Appeal from Sedgwick District Court; ERIC R. YOST, judge.
BY THE COURT
1. A prosecutor's assertion during opening statement that a sex crime victim's story to her mother was " the truth" is outside the wide latitude allowed to attorneys for the State and therefore error. It is not reversible error, however, because it was not repeated or emphasized and did not appear calculated or deliberate; it thus was not gross and flagrant and was not a product of ill will. In addition, given the strength of the evidence, the court is satisfied beyond a reasonable doubt that the prosecutor's early and isolated reference to " the truth" did not affect the outcome of the trial in light of the entire record.
2. A criminal defendant's failure to object to evidence at trial forecloses review of the admission by an appellate court.
3. On the facts of this case, it is not possible to resolve the defendant's claim that his trial counsel provided ineffective assistance without the benefit of district court proceedings in the first instance. Because of appellate counsel's deliberate decision not to seek remand to the district court for a hearing on the ineffective assistance issue under State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), this court will not order such a remand sua sponte.
4. The defendant's observations about weaknesses and inconsistencies in the complaining witness' testimony do not meet the demanding standard for appellate reversal of the defendant's sex crime convictions for insufficiency of the evidence. Conflicting evidence is not necessarily insufficient evidence.
5. When a criminal defendant fails to provide legal authority to support an argument raised on appeal, the issue is deemed abandoned.
6. A sentencing judge is not required to make specific findings of fact on the record when a motion for departure from the mandatory minimum under Jessica's Law, K.S.A. 21-4643, and a further downward durational departure from the applicable grid range under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. is rejected.
David Phillip Leon, of The Law Office of David Leon, of Wichita, argued the cause and was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
[298 Kan. 833] BEIER, J.
Defendant Ryan Dull appeals from his convictions and sentences in two cases--one involving sex offenses against a 13-year-old victim tried to a jury and the other involving burglary and theft tried to the bench on stipulated facts while the jury in the first case deliberated.
Dull raises five issues: (1) Whether prosecutorial misconduct denied Dull a fair trial on the sex crime charges; (2) whether the district court judge erred in admitting evidence in Dull's jury trial about Dull's brother having sexual intercourse in the next room; (3) whether Dull's district court counsel was ineffective; (4) whether sufficient evidence supported Dull's sex crimes and burglary and theft convictions; and (5) whether the district judge's failure to make on-the-record findings on Dull's departure motion rendered Dull's sentences in the burglary and theft case illegal.
Factual and Procedural Background
The events that led to Dull's prosecution for aggravated criminal sodomy, rape, and aggravated indecent liberties began when he gave D.P.A. and her girlfriend, K.E.B., a ride to his home one July evening in 2009. The
victim, D.P.A., whom Dull knew to be 13, had romantic feelings toward Dull, age 20. K.E.B. had similar feelings toward Dull's younger brother, Bryce, one of 17-year-old twins who lived with Dull. On the night of the crimes, the two girls had told their parents they would be spending the night elsewhere.
[298 Kan. 834] According to the girls, they socialized awhile with Dull and the twins and another friend in the living room. Then D.P.A. went with Dull into his bedroom while K.E.B. went with Bryce into his bedroom. Once in Dull's bedroom, Dull touched and kissed D.P.A.; took her clothes off; performed oral sex on her; penetrated her vagina with his finger; and then, after donning a condom, had sexual intercourse with her. D.P.A. emerged from the bedroom wrapped in a sheet, and, when the others asked if she was wearing any clothes, she lifted the sheet to show them that she was not. D.P.A. told K.E.B. and another friend that she and Dull were going to have sex again, but they did not. D.P.A. spent the night with Dull in his bed. The next morning, Dull drove the girls home. He " broke up" with D.P.A. by text about a week later.
When D.P.A.'s mother learned of these events, law enforcement became involved. When interviewed by the police, Dull initially denied knowing D.P.A. and denied being anywhere near his home on the night of the crimes. He later admitted giving D.P.A. a ride to his home but said that he had slept alone on the night in question.
Ultimately Dull was charged with aggravated criminal sodomy, rape, and aggravated indecent liberties in Case No. 09CR3875. In another complaint filed the same day in Case No. 09CR3876, Dull was charged with burglary and misdemeanor theft arising from a wholly unrelated incident.
At his jury trial in the sex crimes case, Dull testified that he had a girlfriend at the time of the crimes and never dated D.P.A. He admitted that, because Bryce wanted him to, he had driven K.E.B. and D.P.A. to his home. He also testified that D.P.A. asked him if he " would ever go out with her" and " if [he] liked her." He testified that he said no, that he wasn't interested, and that he had a girlfriend. He also testified that he did not have sex with D.P.A. and did not kiss her. He said that there was no sexual contact between them, and he went to bed alone on the night he had driven her and K.E.B. to his home. He said that, when ...