State v. Hart, No. 101,723.

• Court: Court of Appeals of Kansas
• Writing for the Court: GREEN
• Citation: 44 Kan.App.2d 986,242 P.3d 1230
• Parties: STATE of Kansas, Appellee, v. Randy Dean HART, Appellant.
• Decision Date: 19 November 2010
• Docket Number: No. 101,723.

242 P.3d 1230
44 Kan.App.2d 986

STATE of Kansas, Appellee,
v.
Randy Dean HART, Appellant.

No. 101,723.

Court of Appeals of Kansas.

Nov. 19, 2010.

242 P.3d 1235, 44 Kan.App.2d 986

Syllabus by the Court

1. When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court reviews all the evidence in the light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

2. A claim of prosecutorial misconduct based on comments made during voir dire, opening statements, or closing argument which are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at the trial level.

3. Appellate review of an allegation of prosecutorial misconduct involving improper

242 P.3d 1236

comments to the jury requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

4. In the second step of the two-step analysis for prosecutorial misconduct, an appellate court considers the following three factors: (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 was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 (refusal to grant new trial is inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial), have been met.

5. In general, a prosecutor may not offer juries his or her personal opinion as to the credibility of witnesses. Nevertheless, a prosecutor

44 Kan.App.2d 987

has wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence. That includes explaining to the jury what it should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.

6. A prosecutor should not comment on a witness' credibility because expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. Nevertheless, the ultimate conclusion as to any witness' veracity rests solely with the jury.

7. An appellate court reviewing a trial court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission. An instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.

8. A jury instruction on the elements of a crime which is broader than the information charging the crime is erroneous. Such an error may be excused only where the substantial rights of the defendant have not been prejudiced.

9. If a defendant's ability to prepare and present a defense has been compromised by an erroneously broadened jury instruction, the substantial rights of the defendant have been prejudiced. Likewise, the defendant's substantial rights are prejudiced if the defendant would not have testified if he or she had known that the erroneously broadened instruction would be given.

10. In order to preserve an issue relating to the admissibility of evidence for appeal, a party must make a timely and specific objection. K.S.A. 60-404. Even if there is an in limine ruling that the evidence is admissible, where an objection to the evidence is not made when it is introduced at trial, the defendant is generally precluded from challenging its admissibility on appeal

11. Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction

44 Kan.App.2d 988

. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming.Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Kendra M. Oakes, legal intern, for appellee.

242 P.3d 1237

Before GREENE, P.J., GREEN and STANDRIDGE, JJ.

GREEN, J.

Randy Dean Hart appeals from his jury trial convictions and sentences for two counts of indecent liberties with a child in violation of K.S.A. 21-3503(a)(1). Hart raises eight arguments on appeal. Hart first argues that the evidence was insufficient to convict him of indecent liberties with a child in regard to the victim, C.H., because the evidence failed to show that C.H. was 14 years of age or older but less than 16 years of age when the alleged crime occurred. We disagree. Based on the testimony in this case, the legislature's intent as expressed through the statutory scheme of punishing sexual offenders for their crimes against children, and defense counsel's role in making sure the complaint was amended to be consistent with C.H.'s testimony that the crime occurred when C.H. would have been 14 years old, we determine that the evidence was sufficient to convict Hart of indecent liberties with a child.

Next, Hart maintains that the prosecutor committed misconduct during closing argument when she gave her personal opinion that the victims were credible. We again disagree. In reviewing Hart's argument, we find only one of the prosecutor's comments that was outside of the wide latitude afforded the prosecutor during closing arguments. Nevertheless, because this isolated comment was not gross and flagrant and did not demonstrate ill will on the prosecutor's part, we find that it was not so egregious as to warrant a new trial. Next, Hart argues that the trial court erred in providing a jury instruction for indecent liberties with a child that was broader than the charging document. Nevertheless, because the

44 Kan.App.2d 989

record demonstrates that Hart's substantial rights have not been prejudiced by the giving of the instruction, his argument on this issue fails.

Next, Hart contends that the trial court erred in admitting prior bad acts evidence involving the victims to prove motive, intent, plan, and absence of mistake or accident under K.S.A. 60-455. Although Hart objected to the admission of the prior bad acts evidence in a motion in limine and during trial, we determine that his objection to this evidence at trial was untimely. As a result, we determine that Hart failed to adequately preserve the issue of the admissibility of the K.S.A. 60-455 evidence for appeal. Nevertheless, to get to the legal issue involved in this appeal, the State, during oral argument, stipulated that Hart's objection to the admission of the K.S.A. 60-455 evidence at trial was sufficiently timely to preserve the issue for appeal. Assuming arguendo that Hart's objection to this evidence was sufficiently timely, we would find no reversible error concerning this issue. Under K.S.A.2009 Supp. 60-455(d), which would apply retroactively to Hart's case, the prior bad acts evidence in this case is admissible to show the relationship of the parties.

Hart also raises the following arguments in the present appeal: (1) that the trial court erred in giving a limiting instruction on the admitted K.S.A. 60-455 evidence; (2) that cumulative error denied him his constitutional right to a fair trial; (3) that his constitutional rights were violated when the trial court sentenced him to an aggravated sentence in the sentencing grid block; and (4) that his constitutional rights were violated when the trial court sentenced him to an increased sentenced based upon his criminal history. Nevertheless, we find no merit to any of these remaining arguments. Accordingly, we affirm.

Facts

In May 2008, Hart was charged with two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(2)(A), a severity level 3 felony. The first count was based on an incident in which Hart allegedly fondled or touched the breasts of his daughter, C.H. (date of birth 09/15/90), while C.H.

44 Kan.App.2d 990

was in the shower when she was 15 years old. The second count was based on an incident in which Hart allegedly fondled or touched the breasts of his former wife's cousin, N.B. (date of birth 03/18/91), when she was 14 years old.

Before trial, the State moved to admit prior crimes evidence under K.S.A.2009 Supp. 60-455. The State asserted that Stacy

242 P.3d 1238

Hart, who was Randy Hart's former wife and C.H.'s stepmother, had contacted the police to report concerns about the behavior of her 4-year-old daughter, K.H. According to the State, Stacy reported that when she contacted C.H. to ask whether she was aware of any improper contact between Hart and K.H., C.H. revealed improper contact between C.H. and Hart on many occasions. In addition, the State alleged that when N.B. became aware of Stacy's concerns regarding K.H., N.B. revealed to the police that Hart had improperly touched her on many occasions.

The State asserted that both C.H. and N.B. had reported prior incidents from the ages of approximately 7 years old to 14 or 15 years old. According to the victims' allegations, the contact would...