State v. Salazar-Moreno
| Decision Date | 10 April 2020 |
| Docket Number | No. 119,702,119,702 |
| Parties | STATE of Kansas, Appellee, v. Cornelio SALAZAR-MORENO, Appellant. |
| Court | Kansas Court of Appeals |
David L. Miller, of Ney, Adams & Miller, of Wichita, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Powell, J., and Lahey, S.J.
Following a jury trial, Cornelio Salazar-Moreno was convicted of rape, adultery, and two counts of aggravated indecent liberties with a child. Salazar-Moreno appealed his convictions, and a panel of this court affirmed. Salazar-Moreno then filed a K.S.A. 60-1507 petition alleging ineffective assistance of trial counsel and ineffective assistance of direct appellate counsel. The district court found appellate counsel had been ineffective and ordered a new direct appeal but found Salazar-Moreno's trial counsel not ineffective. Salazar-Moreno appealed the adverse ruling, and a panel of our court affirmed, upholding his convictions of rape and aggravated indecent liberties with a child, but vacating his conviction of adultery.
Salazar-Moreno now brings his new direct appeal, raising seven points of error. After a careful review of the record, and for the reasons more fully stated below, we reject Salazar-Moreno's contentions of error and affirm his convictions and sentences.
Salazar-Moreno was initially charged in April 2008, but in October 2010, the State amended the complaint for the third time, charging Salazar-Moreno with one count of rape, two counts of aggravated indecent liberties with a child, and one count of adultery. The charges stemmed from incidents occurring in November and December of 2007. The then 13-year-old victim, D.D., alleged that, in the first incident, Salazar-Moreno fondled her breast over her clothes after taking her to a store to get supplies for a school project. In the second incident, D.D. was in Salazar-Moreno's basement checking her email on the computer when he allegedly fondled her breasts and vagina under her clothes. The third incident occurred on December 30, 2007, when Salazar-Moreno, while on his lunch break, came to the house where D.D. was babysitting and raped her.
Salazar-Moreno was a friend of D.D.'s family. In early 2008, D.D. told one of her friends that Salazar-Moreno took her virginity. In March 2008, another friend learned about the incident and wrote a letter asking D.D.'s mother to call her. When the mother called, the friend told her about Salazar-Moreno having sex with D.D. When D.D.'s mother and father asked D.D. if this was true, D.D. began crying and told them that Salazar-Moreno had come to the house where she was babysitting.
D.D.'s family filed a report with the Hutchinson Police Department. Jane Holzrichter at the child advocacy center interviewed D.D., and Dr. Ellen Losew, a local pediatrician, performed a medical examination of D.D. Both D.D. and her mother provided written statements to the police. The detective investigating the case examined the scene of the alleged rape and investigated D.D.'s allegations. A forensic scientist from the Kansas Bureau of Investigation tested the carpet for signs of blood. The police obtained records from D.D. and Salazar-Moreno's cellphones.
Over two years after he was initially charged, Salazar-Moreno's jury trial began in January 2011. The trial lasted over four days. Dr. Losew testified that the victim had a well-healed cleft or angulation of her hymen, which extended to the vaginal wall. She could not be certain what caused the injury, but D.D.'s report was consistent with the results of her examination which concluded that the injury was suspicious for child sexual abuse.
D.D. testified about the three incidents and described each incident, where it occurred, and what Salazar-Moreno did. D.D. described hearing a phone call between her mother and Dawn Salazar, Salazar-Moreno's wife, where Dawn stated that Salazar-Moreno admitted to having sexual intercourse with D.D.
D.D.'s mother, father, and aunt also testified at trial. Each testified that after they filed the police report, Dawn called D.D.'s mother to check on D.D. The victim's mother put Dawn on speakerphone for everyone to hear. According to their testimony, Dawn said that when she asked Salazar-Moreno about the allegations, he admitted to having sexual intercourse with D.D.
The State called Dawn as a witness. Dawn testified that she told the victim's mother that Salazar-Moreno denied having sex with D.D. Dawn testified that she only called the victim's mother because she was worried about D.D. and wanted to check on her.
Other than Dr. Losew's testimony, there was little physical evidence presented. Salazar-Moreno called the KBI forensic scientist as a witness. The forensic scientist testified that she found no traces of blood on the carpet where D.D. testified she had bled. Salazar-Moreno also called Dawn, who testified similar to her testimony during the State's case-in-chief.
Ultimately, the jury found Salazar-Moreno guilty on all counts. Salazar-Moreno filed several posttrial motions, including a motion for a downward dispositional and durational departure. The district court denied these motions, and specifically, denied the departure motion because it found Salazar-Moreno did not provide evidence of sufficient mitigating circumstances to warrant a departure from a Jessica's Law sentence. Salazar-Moreno was sentenced to three concurrent life prison sentences with a minimum of 25 years for the three Jessica's Law convictions and a concurrent 30-day jail sentence for the adultery conviction.
Salazar-Moreno filed a notice of appeal. On appeal, Salazar-Moreno raised issues regarding Dr. Losew's testimony and the district court's failure to grant a mistrial in several instances. State v. Salazar-Moreno , No. 106,555, 2013 WL 5925894, at *2-11 (Kan. App. 2013) (unpublished opinion) (Salazar-Moreno I ). A panel of this court refused to consider the testimonial issue due to a lack of a contemporaneous objection and found the district court had not abused its discretion in denying any of Salazar-Moreno's motions for a mistrial. Salazar-Moreno I , 2013 WL 5925894, at *4, 11. A mandate was filed with the district court on December 10, 2013.
In October 2014, Salazar-Moreno filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Following an evidentiary hearing, the district court found Salazar-Moreno's trial attorneys were not ineffective because, while they were deficient, their actions were not prejudicial. But the district court found his appellate counsel's performance had been ineffective and granted him a new direct appeal.
Salazar-Moreno timely appealed the district court's 1507 ruling, arguing he had been denied his counsel of choice and the district court had erred in concluding his trial attorneys were not ineffective. The panel affirmed the district court in most respects but vacated Salazar-Moreno's conviction and sentence for adultery. Salazar-Moreno v. State , No. 115,031, 2017 WL 383433, at *9, 14 (Kan. App. 2017) (unpublished opinion) (Salazar-Moreno II ).
Salazar-Moreno now brings his new direct appeal.
On appeal, Salazar-Moreno raises seven arguments: (1) his convictions for rape and adultery are mutually exclusive thus entitling him to a new trial; (2) the district court erred in allowing the admission of testimony falling under the marital privilege and the hearsay rule; (3) the district court erred in allowing Dr. Losew to testify that the injuries to D.D.'s hymen were consistent with D.D.'s claim of rape; (4) the district court abused its discretion in denying his motion for a psychological examination of D.D.; (5) the State committed prosecutorial error in its closing argument; (6) cumulative error denied him a fair trial; and (7) the district court abused its discretion in failing to grant him a downward dispositional and durational departure. We address each argument.
Salazar-Moreno argues his convictions of rape and adultery were legally and factually impossible. Specifically, Salazar-Moreno argues adultery and rape are mutually exclusive crimes in Kansas because adultery is a crime of consent and consent is a defense to rape. As a result, he argues that both convictions should be reversed. The State argues Kansas law does not state that adultery can never include nonconsensual sex and further contends the rape conviction in this case was based on Salazar-Moreno's sexual intercourse with a minor making consent irrelevant.
Whether convictions are mutually exclusive is a legal question subject to de novo review. State v. Vargas , No. 119,741, 2019 WL 5485179, at *3 (Kan. App. 2019) (unpublished opinion).
"Mutually exclusive verdicts exist when a guilty verdict on one count logically excludes a guilty verdict on another count." Heard v. State , 999 So. 2d 992, 1005 (Ala. 2007) ; see State v. Williams , 308 Kan. 1439, 1449, 430 P.3d 448 (2018). " " 308 Kan. at 1449 ; see also 999 So. 2d at 1004 (); State v. Mumford , 364 N.C. 394, 400, 699 S.E.2d 911 (2010) (). This contrasts with inconsistent verdicts which can exist in the instance " ‘where the elements of the two offenses are identical, a verdict of not guilty on one count is inconsistent with a verdict of guilty on the other count.’ ...
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