowed the was prosecutor gument is the witness. issue key credibility complaining hand, the in rebuttal On the other statement prosecution 5 and 6 the State’s dismissal of Counts clearly goes concerning the evidence the case. beyond *14 “It is well established that the fundamental in rule is that a closing arguments must confine his or her comments to matters in prosecutor evidence. When the evidence, occurs, facts that are not in misconduct
prosecutor argues
and the first
of the test for
misconduct has been met. State v.
prong
prosecutorial
Murray,
503, 512, 174
(2008).
addition,
P.3d 407
In
when a
refers to facts
prosecutor
evidence,
in
not
such statements tend to make the
his or her own
prosecutor
witness who offers unsworn
not
testimony
cross-examination. See
subject
[State
Pabst,
[501, 510,
321(2000)];
Hill,
tz]
v.
17 Cal. 4th
People
(1998).
72 Cal.
2d
What is more difficult to assess is whether the statement error, ie., amounts to whether the statement plain prejudiced the defendant and denied the defendant a fair trial. jury against factors, of the first two whether the misconduct was Application and whether it showed ill will on the gross flagrant, prosecu- tor’s lead to conclusions in the context of the entire part, negative trial There is in the to indicate that transcript. nothing transcript to exceed the bounds of prosecutor consciously sought propri- ety. factor, of the third whether the evidence was of such
Application a direct and nature that the misconduct would overwhelming likely have had little This the minds of the is not weight jurors, simple. not override the first two factors unless the inquiry harmless may error tests of both K.S.A. 60-261 and have Chapman California, 60-261, been met. Under K.S.A. the court must consider whether refusal to a new trial is inconsistent with substantial grant justice. Under the court must reach a conclusion a rea- Chapman, beyond little, sonable doubt that the error had if likelihood of any, having trial, the result of the in order to affirm the convictions. changed While direct, B.N.’s was often less than she was clear testimony that Huerta-Alvarez molested her on at least three occasions. It cannot be said that refusal to a new trial is inconsistent with grant s remarks While
substantial inappro- prosecutor justice. whole, as a context of the trial it in the is unlikely, priate, those remarks. attributable to the trial was outcome of directly Sentencing Arguments minimum sentences
Huerta-Alvarez
mandatory
argues
and violate
21-4643 are
in K.S.A. 2006
disproportionate
Consti-
to the United States
Amendments
and Fourteenth
Eighth
*15
He
Bill of
9 of the Kansas Constitution
tution and Section
Rights.
his motion for
erred in
that the district court
also
denying
argues
were substantial
because there
from the life sentence
departure
it.
reasons to
grant
compelling
recent decisions.
in three
have addressed similar
We
arguments
650,
(2009);
510
State v.
288 Kan.
206 P.3d
See State v. Spotts,
(2009);
Thomas,
157,
1265
288 Kan.
199 P.3d
Ortega-
(2008);
v.
Cadelan,
Huerta-Alvarez’ regarding is dis- amended for Count of the second sentence com- 4 of the second amended The sentence on Count missed. under vacated, remanded for and the case is resentencing plaint Act on that count. Guidelines the Kansas Sentencing not C.J., participating. Davis, I concur with result. J., concurring: majority’s Spe- Johnson, I Huerta-Alvarez’ sentence on Count
cifically, agree vacating 4 and for aas offense, level 3 remanding resentencing severity because is the crime with which he was and for which charged he was convicted State See Reyna, jury. J., dissenting). (Johnson,