State v. Rojas–Marceleno

• Citation: 285 P.3d 361
• Decision Date: 21 September 2012
• Docket Number: No. 102,702.,102,702.
• Parties: STATE of Kansas, Appellee, v. Luis ROJAS–MARCELENO, Appellant.
• Court: Kansas Supreme Court

285 P.3d 361

STATE of Kansas, Appellee,

v.Luis ROJAS–MARCELENO, Appellant.

No. 102,702.

Supreme Court of Kansas.

Sept. 21, 2012.

Syllabus by the Court

1. An appellate court reviews a district court's denial of a defendant's motion to compel a psychological examination of a complaining witness in a sex crime case for an abuse of discretion.

2. A district court has discretion to order a psychological examination of the complaining witness in a sex crime case only if the defendant can demonstrate compelling circumstances justifying such an examination.

3. In determining whether a defendant has demonstrated compelling circumstances justifying a psychological examination of a complaining witness in a sex crime case, the court considers the totality of the circumstances, including several nonexclusive factors: (1) whether there was corroborating evidence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.

4. Under K.S.A. 22–3201(b), a charging document must contain a plain and concise written statement of the essential facts constituting the crime charged. But a charging document is generally sufficient if it is drawn in the language of the statute.

5. Generally, the precise time of the commission of an offense need not be stated in the complaint, indictment, or information, but it is sufficient if shown to have been within the statute of limitations, except when the time is an indispensable ingredient in the offense. K.S.A. 22–3201(b).

6. The State is generally allowed to allege approximate time frames in prosecutions for sex offenses committed against children.

7. When a complaint, information, or indictment fails to specify the particulars of the crime charged sufficiently to enable the defendant to prepare a defense, K.S.A. 22–3201(f) permits the court, on written motion of the defendant, to require the prosecuting attorney to furnish the defendant with a bill of particulars.

8. A bill of particulars has two functions: (1) to inform the defendant of the nature of the charges and the evidence to enable him or her to prepare a defense, and (2) to prevent further prosecution for the same offense.

9. The granting of a bill of particulars is discretionary with the district court unless the charging instrument is so deficient that the defendant is not informed of the charges against which he or she must defend.

10. When charges in the complaint or information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice to the defendant.

11. An appellate court reviews a district court's decision on a motion for new trial for an abuse of discretion.

12. In determining whether newly proffered evidence is material, the district court must assess the credibility of the newly profferedevidence. Ordinarily, a new trial is not warranted when the newly proffered evidence merely tends to impeach or discredit the testimony of a witness. But, even when the evidence tends to impeach the testimony of a witness, the presence or absence of corroborating evidence is another factor to consider in determining whether the newly discovered evidence is of such materiality that it is likely to produce a different result upon retrial.

13. A criminal defendant has a statutory right to a unanimous jury verdict. But unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means.

14. In an alternative means case, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. When the jury is instructed on alternative means of committing a single crime and the State fails to present sufficient evidence to support both means, reversal is required.

15. In determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is options that merely describe a material element or describe a factual circumstance that would prove the element?

16. The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. However, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction, raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.

17. As defined in K.S.A. 21–3511(a), the gravamen of the crime of aggravated indecent solicitation of a child is the defendant's act of enticing or soliciting a child under age 14 to engage in an unlawful sexual act. This is true regardless of whether the defendant entices or solicits the child to commit an unlawful sexual act or to submit to an unlawful sexual act. Thus, the terms “committing” or “submitting to” are merely options within a means, and are not alternative means of committing the crime defined in K.S.A. 21–3511.

18. K.S.A. 22–3424(d) applies only when the crime victim or the victim's family seeks restitution and, even in those cases, the court is directed but not required to hold a restitution hearing before imposing sentence.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Amy L. Aranda, assistant county attorney, argued the cause, and Nicholas J. Heiman, assistant county attorney, Marc Goodman, county attorney, and Steve Six, attorney general, were on the brief for appellee.

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

Luis Rojas–Marceleno appeals his convictions and sentences for one count of rape, three counts of aggravated criminal sodomy, and one count of aggravated indecent solicitation of a child, arguing the district court committed reversible error in (1) denying his motion to compel a psychological examination of the victim; (2) denying his motion for a bill of particulars; (3) failing to give a limiting instruction after admitting evidence of his prior traffic offenses; and (4) denying his motion for new trial based on newly discovered evidence. Finding no error, we affirm the district court's rulings on each of these issues.

Rojas–Marceleno also challenges his conviction of aggravated indecent solicitation of a child on the ground he was denied his right to a unanimous jury verdict. He contends the State charged him with alternative means of committing the crime and the court instructed the jury on both means, but the State failed to present evidence to support both means. Because we conclude the challenged portion of the statute at issue, K.S.A. 21–3511(a), does not present alternative means of committing the crime, we reject this argument.

Finally, Rojas–Marceleno challenges the restitution portion of his sentence, claiming the district court lacked jurisdiction to order restitution 30 days after imposing a lawful sentence. Following State v. McDaniel, 292 Kan. 443, Syl. ¶¶ 1, 2, 254 P.3d 534 (2011), we conclude the district court had jurisdiction to enter the restitution order because the order completed the defendant's sentence rather than altering or modifying it.

Factual And Procedural Background

On September 24, 2008, 13–year–old C.V. spent the day babysitting at the home of her aunt, Maria M., while Maria and C.V.'s mother went to Kansas City. Maria left her cell phone with C.V. so that C.V. would have a phone to use in case of emergencies. Later that evening, Maria discovered sexually explicit text messages in the “sent box” of her cell phone. The messages had been sent to “Lil Bro,” Maria's contact name for her 24–year–old brother, Rojas–Marceleno. After Maria showed the messages to her sister, Xinia S., Maria and Xinia called C.V.'s mother and told her about the messages. C.V.'s parents questioned C.V. about the messages, and C.V. admitted she had been involved in a sexual relationship with her uncle, Rojas–Marceleno, for “a long time” and that she had lost her virginity to him.

After contacting the police, C.V.'s parents took C.V. to the hospital for a sexual assault examination. During the examination, C.V. reported she had sexual intercourse with Rojas–Marceleno on approximately five or six occasions during the preceding year, most recently about 10 days before. The next day, Kansas Department of Social and Rehabilitation Services special investigator Kayla Delgado interviewed C.V. at the Child Advocacy Center. In the interview, C.V. disclosed that she and Rojas–Marceleno first had sexual intercourse on November 14, 2007, that subsequently they had oral sex and sexual intercourse on several occasions, and that the last time they had intercourse was on September 13, 2008.

The State initially charged Rojas–Marceleno with 5 counts of rape and 13 counts of aggravated criminal sodomy. After a preliminary hearing, the district court dismissed three counts of aggravated criminal sodomy. The State filed an amended complaint, charging Rojas–Marceleno with 5 counts of rape, 10 counts of...