Opinion
No. 107,326.
2013-05-24
STATE of Kansas, Appellee, v. Eric L. MINGLE, Appellant.
Appeal from Sumner District Court; R. Scott McQuin, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Kerwin L. Spencer, county attorney, Evan C. Watson, former county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sumner District Court; R. Scott McQuin, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Kerwin L. Spencer, county attorney, Evan C. Watson, former county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Eric L. Mingle appeals from his convictions of two counts of aggravated indecent liberties with a child. He argues that (1) his convictions are multiplicitous, (2) the State failed to prove both alternative means of committing the crime of aggravated indecent liberties, and (3) the prosecutor committed misconduct during closing argument by improperly bolstering the credibility of the State's witnesses. Although we agree with Mingle that his convictions for aggravated indecent liberties are multiplicitous, we find no merit to his claim that the offense of aggravated indecent liberties with a child is an alternative means crime or his claim that the prosecutor committed misconduct requiring reversal of his other convictions. Accordingly, we affirm in part, reverse in part, and remand with directions.
Facts
In May 2009, Mingle married Clyannda Jones. Jones lived with her three children in Conway Springs, while Mingle maintained a separate residence in Argonia but stayed with Jones on occasion.
On June 7, 2009, Jones returned from work and saw that Mingle was outside working on the lawn mower with her 13–year–old daughter, S.J. According to Jones, S.J. is naive and “a little socially slower than other children.” When Mingle and S.J. did not come inside for dinner, Jones went outside to find them. Jones noticed that the garage door was open, so she went inside and saw Mingle and S.J. in the back corner of the garage. S.J.'s bathing suit top was hanging down in front of her and her bathing suit bottom was down at her thighs. Mingle's face was close to S.J.'s chest, leaving Jones with “no doubt what he was doing.” Mingle told Jones that “it was a weak moment” and that it had never happened before.
Jones later reported the incident to law enforcement. Conway Springs Police Department Lieutenant Matt Charboneau interviewed Jones and S.J. S.J. reported that on June 7, 2009, Mingle brought her a shirt from the laundry room and asked her to put it on without a bra. After SJ. put the shirt on, Mingle dampened the portion of the shirt covering S.J.'s breasts with a wet rag and stared at her breasts. Later that day, Mingle had S.J. change into a two-piece bathing suit and asked her to come into the garage. Mingle picked S .J. up and stood her on a small exercise trampoline. Mingle then took off S.J.'s bathing suit top and kissed and sucked on her breasts. Mingle also pulled down S.J.'s bathing suit bottom and began stroking the outside of her vagina. S.J. did not recall how long this lasted prior to her mother walking in. In addition, S.J. advised Charboneau of three previous occasions in June 2009 where Mingle had licked her breasts, touched her vagina, or had forced her to touch his penis.
Mingle was subsequently charged with one count of rape, one count of aggravated criminal sodomy, and eight counts of aggravated indecent liberties with a child. At trial, Jones and S.J. testified about the June 7, 2009, incident in the garage and S.J. also testified about the previous incidents that she had reported. Mingle's sister, Terri Johnson, testified that she talked to Mingle about the incident in the garage. Mingle told Johnson that S.J. had asked him to fix her swimsuit that was “all in knots.” Mingle claimed that S.J. took off her top so that he could untie all of the knots and then Jones had walked in as he helped S.J. put the top back on.
After the State presented its evidence, the district court dismissed the rape charge. The jury acquitted Mingle of the aggravated criminal sodomy charge and six of the aggravated indecent liberties charges, but convicted him of the remaining two aggravated indecent liberties charges that related to the June 7, 2009, incident in the garage. The district court granted Mingle's motion for a durational departure and sentenced him to concurrent terms of 155 months' imprisonment on each count.
Analysis
Mingle raises the following issues on appeal: (1) his aggravated indecent liberties convictions are multiplicitous; (2) the State failed to present sufficient evidence to support each of the alternative means of committing the crime of aggravated indecent liberties; and (3) the prosecutor committed misconduct during closing argument by improperly bolstering the credibility of the State's witnesses. We address each of the issues presented in turn.
Are Mingle's convictions multiplicitous?
Mingle argues his convictions of aggravated indecent liberties with a child are multiplicitous and therefore violated the constitutional prohibition against double jeopardy. Mingle concedes this issue was not raised before the district court but contends that we may reach the issue because review is necessary to serve the ends of justice or to prevent the denial of a fundamental right. Because our Supreme Court has considered multiplicity issues for the first time on appeal based on this reasoning, we will review the issue. See, e.g., State v. Nguyen, 285 Kan. 418, 433, 172 P.3d 1165 (2007).
Multiplicity is the charging of a single offense in several counts of a complaint. Multiplicity offends the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights when the improper splitting of a single offense into multiple counts results in multiple punishments following conviction on those counts. See State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). Whether convictions are multiplicitous is a question of law over which an appellate court exercises de novo review. State v. Sellers, 292 Kan. 117, 127, 253 P.3d 20 (2011).
In resolving a multiplicity claim, we must first determine whether the convictions arose from the same conduct. If so, we then determine whether, by statutory definition, that conduct constitutes one offense or two. Schoonover, 281 Kan. at 496.
Mingle's convictions arose from the same conduct
In determining whether the charged offenses arose from the same conduct, the court may consider several factors, including whether: (1) the acts occurred at or near the same time; (2) the acts occurred at the same location; (3) a causal relationship existed between the acts, in particular whether an intervening event separated the acts; and (4) a fresh impulse motivated some of the conduct. Schoonover, 281 Kan. at 497.
The aggravated indecent liberties charges, Counts 9 and 10, were based on the June 7, 2009, incident in the garage. The district court specifically instructed the jury that Count 9 related to the allegation that Mingle licked S.J.'s breasts and that Count 10 related to the allegation that Mingle rubbed S.J.'s vagina.
Mingle contends that the offenses charged in Counts 9 and 10 arose from the same conduct because the alleged conduct occurred at or near the same time and in the same location. Mingle also claims that there was no intervening event between the two acts and there was no evidence that the touching of S.J.'s vagina was motivated by a fresh impulse.
The State responds that where the single physical acts are factually separate—here, the act of licking S.J.'s breasts and the act of rubbing S.J.'s vagina—there are two offenses. The State also claims that a fresh impulse occurred between Mingle's actions of licking S.J.'s breasts and rubbing her vagina because Mingle first licked S.J.'s breasts, and then he pulled her bathing suit bottom down and began rubbing her vagina. The State argues that Mingle's action of pulling down S.J.'s bathing suit bottom constituted a fresh impulse to commit the separate act of rubbing S.J.'s vagina.
Our Supreme Court has found no unitary conduct existed in cases where the lewd touchings were separated by an intervening event or a fresh impulse. In Sellers, the defendant touched the victim's breast and then got up from the bed briefly to check on the dog. When the defendant returned, he touched the victim's pubic area with his fingers. Our Supreme Court found there was no unitary conduct because the defendant “did leave the room for 30 to 90 seconds, breaking the chain of causality and giving him an opportunity to reconsider his felonious course of action.” 292 Kan. at 130–31; see also State v. Colston, 290 Kan. 952, 964, 235 P.3d 1234 (2010) (holding that after defendant completed the act of penile penetration, digital penetration was motivated by a fresh impulse when the victim asked the defendant if she could leave the room to urinate).
In this case, Lieutenant Charboneau testified that S.J. claimed Mingle “took her top off and was kissing and sucking on her breasts. And, again, her pants and panties were taken down to her mid-thigh area, and he began again to stroke her vagina—the outside of her vagina.” According to S.J.'s trial testimony regarding the incident, Mingle pulled off her bathing suit top and pulled her bathing suit bottom down to mid-thigh. S.J. stated that right before her mother walked in, Mingle was “licking my breasts and going one finger on the top of my vagina.”
Based on this evidence, the two touchings constituted one unitary act or transaction. Both touchings occurred in the garage and at or near the same time. Additionally, the touching of S.J.'s vagina did not appear to be a separate and distinct act from the licking of her breasts. S.J. did not testify as to any intervening event that occurred between the two touchings, and the evidence does not establish a fresh impulse motivating the touching of S.J.'s vagina.
Mingle's conduct comprised one violation of K.S.A. 21–3504(a)(3)(A)
Because the charges arose under the same conduct, we must proceed to the second step of the Schoonover analysis. Under this second step, we must consider whether, by statutory definition, Mingle's conduct constitutes one offense or two. See Schoonover, 281 Kan. at 497. Because Mingle's convictions are based on multiple violations of the same statute, the court must consider whether the legislature intended to permit multiple charges under the statute or only intended a single unit of prosecution. 281 Kan. at 497–98.
In Schoonover, our Supreme Court summarized the unit of prosecution test:
“The determination of the appropriate unit of prosecution is not necessarily dependent upon whether there is a single physical action or a single victim. Rather, the key is the nature of the conduct proscribed.... The unit of prosecution [is] determined by the scope of the course of conduct defined by the statute rather than the discrete physical acts making up that course of conduct or the number of victims injured by the conduct.” 281 Kan. at 472.
The statute at issue here, K.S.A. 21–3504(a), prohibits:
“(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; or
(B) soliciting the child to engage in any lewd fondling or touching of the person of another with the intent to arouse or satisfy the sexual desires of the child, the offender or another.”
Our Supreme Court recently held that K.S.A. 21–3504(a)(3)(A) creates only a single unit of prosecution. State v. Sprung, 294 Kan. 300, 310, 277 P.3d 1100 (2012). In Sprung, the defendant argued that his convictions of aggravated indecent liberties were multiplicitous based on the unitary conduct of lewd touching of the victim and causing the victim to lewdly touch him. The Sprung court, noting that the key consideration in the unit of prosecution test is the nature of the conduct proscribed by the statute, held:
“K.S.A. 21–3504(a)(3)(A) creates only a single unit of prosecution. Had the legislature intended to create one unit of prosecution when the offender touches the child and a separate unit of prosecution when the child touches the offender, the legislature could have separated subsection (A) into two subsections, i.e., one subsection proscribing any lewd fondling or touching of a child by the offender and one subsection proscribing any lewd fondling or touching of the offender by the child. Instead, the legislature defined aggravated indecent liberties as ‘engaging in any of the following acts,’ and then provided only two defining subsections, (A) and (B). [Citations omitted.]” 294 Kan. at 310.
Similarly, if the legislature had intended to create one unit of prosecution for each separate lewd touching of a child, the legislature could have explicitly done so by defining aggravated indecent liberties as “any act of lewd fondling or touching.” Instead, the legislature chose to define the criminal “act” as “ [a]ny lewd fondling or touching.” K.S.A. 21–3504(a)(3)(A); see State v. Thompson, 287 Kan. 238, 246–47, 200 P.3d 22 (2009) (holding that had legislature intended to make possession of each substance listed in K.SA. 65–7006[a] a separate offense, it could have explicitly stated as much in the statute).
Even if we were to find the legislature's intent to be unclear as to the unit of prosecution defined by K.SA. 21–3504(a)(3)(A), the rule of lenity would mandate that we construe the statute in favor of Mingle. See Sprung, 294 Kan. at 310–11. Under that rule, statutory silence and ambiguity regarding the unit of prosecution is construed in favor of the defendant. See Thompson, 287 Kan. at 249.
The jury convicted Mingle of the unitary conduct of fondling or touching S.J.'s breasts and vagina, and the plain language of K.SA. 21–3504(a)(3)(A) creates a single unit of prosecution. Therefore, Mingle's convictions for aggravated indecent liberties with a child are multiplicitous, and one of the convictions must be reversed and the sentence for that conviction vacated. Because the district court imposed the sentences for each of his convictions concurrently, however, the length of Mingle's sentence will not change, and there is no requirement that he be resentenced.
Is the offense of aggravated indecent liberties with a child an alternative means crime?
Mingle argues that aggravated indecent liberties with a child is an alternative means crime for which the State failed to present sufficient evidence to support each alternative means.
The jury in a criminal case is required to arrive at a unanimous verdict. In a case in which there are alternative means by which the crime can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on another alternative means. Our Supreme Court has held that a defendant's right to a unanimous verdict is not undermined when this happens so long as there was sufficient evidence presented at trial to support each alternative means for committing the crime. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
Before addressing whether there was sufficient evidence to prove each of the alternative means alleged by Mingle, we must first determine whether K.S.A. 21–3504(a)(3)(A) truly presents alternative means. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law over which an appellate court has unlimited review. State v. Brown, 295 Kan. 181, 193–94, 284 P.3d 977 (2012).
The crime of aggravated indecent liberties is defined as “[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” K.S.A. 21–3504(a)(3)(A). The district court instructed the jury that to establish each charge of aggravated indecent liberties, it must find that “the defendant fondled or touched the person of S .J. in a lewd manner, with intent to arouse or to satisfy the sexual desires of either S.J. or the defendant, or both.”
Mingle argues K.S.A. 21–3504(a)(3)(A) requires the State to present evidence that he acted with the intent to arouse or satisfy both his sexual desires and S.J.'s sexual desires. He reasons that because the State presented no evidence that he acted with the intent to arouse or satisfy S.J.'s sexual desires, the State necessarily failed to present sufficient evidence of each of the alternative means upon which the district court instructed the jury.
In Brown, our Supreme Court recently clarified the test for identifying whether a statute contains alternative means claims. The court first noted that “ ‘[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ “ Brown, 295 Kan. at 193 (quoting State v. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 [2010] ). Instead, courts must look primarily to legislative intent to determine whether statutory alternatives are alternative means. The Brown court summarized the proper analysis as follows:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” 295 Kan. at 199–200.
In Brown, the court rejected the defendant's alternative means challenge to language appearing in K.S.A. 21–3504(a)(3)(A), concluding that the phrase “either the child or the offender, or both” does not state a material element of the crime but merely describes an option within a means that “can be accurately described as purely descriptive of factual circumstances that may prove the distinct, material mental state element of the crime.” 295 Kan. at 202.
Mingle acknowledges the holding in Brown but argues that it was wrongly decided. However, this court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). Our Supreme Court continues to affirm its decision in Brown. See, e.g., State v. Britt, 295 Kan. 1018, 1026, 287 P.3d 905 (2012). Because the phrase “either the child or the offender, or both” in K.S.A. 21–3504(a)(3)(A) does not state material elements of the crime, Mingle's alternative means argument necessarily fails.
Did the prosecutor commit misconduct during closing argument?
Mingle claims the prosecutor committed reversible misconduct during closing argument by improperly bolstering the credibility of several of the State's witnesses.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in discussing the evidence. If misconduct is found, the 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. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012); see State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005).
Mingle cites three statements that he alleges constitute prosecutorial misconduct. The complained-of statements, identified by added emphasis, are as follows:
“ If it didn't happen, if it did not happen, why is [S.J.] in here saying that it did? What's her motive? What's her reason? If it didn't happen, why is Clyannda Jones in here saying that it did? ”
“We heard the testimony of defendant's sister, Terri Johnson. She had a conversation with Mr. Mingle not too long after this incident back in 2009.... He admits he was there. He admits he was in the garage. And he admits he was playing with [S.J.'s] top—doing something with her top. Why is— Terri Johnson, what's her motive to come in here and say that unless it really happened? ”
“Think about why the people are saying what they're saying. Why is the sister saying—in here saying what she is saying? Why is Clyannda saying—saying what she is saying? Why is [S.J.] saying what she is saying? For what purpose? It's two years later. They're gone. They're over. They're done. Why are you in here two years later telling a story under oath unless it really happened? ”
Generally, prosecutors cannot offer juries their personal opinions on the credibility of witnesses. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). We prohibit the prosecutor from expressing personal opinions on the credibility of a witness because such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). On the other hand, we permit lawyers to make statements during closing arguments that draw reasonable inferences from the evidence. Stone, 291 Kan. at 19. Specifically, prosecutors may explain “ ‘to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.’ “ 291 Kan. at 19 (quoting State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 [2009] ). Nevertheless, the jury must be left to draw the ultimate conclusion regarding the credibility of a witness. State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003).
Mingle relies on State v. Magallanez, 290 Kan. 906, 235 P.3d 460 (2010), as support for his argument that the prosecutor's statements constituted inappropriate comment on witness credibility. In Magallanez, the prosecutor told the jury that “ ‘you trust children until you have a reason not to. We assume that. We assume we have taught them correctly.’ “ 290 Kan. at 912. Our Supreme Court held that these statements constituted misconduct because the statements were not based on any reasonable inference from the evidence and the prosecutor “essentially gave unsworn testimony about the truthfulness of teenagers and children.” 290 Kan. at 914. Mingle claims that the prosecutor in this case similarly injected his personal beliefs and assumptions about when people tell the truth into the closing argument in order to bolster the credibility of the State's witnesses.
We do not view a prosecutor's statements in isolation but in context. See Stone, 291 Kan. at 19–20. In Stone, the prosecutor said, “ ‘A.L. told [the jury] what happened,’ “ and, “ ‘She is a credible witness.’ “ 291 Kan. at 19. The Supreme Court observed: “[T]hese comments were the brackets around an argument that detailed for the jury the factors that it could and should consider in determining the credibility of the witness.” 291 Kan. at 19. With this broader view, the Stone court held that the prosecutor's statements were within the latitude afforded the State, viewing the statements as attempts to summarize the conclusion the prosecutor wanted the jury to reach from the evidence rather than expressions of the prosecutor's own judgment on the credibility of the witness. 291 Kan. at 20.
In Davis, the defendant challenged certain statements by the prosecutor, including a statement that the evidence indicated that the victim “ ‘should be believed.’ “ 275 Kan. at 122. Our Supreme Court held that the prosecutor was within the latitude afforded to the State during closing argument because the prosecutor “stated reasonable inferences based upon the evidence” and did not vouch for the victim's credibility. 275 Kan. at 122; see also State v. Finley, 273 Kan. 237, 248, 42 P.3d 723 (2002) (prosecutor's comments on codefendant's lack of motive to lie as compared with defendant's motive to lie did not constitute error but were a fair comment based upon evidence); State v. Campbell, 268 Kan. 529, 541, 997 P.2d 726,cert denied531 U.S. 832 (2000) (prosecutor's comment that witness was not lying and had no motivation to lie was presented within context of discussing evidence at trial and was within considerable latitude allowed to counsel during closing argument).
Here, the prosecutor's statements about the credibility of the State's witnesses were within the wide latitude afforded a prosecutor during closing argument. When viewed in context, it is clear that the prosecutor did not personally vouch for the witnesses' credibility; rather, the prosecutor drew reasonable inferences that, based on the evidence presented at trial, the witnesses had no motivation to fabricate their testimony. Moreover, the third statement Mingle challenges was made during the State's rebuttal closing argument, after defense counsel had challenged the credibility of SJ. and Jones. “No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel. [Citation omitted.]” McReynolds, 288 Kan. at 325.
The prosecutor's comments are within the wide latitude allowed for commenting on the evidence and making reasonable inferences. Thus, Mingle's argument fails to pass the first step in the test for prosecutorial misconduct, and we need not consider whether the comments were so gross and flagrant as to prejudice the jury against Mingle and deny him a fair trial.
Affirmed in part, reversed in part, and remanded with directions for the district court to vacate the sentence for one of Mingle's aggravated indecent liberties convictions.