State v. Torrence

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NOT DESIGNATED FOR PUBLICATION

Nos. 114,546
114,547
114,548

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHARLES M. TORRENCE,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed April 28, 2017.
Affirmed.

Charles M. Torrence, pro se appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before SCHROEDER, P.J., GREEN, J., and BURGESS, S.J.

Per Curiam: Charles M. Torrence appeals his jury trial convictions of six separate
counts of robbery, attempted aggravated robbery, aggravated robbery, and criminal
possession of a firearm. Reviewing Torrence's seven alleged errors, we find his claims
lack merit or he fails to brief the issues. We find no error by the district court and affirm.



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FACTS

Torrence was identified as a potential suspect in a series of armed robberies in
Wichita between January and April 2013. On April 15, 2013, officers responded to a call
of a vehicle containing a possible armed robbery suspect. Officers observed three
individuals in the vehicle. LaDonna Barfell was seated in the driver's seat, Torrence was
seated in the front passenger seat, and John Byrd was seated in the back seat. As they
approached, the officers noticed Torrence moving around reaching for the glovebox and
floorboard areas. The officers arrested Torrence and subsequently located a handgun in
the glovebox.

Torrence was charged in three separate cases. In 13-CR-942, the State charged
him with one count of attempted aggravated robbery at a Neighborhood Walmart store on
January 20, 2013, in which he approached a cashier, demanded money, told her he had a
gun, and threatened to shoot everyone in the store if she did not comply. In 13-CR-1383,
the State charged him with aggravated robbery and criminal possession of a firearm
based on armed robbery of a Cricket Wireless store on February 27, 2013, in which he
took an iPhone from inside the store and threatened the store manager, S.C., with a
firearm as she attempted to take back the phone. In 13-CR-1713, the State charged him
with three counts: aggravated robbery based on armed robbery of a Dollar General store
on January 27, 2013, in which he approached the cashier, A.L., demanded money from
the register, and showed A.L. a knife; robbery of a Walmart store on January 29, 2013, in
which he demanded money from a cashier; and aggravated robbery of a Dillon's store on
April 7, 2013, in which he approached a cashier, demanded money, and pointed a gun at
her.

All three cases involving six counts were consolidated for a jury trial by
agreement of the parties. The jury convicted Torrence of all charges. Following his
conviction, Torrence filed a motion for a new trial and motion for arrest of judgment,
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alleging ineffective assistance of counsel. The district court conducted an evidentiary
hearing where it heard testimony from Torrence's trial counsel and trial counsel's
investigator and took the matter under advisement. At a subsequent hearing, the district
court gave an extensive oral ruling denying Torrence's motions.

Torrence was sentenced to 136 months' imprisonment in 13-CR-942; 247 months'
imprisonment in 13-CR-1383; and 342 months' imprisonment in 13-CR-1713. The
district court ordered his sentences to run consecutively for a total controlling sentence of
725 months' imprisonment. Torrence timely appeals. Additional facts are set forth as
necessary herein.

ANALYSIS

The district court had subject matter jurisdiction.


Torrence argues the district court lacked subject matter jurisdiction to convict and
sentence him on the charges in 13-CR-1383 and 13-CR-1713 after his cases were
consolidated for trial. He acknowledges he did not raise this issue before the district
court. However, subject matter jurisdiction may be raised at any time, whether for the
first time on appeal or on the appellate court's own motion. State v. Sales, 290 Kan. 130,
135, 224 P.3d 546 (2010). Whether jurisdiction exists is a question of law subject to
unlimited review. State v. Dull, 302 Kan. 32, 61, 351 P.3d 641 (2015).

Torrence asserts: "Once the State amended the Information in 13 CR 0942,
however, to include Counts 2 [through] 6 from 13 CR 1383 and 13 CR 1713, [Torrence]
may not be charged on the original informations." His claim that the State amended its
information in 13-CR-942 is unsupported by the record, which does not contain an
amended information. Torrence failed to include the State's informations in 13-CR-1383
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or 13-CR-1713 in the record on appeal. Further, he fails to cite to the record in support of
his claim.

Given this insufficient record, Torrence has failed to meet his burden under
Kansas Supreme Court Rule 6.02(a)(4) and (5) (2017 Kan. S. Ct. R. 34) (appellant has
the burden to furnish a sufficient record to support his or her claims of error; appellant's
claims of error must be supported with specific citations to record on appeal). Therefore,
this court must presume the trial court's action was proper. State v. Sisson, 302 Kan. 123,
128, 351 P.3d 1235 (2015) (party claiming error has burden of designating a record
affirmatively showing prejudicial error; without such a record, appellate court presumes
action of trial court was proper).

Even if Torrence had provided the necessary documents, his argument would still
fail on the merits. Although not clearly articulated in his brief, Torrence appears to be
arguing either: (1) consolidating the charges from all three cases into a single jury trial
was equivalent to the State amending its complaint in 13-CR-942; or (2) the State was
required to amend its complaint in 13-CR-942 after the cases were consolidated. These
contentions are at best incidentally raised but not argued. A point incidentally raised in a
brief but not argued therein is deemed waived and abandoned. State v. Sprague, 303 Kan.
418, 425, 362 P.3d 828 (2015). Torrence also fails to cite any pertinent authority in
support of his argument. Failure to support a point with pertinent authority or explain
why it is sound despite a lack of supporting authority or in the face of contrary authority
is akin to failing to brief the issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158
(2015). He has failed to properly brief the issue; thus, this court must presume the district
court's action was proper. See Sisson, 302 Kan. at 128.

Furthermore, Torrence's argument lacks merit as "[t]he court may order two or
more complaints, informations or indictments against a single defendant to be tried
together if the crimes could have been joined in a single complaint, information or
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indictment." K.S.A. 22-3203. Torrence does not argue the crimes could not have been
charged in a single complaint, indictment, or information. The charges were related to an
ongoing series of property crimes; therefore, they could be charged in the same
complaint, indictment, or information. See K.S.A. 22-3202(1). Consolidating multiple
cases for trial does not cause the charges in each complaint to lose their individual
identity; rather, "there is a single trial and the jury is to determine each charge on the
evidence submitted on each count of the separate complaints." State v. Taylor, 262 Kan.
471, 479, 939 P.2d 904 (1997), abrogated on other grounds by State v. Berreth, 294 Kan.
98, 123, 273 P.3d 752 (2012). We find the district court had subject matter jurisdiction to
preside over all of the charges pending against Torrence in the three cases consolidated
by agreement for one jury trial.

The State's information in 13-CR-942 was not defective.

Torrence argues the wording of the State's information in 13-CR-942—alleging
attempted aggravated robbery—"was jurisdictionally and fatally defective as required
elements of the crime are wholly absent." Specifically, he argues the State's information
did "not allege whether any alleged demands for money occurred within or outside of
another's presence nor if force, threat of bodily harm, or bodily harm occurred." He
further asserts: "The charging document hereon [sic] shows that [Torrence] possessed no
'malignancy of mind' by its failure to allege that Torrence's actions were committed
'knowingly, unlawfully, and willfully.'"

In response, the State asserts Torrence's argument is not properly before this court
because it was not raised below. Torrence frames the issue as a question of subject matter
jurisdiction—an issue that can be raised for the first time on appeal. See Sales, 290 Kan.
at 135. However, as the Kansas Supreme Court held in State v. Dunn, 304 Kan. 773, 811,
375 P.3d 332 (2016):

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"Charging documents do not bestow or confer subject matter jurisdiction on state courts
to adjudicate criminal cases; the Kansas Constitution does. Charging documents need
only show that a case has been filed in the correct court, e.g., the district court rather than
municipal court; show that the court has territorial jurisdiction over the crime alleged;
and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas
crime committed by the defendant."

As a general rule, a decision overruling precedent is applied to all similar cases
pending as of the date of the overruling decision. State v. Nguyen, 281 Kan. 702, 715, 133
P.3d 1259 (2006). Since the Kansas Constitution confers jurisdiction to adjudicate
criminal cases, not the charging document, the district court had jurisdiction to convict
and sentence Torrence.

Dunn held challenges to charging documents should be raised before the district
court to preserve the issue and, if not raised below, the defendant must demonstrate an
exception to the preservation rule applies. 304 Kan. at 818-19. The Kansas Supreme
Court identified three exceptions to the preservation rule:

"(1) The newly asserted theory involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3)
the district court is right for the wrong reason." State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014).

We recognize Dunn was decided 1 week before Torrence filed his brief, and it is
understandable Torrence did not address the preservation issue as set out in Dunn.
However, he did file two letters of supplemental authority pursuant to Kansas Supreme
Court Rule 6.09 (2017 Kan. S. Ct. R. 39). In his Rule 6.09 letters, he acknowledges Dunn
but still does not address preservation. An argument not raised before the district court
cannot be raised for the first time on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d
987 (2014). Kansas Supreme Court Rule 6.02(a)(5) requires a party to explain why an
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issue not raised below should be considered for the first time on appeal. This rule is to be
strictly enforced. State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Parties
who fail to comply with this rule risk a ruling that the issue is improperly briefed and will
be deemed waived and abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528
(2014).

Prior to trial, Torrence argued the information was defective for failing to name a
victim; he did not allege any additional defects. Torrence has not briefed this argument
on appeal; therefore, it is deemed waived and abandoned. State v. Williams, 303 Kan.
750, 758, 368 P.3d 1065 (2016) (an issue not briefed by the appellant is deemed waived
and abandoned). We also observe Torrence's brief on appeal presents this new issue
wholly distinct from the issue he originally raised before the district court. Torrence has
failed to explain why the argument was not raised below or why it should now be
considered for the first time on appeal; therefore, he has failed to properly preserve the
issue or explain why we should address his claims.

In any event, Torrence's argument fails on the merits since Dunn is wholly adverse
to his position:

"Charging documents need only show that a case has been filed in the correct court, e.g.,
the district court rather than municipal court; show that the court has territorial
jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable
doubt, would constitute a Kansas crime committed by the defendant." 304 Kan. at 811.

Here, the State's information alleged: (1) the crime committed—attempted
aggravated robbery; (2) the manner in which it was committed; (3) Torrence committed
the crime; and (4) the crime was committed in Sedgwick County. Therefore, the State's
complaint satisfied the requirements articulated in Dunn.

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In his September 12, 2016, Rule 6.09 letter, Torrence "contends that his defective
complaint issue is actually a 'structural' error which def[ies] harmless-error analysis."
This argument is contrary to Dunn, wherein our Supreme Court explicitly held a
defective complaint is not structural error and is subject to harmless error analysis. 304
Kan. at 821. Because there is no indication the Kansas Supreme Court is departing from
this position, this court is duty bound to follow established precedent. State v. Meyer, 51
Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). Additionally, we note Torrence has
failed to address the harmless error analysis; thus, his argument fails.

No jury instruction error

Torrence argues the jury was improperly instructed by the district court, asserting
the district court's use of PIK Crim. 4th 54.410 was erroneous. He argues the instruction
improperly defines the term "dangerous weapon" for purposes of aggravated robbery.
Specifically, he contends the instruction creates a subjective test for determining whether
an object is a dangerous weapon that "adds a specific intent element to K.S.A. 21-5420(b)
not readily found therein." He further argues "the subjective test allows the victim to
speculate about what he or she saw and, wors[e], to guess about what the suspect
intended."

The standard of review when addressing challenges to jury instructions is well
settled in Kansas:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdictional and preservation viewpoints, exercising an unlimited standard of review;
(2) next, the court should use an unlimited review to determine whether the instruction
was legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless, utilizing the test and
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degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).'" State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).

Our Supreme Court "strongly recommend[s] the use of PIK instructions, which
knowledgeable committees develop to bring accuracy, clarity, and uniformity to
instructions." State v. Barber, 302 Kan. 367, 377-78, 353 P.3d 1108 (2015). Unless the
particular facts of a case require modification of the PIK instructions, they should be
followed. State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).

At trial, Torrence objected to the instruction, raising the same argument he asserts
on appeal. The district court overruled his objection and gave the instruction to the jury.
The issue is properly preserved; therefore, we move to consider whether the instruction
was legally appropriate. See Woods, 301 Kan. at 876.

In pertinent part, PIK Crim. 4th 54.410 defines a dangerous weapon as:

"[A]n instrument which, from the manner in which it is used, is calculated or likely to
produce death or serious bodily injury. An object can be a dangerous weapon if the user
intended to convince a person that it is a dangerous weapon and that person reasonably
believed it to be a dangerous weapon."

This definition is consistent with Kansas precedent; thus, it is legally appropriate.
See State v. Colbert, 244 Kan. 422, 425, 769 P.2d 1168 (1989) (defining dangerous
weapon as "[a]n instrument which, from the manner in which it is used, is calculated or
likely to produce death or serious bodily injury"); State v. Davis, 227 Kan. 174, 176-77,
605 P.2d 572 (1980) (outlining a subjective test for determining whether a robbery was
committed with a deadly weapon); State v. Percival, 32 Kan. App. 2d 82, 92-93, 79 P.3d
211 (2003) ("Whether a robber is 'armed with a dangerous weapon' for aggravated
robbery is determined from the victim's point of view. An object can be a dangerous
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weapon if intended by the user to convince the victim that it is a dangerous weapon and
the victim reasonably believes it is a dangerous weapon.").

Torrence does not explain how the instruction adds a specific intent element, nor
does he adequately explain how the authorities he cites support his argument. He does not
argue the particular facts of his case warranted modification of the instruction, nor does
the record reflect any. Contrary to his argument, PIK Crim. 4th 54.410 does not allow the
victim to speculate as to what he or she saw or guess about the defendant's intent. Rather,
it requires the victim to reasonably believe it is a dangerous weapon. Percival, 32 Kan.
App. 2d at 91-92. Because S.C. testified Torrence had a gun, the instruction was legally
appropriate. We find it unnecessary to continue the analysis. See Woods, 301 Kan. at 876.
The district court properly instructed the jury using the PIK definition for a dangerous
weapon and did not err. See Barber, 302 Kan. at 377-78; Dixon, 289 Kan. 46, Syl. ¶ 10.

Sufficient evidence supports Torrence's convictions for aggravated robbery and criminal
possession of a firearm in case No. 13-CR-1383.

Torrence argues there was insufficient evidence to support his convictions for
aggravated robbery and criminal possession of a firearm in 13-CR-1383. When the
sufficiency of evidence is challenged in a criminal case, the appellate court reviews all
the evidence in the light most favorable to the State. A conviction will be upheld if the
court is convinced that a rational factfinder could have found the defendant guilty beyond
a reasonable doubt based on that evidence. State v. Laborde, 303 Kan. 1, 6, 360 P.3d
1080 (2015). It is only in rare cases where the testimony is so incredible that no
reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will
be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

At trial, the manager of the Cricket Wireless store, S.C., testified Torrence entered
the store on the evening of February 27, 2013. S.C. asked Torrence whether he needed
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any help, and Torrence replied he was just looking. Torrence went over to the iPhone
display at the front of the store, and S.C. heard the alarm go off. S.C. initially thought
Torrence accidentally pulled too hard on the security cable. As she went over to check,
Torrence ran out of the store. S.C. saw the iPhone was missing and chased after Torrence.
She saw the iPhone in Torrence's hand and reached to grab it. Torrence told S.C. not to
"mess with" him and showed S.C. a gun in his right hand. S.C. backed away, and
Torrence left with the iPhone.

Torrence asserts the evidence was insufficient because "[t]he State presented no
evidence that [Torrence] took the phone by force or threat of bodily harm." Essentially,
he argues the taking was complete before any threat of force or bodily harm was made.
Whether the taking was complete prior to Torrence threatening S.C. is a question of fact.
Factual determinations are a question for the jury, not this court.

To convict him of aggravated robbery, the State was required to prove Torrence:
(1) knowingly took property from the person or presence of another by force or by threat
of bodily harm to any person; and (2) did so while armed with a dangerous weapon. See
K.S.A. 2016 Supp. 21-5420(b)(1). When viewed in the light most favorable to the State,
the evidence was more than sufficient to support his conviction.

Torrence further argues the State's evidence was insufficient to prove criminal
possession of a firearm, asserting "the State did not prove every fact necessary to
constitute the crime beyond a reasonable doubt." However, he does not explain which
fact or facts the State failed to prove at trial. At best, he incidentally raises the point and
again fails to argue it, so we deem it waived and abandoned. See Sprague, 303 Kan. at
425. Instead, Torrence focuses on the district court's jury instruction; however, he fails to
properly frame or brief the issue as a matter of jury instruction error. Again, the point is
incidentally raised but not argued.

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To convict Torrence of criminal possession of a firearm, the State was required to
prove: (1) Torrence possessed a firearm; and (2) had been convicted of a felony within
the preceding 10 years. See K.S.A. 2016 Supp. 21-6304(a)(3)(A). S.C. testified Torrence
had a firearm in his possession, and Torrence stipulated he was previously convicted of
aggravated robbery—a person felony. The jury was advised of his stipulation. Torrence
fails to acknowledge in his brief the stipulation before the district court which was
presented to the jury, much less argue it was insufficient to support his conviction. When
viewed in the light most favorable to the State, the evidence of criminal possession of a
firearm was more than sufficient to support Torrence's conviction.

Torrence fails to brief or challenge the sufficiency of the evidence for his other
four convictions; therefore, he has waived and abandoned the issues. Williams, 303 Kan.
at 758.

No Brady violation

Torrence argues the State failed to provide him with "favorable impeachment
evidence that detective David Alexander had falsified DNA evidence in another robbery
case . . . to secure a search warrant," thereby violating Brady v. Maryland, 373 U.S. 83,
87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). At trial, Detective Alexander testified on
behalf of the State about photographic and video surveillance evidence obtained from the
scenes of the robberies. He also testified regarding his interview of LaDonna Barfell.

Prior to sentencing, Torrence filed a motion for new trial alleging a Brady
violation. He asserted "Detective Alexander was known to falsify evidence to secure a
suspect's arrest and conviction." Specifically, he alleged Detective Alexander made a
false statement regarding DNA evidence when applying for a search warrant in an
unrelated case.

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In response to Torrence's motion, the State explained:

"Detective Alexander stated in the affidavit that he wanted to compare the DNA of the
defendant to possible DNA on swabs originating from a Gatorade bottle located at the
scene. Alexander believed when he wrote the search warrant application that the
Gatorade bottle in the possession of the police department had already been swabbed by
crime scene investigators. Instead[,] the scientist who analyzed the DNA swabbed the
bottle when it arrived at the lab."

The State argued Detective Alexander's mistake as to the timing of the DNA swab
in an unrelated case was not material to Torrence's case because Torrence's theory of
defense was mistaken identity. The State also argued Detective Alexander did not
identify Torrence; rather, identification was established through the victims' testimony
and photographic and video evidence.

The district court took judicial notice of the facts in 14-CR-417 and denied
Torrence's motion without a hearing. Specifically, the district court found:

"6. Evidence which [Torrence] seeks to admit at a new trial, i.e. Detective
Alexander's false (i.e. incorrect) statement in an application for search warrant is
inadmissible evidence pursuant to K.S.A. 60-420, 421, and 422, regardless of the intent
of affiant in making the false/incorrect statement. Moreover or in the alternative, the
evidence, if admissible, merely tends to impeach or discredit the testimony of Detective
Alexander. No other credible corroborating evidence relevant to Detective Alexander's
credibility exists.
"NOTE: The Court explicitly rejects [Torrence]'s continuing assertion that a prior
contact/relationship between Detective Alexander and LaDonna Barfell existed.
"7. Thus, even if [Torrence] had the affiant/application information before a
retrial, because of its inadmissibility as a matter of law, [Torrence]'s pretrial knowledge
of the same would not likely produce a different result upon retrial, especially in light of
the overwhelming evidence of guilt produced at trial which is independent of any trial
testimony given by Detective Alexander. In the alternative, assuming the evidence [were]
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admissible, it merely tends to impeach Detective Alexander and no corroborating
impeachment evidence exists; as such, the impeaching evidence is not of such materiality
that it is likely to produce a different result upon retrial.
"NOTE: The Court assumes for purposes of this ruling that the affiant/application
information could not, with reasonable diligence, have been produced at [Torrence]'s
trial."

A district court's decision on a motion for new trial is reviewed for abuse of
discretion. State v. Williams, 303 Kan. 585, 595, 363 P.3d 1101 (2016). An abuse of
discretion occurs when a judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no
reasonable person would take the view adopted by the trial court; (2) based on an error of
law; or (3) based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015).

Torrence fails to demonstrate an abuse of discretion by the district court. Instead,
he generally asserts the State willfully withheld evidence in order to secure a conviction.
He argues the evidence was exculpatory but fails to explain how. He has not shown the
evidence was truly exculpatory as opposed to merely tending to impeach Detective
Alexander's credibility. He asserts "the State's evidence against [Torrence] was scanty at
best" but fails to specifically identify any deficiencies. He also fails to recognize the
testimony of each of the witnesses or the photographic and video evidence. At best, he
incidentally raises these points but fails to argue them. A point raised incidentally in a
brief but not argued therein is deemed waived and abandoned. Sprague, 303 Kan. at 425.
Further, he fails to support many of these contentions with pertinent authority. Failure to
support a point with pertinent authority or explain why it is sound despite a lack of
supporting authority or in the face of contrary authority is akin to failing to brief the
issue. Murray, 302 Kan. at 486.

In any event, Torrence's argument fails. Under K.S.A. 60-422, "[a]s affecting the
credibility of a witness . . . evidence of specific instances of his or her conduct relevant
15

only as tending to prove a trait of his or her character, shall be inadmissible." The
circumstances surrounding Detective Alexander's statements were not pertinent to
Torrence's case. There was nothing materially exculpatory in Detective Alexander's
statement. Moreover, there is no indication Detective Alexander knowingly or
purposefully made a false statement. The evidence merely shows Detective Alexander
was mistaken as to the timing of the collection of evidence in an unrelated case. At best,
this evidence only tends to impeach Detective Alexander's credibility. The district court
properly found it was inadmissible pursuant to K.S.A. 60-422.

Torrence's trial counsel was not ineffective.

Torrence argues his trial counsel was ineffective for failing to properly investigate
evidence and cross-examine the State's witnesses. He asserts his trial counsel failed to
investigate witnesses whose testimony would have supported his theory of mistaken
identification.

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. When the district court conducts a full evidentiary hearing on such claims, the
appellate courts determine whether the district court's findings are supported by
substantial competent evidence and whether the factual findings support the court's legal
conclusions. The appellate courts apply a de novo standard to the district court's
conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish: (1) the performance of defense counsel was deficient under the totality of
the circumstances; and (2) prejudice, i.e., there is a reasonable probability the jury would
have reached a different result absent the deficient performance. Sola-Morales v. State,
300 Kan. 875, 882, 335 P.3d 1162 (2014).

16

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. The reviewing court must strongly presume that counsel's conduct fell
within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014). To establish prejudice, the defendant must show a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
would have been different, with a reasonable probability meaning a probability sufficient
to undermine confidence in the outcome. Sprague, 303 Kan. at 426.

In his motion for new trial and motion for arrest of judgment, Torrence asserted
trial counsel was ineffective for numerous reasons. On appeal, Torrence limits his
argument, claiming trial counsel failed to investigate V.G., C.C., M.C., and A.S. as
potential witnesses. He claims his cousin, V.G., the owner of the white Dodge Durango
identified as the getaway vehicle in the Walmart robbery, would have testified: (1) her
vehicle was inoperable at the time of the crime and therefore could not have been the get-
away vehicle; (2) Torrence had facial injuries at the time of the incidents; and (3) V.G.
and Barfell had been in a fight, providing motive for Barfell to retaliate against V.G. and
Torrence. He further claims A.S., a physician's assistant who treated him for an unrelated
medical condition prior to his arrest, would have testified he had facial injuries during the
timeframe in which the incidents occurred.

Torrence asserts testimony regarding his facial injuries would have supported his
theory of mistaken identification because the State's witnesses indicated he did not have
any facial injuries. He claims M.C., a witness to the Dollar General robbery, would have
testified he told the investigating officers A.L.'s attacker was "possibly Hispanic," further
supporting his theory of mistaken identification. He does not allege C.C., a witness who
identified the getaway vehicle in the Walmart robbery, would have provided favorable
testimony; rather, he argues trial counsel's investigation of C.C. was inadequate.

17

At the posttrial evidentiary hearing, Torrence's trial counsel testified he hired an
investigator to help review the evidence and interview potential witnesses. Trial counsel
indicated he reviewed the evidence and discussed the matter with his investigator and
concluded it would not be beneficial to have V.G., C.C., M.C., or A.S. testify at trial.
Moreover, trial counsel was concerned some of the witnesses' testimony would hurt
Torrence's case or limit his ability to cross-examine other witnesses. Trial counsel's
investigator testified in detail regarding her investigation and that testimony supports trial
counsel's decision not to call the witnesses Torrence now complains of.

The district court took the matter under advisement. Subsequently, the district
court held a hearing where it provided an extensive oral ruling denying Torrence's
motions.

The district court made specific findings with regard to each of the potential
witnesses. It noted counsel's investigator contacted A.S. regarding Torrence's alleged
facial injury, but the medical records showed Torrence did not have an injury on his face.
A.S. specifically recalled an injury on Torrence's extremities. Additionally, the district
court found Torrence's mugshot from March 25, 2013, showed no indication of a facial
injury. The district court further noted trial counsel was aware Barfell stated Torrence did
not have facial injuries during the timeframe in which the crimes were committed.

With regard to V.G., the district court noted counsel's investigator learned Barfell
told Detective Alexander she drove Torrence to Walmart to commit a robbery in V.G.'s
Dodge Durango. Detective Alexander spoke with V.G., and she admitted she owned a
1999 Durango and loaned it to Barfell on the day in question. The investigator attempted
to contact V.G. but was unsuccessful. In light of the evidence at trial, the district court
found V.G.'s Durango was the vehicle used in the Walmart robbery.

18

Regarding C.C., the district court found counsel and his investigator reviewed the
discovery and learned C.C. witnessed the Walmart robbery and told police the getaway
vehicle was an SUV with a gray, primer-colored hood. C.C. provided no other
information. The district court found C.C.'s statement immaterial.

Finally, with respect to M.C., the district court noted he described A.L.'s attacker
in the Dollar General robbery as either black or Hispanic but could not clearly identify
him. The district court found M.C.'s testimony was neither exculpatory nor helpful.

As previously stated, we do not reweigh evidence or credibility; rather, we review
the district court's findings to determine whether they are supported by substantial
competent evidence. Fuller, 303 Kan. at 485. Here, the district court's findings are
supported by substantial competent evidence. Trial counsel's decisions regarding the
scope of his investigation and cross-examination were appropriate strategic decisions
given the information he discovered with his investigation. "[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L.
Ed. 2d 674, reh. denied 467 U.S. 1267 (1984). Based on the district court's findings and
the evidence presented at the posttrial hearing, Torrence has failed to show counsel's
performance was objectively deficient; therefore, he was not prejudiced and we need not
address that prong. Accordingly, we find his claim of ineffective assistance of counsel
fails. See Sola-Morales, 300 Kan. at 882.

No prosecutorial error

Torrence's final argument claims the State committed prosecutorial error by
"knowingly us[ing] perjured testimony against [Torrence] to obtain his conviction." The
State asserts Torrence has framed this as an issue of prosecutorial error "[p]resumably . . .
to evade procedural hurdles" because he did not object at trial. While it is impossible to
19

know Torrence's intent, he cannot frame an unpreserved evidentiary objection as an issue
of prosecutorial error merely to advance its procedural posture. See State v. Raskie, 293
Kan. 906, 914, 269 P.3d 1268 (2012) (a contemporaneous objection must be made to all
evidentiary claims—including questions posed by a prosecutor and responses to those
questions—to preserve the issue for appellate review).

To preserve an evidentiary objection, "a party must lodge a timely and specific
objection to the admission or exclusion of evidence." State v. King, 288 Kan. 333, 348,
204 P.3d 585 (2009) (discussing the contemporaneous objection rule under K.S.A. 60-
404). Torrence did not make a timely objection at trial. He has not explained why the
issue was not raised below or why it should now be considered for the first time on
appeal. Accordingly, his claim of prosecutorial error is not properly before this court. See
K.S.A. 60-404; Godfrey, 301 Kan. at 1044; Williams, 298 Kan. at 1085.

Affirmed.