State v. Jordan

NOT DESIGNATED FOR PUBLICATION
No. 123,094
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
STEVEN TERRY JORDAN,
Appellant.
MEMORANDUM OPINION
Appeal from Barton District Court; CAREY L. HIPP, judge. Opinion filed November 5, 2021.
Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., CLINE, J., and BURGESS, S.J.
PER CURIAM: Steven Terry Jordan appeals his convictions for one count each of
rape, aggravated burglary, and criminal damage to property. He argues he did not receive
a fair trial below for several reasons: (1) the district court excluded relevant evidence
integral to his theory of defense; (2) prosecutorial error for misstating the law during voir
dire and making improper statements during closing arguments; and (3) the cumulative
effect of these errors deprived him of a fair trial. Finding no reversible error, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In July 2013, the State charged Jordan with one count each of rape, in violation of
K.S.A. 2012 Supp. 21-5503(a)(1)(A), a severity level 1 person felony; aggravated
burglary in violation of K.S.A. 2012 Supp. 21-5807(b), a severity level 5 person felony;
and criminal damage to property in violation of K.S.A. 2012 Supp. 21-5813(a)(2) and
(b)(3), a class B nonperson misdemeanor. The charges arose from a February 2013
incident in which A.W. reported a Black man, whom she later identified as Jordan, forced
entry into her home and raped her. A jury convicted Jordan of all three charges in
September 2015, and the district court sentenced him to serve 620 months in prison.
Jordan directly appealed, which resulted in a reversal of the convictions and a
remand for a new trial. State v. Jordan, No. 116,669, 2018 WL 385695 (Kan. App.)
(unpublished opinion), rev. denied 307 Kan. 991 (2018). At trial, Jordan claimed A.W.
agreed to exchange consensual sex for drugs and money, but she became motivated to lie
about what had occurred after Jordan backed out of the agreement. The panel concluded
that the district court committed reversible error by excluding evidence of A.W.'s prior
drug use and agreed with Jordan's argument that the evidence was integral to his theory
of defense. 2018 WL 385695, at *10.
After the remand, and before the second trial, the State filed motions in limine
regarding admission of evidence related to the Kansas rape shield law and A.W.'s prior
drug use. The district court considered these motions at a pretrial hearing and ruled that
the panel's decision required allowing "at least some" evidence of A.W.'s prior drug
usage. Regarding evidence of A.W.'s prior sexual conduct, the court ruled that evidence
would be allowed "specifically to rebut any proof that the State will bring, and the issue
is really whether or not there was sex within the previous 72 hours." As support for this
ruling, the court relied on State v. Perez, 26 Kan. App. 2d 777, 781, 995 P.2d 372 (1999)
(discussing factors to consider when deciding whether prior sexual conduct of a
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complaining witness has relevance), rev. denied 269 Kan. 939 (2000). The court noted it
would specifically allow A.W.'s friend and former sexual partner, B.R., to testify about
"sex within the preceding 72 hours," but would revisit the ruling for evidence "any
broader than what we have already discussed."
The prosecutor refers to the burden of proof during voir dire.
The trial began in December 2019. During voir dire, the prosecutor discussed the
State's burden of proof several times, first informing the potential jurors that "[t]he State
carries the burden of proof in a criminal justice system, and that burden is quite high. It's
beyond a reasonable doubt." Later, the prosecutor stated:
"The standard of proof in this case is beyond a reasonable doubt, and that means what it
sounds like. I can't give you a definition. It's something that's reasonable. My youngest
daughter has a tendency to snitch things in terms of food. You know, here recently we
come home, there's a frozen pizza in the oven, and she's the only one home.
Circumstantially, we should be able to infer that she was the person who made the frozen
pizza. Despite the fact that we assure her she's not in trouble, we ask about the pizza. She
doesn't know who put that pizza in. Now she plans on eating a piece of that pizza, but she
didn't put it in. Maybe the dog put that pizza in, but that's probably not a reasonable
explanation. It's the things that are reasonable. Okay. Everybody kind of have that
concept? It's not that there isn't some other potential explanation. You know, somebody
broke into our house, decided they were hungry, were startled when they realized she was
there and left before, and she just happens to discover a pizza in the oven. Okay. Maybe it
happened. Probably not very reasonable under the circumstances, but I guess it's possible.
That's what we're thinking of when we talk about beyond a reasonable doubt, that there's
no other reasonable explanation as to the set of facts."
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A.W. testifies at trial.
A.W. testified that she lived alone in her home in February 2013 and was about
three months pregnant at the time. On February 5, she returned home from work around
11 or 11:30 p.m. with her cousins. She talked with her cousins for about an hour until
they left and then she prepared for bed. After A.W. turned the lights off and locked the
front door, she laid down in her bed. Before falling asleep, A.W. heard footsteps on the
front porch. She got out of bed to turn on the light and find her phone so she could call
911. While dialing, A.W. heard banging on the front door like someone was trying to get
inside. After about four or five bangs, she heard the door open. Shortly after the 911 call
connected, A.W. saw a Black man wearing a hoodie and holding a knife enter her
bedroom, and she quickly hung up the phone.
A.W. said the man asked if she was calling 911, so she lied and said no because
she was scared. The man told her to get on the bed, and A.W. again complied out of fear.
The man then got on top of her and began putting his hand up her shirt, meanwhile laying
the knife by her head. The man took his pants off and penetrated A.W.'s vagina with his
penis. A.W. could not recall how long the assault occurred or if he ejaculated. She
remembered pleading with the man "'don't hurt me,'" but he did not respond. A.W.
testified that at no point did she consent to sexual intercourse with the man. She also
denied having consumed any alcohol or drugs in the three days before the assault, nor did
she agree to exchange sex for drugs or money. However, she admitted using meth "once
or twice years and years before that, but that was it."
When the man was finished, he covered A.W.'s face with a blanket and told her
"'don't look at my face.'" A.W. laid in her bed and heard the man's footsteps leave the
bedroom. Once A.W. heard footsteps on the front porch, she jumped out of bed and
found her phone to call 911 again. She got her purse and dog and went outside to a truck,
locking herself inside and called 911. A.W. told the dispatcher on the call that "some
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Black guy with a big knife just kicked in my front door," came into her bedroom, told her
to put her phone down, and raped her. The dispatcher asked her if she knew who the man
was, and A.W. responded, "No, I don't."
After the police arrived, A.W. was transported by ambulance to the hospital. Once
there, medical personnel performed a DNA test and a pelvic exam on A.W. After leaving
the hospital, A.W. went home with her father. Later in the day, A.W. went back to her
house to move out. While there, two of her neighbors came by to talk. A.W. told them
what had happened and that her assailant was a Black male, and one of the neighbors
mentioned the name "Dewey." At one point, a detective also came over to speak with
A.W. and presented her with photos to identify the assailant. A.W. identified her attacker
on the photo line-up and gave the detective the name "Dewey." At trial, A.W. identified
Jordan as "[t]he person that broke into the house."
A.W. testified that she was in a physical relationship with B.R. "awhile before" the
incident. She said she had not seen B.R. for "[p]robably a good three weeks" leading up
to the incident. On cross-examination, A.W. explained that she believed B.R. was the
father of the child she was carrying at the time of the incident.
Officers respond to the 911 call and investigate.
Around 1:58 a.m., a 911 call was reported over dispatch that a Black male had
broken down a door and was armed with a knife. Corporal Joseph Johns responded to this
call and was the first to arrive at the scene. Upon arrival he contacted A.W., who was still
locked inside the truck. At first, A.W. did not want to speak with Corporal Johns and
appeared to be scared. Eventually, she told him that "an unknown [B]lack male had
kicked in her front door and forced . . . her to the back bedroom with a knife and raped
her." A.W. described the man as approximately six feet tall and wearing black sweatpants
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and a hoodie. Corporal Johns testified A.W. did not appear to be under the influence of
alcohol or methamphetamine.
Officer Adam Hales responded to the 911 call as well. When he arrived at the
address, Corporal Johns had already arrived, and A.W. was exiting the truck. As Hales
approached, he saw that A.W. was hugging her stomach with her hands and bent over
slightly. She was very upset and was crying. Hales could not recall if A.W. gave a height
or weight, but she described her attacker as a Black male wearing a grey hoodie and
black sweatpants. After helping other officers secure the scene, Hales followed the
ambulance transporting A.W. to the hospital.
At the hospital, Officer Hales interviewed A.W. He described A.W.'s demeanor as
"a shocked state" and "[a]lmost in a daze . . . [or] detached." Hales did not believe A.W.
was under the influence of alcohol or methamphetamine. Hales said A.W. told him that
after her cousin left around 1:30 a.m., she shut off the lights and laid down in bed. About
10 minutes later, she heard footsteps on the front porch and a loud banging that sounded
like someone was trying to break down the door. She got out of bed to look and saw the
front door moving forward violently, as if someone's body was being thrown against it.
Hales said A.W. stated she retreated into her bedroom to grab her phone and
dialed 911. When she looked back to the doorway, she saw a Black male subject wearing
a grey hoodie entering the bedroom. He was trying to pull the hood down to hide his face
and was holding a knife. The man asked A.W. if she was calling 911, so she lied and said
no because she was scared he would hurt her. The man walked over, grabbed the phone,
and ended the call to dispatch. He forced her onto the bed and buried his head into her
right shoulder and placed the knife over her head. The man began kissing her and pulled
down her pants. He then pulled down his pants and raped her for about 10 minutes. As
the man raped A.W., he asked her, "'you like that baby?" A.W. told him no and pleaded
for him to get off her and not to hurt her. The man ignored her and eventually stopped,
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but she was not sure if he had an orgasm or not. The man got up and placed a blanket
over her head.
A.W. told Hales the man pulled his pants back on and began walking around the
house. A.W. just laid there, but she could hear him walking around the house in and out
of the bedroom. At one point, the man asked about a red rag, but A.W. did not know what
he was talking about. He also asked about some property she had. The man asked if she
was going to call the cops, and A.W. said no because she was scared he would kill her.
After about 10 or 15 minutes of lying there, A.W. got up and got dressed. She grabbed
her purse and went outside and locked herself in her truck and called 911.
Officer Hales had A.W. complete a written statement based on her verbal
statements. In the written statement, A.W. explained:
"It was around 1:30 a.m. this morning that my cousin left my house. Right after he left I
shut all my lights off and went and layed [sic] down. Not even 10 mins. later from laying
down I heard footsteps on my front porch and a big bang like someone was breaking
down my door[.] I heard the bang 4 times. I went to grab my phone[.] I dialed 911 [and]
that is when he was walking into my bedroom. He asked me if I was calling 911[,] I said
no. I seen he had a knife in his hand, I asked him please don't hurt me. He was a [B]lack
male. He then got on top of me. He said it felt good. I was scared the whole time. He said
he wasn't going to hurt me. When he got off of me he took the blankets [and] covered my
face with them [and] said don't look at my face[.] He walked in [and] out of bedroom like
3 different times looking for a rag he had. He had a rag he found it on my bed. After that
that is when he had left. I then got up[,] grabbed my shoes [and] my purse [and] went out
backdoor [and] got in my cousin's vehicle [and] called 911. He also asked if I had any
money[,] I told him no."
Detective Heather Smith met with A.W. the day after the incident. A.W. told
Smith she did not know the man and had never seen him, only giving a general
description that he was a Black man. A.W. provided the detective with the name Dewey,
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which was provided by the neighbor. Based on that information, Smith identified Jordan
as a suspect and produced a photo line-up.
Debra Higgins performed the SANE/SART examination on A.W. the morning of
the incident. When Higgins began the exam, A.W. seemed anxious. A.W. was crying at
times and did not make a lot of eye contact, instead looking down at her hands. A.W. told
Higgins that she was laying in her bed around 1:30 a.m. and heard a loud banging on her
door. She got out of bed to find her cell phone and attempted to call 911. By that point,
the man was already in her bedroom. He pushed A.W. onto the bed, pulled down her
pants, and started having sex with her. A.W. tried to push him off and asked him not to
hurt her, to which the man moved a knife up towards her head. When the man was
finished, he placed blankets over her face. When A.W. felt safe to get up, she put her
clothes back on, found her cell phone, and went outside to call 911. A.W. said she had
not showered or changed clothes since the incident. A.W. reported that she was 11 weeks
pregnant at the time.
During the physical examination, Higgins noticed an area of discoloration on
A.W.'s left inner thigh and some injury in her genital area. Higgins observed tenderness
and redness to both sides of the labia majora and a small abrasion with some
discoloration. The abrasion was very recent. According to Higgins, it was possible that
these injuries were a result of consensual sex. Higgins could not perform a speculum
exam because of the tenderness. However, Higgins performed a vaginal swab for DNA.
She also collected A.W.'s clothing, including her underwear and sweatpants.
Two KBI forensic analysts, who tested fingerprints from A.W.'s phone and the
DNA samples taken during the SANE/SART exam, testified as well. No identifiable
prints could be found on the phone. The DNA analysis revealed seminal fluid collected
from the rape kit consistent with Jordan's DNA.
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B.R. testifies on behalf of the defense.
B.R. testified that he met A.W. in September or October 2011 and that he and
A.W. "had a physical relationship, a drug relationship, all around." According to B.R.,
the relationship was "mostly using and having sex." He did not consider himself A.W.'s
boyfriend. B.R. said the first night he met A.W. they went to her house and got high and
had sex. This occurred every other day going forward as well. He found out A.W. was
pregnant the day of the incident, and she led him to believe that he was the father. After
the child was born, B.R. took a paternity test that confirmed he was not the father.
According to B.R., A.W. told him that a Black man broke into her home and raped
her, but she did not know who it was. B.R. said he had sex with A.W. a couple of days
before the incident. B.R. said they had "[f]orceful" or "aggressive" sex and that his penis
was pierced. He said he and A.W. used "a gram or more" of meth on the night of their
last sexual encounter two days before the incident involving Jordan.
On cross-examination, B.R. testified that Jordan was "like family." B.R. said he
spoke with Jordan's nephew several months after the incident, and during the
conversation, the nephew asked B.R. what his thoughts were. As B.R. began to respond,
defense counsel objected as to relevance, which the court overruled based on the
prosecutor's explanation that "it's to the motivation [of] his testimony here." The
following exchange occurred:
"Q. [Prosecutor] What were your thoughts?
"A. [B.R.] You want the truth?
"Q. The truth.
"A. I didn't think he did it because she's traded me sex for drugs before.
"Q. Objection.
"A. You asked for the truth.
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"THE COURT: All right. Sir, you have to stop and wait for a question to be
asked, and then you answer that question, okay?
"A. But I'm answering. He asked me what I thought. I'm telling you exactly what I
thought.
"Q. [Prosecutor] I asked what your response was.
"A. You asked what I was thinking when that conversation was come up.
"[Prosecutor]: I'll withdraw, Your Honor. I don't have any other questions for
[B.R.].
"THE COURT: All right. Question withdrawn."
On redirect, defense counsel asked if B.R. could remember his response when
speaking with Jordan's nephew about the incident. B.R. responded, "Like I said, I didn't
think he did it." Then, the following exchange occurred:
"Q. [Defense counsel] Okay, and why didn't you think he did it?
"[Prosecutor]: Objection pursuant to 60-447, specific instances of conduct
cannot be used to attack someone's character or proof for other content.
"[Defense counsel]: Your Honor, this isn't to character. This is his opinion, and
he asked him his opinion. I believe I'm entitled to ask him why.
"THE COURT: I agree. Overruled.
"A. [B.R.] This is why. Because like I said before, I met her while using drugs. I traded
her. I got her high to have sex. The defendant has never had an issue with getting a
woman to sleep with him.
"[Prosecutor]: Objection.
"A. [B.R.]: And I know this.
"[Prosecutor]: Relevance.
"THE COURT: You have to stop, sir.
"[Prosecutor]: Relevance. It's not responsive to the question.
"THE COURT: I agree, and I will sustain that objection.
"[Defense counsel]: I think that's all the questions I have. Thank you.
"THE COURT: Thank you."
10
Jordan testifies at trial.
Jordan testified on his own behalf. According to Jordan, on the night of the
incident he went outside to smoke a cigarette around 11:45 p.m. or 12:15 a.m.,
although he could not recall the exact time. He also had trouble remembering
things that happened because he was under the influence of methamphetamine that
night. Jordan saw A.W. on her porch smoking a cigarette, so he went over there to
see if B.R. was there. B.R. was a friend of Jordan's, and he had seen B.R. at A.W.'s
house a couple of times. Jordan said he had met A.W. two or three times before at
the gas station where she worked.
Jordan testified that he went to A.W.'s house to see where B.R. was or see
what he was doing. When he asked A.W. if B.R. was there, she said no. He then
asked if she smoked and got high, to which A.W. responded "yeah." A.W. then
invited Jordan inside. Once inside, Jordan sat on A.W.'s bed and asked if she
would like to smoke with him and she agreed. Jordan said he told A.W. he would
give her $50 worth of meth and $20 worth of dope to have sex, and she said yes.
Jordan said he got the meth out of his wallet and smoked it with A.W. He
and A.W. then had sex for about five minutes. Jordan described A.W. as "easy."
A.W. did not appear to be sore or irritated during the sexual intercourse and never
conveyed that it hurt. After that, Jordan got up because he knew he did not have
the money to pay her and because he was thinking about B.R. Jordan did not want
B.R. to be angry at him, so he got up and walked out the door without saying
anything. After he got about 20 or 30 feet away from the house, Jordan realized he
left his wallet inside. A.W. had shut the door and Jordan said it was "loose," so he
pushed it in with his hand and went to grab his wallet from the side of A.W.'s bed.
According to Jordan, she then asked him if he was going to tell B.R. Jordan
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responded that he would. A.W. said nothing but seemed upset based on "[h]er face
impression."
The parties make closing statements.
After both parties rested and the jury instructions were finalized, the attorneys
began their closing statements. Near the beginning of his statements, the prosecutor
explained:
"You have heard certain witnesses throughout the course of this trial say I
believe. It's my opinion. Their opinion is not relevant. My opinion is not relevant. Ms.
Crane's opinion is not relevant. The only relevant opinion as to the decision in this case is
you, the jurors, in this situation."
The prosecutor also referenced "the common sense instruction," which
"says it is for you to determine the weight and credit to be given to the testimony of each
witness. You have a right to use common knowledge and experience in regards to the
matter upon which a witness has testified. That's the common sense instruction, ladies
and gentlemen. You don't get to check your life experiences at the door. I sometimes call
that you get to use your BS meter in terms of weighing, you know, who's being accurate,
who has presented the most accurate and most reasonable, the only reasonable
explanation of these facts."
In addition, when discussing the "Who," the prosecutor explained it would
refer to A.W. as a "victim." Later, the prosecutor remarked that "[t]hey did a
SANE/SART exam on this young lady, an exam that I will tell you has to be one
of the most invasive procedures you could ever have. It's not something that you
voluntarily go in and do." The prosecutor also discussed the location of the
incident, explaining:
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"It was [A.W.]'s home. That's one of the elements that you're going to have to consider
that, you know, how was this property used. Somebody lived there. Somebody's dwelling
in it. It was someplace where somebody should feel safe. What happened as a result of
this? She no longer felt safe in that residence. Ladies and gentlemen, we submit to you,
after that exam, what did she do? Every witness was consistent including the defense
witness that came here but that would live across the street. She moved out. She didn't
stay in that place, you know. She didn't feel safe there."
Later, when discussing the "Why," the prosecutor told the jury to
"[l]ook at the physical evidence here, ladies and gentlemen. She had trauma to her genital
areas. They tried to present [B.R.] again—Mr. Wonderful [B.R.], well, you know, I'm a
stud and I had sex with her for two hours and tied her up and it was aggressive and my
pierced penis, 48 hours earlier, and I was with another woman the night that [A.W.] was
assaulted and she told me she was assaulted, but you know, that's what caused that."
During rebuttal, the prosecutor responded to defense counsel's remarks
about A.W.'s "motive" to fabricate the allegations, remarking:
"What is the motive for [A.W.] to tell the police to tell you the trier of fact that I was
sexually assaulted in my own home? They would like you to believe that that was done
so that her boyfriend, [B.R.], wouldn't find out about it. Did she minimize her connection
to [B.R.]? You be the judge. You know, he's quite a peach. You really want to be
connected to that guy. In [B.R.'s] word[s]—what was your relationship with [A.W.]? He
looked at her as someone I had sex with. That's all it was. There was nothing else to it.
Some place I could crash. A woman I could use."
Later, the prosecutor remarked that the defense sought to "bolster" Jordan's
version of the events with B.R.'s testimony, referring to B.R. as "the stud with the
pierced penis . . . who quickly let us know very quickly in my opinion that
[Jordan] didn't do it. He wouldn't have to . . . pay somebody for sex."
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Lastly, the prosecutor closed by going back to "the Who." The prosecutor
stated:
"You know, sometimes we see in these defenses let's blame the police, crappy police
work, let's blame the victim. In this instance, they're trying to point you as evil as she
could be, and I'm going to leave with you kind of a scenario to think about.
"When I was in college, I had a very dear friend of mine who she was HIV
positive. And back in the '90's the question was how did you acquire it. And her response
consistently was you think of the worst case scenario of how you could acquire this
disease, because in the end it doesn't matter."
The case is submitted to the jury.
During deliberations, the jury asked whether a toxicology report or blood draw
was taken the night of the incident. By agreement of the parties, the district court referred
the jury back to Instruction No. 1, which advised, "Please refer to Instruction Number 1.
Any decision reached by the jury must be based off of the evidence submitted to the
jury."
The jury returned a guilty verdict on all three charges. The district court later
sentenced Jordan to 272 months in prison on the rape charge, 32 months in prison on the
aggravated burglary charge, and 6 months in jail on the criminal damage to property
charge. The court ran Count 2 consecutive to Count 1 but ran Count 3 concurrently for a
total controlling sentence of 304 months with lifetime postrelease supervision.
Jordan timely appealed.
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I. The district court did not err by excluding relevant evidence.
Jordan first argues that the district court violated his constitutional right to a fair
trial by excluding relevant evidence integral to his theory of defense. When reviewing
whether a district court violated a defendant's right to present their theory of defense on
appeal, this court applies a multistep analysis to the district court's decision whether to
admit or exclude evidence.
"[T]he first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence
that is probative and material. On appeal, the question of whether evidence is probative is
judged under an abuse of discretion standard; materiality is judged under a de novo
standard. Review of whether a trial court erroneously excluded evidence that is integral to
the defendant's theory of his or her defense is de novo.
"Material evidence tends to establish a fact that is at issue and is significant under
the substantive law of the case. Probative evidence requires only a logical connection
between the asserted fact and the inference it is intended to establish.
....
"A criminal defendant has the right, under both the Kansas and United States
Constitutions, to present the theory of his or her defense, and the exclusion of evidence
that is an integral part of that theory violates the defendant's fundamental right to a fair
trial. In order to constitute error, the excluded evidence supporting the defense theory
must be relevant, admissible, and noncumulative. A defendant's right to present evidence
in support of a defense is subject to certain restraints: the evidence must be relevant, and
evidentiary rules governing admission and exclusion of evidence are applied. [Citations
omitted.]" State v. Robinson, 306 Kan. 431, 435-36, 394 P.3d 868 (2017).
To convict Jordan of rape, the State needed to prove that he engaged in
nonconsensual sexual intercourse with A.W. when she was overcome by force or fear.
K.S.A. 2012 Supp. 21-5503(a)(1)(A). Likewise, the State charged Jordan with aggravated
burglary, which required proof that he knowingly entered A.W.'s residence without
permission and with the intent to commit a felony—i.e., the rape—when one or more
15
persons was present. See K.S.A. 2012 Supp. 21-5807(b). Lastly, the State charged Jordan
with criminal damage to property, which required proof that he unlawfully and
knowingly damaged the front door, door jam, and lock of the property and caused less
than $1,000 in damage. K.S.A. 2012 Supp. 21-5813(a)(2) and (b)(3).
The parties agree that the main dispute comes down to whether the sexual
intercourse was consensual. As in the first appeal, Jordan's theory of defense was that
A.W. agreed to have consensual sex with him in exchange for drugs and money but
became motivated to lie after he went back on this arrangement. He contends that the
district court's exclusion of evidence showing A.W. exchanged sexual favors with B.R.
for drugs prevented him from further establishing her drug addiction, which in turn
suggests she engaged in the same conduct with Jordan.
Jordan's evidentiary challenge stems from a specific ruling by the district court
sustaining the State's objection to testimony offered during defense counsel's redirect
examination of B.R.
On cross-examination, the prosecutor asked B.R. about a conversation he had with
Jordan's nephew months after the incident, during which the nephew asked B.R. "[w]hat
were [his] thoughts." Defense counsel objected as to relevance, and the prosecutor
responded the question went "to the motivation [for B.R.'s] testimony." The district court
overruled this objection and directed B.R. to answer the question. When B.R. answered
that he "didn't think [Jordan] did it because [A.W.] traded me sex for drugs before," the
prosecutor lodged an unspecified objection. After B.R. explained that he was truthfully
answering the question of "what I was thinking when that conversation [had] come up,"
the prosecutor said, "I'll withdraw, Your Honor. I don't have any other questions for
[B.R.]." The court then stated, "All right. Question withdrawn."
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Jordan specifically points to B.R.'s testimony on redirect, and is now claiming the
district court improperly excluded the testimony. The transcript shows that defense
counsel asked B.R. on redirect about his response to the nephew's question, to which B.R.
explained, "Like I said, I didn't think he did it." When defense counsel further inquired
"why didn't you think he did it," the prosecutor objected because "pursuant to [K.S.A.]
60-447, specific instances of conduct cannot be used to attack someone's character or
proof for other content." Defense counsel responded, "this isn't to character. This is his
opinion, and he asked him his opinion. I believe I'm entitled to ask him why." The district
court agreed and stated the objection was overruled. B.R. then answered, stating, "[t]his
is why. Because like I said before, I met [A.W.] while using drugs. I traded her. I got her
high to have sex. The defendant has never had an issue with getting a woman to sleep
with him." The prosecutor again objected for relevance and for being nonresponsive, and
the district court stated, "I agree, and I will sustain that objection."
The district court did not exclude B.R.'s testimony that he exchanged drugs for sexual
favors with A.W.
The State correctly asserts the record does not establish that B.R.'s testimony was
excluded. On cross-examination, the prosecutor asked what B.R.'s thoughts were.
Defense counsel objected to the question, but the objection was overruled. B.R. answered
the question by stating, "I didn't think he did it because [A.W.] traded me sex for drugs."
The prosecutor made an unspecified objection to the answer to his question. After some
interplay between the judge, the prosecutor, and the witness, the prosecutor essentially
abandoned the issue by stating, "I withdraw."
It is unclear from the record what the prosecutor meant when he stated, "I
withdraw." The judge presumed that the prosecutor withdrew the question, which
resulted in the contested answer by B.R. Regardless, there is nothing in the record to
show that the judge issued an admonishment to the jury to disregard B.R.'s answer. There
17
is nothing in the record to show that either party requested the court to give such an
admonishment. Clearly B.R.'s answer was before the jury for their consideration, and the
parties seem to agree that B.R.'s cross-examination response was never excluded.
Jordan argues that the district court erred when it excluded similar evidence that
was elicited on questioning by defense counsel on redirect. Counsel asked B.R., "Okay,
and why didn't you think he did it?" The prosecutor objected to the question, defense
counsel responded, and the judge overruled the objection. B.R. answered, "[t]his is why.
Because like I said before, I met [A.W.] while using drugs, I traded her. I got her high to
have sex. The defendant has never had an issue with getting a woman to sleep with him."
The prosecutor objected on the grounds of relevance, and the judge sustained the
objection.
Jordan's argument assumes that when the district court sustained the relevance
objection, it excluded all of B.R.'s answer including the statement that the victim and
B.R. had previously traded sex for drugs. A reading of the record suggests otherwise.
In answering defense counsel's question, B.R. offered his statement concerning
trading sex for drugs with the defendant. That testimony had previously been given, and
the prosecutor had failed to secure a ruling from the court in objecting to the testimony.
B.R.'s statement was already in front of the jury, there was no reason for the prosecutor to
object to the testimony being given a second time, and the prosecutor did not raise an
objection when B.R. made the statement. It was only after B.R. made the gratuitous
statement concerning Jordan's success in having women sleep with him that the
prosecutor lodged the relevance objection. That statement was clearly irrelevant, and the
district court was correct in sustaining the objection. Additionally, the court never gave,
and neither party requested that the court give, the jury an admonishment to disregard
B.R.'s testimony.
18
Jordan argues that an important part of his defense was showing that A.W.
previously used drugs and traded sex for drugs. Jordan got that opportunity. B.R. testified
concerning A.W.'s drug use. In response to a question asked by the prosecutor and a
question by defense counsel, B.R. testified that A.W. had a propensity to trade sex for
drugs. Both parties discussed B.R.'s testimony and A.W.'s drug use in closing arguments.
Jordan was not denied an opportunity to present his defense. The evidence which he
claims established his defense was never excluded. It was before the jury to consider
against all the other evidence presented and to give it whatever credibility it believed the
evidence merited.
II. The prosecutor did not err by making improper statements.
Jordan next makes several claims that the State made improper statements of law
and fact during voir dire and closing arguments. He argues the prosecutor erred by: (1)
defining beyond a reasonable doubt during voir dire and closing arguments as having no
other reasonable explanation; (2) informing the jury that the witnesses' opinions were not
relevant; (3) portraying A.W. as a "victim" based on the hardships she endured and
inflaming the passions of the jury; and (4) making sarcastic remarks and offering a
personal opinion about B.R.'s credibility.
The State disagrees with Jordan's characterization of these comments as improper
and asserts mainly that these instances are taken out of context. Alternatively, the State
argues any error for making these comments is harmless because the jury instructions
properly informed the jury to disregard statements not supported by evidence and because
the evidence of Jordan's guilt is overwhelming.
19
Standard of review
As both parties recognize, the Kansas Supreme Court considers this type of claim
under the term "prosecutorial error." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060(2016).
"To determine whether prosecutorial error has occurred, [this] court must decide whether
the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to
conduct the State's case and attempt to obtain a conviction in a manner that does not
offend the defendant's constitutional right to a fair trial. If error is found, [this] court must
next determine whether the error prejudiced the defendant's due process rights to a fair
trial. In evaluating prejudice, this court simply adopts the traditional constitutional
harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18, 87 S. Ct. 824,
17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if the State can
demonstrate 'beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.' [Citation omitted.]"
Sherman, 305 Kan. at 109.
See also State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019).
The statutory harmlessness test also applies to prosecutorial error, but when
analyzing both constitutional and nonconstitutional error, appellate courts only need to
address the higher standard of constitutional error. Sherman, 305 Kan. at 109.
Although Jordan did not object to any of the prosecutor's statements at trial, that
does not preclude review by this court. Appellate courts will review a prosecutorial error
claim based on a prosecutor's comments made during voir dire, opening statement, or
closing argument even without a timely objection, but the court may figure the presence
or absence of an objection into its analysis of the alleged error. State v. Butler, 307 Kan.
831, 864, 416 P.3d 116 (2018). Moreover, a misstatement of controlling law must be
20
reviewed on appeal, regardless of a timely objection at trial, to protect a defendant's right
to due process. When a misstatement of controlling law is deliberately made, it is outside
the considerable latitude given to prosecutors during their arguments. State v. Gunby, 282
Kan. 39, 63, 144 P.3d 647 (2006); see also State v. Magallanez, 290 Kan. 906, 915, 235
P.3d 460 (2010) (misrepresentation of burden of proof in closing argument).
The prosecutor did not err when it explained reasonable doubt.
The Kansas Supreme Court has held that efforts to define reasonable doubt
amount to error when they lead to a misstatement of law. State v. Garcia-Garcia, 309
Kan. 801, 815, 441 P.3d 52 (2019). As an example, a prosecutor's remark that
"'[r]easonable doubt means if you are going to say these men are not guilty of something,
you have to give a reason for it'" constituted error because it implied that a jury must find
the defendant guilty unless it could articulate a reason for acquittal. State v. Banks, 260
Kan. 918, 927, 927 P.2d 456 (1996); see also State v. Walker, 276 Kan. 939, 955-56, 80
P.3d 1132 (2003) (Finding error where district court instructed the jury "'that a reasonable
doubt is just what the words themselves imply—a doubt founded on reason. It is such a
doubt as a juror is able to give a reason for.'") (citing Banks, 260 Kan. at 927). Likewise,
a prosecutor's remark during closing argument defining reasonable doubt as "'common
sense'" would be improper because that definition leads the jury to believe it can convict
by using a lesser burden of proof. State v. Mitchell, 269 Kan. 349, 361, 7 P.3d 1135(2000).
In Garcia-Garcia, the defendant challenged the prosecutor's explanation during
voir dire that reasonable doubt was "'kind of a two-part test. First you have to determine
if you have any doubt . . . . And then you have to determine if that doubt is reasonable.'"
309 Kan. at 814. The Kansas Supreme Court found no error in this statement because it
"merely echoed . . . [i.e.] did not alter or lower the State's burden," a conclusion that was
"reinforced by the prosecutor's statements immediately following the complained-of
21
remark that correctly characterized the State's burden and emphasized the prosecutor
could not define it for the jury." 309 Kan. at 817.
Here, Jordan contends the prosecutor misstated the law like in Banks and Walker
by defining reasonable doubt in terms of being "the most reasonable explanation" of the
facts. In particular, he points first to a hypothetical scenario offered during voir dire to the
prospective jurors about the prosecutor finding his young daughter at home alone with a
frozen pizza in the oven. The prosecutor explained:
"Maybe the dog put that pizza in, but that's probably not a reasonable explanation. It's the
things that are reasonable. Okay. Everybody kind of have that concept? It's not that there
isn't some other potential explanation. You know, somebody broke into our house,
decided they were hungry, were startled when they realized she was there and left before,
and she just happens to discover a pizza in the oven. Okay. Maybe it happened. Probably
not very reasonable under the circumstances, but I guess it's possible. That's what we're
thinking of when we talk about beyond a reasonable doubt, that there's no other
reasonable explanation as to the set of facts." (Emphasis added.)
Then during closing arguments, the prosecutor was discussing the jury's ability to
use "common sense" in considering the evidence offered and concluded that point by
stating, "I sometimes call that you get to use your BS meter in terms of weighing, you
know, who's being accurate, who has presented the most accurate and most reasonable,
the only reasonable explanation of these facts." (Emphasis added.)
This case is similar to the recent decision in State v. Kanatzar, No. 119,399, 2020
WL 593965 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. 1044 (2021).
In that case, the prosecutor asked the prospective jurors during voir dire if they could
have doubt and still find the defendant guilty. Some jurors responded that they would
want to have personally witnessed an act to be convinced beyond all doubt, to which the
prosecutor asked if anyone knew why he could not give them what they wanted. One
22
juror replied: "'If you see the crime, you're going to be a witness and can't be on the
jury." The prosecutor agreed and explained that "'[t]hat's why the standard isn't beyond
all doubt. That's why it is beyond a reasonable doubt. So you can have doubt and still find
a person guilty.'" 2020 WL 593965, at *9. The panel concluded the prosecutor's
statements were not error because they "merely distinguished beyond a reasonable doubt
from beyond all doubt." 2020 WL 593965, at *10 (citing Garcia-Garcia, 309 Kan. at
814).
As the State correctly notes, the prosecutor's comments here were more like the
statements in Garcia-Garcia because the prosecutor was accurately explaining the
difference between beyond all doubt and beyond a reasonable doubt. By explaining to the
jury that the evidence must support a reasonable explanation of the facts, the prosecutor
accurately explained how to apply the State's burden to both theories of the case. In other
words, the jury could have doubt of the State's theory of the case based on Jordan's
defense, but still find him guilty because that doubt was not reasonable. There is no error
as to this issue.
The prosecutor erred by informing the jury that witness opinions were not relevant.
On this point, Jordan asserts the prosecutor misstated the law when it opened its
closing statements by explaining:
"You have heard certain witnesses throughout the course of this trial say I
believe. It's my opinion. Their opinion is not relevant. My opinion is not relevant. Ms.
Crane's opinion is not relevant. The only relevant opinion as to the decision in this case is
you, the jurors, in this situation." (Emphasis added.)
Jordan contends this is a misstatement of law because K.S.A. 60-401(a) provides
that "'Evidence' is the means from which inferences may be drawn as a basis of proof in
23
duly constituted judicial or fact-finding tribunals, and includes testimony in the form of
opinion, and hearsay." (Emphasis added.) The State recognizes that the prosecutor's
comment is "problematic," but still contends it does not amount to error because the
prosecutor "seems to be" informing the jury to decide the verdict based on the facts. The
State's argument is unpersuasive because the prosecutor's statement directly contradicts
K.S.A. 60-401(a). As Jordan explains, the prosecutor's statement is especially
concerning, given that B.R.'s opinion about A.W.'s allegations featured prominently in
Jordan's defense. The prosecutor erred by informing the jury that witness opinions were
not relevant.
The prosecutor did not err by calling A.W. a victim or remarking on the defense strategy
but did err by inflaming the passions of the jury.
Jordan next claims the prosecutor erred by calling A.W. a "victim" four times
during closing arguments and structuring its argument to inflame the passions of the jury.
The prosecutor described the sexual assault exam as "an exam that I will tell you has to
be one of the most invasive procedures you could ever have. It's not something that you
voluntarily go in and do." The prosecutor then described how A.W. moved out of the
residence where the rape occurred because she "no longer felt safe." Finally, Jordan
points out how the prosecutor commented on defense counsel's strategy to "blame . . . the
crappy police work [and] blame the victim. In this instance they're trying to point you as
evil as she could be."
As support for his claim that the prosecutor improperly inflamed the passions of
the jury, Jordan relies on State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011), in which
the Kansas Supreme Court held, "[A] prosecutor crosses the line of appropriate argument
when that argument is intended to inflame the jury's passions or prejudices or when the
argument diverts the jury's attention from its duty to decide the case on the evidence and
controlling law." In reaching that conclusion, our Supreme Court recognized that asking
the jury to base its deliberations on sympathy for the victim or their family or otherwise
24
argue the impact of a crime on the victim or their family amounts to prosecutorial
misconduct. 292 Kan. at 67-68. More recently, the Kansas Supreme Court reaffirmed this
holding after Sherman updated the terminology for prosecutorial misconduct claims to
prosecutorial error. See State v. Nesbitt, 308 Kan. 45, 56-57, 417 P.3d 1058 (2018)
(finding error in prosecutor's comments referring to 100-year-old murder victim as a
"gift" or "treasure" to her family).
Regarding the prosecutor's use of the term "victim," we find no error. As the State
points out, Jordan provides no authority—nor does there appear to be any—where a
Kansas court has found that merely calling the complaining witness a victim amounted to
an improper statement. State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019) (failing
to support a point with pertinent authority or show why it is sound despite a lack of
supporting authority is like failing to brief the issue).
Likewise, there is no error in the prosecutor's remarks on the defense strategy. As
the State points out, the prosecutor's comments rebutted portions of defense counsel's
arguments, which Kansas courts have routinely found not to be error in similar cases. See
State v. Miller, 293 Kan. 535, 552, 264 P.3d 461 (2011); State v. Sinzogan, 53 Kan. App.
2d 324, 331, 388 P.3d 176 (2017) (no error where "the prosecutor was clearly
commenting on defense counsel's trial tactics and closing argument, not trying to
diminish the role of defense attorneys"). Here, defense counsel's closing argument
focused heavily on whether A.W. was telling the truth and questioning the investigation
conducted by the police in the case. The prosecutor's remarks in response to the defense
arguments were not error.
As for the prosecutor's remarks on the sexual assault exam and the fact that A.W.
no longer felt safe in her home, those comments amounted to prosecutorial error. The
State contends the prosecutor's comments on the sexual assault exam were not designed
to inflame the passions of the jury because calling the exam "invasive" is an accurate
25
description based on the evidence that was presented. The State asserts these comments
were fair inferences based on the evidence that demonstrated A.W.'s credibility.
However, the State did not merely recite the evidence in its closing argument but
emphasized that A.W. would not have "voluntarily" undergone the procedure. This
statement can be fairly characterized as designed to inflame the passions of the jury by
shifting their focus away from Jordan's guilt towards what A.W. had to endure because of
the incident. The same is true, to an even greater extent, for the comments about A.W. no
longer feeling safe in her home. The prosecutor erred when making these comments
because they improperly diverted the jury's attention from the evidence and sought to
inflame the passions of the jury.
The prosecutor did not err by making sarcastic remarks but did err by offering an
opinion on B.R.'s credibility.
Lastly, Jordan contends the prosecutor erred by sarcastically commenting on
B.R.'s credibility by calling him "Mr. Wonderful [B.R.]," a "stud," and "quite a peach."
Jordan also points out that the prosecutor stated that B.R. "quickly let us know very
quickly in my opinion that [Jordan] didn't do it. He wouldn't have to . . . pay somebody
for sex."
As support, Jordan notes that the Kansas Supreme Court has cautioned that
sarcasm "cannot be used in ways that distract the jury from its charge, demean the
adversarial trial process, or become unprofessional to the point of jeopardizing a verdict."
State v. Longoria, 301 Kan. 489, 526, 343 P.3d 1128 (2015). In addition, our Supreme
Court noted that "the line between appropriate and inappropriate sarcasm is thin," and
that sarcasm "should be thoughtfully tailored to specific arguments and evidence [and]
should not set the tone of the prosecutor's entire argument or rebuttal." 301 Kan. at 526.
Finally, Jordan asserts that the prosecutor improperly commented that he did not believe
B.R. was credible. State v. King, 308 Kan. 16, 30-31, 417 P.3d 1073 (2018)
(disapproving of comments by prosecutor on their personal opinion of a witness'
26
credibility "because such a comment is unsworn, unchecked testimony, not commentary
on the evidence of the case").
The prosecutor's remarks about B.R. did not cross the line to inappropriate
sarcasm. The prosecutor's sarcastic remarks during closing arguments did not "set the
tone" of the entire argument but were merely a small portion of refuting whether B.R.
provided credible testimony. The prosecutor continually discussed specific pieces of
evidence that supported the State's theory of the case, only briefly using sarcasm to
highlight B.R.'s testimony to show the weakness of that aspect of the defense's argument.
The prosecutor did err by stating his personal opinion as to part of B.R.'s
testimony. The State attempts to downplay the prosecutor's statement by asserting he was
actually saying that B.R. quickly offered his own opinion, and not that the prosecutor was
offering his own opinion. The fact is that describing B.R.'s testimony as being offered
"quickly" is an impermissible opinion because the prosecutor is alluding that B.R. was
not credible because of the way he testified. The prosecutor's remark crosses the line into
an impermissible opinion because the prosecutor is no longer merely discussing the
evidence but expressing an opinion on B.R.'s credibility.
Even though the prosecutor erred, the errors were harmless.
The prosecutor erred by: (1) erroneously informing the jury to disregard opinion
testimony, (2) inflaming the passions of the jury by directing their attention to the impact
on the victim, and (3) improperly stating an opinion on a witness' credibility. The State
bears the burden to show beyond a reasonable doubt that "the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., proves there
is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan.
541, 569, 256 P.3d 801 (2011) (citing Chapman, 386 U.S. 18).
27
The State points out that the district court accurately provided in Instruction No. 1
that "[s]tatements, arguments, and remarks of counsel are intended to help you in
understanding the evidence and in applying the law, but they are not evidence. If any
statements are made that are not supported by evidence, they should be disregarded." See
PIK Crim. 4th 50.070 (2012 Supp.). The court instructed on the State's burden of proof in
Instruction No. 2 as follows:
"The State has the burden to prove the defendant is guilty. The defendant is not required
to prove he is not guilty. You must presume that he is not guilty unless you are convinced
from the evidence that he is guilty. The test you must use in determining whether the
defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of
any of the claims required to be proved by the State, you must find the defendant not
guilty. If you have no reasonable doubt as to the truth of each of the claims required to be
proved by the State, you should find the defendant guilty." See PIK Crim. 4th 51.010
(2020 Supp.).
Juries are generally presumed to have followed the instructions given by the
district court. State v. Rogers, 276 Kan. 497, 503, 78 P.3d 793 (2003). Moreover, the
Kansas Supreme Court has recognized that the instructions given to the jury are a
relevant consideration when determining whether any misstatements by the prosecutor
had any effect on the verdict. See State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140(2014) ("[T]he trial court instructed the jury that it was to base its decision on the law and
the facts, and nothing suggests the jury did not follow that admonition. Although these
instructions do not give the prosecutor a free pass on misconduct, they are appropriate
considerations when evaluating whether a jury was misled."). It is presumed that the jury
followed Instruction No. 1 and disregarded any prosecutor's erroneous statements
complained of which were not supported by the evidence. In addition, the jury is
presumed to have followed Instruction No. 2 and held the State to its burden of proof as
instructed.
28
More importantly, there was substantial evidence of Jordan's guilt presented in this
case. Jordan's consent defense essentially relied on establishing that A.W.'s drug
addiction led her to agree to exchange sexual favors for drugs. Multiple witnesses who
interviewed A.W. after she reported the rape testified that she did not appear to be under
the influence of drugs or alcohol less than an hour after the incident. A.W. also denied
using meth before the encounter, either in the days before or the night of the incident. The
broken down door also contradicts Jordan's appearance in the house as being consensual.
A.W. also consistently provided the same story to witnesses. Given the totality of the
evidence presented at trial, any error resulting from the prosecutor's comments was
harmless.
III. Cumulative error does not require reversal.
Finally, Jordan argues cumulative error deprived him of a fair trial. This court
analyzes claims of cumulative error under a de novo standard. State v. Ross, 310 Kan.
216, 227, 445 P.3d 726 (2019). If there is no error or only a single error found, there is no
error to accumulate and therefore no basis to reverse a conviction. See State v. Gonzalez,
307 Kan. 575, 598, 412 P.3d 968 (2018); State v. Haberlein, 296 Kan. 195, 212, 290 P.3d
640 (2012).
The only errors established in this appeal are the three claims of prosecutorial
error for specific statements made during opening and closing arguments. To determine
whether cumulative error denied Jordan a fair trial, this court must examine these errors
in the context of the entire record, considering how the trial judge dealt with the errors as
they arose; the nature and number of errors and their interrelationship, if any; and the
overall strength of the evidence. State v. Hirsh, 310 Kan. 321, 345-46, 446 P.3d 472(2019). Since this court has already concluded that the prosecutor's erroneous statements
were individually harmless beyond a reasonable doubt, the only remaining consideration
is whether they collectively did not affect the outcome of the trial.
29
Under Hirsh, one of the items to consider is how the trial judge dealt with the
errors as they arose. In this case, the record reflects no objections were lodged when the
prosecutor made the comments in question. As a result, the trial judge was not required to
discuss any of the prosecutor's comments with the parties or in front of the jury. The
comments were made in three separate areas of the closing argument and were not
interrelated or supportive of the others. The comments were brief within the context of an
entire closing argument rather than matters that were highlighted or emphasized to the
jury. There was significant and overwhelming evidence supporting A.W.'s version of
events.
The three errors in question do not result in cumulative error. We find beyond a
reasonable doubt that the jury's verdict would not have changed even if the errors had
not occurred.
Affirmed.
30