State v. Dull

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,115

STATE OF KANSAS,
Appellee,

v.

RYAN DULL,
Appellant.


SYLLABUS BY THE COURT

1.
A prosecutor's assertion during opening statement that a sex crime victim's story to
her mother was "the truth" is outside the wide latitude allowed to attorneys for the State
and therefore error. It is not reversible error, however, because it was not repeated or
emphasized and did not appear calculated or deliberate; it thus was not gross and flagrant
and was not a product of ill will. In addition, given the strength of the evidence, the court
is satisfied beyond a reasonable doubt that the prosecutor's early and isolated reference to
"the truth" did not affect the outcome of the trial in light of the entire record.

2.
A criminal defendant's failure to object to evidence at trial forecloses review of the
admission by an appellate court.

3.
On the facts of this case, it is not possible to resolve the defendant's claim that his
trial counsel provided ineffective assistance without the benefit of district court
proceedings in the first instance. Because of appellate counsel's deliberate decision not to
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seek remand to the district court for a hearing on the ineffective assistance issue under
State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), this court will not order such a
remand sua sponte.

4.
The defendant's observations about weaknesses and inconsistencies in the
complaining witness' testimony do not meet the demanding standard for appellate
reversal of the defendant's sex crime convictions for insufficiency of the evidence.
Conflicting evidence is not necessarily insufficient evidence.

5.
When a criminal defendant fails to provide legal authority to support an argument
raised on appeal, the issue is deemed abandoned.

6.
A sentencing judge is not required to make specific findings of fact on the record
when a motion for departure from the mandatory minimum under Jessica's Law, K.S.A.
21-4643, and a further downward durational departure from the applicable grid range
under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. is rejected.

Appeal from Sedgwick District Court; ERIC R. YOST, judge. Opinion filed January 31, 2014.
Affirmed.

David Phillip Leon, of The Law Office of David Leon, of Wichita, argued the cause and was on
the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

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The opinion of the court was delivered by

BEIER, J.: Defendant Ryan Dull appeals from his convictions and sentences in two
cases—one involving sex offenses against a 13-year-old victim tried to a jury and the
other involving burglary and theft tried to the bench on stipulated facts while the jury in
the first case deliberated.

Dull raises five issues: (1) Whether prosecutorial misconduct denied Dull a fair
trial on the sex crime charges; (2) whether the district court judge erred in admitting
evidence in Dull's jury trial about Dull's brother having sexual intercourse in the next
room; (3) whether Dull's district court counsel was ineffective; (4) whether sufficient
evidence supported Dull's sex crimes and burglary and theft convictions; and (5) whether
the district judge's failure to make on-the-record findings on Dull's departure motion
rendered Dull's sentences in the burglary and theft case illegal.

FACTUAL AND PROCEDURAL BACKGROUND

The events that led to Dull's prosecution for aggravated criminal sodomy, rape,
and aggravated indecent liberties began when he gave D.P.A. and her girlfriend, K.E.B.,
a ride to his home one July evening in 2009. The victim, D.P.A., whom Dull knew to be
13, had romantic feelings toward Dull, age 20. K.E.B. had similar feelings toward Dull's
younger brother, Bryce, one of 17-year-old twins who lived with Dull. On the night of the
crimes, the two girls had told their parents they would be spending the night elsewhere.

According to the girls, they socialized awhile with Dull and the twins and another
friend in the living room. Then D.P.A. went with Dull into his bedroom while K.E.B.
went with Bryce into his bedroom. Once in Dull's bedroom, Dull touched and kissed
D.P.A.; took her clothes off; performed oral sex on her; penetrated her vagina with his
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finger; and then, after donning a condom, had sexual intercourse with her. D.P.A.
emerged from the bedroom wrapped in a sheet, and, when the others asked if she was
wearing any clothes, she lifted the sheet to show them that she was not. D.P.A. told
K.E.B. and another friend that she and Dull were going to have sex again, but they did
not. D.P.A. spent the night with Dull in his bed. The next morning, Dull drove the girls
home. He "broke up" with D.P.A. by text about a week later.

When D.P.A.'s mother learned of these events, law enforcement became involved.
When interviewed by the police, Dull initially denied knowing D.P.A. and denied being
anywhere near his home on the night of the crimes. He later admitted giving D.P.A. a ride
to his home but said that he had slept alone on the night in question.

Ultimately Dull was charged with aggravated criminal sodomy, rape, and
aggravated indecent liberties in Case No. 09CR3875. In another complaint filed the same
day in Case No. 09CR3876, Dull was charged with burglary and misdemeanor theft
arising from a wholly unrelated incident.

At his jury trial in the sex crimes case, Dull testified that he had a girlfriend at the
time of the crimes and never dated D.P.A. He admitted that, because Bryce wanted him
to, he had driven K.E.B. and D.P.A. to his home. He also testified that D.P.A. asked him
if he "would ever go out with her" and "if [he] liked her." He testified that he said no, that
he wasn't interested, and that he had a girlfriend. He also testified that he did not have sex
with D.P.A. and did not kiss her. He said that there was no sexual contact between them,
and he went to bed alone on the night he had driven her and K.E.B. to his home. He said
that, when he woke up, D.P.A. was in his bed and was clothed. He admitted that he had
not been truthful with police during their initial interviews with him.

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K.E.B.'s trial testimony and the testimony of the other friend who was present at
the home largely corroborated D.P.A.'s version of events. D.P.A.'s mother also testified,
as did Officer Grover "Jeff" Piper, who conducted investigative interviews. Piper's
testimony about the results of his interviews of the girls and the friend was consistent
with their trial testimony. He also testified about Dull's changing versions of the
evening's events, including the fact that he originally claimed he was not present at the
home but was at work.

The only person who continued to deny that Dull was at the home was the other
twin, Brett. Brett testified that Dull was in the home only for about 15 minutes; that
D.P.A. never went into Dull's bedroom; that both girls slept in the living room; that Brett
slept in the room he shared with Bryce; and that Dull slept alone in his own room. Brett
also accused the friend who testified consistently with K.E.B. of having "a habit of lying
a lot."

While the jury was deliberating in Case No. 09CR3875, the district judge took up
the burglary and misdemeanor theft charges in Case No. 09CR3876. After a short bench
trial on stipulated facts, the judge found Dull guilty as charged. The jury in Case No.
09CR3875 then returned a verdict of guilty on all of the three sex crime charges.

At Dull's sentencing in the sex crimes case, on the way to imposing three
concurrent hard 25 life sentences under Jessica's Law, the district judge rejected Dull's
motion seeking a departure from the mandatory minimum under Jessica's Law and a
further downward durational departure from the applicable grid range under the Kansas
Sentencing Guidelines Act. The motion was based on Dull's lack of a significant criminal
history, his description of the offenses as nonviolent, and D.P.A.'s willing participation in
the sex acts. The judge did not explain his reasoning for finding no substantial and
compelling reasons to warrant the departures on the record.
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On the burglary and theft case, Dull received 30 months' imprisonment and a 12-
month jail term, to run concurrent with each other and with the sentences imposed in the
sex crimes case.

PROSECUTORIAL MISCONDUCT

Dull argues that the prosecutor committed reversible misconduct during opening
statement by commenting on D.P.A.'s credibility. Specifically, the prosecutor told the
jury that, when D.P.A. was confronted by her mother about whether she had engaged in
sexual intercourse with Dull, D.P.A. told her mother "the truth." Dull argues that the
prosecutor's comment denied him a fair trial and requires reversal.

A claim of prosecutorial misconduct based on comments made during opening
statements, which are not evidence, will be reviewed on appeal even absent a
contemporaneous objection. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).

Our standards governing review of prosecutorial misconduct claims have often
been recited:

"Review of prosecutorial misconduct claims involves a two-step process. The
appellate court first decides whether the comments were outside the wide latitude a
prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct.
Second, if misconduct is found, the court must determine whether the improper
comments prejudiced the jury and denied the defendant a fair trial."

"The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified
three factors to consider in determining if the prosecutorial misconduct so prejudiced the
jury against the defendant that a new trial should be granted: (1) whether the misconduct
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was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's
part; and (3) whether the evidence against the defendant was of such a direct and
overwhelming nature that the misconduct would likely have little weight in the minds of
the jurors. Under Tosh, none of these three factors is individually controlling. And before
the third factor can ever override the first two factors, an appellate court must be able to
say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been
met." State v. Bridges, 297 Kan. 989, Syl. ¶¶ 14, 15, 306 P.3d 244 (2013).

We have also recently reviewed the two harmlessness tests and how they intersect
in a prosecutorial misconduct analysis. Under the constitutional harmless error analysis
defined in Chapman,

"'the error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict.' State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
"Under the harmless error analysis defined in K.S.A. 60-261, the test is equally
clear. The court 'determine[s] if there is a reasonable probability that the error did or will
affect the outcome of the trial in light of the entire record.' [Citation omitted.]
"Under both standards, the party benefiting from the error . . . bears the burden of
demonstrating harmlessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
That burden is higher when the error is of constitutional magnitude. See Herbel, 296 Kan.
at 1110 ('Clearly, the party benefiting from the constitutional error must meet a higher
standard to show harmlessness than the standard required in nonconstitutional error.')."
Bridges, 297 Kan. at 1013.

In addition, when

"both the constitutional and nonconstitutional error clearly arise from the very same acts
and omissions, we logically begin with our harmlessness analysis of the constitutional
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error. . . . [I]f we decide the constitutional error is not harmless and reverse the
convictions, there is no point in analyzing whether the State met the lower standard for
harmlessness under K.S.A. 60-261." Bridges, 297 Kan. at 1015 (citing Herbel, 296 Kan.
at 1111).

A prosecutor is not permitted to offer his or her opinion on the credibility of a
witness. See State v. Marshall, 294 Kan. 850, 281 P.3d 1112 (2012); but see State v.
Scott, 286 Kan. 54, 83, 183 P.3d 801 (2008) ("It is improper for a prosecutor to 'vouch'
for the credibility of a witness," but "it is not improper for a prosecutor to argue that of
two conflicting versions of an event, one version is more likely to be credible based on
the evidence."); State v. Davis, 275 Kan. 107, 121-23, 61 P.3d 701 (2003) (prosecutor's
statement that victim "should be believed" based on evidence, not vouching for witness).

The prosecutor's assertion here that D.P.A.'s story to her mother was "the truth"
was outside the wide latitude allowed to attorneys for the State, because it effectively
gave D.P.A. the State's blessing as a credible witness against Dull. However, we do not
agree with Dull that the prosecutor's mistake requires reversal of Dull's sex crime
convictions.

The comment was not repeated or emphasized; it did not appear calculated or
deliberate. It is amenable to characterization as neither gross and flagrant nor a product of
ill will. See State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011) (discussing
hallmarks of gross and flagrant conduct, conduct motivated by ill will); State v. Kemble,
291 Kan. 109, 121-25, 238 P.3d 251 (2010) (discussing whether prosecutor's behavior
motivated by ill will).

In addition, given the strength of the evidence against Dull—coming not just from
D.P.A. but from other witnesses to the conduct of Dull and D.P.A. at Dull's home on the
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night in question—we are satisfied beyond a reasonable doubt that the prosecutor's early
and isolated reference to "the truth" did not affect the outcome of the trial in light of the
entire record. This case, unlike many sex crime prosecutions, was not a mere credibility
contest between victim and alleged perpetrator. Moreover, the defense was able to
respond to the prosecutor's remark during counsel's opening statement—"I want to point
out a couple things [the prosecutor] said, that [D.P.A.] told [her mother] the truth . . . .
Ladies and gentlemen, you're going to get the evidence and you're the finder of the truth,
not him. You will determine what did or did not happen." Both sides in this case were
able to point out weaknesses in the opponent's evidence. And the district judge dutifully
instructed Dull's jury that statements of counsel were not evidence.

In light of the entire record, we hold that the prosecutor's step outside the wide
permissible latitude of comments to the jury was not reversible error. There simply is no
reasonable possibility that the prosecutor's momentary slip contributed to the guilty
verdicts against Dull. See Ward, 292 Kan. 541, Syl. ¶ 6.

ADMISSION OF EVIDENCE ABOUT BROTHER'S ACTIVITIES

Dull's next appellate argument is that the district judge erred in admitting evidence
that his younger brother was having sex with D.P.A.'s friend in the next bedroom during
the alleged crimes. There was no objection to the admission of this evidence at trial. We
therefore do not reach the merits of this issue. See K.S.A. 60-404; State v. Houston, 289
Kan. 252, 270, 213 P.3d 728 (2009); State v. Hollingsworth, 289 Kan. 1250, 1255, 221
P.3d 1122 (2009) (citing State v. Bryant, 285 Kan. 970, Syl. ¶ 6, 179 P.3d 1122 [2008]).

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INEFFECTIVE ASSISTANCE OF COUNSEL

Dull argues that his trial counsel provided him with ineffective assistance,
violating the Sixth Amendment to the United States Constitution and entitling him to
reversal and retrial.

The merits of a claim of ineffective assistance of counsel ordinarily are not
addressed for the first time on direct appeal. Rowland v. State, 289 Kan. 1076, 1084, 219
P.3d 1212 (2009); State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000); State v. Van
Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986) (overruling State v. Pink, 236 Kan. 715,
696 P.2d 358 [1985]).

The usual course of action is a request by appellate counsel for remand to the
district court for a hearing on the ineffective assistance claim. See Van Cleave, 239 Kan.
at 120. But, in this case, appellate counsel for Dull confirmed at oral argument before us
that he was not seeking such a remand.

Although "there are circumstances when no evidentiary record need be
established, when the merit or lack of merit of an ineffectiveness claim about trial
counsel is obvious," and an ineffectiveness claim can therefore be resolved when raised
for the first time on appeal, these circumstances are "extremely rare." Rowland, 289 Kan.
at 1084-85; see also State v. Levy, 292 Kan. 379, 253 P.3d 341 (2011) (declining to
consider ineffective assistance claims for first time on direct appeal; declining to remand
for Van Cleave hearing based on defendant's failure to meet minimal requirements);
Laymon v. State, 280 Kan. 430, 444, 122 P.3d 326 (2005) (direct appeal counsel's
performance objectively unreasonable; performance prejudiced defendant); Carter, 270
Kan. at 433-34, 440-41(trial counsel's pursuit of guilt-based defense despite client's
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contrary wishes ineffective, prejudicial per se). Further, we have recognized the danger
inherent in forgoing a Van Cleave procedure:

"If an appellate court foregoes the Van Cleave procedure, it risks what has occurred here:
The defendant, with or without legal assistance, later moves under K.S.A. 60-1507 to
challenge ineffective assistance of counsel, either to complete the litigation of an earlier
argument or to raise a new one or both. Without a thorough procedure in the first
instance, such claims cannot be cavalierly rejected." Rowland, 289 Kan. at 1084-85.

Dull's case is not the rare one in which we can dispose of his ineffective assistance
claim without district court proceedings in the first instance. At least one of his
arguments may require an evidentiary hearing to resolve it. Given his appellate counsel's
apparently deliberate decision not to seek a Van Cleave remand, we will not order one
sua sponte.

SUFFICIENCY OF EVIDENCE

Dull attacks the sufficiency of the evidence in both the sex crimes case and the
burglary and theft case.

"'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."' State v. McCaslin,
291 Kan. 697, 710, 245 P.3d 1030 (2011) (quoting State v. Drayton, 285 Kan. 689, 710,
175 P.3d 861 [2008]). In determining whether there is sufficient evidence to support a
conviction, an appellate court does not reweigh the evidence or judge the credibility of
witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). When a case is decided
on stipulated facts, an appellate court has de novo review over sufficiency of the evidence
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claims. State v. McCammon, 45 Kan. App. 2d 482, 488, 250 P.3d 838, rev. denied 292
Kan. 968 (2011).

Sex Crime Convictions—Case No. 09CR3875

Dull's sufficiency argument in this case focuses on D.P.A.'s faulty memory, the
lack of detail in her version of events, and inconsistencies in her testimony. Dull
concludes that "it is reasonable to assume the alleged victim's testimony was pressured
and not accurate." Specifically, Dull notes that D.P.A. didn't remember when she started
or for how long she had been texting Dull; that D.P.A. lied to her mother in order to go to
Dull's house; that she could not describe the house or remember whether it contained one
or two televisions; that the State admitted testimony of K.E.B., who "also had intercourse
that evening;" and that D.P.A. told her mother she had had sex with Dull only after "the
mother approached the alleged victim in a crazy upset fashion."

These observations by Dull do not justify his conclusion and do not meet our
demanding standard for reversal for insufficiency of the evidence. The jury chose to
believe D.P.A.'s version of events after observing her demeanor and hearing
corroboration of her story from others. The jury also had an opportunity to observe and
evaluate the worth of Dull's version. Conflicting evidence is not necessarily insufficient
evidence. A factfinder could have found Dull guilty beyond a reasonable doubt of all
three sex crimes, and his argument to the contrary is without merit.

Burglary and Theft Convictions—Case No. 09CR3876

In the body of his brief, Dull includes the heading: "Mr. Dull should not have been
convicted [in] 09CR3876." The entirety of his argument on this issue is:

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"Mr. Dull was found guilty by stipulated facts. Pursuant to the case law presented above,
such stipulation was [neither] an effective means nor a sufficient means to be convicted
of the crime. Thus, such conviction and sentence should be reversed."

Neither the cases cited in earlier sections of Dull's brief nor any other legal
authority of which this court is aware supports these two sentences. We deem this issue
abandoned by lack of citation. See State v. Holman, 295 Kan. 116, 139, 284 P.3d 251
(2012) (issue mentioned in passing but not argued, supported; abandoned).

FAILURE TO EXPLAIN REJECTION OF DEPARTURES ON THE RECORD

Dull's last argument on this appeal challenges the district judge's failure to
specifically address the defense motion for departure arguments on the record. He
suggests that the district judge was required to "'issue findings of fact and conclusions of
law regarding the issues submitted by the parties, and . . . enter an appropriate order.'
K.S.A. 2[1]-4718." Dull is not challenging his sentence or the denial of the departure
motion but what he perceives as a procedural flaw under what he believes to be the
governing statute.

This claim of error presents a question of law, over which this court's review is
unlimited. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011) (interpretation of
statute a question of law, review unlimited).

The first departure sought by Dull was governed by Jessica's Law, K.S.A. 21-
4643. Specifically, 21-4643(d) provides that a sentencing judge who departs from the 25-
year mandatory minimum for the life sentence "shall state on the record at the time of
sentencing the substantial and compelling reasons for the departure." This provision does
not have a similar requirement for an on-the-record explanation of a sentencing judge's
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rejection of a departure from the mandatory minimum. See State v. Remmert, 298 Kan.
__, ___, ___ P.3d ___ (2014). Thus there was no procedural error in the district judge's
refusal to depart from the mandatory minimum.

The second departure sought by Dull—a further downward durational departure
from the applicable grid range under the Kansas Sentencing Guidelines Act—did not
come into play because the first departure was not granted. See State v. Spencer, 291
Kan. 796, Syl. ¶ 7, 248 P.3d 256 (2011) (departure from mandatory minimum of Jessica's
Law places defendant on grid applicable to crime severity level, criminal history score
under Sentencing Guidelines Act; further downward durational departure a function of
grid range). We therefore need not analyze whether the district judge followed the
appropriate procedure. See K.S.A. 21-4718(a)(2), (a)(4).

Finally, Dull also advances the argument that Supreme Court Rule 183(j) (2013
Kan. Ct. R. Annot. 278) required specific factual findings and conclusions of law. This
authority is plainly inapplicable. The cited provision refers to rulings on collateral
challenges under K.S.A. 60-1507.

Dull is not entitled to relief on this appellate claim.

CONCLUSION

For all of the reasons set forth above, we affirm the convictions and sentences of
defendant Ryan Dull in Case No. 09CR3875 and Case No. 09CR3876.