State v. Cervantes-Puentes

• Decision Date: 14 June 2013
• Docket Number: No. 104,020.,104,020.
• Citation: 297 Kan. 560,303 P.3d 258
• Parties: STATE of Kansas, Appellee, v. Sergio CERVANTES–PUENTES, Appellant.
• Court: Kansas Supreme Court

297 Kan. 560

303 P.3d 258

STATE of Kansas, Appellee,

v.Sergio CERVANTES–PUENTES, Appellant.

No. 104,020.

Supreme Court of Kansas.

June 14, 2013.

Syllabus by the Court

1. Trial courts apply a two-step process to determine whether to admit or suppress an eyewitness identification. First, the court determines whether the procedure used for making the identification was impermissibly suggestive. Second, if the challenged procedure is found to be impermissibly suggestive, the court considers eight factors to determine whether, under the totality of the circumstances, there was a substantial likelihood of misidentification.

2. Appellate courts apply a bifurcated standard to review a district court's decision to admit or suppress an eyewitness identification. The appellate court reviews the district court's factual findings to determine whether those findings are supported by substantial competent evidence and reviews the legal conclusions drawn from those findings de novo.

3. The party alleging a trial error has the burden of designating a record that affirmatively shows prejudicial error.

4. When considering a case-specific disproportionality challenge to a sentence under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights, a district judge must make factual findings and draw conclusions of law.

5. Criminal defendants are responsible for ensuring the district court makes adequatefactual findings under State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), to permit appellate review of a case-specific challenge to the constitutionality of a sentence.

6. A criminal defendant may raise a categorical challenge to the proportionality of his or her sentence under the Eighth Amendment to the United States Constitution, as interpreted in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), for the first time on appeal because such a claim involves a question of law.

[297 Kan. 561]7. A criminal defendant raising a categorical challenge to the proportionality of his or her sentence under the Eighth Amendment to the United States Constitution, as interpreted in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), must demonstrate the existence of a valid categorical claim.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of same office, was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by MORITZ, J.:

Sergio Cervantes–Puentes appeals his conviction of one count of aggravated indecent liberties with a child and sentence of life without the possibility of parole for 25 years. We affirm his conviction and sentence.

Factual and Procedural Background

In May 2009, the State charged Cervantes–Puentes with one count of aggravated indecent liberties with a child. At trial, the State established that Cervantes–Puentes approached a 13–year–old female, C.M.B., in a store in Wichita, pretended he was trying to find a shirt that would fit his daughter, held a shirt up to C.M.B., and, while standing behind C.M.B., rubbed his erect, clothed penis against her clothed buttocks. C.M.B. immediately walked away and reported the incident to her mother who, in turn, reported the incident to store security. Cervantes–Puentes was apprehended before he left the store, and C.M.B. confirmed he was the man involved in the incident. At trial, C.M.B. again identified Cervantes–Puentes as the man who approached her and brushed against her in the store.

Pursuant to K.S.A. 2009 Supp. 60–455, the State presented evidence at trial that Cervantes–Puentes had similar encounters with adult women in other Wichita stores between March and May [297 Kan. 562]2009. Specifically, the State presented testimony from two witnesses, S.B. and D.B., each of whom testified that Cervantes–Puentes approached them on separate occasions in a store, pretended to need assistance in sizing and purchasing a shirt for his wife, and rubbed his clothed erection against their clothed backsides. The State also introduced a surveillance video depicting Cervantes–Puentes performing the same actions with a third, unidentified female victim from the same store where the incidents involving S.B. and D.B. occurred.

Cervantes–Puentes testified at trial that he frequently buys clothing to send to his wife and three daughters who live in Mexico. He further admitted that he approached C.M.B. and held a shirt up to her to see if it would fit his oldest daughter, but he denied that his decision to approach C.M.B. or his action in holding the shirt up to her were sexually motivated.

The jury found Cervantes–Puentes guilty of aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(3)(A) (lewd fondling or touching of a child under 14 years of age with intent to arouse or satisfy the sexual desires of child, offender, or both). The district court denied both Cervantes–Puentes' motion challenging the constitutionality of his anticipated sentence and his motion for a sentencing departure and imposed a sentence of life imprisonment with no possibility of parole for 25 years under “Jessica's Law,” K.S.A. 21–4643(a)(1)(C). We have jurisdiction over Cervantes–Puentes' direct criminal appeal under K.S.A. 22–3601(b)(1)(life sentence imposed under K.S.A. 21–4643; case docketed before July 1, 2011).

Discussion

Cervantes–Puentes failed to provide an adequate appellate record to support his first claim of error.

Cervantes–Puentes challenges his conviction on only one ground. Specifically, he alleges the district court erred in admitting in-court identifications from S.B. and D.B. because prior to trial, each witness was shown an impermissibly suggestive photo array.

Ordinarily, trial courts apply a two-step process to determine whether to admit or suppress an eyewitness identification. First, the court determines whether the procedure used for making the identification was impermissibly suggestive. State v. Mitchell, 294 Kan. 469, 476, 275 P.3d 905 (2012); State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179 (2006). Second, if the challenged procedure is found to be impermissibly suggestive, the court considers eight factors to determine whether, under the totality of the circumstances, there was a substantial likelihood of misidentification. Mitchell, 294 Kan. at 476–78, 275 P.3d 905;Corbett, 281 Kan. at 304–05, 130 P.3d 1179.

This two-part analysis applies equally when determining whether to admit or suppress an in-court identification that has allegedly been tainted by a pretrial identification procedure. See State v. Ponds, 227 Kan. 627, 630, 608 P.2d 946 (1980) (stating that “in-court identifications may be capable of standing on their own even though preceded by deficient pretrial confrontations,” and noting that courts should consider various factors “to test the reliability of the courtroom identification”).

On appeal, we ordinarily apply a bifurcated standard to review a district court's decision to admit or suppress an eyewitness identification. We review the district court's factual findings to determine whether those findings are supported by substantial competent evidence and review the legal conclusions drawn from those findings de novo. Corbett, 281 Kan. at 304, 130 P.3d 1179.

Here, in response to Cervantes–Puentes' argument that S.B. and D.B. viewed an impermissibly suggestive photo array prior to trial, the district court held a hearing to consider the admissibility of the eyewitnesses' anticipated in-court identifications. The court heard testimony from the detective who assembled the photo array, reviewed the photo array, determined the photo array was not impermissibly suggestive, and overruled the motion to suppress the photo array and the eyewitness identifications without considering any factors related to reliability.

At trial, the State did not admit the photo array or elicit any testimony from the witnesses regarding the fact that they viewed the photo array before trial. Moreover, defense counsel did not elicit any testimony from the witnesses regarding any of the factors commonly considered to challenge the reliability of an eyewitness identification.

Although the State did not admit the photo array or any testimony regarding it at trial, Cervantes–Puentes maintains on appeal that the photo array was impermissibly suggestive because his photo was the only photo with “a larger gap of empty space between the top of the head and the top frame of the photo.” He contends the array highlighted his short stature, thereby resulting in “a substantial likelihood that S.B. and D.B. misidentified [him]” based on the “suggestive photo array.”

But Cervantes–Puentes failed to include the photo array in the appellate record, preventing our review of the district court's factual findings and legal conclusion regarding the array. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) (reiterating that party alleging trial error has burden to designate record affirmatively showing prejudicial error). Further, even if...