State v. Guerrero

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NOT DESIGNATED FOR PUBLICATION

No. 117,899

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JENNIFER S. GUERRERO,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed October 5, 2018.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

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

PER CURIAM: After a bench trial, Jennifer S. Guerrero was convicted of felony
theft after stealing $1,474 from her employer. On appeal, Guerrero asserts the district
court erred by (1) finding a witness unavailable and then admitting that witness'
preliminary hearing testimony at trial, and (2) violating her right to allocution at
sentencing by denying her request to have her two minor sons testify. After a review of
the record, we find no reversible error and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

Guerrero worked at the Lawrence, Kansas, Chick-fil-A restaurant owned by
Denise Martinek. Elizabeth McCollom was a day shift manager at the time.

Typically, when a manager opens the store, the employees scheduled to start that
morning wait outside until the manager unlocks the door and deactivates the security
system before coming inside. However, on the morning of December 14, 2015, at 5:42
a.m., Guerrero followed McCollom inside as soon as she opened the door, chatting about
a dream she had the night before and claiming that she wanted to practice opening the
business. While McCollom started brewing tea for the day, Guerrero headed to open the
safe, without informing McCollom she was going to do so. The in-store security camera
footage confirmed that Guerrero opened the safe unsupervised.

When McCollom joined Guerrero at the safe, Guerrero informed McCollom that
the restaurant's cash bag was missing. The two looked for the bag and did not find it.
Martinek was alerted that the cash bag had disappeared, and then McCollom and
Guerrero continued counting the money for opening. At some point while looking for the
bag, Guerrero left McCollom to use the restroom. Guerrero ended her shift early that day,
claiming that her son was stabbed at school.

Later on that day, Guerrero texted McCollom stating "that she wasn't a bad person,
and there were things in her life that [McCollom] couldn't understand." That same week,
Guerrero emailed Martinek to apologize for betraying her trust, explaining that her family
needed money for rent and a car payment. She also asked Martinek not to press charges.
The cash bag remained missing for weeks until an employee discovered it in the seat-
cover dispenser in the restroom.

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The State charged Guerrero with felony theft, contrary to K.S.A. 2015 Supp. 21-
5801(a)(1), (b)(3), a level 9 nonperson felony. Shortly before trial, the State discovered
that McCollom had moved to Amsterdam to complete missionary work through a
program with the university she attended. As a result, the State moved to allow
McCollom's preliminary hearing testimony to be read into the record at trial because of
her unavailability. Guerrero argued that the State could have discovered McCollom's
plans to move to the Netherlands months earlier had the coordinator been more diligent in
keeping up with her and that the general rules regarding unavailability of witnesses did
not apply because the State failed to exercise due diligence and depose McCollom before
trial.

At a subsequent hearing on the motion, the State's special investigator testified that
because she did not serve the initial subpoena on McCollom, she had not had any contact
with McCollom before the preliminary hearing. About a month before the trial date,
however, the investigator received a new subpoena for McCollom. When she contacted
Martinek about serving the subpoena to McCollom at the Chick-fil-A, Martinek informed
the investigator that McCollom had left for Amsterdam. Initially, the investigator
assumed that Martinek meant Amsterdam, New York; she learned that McCollom had
moved to the Netherlands when she served Martinek the next day. She testified that she
receives about 50 subpoenas a month to serve.

The victim/witness coordinator handling Guerrero's case also testified. She was
responsible for coordinating the witnesses for all 10 of Guerrero's cases on the day of the
preliminary hearing and for arranging travel reimbursements. Because of the high volume
of witnesses, she had only a vague recollection of McCollom. Moreover, some of the
other witnesses were more transient, leading the coordinator to focus on compiling their
contact information. As such, she learned that McCollom had left the country only after
the investigator spoke to Martinek. The coordinator subsequently learned that McCollom
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had arranged a mission trip through a university organization at some point and had left
the country about six months after the preliminary hearing.

The coordinator also testified that with her heavy caseload—approximately 400
cases at a time—she lacked the ability to regularly call witnesses and ask about their
long-term plans. Further, she testified that it was not abnormal for her not to speak to
witnesses ahead of trial and that she typically was not informed when witnesses moved.
She admitted that she tried to keep abreast of students' schedules, but she did not know
that McCollom was a student. She estimated that it would cost around $1,000, one way,
to fly McCollom back for the trial.

At the conclusion of the hearing, the district court held that McCollom was
unavailable for trial, considering the particulars of the case, the heavy load of the State's
staff, and the fact that the State tried to serve the subpoena a reasonable time before trial.
Further, the district court held that even if the State had failed to exercise due diligence in
this case, a deposition likely would not have provided different testimony than the
preliminary hearing, especially because McCollom had been subject to cross-examination
at the preliminary hearing. The district court also noted that the State acted quickly to
find out the details about McCollom's trip when it discovered that she had left the
country. The district court granted the State's motion.

The case proceeded to a bench trial on March 7, 2017. Based on the district court's
ruling, the State read McCollom's preliminary hearing testimony into the record at the
trial over Guerrero's objection. Martinek testified both about the general procedures at the
restaurant and the events on the day in question. She explained that when she closed the
restaurant Saturday night, the cash bag contained $1,474. She recalled telling McCollom
to keep Guerrero at the restaurant after the bag disappeared, as she had noticed money
missing on other occasions and suspected Guerrero. The investigating officer testified
about collecting security footage and about McCollom's text message from Guerrero. She
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also looked into Guerrero's claim that her son had been stabbed at school but found
nothing corroborating that claim.

Guerrero testified in her own defense. She explained that on the day in question
she felt a lot of anxiety about both her responsibilities at the restaurant and recent contact
with law enforcement. She testified that while trying to open the safe she got distracted
multiple times by her coworkers and that she opened, closed, and stepped away from the
safe several times. By the time she resolved all these issues and put her jacket in her
locker, the cash bag had disappeared. She and McCollom looked for the bag in the office
and then she asked to go to the bathroom. She stopped at her locker and then went to the
bathroom.

According to Guerrero, her apology to Martinek revolved around the fact that she
had never disclosed being on probation in another case, which she worried betrayed
Martinek's trust. Guerrero acknowledged that she lied about her son being stabbed at
school because she was worried about her arrest warrant in another case. She justified her
lie by explaining that she did not want her employer knowing she potentially had a
warrant out for her arrest, so she told the manager that she needed to leave and then went
to the courthouse to sort out her other case.

The district court convicted Guerrero of felony theft as charged.

Because Guerrero had several recent convictions, the district court conducted a
sentencing hearing for all of the cases on May 8, 2017. Guerrero arranged for several
witnesses to testify for her at sentencing, including her husband and three sons. The
district court had no objections to her husband and adult son testifying; however, the
judge felt reluctant to allow her minor sons—ages 12 and 14—to testify. The court asked
for a proffer of the minor sons' statements. Guerrero admitted that her middle son's
testimony would be cumulative but that the youngest would testify about his mental
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disability and her role as his caregiver. Ultimately, the district court declined to hear the
testimony, recognizing that children 14 and 12 generally want their mother present and it
would be a hardship on them to not have their mother at home.

After hearing all of the testimony and proffered statements, the district court
applied a special sentencing rule contained in K.S.A. 2017 Supp. 21-6604(f)(4). While
the severity level of Guerrero's crime and her criminal history score dictated a
presumptive probation sentence, because she committed the crime while on felony bond
in a different case, the special rule permitted imposition of a prison sentence rather than
probation without a departure. After a long discussion of the impact of Guerrero's
offenses against the community and her apparent lack of remorse, the district judge
stated:

"[M]any of the comments that I heard today to the extent any of them went
beyond what the court might normally consider directly commenting on the impact of a
particular victim, I think that it's certainly appropriate for the court to consider the type of
offense that the person committed while on felony bond in deciding whether to apply that
special rule.

. . . .

". . . Of course I don't know you. But I can just tell you, I have never seen you
appear in this courtroom and in any way express what I thought of as sincere remorse.
Today when you chose to have your family present and present circumstances to this
court that I should take into consideration of whether I should send you to prison or not, I
saw you pulling Kleenex out of the box, wiping away tears. But when I saw the people
that you have had the most direct impact on and who you stood here and told me you
think about every day, and I saw no sort of even faint empathy or recognition of impact
that you'd had, that's just consistent with what I've seen throughout your appearance in
this courtroom.

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"Again, ma'am, I don't know you. I can only go off of what I see and hear in the
courtroom. And I'm just telling you I don't have the impression that you have sympathy.

"And what prompted you to have your young children sit in this courtroom
during this sentencing and hear these people make their comments about you and have
you address the court with your children present, it tells me this, ma'am. You need to
spend some serious time truly thinking about the impact of your actions. The actions
today have impacts on people. And beyond the victims in this case.

"So I'm not sentencing you—I'm not going to apply the special rule because of
that. I'm just making a record of the things that have gone into this court's consideration.
I'm applying the special rule in this case because I believe it is absolutely appropriate. I
believe the nature of the crime that we're talking about, considering it was committed
while you were on felony bond for these other offenses, the number of offenses you
committed, the types of people that were the victims of those crimes.

"Again, I'm not trying to pile on. I'm just making the record complete. And I
think there is no question in my mind it's appropriate to apply the special rule here. I'm
not doing it out of anything other than what I believe the legal system sentences people to
prison to punish them for their conduct, to prevent harm to other people. I have a concern
that you need to be punished so that you can come to terms with this."

The district court sentenced Guerrero to 11 months' imprisonment. Guerrero
timely appeals.

I. DID THE DISTRICT COURT ERR IN DECLARING A WITNESS UNAVAILABLE AND
ALLOWING THE WITNESS' PRELIMINARY HEARING TESTIMONY TO BE READ AT TRIAL?

First, Guerrero argues the district court erred in declaring McCollom unavailable
for trial. Specifically, she argues the State failed to exercise diligence in coordinating the
witness and, but for this lack of due diligence, McCollom could have been deposed prior
to her departure from the country and before the trial. The State responds that there is
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nothing in the record to indicate that it failed to exercise due diligence in locating
McCollom before trial and that McCollom was subject to cross-examination by Guerrero
at the preliminary hearing.

Generally, a witness' earlier testimony is admissible at trial provided the witness is
unavailable and the adverse party had an opportunity to cross-examine that witness.
K.S.A. 2017 Supp. 60-460(c); State v. Young, 277 Kan. 588, 597-99, 87 P.3d 308 (2004).

"The appellate standard of review when a district court has determined that a
witness is unavailable to testify is abuse of discretion. 'A trial court abuses its discretion
only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable
person would adopt the trial court's view.' [Citations omitted.]" 277 Kan. at 597.

Under K.S.A. 60-459(g), a witness is "unavailable" when the witness is "(4) absent
beyond the jurisdiction of the court to compel appearance by its process, or (5) absent
from the place of hearing because the proponent of his or her statement does not know
and with diligence has been unable to ascertain his or her whereabouts."

"'Before a witness may be declared unavailable and before the State may use the prior
testimony of an absent witness, the State must show that the witness cannot be produced
at trial by the exercise of due diligence and good faith. [Citation omitted.]' Rodriguez-
Garcia, 27 Kan. App. 2d at 442. The State must present 'actual evidence of its efforts.' 27
Kan. App. 2d at 442.

"'The right of a defendant to confront and cross-examine the witnesses against him or her
is a valuable and constitutionally protected right. We do not believe that a defendant can
be deprived of that right absent "full and convincing" evidence that the authorities have
made a reasonable effort to locate an unavailable witness.' State v. Mitchell, 18 Kan. App.
2d 530, 535, 855 P.2d 989 (1993).

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"Moreover, '"each case turns on its own particular facts and circumstances." [Citation
omitted.]' 18 Kan. App. 2d at 534." Young, 277 Kan. at 598.

Here, the testimony of the investigator and coordinator regarding their attempts to
get McCollom to the witness stand fulfilled the State's obligation to present evidence.
There was no question that McCollom was out of the jurisdiction of the court—she was
living in the Netherlands at the time of trial. There is nothing in the record to indicate that
the State failed to exercise due diligence in locating McCollom. The coordinator testified
that she did not know McCollom was a student and, as a rule, she did not just assume a
20-year-old was a college student. It appears based on the record that only Martinek
knew about McCollom's plans to move to the Netherlands. As such, the coordinator did
not reach out to McCollom like she normally would a college student but, instead, treated
her like any other lay witness, especially in light of her caseload. The record is clear that
the State did not know of McCollom's status as a student or as a missionary until the
investigator uncovered this information a month before trial when she began to serve
subpoenas. Once this information was uncovered the State worked quickly to ascertain
the details of McCollom's move.

There was no abuse of discretion in the district court's conclusions that the State
had been reasonably diligent and that McCollom was unavailable.

"'[Once a] judge finds that the declarant is unavailable as a witness at a hearing,
testimony given as a witness in another action or in a preliminary hearing or former trial
in the same action may be used, except such testimony may not be used in criminal
actions if it denies to the accused the right to meet the witness face-to-face.' State v.
Ruebke, 240 Kan. 493, 517, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987)." Young,
277 Kan. at 598.

"The Sixth Amendment right of confrontation is satisfied if the accused confronted
the witnesses against him at any stage of the proceedings in the same case and has had an
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opportunity of cross-examination." State v. McCray, 267 Kan. 339, 353, 979 P.2d 134
(1999); see Young, 277 Kan. at 599.

In Young, 277 Kan. at 599, the Kansas Supreme Court held that the district court
did not err in admitting a witness' pretrial testimony because "Young was represented by
counsel at his preliminary hearing and had an opportunity to cross-examine [the witness].
. . . Young's inability to cross-examine [the witness] a second time does not equate to a
Confrontation Clause violation. See McCray, 267 Kan. 339, Syl. ¶ 6." 277 Kan. at 599;
see State v. Mick, 229 Kan. 157, 161, 621 P.2d 1006 (1981).

Here, Guerrero was represented by counsel at her preliminary hearing and had an
opportunity to cross-examine McCollom. Accordingly, there was no Confrontation
Clause violation. The district court did not err in admitting McCollom's preliminary
hearing testimony at trial.

II. DID THE DISTRICT COURT VIOLATE GUERRERO'S RIGHT TO ALLOCUTION?

Second, Guerrero argues the district court violated her right to allocution.
Specifically, she argues that the district court erred when it refused to allow her two
minor sons to testify at sentencing because under her statutory right to allocution she was
permitted to present any evidence in mitigation of her punishment. The State responds
that any error was harmless as the district court took a proffer of the evidence rather than
having the minor children testify. The State also asserts that the district court sentenced
Guerrero in accordance with a special sentencing rule and that mitigating evidence would
have had no impact on the operation of the rule.

At sentencing, Guerrero moved to admit the testimony of her 14-year-old and 12-
year-old sons, but the district court did not allow them to testify. Guerrero objected to this
as a violation of her right to present mitigating evidence during her allocution. The
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district court overruled her objection but accepted a proffer of the evidence. Guerrero
proffered the following: Her 14-year-old son would testify largely consistent with his
older brother, and her 12-year-old would explain how his mother's presence was
important to him in light of his disability for which she provided and ensured his
treatment.

This right to allocution is a statutory right, not a constitutional one. See State v.
Stallings, 284 Kan. 741, 750-51, 163 P.3d 1232 (2007). Therefore, we review a claim that
the district court violated a defendant's right to allocution under a harmless-error
standard, which is whether there is a reasonable probability that the error affected the
outcome of the proceeding. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011),
cert. denied 565 U.S. 1221 (2012).

"Before imposing sentence the court shall . . . address the defendant personally
and ask the defendant if the defendant wishes to make a statement on the defendant's own
behalf and to present any evidence in mitigation of punishment." K.S.A. 2017 Supp. 22-
3424(e)(4). "For a defendant to successfully assert error based upon a denial of the
opportunity to present evidence in mitigation of punishment pursuant to the right to
allocution in K.S.A. 1994 Supp. 22-3424(4), the defendant must make a proffer of the
contemplated evidence comparable to that required by K.S.A. 60-405." State v. Hunt, 257
Kan. 388, Syl. ¶ 10, 894 P.2d 178 (1995).

On appeal, Guerrero relies heavily on State v. Hutton, No. 98,374, 2008 WL
2796466 (Kan. App. 2008) (unpublished opinion), where the district court both prevented
the defendant's wife from speaking at sentencing and failed to inform him of his statutory
right to present mitigating evidence. The Hutton panel held that these limitations did
indeed violate the defendant's right to allocution. 2008 WL 2796466, at *2. Yet, in the
case at hand, the district court did not completely prevent Guerrero from presenting
mitigating evidence. Rather, the district judge simply declined to let her minor children
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testify because of his concern for their well-being and instead accepted a proffer of their
testimony. Guerrero's husband and son testified to the same essential facts that her minor
children planned to address—her importance in their lives and her role as a caregiver for
the youngest son. The bar on allocution in Hutton is simply not present in the case at
hand.

But even if we were to assume the district court erred by forbidding the minor
sons' testimony, there is no reasonable probability that this error affected the outcome of
the proceeding—in this case, Guerrero's sentence. First, the district court heard and
considered Guerrero's proffered evidence, noting that children 14 and 12 generally want
their mother present and it would be a hardship on them not to have their mother at home.

Additionally, and most importantly, the district court clearly explained that its
decision to sentence Guerrero to imprisonment turned on the application of the special
sentencing rule which authorized the imposition of a prison sentence instead of a
presumptive probation sentence because Guerrero committed her crime while on felony
bond. Guerrero speculates on appeal that her minor sons' testimony, if given in person
rather than by proffer, would have potentially mitigated her sentence. We are
unpersuaded by this argument because the district court clearly emphasized that it
believed applying the rule in this case was "absolutely appropriate" considering the
nature of the other cases pending against Guerrero at the time. There is nothing in the
record to indicate that additional, cumulative testimony would have altered the district
court's decision. Any error here was harmless.

Affirmed.