State v. Sanchez

1

NOT DESIGNATED FOR PUBLICATION

No. 113,292

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JUNIOR SANCHEZ,
Appellant.

MEMORANDUM OPINION


Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed September 2,
2016. Affirmed.

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

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

Before LEBEN, P.J., PIERRON and MCANANY, JJ.

Per Curiam: A jury convicted Junior Sanchez of one count of conspiracy to
commit aggravated battery. The district court imposed an aggravated presumptive
custodial sentence of 41 months.

On appeal, Sanchez raises five challenges: The district court erred by dismissing a
potential juror for cause; the court failed to follow proper procedures under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when he challenged the
dismissal of Hispanic members of the venire; there was insufficient evidence to support
the conviction; prosecutorial misconduct occurred when the State misrepresented
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significant facts during closing argument; and the court violated Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), when it imposed an aggravated
presumptive sentence without presenting aggravating facts to the jury for a finding. On
review of each of these issues, we affirm.

In March 2014, the State charged Sanchez with two counts of aggravated battery,
in violation of K.S.A. 2011 Supp. 21-5413(b)(1)(A), and one count of conspiracy to
commit aggravated battery, in violation of K.S.A. 2011 Supp. 21-5302.

During voir dire, the district court asked the members of the first panel of possible
jurors whether anyone knew Sanchez or any of the victims.

F.G. stated he had known Sanchez from school 6 years ago and had only spoken
with him a couple of times. He believed his past acquaintance with Sanchez would not
affect his ability to be impartial.

J.C. stated he knew who Sanchez was, but he had never been affiliated with him
and his knowledge of Sanchez would not affect his ability to make a fair decision. J.C.
advised the court he knew codefendant Feliciano Cruz, as they had been neighbors for a
long time, but he had never affiliated with him. J.C. clarified he did not mean "gang
affilation," he only meant he had not spent time with Cruz. J.C. said he had been
convicted of breaking and entering in 2010 or 2011, but he felt he had been treated fairly.

R.V. and A.L. stated they had known each other in high school, but it would not
affect their functioning together on a jury. A.L. did not indicate whether he knew
Sanchez or any of the codefendants or witnesses. R.V. stated that he knew codefendant
Cesar Meza-Salinas—R.V.'s best friend's older brother—but he stated that it would not
be an issue to return a verdict against a codefendant of his best friend's brother.
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M.G. stated that she and F.G. worked together, but they would not be influenced
by each other while on the jury. M.G. stated her brother had been arrested as a juvenile.

The State moved to strike J.C., arguing he could not be impartial based on his
statements that he knew Sanchez, knew Sanchez' codefendants, and he admitted to a prior
violent crime conviction. Defense counsel opposed, noting that J.C. stated he could be
impartial. The district court stated the following in excusing J.C. from the venire:

"Well, I'm not concerned about your history, [J.C.], and I'm not concerned about any single
person that you know in this trial, but it seems like you're just a little too close to all the
people in the trial. And I'm not even saying that you wouldn't be able to make a fair
decision. I think it would be unfair to you to put you in that position because you might
find yourself in the jury room ruling against basically your best friend's brother's group of
friends."

The State moved to excuse R.V. on the same basis, stating his friend's brother was
Meza-Salinas. The district court denied that request indicating its belief that situation
applied only to J.C.

Potential juror J.M. told the district court that he knew Sanchez, who had been a
student in his class when he was a teacher and a football player on a team he coached.
When asked if that relationship would influence him as a juror, he stated "[p]robably
not," as it had been "quite a while." J.M. admitted, however, it could be a little hard for
him, but he did not have a personal relationship with Sanchez outside of school. J.M. also
indicated he knew codefendant Jesus Carrasco for the same reasons.

The State moved to strike D.M. for cause after she stated her husband was a
criminal defense attorney. She had indicated in her questionnaire that was a reason to
excuse her from jury duty, but the district court denied the motion.

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K.Z. stated she knew one of the witnesses, Desirae Wood, as Wood went to school
with her oldest son. K.Z. and another potential juror, B.S., stated they knew Wood's
mother, but both indicated they would not treat Wood's testimony any differently from
that of the other witnesses. A.S. did not think he knew anyone with gang affiliations.

Following voir dire, the State used its preemptive strikes on D.M., F.G., R.V.,
A.L., A.S., K.Z. M.D., D.L., and C.S. Defense counsel objected, contending the State was
removing Hispanics and requested a race-neutral reason. Upon the district court's query,
the State first noted it was not just removing Hispanic jurors. Its first preemptive strike
went to D.M., and it struck F.G. because she knew the defendant. It struck R.V. and A.L.
for close associations with a codefendant.

The State stated it struck A.S. because it was not satisfied with his answers. The
court asked defense counsel if he was satisfied with the State's response, but counsel
deferred to the court, which then asked the State for more specificity with respect to A.S.
The State indicated it had directly asked A.S. several questions and he "looked
puzzlingly" before answering and was unable to account for his pause before answering.
The State also felt he was not "engaged in the process" and did not look like he was
always answering the questions directed to the venire. The court accepted that
explanation and denied Sanchez' challenge.

Of the other potential Hispanic jurors, defense counsel struck K.T. Once all strikes
were made, the only apparent Hispanic juror remaining was M.G.

The facts of this case are somewhat involved. Michael Spangler testified that he,
Rashad Eackles, and Krystal Bowman were visiting Briel Mills at her house on the night
of March 3, 2013. Sanchez, Wood, Isabel Carrarra, and a couple of other people were at
the house when he arrived. Sanchez, whom Spangler knew only as Wood's boyfriend,
seemed to be upset and was arguing with Mills. Spangler went into Mills' room with
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Eackles and several others. Eackles left the bedroom at one point to use the restroom.
Shortly thereafter, Spangler heard a commotion from outside the bedroom and heard
something strike the wall hard enough to knock a dresser away from the wall. Spangler
opened the bedroom door, Eackles entered the bedroom, and shut the door behind him.
Eackles told him they needed to leave, and Spangler saw that he was shaken up and had a
bleeding cut on his forearm.

Spangler testified that everyone exited Mills' room, he was the last to leave, and
the living room was full of about a dozen men with various objects in their hands,
including a tire iron and a bottle. Sanchez stood between Spangler and the door and said
something to him he did not recall, and then he was struck over the back of the head. He
testified Sanchez was part of the group, as was Cruz, although many of the other people
were not in the house when he arrived. After he was struck, he only remembered being
face down on the ground while the group stomped and stabbed him, producing five stab
wounds and three head wounds. Once he was able to leave, he got into his car and went
to the emergency room. His injuries later required surgery.

On cross-examination, Spangler testified he went straight to Mills' room when he
entered the house and did not look around the home or the yard to see if other people
were present. He stated Sanchez did not directly tell him to leave or accuse him of
wanting to do drugs in the house. He admitted to smoking methamphetamine in the
bedroom with the others. He did not see Sanchez with a weapon in the house.

On redirect examination, Spangler testified that methamphetamine heightens
perception and that Sanchez blocked the exit from the house. He also confirmed that
Sanchez spoke to him just before the attack started and was a part of the group of men.
On recross-examination, he clarified he did not know whether Sanchez had attacked him.

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Eackles testified for the State that he had called Spangler for a ride home on
March 3, 2013, and Spangler took him along to Mills' house. When they arrived,
Sanchez, Mills, Wood, Carrarra, and one or possibly two others were present. Sanchez
and Mills were arguing. Eackles went into a bedroom with Mills and others, but he left to
use the bathroom before leaving the house.

Eackles testified that while he was in the bathroom, Sanchez came into the
bathroom and told him he needed to leave. Two other men then entered and began
swinging at him. He tried to cover himself—but went to the floor and was hit by bottles
and other objects. The men began attacking him as soon as Sanchez told him he needed
to leave. He was eventually able to leave the bathroom and go back into the bedroom. He
told Spangler they needed to leave. There were people in the living room as they left,
including four or five he had not seen before. He was hit with a liquor bottle on the way
out. The only weapons he noticed were a liquor bottle and a tire iron, but he was not
looking closely on the way out of the house.

Eackles testified Sanchez was in front of the group of assailants, telling him and
Spangler to get out. All but two of the assailants had arrived after he and Spangler first
went into the bedroom. He was able to see most of the two-bedroom house as he walked
through, although not the kitchen. He did not see the attack on Spangler. Eackles went to
the emergency room and later had surgery.

On cross-examination, Eackles testified that although he did not go into the other
bedroom in the house, it was visible from the hallway. He acknowledged that other
people could have been in the backyard or the kitchen. He could not state definitively
whether Sanchez had hit him when he was in the bathroom.

Krystal Bowman testified for the State that she had driven Spangler and Eackles to
Mills' house. Sanchez, Wood, a woman, and another person named Junior were at the
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house when she arrived. Sanchez was in a "really bad" mood. She went with others to a
bedroom. After Eackles left to go to the bathroom, she heard a big bang, and a dresser
and vanity fell over from against the wall. Spangler opened the door and Eackles came in,
severely bleeding from his arm. About four men were rushing the door when Eackles
came in.

Bowman testified that when she, Spangler, and Eackles tried to leave the house,
they were attacked by about 13 people armed with bottles, crowbars, knives, and
hammers. She did not recognize the men, other than Sanchez, nor had she seen them at
the house when she arrived. She saw Sanchez hit Eackles over the head with a bottle.
After getting Eackles into her car, she saw Sanchez and others standing over Spangler
with knives. She saw Eackles' cut arm and later saw three or four knife wounds on
Spangler.

On cross-examination, Bowman testified she could not remember how many
crowbars she saw, but she saw five or six knives and four or five people holding bottles.
Defense counsel asked her whether she told police she had seen Ramon Ortega hit
Eackles on the head with a bottle. She denied this and stated that she told the detective
she had seen Sanchez do it. She acknowledged she had indicated it was Ortega, but, upon
seeing Sanchez' face, she determined it was Sanchez. On redirect examination, she
verified that Sanchez was the person who had broken a bottle over Eackles' head.

Isabel Carrarra testified for the State that she had known Sanchez since she was a
child. She had known Eackles for a couple of years and had met Spangler through him.
She stated that she was part of the North Side gang and she knew Sanchez was part of the
South Side gang. She believed Cruz was also a member of South Side by how he
presented himself. She was at Mills' house on the night in question, trying to sleep in
Mills' room while Spangler and Eackles were there. After Eackles left to go to the
bathroom, she heard a ruckus that shook the walls. She opened the door and saw Eackles
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on the floor surrounded by a group that included Sanchez. She could not see Eackles'
injuries, and she was able to get him to the bedroom. As she tried to leave the house with
the group, a group of more than 10 men armed with bottles, knives, and brass knuckles
attacked Spangler and Eackles. The perpetrator she saw was named Cruz and he was not
present in the courtroom. She did not know a lot of the other men but had seen them
before with Sanchez and Cruz and assumed they were part of the South Side gang. She
believed that if she did not stop the attack and help get Eackles and Spangler out of the
house they could have died.

On cross-examination, Carrarra stated she saw Cruz hit Eackles with a bottle in the
living room, but she did not see Sanchez hit anyone and could not recall if he kicked
anyone. Sanchez did not appear to actually attack anyone, but he was angry with Mills.
On redirect examination, she testified Sanchez was yelling and showing hostility and he
did not try to stop anyone from attacking. On recross-examination, she stated Sanchez
was not orchestrating the conduct of the attackers but was encouraging their behavior by
yelling at Eackles and Spangler that they should have left his house.

Detective Josh Olson testified and identified pictures of the scene that showed
blood and broken glass on the floor and blood on the wall. Additional pictures showed
the wounds to Eackles' forearm and wounds to Spangler's head and back. Detective Olson
identified gang worksheets the police use to track known gang members and enter them
into an online database, including a worksheet for Sanchez. Sanchez, Cruz, and other
codefendants were identified as being part of the same gang, although Cruz was part of a
different subset of the gang.

Olson testified he interviewed Eackles at the hospital. Although Eackles was
initially reluctant to report the attack, he ultimately stated a group of people had attacked
him at Sanchez' house and Sanchez was part of the group. Olson interviewed Carrarra in
the weeks after the attack. She told him that Sanchez had participated in the attack and
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yelled "[g]et out of my house" while others shouted "South Side." Spangler identified
Sanchez as one of the people who attacked him, as did Bowman and each person Olson
interviewed.

On cross-examination, Olson testified Spangler said he could not be sure whether
Sanchez had struck him or was just part of the group. Eackles identified Sanchez as one
of the three people in the bathroom during the first attack, but he could not be sure
whether Sanchez had struck him.

Defense counsel moved to dismiss the conspiracy charge or the charge alleging
assault against Spangler, arguing the State had failed to present adequate evidence to
support those charges. The State responded Carrarra had testified Sanchez called the
assailants to the house, including the codefendants who had pled to other charges, and the
assailants had acted at Sanchez' behest. With respect to the attack on Spangler, the State
argued evidence supported the charge under an aiding and procuring theory. Defense
counsel challenged the State's characterization of Carrarra's testimony and its application
of the aiding and procuring theory. The district court found sufficient evidence supported
the battery charges under an aiding and abetting theory. With respect to the conspiracy
charge, the judge stated: "I believe that at a bare minimum there's plenty of
circumstantial evidence to support a prima facie showing that a conspiracy was made that
evening among the participants of these violent acts." The court denied the motion to
dismiss, and the defense declined to present evidence.

In its closing argument, the State told the jury that Carrarra testified Sanchez had
called the assailants to the house, providing direct evidence of conspiracy. The presence
of the men at the house when Spangler and Eackles were attempting to leave, but not
earlier when they arrived, provided circumstantial evidence that Sanchez, in his anger,
procured them by calling them to his home. In total, when discussing Carrarra's
testimony, the State indicated three times that Sanchez called the men to the house. The
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State concluded its initial closing argument by saying, "[W]ho was at the center of that
storm? Every story tells you the same thing, Junior Sanchez. Junior Sanchez confronted
[Eackles] in the bathroom. Junior Sanchez called his fellow gang members to participate
in the attack that night."

Following defense counsel's closing argument, the State opened its rebuttal by
quoting Carrarra's testimony: "I mean, he must have called them, he must have." The
State reiterated its claim that Sanchez had procured the assailants.

After deliberations, the jury found Sanchez not guilty of the battery charges but
guilty on the conspiracy count. Sanchez was sentenced to 41 months' imprisonment, the
presumptive aggravated sentence.

Sanchez first argues the district court based its decision to excuse J.C. for cause
from the venire on errors in facts and law, leading to an abuse of discretion. The court
indicated that J.C. had a best friend whose brother was a codefendant and J.C. was "too
close to all the people in the trial." Sanchez alleged that applied to a different potential
juror, and the lack of substantial competent evidence supporting the court's factual
findings caused a per se abuse of discretion. Sanchez contends the court also excused J.C.
for reasons not supported by law, also yielding a per se abuse of discretion. Analogizing
from federal capital cases, Sanchez argues the court's action prejudiced him by giving the
State an extra peremptory strike, and the wrongful exclusion of a potential juror can
never be harmless error, mandating reversal.

The State argues sufficient facts of J.C.'s familiarity with a codefendant and his
criminal history supported the district court's ruling on the State's motion to strike him for
cause. As such, the court did not abuse its discretion. The State contended that in the
absence of demonstrated error, it did not need to address Sanchez' argument with respect
to prejudice.
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To prevail, Sanchez must establish the trial court erred and that he was prejudiced.
See State v. Ransom, 289 Kan. 373, 389, 212 P.3d 203 (2009). Appellate courts review
the trial court's ruling on a challenge for cause for an abuse of discretion because the trial
court is in a better position to view the prospective jurors' demeanors as they are
questioned. The party asserting an abuse of discretion bears the burden of establishing it.
289 Kan. at 389. A district court abuses its discretion when it makes a decision that is
based on an error of law or fact; or when it makes a decision that is otherwise arbitrary,
fanciful, or unreasonable. State v. Wilson, 301 Kan. 403, 405, 343 P.3d 102 (2015).

Prejudice cannot be established through the loss of a peremptory challenge alone.
"'"[T]he loss of a peremptory challenge [does not] constitute[] a violation of the right to
an impartial jury."'" State v. McCullough, 293 Kan. 970, 996, 270 P.3d 1142 (2012)
(quoting State v. Crawford, 255 Kan. 47, 51–52, 872 P.2d 293 [1994]).

It is clear from the record that the district court confused J.C. for R.V. when it
granted the State's motion to strike J.C. for cause. The court referenced a relationship
between a codefendant and a friend that was never discussed by J.C., only R.V. The
record also suggests the court would not have granted the motion in the absence of its
confusion, as it denied the State's request to dismiss R.V. on the same grounds as J.C.
while noting it believed that R.V. did not have the contacts with the codefendants that it
had mistakenly ascribed to J.C. Regardless of whether other facts may have supported the
court's decision, the court clearly based its ruling on an error of fact, but Sanchez still
bears the burden of demonstrating prejudice.

Sanchez does not argue that he suffered any particular prejudice. Instead, he
argues the district court functionally gave the State an extra preemptory strike by
erroneously granting the motion to strike J.C. for cause. As such, the State had an
unbalanced advantage in determining the composition of the jury. Recognizing this
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argument is a matter of first impression for Kansas courts, Sanchez rests his argument on
a death penalty case from the United States Supreme Court. While Kansas appellate
courts have not specifically addressed Sanchez' argument, the Kansas Supreme Court has
previously addressed situations where a party alleged an imbalance in peremptory strikes,
specifically where a denial of a motion to strike for cause "forced" a party to use a
peremptory strike. See McCullough, 293 Kan. at 996 ("Peremptory challenges are simply
a means to achieve an impartial jury, and the true inquiry is whether the jury that
ultimately sits is impartial.").

In McCullough, the defendant alleged the district court erred by denying five
motions to strike jurors for cause, causing him to use peremptory challenges on those
jurors rather than on other jurors. But the McCullough court noted that the loss of a
peremptory challenge alone could not establish prejudice in a ruling on a motion to strike
for cause. 293 Kan. at 996. In both McCullough and this case, the defendants argued the
district court erred in a ruling on a motion to strike and, as a result, the State wound up
with more effective peremptory challenges. The only distinction is that McCullough
argued she lost peremptory challenges while Sanchez contends the State received an extra
peremptory challenge. This seems to be a more closely analogous case than a death
penalty case dealing with the exclusion of jurors in a capital case solely because they
voiced opposition to the death penalty. See Gray v. Mississippi, 481 U.S. 648, 658-66,
107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987). Using McCullough as guidance, Sanchez is
required to show specific prejudice from the erroneous exclusion of J.C. from the jury,
and he has explicitly declined to do so. 293 Kan. at 996. Accordingly, in the absence of a
showing of prejudice, we find that Sanchez has failed to meet his burden to show error.

Sanchez next argues the district court violated his right to a fair trial under the
Fourteenth Amendment to the United States Constitution by allowing the State to use
peremptory strikes against Hispanic venire persons without a race-neutral explanation,
which is unlawful under Batson v. Kentucky, 476 U.S. 79. Sanchez alleges the court
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failed to follow proper procedure when, after asking the State for a race-neutral reason
for striking the potential jurors, it asked Sanchez' attorney if he found the reason
sufficient instead of making its own ruling on the State's proffered reasons, and when it
did not permit Sanchez to respond to the proffered reason and prove purposeful
discrimination.

The State also struck F.G., R.V., A.L., and A.S., who are presumably Hispanic
like Sanchez, and it did so over Sanchez' objection. The State also struck another
presumably Hispanic venire person, M.D. In total, the State struck six of the eight
Hispanic potential jurors in the 29-person venire, while it only struck three who belonged
to other minority groups. Sanchez argues the district court was required to assess the
State's facially race-neutral reasons for striking the venire members, but it did not do so
and it did not permit Sanchez an opportunity to object before asking him for his next
preemptive strike. Sanchez contends the State's proffered reasons do not bear scrutiny, as
it failed to strike a white member of the venire who knew Sanchez and a codefendant,
whereas knowing either Sanchez or a codefendant was supposedly sufficient to strike a
Hispanic person. Sanchez contends that he is entitled to a new Batson hearing.

While the State tacitly questions whether Sanchez created an inference of
discrimination, it assumes he met the first step under Batson. But the State contends it
offered plausible nondiscriminatory reasons for its decision to strike each of the
challenged jurors with peremptory challenges. Additionally, the State alleges Sanchez
was provided an opportunity to object to the State's reasons, but he opted not to do so.

"In Batson, the United States Supreme Court held that the Equal Protection Clause
applies to the State's privilege to strike prospective jurors through peremptory challenges.
When a Batson challenge is asserted, a three-step analysis applies; each step is governed
by its own standard of review. [Citations omitted.]" State v. Kettler, 299 Kan. 448, 461,
325 P.3d 1075 (2014). If the district court failed to conduct a proper Batson analysis, the
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normal remedy is a limited remand addressing the propriety of the peremptory strike. See
State v. Knighten, 51 Kan. App. 2d 417, 427, 347 P.3d 1200, rev. denied 302 Kan. 1016
(2015).

The first step obliges the party challenging the strike to make a prima facie
showing that the striking party exercised a peremptory challenge on the basis of race. We
apply plenary or unlimited review to the trial court's prima facie determination. Kettler,
299 Kan. at 462.

The second step is engaged only if the party challenging the strike successfully
makes a prima facie showing. If so, the burden shifts to the striking party to articulate a
race-neutral reason for the peremptory strike. The standard of review on the second step
is deferential, requiring only a facially valid reason, and the reason will be deemed race-
neutral unless it is inherently discriminatory. Despite the shift in the burden of production
at the second step, the party challenging the strike still has the burden of persuasion.
Kettler, 299 Kan. at 461.

The third step then requires the district court to decide whether the party
challenging the strike has met its burden of persuasion to show purposeful discrimination
by the striking party. Since the third step requires a credibility determination, appellate
review is for abuse of discretion. Kettler, 299 Kan. at 462. Although not determinative,
the court can consider that other members of the same race as the defendant were not
struck. State v. Angelo, 287 Kan. 262, 274, 197 P.3d 337 (2008).

Sanchez' principal Batson argument is largely grounded in a strained construal of
the district court's actions during voir dire. Although the district court did ask defense
counsel for an assessment of the State's given reasons for exercising its peremptory
strikes, the court's consideration of the challenge did not end with Sanchez' deferral to the
court. Instead, the court asked the State to further explain its reasons, ultimately accepting
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that the State provided nondiscriminatory reasons for exercising its peremptory strikes.
As such, the court did not commit either error that Sanchez alleges. The court allowed
defense counsel an opportunity to respond to the State's given reasons, which counsel
declined, and it made its own finding regarding the propriety of those reasons after it
provided counsel with an opportunity to rebut the State's arguments.

Sanchez also appears to challenge the district court's implicit finding that the State
satisfied its burden to provide plausible nondiscriminatory reasons for exercising its
peremptory strikes as it did. Although Sanchez dismisses the significance of this fact, it is
noteworthy that one Hispanic member of the venire, M.G., remained on the jury, and she
was not the target of any attempted strikes by the State. See Angelo, 287 Kan. at 274.

Additionally, defense counsel struck another Hispanic venire person, K.T., so the
paucity of Hispanic members of the jury was not solely the result of the State's
challenges. V.R. had a close association with one of Sanchez' codefendants—his best
friend's brother—and, despite a claim he would not be bothered to return a verdict against
Sanchez, this provided a plausible, nondiscriminatory reason for a preemptive strike. A.L.
was struck for knowing R.V., which was also a plausible, race-neutral reason supported
by the record. Nothing in the record or the briefs suggests the State's reasons for striking
A.S. were pretextual or anything but race-neutral. The court did not abuse its discretion
by finding that the State did not discriminatorily strike these individuals from the venire.
Kettler, 299 Kan. at 461-62.

In a closer case, F.G. indicated that he knew Sanchez from school several years
before but had only spoken with him a few times and was not associated in any way with
him, drawing a preemptive strike. J.M., on the other hand, both taught and coached
Sanchez and a codefendant and associated with Sanchez on a daily basis while he was in
school, yet the State did not move to strike him from the venire despite the fact that he
seemed to be far more acquainted with Sanchez during school.
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In this case, we can consider, although it is not dispositive, that the State appeared
to strike a Hispanic member of the venire for a particular reason but failed to strike a non-
Hispanic venire person despite marked similarities. Angelo, 287 Kan. at 274. Importantly,
defense counsel made no effort at voir dire to meet his burden to persuasively argue that
the State's decision was motivated by discriminatory intent. Accordingly, there was no
basis for the court, which heard all of the potential jurors answer the attorneys' questions
during voir dire and could thus make its own implicit credibility determinations, to doubt
the State's proffered race-neutral reason for striking F.G. The court did not abuse its
discretion by determining the State's decision to strike F.G. was not discriminatory. See
Kettler, 299 Kan. at 461-62. As such, we affirm.

Sanchez also contends the State's evidence supporting the conspiracy conviction
required the jury to impermissibly stack inferences in order to satisfy the agreement
element. The State did not present any direct evidence of an agreement or of any effort by
Sanchez to actually gather the assailants at the house for the purpose of attacking
Spangler and Eackles. He argues the State needed the jury to stack four inferences in
order to convict, grounded only in the undisputed fact that there were more people in
front of the house when the victims tried to leave than when they arrived: (1) these people
were not somewhere else in the house when Eackles and Spangler entered but arrived
later; (2) Sanchez called these additional people to the house; (3) Sanchez called them to
the house in order to attack Eackles and Spangler; and (4) specifically, Sanchez called
these individuals to the house to commit aggravated battery on Eackles and Spangler. No
evidence indicated that Sanchez agreed with the others to do great bodily harm to Eackles
and Spangler, so insufficient evidence supported the conspiracy conviction.

The State contends there was direct evidence Sanchez was angry, acted
confrontationally toward the victims, and continued to speak aggressively to Eackles
about leaving the house while others attacked him in the bathroom, allowing for an
17

inference that he had already entered into an agreement with the men to attack Eackles.
The assailants were not present when Eackles arrived, and no one else had a reason to
call them over, indicating that Sanchez procured the men in order to attack Eackles and
Spangler. Additionally, Sanchez' actions during the larger attack provided sufficient
evidence to support the conspiracy charge, as he encouraged the attack and, according to
Bowman, directly participated in it, demonstrating an agreement and acts in furtherance
of the agreement.

Our standard of review provides that "[w]hen the sufficiency of the evidence is
challenged in a criminal case, this court reviews the evidence in a light most favorable to
the State to determine whether a rational factfinder could have found the defendant guilty
beyond a reasonable doubt." State v. McClelland, 301 Kan. 815, 820, 347 P.3d 211
(2015). An appellate court "do[es] not reweigh the evidence or evaluate the credibility of
witnesses," as these functions are left to the jury. State v. Hall, 292 Kan. 841, 859, 257
P.3d 272 (2011); see also State v. Van Winkle, 254 Kan. 214, 225, 864 P.2d 729 (1993)
("On appellate review . . . all questions of credibility are resolved in favor of the State.").
Convictions, even of the most serious crimes, may be based on circumstantial evidence.
State v. Longoria, 301 Kan. 489, 533, 343 P.3d 1128 (2015).

Conspiracy requires proof that the defendant entered into an agreement with
another person to commit or assist in the commission of a particular crime and that the
defendant or the coconspirator committed an overt act in furtherance of the conspiracy.
See K.S.A. 2015 Supp. 21–5302(a). The existence of an agreement does not need to be
proved directly. "[I]t is enough if the parties tacitly come to an understanding in regard to
the unlawful purpose, and this may be inferred from sufficiently significant
circumstances. [Citation omitted.]" State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d
1027 (1995); see State v. Williams, 299 Kan. 509, 528-29, 324 P.3d 1078 (2014); State v.
Sharp, 289 Kan. 72, 104–05, 210 P.3d 590 (2009); State v. Davis, 284 Kan. 728, 737–38,
163 P.3d 1224 (2007). "An overt act which completes the crime of conspiracy is
18

something apart from the conspiracy . . . [and] it must accompany or follow agreement
and must be done in furtherance of the object of the agreement." State v. Crockett, 26
Kan. App. 2d 202, Syl. ¶ 4, 987 P.2d 1101 (1999).

Facts can be established at trial either by direct evidence or by circumstantial
evidence. Neither is intrinsically more worthy of consideration than the other. In fact,
even the most serious crime may be proven by circumstantial evidence. State v. Scott,
271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001); State v. Cruz, 15
Kan. App. 2d 476, 488, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). Nevertheless, a
conviction cannot be based solely upon inferences. Cruz, 15 Kan. App. 2d at 490. Thus,
when a fact is established by circumstantial evidence, the circumstances must be proven
and cannot be inferred from other circumstances. State v. Rice, 261 Kan. 567, 587, 932
P.2d 981 (1997). But once a fact is proven through circumstantial evidence, the jury may
draw reasonable inferences from a fact so proven. 261 Kan. at 587. Thus, there is no
impermissible stacking of inferences if each element of the crime charged is supported by
substantial evidence, either direct or circumstantial. State v. Taylor, 34 Kan. App. 2d 889,
891, 126 P.3d 437 (Kan. App. 2006).

The State principally relied on two pieces of evidence at trial to prove Sanchez
entered into a conspiracy with the assailants to commit aggravated battery on Spangler
and Eackles, namely testimony from the victims and others that the assailants were not
seen at the house when they arrived and Carrarra's testimony that Sanchez must have
called the people to the house in order to attack the victims. In its brief, the State also
discusses evidence that Sanchez was angry, spoke to the victims about needing to leave
the house, and stood with the group while the attack took place, possibly even directly
participating in the attack. Notably, there is no direct evidence that Sanchez called a
single person to the house, as Carrarra only stated her belief that Sanchez must have been
encouraging them, and that belief has absolutely no evidentiary value. No witness
testified or was there physical evidence, such as phone records, that demonstrated he
19

called or spoke to anyone about coming over to his house. There is no direct evidence
that any such communication was made in order to enter into an agreement to commit
aggravated battery. But direct evidence is not necessary, as circumstantial evidence can
suffice. Longoria, 301 Kan. at 533.

The State urges us to take the same inferential steps that Carrarra made in her
testimony. Spangler and Eackles saw some or most of the house when they walked to
Mills' room. They did not see the group of people later present in the living room when
they tried to leave. Based only on these facts, Sanchez argues that proof of an agreement
by him to engage in aggravated battery would require us to infer that the group could not
have arrived at his house without having been called, his actually calling them to the
house, and the gathering occurring as a function of an agreement to attack the victims.
Sanchez argues that this requires an unacceptable stacking of inferences. See Rice, 261
Kan. at 587. For the purpose of our opinion, we will presume that Sanchez is right on this
point—that the jury could not presume that he called or texted to get the attackers to
come to the house.

Even setting aside any inference that Sanchez called the group to the house,
however, the State could have proven a conspiracy based on the group's actions once at
the house. Whether the group arrived at the house for the purpose of engaging in an
attack, they could have still entered into an agreement once at the house to commit the
acts underlying aggravated battery. Sanchez was accompanied by two men as he
confronted Eackles in the bathroom, and at least the two men attacked him and caused an
injury requiring surgery. In the living room, Sanchez yelled at Spangler and Eackles as
the others attacked the men with bottles, tire irons, and knives. While the claim is
disputed and not entirely consistent with the other evidence, Bowman explicitly identified
Sanchez as a direct participant in the living room attack, which, like every other violent
act during the attack, would be an act in furtherance of the agreement. This concerted
violent action, punctuated by Sanchez' yelling at the victims before and during the
20

attacks, could provide an evidentiary basis for a reasonable inference of guilt by the jury.
Williams, 299 Kan. at 528-29.

Evidence from the trial, viewed in the light most favorable to the State, would
support the necessary inference that Sanchez entered into an at least tacit agreement to
attack Spangler and Eackles and cause them great bodily harm. Rice, 261 Kan. at 587. As
such, we affirm.

Sanchez next argues the prosecutor repeatedly told the jury during closing
arguments and rebuttal closing arguments that Sanchez had called men to beat Eackles
and Spangler and that this act constituted direct evidence of conspiracy. Sanchez
contends no such evidence had been presented. Carrara only testified that she assumed
Sanchez called the men to the house, and the prosecutor's clear misrepresentation of the
evidence constituted misconduct. He also contends all of the factors militate in favor of
our concluding that the misconduct prejudiced him and denied him a fair trial. He argues
that the misconduct was gross and flagrant because the prosecutor made an argument and
presented a narrative based on facts not in the record and the misstated evidence was
central to the case against Sanchez. The prosecutor's ill will is supposedly demonstrated
by the fact the misrepresentations were made during arguments that the prosecutor could
have planned in advance, the prosecutor made the misrepresentation five times, and the
prosecutor repeated the misrepresentation to the district court in response to Sanchez'
motion to dismiss the charges.

The State contends its comments during closing arguments were consistent with
the evidence. The State argues that even if its statements were not fully supported, its
conduct was not flagrant, gross, or motivated by ill will, as it was not emphasized over
other evidence. The State argues any error was cured when in its rebuttal closing
arguments, it clarified precisely what Carrarra had said. Other evidence of Sanchez' guilt
21

was also sufficiently overwhelming, such that any possible misstatement did not affect
the verdict and was harmless.

Preliminarily, a claim of prosecutorial misconduct based on comments made
during closing arguments is not evidence, and it will be reviewed on appeal even absent a
contemporaneous objection. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052
(2014); State v. Dull, 298 Kan. 832, 836, 317 P.3d 104 (2014); State v. Stevenson, 297
Kan. 49, 51, 298 P.3d 303 (2013); State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).

As to the prosecutorial misconduct standard, as explained in State v. Tosh, 278
Kan. 83, 85, 91 P.3d 1204 (2004), appellate review of allegations of prosecutorial
misconduct requires a two-step process. First, an appellate court determines whether
there was misconduct, i.e., whether the prosecutor's comments were outside the wide
latitude allowed in discussing the evidence. Armstrong, 299 Kan. at 416 (citing State v.
Bridges, 297 Kan. 989, 1012, 306 P.3d 244 [2013]; Tosh, 278 Kan. at 85). Second, if
misconduct is found, the appellate court determines whether those comments compel
reversal, i.e., whether the statements prejudiced the jury against the defendant and denied
the defendant a fair trial. Armstrong, 299 Kan. at 416.

It is well established that a prosecutor must limit his or her remarks in closing
arguments to facts in evidence. State v. Baker, 281 Kan. 997, 1012, 135 P.3d 1098
(2006); see State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 (2009). Nevertheless,
there does not have to be direct evidence of every point argued. "[A] prosecutor is
allowed considerable latitude in discussing the evidence and drawing reasonable
inferences from that evidence. [Citations omitted.]" State v. McCaslin, 291 Kan. 697,
722, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan.
395, 324 P.3d 1046 (2014). The Supreme Court has previously held that misconduct
occurs when a prosecutor states facts that are not in evidence. See State v. Ly, 277 Kan.
386, Syl. ¶ 4, 85 P.3d 1200 (2004) ("It is clearly improper for the prosecutor to state facts
22

that are not in evidence. When the prosecutor argues facts that are not in evidence, the
first prong of the prosecutorial misconduct test is met."). Even if the prosecutor
inadvertently misstated Carrarra's testimony, the effect is the same and the error qualifies
as possible prosecutorial misconduct. 277 Kan. 386, Syl. ¶ 4.

Turning to the second step, the first of three factors is whether the misconduct was
gross and flagrant. In State v. Lowrance, 298 Kan. 274, 284, 312 P.3d 328 (2013), the
Supreme Court found that arguing facts not in evidence was gross and flagrant
misconduct because "every prosecutor should know that he or she cannot make
arguments for which there is no evidentiary support." The same result obtains here, as no
evidence actually supported the prosecutor's clear and repeated assertion that Sanchez
"procured" the assailants. See State v. Marshall, 294 Kan. 850, Syl. ¶ 7, 251 P.3d (2012).

The third factor weighs against reversal because the prejudicial effect of the
prosecutor's misrepresentation is greatly outweighed by the testimonial evidence
demonstrating that Sanchez both encouraged and participated in the concerted attack on
Spangler and Eackles. As noted above, this evidence is sufficient to support the
conspiracy charge, and the State also made a point to provide the jury with Carrarra's
precise testimony during the rebuttal phase of its closing argument, mitigating the effect
of the initial claim. See State v. Marshall, 294 Kan. 850, 864, 281 P.3d 1112 (2012) (the
court considered the contents of the State's rebuttal arguments as a part of its analysis of
the flagrancy of and potential ill will underlying a prosecutor's remarks in closing).
Viewing the prosecutor's misstatement in light of the entire record, we conclude it was
not reasonably possible that the comment contributed to the verdict. Armstrong, 299 Kan.
at 416.

Finally, Sanchez argues the district court erred by sentencing him to an aggravated
presumptive sentence without submitting the existence of aggravating factors as a factual
determination to the jury. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
23

Ed. 2d 435 (2000), requires that a jury find beyond a reasonable doubt any fact used to
enhance a sentence. Sanchez argues this renders the Kansas Supreme Court's
interpretation of K.S.A. 2015 Supp. 21-6804(e)(1) unconstitutional, as it does not require
explicit court fact finding before the imposition of an aggravated sentence. Additionally,
Sanchez contends the aggravated sentence should not be considered part of the
presumptive sentence, as otherwise there would be no need for the legislature to direct a
court to find certain facts before imposing an aggravated sentence. As such, he argues the
district court was not permitted to impose an aggravated sentence in the absence of
proper fact finding, and it should only have imposed the middle sentence. Sanchez does
not address appellate jurisdiction over presumptive sentences.

The State argues that we do not have jurisdiction to review a presumptive
sentence. Regardless, the State also contends the imposition of an aggravated
presumptive sentence based on mitigating factors not presented to a jury does not violate
Apprendi or otherwise exceed the sentencing judge's authority.

The Kansas Supreme Court rejected Sanchez' argument in State v. Johnson, 286
Kan. 824, 851-52, 190 P.3d 207 (2008) (concluding that the sentencing scheme
permitting the imposition of presumptive aggravated sentence without submitting
aggravating factors to a jury did not violate Apprendi and, upon this finding, ending its
analysis as it lacked jurisdiction to review the sentence). The Supreme Court later
affirmed it had authority to review challenges to sentencing statutes but it lacked
jurisdiction to review individual presumptive sentences, specifically citing Johnson. State
v. Huerta, 291 Kan. 831, 839-40, 257 P.3d 1043 (2011). Separately, the Supreme Court
noted: "Under K.S.A. 21-4721(c)(1), an appellate court is without jurisdiction to
consider a challenge to a presumptive sentence, even if that sentence is to the highest
term in a presumptive grid block." State v. Baker, 297 Kan. 482, 485, 301 P.3d 706
(2013). Accordingly, we do not have jurisdiction to review Sanchez' presumptive
aggravated sentence.
24


The Johnson court exercised jurisdiction over a challenge to the overall statutory
sentencing scheme. 286 Kan. at 851-52. It is not entirely clear from Sanchez' brief that he
actually makes such a challenge, as his argument shifts between suggesting the statutory
scheme violates Apprendi and contending the Supreme Court's interpretation of the
statute was actually unconstitutional, not the statute itself. As such, there is no clear basis
for jurisdiction to review this claim. Regardless, the Supreme Court has squarely
foreclosed any argument that the imposition of a presumptive sentence without jury fact
finding regarding aggravating factors violates Apprendi, and neither Sanchez' brief nor
independent research establishes any suggestion that the Supreme Court is moving away
from this holding. As such, we are bound by Supreme Court precedent and conclude the
district court did not err in this respect. See State v. Ottinger, 46 Kan. App. 2d 647, 655,
264 P.3d 1027 (2011) (Court of Appeals observing its duty to follow established Supreme
Court precedent in the absence of some indication of a departure by the court from that
holding).

Even if we were to conclude that we had jurisdiction to review Sanchez'
sentencing challenge, we would not be equipped to do so because Sanchez has failed to
include a sentencing hearing transcript in the record. The party claiming an error occurred
has the burden of designating a record that affirmatively shows prejudicial error. State v.
Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013). Without such a record, we presume
the action of the district court was proper.

Affirmed.