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State v. Perez

Supreme Court of Kansas

June 23, 2017

State of Kansas, Appellee,
v.
Daniel Perez, Appellant.

         SYLLABUS BY THE COURT

         1.When considering the legal basis for a district judge's admission of evidence, the review is de novo.

         2. Hearsay is evidence of a statement which is made other than by a witness while testifying at a hearing, offered to prove the truth of the matter stated and is generally inadmissible.

         3. For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 565 U.S. 1221 (2012).

         4. When admitting prior crime evidence under K.S.A. 2015 Supp. 60-455, the district court first determines whether the fact to be proven by the evidence is material, then considers whether the evidence is relevant to a disputed fact, and, finally, decides whether the probative value of the evidence outweighs the potential for undue prejudice.

         5. An appellate court reviews a district court's decision that the probative value of evidence outweighed the potential for undue prejudice for an abuse of discretion.

         6. A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.

         7. Prior crime evidence that is material and relevant to a disputed fact is admissible only if its probative value outweighs the potential for undue prejudice.

         8. The risk of undue prejudice turns not on whether the evidence is damaging but on whether the evidence is likely to contribute to an improper jury verdict or distract from the central issues at trial.

          9. When prior misconduct involves the same victims and the conduct at issue was of the same character as that underlying the charged crimes, the misconduct is unlikely to contribute to an improper jury verdict, as long as the jury is properly instructed.

         10. When an instructional error is raised for the first time on appeal, this court reviews whether the instruction was clearly erroneous. To establish a clearly erroneous instruction error, the defendant must firmly convince the court the jury would have reached a different result without the error.

         11. Because prior crime evidence is generally not admissible to show the defendant's propensity to commit the charged crime, when it is admitted, the trial judge must provide a limiting instruction to ensure that the jury does not consider it as propensity evidence.

         12. Under K.S.A. 2015 Supp. 60-455(d), evidence of prior sexual misconduct is admissible to be considered for any matter to which it is relevant and probative, including propensity, when the defendant is charged with a sex crime. Because the evidence is admissible for any purpose, no limiting instruction is required regarding prior sexual misconduct when the defendant is charged with a sex crime.

         Appeal from Sedgwick District Court; Joseph Bribiesca, judge.

          Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

          OPINION

          Rosen, J.

         Daniel Perez takes this direct appeal from his convictions for first-degree premeditated murder; sexual exploitation of a child; eight counts of rape; seven counts of aggravated criminal sodomy; three counts of aggravated assault; and eight counts of making false information. On appeal, Perez raises four arguments for why his convictions cannot stand: (1) the district court erred by admitting inadmissible hearsay testimony; (2) the district court erred by failing to instruct the jury on assisting suicide as a lesser included offense of first-degree premeditated murder; (3) the district court erred by admitting prior crime evidence that was more prejudicial than it was probative; (4) the district court provided clearly erroneous limiting instructions in regard to the prior crime evidence; and (5) the cumulative effect of these errors deprived him of a fair trial. Finding no reversible error on the part of the trial court, we affirm.

         Factual and Procedural Background

         In our discussion of the facts, we will refer to the witnesses and victims by first name because many of them share surnames or changed surnames after marriage. Sometime before the mid-1990s, Perez was living in Texas. There, he met a woman named Patricia Gomez (Trish) and the two began a sexual relationship. Trish later married and took the surname Hughes.

         Later, but sometime before April 1996, Perez met another woman named Marilynn. Perez let Marilynn, her son, and her 14-year old daughter, Michelle, stay with him for a few weeks while Marilynn readied her family to move to Amarillo. Michelle testified that during that time and again after she had moved away from Perez, Perez forced her to have sex with him on several different occasions. Marilynn testified that Texas filed charges against Perez for the alleged rape but that the case was dismissed because Perez had been found dead in Mexico. Perez testified that he had in fact pled guilty to these charges in exchange for probation but on his way to sentencing he was abducted by four uniformed men who beat him and left him for dead in either Texas or Mexico. Detective Ron Goodwyn, the lead detective on Perez' case, confirmed at trial that Perez had been convicted on these charges but testified that the convictions had been dismissed because Perez was believed to be dead.

         Perez testified that Trish found him where the uniformed men had left him for dead and took him to people who cared for his injuries. Perez testified that he went to Corpus Christi, Texas, after he healed from his injuries.

         Around the summer of 1996, Perez was in North Dakota. There, he met 15-year-old K.L. Perez was about 46 years old at the time but led K.L. to believe he was much younger. The two developed a romantic and sexual relationship. Perez convinced K.L. that he had powers that allowed him to make it rain; to see someone's past, present, and future; and to receive information from "the other side."

         K.L. and Perez testified that after 3 months of their relationship, law enforcement authorities picked Perez up at K.L.'s house, took him away in handcuffs, and deported him to Mexico. It is not clear this is actually what happened because Perez testified that he is a United States citizen. Nonetheless, Perez did not return to North Dakota after he was apprehended at K.L.'s house. K.L. stayed in contact with Perez over the next year by phone but was not sure where he was.

         Sometime in 1996 or 1997, Perez was living in an apartment complex in Corpus Christi, Texas, and going by the name "Lou Castro." During this time, Perez met a woman named Mona Griffith who was living in the same complex with her daughter, Lindsey, and her son, Cody. Eventually, Mona, her family, Perez, and Trish moved into an apartment in a different complex. After a few months, Mona, Lindsey, Perez, and Trish all moved to Wichita, Kansas. Cody stayed behind with his father.

         After the group relocated to Wichita, K.L. reunited with Perez. K.L. quickly became jealous of Perez' affectionate relationship with Lindsey, who was then 14 years old. After 2 weeks in Wichita, K.L. returned to North Dakota to finish school. While K.L. was away, the group moved to South Dakota. In South Dakota, Trish met Brian Hughes and the two began dating. At some point, Mona became engaged to a man named Jim.

         While in South Dakota, Perez, Trish, and Mona went to an insurance office where Mona purchased a policy on her life in the amount of $750, 000 and named Lindsey as the beneficiary and Trish as Lindsey's caregiver.

         After the life insurance policy was purchased, a plane that Mona, Jim, and Lindsey had been on went missing. Perez and Trish tried to procure the death benefit from Mona's life insurance policy, but, because Mona's body had not been recovered, the insurance agency would not pay the benefit. Perez and Trish visited the insurance agency multiple times while the search for the plane was underway. Eventually, when the remnants of the plane were recovered and death certificates were issued for Mona, Lindsey, and Jim, the insurance agency paid Trish the death benefit.

         Around the summer of 2001, Trish, Brian, their new baby, Nicole; Perez; and K.L. moved to Lee's Summit, Missouri. A real estate agent named Jennifer Hutson helped the group find a house, which the group purchased in K.L.'s name. After 3 months, the group sold the house and moved back to Wichita, where they settled in some townhomes while they awaited more permanent arrangements. Jennifer, who had become friends with Perez, moved with the group to Wichita. She took her two daughters with her-E.H., age 10, and S.H., age 17. Over time, the group built three houses for themselves next door to each other in Sedgwick County, Kansas. The group was living in these homes by spring 2002 and referred to them collectively as "Angel's Landing."

         Much of the conduct for which Perez was convicted occurred while the group was living at Angel's Landing. We describe this conduct here.

         Rape, aggravated criminal sodomy, and aggravated assault of E.H. and S.H.; aggravated assault of K.L.; and sexual exploitation of C.C.

         Perez began sexually abusing E.H. and S.H. almost as soon as they joined the group in 2001. The girls testified that between 2001 and when Perez went to jail in the spring of 2010, Perez forced them to have sex with him "hundreds of times." Both girls testified that they believed Perez was "special" and had certain powers. Perez had told them that he was hundreds of years old and was often inhabited by one of three different angels-Arthur, Daniel, and the angel of death named Amber-and that the angels needed sex from young girls to survive. The State focused on a few specific instances of this forced sex, described here.

         When the group moved to Angel's Landing, E.H. moved into the master bedroom with Perez. She was 10 years old at the time. Perez told E.H. that she needed to share his bed because he was a "seer" who needed a "pure" person-meaning a young, female virgin-to take care of him, or he would die. A few weeks after E.H. began staying with Perez, in January of 2002, Perez began forcing E.H. to have oral, vaginal, and anal sex with him.

         Another instance occurred in 2007. Early one morning, around 2 a.m., S.H. awoke E.H. and told her to get dressed and go outside to the shop because Perez was angry. K.L. and Perez were in the shop when the girls arrived. Perez grabbed E.H. and S.H. by the throats and told them he could kill them if he wanted to. Perez ordered the three girls to undress and began waiving a gun around. Perez used the gun to shoot at a computer tower in the shop. After he fired the shots, Perez ordered the girls to go to the master bedroom of one of the houses. In the bedroom, Perez ordered E.H. and S.H. to the bed and K.L. to the corner. Perez then inserted his beer bottle into S.H.'s and E.H.'s vaginas and then made K.L. drink from the bottle. Perez then made K.L. leave the room so he could "feed." Perez then forced S.H. and E.H. to perform oral sex on each other and on him and to engage in vaginal and anal sex with him.

         A different time in 2007, Perez called another meeting with S.H., E.H., and K.L. During this meeting, Perez told the girls that Jennifer was going to die and so K.L. needed to step up. Perez told K.L. that if she did not step up, she would be the one to die. After this discussion, Perez forced E.H. and S.H. to have oral, vaginal, and anal sex with him.

         E.H. also testified regarding a time when Perez became violent and raped her after E.H. tried to prevent the rape. S.H. testified about a time when Perez forced her to have oral and vaginal sex with him under a threat that he would kill her father if she did not comply.

         Sometime after August 2006, a woman named Sherri Cox began visiting Angel's Landing with her daughter, C.C. On one of these occasions, when C.C. was approximately 8 years old, Perez directed C.C. to sit provocatively in her swimsuit while he took photos of her. Perez also directed S.H. to plant a video camera in the bathroom to secretly record C.C. while she changed from her clothes to a swimsuit.

         Making false information

         Perez was also convicted of making false information in connection with applications for life insurance and car loans. When the group moved to Wichita, Trish took out a $1 million insurance policy on her life that included an accidental death rider. She named Brian, by then her husband, as the beneficiary, and K.L. as the co-beneficiary. Brian, K.L., Jennifer, and a woman who joined the group in 2004, Megan Harbert, also took out insurance policies on their own lives. Perez was present each time one of the members took out a policy and directed who would take out the policy, what the amount would be, and ...


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