State v. Gutierrez-Fuentes, No. 120,339

• Citation: 477 P.3d 1041,59 Kan.App.2d 70
• Decision Date: 25 November 2020
• Docket Number: No. 120,339
• Parties: STATE of Kansas, Appellee, v. Geldy GUTIERREZ-FUENTES, Appellant.
• Court: Court of Appeals of Kansas

59 Kan.App.2d 70

477 P.3d 1041

STATE of Kansas, Appellee,

v.Geldy GUTIERREZ-FUENTES, Appellant.

No. 120,339

Court of Appeals of Kansas.

Opinion filed November 25, 2020.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Gardner, P.J., Warner, J., and Robert J. Wonnell, District Judge, assigned.

Wonnell, J.:

After law enforcement investigated personal injuries and property damage associated with an incident at an apartment complex on October 5, 2016, the State charged Geldy Gutierrez-Fuentes with one count of rape, one count of aggravated battery, one count of aggravated burglary, and one count of criminal threat. He was arrested on February 3, 2017, and the State filed an amended information on March 29, 2017, adding a second count of aggravated battery. After a series of continuances, Gutierrez-Fuentes' jury trial began on August 21, 2018. The jury found Gutierrez-Fuentes not guilty of rape and guilty on the remaining charges. On October 12, 2018, the district court sentenced Gutierrez-Fuentes to a controlling sentence of 82 months' imprisonment. He timely appeals.

FACTUAL BACKGROUND

On October 5, 2016, the Wichita Police Department received two 911 calls asking for assistance at D.S.'s address and reporting that a woman had been hit in the face and was bleeding. When Officer Dane Myers arrived, he saw D.S. sitting on the stairs outside her apartment building with "blood all over her face and ... on her hand." Because D.S. did not speak English, Myers obtained D.S.'s name and apartment number from a neighbor and went to the scene to find the door had been forced open and a piece of the door frame was lying on the ground. When Myers went into the apartment, he saw what appeared to be blood on the wall by a light-switch plate next to the door. D.S. was later transported to the hospital.

When Myers arrived at the hospital, D.S. was speaking with hospital personnel through an interpreter and with help from her Spanish-speaking neighbor. Myers relied on the hospital interpreter and D.S.'s neighbor to relay questions and answers between D.S. and himself. Ultimately, D.S. underwent surgical repairs for the injuries, including the implantation of six titanium plates in her face.

Myers testified that D.S. said that she had broken up with Gutierrez-Fuentes the day before—October 4, 2016—and she had been afraid he would come back to hurt her, so she had spent the previous night away from her apartment. After she returned home the next day, Gutierrez-Fuentes came to the apartment and said he was going to kill her and punched her in the face repeatedly. D.S. also testified that while hitting her, Gutierrez-Fuentes told her that "if [she] was not going to be with him that he could kill [her]," and D.S. was afraid that she was going to die. D.S. testified that she did not know why Gutierrez-Fuentes stopped hitting her and she did not remember Gutierrez-Fuentes leaving; she thought that she blacked out and when she came to, she was on the floor in her living room, bleeding. Myers testified that during this conversation with D.S. he noticed her eye had begun to swell shut.

Through the use of an interpreter, D.S. was examined by forensic nurse Tracy Hess the day after the incident. D.S. described the incident and her violent relationship with Gutierrez-Fuentes and concluded the conversation by stating that "he finally stopped when he saw there was a lot of blood and he left and then she went out and the neighbor had called 911." D.S. also told Hess that earlier that week, Gutierrez-Fuentes had come to her home and "wanted sex and she was afraid to say no, so she said she just took a deep breath and let him have sex with her." D.S. said she felt like she was coerced to have sex with Gutierrez-Fuentes and that she only did so out of fear.

That same day, D.S. spoke with Wichita police officer Rick Peña, who speaks Spanish and is an interpreter for the Wichita Police Department. Peña testified that D.S. said she and Gutierrez-Fuentes had dated for about three months and that two days before the incident, Gutierrez-Fuentes came to her apartment, entered with a key she had given him, woke her up, and had sex with her "against her will."

A week later, Officer Peña and Detective Heather Huhman met with D.S. At this point, D.S. clarified that she had given Gutierrez-Fuentes a key to her apartment but she had "rigged" the door so that it could not be easily opened from the outside even with a key. She affirmed that "she felt like she was going to be killed" during the attack on October 5.

On October 31, 2016, the State charged Gutierrez-Fuentes with one count of rape, one count of aggravated battery, one count of aggravated burglary, and one count of criminal threat. Gutierrez-Fuentes was arrested on February 3, 2017, and the district court appointed counsel to represent him soon after. On March 29, 2017, the State filed an amended information, adding a second count of aggravated battery. Gutierrez-Fuentes pleaded not guilty to all charges.

After a series of continuances and two changes of appointed defense counsel, Gutierrez-Fuentes' jury trial began on August 21, 2018. The State presented evidence from Linda Ester, a Sedgwick County 911 records custodian, and the two 911 calls from October 5, 2016. D.S., Peña, Huhman, and Myers also testified.

The jury viewed Myers' body camera footage of his actions at D.S.'s apartment, his conversation with D.S. at the hospital, and photographs of D.S.'s apartment. On cross-examination, Myers testified that D.S. did not state that Gutierrez-Fuentes forced her to have sex.

Doctor Timothy Benning testified about D.S.'s injuries and opined that such injuries do not commonly occur together as the result of a single impact. Rather, the cheekbone fracture was consistent with someone being punched on the cheekbone and the orbital fracture was consistent with a direct blow to the eyeball itself. Benning agreed that D.S.'s injuries amounted to "getting your face crushed" and that she suffered "significant" injuries.

Hess testified that D.S.'s genital examination showed no sign of acute injury, but "[i]t's fairly common that there's no injury with sexual intercourse." She stated that D.S. did not tell her that Gutierrez-Fuentes used force to rape her; rather, D.S. said she was overcome by fear. Hess testified that there was nothing in her examination of D.S. inconsistent with the history D.S. reported to her. On cross-examination, Hess acknowledged that there was nothing in her examination of D.S. inconsistent with the theory that D.S. had not been raped and she agreed that she had "no idea" whether D.S. was raped. The State introduced into evidence and published to the jury 27 photographs Hess took of D.S. during the examination.

D.S. said that she did not report the initial attack to police because she was afraid. When asked what she was afraid of, she replied, "I don't know. I just—I tell him to leave and he left and I thought that was the end of it." However, D.S. also said that Gutierrez-Fuentes came to the apartment on October 4 to retrieve his belongings and she asked Gutierrez-Fuentes for his key to the apartment, but he said that he had lost it.

Gutierrez-Fuentes presented no evidence. During closing argument, defense counsel focused on the rape charge, arguing insufficient evidence and emphasizing the inconsistencies in the evidence. After less than three hours of deliberation, the jury reached a verdict, finding Gutierrez-Fuentes not guilty of rape, guilty of the two counts of aggravated battery, guilty of aggravated burglary, and guilty of criminal threat. On October 12, 2018, the district court sentenced Gutierrez-Fuentes to a controlling sentence of 82 months' imprisonment. He timely appeals.

DID THE STATE VIOLATE GUTIERREZ-FUENTES' CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL ?

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." This provision applies in state court through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. State v. Owens , 310 Kan. 865, 869, 451 P.3d 467 (2019) (citing Klopfer v. North Carolina , 386 U.S. 213, 222-23, 87 S. Ct. 988, 18 L. Ed. 2d 1 [1967] ). The Kansas Supreme Court recently found that a 19-month delay did not violate a defendant's constitutional right to a speedy trial. 310 Kan. at 866, 451 P.3d 467. The court reached this decision after applying the four nonexclusive factors of length of delay, reason for delay, the defendant's assertion of his right, and prejudice. 310 Kan. at 869, 451 P.3d 467 (citing Barker v. Wingo , 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 [1972] ).

Courts consider these factors together with all relevant circumstances and none of the four factors is an independently sufficient reason to find a violation. See 310 Kan. at 869, 451 P.3d 467. That being said, "the United States Supreme Court has explained the [length of] delay factor is ‘to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’ " 310 Kan. at 872, 451 P.3d 467 (quoting Barker , 407 U.S. at 530, 92 S.Ct. 2182 ).

The State first filed charges against Gutierrez-Fuentes on October 31, 2016, but he was not brought to trial until August 21, 2018. Gutierrez-Fuentes argues that this length of time violated his constitutional right to a speedy trial. The State disagrees.

Preservation

Gutierrez-Fuentes contends that he properly preserved the constitutional speedy trial issue for appellate review because defense counsel asserted his right to a speedy trial and because Gutierrez-Fuentes "personally repeatedly objected to delays in his trial...