State v. Marmolejo

501 P.3d 910 (Table)

STATE of Kansas, Appellee,

v.Aurelio Renato MARMOLEJO, Appellant.

No. 123,076

Court of Appeals of Kansas.

Opinion filed January 7, 2022.

Jacob Nowak, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Powell, P.J., Atcheson, J., and Richard B. Walker, S.J.

MEMORANDUM OPINION

Per Curiam:

Aurelio Renato Marmolejo was convicted by a jury of his peers of two counts of rape of a child who is under 14 years of age and two counts of aggravated indecent liberties with a child who is under 14 years of age. On appeal, Marmolejo alleges: (1) The district court erred by not declaring a mistrial after a disturbance in the courtroom; (2) the prosecution erred in closing argument when it made improper comments concerning certain evidence presented at trial and the credibility of the victims; (3) cumulative error; and (4) K.S.A. 2020 Supp. 21-5503(a)(3), rape of a child who is under 14 years of age, and K.S.A. 2020 Supp. 21-5506(b)(3)(A), aggravated indecent liberties with a child who is under 14 years of age, are facially unconstitutional as they violate section 1 and section 5 of the Kansas Constitution Bill of Rights. After a careful review of the record, while we agree the prosecution erred with its comments concerning certain evidence presented at trial, we find no reversible error in the conduct of the trial, nor do we find the statutes in question unconstitutional. Thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2015, D.C. and her family were at the house of her mother's friend. One of D.C.'s brothers witnessed D.C. cutting herself with a safety pin after she heard a discussion about the mother's friend getting married and wearing a white wedding dress. D.C.'s mother left her friend's house with her children and confronted D.C. on the car ride home. D.C. told her mother that her mother did not "know what it feels like to be raped." D.C. reluctantly informed her mother that Marmolejo, her mother's relative, had sexually abused her.

After learning of the sexual abuse, D.C.'s mother drove to Marmolejo's parents' house to confront him. When they arrived, Marmolejo was absent, but his father was there. Marmolejo returned home shortly after, and D.C.'s mother made D.C. tell Marmolejo what he had done. Crying, D.C. told Marmolejo, "You know what you did to me." Marmolejo denied doing anything and drove away.

D.C.'s mother took her to the hospital. Due to the passage of time since the incidents allegedly occurred, no sexual assault exam was performed.

D.C. underwent a Safetalk interview in January 2016. During the interview, D.C. explained she was reluctant to participate in the criminal case because she did not want to cause family trouble. D.C. admitted that, before the interview, she had never told anyone the entire story of what happened.

The sexual abuse happened when D.C. was staying at Lydia Avendano's house in the spring or summer of 2013 for two weeks while D.C.'s mother was going through some hardships. Avendano was Marmolejo's on-again-off-again girlfriend. D.C. disclosed Marmolejo sexually abused her daily during the second week she stayed with him. D.C. also revealed that Marmolejo showed her pornography. D.C. was 11 years old at the time of the abuse that included separate incidents of penile and digital penetration.

At trial, D.C. initially denied Marmolejo penetrated her vagina. She admitted it was difficult for her to answer the question because the abuse was not something she wanted to remember and think about. D.C. acknowledged she disclosed Marmolejo's penis penetrated her vagina in the Safetalk interview and confirmed she was truthful in that interview. D.C.'s brother testified he did not think she had been raped but admitted he might not know all the details of the abuse. D.C.'s grandmother testified that D.C. told her no intercourse occurred.

After her stay at Avendano's house, D.C. began to get into trouble at school. After she disclosed the sexual assault, D.C. twice attempted suicide. D.C. was checked into the hospital twice for self-harm, and both hospital reports mentioned that D.C. disclosed being sexually abused.

Y.B. is Marmolejo's relative, and Y.B. and D.C. knew each other but were not close. After learning of D.C.'s allegations, Y.B.'s mother asked Y.B. if Marmolejo had ever done anything to her. In March 2017, Y.B. admitted Marmolejo had sexually assaulted her three times about three years earlier. Two of the assaults occurred in his car; the third assault was at his house. Y.B.'s mother called the police.

During the trial, the State also presented K.S.A. 2015 Supp. 60-455(d) evidence from D.C.'s mother and from L.L., another relative of Marmolejo. D.C.'s mother testified that Marmolejo had sexually touched her multiple times about 30 years ago when the two were children.

L.L.'s allegations came to light after L.L. read a Facebook post in 2017 by D.C.'s mother. L.L. is 10 years younger than Marmolejo. When L.L. was 14, she often went to Marmolejo's house. L.L. described two separate occasions one or two weeks apart when Marmolejo sexually assaulted her. After the second assault, L.L. never returned to his house.

Marmolejo believed D.C. may have made up her allegations because Avendano kicked D.C. out of her house. Marmolejo believed Y.B. was making stuff up based on a movie she saw with him. He believed Y.B.'s parents were conspiring to get Marmolejo out of their life due to an incident at a 2005 basketball game where Y.B.'s father broke Marmolejo's neck. He also guessed Y.B. made up having sex with him to hide from her parents the fact that she was having sex with her boyfriend. Marmolejo testified that his mother told him L.L. would do anything to get Marmolejo prosecuted.

Avendano testified that D.C. slept in her room while D.C. stayed at her house, and she never saw D.C. leave to sleep elsewhere. She admitted it was possible D.C. and Marmolejo had contact while she was asleep.

Marmolejo was convicted of rape and aggravated indecent liberties against D.C. and rape and aggravated indecent liberties against Y.B. Marmolejo was sentenced to two consecutive hard 25 life sentences for the two rape convictions, with the sentences for the aggravated indecent liberties convictions running concurrent.

Marmolejo timely appeals.

I. DID THE DISTRICT COURT ERR WHEN IT DENIED MARMOLEJO'S MOTION FOR A MISTRIAL ?

At the conclusion of the cross-examination of Y.B.'s mother, the following interruption occurred:

"UNIDENTIFIED SPEAKER: Wow, we're on trial.

"(Whereupon, someone in the [gallery] claps.)

"[DEFENSE COUNSEL]: Oh, Judge, we have someone clapping and someone, you know, yelling out.

"THE COURT: I saw this gentleman here with the—

"UNIDENTIFIED SPEAKER: I wasn't—

"[DEFENSE COUNSEL]: No, he was clapping.

"THE COURT: No, you were clapping. So you'll be excused at this time from the courtroom.

"UNIDENTIFIED SPEAKER: For the whole court [sic]?

"THE COURT: For the rest of the duration of the trial. I was real specific—

"UNIDENTIFIED SPEAKER: It wasn't him that was clapping, sir. It was me. I can leave. It was me.

"THE COURT: All right. Both of you will leave.

Okay. You're excused as a witness at this time. Thank you for appearing today.

"UNIDENTIFIED SPEAKER: You're going to get what the fuck you got coming to you."

The man was identified as Y.B.'s father. The parties did not identify the woman who claimed to be the one clapping. Following the disruption, Marmolejo moved for a mistrial, asserting the jury's attention was drawn to Y.B.'s father. Marmolejo asked for additional time to argue the issue, but the district judge denied the request, stating he was about the same distance from Y.B.'s father as the jury was and he could not hear what was said. The district court indicated it would admonish the jurors not to consider the actions or words spoken by Y.B.'s father, and that, coupled with the removal of Y.B.'s father, was sufficient.

Following the bench conference, the district court instructed the jury:

"All right. We had a brief discussion. Obviously, I asked two people to leave the courtroom because I previously said let's behave ourselves. This is not Arrowhead. This is a courtroom. And we expect them to be courteous to the Court and to the people who are here. They were less than courteous. And so they were asked to leave. There was some comment made. I couldn't hear exactly what was said. You may have heard what was said. But what I wanted to address to you is that you should disregard any comments or behavior of the audience. We will keep this in a very formal and careful environment so that we hear the case accurately and not be influenced by any behavior of other—the audience. So I would ask that you disregard any comments or behavior that you may have observed or heard as those people were asked to leave the courtroom. And I will continue to remind them that they should be on their best behavior here."

Marmolejo first argues the outburst from Y.B.'s father prejudiced the jury against him and prevented him from receiving a fair trial. Marmolejo also claims the district court implicitly found a fundamental failure in the proceeding when it removed Y.B.'s father and issued a curative instruction to the jury. Marmolejo further argues the outburst infringed upon his right to present his defense and presupposed his guilt. He asserts the district court's curative instruction was insufficient because it only told the jury it should disregard the comments.

The State believes the lack of a finding regarding a fundamental failure does not establish there was a fundamental failure in the proceedings. The State argues there is no evidence the jury even heard the statement and contends the district court's curative instruction, coupled with the traditional instruction to decide the case based only on the evidence admitted plus the overwhelming evidence presented, is sufficient to establish there was no...