State v. Portillo-Ventura

State of Kansas, Appellee, v. Jose Eliasar Portillo-Ventura, Appellant.

Nos. 122, 229, 122, 415

Court of Appeals of Kansas

February 25, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Hamilton District Court; Wendel W. Wurst, judge.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt attorney general, for appellee.

Before Schroeder, P.J., Warner and Isherwood, JJ.

MEMORANDUM OPINION

PER CURIAM

The State charged Jose Eliasar Portillo-Ventura with aggravated indecent liberties in case number 18 CR 130, and rape aggravated indecent liberties, and attempted aggravated indecent liberties in case number 18 CR 131. The court conducted a consolidated trial, and a jury returned a guilty verdict on all counts. Portillo-Ventura advances three arguments on appeal. First, he contends the prosecutor erred by twice commenting on witness credibility, making a "golden rule" argument, and asking the jury to protect the victim. Second, he argues that his stipulation to an element of the crimes without proper waiver of his constitutional rights violated his right to a jury trial under State v. Johnson, 310 Kan. 909, 453 P.3d 281 (2019). Finally, he argues that his criminal history score was incorrectly calculated because the sentencing court counted the felonies in each case toward his criminal history score in the other case. Our review of the record reveals that the State improperly commented on the credibility of a witness and that the error demands reversal of Portillo-Ventura's convictions. Because the matters addressed in his two remaining claims could conceivably recur upon any retrial here, we offer an abbreviated discussion of those issues.

Factual and Procedural Background

Juries in sex crimes prosecutions are frequently called upon to be the arbiter in credibility contests between victims and their alleged perpetrator. That was indeed a focal point for the jury in Jose Portillo-Ventura's case given the scant amount of evidence available to corroborate the victim's accounts.

P.F testified that in the summer of 2017, when she was only 13 years old, she attended a family barbeque at her father D.F.'s, home in Hamilton County, Kansas. Portillo-Ventura was also present at the festivities.

She recalled that the picnic attendees planned to go swimming later in the day so she dressed accordingly in a two-piece swimsuit and shorts. At one point, while P.F. waited to leave for the pool, Portillo-Ventura entered the living room and sat down on a couch across from her. According to P.F. he gave her a "leering look" that made her so uncomfortable she got up and retreated to the restroom.

Sometime later, P.F. exited the restroom and Portillo-Ventura met her in the hallway. P.F. informed the jury that he pushed her against a nearby washer and dryer, tried to kiss her, and placed his hand against her vagina, over her clothing. She shoved Portillo-Ventura and walked away.

Shortly thereafter, as the entire group congregated outside her father's residence to leave for the pool, P.F. realized she had forgotten her earbuds, so she went back inside. She testified that Portillo-Ventura followed her and pulled the door closed behind him. He pushed P.F. against the door, reached between her legs, and rubbed her vagina over her clothing.

P.F. acknowledged for the jury that she did not scream or immediately report Portillo-Ventura's inappropriate behavior to an adult. She explained that she instead opted to remain silent because Portillo-Ventura was considered to be like family, and she feared disrupting that dynamic.

P.F. eventually opened up about the incidents to C.V., Portillo-Ventura's young stepdaughter. At the time of that disclosure, P.F. also asked her whether Portillo-Ventura ever fondled her. C.V. provided a negative response so P.F. did not press the issue despite being concerned for C.V.'s safety. At the time, C.V. did not believe P.F.'s accusations.

Around a week later, D.F. hosted another barbecue at his residence. According to P.F., several adults, including D.F., got very intoxicated so her stepmother, J.C., decided to remove P.F. from the situation. She initially drove P.F. to Portillo-Ventura's home but when they arrived, P.F. refused to get out and told J.C. that Portillo-Ventura had fondled her.

P.F. informed the jury that the group congregated once more the next day. The adults called P.F. into the room and, with Portillo-Ventura present, pointedly asked P.F. whether he fondled her. She testified that she responded in the affirmative, but the group refused to believe her. P.F.'s father yelled at her and accused her of lying, while her stepmother warned her that she was going to hell. According to P.F., of the twelve adults in the room, only M.M., P.F.'s step-grandmother, believed her.

C.V. also testified and described for the jury that, in time, Portillo-Ventura also touched her inappropriately. For example, in one instance, he came up from the basement as C.V. washed dishes in the kitchen. He grabbed C.V. around the waist, turned her to face him and then placed one hand on her breast and the other on her vagina. C.V. told the jury that she was moving away to seek refuge in a bedroom where her brother and sister were playing video games.

Portillo-Ventura then directed C.V. to retrieve cash from the bathroom where C.V.'s mother, M.R., often left it in case anyone in the household needed it. C.V. called out to her sister to get the money instead, but her sister ignored the request. C.V. testified that she relented and grabbed the money but as she attempted to leave the bathroom, Portillo-Ventura blocked the door in an effort to prevent her exit. C.V. managed to push past him and joined her siblings in the bedroom. According to C.V., Portillo-Ventura entered the bedroom a few minutes later and repeatedly apologized.

C.V. recounted for the jury that she eventually told her mother, M.R., about the dishwashing incident and the disclosure induced M.R. to kick Portillo-Ventura out of the house, but only briefly. A few days later M.R. allowed him back into the house. C.V. explained that she did not feel as though her mother believed her, so she opted not to tell anyone else.

The jury also heard testimony from C.V. regarding a second incident that occurred as she lay in her bedroom. C.V. shared with them that Portillo-Ventura came in, laid down next to her, and kissed her "[l]ike a boyfriend/girlfriend make out." He rubbed her vagina on the outside of her clothes and placed her hand on his erect penis. At the time, C.V. and Portillo-Ventura were alone in the house.

C.V. recalled two additional encounters she had with Portillo-Ventura. In one instance, as she slept on the couch, he lifted her underwear, and put his finger in her vagina. On another occasion, Portillo-Ventura came up from the basement to prepare for work while C.V. watched television on the couch. He went into the restroom and came out a short time later with his zipper down and his penis fully exposed. She told the jury that he waved at her and beckoned for her to come over. C.V. refused so he went back into the restroom and closed the door. Later, Portillo-Ventura exited the restroom fully clothed, gave C.V. ten dollars, and called her a "puta" which translated means "whore." C.V. threw the money at him as he left for work. C.V. informed the jury that each of the four incidents occurred after P.F. revealed to her that Portillo-Ventura touched P.F. during the barbecue. C.V. testified that she was only 10 years old during the acts.

On December 7, 2018, M.M., C.V.'s grandmother, contacted the Hamilton County Sheriff's Office and explained that Portillo-Ventura sexually assaulted C.V. Roughly twenty minutes later, J.C. called the Sheriff's Office and informed them that Portillo-Ventura assaulted P.F. J.C. later acknowledged to investigators that she delayed reporting because she initially did not believe P.F. She felt that perhaps enough time had passed that the issue had resolved itself.

The Sheriff's Office assigned Sergeant Justin Klebba to follow up on the case. Klebba scheduled forensic interviews for the two girls with Kelly Robbins, the executive director of the Western Kansas Child Advocacy Program. Though P.F. at first expressed hesitancy in the process, she ultimately underwent an interview and told Robbins that Portillo-Ventura molested her. P.F. also identified Portillo-Ventura in a photo lineup. C.V.'s interview was scheduled to occur the day after but neither C.V. nor her mother, M.R., wanted her to participate. M.R. initially gave permission for the interview but cancelled the night before it was to occur.

Klebba then reached out to DCF, which advised him that the interview could be conducted at C.V.'s school. C.V. participated in the interview at her school the following day. Shortly after the interview began, M.R. arrived and attempted to physically intervene and terminate the meeting. C.V. likewise disclosed that Portillo-Ventura fondled her.

The investigation yielded charges against Portillo-Ventura, filed under two separate complaints. The first, case number 18 CR 130, related to the incidents involving P.F. and included one count of aggravated indecent liberties with a child. The second case, 18 CR 131, addressed the acts perpetrated against C.V. and included a single count each of rape, aggravated indecent liberties with a child, and attempted aggravated indecent liberties with a child.

The two cases were consolidated for trial. Justin Klebba, Jason LaRue, Kelly Robbins, P.F., and C.V. were all called as witnesses for the State. Portillo-Ventura exercised his right to not testify. The defense rested without calling any witnesses.

During...