State v. Ochs

• Citation: 306 P.3d 294,297 Kan. 1094
• Decision Date: 16 August 2013
• Docket Number: No. 104,710.,104,710.
• Parties: STATE of Kansas, Appellee, v. Eric OCHS, Appellant.
• Court: United States State Supreme Court of Kansas

297 Kan. 1094

306 P.3d 294

STATE of Kansas, Appellee,

v.Eric OCHS, Appellant.

No. 104,710.

Supreme Court of Kansas.

Aug. 16, 2013.

Syllabus by the Court

1. 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.

2. The case of State v. Tosh, 278 Kan. 83, 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 is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Under Tosh, none of these three factors is individually controlling. And before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), have been met.

3. Where both the constitutional and nonconstitutional error clearly arise from the very same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60–261 also has been met. Under both standards, the party benefiting from the error bears the burden of demonstrating harmlessness.

4. In determining whether prosecutorial misconduct was gross and flagrant, among the things an appellate court considers are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules.

5. In determining whether prosecutorial misconduct was motivated by ill will, among the things an appellate court considers are whether the conduct was deliberate, repeated, or in apparent indifference to a court's ruling.

6. A prosecutor's closing argument that the victim witness was protected by the truth is error. But given the evidence against the defendant in this case, the error is not reversible.

7. In this case, under the three prongs of the proportionality test of State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), the defendant's hard 25 life sentence under Jessica's Law for rape is not disproportional and so is not impermissible under § 9 of the Kansas Constitution Bill of Rights.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Shawn E. Minihan, of the same office, was with her on the brief for appellant.

Patrick J. Hurley, assistant district attorney, argued the cause, and Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

A jury convicted Eric Ochs of the rape of 11–year–old D.T. in violation of K.S.A. 21–3502(a)(2) (sexual intercourse with a child who is under 14 years of age). Because Ochs was older than 17 years, the crime was an off-grid person felony per K.S.A. 21–3502(c). The district court sentenced him to a “hard 25” lifetime prison term under K.S.A. 21–4643(a)(1)(B). He now directly appeals under K.S.A. 22–3601(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the prosecutor commit misconduct during her rebuttal closing argument? Yes, but harmless error.

2. Did Ochs' sentence violate § 9 of the Kansas Constitution Bill of Rights, i.e., cruel or unusual punishment? No.

Consequently, we affirm the district court.

Facts

The parents of 11–year–old D.T. spent the night of February 6, [297 Kan. 1096]2009, away from their home. Her mother, L.T., asked 21–year–old defendant Eric Ochs and his girlfriend Chelsey Hoyt to watch D.T. and D.T.'s older brother and younger sister. Ochs, L.T., and D.T. all felt Ochs was like a member of the family.

D.T. and her siblings went to bed that night between 9 and 11 o'clock. Ochs and Hoyt stayed up until about 3 a.m. and slept in the family room. At some point, possibly around midnight, Ochs and Hoyt had sex there. At another point Ochs initiated contact with D.T. in her bedroom that led to the State's charges in this case.

D.T.'s trial testimony

D.T. testified that she went to bed wearing her t-shirt, jeans, and underwear. Ochs later entered her room, told her that “her legs need to breathe,” and removed her jeans. Ochs returned a second time and took off her underwear. According to D.T., Ochs “put his finger in my vagina” and later “put his thingy in my vagina.” She said that Ochs was on top of her and that he “hump[ed]” her.

D.T. also testified she then pushed her arms out because she was in pain. Ochs left the room saying that “he didn't mean to hurt [D.T.]” According to her, Ochs left her bed wet, and she covered the wet spot with a blanket and went back to bed. D.T. further testified that when she used the bathroom the next morning it hurt to urinate, and she saw blood on the toilet paper.

Officer Jamie Lawson and KBI officials

Officer Jamie Lawson of the Lawrence Police Department testified that he investigated D.T.'s allegations. Lawson first met with D.T. Instead of verbally responding to Lawson's questions, D.T. wrote many of her answers on several sheets of paper. According to Lawson's testimony, D.T. also wrote a separate letter to the officers detailing the incident.

D.T.'s written responses and letter are largely consistent with her later trial testimony. In each document she explains that Ochs entered her room twice and on the second occasion he removed her underwear, put his finger in her vagina, and then had intercourse with her.

Lawson testified that he later met with Ochs. According to Lawson, Ochs told Lawson that on February 6 he entered D.T.'s room and removed her pants and underwear while she was lying in bed. Lawson said Ochs then told him that he had masturbated next to her bed. Lawson further testified that Ochs said he touched “the split” of D.T.'s vagina and admitted that he had “touch [ed] her on the lips.” Per Lawson, Ochs repeated his statements on the way to jail after his arrest.

Lawson's interview with Ochs was recorded and eventually played for the jury. On the recording, Ochs stated that he first walked in and removed D.T.'s pants. And when he took off her pants he saw her vagina and became excited. Per the recording, Ochs said that he simultaneously touched her vagina with one hand and masturbated with the other hand and that he “touched the inside but did not stick [his] fingers in her.” He also admitted that he touched “inside the split” but denied sticking his “finger inside the hole.”

During the investigation, Lawson retrieved several blankets and sheets from D.T.'s bed. KBI officials testified that some of these items contained traces of mixed DNA which was consistent with “DNA profiles of [D.T.] and Eric [Ochs].” Two blankets also contained sperm. Per the KBI, the sperm's DNA profile “matche[d] the DNA profile of Eric Ochs” so he could not be excluded as the donor. While the KBI official testified that he “can't tell you how that DNA got there,” he also said mixed DNA profiles can occur “from a sexual encounter.”

Ochs' trial testimony

Ochs testified that he entered D.T.'s room around 2 a.m. and removed her jeans so that she would be more comfortable. According to his testimony, his admission to Lawson that he masturbated was not true. Rather, he told Lawson he masturbated on D.T.'s bed because he felt pressured to explain why his DNA was on her bedding.

According to Ochs' testimony, his admission to Lawson that he touched D.T.'s vagina was also untrue. Rather, he told Lawson about this contact because Lawson said if Ochs admitted touching D.T. he could receive treatment instead of imprisonment. At all times Ochs denied having sexual intercourse with D.T.

Other evidence

D.T. takes medication for bipolar disorder and ADHD. Due to behavior problems, she previously had been scheduled to begin treatment at Camelot, a psychiatric residential treatment facility in Wichita, 3 days after Ochs' episode. Her Camelot therapist, Erika Purcell, testified that D.T. was referred there to address a handful of behavior issues including lying, mood swings, and hallucinations. According to Purcell, L.T. told her that D.T. would “fabricate stories and believe that it's true.”

D.T. had indeed made a sexual abuse claim against her uncle when she was 5 years old. But she withdrew the allegations the day before his trial. At Ochs' trial she admitted she had lied about the claim against her uncle.

Closing argument, verdict, and sentencing

During closing argument, Ochs' attorney, Kevin Babbit, attacked D.T.'s credibility. He referred to D.T.'s prior accusation against her uncle and her testimony admitting she had lied about that event. He also discussed the reasons for her referral to Camelot, i.e., hallucinations and “excessive lying.” He further noted that her testimony about other events from that weekend unrelated to the charges, e.g., who accompanied her in the car on the way to Camelot, was inconsistent with the testimony of others. He argued these comments of D.T. were “untrue” and “false.”

Assistant District Attorney Amy McGowan then presented her rebuttal argument. McGowan contended that D.T. had “always been consistent about what constitutes the elements of these sex crimes.” She later argued:

“And when D.T. was in her room that night, all alone, she was defenseless, she was scared.... She was in...