State v. Carrasco

1

NOT DESIGNATED FOR PUBLICATION

No. 114,918

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JESUS CARRASCO,
Appellee.

MEMORANDUM OPINION


Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed September 30,
2016. Reversed and remanded with directions.

Ehren Penix, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

No appearance for appellee.

Before PIERRON, P.J., GREEN and BUSER, JJ.

Per Curiam: The State charged Jesus Carrasco with attempted first-degree
murder, conspiracy to commit first-degree murder, criminal discharge of a firearm,
criminal possession of a firearm, and criminal damage to property. A magistrate judge
held a preliminary hearing for Carrasco and his three codefendants, and bound all four
codefendants over for trial. Carrasco filed a motion to dismiss with the district court, and
the court granted his motion. The State appeals the court's order, arguing there was
sufficient evidence to establish probable cause; the court erred in using de novo review in
ruling on the motion; and the court erred in raising the issue of evidentiary errors at the
preliminary hearing sua sponte. We reverse and remand with directions.
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On the night of March 28, 2015, James and Jessica Harp were driving in their
truck on Cornell Street in Liberal. Another truck crashed into the front of their truck and
several gunshots were fired at them. The couple was able to drive away and immediately
called the police.

The State eventually charged Carrasco with two counts of attempted first-degree
murder, one count of conspiracy to commit first-degree murder, one count of criminal
discharge of a firearm, one count of criminal possession of a firearm, and one count of
criminal damage to property in connection with the incident. The State also charged
codefendants Guadalupe Perez, Mario Sanchez, and Daniel Rios.

At the preliminary hearing before the magistrate judge, the State presented
evidence that the Harps had positively identified Carrasco's truck as the truck used in the
shooting. Police testified they were able to match some of the damage on Carrasco's truck
to some of the damage on the Harps' truck. Jessica testified she saw Carrasco at the scene
of the shooting.

The State's theory at the preliminary hearing was that Carrasco, Sanchez, Perez,
and Rios—members of a gang known as Sur 13 or South Siders—had intended to kill
Mauricio Neal. Neal is in a gang known as the Folks gang. The State presented evidence
that Neal lived on Cornell Street, at approximately the spot where the shooting occurred.
It also presented testimony that Neal had been involved in an altercation with the mother
of Carrasco's child earlier that evening. Carrasco, Sanchez, and Perez had been at a
cookout at the time. After hearing about the incident with Neal, all three left in Carrasco's
truck shortly before the shooting.

Jessica Vasquez testified that later in the evening Carrasco commented he had a
"big ass dent" in his truck. She also stated Sanchez had a "long gun" which he brought
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back to the cookout. The State presented evidence that Sanchez had taken steps to
conceal the long gun and perhaps another gun that evening.

At the end of the hearing, the magistrate judge bound all four codefendants over
for trial. Carrasco filed a motion to dismiss for lack of probable cause following the
preliminary hearing. He specifically argued the State's witnesses had provided
inconsistent testimony. The district court granted the motion. According to the court, it
was unable to find probable cause due to numerous evidentiary errors and "the difficulty
the Court had in keeping straight who did what, with whom, and when." The State
appeals.

To bind a defendant over at a preliminary hearing, the district court must find the
evidence is sufficient to cause a person of ordinary prudence and caution to
conscientiously entertain a reasonable belief of the defendant's guilt. State v. Brown, 299
Kan. 1021, 1030, 327 P.3d 1002 (2014), overruled on other grounds by State v. Dunn,
304 Kan. ___, 375 P.3d 332 (2016). On appeal from the granting or denial of a motion to
dismiss filed after the preliminary hearing, an appellate court reviews the district court's
probable cause finding de novo. State v. Washington, 293 Kan. 732, 734, 268 P.3d 475
(2012) (denial of motion to dismiss).

In reviewing the evidence in a case like this, the appellate court draws inferences
in favor of the State. Moreover, the evidence need only show probable cause, not guilt
beyond a reasonable doubt. Even if the evidence is weak, the defendant should be bound
over for trial if the evidence tends to establish that the offense was committed and that the
defendant committed it. Washington, 293 Kan. at 733-34.

At the preliminary hearing, the State presented the testimony of seven witnesses.
The evidence presented was sufficient to establish probable cause that Carrasco
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committed attempted first-degree murder. Evidence on the conspiracy charge was not as
strong, but it was still sufficient to support a probable cause finding.

James Harp testified that on the night of March 28, 2015, at approximately 11:30
p.m., he was driving Jessica home from the bowling alley in his black 2013 Chevy
Silverado. He was on Cornell Street, where his nephew lives, when Jessica said, "We
need to get out of here." He started to speed up and saw headlights in his rearview mirror
that were less than 100 yards away and approaching quickly. The headlights belonged to
a truck, and as it came up beside him, it hit the front quarter panel of his truck on the
driver's side. The collision brought his truck to a stop. The occupants of the other truck
began shooting at James' truck. He heard at least four or five shots, but he did not see
who fired them. Based on his experience with guns, James testified he thought one of the
guns was a pistol based on the sound it made, while the other gun was "a little muffled."

James testified that as soon as he heard gunfire, he "floored it" and pushed past the
other truck. After driving off, Jessica called 911, and they met up with the police. James
described the suspect vehicle as an older Chevy Silverado pickup truck with a silver
extended cab or crew cab. The next morning, the police showed him a photo of a vehicle,
and he identified it as the one used in the shooting.

James testified he had driven past the scene of the shooting frequently since it had
happened. He stated he had seen a truck almost exactly like his in the area. He speculated
the incident was a result of "mistaken identity," and the shooters were looking for
someone with a truck very similar to his.

Jessica Harp testified that as she and James drove down Cornell Street, she saw a
truck parked in front of her nephew's house, on the right hand side of the street. Two men
were in the bed of the truck, and one man was outside of the truck, standing on the
sidewalk. She identified all three men as Hispanic.
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Jessica testified that the man outside of the truck was wearing a blue bandanna
around his face and he looked directly at her as they drove by at about 10 to 15 miles per
hour. She thought the men were probably up to no good because one of them had a
bandanna on his face, so she told James they needed to get out of there.

Jessica later identified Carrasco as the man in the blue bandanna. She explained
she was able to identify him just by his eyes, saying "he just looked at me, it bore into
me. . . . [H]is eyebrows were distinctive. And the slant, the shape of his eyes." She never
looked at a line up to make an identification. Instead, she had seen Carrasco's picture on
the Liberal Police Department's public Facebook page. She also identified Carrasco in
court.

Similar to James, Jessica testified that as they approached the intersection of
Harrison Circle Park and Cornell Street, a truck hit them and gunshots were fired. She
heard four shots, and saw three bullet holes in the windshield. James drove off and she
called 911. She reported they had just been shot at by three Hispanic males in a silver or
white Chevy Silverado.

Anthony Owens testified that he is the Harps' nephew and he lives on Cornell
Street. He was out driving on the night of the incident. The police originally thought he
was involved in the shooting because he drives a four-door Silverado.

Owens testified that Mauricio Neal lives across the street from him. When
questioned by police on the night of the incident, he said the shooters may have been
there for Neal. He told police he had seen an altercation at Neal's house, and he had seen
a truck matching the description of the suspect's truck at Neal's house one time. He also
testified, however, that Neal had an older Ford Bronco that did not appear to run.

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Ramon Acosta testified he is one of Neal's neighbors. Officer Jared Ratzlaff
questioned him after the incident, but he did not tell the officer anything. Acosta testified
there had been some problems in his neighborhood, and he had broken up some fights.
These fights sometimes involved people from outside the neighborhood. They also
sometimes involved Hispanic males, but he did not tell Officer Ratzlaff this. He did tell
Officer Ratzlaff he had seen a silver or tan Chevy Silverado pickup outside Neal's house.

Officer Ratzlaff testified he responded to the scene of the shooting. Acosta told
him a group of South Siders had been at Neal's house a few days before causing
problems. Officer Ratzlaff remembered that Carrasco was a South Sider, and he had a
truck that matched the description of the suspect's truck. He went to Carrasco's house to
investigate the truck.

Once there, Officer Ratzlaff saw Carrasco's truck in the driveway. He described
the truck as gray or silver-colored. The truck had damage to the front quarter panel of the
passenger side, which was consistent with what he had been told to look for. He testified
that the damage appeared fresh because the truck was covered in dirt but the damaged
area was clean.

Officer Ratzlaff testified he took pictures of the truck to show to the Harps for
identification purposes. He also took measurements of the damage to Carrasco's truck as
well as the size of the tires. He did not try to match the measurements of the damage to
the Harps' truck, but he did match the measurements of the tires to tire marks left at the
scene.

Officer Ratzlaff returned to Carrasco's house. Carrasco consented to a search of
his house. During the search, Officer Ratzlaff found a blue bandanna in what he was told
was Carrasco's bedroom.

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Officer Dwayne Devellen testified he arranged to have Carrasco's truck towed to
the police impoundment lot. As he was waiting for the tow truck, he found a small piece
of black plastic tucked into the front passenger wheel of Carrasco's truck. Once the truck
was in police impound, he found another piece of black plastic on the passenger side of
the truck. Officer Devellen compared the two pieces of plastic he took off of Carrasco's
truck to the Harps' truck. The pieces appeared to match two scratches on the Harps' truck.
Officer Devellen testified that through his investigation he learned that Sanchez had been
with Jessica Vasquez on the night of March 28, so he and Detective Jason Ott questioned
Vasquez about the incident.

Vasquez testified that on the day of the shooting, she began drinking at 2 p.m. At
approximately 6 p.m., she was in Carrasco's truck, and she saw a handgun in the glove
compartment. She was also intoxicated at the time.

Later that night, Vasquez went to a cookout. Carrasco, Sanchez, Rios, and Perez
were there. Also at the cookout were Jessica Ortega, who had a child with Carrasco, and
Crystal Mendez. At some point, Ortega and Mendez left the party in Carrasco's truck to
change clothes. According to Vasquez, they returned 10 minutes later looking scared.
Ortega said the Folks gang were attacking Carrasco's truck. They also mentioned that a
man named Chito was involved in the attack. Chito is Neal's nickname.

Vasquez originally told police that immediately after Ortega and Mendes returned
to the cookout, at 11 p.m., Carrasco, Sanchez, Rios, and Perez got in Carrasco's truck,
saying they were going to look for the Folks gang. The four returned 20 minutes later
saying they had not found them. On the stand, Vasquez did not remember giving this
information to police.

Vasquez testified that Sanchez, Rios, and Carrasco got in Carrasco's truck and left
the cookout at 11 p.m. and was the only time they left. She knows they left at 11 p.m.
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because she happened to check the time on her phone. She also testified, however, that
she was drunk at the time, and she had been smoking marijuana that day.

Later, Eloy Chico came to the cookout, but Vasquez does not remember what time
he showed up. She and Ortega went with Chico in his car to Carrasco's mother's house to
pick up Carrasco, Sanchez, and Rios. Vasquez saw Rios hand Sanchez what she
described as a "long gun," one that was different from the gun Carrasco had in his truck
earlier. They all got into Chico's car with the gun and went back to the cookout.

Vasquez testified there was no conversation on the way back to the cookout. She
did tell one of the detectives that Carrasco said he had a "big ass dent" in his truck. She
also told the detective that Sanchez said he was the one who "blasted them." She later
testified she remembered Carrasco saying he had a big ass dent in his truck, but she did
not remember Sanchez saying anything.

Vasquez stayed at the cookout until 3 a.m. Then, she, Sanchez, and another
woman went to Vanessa Barray's house. On the way, Sanchez had something in his lap
wrapped in a sweatshirt. Later in her testimony, Vasquez claimed it was the long gun in
the sweatshirt. She could not remember how big it was, other than to say it was bigger
than a bowling ball. At Barray's house, she asked Sanchez what he had done that night
and he said, "Don't worry about it." She also asked him what he did with the gun and he
said he got rid of it.

Vasquez testified that the next day, Barray called her. Barray told her to tell police
she was Sanchez' girlfriend to help provide him with an alibi. Vasquez originally told
police she was Sanchez' girlfriend, but she recanted because it was not true.

Vasquez testified the officers who interviewed her told her she could be charged in
the case. She agreed to cooperate so she would not be charged. She also did not want to
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risk having her 3-year-old child taken away. She denied having any agreement with the
officers, however, and none of the conversations were recorded.

The evidence presented at the preliminary hearing is sufficient to support a finding
of probable cause that Carrasco committed attempted first-degree murder. First-degree
murder is the intentional and premeditated killing of a human being. K.S.A. 2015 Supp.
21-5402(a). In Kansas, premeditation is defined as "to have thought the matter over
beforehand, in other words, to have formed the design or intent to kill before the act."
State v. Jones, 298 Kan. 324, 336, 311 P.3d 1125 (2013). Courts may draw an inference
of premeditation from several factors, including: (1) the nature of the weapon used; (2)
the lack of provocation; (3) the defendant's conduct before and after the killing; (4)
threats and declarations of the defendant before and during the occurrence; and (5) the
dealing of lethal blows after the deceased was felled and rendered helpless. Jones, 298
Kan. at 336. A court may reasonably infer premeditation and deliberation from the
established circumstances of a crime. 298 Kan. at 336.

Because the State charged Carrasco with attempted first-degree murder, Carrasco
does not need to actually have succeeded in killing anyone. Under K.S.A. 2015 Supp. 21-
5301(a), "[a]n attempt is any overt act toward the perpetration of a crime done by a
person who intends to commit such crime but fails in the perpetration thereof or is
prevented or intercepted in executing such crime." Thus, to demonstrate probable cause
that Carrasco committed attempted first-degree murder, the State only needed to show
Carrasco made an intentional overt act toward the killing of a human being.

The evidence demonstrates that Carrasco left the cookout after hearing that Neal
had been harassing Ortega and Mendez. Carrasco then waited outside Neal's home with
at least two other males until he believed his intended target had arrived. He covered his
face with a bandanna, presumably to conceal his identity. Then, Carrasco and those with
him shot at the Harps using a pistol and possibly one other gun. From this evidence, one
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could reasonably infer that Carrasco formed a design to kill Neal, and then carried out an
overt act towards this goal.

The State specifically argues that Carrasco is guilty of attempted first-degree
murder under the theories of transferred intent and aiding and abetting. Under a theory of
transferred intent, a defendant is still criminally responsible for a homicidal act against
someone other than the intended victim because "'[i]t is generally held that such a
homicide partakes of the quality of original act, so that the guilt of the perpetrator of the
crime is exactly what it would have been had the assault followed upon the intended
victim instead of another.'" State v. Jones, 257 Kan. 856, 859, 896 P.2d 1077 (1995)
(quoting State v. Moffitt, 199 Kan. 514, 535, 431 P.2d 879 [1967], overruled on other
grounds by State v. Underwood, 228 Kan. 294, 615 P.2d 153 [1980]).

In this case, the evidence suggests the intended target of the shooting was Neal.
Officer Ratzlaff testified that Acosta told him some members of Carrasco's gang had been
at Neal's house a few days before causing problems. Owens testified he had seen an
altercation at Neal's house a few days before. Both Owens and Acosta testified they had
seen a vehicle similar to Carrasco's truck outside Neal's house before. Vasquez testified
that Ortega and Mendez reported Neal had been harassing them shortly before Carrasco
left the cookout. The Harps testified they saw a truck similar to Carrasco's parked outside
Neal's home immediately before the shooting. This evidence establishes Neal was the
intended target, but that intent was transferred to the Harps.

There is no direct evidence that Carrasco himself fired any of the shots or drove
the vehicle. The State argues, however, that Carrasco is guilty under a theory of aiding
and abetting. Under the aiding and abetting statute, "[a] person is criminally responsible
for a crime committed by another if such person, acting with the mental culpability
required for the commission thereof, advises, hires, counsels or procures the other to
commit the crime or intentionally aids the other in committing the conduct constituting
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the crime." K.S.A. 2015 Supp. 21-5210(a). Despite having its own statute, aiding and
abetting is not a separate crime; it merely extends criminal liability to a person other than
the principal actor. State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 (2012). "'[T]o
establish guilt on the basis of aiding and abetting, the State is required to show that a
defendant knowingly associated with the unlawful venture and participated in such a way
as to indicate that [the defendant] was facilitating the success of the venture.'" 293 Kan. at
1038. Here, Jessica Harp testified she saw Carrasco at the scene of the shooting. More
importantly, the evidence supports a finding that Carrasco's truck was used to carry out
the shooting. Carrasco's presence at the shooting and the use of his truck suggest he not
only knowingly associated with the act but facilitated its execution with the use of his
truck.

Conspiracy consists of two elements: "'(1) an agreement between two or more
persons to commit or to assist in committing a crime and (2) an overt act in furtherance of
the conspiracy committed by one or more of the conspirators.'" State v. Moody, 35 Kan.
App. 2d 547, 555, 132 P.3d 985 (2006); see also K.S.A. 2015 Supp. 21-5302(a).
Evidence of a formal agreement is not necessary to establish a conspiracy. A tacit
agreement regarding the unlawful purpose among the parties is sufficient. State v.
Hernandez, 24 Kan. App. 2d 285, 291, 944 P.2d 188, rev. denied 263 Kan. 888 (1997).
Furthermore, "'the existence of the agreement does not need to be proved directly but
may be inferred from other facts proved.' [Citation omitted.]" Hernandez, 24 Kan. App.
2d at 291.

In this case, evidence of a conspiracy was slim. Vasquez testified she saw
Carrasco, Sanchez, and Rios leave the cookout in Carrasco's truck after Ortega had
complained about Neal harassing her. They left at 11 p.m. according to her testimony,
which was approximately 30 minutes before the shooting. Later that evening, Vasquez
picked up the three men, and Sanchez had a gun. Jessica testified she saw two Hispanic
males with Carrasco at the scene of the shooting. Even though this evidence is weak, it
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does tend to establish that Carrasco had a tacit agreement with Sanchez and Rios, and at
least Carrasco carried out an overt act in furtherance of the agreement's unlawful purpose.

Additionally, the State attempted to gain admission of hearsay statements from
Sanchez in further support of the conspiracy charge. Known as the coconspirator hearsay
exception, hearsay evidence is admissible where the statement was made while "the
[defendant] and the declarant were participating in a plan to commit a crime or a civil
wrong and the statement was relevant to the plan or its subject matter and was made
while the plan was in existence and before its complete execution or other termination."
K.S.A. 2015 Supp. 60-460(i)(2).There are four requirements for the coconspirator
hearsay exception:

"(1) [T]he person testifying must be a third party; (2) the out-of-court statement . . . must
have been made by one of the coconspirators; (3) the statement of the coconspirator must
have been made while the conspiracy was in progress; and (4) the statement must be
relevant to the plan or its subject matter." State v. Betancourt, 301 Kan. 282, 298, 342
P.3d 916 (2015).

Sanchez made several statements which are admissible under this exception.
Vasquez testified Sanchez told her he had gotten rid of the gun, and told her to lie to
provide him an alibi. While Sanchez made these statements after the shooting, statements
made during an attempt to conceal a crime are admissible under the coconspirator
hearsay exception. Moody, 35 Kan. App. 2d at 562 (finding third-party statement that
someone told him defendant fled scene of crime was admissible under coconspirator
exception). Furthermore, because the conspiracy continued until the next day, Sanchez'
statement in the car that he "blasted them" is also admissible against Carrasco. See
Betancourt, 301 Kan. at 929-30 (finding coconspirators statement "I got him, I got him"
made after shooting admissible under coconspirator exception). The other circumstantial
evidence, along with Sanchez' statements, are sufficient to support a finding of probable
cause that Carrasco was involved in a conspiracy to commit first-degree murder.
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In his motion to dismiss, Carrasco argued the State's witnesses provided
inconsistent statements about what happened on the night of March 28, 2015. This is not
a sufficient reason to dismiss a case for lack of probable cause. When there is conflicting
testimony at a preliminary hearing, a question of fact exists for jury determination, and
the magistrate must make inferences in favor of the State. State v. Whittington, 260 Kan.
873, 875-72, 926 P.2d 237 (1996). This is so even when a single witness' statements are
self-contradictory. See State v. Chairez-Hernandez, No. 105,174, 2012 WL 223923, at
*3-5 (Kan. App. 2012) (unpublished opinion) (drawing inference in favor of State when
witness' testimony at hearing differed from statements to police). Here, Officer Ratzlaff
and Acosta provided conflicting testimony regarding what Acosta told the officer the
night of the shooting. Vasquez also contradicted many of her earlier statements to police.
This did not eliminate probable cause, however. These contradictions revealed questions
of fact to be resolved at trial, and the district court was obligated to accept the testimony
most favorable to the prosecution.

Vasquez and Jessica raise some doubts as to witness credibility and reliability. In
determining probable cause, a magistrate must judge the credibility of witnesses called by
either party. State v. Wilson, 267 Kan. 530, 535, 986 P.2d 365 (1999). However,
"[d]oubts about the credibility of a witness do not require a judge, upon a preliminary
examination, to discharge the accused as long as the doubts do not obviate the appearance
that the accused probably committed the felony with which he or she is charged." 267
Kan. 530, Syl. ¶ 2. Vasquez said she was intoxicated on the day of the shooting, and she
frequently contradicted herself. Jessica claimed to be able to make an identification of
Carrasco based only on seeing his eyes at 11 p.m. at night while passing by in a car.
Jessica was very confident in her identification, however, and there was enough evidence
other than Vasquez' testimony that her credibility did not obviate Carrasco's appearance
of guilt.

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In reviewing the denial or granting of a motion to dismiss, we are concerned with
whether there is sufficient evidence to support a finding of probable cause. The evidence
at the preliminary hearing was sufficient to establish probable cause that Carrasco
committed attempted first-degree murder. The evidence was also sufficient to
demonstrate probable cause that Carrasco was involved in a conspiracy to commit first-
degree murder. Thus, the district court's order granting the motion to dismiss is reversed.

The State addresses two more issues in its brief. However, there do not appear to
be any cases where an appellate court has overturned the granting of a motion to dismiss
for a reason other than there was sufficient evidence of probable cause. Thus, this issue
appears to be dispositive in this case.

The State also argues the district court erred in applying a de novo standard of
review to the preliminary hearing in issuing its order. The State contends that while
K.S.A. 22-3610 provides for a de novo hearing of appeals before the district court, this
statute does not apply to a magistrate's decision to bind a defendant over for trial. Thus,
the district court improperly made a substantive disposition using de novo review, as well
as addressing evidentiary issues. Additionally, the State asserts any errors at the
preliminary hearing level were harmless.

In support of its argument, the State cites to a number of statutes regulating the
appeal of orders to the district court. K.S.A. 2015 Supp. 20-302b grants magistrate judges
the authority to conduct preliminary hearings in felony cases. K.S.A. 2015 Supp. 20-
302b(a). This statute also provides that the district court must try and determine de novo
any appeal from an order or final decision of a district magistrate judge who is not
regularly admitted to practice law in Kansas "[i]n accordance with the limitations and
procedures prescribed by law." K.S.A. 2015 Supp. 20-302b(c)(2). The Kansas Supreme
Court has interpreted this statute to mean the State may appeal a magistrate's dismissal of
a complaint to the district court, but it is not entitled to a de novo hearing due to the
15

limitations prescribed by other statutes. State v. Kleen, 257 Kan. 911, 914, 896 P.2d 376
(1995).

K.S.A. 22-3610 also states that when a case is appealed to the district court, the
district court must try the case de novo. K.S.A. 22-3610(a). This statute, however, only
applies to traffic, misdemeanor, and other convictions. Kleen, 257 Kan. at 914. It does not
apply to a district magistrate judge's order binding or failing to bind a defendant over for
trial. 257 Kan. at 914.

Relying on the above statutory authority, the State argues the district court erred in
reviewing the magistrate's order de novo. The State's argument fails on numerous
grounds. First, this case was not on appeal to the district court following a conviction.
Carrasco filed a motion to dismiss pursuant to K.S.A. 2015 Supp. 22-3208. Thus, it was
not subject to statutory authority regarding appeals.

Second, the State confuses a de novo review with a de novo hearing. All the
previously cited statutory authority provides for de novo hearings at the district court
level. There is no reference to a de novo standard of review. In this case, the district court
clearly did not have a de novo hearing.

Finally, when the State appeals the dismissal of a complaint to the district court, it
is not entitled to a de novo hearing. In reviewing the dismissal, however, the district court
applies a de novo standard of review. State v. Farmer, 259 Kan. 157, 161, 909 P.2d 1154
(1996).

The State does not clarify what level of review it believes the district court should
have used in ruling on Carrasco's motion to dismiss. As the State notes, however, the
controlling legal standard at a preliminary hearing is that the evidence is sufficient to
cause a person of ordinary prudence and caution to conscientiously entertain a reasonable
16

belief of the defendant's guilt. According to Kansas caselaw, "'[a] judge reweighing the
preliminary examination evidence after arraignment and prior to trial must follow the
standard for weighing the evidence as required for the preliminary examination.'" State v.
Phelps, 266 Kan. 185, 193, 967 P.2d 304 (1998). Furthermore, when the State appeals the
dismissal of a complaint to the district court, the district court must use a de novo
standard of review to determine if the evidence is sufficient to support a finding of
probable cause. Farmer, 259 Kan. at 161. This suggests when a district court rules on a
motion to dismiss, it must reweigh the evidence and thus has unlimited review of the
preliminary hearing record.

Additionally, the rules of evidence apply at a preliminary hearing, and a district
court should only consider evidence admissible at trial in determining if probable cause
exists. See State v. Cremer, 234 Kan. 594, 599-600, 676 P.2d 59 (1984); State v. Jones,
233 Kan. 170, 172, 660 P.2d 965 (1983). It follows that the court may consider whether a
magistrate admitted certain evidence at the preliminary hearing that would not have been
admissible at trial, at least when a party objected to that evidence. If the court finds the
evidence is incompetent, it may then refuse to consider such evidence in making its
determination.

In this case, the defendants entered multiple objections to various testimony. The
magistrate overruled most of those objections. If the district court determined that the
magistrate should have sustained the objections because the evidence was inadmissible, it
should be able to disregard that evidence in determining probable cause.

Last, the State argues that any evidentiary errors that may have occurred at the
preliminary hearing are harmless. It supports this argument by citing the rule that
"[w]here an accused has gone to trial and been found guilty beyond a reasonable doubt,
any error at the preliminary hearing stage is harmless unless it appears that the error
caused prejudice at trial." State v. Henry, 263 Kan. 118, Syl. ¶ 9, 947 P.2d 1020 (1997).
17

The State reasons because this case never went to trial, it could not have caused prejudice
at trial, therefore any error is harmless.

This is clearly an incorrect application of this rule. As stated in the rule itself, it
applies where a defendant has been found guilty beyond a reasonable doubt. Since
Carrasco has not been found guilty beyond a reasonable doubt, the rule is not applicable.

There is some merit, however, to the State's argument that the district court should
have applied a harmless error standard to any evidentiary issues. In other jurisdictions
that apply the rules of evidence at preliminary hearings, either in whole or with limited
exceptions, erroneous admission of evidence does not lead to an automatic reversal of a
bind over. Instead, if there is sufficient admissible evidence to support the bind over
standard, the reviewing court will uphold the bind over. See, e.g., Waugh v. State, 564
S.W.2d 654, 659 (Tenn. 1978); State v. Reggio, 84 S.D. 687, 690, 176 N.W.2d 62 (1970);
Pinizzotto v. Superior Court, 257 Cal. App. 2d 582, 587-88, 65 Cal. Rptr. 74 (1968).
Kansas courts have already applied a similar standard in ruling on motions to dismiss.
See State v. Crawford, No. 103,524, 2011 WL 135033, at *2 (Kan. App. 2011)
(unpublished opinion) (district court not considering evidence presented at preliminary
hearing and later suppressed in ruling on motion to dismiss). Additionally, when
reviewing evidence erroneously admitted at trial, Kansas courts apply a harmless error
standard. State v. Warrior, 294 Kan. 484, 513, 277 P.3d 1111 (2012). This suggests if a
court is going to review errors at the preliminary hearing level, that court should use a
harmless error standard.

Finally, the State argues the district court erred in raising evidentiary errors from
the preliminary hearing sua sponte in its ruling on Carrasco's motion to dismiss. Whether
a district court erred in raising an issue sua sponte is reviewed for abuse of discretion.
See State v. James, No. 105,768, 2012 WL 402014, at *6-7 (Kan. App. 2012)
(unpublished opinion). A judicial action constitutes an abuse of discretion if the action (1)
18

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).

Generally, a district court may not raise an issue sua sponte unless that issue is
jurisdictional. Frontier Ditch Co. v. Chief Engineer of Div. of Water Resources, 237 Kan.
857, 864, 704 P.2d 12 (1985). Admission of hearsay and other similar evidentiary issues
at a preliminary hearing are not covered by these statutes, nor do they affect jurisdiction.
See State v. Brown, 299 Kan. 1021, 1030, 327 P.3d 1002 (2014) (errors in preliminary
hearing are not jurisdictional errors), overruled on other grounds by State v. Dunn, 304
Kan ___, 375 P.3d 332 (2016).

In this case, Carrasco filed a motion to dismiss for lack of probable cause. As
noted above, the legal standard for ruling on a motion to dismiss is whether there was
sufficient admissible evidence to support a finding of probable cause. This suggests a
district court may disregard evidence that was erroneously admitted at the preliminary
hearing in making its probable cause determination. There does not appear to be any
precedent, however, to dismiss a case solely because the magistrate committed
evidentiary errors, regardless of whether these errors affected the finding of probable
cause.

In its order, the district court found a number of facts regarding the incident. As
the State points out, these facts are sufficient to support a finding of probable cause on
Carrasco's attempted first-degree murder charge, though perhaps not his conspiracy
charge. The district court continued by noting two examples of the magistrate's
evidentiary errors.

The first is Vasquez' testimony that Carrasco said he had a "big ass dent" in his
truck. As the district court admitted, this testimony was admissible against Carrasco.
Thus, there does not appear to be any error here in regards to Carrasco.
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Next, the district court pointed to another portion of Vasquez' testimony. The State
asked her if she had asked Sanchez what he had done with the gun, and she responded
"Yeah, but he got rid of it." The State then asked, "He said he got rid of it?" She
answered, "Yeah, he said he got rid of it." Sanchez objected to her answer as
nonresponsive. The State responded that Sanchez' objection was untimely, and the
magistrate overruled the objection. The district court disagreed, noting the objection was
timely and the answer should have been stricken from the record.

Neither of these errors appear to have led to the erroneous admission of
incompetent evidence against Carrasco. The district court found the first incident was
admissible against Carrasco. In the second incident, the district court and the magistrate
disagreed over whether Sanchez' objection was timely, but the evidence presented would
not clearly be inadmissible at trial. The State could have simply asked another question to
elicit the same response.

In its order, the district court went on to note that these are just two examples of
defense objections that the magistrate improperly ruled on. The court ultimately
concluded that due to the evidentiary errors and the confusing nature of the evidence
presented, there was no probable cause. This conclusion, however, conflicts with his
factual findings that arguably establish probable cause, at least for Carrasco's murder
charge. Nor does the court elaborate on whether the evidentiary rulings had any effect on
the probable cause ruling itself.

In focusing on the errors of the magistrate, rather than whether the evidence at
issue was admissible at trial and thus should be considered in its probable cause finding,
the district court appears to have applied an incorrect legal standard. Furthermore, the
district court raised this issue sua sponte. Even if one of the parties had raised the issue,
the district court likely should have reviewed any errors for harmlessness. Because the
20

court raised this issue sua sponte and applied an incorrect legal standard in its review, the
court abused its discretion.

In conclusion, there is evidence sufficient for a probable cause finding as to
Carrasco's attempted first-degree murder charge and his conspiracy charge. The district
court did not err in reviewing the preliminary hearing de novo in order to make its ruling
on Carrasco's motion to dismiss, and the court can disregard evidence that would not be
admissible at trial in making its probable cause determination. The court abused its
discretion in raising the issue of evidentiary errors sua sponte, and basing its decision to
grant the motion to dismiss partly on the existence of these issues, rather than apply a
harmlessness standard.

We therefore reverse and remand with directions to reinstate the complaint.

Reversed and remanded with directions.