State v. Rivera

• Decision Date: 21 December 2012
• Docket Number: No. 105,834.,105,834.
• Citation: 291 P.3d 512
• Parties: STATE of Kansas, Appellee, v. Monica Felice RIVERA, Appellant.
• Court: Kansas Court of Appeals

291 P.3d 512

STATE of Kansas, Appellee,

v.Monica Felice RIVERA, Appellant.

No. 105,834.

Court of Appeals of Kansas.

Dec. 21, 2012.

Syllabus by the Court

1. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed 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.

2. In order to convict a defendant of involuntary manslaughter, the State must prove that the defendant's conduct was the proximate cause of the victim's death. Proximate cause is cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act.

3. It is not the function of an appellate court to reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence, as these tasks are uniquely entrusted to the jury as the factfinder.

4. A motion to disqualify an attorney from handling a legal matter is reviewed for an abuse of discretion. The key in deciding whether a prosecutor should be disqualified is whether the prosecutor has a significant personal interest in the litigation which would impair the prosecutor's obligation to act impartially toward both the State and the accused. Also, in deciding a motion to disqualify an attorney when opposing counsel wishes to call that attorney as a witness, a court should consider: (1) whether it has been shown that the attorney would give evidence material to the determination of the issues being litigated; (2) whether the evidence could not be obtained elsewhere; and (3) whether the testimony would be prejudicial or potentially prejudicial to the testifying attorney's client.

5. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the misconduct prejudiced the jury against the defendant and denied the defendant a fair trial.

6. A contemporaneous objection is not required to review a prosecutorial misconduct claim based on comments made during voir dire, opening argument, or closing argument. If the defendant demonstrates that the State committed an error of constitutional magnitude, then the State must prove beyond a reasonable doubt that the error did not affect the defendant's substantial rights.

7. A prosecutor is not permitted to argue facts not in evidence during closing argument because such statements tend to make the prosecutor his or her own witness, offering unsworn testimony not subject to cross-examination.

8. After determining that a prosecutor's statements were improper, an appellate court considers whether the statements were harmless or whether the prosecutor's conduct was so prejudicial that it denied the defendant his or her right to a fair trial. In analyzing this issue, a court considers three factors: (1) whether the misconduct was gross or flagrant; (2) whether the misconduct was motivated by ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the mind of a juror. No individual factor is controlling, and the third factor may not supersede the other two factors unless the State proves beyond a reasonable doubt that the error complained of did not affect the outcome of the trial when considering the entire record.

9. A prosecutor is not permitted to comment on the credibility of a witness.

10. When a party has objected to a jury instruction at trial, an appellate court examines the instruction to determine whether it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination, an appellate court is required to consider the instructions as a whole and not isolate any one instruction.

11. A final jury instruction that correctly summarizes the law cures any prejudice caused by the giving of a legally inaccurate preliminary instruction so long as the trial judge explains to the jury at the time preliminary instructions are issued that the court will give the jury final jury instructions at the conclusion of the trial and that those final instructions are controlling.

12. When a defendant fails to request a particular jury instruction, an appellate court reviews the failure to give the instruction under a clearly erroneous standard. The failure to give a particular jury instruction is clearly erroneous if there is a real possibility the jury would have rendered a different verdict had the instruction error not occurred.

13. In order to prove the charge of involuntary manslaughter in this case, the State was required to prove that the defendant also committed the underlying misdemeanor of endangering a child.

14. Under the facts of this case, when instructing the jury on involuntary manslaughter, the district court was required to include the list of elements of the underlying crime—endangering a child.

15. A multiple acts issue exists when the State presents evidence of several acts and any one of those acts could constitute the crime charged. In a multiple acts case, a jury must be unanimous as to which act or incident constitutes the crime charged. In order to ensure jury unanimity, the State must elect the specific act or incident it is relying upon to support the crime charged or the court must instruct the jury that all of the jurors must agree that the same underlying criminal act or incident has been proven beyond a reasonable doubt.

16. The question of whether one crime is a lesser included offense of another crime is a question of law over which an appellate court exercised unlimited review.

17. The question of whether a complaint is sufficient to confer subject matter jurisdiction on the district court is question of law over which an appellate court has unlimited review.

18. A complaint is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words so long as the defendant is fully informed of the particular offense.

19. An appellate court reviews a district court's decision to grant or deny a continuance for an abuse of discretion. An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This means no reasonable person would have taken the action of the district court.

20. An appellate court evaluates a cumulative error claim to determine whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant, and a single error is insufficient to support reversal under the cumulative error rule.

Carl Folsom, III, of Bell Folsom, P.A., of Lawrence, for appellant.

Cheryl A. Marquardt, assistant county attorney, Todd L. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.

MARQUARDT, J.

Monica Felice Rivera appeals her jury convictions for involuntary manslaughter and child endangerment. Rivera alleges there was insufficient evidence to support her convictions and that both the State and the district court committed several errors prior to and during her trial that denied her the right to a fair trial. She claims that her convictions should be reversed as a matter of law. We affirm in part, reverse in part, and remand for a new trial.

Facts

On May 5, 2009, Rivera and her boyfriend, Jason Jones, took her 4–year–old son, G.R., to the Safe Kids Daycare (daycare). Kathy Harris, a daycare employee, saw bruising and swelling on the left side of G.R.'s head. G.R. told Harris that he had been hit by a ball and that a doctor had taken a picture of his head. Rivera spoke to Ms. Renee, another daycare employee, and told her to take extra special care of G.R. because of the bruising and swelling on the one side of G.R.'s face.

Rivera testified that the bruising and swelling on G.R.'s face occurred in two separate incidents. The first incident occurred on April 29, when G.R. was standing on a stool in the kitchen and suddenly fell and struck his head. Rivera testified that G.R.'s head “bounced back and forth like three times” and he sustained a “goose egg” on his head. According to Rivera, the second incident occurred on May 2, when G.R. was hit in the head by a soccer ball and then collided with another player.

While at daycare on May 5, G.R. fell off a swing. Harris noticed that G.R. suffered a small scratch on his back. Rivera was notified that G.R. had fallen off the swing, but she testified that after G.R.'s fall from the swing, he had a big scrape and a big bruise on the bottom of his back. The following day, Rivera testified that G.R. hit his head against the corner of a countertop while he was reaching for his glasses. When Jones left G.R. at daycare that morning, Harris reported that G.R. was crying and complaining that his head hurt and said that he had hit his head on a cabinet. Harris testified that G.R. appeared to have more swelling and bruising and that his injuries were more black, red, and purple than they were the previous day.

Toni Cox, Rivera's older sister, testified that Rivera brought G.R. to her house on two separate occasions to make sure that G.R. was okay. On the first visit, Cox testified that she observed a large knot with swelling and bruising on the side of G.R.'s head. Cox advised Rivera to take G.R. to the hospital to get X-rays or a CT scan. Rivera testified that she took G.R. to an emergency room...