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State v. Gonzalez-Sandoval

Court of Appeals of Kansas

February 10, 2017

State of Kansas, Appellee,
v.
Jose Alberto Gonzalez-Sandoval, Appellant.

         SYLLABUS BY THE COURT

         1.

         The use of a peremptory strike to remove venire members solely because of their race or ethnicity violates the Equal Protection Clause of the United States Constitution.

         2.

         The Batson analysis is composed of three steps: (1) the defendant must make a prima facie showing that a peremptory challenge has been exercised based on race or ethnicity; (2) if the defendant makes this showing, the State must offer a race-neutral reason for striking the minority venire member in question; and (3) in light of the defendant's and the State's submissions, the trial court must determine whether the defendant has shown that the State's stated reason is pretextual.

         3.

         When illegitimate grounds like race or ethnicity are in issue, the State must stand or fall on the initial reason or reasons it provided to the trial court for striking a minority venire member.

          4.

         A trial court is required to limit its inquiry to the reason originally offered by the State during voir dire for its peremptory strike of a minority venire member. Thus, if the State later attempts to offer a substitute reason or another reason for striking the minority venire member, the trial court is barred from considering the substitute reason or another reason for striking the minority venire member.

         5.

         Under K.S.A. 2015 Supp. 60-455(d), evidence of alleged prior sexual misconduct is admissible to show the defendant's propensity to commit the crime charged. The probative value of alleged prior sexual misconduct evidence is admissible so long as it outweighs the prejudicial value of the alleged prior sexual misconduct evidence. Probativity is often determined by comparing the circumstances surrounding the alleged prior sexual misconduct to the crime charged.

         6.

         Alleged prior sexual misconduct evidence is inadmissible to establish absence of mistake unless the defendant has actually argued that he or she committed the crime charged by mistake.

         7.

         When reviewing sufficiency of the evidence, appellate courts will uphold a defendant's conviction if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts must view all the evidence in the light most favorable to the State, and appellate courts must not reweigh the evidence or the credibility of witnesses.

         Appeal from Lyon District Court; Merlin G. Wheeler, judge. Reversed and remanded with directions.

          Christopher S. O'Hara, of O'Hara & O'Hara, LLC, of Wichita, for appellant.

          Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Malone, C.J., Green and Leben, JJ.

          Green, J.

         Following a jury trial, Jose Alberto Gonzalez-Sandoval was convicted of aggravated indecent liberties with a child. On direct appeal, Gonzalez-Sandoval argues that he is entitled to reversal of his conviction and a new trial for the following reasons: (1) the trial court erred when ruling on his Batson challenge; (2) the trial court erred when denying his motion for new trial based on newly discovered evidence; (3) the trial court erred when it allowed the victim to testify about his alleged prior sexual misconduct with her; and (4) the State's evidence was insufficient to support his conviction. Of these four issues, we find the first issue to be meritorious. We therefore reverse Gonzalez-Sandoval's conviction, vacate his sentence, and remand the case for a new trial.

         D.H., a 10-year-old female, and J.G., a 9-year-old male, were friends. Sometimes J.G. would invite D.H. to go swimming at the local public pool. Gonzalez-Sandoval, who was J.G.'s 41-year-old father, would then drive D.H. and J.G. to the pool.

         Once at the pool, D.H., J.G., and Gonzalez-Sandoval would play a game called "sharks." This game consisted of one person pretending to be a shark. The shark's goal was to catch the other people by grabbing them for several seconds. When Gonzalez-Sandoval was the shark, he would typically grab D.H. and J.G around the chest, hold them for several seconds, and then release them. The person who was caught by the shark became the new shark, and the game started over again.

         On Sunday, May 4, 2014, D.H. played shark with J.G. and Gonzalez-Sandoval. Jordan Sosa was the lifeguard on duty that day. D.H., J.G., and Gonzalez-Sandoval were the only people in the pool. After they finished swimming, Gonzalez-Sandoval took D.H. home as usual.

         On May 7, 2014, while at school, D.H.'s friend, a female student, told D.H about problems that she had been experiencing at home. The friend told D.H. that she could not "hang out" with her father anymore because he was doing inappropriate things of a sexual nature with her. D.H. came home from school and told C.H., her father, about what her friend had been experiencing. C.H. then asked D.H. if anything like what had happened to her friend had ever happened to her. D.H. responded, "Well, kinda [sic]." C.H. asked D.H. what she meant. D.H. told her father that Gonzalez-Sandoval had placed his hand down her swim-shorts and touched her "private parts" while playing sharks that past Sunday.

         C.H. contacted D.H.'s mother, M.H. He told her that she needed to speak with D.H. C.H. and M.H. had been divorced about a year and a half at that time. C.H. also contacted Carla Fessler, who was D.H.'s school counselor. Fessler then contacted the Department for Children and Families (DCF) and the police. D.H.'s case was assigned to Detective David Holmes. Detective Holmes setup an interview for D.H. at the Child Advocacy Center (CAC). Kayla Delgado, a DCF special investigator, interviewed D.H. at the CAC. Again, D.H. alleged that Gonzalez-Sandoval put his hand down her swim-shorts while playing sharks.

         After D.H.'s interview with Delgado, Detective Holmes interviewed Gonzalez-Sandoval at the police station. Gonzalez-Sandoval voluntarily came to the police station. During the interview, Gonzalez-Sandoval adamantly denied that he did anything inappropriate with D.H. while playing sharks.

         The State charged Gonzalez-Sandoval with one count of aggravated indecent liberties with a child, an off-grid person felony in violation of K.S.A. 2015 Supp. 21-5506(b)(3)(A).

         Preliminary Hearing

         At Gonzalez-Sandoval's preliminary hearing, C.H., D.H., and Detective Holmes testified on behalf of the State. During D.H.'s testimony, D.H. testified that when she swims, including the last time she went swimming with J.G. and Gonzalez-Sandoval, she wears underwear, swim-shorts, and a long t-shirt. D.H. testified that her long t-shirt goes over her shorts. D.H. further testified that when Gonzalez-Sandoval put his hand down her swim-shorts, he also put his hand under her underwear and "inside the line" of her "private parts."

         Gonzalez-Sandoval did not present any evidence at his preliminary hearing. The trial court bound Gonzalez-Sandoval over on the one count of aggravated indecent liberties with D.H.

         Pretrial Motions

         Following the preliminary hearing, the State moved to admit evidence of Gonzalez-Sandoval's prior sexual misconduct under K.S.A. 2015 Supp. 60-455(d). During D.H.'s interview with Delgado, D.H. had stated that Gonzalez-Sandoval put his hand down her swim-shorts on two or three other occasions while playing shark at the pool. The State wanted D.H. to be able to testify about the alleged earlier incidences of inappropriate touching. The State argued that this evidence should be admitted to establish Gonzalez-Sandoval's propensity to commit sex crimes against D.H. The State further argued that because Gonzalez-Sandoval mentioned during his police interview that if he ever touched D.H.'s genitals, it was an accident, the evidence should also be admitted to establish absence of mistake.

         The trial court held a hearing on the State's motion. At the hearing, the State reiterated the arguments within its written motion. Gonzalez-Sandoval countered that the trial court should not allow this statement into evidence because it was very prejudicial, not probative, and highly disputed. Gonzalez-Sandoval emphasized that D.H.'s statements about the alleged prior inappropriate contacts were very vague.

         The trial court decided to allow D.H. to testify about the alleged prior sexual misconduct. The trial court concluded that although the statement was prejudicial and highly disputed, the evidence was relevant as to Gonzalez-Sandoval's propensity to commit the crime and absence of mistake.

         Jury Selection

         Gonzalez-Sandoval's jury trial was held on May 18 and 19, 2015. Laura Miser and Amy Aranda represented the State. Vernon Buck represented Gonzalez-Sandoval.

         When jury selection began, there were three potential Hispanic jurors: T.R., K.M.S., and V., a venire member known only by her last name, which began with the letter V. V. was immediately dismissed for cause because she asserted that she had been a victim of a sex crime and could not be fair and impartial. Miser, who conducted voir dire, had limited interaction with venire members T.R. and K.M.S. When Miser asked T.R. whether people can remember events that are significant more clearly than normal with the passage of time, T.R. responded, "Yes." Moreover, when Miser asked the venire members whether anyone swam in swim-shorts and a t-shirt as opposed to a typical swimsuit, T.R. responded that she swims in a t-shirt and K.M.S. responded that she swims in swim-shorts and a t-shirt. At another point, T.R. tried to answer a question about working with children in an official capacity, but the trial court told her she could not answer that question given that Miser had directed the question to other venire members. The preceding is the extent of Miser's interaction with T.R. and K.M.S. Neither T.R. nor K.M.S. responded to Buck's questions.

         Later, Miser asked if any of the venire members had "been a witness, such as . . . questioned during an investigation or you had to appear in court as a witness on a sex crime case?" Nobody responded to this question. Then, Miser asked, "Has anybody been a witness, just in any kind of case where you had to answer questions to a law enforcement officer?" T.R. did not respond to this question.

         During jury selection, Miser used a peremptory challenge against venire member T.R. Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), Buck requested that Miser provide explanation why she was using a challenge against T.R. The trial court asked Miser for her response. Then, the following exchanged occurred:

"MS. MISER: Yes, Your Honor. As far as Juror [T.R.], Your Honor, the State put questions to the jury about whether they had been a witness in a case or whether they had been questioned by the police involved in any way. [T.R.] was a witness in Arzate, an endorsed-we believe she was an endorsed witness in the Arzate case and had questions asked of her. We also have her in an investigation about her son where she was questioned some in her-her son-in-law, I'm sorry Judge, about the use of her own personal cell phone. And so we have knowledge of her, but she did not respond to our questions in regards to whether she'd been questioned before or a potential witness, either answering questions of law enforcement. Also, she avoided a lot of eye contact, Your Honor. Noticing that she was looking away a lot of times, especially in questions that I felt perhaps should have elicited a response, and both of the times that she was a witness-or questioned about being involved in allegations.
"THE COURT: Mr. Buck, any comments?
"MR. BUCK: Well, I don't think that looking away is a good enough reason to strike someone of the same culture or ethnic heritage of the defendant. I don't know what the Arzate case is or what that involves, but it doesn't sound like she's done anything except maybe not being as cooperative as the State had hoped in an investigation. It has nothing to do with this. I don't think it qualifies as legitimate reasons for the Batson decision.
"THE COURT: Let me note for the record that it would-that based upon the surnames that [T.R.] does appear to be of the same ethnicity as the defendant. The State's principal challenge here to this individual that I would consider to be a racially-neutral challenge would be information-that it had information as to this individual that she did not disclose in response to direct questions and should have disclosed. That was one of those questions being whether she had been questioned or involved with prior investigations or other investigations. I'm not sure that, standing alone, the question of whether a potential juror avoids eye contact would be a basis-a racially-neutral basis, but the indication that the witness was not being truthful in her response, in my opinion, or at least candid in her response would, in my opinion, be a racially-neutral response. And so, I'll therefore allow the peremptory challenge over the defense's objection."

         Miser additionally used a peremptory challenge against venire member K.M.S. Again, Buck lodged a Batson challenge. Then, the following exchange occurred:

"MS. MISER: Judge, in seeing [K.M.S.] today, it seemed that maybe that would just be a surname. It does not appear that she is of a Hispanic culture. I'm not sure.
"THE COURT: I cannot tell. K.M.S. [has] a hyphenated surname. I cannot tell just from observation what her ethnicity would be, but I think I'll just error on the side of caution and ask the State to express a racially-neutral reason for her selection.
"MS. MISER: May I have a moment to review her questionnaire?
"THE COURT: You may.
"(Thereupon, an off-the-record discussion was had, after which the following proceedings were had:)
"MS. MISER: Your Honor, the-I understand the Court's ruling, but the State would reassert again that there's no-from [K.M.S.'s] appearance here today, other than a hyphenated name, no indication that she would be of Hispanic nature; however, with the Court's ruling, what the State would submit is that this has been a bit of a long discourse this morning with potential jurors, watched their reactions, and while [K.M.S.] was on the-she was here on the front row of the gallery where I could clearly see her, at some point in time-although, I-she remained alert and attentive for the most part, it seems sometimes she may-just based upon my watching and responses to the questions, she didn't respond very much to any of the questions. Now, I understand she may not have any answers, but also the fact that it just sometimes didn't seem that she was engaged in the process as some of the other potential jurors.
"THE COURT: Mr. Buck, you want to make an argument here?
"MR. BUCK: Well, it seems too subjective for striking someone. I don't know what her ethnic background is. The name '[S.]' at least that portion of the surname indicates Hispanic nature of some sort. I think it's just very subjective and doesn't really qualify as a racially-neutral response.
"THE COURT: I'm going to disallow the peremptory challenge at this point in time. I simply don't think that not engaging in responses is appropriate since we don't know or have any indication to indicate that she would have had any responses. So, the State may exercise a peremptory challenge on another juror."

         Buck lodged no other Batson challenges. The 12-person jury was selected. Then, the court held a recess for lunch. After this recess, the following exchange occurred out of the presence of the jury:

"THE COURT: Let the record reflect that we're reconvening out of the presence of the jury panel this morning-this afternoon, I guess it is now. Ms. Miser, I understand that you have something that you'd like to take up out of the presence of the jury?
"MS. MISER: Yes, Your Honor. I need to make sure I clarify for the Court in regards to the juror-Prospective Juror [T.R.]. The State had indicated to the Court that we had two cases where she had been involved as a witness and had been questioned regarding those. If the Court would recall, the State moved to strike her based upon-and provided that reason for striking her based upon her non-response to certain questions regarding being a witness.
"Ms. Aranda had double-checked those cases and it was actually indicated in one case, which would have been the Arzate case, that it was a different [T.R.]. Our notes that we had from the investigator had the wrong [T.R.]. However, her involvement in the second case that we indicated to the Court, regarding her son-in-law being questioned about the phone, that was the correct information that we provided to the Court. She still had been involved as a witness, had to answer questions, but did not respond to the State when I had asked about anyone's involvement as a witness or anyone being questioned by the police. So, we wanted to make sure we brought that to the Court's attention.
"THE COURT: Mr. Buck, I take it your objection would remain the same?
"MR. BUCK: Well, Your Honor, I didn't realize the State's questions extends simply to a police officer stopping someone on the street and asking questions about it. I thought it was more of an informal setting than what was stated.
"THE COURT: I understand. My ruling will remain the same."

         Accordingly, Gonzalez-Sandoval's jury trial began. On the second day of trial, however, the State brought up T.R. again, which resulted in the following exchange between Aranda, Buck, and the trial court:

"MS. ARANDA: Judge, I just had one thing that I wanted to bring up with the Court and I know that yesterday during the voir dire and peremptory challenges, Mr. Buck lodged a Batson challenge to one of the jurors that we I believe it was Juror [T.R.] was her name. I had a hand in giving Mrs. Miser some information that she advised the Court was incorrect, and I just wanted to be candid with the Court and let he Court know that I did go back downstairs and check to make sure. I did also talk with Ms. Miser and she advised me that she advised the Court that the notes that we had from investigations regarding Juror [T.R.] were incorrect as listing her as a witness in the Arzate case.
"Ms. Miser indicated that she advised the Court after the lunch recess that the second case involving the cell phone, that that was correct; however, I had not been up there yet to advise her that that was probably her sister and not Juror [T.R.] that was on the cell phone, so I wanted to be candid with the Court and counsel, let everybody know that we were mistaken about her on that case as well. However, we did-I did see reference in our Spillman Police System to her being named a witness in that system in a 2011 investigation of several auto-I believe they were auto burglaries. They're listed in there as non-force, non-residential burglaries, which leads me to believe that they were auto burglaries, and then there was a connected sex offense case. She was also listed as a victim on a criminal damage to property case in that system. So, just so that counsel and the Court is aware of that information. I don't want anybody misled and I wanted to be candid that we had some misinformation when we lodged or attempted to lodge our race-neutral grounds for the Batson challenge.
"THE COURT: So, if I understand what you're telling me is, the two instances that you gave me as being the racially-neutral reason-
"MS. ARANDA: Correct.
"THE COURT: -did not turn out to be true, but in the investigation, you found at least one and possibly two other instances that she should have disclosed in response to a question?
"MS. ARANDA: I believe so, correct.
"THE COURT: Okay. All right. Mr. Buck, I assume you want to keep your challenge in place under-even under these circumstances?
"MR. BUCK: Yes, Your Honor. We keep getting farther and farther away from the reasons that she was challenged in the first place. Now, we go back to 2011. How far back do we go, simply that, we don't know the substance of and who's to say that this is something that she should have disclosed. I would like a continuing objection to it.
"THE COURT: All right. I think the question was broad enough that it would have required a response to something occurring in 2011. I don't think that's so far back that a witness would have completely forgotten about-or a juror would have forgotten about involvement or being identified in that respect; therefore, I'll continue the same ruling, but note and appreciate the candor of counsel. I think counsel honestly believed what they represented to the Court, it just turned out to be incorrect."

Jury Trial-The State's Case

         At trial, the State presented testimony from the following people: C.H., M.H., Fessler, Delgado, Sosa, Detective Holmes, and D.H.

         C.H. testified that when he and M.H. were married, they used to be neighbors with Gonzalez-Sandoval, which is how D.H. and J.G. became friends. In regards to the event in question, C.H. explained that D.H. had a good friend from school who could no longer see her father anymore because he was saying and doing inappropriate things. According to C.H., on May 7, 2014, when he picked D.H. up from school, D.H. brought up the problems her friend was having with her father. C.H. was unsure exactly what the father had done to D.H.'s friend.

         C.H. testified that after D.H. told him about her friend's problems, he asked her "[h]ad that ever happened to her?" C.H. testified that D.H. responded, "Well, kinda [sic]." C.H. testified that when he asked D.H. what that meant, D.H. responded that Gonzalez-Sandoval had put his hand down her swim-shorts and touched her "private zone" while they were playing sharks at the pool. C.H. testified that when he asked D.H. how long Gonzalez-Sandoval had his hand in her swim-shorts, she told him 3 minutes. C.H. further testified that after D.H. told him this, he took her to a local restaurant for ice cream to see if he could learn more information.

         C.H. testified that he did not want to press the issue too hard because he believed that D.H. may be more comfortable talking to her mother since she was female. C.H. explained that he immediately called M.H. and told her what D.H. had told him. He encouraged M.H. "to spend time together [with D.H.] in case there were details about what [D.H.] told [him] . . . she wasn't comfortable telling [him]." C.H. also explained that he called Fessler the next day, told her what had happened, and she reported D.H.'s allegations to the police.

         M.H. testified that D.H. and J.G. went swimming together many times for about 2 1/2 years. M.H. testified that D.H. never told her that she did not want to go swimming with J.G. anymore. M.H. testified that she remembered D.H. going swimming with J.G. and Gonzalez-Sandoval on May 4, 2014. She testified that she believed D.H. came home a little later than normal, but D.H. was otherwise acting normally. M.H. further testified that she had no idea anything was wrong until she received a phone call from C.H. the evening of May 7, 2014. M.H. explained that after she got home from work later that day, she went over to C.H.'s place to pick ...


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