State v. Tobar-Cerrato

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NOT DESIGNATED FOR PUBLICATION

No. 119,329

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BORIS TOBAR-CERRATO,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed August 16,
2019. Affirmed.

Korey A. Kaul, 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 BRUNS, P.J., MALONE, J., and STEVEN E. JOHNSON, District Judge, assigned.

PER CURIAM: Boris Tobar-Cerrato appeals his convictions of attempted rape and
aggravated sexual battery. He argues that his convictions must be reversed because (1)
the State failed to prove one of the alternative means supporting his attempted rape
conviction and (2) some of the district court's jury instructions infringed on the jury's
power of nullification. We find no error and affirm the district court's judgment.





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FACTUAL AND PROCEDURAL BACKGROUND

In July 2015, 19-year-old S.B. moved into an apartment complex where lots of
"college-aged people" lived. The apartment complex had several communal areas,
including a hot tub, a pool, and a "Wi-Fi room." By the end of August 2015, S.B. had met
Brittany Taylor, William Ryan Stevens, and Tommy Rhodd at the apartment complex.
On September 13, 2015, while in one of the communal areas with Taylor, Stevens, and
Rhodd, S.B. met Tobar-Cerrato. The five made plans to meet after work the next day.

The next day at about 6 p.m., S.B. met Rhodd, Stevens, Tobar-Cerrato, Taylor,
and Taylor's three-year-old daughter in the Wi-Fi room. They spent some time at the pool
and hot tub area, then everyone went to S.B.'s apartment and ate pizza. Tobar-Cerrato
retrieved his laptop computer from his apartment, and they all watched a movie.

When the movie ended, Taylor's daughter was getting tired, and Rhodd left. After
setting up a movie for Taylor's daughter to watch in the living room, Taylor, S.B.,
Stevens, and Tobar-Cerrato went into S.B.'s bedroom to hang out. S.B. repeatedly
mentioned that she was tired. The adults listened to music and, when Stevens said his
back was sore, Taylor gave him a back massage. Tobar-Cerrato asked S.B. to give him a
massage as well, but she at first refused. When he asked again, she agreed to do so, and
she massaged his shoulders "for maybe five minutes." S.B. and Tobar-Cerrato were not
"flirty," and they had no physical contact before the massage.

S.B. later accepted Tobar-Cerrato's offer to give her a back massage. She lay on
her stomach on her bed, and Tobar-Cerrato knelt next to her and began massaging her
back. Shortly after the massage began, while Taylor and Stevens were still in the room,
S.B. fell asleep. She later explained that she was tired from getting up early for work that
morning and she has lupus, which causes "extreme . . . fatigue." After S.B. fell asleep,
Taylor saw Tobar-Cerrato "rubbing [S.B.'s] lower back, her butt, and . . . underneath her
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butt." Although Taylor found that "strange" and "inappropriate," she did not think it
would progress any further, so she and Stevens left the room and went outside to smoke.

When S.B. woke up, she felt someone on top of her. Her shorts were pulled down
to her upper thighs, leaving her genitals and buttocks exposed. Her genital area was wet.
Scared and afraid, S.B. turned and saw Tobar-Cerrato on top of her; he was touching her
vagina and pushing the head of his penis against her vagina. Taylor and Stevens were no
longer in the room. S.B. had not consented to Tobar-Cerrato removing her shorts or to
any sexual acts with Tobar-Cerrato. When she turned, Tobar-Cerrato saw that she was
awake and "started to get up off [S.B.], and off of the bed." S.B. "jumped up off the bed,
and [she] roundhouse punched in him the face."

Tobar-Cerrato ran out of the bedroom, and S.B. "scream[ed] at him to get out of
[her] apartment." Taylor and Stevens came into the living room from the balcony. Taylor
noticed that Tobar-Cerrato's eye was red and swollen, and Tobar-Cerrato said that S.B.
had hit him. S.B. came out of her room, still yelling at Tobar-Cerrato to get out. Tobar-
Cerrato grabbed his laptop and he left the apartment, leaving behind his shoes and his
phone charger. S.B. told Taylor and Stevens that Tobar-Cerrato had tried to rape her, and
she asked them to leave her apartment as well. Although S.B. intended to call the police
as soon as Taylor and Stevens left, when she went to her bedroom to get her phone, she
felt dizzy and passed out on the floor. When she awoke around 1 a.m., she called 911.

Detective Jay Fleer of the Mission, Kansas Police Department responded to the
sexual assault report, and he went to S.B.'s apartment. Other officers were already on the
scene and had spoken with S.B.; they told Fleer that S.B. had said she fell asleep
watching a movie with other people and woke up to one of the men "trying to have sex
with her." S.B. told Fleer about the events of the evening, consistent with the description
above. He tried to contact Taylor, but got no response. Fleer interviewed Taylor at her
apartment on a later date, and Taylor's memory of the events matched S.B.'s.
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After speaking with Fleer, S.B. went to the hospital and Nurse Kimberly Foos
performed a sexual assault examination. S.B. told Foos that she had fallen asleep while a
man was massaging her and, when she woke up, she "found him unclothed on his bottom
half, and laying over the top of her trying to inject [sic] his penis." S.B. said she was not
sure whether he had penetrated her. During the examination, Foos did not observe any
injury to S.B., and she collected swabs from S.B. She did note a light mark and areas of
redness on S.B.'s inner right thigh.

At 9:19 that morning, S.B. received a text message from Tobar-Cerrato that said,
"'I apologize what happened last night is not what you think. I swear to you.'" S.B. did
not respond to the text message, but she told Fleer about it. At 5:06 p.m., she received a
second text message from Tobar-Cerrato that said, "'Please, I can't get into any more
trouble. Please hear me out what I have to say.'" She again informed Fleer and did not
respond to the message.

On March 28, 2016, the State charged Tobar-Cerrato with attempted rape and
aggravated sexual battery. He pled not guilty to both charges, and the jury trial began on
March 20, 2017. S.B. and Taylor testified for the State, relating the events as set forth
above. Fleer and Foos also testified for the State.

Forensic scientist Ashley Clark, who performed a DNA analysis, also testified.
She found no foreign DNA on the vaginal swabs collected at S.B.'s sexual assault
examination. On the labial swabs, however, Clark found Y-STR DNA from a major
contributor and a minor contributor. Clark testified that her analysis of the major
contributor's profile showed that Tobar-Cerrato "and all the males within his paternal
lineage cannot be excluded as a potential DNA donor to this sample." She also explained
that "[t]he probability of randomly selecting an individual who cannot be excluded from
this Y-STR DNA profile is 1 in 111 for African-American[,] 1 in 59 for Caucasians, and
1 in 95 for Hispanics." On cross-examination, Clark testified that she found no semen on
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the comforter, S.B.'s shorts, her perianal swabs, or her mons pubis swab all sent to Clark
for analysis, so she had not tested them for DNA. Clark also conceded that the major
contributor to the sample on the labial swabs "could have been an African-American, a
Caucasian, a Hispanic, an Asian, or a Native American."

Tobar-Cerrato declined to testify, and he did not present any evidence. The district
court instructed the jury and the parties gave closing arguments. After about 40 minutes
of deliberation, the jury found Tobar-Cerrato guilty of attempted rape and aggravated
sexual battery. On June 2, 2017, the district court sentenced Tobar-Cerrato to a
controlling term of 59 months' imprisonment. Tobar-Cerrato timely appealed.

ALTERNATIVE MEANS CLAIM

Tobar-Cerrato argues that this court must reverse his conviction of attempted rape
because the State pursued alternative means of proving attempted rape—that he
attempted nonconsensual sexual intercourse while S.B. was (1) unconscious or physically
powerless and (2) overcome by force or fear"—but the State "presented no evidence that
[he] attempted to rape [S.B.] by using force or fear." The State responds by arguing that
the phrase "force or fear" does not present two alternative means of committing rape and
that, in any event, there was sufficient evidence of both force and fear. As Tobar-Cerrato
points out in his reply brief, he does not argue that the phrase "force or fear" creates
alternative means of committing rape, so the State's argument is irrelevant.

Tobar-Cerrato concedes that he did not raise this issue below but, as he argues, our
Supreme Court has held that criminal defendants may raise an alternative means
argument for the first time on appeal "because it implicates whether there is sufficient
evidence to support the conviction. [Citation omitted.]" State v. Bowen, 299 Kan. 339,
352, 323 P.3d 853 (2014)."'Issues of statutory interpretation and construction, including
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issues of whether a statute creates alternative means, raise questions of law reviewable de
novo on appeal.' [Citation omitted.]" State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).

The district court instructed the jury on the charge of attempted rape as follows:

"The defendant is charged with an attempt to commit rape. The defendant pleads
not guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant performed an overt act toward the commission of rape.
2. The defendant did so with the intent to commit rape.
3. The defendant failed to complete commission of rape.
4. This act occurred on or about the 15th day of September, 2015, in Johnson
County, Kansas.
"An overt act necessarily must extend beyond mere preparations made by the
accused and must sufficiently approach consummation of the offense to stand either as
the first or subsequent step in a direct movement toward the completed offense. Mere
preparation is insufficient to constitute an overt act.
"The elements of the completed crime of rape are as follows:
1. The defendant knowingly engaged in sexual intercourse with S.A.B., who did
not consent, under circumstances when she was unconscious or physically powerless
and/or she was overcome by force or fear.
2. This act occurred on or about the 15th day of September, 2015, in Johnson
County, Kansas.
"Sexual intercourse means any penetration of the female sex organ by a finger,
the male sex organ, or any object. Any penetration, however slight, is sufficient to
constitute sexual intercourse. "

As to the completed crime of rape, Tobar-Cerrato correctly asserts that sexual
intercourse with S.B. while "she was unconscious or physically powerless" and while
"she was overcome by force or fear" are alternative means of committing rape. See
K.S.A. 2018 Supp. 21-5503(a). As noted above, the State did not respond to this
argument. Even so, Tobar-Cerrato's argument fails on its merits because he was not
convicted of rape; he was convicted of attempted rape.
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"'Alternative means issues arise when the statute and any instructions that incorporate it
list distinct alternatives for a material element of the crime.' 'Alternative means are
legislatively determined, distinct, material elements of a crime, as opposed to legislative
descriptions of the material elements or of the factual circumstances that would prove the
crime.' [Citations omitted.]" State v. Butler, 307 Kan. 831, 840-41, 416 P.3d 116 (2018).

Here, the crime of conviction was attempted rape, and K.S.A. 2018 Supp. 21-
5301(a) states: "An attempt is any overt act toward the perpetration of a crime done by a
person who intends to commit such crime but fails in the perpetration thereof or is
prevented or intercepted in executing such crime." To convict Tobar-Cerrato of attempted
rape, the State had to prove only that (1) he performed an overt act toward the
commission of rape; (2) he did so with the intent to commit rape; (3) he failed to
complete the commission of rape; and (4) the act occurred in Johnson County, Kansas.

The rape statute in effect at the time of Tobar-Cerrato's crime lists distinct
alternatives for the material elements of committing rape. See K.S.A. 2015 Supp. 21-
5503(a). But the State did not have to prove beyond a reasonable doubt any of the
elements of rape to secure a conviction for attempted rape. The jury was instructed on the
elements of rape so it could determine whether Tobar-Cerrato had committed an overt act
toward perpetration of rape, whether he intended to commit rape, and whether he failed to
commit rape; not so it could determine whether the State had proven the elements of rape
beyond a reasonable doubt. Stated differently, it was unnecessary for the jurors in Tobar-
Cerrato's case to agree on which alternative means he may have successfully committed
the completed crime of rape. Likewise, it does not matter whether there is sufficient
evidence in the record in Tobar-Cerrato's case to support each alternative means of
successfully committing the completed crime of rape.

By definition, an attempt occurs when the crime is not completed, so it is illogical
to require the State to prove the elements of the attempted crime to secure a conviction
for attempt. See State v. Hernandez, 294 Kan. 200, 205-06, 273 P.3d 774 (2012)
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(recognizing the inconsistency of convictions for aggravated indecent liberties and
attempted aggravated indecent liberties). Tobar-Cerrato's attempted rape conviction does
not implicate alternative means analysis based on the statutory alternative means for
committing rape. More simply stated, attempted rape is not an alternative means crime.
Tobar-Cerrato does not argue that the State failed to prove the required elements of
attempted rape. We conclude there was sufficient evidence to support his conviction.

JURY INSTRUCTION CLAIM

Next, Tobar-Cerrato argues that some of the district court's jury instructions
infringed on the jury's power of nullification. He challenges the language in two
instructions. Jury Instruction No. 1 states, in part: "You must decide the case by applying
these instructions to the facts as you find them." Jury Instruction No. 17 states, in part:
"Your verdict must be founded entirely upon the evidence admitted and the law as given
in these instructions." The State asserts that the district court properly instructed the jury.

"When analyzing jury instruction issues, we follow a three-step process:
'(1) determining whether the appellate court can or should review the issue, i.e.,
whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
appeal; (2) considering the merits of the claim to determine whether error occurred
below; and (3) assessing whether the error requires reversal, i.e., whether the error can be
deemed harmless.' [Citation omitted.]" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1
(2018).

In the first step of the analysis, Tobar-Cerrato concedes that he did not object in
the district court to the jury instructions. "'When a party fails to object to or request a jury
instruction at trial, K.S.A. 22-3414(3) limits appellate review to a determination of
whether the instruction was clearly erroneous.' [Citation omitted.]" McLinn, 307 Kan. at
318. When the appellate court applies the clear error standard, it will only reverse the
district court if an error occurred and the court is firmly convinced that the jury would
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have reached a different verdict if the instruction error had not occurred. The party
claiming a clear error has the burden to show the necessary prejudice. 307 Kan. at 318.

In the second step of the analysis, this court "'consider[s] whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record.' [Citations omitted.]" 307 Kan. at 318. Tobar-Cerrato argues that the jury
instructions infringed on the jury's power of nullification. Jury nullification is

"'[a] jury's knowing and deliberate rejection of the evidence or refusal to apply
the law either because the jury wants to send a message about some social issue that is
larger than the case itself or because the result dictated by law is contrary to the jury's
sense of justice, morality, or fairness.' Black's Law Dictionary 875 (8th ed. 2004)."
Silvers v. State, 38 Kan. App. 2d 886, 888, 173 P.3d 1167, rev. denied 286 Kan. 1180
(2008).

In State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973), our
Supreme Court held:

"Although it must be conceded that the jurors in a criminal case have the raw
physical power to disregard both the rules of law and the evidence in order to acquit a
defendant, it is the proper function and duty of a jury to accept the rules of law given to it
in the instructions by the court, apply those rules of law in determining what facts are
proven and render a verdict based thereon."

Tobar-Cerrato asserts that "informing the jury that it must follow the law as given
is an incorrect statement of the law" because a jury has the inherent power to acquit a
defendant even when it concludes beyond a reasonable doubt that the defendant is guilty.
But as Tobar-Cerrato concedes, this court has consistently rejected the argument that
district courts err by giving instructions that do not inform a jury of its power to render a
nullification verdict. See, e.g., State v. Mitchell-Boyles, No. 114,799, 2017 WL 129949,
at *12 (Kan. App. 2017) (unpublished opinion), rev. denied 306 Kan. 1327 (2017)
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(rejecting argument that jury instruction language identical to the language given here
improperly dismissed jury's right to render a nullification verdict and holding that the
instruction was not legally erroneous); State v. Moss, No. 113,034, 2016 WL 3856824, at
*16-17 (Kan. App. 2016) (unpublished opinion) (same), rev. denied 306 Kan. 1327
(2017); State v. Boone, No. 110,836, 2015 WL 3632046, at *3-5 (Kan. App. 2015)
(unpublished opinion) (same), rev. denied 303 Kan. 1079 (2016).

As this court reasoned in Moss, when faced with the same jury instruction
language and a nearly identical argument from appellate counsel:

"In [McClanahan], our Supreme Court recognized that the jury had the power to acquit
even in the face of overwhelming evidence of guilt. But the McClanahan court concluded
that it was legally inappropriate to provide a jury with the then available 'do what you
think is fair' instruction from PIK Crim. 51.03, because the 'tenor of the instruction
militate[d] against our generally accepted law as to the diverse functions of court and
jury.' 212 Kan. 208, Syl. ¶¶ 3-4.
"More recently, in State v. Naputi, 293 Kan. 55, 65-66, 260 P.3d 86 (2011), our
Supreme Court determined that jurors should not be instructed on the power of
nullification because '[i]t is not the role of the jury to rewrite clearly intended legislation,
nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no
matter how draconian it might be.' See also Silvers v. State, 38 Kan. App. 2d 886, 888,
173 P.3d 1167, rev. denied 286 Kan. 1180 (2008) (Jury nullification is '"[a] jury's
knowing and deliberate rejection of the evidence or refusal to apply the law either
because the jury wants to send a message about some social issue that is larger than the
case itself or because the result dictated by law is contrary to the jury's sense of justice,
morality, or fairness."').
"[The] argument that [this] instruction . . . misstates the law is not persuasive. . . .
[W]e generally examine the '"jury instructions as a whole, without focusing on any single
instruction, in order to determine whether they properly and fairly state the applicable law
or whether it is reasonable to conclude that they could have misled the jury."' State v.
Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014) (quoting State v. Williams, 42 Kan.
App. 2d 725, Syl. ¶ 1, 216 P.3d 707 [2009], rev. denied 290 Kan. 1104 [2010]).
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"The instruction . . . 'Your verdict must be founded entirely upon the evidence
admitted and the law as given in these instructions' explicitly refers to other instructions.
. . . The district court [also] informed the jurors that, even if they had no reasonable doubt
as to what the State was required to prove, 'you should find the defendant guilty.'
(Emphasis added.)
"Read together, the law as given in the instructions was correct . . . .
"[It] simply describes the jurors' legal duty to render a verdict according to the
law in the instructions and the evidence as the jurors determine it to be. The instruction,
especially in light of the others given, fairly states the law. It did not tell the jury, as Moss
argues, that it 'must' convict him, just that it must follow the law given in the
instructions." 2016 WL 3856824, at *16-17.

The sound reasoning in Moss equally applies here. For the reasons explained in
Moss and in many other decisions from this court, it is not erroneous for the district court
to instruct a jury that "Your verdict must be founded entirely upon the evidence admitted
and the law as given in these instructions." Likewise, it is not erroneous for a district
court to instruct a jury that "You must decide the case by applying these instructions to
the facts as you find them." The jury instructions were legally appropriate.

Although we normally would not need to proceed with the third step of our
analysis, we will also find that even if the instructions were not legally appropriate, any
error would not require us to reverse Tobar-Cerrato's convictions. Considering the
overwhelming evidence of Tobar-Cerrato's guilt presented by the State, we are not firmly
convinced that the jury would have reached a different verdict if the instruction error had
not occurred. See McLinn, 307 Kan. at 318. Thus, any error would have been harmless.

Affirmed.