State v. Torres

1

NOT DESIGNATED FOR PUBLICATION

No. 112,801

IN THE COURT OF APPEALS OF THE STATE OF KANSAS


STATE OF KANSAS,
Appellee,

v.

PAUL F. TORRES,
Appellant.


MEMORANDUM OPINION

Appeal from Jewell District Court; JOHN L. BINGHAM, judge. Opinion filed September 4, 2015.
Affirmed.

James M. Johnson, of Frasier, Johnson & Martin, LLC, of Beloit, for appellant.

Darrell E. Miller, county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.

Per Curiam: In this direct appeal of his sexual battery conviction, Paul F. Torres
questions if venue was properly proved in Jewell County District Court since the
prosecutor never asked any of the witnesses if the crime occurred in that county. Venue, a
question of fact, may be established with circumstantial evidence. The evidence here
clearly proved that the sexual battery occurred at the gas station, commonly known as the
Mankato Express station, on Highway 36 in the City of Mankato. From this, the trial
court, as factfinder, could reasonably infer the crime was committed in Jewell County
and the district court was the proper venue for its prosecution.
2

Everything happened at the gas station.

In June 2014, while A.S. was working as a cashier at a gas station in Mankato,
Kansas, a family friend of her parents named Paul F. Torres walked up to her, gave her a
hug, and stuck his hand down the back of her shorts underneath her underwear. The State
charged Torres with sexual battery. At the subsequent bench trial, he moved to dismiss
due to the State's failure to prove venue in Jewell County. The prosecutor had not asked
any of the witnesses if the incident had happened in Jewell County. The district court
took judicial notice of Mankato being in Jewell County and convicted Torres. Torres
appeals.

K.S.A. 22-2602 directs that prosecution for a crime must occur in the county where the
crime was committed.

Where an offense occurred is a question of fact to be decided by the factfinder.
See State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006); State v. Griffin, 210 Kan.
729, 731, 504 P.2d 150 (1972). Because of its factual nature, we review this challenge by
looking at all the evidence in a light most favorable to the prosecution and determining
whether a rational factfinder could have found the defendant guilty beyond a reasonable
doubt. State v. Stevens, 285 Kan. 307, 325, 172 P.3d 570 (2007), overruled on other
grounds by State v. Ahrens, 296 Kan. 151, 290 P.3d 629 (2012).

To prove venue, the State is not required to employ a "specific question and
answer that the offense occurred in the particular county." Griffin, 210 Kan. at 731.
Instead, the State may establish those facts "by other competent evidence showing the
offense was committed within" the county in question. 210 Kan. at 731. Such evidence
includes "proof of facts and circumstances . . . from which the place or places of
commission of the crime or crimes may be fairly and reasonably inferred." State v.
Pencek, 224 Kan. 725, 729, 585 P.2d 1052 (1978).
3

Accordingly, venue may be established by circumstantial evidence. State v.
Lieurance, 14 Kan. App. 2d 87, Syl. ¶ 4, 782 P.2d 1246 (1989). Moreover, the district
court and jury are permitted to take judicial notice as to what county a city is in. See State
v. Calderon-Aparicio, 44 Kan. App. 2d 830, 838-39, 242 P.3d 1197 (2010), rev. denied
291 Kan. 914 (2011). In Calderon-Aparicio, this court found that "the Johnson County
trial court and jury could take judicial notice that the city of Shawnee is located within
Johnson County." 44 Kan. App. 2d at 838.

The sexual battery occurred at a gas station commonly referred to as the Mankato
Express station. A.S. positively identified this gas station as being on Highway 36 in the
City of Mankato. Moreover, an officer from the Jewell County Sheriff's Department—in
fact, the undersheriff himself—investigated the incident. Nothing in the record suggests
that the undersheriff left his jurisdiction to respond to the gas station; the fact that the
undersheriff responded to the call bolsters the inference that the offense occurred in
Jewell County. Moreover, nothing at trial, in the record, or on appeal even suggests that
this offense occurred anywhere other than Jewell County.

On appeal, Torres simply argues that the district court cannot rely on judicial
notice when establishing venue. But this contention is clearly refuted by Calderon-
Aparicio, 44 Kan. App. 2d at 838-39.

More importantly, when acting as the factfinder during a bench trial, a trial judge
is permitted to use his or her common knowledge and experience to assess the evidence.
See State v. Dority, 50 Kan. App. 2d 336, 343, 324 P.3d 1146 (2014), rev. denied ___
Kan. ___ (May 12, 2015). Here, the judge clearly relied on his experience as a resident of
Mankato, Kansas, to determine whether the offense occurred in Jewell County. Although
the prosecutor never directly asked any of the witnesses whether Mankato is in Jewell
County, other competent evidence supports that inference.

4

The State proved venue. Torres' conviction is affirmed.