Salazar-Moreno v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,031

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CORNELIO SALAZAR-MORENO,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 27, 2017. Affirmed
in part and vacated in part.

Richard Ney, of Ney & Adams, of Wichita, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

Per Curiam: Cornelio Salazar-Moreno appeals the district court's denial of his
motion filed pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel.
Salazar-Moreno was convicted of rape, two counts of aggravated indecent liberties with a
child, and adultery. Prior to trial he retained private counsel. However, the attorney
Salazar-Moreno hired was later appointed in a federal case. Realizing that he would not
be able to handle both cases, the attorney introduced Salazar-Moreno to another attorney
who agreed to represent him both at trial and on direct appeal. After Salazar-Moreno was
convicted, an appeal was filed, and this court, in an unpublished opinion, affirmed
Salazar-Moreno's convictions.
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Salazar-Moreno subsequently filed his present K.S.A. 60-1507 motion, raising
multiple claims of ineffective assistance of trial counsel and one claim of ineffective
assistance of appellate counsel. After an evidentiary hearing, the district court found that
while the performance of both attorneys was deficient, Salazar-Moreno failed to show
prejudice. On appeal, Salazar-Moreno claims (1) the district court erred in failing to find
he was effectively denied the counsel of his choice; (2) Kerns and Battitori provided
ineffective assistance of counsel before and during his trial; and (3) he was prejudiced by
counsel's deficient performance, entitling him to a new trial.

While we find Salazar-Moreno's conviction and sentence for adultery was in error
and therefore vacate that conviction and sentence, we affirm the district court in all other
respects.

FACTUAL AND PROCEDURAL BACKGROUND

The charges in this case arise from incidents occurring in November and
December of 2007. The then 13-year-old victim, D.M.D., alleged that in the first incident
Salazar-Moreno fondled her breasts after taking her to a store to get something for a
school project. In the second incident, D.M.D. was at Salazar-Moreno's house when he
allegedly fondled her breasts and vagina while she checked her e-mail on a computer.
The third incident allegedly occurred on December 30, 2007, when Salazar-Moreno,
while on his lunch break, came to the house where D.M.D. was babysitting and had
sexual intercourse with her.

In early 2008, D.M.D. told one of her friends that she had lost her virginity to
Salazar-Moreno. In March 2008, another friend of D.M.D., who had learned about
D.M.D. and Salazar-Moreno, wrote D.M.D.'s mother a letter asking the mother to call
her. When D.M.D.'s mother received the letter she called the friend, who told her that
Salazar-Moreno had taken D.M.D.'s virginity. When D.M.D.'s mother and father asked
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her if what they had heard was true, D.M.D. began to cry and told them that Salazar-
Moreno had come to house where she was babysitting.

D.M.D.'s family filed a report with the Hutchinson Police Department, and a
police detective was assigned to investigate the case. As part of the investigation, D.M.D.
was interviewed at a child advocacy center and was examined by a local pediatrician, Dr.
Ellen Losew. Both D.M.D. and her mother provided written statements to police. The
police detective investigating the case determined the time and distance between the
warehouse where Salazar-Moreno worked and the house where D.M.D. had been
babysitting. He also visited the house to examine the scene of the alleged rape because
D.M.D. had reported that she bled and had to clean blood from the carpet. A forensic
scientist from the Kansas Bureau of Investigation (KBI) tested the carpet for signs of
blood. The police also obtained records from D.M.D.'s and Salazar-Moreno's cellphones.

Salazar-Moreno was initially charged in April 2008. In October 2010, the State
amended the complaint for the third and final time, charging Salazar-Moreno with one
count of rape, two counts of aggravated indecent liberties with a child, and one count of
adultery. Salazar-Moreno retained Tom Arnold to represent him at his first appearance.
At the preliminary hearing, however, in which Salazar-Morino was bound over, a public
defender represented him. Then, in July 2008, Salazar-Moreno retained Kurt Kerns to
represent him at trial. About a year later, the United States District Court appointed Kerns
to represent a defendant in a federal case. Realizing that his involvement in the federal
case would prevent him from adequately representing Salazar-Moreno, Kerns met with
Salazar-Moreno and recommended that Eddie Battitori be brought on board to assist in
his defense. Salazar-Moreno agreed to the arrangement, and over the next several
months, Battitori represented him at several pretrial hearings and filed several pretrial
motions.

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More than 2 years after he was initially charged, Salazar-Moreno's jury trial began
in January 2011. The trial was conducted over 4 days, with the State and Salazar-Moreno
calling several witnesses to testify. Dr. Losew testified that she noticed D.M.D. had a
well-healed cleft or angulation of her hymen which extended to the vaginal wall. She also
testified that while she could not say exactly what caused the injury, in her opinion
D.M.D.'s report was consistent with the examination's findings and was suspicious for
child sexual abuse. D.M.D. also testified about the three incidents and briefly mentioned
on direct examination that she was scared of Salazar-Moreno. On cross-examination,
Battitori asked D.M.D. why she was afraid of Salazar-Moreno, and D.M.D. replied that
she had heard of talk about him beating up someone from work and buying guns.
Battitori asked D.M.D. if she thought Salazar-Moreno was going to shoot her or beat her
up, and D.M.D. replied that she did not know. D.M.D. also testified that Salazar-Moreno
had never been mean to her in any way and that he had never threatened her in any way.

D.M.D.'s mother, father, and aunt each testified that after the police report had
been filed, Salazar-Moreno's wife, Dawn, called D.M.D.'s mother to ask how D.M.D. was
doing. D.M.D.'s mother put the phone on speaker so that everyone—including D.M.D.—
could hear what Dawn had to say. Dawn said that Salazar-Moreno admitted to her that he
had sex with D.M.D. The State also called Dawn as a witness. When asked about her
conversation with D.M.D.'s mother, Dawn testified that Salazar-Moreno denied having
sex with D.M.D. On cross-examination, Battitori asked Dawn if she was aware that
D.M.D.'s mother, father, and aunt all testified that she told D.M.D.'s mother that Salazar-
Moreno admitted to having sex with D.M.D. and whether she would agree with such
testimony. Dawn testified that she would disagree and clarified that she had never said
anything like that.

Other than Dr. Losew's testimony, there was very little physical evidence
presented. Salazar-Moreno called the KBI forensic scientist as a witness, who testified no
traces of blood were found on the carpet where D.M.D. testified she had bled. The phone
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records of Salazar-Moreno and D.M.D. were also introduced into evidence, which
showed that D.M.D. and Salazar-Moreno had called each other 145 times and talked for
more than 1,600 minutes in December 2007.

Ultimately, the jury found Salazar-Moreno guilty on all counts. Battitori filed
several posttrial motions on Salazar-Moreno's behalf, including a motion for dispositional
and downward durational departure. Each of Battitori's motions was denied. The district
court sentenced Salazar-Moreno to three concurrent life sentences and a concurrent 30-
day jail sentence. Battitori filed a notice of appeal for Salazar-Moreno and was later
retained to handle his direct appeal. On appeal, Salazar-Moreno raised issues regarding
Dr. Losew's testimony and the district court's failure to grant a mistrial. State v. Salazar-
Moreno, No. 106,555, 2013 WL 5925894, at *2-11 (Kan. App. 2013) (unpublished
opinion). This court refused to consider the testimonial issue due to the lack of a
contemporaneous objection and found that the district court had not abused its discretion
in denying any of Salazar-Moreno's motions for mistrial. 2013 WL 5925894, at *4, 11.
Battitori did not file a petition for review with the Kansas Supreme Court, and the
mandate was filed with the district court on December 10, 2013.

In October 2014, Salazar-Moreno filed his present K.S.A. 60-1507 motion,
alleging the same errors that he raises on appeal in addition to a claim that Battitori
provided ineffective assistance of appellate counsel. The district court held an evidentiary
hearing at which Kerns, Battitori, Dawn, and Salazar-Moreno testified. Kerns testified he
had met with Salazar-Moreno at least five times, probably more, but he had not kept any
records of those meetings. Besides meeting about taking over the case and at court
appearances, Battitori could only recall one meeting between Salazar-Moreno and him.
Battitori testified that he could not recall how many substantive meetings about the case
he had with Salazar-Moreno but he knew it was not none. He also testified that Salazar-
Moreno never complained about Kerns not representing him at trial.

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Salazar-Moreno testified at the hearing that Kerns had told him two attorneys were
better than one. He also said that a few days before trial he called to confirm that Kerns
was ready for trial. Kerns said that he was not ready and that he was leaving the country
that night, but he also mentioned that Battitori was ready for trial. On the first day of trial,
Salazar-Moreno asked Battitori where Kerns was, and Battitori said that Kerns was out of
the country. Salazar-Moreno admitted he did not tell the district court that he wanted
Kerns present at trial, claiming that he assumed it was the district court's job to notice that
one of his attorneys was not there and did not know he was supposed to say anything.

Dawn testified that she realized Kerns was not going to be involved in the case
when Battitori showed up to one of the hearings by himself. She also said that neither
Kerns nor Battitori interviewed her about what she knew. When asked if she knew that
D.M.D. had claimed there had been an incident of inappropriate sexual contact when
Salazar-Moreno had taken D.M.D. to the store, Dawn responded that she was aware of
that and had been before trial but that Battitori had not asked her about it. She testified
that, if he had asked, she would have told Battitori that her daughter was with Salazar-
Moreno and D.M.D. that day.

Following the hearing, the district court issued a written order with its findings of
fact and conclusions of law. The district court determined that while the performance of
both Kerns and Battitori was deficient, Salazar-Moreno had failed to establish prejudice.
Specifically, the district court concluded: "The victim was composed and articulate as
she described each of the incidents. Her testimony was corroborated by the testimony of
her mother, her physician, and petitioner's cellphone records." As for the claim of
ineffective assistance of appellate counsel, the district court found that Salazar-Moreno
had been prejudiced by Battitori's deficient performance and granted him a new direct
appeal.

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After the district court issued its order, Salazar-Moreno filed a motion to alter or
amend the judgment. Salazar-Moreno argued the district court had erred in by applying
the wrong standard to his first two claims of ineffective assistance of counsel. According
to Salazar-Moreno, the district court should have presumed prejudice due to Kerns' and
Battitori's deficient performance. The district court held a brief hearing on the motion and
ultimately denied it, later issuing a written journal entry reiterating that both Kerns and
Battitori performed deficiently regarding each claim but that the presumption of prejudice
did not apply. The district court again found that Salazar-Moreno had failed to establish
he had been prejudiced by Kerns' and Battitori's deficient performance. The district court
also reaffirmed its finding that Battitori had provided ineffective assistance as appellate
counsel and reaffirmed its decision to grant Salazar-Moreno a new direct appeal.

Salazar-Moreno timely appeals.

DID THE DISTRICT COURT ERR IN FAILING TO FIND
SALAZAR-MORENO WAS DENIED HIS COUNSEL OF CHOICE?

If the district court conducts a full evidentiary hearing to consider the claims
alleged in a K.S.A. 60-1507 motion, it must issue findings of fact and conclusions of law.
Supreme Court Rule 183(j) (2015 Kan. Ct. R. Annot. 271). We review the district court's
findings of fact to determine whether they are supported by substantial competent
evidence and whether they are sufficient to support the district court's conclusions of law.
State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). The district court's conclusions
of law are reviewed de novo. Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089
(2011).

Salazar-Moreno's first complaint is that he was denied right to counsel of his
choice under the Sixth Amendment to the United States Constitution when his retained
attorney, Kerns, failed to represent him during the trial and the district court failed to
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secure a knowing and voluntary waiver of his constitutional right to counsel of his
choice. Alternatively, he argues Kerns was ineffective and that counsel's ineffectiveness
prejudiced him.

The Kansas Supreme Court has found that the United States Supreme Court
recognizes three categories of ineffective assistance of counsel claims. Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).

"The first category includes cases in which it is claimed that the attorney's performance
was so deficient that the defendant was denied a fair trial. The second category applies
when the assistance of counsel was denied entirely or denied at a critical stage of the
proceeding. The third category includes situations where the defendant's attorney
'actively represented conflicting interests.'" State v. Galaviz, 296 Kan. 168, 181, 291 P.3d
62 (2012) (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d
291, reh. denied 535 U.S. 1074 [2002]).

Only the first two categories apply to this case. Deficient performance claims in
the first category are controlled by Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984). Sola-Morales, 300 Kan. at
882; see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting
Strickland). To prevail on this type of claim, the movant must show that (1) under the
totality of the circumstances defense counsel's performance was deficient and (2) the
deficient performance resulted in prejudice, meaning there is a reasonable probability that
the jury verdict would have been different had defense counsel's performance not been
deficient. See Strickland, 466 U.S. at 687; Bledsoe v. State, 283 Kan. 81, 90-91, 150 P.3d
868 (2007). A reasonable probability is one sufficient to undermine confidence in the
outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).

Claims that fall into the second category involve an exception to the Strickland
standard pronounced by the United States Supreme Court in United States v. Cronic, 466
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U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Sola-Morales, 300 Kan. at
883. This exception applies when the movant was completely denied the assistance of
counsel or was denied counsel "'at a critical stage of a proceeding.'" Galaviz, 296 Kan. at
181. In such instances, the movant is not required to show that the lack of counsel
affected the trial's outcome, and the court may presume the movant was prejudiced. 296
Kan. at 181; see State v. Stovall, 298 Kan. 362, 375, 312 P.3d 1271 (2013).

A. Was Salazar-Moreno denied counsel of his choice?

Salazar-Moreno cites three cases to support his argument that he was denied the
counsel of his choice: United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S. Ct. 2557,
165 L. Ed. 2d 409 (2006); United States v. Russell, 205 F.3d 768 (5th Cir. 2000); and
Green v. Arn, 809 F.2d 1257 (6th Cir.), cert. granted; judgment vacated and remanded on
other grounds, 484 U.S. 806 (1987). In Gonzales-Lopez, 548 U.S. at 150, the Supreme
Court granted a new trial because the defendant was denied counsel of his choice by the
district court when it disqualified the attorney hired by the defendant. The Court
distinguished between a defendant's right to counsel of his or her choice and the
defendant's right to effective counsel.

"[A] violation of the Sixth Amendment right to effective representation is not 'complete'
until the defendant is prejudiced. [Citation omitted.]

The right to select counsel of one's choice, by contrast, has never been derived
from the Sixth Amendment's purpose of ensuring a fair trial. . . . Where the right to be
assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary to
conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.
Deprivation of the right is 'complete' when the defendant is erroneously prevented from
being represented by the lawyer he wants, regardless of the quality of the representation
he received. To argue otherwise is to confuse the right to counsel of choice—which is the
right to a particular lawyer regardless of comparative effectiveness—with the right to
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effective counsel—which imposes a baseline requirement of competence on whatever
lawyer is chosen or appointed." 548 U.S. at 147-48.

In Russell, the district court did not continue the trial despite the fact that the
defendant's counsel had fallen ill and was taken to the hospital. Although the
codefendant's counsel indicated he would "sit in" for the defendant's lawyer and the State
was restricted to calling witnesses only impacting the codefendant, the Fifth Circuit Court
of Appeals concluded that the evidence which was introduced did implicate the defendant
and the district court was obligated to inquire of the defendant and explain his or her right
to counsel, ensuring that any waiver was knowing and voluntary. 205 F.3d at 769-71. The
Fifth Circuit ordered a new trial, holding that the defendant was denied his right to
counsel of his choice during a critical stage of the proceedings. 205 F.3d at 772.

In Green, counsel was attending a jury sentencing hearing in another courtroom on
behalf of a different client while counsel for the two codefendants continued the cross-
examination of a witness. The Sixth Circuit Court of Appeals held that the defendant was
entitled to a new trial because he was denied the counsel of his choice during one
afternoon of the trial—a critical stage of the proceedings. 809 F.2d at 1263-64.

All three of the cases cited can be easily distinguished from the present case as the
defendants in those cases were completely denied counsel during a critical stage of the
proceedings. Here, Salazar-Moreno was neither completely denied counsel nor denied the
counsel of his choice during a critical stage of the proceedings. The record shows that
Kerns brought in Battitori as co-counsel to represent Salazar-Moreno when Kerns was
appointed by the federal court to represent another defendant. During all critical stages of
the proceedings subsequent to this, Battitori represented Salazar-Moreno, and not once
did Salazar-Moreno complain about Kerns not being present. See Wheat v. United States,
486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). Moreover, as the district
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court noted, Kerns' failure to appear at trial was between him and Salazar-Moreno;
therefore, Salazar-Moreno was not denied the counsel of his choice.

B. Was Salazar-Moreno prejudiced by counsel's deficient performance?

To support his argument that he was prejudiced by counsel's deficient
performance, Salazar-Moreno relies upon Gonzalez-Lopez, 548 U.S. at 146, where the
Court held that the deprivation of the Sixth Amendment right to counsel of choice is not
susceptible to harmless error analysis. But as we have already noted, the United States
Supreme Court has distinguished a defendant's right to counsel of his or her choice from
the defendant's right to effective counsel, holding that a violation of the latter was not
complete until the defendant had been prejudiced, while a violation of the former was
complete "when the defendant is erroneously prevented from being represented by the
lawyer he wants, regardless of the quality of the representation he received." 548 U.S. at
148. Because he is claiming that Kerns was ineffective by failing to represent him at trial,
Salazar-Moreno must show prejudice as required by Strickland. Thus, the district court
correctly concluded that a presumption of prejudice did not apply. We also note that the
district court's finding of Kerns' deficient performance is not before us because the State
has not cross-appealed that finding. See K.S.A. 2015 Supp. 60-2103(h) (to obtain
appellate review, appellee must file notice of cross-appeal); State v. Novotny, 297 Kan.
1174, 1181, 307 P.3d 1278 (2013) (same); Cooke v. Gillespie, 285 Kan. 748, 754-55, 176
P.3d 144 (2008) (same).

Salazar-Moreno also cites to State v. McFadden, 292 N.C. 609, 615, 234 S.E.2d
742 (1977), in support of his position that he was prejudiced by Kerns' deficient
performance. In McFadden, the defendant hired counsel to represent him. Prior to trial,
defense counsel had exclusively handled the preliminary hearings and trial preparations.
When it came time for trial, defense counsel was in trial in federal court and had his
junior associate appear in his place. The junior associate asked the trial court for a
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continuance, admitting that he knew nothing about the case and that defense counsel was
the only one prepared for trial. The trial court denied the motion for a continuance, and
the jury found the defendant guilty. On appeal, the North Carolina Supreme Court found
that the defendant had been denied the counsel of his choice, noting that the junior
associate had met with the defendant only briefly, had been practicing law for only 18
months, had tried only one jury trial, and knew nothing about the case. 292 N.C. at 615-
16.

McFadden is unhelpful to Salazar-Moreno because it is distinguishable on its facts
and because it predates Strickland. The North Carolina Supreme Court held that the trial
court had denied the defendant the counsel of his choice by refusing a continuance
because retained counsel for the defendant assigned an inexperienced associate, who was
unprepared for trial, at the last minute to try the case. The defendant indicated to the
associate that he wished his retained counsel to represent him during the trial, but the trial
court denied the continuance despite the associate's explanation that he was unprepared
for trial. The North Carolina Supreme Court also did not apply the two-prong Strickland
standard and did not make a specific prejudice finding, although it likely considered the
prejudicial effect of the junior associate's unpreparedness.

In the case before us there is no evidence that Salazar-Moreno objected to
Battitori's representation. Even though the district court found Battitori's performance
deficient in certain aspects, the record also shows that he had been a practicing criminal
defense lawyer for many years and had recently won a Jessica's Law jury trial. Battitori
spent almost 1 1/2 years working on Salazar-Moreno's case after entering his appearance
on August 25, 2009. He filed motions for continuances, as well as several pretrial and
posttrial motions on Salazar-Moreno's behalf, and he was the only attorney prepared for
trial. So, unlike in McFadden, Kerns' absence at trial did not prejudice Salazar-Moreno
and did not constitute ineffective assistance of counsel.

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DID KERNS AND BATTITORI PROVIDE INEFFECTIVE ASSISTANCE OF COUNSEL
BEFORE AND DURING TRIAL?

A. Did Kerns and Battitori provide ineffective assistance of counsel prior to trial?

Salazar-Moreno also claims that his right to effective assistance of counsel was
violated by Kerns' and Battitori's failure to consult with him before trial. Specifically,
Salazar-Moreno argues that the time before trial is a critical stage of the proceedings;
Kerns' and Battitori's failure to consult with him during this time constructively denied
him counsel during a critical stage; and, as a result, prejudice must be presumed under
Cronic. Salazar-Moreno reprises the arguments he made before the district court.

At the evidentiary hearing before the district court, Kerns testified he had met with
Salazar-Moreno at least five times, probably more, but that he did not keep any records of
these meetings. Other than when he met with Salazar-Moreno about taking over the case
and meeting at court appearances, Battitori recalled only one meeting between him and
Salazar-Moreno. Battitori testified he could not recall how many substantive meetings
about the case he had with Salazar-Moreno, but he knew it was not none. Salazar-
Moreno, on the other hand, testified he met with Kerns only once for less than 10 minutes
and that they did not discuss the substance of the case. He further testified that the
meeting about Battitori taking over the case was 15 to 20 minutes long but that they did
not discuss anything substantive. According to Salazar-Moreno, when Battitori asked to
meet about a discovery issue, it had been almost a year since Salazar-Moreno had met
with either attorney. Salazar-Moreno testified that the case was not discussed at that
meeting, he never spoke to Battitori about the case, and his meeting with the attorneys
lasted only 5 to 10 minutes with no discussion of the details of the case.

Based on that testimony, the district court initially found that Battitori had spent
little time preparing for the case and that the performance of both attorneys was deficient.
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Nevertheless, the district court concluded that Kerns' and Battitori's deficient
performance did not prejudice Salazar-Moreno. After the district court issued its order,
Salazar-Moreno filed a motion to alter or amend, arguing in part that the district court
should have applied the Cronic standard. At a hearing on the motion, the district court
clarified that Battitori's lack of preparation did not amount to ineffective assistance of
counsel and stated that it believed it had adequately addressed all of the issues. In the
journal entry issued after the hearing, the district court incorporated by reference its
previous order and further found that while Salazar-Moreno "did not receive the effective
assistance of honest, loyal, genuine and faithful representation at the pretrial stage by
either Kerns or Battitori," Salazar-Moreno had not satisfied the prejudice prong of
Strickland. The district court concluded the presumption of prejudice in Cronic did not
apply.

In finding that Strickland rather than Cronic controlled, the district court implicitly
found that Salazar-Moreno was not completely denied the assistance of counsel at a
critical stage of the proceedings. See Galaviz, 296 Kan. at 181. Similarly, the district
court also implicitly found that while Kerns' and Battitori's performance was deficient for
failing to consult with Salazar-Moreno, it was not so deficient as to have constructively
denied him the assistance of counsel.

In support of his argument that Kerns' and Battitori's failure to consult constitutes
a complete denial of counsel, Salazar-Moreno relies solely on Mitchell v. Mason, 325
F.3d 732 (6th Cir. 2003). There, defense counsel was appointed and represented the
defendant at the preliminary hearing and at a conference before being suspended from
practicing law in the state. The day jury selection began for the defendant's trial, defense
counsel was reinstated. On appeal, the Sixth Circuit found that the pretrial period was a
critical stage of the proceedings to which the defendant had the right to assistance of
counsel. 325 F.3d at 742-44. The court held that because not only was defense counsel
suspended from practicing law in the 30 days preceding trial but also because defense
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counsel had consulted with the defendant for a total of only 6 minutes, spread out over 3
meetings during the 7 months leading up to trial, the defendant was constructively denied
counsel at a critical stage and the Cronic presumption of prejudice applied. 325 F.3d at
741-44, 747-48.

The actions of defense counsel in Mitchell, however, are distinguishable from
those of Salazar-Moreno's attorneys. First, neither Kerns nor Battitori was suspended for
any length of time before trial. Second, while the district court may have found that both
attorneys performed deficiently by failing to adequately consult with Salazar-Moreno
before trial, both attorneys did provide other services. Kerns negotiated a plea deal for
Salazar-Moreno, hired a private investigator, and obtained and reviewed discovery.
Battitori filed several pretrial motions on Salazar-Moreno's behalf and represented him at
a pretrial motion hearing. Third, unlike the defendant in Mitchell who made several
requests for new representation, Salazar-Moreno never asked for or sought a new
attorney. Based on these facts, Salazar-Moreno was not completely denied the assistance
of counsel during the pretrial stage, making Mitchell inapplicable. See Anderson v.
Berghuis, No. 1:10-CV-349, 2015 WL 566619, at *11-12 (W.D. Mich. 2015)
(unpublished opinion); Horn v. Lafler, No. 1:10-CV-680, 2014 WL 4983659, at *30-31
(W.D. Mich. 2014) (unpublished opinion).

Besides the factual distinctions between this case and those where a defendant's
counsel of choice was denied, the rationale behind the Cronic exception does not support
its application here. In Adams, 297 Kan. at 670-71, our Supreme Court stated:

"Errors evaluated under Cronic are rare, and most alleged deficiencies are
properly evaluated under Strickland rather than Cronic. See Florida v. Nixon, 543 U.S.
175, 189-90, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (noting that Cronic itself
illustrates 'just how infrequently' cases will fall into its exception). To fall under the
Cronic exception, counsel's abandonment of the defendant must be 'complete,' and
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counsel must fail 'entirely' to subject the State's case to meaningful adversarial testing.
[Citations omitted.]"

In this case, Kerns' and Battitori's failure to regularly consult with Salazar-
Moreno, which in the district court's view amounted to deficient performance, was not a
complete denial of or abandonment by counsel. Cronic's narrow exception was meant to
apply only in "circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified." 466 U.S. at 658. As the record
shows, that was not the case here.

Therefore, even though the district court found that Kerns' and Battitori's failure to
consult with Salazar-Moreno during the pretrial stage constituted deficient performance,
the district court's ultimate legal conclusion that Salazar-Moreno was not constructively
denied the assistance of counsel and that Cronic's presumption of prejudice did not apply
was correct. As a result, the district court properly applied Strickland's two-prong test.

As with the previous issue, because the State did not cross-appeal the district
court's finding that the performance of Kerns and Battitori was deficient, the only issue
before us is whether Salazar-Moreno was prejudiced by Kerns' and Battitori's deficient
performance. See K.S.A. 2015 Supp. 60-2103(h); Novotny, 297 Kan. at 1181; Cooke, 285
Kan. at 754-55. Because Salazar-Moreno's only argument regarding prejudice is that
prejudice must be presumed under Cronic—he does not otherwise argue that he was
prejudiced by Kerns' and Battitori's deficient performance—we remain unpersuaded.
Kerns and Battitori did not provide Salazar-Moreno with ineffective assistance of counsel
during the pretrial stage.

17
B. Did Battitori provide ineffective assistance of counsel during trial?

Salazar-Moreno next claims that several of Battitori's alleged errors before and
during trial constituted ineffective assistance of counsel. Those errors involved testimony
about the phone call between Dawn and the victim's mother, Dr. Losew's testimony, the
victim's testimony, and Battitori's failure to investigate. Salazar-Moreno separates these
claims into four separate issues on appeal, but they are really four subissues of the main
issue—whether Battitori provided ineffective assistance of trial counsel. Like before,
because the State has not cross-appealed the district court's finding that Battitori's
performance was deficient, the only issue before us is whether Salazar-Moreno was
prejudiced by Battitori's deficient performance. See K.S.A. 2015 Supp. 60-2103(h);
Novotny, 297 Kan. at 1181; Cooke, 285 Kan. at 754-55.

1. Phone call testimony

Salazar-Moreno first argues that Battitori should have moved to dismiss the
adultery charge, claiming that it is a legal impossibility to be convicted of both rape and
adultery because lack of consent is an element of the former and consent is an element of
the latter. He also contends that even though the State was attempting to use the adultery
charge to breach the marital privilege, Battitori should have objected to the testimony
about the phone call between Dawn and the victim's mother on the grounds of both
privilege and hearsay.

As mentioned, the district court found that Battitori's failure to seek dismissal of
the adultery charge constituted deficient performance. Moreover, Salazar-Moreno was
clearly prejudiced by Battitori's deficient performance because simultaneous convictions
of rape and adultery is a legal impossibility. Salazar-Moreno notes that in State v. Platz,
214 Kan. 74, 77, 519 P.2d 1097 (1974), the Kansas Supreme Court held that while
adultery is a crime of consent, consent is a defense to rape and that proof of either crime
18
disproves the other. Therefore, Salazar-Moreno cannot be convicted of both rape and
adultery, and he was entitled to dismissal of the adultery charge. Accordingly, we find
Battitori's failure on this point rendered him ineffective, and we vacate Salazar-Moreno's
conviction and sentence for adultery.

The heart of this issue, however, is the marital privilege. A misdemeanor adultery
conviction is meager compared to a rape conviction. The State made it quite clear that
Salazar-Moreno was only charged with adultery so it could introduce evidence of the
phone call between Dawn and the victim's mother. On appeal, Salazar-Moreno argues
that Battitori should have objected to the testimony at trial on the basis that the marital
privilege described in K.S.A. 60-428 and K.S.A. 60-423(b) should have prevented
D.M.D.'s mother, father, and aunt from testifying that Dawn called the victim's mother
and told her that Salazar-Moreno had confessed to having sex with the victim. But the
marital privilege only prevents a spouse—in this case Dawn—from testifying about
confidential communications, not third-party witnesses. See State v. Schwerdt, No.
109,841, 2014 WL 4627487, at *11-12 (Kan. App. 2014) (unpublished opinion).

In Schwerdt, 2014 WL 4627487, at *11, a panel of this court noted that unlike
other privileges, the marital privilege does not prevent the disclosure of confidential
communication between spouses and "does not extend the privilege to all witnesses
having knowledge of the communication." Although the Schwerdt panel found that the
spouse did not directly release confidential communications that were obtained
inadvertently and unintentionally, the panel had already held that "the marital privilege
statute is not concerned with disclosure of marital communications absolutely, but only
with disclosures made by one spouse or the other." 2014 WL 4627487, at *11. Here, the
marital privilege is inapplicable because evidence of the phone call was introduced by the
testimony of the victim, her mother, her father, and her aunt. As a result, Salazar-Moreno
was not prejudiced by Battitori not objecting on the grounds of privilege.
19
The victim's testimony—and that of her mother, father, and aunt—dealt with
Dawn's statement that Salazar-Moreno said he had sex with the victim. This testimony
constituted impermissible hearsay. Hearsay is defined as "[e]vidence of a statement
which is made other than by a witness while testifying at the hearing, offered to prove the
truth of the matter stated[.]" K.S.A. 60-460. Their testimony was hearsay because it
concerned the out-of-court statement made by Dawn and was offered to prove the truth of
the matter asserted—that Salazar-Moreno admitted to the crime. While Dawn's statement
could have come in under an exception to the hearsay rule because Dawn was unavailable
to testify on the grounds she was prohibited from testifying about any confidential
communications between her and Salazar-Moreno under the marital privilege, see K.S.A.
60-428, her statement was inadmissible. See K.S.A. 2007 Supp. 60-460(a).

In light of the hearsay nature of the testimony, we must examine whether this
improperly admitted evidence created a reasonable probability that the jury would have
reached a different verdict had Battitori objected to the hearsay testimony. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bledsoe v.
State, 283 Kan. 81, 90-91, 150 P.3d 868 (2007). Although the marital privilege should
have prevented Dawn from testifying about confidential communications between her
and Salazar-Moreno, she testified about her phone call to D.M.D.'s mother anyway.
When the State asked Dawn about her phone conversation with D.M.D.'s mother, Dawn
testified she told her Salazar-Moreno denied having sex with D.M.D. On cross-
examination, Battitori asked Dawn whether she agreed with the testimony of D.M.D.'s
mother, father, and aunt that she told D.M.D.'s mother that Salazar-Moreno admitted to
having sex with D.M.D. Dawn testified she disagreed. Battitori clarified by asking Dawn
whether she had ever said anything like that, and she said no.

By testifying and denying that she told D.M.D.'s mother that Salazar-Moreno
admitted to having sex with D.M.D., Dawn mitigated any prejudicial effect such hearsay
testimony might have had. Her testimony turned the issue into a credibility contest as
20
none of the witnesses were objective and unbiased; they each testified in accordance with
their interests. As a result, it came down to who the jury believed. Because the fact of
whether Salazar-Moreno had admitted to having sex with D.M.D. was controverted
before the jury, it does not create a reasonable probability that the jury would have
reached a different verdict had Battitori objected. In other words, Salazar-Moreno was
not prejudiced by Battitori not objecting to the hearsay testimony.

2. Dr. Losew's testimony

Salazar-Moreno next argues that Battitori provided ineffective assistance of trial
counsel by failing to object to Dr. Losew's testimony. As mentioned, because the district
court found that Battitori's failure to object constituted deficient performance, the only
issue is whether there is a reasonable probability that the jury would have reached a
different verdict had Battitori objected to the doctor's testimony. See Strickland, 466 U.S.
at 687; Bledsoe, 283 Kan. at 90-91.

According to Salazar-Moreno, Dr. Losew's repeated testimony—that, in her
opinion, the injury to the victim's hymen was caused by sexual abuse based on what the
victim had told her—constituted improper opinion evidence that the victim was sexually
assaulted by Salazar-Moreno. In support of his argument, Salazar-Moreno cites State v.
Bressman, 236 Kan. 296, 303-04, 689 P.2d 901 (1984), where the Kansas Supreme Court
held that the doctor's testimony opining that the victim was raped by the defendant "was
clearly improper and prejudicial to the right of the defendant to a fair trial." See also State
v. Lash, 237 Kan. 384, 385, 699 P.2d 49 (1985) (expert's opinion "would require [the
expert] to pass upon the credibility of witnesses or the weight of disputed evidence").
Salazar-Moreno argues that Battitori's failure to object to Dr. Losew's improper testimony
prejudiced him because the victim's credibility was central to the case and the State used
the doctor's testimony to bolster the victim's testimony.

21
When the State asked Dr. Losew if she had an opinion about the injury to
D.M.D.'s hymen, the doctor replied that the victim's report was consistent with the
examination findings and was suspicious for child sexual abuse. On cross-examination,
the following exchange between Dr. Losew and Battitori occurred:

"Q. The part that says exam is suspicious for child sexual abuse, are you saying—by
you saying that that you meant to say that your findings are consistent with her
story?
"A. Her findings are consistent with her story.
"Q. That’s what you're saying that means.
"A. What that means is that her history is a good history, and the exam is suspicious
for child sexual abuse.
"Q. Not that it proves anything, correct?
"A. It does not prove anything.
"Q. And you weren't there?
"A. I was not there.
"Q. When this happened?
"A. When this happened."

By eliciting that testimony from Dr. Losew on cross-examination, Battitori likely
cured any improper bolstering of the victim's testimony by the doctor's opinion. Dr.
Losew clarified that her findings did not prove anything and that she was not there when
the injury occurred, implying she could not say exactly what caused the injury. She did
not comment on the victim's credibility but merely testified that her findings were
consistent with what D.M.D. had told her. Similarly, in State v. Humphrey, 30 Kan. App.
2d 16, 24, 36 P.3d 844 (2001), rev. denied 273 Kan. 1038 (2002), a nurse testified that
the victim's injuries were consistent with "'blunt force penetrating trauma'" and the
history given by the victim but that she could not say exactly what caused the victim's
injuries. This court, distinguishing Bressman, found the nurse's testimony admissible. 30
Kan. App. 2d at 24-26.

22
Further, in State v. Clements, 241 Kan. 77, 79-80, 734 P.2d 1096 (1987), the
Kansas Supreme Court distinguished Lash, noting that a doctor can testify that a patient's
injury is consistent with the facts reported without testifying that a particular crime was
committed against the patient or commenting on the patient's credibility, which allows
defense counsel to cross-examine the doctor about other causal circumstances that could
be consistent with the doctor's opinion. There, the court found that although a doctor's
testimony may corroborate some of a victim's testimony "inferentially," the testimony
was not an impermissible opinion on whether the victim was testifying truthfully. 241
Kan. at 80. In this case, as in Clements, Dr. Losew's testimony may have partially
corroborated the victim's testimony, but it was not evidence of the victim's credibility and
allowed Battitori to clarify on cross-examination that Dr. Losew did not know how the
victim's injury was caused.

Battitori's failure to object to Dr. Losew's testimony did not constitute ineffective
assistance of trial counsel.

3. The victim's testimony

Salazar-Moreno further argues that Battitori provided ineffective assistance of trial
counsel by eliciting bad acts evidence during his cross-examination of D.M.D. Again, the
only issue before us is whether there is a reasonable probability that the jury would have
reached a different verdict had Battitori not elicited such evidence. See K.S.A. 2015
Supp. 60-455; Strickland, 466 U.S. at 687; Bledsoe, 283 Kan. at 90-91.

Salazar-Moreno asserts that Battitori performed deficiently in his cross-
examination of D.M.D. by eliciting evidence that Salazar-Moreno was "a violent person
who bought guns and physically assaulted other people." While the testimony was brief,
Salazar-Moreno suggests that Battitori further erred by mentioning the testimony during
his closing argument. Salazar-Moreno argues that the testimony Battitori elicited from
23
D.M.D. "'could not have accomplished anything other than to create prejudice in the
minds of the jury'" by painting Salazar-Moreno as a violent person, quoting State v.
Dornbusch, 384 N.W.2d 682, 687 (S.D. 1986).

D.M.D. testified during the State's direct examination that she was scared of
Salazar-Moreno. During cross-examination, Battitori asked D.M.D. why she was afraid
of Salazar-Moreno. D.M.D. replied that Salazar-Moreno had mentioned beating up
someone at work. When Battitori asked her to clarify, D.M.D. said Salazar-Moreno told
her he beat up a guy at work and told her parents about guns he was buying. Battitori
asked D.M.D. if she thought Salazar-Moreno was going to shoot her or beat her up, and
D.M.D. replied she did not know. D.M.D. also testified, the recitation of which is omitted
from Salazar-Moreno's brief, that Salazar-Moreno had never been mean to her in any way
and that he had never threatened her in any way.

The most prejudicial aspect of D.M.D.'s testimony was likely her statement that
she was afraid of Salazar-Moreno. However, any prejudicial effect that her testimony
might have had was mitigated by Battitori's follow-up questions to which D.M.D.
testified that Salazar-Moreno had never been mean to her and had never threatened her.
Even Battitori's reference to D.M.D.'s testimony in his closing argument mitigated any
prejudicial effect because he reiterated that Salazar-Moreno had never threatened or been
mean to the victim. In short, D.M.D.'s vague and brief comments about Salazar-Moreno
beating someone up and buying guns likely had little effect on the outcome of this case.
Battitori's elicitation of bad acts evidence during the cross-examination of the victim did
not constitute ineffective assistance of trial counsel.

4. Battitori's failure to prepare

Salazar-Moreno finally argues that Battitori provided ineffective assistance of trial
counsel by failing to thoroughly investigate the case, interview witnesses, challenge the
24
jury array, and adequately prepare for trial. As with the other issues, because of the
district court's finding that Battitori's performance was deficient, the only remaining issue
is whether there is a reasonable probability that the jury would have reached a different
verdict had Battitori investigated, interviewed, challenged, and prepared. See Strickland,
466 U.S. at 687; Bledsoe, 283 Kan. at 90-91.

Salazar-Moreno alleges that Battitori's performance was deficient because he did
not timely challenge the venire and did not know how to select a jury representative of a
fair cross-section of the community pursuant to Taylor v. Louisiana, 419 U.S. 522, 538,
95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). He also contends that Battitori should have
interviewed Dawn before trial. According to Salazar-Moreno, he was prejudiced by
Battitori's deficient performance because counsel failed to obtain and put on evidence
impeaching the credibility of the victim, citing State v. Brooks, 297 Kan. 945, 305 P.3d
634 (2013), for support. Specifically, Battitori's failure to impeach the victim's credibility
with evidence readily available from Dawn and from Salazar-Moreno's daughter denied
Salazar-Moreno his fundamental right to confront the victim.

Although Salazar-Moreno mentions that Battitori failed to challenge the jury
array, Salazar-Moreno does not argue how he was prejudiced by Battitori's failure to do
so. The heading of the section of Salazar-Moreno's brief in which he argues prejudice
reads: "The Petitioner was prejudiced by Battitori's ineffective preparation." But
nowhere in that section does Salazar-Moreno raise any argument addressing how he was
prejudiced by Battitori's failure to challenge the jury array. Instead, in a conclusory last
sentence he simply states: "The district court's conclusion that the Petitioner did not
establish prejudice following Battitori's failure to challenge the array of jurors and
impeach [the victim] was erroneous." Salazar-Moreno, as the movant, has the burden of
establishing prejudice. See Bledsoe, 283 Kan. at 90. Further, issues not briefed are
deemed waived or abandoned. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065
(2016). As a result, the only issue is whether Salazar-Moreno was prejudiced by
25
Battitori's failure to obtain evidence that could have been used to impeach the victim's
credibility.

It appears that Salazar-Moreno's argument is centered on Battitori not being aware
that Salazar-Moreno's daughter went to the store with D.M.D. and Salazar-Moreno when
the first sexual contact occurred. Salazar-Moreno argues that Battitori could have been
aware of that information had he interviewed Dawn before trial and then could have used
that information to impeach D.M.D's credibility.

According to the transcript, D.M.D. made two trips to the store with Salazar-
Moreno; Salazar-Moreno's daughter came along on one of those trips. In D.M.D.'s
written statement admitted into evidence, she stated that there were indeed two trips. The
first trip was to Hobby Lobby, and Salazar-Moreno's daughter accompanied them. The
second trip was to Dillons, and Salazar-Moreno's daughter did not come along. It was
during the second trip—on the way home from Dillons—that Salazar-Moreno touched
the victim inappropriately. Battitori did not need to interview Dawn to learn this
information because he could have just read the transcript of the preliminary hearing. At
the evidentiary hearing, Dawn testified only that her daughter was with Salazar-Moreno
and D.M.D. that day. But D.M.D. explained in her statement and testimony that Salazar-
Moreno's daughter did not want to go on the second trip. Because Salazar-Moreno has
not shown that D.M.D.'s testimony would have been impeached had Battitori interviewed
Dawn, his failure to do so likely had little effect on the outcome of the case.

Also, Salazar-Moreno's reliance on Brooks is misplaced. In Brooks, the rape
victim testified during cross-examination that the defendant's penis was uncircumcised
and had a scar on the side. The defendant told defense counsel that he did not have a scar
on his penis, but defense counsel failed to obtain evidence to impeach the victim's
credibility. On review of this court's decision, the Kansas Supreme Court found that
defense counsel's failure to obtain impeachment evidence was prejudicial because the
26
victim's credibility was a critical component and the defendant was effectively denied the
opportunity to adequately cross-examine the victim. 297 Kan. at 953-54. Here, while the
victim's credibility was important to this case as well, the only impeachment evidence
that Salazar-Moreno claims Battitori could have obtained had he interviewed Dawn was
that their daughter was with the victim and Salazar-Moreno on the day the first
inappropriate sexual contact occurred. Based on D.M.D.'s testimony that Salazar-
Moreno's daughter was with them but did not go on the second trip to the store, the only
evidence that Salazar-Moreno claims Battitori would have discovered had he interviewed
Dawn would not have impeached D.M.D.'s credibility.

Battitori's failure to interview Dawn before trial did not constitute ineffective
assistance of counsel.

DID THE CUMULATIVE EFFECT OF KERNS' AND BATTITORI'S ERRORS
RESULT IN PREJUDICE TO SALAZAR-MORENO?

Salazar-Moreno's last claim is that the cumulative effect of Kerns' and Battitori's
deficient performance resulted in prejudice. Quoting Mullins v. State, 30 Kan. App. 2d
711, 718, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002), Salazar-Moreno argues that
the combined errors of his attorneys "'so undermined the proper functioning of the
adversary process that the trial cannot be relied on as having produced a just result.'"

In Mullins, the defendant raised two claims of ineffective assistance of counsel.
This court found that defense counsel was ineffective as to the first claim. 30 Kan. App.
2d at 718. On the second claim, while this court determined counsel was deficient, it also
found that the claim, standing on its own, did not prejudice the defendant but that it added
to the cumulative effect of the trial errors "due to the intertwining of the factual basis of
the two claims." 30 Kan. App. 2d at 718-19.

27
This case was largely a credibility contest between D.M.D. and Salazar-Moreno.
In finding that Salazar-Moreno was not prejudiced by his attorneys' errors, the district
noted that D.M.D. was "composed and articulate as she described each of the incidents"
of inappropriate sexual contact. The district court also determined that D.M.D.'s
testimony was corroborated by the testimony of others. Dr. Losew, for instance, testified
that while she could not exactly say how the injury to D.M.D.'s hymen occurred, it was
consistent with sexual abuse. The most damning evidence, however, which Salazar-
Moreno scarcely mentions, was the phone records. Those records showed that Salazar-
Moreno and D.M.D. had called each other 145 times and had talked for over 1,600
minutes in December 2007. That much communication between a grown man and a 13-
year-old girl to whom he is unrelated is strong circumstantial evidence of an
inappropriate relationship, and a "'conviction of even the gravest offense'" can be based
entirely on circumstantial evidence. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836
(2016) (quoting State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 [1990]).

While a defendant can be prejudiced by the cumulative effect of trial counsel's
errors, even if none of the errors individually would have affected the jury's verdict, there
was no prejudice here. The weight of the evidence presented, although partly
circumstantial, outweighed any prejudicial effect Kerns' and Battitori's deficient
performance may have had. In the language of the controlling standard, based on the
evidence presented, there is no reasonable probability that but for Kerns' and Battitori's
deficient performance the jury verdict would have been different. See Strickland, 466
U.S. at 687; Bledsoe, 283 Kan. at 90-91. The cumulative effect of Kerns' and Battitori's
errors did not prejudice Salazar-Moreno.

Accordingly, while we vacate Salazar-Moreno's conviction and sentence for
adultery, we affirm the remainder of the district court's judgment.

Affirmed in part and vacated in part.