State v. Rivas

1

NOT DESIGNATED FOR PUBLICATION

No. 114,947


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MANUEL A. RIVAS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; ERIC YOST, judge. Opinion filed July 28, 2017. Conviction
affirmed, sentence vacated, and case remanded with directions.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: Manuel A. Rivas shot Eric Salazar in the head and killed him.
Convicted of second-degree intentional murder, Rivas brings this appeal, raising three
trial errors and one sentencing error. Because Rivas has failed to convince us that there
are any reversible trial errors, we affirm his conviction. But because there is insufficient
evidence in the record to show Rivas was represented by counsel in two of the four cases
the court used in computing his criminal history score, we vacate his sentence and
remand the case for the imposition of a new sentence.

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Armed, Rivas enters Salazar's apartment.

Three witnesses, Gerardo Reyes, Marino Mejia, and Miguel Sotello told the jury
what they saw around midnight on either November 5 or November 6, 2013, in Eric
Salazar's Wichita apartment. They testified for the State. On Rivas' behalf, Michell
Rodriguez' video recorded deposition was given to the jury. As can be expected, their
accounts of what happened differ. We offer summaries of their testimonies and some
forensic evidence to provide a context to help understand our holding concerning Rivas'
claims of jury instruction error and prosecutor error.

Gerardo Reyes' testimony:

Reyes went to Salazar's apartment to have Salazar fill out paperwork relating to a
bail bond. Reyes had brought his puppy with him to the apartment. Reyes and Salazar
were sitting at a kitchen table in the apartment working on the papers. Reyes had his
puppy in his lap when Rivas and a man later identified as Jeremy Anspach entered the
apartment. Reyes saw that Rivas had a gun in his hand when he entered the apartment.
The gun was possibly in Rivas' left hand, but Reyes was unsure. Salazar did not have a
weapon with him.

Shortly after the two entered the apartment, Rivas and Salazar began exchanging
words. Reyes remembered they argued about an amount of money—possibly $30—and a
car. Salazar told Rivas to put the gun down and fight him like a man. Rivas generally
held the gun at his side, pointed at the floor; however, he did gesture around in the air
with the gun. When Salazar tried to get out of his seat, Rivas pushed him back down.
After being pushed down, Salazar got back up.

Reyes said he tried to calm the situation down, but in his opinion, it only got
worse. Reyes began to put his puppy on the floor, and while doing this he saw Salazar
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reach for Rivas' hand that held the gun. The two struggled over the gun. During this
struggle, Reyes saw Anspach pull something out which may have been a gun, but Reyes
was unsure what the item was.

During the struggle, Rivas had the gun pointed at the ceiling. Reyes saw Rivas
point the gun downward, toward Salazar's head. Reyes saw Rivas shoot Salazar in the
head. Reyes did not see Anspach shoot Salazar.

When the gun fired, Reyes' puppy ran off and Reyes chased after him. While
chasing the puppy, Reyes hid outside the apartment and heard two people run past him.
He identified them as Rivas and Anspach. Reyes heard Rivas say, "I got him." Reyes
called 911.

Marino Mejia's testimony:

The second witness was Marino Mejia, a friend of Salazar who was sleeping at
Salazar's apartment. Mejia had gone to the bathroom, which was close to the kitchen.
While in the bathroom, Mejia heard loud talking. He heard Salazar say, "For $2." He
also heard Salazar say, "If you have the gun, use it." When Mejia opened the door and
walked out of the bathroom, he saw Rivas shoot Salazar.

Mejia did not see Anspach in the kitchen. Mejia may have told an officer who
initially interviewed him that he only heard the gunshot while he was in the restroom.
However, this may have been a misunderstanding due to language difficulties between
the officer and Mejia. During a more thorough police interview, Mejia told the officer
that he was in the bathroom and heard arguing. He opened the door and saw Rivas point a
gun at Salazar's head and then pulled the trigger.


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Miguel Sotello's testimony:

The third eyewitness called by the State was Miguel Sotello. During the night of
the shooting, Sotello was sitting in the living room adjacent to the kitchen. He heard
Rivas and Salazar arguing over $2. Approximately 30 seconds had elapsed from the time
Rivas entered the apartment until the argument began. Rivas had a gun in his hand, which
Sotello stated looked like a MAC-10 or MAC-11. Sotello heard Salazar tell Rivas to put
the gun away and fight him. He saw Salazar try to take the gun away from Rivas. While
this struggle was occurring, Sotello hid behind a portion of the wall to avoid a stray
bullet. Sotello heard a gunshot and saw Salazar fall to the ground. Then he saw Anspach
dragging Rivas out of the apartment, and Rivas was saying the word "no" repeatedly, as
if he had done something wrong.

Sotello ran away but eventually returned to the apartment. He told the police that
Rivas was the shooter. He did admit that he did not see Rivas shoot Salazar.

Michell Rodriguez' testimony:

Rodriguez was in the kitchen on the night of the shooting. According to her, only
she and Salazar were in the kitchen when two men entered the apartment. Other people
had been present in Salazar's apartment earlier in the night, but they had left. She
identified Rivas as one of the men who came in, but she did not identify the other man.

Rodriguez saw Rivas and Salazar get into an argument. She said that Salazar and
Rivas were not "in each other's face," during the argument. Rodriguez saw the
unidentified man had a firearm pointed in the direction of the argument. The unidentified
man fired his weapon, and Rodriguez saw Salazar on the floor.


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Forensic evidence:

In addition to the eyewitness testimony, other facts were presented to the jury.
Salazar's body was located partially in the kitchen and partially in the living room of his
apartment. A large bloodstain was located in the living room, near Salazar's head.

The wall that separated the kitchen and the bedroom had a bullet hole in it. Based
on the position and the path of the bullet through the wall, a crime scene investigator
stated that the bullet entered the wall at a downward angle. A photograph with a
fiberglass rod showing the path of the bullet through the wall was presented to the jury.
Two bullet fragments were located in Salazar's apartment—one in the bloodstained area
of the living room and one in the bedroom that was separated by a kitchen wall. The
bullet fragment found in the bedroom was in line with the bullet hole in the wall.

The postmortem examination of Salazar's body showed that he had sustained a
gunshot wound to the head and bruising on his face, left arm, and left leg. Salazar had
two wounds to the head—one was an entry wound and the other was where the bullet
exited. The entry wound was on the top side of Salazar's skull, and the exit wound was on
the lower right, backside of Salazar's head. The bullet appeared to travel in a straight path
through Salazar's skull and brain. The medical examiner determined the cause of death
was a gunshot wound and the manner of death was homicide.

The medical examiner was not able to determine how far away the gun was from
Salazar when it was fired. It was unlikely that the gun was in contact with Salazar when it
was fired, because there were no markings on his skin, which would be consistent with
the gun being fired in this way. Ultimately, the medical examiner concluded the shot was
fired from an indeterminate range.

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A jacket that Rivas was wearing on the night of the shooting was tested for the
presence of blood. The test came back positive for blood. The lab worker then tested that
spot of the jacket for the presence of DNA.

The testimony revealed, in the double negative terms often used in such analysis,
that Salazar "cannot be excluded as a major contributor" for the DNA from that spot on
the jacket. The analysis showed that the blood had a 1 in 61.4 quintillion chance of being
a random match within the Caucasian population; a 1 in 3.43 sextillion chance of being a
random match in the African-American population; and a 1 in 5 quintillion chance of
being a random match in the Hispanic population. In other words, it was extremely
unlikely that the DNA from that blood spot on Rivas' jacket was from anyone other than
Salazar.

We examine the trial error claims.

Rivas' first argument on appeal is that the district court committed plain error by
not instructing the jury on voluntary manslaughter. Next, he argues that the prosecutor,
during closing argument, committed prosecutorial error by making several erroneous
statements about the forensic evidence. For his final trial error, Rivas contends that the
district court erred in denying his motion for a mistrial based upon alleged juror
misconduct—sleeping during the presentation of evidence. We will address these claims
in that order and then conclude with our analysis of what we perceive to be the problem
with the sentence imposed by the court.

The facts did not call for a voluntary manslaughter instruction.

Rivas argues the fight in Salazar's kitchen provided adequate provocation to lessen
his killing to manslaughter. At trial, Rivas did not request an instruction on voluntary
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manslaughter. Thus, this court's review is limited to reviewing for clear error. See State v.
Kershaw, 302 Kan. 772, 776, 359 P.3d 52 (2015).

We use a two-step process when reviewing for clear error. First, we ask, was the
failure to give an instruction erroneous? Second, was the defendant prejudiced by the
failure to give the instruction? In other words, are we firmly convinced that the jury
would have reached a different verdict had the instruction error not occurred? See State v.
Trujillo, 296 Kan. 625, 630, 294 P.3d 281 (2013).

The law is well settled on jury instruction errors. In order for the district court to
err in failing to give a jury instruction, the challenged jury instruction must both be
legally and factually appropriate. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195
(2012).

Voluntary manslaughter is a lesser included offense of second-degree murder.
State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 (2014). The district court must instruct
on a lesser included offense "where there is some evidence which would reasonably
justify a conviction of some lesser included crime." K.S.A. 22-3414(3). Essentially, an
instruction on a lesser-included offense can be a legally appropriate instruction. This
question becomes, however, whether there is a factual basis to instruct the jury on
voluntary manslaughter in this case.

Essentially, voluntary manslaughter is defined as "knowingly killing a human
being committed . . . [u]pon a sudden quarrel or in the heat of passion." K.S.A. 2013
Supp. 21-5404(a)(1). Voluntary manslaughter based upon a sudden quarrel or a heat of
passion requires two essential elements: (1) a knowing killing—formerly an intentional
killing—and (2) sufficient provocation. See K.S.A. 2013 Supp. 21-5404(a); State v.
Gallegos, 286 Kan. 869, 874-75, 190 P.3d 226 (2008).

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At issue in this appeal is the element of sufficient provocation. Rivas argues that
the fight over the weapon in Salazar's kitchen provided sufficient provocation to support
a manslaughter instruction.

Past cases have held that the provocation for voluntary manslaughter "must be
such a degree as would cause an ordinary man to act on impulse without reflection." State
v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). Whether provocation is adequate is
reviewed from an objective viewpoint. Gallegos, 286 Kan. at 874-75. Essentially, the
provocation must be a stimulus that would cause an ordinary man to act out of passion
rather than reason.

A sudden quarrel between two persons can provide adequate provocation for
voluntary manslaughter. See K.S.A. 2013 Supp. 21-5404(a)(1). Our Supreme Court has
looked to the common meaning of words in defining sudden quarrel. Sudden in the
meaning of this statute requires the action occur without warning or be unforeseeable. A
quarrel is "'[a]n altercation or angry dispute; an exchange or recriminations, taunts,
threats, or accusations between two persons.' Black's Law Dictionary 1363 (9th ed.)"
State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010).

In State v. Northcutt, 290 Kan. 224, 234, 224 P.3d 564 (2010), the court held a
jury instruction on voluntary manslaughter was not factually supported when the
defendant initially instigated a confrontation with the victim by "'kick[ing] him in the
butt.'" Because the defendant instigated the altercation and there was no evidence of
provocation of the defendant by the victim, a jury instruction on voluntary manslaughter
was not warranted. 290 Kan. at 234-35. In other words, there was not a sufficient
provocation by the victim that caused the defendant to lose control of his actions.

The record here contains nothing that shows Salazar acted in a way that would
cause a reasonable person to lose control over his or her actions. Actually, similarly with
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the facts in Northcutt, Rivas was the instigator of the argument. See 290 Kan. at 234. The
State's witnesses stated that Rivas entered the apartment with a gun in his hand. Shortly
after entering the apartment, Rivas began a heated exchange with Salazar over a small
amount of money—either $2 or $30—and potentially a vehicle. When Salazar attempted
to stand up, Rivas pushed him back into his chair. Salazar attempted to deescalate the
situation by telling Rivas to put the gun down and fight him. Based upon Rivas' actions of
bringing a gun into Salazar's apartment and starting an argument, he was the instigator of
the altercation and a voluntary manslaughter instruction is not warranted. See 290 Kan. at
234.

Rivas argues on appeal that the physical altercation itself is enough to justify a
voluntary manslaughter instruction. We find no dispute that Rivas and Salazar wrestled
for control over the weapon. But this wrestling is not sufficient to be considered adequate
provocation. See State v. Mitchell, 269 Kan. 349, 353, 7 P.3d 1135 (2000). In order for a
quarrel to be adequate provocation, the quarrel must be sudden and the altercation must
be unforeseeable. Johnson, 290 Kan. at 1048. Without a doubt, it is reasonably
foreseeable that a person would attempt to disarm someone with a gun who started an
argument with them. Because Salazar's attempt at disarming Rivas was foreseeable and a
direct result of Rivas' decision to bring a gun with him, the altercation does not meet the
requirements for a sudden quarrel. See 290 Kan. at 1048.

After further reflection, even if wrestling over the gun would be considered a
"sudden quarrel," it is not necessarily an adequate provocation. The question is whether
wrestling over the gun would lead an ordinary person to act on impulse and lose control
of his or her actions and reason. This situation is similar to the facts in State v. Simkins,
269 Kan. 84, 87, 3 P.3d 1274 (2000). In Simkins, the defendant confronted the victim
with a loaded shotgun in an attempt to keep the victim away from the defendant's wife.
The victim grabbed the shotgun, and the shotgun fired and killed the victim. The court
held, "It is clear that [the victim's] alleged act in attempting to grab the shotgun from [the
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defendant] would not pass [the test for sufficient provocation]." 269 Kan. at 90. Here,
Salazar's action of attempting to disarm Rivas is similar to the victim attempting to grab
the shotgun in Simkins. A person attempting to defend himself or herself from an attacker
would not cause an ordinary person to lose control of his or her reason and instead act on
impulse.

Thus, an instruction on voluntary manslaughter is not factually supported and the
district court did not err by not instructing the jury on voluntary manslaughter. See
Williams, 295 Kan. 506, Syl. ¶ 4. Because the instruction is not factually supported,
reaching the second step of the clearly erroneous analysis—prejudice—is not necessary.
See, e.g., Hayes, 299 Kan. at 866.

We find no prosecutor error in the closing argument.

Rivas challenges two types of statements made by the prosecutor. The first
involves the forensic evidence itself and the conclusion of where the gun that fired the
fatal bullet was located. The second set of statements involves assessing witness
credibility based upon the forensic evidence. We will take them up in that order, but first
we recite the law that guides us on this point.

In analyzing a claim of prosecutorial error, we must determine if error is present,
and if error is present, whether the error is prejudicial. Error occurs if actions of the
prosecutor fall outside the wide latitude afforded to the prosecutor in seeking a
conviction. An error is prejudicial if the State cannot demonstrate that there is no
reasonable probability that the error affected the outcome. State v. Sherman, 305 Kan. 88,
109, 378 P.3d 1060 (2016).

The first challenged statement occurred during the State's initial closing argument
where the prosecutor talked about science and the path of the bullet:
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"What is also documented from science? The path of the bullet. Why is that
important? Because it tells us where the gun was. Look at the line, extrapolate the line out
from the hole going through the wall, all the way across the kitchen. That's where the gun
has to be. No matter how high you raise it, no matter how low you go, it's on the angle
that the bullet went through Eric Salazar's head, it went through the wall and it's found in
the master bedroom. That's where the gun is. That's what the science tells you."

In rebuttal, the prosecutor also discussed the location of the gun:

"Let's look at this (indicating). Here's where the bullet hole is in the other room
(indicating). Here's the line it came from; right? Bullet traveled in a straight line, went
from a downward angle (indicating), it ends up basically—this line extended into the
bedroom (indicating)—it goes straight through Eric Salazar's head. No evidence it
deflected and went a different direction, no evidence at all. Okay. So guns got to be there
(indicating). Not only does the gun got to be there, it's got to be pretty close to where Eric
Salazar's feet were when he was shot. How do we know his feet were there? They're still
there when they pick up his body; right? He dropped right where he was shot. And it's on
line with where the gun was."

Rivas contends that the prosecutor never presented any evidence on the ability to
extrapolate the location of the gun from the bullet holes and bullet fragment locations.
Additionally, Rivas argues that the State did not present evidence on how the bullet's path
was affected by the bullet hitting both Salazar and the wall. Rivas claims the above
statements went beyond the forensic evidence that was introduced.

The record reveals that the State introduced some evidence of the path of the
bullet. Through the crime scene investigator, the State introduced photographs showing
an orange fiberglass rod inserted into the bullet hole, which was in the wall. The crime
scene investigator testified about the precise location of that bullet hole and the path the
bullet took as it was going through the wall. The crime scene investigator did not testify
concerning the location of the gun when it was fired. Additionally, the medical examiner
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was not able to determine the distance between Salazar and the gun when it was fired.
The medical examiner did demonstrate the path the bullet took when passing through
Salazar and testified the bullet proceeded through Salazar in a straight path.

Rivas relies on State v. Corey, 304 Kan. 721, 736, 374 P.3d 654 (2016). But the
facts in Corey are distinguishable from the facts here. In Corey, the prosecutor stated the
"'actual scientific evidence'" showed the defendant's DNA on the victim. Instead, the
evidence at trial showed the chance of a random match with an unrelated male in the
general population was 1 in 9. Obviously, the prosecutor's statement was erroneous—an
overstatement. But we note the Corey court held that the error was not gross or flagrant
or the product of ill will, and the prosecutor did not deliberately attempt to misstate the
evidence. The court also found there was sufficient evidence to infer the DNA belonged
to the defendant. The court did not overturn the conviction. 304 Kan. at 736-37.

The law allows a prosecutor to ask the jury to make reasonable inferences based
upon the evidence. See State v. Baker, 281 Kan. 997, 1012, 135 P.3d 1098 (2006). Here,
the prosecutor argued a reasonable inference from the forensic evidence. Stating "that's
where the gun is. That's what the science tells you," may have been slightly overstating
the forensic evidence in this case. While Rivas is correct that no expert testified about the
location of the gun when it was fired, it is reasonable to infer the location of the gun
based upon the way the bullet entered the wall and the final location of the bullet
fragments. See State v. Lowrance, 298 Kan. 274, 286, 312 P.3d 328 (2013). In Lowrance,
the prosecutor was allowed to make a reasonable inference that a substance was blood,
although no testimony from an expert supported that specific conclusion. 298 Kan. at
286.

Here, the crime scene investigator testified that the bullet traveled at a downward
angle through the wall. One bullet fragment was found in the pool of blood in Salazar's
living room, and one fragment was found in the bedroom—the fragment lined up with the
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hole in the kitchen wall. It is reasonable to infer the path the bullet took from the
evidence that was presented. Additionally, the State's argument that there was no
evidence of a deflection is supported by the medical examiner's testimony that the bullet
took a straight path through Salazar's head.

We hold the prosecutor's statements here were not erroneous, because they were
reasonable inferences from the evidence that was admitted at the trial. See Lowrance, 298
Kan. at 286; Baker, 281 Kan. at 1012. Ultimately, these statements are within the wide
latitude afforded to prosecutors to obtain a conviction and are not erroneous. See
Sherman, 305 Kan. at 109.

The second set of challenged statements involves comments on the witness'
credibility based upon the forensic evidence, including the location of the gun. In relation
to Rodriguez' testimony concerning the location of the unidentified shooter, the
prosecutor stated, "How does this bullet come from a gun that's fired from over here
(indicating)? . . . No[t] consistent with the physical evidence. Again, you're the judge of
the credibility, maybe you will find it did, seems to defy common sense." The prosecutor
went on to say, "She still can't get the basic idea of where the people are, according to the
physical evidence, which is incapable of lying."

Turning to the State's argument on their witness' credibility, the prosecutor stated,

"They have forensics to compare to the witness's story. Science deals with that.
The witnesses all give their statements. [The defense attorney] indicates they didn't see it,
but they all give statements that are consistent with the forensic evidence that isn't even
collected yet. [The crime scene investigator] didn't even get to the scene until after all of
these witnesses gave their statement. How are they all going to put Manuel Rivas on the
correct line where the bullet ends up going? It's the same downward angle that they
demonstrated in the interview room if they weren't there? How do they get those details
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right? The CSI didn't even know that. And the DNA corroborates that Manuel Rivas was
there."

Basically, Rivas argues this statement misstates the evidence because he claims
two of the witnesses' statements were inconsistent with the forensic evidence. The alleged
inconsistencies involve the location of Salazar's gunshot wound. The medical examiner
testified that the entrance wound was on the top left side of Salazar's head and the exit
wound was on the lower right back of Salazar's head.

Rivas argues that in Mejia's interview with the police, the photograph of Mejia
reenacting the shooting shows that Mejia's fingers, which represented the gun, are on the
right temple area. Rivas claims this is contradicted by the medical examiner's forensic
evidence, not corroborated by the forensic evidence; thus, the prosecutor misstated the
evidence. Rivas also challenges that Sotello provided testimony contradicted by the
forensic evidence when he testified that Salazar was shot in the back of the head.

The prosecutor's statements are not as broad as Rivas is alleging. The prosecutor is
not stating that every statement by his witnesses is corroborated by every piece of
forensic evidence. Rather, the prosecutor only stated that all three State witnesses placed
Rivas on the line where the bullet ends up, and he was holding a gun at a downward
angle.

This argument is supported by evidence within the record. Rivas concedes that
Reyes' testimony supports this statement. Mejia's testimony placed Rivas in the kitchen
when the shot was fired. The photograph reenacting the event shows Mejia's fingers
pointed at a downward angle. Sotello testified that Rivas was in the kitchen but that he
did not see the shot that was fired. Sotello's testimony is still consistent with placing
Rivas in the path of where the bullet ended. Evidence that was admitted supports the
prosecutor's statement; thus, the statements were not erroneous.
15

Because the statements by the prosecution were not erroneous, it is unnecessary to
reach the prejudice prong of the prosecutorial error test. See Sherman, 305 Kan. at 109.

The court acted within its discretion in denying Rivas' motion for a mistrial.

Rivas argues that the district court erred in denying his motion for a mistrial based
upon alleged juror misconduct—sleeping during the presentation of evidence. Rivas
brought to the court's attention that he believed two jurors had been sleeping during the
presentation of Rodriguez' video deposition testimony.

The judge told both parties that he saw Juror K close his eyes and at one point he
began "dozing off more than he ought to." When this dozing occurred, the judge took a
recess. This dozing off occurred during the State's case-in-chief, but Rivas contended that
Juror K had been sleeping at a different point in the trial—the presentation of Rodriguez'
video deposition. The judge questioned Juror K, and he stated that while his eyes were
closed, he still listened to the testimony. Additionally, Juror K stated that he had heard all
the evidence.

Rivas alleged a second juror, Juror C, had been sleeping during the trial as well.
Juror C had admitted to the judge's administrative aide that she had fallen asleep during
the trial. The district court ended up dismissing Juror C from the jury but determined a
mistrial was not warranted because there was an alternate juror available.

A review of some fundamental points of law is useful at this point. The district
court may order a mistrial when prejudicial conduct, in or outside the courtroom, makes it
impossible to proceed with the trial without injustice to either the defendant or the
prosecution. See K.S.A. 22-3423(1)(c). Rivas argues that the alleged sleeping of Juror K
during Rodriguez' deposition testimony lowered the functional number of jury members
below 12. In a felony trial, a jury must consist of at least 12 members unless there is an
16

agreement between both the prosecution and the defense, which is approved by the court,
to continue with fewer jurors. K.S.A. 22-3403(2).

Rivas relies upon the holding in State v. Miller, 11 Kan. App. 2d 410, 411-13, 722
P.2d 1131 (1986), where a panel of this court reversed a conviction where the record
conclusively showed that a juror had not heard at least part of the testimony. In Miller, a
juror was having difficulties hearing testimony due to a hearing impairment. Instead of
excusing the juror and granting a mistrial, the district court moved the juror to the front
row of the jury box. The panel held that the district court should have dismissed the juror
and declared a mistrial, unless the defendant waived the right to have a 12-person jury.
Denying the defendant's motion for a mistrial was an abuse of discretion. 11 Kan. App.
2d at 413.

We find the facts in Miller distinguishable from the facts in this appeal. In Miller,
it was clear from the record that the hearing-impaired juror had not heard part of the
testimony. But here, Juror K stated that he had not missed any of the testimony. Unlike
Miller, the record here does not show that Juror K had missed any testimony.

But we do not stop there. Rivas' allegation of sleeping during Rodriguez'
deposition testimony is partially corroborated by the district court's observation that Juror
K was starting to doze off at an early point in the trial. This corroboration, however, does
not necessarily mean that Juror K had actually fallen asleep or missed any of Rodriguez'
testimony. Without corroboration of Rivas' allegation that Juror K had missed Rodriguez'
testimony, the court did not abuse its discretion by denying the motion for a mistrial. See,
e.g., State v. Kimmel, 202 Kan. 303, 305-06, 448 P.2d 19 (1968).

These facts seem similar to State v. Kirby, 272 Kan. 1170, 39 P.3d 1 (2002), and
State v. Armstrong, 299 Kan. 405, 443, 324 P.3d 1052 (2014). In Kirby, the defense
raised the issue of inattentiveness of two jurors to the court. The district court observed
17

that a juror was closing his eyes while listening to the evidence and at one point nodded
off. The district court believed it took appropriate action and after that point it appeared
that all jurors were paying attention. The Kansas Supreme Court found that there was no
statement by the juror that he had not heard the testimony. Additionally, the district court
was aware of the juror's tendency to close his eyes while listening to the testimony, took a
recess when the court believed the juror was dozing off, and did not observe the juror
sleeping at any other point following the recess. Due to these factors, the court
determined there was no abuse of discretion in the denial of a motion for a new trial. 272
Kan. at 1197-98.

Similarly in Armstrong, the defendant's counsel informed the court that he thought
he saw a juror falling asleep during trial. No evidence indicated that the juror had missed
any testimony. The judge noted that he saw the juror "'struggling a bit, but I don't know
that I ever saw her really nod off.'" The alleged sleeping occurred during preliminary
testimony of an expert and not on the evidence pertinent to the case. Our Supreme Court
held that this did not amount to a fundamental failure in the proceedings warranting a
mistrial. 299 Kan. at 443.

If we take into consideration the holding in Armstrong and Kirby, a mistrial was
not necessary here. The judge observed that Juror K closed his eyes while listening to
testimony. When the judge believed Juror K was "dozing off more than he ought to," he
called a recess.

After all, taking a recess when it appears that a juror is struggling to stay awake is
a proper action for the district court to take. See Kirby, 272 Kan. at 1197-98. Juror K
stated that he had heard all of the testimony. In Armstrong, the lack of evidence of a juror
missing testimony was a reason that a mistrial was not warranted. 299 Kan. at 443. The
judge here did not observe Juror K dozing off at any other points at trial—a fact that
affected the outcome of Kirby. See 272 Kan. at 1197-98.
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While the judge did admit he was not observing Juror K during Rodriguez'
testimony, based upon his other observations throughout the trial, the judge concluded
that the only time Juror K had difficulty staying awake was during the DNA testimony.
This is a finding of fact that is unassailable on appeal. After all, we were not there—we
did not watch the jury as the trial judge did.

We hold that Rivas' allegation that Juror K was sleeping is insufficient to warrant a
mistrial. The district court did not abuse its discretion in denying the motion for a
mistrial.

We must vacate this sentence.

Rivas' final arguments on appeal involve his sentence. Rivas challenged his
criminal history score on his PSI report. It set his criminal history category as B due to
one person felony conviction and three person misdemeanor convictions that were
lumped into the equivalent of one person felony. In his motion challenging his criminal
history, Rivas asserted that he had no recollection of the three misdemeanor convictions
or having counsel for these convictions. The district court held an evidentiary hearing on
the existence of the convictions and whether there was counsel present.

Rivas does not challenge his conviction in 07TR2467, a conviction for failure to
stop at an injury accident—a class A person misdemeanor. At the sentencing hearing, the
State presented an acknowledgment and waiver of rights upon a plea of guilty. This
document shows that Rivas was informed of his right to counsel and waived that right.

In this appeal, Rivas does challenge the district court's determination on two
cases—11DV3268 and 13DV1173.

19

To prove these convictions, the State introduced two documents for each case—
the disposition sheet and a screenshot of the eJustice system notations on the case. A
screenshot is a printout of what is seen on the computer screen.

We must pause at this point and address a sub-issue of who had the burden of
proof for the conviction reflected in the records of 11DV3268. The State asserts that the
burden shifted to Rivas because in a 2012 case Rivas did not object to his criminal history
score that scored 11DV3268 in the same way as the current case. In opposition, Rivas
contends that he is not estopped from challenging the existence of the conviction in
11DV3268, because there is no evidence of a determination of the merits of his claim
from the 2012 case.

Precedent controls this. In State v. Schow, 287 Kan. 529, 197 P.3d 825 (2008), the
Supreme Court determined a similar issue. The court held that the burden of proof
remains with the State when a defendant files a written objection to his or her criminal
history even though the convictions were contained in a prior criminal history worksheet.
287 Kan. at 539-40.

In Schow, the court overturned the sentences and remanded the case because the
district court erred in shifting the burden to the defendant. 287 Kan. at 539-40. Here, it is
not clear whether the district court shifted the burden to Rivas. Rather, the district court
held that based upon the documents and testimony presented, the criminal history score in
the PSI report was correct. If the court shifted the burden, it was erroneous. If it did not,
we see no error. As we are vacating this sentence anyway, we need go no further on this
point.

We turn now to the substantive arguments raised by the parties. Rivas makes a
two-pronged attack on this point. First, Rivas contends that some of the evidence—
specifically, the screenshots of the eJustice system—were erroneously admitted.
20

Following that, even if the evidence was properly admitted, the evidence was not
sufficient to support the district court's legal conclusion. We examine his attack in that
order.

Rivas challenges the district court's decision to admit two screenshots, which
provided information about the proceedings in municipal court for the two challenged
convictions. At the district court, the State argued the documents fell within the business
records exception to hearsay.

When reviewing a challenge to the admission of hearsay evidence we review the
actions of the district court for an abuse of discretion. State v. Robinson, 293 Kan. 1002,
1023, 270 P.3d 1183 (2012). The party asserting the abuse of discretion bears the burden
of proving the court abused its discretion. State v. Smith-Parker, 301 Kan. 132, 161, 340
P.3d 485 (2014).

The business records exception provides that hearsay may be admitted if it is in
the form of

"[w]ritings offered as memoranda or records of acts, conditions, or events to
prove the facts stated therein, if the judge finds that: (1) They were made in the regular
course of a business at or about the time of the act, condition or event recorded; and (2)
the sources of information from which made and the method and circumstances of their
preparation were such as to indicate their trustworthiness." K.S.A. 2016 Supp. 60-
460(m).

Foundation for a business record does not require the custodian of a business
record to testify. Any person who is qualified by knowledge of the facts may prove
foundational facts. State v. Cremer, 234 Kan. 594, 601, 676 P.2d 59 (1984). This is where
Rivas starts his attack.

21

At the hearing, Jamie Matthews, a support supervisor for the City of Wichita
Municipal Court, testified. Matthews maintained and supervised the criminal justice
records for the city. Through Matthews, the State submitted a disposition sheet for case
number 11DV3268, a Wichita municipal court conviction. The disposition sheet
indicated that Rivas was represented by "CPD," which Matthews testified meant the city
public defender. Matthews stated that if the attorney had withdrawn, that would have
been indicated on the disposition sheet, and no indication of withdrawal was present.

Next, the State attempted to admit a screenshot of the eJustice system concerning
this conviction. Rivas objected for lack of foundation. The State argued that the business
record exception applied and the screenshot was admissible. The court admitted the
screenshot, and the screenshot indicated "ATTY COOPER CPD, SHANNON," was
present and that Rivas pled and was placed on probation.

For case number 13DV1173, a disposition sheet indicated that "CPD" originally
represented Rivas for the case. A second attorney, R. Sickmann, is listed on the
disposition sheet. Matthews testified that it was Ron Sickmann. No date is given for when
Sickmann entered his appearance, but Matthews stated that the city public defender
automatically withdraws when another attorney enters.

Additionally, an eJustice screenshot for this case was admitted over Rivas'
identical objection for the previous case. The eJustice screenshot shows that "ATTY
SICKMANN, RONALD," and Rivas were present. Unlike the screenshot in 11DV3268,
this screenshot does not indicate that Rivas pled; rather, it only shows he was sentenced
to probation.

On cross-examination, Matthews stated that she did not have an independent
recollection of either case. Rivas also introduced testimony from Shannon Cooper, the
purported attorney for case number 11DV3268. Cooper had no recollection of being an
22

attorney for Rivas on this case. However, Cooper could not say that she had not
represented Rivas on the case. Ronald Sickmann had passed away prior to this sentencing
hearing, so there was no testimony regarding his possible representation in 13DV1173.

To us, Rivas challenges whether Matthews provided proper foundation for the
screenshots. Matthews' position involved supervising the criminal justice records for
Wichita Municipal Court. Matthews supervised the docket clerks who enter information
into the eJustice system. Based upon her supervisory role she is well qualified to provide
the foundational facts. See Cremer, 234 Kan. at 601. Matthews testified that the docket
clerks enter the information into the eJustice system at the time the events occur in the
courtroom.

Quentin Pittman testified on Rivas' behalf. During 2011, Pittman worked at the
law firm that the City of Wichita contracted with to provide public defender services.
Pittman oversaw the attorneys that were working as public defenders. Pittman stated that
a docket could range from 26 to 32 cases and the clerks may enter information into the
computer system contemporaneously or up to an hour after the events occurred. Pittman
also stated that the attorneys that were working would occasionally rotate between
courtrooms. The attorneys did not provide an official appearance, so Pittman assumed
that the clerk would enter information into the eJustice system based upon which attorney
they believed was working in the courtroom that day. Pittman did not have direct
knowledge of this occurring, and his testimony was based on what he had heard from his
employees.

Rivas did not have a recollection of the cases. Rivas did not remember appearing
in court, having Cooper represent him, or entering a plea in case number 11DV3268.
Rivas remembered calling Sickmann concerning representation but did not remember
being represented or advised by Sickmann.

23

To us, Rivas relies on Pittman's testimony that the clerks may not enter the
information contemporaneously with the events occurring to show the writings were not
made at or about the time of the event.

We must point out that it is unclear how this testimony from Pittman affects the
admissibility of the evidence, because the screenshots had been admitted prior to Pittman
testifying. His testimony may affect the probative value of the evidence as it seems to
contradict Matthews' statement that the docket clerks enter the information
contemporaneously with the events occurring. A question of the probative value of the
evidence does not lessen the foundational fact to which Matthews testified—the clerks
enter the information contemporaneously with the event occurring in the courtroom.

We hold that Rivas did not satisfy his burden of showing the district court erred in
admitting the evidence based upon the first prong of the business records exception. We
now turn to the question of the records' trustworthiness.

Rivas also challenges the trustworthiness prong of K.S.A. 2016 Supp. 60-460(m).
He argues that inconsistencies within the screenshots themselves show that the
documents were not trustworthy. The business records exception applies if the sources
from which the information comes and the manner it is prepared indicate trustworthiness.
K.S.A. 2016 Supp. 60-460(m). Here, the sources of the information were the docket
clerks entering the information into the eJustice system. As employees of the court, they
are sources that are trustworthy. The manner through which the information was prepared
is a court setting which indicates the information is trustworthy. Similar to the argument
concerning the time of preparation, Rivas' trustworthiness argument is actually centered
on the probative value of the evidence and not its admissibility. Rivas has failed to show
that the district court abused its discretion in admitting the screenshots under the business
records exception.

24

Where Rivas' sentence fails is the lack of evidence to support the court's
conclusion. We question whether substantial competent evidence supports the district
court's determination that the State had met its burden of proving the validity of the
convictions by a preponderance of the evidence. See State v. Hughes, 290 Kan. 159, 162,
224 P.3d 1149 (2010). Substantial competent evidence refers to legal and relevant
evidence that a reasonable person could accept as being adequate to support a conclusion.
State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). We first look at the instance
where there was sufficient evidence.

In case number 11DV3268, the disposition sheet states that "CPD" was the
attorney and entered on November 15, 2011. November 15, 2011, was Rivas' first
appearance for this case. CPD stands for the Wichita City Public Defender. There is no
date on the withdraw line. Matthews testified that if the attorney had withdrawn, this line
would have a date with it. The disposition sheet shows Rivas pled no contest to the
charges and that Rivas was convicted.

But the disposition sheet alone is insufficient to support a finding that Rivas was
counseled. Rivas being counseled is important because the Supreme Court has found that
an uncounseled misdemeanor conviction cannot be used to enhance a person's criminal
history score if the punishment for the offense includes the possibility of jail or prison.
See State v. Youngblood, 288 Kan. 659, 670, 206 P.3d 518 (2009). The Youngblood court
stated, "The right to counsel arises at the stage of the proceedings where guilt is
adjudicated, eligibility for imprisonment is established, and the prison sentence
determined." 288 Kan. 659, Syl. ¶ 2. The disposition sheet here is insufficient because it
does not indicate that counsel actually represented Rivas when he entered his plea. See
State v. Neal, 292 Kan. 625, 640, 258 P.3d 365 (2011).

Neal involved a motion to correct an illegal sentence based upon uncounseled
misdemeanors that was summarily denied by the district court. The Supreme Court held
25

that an entry on a disposition sheet that stated "P. Journey, CPD," was insufficient to
show that a defendant was represented by counsel at the time of his conviction. 292 Kan.
at 635-36. Although the journal entry indicated that counsel had entered at a specific date,
the date listed was after the conviction had occurred. Because it was unclear that Neal
had counsel at the time he was convicted, the Supreme Court remanded the case to the
district court to hold an evidentiary hearing. 292 Kan. at 640. Here, the disposition sheet
only shows that a city public defender had entered the case. It does not show that Rivas
was actually represented by counsel when he pled no contest and was convicted. Thus,
without information that Rivas was represented at the time of his conviction, there is
insufficient evidence from the disposition sheet alone to use this conviction to enhance
the sentence. See 292 Kan. at 636-40; Youngblood, 288 Kan. at 670.

We recognize that here, in contrast to Neal, the district court also had the eJustice
screenshot. The screenshot states, "ATTY COOPER CPD, SHANNON Present" and
"[d]efendant present in courtroom, def pled and placed on probation . . . ." The statement
within this screenshot provides sufficient evidence to show by a preponderance of the
evidence that Rivas was represented for this conviction. When the statement that
Shannon Cooper was present and that Rivas pled is taken in conjunction with the
disposition sheet, that corroborates the information—the district court had substantial
competent evidence to find that Rivas was represented, fulfilling the Youngblood
requirement.

The disposition sheet and eJustice screenshot can lead a reasonable person to
conclude that Rivas was represented at the time of his conviction. Substantial competent
evidence supports the district court's determination. But evidence on the remaining two
convictions differs.

Turning to 13DV1173, the disposition sheet provides information similar to that of
the disposition sheet in 11DV3268. First, the disposition sheet indicates that CPD was the
26

defense attorney for Rivas and that the CPD entered on May 16, 2013. Rivas' first
appearance appears to have been on May 15, 2013, but the sheet also indicates that Rivas
was "advised of charges, penalties, right to counsel and bond conditions on" May 16,
2013. The disposition sheet shows Rivas pled no contest and was convicted.

Unlike the disposition sheet in 11DV3268, here, there is a second attorney listed,
"R. Sickman [sic]." Although Sickmann was listed, there is no date when he entered into
representation of Rivas. Additionally, there is no date where the CPD withdrew from the
case. Similar to the disposition sheet in 11DV3268, the information contained within this
disposition sheet alone is insufficient to support a conclusion that Rivas was represented
at the time of his conviction. See Neal, 292 Kan. at 640.

The problem arises with the screenshot. The eJustice screenshot for this case does
not indicate that Rivas was represented at the time of his conviction. The screenshot
states "Bench trial held," "ATTY SICKMANN, RONALD Present," and "[d]efendant
present in courtroom. def placed on probation." The most that can be ascertained from
this screenshot is that Sickmann was present for a sentencing hearing. In contrast to
11DV3268, the disposition sheet and screenshot for 13DV1173 do not provide evidence
that Rivas was represented at the time of the conviction. Based upon the lack of evidence
that Rivas was actually represented at the time of his conviction, there was not substantial
competent evidence to support the conclusion that 13DV1173 could be used to increase
Rivas' criminal history score. See Neal, 292 Kan. at 636; Youngblood, 288 Kan. at 670.

Also, the State's reliance on State v. Hooks, No. 107,582, 2013 WL 1876448 (Kan.
App. 2013) (unpublished opinion), is not persuasive. The State argues that the documents
presented in Hooks contained less information than the documents that were presented in
this case. Hooks, however, involved a motion to correct an illegal sentence. In a motion
to correct an illegal sentence, the burden shifts to the defendant. 2013 WL 1876448, at
*4. The defendant in Hooks did not provide any evidence that the sentence was illegal,
27

but rather attempted to shift the burden of proof onto the State. 2013 WL 1876448, at *4-
5. Ultimately, the panel made no determination that the State had met its burden through
the documents which were provided to the district court. Thus, Hooks is not applicable to
the present case.

The district court had substantial competent evidence to conclude that Rivas was
represented in 11DV3268, but there was not substantial competent evidence to conclude
there was representation in 13DV1173. Rivas was sentenced with a criminal history score
of B. The State only proved that one person felony and two person misdemeanors were
valid to be used in Rivas' criminal history score—this is insufficient to support a criminal
history score of B. See K.S.A. 2013 Supp. 21-6809. Rivas' sentence must be vacated and
the case remanded to resentence Rivas in the appropriate criminal history category.

We affirm Rivas' conviction, vacate his sentence, and remand for a new sentence.