Opinion
No. 110,274.
2014-12-5
STATE of Kansas, Appellee, v. Mario RIVERA, Appellant.
Appeal from Sedgwick District Court; William S. Woolley, Judge.Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; William S. Woolley, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mario Rivera appeals from his jury trial conviction of aggravated sodomy. Rivera argues that the trial court committed error by allowing the State to present evidence of his previous conviction for window peeping to impeach his testimony at trial. But even if we were to construe the trial court's decision was error, we determine that the error was invited. Rivera also challenges the trial court's decision denying his motion to suppress his post- Miranda statements. Nevertheless, Rivera's failure to include the transcript and video recording of his interrogation in the record precludes appellate review of this issue. Accordingly, we affirm.
In July 2012, the State filed a complaint alleging Rivera committed aggravated criminal sodomy and aggravated sexual battery on L.J.D. in February 2011 and aggravated criminal sodomy on S.D.M. in May 2012. For the purposes of our analysis, we need not repeat the facts surrounding the alleged crimes.
Before the case proceeded to jury trial in May 2013, the trial court, after hearing arguments, granted a defense motion in limine to exclude any discussion of Rivera's previous conviction for window peeping. The trial court also denied Rivera's motion to suppress his post- Miranda statements made to a detective.
Rivera elected to testify on his own behalf at trial. At the conclusion of his direct examination, defense counsel asked Rivera, “You didn't force these women to do this?” To which Rivera responded:
“I didn't force these women to do anything. I do live a fast life. I admit that I'm no saint. I do surround myself around prostitutes. I do strippers. And I never had a problem until these two girls. And I don't beat women. I have no sex cases. And just hope you guys make a good judgment.” (Emphasis added.)
Outside the presence of the jury, the trial court, after hearing arguments, granted the State's request to question Rivera regarding his previous conviction for window peeping. The trial court made no findings on the record. The following exchange later occurred during the cross-examination of Rivera:
“[Prosecutor:] You told us earlier you didn't have any sex [cases]?
“[Rivera:] That's right?
“[Prosecutor:] But you were convicted of window peeping in the City of Wichita, though, right?
“[Rivera:] No, I was trespassing.
“[Prosecutor:] You were convicted of window peeping.
“[Rivera:] I know the girl real well. I always know her husband so ...
“[Prosecutor:] Did that keep you from being convicted of window peeping?
“[Rivera:] That's also what the State put on. “[Prosecutor:] Were you convicted of window peeping? “[Rivera:] Yes, I was, I was convicted of it.”
Ultimately, the jury convicted Rivera of the aggravated criminal sodomy of L.J.D. but acquitted him of the two remaining charges. The trial court sentenced Rivera to 195 months in prison.
Evidence of a Previous Conviction
On appeal, Rivera first asserts that the trial court erred in finding that he had opened the door to allow the State to introduce evidence of his prior conviction for window peeping to impeach his testimony that he had “no sex cases.” Rivera argues that the State's use of this previous conviction was improper for impeaching his testimony under K.S.A. 60–421 because the definition of window peeping under Section 5.90.10 of the Wichita Municipal Code (2009) does not “require a finding of sexual intent or in any way relates to sex.” As framed by Rivera: “The district court's decision to allow this impeachment was only proper if [his] statement that he had no prior sex cases was contradicted by the window peeping conviction.” Rivera maintains that when the State categorized his prior conviction as a sex crime, it “unfairly and inaccurately portrayed [him] as a sex offender.”
We first note that Rivera's argument to the trial court as to why it should not have allowed the admission of his prior conviction was not the same basis he now argues on appeal.
At the bench conference before Rivera's cross-examination, defense counsel argued that the trial court should not admit evidence of Rivera's previous conviction because Rivera “speaks in very simple plain terms,” his statement to the jury referred to cases such as the ones with which he was being charged, and he “would not consider the window peeping case as a sex case.” Rivera did not argue that the admission of this evidence was precluded under any specific statutory rules. Moreover, there is a clear distinction between arguing to the trial court how it should consider Rivera's testimony within the context of his own understanding of the nature of his previous conviction for window peeping and specifically arguing on appeal that his prior conviction under the Wichita Municipal Code was not sexually related. Because Rivera did not the challenge the nature of his window peeping conviction below, we are not required to consider this argument on appeal. See State v. Cheffen, 297 Kan. 689, 698, 303 P.3d 1261 (2013) (issues not raised before the trial court cannot be raised on appeal). Nevertheless, the State's arguments on this issue bear further discussion.
The State makes a twofold argument. First, the State argues that Rivera failed to preserve this issue for appeal because he did not contemporaneously object at trial when the State raised the issue of his prior conviction. Second, although acknowledging prior convictions for crimes other than for dishonesty generally cannot be used to impeach witness credibility under K.S.A. 60–421 and K.S.A. 60–422, the State contends that Rivera's window peeping conviction was admissible for impeachment purposes because his testimony about having no sex cases opened the door to his window peeping conviction.
To support its second argument, the State points to State v. Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013), which explained: “The ‘open the door’ rule applies ‘when a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses.’ Under the rule, ‘the prosecution may then present evidence in that formerly forbidden sphere.’ State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995).” Of note, the State's corresponding argument that Rivera's prior conviction “was also admissible through a second opened door” because Rivera also testified that “he never had a problem with women in his fast lifestyle” is not properly before us. See Cheffen, 297 Kan. at 698.
Generally, issues regarding the admission of evidence require a multistep analysis with separate standards of appellate review applying to each analytical step. Everett, 296 Kan. at 1044. Initially, a court must determine whether the evidence is relevant. State v. King, 299 Kan. 372, 383, 323 P.3d 1277 (2014). For evidence to be relevant, it must be both probative and material. See K.S.A. 60–401(b).We review the trial court's assessment of the probative value of evidence under an abuse of discretion standard, and our review for materiality is de novo. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013). Moreover, even if evidence is relevant, the trial court has discretion to exclude it where the court finds its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60–445. An appellate court reviews any such determination for an abuse of discretion. State v.. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013).
Once relevance is established, the trial court's consideration of the admissibility of evidence can also require application of statutory rules controlling the admission and exclusion of certain types of evidence. These statutory rules are applied as a matter of law or as an exercise of the trial court's discretion, depending on the applicable rule. See State v. Holman, 295 Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012). Here, both parties frame the issue as the trial court specifically admitting Rivera's previous conviction under K.S.A. 60–421 and K.S.A. 60–422. Whether the trial court complied with specific statutory requirements for admitting evidence for the purpose of impeaching a witness' credibility requires interpretation of a statute, which we review de novo. State v. Stafford, 296 Kan. 25, 47, 290 P.3d 562 (2012). Finally, the erroneous admission of evidence is subject to review for harmless error under K.S.A.2013 Supp. 60–261. See State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013).
Here, just as in Everett, 296 Kan. at 1044, the State seeks to circumvent the aforementioned analytical steps by arguing the open the door rule made the evidence of Rivera's previous conviction admissible to impeach Rivera under K.S.A. 60–421 and K.S.A. 60–422. But the State, in pointing to the definition of the open the door rule in Everett, fails to acknowledge that our Supreme Court in Everett held that, after its decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), there were no exceptions to the admission of prior crimes evidence apart from K.S.A.2013 Supp. 60–455. Everett, 296 Kan. at 1045.
In Everett, the State unsuccessfully sought to admit evidence of prior crime apart from the K.S.A. 60–455 analytical framework by using the open the door rule. 296 Kan. at 1044. Our Supreme Court explained: “In essence, through this [open the door] rule the State seeks to admit evidence of a prior crime in a manner that is independent of the rules of evidence, including K.S.A. 60–455, which relates to the admission of evidence regarding other crimes or civil wrongs.” 296 Kan. at 1044.
Our Supreme Court noted that the “State's arguments ignore our decision in Gunby in which the court ended a prior practice of admitting evidence of other crimes or civil wrongs on any grounds independent of K.S.A. 60–455.” (Emphasis added.) Everett, 296 Kan. at 1044. The court acknowledged that before Gunby it had allowed the admission of previous crime evidence independent of K.S.A. 60–455 based on the open the door rule exception. Everett, 296 Kan. at 1044–45. But the court noted it had refined that analysis in Gunby by announcing that the “admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60–455.” Everett, 296 Kan. at 1045. Consistent with Gunby, our Supreme Court held that “evidence admitted in rebuttal to other evidence under an ‘open the door’ rule is not an exception permitting evidence of other crimes or civil wrongs to be admitted independent of K.S.A. 60–455.” (Emphasis added.) Everett, 296 Kan. at 1045.
Because the State was seeking to introduce the window peeping evidence under K.S.A. 60–421 of a prior conviction “for a crime not involving dishonesty or false statement,” the trial court should have applied the safeguards inherent in a K.S.A.2013 Supp. 60–455 analysis before admitting evidence of the nature of Rivera's prior conviction. See Everett, 296 Kan. at 1045. Moreover, the State not only questioned the applicability of K.S.A.2013 Supp. 60–455 in this case on appeal, but it also acknowledged its application to the trial court at the instruction conference when it stated: “You know, any time any Gunby or [K.S.A. 60–]455 evidence comes in, I think the court has to consider giving a limiting instruction.” See Breeden, 297 Kan. 567, 577, 304 P.3d 660 (2013) (assuming evidence was subject to K.S.A. 60–455 because State did not argue applicability).
In Gunby, 282 Kan. at 56–57, our Supreme Court set out a three-part test a trial court must use in determining whether to admit evidence of a defendant's prior crimes or civil wrongs under K .S.A. 60–455. The trial court in examining evidence of prior convictions must determine (1) whether the fact to be proven is material, (2) whether the material fact is in issue and, if so, whether the evidence is relevant to prove the disputed material fact, and (3) whether the probative value of the evidence outweighs its prejudicial effect on the defendant. Everett, 296 Kan. at 1046. In addition, to avoid error in a jury trial, the trial court must give a limiting instruction telling the jury of the specific purpose for the admission of the prior conviction. 296 Kan. at 1046. Here, because the trial court failed to conduct a Gunby analysis, this case is problematic for several reasons.
First, despite the trial court granting Rivera's motion in limine precluding the introduction of the weeping evidence and the State asking to introduce this evidence, Rivera did not object on any basis during the bench conference exchange. Besides Rivera's argument at the bench conference, the only other objection on the record during trial regarding the admission of his prior conviction occurred after the jury instruction conference when Rivera renewed his motions for a new trial and judgment of acquittal and added that the State had violated the order in limine.
K.S.A. 60–404 generally precludes an appellate court from reviewing an evidentiary challenge “unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” Holman, 295 Kan. at 126. Moreover, our Supreme Court has made it clear that it adheres to a K.S.A. 60–404 when considering evidentiary issues under K.S.A.2013 Supp. 60–455. See, e.g., Breeden, 297 Kan. at 580; Holman, 295 Kan. at 127. Consequently, because Rivera did not object to the evidence of his prior conviction on the record when it was introduced, he has not preserved his evidentiary error claims for appeal.
Second, even if we were to construe Rivera's aforementioned objections during the bench conference or after the close of the State's evidence somehow satisfied the underlying purpose for the contemporaneous objection rule, his failure to recognize and brief the applicability of the procedural safeguards regarding K.S.A.2013 Supp. 60–455 on appeal precludes consideration of such an evidentiary analysis. See State v. Boleyn, 297 Kan 610, 633, 303 P.3d 680 (2013) (An issue not briefed by the appellant is deemed waived and abandoned.). This also holds true for a review of whether the trial court should have given a limiting instruction regarding K.S.A.2013 Supp. 60–455(b) evidence to the jury. Even though Breeden, 297 Kan. at 582, made it clear that a defendant's failure to contemporaneously object to the admission of K.S.A.2013 Supp. 60–455(b) evidence does not waive his or her right to raise on appeal the issue of whether the failure to give a limiting instruction was clearly erroneous, Rivera makes no such argument on appeal. See Boleyn, 297 Kan at 633.
Third, for the sake of brevity, even if we were to determine that the trial court erroneously admitted evidence that was subject to K.S.A 2013 Supp. 60–455, appellate courts do not consider errors invited by the litigant. See State v. Schreiner, 46 Kan.App.2d 778, 788, 264 P.3d 1033 (2011), rev. denied 296 Kan. 1135 (2013).
At the instruction conference, the trial court asked the parties to address its proposed limiting instruction under PIK Crim. 4th 51.030, which concerns the admission of evidence under K.S.A.2013 Supp. 60–455, to address “the issue of the introduction of the evidence regarding the ... peeping conviction.” The State argued its purpose of introducing the prior conviction “was pure impeachment. It was a misstatement [by Rivera].... And I'm allowed to impeach such a statement.” The trial court then asked defense counsel, “[A]re you asking me to give a limiting instruction under PIK [Crim. 4th] 51.030.” To which defense counsel responded, “I am asking that you do not.... [A]s I keep working this through my head, I think the best course [is] ... I would ask that we not have a limiting instruction at all on this. And that's what I would ask.” The State then made the aforementioned statement acknowledging the evidence fell under Gunby or K.S.A.2013 Supp. 60–455, but cautioned, “If the defense is asking you not to give an instruction, I think that's a sound trial strategy decision that I'm not going to interfere with.” The trial judge then ruled he would not provide the limiting instruction, noting defense counsel is “very familiar with trial strategy and, therefore, I am relying on his ability and expertise.” The trial court made the same acknowledgement when it addressed Rivera's attempt to renew his motions for new trial and judgment of acquittal.
Granted, the trial court's failure to give a limiting instruction regarding evidence admitted under K.S.A.2013 Supp. 60–455 amounts to error. Gunby, 282 Kan. at 58. Nevertheless, that error does not automatically require reversal. See Breeden, 297 Kan. at 584. When a defendant “neither requested the instruction nor objected to its omission,” this court will only reverse if a defendant demonstrates clear error. Gunby, 282 Kan. at 58; see K . S.A.2013 Supp. 22–3414(3). Here, we are presented with a third situation—when a defendant, after discussing the other crimes evidence with the trial court, specifically asks the trial court for strategic purposes not to give the jury a limiting instruction.
Thus, if the trial court erred by honoring defense counsel's specific request that it not give a limiting instruction, this error was invited. See Schreiner, 46 Kan.App.2d at 788. Consequently, this issue is not properly before us.
Harmless Error
Even if the trial court erred in allowing the impeachment of Rivera with his window peeping conviction, the error was harmless. An error is harmless when it does not affect a party's substantial rights or, in other words, does not change the outcome of the trial. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) cert. denied 132 S.Ct. 1594 (2012). If a constitutional error is at issue, the State must show beyond a reasonable doubt that “there is no reasonable possibility that the error affected the verdict” in light of the whole record. Ward, 292 Kan. at 569. If only a statutory right is at issue, the State must show that “there is no reasonable probability the error affected the trial's outcome in light of the entire record.” State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
Here, as the State points out in its brief, the jury was not “harmfully swayed” by the window peeping evidence. For example, the State charged Rivera with aggravated sodomy and aggravated sexual battery of L.J.D. The State also charged him with aggravated sodomy of S.D.M. The jury convicted Rivera of aggravated sodomy of L .J.D. and acquitted him of aggravated battery of L.J.D. and aggravated sodomy of S.D.M. Thus, the jury found Rivera guilty of only one of the three charges filed against him. This indicates that the jury properly weighed the evidence presented and considered the credibility of the witnesses without being adversely influenced by the window peeping conviction. Moreover, the window peeping conviction was not similar to any of the three offenses filed against him. As a result, there is no reasonable probability that the alleged error affected the trial's outcome. If there was error, it was harmless.
Motion to Suppress
Next, Rivera asserts that the trial court erred in denying his motion to suppress his post-Miranda statements. Rivera argues that his statements were not voluntary because he was extremely intoxicated when the detective questioned him. The State had the burden at the suppression hearing to prove the voluntariness of Rivera's statements by a preponderance of the evidence—that his statement was the product of a free and independent will. See State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). Rivera made a contemporaneous objection at trial regarding the statements.
Normally, this court reviews a trial court's decision on a motion to suppress using a bifurcated standard. First, without reweighing the evidence or assessing the credibility of witnesses, we review the trial court's factual findings to determine whether they are supported by substantial competent evidence. Then, we review the ultimate legal conclusion from those factual findings using a de novo standard. State v. Murphy, 296 Kan. 490, 492, 293 P.3d 703 (2013) Of course, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
Rivera states in his brief that “[t]he district court held a hearing and denied the motion.” For support, he cites to a motion minute sheet that checked the box for denied, which indicated: “5/6/13 per record as stated.” Nevertheless, our ability to conduct an analysis is dependent on Rivera, as the party claiming an error occurred, designating a record that affirmatively supports his claim or the claim fails. See McCullough, 293 Kan. at 999.
Contrary to Rivera's assertion, the trial court at the end of the suppression hearing told the parties that it would take the matter under advisement until viewing the videos of the post-Miranda interview the detective conducted with Rivera (State's Exhibit 2). The trial judge stated, “I think to the extent that they are tapes and I can judge the facts of his ability to answer and whatever else, I'm not going to rule until after I've actually looked at these.” The trial judge then told the parties he would “notify counsel of my decision ... by email similar to issuing a written opinion.” Consequently, the record becomes problematic for two reasons.
First, the suppression hearing occurred on May 3, 2013, and the minute sheet indicates the trial court made a decision on the record 3 days later on “5/6/13.” The trial court indicated it would tell the parties of its decision via e-mail, yet the record does not contain this e-mail or any other documents containing the trial court's factual findings and corresponding legal conclusion. Moreover, there is no indication Rivera had objected on any basis to the trial court's findings of fact or conclusions of law that would lead this court to believe the minute sheet is the only written findings the trial court made in denying the motion to suppress. See State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P .3d 1285 (2010).
Second, and most important, even though the record contains a copy of the transcript of the suppression hearing in which Rivera and the detective both testified, it does not contain the video evidence of the interrogation that the trial court seemed to have relied upon in determining whether Rivera's statements to the detective were freely made. Moreover, at the suppression hearing the detective testified that the transcripts of his interrogation of Rivera indicated it lasted 20 minutes. Rivera did not include a copy of these transcripts either. Consequently, without the ability to view the video evidence and transcripts to assess the veracity of the testimony or evidence presented regarding Rivera's condition during the interrogation we would be left with either reweighing the testimony or making a credibility determination, which this court does not do. See State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013) (the appellate court does not reweigh the evidence or assess the credibility of witnesses). Accordingly, this claim of error fails. See State v. Littlejohn, 298 Kan. 632, 654–55, 316 P.3d 136 (2014) (defendant's failure to include DVD recording and transcript of interrogation with detectives precluded determination of whether trial court's ruling on a suppression motion regarding the propriety of post- Miranda statements was supported by substantial competent evidence).
Affirmed.