State v. Moreno

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NOT DESIGNATED FOR PUBLICATION

No. 118,409

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

FRANCISCO MORENO,
Appellant.


MEMORANDUM OPINION

Appeal from Finney District Court; WENDEL W. WURST, judge. Opinion filed June 7, 2019.
Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and
Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., BRUNS, J., and BURGESS, S.J.

PER CURIAM: Francisco Moreno appeals after a Finney County jury convicted
him of six total crimes, four of which are relevant to his appeal: (1) attempted voluntary
manslaughter of a gestational infant, occurring near the Finney and Kearny County
boundary; (2) attempted second-degree murder of Lisette Dominguez, occurring near the
Finney and Kearny County boundary; (3) aggravated kidnapping, occurring in Finney
County; and (4) intimidation of a victim, occurring in Finney County. Moreno claims that
venue was improper for the attempted manslaughter and attempted murder charges in
Finney County and that the evidence was insufficient to prove he had committed
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aggravated kidnapping and intimidation of a victim. Venue was proper in Finney County,
and there was sufficient evidence that supported each of Moreno's convictions. We
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Moreno was stopped while driving his vehicle on October 9, 2016, by an officer of
the Finney County Sheriff's Office after his mother called to report a domestic violence
situation between Moreno and Dominguez, his pregnant girlfriend. Moreno was
subsequently arrested and charged with a litany of crimes, all charged as having occurred
in Finney County, including two counts of aggravated kidnapping, two counts of
aggravated battery, one count of aggravated endangering a child, and one count of
criminal threat.

Before trial, the State amended the complaint to add charges for more crimes
allegedly committed against Dominguez, including two counts of attempted first-degree
murder, two counts of aggravated intimidation of a witness or victim, and two counts of
violation of a protective order. The State also added one count of aggravated assault and
one count of criminal threat, all allegedly committed against another individual, Evan
McClure, who was also involved in the incident that led to Moreno's arrest.

At the preliminary hearing, the State dismissed the charges involving McClure
because it was unable to subpoena him to testify. At the close of the preliminary hearing
the State argued: (1) that it believed the acts leading to Moreno's charges originated and
finished in Finney County; and (2) that the majority of the actions took place in Finney
County, but some events may have taken place in Kearny County. As a result, the State
believed that venue was proper in Finney County based on the underlying caselaw for
acts occurring in multiple counties or acts occurring on or near the border between two
counties. The trial court bound Moreno over on the remaining charges, other than
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aggravated endangering a child charge since Moreno was bound over on the attempted
first-degree murder charge against the unborn child. The trial court also directed the State
to file a second amended complaint reducing one of the aggravated intimidation of a
witness or victim charges to intimidation of a witness. Moreno pleaded not guilty to the
charges.

Testimony in the jury trial began on April 24, 2017. Over the next 5 days, the
State presented the testimony of 23 total witnesses, consisting of law enforcement,
medical personnel, Dominguez, and family members of both Moreno and Dominguez.
Because the issues on appeal mainly deal with whether the particular location of the
events had been proven, many of the underlying facts of this case are unnecessary to
analyze these issues. The following is a general description of the underlying events, and
a more detailed description of the geographical locations of events will be discussed
where appropriate.

The State's presentation of evidence

Maria Lopez, Moreno's mother, called 911 on October 9, 2016, and requested an
ambulance be dispatched to her trailer. Moreno woke Lopez up that morning and told her
to look at what had happened to Dominguez, who was "all bloody" and whose face "was
in bad shape" because "[i]t had been beaten," presumably by Moreno. According to
Lopez, Moreno did not know she called the police, but he and Dominguez left in his
vehicle before the ambulance arrived.

Jerry Hahn, a patrol corporal with the Finney County Sheriff's Office, responded
to the 911 call. Officer Hahn proceeded to stop Moreno's vehicle two blocks from Lopez'
trailer and made contact with the driver, later identified as Moreno. As the officer was
walking toward the vehicle, he could hear Moreno inside the vehicle yelling something at
the female passenger, later identified as Dominguez.
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Officer Mariano Muniz, a patrol deputy with the Finney County Sheriff's Office,
also responded to the 911 call and arrived shortly after Officer Hahn had stopped the
vehicle. Officer Muniz got out of his patrol car and approached the vehicle from the
passenger side. Inside the vehicle, he could see a male subject, who Officer Muniz knew
to be Moreno, and a female passenger. Officer Hahn asked Moreno to exit the vehicle
and he complied. Officer Muniz patted Moreno down for officer safety.

Another Finney County patrol deputy, Jared Mindrup, arrived to assist with the
vehicle stop. Officer Mindrup testified Moreno seemed agitated and kept trying to turn
and yell something to Dominguez, but the officer could not recall what Moreno yelled.
As Officer Muniz was arresting Moreno, Moreno asked, "How can you arrest me if she
didn't say I did it?" Shortly after being placed under arrest, Moreno began yelling toward
Dominguez not to tell the officers anything. Officer Mindrup removed Moreno from the
scene, then the officers went to assist Dominguez.

Officer Hahn testified that he noticed "several injuries to [Dominguez'] face and
arms," and "there was obvious swelling and misshaping to the structure of her face."
Dominguez was upset and crying but could speak and told Officer Hahn she was
pregnant. Officer Hahn radioed this information to EMS—the ambulance paramedics.

Officer Muniz testified that while they waited for an ambulance to arrive
Dominguez did not appear to want to talk. Officer Muniz took photographs of the
vehicle's interior, as well as Dominguez' injuries. The officer also took photographs of
her injuries later at the hospital. These photographs were then admitted as evidence at
trial. A couple of the photos depicted the interior of the vehicle and showed what Officer
Muniz believed to be "blood and hair . . . matter that was in the center console."
Dominguez agreed that the hair and blood on center console could have been hers. On
cross-examination, Officer Muniz testified he believed the hair and blood on the center
console came from Dominguez but that he had not analyzed it. Officer Muniz identified
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one of the photos as depicting Dominguez as she appeared sitting in the passenger seat
and said he initially believed she was dead. Officer Muniz also identified a picture
depicting a "very deep cut" on Dominguez' finger that looked like it was "almost severed
and cut off."

Jeff Steele, the investigating detective with the Finney County Sheriff's Office,
obtained and executed a search warrant on Moreno's vehicle. The vehicle was towed to
secure it as evidence. Detective Steele took photographs of the interior of the vehicle,
which he believed depicted blood in various locations throughout the interior, including
the back driver's side door, the passenger side rear door, the backseat, and the floorboard.
Detective Steele also collected a Phillips-head screwdriver, a white hand towel that
appeared to have blood on it, and various items of clothing to be submitted as evidence.

James Good, a paramedic who responded to the 911 call, testified that he assisted
Dominguez, who was complaining of pain and had "obvious swelling to [her] face, arms,
and hands." Good testified Dominguez had to be "dead lifted" out of the vehicle by the
paramedics and onto the gurney because Dominguez was in so much pain and was unable
to stand up by herself. On cross-examination Good testified Dominguez pointed to her
crotch when asked if she could step out of the vehicle, but he could not see any signs of
trauma to that area when assessing her injuries.

Joshua Hartman, the emergency room doctor at St. Catherine's Hospital in Finney
County, and Michael Simon, the emergency room nurse assessing Dominguez, testified
that upon her arrival, they immediately noticed the swelling and bruising of her face and
the lacerations to her hands, but they were also concerned with any possible internal brain
or spinal injuries, as well as the fact that she was around 26 to 28 weeks pregnant.

Simon testified Dominguez told him that her significant other took her into the
country and accused her of sleeping with several people. He stated Dominguez told him
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Moreno had beaten her while "telling her this was the place she was going to die if she
didn't admit to sleeping with several people." Dominguez also told Simon that "she
admitted to it because she wanted [the beating] to stop, and then he beat her some more.
And when they came back into town to Deerfield to get gas [she] was told to cover up her
face because there were people there."

Doctor Hartman testified Dominguez complained of abdominal pain and had
contractions every six minutes. Doctor Hartman also testified he ordered a CT scan of not
only Dominguez' brain, but also her face and cervical spine. The CT scan showed a
subdural hematoma, just outside the brain. The decision was made to transfer her to
Wesley Medical Center in Wichita due to St. Catherine's lack of a neurosurgeon and its
inability to care for a premature baby if Dominguez had given birth.

Before Dominguez left St. Catherine's Hospital, Officer Muniz spoke with her, as
well as her mother, Raquel Elizalde; Dominguez' friend, Lilibeth Hernandez; and
Dominguez' aunt, Melissa Huerta. The officer explained to Elizalde that Dominguez was
unwilling to speak with him regarding what had happened. When Officer Muniz returned
to the hospital that afternoon, Dominguez provided some details regarding what had
happened to her.

Officer Muniz testified Dominguez told him that Moreno left her mother's house
the previous day because "'[n]obody in her family likes him.'" He returned around 3 a.m.
the next day to pick her up. They drove to his mother's trailer and an argument ensued.
Moreno stopped the vehicle and she got out. Moreno followed her and was yelling at her.
Dominguez was not sure where the vehicle had stopped, but she knew that it was one of
the trailer parks in the area. She walked to a trailer, tried to open the front door, and
began to yell for help. Moreno then grabbed her hair and dragged her back to the vehicle.

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Dominguez told Officer Muniz she hit Moreno with a bottle at that time. Moreno
then forced her into the vehicle and told her he was going to drive her to a field and beat
her. They drove for a while and ended up in an unknown field. Moreno was accusing her
of sleeping with his uncle and brother. He began beating her and would not stop until she
told him what he wanted to hear. Dominguez said in the process she was cut by a
screwdriver but did not know exactly how it occurred. Dominguez did not know where
this occurred because it was dark, but that they drove out of the field and ended up at a
store in Deerfield, where the vehicle broke down and they received assistance. After the
employees at the store helped them, Moreno and Dominguez drove back to his mother's
trailer in Garden City. Lopez called the sheriff's office and an ambulance. Moreno told
Lopez that he was going to take Dominguez to the hospital. Dominguez stated she did not
want Moreno to take her to the hospital, but he picked her up and put her back in the
vehicle. They began to drive away, and law enforcement stopped them shortly thereafter.

Elizalde testified she first learned her daughter was in the hospital when Lopez
came to her trailer that morning around 10 a.m. and told her, "Francisco almost killed
your daughter." When Elizalde arrived at the hospital Dominguez said, "Look at my
hands. I was protecting me and my baby. He wanted to kill us."

Hernandez testified when she first arrived at St. Catherine's Hospital Dominguez
"said something like, I told you I needed help." Dominguez said Moreno got a
screwdriver and stabbed her with it stating, "I'm going to kill you and that baby, and
kicked her in the vagina."

Officer Muniz returned to the hospital and spoke to Dominguez. Hernandez,
Elizalde, and Huerta were also present during this conversation. Dominguez stated that
Moreno accused her of being with McClure and Moreno was very mad. Moreno told
Dominguez and McClure he was going to beat them both, and McClure ran away.
Moreno then told Dominguez he was going to kill her and the baby.
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On cross-examination, Huerta admitted that she omitted some details from her
written statement because Dominguez had already told Officer Muniz that information.
Huerta remembered Dominguez telling Officer Muniz that she left with Moreno and they
drove until he pulled over and tried to fight McClure. Dominguez tried to escape and
managed to get out of the car, then tried to enter someone's trailer, but Moreno pulled her
by the hair and injured her finger in the process. Huerta specifically remembered
Dominguez telling Officer Muniz that the finger injury occurred at the trailer park, and
not by the field. On redirect, Huerta clarified that Dominguez told her the finger injury
happened when she was opening the door of a trailer and Moreno pulled her by the hair.

Bruce Thomas, a level one trauma surgeon at Wesley Medical Center treated
Dominguez and testified the trauma team found no internal bleeding, but that the
fractures to her face and nose required consultation with a face surgeon and she was
admitted to Wesley to monitor her baby's health. On cross-examination, he explained that
because of her injuries, they were concerned Dominguez could have gone into labor and
wanted her at Wesley because that hospital was equipped to handle a premature birth.

Megan Meier, a registered forensic nurse at Wesley Medical Center, completed a
forensic examination of Dominguez. Dominguez gave Meier a detailed accounting of the
timeline of events stating that Moreno picked her up around 3:30 a.m. on October 9,
2016. They drove to the trailer park where his mom lived, and he got into the backseat
and began punching and kicking her. Moreno grabbed her head and banged it against the
door. Dominguez tried to get away but the child locks on the backdoor prevented her
from escaping, so she hit him in the head with a beer bottle. Dominguez then climbed
into the front seat, opened the door, and started running. She saw a trailer and began
knocking on the door. The door was open but before Dominguez could enter, Moreno
pulled her down the stairs by her hair. She fell down and Moreno told her she had five
seconds to get up, but she was hurting and unable to stand on her own. Moreno put
Dominguez in the car and began driving.
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Meier said that Dominguez told her Moreno eventually pulled over and began
hitting and kicking her again. Moreno asked her if she had ever messed around and kept
hitting her. Dominguez told him what he wanted to hear. Moreno told her he would kick
her in the stomach and he did not care. He helped her back to the car and started hitting
her again. Sometime while she was in the car, Moreno stabbed Dominguez in the left
hand with a Phillips-head screwdriver in two locations. Moreno began accusing her of
sleeping with other people and hitting her. He finally stopped when the sun came up.
Moreno asked Dominguez if she knew how to get home because they were in Deerfield,
and they stopped at a gas station. When they arrived back at Lopez' trailer Moreno told
his mother that he did this to Dominguez because she was sleeping with his mother's
boyfriend. Lopez called the police, and Moreno said he had to leave because he did not
want to go to jail. Dominguez said, "'His mom tried to stop him, but he wouldn't listen.
By the time we got out of the trailer park and turned the corner, the cop was already
there.'" Moreno told the police, "'I got beat up at a party.'"

Meier testified that she put as much of what Dominguez said in quotes as possible
and that Dominguez was visibly upset and crying when relaying the history of what had
happened. Meier took photographs of "every injury [she] could visibly see that [she]
could possibly take of the patient without causing further harm to either her or . . .
put[ting] the fetus in distress . . . ." Meier used the photographs to complete a body
diagram of Dominguez' injuries. The body diagram was shown to the jury, and Meier
described specific injuries, including:

 "redness and bruising on scalp under hair with an abrasion,"
 "abrasions around her mouth and the bruising . . . on her tongue,"
 "her hands where she had some lacerations . . . and a puncture mark on her
left hand and some bruising," and
 "scratches and a bruise on her abdominal area [of] multiple and various
lengths, and also . . . low abdominal and pubic tenderness upon walking."
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Meier testified it took about an hour and half to photograph all of Dominguez'
injuries. The trial court admitted the photographs Meier took of Dominguez' injuries,
over Moreno's objection that they were unduly gruesome and duplicative. In particular,
Meier described one picture as depicting an injury to Dominguez scalp area where it
appeared that hair was missing. Meier said that after taking the photos, Dominguez asked
her to help clean the blood from her hair. On cross-examination, Meier explained that she
relied on Dominguez' history and her account of the events to document and look for
specific injuries. She said "if [Dominguez] wouldn't have told me her hair was pulled, I
wouldn't . . . have necessarily dug through her hair to look for, you know, any injuries."

Detective Steele and Officer Muniz spoke with Dominguez again at her mother's
trailer after she had been discharged from Wesley Medical Center. In addition to what
she told Officer Muniz at the hospital, Dominguez also stated that after McClure ran
away from the car, before she fled to a nearby trailer, Moreno got into the backseat of the
car, and began hitting and kicking Dominguez, and slammed her head against the rear
driver's side door. Moreno then got back into the front seat to begin driving. She found a
beer bottle and tried to open the back doors but they would not open because the child
locks were on.

Dominguez climbed into the front seat and tried hitting Moreno with the beer
bottle so she could escape from the vehicle and run. She got out and took off running
toward a trailer. Dominguez opened the door, but Moreno was right there and grabbed
her and pulled her back. Dominguez said she was unable to stand up and Moreno picked
her up and put her back in the vehicle. Moreno told Dominguez he was going to take her
to a field and "beat her ass." Moreno began driving, but Dominguez could not tell
Detective Steele which direction because she did not have her glasses on. Moreno
stopped by a field and began hitting, kicking, and punching her again inside the car.
Moreno told Dominguez to get out of the car, which she did but could not remember
how, and he began hitting and kicking her and slamming her head into the ground.
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Detective Steele testified Dominguez then advised him that Moreno told her to get
back in the car, but she stood up and then fell down. Moreno told Dominguez she had to
the count of five or he would kick her in the face again. After she got back in the car,
Moreno then began going through her phone and accusing her of having sex with other
men, including his brother. She told him she had not, and then he hit her. Moreno
continued asking her about sleeping with his brother and other people and then hitting
her. Dominguez felt she had to answer in a certain way to avoid being hit again.
Eventually the sun was out, and they left the field and ended up in Deerfield. Dominguez
told Detective Steele that on the drive to his mother's trailer in Garden City, she told
Moreno she wanted to go to her mother's trailer instead. Moreno said he would not let her
go back there until she was healed.

Detective Steele also testified regarding a video call that took place while Moreno
was in jail awaiting trial. Moreno and Melinda Perez, one of Dominguez' friends,
engaged in a video call where Dominguez was present. Dominguez testified that she was
present during the video call, but that she did not personally have contact with Moreno
during the call. During the video call, Moreno never addressed Dominguez by name but
asked Perez to tell Dominguez that he loved her. Moreno also stated "that the only help
he can get is if one witness against him doesn't show up" to testify at trial. The trial court
admitted a redacted copy of the video call at the State's request.

Dominguez' testimony at trial

During Dominguez' testimony at trial, the trial court permitted the State to treat
Dominguez as a hostile witness. The trial court found that she was being evasive. Her
testimony at trial varied from her testimony at the preliminary hearing.

Dominguez testified that the events leading to Moreno's arrest began the day
before when Moreno dropped her off at her mother's trailer in Garden City to attend a
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family function around 3 p.m. Dominguez expected Moreno to attend as well, but he
decided to drop her off and leave. Eventually, he returned in his car with a friend,
McClure, to pick up Dominguez at her mother's residence around 3 a.m. Dominguez got
in the backseat and Moreno began to drive; Dominguez assumed they were driving
McClure home or back to Lopez' trailer. At some point, the car stopped at a trailer park
but Dominguez did not know exactly where they were. Moreno and McClure exited the
vehicle, and then Moreno got back into the vehicle. Dominguez was not "paying
attention" to where McClure went.

Dominguez stated they then drove around the same trailer park. Dominguez could
not remember if Moreno had hit her, but she climbed into the front seat, opened the door,
and got out. Dominguez said that she could not remember her previous testimony at the
preliminary hearing that after McClure left the vehicle, Moreno got into the backseat with
her, they started arguing, and the argument turned "physical." Dominguez started walking
toward a trailer but could not remember which trailer it was. She reached the trailer and
tried to open the door, not knowing who owned the trailer. Moreno then talked her into
going back to the car, and they left.

Dominguez testified she could not remember testifying at the preliminary hearing
that Moreno carried her back to the car, but she said she went voluntarily. On cross-
examination, she said she believed Moreno grabbed her hair but that it caused no injury at
that time. Dominguez said on further cross-examination that upon returning to the
vehicle, she hit Moreno in the head with a bottle. They then began driving. Dominguez
testified Moreno "maybe" said that he was going to take her to a field and beat her ass.

On cross-examination, Dominguez also testified that after leaving the trailer park,
Moreno drove his car on all dirt or gravel roads in the country. Moreno eventually pulled
over to the side of the road next to a field. Moreno and Dominguez were arguing about
being unfaithful, and she told Moreno she probably had slept with his brother.
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Dominguez acknowledged that she testified at the preliminary hearing that they were
arguing because Moreno was accusing Dominguez of cheating on him, but Dominguez
believed that argument occurred after they had driven to the field. Dominguez testified
that the field was where Moreno first struck her and where "most, if not all" of the
physical beating took place. She testified the reason they were fighting was that Moreno
was accusing her of sleeping with various people and wanted her to admit that she was
sleeping with those people. When she did not answer the way he wanted, he would hit,
kick, or punch her.

Dominguez had marks all over her face, back, shoulders, legs, and ankles from
where Moreno had hit her. She testified she "could have" told people Moreno kicked her
in the vagina and that Moreno said he was going to kill her and her baby. On cross-
examination, Dominguez denied that Moreno had ever said he was going to kill her and
the baby, but that he could have killed her and the baby if he wanted to.

Dominguez stated that she remembered testifying at the preliminary hearing
Moreno hit and kicked her outside in the field and that she tried to get up and fell down.
Dominguez stated they were also fighting over a screwdriver at some point inside the car,
but that the screwdriver did not cut her finger. During the preliminary hearing,
Dominguez testified that the screwdriver struck her hand and caused it to bleed.

Dominguez also testified she did not believe Moreno stabbed her finger with the
screwdriver. She said there were times in the field when he was holding her by the hair
and pounding her face into the ground. Dominguez could not lay flat on her stomach
because she was pregnant, and she covered her stomach with her arms to protect her
baby.

Dominguez testified she did not know how long they were in the field, but it was
dark outside when they arrived and light outside when they left. She believed they drove
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west when they left the field but could not remember if they were driving toward or away
from the sun. Dominguez said it was "maybe like a five-minute drive" from the field to
the gas station. Moreno's car would not start at the gas station. Dominguez did not
remember how long they were at the gas station, but she remained in the car the entire
time and had covered her face and body with a towel. Moreno had told her to clean
herself up at the gas station because her face looked like a pumpkin.

Dominguez testified that while she was being treated at the hospital, she was
having contractions, and the doctors decided to send her to a hospital in Wichita.
Dominguez could not remember why they told her she had to go to Wichita. She also
could not remember making statements to the doctor and nurse while at the St.
Catherine's Hospital in Garden City.

Dominguez also said she was not testifying in a certain way because she was
afraid of Moreno or because she was in love with him and wanted to stay together.
Dominguez agreed there was nothing keeping her from telling the truth while testifying,
but she said that "[her] memory in general" may have caused her to either embellish or
change words when talking to detectives or other witnesses. On redirect, Dominguez
testified she had broken up with Moreno six or seven months before the trial but that her
recently deleted Facebook page had reflected they were still together and would continue
being together. Dominguez also testified that while at the hospital, somebody asked her if
she wanted the blood out of her hair.

Moreno's Presentation of Evidence

On the fifth day of the trial, Moreno presented testimony of one witness, as well as
testifying himself. Perez testified that she saw Moreno at a bar and a house party the
night of October 8, 2016. They talked and Perez noticed that Moreno was high from
taking Xanax pills and drinking.
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Moreno then testified, stating that on the morning of October 8, 2016, he was at
his mother's trailer with Dominguez and her children. He took Dominguez to her mother's
house for a family get-together around 3 p.m., but did not want to go himself. Moreno
told Dominguez he would return after taking a shower, but he did not return at 5 p.m. as
he had promised. He went to a tattoo parlor, bars, and a house party before returning with
McClure to pick up Dominguez. Dominguez got in the backseat and they began to drive
away. While driving to his mother's trailer, where he and Dominguez were living at the
time, Moreno began to question whether Dominguez had been cheating on him with
McClure. Moreno stopped the car right near the entrance to the Wagon Wheel Trailer
Park to fight with McClure, who took a swing at Moreno and then ran away.

Moreno testified that after McClure ran away, he got back into the car with
Dominguez and asked if she and McClure had been messing around with each other. She
climbed into the front seat of the car, and they continued to drive to his mother's trailer;
meanwhile, Moreno was calmly asking Dominguez about McClure. Dominguez then hit
Moreno with a bottle, got out of the car, and walked away toward a yellow trailer near the
one owned by Moreno's mother. Moreno followed her, and once he caught up to her at
the door of the trailer, he grabbed her by the shirt and they got back in the car together.
Moreno drove and Dominguez rode silently in the backseat of the car until they reached
the field. According to Moreno, he drove the car away from the trailer park toward VFW
Road and then took a right to drive toward the highway.

The following line of questioning between Moreno and his defense counsel
occurred:

"Q. Where did the two of you drive to?
"A. We drove all the way up to the highway.
"Q. You're talking about the bypass?
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"A. Boy, I drove up to the highway over here off of, you know, VFW Road ends and
there is a highway right there.
"Q. Okay. What did you do then?
"A. I took a left on that highway.
"Q. And where does that highway go?
"A. It goes towards, I guess, you could say Syracuse, that—
"Q. You're talking about the big highway?
"A. The big highway, yes.
. . . .
"Q. Where did you drive to then?
"A. I drove towards the bypass.
"Q. Okay. And at any point did you get on the bypass?
"A. I did get on the bypass.
. . . .
"Q. Where did you go on the bypass?
"A. I took a right on the bypass.
"Q. Where to?
"A. Well, the bypass—the bypass—okay, either you take a left and you go towards
Holcomb or Tyson, or you take a right and just go up toward—on the gravel road going
up.
"Q. So you didn't get on the actual highway, you went over it, north of the bypass?
"A. Yeah.
"Q. Where were you going?
"A. I wasn't planning on going anywhere. I was just thinking.
. . . .
"Q. Where did the two of you drive, then?
"A. Well, I hit the first road, and I was going to take a U-turn, but when I turned—when
I took a left, I brought up the subject, and when she said something slick, so I just kept
driving.
"Q. And so at this point you had gone north of the highway and now you turned left on a
dirt road?
"A. Yes, I did.
"Q. Any idea where you were at that time?
"A. I just remember being on a gravel road.
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. . . .
"Q. How long did you drive?
"A. I don't even remember.
"Q. And this was all gravel roads?
"A. Yes, it was."

Moreno testified that once arriving at the field, he asked Dominguez if she had
slept with his brother, to which she said she had. Moreno was angry and stopped the car,
then got into the backseat and began hitting Dominguez in the face with a closed fist,
causing her to begin bleeding. He continued hitting her in the face and other parts of her
body, including her hands and arms as she was using them to block his punches. Moreno
opened the door to the car and kicked her out and onto the ground. Dominguez laid on
her side and used her hands and arms to block her stomach to protect her unborn baby.
He continued hitting and kicking her on the shoulders and back, yelling out names of men
he thought she had slept with. While Dominguez believed that she had to agree she had
slept with these men to get Moreno to stop hitting her, Moreno said the beating would
have been worse if she had admitted to sleeping with more men. Moreno kicked her in
the face at least once and threatened to do so again.

Eventually, Moreno stopped beating Dominguez and put her back into the car. His
car was facing away from the sun, which had just started to rise. He drove west for a few
seconds before running into a ditch, then he turned the car around and drove past the spot
where the beating occurred and turned right on the next road. From there, Moreno said he
drove south on that same road until he hit the highway, before eventually ending up at the
Country Corner gas station in Deerfield. Moreno's car stalled on the highway, so he
pushed it into the parking lot to park at the gas pumps.

After purchasing gas at the Country Corner and receiving assistance from the
employees there to fix his stalled car, Moreno said he and Dominguez returned to his
mother's trailer in Garden City. After his mother called the police, Moreno and
18

Dominguez got back in the car and drove away. Shortly after leaving the trailer park, the
car was stopped by officers from the Finney County Sheriff's Office.

Amending the complaint

On the first day of trial, before beginning jury selection, the trial court discussed
the parties' proposed jury instructions, and the State asked the court to review State v.
Rivera, 42 Kan. App. 2d 1005, 219 P.3d 1231 (2009), because it "really applie[d] to our
case." According to the State:

"[Rivera] talks about instructing the jurors on the fact that the crime may have occurred
in a neighboring county as well as Finney County, so we will be asking the Court to
review that case. So as we don't know exactly where some of the things in the county
happened."

The trial court requested that the State provide it with a proposed jury instruction
on the issue by the third day of trial. Moreno explained to the jury in his opening
statement that the evidence would show that the relevant actions all happened within
Kearny County. On the third day of trial, the parties discussed their proposed instructions
with the trial court, with the State requesting to include that events leading to the charges
"occurred in Finney or Kearny County" on several of the charged crimes, and the State
mentioned that an instruction might also be needed for a different statutory venue
exception for when different elements of a crime occur in different counties.

On the fourth day of trial, and before presenting evidence, the State explained that
it intended to amend some charges to encompass both Finney and Kearny Counties
despite not having presented any evidence that any elements of the crimes occurred
outside Finney County. When the trial court asked why it would "instruct on one act in
one county and one act in another," the State admitted that the reason for the requested
change was "[b]ecause we don't know for sure where the field is [located]." The trial
19

court reminded the State that it has a burden of proving venue and that it would need to
file an amended complaint before resting its case.

Later that day, after presenting evidence, the State moved to amend the complaint
for some of the charges to encompass both Finney and Kearny Counties. Moreno
objected to the amendment, arguing that the State had ample time since the preliminary
hearing to amend the complaint in this way. He contended that allowing the amendment
would prejudice his defense because the area would now be "much broader." Moreno
also argued that the evidence presented showed that the beating happened in or around
Deerfield, entirely within Kearny County, and "absolutely no proof [was] given that [the
beating occurred in] Finney County."

The trial court reminded Moreno that before jury selection and on the morning of
the second day of trial, the State had indicated it would be submitting instructions with a
dual county element. The trial court allowed the dual county amendments, finding that
the amendments conformed to the evidence and that Moreno's substantial rights were not
prejudiced by the amendments.

After the State rested, Moreno moved for a judgment of acquittal. While reviewing
the charges, the trial court instructed the State that it needed to elect the evidence
supporting each charge. The State argued that evidence of the beating in the field was
sufficient to establish the attempted murder charges. The trial court denied the motion to
acquit on the attempted murder charges. The State argued that evidence of a finger injury
or hair being pulled out was the "bodily harm necessary for the aggravated kidnapping in
that count" and that the testimony showed the aggravated kidnapping occurred solely in
Finney County. The trial judge denied the motion to acquit on the aggravated kidnapping
charge, finding that "physical harm that occurred in the course of the taking supports the
bodily harm element . . . but I think . . . there is evidence of bodily harm exclusive of . . .
the beating in the cornfield." Because the complaint had the dual county element on the
20

aggravated kidnapping charge at that time, the trial court advised that the State would still
need to convince the jury that any bodily harm occurred near the Finney and Kearny
county line. After dismissing four of the charges based on the motion for judgment of
acquittal, the trial court instructed the State to file a fourth amended complaint with the
seven remaining charges.

At the close of Moreno's presentation of evidence, Moreno renewed his motion for
judgment of acquittal on all charges. Moreno mainly argued that the trial court should
acquit him of the two counts of attempted murder, aggravated kidnapping, and
aggravated battery because the State had failed to show that any acts occurred "on or so
near" the Finney and Kearny county line to not be readily determinable to support the
dual county element for those charges. Moreno argued that the evidence showed the
beating in the field took place west of Deerfield—within Kearny County.

The State explained that the evidence supporting the aggravated battery charge
occurred in a trailer park in Finney County, Moreno had gotten into the car and kicked,
hit, and smashed Dominguez' head into the car door. The trial court denied the motion for
acquittal on the aggravated battery, and it said that it would hold the State to this election
that the aggravated battery occurred only in Finney County.

As to the attempted murder charges and the aggravated kidnapping charge, the
State argued that there was evidence to show that Moreno and Dominguez ended up in
Deerfield, but that "no one knows particularly an exact location where that field [where
the beating took place] was, but we do believe that it was close to the line between
Kearny and Finney line." The trial court denied the motion for acquittal for these charges,
finding that no "definitive determination as to exactly where the car stopped on the side
of the road" could be established based on the evidence.

21

Later, when discussing a proposed multiple acts instruction that the State
requested, the State went through its elections to support each charge. The State said for
the attempted murder charges, the beating in the field supported those charges. As to the
aggravated kidnapping charge, the State argued that the bodily harm element could be
established by evidence that while the vehicle was stopped outside the Wagon Wheel
Trailer Park, Moreno had grabbed Dominguez, pulled her by the hair, and dragged her
down the stairs of the trailer, causing her to fall down. The trial court clarified that this
meant the aggravated kidnapping would have taken place in Finney County only, and the
State agreed.

The trial court instructed the jury on the charges, with only the attempted murder
charges including the dual county language. The instructions also included a multiple acts
instruction for the attempted murder charges and the aggravated kidnapping charge. After
around four hours of deliberation, the jury returned verdicts finding Moreno guilty on all
six counts: attempted voluntary manslaughter, attempted second-degree murder,
aggravated kidnapping, aggravated battery, intimidation of a victim, and criminal threat.

Before sentencing, Moreno moved to arrest judgment and for new trial, arguing
that by allowing the State to amend the complaint several times and to elect a specific act
on the aggravated kidnapping charge prejudiced him. At the sentencing hearing, Moreno
also argued that allowing the State to "hedge its bets" by including the dual county
language in its amended complaint failed jurisdictionally because the amended complaint
did not state one particular location with specificity. Ultimately, the trial court denied the
motion to arrest judgment because there was a "legitimate question for the jury"
regarding where the acts supporting the attempted murder charges occurred and because
the State had elected to pursue the argument that the aggravated kidnapping occurred
only in Finney County.

22

The trial court sentenced Moreno to 640 months in prison consecutive to an
additional 180 days in county jail. Moreno filed a timely notice of appeal.

DID THE TRIAL COURT LACK VENUE TO PROSECUTE
MORENO FOR THE TWO ATTEMPTED MURDER CHARGES?

On appeal, Moreno raises two arguments relating to venue: (1) The trial court
abused its discretion when it allowed the State to amend the complaint for the attempted
murder charges to allege they occurred at or near the boundary of two counties; and (2)
the trial court lacked venue to prosecute Moreno for the attempted murder charges
because the State failed to prove that venue was proper and jurisdiction existed.

The State disputes that allowing the amended complaint was an abuse of discretion
by arguing that it had "considerable latitude" to amend a complaint to "more accurately
meet the evidence presented at trial." Further, the State contends that venue was proper
because the evidence presented before the amendment did not establish a clear
understanding of the location of the field, so the circumstances met the statutory
exception in K.S.A. 22-2604.

Amendment of the Complaint

The State generally has wide discretion to amend a complaint. See State v. Woods,
250 Kan. 109, 115, 825 P.2d 514 (1992). Under K.S.A. 22-3201(e), the State may also
amend a complaint at any time before a verdict so long as it does not charge an additional
or different crime and the defendant's substantial rights are not prejudiced. The State may
amend the complaint at the close of its presentation of evidence to conform to the
evidence. See State v. Holman, 295 Kan. 116, 147, 284 P.3d 251 (2012).

This court reviews the district court's decision to allow an amendment under
K.S.A. 22-3201(e) for an abuse of discretion. See State v. Bischoff, 281 Kan. 195, 205,
23

131 P.3d 531 (2006). A trial court abuses its discretion when (1) committing an error of
law; (2) committing an error of fact, or (3) no reasonable person would take the view
adopted by the trial court. Moreno, as the asserting party, bears the burden of establishing
such an abuse of discretion. See 281 Kan. at 205 (citing State v. Sanchez-Cazares, 276
Kan. 451, 454, 78 P.3d 55 [2003]).

Moreno has failed to meet the burden to show that the district court abused its
discretion. He does not argue on appeal that the amendment charged a new or different
crime or that the amendment violated his substantial rights. Moreno argues only that
allowing the amendment was an abuse of discretion because the State admitted it did not
know the location of the field where the beating took place. However, statutory venue
exceptions allow a prosecution to occur in any county where the evidence shows the
criminal acts occurred or in more than on county if the precise location cannot be readily
determined because the acts occurred on or near the border between counties.

A review of the record shows the jury could have considered at least three pieces
of evidence introduced before the close of the State's case to prove that the field was "on
or near" the boundary between the two counties: (1) The county line was approximately
"five to seven minutes" from the Country Corner in Deerfield, in Kearny County; (2)
Moreno and Dominguez drove west from the field and it was "maybe-like a five minute
drive" to the Country Corner; and (3) Moreno's vehicle entered the parking lot of the
Country Corner from the southwest, from the direction of Lakin, in Kearny County.
Given this testimony, the State sought to amend the complaint to say that the attempted
murder could have occurred in either county. Based on the evidence presented at trial, the
trial court's decision to allow the State to amend the complaint to include both counties
was reasonable and was not an abuse of discretion.



24

Venue

Moreno next contends that venue in Finney County was improper for the
attempted murder charges because the State failed to present any evidence to show where
the boundary ran between Finney and Kearny Counties and, thus, failed to prove that
Finney County was the proper venue.

Normally, criminal charges must be brought in the county where the crime was
committed. K.S.A. 22-2602. However, there are exceptions through which a defendant
may be prosecuted in any one of several counties. K.S.A. 22-2604 contains the relevant
venue exception here: "Where a crime is committed on or so near the boundary of two
or more counties that it cannot be readily determined in which county the crime was
committed, the prosecution may be in any of such counties." (Emphases added.) Another
exception allows for a prosecution to occur in any county where separate acts constituting
a crime occurred in separate locations. See K.S.A. 22-2603.

The statutory venue provisions are considered jurisdictional; thus, an appellate
court's standard of review when reviewing these statutes is de novo. State v. Castleberry,
48 Kan. App. 2d 469, 474-75, 293 P.3d 757 (2013), aff'd 301 Kan. 170, 339 P.3d 795
(2014). The venue exceptions are based on the commonsense notion that a criminal
should not escape punishment because the crime's exact location was concealed. State v.
Grissom, 251 Kan. 851, 889, 840 P.2d 1142 (1992). Nonetheless, the proof of the proper
venue for trial is a jurisdictional fact that the State must prove in every case. The jury
should determine venue based on the evidence as presented. State v. Hunt, 285 Kan. 855,
859, 176 P.3d 183 (2008). A verdict may be supported by circumstantial evidence if that
evidence provides a basis from which the fact-finder may reasonably infer the existence
of the fact in issue. However, the evidence need not exclude every other reasonable
conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).

25

The fourth amended complaint alleged that the two counts of attempted first-
degree murder occurred "in Finney County or Kearny County, Kansas." Similarly, the
trial court instructed the jury that to find Moreno guilty of those charges, it must find the
acts leading to the charges "occurred on the 9th day of October, 2016, on or so near the
Finney County/Kearny County, Kansas, boundary that it cannot be readily determined in
which of those two counties the crime was committed." (Emphases added.) The trial court
also instructed the jury it was permitted to use its "common knowledge and experience in
regard to the matter about which a witness has testified."

In his brief, Moreno correctly explains the importance of venue as a constitutional
right under both the United States and Kansas Constitutions. Nonetheless, he
acknowledges that the Kansas Legislature enacted K.S.A. 22-2604 as an exception to the
requirement that criminal cases should be prosecuted "'in the county where the crime was
committed.'" By arguing that the State failed to present any evidence on where the
boundary between Finney and Kearny Counties was, Moreno is arguing that the State
presented insufficient evidence to establish that venue was proper in Finney County. As a
result, this court considers all the evidence in the light most favorable to the prosecution
to determine if a rational fact-finder could have found that the criminal acts occurred "on
or so near" the Finney/Kearny County border that it cannot readily be determined where
the crime was committed. See Hunt, 285 Kan. at 859-60 (discussing venue as both a
factual question to be determined by the jury and a legal question as related to a
jurisdictional challenge on appeal).

Before resting its case, the State presented the following evidence relating to the
location of the field: (1) Officer Mindrup testified that the county line separating Finney
and Kearny Counties was approximately "five to seven minutes" from the Country
Corner in Deerfield, in Kearny County; (2) Dominguez testified that Moreno drove the
car west from the field and it was "maybe-like a five minute drive" to the Country
Corner; and (3) employees at the Country Corner testified that Moreno's vehicle entered
26

the parking lot from the southwest, from the direction of Lakin, in Kearny County.
Moreno later testified regarding his recollection of the route he had taken to arrive at the
field and then about leaving the field by driving west for a short time and turning right to
drive south before arriving at the Country Corner.

Based on that testimony, there was sufficient evidence for a jury to find that the
beating occurred by a field on or so near the border between Finney and Kearny Counties
that it could not be determined in which county the acts had occurred. Despite Moreno's
testimony he drove south toward Deerfield, a rational fact-finder could have found that if
both the field and the Finney/Kearny County line were a five-minute drive from the gas
station in Deerfield, the field may have been close to the boundary line. A juror from
Finney County could use their "common knowledge and experience" of the area to infer
from the testimony that the field was so near the county line that it could not determine in
which county the beating had occurred.

Dominguez testified that she did not know where the events took place. Moreno
specifically stated in his testimony that he only knew they were on a gravel road. It is
precisely this type of situation why K.S.A. 22-2604 was enacted. Venue was proper in
Finney County for the attempted murder charges.

WAS THERE SUFFICIENT EVIDENCE TO PROVE
MORENO COMMITTED AGGRAVATED KIDNAPPING IN FINNEY COUNTY?

Moreno argues insufficient evidence supported the finding that the bodily harm
element of aggravated kidnapping occurred in Finney County and this court should
reverse his conviction as a result.

When an appellant challenges the sufficiency of the evidence in a criminal case,
this court will review all the evidence in a light most favorable to the prosecution. To find
27

that the evidence is sufficient, the appellate court must be convinced that a rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. This court does
"'not reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations.' [Citation omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713
(2018). It is only in rare cases where the testimony is so incredible that no reasonable
fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be
reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

To convict a defendant of a crime, the prosecution must prove each element of the
crime beyond a reasonable doubt. State v. Brown, 303 Kan. 995, 1001, 368 P.3d 1101
(2016). Moreno was convicted of aggravated kidnapping, in violation of K.S.A. 2016
Supp. 21-5408(b), and the trial court instructed the jury:

"To establish this charge, each of the following claims must be proved:
"1. The defendant took or confined Lisette Dominguez by force.
"2. The defendant did so with the intent to hold Lisette Dominguez to inflict
bodily injury or terrorize Lisette Dominguez.
"3. Bodily harm was inflicted upon Lisette Dominguez.
"4. These acts occurred on the 9th day of October, 2016 in Finney County,
Kansas." (Emphases added.)

The Kansas Supreme Court has noted that bodily harm has been defined as "'any
touching of the victim against the victim's will, with physical force, in an intentional,
hostile and aggravated manner,'" but had since been narrowed to include "only
unnecessary acts of violence upon the victim and those occurring after the initial
abduction constitute 'bodily harm.'" State v. Peltier, 249 Kan. 415, 421-22, 819 P.2d 628
(1991) (quoting State v. Royal, 234 Kan. 218, 222, 670 P.2d 1337 [1983]; State v. Taylor,
217 Kan. 706, 714, 538 P.2d 1375 [1975]).

28

Moreno contends on appeal that the State presented no evidence to prove the
bodily harm element. Moreno points out the State argued at trial the bodily harm could
have been satisfied by evidence that (1) Moreno grabbed Dominguez by the hair in the
Wagon Wheel Trailer Park in Garden City, in Finney County, and pulled her hair out; (2)
Dominguez injured her finger while being pulled away from the trailer; and (3) Moreno
injured Dominguez when he grabbed her because she fell down and could not stand up
when he told her to "get up or else." Further, the testimony presented by the State
established only that Moreno had grabbed Dominguez by the hair and pulled her back to
the vehicle, but there was no report of any injury or bodily harm from this action. Moreno
notes he testified that he may also have pulled Dominguez' hair out during the beating at
the field.

Moreno goes on to argue that only one witness testified Dominguez' finger injury
had occurred at the trailer park, while the rest of the testimony showed this injury
occurred later during the beating in the field. As to the third instance, Moreno admits
there was evidence of a beating in the vehicle before Dominguez fled to the trailer, but
contends that this injury had occurred before the taking and, thus, could not satisfy the
element of bodily harm occurring in Finney County as part of the aggravated kidnapping.

The State responds by arguing in addition to the testimony that Moreno grabbed
Dominguez by the hair and pulled her away from the trailer, medical personnel who
treated Dominguez suggested she had bald spots on her head and injuries occurred during
this action. And there was evidence that the finger injury occurred at the trailer. The State
also argues that Dominguez was "guarded" in her testimony because she did not want
Moreno to get in trouble, which explained why her account of the events at trial differed
from what she had told officers, medical personnel, and her family members right after
the event. As a result, the State argues the jury made a credibility determination when
confronted with the differing testimony. As to the incident where Dominguez fell down
after being grabbed at the trailer and was unable to walk, the State points out that
29

Dominguez told witnesses Moreno beat her in his car near the entrance to the Wagon
Wheel Trailer Park—in Finney County—before fleeing the car.

When examined in the light most favorable to the State, the testimony of witnesses
Dominguez had spoken to after Moreno's arrest was sufficient evidence on which a
rational fact-finder could have found him guilty of aggravated kidnapping. Moreno's only
real argument against his conviction is that the bodily harm did not occur in Finney
County during or after the kidnapping.

The Kansas Supreme Court has said that the aggravated kidnapping statute does
not require the bodily harm to occur after the actual kidnapping. See State v. Smith &
Miller, 224 Kan. 662, 674, 585 P.2d 1006 (1978), modified on other grounds 225 Kan.
199, 588 P.2d 953 (1979). In fact, a panel of this court held the same in State v.
Dunerway, No. 111,457, 2015 WL 5224703, at *14 (Kan. App. 2015) (unpublished
opinion). In Dunerway, the defendant was convicted of aggravated kidnapping after he
hit the victim with a two-by-four and immediately thereafter demanded she leave his
apartment, then he grabbed her by the hair and dragged her out of the apartment. Our
court held that there was sufficient evidence to convict the defendant of aggravated
kidnapping even though he never physically harmed the victim after forcing her to leave.
2015 WL 5224703, at *14.

Moreno points out that there was evidence presented at trial of a beating in the
vehicle before Dominguez fled to the trailer, but he contends this injury had occurred
before the taking and, thus, could not satisfy the element of bodily harm occurring in
Finney County as part of the aggravated kidnapping. The State had elected to use
evidence of this act to support the aggravated battery charge, but the multiple acts
instruction did not specifically include the aggravated battery charge. As a result, a
question remains whether the State could use evidence of the beating in the vehicle prior
to Dominguez fleeing to the trailer to support the bodily harm element of aggravated
30

kidnapping. Moreno had previously argued that the elections made by the State made
some of the charges multiplicitious but does not raise this issue on appeal.

There was evidence to support the State's claim that Moreno pulled out
Dominguez' hair. After Dominguez fled to the trailer, Moreno grabbed her by the hair
and pulled her back to the car. Officer Muniz took a photograph of blood and hair on the
center console of Moreno's vehicle. Meier, the forensic nurse at Wesley Medical Center
took pictures of bald spots and abrasions on Dominguez' head and helped her clean the
blood out of her hair.

As to the finger injury, one witness testified that Dominguez said that the
doorknob to the trailer injured her finger while Moreno pulled her away from the trailer.
Then, while being dragged, Dominguez fell and could not walk because of the pain and
Moreno told her to get up and placed her back in the backseat of the car. The State
presented evidence that Moreno hit and slammed Dominguez into the car door just before
she fled to the trailer, which was the reason she was in pain. These actions fulfilled the
elements of aggravated kidnapping and occurred while at the Wagon Wheel Trailer Park
in Garden City, in Finney County. For these reasons, we find that there was sufficient
evidence to support Moreno's conviction for aggravated kidnapping.

WAS THERE SUFFICIENT EVIDENCE TO
SUPPORT MORENO'S INTIMIDATION OF THE VICTIM CONVICTION?

Moreno argues on appeal that the evidence supporting the intimidation of a victim
conviction was insufficient because he made the statement before being charged with any
crime. As a result, Moreno argues he was not preventing Dominguez from attending or
testifying at a purely hypothetical criminal proceeding at that point in time. The State
responds that it presented evidence to show Moreno was upset while being arrested and
31

yelled to Dominguez not to speak to law enforcement, thereby trying to prevent her from
providing evidence that would be used against him during the prosecution.

For a sufficiency of the evidence challenge, this court reviews all the evidence in a
light most favorable to the prosecution to determine if a rational fact-finder could have
found the defendant guilty beyond a reasonable doubt. This court does "'not reweigh
evidence, resolve evidentiary conflicts, or make witness credibility determinations.'
[Citation omitted.]" Chandler, 307 Kan. at 668. To convict a defendant of a crime, the
prosecution must prove each element of the crime beyond a reasonable doubt. Brown,
303 Kan. at 1001.

Moreno was charged with aggravated intimidation of a victim, in violation of
K.S.A. 2016 Supp. 21-5909(b)(1), but the jury convicted him of intimidation of a victim,
a lesser included offense. The trial court instructed the jury on intimidation of a victim:

"To establish this charge, each of the following claims must be proved:
"1. The defendant attempted to prevent or dissuade Lisette Dominguez from
attending or giving testimony at any criminal proceeding authorized by law.
"2. This act was done with the intent to thwart or interfere in any manner with
the orderly administration of justice.
"3. This act occurred on the 9th day of October, 2016, in Finney County,
Kansas."

Moreno argues that the State presented insufficient evidence to support the
intimidation of a victim conviction because he made the statement that allegedly
supported the conviction before being charged with any crime. As a result, Moreno
argues he was not preventing Dominguez from attending or testifying at a criminal
proceeding at that point in time. The State responds by arguing that Moreno made this
statement to avoid facing any criminal charges by seeking to prevent Dominguez from
providing evidence that could be used against him at a later date.
32

When examined in the light most favorable to the State, the evidence was
sufficient for a rational fact-finder to find Moreno guilty of intimidation of a victim.
While it is true that no charges had yet been filed when Moreno told Dominguez not to
tell law enforcement anything, the circumstances suggest that he was trying to prevent a
key potential witness from testifying in the future. The statute includes exactly this
situation, and there is also caselaw to support the State's position. See K.S.A. 2018 Supp.
21-5909(a)(2)(A). In State v. Reed, 213 Kan. 557, 559, 516 P.2d 913 (1973), the Kansas
Supreme Court held that a witness intimidation charge under the previous version of the
statute could be based on acts committed before being formally charged. A panel of this
court noted that in domestic violence situations, the offender knows he or she has
committed a crime and that the victim is a potential witness. See State v. Martin, No.
96,972, 2007 WL 2768038, at *3 (Kan. App. 2007) (unpublished opinion) ("Knowledge
that someone may be a witness against you for a crime you have committed does not
magically spring into existence only when a prosecutor files a complaint and lists that
witness by name in court papers.").

As a result, there was sufficient evidence to support Moreno's conviction because
he would have known that Dominguez would be a witness against him before being
arrested and then charged.

Affirmed.