State v. Jordan

• Decision Date: 05 November 2021
• Docket Number: No. 123,094,123,094
• Citation: 498 P.3d 185 (Table)
• Parties: STATE of Kansas, Appellee, v. Steven Terry JORDAN, Appellant.
• Court: Kansas Court of Appeals

498 P.3d 185 (Table)

STATE of Kansas, Appellee,

v.Steven Terry JORDAN, Appellant.

No. 123,094

Court of Appeals of Kansas.

Opinion filed November 5, 2021.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Cline, J., and Burgess, S.J.

MEMORANDUM OPINION

Per Curiam:

Steven Terry Jordan appeals his convictions for one count each of rape, aggravated burglary, and criminal damage to property. He argues he did not receive a fair trial below for several reasons: (1) the district court excluded relevant evidence integral to his theory of defense; (2) prosecutorial error for misstating the law during voir dire and making improper statements during closing arguments; and (3) the cumulative effect of these errors deprived him of a fair trial. Finding no reversible error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2013, the State charged Jordan with one count each of rape, in violation of K.S.A. 2012 Supp. 21-5503(a)(1)(A), a severity level 1 person felony; aggravated burglary in violation of K.S.A. 2012 Supp. 21-5807(b), a severity level 5 person felony; and criminal damage to property in violation of K.S.A. 2012 Supp. 21-5813(a)(2) and (b)(3), a class B nonperson misdemeanor. The charges arose from a February 2013 incident in which A.W. reported a Black man, whom she later identified as Jordan, forced entry into her home and raped her. A jury convicted Jordan of all three charges in September 2015, and the district court sentenced him to serve 620 months in prison.

Jordan directly appealed, which resulted in a reversal of the convictions and a remand for a new trial. State v. Jordan , No. 116,669, 2018 WL 385695 (Kan. App.) (unpublished opinion), rev. denied 307 Kan. 991 (2018). At trial, Jordan claimed A.W. agreed to exchange consensual sex for drugs and money, but she became motivated to lie about what had occurred after Jordan backed out of the agreement. The panel concluded that the district court committed reversible error by excluding evidence of A.W.'s prior drug use and agreed with Jordan's argument that the evidence was integral to his theory of defense. 2018 WL 385695, at *10.

After the remand, and before the second trial, the State filed motions in limine regarding admission of evidence related to the Kansas rape shield law and A.W.'s prior drug use. The district court considered these motions at a pretrial hearing and ruled that the panel's decision required allowing "at least some" evidence of A.W.'s prior drug usage. Regarding evidence of A.W.'s prior sexual conduct, the court ruled that evidence would be allowed "specifically to rebut any proof that the State will bring, and the issue is really whether or not there was sex within the previous 72 hours." As support for this ruling, the court relied on State v. Perez , 26 Kan. App. 2d 777, 781, 995 P.2d 372 (1999) (discussing factors to consider when deciding whether prior sexual conduct of a complaining witness has relevance), rev. denied 269 Kan. 939 (2000). The court noted it would specifically allow A.W.'s friend and former sexual partner, B.R., to testify about "sex within the preceding 72 hours," but would revisit the ruling for evidence "any broader than what we have already discussed."

The prosecutor refers to the burden of proof during voir dire.

The trial began in December 2019. During voir dire, the prosecutor discussed the State's burden of proof several times, first informing the potential jurors that "[t]he State carries the burden of proof in a criminal justice system, and that burden is quite high. It's beyond a reasonable doubt." Later, the prosecutor stated:

"The standard of proof in this case is beyond a reasonable doubt, and that means what it sounds like. I can't give you a definition. It's something that's reasonable. My youngest daughter has a tendency to snitch things in terms of food. You know, here recently we come home, there's a frozen pizza in the oven, and she's the only one home. Circumstantially, we should be able to infer that she was the person who made the frozen pizza. Despite the fact that we assure her she's not in trouble, we ask about the pizza. She doesn't know who put that pizza in. Now she plans on eating a piece of that pizza, but she didn't put it in. Maybe the dog put that pizza in, but that's probably not a reasonable explanation. It's the things that are reasonable. Okay. Everybody kind of have that concept? It's not that there isn't some other potential explanation. You know, somebody broke into our house, decided they were hungry, were startled when they realized she was there and left before, and she just happens to discover a pizza in the oven. Okay. Maybe it happened. Probably not very reasonable under the circumstances, but I guess it's possible. That's what we're thinking of when we talk about beyond a reasonable doubt, that there's no other reasonable explanation as to the set of facts."

A.W. testifies at trial.

A.W. testified that she lived alone in her home in February 2013 and was about three months pregnant at the time. On February 5, she returned home from work around 11 or 11:30 p.m. with her cousins. She talked with her cousins for about an hour until they left and then she prepared for bed. After A.W. turned the lights off and locked the front door, she laid down in her bed. Before falling asleep, A.W. heard footsteps on the front porch. She got out of bed to turn on the light and find her phone so she could call 911. While dialing, A.W. heard banging on the front door like someone was trying to get inside. After about four or five bangs, she heard the door open. Shortly after the 911 call connected, A.W. saw a Black man wearing a hoodie and holding a knife enter her bedroom, and she quickly hung up the phone.

A.W. said the man asked if she was calling 911, so she lied and said no because she was scared. The man told her to get on the bed, and A.W. again complied out of fear. The man then got on top of her and began putting his hand up her shirt, meanwhile laying the knife by her head. The man took his pants off and penetrated A.W.'s vagina with his penis. A.W. could not recall how long the assault occurred or if he ejaculated. She remembered pleading with the man " ‘don't hurt me,’ " but he did not respond. A.W. testified that at no point did she consent to sexual intercourse with the man. She also denied having consumed any alcohol or drugs in the three days before the assault, nor did she agree to exchange sex for drugs or money. However, she admitted using meth "once or twice years and years before that, but that was it."

When the man was finished, he covered A.W.'s face with a blanket and told her " ‘don't look at my face.’ " A.W. laid in her bed and heard the man's footsteps leave the bedroom. Once A.W. heard footsteps on the front porch, she jumped out of bed and found her phone to call 911 again. She got her purse and dog and went outside to a truck, locking herself inside and called 911. A.W. told the dispatcher on the call that "some Black guy with a big knife just kicked in my front door," came into her bedroom, told her to put her phone down, and raped her. The dispatcher asked her if she knew who the man was, and A.W. responded, "No, I don't."

After the police arrived, A.W. was transported by ambulance to the hospital. Once there, medical personnel performed a DNA test and a pelvic exam

on A.W. After leaving the hospital, A.W. went home with her father. Later in the day, A.W. went back to her house to move out. While there, two of her neighbors came by to talk. A.W. told them what had happened and that her assailant was a Black male, and one of the neighbors mentioned the name "Dewey." At one point, a detective also came over to speak with A.W. and presented her with photos to identify the assailant. A.W. identified her attacker on the photo line-up and gave the detective the name "Dewey." At trial, A.W. identified Jordan as "[t]he person that broke into the house."

A.W. testified that she was in a physical relationship with B.R. "awhile before" the incident. She said she had not seen B.R. for "[p]robably a good three weeks" leading up to the incident. On cross-examination, A.W. explained that she believed B.R. was the father of the child she was carrying at the time of the incident.

Officers respond to the 911 call and investigate.

Around 1:58 a.m., a 911 call was reported over dispatch that a Black male had broken down a door and was armed with a knife. Corporal Joseph Johns responded to this call and was the first to arrive at the scene. Upon arrival he contacted A.W., who was still locked inside the truck. At first, A.W. did not want to speak with Corporal Johns and appeared to be scared. Eventually, she told him that "an unknown [B]lack male had kicked in her front door and forced ... her to the back bedroom with a knife and raped her." A.W. described the man as approximately six feet tall and wearing black sweatpants and a hoodie. Corporal Johns testified A.W. did not appear to be under the influence of alcohol or methamphetamine.

Officer Adam Hales responded to the 911 call as well. When he arrived at the address, Corporal Johns had already arrived, and A.W. was exiting the truck. As Hales approached, he saw that A.W. was hugging her stomach with her hands and bent over slightly. She was very upset and was crying. Hales could not recall if A.W. gave a height or weight, but she described her attacker as a Black male wearing a grey hoodie and black sweatpants. After helping other officers secure the scene, Hales followed the ambulance transporting A.W. to the hospital.

At the hospital, Officer Hales interviewed A.W. He described A.W.'s demeanor as "a shocked state" and "[a]lmost in a daze ... [or] detached." Hales did not believe A.W. was under the influence of alcohol or methamphetamine. Hales said A.W. told him that after her cousin left around 1:30 a.m., ...