State v. Cabrera-Sanchez

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NOT DESIGNATED FOR PUBLICATION

No. 112,588

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LUIS CABRERA-SANCHEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed January 15,
2016. Affirmed in part, reversed in part, and vacated in part.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., ATCHESON, J., and WALKER, S.J.

Per Curiam: A jury convicted Luis Cabrera-Sanchez of the rape of one of his
girlfriend's daughters and aggravated indecent liberties with a child with her other
daughter. In this direct appeal, Cabrera-Sanchez argues he should get a new trial for two
reasons. First, he complains the trial court erroneously admitted evidence of other
uncharged instances of Cabrera-Sanchez' sexual misconduct toward the girls. Second,
Cabrera-Sanchez complains the prosecutor improperly shifted the burden of proof to him
and referred to evidence not in the record during her closing argument. After carefully
examining the proceedings and the evidence, we find that Cabrera-Sanchez has failed to
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point to any possible errors that deprived him of a fair trial. See State v. Cruz, 297 Kan.
1048, 1075, 307 P.3d 199 (2013) ("As we have recognized for decades, '[a] defendant is
entitled to a fair trial but not a perfect one[.]'" [quoting State v. Bly, 215 Kan. 168, 178,
523 P.2d 397 (1974)]). We, therefore, affirm his convictions.

Although noted by neither party, the trial court improperly imposed lifetime
postrelease supervision on Cabrera-Sanchez. Because Cabrera-Sanchez had received an
off-grid indeterminate (concurrent hard 25) life sentence, he actually will be on parole
should he ever be released from prison. We fix this problem by vacating the order
imposing lifetime postrelease supervision.

FACTS

On March 21, 2013, A.R. (mother) "had a bad feeling" when she left for work
after her 7-year-old daughter, I.S., asked her not to go. This was the first time A.R. left
I.S. and her 8-year-old sister, J.S., alone in the care of her 26-year-old boyfriend Luis
Cabrera-Sanchez, who had lived with A.R., her son, and the girls for 3 months.

Three days later, A.R. was brushing I.S.'s hair when she asked her daughters
whether Cabrera-Sanchez had ever touched them in their private areas; both responded
that he had. A.R., who was sexually abused when she was 12, immediately reported the
girls' allegations to the police.

During the ensuing investigation, trained social workers separately interviewed the
girls about their sexual abuse allegations at the Sunflower House, a children's advocacy
center in Kansas City. During those videotaped interviews, the girls reported several
instances of inappropriate behaviors or touching by Cabrera-Sanchez. Specifically, J.S.
reported that Cabrera-Sanchez "'touched her everywhere'" with his hand on top of her
clothes while she was watching television in her bedroom and her mother was at work.
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Using an anatomical drawing, J.S. eventually narrowed the area he touched to her vagina.
I.S. similarly reported being touched by Cabrera-Sanchez. However, she said he touched
her with his hand on both the outside and inside of her vagina and also touched her
breast. I.S. also said Cabrera-Sanchez showed her his penis more than once. Each sister
said she saw Cabrera-Sanchez touch the other.

When questioned by the police, Cabrera-Sanchez denied the girls' allegations. He
later said he might have inadvertently touched their private parts when they were
wrestling or he was tickling them in A.R.'s presence.

The State charged Cabrera-Sanchez with the rape of I.S. and aggravated indecent
liberties with J.S., both off-grid felonies under Jessica's Law. The trial court continued
the initial trial date after granting the prosecutor's belated motion under K.S.A. 2014
Supp. 60-455 to admit as evidence the improper touching incidents the girls described but
which the State chose not to charge. We discuss that ruling further in our analysis of the
points on appeal.

The case eventually proceeded to a 3-day jury trial. In support of its case, the State
presented the testimony of A.R., the girls, the forensic interviewers, the investigating
officers, and others involved in the investigation. The jury also viewed the girls'
videotaped interviews and anatomical drawings. Cabrera-Sanchez testified in his own
defense, wholly denying that he ever touched the girls inappropriately or otherwise did
anything improper with them. Cabrera-Sanchez also presented the testimony of Dr.
Robert Barnett, a licensed clinical psychologist, who questioned whether the way the
girls were interviewed may have prompted false accusations of sexual misconduct.
Because evidence of more than one instance of digital penetration came in pursuant to the
State's K.S.A. 2014 Supp. 60-455 motion, the court instructed the jury that the rape
charge concerned an "incident on the sofa."

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The jury found Cabrera-Sanchez guilty as charged. Cabrera-Sanchez moved for a
new trial, in part based on the admission of the evidence of the uncharged rape of I.S. in
the bathtub. Following a hearing, the trial court denied that motion. The court then
sentenced Cabrera-Sanchez to concurrent presumptive life sentences under Jessica's Law
without the possibility of parole for 25 years. This is Cabrera-Sanchez' timely direct
appeal.

ANALYSIS

Admission of propensity evidence

In his first issue, Cabrera-Sanchez complains he was denied a fair trial as a result
of what he characterizes as the trial court's erroneous admission of evidence of his other
instances of sexual misconduct toward the girls. The State responds that the evidence was
properly admitted under K.S.A. 2014 Supp. 60-455(d).

In its K.S.A. 2014 Supp. 60-455 motion, the State sought permission to admit
several incidents of uncharged crimes or bad acts committed by Cabrera-Sanchez (the
other-bad-acts evidence). Specifically, the State asked to admit evidence that Cabrera-
Sanchez unnecessarily watched the girls while they bathed; he exposed his penis to I.S.
more than once; he touched I.S.'s breasts; and he also touched I.S. "on the inside of her
vagina" while she was bathing (the bathtub incident). I.S. apparently did not tell anyone
about the bathtub incident until after she was questioned about the touching incident on
the brown couch that led to the rape charge. After I.S. told A.R. about it and A.R. found a
pink discharge in I.S.'s underwear, A.R. took I.S. to Children's Mercy Hospital for a
sexual assault examination. The State, however, apparently did not learn about the
bathtub incident until just before trial.

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K.S.A. 2014 Supp. 60-455(d) exclusively governs the admission of prior-bad-act
evidence in sex crime prosecutions and does not include limitations on the purpose for
which propensity evidence otherwise can be considered, as provided in subsection (b).
Rather, K.S.A. 2014 Supp. 60-455(d) broadly "permits evidence of other acts or offenses
of sexual misconduct to be admitted in such a prosecution 'for its bearing on any matter
to which it is relevant and probative.'" State v. Prine, 297 Kan. 460, 475, 303 P.3d 662
(2013) (quoting K.S.A. 2009 Supp. 60-455[d]). As our Supreme Court has recognized in
applying K.S.A. 2014 Supp. 60-455(d):

"In sex offense cases, propensity evidence is material, i.e., has a 'legitimate and
effective bearing' on defendants' guilt. See [State v.] Remmert, 298 Kan. [621,] 627-28[,
316 P.3d 154 (2014)] (prior diversion for sex crime against young girl relevant to guilt in
prosecution for sex crime against young boy); see also [State v.] Spear, 297 Kan. [780,]
789[, 304 P.3d 1246 (2013)] (victim's prior molestation allegations against defendant
would have been admissible propensity evidence in later prosecution for aggravated
indecent liberties involving same victim); Prine, 297 Kan. at 480 (defendant's prior
sexual abuse of daughter and younger sister admissible propensity evidence in
prosecution for sexual abuse against friend's daughter)." State v. Bowen, 299 Kan. 339,
349, 323 P.3d 853 (2014).

In short, in a prosecution for a sex offense, K.S.A. 2014 Supp. 60-455(d) generally
would permit the State to admit other instances of the defendant's sexual misconduct as
bearing on propensity in addition to other grounds on which it might be relevant. That is
an exceptionally wide berth. Nonetheless, the Kansas Supreme Court has suggested that
evidence otherwise admissible under K.S.A. 2014 Supp. 60-455(d) should be excluded if
its probative value is substantially outweighed by its impermissibly prejudicial effect. See
Bowen, 299 Kan. at 349-50; Prine, 297 Kan. at 478. The district court's balancing of
probative value with undue prejudice entails an exercise of judicial discretion and is
reviewed on appeal for abuse of that discretion. See State v. Lowrance, 298 Kan. 274,
291, 312 P.3d 328 (2013) (appellate court reviews trial court's weighing of probative
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value and prejudice for abuse of discretion). A judicial action constitutes an abuse of
discretion if the action: (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error
of law; or (3) is based on an error of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253
(2014).

The Kansas Supreme Court has cited with approval several factors for balancing
the probative value of propensity evidence in sexual abuse cases against its potential for
unfair prejudice, including:

"'1) how clearly the prior act has been proved; 2) how probative the evidence is of the
material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4)
whether the government can avail itself of any less prejudicial evidence. When analyzing
the probative dangers, a court considers: 1) how likely it is such evidence will contribute
to an improperly-based jury verdict; 2) the extent to which such evidence will distract the
jury from the central issues of the trial; and 3) how time consuming it will be to prove the
prior conduct. [Citations omitted].' United States v. Benally, 500 F.3d 1085, 1090-91
(10th Cir. 2007) (cited with approval in Prine, 297 Kan. at 478)." Bowen, 299 Kan. at
350.

This case presents a potentially challenging application of those criteria. The 60-
455(d) evidence derives from the same course of conduct between the defendant and the
victims as the charged offenses. And the 60-455(d) evidence is no more clearly or in any
way independently proved apart from the offenses. That is, both the 60-455(d) evidence
and the crimes essentially depend on a credibility determination pitting the victims
against the defendant with little else materially corroborating either version. Rather than
plumb the ramifications of that evidentiary puzzle, we take an easy way out and simply
assume without deciding that the undue prejudice of the 60-455(d) evidence outweighed
its probative value in this circumstance.

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Our assumption, however, affords Cabrera-Sanchez no relief in and of itself. He
must still demonstrate the assumed error caused sufficient prejudice to deprive him of a
fair trial. See State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013). In other words,
harmless errors can and will be excused. See K.S.A. 2014 Supp. 60-261.

Cabrera-Sanchez frames his argument regarding error by suggesting the jurors
may have been disposed to convict him because the State declined to file additional
charges against him. We find his position unpersuasive. He first characterizes the
evidence against him as "far from overwhelming." In doing so, he briefly recounts the
evidence in a light most favorable to him, highlighting in particular the lack of evidence
of physical injury to the girls and his expert's discussion of the high risk of suggestion
and expectation bias in their interviews at Sunflower House. Cabrera-Sanchez then
proclaims the evidence of the "uncharged touching in the bathtub was not materially
different from evidence supporting the charged offenses," which he says "encouraged the
jury to conclude [he] was receiving some type of leniency from the State."

Ultimately, as we have indicated, the case came down to a credibility
determination. The jurors saw the victims and Cabrera-Sanchez as they testified both on
direct and cross-examination. As this court has said:

"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. 1204 (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
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determinations." State v. Franco, 49 Kan. App. 2d 924, 936-37, 319 P.3d 551 (2014), rev.
denied 301 Kan. ___ (April 29, 2015).

The jurors' evaluation of the comparative credibility of the victims and Cabrera-Sanchez
drove the verdict in this case—not an unsubstantiated theory that those jurors somehow
thought Cabrera-Sanchez should have faced more charges or harsher punishment so they
simply convicted him of everything the Stated had charged. Cabrera-Sanchez does not
argue the 60-455(d) evidence skewed the jurors' credibility determination. His argument
rests on an implicit premise the jurors convicted him of those crimes not only because
they thought he was guilty of them but also because they thought he was guilty of
additional crimes against these victims that had not been charged. We fail to see
prejudicial error lurking there. Moreover, the district court instructed the jurors that their
only concern should be determining whether Cabrera-Sanchez was guilty or not guilty
and that they should not otherwise consider the disposition of the case. See PIK Crim. 4th
50.090. The instruction undercuts the premise of Cabrera-Sanchez' argument, and we
presume jurors follow the district court's instructions absent a clear indications to the
contrary. State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). Nothing—clear or
otherwise—suggests the jurors disregarded that instruction.

We find Cabrera-Sanchez has failed to show any prejudicial error stemming from
the admission of the K.S.A. 2014 Supp. 60-455(d) evidence. We, therefore, reject the
point.

The limiting instruction

In a related argument, Cabrera-Sanchez takes issue with the limiting instruction
given to the jurors regarding the 60-455(d) evidence. That instruction read simply:
"Evidence has been admitted tending to prove that the defendant committed crimes other
than the present crime charged. This evidence may be considered solely for any relevant
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purpose." Tying back to the discussion above, Cabrera-Sanchez complains this
instruction was erroneous because it broadly permitted the jurors to determine for what
purpose this evidence was relevant rather than limiting them to considering the evidence
to prove motive or lack of mistake or accident—the two purposes for which the district
court expressly found the evidence relevant. According to Cabrera-Sanchez, because the
court instructed the jurors that they could consider the other-bad-acts evidence to support
any inference they found "relevant," they "could easily have concluded that [he] was
given a free pass for committing a number of uncharged crimes and should be convicted
of the charged offenses regardless of the strength of the State's case." This is same
argument Cabrera-Sanchez offered to show the 60-455(d) evidence to be prejudicial.

Apart from the deficiency of that argument in establishing prejudice, Cabrera-
Sanchez has a more basic problem on this score. He asked the district court to give this
instruction: "Evidence has been admitted alleging other instances of misconduct that
were not charged, such as an incident in the bathtub, the touching of a child's breast and
indecent exposure. This evidence may only be considered for its bearing on any matter to
which it is relevant and probative." (Emphasis added.) On appeal, Cabrera-Sanchez
complains about that part of the district court's instruction corresponding to the last
sentence of his proffered instruction. Although the two instructions are worded slightly
differently in that respect, they both convey the same direction to the jury. So Cabrera-
Sanchez is now effectively taking issue with what he asked the district court to do and
trying to turn the district court's comparable instruction into reversible error.

That was an invited error foreclosing appellate review. See State v. Jones, 295
Kan. 804, 811-12, 286 P.3d 562 (2012) (appellate court need not consider whether the
giving of or failure to give a jury instruction was clearly erroneous where the defendant
invites the error by requesting the instruction); State v. Bailey, 292 Kan. 449, 459, 255
P.3d 19 (2011) ("When defendant's requested instruction is given to the jury, the
defendant cannot complain the requested instruction was error on appeal."); see also State
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v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982) ("Where a party procures a court to
proceed in a particular way and invites a particular ruling, he is precluded from assailing
such proceeding and ruling on appellate review.").

Even if the invited error rule were inapplicable, we find no material error in giving
a limiting instruction permitting the jurors to consider evidence under K.S.A. 2014 Supp.
60-455(d) for any relevant purpose. Although the instruction may not have been
especially helpful to the jurors, Cabrera-Sanchez was not entitled to a limiting instruction
with regard to the other-bad-acts evidence in a prosecution for the sex offenses outlined
in K.S.A. 2014 Supp. 60-455(d). As our Supreme Court explained in Prine, the
"judicially created safeguard" of a limiting instruction where propensity evidence is
admitted became obsolete in cases such as this because

"[i]n a sex crime prosecution governed by new subsection (d) [of K.S.A. 2009 Supp. 60-
455], there remains no reason to tell jurors to ignore the bearing prior sexual misconduct
may have on the defendant's propensity to commit the charged crime or crimes. If other
sex crimes or civil wrongs are relevant, i.e., material and probative of propensity, the jury
may consider them for that." 297 Kan. at 479.

This is all that the court told the jurors in the limiting instruction that it gave them.
Accordingly, even if we were to find error, it would be harmless.

We hold that Cabrera-Sanchez is not entitled to the new trial he seeks as a result of
the admission of the other-bad-acts evidence.

The prosecutor's closing argument

In his second issue on appeal, Cabrera-Sanchez complains he was deprived a fair
trial by the prosecutor's misconduct during closing argument. The State responds that
when considered in proper context, the prosecutor's argument was proper.
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Standard of review

The parties agree on the well-known, two-step review process this court applies in
considering Cabrera-Sanchez' allegations of prosecutorial misconduct:

"'First, an appellate court determines whether there was misconduct, i.e., whether
the prosecutor's comments were outside the wide latitude allowed in discussing the
evidence. Second, if misconduct is found, the appellate court determines whether those
comments compel reversal, i.e., whether the statements prejudiced the jury against the
defendant and denied the defendant a fair trial.' [Citation omitted.]" State v. Knox, 301
Kan. 671, 682, 347 P.3d 656 (2015).

As part of the second step of the two-step analysis, the appellate court considers
three factors: (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. State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078
(2014). None of these three factors is individually controlling. Before the third factor can
ever override the first two factors, an appellate court must be able to say that the
harmlessness tests of both K.S.A. 2014 Supp. 60-261 and Chapman v. California, 386
U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. Williams, 299 Kan. at
540-41.

Cabrera-Sanchez admittedly did not object to the comments he complains about
on appeal. This does not, however, preclude this court from reviewing his complaints
about the prosecutor's closing argument. See State v. Anderson, 294 Kan. 450, 461, 276
P.3d 200, cert. denied 133 S. Ct. 529 (2012) (appellate courts can review claim of
prosecutorial misconduct during closing arguments even where contemporaneous
objection is lacking).

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Improper shift in the burden of proof

Cabrera-Sanchez complains about two portions of the prosecutor's closing
argument.

First, he complains specifically about the following emphasized comments by the
prosecutor. But we offer a fuller context for the challenged statements within the
prosecutor's overall argument. See State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011)
(appellate court must "review challenged remarks in their full context").

"There's no allegation that anyone else besides the defendant did this to [I.S.].
She never mentioned anyone else possibly having molested her. She was asked and she
said no, it was [Cabrera-Sanchez]. She never alleged any other kind of contact other than
digital penetration. She never said that there was penile penetration, she never said he
penetrated her with an object. She only said digital penetration.
"So really once you take that element into consideration too, you just have to
determine whether or not it happened because the allegations that are there are what [I.S.]
said happened, that it was digital penetration with the defendant and herself.
"You can do the same thing with count two. You look at that, and it's that the
defendant engaged in lewd fondling or touching of [J.S.] with the intent to arouse sexual
desire of the child or the defendant. Again, some of this is even undisputed. We know that
this incident involved [J.S.] and the defendant. There is no testimony given that this could
have been anyone else during this time period. She didn't say that anyone else had ever
touched her before, and again she was asked that." (Emphasis added.)

Cabrera-Sanchez analogizes the statements to the questions a prosecutor posed to a jury
about whether there was "'"any evidence"'" that the rape as alleged by the victim "'"didn't
happen,"'" which questions our Supreme Court held were improper attempts to shift the
burden of proof to the defendant in State v. Tosh, 278 Kan. 83, 92, 91 P.3d 1204 (2004).

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Here, the State responds that when considered in their proper context, the
comments were a proper part of the prosecutor's explanation of the evidence and
distinguishes Tosh. In support, the State notes that the prosecutor made these statements
as she highlighted the elements of the crime that were not in issue, such as identity or the
type of penetration. Rather than commenting on missing evidence or shifting the burden,
the State argues the prosecutor was simply explaining that the "crux of the jury's decision
was who to believe." Thus, the State claims this case is less like Tosh, where similar
comments about a lack of evidence supporting the defendant's defense compounded with
other instances of prosecutorial misconduct, and more similar to other decisions that have
found similar comments by prosecutors on a lack of evidence were not misconduct. This
court recently summarized some of those decisions in State v. Jones, No. 111,148, 2015
WL 1636728, at *5-7 (Kan. App.) (unpublished opinion), rev. denied 302 Kan. ___
(September 23, 2015), as follows:

 In State v. Stone, 291 Kan. 13, 16, 237 P.3d 1229 (2010), the prosecutor
commented in closing argument that the defendant, who generally denied the child
victim's allegations underlying a charge of aggravated indecent liberties, had
"'"two huge obstacles he has to overcome to present any kind of a credible
defense."'" Our Supreme Court held these comments fell within a prosecutor's
considerable latitude to comment on the weakness of the asserted defense and
sufficiently varied from the argumentative questions the prosecutor posed to the
jury in Tosh. Jones, 2015 WL 1636728, at *5 (citing Stone, 291 Kan. at 19).

 In State v. Burden, 30 Kan. App. 2d 690, 703, 46 P.3d 570 (2002), rev'd on other
grounds 275 Kan. 934, 69 P.3d 1120 (2003), this court held that a prosecutor's
argument that "'the most overwhelming thing that the defense cannot overcome is
the physical evidence that corroborates [the victim's] initial statements'" was
within the "'considerable latitude granted to prosecutors to comment on the
weakness of defenses'" in part because the prosecutor had also referred the jury to
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the court's instruction that the State had the burden of proof. Jones, 2015 WL
1636728, at *6.

 In State v. Williams, 299 Kan. 911, 329 P.3d 400 (2014), our Supreme Court cited
various cases in which the court held a prosecutor does not shift the burden of
proof by pointing out a lack of evidence to support a defense or to corroborate a
defendant's argument regarding holes in the State's case, including: "'State v.
Wilson, 295 Kan. 605, 623-25, 289 P.3d 1082 (2012) (holding prosecutor's
arguments that defendant had no explanation for his DNA found near crime scene
did not improperly shift burden of proof; rather, it was comment on efficacy of
defense and pointed jurors to lack of evidence supporting defendant's version of
events); State v. Cosby, 293 Kan. 121, 135-37, 262 P.3d 285 (2011) (finding
prosecutor's statements asking jury if it had heard any evidence that suggested
witness' testimony was wrong did not improperly shift burden of proof because
prosecutor was only commenting generally on defendant's failure to rebut witness'
testimony and not commenting on defendant's failure to testily); [and] [State v.]
Duong, 292 Kan. [824] at 832-33, 257 P.3d 309 [2011] (holding prosecutor's
arguments questioning defendant's failure to present evidence of misidentification
did not improperly shift burden of proof because prosecutor did not call upon
defense to disprove crime's occurrence but rather pointed out that evidence
supporting defense theory was thin).' [Williams,] 299 Kan. at 940." Jones, 2015
WL 1636728, at * 6.

Applying this reasoning to the prosecutor's argument about which Cabrera-
Sanchez now complains, we agree with the State's analysis. When read in isolation, the
prosecutor's comments might seem improperly argumentative and, thus, a kin to the
questions deemed improper in Tosh. In context, however, the message the prosecutor
conveyed to the jury was not that Cabrera-Sanchez failed to disprove the State's case.
Rather, the prosecutor was simply taking the jury through each of the elements that it had
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to prove, noting along the way that the evidence in support of the girls' allegations was
stronger than Cabrera-Sanchez' general denial and his suggestion that the girls made up
the allegations after being coached by their mother or the forensic interviewers. The
district court instructed the jurors that the State had the burden of proof, and the
prosecutor reminded the jurors of this burden in closing. The State's argument did not ask
them to shift that burden to Cabrera-Sanchez. We find no misconduct in the State's
remarks.

Comments on facts not in evidence to inflame the passions or prejudices of the
jury

Cabrera-Sanchez also complains the prosecutor improperly inflamed the jury's
passion or prejudice by referring to facts not in evidence when she told the jury:

"The bottom line is that over those four days in March, March 18th through
March 22nd, the defendant . . . abused [J.S.] and [I.S.] more than one time each. It wasn't
chance, it wasn't an accident and it wasn't a mistake. Over those four days the sexual
abuse didn't just happen once. It became the norm, it became the defendant's practice, it
became the defendant's routine. His behavior escalated, started out with him getting in
bed with [J.S.], then he touched [I.S.'s] breasts on the outside of her clothes, then he
exposed his penis, then he touched [J.S.] over her clothes and he eventually raped [I.S.]
with his fingers." (Emphasis added.)

Cabrera-Sanchez contends the State presented no evidence to support the prosecutor's
argument that he "carefully planned an escalating system of 'routine' sexual abuse."
Instead, he argues the girls' "allegations were vague and random, containing no evidence
of a timeline or escalation in the illegal conduct by" Cabrera-Sanchez. So he asserts the
argument sequencing the events lacked factual support and the inference that he planned
a course of increasingly intrusive and offensive sexual conduct directed at each victim
created an impermissible passion or prejudice among the jurors to convict.

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There is no dispute that a prosecutor commits misconduct by discussing facts not
in evidence during closing argument. See Knox, 301 Kan. at 685. Here, Cabrera-Sanchez
arguably makes something of a fair observation: The victims' testimony did not strictly
establish a chronology of the sexual contact over the course of the week. And it might be
a rhetorical flourish to characterize the sexual misconduct as a "norm," "practice," or
"routine." At the same time, however, the prosecutor did not refer to events outside the
victims' testimony or draw inferences dependent on special knowledge or expertise never
presented at trial. See State v. Akins, 298 Kan. 592, 602-06, 315 P.3d 868 (2014)
(prosecutor's extended discussion in closing argument about "grooming" victims of
sexual abuse improper when no expert testimony admitted regarding sort of predatory
conduct, thereby contributing to reversible error); State v. Simmons, 292 Kan. 406, 412-
18, 254 P.3d 97 (2011) (prosecutor's comments in voir dire about Stockholm Syndrome,
when no expert testimony would be presented on the phenomenon during trial,
contributed substantially to reversible error in defendant's convictions). Rather, the
remarks reflected how the prosecutor wanted the jurors to view the evidence and, in that
respect, entailed fair comment. The prosecutor did not reach outside the record to
embellish what had been presented at trial. Conversely, Cabrera-Sanchez' lawyer could
properly argue the vague, disjointed nature of the victims' accounts to be indicative of
false narratives.

The jurors, in turn, could fairly consider the evidence and weigh the
persuasiveness of the arguments as against that evidence. Accord State v. Longoria, 301
Kan. 489, 524, 343 P.3d 1128 (2015) (pointing out prosecutor has wide latitude in
crafting arguments and drawing reasonable inferences from admitted evidence). The
prosecutor's argument did not venture outside the trial evidence and did not comment on
the evidence in a way that was particularly inflammatory or otherwise impermissible.

The district court instructed the jurors that the lawyers' arguments are not evidence
and should be disregarded if unsupported by the evidence. Although such an instruction
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will not typically neutralize a flagrantly improper argument, it does channel the jurors'
attention in assessing an argument that applies an advocate's shine to the facts. The art of
advocacy necessarily entails shining the evidence to place the client in the best possible
light consistent with that evidence. Here, the prosecutor did not overstep that role. And
jurors were left free to agree or disagree with the prosecutor's argument based on their
fair recollection of the evidence consistent with the district court's instructions.

Because there was no prosecutorial misconduct, we need not progress to the
second prong of the analysis. Cabrera-Sanchez had failed to articulate grounds requiring
reversal of his convictions for prosecutorial misconduct.

Lifetime postrelease supervision

Cabrera-Sanchez is, however, entitled to some relief because the trial court
ordered lifetime postrelease supervision in conjunction with an off-grid indeterminate
(concurrent hard 25) life sentence. In State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786
(2011), our Supreme Court held: "An inmate who has received an off-grid indeterminate
life sentence can leave prison only if the successor to the Kansas Parole Board grants the
inmate parole. Therefore, a sentencing court has no authority to order a term of
postrelease supervision in conjunction with an off-grid indeterminate life sentence."

Although the error was corrected in the journal entry of sentencing, where
"postrelease" is crossed-out and "parole" is handwritten in its place, the oral
pronouncement of a sentence controls over a subsequent written journal entry. See State
v. Arrocha, 42 Kan. App. 2d 796, 798, 217 P.3d 467 (2009). Our Supreme Court has
recognized that where the oral pronouncement is correct but the journal entry of
sentencing wrong, a nunc pro tunc correction is proper. See State v. Waggoner, 297 Kan.
94, 99-100, 298 P.3d 333 (2013). But where part of the oral sentence imposed is
incorrect, our Supreme Court has taken a different approach. In Waggoner, our Supreme
18
Court simply vacated that part of the sentence upon finding the sentencing court erred in
orally pronouncing lifetime electronic monitoring from bench. 297 Kan. at 100. In State
v. Williams, 298 Kan. 1075, 1077, 319 P.3d 528 (2014), our Supreme Court also simply
vacated that portion of the court's oral sentence imposing an illegal lifetime postrelease
period for an indeterminate life sentence. Since the district court's oral pronouncement
controls and was erroneous here, we vacate the imposition of lifetime postrelease
supervision in accordance with Williams and Waggoner.

Affirmed in part, reversed in part, and order for lifetime postrelease supervision
vacated.