State v. Cipra ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,226
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JAMES CIPRA,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed January 7, 2022.
Affirmed in part, reversed in part, and vacated in part.
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.
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.
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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.
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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
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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."
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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.
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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. Counsel
questioned the credibility of both A.C. and T.C., pointing to inconsistencies in their
statements. Finally, counsel argued that the books were not sexually explicit enough to
support the sexual exploitation charges.
After deliberating, the jury returned a guilty verdict on the 10 counts of rape, but
acquitted Cipra of the sexual exploitation of a child charges.
The day before sentencing, Cipra filed a written motion for a new trial and
judgment of acquittal. The district court denied this motion at the start of the sentencing
hearing. After also denying Cipra's motion for a durational and dispositional departure,
the district court imposed the presumptive sentence of life in prison without the
possibility of parole for 25 years on each of the 10 counts of rape. The district court
ordered two of the counts to run consecutive to each other, with the other counts to run
concurrent, for a total controlling sentence of life without the possibility of parole for 50
years. Cipra timely appealed the district court's judgment.
Cipra failed to preserve his objection to the admission of character evidence by failing to
object to its admission at trial.
Cipra argues the trial court erred when it allowed the State to introduce evidence
that Cipra once told T.C. he was "attracted to children." According to Cipra, allowing this
evidence without first analyzing it as character evidence under K.S.A. 60-447 violated his
due process rights and his right to a fair trial. He argues that T.C.'s testimony cannot be
considered harmless where the only other evidence of his guilt was A.C.'s testimony.
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But as the State points out, Cipra did not object at any point during T.C.'s
testimony, nor did he ask the district court to analyze it as character evidence under
K.S.A. 60-447. Alternatively, the State argues Cipra has not shown the evidence was
inadmissible or that its inclusion was not harmless.
Cipra freely acknowledges that he failed to object below but asserts this court can
consider the issue for the first time on appeal to serve the ends of justice or prevent the
denial of his fundamental right to a jury trial. See State v. Johnson, 309 Kan. 992, 995,
331 P.3d 1036 (2019). But the Kansas Supreme Court has consistently declined to review
evidentiary challenges like Cipra's without an objection at trial "even if the issue involves
a fundamental right." State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010); see also
State v. Logsdon, 304 Kan. 3, 28, 371 P.3d 836 (2016) (rejecting claim that exception
applied to the erroneous admission of evidence with no timely or specific objection).
K.S.A. 60-404 provides:
"A verdict or finding shall not be set aside, nor shall the judgment or decisions
based thereon be reversed, 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."
Based on this statute, a party must make a contemporaneous and specific objection
to the admission of evidence to preserve the issue for appeal. State v. Dupree, 304 Kan.
43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016); State v. King, 288 Kan. 333,
348-50, 204 P.3d 585 (2009) (stressing the importance of the requirement of an objection
under K.S.A. 60-404). As a result, we will not address Cipra's challenge to the evidence
because of his failure to make a timely and specific objection at trial.
7
There was insufficient evidence presented to find Cipra guilty of 10 counts of rape.
Cipra argues there was insufficient evidence to support his 10 rape convictions and
asks us to reverse those convictions. The State responds that Cipra wants this court to
reweigh the evidence, which it cannot do, and that the evidence supports his convictions.
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
As Cipra acknowledges, the Kansas Supreme Court has long held that "[t]he
testimony of the prosecutrix alone can be sufficient to sustain a rape conviction without
further corroboration if the evidence is clear and convincing and is not so incredible and
improbable as to defy belief." State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113(1997). He contends A.C.'s testimony fails to meet this standard, arguing that A.C.'s
testimony alone was not enough to find him guilty because she could not recall when the
acts occurred and because of the lack of physical evidence. He claims A.C.'s testimony
conflicted with the statements she gave during the interview and that A.C.'s statement
that he raped her "about ten times" is too vague to sustain his 10 rape convictions.
There was sufficient evidence, viewed in the light most favorable to the
prosecution, to support Cipra's conviction of one count of rape. A.C. testified at trial that
Cipra told her to take her clothes off in the bedroom before touching the inside of her
vagina with his penis. A.C. described how it felt "terrible" and "slimy" and that she could
not forget it or stop thinking about why he did it. A.C.'s testimony about the incident was
corroborated by the video of her interview with Giordano.
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T.C. also corroborated A.C.'s testimony by explaining that A.C. disclosed during a
walk that Cipra had "molested" her. T.C. recounted for the jury how Cipra had told her
early in their relationship that he was "attracted" to children—which T.C. took to mean a
sexual attraction—and that he made statements about children initiating sexual contact
with adults as being "fine" or not "always frowned upon." 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."
But we agree with Cipra that there was insufficient evidence to convict him of 10
separate counts of rape. At trial, A.C. only described one incident of rape. She identified
a specific location—in T.C.'s bedroom in their house in Wichita—but she did not give a
specific date. She testified, "I think it happened more than one time, but I'm not quite
sure." T.C. only described being told by A.C. about one incident of rape. On the video
recorded interview, A.C. told Giordano that the rape incident happened more than one
time, but she did not know how many times. Later, in the video recording, A.C. said the
incident happened "about 10 times." This statement was the only evidence presented to
the jury to support a specific number of 10 incidents of rape. But at trial, A.C. testified
that she did not remember telling a detective that it happened about 10 times.
In a sex crime case such as this one involving a child, it would have been typical
for the State to charge the defendant with one count of rape and to prosecute the crime as
a multiple acts case if there was more than one act to support the charge. But Cipra's case
is the opposite of a multiple acts case. The State charged Cipra with 10 separate counts of
rape based only on A.C.'s recorded statement that the incident happened "about 10
times." Likewise, the State charged Cipra with 11 separate counts of sexual exploitation
of a child based on the evidence of 11 books he kept in the house depicting nude children.
We conclude there was insufficient evidence to support Cipra's conviction of 10
separate counts of rape based only on A.C.'s recorded interview statement that the
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incident happened "about 10 times." This statement was a mere estimate by A.C. of the
number of times Cipra molested her, and she later equivocated on this estimate. We are
not reweighing the evidence or reassessing the credibility of witnesses to reach this
conclusion. Even viewing the evidence in the light most favorable to the prosecution, the
State presented insufficient evidence to convince a rational fact-finder beyond a
reasonable doubt that Cipra committed 10 separate acts of rape. As we discussed, the
State presented sufficient evidence to support one rape conviction. But we reverse the
remaining convictions and vacate the sentences on those counts.
Affirmed in part, reversed in part, and vacated in part.
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