State v. Vargas

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NOT DESIGNATED FOR PUBLICATION

No. 119,741

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DOMINIC VARGAS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed October 25,
2019. Affirmed in part, vacated in part, and remanded with directions.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., LEBEN, J., and BURGESS, S.J.

PER CURIAM: Dominic Vargas appeals after a jury convicted him of fleeing or
attempting to elude a police officer. On appeal, Vargas contends that the district court
erred by entering convictions for both alternatively charged counts of fleeing or
attempting to elude a police officer; by placing the option of "guilty" before "not guilty"
on the verdict form; and by denying his motion for a mistrial. Vargas also claims that the
State committed prosecutorial error in closing arguments. Finally, Vargas asserts
cumulative error. We find that the district court erred in finding Vargas to be guilty of
two alternatively charged counts, and we reverse one of those convictions. But we find
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against Vargas' remaining claims of error. Thus, we affirm in part, reverse in part, and
remand to the district court with directions.

FACTS

On March 31, 2016, Deputy James Maness attempted to stop a black Pontiac G6
for a traffic violation on Kellogg Avenue in Wichita. The driver was weaving in and out
of traffic, cutting off other traffic, and failing to use a turn signal. As the car started to
exit Kellogg Avenue, it appeared to be pulling over. However, it continued to proceed
down the exit ramp as Deputy Maness activated his siren. The driver kept going and even
passed several cars on the shoulder.

The vehicle slowed down and the deputy thought he was going to stop. The car
then pulled into the parking lot of Whiskey Dicks. Deputy Maness was able to see the
driver's face when he looked over his shoulder and when he looked into the vehicle's
mirror. Deputy Maness described the driver as a light-skinned Hispanic male with a short
buzz cut. Subsequently, the deputy was able to identify the driver as Dominic Vargas.

In the Whiskey Dicks parking lot, Vargas turned in front of the business and
accelerated rapidly toward the south—which was the direction from which he had entered
the lot. Vargas again failed to stop. He also failed to use his turn signal and cut across the
street, nearly crossing into oncoming traffic. Deputy Maness later testified that it was
obvious to him at this point that Vargas was actively attempting to flee. As such, the
deputy once again activated his siren and followed the Pontiac.

As Vargas drove in the fast lane on Seneca, he made a right turn on McCormick to
go west. Vargas was driving well over the speed limit and failed to adequately slow down
for the turn. Deputy Maness testified that he was struggling to keep up. As Vargas was
pulling away from the deputy, the Pontiac was straddling the lanes of traffic.
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Deputy Maness alerted other officers of the pursuit on the radio. He testified at
trial that it was frightening to see how fast Vargas was driving—at speeds in excess of 80
miles per hour—on a Sunday afternoon with a lot of people on the roads. Vargas ran a
red light at the intersection of McCormick and Meridian. He then continued westbound,
eventually reaching K-42 Highway. Vargas then turned southbound onto K-42 Highway
by crossing lanes of traffic, and Deputy Maness was slowed by traffic on the highway as
he continued to pursue the Pontiac.

Deputy Maness reached 120 miles per hour trying to catch up with the Pontiac on
K-42. Vargas then ran another light at West Street, and Deputy Maness lost sight of the
Pontiac due to traffic at the intersection. After Deputy Maness made his way through the
intersection, the Pontiac was nowhere in sight, so he discontinued the pursuit at that
point.

During the pursuit, Deputy Maness ran the license tag on the Pontiac. Once the
pursuit was over, he discovered that the vehicle was registered to Jessica Garcia, who
lived in the 700 block of W. MacArthur in Wichita. Another deputy found a Jessica
Garcia on Facebook pictured with a man named Polo Giardo. After seeing the
photograph, Deputy Maness determined that Giardo was not the person driving the
Pontiac during the pursuit.

Other deputies went to Garcia's address and spoke to her. She told them that she
had allowed Vargas—who was her boyfriend—to use her black Pontiac G6 on the day of
the pursuit. Deputy Maness looked Vargas up in the Kansas driver's license system and
was able to identify him as the person who had been driving the Pontiac during the
pursuit. Deputy Maness also saw a photo of Vargas on Jessica's Facebook page and
recognized him as the driver of the Pontiac.

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The State charged Vargas with fleeing or attempting to elude a law enforcement
officer under two theories—one for committing multiple traffic violations and one for
reckless driving. The two theories were charged in the alternative. The State also charged
Vargas with failing to signal a lane change.

During the jury trial that commenced on April 30, 2018, Deputy Maness testified
regarding the events that had occurred on March 31, 2016. He identified Vargas as the
driver of the Pontiac that failed to stop and fled. In addition, Deputy Maness testified that
he had no doubt—and was 100% sure—Vargas had been the driver. Moreover, Deputy
Joshua Kepley testified that he went to the address of the registered owner of the Pontiac
and made contact with Garcia. He confirmed that Garcia told him that Vargas had
borrowed her car on the day of the high speed chase.

As for Garcia, she testified that Vargas was her boyfriend and that they lived
together with their child. Garcia admitted that Vargas had often borrowed her car.
However, Garcia added that she often lent it out to friends and family. She denied telling
Deputy Kepley that Vargas had actually borrowed her Pontiac on the day of the pursuit.
Although Garcia explained that Vargas had access to her vehicle, she did not know who
actually had her vehicle. Garcia testified that she believed that Vargas was in Hutchinson
at the time because that is where he told her he would be. After the police contacted her
following the pursuit, Garcia claimed she did not ask Vargas why law enforcement
contacted her. Garcia said she "honestly didn't care. I cared about finding my car."

Ultimately, the jury convicted Vargas of fleeing or attempting to elude a law
enforcement officer under both alternatively charged theories. The jury also found Vargas
guilty of failing to signal a lane change. The district court adjudged Vargas guilty of all
charges.

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At the sentencing hearing, the State recognized that the jury convicted Vargas of
both alternative charges. Because two counts of fleeing or attempting to elude a police
officer were charged in the alternative, the State asked the district court to hold Count II
in abeyance. The district court agreed and defense counsel said he had no objection. The
district court sentenced Vargas to 15 months in prison for one count of fleeing or
attempting to elude a law enforcement officer and imposed a $100 fine on the traffic
violation. The journal entry of judgment filed after the sentencing hearing shows two
convictions for fleeing or attempting to elude a law enforcement officer—with one being
held in abeyance because it was an alternative charge.

ANALYSIS

Alternative Charges

On appeal, Vargas first contends the district court erred by entering convictions
for both alternatively charged counts of fleeing or attempting to elude a law enforcement
officer. As a remedy, he asks that we vacate one of the convictions. In response, the State
contends that the district court had the authority to simply hold the second conviction of
fleeing or attempting to elude a law enforcement officer in abeyance. It recognizes,
however, that it would also be appropriate to merge the counts since they were presented
in the alternative.

We note that Vargas makes this argument for the first time on appeal. Generally,
an issue not properly preserved in the district court cannot be raised for the first time on
appeal. However, when the issue involves a pure legal question arising on proved or
admitted facts that will be finally determinative of a case, we may apply an exception.
State v. Godfey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Vargas asks us to do so
here. See Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35). The determination of
whether convictions are mutually exclusive is a question of law, which we review
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independently and without any deference to the district court. See State v. Eddy, 299 Kan.
29, 32, 321 P.3d 12 (2014). Thus, we conclude that it is appropriate to address the merits
of Vargas' argument.

The State is permitted to charge a defendant of any or all of these alternatives
based on the evidence to be presented at trial. See State v. Saylor, 228 Kan. 498, 503-04,
618 P.3d 1166 (1980). Likewise, a jury is free to enter a verdict on each alternative count
that it finds to have been proven beyond a reasonable doubt. Even so, "a defendant cannot
be convicted of both offenses when the crimes are charged in the alternative." State v.
Garza, 290 Kan. 1021, 1035-36, 236 P.3d 501 (2010) (citing State v. Dixon, 252 Kan. 39,
49, 843 P.2d 182 [1992]).

In other words, a district court does not have the authority to enter multiple
convictions under alternatively charged theories. Moreover, in such cases the district
court must impose a sentence for only one of the alternative counts. See State v.
Blanchette, 35 Kan. App. 2d 686, 704, 134 P.3d 19 (2006); see also State v. Williams,
No. 114,245, 2017 WL 542876, at *3 (Kan. App. 2017) (unpublished opinion), rev.
denied 306 Kan. 1331 (2017). Accordingly, we conclude that the district court did not
have the authority to enter two convictions for fleeing or attempting to elude a law
enforcement officer in this case.

We do not find the State's argument that both convictions should stand because
they are presented as "options within a means" to be persuasive. In support of its
argument, the State cites State v. Castleberry, 301 Kan. 170, 339 P.3d 795 (2014). In
Castleberry, the Kansas Supreme Court addressed an issue relating to multiple acts—not
multiple convictions. 301 Kan. at 185. Here, the State did not proceed on a theory that
Vargas committed the crime of fleeing or attempting to elude a law enforcement officer
multiple times; rather, it simply charged one crime under alternative theories.

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In support of its argument that it was appropriate for the district court to hold one
of the convictions in abeyance, the State cites Penn v. State, No. 105,777, 2012 WL
3171813 (Kan. App. 2012) (unpublished opinion). In Penn, the defendant was charged
with three acts of rape under alternative theories—"incapacity to consent" or "force or
fear"—for a total of six counts. Although the jury found the defendant guilty on all six
counts, the State requested at sentencing that the sentencing proceed under the
"incapacity to consent" theories and the district court dismissed the alternative counts. In
a K.S.A. 60-1507 proceeding, the defendant's rape convictions were reversed for
insufficient evidence by a panel of this court. 2012 WL 3171813, at *6-7.

Because the alternative counts in Penn had been dismissed at sentencing, the panel
found in the K.S.A. 60-1507 proceeding that "they were rendered void and cannot be
reinstated." 2012 WL 3171813, *6. The panel noted that this was "a very unsatisfactory
result" but that it was necessary due to the dismissal of the alternative counts. 2012 WL
3171813, at *6. In the present case, the State points to the "devastating consequences" in
Penn, and suggests that district courts be allowed to hold convictions on alternative
counts in abeyance to avoid this result.

Although the State makes an interesting policy argument that potentially could
help eliminate the "unsatisfactory result" noted by the panel in Penn, we must follow the
precedent set by the Kansas Supreme Court absent some indication that it is departing
from its previous position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467
(2015). As noted above, our Supreme Court has clearly held "that a defendant cannot be
convicted of both offenses when the crimes are charged in the alternative." Garza, 290 at
1036. In so holding, our Supreme Court cited both Dixon, 252 Kan. at 49, and Blanchette,
35 Kan. App. 2d at 704, with approval. As such, we find no indication the court is
departing from this position.

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In summary, we conclude that the district court had no authority to enter
convictions on both of the alternatively charged counts of fleeing or attempting to elude a
law enforcement officer asserted against Vargas. Likewise, we conclude that the district
court did not have the authority to hold one of the convictions in abeyance until the time
had passed for the filing of a K.S.A. 60-1507 motion. Accordingly, we vacate Vargas'
second conviction for fleeing or attempting to elude a law enforcement officer for
reckless driving and remand this case with directions to the district court to enter an
amended journal entry reflecting one conviction for fleeing or attempting to elude a law
enforcement officer as well as the conviction for failing to signal a lane change.

Format of Verdict Form

Next, Vargas contends that the district court violated his constitutional right to the
presumption of innocence by placing the option of "guilty" before the option of "not
guilty" on the verdict form. In response, the State correctly points out that this issue has
been presented to Kansas appellate courts on multiple occasions. In each of these cases,
both our Supreme Court and panels of this court have consistently ruled that it is not
prejudicial to a defendant to list the "guilty" option on the verdict form before the "not
guilty" option.

"While a verdict form is not technically a jury instruction, it is part of the packet
sent with the jury which includes the instructions and assists the jury in reaching its
verdict. It is appropriate to apply the same standard of review applicable to the review of
instructions." Unruh v. Purina Mills, 289 Kan. 1185, 1197-98, 221 P.3d 1130 (2009).
Hence, we apply a four-step analysis when analyzing a challenge to a verdict form: (1)
we consider the reviewability of the issue; (2) we review the instruction to determine—
without limitation—if the proposed instruction was legally appropriate; (3) we determine
whether there was sufficient evidence—viewed in the light most favorable to the
requesting party—to support the proposed instruction; and (4) we determine whether any
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error requires reversal or was harmless. State v. Pulliam, 308 Kan. 1354, 1361, 430 P.3d
39 (2018).

Here, Vargas objected to the verdict form proposed by the district court and
requested that the "not guilty" option appear before the "guilty" option. In denying
Vargas' request, the district court correctly pointed out that the verdict form used in this
case was consistent with the proposed verdict form set forth in the Pattern Instructions for
Kansas (PIK). See PIK Crim. 4th 68.070. The district court also stated that its "policy"
was to follow the PIK instructions.

It is important to recognize that 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. Butler, 307 Kan. 831, 847, 416 P.3d 116
(2018). Similarly, the verdict forms suggested in PIK were developed by well-informed
committee members to provide "accuracy, clarity, and uniformity" to the judicial process.
Furthermore, in State v. Wesson, 247 Kan. 639, 652-53, 802 P.3d 574 (1990), cert. denied
501 U.S. 1236 (1991), our Supreme Court expressly held that a verdict form placing the
"guilty" option before the "not guilty" option does not violate a defendant's presumption
of innocence.

In Wesson, the Kansas Supreme Court noted that juries are specifically instructed
that a defendant is presumed innocent. Likewise, our Supreme Court found that any error
on the verdict form regarding the order that the "guilty" and "not guilty" options are given
is cured by the jury instruction on the presumption of innocence. 247 Kan. at 652. Here, it
is undisputed that the district court appropriately instructed the jury that Vargas was
presumed innocent and that the State bore the burden of proving that Vargas was guilty
beyond a reasonable doubt.

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For nearly 30 years, both the Kansas Supreme Court and panels of this court have
applied the holding in Wesson regarding the order of the "guilty" and "not guilty" options
on verdict forms. See State v. Wilkerson, 278 Kan. 147, 158-59, 91 P.3d 1181 (2004);
State v. Huffman, No. 117,814, 2018 WL 6580110, at *8 (Kan. App. 2018) (unpublished
opinion), rev. denied September 9, 2019; State v. Pack, No. 110,467, 2015 WL 1513974,
at *5 (Kan. App. 2015) (unpublished opinion). Not only do we believe the decision in
Wesson to be correct but we also are duty bound—as noted in the previous section of this
opinion—to follow the precedent of our Supreme Court absent some indication the court
is departing from its previous position. Meyer, 51 Kan. App. 2d at 1072. We have no
reason to conclude that our Supreme Court will retreat from its holding in Wesson on this
issue.

Consequently, we find that the district court did not err by including the "guilty"
option before the "not guilty" option on the verdict form provided to the jury in this case.
Moreover, following Wesson and its progeny, we find that even if there had been error in
the wording of the verdict form that it was cured by the jury instructions. In particular,
any error would be harmless in light of the instructions given to the jury on the
presumption of innocence and on the State's burden of proof.

Motion for Mistrial

Vargas also contends that the district court erred in denying his request for a
mistrial after the State alerted the jury pool that Vargas may be represented by the public
defender's office. During voir dire, the prosecutor asked the potential jurors: "Does
anybody know anybody in the Public Defender's office other than the folks that are here,
[naming the defense counsel]? Anybody know anybody from the Public Defender's
office?" Defense counsel requested a bench conference—which was not recorded—and
evidently objected to the line of questioning.

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Later, outside the presence of the jury, defense counsel argued:

"I do think that [the questions about the public defender] prejudices the jury
against [Vargas] in a variety of ways, including the fact that . . . a lot of juries have the
opinion if you don't hire counsel, then you obviously are not taking the case seriously
enough or don't actually think you are innocent, as well as the fact of his financial means.
The reputation the Public Defenders have in other areas and in this area, that could
prejudice the jury.
"So I would ask the Court—I believe at this time it's my obligation to ask for a
mistrial that the jurors are prejudiced because of that statement."

In response, the prosecutor noted that immediately after she asked the potential
jurors if they knew anyone in the public defender's office, she also asked if they knew
any attorney or defense attorney. As such, she suggested that there was no substantial
prejudice requiring a mistrial. The district court agreed with the State and denied the
motion for mistrial. In ruling, the district court stated that the question was asked in the
context of whether the potential jurors knew anyone in the case and that it did not
substantially prejudice Vargas or prevent him from receiving a fair trial.

K.S.A. 22-3423(1)(c) permits the district court to declare a mistrial if prejudicial
conduct occurs during the proceedings that make it impossible for the trial to proceed
without injustice. The statute creates a two-step process. First, the district court must
determine whether there was some fundamental failure in the proceeding. Second, if the
district court determines that there was a fundamental failure, it must then determine
whether it is possible to continue the trial without injustice. State v. Betancourt, 299 Kan.
131, 144, 322 P.3d 353 (2014).

On appeal, the district court's denial of a motion for mistrial is reviewed using an
abuse of discretion standard. State v. Moyer, 306 Kan. 342, 355-56, 410 P.3d 71 (2017).
A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or
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unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v.
Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018). The party asserting an abuse of
discretion—in this case Vargas—bears the burden of showing such abuse of discretion.
State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).

Based on our review of the record, we do not find that Vargas' right to a fair trial
was substantially prejudiced by the questions asked by the State during voir dire. We also
note that Vargas merely alleges that the jury might have made assumptions regarding his
guilt based on the State's questions. We do not find this speculative argument to be
sufficient to show substantial prejudice. See State v. Harris, 293 Kan. 798, 816-17, 269
P.3d 820 (2012) (no showing of prejudice where defendant argued the statements were
likely to prejudice the jury). Thus, we conclude that the district court did not abuse its
discretion in denying Vargas' motion for a mistrial.

Prosecutorial Error

In addition, Vargas contends that one of the prosecutor's comments during closing
argument constituted reversible error because it deprived him of his constitutional right to
a fair trial. In particular, Vargas argues that the prosecutor offered her opinion of his guilt
in closing argument. In response, the State contends that Vargas has taken the
prosecutor's statements out of context and that they fall within the wide latitude given a
prosecutor when arguing to a jury.

We use a two-step process to evaluate claims of prosecutorial error: error and
prejudice. First, we determine whether error occurred. If there was error, the second step
is to determine whether prejudice resulted. Under the first step, we analyze whether the
prosecutor's comments fell outside the wide latitude allowed to a prosecutor when
discussing the evidence. At the second stage of the analysis, we focus on whether the
error prejudiced the defendant's rights to a fair trial. If a due process violation occurred,
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we assess prejudice by applying the constitutional error standard as set forth in Chapman
v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v. Sherman,
305 Kan. 88, Syl. ¶¶ 6, 7, 8, 378 P.3d 1060 (2016). Under this analysis, prosecutorial
error is harmless if the State proves that there is no reasonable possibility that the alleged
error contributed to the verdict. State v. Kleypas, 305 Kan. 224, 316, 382 P.3d 373
(2016).

During closing argument, the prosecutor said: "Count 2, the flee and elude, the
State is asking that if you find that we've proven all of those things, and we believe we
have, that you find him guilty." Vargas suggests that this statement by the prosecutor was
erroneous because she gave her opinion regarding the strength of the evidence and his
guilt. We recognize that it is improper for the prosecutor in closing argument to express
his or her personal opinion about the defendant's guilt. State v. Fisher, 304 Kan. 242, 252,
373 P.3d 781 (2016). However, we do not find that the prosecutor's comments fall out of
bounds in this case.

It is important to recognize that a prosecutor's arguments must be viewed in
context, not in isolation. See State v. Stone, 291 Kan. 13, 19-20, 237 P.3d 1229 (2010).
Here, before the prosecutor made the argument suggesting that she had proven the
elements necessary to find Vargas guilty, she had reviewed with the jury the elements of
the alternative counts of fleeing and eluding a law enforcement officer in a manner
attempting to show the jury the evidence presented during the trial to support each
element of the crime. After doing so, the prosecutor concluded by stating that she
believed the prosecution had established each of the elements of the crime.

Of course, the fundamental purpose of a prosecutor's closing argument is to link
the evidence favorable to the State to the elements that it must prove beyond a reasonable
doubt to support a conviction. In fact, if a prosecutor does not believe he or she has
presented sufficient evidence to support the State's charges, he or she should not pursue
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the claim. Accordingly, we conclude that when the closing argument is viewed in
context, the prosecutor properly reviewed the evidence presented at trial that she believed
supported the various elements that the State had the burden to prove and—based on such
evidence—it was appropriate for her to ask that the jury find Vargas guilty. See State v.
Pribble, 304 Kan. 824, 832, 375 P.3d 966 (2016).

Here, we find that the prosecutor's argument was made in a context similar to that
in State v. De La Torre, 300 Kan. 591, 612, 331 P.3d 815 (2014). It was not a robust
statement of the prosecutor's personal opinion regarding Vargas' guilt, as she used the
pronoun "we" instead of "I" in arguing that the State believed it had proven each of the
required elements of Vargas' crimes. See State v. Corbett, 281 Kan. 294, 315-16, 130
P.3d 1179 (2006). We also note that the prosecutor's argument came after the district
court had properly instructed the jury on the State's burden to prove each element of the
crimes charged beyond a reasonable doubt. Likewise, the jury was reminded during
closing arguments of the State's burden of proof.

When the statement in question is viewed in the context of the entire closing
argument as well as in light of the instructions given to the jury, we do not find it to
constitute an impermissible argument regarding the prosecutor's personal opinion of guilt.
Rather, we find that the prosecutor was simply arguing how the evidence presented at
trial supported each element of the crimes charged. It is significant that the prosecutor
directed the jury to find Vargas guilty only "if you find that we've proven all of those
things." Accordingly, we hold the prosecutor's statement did not fall outside the wide
latitude afforded a prosecutor in attempting to obtain a conviction.

Cumulative Error

Finally, Vargas contends that his allegations of error combine to create cumulative
error worthy of reversing his conviction. To prevail on a claim of cumulative error
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requires a defendant to show multiple mistakes that individually would not require
reversal but collectively undermined the defendant's ability to obtain a fair trial. See State
v. King, 308 Kan. 16, 37-38, 417 P.3d 1073 (2018). A single error cannot support reversal
under the cumulative error doctrine. State v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968
(2018).

In this case, the only error found involved the district court's decision to enter
convictions—but not sentencing—for Vargas on both of the alternative counts of fleeing
or eluding a law enforcement officer. As indicated above, the district court can cure this
single error by simply vacating the second conviction. Furthermore, that error does not go
to the question of whether Vargas received a fair trial. Accordingly, Vargas' claim of
cumulative error fails.

Affirmed in part, vacated in part, and remanded with directions.