State v. Rodriguez

NOT DESIGNATED FOR PUBLICATION

No. 117,145

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HUGO RODRIGUEZ,
Appellant.

MEMORANDUM OPINION

Appeal from Seward District Court; LINDA P. GILMORE, judge. Opinion filed January 26, 2018.
Affirmed.

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

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: Hugo Rodriguez was involved in an altercation in jail after he was
ordered back to his cell for lockdown. A jury convicted Rodriguez of battery on a
corrections officer and criminal damage to property.

Rodriguez has appealed, contending that the State's evidence wasn't sufficient to
prove battery against a corrections officer. But the officer testified that Rodriguez
forcefully pulled his hands away from the officer—and through the meal-tray door on
Rodriguez' cell—while the officer was taking handcuffs off. The officer testified that he
noticed a small cut on his right hand afterward. Since the jury determined the facts and
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found the evidence sufficient to convict, we must look at the evidence on appeal in the
light most favorable to the State. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091
(2012). In that light, the evidence was sufficient to convict Rodriguez of knowingly
causing physical contact with the officer in a rude or angry manner—and that's battery.

Rodriguez also raises three other arguments, but we do not find them persuasive:
 He argues that he should get a new trial because the judge denied a jury
request for a transcript of some testimony. But Rodriguez made no
objection when the district court made its response to the jury, and the
Kansas Supreme Court held that similar conduct waived the issue in State
v. Groschang, 272 Kan. 652, 672-73, 36 P.3d 231 (2001).
 He also argues that he should get a new trial because a witness mentioned
in testimony that Rodriguez was incarcerated at the county jail. But the
district court denied his motion for a mistrial because the court concluded
that the trial could continue without injustice to Rodriguez. And the court
told the jury to disregard the testimony. Particularly since part of the charge
in this case involved Rodriguez being in custody at the time of the offense,
we find no abuse of discretion in the district court's decision on this point.
 He argues that the prosecution improperly struck potential jurors with
Hispanic surnames, violating the United States Supreme Court's ruling in
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
But when Rodriguez' attorney challenged the State's peremptory challenges
at trial, the prosecutor gave what the State said were race-neutral reasons
for each potential juror's removal. At that point, Rodriguez made no attempt
to demonstrate to the trial court that the State's reasons were pretextual. In
this circumstance, we find no abuse of discretion in the district court's
denial of Rodriguez' Batson challenge.

Because we find no reversible error, we affirm the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND

One evening in September 2015, Hugo Rodriguez was ordered to return to his cell
for nightly lockdown at the Seward County Jail in Seward County, Kansas. He didn't
want to return and refused to comply with the corrections officers. Officers were only
able to take Rodriguez back to his cell after they restrained him in handcuffs.

Once Rodriguez was secure in his cell, corrections officer Jonathan Wright was
told to remove Rodriguez' handcuffs through the tray hole in Rodriguez' cell door. After
Wright unlocked one hand, he said that Rodriguez forcefully pulled his hands back
through the tray hole, away from Wright's grasp.

Wright and three other officers—Amanda Lopez, Evan Vasquez, and Daniel
Togbeola—entered Rodriguez' cell in an effort to restrain Rodriguez so they could
remove his handcuffs. Rodriguez resisted the officers but was ultimately subdued after
the four officers gained control over him.

After the altercation ended, Wright said he "removed [his] gloves and noticed [he]
had a cut on the center of [his] hand" that was caused by the metal hinges that connect the
two sides of the handcuffs. Vasquez also noticed that "[he] had a small cut on [his right]
hand," although he indicated that he didn't know for sure what caused the cut.

Rodriguez was charged with two counts of battery on a county corrections
officer—one for battery against Wright and one for battery against Vasquez—in violation
of K.S.A. 2015 Supp. 21-5413(c)(3)(D). Since the key to the handcuffs was broken
during the altercation, Rodriguez was also charged with one count of criminal damage to
property under K.S.A. 2015 Supp. 21-5813(a)(1), (c)(3).

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Rodriguez pleaded not guilty and proceeded to trial. The jury convicted Rodriguez
of battery against Wright and criminal damage to property, but it couldn't agree on a
verdict for the count of battery against Vasquez. As a result, the court acquitted
Rodriguez on that count.

ANALYSIS

Rodriguez has raised four claims on appeal. We will discuss each claim separately.

I. The State Presented Sufficient Evidence to Support Rodriguez' Conviction for Battery
Against a Corrections Officer.

Rodriguez claims that the State's evidence was insufficient to support his
conviction for battery of a corrections officer. When a defendant challenges
the sufficiency of the evidence on appeal, we must recognize that the fact-finder (here,
the jury) has found in the State's favor. Out of deference to the jury's factual
determinations, we look at the sufficiency claim on appeal by looking at the evidence in
the light most favorable to the State. Frye, 294 Kan. at 374-75. We then determine
whether a rational fact-finder could have found the defendant guilty beyond a reasonable
doubt based on that evidence. 294 Kan. at 374-75.

To convict a defendant of this crime, the State had to prove that:
(1) Rodriguez knowingly caused physical contact with Wright in a rude,
insulting, or angry manner;
(2) Rodriguez was confined in a county jail;
(3) Wright was a county corrections officer or employee;
(4) Wright was performing his duty when the act occurred; and
(5) the act took place on or about September 4, 2015, in Seward County,
Kansas. K.S.A. 2015 Supp. 21-5413(c)(3)(D).
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Rodriguez only challenges the State's evidence proving the first element: that he
knowingly caused physical contact with Wright in a rude, insulting, or angry manner.
Rodriguez argues that he didn't cause physical contact with Wright because Wright, not
Rodriguez, initiated the contact. This argument is not persuasive.

First, Rodriguez offered his restrained hands to Wright through the cell door's tray
hole so Wright could remove Rodriguez' handcuffs—an act that would undoubtedly benefit
Rodriguez. Then, instead of cooperating with Wright, Rodriguez chose to "yank[] back"
his hands from Wright because he was "attempting to get [the handcuffs] from [Wright's]
control." Further still, the jury could conclude that Rodriguez behaved this way because he
was angry about being forced to go back to his cell for lockdown.

In sum, taking the evidence in the light most favorable to the State, it shows that
Rodriguez extended his hands so Wright could remove the handcuffs and then forcefully
pulled them away from Wright because he was angry. Thus, a reasonable fact-finder
could find that he caused physical contact with Wright in a rude, insulting, or angry
manner. The evidence was sufficient to convict.

II. Rodriguez Waived Any Objection to the Court's Response to a Jury Request for a
Transcript.

Rodriguez also claims that the court denied his constitutional rights to due process
and a fair trial when it denied the jury's request to review Jonathan Wright's trial
testimony. Significantly, Rodriguez didn't object to the court's response to the jury's
request at trial. Rodriguez suggests that he be allowed to raise the issue for the first time
on appeal to "serve the ends of justice [and] prevent the denial of [his] fundamental
rights." See State v. Oehlert, 290 Kan. 189, Syl. ¶ 1, 224 P.3d 561 (2010).

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The State argues that Rodriguez waived his right to raise this issue on appeal, and
its position is supported by our Supreme Court's ruling in Groschang. In that case, the
court held that the defendant had waived his right to challenge the inadequacy of the
district court's response to the jury's request for a read back of testimony when he failed
to object and "inform the trial court of his dissatisfaction with the court's response to the
jury request while the court still had a chance to correct any error." 272 Kan. at 673.

In several unpublished cases, our court has followed the Groschang ruling, also
finding that defendants who fail to object to a court's response to a jury question are
precluded from raising the issue for the first time on appeal. State v. Pearson, No.
114,298, 2017 WL 1367030, at *7 (Kan. App. 2017) (unpublished opinion); State v.
Pena-Gonzales, No. 112,174, 2016 WL 1614025, at *9 (Kan. App. 2016) (unpublished
opinion); State v. Burris, No. 106,617, 2013 WL 1729223, at *4-5 (Kan. App. 2013)
(unpublished opinion). Rodriguez' claim is essentially the same as those addressed by
Groschang and these other cases, and we reach the same result here.

Rodriguez was present in the courtroom when the jury requested a copy of the
transcript. Likewise, the court gave the parties the opportunity to "make anything for the
record," but Rodriguez simply responded "No, Your Honor." Since Rodriguez declined
the opportunity to dispute the court's denial of the jury's request, we find that Rodriguez
waived this issue for appeal. See Groschang, 272 Kan. at 673.

III. Rodriguez Has Not Shown That the District Court Abused Its Discretion When It
Denied His Motion for a Mistrial.

Rodriguez' third argument is that the trial court committed reversible error by
denying his motion for mistrial after the jury heard Vasquez testify that Rodriguez was a
current inmate in the Seward County Jail. Rodriguez claims that this testimony
undermined the purpose of having him appear in civilian clothes at trial and placed him
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"at a distinct disadvantage at trial" because it made the jury question why Rodriquez was
still in jail.

We review a trial court's mistrial ruling for an abuse of discretion. A court abuses
its discretion if its decision is: (1) arbitrary, fanciful, or unreasonable; (2) based on an
error of law; or (3) based on an error of fact. So unless the court based its ruling on a
factual or legal error, there's an abuse of discretion only if no reasonable person would
agree with the court's decision. State v. Moyer, 302 Kan. 892, 906, 360 P.3d 384 (2015).

A district court may order a mistrial when, among other reasons, it determines that
there has been prejudicial conduct that makes it impossible for the defendant to receive a
fair trial. K.S.A. 22-3423(1)(c). The court must perform two steps to reach this conclusion:
First, it must decide whether there was prejudicial conduct that caused a fundamental
failure in the trial. Moyer, 302 Kan. at 906. If there was, the court's second step is to decide
if it is impossible to continue the trial without injustice, or if the prejudicial conduct can
somehow be mitigated with a jury instruction. 302 Kan. at 906.

A harmless-error analysis is used to decide whether it was possible for the trial to
continue without injustice. This means that the State has to prove that there's no
reasonable probability—in light of the entire record—that Vasquez' testimony affected
the outcome of Rodriguez' trial. State v. Logsdon, 304 Kan. 3, 39, 371 P.3d 836 (2016).

Here, the district court followed the prescribed two-part test. It concluded that
Vasquez' testimony resulted in a "fundamental failure of the proceeding." Vasquez
testified that he knew Rodriguez because "Rodriguez is currently still an inmate in the
Seward County Jail." This statement could have impacted Rodriguez' constitutional rights
to be presumed innocent and to have a fair trial: The jury could have inferred that
Rodriguez was guilty in this case because he was in jail—not based on the State's
evidence against him. See State v. Ward, 292 Kan. 541, 557, 256 P.3d 801 (2011); State
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v. Alexander, 240 Kan. 273, 275-76, 729 P.2d 1126 (1986); see also State v. Fewell, No.
115,666, 2017 WL 3324707, at *3 (Kan. App. 2017) (unpublished opinion).

But just because Vasquez' testimony was prejudicial doesn't mean that the
testimony made it impossible to proceed with the trial without injustice to Rodriguez.
Based upon our review of the record, we agree with the trial court's conclusion that it was
still possible to have a fair trial and conclude that there is no reasonable possibility that
Vasquez' testimony affected the outcome of the trial. See Ward, 292 Kan. 541, Syl. ¶ 9.

We find three aspects of the record significant. First, Vasquez' statement about
Rodriguez' current incarceration was both isolated and unsolicited. See State v. Rinck, 256
Kan. 848, 851, 888 P.2d 845 (1995) (finding the statement regarding a defendant's previous
arrests was harmless because it was "completely unsolicited by the State"). Second, the
court instructed the jury to disregard Vasquez' statement. Such instructions are generally
considered sufficient to eliminate any potential prejudice created by an improper statement
since the jury is presumed to follow the court's instruction. See State v. Stafford, 255 Kan.
807, 816, 878 P.2d 820 (1994); State v. Coleman, No. 110,430, 2014 WL 4082110, at *4
(Kan. App. 2014) (unpublished opinion). Third, even if the court hadn't told the jury to
disregard Vasquez' statement, Rodriguez' current incarceration wouldn't necessarily have
had a bearing on the current proceedings. The jury already knew Rodriguez had been in
jail—he was being tried for crimes committed while incarcerated, and there was nothing
in the testimony to indicate one way or the other to the jury whether Rodriguez had been
released.

In this case, the district court properly determined that the trial could continue
without prejudice to Rodriguez. The district court did not abuse its discretion by denying
Rodriguez' motion for mistrial.

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IV. Rodriguez Has Not Shown an Abuse of Discretion in the District Court's Handling of
His Batson Challenges.

Finally, Rodriguez contends that the court erred when it denied his five Batson
challenges against the State's exercise of peremptory challenges to strike potential jury
members with Hispanic surnames. Rodriguez argues that his convictions should be
reversed because the State's proffered reasons for five of its peremptory strikes were
pretextual and demonstrated purposeful discrimination.

The Equal Protection Clause prohibits prosecutors from exercising peremptory
strikes against potential jurors solely because of the juror's race. Batson v. Kentucky, 476
U.S. 79, 97-98, 106 S. Ct. 1712, 1724, 90 L. Ed. 2d 69 (1986). A defendant's challenge to
the State's exercise of a peremptory strike under Batson is known as a "Batson
challenge." See State v. Dupree, 304 Kan. 43, 57, 371 P.3d 862 (2016). When a
defendant asserts a Batson challenge, the court must follow a three-step analysis—each
of which is subject to its own standard of review. Dupree, 304 Kan. at 57.

First, a defendant must make a prima facie showing that the prosecutor exercised
peremptory challenges solely on the basis of race. Dupree, 304 Kan. at 57. This step
involves a question of law over which appellate courts have unlimited review. Dupree,
304 Kan. at 57. The second step requires the State to give race-neutral reasons for
striking the prospective jurors. Dupree, 304 Kan. at 58. The State's reason for the strike
will be deemed race-neutral unless "discriminatory intent is inherent in the [State's]
explanation." State v. Kettler, 299 Kan. 448, 462, 325 P.3d 1075 (2014). The third and
final step is for the court to determine whether the defendant carried his or her burden of
proving purposeful discrimination. Dupree, 304 Kan. at 58. An appellate court will only
reverse the court's ultimate ruling on a Batson challenge only if it resulted from an abuse of
discretion. Dupree, 304 Kan. at 58.

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Rodriguez doesn't challenge the court's decisions under the first or second steps. For
the first step, neither party disputes whether there was a prima facie showing that the State
purposefully discriminated on the basis of race. Likewise, the second step was satisfied
when the State provided what the prosecutor said were race-neutral explanations for its
strikes. Rather, Rodriguez argues the court erred in performing the third Batson step by
finding that he failed to prove the State's alleged race-based discrimination.

Rodriguez alleges that the court committed two distinct errors in carrying out the
third step. First, Rodriguez said the court failed to let Rodriguez respond to the State's race-
neutral reasons. Our record does not suggest the district court did anything to cut off
Rodriguez' ability to respond to the State's explanation about why it struck these potential
jurors. Rodriguez simply failed to dispute the State's race-neutral explanations or otherwise
further pursue his Batson challenges. Although Rodriguez carried the burden of making a
prima facie showing that the State unlawfully struck jurors based on race, he didn't
dispute the State's race-neutral reasons and made no indication that he wanted to further
pursue his claims. Further still, Rodriguez failed to object to the court's alleged failure to
perform the third Batson step. In short, nothing in the record indicates that the court erred
by not giving Rodriguez the opportunity to rebut the State's explanations behind its five
challenged strikes. By not attempting to rebut the State's nondiscriminatory reasons,
Rodriguez waived his Batson challenges. See State v. Angelo, 287 Kan. 262, 277-78, 197
P.3d 337 (2008) (relying on several federal appellate decisions to support its decision that
a defendant forfeits a Batson challenge by not contesting the prosecutor's explanations).

Rodriguez also argues that the court abused its discretion by not determining—
even without argument from him—that the State's race-neutral reasons were "merely
pretextual reasons for racial discrimination or were overridden by the racial action of
striking so many Hispanic potential jurors." Under the abuse-of-discretion standard of
review applicable here, we can find the district court abused its discretion by denying
Rodriguez' Batson challenges only if the decision is based on an error of fact or law, or if
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no other court would've reached the same conclusion. Ward, 292 Kan. 541, Syl. ¶ 3; State
v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009); State v. Gann, No. 107,595, 2013
WL 4778151, at *4 (Kan. App. 2013) (unpublished opinion).

Here, the State provided race-neutral reasons for each of its challenged peremptory
strikes. Even on appeal, Rodriguez challenges only some of the specific reasons. For
example, the State's reason for striking juror Daisy C. was that she had previously been in
jail and felt she had been wrongly arrested. Rodriguez' brief does not provide any
argument that this was a pretextual strike. As an example of the challenges Rodriguez
does argue on appeal, the State struck Christopher C. because he had a brother who was
also in the pool of potential jurors. Rodriguez notes that another potential juror who did
not have a Hispanic surname also knew Christopher C. and his brother. But there's an
obvious difference between knowing someone and being a person's sibling. We do not
find any abuse of discretion in the district court's failure to dismiss out of hand—without
any argument from Rodriguez—the State's proffered justifications for these strikes.

The district court's judgment is affirmed.