State v. Franco

1

No. 107,814

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER FRANCO,
Appellant.


SYLLABUS BY THE COURT

1.
In assessing a challenge to jury instructions in a criminal case, an appellate court
determines: (1) reviewability considering preservation of the issue at trial and
jurisdiction; (2) legal appropriateness of the instruction; (3) factual support in the
evidence for the instruction; and (4) harmlessness of any actual error.

2.
When a criminal defendant challenges jury instructions for the first time on
appeal, the court must find any defect caused clear error to reverse. To find jury
instructions clearly erroneous, the appellate court must be firmly convinced the jury
would have reached a different verdict had the instructional error not occurred.

3.
A Bunyard instruction informs a jury that under Kansas law, rape occurs when the
victim has initially consented to sexual intercourse with the perpetrator and then clearly
withdraws that consent during the act, so long as the perpetrator then fails to stop within a
reasonable time. What amounts to a reasonable time must be measured against the facts
of a given case and presents an issue for the jury's determination. A comparable jury
2

instruction should be given in a prosecution for aggravated criminal sodomy if it is
factually supported.

4.
The Kansas statute criminalizing sodomy, K.S.A. 21-3505, is unconstitutional and,
thus, unenforceable to punish anal intercourse between consenting adults of the same sex
conducted in private.

5.
Under the facts of this case, the defendant could not have been constitutionally
charged with or punished for criminal sodomy. The district court, therefore, committed
no error in failing to instruct the jury on criminal sodomy as a lesser included offense of
aggravated criminal sodomy.

6.
In reviewing a criminal defendant's challenge to the sufficiency of the evidence, an
appellate court examines the record in a light most favorable to the State, as the party
prevailing at trial, and in support of the jury's verdict. The court will neither reweigh the
evidence generally nor make credibility determinations specifically. The issue for review
is simply whether rational jurors could have found the defendant guilty beyond a
reasonable doubt.

7.
The test for prosecutorial misconduct and reversible error in closing argument is
stated and applied.

8.
Under the facts of this case, the prosecutor properly reviewed the evidence and
explained to the jury how that evidence supported a conclusion that one witness was
3

more credible than another witness when the witnesses gave conflicting accounts of the
same event. The argument did not impermissibly dilute the State's burden to prove the
elements of the charged offense beyond a reasonable doubt, especially in light of the jury
instruction to that effect and the prosecutor's specific reference to that instruction and
burden in closing argument.

Appeal from Finney District Court; PHILIP C. VIEUX, judge. Opinion filed February 14, 2014.
Affirmed.

Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates, LLC, of Leawood,
for appellant.

Eric Fournier, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., BUSER and ATCHESON, JJ.

ATCHESON, J.: A jury in Finney County District Court convicted Defendant
Christopher Franco of aggravated criminal sodomy. He appeals on multiple grounds,
including instructional error, insufficiency of the evidence, and prosecutorial misconduct
in closing argument. We find no error and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Given the issues, we do not linger over the facts. T.W.K., the victim, is a man in
his mid-20s and has some mental disability. In April 2011, when the incident occurred,
T.W.K. was living independently with his girlfriend in an apartment in Garden City.
T.W.K.'s girlfriend had been in a relationship with Franco and bore their child. T.W.K.
and Franco became acquainted when Franco visited his son. During those visits, Franco
sometimes demonstrated boxing techniques and wrestling moves with T.W.K. The record
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evidence clearly indicates Franco was larger, stronger, and physically more adept than
T.W.K. and easily dominated him during those demonstrations.

On April 20, Franco called and asked to come over to the apartment. T.W.K.
agreed even though his girlfriend and her son were out of town. Franco arrived with his
current girlfriend. After awhile, Franco whispered something to the woman, and she left
the apartment. According to T.W.K.'s account, Franco walked into the bedroom. He told
T.W.K. to follow along because he had a surprise. Franco then forcibly performed anal
intercourse on T.W.K., who repeatedly implored him to stop. Franco did not. Franco
remained at the apartment until his girlfriend returned. The couple then left.

T.W.K. immediately contacted representatives of a social service agency that
provided assistance to him because of his disability. He explained what happened. The
agency representatives called the Garden City police. The police department began an
investigation. Franco met with Detective Tanya Bradley and initially denied any sexual
encounter with T.W.K. Later in the interrogation, Franco admitted having consensual
anal intercourse with T.W.K. The county attorney charged Franco with one count of
aggravated criminal sodomy, a severity level 1 felony offense under K.S.A. 21-3506, and
with one count of misdemeanor battery under K.S.A. 21-3412. The battery charge
apparently stemmed from a particularly forceful wrestling demonstration between Franco
and T.W.K. The aggravated criminal sodomy count required the State to prove that
T.W.K. was overcome by force or fear and, therefore, did not consent to the sex act.

At trial, T.W.K. described how Franco forcibly sodomized him. Testifying in his
own defense, Franco told the jury that T.W.K. had suggested several times that they have
sex and continued to pester him about it. So Franco said he finally agreed. During the sex
act, T.W.K. complained that it hurt. Franco testified he immediately stopped. The jury
essentially had to resolve directly conflicting testimony from the participants as to
whether T.W.K. willingly took part in the sex act.
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The jury convicted Franco of aggravated criminal sodomy and acquitted him of
battery. Based on Franco's criminal history and the severity of the offense, the district
court imposed a standard guidelines sentence of 620 months in prison for the conviction.
Franco has timely appealed.

LEGAL ANALYSIS

Jury Instructions

On appeal, Franco argues two errors in the jury instructions. First, he contends the
district court should have given an instruction to the effect that no crime is committed
when a willing participant in a sex act withdraws consent during the encounter and the
other participant—the defendant in the criminal case—stops within a reasonable time.
See State v. Bunyard, 281 Kan. 392, 414-15, 133 P.3d 14 (2006) (recognizing use of
instruction in rape case). Second, Franco contends the district court should have
instructed on criminal sodomy—anal intercourse between consenting adults of the
opposite sex—as a lesser included offense. See K.S.A. 21-3505 (criminal sodomy). At
trial, Franco neither requested the instructions nor objected to the district court's failure to
give them.

The Kansas Supreme Court recently outlined the analytical steps in assessing a
challenge to jury instructions in a criminal case. State v. Plummer, 295 Kan. 156, Syl. ¶ 1,
283 P.3d 202 (2012). The appellate court determines: (1) reviewability considering
preservation of the issue at trial and jurisdiction; (2) legal appropriateness of the
instruction; (3) factual support in the evidence for the instruction; and (4) harmlessness of
any actual error. The determination of harmlessness under Plummer borrows the
standards set forth in State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied
132 S. Ct. 1594 (2012), for assessing errors that compromise a criminal defendant's
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constitutional rights and those that do not. Plummer, 295 Kan. at 162-63. The Plummer
analysis governs all challenges to jury instructions, even those raised initially on appeal.
But when a criminal defendant challenges jury instructions for the first time on appeal,
the court must find any defect caused clear error to reverse. See K.S.A. 2013 Supp. 22-
3414(3); State v. Haberlein, 296 Kan. 195, 203-04, 290 P.3d 640 (2012). The Kansas
Supreme Court has recently restated the test for clearly erroneous jury instructions. See
State v. Mireles, 297 Kan. 339, Syl. ¶¶ 5-7, 301 P.3d 677 (2013); State v. Trujillo, 296
Kan. 625, 630-31, 294 P.3d 281 (2013); State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286
P.3d 195 (2012). In Williams, the court phrased the test as "whether [the appellate court]
is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred." 295 Kan. 506, Syl. ¶ 5. The party disputing the jury
instructions bears the burden of so persuading the appellate court. 295 Kan. 506, Syl. ¶ 5.

Turning to the first alleged error, we look to Bunyard, as do the parties. The
Bunyard court recognized that under Kansas law, rape occurs when the victim has
initially consented to sexual intercourse with the perpetrator and then clearly withdraws
that consent during the act, so long as the perpetrator then fails to stop within a
reasonable time. Bunyard, 281 Kan. at 414-15. What amounts to a reasonable time must
be measured against the facts of a given case and presents an issue for the jury's
determination. 281 Kan. at 414-15. In appropriate cases, the jury should be informed of
that aspect of the law. 281 Kan. at 415-16; see State v. Flynn, 45 Kan. App. 2d 1113,
1115-16, 257 P.3d 1259 (2011) (noting requirement for Bunyard instruction and
reversing conviction for failure to give one on the facts of that case), rev. granted January
20, 2012.

Because lack of consent is an element common to the crimes of rape and
aggravated criminal sodomy, Franco argues the rule in Bunyard applies in this case and,
therefore, the jury should have been instructed on the legal effect of a victim's withdrawal
of consent. For purposes of evaluating the point, we assume jurisdiction and preservation
7

consistent with the Plummer analysis. We find that Bunyard would govern in a
prosecution for aggravated criminal sodomy, so an instruction would be legally
appropriate. Our finding seems a safe one in that lack of consent is treated identically in
the statutes criminalizing rape and aggravated criminal sodomy. K.S.A. 21-3502(a)(1)
(lack of consent, rape); K.S.A. 21-3506(a)(3) (lack of consent, aggravated criminal
sodomy).

Franco's argument founders, however, on the third Plummer consideration—
factual appropriateness in the particular case. In measuring factual propriety, we look at
the trial evidence in a light favoring Franco's version of events and, in doing so, resolve
any credibility disputes his way. See Plummer, 295 Kan. at 161-62. But a district court
commits no error in failing to give an instruction unsupported in the record evidence. See
295 Kan. at 161 (no error in omitting instruction on lesser included offense without
evidentiary support).

The purpose of a Bunyard instruction is to apprise jurors of the governing law in
the uncommon rape prosecution: The victim initially agrees to have sex with the
defendant and withdraws that consent during the act; and despite the victim's
communicated unwillingness to continue, the defendant doesn't stop for some measurable
time. The instruction basically informs the jurors that a defendant has a "reasonable time"
to stop after consent has been withdrawn before continuation of the sex act will be
considered criminal. In short, a Bunyard instruction assists jurors in assessing the legal
implications when a defendant continues a sex act after the other participant no longer
consents.

The instruction was factually inapposite and, thus, unnecessary here. In Franco's
version, T.W.K. initially consented to the sex act; and as soon as he indicated he no
longer wished to participate, they stopped. According to Franco, then, there was no
measurable time the act continued after T.W.K. withdrew consent. So the jurors needed
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no guidance on how to determine the legal culpability of a defendant who chose to
continue engaging in a sex act after the other participant had withdrawn consent. On that
basis, the district court did not err in omitting a Bunyard instruction.

In this case, the district court instructed the jury on the elements of aggravated
criminal sodomy using an appropriately tailored version of PIK Crim. 3d 57.08-B, which
is identical to PIK Crim. 4th 55.070. With respect to consent, the instruction informed the
jury the State had to prove "[t]he act of sodomy was committed without the consent of
[T.W.K.] under circumstances when [T.W.K.] was overcome by force or fear." The
instruction adequately informed the jurors of the law to be applied to the factual scenario
Franco described in his testimony. The instruction the district court gave effectively
advised the jurors that the sex act and the lack of consent had to exist simultaneously to
establish the crime of aggravated criminal sodomy. The jurors, thus, understood that if—
as Franco contended—the act ceased as soon as T.W.K. protested, then the charged crime
had not been committed. Simply put, in Franco's version, the act of sodomy was
committed only with and during the time of T.W.K.'s consent. So if the jurors believed
Franco's account, the jury instruction accurately stated the law and required them to
acquit. A Bunyard instruction would not have added anything useful, since it addresses
the legal implications of a discernible lapse of time between the withdrawal of consent
and the cessation of the sex act—something that didn't happen here under any version of
the events.

Even if a Bunyard instruction might have been appropriate under a peculiar stretch
of the evidence, we cannot say that its omission was clearly erroneous as outlined in
Williams, 295 Kan. 506, Syl. ¶ 5. As we have already explained, that instruction would
not have been obviously applicable to the version of events Franco offered, and it
certainly had no pertinence to T.W.K.'s account that he protested from the start. The
jurors would have had to fashion a sequence of events matching neither version. And
while jurors may choose to believe parts of a given witness' account of relevant events
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and disbelieve other parts, see Ater v. Culbertson, 190 Kan. 68, 73-74, 372 P.2d 580
(1962) (In assessing the credibility of a witness, jurors may accept part of his or her
testimony and reject the balance as "they feel warranted in so doing."); State v. Seward,
163 Kan. 136, 145, 181 P.2d 478 (1947) (A jury has the prerogative to believe in part and
disbelieve in part a witness' testimony or confession.), aff'd on reh. 164 Kan. 608, 191
P.2d 743 (1948), nothing suggests they did so here to come up with a scenario
implicating the Bunyard rule on withdrawn consent. Unlike the Bunyard jurors, they did
not pose a question about the instructions to the district court or otherwise request
additional legal guidance during their deliberations. See Bunyard, 281 Kan. at 408-09.
Absent a tangible reason to believe the jurors realistically were contemplating a Bunyard
scenario, we are not firmly convinced an instruction on that scenario would have led to a
different outcome.

For his second instructional error, Franco contends the district court should have
informed the jury it could have considered criminal sodomy, a misdemeanor, as a lesser
included offense of aggravated criminal sodomy. At trial, Franco did not request an
instruction on criminal sodomy, and the district court did not give the jury one.

Pertinent here, criminal sodomy, as set out in K.S.A. 21-3505(a)(1) and recodified
in K.S.A. 2013 Supp. 21-5504(a)(1), prohibits consensual anal intercourse and oral-
genital contact between persons of the same sex who are 16 years of age or older. See
also K.S.A. 21-3501(2) (identifying those acts within the definition of sodomy); K.S.A.
2013 Supp. 21-5501(b) (recodification of definition of sodomy). Those acts are not
crimes if they are performed by consenting individuals of the opposite sex who are at
least 16 years old.

Under the Plummer analysis, Franco's challenge based on the omission of an
instruction on criminal sodomy as a lesser included offense of aggravated criminal
sodomy should be reviewed on appeal for clear error. See K.S.A. 22-3414(3). In light of
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the statutory language criminalizing each, all of the elements of criminal sodomy are also
elements of aggravated criminal sodomy. Aggravated criminal sodomy materially differs
from criminal sodomy insofar as it requires proof of lack of consent. That makes criminal
sodomy a lesser included offense of aggravated criminal sodomy. See K.S.A. 21-
3107(2)(b) (a crime is a lesser included offense if all its elements are some of the
elements of the greater offense).

Commonly, an instruction on a lesser included offense is not only legally
appropriate but statutorily required if the facts of the case support it. K.S.A. 22-3414(3).
And the facts viewed favorably to Franco would warrant the instruction, since he cast the
encounter with T.W.K. as consensual. All of that suggests the district court should have
given the jury an instruction on criminal sodomy as a lesser included offense.

But this is an uncommon issue, as both sides acknowledge in debating it on
appeal. As the parties have framed the debate, we must decide whether the criminal
sodomy statute may be constitutionally enforced to proscribe and punish anal intercourse
between consenting adults of the same sex. The State relies on Lawrence v. Texas, 539
U.S. 558, 578-79, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), to argue that Franco could
not have been charged with or convicted of criminal sodomy and, therefore, was not
entitled to a lesser included offense instruction. The State, in effect, submits that a
criminal sodomy instruction was legally inappropriate under the Plummer analysis.
Franco counters that no Kansas appellate court has found the criminal sodomy statute
unconstitutional and the Kansas Legislature effectively readopted the statute after
Lawrence as part of the recodification of the criminal code enacted in 2010. So Franco
contends the criminal sodomy statute remains presumptively valid, thereby warranting a
lesser included offense instruction in this case. The State, in our view, has the better of
the argument.

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In Lawrence, the Court considered the constitutionality of a Texas statute
criminalizing consensual anal intercourse and oral-genital contact between persons of the
same sex. 539 U.S. at 563. Although the Texas statute characterized that conduct as
"deviate sexual intercourse," its challenged proscriptions are legally indistinguishable
from prohibitions in K.S.A. 21-3505(a)(1). The Court specifically noted that Kansas was
one of nine states, including Texas, that had "singled out same-sex relations for criminal
prosecution." 539 U.S. at 570 (citing L. 1983, ch. 109, sec. 5, amending criminal sodomy
statute to limit its application to members of the same sex engaging in prohibited acts). A
majority of the Court held that enforcing the Texas statute against consenting adults
privately engaging in that proscribed activity violated a substantive liberty interest
protected in the Fourteenth Amendment to the United States Constitution. 539 U.S. at
578. The Court reversed the convictions of Petitioners John Lawrence and Tyron Garner,
who were prosecuted and convicted of violating the Texas statute by engaging in
consensual anal intercourse in Lawrence's apartment.

The United States Supreme Court is the final arbiter when it comes to interpreting
and applying the United States Constitution. Other courts—state and federal alike—are
bound by stare decisis to abide by that precedent. See State v. Ruggles, 297 Kan. 675,
685, 304 P.3d 338 (2013) (recognizing United States Supreme Court decisions to be
controlling as to Eighth Amendment challenge to sentence in criminal case); State v.
Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010) (Kansas Supreme Court bound by
United States Supreme Court authority applying Fourth Amendment). Based on
Lawrence, we, therefore, hold K.S.A. 21-3505 and its recodification in K.S.A. 2013
Supp. 21-5504(a) to be unconstitutional and, thus, unenforceable with respect to the
conduct Franco contended he and T.W.K. engaged in—anal intercourse between
consenting adults of the same sex conducted in private. The Lawrence decision also
precludes criminalizing oral-genital contact between consenting adults of the same sex.
539 U.S. at 578-59. So K.S.A. 2013 Supp. 21-5504(a) would be unconstitutional if it
were enforced that way, as well.[1]
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[1] Justice O'Connor joined in the judgment in Lawrence, but she relied on an
equal protection analysis to find the Texas statute unconstitutional because it treated gays
and lesbians, as a class, disparately—the crime of deviant sexual intercourse, by
definition, applied only to same-sex participants. 539 U.S. at 585 (O'Connor, J.,
concurring). Justice O'Connor applied rational-basis review to the Texas statute—the test
most deferential to the constitutionality of legislative enactments—and found the measure
wanting. 539 U.S. at 583 ("Moral disapproval of this group . . . is an interest that is
insufficient to satisfy rational basis review under the Equal Protection Clause."); at 585
("A law branding one class of persons as criminal based solely on the State's moral
disapproval of that class and the conduct associated with that class runs contrary to the
values of the Constitution and the Equal Protection Clause, under any standard of
review."). We have no need to address the equal protection rationale, since five members
of the Court struck down the Texas statute as contravening a liberty interest protected in
the Due Process Clause. Nor do we make any assumptions about the constitutionally
proper level of review to be applied under the Equal Protection Clause to state statutes or
other enactments disadvantaging gays and lesbians as a class. See United States v.
Carolene Products Co., 304 U.S. 144, 153 n.4, 58 S. Ct. 778, 82 L. Ed. 1234 (1938).

Because Franco could not have been successfully prosecuted for criminal
sodomy—the prosecution would have been constitutionally impermissible under
Lawrence—we do not see how that could be a lesser included offense of aggravated
criminal sodomy. Anal intercourse between consenting adults is no offense at all. And
that was true when Franco went to trial.

Franco's rejoinders are unavailing. The United States Supreme Court's decision in
Lawrence struck down as unconstitutional (and, thus, unenforceable) provisions of a
Texas criminal statute that are legally indistinguishable from relevant portions of the
Kansas criminal sodomy statute, K.S.A. 21-3505(a)(1), and its recodification, K.S.A.
2013 Supp. 21-5504(a)(1). There can be no reasonable doubt that Lawrence compels the
conclusion that the Kansas criminal sodomy statute is unconstitutional and unenforceable
to the same extent, and there can be no colorable argument otherwise. Contrary to
Franco's suggestion, that conclusion need not be formally pronounced in a precedential
decision from a Kansas appellate court to be valid. Neither Franco nor other criminal
defendants would have been entitled to lesser included offense instructions on criminal
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sodomy during the decade-long lag between Lawrence and this case. Decisions of the
United States Supreme Court construing federal constitutional rights don't need some
endorsement from an intermediate state appellate court to kick-start them.

The Kansas Legislature's decision, made as part of the 2010 recodification of the
criminal code, to readopt those portions of the criminal sodomy statute that violate the
Due Process Clause doesn't resuscitate them. They still violate the federal Constitution.
So that could not have been a valid basis to afford Franco a lesser included offense
instruction.

Franco's argument runs counter to the purpose and effect of the Supremacy
Clause, art. VI, cl. 2, of the United States Constitution. In pertinent part, the Supremacy
Clause states: "This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to the
contrary notwithstanding." U. S. Const., art. VI, cl. 2. The Supremacy Clause renders
state statutes and common law ineffective to the extent they materially conflict with or
impede federal law. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608,
120 L. Ed. 2d 407 (1992); Hillsborough County v. Automated Medical Labs., Inc., 471
U.S. 707, 712-13, 105 S. Ct. 2371, 85 L. Ed. 2d 714 (1985) ("It is a familiar and well-
established principle that the Supremacy Clause, U.S. Const., Art. VI, cl. 2, invalidates
state laws that 'interfere with, or are contrary to,' federal law.") (quoting Gibbons v.
Ogden, 22 U.S. [9 Wheat.] 1, 6 L. Ed. 23 [1824]). To the extent the Kansas criminal
sodomy statute contravenes liberty interests protected in the Due Process Clause of the
Fourteenth Amendment, it cannot be enforced without violating the Supremacy Clause.
And that is true no matter how often or by how wide a margin the Kansas Legislature
readopts those provisions.

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Franco has presented no viable argument for reversing his conviction based on the
jury instructions.

Sufficiency of the Evidence

Franco argues the evidence presented at trial was legally insufficient to support his
conviction. In reviewing a criminal defendant's challenge to the sufficiency of the
evidence, an appellate court examines the record in a light most favorable to the State, as
the party prevailing at trial, and in support of the jury's verdict. State v. Hargrove, 48
Kan. App. 2d 522, 558, 293 P.3d 787 (2013). The court will neither reweigh the evidence
generally nor make credibility determinations specifically. State v. Raskie, 293 Kan. 906,
919-20, 269 P.3d 1268 (2012); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006).
The issue for review is simply whether rational jurors could have found the defendant
guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030
(2011).

At trial, T.W.K. testified to a version of the sexual encounter with Franco that, if
believed, would establish the elements of aggravated criminal sodomy. Franco contends
inconsistencies in T.W.K.'s testimony render his version of the encounter incredible,
thereby negating evidence supporting the conviction—specifically the lack of consent.
Franco compares testimony of T.W.K. that he physically resisted the sex act to the results
of a medical examination of T.W.K. showing no substantial injuries. Similarly, T.W.K.
testified at trial that Franco ejaculated, but a forensic examination of T.W.K. found no
substantial biological evidence of ejaculation. In pretrial accounts of the offense, T.W.K.
made conflicting and equivocal statements on that point. T.W.K. also gave widely
varying estimates of the duration of the sex act. By the same token, T.W.K. consistently
reported he did not consent to Franco's actions and protested as Franco violated him.
T.W.K. said as much from the very first and did not waiver in that assertion. T.W.K.
15

displayed obvious signs of emotional upset and trauma in the immediate aftermath of the
encounter with Franco. All of that was for the jurors to consider.

And Franco's credibility in front of the jurors wasn't free of blemishes. Most
notably, perhaps, he gave inconsistent renditions to law enforcement officers
investigating the matter. Franco initially denied anything happened between him and
T.W.K. He then admitted they had sex but claimed it was consensual. That is not an
inconsistency likely born of an honest if faulty recollection. The jurors reasonably could
take Franco to be a prevaricator. And they equally reasonably could conclude that had he
been deliberately false in one claim, he may have been false in others. See State v.
Moreno, 996 A.2d 673, 681 (R.I. 2010) (noting appropriateness of defense counsel's jury
argument that a witness false in one thing may be considered false in all things); State v.
Corbett, 158 Wash. App. 576, 589, 242 P.3d 52 (2010) (argument based on witness'
inconsistent statements bears on credibility and reflects matter for jury to resolve).

Sorting out testimonial inconsistencies and evaluating credibility is a function
uniquely entrusted to jurors. And "[t]he judicial process treats an appearance on the
witness stand, with the taking of an oath and the rigor of cross-examination, as perhaps
the most discerning crucible for separating honesty and accuracy from mendacity and
misstatement." State v. Bellinger, 47 Kan. App. 2d 776, 787, 278 P.3d 975 (2012), rev.
denied 298 Kan. ___ (2013) (Atcheson, J., dissenting). The ability of the jurors to
observe witnesses as they testify is integral to that evaluation. State v. Scaife, 286 Kan.
614, 624, 186 P.3d 755 (2008). Appellate courts have no comparable vantage point when
they read a trial transcript, and that is precisely why they do not make credibility
determinations.

In arguing insufficiency of the evidence, Franco basically submits that the
questions about T.W.K.'s version of the sexual encounter were sufficiently pronounced
that the jurors should have entertained a reasonable doubt about guilt. The argument,
16

however, asks us to do precisely what we cannot—to weigh the evidence and to credit
witnesses to reach a result at odds with the jurors' collective determination of the facts.
We would impermissibly invade the province of the jurors as fact-finders to hold for
Franco on this point.

State's Closing Argument

Franco contends the prosecutor's closing argument to the jury misstated the law by
impermissibly diluting the State's burden to prove guilt beyond a reasonable doubt. He
points to the prosecutor's rebuttal argument. After Franco's lawyer hammered at T.W.K.'s
credibility in her argument, the prosecutor went over the evidence supporting T.W.K.'s
version and undermining Franco's. The prosecutor told the jurors that they had to decide
who was more credible based on the evidence and invited them to conclude T.W.K. to be
so.

On appeal, Franco specifically cites two portions of the prosecutor's rebuttal
argument. First, the prosecutor told the jurors:

"The instructions tell you that you can use your common sense and experience, and you
have to resolve the credibility of the witnesses. The credibility is an important issue here.
We do have two versions of the events. The question is, Who do you believe more? Do
you believe [T.W.K.] or do you believe Chris Franco?"

Later in the argument, the prosecutor said:

"[T.W.K.] has nothing to gain from Chris Franco's testimony. He does have something to
gain from it. It's totally self-serving and it is totally in his own interest. The question
comes down to credibility. We have two versions of the events. Who is more believable?
Who do you believe?"

17

Although not directly mentioned in Franco's brief, the prosecutor also concluded the
rebuttal this way: "[T.W.K.] is simply more credible. That is what the evidence shows.
And I ask you to convict the defendant of both offenses."

Franco submits the prosecutor's suggestion that the jurors find T.W.K. more
credible than he diminishes the requirement that the State prove the elements of the
offense beyond a reasonable doubt. We disagree.

The appellate courts use a well-established framework to assess allegations of
improper closing argument in criminal cases. This court recapitulated the standard of
review to be applied on this issue:

"Appellate review of alleged prosecutorial error in argument to a jury entails a
two-step analysis. First, the appellate court must decide whether the comments fall
outside the wide latitude afforded a prosecutor in discussing the evidence and the law.
Second, if the prosecutor has exceeded those bounds, the appellate court must determine
whether the improper comments constitute plain error; that is, whether the statements
prejudiced the jury to the extent the defendant was denied a fair trial. State v.
McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see
State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009) (noting considerable range
permitted advocates, including prosecutor, in arguing their causes in jury summations)."
State v. Schreiner, 46 Kan. App. 2d 778, 793-94, 264 P.3d 1033 (2011), rev. denied 296
Kan. 1135 (2013).

An appellate court also must review "counsels' remarks in jury summations in light of the
overall thrust of the point being made rather than as isolated snippets removed from the
surrounding commentary—commentary that often lends material shading and depth to
what might otherwise appear to be of questionable propriety standing alone." Schreiner,
46 Kan. App. 2d at 793; see State v. Naputi, 293 Kan. 55, 59-60, 260 P.3d 86 (2011). If
the prosecutor makes an improper argument, an appellate court then deploys a three-part
test to assess the magnitude of the harm and possible relief for the defendant:
18


"'(1) whether the misconduct was gross and flagrant; (2) whether the misconduct
showed ill will on the prosecutor's part; and (3) 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. None of these three factors is individually controlling.
Moreover, the third factor may not override the first two factors unless the harmless
error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with
substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705,
87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if
any, likelihood of having changed the result of the trial], have been met.' [Citations
omitted.]" McReynolds, 288 Kan. at 323.

The Kansas Supreme Court recently reiterated the test in State v. Ochs, 297 Kan. 1094,
Syl. ¶¶ 1, 2, 306 P.3d 294 (2013).

In this case, the jurors faced a central task in determining whether T.W.K.
consented to engaging in anal intercourse with Franco. As a step in that process, they had
to decide which version of the encounter was more credible. If the jurors found Franco
more believable, they necessarily would acquit. That conclusion would establish
reasonable doubt. The prosecutor spent considerable time during argument parsing the
evidence to demonstrate why the jurors should not come to that conclusion and should,
rather, find T.W.K. to be more believable.

The prosecutor's argument was fair comment on how the jurors should examine
the evidence in assessing either T.W.K. or Franco more credible. The prosecutor did not
inappropriately argue that point, as by injecting a personal opinion on who was more
believable. See State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012). But the
prosecutor never told the jurors that simply finding T.W.K. more credible than Franco
was sufficient to convict.

19

Rather, as the district court properly instructed the jurors, they had to find each
defined element of the offense of aggravated criminal sodomy proven beyond a
reasonable doubt. Nothing suggests the jurors abdicated that responsibility. See State v.
Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010) ("Appellate courts presume that a jury
follow[s] the jury instructions."). Twice during closing argument, the prosecutor
specifically told the jurors the State bore the burden of proving beyond a reasonable
doubt the specific elements enumerated in the instruction on aggravated criminal sodomy.

In making their ultimate decision on a verdict, the jurors, of course, presumably
considered the testimony and other evidence they found credible. The jurors, however,
were not required to give the same weight or credit to each piece of physical evidence or
each portion of any witness' testimony. They were to assess all of the record evidence to
reach an ultimate conclusion on whether the State had proven the elements of the offense
beyond a reasonable doubt. See Hargrove, 48 Kan. App. 2d at 561-62.

The disputed argument from the prosecutor focused on how best to evaluate some
of that evidence and why that evidence favored T.W.K.'s version of the material
circumstances. The Kansas Supreme Court has found that sort of argument to be an
unobjectionable means of addressing witness credibility. See State v. Duong, 292 Kan.
824, 830-31, 257 P.3d 309 (2011). The argument did not dilute the ultimate burden of
proof placed on the State or mislead the jurors about it. The jurors were fully and
properly instructed on the burden. And the prosecutor correctly stated that burden in his
argument. We find no error in the prosecutor's challenged remarks and need not
undertake the second step of the process for gauging the prejudicial effect of an improper
argument.[2]

[2]Franco argues that even if the purported errors he has asserted did not
individually deprive him of a fair trial, their cumulative impact did, so his conviction
should be reversed on that basis. See McCaslin, 291 Kan. at 732. Where, as here, a
defendant has not shown error, there is nothing to aggregate to demonstrate prejudice, let
20

alone prejudice warranting a new trial. See State v. Foster, 290 Kan. 696, 726, 233 P.3d
265 (2010) ("A single error does not constitute cumulative error[, and] . . . the doctrine is
inapplicable."). We necessarily reject any claim of cumulative error.

Sentencing Considerations

Finally, Franco contends the district court improperly considered his criminal
history in imposing sentence. Franco argues that the district court's use of his past
convictions in determining an appropriate sentence impairs his constitutional rights
because the fact of those convictions was not determined beyond a reasonable doubt by
the jury. He principally relies on the United States Supreme Court's decision in Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), to support that
proposition. Franco also acknowledges the Kansas Supreme Court has rejected that
argument and has found the State's current sentencing regimen conforms to the Sixth and
Fourteenth Amendments to the United States Constitution with respect to the use of a
defendant's past convictions in determining a presumptive statutory punishment. See
State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009); State v. Ivory, 273 Kan.
44, 46-48, 41 P.3d 781 (2002). We, therefore, decline his invitation to rule otherwise,
especially in light of the Supreme Court's recent reaffirmation of Ivory. State v. Baker,
297 Kan. 482, 485, 301 P.3d 706 (2013).

Affirmed.