State v. JuarezState v. Juarez
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- Before:
- Rulon
Daniel F. Juarez, defendant, appeals his convictions, after a jury trial, on three counts of aggravated sodomy, in violation of
The charges against defendant arose from sexual acts defendant performed with W.C., a 16-year-old boy. During the summer of
W.C. became acquainted with defendant while shopping at the American Council of the Blind Thrift Store where defendant was employed. Frequently W.C. accompanied defendant to defendant’s apartment after work. While &t the apartment, on at least two occasions, W.C. watched pornographic videotapes that defendant had rented. W.C. testified that on more than one occasion defendant performed oral and anal sex on him. W.C. additionally testified that he performed oral and anal sex on defendant. Defendant also took Polaroid photographs of W.C. in an undressed, sexually aroused condition and had W.C. take similar photographs of defendant.
When W.C.’s mother became aware that sexual activity might have taken place between W.C. and defendant, she took W.C. to the K.U. Medical Center for a medical evaluation. The examining physician found physical evidence to indicate that W.C. had engaged in anal intercourse. Later, W.C.’s mother contacted the police.
During trial, the State presented testimony by W.C., his school psychologist, his mother, one of his friends, and his examining physician; the photographs that W.C. and defendant had taken of each other; and statements made by defendant admitting a sexual relationship between defendant and W.C. Ultimately, defendant was convicted of three counts of aggravated criminal sodomy and one count of promoting sexual performance by a minor.
The Kansas aggravated criminal sodomy statute,
“Aggravated criminal sodomy is:
(a) Sodomy with a child who is not married to the offender and who is under 16 years of age;
(b) causing a child under 16 years of age to engage in sodomy with any person or an animal; or
(c) sodomy with a person who does not consent to the sodomy or causing a person, without the person’s consent, to engage in sodomy with any person or an animal, under any of the following circumstances:
(1) When the victim is overcome by force or fear;
(ii) when the victim is unconscious or physically powerless;
(iii) when the victim is incapable of giving consent because of mental deficiency or disease, which condition was known by the offender or was reasonably apparent to the offender; or
(iv) when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance administered to the victim by the offender, or by another person with the offender’s knowledge, unless the victim voluntarily consumes or allows the administration of the substance with knowledge of its nature.
(2) Aggravated criminal sodomy is a class B felony.” (Emphasis supplied.)
Defendant argues that in order to obtain a conviction under
In
Keim v. State,
13 Kan. App. 2d 604, 777 P.2d 278 (1989), this court upheld the constitutionality of a provision in the Kansas rape statute that is nearly identical to
The Keim court relied upon a similar provision in the Iowa Code that had been upheld by the Iowa Supreme Court in State v. Sullivan, 298 N.W.2d 267 (Iowa 1980). The Sullivan court reasoned that “ ‘[t]he potential offender must simply determine if his or her partner understands the nature and consequences of engaging in the sex act. Under normal circumstances a mental incapacity to consent would be apparent in ordinary social intercourse.’ ” 13 Kan. App. 2d at 607 (quoting 298 N.W.2d at 272-73).
The
Keim
court further relied upon the case of
State v. Degrenier,
120 N.H. 919, 424 A.2d 412 (1980), in which the New Hampshire Supreme Court construed its similarly worded statute
The Keim court adopted the reasoning from Sullivan and Degrenier and stated that “[t]he language [of the rape statute] sufficiently warns a person of common intelligence that engaging in sexual intercourse with one who is mentally handicapped to a degree that he or she cannot understand the nature and consequences of engaging in the act is prohibited.” 13 Kan. App. 2d at 608. The court concluded that “[u]nder normal circumstances a mental incapacity to consent would be apparent in ordinary social intercourse.” 13 Kan. App. 2d at 608.
The same rationale is applicable to this case, where we are not concerned with a defendant’s ability to determine mental incapacity to consent but rather a juror’s ability to do so. Keim held that a person of common intelligence is capable of determining whether an individual’s mental deficiency renders him or her incapable of giving consent. A juror, by definition, is a person of common intelligence. Therefore, when the capacity of a mentally deficient individual to consent to a sexual act is at issue, the jury is capable of determining whether that individual is able to understand the nature and consequences of engaging in such an act. In reaching its determination, the jury should evaluate the individual’s behavior in normal social intercourse as well as consider any expert testimony concerning the individual’s mental deficiency.
Defendant argues there was insufficient evidence presented at his trial for the jury to conclude that W.C. was incapable of consent due to mental deficiency. It is well established that “[w]hen the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence,
Defendant next contends that an improper statement made by the prosecutor misled and prejudiced the jury. During closing argument, the prosecutor made the following remark:
“All the State has to prove to you is that [W.C.] was suffering from a mental deficiency or disease. We have proven that to you by [the school psychologist], If we had not proven to you a crucial element then Judge Lamar would never have even submitted this case to you.”
This statement implies that, by submitting the case to the jury, the district court is endorsing the proposition that W.C. is mentally deficient. The court clearly did not approve of the prosecution’s remark but felt such remark caused no harm to the defendant.
“In deciding whether prosecutorial misconduct requires reversal, an appellate court determines whether there was little or no likelihood the error changed the result of the trial.” State v. Chism, 243 Kan. 484, 493, 759 P.2d 105 (1988). “Where the evidence of guilt is of such direct and overwhelming nature that it can be said that the erroneous admission of certain other evidence could not have affected the result of the trial, such admission is harmless error.” State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976).
The evidence presented by the State of W.C.’s mental deficiency was so substantial that it is highly unlikely that the improper prosecutorial remark had any effect on the jury’s verdict. During the trial, the prosecution called W.C.’s school psychologist, his mother, and a friend of his to testify that W.C. was mentally deficient. Further, W.C. was presented as a witness so that the jury could personally observe his demeanor. Taken to
Affirmed.