State v. Portillo, No. 102,558.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: The opinion of the court was delivered by JOHNSON
• Citation: 274 P.3d 640
• Decision Date: 27 April 2012
• Docket Number: No. 102,558.
• Parties: STATE of Kansas, Appellee, v. Jose A. PORTILLO, Appellant.

274 P.3d 640

STATE of Kansas, Appellee,
v.
Jose A. PORTILLO, Appellant.

No. 102,558.

Supreme Court of Kansas.

April 27, 2012.

[274 P.3d 641]

Syllabus by the Court

1. The standard of review for a challenge to the sufficiency of the evidence in a criminal case is whether, after review of all the evidence, examined in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. It is the function of the jury, not an appellate court, to weigh the evidence and to determine the credibility of witnesses. Those standards are not altered simply because the victim of an alleged rape has made conflicting statements as to whether the defendant effected penetration.

2. Under the facts of this case, a videotape of an 11–year–old child's oral statement that met the requirements of K.S.A. 22–3433 was not rendered inadmissible because it was cumulative to other testimony.

3. The Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights both provide an accused with the right to know the nature and cause of the accusation against the accused.

4. K.S.A. 22–3502 prescribes a time limit following a verdict or finding of guilty by which a defendant must file a motion for arrest of judgment. K.S.A. 22–3503 permits a district court to arrest the judgment without a motion from the defendant whenever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed.

5. If the parties have presented arguments to the district court on the validity of the charging document and the court has had an opportunity to issue an order arresting judgment pursuant to K.S.A. 22–3503, the defendant's claim on appeal that the charging document was defective will not be deemed to have been raised for the first time on appeal, notwithstanding the defendant's failure to file a motion for arrest of judgment.

Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Robbin L. Wasson, assistant district attorney, Jerome Gorman, district attorney, and Steve Six, attorney general, were on the brief for appellee.

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

Jose A. Portillo directly appeals his conviction for one count of rape of a child under age 14. At sentencing, recognizing that it had failed to properly charge Portillo with the off-grid version of the crime, the State filed a motion to amend the presentence investigation report (PSI) to indicate that Jessica's Law applied and that Portillo was subject to a mandatory minimum hard–25 life sentence. Ultimately, the district court found that the State's failure to charge Portillo with the off-grid offense version of the crime was mere clerical error and did not prejudice his defense. As a result, the district court held that Portillo had been convicted of an off-grid felony. Nevertheless, the district court departed from the mandatory minimum sentence and imposed a prison

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term of 240 months. Portillo appeals, claiming his conviction and sentence violate due process and that his conviction was not supported by sufficient evidence. We find sufficient evidence to support a conviction for the on-grid version of the crime but remand for resentencing.

Factual and Procedural Overview

Portillo was accused of the forcible rape of D.B., the daughter of a woman with whom Portillo had been having an affair. In an initial interview with the police on the date of the incident, D.B. said that Portillo had come to the house as usual that morning but then had asked D.B. to go into her bedroom. She said that when they were inside the bedroom and Portillo had closed the door, he pulled down her pants, covered her mouth, pushed her onto the bed, pulled off his pants, got on top of D.B., and “tried to put his thing in her.” When asked whether Portillo had “put it in all the way,” D.B. responded, “Yes, but not all the way in.”

D.B.'s mother opened the bedroom door to discover Portillo on top of D.B. and D.B.'s underwear and pants below her knees. The mother scuffled with Portillo, before calling the police. After the police interviewed D.B., her mother took her to the hospital emergency room.

At the hospital, Dr. Hite performed a sexual assault and gynecological examination. The doctor testified to finding blood in the general area inside the labia majora, albeit she could not pinpoint the source of the blood except to rule out that it was coming from the vaginal canal or the rectum. The doctor could not see any tearing, lacerations, or scratches with her naked eye, but did notice a “duskiness in the posterior fourchette,” which was consistent with bruising as a result of direct blunt trauma. The swabs collected from D.B. during the examination and from D.B.'s bedding all tested negative for Portillo's DNA.

D.B. was forensically interviewed at Sunflower House the day after the incident. Her recollection of events was consistent in most respects with her statements to the police the day before, except for her description of penetration. When asked what Portillo was doing while on top of her, D.B. said that he was “pushing back and forth” with his private part on top of her private part, which felt “weird.” She said that Portillo tried to get his private part “inside [her] body but [she] kept on moving so he couldn't.” At trial, D.B. testified that Portillo “put his private thing on [her] private thing,” but not inside. When asked about her initial statement to law enforcement, D.B. said that she did not remember telling the officer that Portillo “got it partway in.”

Portillo's theory of defense was that D.B.'s mother had fabricated the rape because she was mad at Portillo for refusing to commit to their relationship. At trial, the defense objected to the admission of the videotape of D.B.'s Sunflower House interview as cumulative, arguing that it constituted the “fourth hearsay telling of what [D.B.] has said.” The trial court admitted the videotape as being probative of the victim's state of mind.

The jury was instructed on both rape and attempted rape. The jury found Portillo guilty on the rape charge.

The initial sentencing hearing was scheduled for March 11, 2009, albeit the transcript of that hearing is not in the record on appeal. According to a subsequent pleading, entitled “State's Motion to Amend Presentence Investigation Report,” the State discovered at the initial sentencing hearing that the information had charged Portillo with severity level 1 rape, rather than the off-grid version. Apparently, the district court continued the initial sentencing hearing to allow the parties to brief the issue. Ultimately, the district court agreed with the State's argument that its charging of the on-grid version of the offense could be considered a clerical error and that the erroneous charging instrument had not prejudiced Portillo's defense in any way. Accordingly, the district court determined that it could sentence Portillo for the off-grid version of the crime.

Nevertheless, the district court advised the parties that it had decided sua sponte to impose a departure sentence. The aggravated term in the appropriate guidelines grid-box for the severity level 1 version of rape was 165 months. The district court told the

[274 P.3d 643]

parties that it was “looking at a number between 165 [months] and 25 years.” After giving the parties an opportunity to be heard, the court ultimately imposed a sentence of 240 months.

On June 17, 2009, Portillo obtained leave to docket this appeal out of time. We have jurisdiction pursuant to K.S.A. 22–3601(b)(1).

Portillo's brief raises three issues: (1) The State's failure to charge and prove the defendant's age at trial, along with the district court's failure to instruct the jury on the element of defendant's age, violated Portillo's Sixth Amendment right to a jury trial when the district court imposed a sentence as if Portillo had been convicted of an off-grid offense; (2) the district court erred in permitting the admission of the Sunflower House interview videotape; and (3) the evidence was insufficient to support the penetration element of rape. We take the liberty of addressing the issues in reverse order.

Sufficiency of the Evidence of Penetration Standard of Review

To avoid any suggestion that we might be altering our standard of review, we will resist the temptation to paraphrase the familiar standard and will set forth a complete recitation:

“ ‘When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ State v. Prine, 287 Kan. 713, 738, 200 P.3d 1 (2009) (citing State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 [2008]; State v. Morton, 283 Kan. 464, 474, 153 P.3d 532 [2007] ). ‘In reviewing the sufficiency of the evidence, this court will not reweigh the evidence. It is the jury's function, not ours, to weigh the evidence and determine the credibility of witnesses.’ State v. Doyle, 272 Kan. 1157, 1162–63, 38 P.3d 650 (2002) (citing State v. Aikens [ Aikins], 261 Kan. 346, 391–92, 932 P.2d 408 [1997] ).” State v. Cosby, 293 Kan. 121, 133–34, 262 P.3d 285 (2011).

Analysis

The version of rape for which Portillo was convicted simply required the State to prove that Portillo had “sexual intercourse with a child who is under 14 years of age.” K.S.A. 21–3502(a)(2). “Sexual intercourse” is defined as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” K.S.A. 21–3501(1). This court has...