State v. Vazquez

Decision Date18 March 2022
Docket Number121,321
Parties STATE of Kansas, Appellee, v. Ernesto VAZQUEZ, Appellant.
CourtKansas Court of Appeals

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Tamara S. Hicks, assistant county attorney, Susan Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Green and Isherwood, JJ.

Isherwood, J.:

A jury found Ernesto Vazquez guilty of one count of rape and three counts of aggravated indecent liberties with a child. The court sentenced him to two consecutive life sentences in prison. On appeal, Vazquez presents three arguments: (1) there was insufficient evidence to sustain the convictions; (2) the district court erred when it admitted his booking photo into evidence; and (3) the prosecutor made inappropriate comments during closing arguments. Following a comprehensive review of his case, we decline to find that Vazquez is entitled to relief on the issues raised. His convictions are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, M.S. and G.A. lived with their two young daughters, 11-year-old E.R.S. and 10-year-old E.X.S., in Garden City. G.A.’s friend, 40-year-old Ernesto Vazquez, lived close by them with his wife and children.

E.R.S. and E.X.S. enjoyed playing soccer and often joined other children from the neighborhood for matches in a nearby vacant lot. Vazquez frequently played with the group, but he was the only adult to do so. Unfortunately, he also used those games as an opportunity to fondle E.R.S. and E.X.S. On more than one occasion, Vazquez hugged E.X.S. from behind then touched her waist or breasts and vagina. E.R.S. experienced similar behavior from Vazquez as he likewise approached her from behind and rubbed her waist or breasts. He also tried to kiss E.R.S. once, but she succeeded in dodging his advances. In yet another instance, Vazquez passed a note to E.R.S. in which he professed his love for her. The inappropriate touching did not go unnoticed by the other children.

In November 2017, E.X.S. and E.R.S. attended a birthday party that Vazquez threw for his son, A.V. During the party, E.R.S. went outside to play with her friend, R.S. Vazquez came outside at one point, grabbed E.R.S. and pulled her between two cars where he fondled her breasts under her clothes, then lifted her bra and placed his mouth on her breasts. When R.S. approached them, Vazquez stopped and returned inside to the party.

A few days later, Vazquez approached E.R.S. in her driveway, pushed her up against a vehicle, touched her breasts under her shirt, then pulled her pants down and penetrated her vagina with his penis. E.R.S. struggled and told Vazquez to stop, but he ignored her pleas. Vazquez eventually relented when a car approached, then E.R.S. ran inside her family's home to safety. She did not immediately tell anyone what happened out of fear that Vazquez would retaliate and harm her parents or friends.

Following these incidents, M.S. observed peculiar behavior from E.R.S., like resting her hands on her stomach. She also discovered that E.R.S. searched out information on YouTube about menstrual cycles and pregnancy. M.S. asked E.R.S. why she explored those topics and whether someone abused her, but E.R.S. insisted that nothing happened. Not satisfied or convinced, M.S. persisted in her inquiry and told E.R.S. "[S]wear to God ... if you are telling me a lie, God is going to get mad at you." E.R.S. eventually broke down and cried. She told M.S. that on the day before Thanksgiving, Vazquez trapped her in the driveway and "put his thing on her—to her ..." M.S. panicked and woke G.A. up, who then joined her and E.R.S. in the living room. The commotion awakened E.X.S. When she investigated and found E.R.S. crying and telling her parents about the incidents, E.X.S. disclosed that Vazquez touched her too. M.S. contacted her friends both of whom promptly arrived to comfort the family and encouraged them to contact 911.

M.S. eventually asked her friend to call 911 for them and law enforcement officers quickly got an investigation underway. Detective Freddie Strawder obtained a warrant to search Vazquez’ home and found a red sweatshirt and black pants, which matched the description of the clothing E.R.S. reported that Vazquez wore when he attacked her in the driveway. E.R.S. underwent a sexual assault exam and told the examining nurse, Melanie Anderson, that "a man put his private part in my private parts." Anderson observed healed trauma in E.R.S.’s genital area consistent with the account E.R.S. provided. Both girls also participated in interview with Kelly Robbins, the Executive Director at Western Kansas Child Advocacy Center and Kansas Childfirst. E.X.S. told Robbins that Vazquez touched her vagina and nipples. E.R.S. told Robbins that Vazquez raped her and that she did not tell anyone at first because she feared Vazquez might hurt her family if she did.

The investigation yielded four charges against Vazquez, a single count of rape and three counts of aggravated indecent liberties with a child. His case eventually proceeded to a jury trial. Between the date of his arrest and the commencement of trial, however, Vazquez lost a considerable amount of weight. Because of this alteration in his physical appearance, some of the child witnesses struggled when asked to identify him at trial. To overcome this complication, when E.R.S. testified, the prosecutor presented her with Vazquez’ booking photo from the day of his arrest to help confirm his identity and explain the confusion. Detective Strawder also testified and verified that the photo accurately reflected how Vazquez looked at the time of his arrest, but he was significantly thinner at trial. Over defense counsel's objection, the State requested and received permission to publish the photo to the jury.

During closing arguments, the State addressed E.R.S.’s testimony about the conversation she shared with her mother that prompted her disclosure:

"She did tell her daughter something is wrong. I know something is wrong. You're looking up stuff on the internet about missed periods and being pregnant, things of that nature. You need to talk to me. Tell me what is wrong. You need to tell me. You swear to God you are going to tell me the truth, and then she did say, if you don't tell me the truth, I might die in the night. This did cause [E.R.S.] to tell her for fear that her mom might die in the night. She did admit the truth and told her mom that she had been sexually touched by the defendant in this case. That it was on more than one occasion. It was outside in the trailer park, and it was at the office where the birthday party occurred."

During defense counsel's closing argument, she told the jury it could find reasonable doubt existed by focusing on the inconsistencies that plagued each witness’ testimony. As examples, she contrasted E.R.S.’s testimony that no one saw Vazquez rape her in the driveway, with that of Detective Strawder and his assertion that the neighborhood was consistently busy with foot and road traffic. Defense counsel also highlighted a discrepancy between E.R.S.’s interview video where she stated Vazquez raped her against a car and her in-court testimony when she said it happened on a red van. As Vazquez’ counsel wrapped up her argument she remarked:

"I think you heard a lot of inconsistencies, a lot of stories that may be described as told in order to bolster [E.R.S.’s] and [E.X.S.’s] version of events, told to support their two friends, [E.R.S.] and [E.X.S.] I'm not sure which parts of what were said were accurate or inaccurate. I would point out that there were a lot of inconsistencies."

On rebuttal, the prosecutor acknowledged the inconsistencies occurred but argued that identical testimonies carried their own degree of suspicion. As for E.R.S.’s testimony, the prosecutor told the jury:

"But I want you to remember when I talked to [E.R.S.], I specifically pointed to the red car that was in the photograph because I was under the assumption that was the car. She could have easily said, yeah, it happened right there. But no, she wanted to make sure that the truth came out to you and that she was honest with you. She said, no, ma'am, it was not that car. It was a different car. So take those things into consideration when you are thinking about whether the statements that these girls gave you were true."

Later, the prosecutor reiterated, "The children are young. They tried to be as honest with you as they could be and tell you what they remembered." She continued, "And remember what you saw. You saw two very emotional young ladies trying to tell you what happened to them so that you could find him guilty."

The jury deliberated over the evidence for a considerable period before returning a verdict finding Vazquez guilty on all four counts. The district court sentenced Vazquez to serve consecutive life sentences without the possibility of parole for 50 years.

Vazquez now brings his case to us to review and analyze whether error occurred during his trial.

Analysis
WAS THE EVIDENCE ADDUCED AT TRIAL SUFFICIENT TO SUSTAIN VAZQUEZ’ CONVICTIONS FOR RAPE AND AGGRAVATED INDECENT LIBERTIES WITH A CHILD ?

Appellate courts review challenges to the sufficiency of the evidence in the light favoring the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Rosa , 304 Kan. 429, 432-33, 371 P.3d 915 (2016).

In Kansas, courts give juries wide latitude to interpret their own conclusions from the evidence. A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences deducible therefrom. Rosa , 304 Kan. at 433, 371 P.3d 915. If an inference is reasonable, it is well within the province of the jury to rely on the same. Rosa , 304 Kan. at 433, 371 P.3d 915. On appeal, courts cannot reweigh the evidence or reassess the credibility of...

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