State v. Denomme

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NOT DESIGNATED FOR PUBLICATION

No. 117,086

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT M. DENOMME,
Appellant.

MEMORANDUM OPINION


Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed January 12, 2018.
Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Barry K. Disney, senior deputy county attorney of Riley County, Richard E. James, county
attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: After a jury convicted him on several charges, Robert M. Denomme
filed a motion for new trial based on ineffective assistance of counsel. One of his
allegations was that his trial counsel had failed to inform the court of juror misconduct.
The district court denied his motion, and he appealed. The Court of Appeals remanded
his case for an evidentiary hearing on this issue. State v. Denomme, No. 113,941, 2016
WL 3031252 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. ___ (June
20, 2017). After the remand hearing, the district court ruled that Denomme's counsel was
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not deficient for failing to inform the court about the juror misconduct, and Denomme
had failed to establish prejudice. Denomme appeals. We affirm.

In August, 2014, a jury convicted Denomme of attempted criminal use of a
financial card, a class B nonperson misdemeanor; attempted misdemeanor theft, a class B
nonperson misdemeanor; and identity theft, a severity level 8 nonperson felony. The
district court sentenced him to 18 months' probation, with an underlying sentence of 14
months' incarceration. The following facts are taken from Denomme's direct appeal:

"Denomme's jury trial was held on August 8, 2014. At his trial, the State
presented evidence Denomme stole Anna Lippe's purse containing Lippe's Cabela's VISA
credit card. The State alleged Denomme used Lippe's credit card in three separate
transactions. Lippe testified she had lost her purse on July 1, 2013, and immediately
reported it missing to Officer Steve Squires. Officer Squires called Lippe into the police
station the next day because a man had found her purse in a lot behind a local automotive
store. Lippe explained although many items were still inside her purse, her credit card
was missing.
"Upon reviewing charges made on her credit card account, Lippe saw three
unauthorized transactions. Two of the unauthorized charges occurred on July 2, 2013.
Both of these charges occurred back to back, and the charges were made at a gas station
located in Clay Center, Kansas. The first charge was in the amount of $80.02, the second
charge was in the amount of $45.39, and the remaining unauthorized charge occurred on
July 3, 2013. Lippe explained somebody attempted to use her credit card to purchase
minutes for a Straight Talk wireless cell phone. Because Lippe had already cancelled her
credit card the purchase was declined. Lippe stated she told Officer Squires about the
unauthorized use of her credit card.
"Officer Squires testified after Lippe told him someone had tried to purchase
minutes to add onto a cell phone using her credit card, he sought and obtained a subpoena
for the name, account number, and phone number associated with the cell phone.
TracFone Wireless, Inc., a subsidiary of Straight Talk, complied with the subpoena,
revealing that Lippe's credit card was used in an attempt to purchase $50.12 worth of
minutes for a cell phone number belonging to Denomme. Officer Squires testified he was
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familiar with Denomme because he had previously lived in Clay Center. The officer
further testified there were no surveillance videos available from the gas station where
the first two unauthorized credit card charges were made.
"The State additionally submitted a printout of Lippe's credit card statement, the
subpoena, and TracFone's response to the subpoena into evidence.
"Denomme testified on his own behalf. He admitted the phone number at issue
was his but denied any involvement in the theft of Lippe's credit card. Denomme
admitted a bank statement into evidence showing he had paid Straight Talk $49.92 on
July 5, 2013. Denomme asserted because he paid his Straight Talk bill of $49.92 on July
5, 2013, it made no sense why he would attempt to pay $50.12 on July 3, 2013.
Additionally, Denomme testified his cell phone plan had unlimited minutes.
"The jury ultimately acquitted Denomme of the criminal use of a financial card
and theft counts associated with the use of Lippe's credit card at the gas station on July 2,
2013. The jury found Denomme guilty of the attempted criminal use of a financial card
and attempted misdemeanor theft counts associated with the use of Lippe's credit card in
the attempted purchase of cell phone minutes on July 3, 2013. The jury also found
Denomme guilty of identity theft.
"More than 1 month after his convictions, on September 24, 2014, Denomme
filed a pro se motion for new trial. In his motion, Denomme alleged his trial counsel,
Phylemon Yau, was ineffective because Yau: (1) failed to effectively communicate with
him; (2) failed to call certain witnesses; (3) failed to subpoena other witnesses; and (4)
failed to investigate the charges. Denomme was appointed new counsel. Denomme's new
counsel filed an amended motion for new trial on January 20, 2015. In this motion,
Denomme reiterated his previous arguments but also alleged Yau failed to inform the
trial court about inappropriate contact that occurred between Officer Squires and
members of the jury during his trial. Denomme's new counsel also moved for judgment
of acquittal, alleging insufficient evidence.
"The trial court held a hearing on Denomme's motions on January 22, 2015.
Denomme and his friend, Margie Jo Clark, both testified they saw Officer Squires speak
to members of the jury during a break at his trial. Denomme further testified he saw Yau's
investigator, Kimberly [Teesdale], speak with the jury during his trial. Denomme testified
he did not know what was discussed between the jury and Officer Squires or between the
jury and [Teesdale], but Denomme explained when he told Yau about this, Yau refused to
inform the trial court. Denomme testified Yau told him to ''just keep it simple, I got this
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under control'' and ''just keep your mouth shut and be quiet and I'll take care of
everything.'' After hearing this testimony, the trial court denied both of Denomme's
motions. The trial court denied Denomme's motion for judgment of acquittal because
sufficient evidence supported his convictions. Citing State v. Holt, 298 Kan. 469, 476,
313 P.3d 826 (2013), the trial court denied Denomme's motion for new trial because it
was not timely filed and did not allege new evidence." 2016 WL 3031252, at *1-2.

Denomme appealed his convictions as well as the district court's denial of his
motion for new trial. The Denomme court affirmed his convictions, finding his complaint
was not fatally defective and sufficient evidence supported his convictions. 2016 WL
3031252, at *3-7. The court found the district court erred in denying Denomme's motion
for new trial as untimely, because district courts have jurisdiction to hear claims of
ineffective assistance of counsel raised in untimely motions for new trial based on State
v. Reed, 302 Kan. 227, Syl. ¶ 1, 352 P.3d 530, cert. denied, 136 S. Ct. 344 (2015).
However, the court also found that the record conclusively showed Denomme was not
entitled to relief on most of his claims of ineffective assistance of counsel. 2016 WL
3031252, at *9-10. As for Denomme's claim that Yau had failed to inform the district
court about possible juror misconduct, the court found the issue must be remanded for an
evidentiary hearing. 2016 WL 3031252, at *10-11.

The district court held a remand hearing on October 6, 2016. Officer Squires
testified that he was sitting outside the courtroom's doors talking to Teesdale during a
break when a female juror waved at him from 15 to 20 feet away. He did not remember
who the juror was. According to Officer Squires, the juror also said something to him, but
he could not recall what she said. Officer Squires stated he knew not to speak with any of
the jurors, so he just nodded his head and waved back. He could not remember if the jury
had been sworn in or not at the time.

Officer Squires did not report the incident because he did not feel it was relevant.
He testified that if he had spoken with any of the jurors, he would have said something to
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the prosecutor. Officer Squires denied having any other conversations or interactions with
any of the jurors.

Teesdale testified she did not interact with any of the jurors that day. She told the
court she never interacts with jurors other than to return basic greetings.

Teesdale stated that she was present when Officer Squires spoke with one of the
jurors. She recalled that Officer Squires was sitting outside the courtroom door, and the
jurors were lined up to enter the courtroom. One of the jurors stepped out of line and said
"Hey" to him. Officer Squires turned around, and the juror said, "I didn't know that was
you." The juror then asked him if he knew that a mutual acquaintance was in town.
Officer Squires responded that he did not and that he would check into it. According to
Teesdale, the entire conversation lasted less than one minute. She did not see any other
conversations between Officer Squires and that particular juror or any other juror that
day.

Teesdale testified that she told Yau about the interaction. She said that Denomme
was upset about Officer Squires speaking with jurors on the day of the trial. She told the
court that neither Denomme nor Clark were present when Officer Squires had the
interaction with the female juror. She admitted that presumably Denomme might have
seen something else that upset him.

Yau testified that Denomme had told him that Officer Squires had contact with the
jury. Teesdale also told him the same thing. Yau did not tell the court because he felt
nothing inappropriate had happened, though he admitted that Denomme had wanted him
to raise the issue.

Denomme testified he saw Officer Squires having conversations with jurors after
the jury had been selected and on several breaks during the trial. He could not hear what
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they were talking about. Denomme said he told Yau about the conversations, but Yau
told him the trial was going well and he should not worry about things like that.
Denomme testified he saw Teesdale speaking to a woman he believed to be a juror. This
upset him because he thought Teesdale might be a witness at his trial.

Clark testified she saw Officer Squires talking to jurors next to the coffee area
provided by the court. She believed the conversation lasted for about five minutes
because she left to go the restroom, and when she came back about five minutes later
they were still talking. She could not hear what they were saying.

Clark stated she saw Teesdale talking to some of the jurors. She told Denomme
about what she had seen, and Denomme said he was going to talk to Yau about it. Clark
spoke with Teesdale about the conversations, but Teesdale told her not to worry about it
because it was not about the trial.

In its ruling from the bench, the district court found that there was only one
interaction between Officer Squires and a juror. It held that the interaction constituted
jury misconduct but Yau was not deficient for failing to inform the trial court. The court
acknowledged, however, that another court might disagree with its conclusion that Yau
was not deficient. Therefore, the court held that Denomme had failed to demonstrate
prejudice because there was no evidence that the jurors or witnesses had discussed the
case. The court reiterated its findings in a written order. Denomme appeals.

A defendant's claim of ineffective assistance of counsel presents mixed questions
of fact and law. When the district court conducts a full evidentiary hearing on such
claims, we determine whether substantial competent evidence supports the district court's
factual findings and whether those factual findings support the court's legal conclusions.
We apply a de novo standard to the district court's legal conclusions. Fuller v. State, 303
Kan. 478, 485, 363 P.3d 373 (2015).
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To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality
of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the
result of the proceeding would have been different absent the deficient performance.
Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 [1984]).

The State concedes that Yau provided deficient performance when he failed to
inform the district court about Officer Squires' contact with the jury. This is consistent
with Denomme's direct appeal. The Denomme court concluded "if Yau failed to inform
the trial court about the alleged improper communications, as Denomme asserts, he
unquestionably provided deficient performance that may have resulted in prejudice."
2016 WL 3031252, at *10. Thus, Denomme has met the first prong of the Strickland test
for ineffective assistance.

The main point of contention between the parties is whether Yau's actions, or his
failure to act, prejudiced Denomme. In order for Denomme to succeed on his ineffective
assistance claim, he must show that the outcome of his trial would have been different if
not for Yau's deficient performance. Here, Denomme must show there is a reasonable
probability the district court would have declared a mistrial due to jury misconduct. He is
unable to do this, though, because the record does not show that the jury misconduct
substantially prejudiced his rights.

Communication between a juror and a witness is not a ground for reversal unless
the defendant can show the communication substantially prejudiced his or her rights.
State v. Hobbs, 276 Kan. 44, 49, 71 P.3d 1140, 1145 (2003), disapproved on other
grounds by State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008). "The substance of the
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communication is important and more likely to be prejudicial to the defendant if it relates
to the case." State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621, 629 (1989), rejected
on other grounds by State v. Rinck, 260 Kan. 634, 923 P.3d 67 (1996). "When the
communication is entirely unrelated to defendant's case courts generally find insufficient
prejudice to require a mistrial." State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113
(1976). Denomme bears the burden to prove any jury misconduct substantially prejudiced
his rights. Macomber, 244 Kan. at 407.

In its ruling here, the district court found there was only one interaction between
Officer Squires and a juror and this was the only instance of juror misconduct. The court
also held the content of the interaction was not related to Denomme's case. Substantial
competent evidence supports this finding as both Officer Squires and Teesdale testified
Officer Squires only spoke once with one juror. They also both testified the conversation
was brief, and Teesdale testified the content of the conversation was unrelated to
Denomme's trial.

Based on this single interaction, it is not clear how Denomme's rights would have
been substantially prejudiced. For example, in Hobbs, a juror approached a testifying
officer during a break in the trial and asked him how he was able to carry all his
equipment. The officer responded that he used a truck with a motor home attachment.
The defendant moved for a mistrial. After hearing testimony from the officer, the district
court denied the motion. The Hobbs court affirmed the district court, finding "it was an
innocent contact on a topic unrelated to the prosecution." 276 Kan. at 49. Similarly,
Officer Squires' interaction with the juror was an innocent contact on a topic unrelated to
Denomme's case.

Denomme contests the district court's finding that only one interaction occurred
between Officer Squires and the jury. He argues the district court ignored other evidence
presented at the remand hearing. Specifically, he points to Clark's testimony that Officer
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Squires and Teesdale engaged in conversations with multiple jurors. Under the
substantial competent evidence standard, however, we "do not consider other evidence
that might support a different result as long as sufficient evidence supports the district
court's decision." Poteet v. Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 414, 233 P.3d
286 (2010).

More telling, as the State points out, Clark's testimony was not uncontroverted—
both Officer Squires and Teesdale testified that only one conversation happened.
Denomme is essentially asking us to reweigh the testimony presented at the remand
hearing. We do not reweigh evidence, determine the credibility of witnesses, or resolve
conflicts in evidence. State v. Cosby, 285 Kan. 230, 240, 169 P.3d 1128 (2007).

Even if we were to consider Clark's testimony, though, it would not necessarily
help Denomme. While both Denomme and Clark testified they saw Officer Squires and
Teesdale talking to jurors, neither one of them heard the content of those conversations.
Without this critical information, Denomme has a difficult time demonstrating how these
interactions prejudiced his rights.

Another important consideration when analyzing juror misconduct is whether the
juror thinks he or she can be impartial. State v. Turner, 2 Kan. App. 2d 645, 647, 586
P.2d 279 (1978). In this case, the record suggests the juror was familiar with Officer
Squires. Denomme has not presented any evidence indicating the juror could not be
impartial. As Denomme carries the burden of proof, he has failed to establish prejudice
due to possible juror bias.

Denomme attempts to argue instead that he suffered prejudice because it is now
much harder for him to investigate any possible jury misconduct. He contends that if Yau
had brought the matter to the district court's attention at the time of the trial, the court
could have immediately interviewed the jurors to determine the content of the alleged
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conversations. According to Denomme, it became more difficult to get statements from
jurors at the time of the motion for a new trial, and even more difficult at the remand
hearing, which was held more than two years after the trial. Denomme asserts that
"[d]uring this delay of more than two years memories of the events could have faded, the
identities of the persons involved could have been lost, and the jurors could have left the
area or died."

While it may have been easier for the district court to investigate the matter at the
time of trial, Denomme has still failed to establish that the outcome of his trial would
have been any different. Based on the testimony of Officer Squires and Teesdale, any
contact between Officer Squires and the jury was brief and involved content unrelated to
the trial. Denomme has not provided any evidence to suggest that Officer Squires and
Teesdale were discussing matters related to his case with jurors. See, e.g., State v.
Overton, 279 Kan. 547, 253, 112 P.3d 244 (2005) (noting defendant should have included
affidavits from jurors in motion for new trial based on juror misconduct). Denomme has
not even provided any evidence that he attempted to interview jurors regarding this
matter but was unable to do so. His allegations that jurors may have moved, died, or
forgotten the events surrounding the trial are entirely speculative.

Alternatively, Denomme argues the district court erroneously found that Yau's
performance was not deficient. Denomme notes the Denomme court found that Yau was
"unquestionably" deficient if he had failed to tell the district court about juror
misconduct. 2016 WL 3031252, at *10. Therefore, Denomme argues, the district court
was incorrect to find that Yau made the right decision not to inform the district court, and
his case should be remanded for another hearing.

Supposing the district court did err in finding Yau's performance was not deficient,
though, another remand is not necessary because the district court also found that
Denomme had failed to establish prejudice. As already discussed, the district court was
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correct to conclude so. Additionally, we can uphold the district court as right for the
wrong reasons. State v. Prine, 297 Kan. 460, 481, 303 P.3d 662 (2013). Even if the
district court erroneously concluded Yau's performance was not deficient, it was right to
deny the motion for a new trial based on ineffective assistance of counsel because
Denomme had not established prejudice.

Finally, Denomme argues that the district court did not consider the totality of the
evidence in reaching its conclusion and, thus, the court denied him a full evidentiary
hearing. He points out that the court did not mention Clark's testimony in its ruling. From
this, he draws the conclusion that the court did not consider her testimony. By failing to
consider her testimony, he reasons, the court in effect denied him a full evidentiary
hearing.

Denomme has not presented any authority to support his argument that a district
court's failure to mention certain evidence is the equivalent of denying a party a full
evidentiary hearing. As the State notes, the record shows Denomme had a full evidentiary
hearing. He called five witnesses, and the record does not show that the court denied him
the opportunity to put on other witnesses or introduce other evidence.

To the extent Denomme is arguing the district court made inadequate findings, this
argument fails as well. Under Supreme Court Rule 165 (2017 Kan. S. Ct. R. 214), the
district court has a duty to provide adequate findings of fact and conclusions on the
record to explain its decisions on contested matters. Here, the district court found that
only one conversation occurred between Officer Squires and a juror, which supports its
finding that Denomme was not prejudiced. Denomme does not cite to any authority
suggesting a district court must make findings as to all evidence presented during a
hearing.

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Furthermore, a party must object to inadequate findings of fact and conclusions of
law to preserve an issue for appeal. State v. Herbel, 296 Kan. 1101, 1118-19, 299 P.3d
292 (2013). When no objection is made to a district court's inadequate findings of fact or
conclusions of law, an appellate court can presume the district court found all facts
necessary to support its judgment. State v. Dern, 303 Kan. 384, 394, 362 P.3d 566
(2015). Because Denomme did not object, we presume the district court found Clark's
testimony was not credible.

While Yau may have been deficient for failing to inform the district court of juror
misconduct, Denomme has not sustained his burden to demonstrate that Yau's
performance prejudiced him. Therefore, his claim of ineffective assistance fails.

Affirmed.