State v. Rodriguez-Guerrero

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NOT DESIGNATED FOR PUBLICATION

No. 115,619


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUAN MANUEL RODRIGUEZ-GUERRERO,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed February 16,
2018. Affirmed.

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

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER and ATCHESON, JJ.

PER CURIAM: A jury sitting in Johnson County District Court found Defendant
Juan Manuel Rodriguez-Guerrero guilty of two counts aggravated indecent liberties with
a child and acquitted him of one count of rape based on recurrent sexual abuse of his
stepdaughter Y.C., who was 12 years old when the crimes occurred. On appeal,
Rodriguez-Guerrero challenges a series of evidentiary rulings by the district court that he
says deprived him of a fair hearing. Although there were some problems with those
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decisions, they did not create reversible error. We, therefore, affirm the convictions and
resulting sentences.

FACTUAL AND PROCEDURAL INTRODUCTION

Given the issues on appeal, we need not explore in detail Y.C.'s accusations or the
trial evidence. Rodriguez-Guerrero met L.G. around 2001, and they began a relationship
leading to their marriage in 2010. They had a blended family that included Y.C. and
M.C., L.G.'s children from an earlier relationship, and their own children V.R. and N.R.
In late 2011, L.G. ordered Rodriguez-Guerrero out of the house and effectively ended
their relationship. Rodriguez-Guerrero later attributed the split to his chronic abuse of
alcohol. Other evidence indicated L.G. suspected he had been acting inappropriately
toward Y.C.

In early 2012, Y.C. disclosed that Rodriguez-Guerrero had repeatedly sexually
assaulted her the year before. Y.C. described some of the incidents to her mother and then
offered fuller accounts to law enforcement officers and a social worker trained in
working with child victims of sexual abuse. According to Y.C., Rodriguez-Guerrero
touched her breasts, buttocks, and pubic area on multiple occasions and had sexual
intercourse with her once. She explained she eventually revealed what happened because
she feared she was pregnant. A medical examination and tests showed Y.C. was not
pregnant.

Detective Matthew Campbell of the Olathe Police Department interrogated
Rodriguez-Guerrero with a bilingual officer who acted as a translator. During the
questioning, Rodriguez-Guerrero sometimes responded without the questions being
translated into Spanish. Early in the interrogation, Rodriguez-Guerrero generically agreed
to the truth of whatever Y.C. had told investigators, except for the accusation of sexual
intercourse. Later during the questioning, he specifically admitted touching Y.C.'s
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breasts, buttocks, and pubic area more than once. Rodriguez-Guerrero described with
particularity one time when he and Y.C. had been giving the family dog a bath—an
incident Y.C. had told investigators about. Otherwise, Rodriguez-Guerrero's account
lacked details about when or where he had abused Y.C.

Because of the lengthy gap between the incidents and Y.C.'s disclosure of them,
law enforcement investigators were unable to recover any biological or other physical
evidence corroborating the sexual assaults.

The district attorney's office charged Rodriguez-Guerrero with two counts of
aggravated indecent liberties with a child based on the touching of intimate parts of
Y.C.'s body and one count of rape based on the act of sexual intercourse. During the
three-day jury trial in September 2015, Y.C. testified, and the prosecutor called witnesses
who recounted her out-of-court statements about the abuse. The prosecutor also presented
Rodriguez-Guerrero's admissions to Det. Campbell. Rodriguez-Guerrero testified in his
own defense. He denied any improper physical contact with Y.C. He told the jurors he
falsely admitted otherwise to Det. Campbell, fearing that L.G. would have the children
taken away from her if he denied the accusations.

As we have said, the jury convicted Rodriguez-Guerrero of the aggravated
indecent liberties charges and found him not guilty of the rape charge. The district court
later sentenced Rodriguez-Guerrero to life in prison with parole eligibility after 25 years
and ordered him to pay a sizeable amount of restitution. Rodriguez-Guerrero has timely
appealed.

ANALYSIS

Rodriguez-Guerrero raises four evidentiary issues on appeal and a final point
based on cumulative error in the district court. We take those claims up in the order
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Rodriguez-Guerrero has presented them, adding focused factual and procedural details as
necessary.

Defendant's Proffered Psychological Expert

Before trial, the defense identified Dr. Robert Barnett, a clinical psychologist, as
an expert witness who would testify that Rodriguez-Guerrero's overall psychological
profile made him prone to falsely admitting to things he didn't do, especially in a highly
stressful environment such as a police interrogation. The prosecution filed a pretrial
motion challenging the admissibility of Dr. Barnett's testimony, and the district court held
a hearing on the matter. See K.S.A. 2016 Supp. 60-457(b). Dr. Barnett testified at the
hearing.

At the hearing, Dr. Barnett explained that he had conducted a forensic examination
of and interview with Rodriguez-Guerrero and had reviewed various records in reaching
his expert opinions. Dr. Barnett testified he was uncertain whether he had watched the
entire videotape of the police interrogation of Rodriguez-Guerrero. The records Dr.
Barnett did review included a hospital admission in Mexico for Rodriguez-Guerrero that
showed he had bacterial meningitis when he was 10 years old.

Dr. Barnett concluded Rodriguez-Guerrero was of limited intellectual capacity
and, as a result, it was possible he had been induced to give a false confession. Dr.
Barnett characterized Rodriguez-Guerrero's cognitive deficit as an organic brain
dysfunction that might be the result of meningitis, long-term alcohol abuse, or something
else entirely. Dr. Barnett offered no clinical opinion on the actual cause of the
dysfunction.

The prosecutor challenged Dr. Barnett's use of the Mexican medical records, since
they were inadmissible hearsay. The records were neither authenticated nor otherwise
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admissible as evidence. The lawyers and the district court analyzed the challenge under
an outdated version of the Kansas Rules of Evidence that precluded experts from relying
on inadmissible materials in forming their opinions. They failed to realize the Legislature
had amended the rules as of July 1, 2014, to allow experts to consider otherwise
inadmissible information in forming their opinions "[i]f of a type reasonably relied upon"
by professionals in that "particular field." K.S.A. 2016 Supp. 60-458. The amendment
parallels the approach to expert testimony in Federal Rule of Evidence 703 and in K.S.A.
2016 Supp. 59-29a06(c), which governs expert testimony in commitment proceedings for
sexually violent predators.

During the hearing, nobody asked Dr. Barnett if psychologists would commonly
rely on medical records in making a clinical or forensic evaluation of a person's mental
health or capacity. The question presumably went unasked because the participants did
not realize the answer would have guided Dr. Barnett's reliance on the medical records in
forming his opinion about Rodriguez-Guerrero's mental capacity. The district court
applied the outdated categorical prohibition on an expert's use of inadmissible evidence
and ruled Dr. Barnett could not rely on the Mexican medical records.

Although Dr. Barnett should have been allowed to use the medical records in
forming his expert opinion if they otherwise satisfied K.S.A. 2016 Supp. 60-458, the
records would not have been admissible as substantive evidence during the trial for that
reason. They remained inadmissible hearsay without further authentication, which Dr.
Barnett could not provide. The State would have been free to cross-examine Dr. Barnett
at trial about the medical records and his reliance on them as a means of attacking the
reliability of his opinions. See In re Care & Treatment of Quary, 50 Kan. App. 2d 296,
301-03, 324 P.3d 331 (2014) (construing the legally identical provision on expert
witnesses in K.S.A. 2013 Supp. 59-29a06[c]).

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Here, the district court erred by applying an incorrect legal standard to preclude
Dr. Barnett from relying on the Mexican medical records in forming his expert opinions
about Rodriguez-Guerrero. Arguably, however, the district court reached the correct
conclusion because Rodriguez-Guerrero never established that the medical records were
of a type that Dr. Barnett or other psychologists would commonly rely upon in rendering
a clinical or forensic evaluation.

More broadly, we also find the error to be harmless under the circumstances. The
district court did not bar Dr. Barnett from testifying at trial. It held only that he could not
use the medical records in forming his opinions. At the hearing, Dr. Barnett fairly clearly
established that the medical records did not have much bearing on his forensic evaluation
and his ultimate conclusion that Rodriguez-Guerrero was of limited intellectual capacity
and, thus, possibly susceptible to falsely confessing in response to persuasive
interrogation techniques. The records simply suggested a possible physiological cause,
among others, for Rodriguez-Guerrero's limitation. Notwithstanding the relatively narrow
ruling from the district court, Rodriguez-Guerrero—for whatever reason—chose not to
call Dr. Barnett as a witness during the trial. The record is bereft of any reason for that
tactical decision. We may surmise that Rodriguez-Guerrero concluded, based on the
hearing transcript, that Dr. Barnett would not necessarily offer a compelling narrative for
the jurors' consideration. And, of course, Rodriguez-Guerrero testified at trial that he
falsely incriminated himself to Det. Campbell to avert government action to take away
L.G.'s children and not because he was tricked or confused during the interrogation. We
also mention that Rodriguez-Guerrero unsuccessfully attempted to introduce the Mexican
medical records as an exhibit at trial through his own testimony. We assume Rodriguez-
Guerrero considered something in the records to be helpful to his defense independent of
Dr. Barnett's expert opinions. The district court correctly ruled that Rodriguez-Guerrero
could not himself lay a sufficient foundation to admit the records as evidence.

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Rodriguez-Guerrero has failed to present an error affecting his right to a fair trial
or otherwise influencing the outcome of the trial.

Defendant's Challenge to Social Worker's Testimony

Rodriguez-Guerrero filed a pretrial motion to preclude Jennifer Coughlin, the
social worker who interviewed Y.C. after she disclosed she had been sexually assaulted,
from testifying about common characteristics of young victims of such abuse and the
manner in which they reveal what had been done to them. The district court ultimately
ruled that the State intended to present Coughlin at trial as a nonexpert witness for the
primary purpose of laying an evidentiary foundation for the videotaped interview she
conducted with Y.C. The district court essentially determined the motion to be moot,
since Coughlin would not be offering expert opinion testimony.

At trial, the prosecutor questioned Coughlin at length about her education,
training, and experience in interviewing child victims of sexual abuse—precisely the
approach a lawyer commonly would take to qualify an expert witness. Establishing
Coughlin's credentials in that way was superfluous to the evidentiary foundation for
admitting the videotape. The foundation required only that Coughlin establish she
interviewed Y.C., she had reviewed the videotape, and the videotape accurately depicted
the interview. So the extended examination of Coughlin about her background may have
been an unnecessary embellishment and objectionable for that reason. Rodriguez-
Guerrero did not object.

On appeal, Rodriguez-Guerrero contends Coughlin impermissibly testified at trial
that older children typically are not prone to affirming false suggestions they have been
sexually abused and commonly don't falsely report those incidents or recount them in
structured interviews such as the one she conducted with Y.C. The testimony went
beyond what a lay witness properly could say in front of a jury and amounted to an expert
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opinion. The testimony, therefore, arguably exceeded what the district court intended
with its pretrial ruling.

The problem for Rodriguez-Guerrero on appeal—and it is a fatal one—lies in how
the topic of unduly suggestive interviews of children came up with Coughlin during the
trial. Rodriguez-Guerrero's lawyer first questioned Coughlin about it on cross-
examination. The prosecutor then followed up with some related questions to Coughlin
on redirect examination. Having proverbially opened the door to the subject, Rodriguez-
Guerrero cannot now complain about Coughlin's testimony on the topic. See State v.
Drayton, 285 Kan. 689, 699-700, 175 P.3d 861 (2008); State v. Bright, 218 Kan. 476,
478-79, 543 P.2d 928 (1975). Although the "opened door" rule is not without limitation,
it plainly applies here since Rodriguez-Guerrero originally sought to curtail Coughlin's
testimony as an expert and then invited an expert opinion from her during trial. We find
no error on this point.

Defendant's Objection to Cumulative Evidence

At trial, Rodriguez-Guerrero objected to the prosecution playing the videotaped
interview between Coughlin and Y.C. for the jurors on the grounds it was cumulative
evidence and otherwise inadmissible. Y.C. testified at trial and was subject to cross-
examination, so the videotape could not have been excluded as hearsay or as a violation
of Rodriguez-Guerrero's right to confront the witnesses against him protected in the Sixth
Amendment to the United States Constitution. To that extent, the videotape was
admissible, and Coughlin established its accuracy as a record of the interview.

We recognize potential concerns in a jury trial when the State presents serial out-
of-court statements from a victim or from a witness describing the charged criminal
incident absent some particular need for that repetitive evidence. For example, a victim's
account given shortly after the crime would be admissible to rebut a defense suggestion
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that some or all of the trial testimony amounted to a recent fabrication. See Tome v.
United States, 513 U.S. 150, 156, 115 S. Ct. 696, 130 L. Ed. 2d 574 (1995) (prior
consistent statement rebuts suggestion of "recent fabrication or improper influence or
motive"). Likewise, an out-of-court account, such as a signed statement, might be
admitted at trial to supplant the faltering memory of a witness. See State v. Kelly, 19 Kan.
App. 2d 625, 629, 874 P.2d 1208 (1994) (describing evidentiary use of past recollection
recorded). Here, the record does not readily disclose that kind of specialized
circumstance.

But Rodriguez-Guerrero did not object during the trial to the admission of roughly
five other out-of-court accounts from Y.C. of the sexual abuse. Under the circumstances,
we find any error in the admission of the videotaped interview as yet another account to
be harmless. In this case, both Y.C. and Rodriguez-Guerrero testified at trial. The jurors
would have given primacy to that in-court credibility contest, affording them the
opportunity to observe both the accuser and the accused as they testified in person and
bore the rigors of cross-examination. See State v. Franco, 49 Kan. App. 2d 924, 936, 319
P.3d 551 (2014); State v. Hinchsliff, No. 103,608, 2011 WL 4031502, at *10 (Kan. App.
2011) (unpublished opinion). Moreover, the veracity of Rodriguez-Guerrero's in-court
denial of wrongdoing otherwise suffered markedly from his contradictory and highly
inculpatory admissions to Det. Campbell that were properly presented for the jurors'
consideration.

We find any possible error in the admission of the videotaped interview of Y.C. to
be harmless beyond any reasonable doubt.

Denial of Competency Hearing

Rodriguez-Guerrero filed a pretrial motion requesting that the district court
conduct a hearing to determine if Y.C. satisfied the statutory requirements of competency
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to testify as a witness, as provided in K.S.A. 60-417. Under K.S.A. 60-417, persons may
not be witnesses if they are unable to make themselves understood by the fact-finder
"either directly or through interpretation" or if they are "incapable of understanding the
duty . . . to tell the truth." A district court may make a determination of a witness'
competency to testify at a hearing outside the presence of the jury. K.S.A. 60-408.

Here, Rodriguez-Guerrero offered no demonstrable grounds to question Y.C.'s
ability to communicate or to understand an oath or affirmation to tell the truth. He
proffered without evidentiary support that Y.C. was in counseling and had accused
another family member of sexually abusing her. Even if Rodriguez-Guerrero had offered
evidence to back up his assertions, they would not have rendered Y.C. incompetent to
testify within the meaning of K.S.A. 60-417.

In short, Rodriguez-Guerrero's motion lacked any factual basis and was, therefore,
without merit. The district court did not err in summarily denying it without requiring the
State to produce Y.C. for a pretrial hearing.

Assuming there were some error in the district court's handling of the motion,
which we doubt, Rodriguez-Guerrero waived the issue by not renewing his competency
argument at trial when Y.C. first took the stand to testify. The erroneous admission of
evidence at trial, including witness testimony, cannot be raised as a ground for setting
aside a verdict absent a contemporaneous objection to that evidence. K.S.A. 60-404.
Rodriguez-Guerrero made no contemporaneous trial objection to Y.C.'s testimony based
on her purported lack of competence. The point has not been preserved for review on
appeal. See State v. Potts, 304 Kan. 687, 699-701, 374 P.3d 639 (2016); State v.
Gonzales, No. 114,222, 2017 WL 839513, at *1 (Kan. App. 2017) (unpublished opinion)
("In recent years, the Kansas Supreme Court has implacably and strictly enforced the
contemporaneous objection rule."), rev. denied 306 Kan. 1323 (2017).

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Cumulative Error

Finally, Rodriguez-Guerrero argues that cumulative error deprived him of a fair
trial and requires reversal of his convictions. Appellate courts will weigh the collective
impact of trial errors and may grant relief if the overall result deprives the defendant of a
fair hearing even though the errors considered individually might be considered harmless.
State v. Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014). The overall effect of
the errors is measured against the trial record as a whole. State v. Holt, 300 Kan. 985,
1007, 336 P.3d 312 (2014). Unpreserved trial error cannot be resurrected and weighed in
assessing cumulative prejudice. See, e.g., State v. Leaper, 291 Kan. 89, 106-07, 238 P.3d
266 (2010); State v. Knight, No. 105,092, 2012 WL 2325849, at *7 (Kan. App. 2012)
(unpublished opinion).

Here, the only possible error preserved for review—and we underscore possible—
was the cumulative admission of the videotaped interview of Y.C. A single error
otherwise found to be harmless cannot logically or legally support a claim for prejudicial
cumulative error, since there is nothing to cumulate. See State v. Foster, 290 Kan. 696,
726, 233 P.3d 265 (2010) ("A single error does not constitute cumulative error[, and] . . .
the doctrine is inapplicable.").

Affirmed.