Opinion
No. 107,865.
2013-09-27
STATE of Kansas, Appellee, v. Lorenzo Charles WEST, Appellant.
Appeal from Finney District Court; Michael L. Quint, judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Michael L. Quint, judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Lorenzo Charles West of multiple crimes involving his step-daughter, including three counts of rape. In this direct appeal, West argues that (1) the district court erred by limiting his cross-examination of the complaining witness, (2) there was insufficient evidence to support the conviction of aggravated battery that caused great bodily harm, (3) the district court erroneously believed that the Kansas Supreme Court's prior rulings on the constitutionality of Jessica's Law sentences disposed of his arguments on constitutionality, (4) the district court erred in denying his motions for downward departures, and (5) the district court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Finding no reversible error, we affirm the district court's judgment.
Factual and Procedural Background
We will review the facts in considerable detail. On November 9, 2010, Shirley Milholland called West at work, concerned because her son, Justin Soukup, was dating West's step-daughter, P.B. At the time, P.B. was 15 years old and Soukup was 18 years old. MilhoUand testified that she called West in the hopes that he would talk to P.B. about the situation, but West became upset and asked MilhoUand for details about the relationship between Soukup and P.B. and whether they were sexually active. When MilhoUand told West that P.B. and Soukup were not sexually active, West said that he would take care of the situation immediately and hung up the phone.
West went to the workplace of S.B., P.B.'s mother, to discuss the situation with her. West later testified that they were concerned about P.B. dating Soukup because he was 18 years old. West and S.B. decided that they should talk with P.B. before Soukup could tell her that his mother had called West, but when they attempted to pick up P.B. from school, the school informed S.B. that P.B. was not in class. S.B. asked the school to call her when P.B. returned, which the school did, and S.B. picked up P.B. at school at approximately 10:30 a.m. The events of the day from that point on differ greatly according to P.B., S.B., and West.
S.B. testified at trial that when she and P.B. arrived at home, and S.B. and West asked where P.B. had been, P.B. first said she was walking around the school with her friends. West and S.B. asked P.B. if she was dating Soukup, but P.B. repeatedly denied it; the situation escalated and everyone became upset and loud. When P.B. eventually admitted that she had been with Soukup that morning skipping class, West slapped P.B.'s face. P.B. fell down, and West pulled her hair and told her to go to her room. S.B. later saw P.B. in the bathroom washing her face because she had been crying, but there was no blood on P.B.'s face or in her hair.
West testified that when P.B. and S.B. came home from the school, West asked P.B. where she had been and P.B. initially said she had been in the bathroom with a girlfriend. When West accused P.B. of lying, P.B. said that they had been walking around the school. West told P.B. that he had received a call from her boyfriend's mother that morning and asked P.B. who her boyfriend was. P.B. denied having a boyfriend, and West “got in her face” and cornered her by a guitar on the wall. West grabbed P.B. by the hair and put her head against the wall and, when P.B. admitted she had been with Soukup, West slapped her. West testified that the physical altercation lasted 15 to 20 minutes and, while he did not remember all the details, he admitted that he had hit P.B. Afterward, West and P.B. apologized to each other and there was no further fighting.
P.B.'s version of events differs greatly from S.B.'s and West's. According to P.B.'s trial testimony, she went to school on November 9, 2010, and met Soukup; instead of going to class, they walked around together. When she went to her next class, she was told that her mother was coming to pick her up. When they arrived at home, West was waiting and threw P.B. into the wall, yelling, “So who's Justin?” West choked P.B. and punched her in the face, then grabbed her hair and hit her head against the floor repeatedly. P.B. testified that the fighting lasted for approximately an hour, until West punched P.B. in the face and told her to go to her little sister's bedroom. P.B. was sitting in the bedroom crying when West came into the room and asked if she had sex with Soukup. When P.B. denied having sex, West spread her legs open and punched her in the vagina. West then returned to the living room and, after approximately 5 to 10 minutes, P.B. got a book and followed West into the living room, where she sat down to read. West knocked the book out of her hands, told S.B. to close the door and curtains, and began beating P.B. again. West pulled her hair, threw her across the room, punched and spit in her face, grabbed her by the back of her head, and shoved her face into the living room wall. Afterward, both P.B. and West went to his bedroom, where P.B. slept on the floor while West slept on the bed.
Later, according to P.B., West sent S.B. out of the house on an errand, and he then asked P.B. if she had kissed Soukup. When P.B. denied it, West spread her legs open and punched her in the vagina. P.B. also testified that the beating continued in the bathroom, where West threw her against a mirror, threw her into the bathtub, punched her, dunked her head in the toilet bowl, hit her head on the side of the toilet, and hit her over the head with a trash can. West then dragged her out of the bathroom back into the living room and continued beating her. P.B. testified that this “second beating” lasted approximately an hour or two.
Afterward, P.B. snuck out the back door and went to find her neighbor, Tara Holmes. No one was home, so P.B. hid in Holmes' empty swimming pool. At one point, P.B. went to another neighbor's house and called her friend Brittany Hahn, saying that West had beaten her because she was dating a boy and that she needed a ride. Hahn was out of town and tried to arrange another ride, but was unsuccessful. When Holmes and her mother got home, P.B. told them what had happened but asked them not to call the police. Holmes later testified that P.B. was barefoot, in shorts and a t-shirt, with messy hair and a swollen face. Holmes' mother testified that P .B. was squinting and it was hard for her to walk. In an attempt to help P.B. clean up, Holmes brushed P.B.'s hair; she noticed dried blood in P.B.'s hair and on her scalp and a part of her scalp felt “mushy.”
The following morning, P.B. and Holmes went to Officer Addison Morgan, the school resource officer at Garden City High School, and P.B. told Morgan that West had beaten her severely the day before. Morgan later testified that when P.B. arrived at his office, she was visibly upset, had some redness and swelling above her left eyebrow, and was walking gingerly, as though in pain.
As P.B. talked to Morgan, he decided to involve Master Patrol Officer Hailey Knoll, another school resource officer, who had specialized training in the areas of domestic violence, sexual assault, and forensic interviewing. After receiving Morgan's call, Knoll went to the high school and met with P.B. After learning that P.B. had been beaten for several hours the previous day, Knoll took her to the emergency room, where she photographed P.B.'s injuries and Dr. Harold Perkins examined her. Perkins later testified that he saw evidence of trauma consistent with hair-pulling; swelling and bruising above and below both eyes; swelling and bruising in front of P.B.'s left ear and on both her elbows; bruising on the left side of her chin; scrapes, scratches, and abrasion to the back of her neck, her gluteal cleft, and her right buttock; bruising on the back of both shoulders; scrapes in her mouth; damage consistent with her biting her tongue; cuts on her upper lip; and an abrasion on her lower back and her left labia.
After the examination, Knoll took P.B. to the police station and conducted a forensic interview. In this interview, P.B. told Knoll that West had beaten her from approximately 10 a.m. to 3:45 p.m. the day before because he was mad at her for “cheating on him” by hanging out with another man. When asked to elaborate, P.B. told Knoll that West was her boyfriend, that they were in a relationship, and that West accused her of cheating on him any time she had contact with another male. Moreover, P.B. told Knoll that she first had sex with West on August 16, 2006, and that they had frequent oral and vaginal sex since then.
After the interview, Knoll took P.B. back to the hospital, where Johanna Comett, a registered nurse trained as a sexual assault nurse examiner performed a sexual assault exam. Cornett later testified that P.B. had bruising on her face, head, left ankle, right elbow, left arm, and hand. When Cornett asked, P.B. said she received the injuries in an altercation with her stepfather, described the altercation much as she had to Knoll, and told Cornett that West had been her boyfriend for 4 to 5 years. P.B. said that the sex was consensual, that West was her only sexual partner, and that she and West shared a bedroom and her mother slept in a different room.
As a result of P.B.'s statements, the Garden City police executed a search warrant that same day at P.B.'s home and arrested West and S.B. Officer Omar Mora of the Garden City Police Department interviewed S.B. at the police department. He testified at trial that S.B. told him that there were two holes in the wall that happened when West pushed S.B. into the wall twice and that West had used his fists on P.B. According to Mora, S.B. also said that she did not think P.B. deserved what happened to her but that S.B. had not tried to intervene because if she had, she would not still be alive. S.B. told Mora that if she reported West to the police, he would kick her out and she would have nowhere to go.
On December 8, 2010, Knoll interviewed P.B. a second time; Knoll and P.B. went over every event of sexual abuse P.B. alleged, creating a timeline. P.B. related over 30 specific dates of vaginal, oral, or anal sex, many of them on holidays or birthdays, and many more unspecified recollections. P.B. also told Knoll that she once had a sexual encounter with Fabian, one of S.B.'s former boyfriends, and that West was extremely upset by this fact. When Knoll asked P.B. why she had not told him about the situation with West before, P.B, said that West had threatened to kill her if she talked to Knoll.
On January 3, 2011, the State charged West with 12 counts of rape, one count of aggravated intimidation of a witness or victim, seven counts of aggravated criminal sodomy, two counts of criminal sodomy, seven counts of aggravated indecent liberties with a child, one count of aggravated kidnapping, two counts of aggravated battery, and one count of criminal threat. After a preliminary hearing, the district court dismissed one count of aggravated criminal sodomy and allowed the State to amend the information to change one count of aggravated criminal sodomy to aggravated indecent liberties with a child.
The jury trial began on December 5, 2011, and we will summarize the testimony of each witness. The State first presented testimony from Hahn, who testified about the phone call she received from P.B. Hahn also testified that P.B. had told her prior to this incident that West hit her when he was drunk and that P.B. and West had been having sex since P.B. was 8 years old. Hahn further testified that P.B. and West's body language was more like a couple than a father and daughter. Holmes and her mother both testified to the events of the night P.B. arrived at their house. Holmes also testified that P .B. had previously come to school with a black eye she said West caused and that P.B. had told her that previous school absences were due to West beating her. On cross-examination, Holmes stated that, although West and P.B. acted as though they were best friends, P.B. had never told her prior to West's arrest that she had a sexual relationship with West.
The State also called Summer Miller, a high school teacher in Garden City, who had seen P.B. and Holmes at school on November 10, 2010; she testified that P.B.'s face was “very badly bruised and swollen.” Morgan testified about the statement P.B. gave him about her injuries and his subsequent request for Knoll's involvement. Morgan stated that while at the hospital, he overheard Dr. Perkins tell someone, “Whoever did this took some time to beat on this girl .” Knoll testified extensively as to the events related above, and the photographs Knoll took of P.B.'s injuries were admitted into evidence.
The State also presented testimony from a teacher and a school counselor at P.B.'s middle school, who testified about suspicious things P.B. had said while attending that school, including that P.B. took naps in her dad's bed and that she and her dad had a secret room in the attic. Officer Mora testified as to her interview with S.B. Detective Tanya Bradley, who had photographed P.B.'s injuries in the women's locker room at the police station, testified that P.B .'s scalp felt spongy and that she had seen bruising on P.B.'s arms, back, buttocks, face, and vaginal area. Perkins and Cornett also testified about P.B.'s injuries and their observations.
The State also presented the testimony of Soukup, Milholland, S.B ., and P.B.'s younger sister, H.B., who testified that when she lived with P.B., P.B. slept mostly with H.B. but slept in West's room “a few times.” Dr. Sue Dowd, a clinical psychologist, testified generally about the ways in which people disclose abuse, the effects when an abuser is related or otherwise connected to a child victim, the effects of a child's IQ on disclosure, the effects when an abuser is romantically involved with a child's mother, and the effects of molestation on children. On cross-examination, Dowd conceded that she had never met P.B. or talked with S.B.
On the fourth day of trial, P.B. testified. P.B. described the events on November 9, 2010, and she testified about her sexual history with West. P.B. also testified about the allegations she had made about Fabian, S.B.'s ex-boyfriend. On cross-examination, P.B. admitted that she lied when she told Knoll that she and West had sex on Martin Luther King, Jr. Day; she said she lied because she wanted to get West into more trouble. The cross-examination focused on the inconsistencies in P.B.'s version of the events. After P.B.'s testimony, the State rested its case and the court dismissed eight counts that were not supported by the evidence and allowed the State to amend two additional charges.
West began presenting his evidence by calling Dr. John Spiridigliozzi, who had evaluated P.B. in September 2011 for purposes of the trial. Spiridigliozzi had reviewed documents and spent several hours with P.B., S.B., and West's parents, and he testified extensively about his evaluation and conclusions. Spiridigliozzi testified that P.B.'s family history included mental retardation, schizophrenia, bipolar disorder, anxiety, and depression. He further testified that he watched a videotape of Knoll's interview with P.B. at which P.B. recited the dates on which she and West had sexual contact. Spiridigliozzi then took 14 of those dates and asked P.B. about what had happened on those dates to see if P.B. could recall with the same detail and events she reported to Knoll. Spiridigliozzi testified that P.B. was inaccurate on all 14 of the instances.
Next, West called Kim Ramsey, a social worker with SRS who in October 2009 had investigated suspected sexual abuse of P.B. by West. Ramsey had interviewed P.B., who told her that Fabian had inappropriately touched her but no one else had done so since then. P.B. also told Ramsey she slept in a bedroom with H.B. After investigating further, Ramsey concluded the allegations of sexual abuse were unsubstantiated.
West then recalled Knoll, questioning her about the inconsistencies in P.B.'s telling of the events between her interview with Knoll and her trial testimony. Josh Mercedes, West's longtime friend, and Joaquin Cruz, West's older brother, both testified as well. They testified that they had seen P.B. and West together but had never seen anything sexual. Gary and Lucinda West, West's parents, both testified that they never saw any unusual injuries to P.B. Gary West testified, however, that on one occasion, he saw P.B. chase S.B. out of her house with a knife.
West, who was 28 years old at the time of the trial, testified on his own behalf about his version of the events on November 9, 2010. Although he admitted hitting P.B. and putting her head against the wall, he denied having beaten P.B. prior to that occasion. He stated that he did not force P.B. to stay in the house, and that he was never in the bathroom with her, never punched her in the vagina, and never accused her of cheating on him. He also explicitly denied ever having a sexual relationship with P.B, touching her inappropriately, being touched inappropriately by her, having oral or vaginal sex with her, kissing her romantically, or threatening to kill her.
West also called Sheryl Pearson from St. Catherine's Hospital, who brought medical records that showed West was hospitalized between January 1 and January 10, 2009. Dr. Edward Mangosing testified that he treated West while he was hospitalized; he had diagnosed West with diabetic ketoacidosis, a complication of uncontrolled diabetes, and West had been in critical condition. This testimony was to rebut P.B.'s claim that she and West had oral and vaginal sex on January 1, 2009.
The State called Dowd as a rebuttal witness. Dowd expressed concern that Spiridigliozzi interviewed P.B., S.B., and West's parents but did not interview others. Moreover, Dowd was troubled that Spiridigliozzi had not included in his report exactly what was said in the interviews. After Dowd's testimony, the judge instructed the jury and the parties gave closing arguments. The jury found West guilty of three counts of rape, one count of aggravated intimidation of a witness, one count of aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, one count of aggravated kidnapping, one count of criminal threat, and two counts of aggravated battery, including one count of aggravated battery that caused great bodily harm.
Prior to sentencing, West filed a motion for departure moving his off-grid crimes of rape and aggravated criminal sodomy to the sentencing guidelines grid, and he filed a separate motion for a downward departure on all convictions. The district court held the sentencing hearing on January 30, 2012, and denied West's motions for departure. For each rape and the aggravated criminal sodomy conviction, the district court imposed a life sentence without the possibility of parole for 25 years under Jessica's law. The district court imposed a presumptive guideline sentence for the other convictions, including a sentence of 554 months' imprisonment for aggravated kidnapping. All sentences were to be served concurrently. West timely appealed the district court's judgment.
LIMITING CROSS–EXAMINATION
West first argues that the district court erred by limiting his cross-examination of the complaining witness, P.B. During her testimony on direct examination, while describing West's genitals, P .B. stated, “[H]is penis was the biggest one I've ever seen.” On cross-examination, the following exchange occurred:
“Q. You had mentioned that Lorenzo's private area is the biggest one you've ever seen?
“A. Yes.
“Q. Have you seen a lot of private areas?
“MS. HICKS [the prosecutor]: Objection, Your Honor.
“THE COURT: The nature, legally, of the objection?
“MS. HICKS: Rape shield.
“MS. COTT [defense counsel]: Just because you've seen one doesn't
“THE COURT: Do you want to respond to the rape shield issue?
“MS. COTT: Just because she has seen a penis doesn't mean she's had sex with that person. It could be a movie, books, magazines.
“THE COURT: This is not excluded by—this is not testimony that we have excluded from the protection of a rape shield. The objection is sustained. We will not go in this direction.”
West argues that the district court violated his right to a fair trial by refusing to allow him to further cross-examine P.B. about her statement. Specifically, West argues that the evidence was relevant, was not prohibited by the rape shield statute, and that the error of limiting cross-examination was not harmless. The State argues the opposite, contending that the evidence was irrelevant, the rape shield statute prevented further questioning, and, if there was error, it was harmless.
When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). There are two elements of relevant evidence: a materiality element and a probative element. State v. Houston, 289 Kan. 252, 261–62, 213 P.3d 728 (2009). Evidence is probative if it has “ ‘any tendency in reason to prove’ “ a fact. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008) (citing K.S.A. 60–401[b] ). The issue of whether evidence is probative is reviewed under an abuse of discretion standard whereas the materiality of evidence is reviewed de novo. State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010). However, even if evidence is both probative and material, the trial court must still determine whether the probative value of the evidence outweighs its potential for producing undue prejudice. Appellate courts review this determination for abuse of discretion. State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).
Moreover, “[a] district court's decision to limit cross-examination is reviewed under an abuse of discretion standard. [Citation omitted.]” State v. Stafford, 296 Kan. 25, 41, 290 P.3d 562 (2012). An abuse of discretion occurs when a judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). If no reasonable person would agree with the action of the district court, the action constitutes an abuse of discretion. 296 Kan. at 687.
West argues that the evidence was relevant to P.B.'s credibility; if he could have established that P.B. had never seen another penis, it would have shown the jury that she was embellishing her testimony. Our Supreme Court has found, in a similar situation, that the credibility of an alleged victim of a sexual offense “was a material issue at trial because it certainly had a legitimate and effective bearing on the jury's determination of whether [the defendant] committed the criminal acts against [the victim].” Stafford, 296 Kan. at 44.
Even if the evidence were relevant, the district court must then apply the statutory rules controlling the admission and exclusion of evidence. Riojas, 288 Kan. at 383. Here, the district court cited the Kansas rape shield statute, K.S.A.2010 Supp. 21–3525(b), which stated, in pertinent part:
“Except as provided in subsection (c), in any prosecution to which this section applies, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in any proceeding before the court, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness.”
Although the district judge did not make a detailed finding as to why the cross-examination was prohibited, he sustained the State's objection, which was clearly based upon the rape shield statute. “A district court's decision to exclude evidence under the rape shield statute is subject to an abuse of discretion standard.” State v. Lackey, 280 Kan. 190, 219, 120 P.3d 332 (2005), cert. denied547 U.S. 1056 (2006), overruled on other grounds by State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 (2006). To the extent that analysis requires interpretation of the rape shield statute, however, this court exercises unlimited review. State v. Ross, 295 Kan. 1126, 1132, 289 P.3d 76 (2012).
West first argues that the rape shield statute's protections were inapplicable because he was not attempting to question P.B. about her prior sexual conduct. West asserts that P.B. could have seen other penises in movies, books, or magazines, none of which would involve P.B.'s previous sexual conduct. West's argument is based upon an assumption that P.B.'s answer would have involved only movies, books, or magazines. As the State notes, if P.B. had responded that she had seen male genitalia in person, such an answer could easily involve her prior sexual conduct.
As West continues, however, such testimony was admissible pursuant to subsection (c) of the rape shield statute, which provides:
“In any prosecution for a crime designated in subsection (a), the prosecuting attorney may introduce evidence concerning any previous sexual conduct of the complaining witness, and the complaining witness may testify as to any such previous sexual conduct. If such evidence or testimony is introduced, the defendant may cross-examine the witness who gives such testimony and offer relevant evidence limited specifically to the rebuttal of such evidence or testimony introduced by the prosecutor or given by the complaining witness.” (Emphasis added.) K.S.A.2010 Supp. 21–3525(c).
If a statute is plain and unambiguous, an appellate court will not read into the statute something not readily found in it. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). The plain language of subsection (c) appears to apply here. On direct examination, P.B. testified that West's penis was “the biggest one I've ever seen.” Because the testimony was introduced by the State, subsection (c) explicitly allows West to cross-examine P.B. about the testimony. Thus, the district court erred by relying upon the rape shield statute to limit the cross-examination.
The State argues that any error in denying West further cross-examination was harmless. Under the harmless error standards of K.S.A. 60–261, K.S.A. 60–2105, and the constitutional harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), the test is whether the error affected substantial rights; in other words, the question is whether the error affected the outcome of the trial. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). West claims that the limitation of cross-examination affected his ability to confront an accuser as guaranteed by the Sixth Amendment to the United States Constitution. Likewise, our Supreme Court recently held that “[a] defendant's right to impeach a complaining witness' credibility is a fundamental right, protected by the Confrontation Clause of the Sixth Amendment.” State v. Brooks, 297 Kan. ––––, 305 P.3d 634, 2013 WL 3853202, *5 (July 26, 2013). Accordingly, we must apply the federal constitutional harmless error rule, which “generally provides that ‘an error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.]” See State v. Holman, 295 Kan. 116, 143, 284 P.3d 251 (2012).
In Brooks, our Supreme Court recently addressed an issue similar to the one presented here. In that case, a jury convicted the defendant of rape and aggravated criminal sodomy but acquitted him of five additional counts. The victim testified at trial that the defendant had a scar on his penis. On appeal, the defendant contended that he received ineffective assistance of trial counsel when his counsel failed to seek a continuance to obtain evidence that would have rebutted the existence of such a scar. This court found that although trial counsel's performance was deficient, the defendant failed to establish prejudice in order to prevail on his claim of ineffective assistance of counsel. 2013 WL 3853202, at *1.
On review, the Kansas Supreme Court noted that the victim's credibility was critical to the State's prosecution and that an effective impeachment of that credibility would have been significant. 2013 WL 3853202, at *4. The Supreme Court found that this court “speculated about the weight the jury might have given to such impeachment evidence” and “engaged in an assessment of [the victim's] credibility, concluding that her believability with the jury would have survived the successful rebuttal of her allegedly inaccurate description of [the defendant's] penis. [Citation omitted.]” 2013 WL 3853202, at *4–5. The Supreme Court determined that this analysis “ran afoul of the oft-stated rule that an appellate court will not determine the credibility of witnesses or weigh conflicting evidence. [Citation omitted.]” 2013 WL 3853202, at *5. Specifically, the Supreme Court held that “[t]he relative importance of testimony about the presence or absence of a penile scar was something the jury was supposed to decide.” 2013 WL 3853202, at *5.
Here, West, like the defendant in Brooks, was convicted of some charges and acquitted of others. Additionally, like the victim in Brooks, P.B.'s credibility “ ‘was an all-important element in the State's case.’ “ Nevertheless, there are important distinctions between Brooks and the instant case. In Brooks, the victim's claim rested on whether the defendant had a scar on his penis. Had the defendant presented medical records at trial stating he had no visible scars on his penis, such as he presented at the ineffective assistance of counsel hearing, this evidence would have challenged the factual basis for the victim's testimony. See 2013 WL 3853202, at *2. Here, the testimony on which West bases his claim of error was that his penis was “the biggest one [P.B. had] ever seen.” This is not such a claim that establishes an objectively identifying physical characteristic. Even if West could have somehow successfully undermined the truthfulness of this subjective statement through cross-examination, the impeachment would not have directly rebutted P.B.'s claim of sexual abuse, as the impeachment would have accomplished in Brooks .
Moreover, our Supreme Court in Brooks made much of the State's closing argument, pointing out that the State argued, “ ‘You heard [the victim] which is unrefuted describe [the defendant's] genitalia. How it was uncircumcised and how it had a small scar. Unrefuted. How would she know that?’ “ 2013 WL 3853202, at *6. No such use of P.B.'s statement and the lack of cross-examination of the statement to bolster P.B.'s credibility occurred here. There is no evidence that P.B.'s statement was a “weighty part” of the State's case. See 2013 WL 3853202, at *6.
Our Supreme Court has provided guidance to follow when determining whether a Confrontation Clause issue has run afoul of the federal harmless error rule:
“The correct inquiry is whether, assuming that the damaging potential of the cross-examination was fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, and, of course, the overall strength of the prosecution's case.' [Citation omitted.]” Holman, 295 Kan. at 143.
P.B.'s testimony was important; she was the complaining witness and her credibility was critical to the State's case while West's ability to undermine her credibility was critical to his defense. P .B.'s statement that West's penis was the biggest she had ever seen, however, was not critical to the State's case or to West's theory of defense. West impaired P.B.'s credibility in many ways throughout the trial. On cross-examination, P.B. admitted that she lied when she told Knoll that she and West had sex on Martin Luther King Day and that she had lied in order to get West into more trouble. West also extensively explored the inconsistent statements P.B. gave to different people about the abuse. West introduced testimony about an investigation of previous allegations of sexual abuse of P.B. by West; after an investigation, the allegations were found to be unsubstantiated. The jury was well-equipped to evaluate P.B.'s credibility.
After a review of the relevant factors quoted in Holman, considered in light of the warnings in Brooks not to usurp the role of the jury and reweigh evidence, we conclude beyond a reasonable doubt that any error in limiting the cross-examination of P.B. about penis size did not affect the outcome of the trial in light of the entire record. In other words, there was no reasonable possibility that the limitation of cross-examination on that statement contributed to the verdict. Thus, the district court's error does not require the reversal of West's convictions.
Sufficiency of the Evidence to Support Conviction of Aggravated Battery that Caused Great Bodily Harm
Next, West argues that there was insufficient evidence to support his severity level 4 aggravated battery conviction. Specifically, West alleges that the State failed to present sufficient evidence to prove that West caused great bodily harm or disfigurement to P.B. as required by K.S.A. 21–3414(a)(l)(A). The State, on the other hand, argues that the evidence was sufficient to support the conviction.
When the sufficiency of the evidence is challenged in a criminal case, an appellate court reviews such claims “by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, the appellate court will not reweigh the evidence or assess the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).
K.S.A. 21–3414(a)(1)(A) provides that aggravated battery is “[i]ntentionally causing great bodily harm to another person or disfigurement of another person.” West argues that the State failed to prove beyond a reasonable doubt that P.B. suffered great bodily harm or disfigurement. West points to Dr. Perkins' testimony that P.B. suffered no intracranial bleeding, no fractures, and no internal bleeding. Although P.B. suffered numerous scrapes and bruises, West contends that these injuries alone are not sufficient to show great bodily harm.
West cites State v. Dubish, 234 Kan. 708, 675 P.2d 877 (1984), a case in which the defendant was convicted of aggravated battery by causing great bodily harm, and the court stated that “[t]he word ‘great’ distinguishes the bodily harm necessary in this offense from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery.” 234 Kan. at 715. But like the victim in Dubish, P.B. did not suffer mere bruises, the likes of which are sustained in simple battery. Perkins testified that P.B. suffered swelling and bruising above and below both eyes, in the front of her ear, on the left side of her chin, and on both elbows; bruising on the back of both shoulders; cuts on her upper lip; scratches and abrasions on the back of her neck, and outside her right knee, her left ankle, and her right buttock; and an abrasion on her lower back and her left labia. Cornett, a registered nurse, testified similarly. P.B. testified that at the time of the trial, over a year later, she still had problems with her right elbow that limited her ability to lift weight with that arm.
“Ordinarily, whether a victim has suffered great bodily harm is a question of fact for the jury to decide. [Citation omitted.]” State v. Williams, 295 Kan. 506, 523, 286 P.3d 195 (2012). West's argument that the State's evidence did not support the jury's finding that P.B. suffered great bodily harm asks this court to reweigh the evidence, which this court does not do. See Hall, 292 Kan. at 859. We conclude there was sufficient evidence, viewed in a light most favorable to the prosecution, for a rational factfinder to find beyond a reasonable doubt that West's actions caused great bodily harm to P.B.
Constitutionality of Jessica's Law Sentences
Next, West argues that the district court erroneously believed that the Kansas Supreme Court's prior rulings on the constitutionality of Jessica's Law sentences disposed of West's arguments on constitutionality. Prior to sentencing, West filed a motion for departure moving his off-grid crimes of rape and aggravated criminal sodomy to the sentencing guidelines grid, and he filed a separate motion for a downward departure on all convictions. The motions summarily challenged the presumptive sentences for the off-grid crimes as being “cruel and unusual punishment.” The motions did not provide any analysis of the Freeman factors that are generally used by a defendant for case-specific proportionality challenges under the Eighth Amendment to the United States Constitution and under § 9 of the Kansas Constitution Bill of Rights. See State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).
At the sentencing hearing, West's counsel made the following brief statement challenging the constitutionality of West's presumptive sentences under Jessica's Law:
“But before I call witnesses, I would also like to make the argument that the defendant is arguing that Jessica's law in general is unconstitutional, that it's cruel and unusual and disproportionate—not just disproportionate, but also individually disproportionate as well, Your Honor. The fact that he could go commit intentional second-degree murder and receive less time does not seem appropriate. The fact that Joaquin De Anda is going to have an opportunity for parol[e] before Mr. West if he is not granted departure, just is disproportionate. It encourages violence. If—if you can get rid of the victim by killing them, and you get less time, it's actually inviting violence of children on sex crimes to know that you could—he could have killed [P.B.] and maybe received a lesser sentence does not seem constitutional or proportionate.
“Also, we would argue that it's individually proportionate—disproportionate as well with the facts of this case, that the facts of this case do not warrant consecutive life sentences or a life sentence, Your Honor. We would like to preserve, obviously, that as part of the record as far as appeal purposes.”
The State did not address West's constitutional challenges to Jessica's Law. After sentencing West, the district court adjourned court, then reopened the record to make the following statement:
“Counsel for the defendant made an argument and objected to the imposition of sentences based upon the federal constitution and that of the State of Kansas as it relates to an allegation that these sentences as imposed by the Kansas legislature and directly imposed by me in this case are a violation of the cruel and unusual punishment feature of the Bill of Rights. Court's going to find that that decision has been taken out of the Court's hands in large part, and that there are in fact decisions of the Kansas Supreme Court which would negate that, and that it is not in their opinion and in this Court's ruling a violation of the federal constitution in making these rulings.”
West now argues that the judge's statement shows that the district court believed it was unable to find that a life sentence was unconstitutional in this case because our Supreme Court had found a life sentence constitutional in other cases. West frames the issue as whether the district court erred in determining whether it had authority to address the constitutional challenge to Jessica's Law, which allows de novo review by this court. See State v. Warren, 297 Kan. ––––, 304 P.3d 1288, 2013 WL 3483812 (July 12, 2013); see also State v. Cisneros, 42 Kan.App.2d 376, 379, 212 P.3d 246 (2009) (stating that whether a sentencing court misunderstood its authority to grant a departure sentence is a question of law). Because West does not discuss the merits of his constitutional challenge on appeal, the only question here is whether the district court incorrectly believed it lacked the authority to find West's sentence unconstitutional.
Both challenges under § 9 of the Kansas Constitution Bill of Rights and case-specific proportionality challenges under the Eighth Amendment to the United States Constitution depend upon the factual circumstances of the specific case. Our Supreme Court has stated:
“Three factors are considered when determining whether a sentence violates the constitutional prohibitions against a cruel and unusual punishment:
“ ‘(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“ ‘(2) A comparison of the punishment with punishment imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“ ‘(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.’ State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978).” State v. Roberts, 293 Kan. 1093, 1096, 272 P.3d 24 (2012).
Here, West did not argue the specific Freeman factors, nor did he ask the district court to make the necessary legal and factual findings to determine the constitutionality of his life sentence. West's only basis for asserting that the district court misunderstood its authority is his interpretation of the judge's brief statement at the sentencing hearing. A more reasonable interpretation, however, is that the brief and general nature of the district court's denial resulted from the brief and general nature of West's constitutional arguments. The judge stated that his decision on the constitutionality of West's sentence had been taken out of his hands “in large part” by recent Kansas Supreme Court decisions upholding the constitutionality of sentences under Jessica's Law. This statement indicates the judge realized he had some discretion in considering West's constitutional challenge. Finally, as a practical matter, we note that had West not been sentenced under Jessica's Law, his mitigated presumptive sentence under the guidelines would have been 554 months' imprisonment for each rape conviction. The record does not support West's claim that the district court erroneously believed it lacked authority to address the constitutional challenge. For this reason, we conclude that West's claim of error fails.
Motions for Downward Sentencing Departures
As a separate issue, West argues that the district court erred in denying his motions for downward durational and dispositional sentencing departures. Prior to sentencing, West filed a “Motion for Downward Dispositional Departure on Off–Grid Felonies,” in which he requested a departure that would move his off-grid felony convictions of rape and aggravated criminal sodomy to the Kansas Sentencing Grid. West filed a separate “Motion for Downward Durational Departure,” in which he asked the district court for a downward durational departure on all convictions. West now argues that the district court erred in denying these motions.
Although West does not specify in his brief whether he is appealing the denial of departure sentences for his off-grid or on-grid convictions, this issue is necessarily limited to the off-grid crimes because West received the presumptive sentence for his other convictions. See State v. Williams, 37 Kan.App.2d 404, 407–08, 153 P.3d 566 (“When a trial court imposes a sentence within the presumptive guidelines for that crime, an appellate court lacks jurisdiction to consider an appeal even when a trial court denied a motion for departure. [Citations omitted.]”), rev, denied, 284 Kan. 951 (2007). However, this court does have jurisdiction to consider West's challenge to the denial of his departure motion under Jessica's Law.
Jessica's Law, formerly codified at K.S.A. 21–4643 and now codified at K.S.A.2012 Supp. 21–6627, provides mandatory terms of imprisonment for certain sex offenders. Under Jessica's Law, two of West's crimes of conviction—aggravated criminal sodomy involving a child under 14 years of age and rape by sexual intercourse with a child under 14 years of age—require a sentence of lifetime imprisonment with a mandatory minimum of not less than 25 years. See K.S.A.2010 Supp. 21–4643(a)(1)(B), (D). Jessica's Law further allows, however, that if it is a first-time conviction of a Jessica's Law offense and a sentencing judge reviews mitigating circumstances and finds substantial and compelling reasons, the judge may impose a departure sentence. K.S.A.2010 Supp. 21–4643(d). Mitigating circumstances include, but are not limited to:
“(1) The defendant has no significant history of prior criminal activity.
“(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“(3) The victim was an accomplice in the crime committed by another person, and the defendant's participation was relatively minor.
“(4) The defendant acted under extreme distress or under the substantial domination of another person.
“(5) The capacity of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of the law was substantially impaired.
“(6) The age of the defendant at the time of the crime.” K.S.A.2010 Supp. 21–4643(d).
An appellate court reviews a district court's denial of a motion for a departure from a Jessica's Law sentence for an abuse of discretion. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). An abuse of discretion occurs when a judicial action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. 296 Kan. at 687. If no reasonable person would agree with the action of the district court, the action constitutes an abuse of discretion. 296 Kan. at 687.
A “substantial” mitigating factor is a factor that is real and not imagined or ephemeral, while “compelling” implies that the facts of the case force the court to leave the status quo and go beyond what is ordinary. 296 Kan. at 688. The sentencing judge is only required to elaborate on the substantial and compelling mitigating factors if the judge grants a departure; if the judge denies the departure, the judge need not explicitly address the asserted mitigating factors. State v. Florentin, 297 Kan. ––––, 303 P.3d 263,
269 (June 14, 2013).
Here, West asserted as mitigating factors: (1) these were his first convictions for rape and aggravated criminal sodomy, (2) until his incarceration, he had steady employment, (3) his significant other relied on him for financial support, (4) he had a supportive family, and (5) he was willing to participate in anger management or any other court-recommended program. At the sentencing hearing, four of West's relatives gave statements showing familial support for West. West argues that these are substantial and compelling reasons for a departure, cites cases in which similar reasons were considered sufficient, in conjunction with other circumstances, to justify a departure, and asserts that the district court erred in not granting his request for a departure here.
As the State notes, while consideration of these factors is appropriate, none of the cases cited by West require a court to impose a departure sentence. See State v. Baptist, 294 Kan. 728, 734, 280 P.3d 210 (2012) (“[A] district court is not obligated to depart simply because a mitigating factor exists.”). Here, the district judge explicitly stated:
“The Court ... is making a specific finding that the downward durational departure and the downward dispositional departure are not justified based upon the facts that have been presented to the Court. There are some clear findings of fact that I can present, but it is not sufficient to justify a substantial and compelling reason for departing from the statutory framework of the charges against you.”
Our Supreme Court has upheld the denial of departure motions involving Jessica's Law offenses where an offender has cited mitigating circumstances including those on the statutory list, as West did here. See Florentin, 303 P.3d at 269–70;Floyd, 296 Kan. at 689. In other words, just because the evidence establishes the existence of some mitigating sentencing factors, a district court does not necessarily abuse its discretion by denying a departure motion. As our Supreme Court has recognized, a person attempting to successfully challenge the denial of a motion for departure on a Jessica's Law sentence must meet “a substantial burden.” See Florentin, 303 P.3d at 269. “[O]ur task is not to determine whether we believe a reasonable person, or even most reasonable people, would disagree with the judge's decision. Rather, if only one reasonable person would agree with the district court judge, we must affirm the decision.” 303 P.3d at 269. We conclude that West has not met his burden to show on appeal that the district court's denial of his request for a sentencing departure was an abuse of discretion.
Apprendi Issue
Finally, West argues that the district court violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him based in part on his criminal history without first requiring his criminal history be alleged in the charging document and proven beyond a reasonable doubt to a jury. West concedes that the Kansas Supreme Court has already decided this issue against him. See State v. Ivory, 273 Kan. 44, 45–48, 41 P .3d 781 (2002).
This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. State v. Shaw, 47 Kan.App.2d 994, 1006, 281 P.3d 576 (2012), rev. denied ––– Kan. ––––(May 20, 2013). There is no indication that the Kansas Supreme Court is departing from its position on this issue. Therefore, we conclude the district court did not violate Apprendi in sentencing West.
Affirmed.