State v. Franco

• Decision Date: 14 February 2014
• Docket Number: No. 107,814.,107,814.
• Citation: 49 Kan.App.2d 924,319 P.3d 551
• Parties: STATE of Kansas, Appellee, v. Christopher FRANCO, Appellant.
• Court: Kansas Court of Appeals

49 Kan.App.2d 924

319 P.3d 551

STATE of Kansas, Appellee,

v.Christopher FRANCO, Appellant.

No. 107,814.

Court of Appeals of Kansas.

Feb. 14, 2014.

Unconstitutional as Applied

West's K.S.A. 21–5504(a)(1)

Syllabus by the Court

1. In assessing a challenge to jury instructions in a criminal case, an appellate court determines: (1) reviewability considering preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of any actual error.

2. When a criminal defendant challenges jury instructions for the first time on appeal, the court must find any defect caused clear error to reverse. To find jury instructions clearly erroneous, the appellate court must be firmly convinced the jury would have reached a different verdict had the instructional error not occurred.

3. A Bunyard instruction informs a jury that under Kansas law, rape occurs when the victim has initially consented to sexual intercourse with the perpetrator and then clearly withdraws that consent during the act, so long as the perpetrator then fails to stop within a reasonable time. What amounts to a reasonable time must be measured against the facts of a given case and presents an issue for the jury's determination.A comparable jury instruction should be given in a prosecution for aggravated criminal sodomy if it is factually supported.

4. The Kansas statute criminalizing sodomy, K.S.A. 21–3505, is unconstitutional and, thus, unenforceable to punish anal intercourse between consenting adults of the same sex conducted in private.

5. Under the facts of this case, the defendant could not have been constitutionally charged with or punished for criminal sodomy. The district court, therefore, committed no error in failing to instruct the jury on criminal sodomy as a lesser included offense of aggravated criminal sodomy.

6. In reviewing a criminal defendant's challenge to the sufficiency of the evidence, an appellate court examines the record in a light most favorable to the State, as the party prevailing at trial, and in support of the jury's verdict. The court will neither reweigh the evidence generally nor make credibility determinations specifically. The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt.

7. The test for prosecutorial misconduct and reversible error in closing argument is stated and applied.

8. Under the facts of this case, the prosecutor properly reviewed the evidence and explained to the jury how that evidence supported a conclusion that one witness was more credible than another witness when the witnesses gave conflicting accounts of the same event. The argument did not impermissibly dilute the State's burden to prove the elements of the charged offense beyond a reasonable doubt, especially in light of the jury instruction to that effect and the prosecutor's specific reference to that instruction and burden in closing argument.

Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates, LLC, of Leawood, for appellant.

Eric Fournier, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., BUSER and ATCHESON, JJ.

ATCHESON, J.

A jury in Finney County District Court convicted Defendant Christopher Franco of aggravated criminal sodomy. He appeals on multiple grounds, including instructional error, insufficiency of the evidence, and prosecutorial misconduct in closing argument. We find no error and affirm.

Factual Background and Procedural History

Given the issues, we do not linger over the facts. T.W.K., the victim, is a man in his mid–20s and has some mental disability. In April 2011, when the incident occurred, T.W.K. was living independently with his girlfriend in an apartment in Garden City. T.W.K.'s girlfriend had been in a relationship with Franco and bore their child. T.W.K. and Franco became acquainted when Franco visited his son. During those visits, Franco sometimes demonstrated boxing techniques and wrestling moves with T.W.K. The record evidence clearly indicates Franco was larger, stronger, and physically more adept than T.W.K. and easily dominated him during those demonstrations.

On April 20, Franco called and asked to come over to the apartment. T.W.K. agreed even though his girlfriend and her son were out of town. Franco arrived with his current girlfriend. After awhile, Franco whispered something to the woman, and she left the apartment. According to T.W.K.'s account, Franco walked into the bedroom. He told T.W.K. to follow along because he had a surprise. Franco then forcibly performed anal intercourse on T.W.K., who repeatedly implored him to stop. Franco did not. Franco remained at the apartment until his girlfriend returned. The couple then left.

T.W.K. immediately contacted representatives of a social service agency that provided assistance to him because of his disability. He explained what happened. The agency representatives called the Garden City police. The police department began an investigation. Franco met with Detective Tanya Bradley and initially denied any sexual encounter with T.W.K. Later in the interrogation, Franco admitted having consensual anal intercourse with T.W.K. The county attorney charged Franco with one count of aggravated criminal sodomy, a severity level 1 felony offense under K.S.A. 21–3506, and with one count of misdemeanor battery under K.S.A. 21–3412. The battery charge apparently stemmed from a particularly forceful wrestling demonstration between Franco and T.W.K. The aggravated criminal sodomy count required the State to prove that T.W.K. was overcome by force or fear and, therefore, did not consent to the sex act.

At trial, T.W.K. described how Franco forcibly sodomized him. Testifying in his own defense, Franco told the jury that T.W.K. had suggested several times that they have sex and continued to pester him about it. So Franco said he finally agreed. During the sex act, T.W.K. complained that it hurt. Franco testified he immediately stopped. The jury essentially had to resolve directly conflicting testimony from the participants as to whether T.W.K. willingly took part in the sex act.

The jury convicted Franco of aggravated criminal sodomy and acquitted him of battery. Based on Franco's criminal history and the severity of the offense, the district court imposed a standard guidelines sentence of 620 months in prison for the conviction. Franco has timely appealed.

Legal Analysis

Jury Instructions

On appeal, Franco argues two errors in the jury instructions. First, he contends the district court should have given an instruction to the effect that no crime is committed when a willing participant in a sex act withdraws consent during the encounter and the other participant—the defendant in the criminal case—stops within a reasonable time. See State v. Bunyard, 281 Kan. 392, 414–15, 133 P.3d 14 (2006) (recognizing use of instruction in rape case). Second, Franco contends the district court should have instructed on criminal sodomy—anal intercourse between consenting adults of the opposite sex—as a lesser included offense. See K.S.A. 21–3505 (criminal sodomy). At trial, Franco neither requested the instructions nor objected to the district court's failure to give them.

The Kansas Supreme Court recently outlined the analytical steps in assessing a challenge to jury instructions in a criminal case. State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). The appellate court determines: (1) reviewability considering preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of any actual error. The determination of harmlessness under Plummer borrows the standards set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012), for assessing errors that compromise a criminal defendant's constitutional rights and those that do not. Plummer, 295 Kan. at 162–63, 283 P.3d 202. The Plummer analysis governs all challenges to jury instructions, even those raised initially on appeal. But when a criminal defendant challenges jury instructions for the first time on appeal, the court must find any defect caused clear error to reverse. See K.S.A. 2013 Supp. 22–3414(3); State v. Haberlein, 296 Kan. 195, 203–04, 290 P.3d 640 (2012). The Kansas Supreme Court has recently restated the test for clearly erroneous jury instructions. See State v. Mireles, 297 Kan. 339, Syl. ¶¶ 5–7, 301 P.3d 677 (2013); State v. Trujillo, 296 Kan. 625, 630–31, 294 P.3d 281 (2013); State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). In Williams, the court phrased the test as “whether [the appellate court] is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195. The party disputing the jury instructions bears the burden of so persuading the appellate court. 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195.

Turning to the first alleged error, we look to Bunyard, as do the parties. The Bunyard court recognized that under Kansas law, rape occurs when the victim has initially consented to sexual intercourse with the perpetrator and then clearly withdraws that consent during the act, so long as the perpetrator then fails to stop within a reasonable time. Bunyard, 281 Kan. at 414–15, 133 P.3d 14. What amounts to a reasonable time must be measured against the facts of a given case and presents an issue for the jury's determination. 281 Kan. at 414–15, 133 P.3d 14. In appropriate cases, the jury should be informed of that aspect of the law. 281 Kan. at 415–16, 133 P.3d 14; see State v. Flynn, 45 Kan.App.2d 1113, 1115–16, 257 P.3d 1259 (2011) (noting requirement...