State v. Dull

• Decision Date: 31 January 2014
• Docket Number: No. 105,115.,105,115.
• Citation: 298 Kan. 832,317 P.3d 104
• Parties: STATE of Kansas, Appellee, v. Ryan DULL, Appellant.
• Court: Kansas Supreme Court

298 Kan. 832

317 P.3d 104

STATE of Kansas, Appellee,

v.Ryan DULL, Appellant.

No. 105,115.

Supreme Court of Kansas.

Jan. 31, 2014.

Syllabus by the Court

1. A prosecutor's assertion during opening statement that a sex crime victim's story to her mother was “the truth” is outside the wide latitude allowed to attorneys for the State and therefore error. It is not reversible error, however, because it was not repeated or emphasized and did not appear calculated or deliberate; it thus was not gross and flagrant and was not a product of ill will. In addition, given the strength of the evidence, the court is satisfied beyond a reasonable doubt that the prosecutor's early and isolated reference to “the truth” did not affect the outcome of the trial in light of the entire record.

2. A criminal defendant's failure to object to evidence at trial forecloses review of the admission by an appellate court.

3. On the facts of this case, it is not possible to resolve the defendant's claim that his trial counsel provided ineffective assistance without the benefit of district court proceedings in the first instance. Because of appellate counsel's deliberate decision not to seek remand to the district court for a hearing on the ineffective assistance issue under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), this court will not order such a remand sua sponte.

4. The defendant's observations about weaknesses and inconsistencies in the complaining witness' testimony do not meet the demanding standard for appellate reversal of the defendant's sex crime convictions for insufficiency of the evidence. Conflicting evidence is not necessarily insufficient evidence.

5. When a criminal defendant fails to provide legal authority to support an argument raised on appeal, the issue is deemed abandoned.

6. A sentencing judge is not required to make specific findings of fact on the record when a motion for departure from the mandatory minimum under Jessica's Law, K.S.A. 21–4643, and a further downward durational departure from the applicable grid range under the Kansas Sentencing Guidelines Act, K.S.A. 21–4701 et seq. is rejected.

David Phillip Leon, of The Law Office of David Leon, of Wichita, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

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

Defendant Ryan Dull appeals from his convictions and sentences in two cases—one involving sex offenses against a 13–year–old victim tried to a jury and the other involving burglary and theft tried to the bench on stipulated facts while the jury in the first case deliberated.

Dull raises five issues: (1) Whether prosecutorial misconduct denied Dull a fair trial on the sex crime charges; (2) whether the district court judge erred in admitting evidence in Dull's jury trial about Dull's brother having sexual intercourse in the next room; (3) whether Dull's district court counsel was ineffective; (4) whether sufficient evidence supported Dull's sex crimes and burglary and theft convictions; and (5) whether the district judge's failure to make on-the-record findings on Dull's departure motion rendered Dull's sentences in the burglary and theft case illegal.

Factual and Procedural Background

The events that led to Dull's prosecution for aggravated criminal sodomy, rape, and aggravated indecent liberties began when he gave D.P.A. and her girlfriend, K.E.B., a ride to his home one July evening in 2009. The victim, D.P.A., whom Dull knew to be 13, had romantic feelings toward Dull, age 20. K.E.B. had similar feelings toward Dull's younger brother, Bryce, one of 17–year–old twins who lived with Dull. On the night of the crimes, the two girls had told their parents they would be spending the night elsewhere.

According to the girls, they socialized awhile with Dull and the twins and another friend in the living room. Then D.P.A. went with Dull into his bedroom while K.E.B. went with Bryce into his bedroom. Once in Dull's bedroom, Dull touched and kissed D.P.A.; took her clothes off; performed oral sex on her; penetrated her vagina with his finger; and then, after donning a condom, had sexual intercourse with her. D.P.A. emerged from the bedroom wrapped in a sheet, and, when the others asked if she was wearing any clothes, she lifted the sheet to show them that she was not. D.P.A. told K.E.B. and another friend that she and Dull were going to have sex again, but they did not. D.P.A. spent the night with Dull in his bed. The next morning, Dull drove the girls home. He “broke up” with D.P.A. by text about a week later.

When D.P.A.'s mother learned of these events, law enforcement became involved. When interviewed by the police, Dull initially denied knowing D.P.A. and denied being anywhere near his home on the night of the crimes. He later admitted giving D.P.A. a ride to his home but said that he had slept alone on the night in question.

Ultimately Dull was charged with aggravated criminal sodomy, rape, and aggravated indecent liberties in Case No. 09CR3875. In another complaint filed the same day in Case No. 09CR3876, Dull was charged with burglary and misdemeanor theft arising from a wholly unrelated incident.

At his jury trial in the sex crimes case, Dull testified that he had a girlfriend at the time of the crimes and never dated D.P.A. He admitted that, because Bryce wanted him to, he had driven K.E.B. and D.P.A. to his home. He also testified that D.P.A. asked him if he “would ever go out with her” and “if [he] liked her.” He testified that he said no, that he wasn't interested, and that he had a girlfriend. He also testified that he did not have sex with D.P.A. and did not kiss her. He said that there was no sexual contact between them, and he went to bed alone on the night he had driven her and K.E.B. to his home. He said that, when he woke up, D.P.A. was in his bed and was clothed. He admitted that he had not been truthful with police during their initial interviews with him.

K.E.B.'s trial testimony and the testimony of the other friend who was present at the home largely corroborated D.P.A.'s version of events. D.P.A.'s mother also testified, as did Officer Grover “Jeff” Piper, who conducted investigative interviews. Piper's testimony about the results of his interviews of the girls and the friend was consistent with their trial testimony. He also testified about Dull's changing versions of the evening's events, including the fact that he originally claimed he was not present at the home but was at work.

The only person who continued to deny that Dull was at the home was the other twin, Brett. Brett testified that Dull was in the home only for about 15 minutes; that D.P.A. never went into Dull's bedroom; that both girls slept in the living room; that Brett slept in the room he shared with Bryce; and that Dull slept alone in his own room. Brett also accused the friend who testified consistently with K.E.B. of having “a habit of lying a lot.”

While the jury was deliberating in Case No. 09CR3875, the district judge took up the burglary and misdemeanor theft charges in Case No. 09CR3876. After a short bench trial on stipulated facts, the judge found Dull guilty as charged. The jury in Case No. 09CR3875 then returned a verdict of guilty on all of the three sex crime charges.

At Dull's sentencing in the sex crimes case, on the way to imposing three concurrent hard 25 life sentences under Jessica's Law, the district judge rejected Dull's motion seeking a departure from the mandatory minimum under Jessica's Law and a further downward durational departure from the applicable grid range under the Kansas Sentencing Guidelines Act. The motion was based on Dull's lack of a significant criminal history, his description of the offenses as nonviolent, and D.P.A.'s willing participation in the sex acts. The judge did not explain his reasoning for finding no substantial and compelling reasons to warrant the departures on the record.

On the burglary and theft case, Dull received 30 months' imprisonment and a 12–month jail term, to run concurrent with each other and with the sentences imposed in the sex crimes case.

Prosecutorial Misconduct

Dull argues that the prosecutor committed reversible misconduct during opening statement by commenting on D.P.A.'s credibility. Specifically, the prosecutor told the jury that, when D.P.A. was confronted by her mother about whether she had engaged in sexual intercourse with Dull, D.P.A. told her mother “the truth.” Dull argues that the prosecutor's comment denied him a fair trial and requires reversal.

A claim of prosecutorial misconduct based on comments made during opening statements, which are not evidence, will be reviewed on appeal even absent a contemporaneous objection. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).

Our standards governing review of prosecutorial misconduct claims have often been recited:

“Review of prosecutorial misconduct claims involves a two-step process. The appellate court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, the court must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial.”

“The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified three factors to consider in determining if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the...