State v. Wells

• Decision Date: 14 December 2012
• Docket Number: No. 103,559.,103,559.
• Citation: 290 P.3d 590
• Parties: STATE of Kansas, Appellee, v. Evelyn L. WELLS, Appellant.
• Court: Kansas Supreme Court

290 P.3d 590

STATE of Kansas, Appellee,

v.Evelyn L. WELLS, Appellant.

No. 103,559.

Supreme Court of Kansas.

Dec. 14, 2012.

Syllabus by the Court

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

2. The purpose of a unanimity instruction is to alleviate the possibility that a defendant will be convicted of a crime without the jury unanimously agreeing on the particular act that constituted the crime. This possibility arises when a defendant is charged with a crime but the evidence presented at trial shows that the defendant committed multiple criminal acts, any of which could constitute the charged crime. In such a situation, a district court should instruct the jury that it has to unanimously agree upon the particular act constituting the crime.

3. Misstating the law is not within the wide latitude given to prosecutors in closing arguments.

4. When a prosecutor makes an improper comment during closing argument, an appellate court conducts a harmlessness inquiry, determining whether the misconduct was so prejudicial that it denied the defendant a fair trial. Three factors are considered. First, was the misconduct gross and flagrant? Second, was the misconduct motivated by ill will? Third, was the evidence of such a direct and overwhelming nature that the misconduct would likely have had little weight in a juror's mind? None of these three factors is individually controlling.

5. In analyzing whether a prosecutor's misconduct was gross and flagrant, an appellate court considers whether the misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right.

6. In analyzing whether a prosecutor's misconduct was motivated by ill will, an appellate court considers whether the misconduct was deliberate, repeated, or in apparent indifference to a court's ruling.

7. In determining whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors, the State, as the party benefitting from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect the defendant's substantial rights, i.e., there is no reasonable possibility the error affected the verdict.

8. An appellate court begins its analysis of an alternative means issue by looking at the language used in the applicable statute to determine whether the legislature intended to establish alternative means through the use of the language at issue. Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.

9. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court's first attempt to ascertain legislative intent is through an analysis of the language employed, giving ordinary words their ordinary meaning. If a statute is plain and unambiguous, an appellate court does not need to speculate further about legislative intent and, likewise, the court need not resort to canons of statutory construction or legislative history.

10. 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? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, 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.

11. Words or phrases stated in a series and separated by the disjunctive “or” do not establish alternative means of committing a crime if they fail to state additional and distinct ways of committing the subject crime, that is, if they do not require proof of at least one distinct, material element of mens rea, actus reus, or causation.

12. K.S.A. 21–3506(a)(1) proscribes the aggravated crime of engaging in the act of sodomy with a child who is under 14 years of age. The language and punctuation of K.S.A. 21–3501(2) indicate that there are three general but distinct ways in which one can complete the act of sodomy: (1) oral contact of genitalia, (2) anal penetration, and (3) sexual acts with an animal. We note that each act described within the definition of sodomy is separate and distinct from the other—the acts are factually different from one another, and one act is not inclusive of the others. Furthermore, each act is separated by a semicolon, which suggests that the legislature intended for each act to constitute a specific means of completing the general act of sodomy.

13. The phrase “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia” found in K.S.A. 21–3501(2) does not create two alternative means of committing sodomy. Instead, the phrase merely gives a full description of one means of committing sodomy—oral contact of genitalia. The distinction between female and male genitalia contained within the phrase is superficial and unnecessary. Orally contacting genitalia encompasses both oral contact and oral penetration of the female genitalia as well as oral contact of the male genitalia.

14. A district court may exercise reasonable control over the scope of cross-examination. A district court's decision to limit cross-examination is reviewed under an abuse of discretion standard.

15. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, in other words, if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, in other words, if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, in other words, if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

16. K.S.A. 60–401(b) defines relevant evidence as evidence that is probative and material. In analyzing whether the evidence is material, the focus is on whether the fact at issue has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency to prove any material fact.

17. A claim that a defendant was deprived of his or her statutory and constitutional right to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal.

18. A criminal defendant has a constitutional and statutory right to be present at all critical stages of his or her trial.

19. K.S.A. 22–3405(1) provides in relevant part: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” K.S.A. 22–3405(1) requires a felony defendant to be present at any stage of the trial when the jury is in the courtroom or when the defendant's presence is essential to a fair and just determination of a substantial issue. The statutory command of K.S.A. 22–3405(1) is analytically and functionally identical to the requirements under the Confrontation Clause and the Due ProcessClause of the United States Constitution that a criminal defendant be present at any critical stage of the proceedings against him or her.

20. K.S.A. 22–3420(3) states: “After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”

21. To ensure that a defendant's constitutional and statutory right to be present at all critical stages of his or her trial is protected, a defendant must be present during the court's discussion with the attorneys and ultimate decision on how to respond to a written jury question. But there is no need that the court read the written answer it decided out loud to the jury in open court while the defendant is present. Simply delivering the answer the court decided upon to the jury via written note is sufficient to satisfy the defendant's right to be present.

22. Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. A single error cannot constitute cumulative error.

23. Jessica's Law, K.S.A. 21–4643, provides that a first-time offender convicted of rape in violation of K.S.A. 21–3502(a)(2) or aggravated criminal sodomy in...