[Copyrighted Material Omitted]
Appeal from Finney District Court; MICHAEL L. QUINT, judge.
Review of the judgment of the Court of Appeals in an unpublished opinion filed January 11, 2013. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded.
1. Kansas law does not provide definitive rules as to what constitutes an overt act toward attempting a crime. The overt act necessarily must extend beyond mere preparations made by the accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. The State does not need to prove the last proximate act in the consummation of the crime.
2. The alternatives in K.S.A. 21-3422--" leading, taking, carrying away, decoying or enticing away" --merely describe the factual circumstances in which a material element of the crime of interference with parental custody may be proven. As such, the alternatives are options within a means rather than material elements constituting alternative means.
3. A prosecutor has freedom to craft an argument that includes reasonable inferences based on the evidence and, when a case turns on which of two conflicting stories is true, to argue certain testimony is not believable. Thus, for example, it is not improper for a prosecutor to offer comments during closing arguments regarding a witness' motivations or lack thereof to be untruthful. A prosecutor must base comments on evidence and reasonable inferences drawn from that evidence, without stating his or her own personal opinion concerning a witness' credibility or accusing a witness or defendant of lying.
4. The trial court did not commit clear error by using an outdated version of the reasonable doubt instruction, PIK Crim. 3d 52.02 (1995 Supp.), when instructing the jury. While not the preferred instruction, it was legally appropriate.
5. Under the facts of this case, where the jury was not instructed on the law that applied to the defense of ignorance and mistake and was misinformed by the prosecutor as to the evidence that applied to the defense, the jury could not and did not take into consideration the laws that applied to the assessment of whether the defendant had the specific intent required for commission of the crime of aggravated interference with parental custody.
6. The cumulative error doctrine does not apply if no error or only one error arguably supports reversal.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Tamara S. Hicks, assistant county attorney, argued the cause, and Jennifer V. Cunningham, assistant county attorney, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
LUCKERT, J. MORITZ, J., not participating. GERALD T. ELLIOTT, District Judge, retired, assigned.
[300 Kan. 762] OPINION
On petition for review of a decision of the Court of Appeals, we consider Christina Mika Isabel Ortega's appeal from her convictions of attempted aggravated interference with parental custody and disorderly conduct. The Court of Appeals found several of Ortega's nine issues lacked merit but found multiple trial errors. Nevertheless, the Court of Appeals affirmed Ortega's convictions after a majority of the Court of Appeals
panel concluded these errors did not deprive Ortega of a fair trial. State v. Ortega, 291 P.3d 1073, 2013 WL 192714 (Kan. App. 2013) (unpublished decision).
Before us, Ortega argues the Court of Appeals erred in rejecting some of her claims of error and, where it found error, in determining that she was not deprived of a fair trial. The State did not file a cross-petition asking us to revisit any of the Court of Appeals' determinations of error.
We reject Ortega's arguments that there were additional trial errors beyond those found by the Court of Appeals, but we agree with Ortega's arguments that two of the errors, both relating to her defense of ignorance or mistake, were sufficiently prejudicial to warrant the reversal of her conviction for attempted aggravated interference with parental custody. This prejudice did not taint [300 Kan. 763] Ortega's conviction for disorderly conduct, however. Nor do any other claimed errors. We, therefore, affirm the Court of Appeals and district court in part and reverse in part.
Facts AND Procedural Background
The charges against Ortega stem from an incident in August 2010 at Kenneth Henderson Middle School in Garden City, where Ortega's 14-year-old daughter, V.O., was a student.
In the weeks before the incident, Ortega had been in Colorado. She had left her children, including V.O., with her mother. Despite Ortega's original intention to stay in Colorado for just a few days, she remained for " a little over a month" because she lost her purse and did not have any money or identification. While in Colorado, Ortega did not have a forwarding address, but she called her mother twice a week from borrowed phones " to make sure that the children were okay."
Because Ortega left V.O. and was gone for 6 weeks, a child in need of care (CINC) petition was filed. On August 30, 2010, the Finney County District Court held a CINC hearing. Ortega's mother attended the hearing, but Ortega was not present. The court issued an order removing V.O. from her grandmother's home and granting custody to Social and Rehabilitation Services (SRS). Subsequently, SRS placed V.O. in foster care with Saint Francis Community Services (St. Francis).
There was evidence that Ortega was unofficially aware, at least in general terms, of the court order because her mother testified that she informed Ortega that V.O. was in SRS custody or foster care when Ortega called to check on the children. There is no record of whether Ortega was officially notified of the CINC hearing or received a copy of the order or any other paperwork regarding V.O.'s custodial status. The first documented contact between SRS and Ortega occurred on September 9, 2010.
Ortega had returned from Colorado on the evening of September 8, 2010. Her mother told her " [t]hat the children were taken from her and that [Ortega] could go pick them up." Ortega's mother did not know that Ortega could not pick up the children.
[300 Kan. 764] Ortega went to Kenneth Henderson Middle School on the morning of September 9, 2010, to see V.O. Ortega entered the front office and reported to the school's attendance secretary that " she had a good job in Colorado" and " was there to take [V.O.] with her to Colorado." Ortega, who appeared upset and nervous, also told the attendance secretary " how unhappy she was with this f***ing state" and mumbled something about St. Francis.
The attendance secretary pointed to the " Student Check-Out Sheet" and told Ortega school policy required a parent to sign the sheet if they wanted to take their child out of school. The sheet included the following columns: " Date," " Student's Name," " Reasons for Leaving," " Time Left," " Checked Out By," and " Time Returned." The attendance secretary saw Ortega sign the sheet and fill it out by writing: " 9/9," V.O., " going out of town," and " 11:00 p.m." In addition, Ortega mistakenly signed the teacher " Sign Out Sheet," which includes the following columns: " Name," " Reason for Leaving," " Date," " Time Out," and " Time In." Ortega filled out the sheet as follows: V.O., " trip," " 9/9," and
" 8:49." The attendance secretary did not see Ortega fill out this sheet.
The attendance secretary was hesitant to release V.O. to Ortega because she knew V.O. was in foster care through Saint Francis. The secretary went to the associate principal to discuss the release of V.O. While the attendance secretary was talking to the associate principal, the school's head secretary saw Ortega and asked Ortega if she needed help. Ortega replied that she was there to get her daughter. The head secretary asked if it was for an appointment, and Ortega indicated she was taking her daughter out of town and mentioned Colorado.
The associate principal summoned the school resource officer and another school secretary to assist in determining whether V.O. should be allowed to leave with Ortega. Meanwhile, the associate principal went to V.O.'s classroom to tell V.O. her mother was there. V.O. reported she was in foster care, was not allowed to have contact with her mother, and would not leave with her mother. The associate principal went back to the front office where the school resource officer, who had called St. Francis, confirmed that Ortega did not have authority to take V.O.
[300 Kan. 765] The school resource officer went to the lobby where the campus supervisor had intercepted Ortega to ensure that she did not go anywhere else in the school. Ortega was yelling: " You white bitches can't keep me from my child" ; " You white bitches have picked on the wrong . . . Mexican, and you going to regret this" ; " [T]his f***ing school is nothing but a bunch of prejudiced people, including you Mother F***er" ; " Kansas is black and white, and I'm Mexican, . . . F***ing Kansas is stupid" ; and " Kansas doesn't know who they're messing with, . . . When Aztlan rises, we're going to take our lands back." The school resource officer called another police officer for backup. When the school resource officer told Ortega that V.O. was in SRS custody and could not be taken, Ortega said angrily that " it didn't matter . . . she was going to take [V.O.] anyway" because " she ha[d] a house and a job in Colorado and she was going to raise her kids there, and that Kansas is not the place to raise kids."
The school resource officer told Ortega she had to leave the school and could contact St. Francis with any questions. The officer thought Ortega might come back to the school because her parting words were: " [Y]ou're going to regret this. You're . . . messing with the wrong Mexican. . . . Don't worry, you haven't seen the last of me." Consequently, school officials locked every outside door except the front ones, which they monitored for the remainder of the school day. Ortega made no additional attempts to contact or see V.O.
The next day St. Francis contacted the Garden City Police Department to report that Ortega had been there. An officer found Ortega and arrested her. When the officer informed Ortega she was being charged with attempted aggravated interference with parental custody and disorderly conduct, she responded: " That was my goal, to piss everyone off."
At Ortega's trial, the jury heard from the various school officials and law enforcement officers who were involved in the altercation with Ortega. The jury also heard testimony from a social worker with Garden City SRS who testified about Kansas' child custody process. She described the process related to a child becoming a ward of the State, in particular the process in which V.O. was [300 Kan. 766] placed in SRS custody. In addition, the social worker explained a biological parent cannot take the child out of town or state if the child is in SRS custody. The social worker testified that St. Francis, as a foster care provider under contract with SRS, is required to notify parents, if their whereabouts are known, within 24 hours of a SRS referral.
The jury also heard testimony through an interpreter from Ortega's mother. She testified that she thought Ortega would pick up V.O. but she did not think Ortega would take her to Colorado " because in Colorado she didn't have anywhere to live."
Ortega took the stand in her own defense. She testified that she was not aware V.O. was in SRS custody; her mother had merely told her that V.O. had been " taken away" ; and she had no idea what " SRS custody" meant. Therefore, she did not know she
could not have contact with V.O. or take V.O. out of school. Although Ortega told school officials she might be taking V.O. out of town, she explained to the jury that she " wasn't really planning on going anywhere" because she " didn't have any money to go out of town." Further, she testified that she had no intention of going to Colorado " in the immediate future" because she only had $10 in her pocket, no household belongings or suitcases packed in her car, and no home or job in Colorado. She explained that she just wanted to take V.O. out of school because she had been gone for over a month and did not want to wait until the end of the school day to see V.O.
Ortega further testified that had she been able to collect V.O., V.O. would have been back at school the next day. Ortega admitted she was upset, did not want V.O. to be in SRS custody, and " to a certain extent" would have done whatever she could to prevent V.O. from living in a foster home. But she would not have intentionally broken the law to get V.O. out of SRS custody.
The jury convicted Ortega of attempted aggravated interference with parental custody, in violation of K.S.A. 21-3301 and K.S.A. 21-3422a(a)(2)(C), and disorderly conduct, in violation of K.S.A. 21-4101. The district court granted Ortega's motion for durational ...