State v. Cipra

500 P.3d 1231 (Table)

STATE of Kansas, Appellee,

v.James CIPRA, Appellant.

No. 123,226

Court of Appeals of Kansas.

Opinion filed January 7, 2022.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Malone, J., and James L. Burgess, S.J.

MEMORANDUM OPINION

Per Curiam:

James Cipra appeals his convictions of 10 counts of rape of a child under the age of 14, arguing that the district court erred by allowing the State to present character evidence at trial and that there was insufficient evidence to support his convictions. After reviewing the record, we find Cipra failed to preserve a challenge to the admission of the character evidence by making a contemporaneous objection at trial. But we find there was sufficient evidence to support only one rape conviction. Thus, we reverse the remaining convictions and vacate his sentences on those counts, but we otherwise affirm the district court's judgment.

FACTUAL AND PROCEDURAL HISTORY

This case involves allegations of sexual misconduct involving Cipra and his victim, A.C., that were not made until a few years after the offenses happened. In 2017, the State charged Cipra with two counts of aggravated indecent liberties with a child, both off-grid person felonies. A.C.'s mother, T.C., reported to law enforcement that A.C., then 9 years old, stated she was "molested" by Cipra when she was younger. The complaint alleged that these two offenses occurred "on or between the 8th of November, 2011 A.D. and the 7th of November, 2012 A.D.," when A.C. was 4 years old, and "on or between the 8th of November, 2012 A.D. and the 7th of November, 2013 A.D.," when A.C. was 5 years old.

After the district court held a preliminary hearing, the State filed an amended information adding 10 counts of rape, off-grid person felonies, and 11 counts of sexual exploitation of a child, nondrug person felonies. The amended information alleged that these offenses occurred between November 2011 and November 2013, when A.C. was between three to five years old.

Before trial, Cipra filed a motion in limine, asking the district court to allow the State to admit evidence of his prior bad acts only if he introduced evidence of his good character. Cipra also asked the district court to admit such evidence only if it showed his honesty or veracity. Cipra mentioned his "prior criminal history, ... prior police contact, ... prior use of drugs or alcohol, and ... friendships or associations with known criminals" as inadmissible prior bad acts evidence.

The trial occurred in July 2019, and three witnesses testified on the State's behalf: A.C., T.C., and Captain Patricia Giordano, the officer who interviewed A.C. and T.C.

The first witness was A.C., who testified that she lived in Wichita with her family when she was between the ages of four and six. They later moved to Junction City. She remembered going on a walk with T.C. at some point in Junction City and told T.C. that Cipra had "molested" her. A.C. said she decided to tell her mom because "I didn't want to keep it a secret anymore."

A.C. testified that Cipra touched the inside of her vagina with his penis and described it as feeling "terrible" and "like I was doing something wrong." Cipra also touched her shoulder blades with his hands and told A.C. to take her clothes off. This occurred in T.C.'s bedroom at their house in Wichita. A.C. said her sister was at home then but not in the room. A.C. could not remember if Cipra was looking at anything when he told her to take her clothes off. A.C. said one thing she could remember feeling is that his penis "felt slimy." She also could not stop thinking about "[w]hy he did it." She said, "I think it happened more than one time, but I'm not quite sure." A.C. said she did not remember telling a detective that it happened about 10 times.

Captain Giordano, who was a lieutenant on patrol in Junction City at the time of the allegations, testified that she was called to help interview A.C. When Giordano began the interview, all she knew was that A.C. had disclosed she had been "inappropriately touched" by Cipra. Giordano's only involvement with the case was interviewing A.C. and her sister, and then the Junction City Police Department referred the case to the Wichita Police Department because the crimes occurred there.

A video recording of the interview was admitted at trial and published for the jury. When Giordano asked A.C. if she knew why she was there, A.C. responded that "[Cipra] did something bad to me." A.C. said it happened in T.C.'s bedroom in Wichita. She remembered the first time it happened sitting down on the bed while Cipra was laying there under the covers staring at his computer. A.C. said Cipra was watching "pretty ladies" on the computer. Giordano asked A.C. what happened, and A.C. responded that Cipra told her to take off her pants and underwear and he made her do it. A.C. then used anatomical dolls to show Giordano that he put his penis in her vagina, and A.C. said sometimes pee came out of his penis when he did this to her. A.C. said it eventually stopped happening after she turned six. A.C. believed it happened "about 10 times."

A.C. also stated in the video recording that the night before she told her mom, they were talking about feelings and "it felt like it was finally time to mention it," but then Cipra walked in the room and A.C. "didn't feel safe mentioning it" so she stopped talking. A.C. said she was "like 4 to 6" years old at the time. She said it happened "more than one time." A.C. remembered that it always occurred during the day when her mom was not at home because she was working or some other place A.C. did not know. A.C.'s sister was at home as well but doing something else.

T.C. testified she first met Cipra around December 2002 or January 2003. At that time, they lived in Manhattan and eventually moved to Wichita in May 2010. According to T.C., about a month to three months into their relationship, Cipra revealed to her, "[Y]ou're going to hate me, because I am attracted to children." She understood that to mean it was a sexual attraction. Cipra's statement "didn't come off as creepy," but as more of a "deep-felt, you're going to hate me and I kind of despise this about myself." T.C. said she consoled him and said, "[I]t's okay to be attracted, just never act on it," and that she did not hate him.

T.C. also said there were conversations where Cipra "defended smaller kids, or people that were under [the] age of consent, initiating sexual content." T.C. recalled Cipra saying that "should be fine," and that "it shouldn't always be frowned upon." T.C. told him these beliefs were not appropriate. T.C. also recalled Cipra saying he was "looking forward" to watching a movie he had downloaded with "this skinny dipping scene with an eight year old in it."

T.C. testified that she was walking with A.C. to go play disc golf when A.C. "let me know that she had a bad experience when she was four." According to T.C., A.C. informed her that she had walked into T.C.'s bedroom while Cipra was watching pornography and touching himself. T.C. told the jury that she had seen Cipra masturbate with the computer before and it was familiar behavior to her. Cipra told A.C. to "come here," so she went in although she did not want to. Cipra told A.C. to take her pants off and she refused, but Cipra made her take her pants off anyway. T.C. said she made A.C. stop telling the story because "that's like past the point of acceptable." She asked A.C. "are you okay if we never live with [Cipra] ever again," to which A.C. said "yes." After that, T.C. went to Pawnee Mental Health and they contacted law enforcement.

T.C. also testified that Cipra had books when they lived in Wichita that depicted images of nude children. She said, "They seemed liked artistic depictions," but admitted that after learning about the sexual abuse she "realized that the books or movies and other things weren't satisfying [Cipra], and [A.C.] was still in harm's way." T.C. agreed that not all the images in the books were sexually explicit, but that some depicted "very young children and mostly in the nude." During T.C.'s testimony, the State introduced into evidence 11 books Cipra kept in the house in Wichita that depicted images of nude children.

After presenting its evidence, the State announced it was dismissing the aggravated indecent liberties charges and proceeding only on the rape and sexual exploitation of a child charges. Cipra moved for a judgment of acquittal on the remaining charges. Relevant to this appeal, Cipra argued there was no evidence presented of when the alleged rapes occurred or that there were 10 total incidents. The State responded that A.C. stated during the interview that the rapes occurred 10 times between the ages of four and six, so a prima facie case had been made to submit the charges to the jury. The trial court agreed with the State and denied Cipra's motion.

Cipra did not testify at the trial or present any evidence. During closing argument, his counsel argued that the State had failed to prove the charges beyond a reasonable doubt, focusing on the age of the allegations and the lack of physical evidence....