State v. Salazar-Moreno

311 P.3d 1168

STATE of Kansas, Appellee,

v.Cornelio SALAZAR–MORENO, Appellant.

No. 106,555.

Court of Appeals of Kansas.

Nov. 1, 2013.

Appeal from Reno District Court; Trish Rose, Judge.

Edward J. Battitori, of Pittsburg, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.

MEMORANDUM OPINION

PER CURIAM:

Cornelio Salazar–Moreno was found guilty of rape, two counts of aggravated indecent liberties with a child, and adultery. Immediately before and during trial, he moved for mistrial three different times: first, based on a juror's racially charged comments in a public hallway; second, based on the State's failure to provide discovery of its expert's full report; and third, based on communications between a spectator in the gallery and the complaining witness. The district court denied all three motions. Additionally, Salazar–Moreno objected to the State expert's testimony about whether the victim's report of sexual abuse matched her injuries, but the district court overruled the objection. Salazar–Moreno contends that the district court abused its discretion in all four rulings. Finding no error, we affirm.

Factual and Procedural History

Cornelio Salazar–Moreno was charged with rape and two counts of aggravated indecent liberties with a 13–year–old girl (D.D.). Because Salazar–Moreno was married at the time, he was also charged with adultery. The case proceeded to jury trial.

After the completion of jury selection, Dawn Salazar–Salazar–Moreno's wife and a witness for both the State and defense-approached Salazar–Moreno's attorney and reported that she overheard one of the selected jurors talking on his cell phone and “mak[ing] disparaging remarks about Hispanics or Mexicans.” Salazar testified that she overheard the juror's remarks, which “was like a joking [sic],” while sitting in a conference room. The juror's comments included statements such as “in Mexico they can have sex with girls that are 14 and that's okay” and “Mexicans come over here, drive great big SUVs with the great big rims on it.” Salazar stated that at least one other juror or potential juror was in the hallway at the time. After hearing Salazar's testimony and identifying the juror in question, the district court dismissed the juror, replaced him with an alternate, and denied Salazar–Moreno's motion for mistrial.

During the trial, the State called pediatrician Ellen A. Losew as an expert witness to testify about the results of D.D.'s vaginal exam. Prior to Dr. Losew testifying, Salazar–Moreno presented an oral motion requesting that the court limit Dr. Losew's testimony only to “the four corners of the document she provided to the prosecution”—that is, her pretrial report. The district court reserved ruling on the motion, but the record indicates that the court never presented a definitive decision.

On direct examination, Dr. Losew testified about an irregularity in D.D.'s hymen. When asked whether the irregularity was consistent with D.D.'s report of sexual abuse, Salazar–Moreno again objected, stating:

“That's a medical expert opinion. That's not for whatever reason contained in her expert medical report, and it's something that's unfair surprise to the Defense. We didn't know this was coming. We have-my client has rights to discovery, to discover all of the evidence to be presented against him at trial in order for him to receive a fair trial.... This is the first we've heard of a medical opinion by experts.”

The district court overruled the objection. Salazar–Moreno did not object again during the State's direct examination except in regard to the witness' responsiveness.

While cross-examining the doctor, however, Salazar–Moreno discovered that he only had the first and last pages of Dr. Losew's report, rather than all three pages. At that time, Salazar–Moreno moved for a mistrial “for failure to comply with discovery and provide me accurate documentation of [Dr. Losew's] report.” The State indicated discovery was provided and argued that even if Salazar–Moreno had not received the second page of the report, the information in question—that is, the results of D.D.'s examination and D.D.'s 32–pound weight loss—appeared on other pages of the report as well as on the missing page. The district court denied the motion for mistrial but allowed Salazar–Moreno time to review the report before continuing with the cross-examination of Dr. Losew.

Later, after a morning recess during D.D.'s testimony, Salazar–Moreno reported to the district court that “a gentleman in the audience” was communicating nonverbally with D.D. while she testified. The State identified the gentleman as D.D.'s counselor, Rich Line. Witnesses testified that they saw Line mouthing things including the word “no,” shaking his head, and nodding at D.D. while she testified. Line, however, stated that he only indicated to D.D. that she should drink water and that he and D.D. had “not discussed the details of this assault” such that he could suggest answers to her. Salazar–Moreno renewed his earlier motion for mistrial based on Line's “admitted communication” with D.D. The district court found that reminding D.D. to drink water did not constitute improper communication and that there was “no indication that [D.D.] was looking to someone for suggestion or needing help with her answers.” Therefore, the district court denied the motion.

The jury found Salazar–Moreno guilty of all four charges. The district court imposed a “hard 25” prison sentence. Salazar–Moreno timely appealed.

Testimony of Expert Witness

Salazar–Moreno first contends that the district court erred in allowing Dr. Losew to testify both about D.D.'s injury and about whether D.D.'s account of the sexual abuse corresponded with the nature of that injury. Salazar–Moreno asserts that these statements amount to improper testimony about D.D.'s credibility.

Generally, the admissibility of expert testimony lies within the district court's sound discretion and is reviewed only for an abuse of discretion. State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008). An abuse of discretion only occurs when the action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). Despite this general rule, however, our Supreme Court acknowledged in State v. Elnicki, 279 Kan. 47, 53, 105 P.3d 1222 (2005), that its “recent decisions do not invoke an abuse of discretion or other standard of review” when one witness expresses an opinion as to another witness' credibility. Instead, the court indicated that there is “an absolute prohibition” against opinion testimony based on credibility and that such evidence is “disallowed as a matter of law.” 279 Kan. at 53–54, 105 P.3d 1222.

The State, however, notes that Salazar–Moreno failed to lodge a contemporaneous objection based on Dr. Losew's testimony and, therefore, argues that this court cannot review the district court's ruling. We agree.

Kansas has codified the contemporaneous objection rule at K.S.A. 60–404, which provides that a verdict will not be set aside by reason of the erroneous admission of evidence unless “there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” Our Supreme Court has emphasized the word specific in the statute, stating that “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted.” State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). This language also precludes appellate review when a party objects to evidence based on one ground at trial but then asserts a different ground on appeal because to allow otherwise “undercut[s] the purpose of contemporaneous objections.” 289 Kan. at 429, 212 P.3d 165.

On appeal, Salazar–Moreno draws attention to three portions of Dr. Losew's testimony: First, the testimony indicating that D.D.'s report was consistent with the irregularity on her hymen; second, the use of the word “good” when referring the history D.D. provided; and third, the use of the phrase “suspicious for child sexual abuse” when referring to D.D.'s exam. Salazar–Moreno contends that this testimony rises to the level of improper opinion about D.D.'s credibility and is outside the scope of Dr. Losew's expertise.

At trial, when Dr. Losew was responding to questions on direct examination about the irregularity in D.D.'s hymen, the following exchange occurred:

“Q. Based on your professional training and experience and looking at children, was what you saw with the cleft [in the hymen] consistent, was it consistent with the report made by [D.D.]?

“MR. BATTITORI: I object, Your Honor. That's a medical expert opinion. That's not for whatever reason contained in her expert medical report, and it's something that's unfair surprise to the Defense.... We have-my client has rights to discovery, to discover all of the evidence to be presented against him at trial in order for him to receive a fair trial, due process and constitutional rights protected. This is the first we've heard of a medical opinion by experts. Experts have to submit reports. Reports have to be provided to opposition and the reports must be exhausted for everything to be presented at trial, so we avoid situations like this where surprise results. It would be easy for experts to say, I'll include this in my report but then I'll surprise the Defense later by adding this to it at a later date. It's unfair.”

The district court overruled the objection.

Here, it appears that the ground Salazar–Moreno relied on when objecting to Dr. Losew's testimony was that of unfair surprise. Although there was mention of Dr. Losew's status as a medical expert, no language in the objection...