Opinion
No. 106,155.
2012-10-5
STATE of Kansas, Appellee, v. Trey L. BRYANT, Appellant.
Appeal from Shawnee District Court; Charles Andrews, Jr., Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Charles Andrews, Jr., Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
GREEN, J.
Trey L. Bryant appeals from his convictions of rape, aggravated criminal sodomy, aggravated battery, and aggravated intimidation of a witness. On appeal, Bryant makes the following arguments: (1) that the State failed to present sufficient evidence on each alternative means to support a unanimous jury decision for his aggravated criminal sodomy conviction; (2) that the State failed to present sufficient evidence on each alternative means to support a unanimous jury decision for his aggravated intimidation of a witness; (3) that the trial court erred when it allowed the State to conduct cross-examination beyond the scope of direct examination; (4) that the State committed prosecutorial misconduct during closing argument; (5) that the cumulative effect of the alleged errors denied him a fair trial; (6) that the trial court erred because it failed to consider his financial resources before it imposed attorney fees; and (7) that the trial court unconstitutionally used his criminal history to increase his sentence without proving it to a jury. We affirm in part, vacate in part, and remand with directions.
The parties dispute the underlying facts of this case. Both Bryant and the victim, C.A.M., testified at trial. Bryant's version of events is as follows. On November 3, 2003, Bryant went to Janet Ransom's house in Topeka, Kansas, to find his girlfriend, C.A.M. Bryant planned to tell C.A.M. that he wanted to break up. After Bryant arrived at Ransom's house, he and C.A.M. left in a van to talk. While riding in the van, Bryant told C.A.M. he was leaving her for the mother of his child. C.A.M. became upset and began to drive erratically. When C.A.M. ignored Bryant's demands to pull over, Bryant punched C.A.M. in the face several times. He maintained that he hit C.A.M. to get her to stop the van.
C.A.M. stopped the van near a restaurant. Bryant got a cup of water from the restaurant to clean C.A.M.'s face, which was bleeding. After C.A.M. cleaned her face, she and Bryant drove around and decided to go to a local park and smoke marijuana. C.A.M. told Bryant that she was “horny,” and the two had consensual sex in the van. Later, Bryant and C.A.M. drove to a friend's house to get some medicine for C.A.M. Next, C.A.M. asked Bryant what she could do to keep their relationship from ending. Although Bryant stated that there was nothing C.A.M. could do to save their relationship, he allowed her to fellate him.
C.A.M.'s version of the events differed significantly from Bryant's. At trial, C.A.M. testified that on November 3, 2003, she was in an upstairs bedroom at Ransoms' house when she heard Ransom and Bryant arguing. When she went downstairs to see what was going on, Bryant grabbed her. He led her outside and grabbed the keys to her van. Bryant put C.A.M. in the passenger seat of the van and left the house. While Bryant drove C.A.M. around Topeka he punched her in the upper body and face, which later required 16 stitches to close her wounds. Bryant stopped the van and told C.A.M that he wanted to have sex. When C.A.M. refused, Bryant punched her in the side, pulled off one of her pant legs, and forced her to have sex.
Next, Bryant drove to Tara Lewis' house where he got some Tylenol and water for C.A.M. After Bryant drove around some more, he told C.A.M. that he wanted her to fellate him. Although C.A.M. told Bryant that she did not want to, she testified that she fellated him because she was afraid. Later, C.A.M. drove herself to the hospital. While at the hospital, Detective Thomas Young talked to C.A.M. C.A .M. told Detective Young that Bryant had raped, beaten, and forced her to fellate him by grabbing her head and forcing it down to his penis.
The State initially charged Bryant with rape, aggravated criminal sodomy, aggravated burglary, and aggravated battery. Before trial, Bryant allegedly wrote a letter to Shannon Martin warning C.A.M. not to testify against him. The relevant parts of the letter stated the following:
“I can't believe I finally tell the crazy bitch that I don't want anything to do with her and this shit happens.... My family is putting a hit out on [C.A.M.] an[d] her family ... She shouldn't of lied on me.... If you see [C.A.M.] tell her to drop this shit before something bad happens. [E]veryone ... is waiting for her to testify in court and if she does she's dead.... She lives at [address omitted].... But yeah do this for me and you'll get some money from my family. Don't really know how much. Much Love Trey Bryant[.] Please help [me] out. Lol for real. You will get repaid for your service.”
Because of the letter, the State amended the complaint/information and added the charge of aggravated intimidation of a witness to the other charges against Bryant.
A jury later convicted Bryant on all counts. The trial court, however, granted Bryant's motion to dismiss the aggravated burglary charge at his sentencing. The trial court sentenced Bryant to a controlling prison sentence of 370 months. The trial court imposed attorney fees on Bryant without considering his ability to pay those fees.
I. Does Kansas' Statutory Definition For Sodomy Create an Alternative Means For Aggravated Criminal Sodomy?
Bryant first argues that his conviction for aggravated criminal sodomy must be reversed because the State failed to present sufficient evidence to support one of the alternative means submitted to the jury. In particular, Bryant argues that the State failed to present evidence that he made oral contact or orally penetrated the genitalia of C.A.M. Nevertheless, we need not address Bryant's alternative means argument because of invited error. A party may not invite error in a case and then complain of that error as a ground for reversing an adverse judgment. State v. Miller, 293 Kan. 535, 554, 264 P.3d 461(2011).
The trial judge instructed the jury concerning the aggravated criminal sodomy charge as follows:
“INSTRUCTION NO 9:
“The defendant is charged in Count 2 with the crime of aggravated criminal sodomy. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant engaged in sodomy with C.A.M.;
2. That this act of sodomy was committed without consent of C.A.M. under circumstances when C.A.M. was overcome by fear or force; and
3. That this act occurred on or about the 3rd day of November, 2003, in Shawnee County, Kansas.
“INSTRUCTION NO 10:
“Sodomy may be defined as: oral contact or oral penetration of the female genitalia or oral contact of the male genitalia.
“Aggravated criminal sodomy means sodomy with a person who does not consent under conditions when the person is overcome by force or fear.”
During the proposed jury instruction conference with the trial judge, defense counsel had no objection concerning the proposed instruction for aggravated criminal sodomy nor any objection to the definition instruction for sodomy:
“[TRIAL JUDGE]: The defendant is charged in count 2 with the crime of aggravated criminal sodomy. Carefully read that as far as the elements go. This will be number nine. Once again I do not feel like there is a lesser included that should be considered by this Court based upon the evidence I heard.
“MR. LEFFINGWELL: I agree.
“MR. HUERTER: No request for one, Judge.
“[TRIAL JUDGE]: Next the definition of sodomy; number ten.
....
“[TRIAL JUDGE]: Any other requests or additions to the instructions?
“MR. LEFFINGWELL: No, Your Honor.
“MR. HUERTER: No, Your Honor.”
Here, the trial transcript reveals that each counsel had ample opportunity to assert his position during the jury instruction conference. Moreover, Bryant did not object to the use of the instruction. Thus, Bryant's alternative means argument fails because of invited error. “When defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.” State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011).
II. Is Aggravated Intimidation of a Witness an Alternative Means Crime; and If So, Did the State Present Sufficient Evidence to Support Each Means of the Crime?
Next, Bryant argues that aggravated intimidation of a witness or victim is an alternative means crime for which the State failed to prove sufficient evidence to support each alternative means. In particular, Bryant argues that alternative means were created by the jury instruction language which required a finding that the act was accompanied by an express or implied threat of force of violence against C.A.M. The State maintains that the phrase “express or implied threat” does not create alternative means.
K.S.A. 21–3833(a)(1) states that aggravated intimidation of a witness or victim is an “act ... accompanied by an expressed or implied threat of force or violence against a witness, victim or other person or the property of any witness, victim or other person.” The trial court instructed the jury on the charge of aggravated intimidation of a witness or victim as follows:
“To establish this charge, each of the following claims must be proved:
1. That the defendant attempted to prevent or dissuade a victim or witness, to-wit: C.A.M. from attending or giving testimony at a criminal trial, proceeding or inquiry authorized by law;
2. That the act was accompanied by an expressed or implied threat or force or violence against C.A.M;
3. That the defendant did so knowingly and maliciously; and
4. That this act occurred on or about November, 2003, in Shawnee County, Kansas.”
Although Bryant concedes that the State presented evidence to show that he expressly threatened C.A.M., he maintains that the State failed to present any evidence of an implied threat. Thus, we must determine the following questions: Does the statutory language under K.S.A. 21–3833(a)(l) create alternative means for committing aggravated intimidation of a witness or victim; and if so, did the State present sufficient evidence to support the implied threat means?
The statutory language under K.S.A. 21–3833 does not create alternative means for committing aggravated intimidation of a witness or victim. We are guided in this determination by State v.. Houston, No. 104,589, 2011 WL 6311866 (Kan.App.2011) (unpublished opinion) petition for review filed December 29, 2011. In Houston, the defendant made an argument substantially similar to the argument that Bryant makes here, i.e., that the phrase “expressed or implied threat” created an alternative means for committing aggravated intimidation of a witness or victim. 2011 WL 6311866, at *6. The Houston court held, in part, that based on legislative intent, “the words ‘expressed or implied’ do not create alternative means.” 2011 WL 6311866 at, *8. The Houston court reasoned:
“Our Supreme Court has adopted the statutory definition of threat': ‘ “ ‘a communicated intent to inflict physical or other harm on any person or on property” [Citation omitted.]’ State v. Phelps, 266 Kan. 185, 196, 967 P.2d 304 (1998). ‘Expressed’ and ‘implied’ are adjectives describing the word ‘threat.’ Black's Law Dictionary defines ‘expressed’ as ‘[d]eclared in direct terms; stated in words; not left to inference or implication.’ Black's Law Dictionary 661 (9th ed.2009). ‘Implied,’ on the other hand, is defined as ‘[n]ot directly expressed; recognized by the law as existing inferentially.’ Black's Law Dictionary 822 (9th ed.2009). Although these two words have different meanings, they both modify the word ‘threat,’ thereby bringing all types of threats, expressed or implied, within the purview of the statute.” 2011 WL 6311866, at *8.
We adopt the Houston court's reasoning. Moreover, this court has reached a similar decision. See State v. Praylow, No. 105,711, 2012 WL 1072762, at *4 (Kan.App.2012) (unpublished opinion) (phrase “express or implied threat of force” does not establish alternative means for committing aggravated intimidation of a witness), petition for review filed April 20, 2012.
Assuming arguendo that the previously mentioned phrase creates alternative means, Bryant's argument still fails because there was sufficient evidence to support each means. Bryant concedes that the State presented evidence that he expressly threatened C.A.M. Bryant's letter to Martin is sufficient to establish an implied threat. The letter—sent to Martin and not C.A.M.—stated that C.A.M. should “drop this shit before something bad happens.” Moreover, during the trial, Bryant tried to disassociate himself from the threat contained in the letter by claiming that his family, not him, was after C.A.M. A reasonable trier of fact could have found that this alleged veiled threat by Bryant's family constituted an implied threat. Consequently, the State presented sufficient evidence that Bryant's actions were accompanied by a threat, expressed or implied.
III. Did the Trial Court Commit Reversible Error When It Allowed the State to Conduct Cross–Examination Beyond the Scope of Direct Examination?
Bryant also argues that the trial court erred when it allowed the State to ask him questions on cross-examination that went beyond the scope of direct examination. Specifically, Bryant argues that the State's questions on cross-examination concerning a letter sent to Martin were beyond the scope of direct examination because his defense counsel did not ask him any questions about the letter on direct examination. The State disagrees and argues that the trial court did not abuse its discretion in allowing questions on cross-examination about the letter. In the alternative, the State argues that even if the questions were improper, the error here was harmless.
Generally, when cross-examination is not responsive to testimony given on direct examination or material and relevant to direct testimony, it goes beyond the scope of direct examination and therefore is not allowed. See State v. Canaan, 265 Kan. 835, 854, 964 P.2d 681 (1998). But the scope of cross-examination is subject to reasonable control by the trial court, and the decision to limit cross-examination is reviewed under an abuse of discretion standard. State v. Corbett, 281 Kan. 294, 307–08, 130 P.3d 1179 (2006). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. [Citation omitted.]” State v. Gant, 288 Kan. 76, 81–82, 201 P .3d 673 (2009). A trial court also abuses its discretion when it makes an error of law, and therefore an appellate court reviews whether the trial court's decision was guided by erroneous legal conclusions. State v. Moore, 287 Kan. 121, 135, 194 P.3d 18 (2008).
As mentioned earlier, Bryant testified on his own behalf in this case. During direct testimony, Bryant's defense counsel did not ask him any questions about the letter which was sent to Martin. Nevertheless, the State questioned Bryant about the letter on cross-examination. Bryant's defense counsel objected to this line of questioning. The following colloquy occurred during trial:
“[THE STATE]: And you were here when Shannon Martin testified, weren't you?
“[DEFENDANT BRYANT]: Yes, sir.
“[THE STATE]: And you were here when she talked about the letter that she receive[d] from you right?
“[DEFENDANT BRYANT]: Yes.
“[THE STATE]: Sir, did you intend for that letter to keep [C.A.M.] from testifying?
“[DEFENSE COUNSEL]: Judge, I will object. It is beyond the scope of direct. We never talked about that.
“[THE COURT]: Overruled.
“[THE STATE]: Would you like me to repeat the question?
“[DEFENDANT BRYANT]: I understand the question.
....
“[DEFENDANT BRYANT]: In the letter that I read with Joe I think it said my family was after her. I didn't say that I was after her at all.”
The trial court arguably erred in allowing the State to question Bryant about the letter. The State's questions on cross-examination were not responsive to Bryant's direct testimony. Even so, the State argues that if the trial court erred in admitting this evidence, the error was harmless. K.S.A. 60–261 states the following:
“Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights,”
When reviewing the erroneous admission or exclusion of evidence, the error is harmless if it could not have affected the outcome of the trial. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1694 (2012). An appellate court examines the error in the context of the record as a whole considering how the trial court dealt with the error as it arose. State v. Tully, 293 Kan. 176, 194, 262 P.3d 314 (2011) (citing Ward, 292 Kan. 541, Syl. ¶ 6.
The prosecutor's questions to Bryant about the letter did not affect the outcome of the trial. Martin, the recipient of the letter, testified that she received the letter from Bryant. The State entered the letter into evidence without objection from Bryant's trial counsel. After Martin contacted C.A.M., they met to review the letter. C.A.M. testified that she recognized Bryant's handwriting and knew the letter was from him. The relevant portion of the transcript reads as follows:
“[THE STATE]: Did you look at the letter?
“[C.A.M.]:Yes.
“[THE STATE]: Did you recognize the handwriting?
“[C.A.M.]:Yes.
“[THE STATE]: Whose handwriting do you think it was?
“[C.A.M.]: I know it was Trey Bryant's.
“[THE STATE]: How do you know that?
“[C.A.M.]: Just previous letters that he has written to me and the way that he spells things incorrectly. He will put a double C instead of a CK.
“[THE STATE]: You mean like if he wrote checking, for instance, it would be C–H–E–C–C–I–N–G?
“[C.A.M.]: Or sometimes he would leave it out he wouldn't put C and K together.
“[THE STATE]: That is something that he does regularly if you know?
“[C.A.M.]:Yes.
“[THE STATE]: Okay. Is there any doubt in your mind that that letter was written by Trey Bryant?
“[C.A.M.]: There is no doubt.”
Because the letter was admitted into evidence and C.A.M. identified the handwriting contained in the letter as belonging to Bryant, the State's questioning of Bryant about the letter did not affect the outcome of the trial. Martin testified that she received the letter from Bryant. Finally, Bryant's counsel called a witness on Bryant's behalf to explain Bryant's reason behind sending the letter to Martin. As a result, Bryant's argument fails.
IV. Did the State Commit Prosecutorial Misconduct in Its Closing Argument?
Next, Bryant argues that the State committed prosecutorial misconduct during its closing argument, which deprived him of a fair trial. Bryant contends that the statements were improper in two ways: (1) improper propensity statements; and (2) improper statements bolstering the witness' credibility. Conversely, the State contends that the prosecutor's statements did not amount to prosecutorial misconduct, but even if they did, the statements were not reversible error.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court determines whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011). In the second step of the analysis, the following three factors are considered:
“ ‘(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 mind of jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness test of both K.S.A. 60–261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. [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 results of the trial), have been met.’ [Citation omitted.]” McCaslin, 291 Kan. at 715–16.
First, we determine the following question: Were the prosecutor's comments in this case outside the wide latitude a prosecutor is allowed in discussing the evidence? Bryant cites two statements that he alleges constitute prosecutorial misconduct. These two statements are as follows:
“This is about control. This is about fear. That's Mr. Bryant's motive. That's why he picks on girls. He can beat them up. That started a long time ago in their relationship.
“You have got an instruction that tells you that you can't consider the fact that he used to beat her up as being indicia of guilt for this crime and that's true. Don't want you to. But his motive has always been to control and terrorize her. That was his motive then. That's his motive now. That's Mr. Bryant's game. Brave guy. Tough guy....
....
“... Janet Ransom is also challenged by the fact that she had earlier said that she never had a conversation with Mr. Bryant, but actually what she was asked and what she answered was I hadn't had another conversation with him that night.
“And it is true that the district attorney's office, just like Mr. Huerter's office when we are working with witnesses, we say answer the question that's asked and don't be creative. Tell the truth. That's what we tell them. Because there is nothing worse than a witness that gets up and doesn't tell the truth. And that's what she did.”
Bryant argues that the first statement constitutes improper propensity evidence—evidence of prior crimes or bad acts to show that Bryant committed the crime. Bryant argues that the second statement constitutes improper bolstering of a witness' credibility. Bryant's defense counsel made no objection to either statement during the trial. Each of these statements will be addressed independently and in the order presented.
A. Improper Propensity Evidence
The prosecutor's first statement arguably falls within the wide latitude that a prosecutor is allowed in discussing the evidence. Under K.S.A. 60–455, “evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion....” In other words, evidence that Bryant had physically abused C.A.M. or other women in the past would be inadmissible to show Bryant's disposition to commit aggravated battery in this case. Nevertheless, “such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 60–455.
Without considering the exceptions under K.S.A. 60–455, the prosecutor's first statement would violate K.S.A. 60–455—it was evidence to show Bryant's disposition to commit aggravated battery. The State does not dispute this on appeal. Instead, the State maintains that the prosecutor's statement did not go outside the wide latitude given to prosecutors because it merely indicated the sole purpose for admitting the evidence, i.e., to show Bryant's motive. The admissibility of Bryant's prior bad acts was questionable because it could be argued that his motive was not in question at trial. Thus, the evidence was not relevant to prove some other material fact. But the trial court allowed Bryant's prior bad acts into evidence under the motive exception in K.S.A. 60–455. Bryant does not challenge the admissibility of the prior bad act evidence on appeal. An issue not briefed by the appellant is deemed waived or abandoned. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). Because the trial court admitted the evidence under K.S.A. 60–455, an argument can be made that the prosecutor's statement fell within the wide latitude afforded to him when discussing the evidence. Indeed, the prosecutor merely informed the jury that it could use the prior bad act evidence only under the motive exception. Thus, the prosecutor's statement falls within the wide latitude afforded to a prosecutor when discussing the evidence.
But even if the prosecutor's statement constituted prosecutorial misconduct, Bryant's argument still fails because it falls short under the second step of the analysis. If an appellate court determines that a prosecutor engaged in misconduct, it must next determine whether the misconduct prejudiced the jury and denied the defendant a fair trial. McCaslin, 291 Kan. at 715. As mentioned earlier, when determining whether a prosecutor's misconduct prejudiced a jury, appellate courts consider three factors: (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 little weight in the minds of the jurors. 291 Kan. at 715. In determining whether a prosecutor's misconduct was gross and flagrant, our Supreme Court has compared this analysis to whether “ ‘the objectionable statements [were] likely to affect the jurors to the defendant's prejudice.’ “ State v. Villanueva, 274 Kan. 20, 34, 49 P.3d 481 (2002) (quoting State v. Lewis, 238 Kan. 94, 98 708 P.2d 196 [1985] ).
Here, evidence was admitted at trial that Bryant had verbally and physically abused C.A.M. on at least 10 prior occasions. Moreover, Bryant testified that he punched C.A.M. multiple times. When questioned by his own counsel, Bryant stated the following:
“[DEFENSE COUNSEL]: What did you do?
“[DEFENDANT BRYANT]: I hit [C.A.M.] in her eye. I hit her in the side of her face.
....
“[DEFENSE COUNSEL]: Did you do anything else?
“[DEFENDANT BRYANT]: No. I told her to pull over and kept cussing at her, yelling at her pull over. I called her a bitch this, bitch that. Yeah, I did cuss at her, but she wouldn't pull over.
“[DEFENSE COUNSEL]: Did you hit her more times?
“[DEFENDANT BRYANT]: I believe so. I think I did hit her in the side probably once or twice then—“
Thus, Bryant's prior bad acts were unlikely to affect the jurors to his detriment because he admitted that he committed similar acts here. Even assuming arguendo that the prosecutor's comments were gross and flagrant, none of the three factors is individually controlling. McCaslin, 291 Kan. at 715. Therefore, Bryant's argument still carries little weight because there is no indication that the prosecutor's statement constituted reversible error under the other two factors.
There is no sign in this case of ill will on the part of the prosecutor. “[A] prosecutor's indifference to a court's rulings, mocking of the defendant, or repeated acts of misconduct are evidence of ill will and the lack of such conduct shows there was no ill will.” State v. McHenry, 276 Kan. 513, 525, 78 P.3d 403 (2003). None of these recognized ill will factors are present in this case, nor does Bryant argue that any are. Moreover, we note that Bryant's counsel did not object to the statement. “While the lack of such an objection does not preclude this court from reviewing the prosecutorial misconduct issue, it nevertheless may play into [the] examination of whether the comments were made out of ill will.” State v. Miller, 284 Kan. 682, 720, 163 P.3d 267 (2007).
As for the third factor, the evidence presented was of such a direct and overwhelming nature that the alleged misconduct would likely have had little weight in the minds of jurors. Indeed, Bryant admitted on direct examination that he punched C.A.M. in the face and body multiple times. Although Bryant tried to give an innocent explanation for his actions—that he was trying to prevent C.A.M. from hurting them both based on her erratic driving—the jury apparently did not believe his explanation. Moreover, C.A.M. testified that Bryant hit her in the face and body. C.A.M.'s testimony was corroborated by several photos entered into evidence at trial. Those pictures showed the bruising on C.A.M.'s face, the bruising on her body, and the 16 stitches she received to close the cut above her eye. This evidence was direct and overwhelming. When considering all three factors together, we find beyond a reasonable doubt that the prosecutor's first statement did not affect the outcome of the trial. See State v. McCullough, 293 Kan. 970, 991, 270 P.3d 1142 (2012); State v. Raske, 293 Kan. 906, 918, 269 P.3d 1268 (2012). B. Improper Bolstering of Witness Credibility
A similar argument applies to the prosecutor's second statement, which Bryant alleges improperly bolstered the credibility of one of the State's witnesses. It is improper for a lawyer to express his or her personal opinion of a witness' credibility. State v. Duong, 292 Kan. 824, 830, 257 P.3d 209 (2011). A prosecutor may, however, make statements based on reasonable inferences from the testimony, may explain what the jury should look for when assessing witness credibility, and may assert that one of two conflicting stores should not be believed. 292 Kan. at 830.
Here, the prosecutor's statement, “And that's what she did” was an indirect comment on Ransom's credibility. The prosecutor made the statement after telling the jury that the district attorney's office advises its witnesses to tell the truth. In essence, the prosecutor's statement to the jury was that he knew that Ransom was telling the truth. Thus, the prosecutor should not have made this statement. Even so, the prosecutor's statement does not amount to reversible error when we consider the second step of the prosecutorial misconduct analysis.
There is no sign of gross or flagrant misconduct under the prosecutor's second statement. The one improper statement was not of a kind that would likely have affected the jurors to Bryant's prejudice. Indeed, the comment was isolated and was not egregious. Nor did the statement show ill will on the part of the prosecutor because it was merely a single isolated occurrence in the context of the overall closing argument. Moreover, like the prosecutor's first statement, Bryant's counsel did not object to the second statement. “While the lack of such an objection does not preclude this court from reviewing the prosecutorial misconduct issue, it nevertheless may play into [the] examination of whether the comments were made out of ill will.” Miller, 284 Kan. 682 at 720.
As for the third factor, the prosecutor's second statement was made in an effort to support the aggravated burglary charge against Bryant. The prosecutor tried to rehabilitate Ransom's testimony during closing argument because defense counsel had attacked her credibility during cross-examination at trial. The evidence presented under the aggravated burglary charge was not overwhelming. In fact, the trial court granted Bryant's motion to dismiss the aggravated burglary charge at his sentencing because the conviction was not supported by the evidence. The prosecutor's second statement only supported Bryant's aggravated burglary conviction. Because the trial court granted Bryant's motion to dismiss this conviction, his prosecutorial misconduct argument based on the second statement must fail.
V. Did the Cumulative Effect of the State's Alleged Errors Substantially Prejudice Bryant by Denying Him a Fair Trial?
Next, Bryant contends that the cumulative effect of trial errors in this case denied him a fair trial. The test for cumulative error is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009). “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.] One error is insufficient to support reversal under the cumulative error rule. [Citation omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
There seems to be only two arguable errors in this case: (1) that the trial court erred in allowing the State to ask Bryant questions on cross-examination which were beyond the scope of direct examination and (2) that the prosecutor improperly bolstered a witness' credibility during closing arguments. Based on the facts of this case, those two alleged errors are insufficient to support reversal under the cumulative error rule. Consequently, Bryant's cumulative error argument must fail.
VI. Did the Trial Court Fail to Take into Consideration Bryant's Financial Resources When It Imposed Attorney Fees?
Bryant argues that the trial court erred by failing to consider his financial resources when it imposed attorney fees. Thus, Bryant contends that this court should remand “for a hearing regarding the burden attorney fees would impose on Mr. Bryant's current financial situation.”
First, we must consider the language of K.S.A. 22–4513(b) which states: “In determining the amount and method of payment of such sum, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose.”
In State v. Robinson, 251 Kan. 538, 544, 132 P.3d 934 (2006), our Supreme Court held that the sentencing court's failure to explicitly consider the financial resources of the defendant and the nature of the burden that payment of the fees would impose was reversible error. In reaching that decision, our Supreme Court interpreted K.S.A.2005 Supp. 22–4513(b) and found the language to be mandatory. Robinson, 281 Kan. at 543. The court further stated that the statute clearly requires a sentencing judge to take into account the defendant's financial resources when reimbursement is ordered. Robinson, 281 Kan. at 543, The trial court is also required to state on the record how the factors have weighed in the court's decision. Robinson, 281 Kan. at 546. A sentencing court's failure to create an adequate record on its consideration of the defendant's financial resources makes it difficult to determine whether it abused its discretion on appeal. Robinson, 281 Kan. at 546.
Here, the trial court did not ask Bryant if he was presently working, inquire about the wages he anticipated making, or ask if he had any other financial burdens which would affect his ability to pay attorney fees. At Bryant's sentencing, the trial court merely stated, “Attorney fees I will allow.” The State concedes that the trial court did not consider Bryant's financial resources when it ordered him to pay attorney fees.
The record does not indicate that the trial court inquired into Bryant's financial resources or considered the nature of the burden a reimbursement payment would impose on him. Moreover, the trial court did not state on the record how the factors were weighed in coming to the decision to impose a reimbursement payment on Bryant. Consequently, the trial court erred in ordering Bryant to pay attorney fees without first making the proper K.S.A. 22–4513(b) and Robinson inquiries on the record. We vacate that part of the sentence imposing attorney fees.
VII. Did the Trial Court Unconstitutionally Use Bryant's Criminal History to Increase His Sentence Without Proving It to a Jury?
Next, Bryant argues that the trial court erred by using his criminal history to calculate his criminal history score and enhance his sentence without requiring the prior convictions to be proven to a jury beyond a reasonable doubt. Bryant concedes that our Supreme Court decided this issue against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
Review of this issue involves a question of law over which appellate courts exercise unlimited review. Ivory, 273 Kan. at 46. In Ivory, our Supreme Court held that the use of criminal history scores is not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 273 Kan. at 46. Additionally, our Supreme Court rejected the argument that prior convictions should be treated as essential elements to be presented and decided by a jury. 273 Kan. at 47.
The Court of Appeals is duty bound to follow our Supreme Court precedent, unless there is some indication that the court is departing from its previous position. State v. Singleton, 33 Kan.App.2d 478, 488, 104 P.3d 424 (2005). There is no indication that our Supreme Court is departing from its decision in Ivory, Consequently, the trial court did not err when it included Bryant's prior convictions in its calculation of his criminal history score.
Affirmed in part, sentence vacated in part, and remanded with directions that the trial court apply the K.S.A. 22–4513(b) and Robinson factors when considering Bryant's financial resources before imposing attorney fees.
LEBEN, J., concurring:
My analysis differs in only one minor respect from that reflected in the majority opinion: I do not find that the prosecutor's statement, “And that's what she did,” was improper. The prosecutor simply ended his statement with a rhetorical flourish; he did not suggest knowledge based on a personal investigation of the facts. See State v. Rivera, 42 Kan.App.2d 1005, 1021–22, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010). Nonetheless, the majority found no prosecutorial misconduct after its analysis of all relevant factors, and I agree with that conclusion. Except for the majority's conclusion that the prosecutor's comment was improper, I fully join in the majority opinion.