State v. Villa-Juarez ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,826
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
PABLO VILLA-JUAREZ,
Appellant.
MEMORANDUM OPINION
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed May 21, 2021.
Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BURGESS, S.J.
BUSER, J.: Pablo Villa-Juarez appeals his jury convictions for rape, aggravated
criminal sodomy, criminal restraint, aggravated sexual battery, and aggravated
intimidation of a victim. He presents two issues for our consideration. First, he contends
the district court erred in dismissing his Sixth Amendment challenge to the venire.
Second, he asserts the district court erred in allowing cumulative testimony which
corroborated the victim's account of the charged crimes, improperly bolstering her
credibility with proof of her prior consistent statements. Upon our review, we find no
error and affirm the convictions.
1
FACTUAL AND PROCEDURAL BACKGROUND
S.M. provided the following testimony at trial regarding the sexual assault. S.M.
had known Villa-Juarez for about three months, had seen him occasionally, but did not
consider him a friend. Villa-Juarez called her in the evenings and texted her daily. One
evening in April 2018, Villa-Juarez contacted S.M. The couple exchanged texts and later
Villa-Juarez called S.M. and invited her to his residence. Villa-Juarez told S.M. that he
needed to talk to a friend. S.M. told Villa-Juarez that she did not want to talk and was
tired of his calls, but she agreed to meet with him so they could converse for the last time.
Villa-Juarez picked S.M. up and took her to his home. The couple went to his
bedroom to watch a movie and talk. While in the bedroom, Villa-Juarez placed his pet
mouse on S.M., and she asked him to remove it. He then started tickling her, and she
asked him to stop that as well. S.M. told Villa-Juarez that she was just there to talk and
was ready for their relationship to be over.
At this point, S.M. testified that Villa-Juarez pushed her down on the bed.
Although S.M. told Villa-Juarez that she did not want to have sexual relations with him,
he took off her pants and licked her vagina. S.M. tried pushing him back but was
unsuccessful. Villa-Juarez then put his penis inside of her. S.M. pleaded with him to take
her home. While Villa-Juarez was driving S.M. home, she told him that she was going to
call the police. Villa-Juarez threatened to call his friends and have them do the same
things to her that he just did if she called the police. When S.M. arrived home, she called
the police.
Officer Madeline Kolbeck with the Dodge City Police Department responded to
the call and interviewed S.M. Officer Kolbeck testified that S.M. reported that Villa-
Juarez had been texting her and wanted to speak to her. She told Villa-Juarez that she did
not want to speak with him because she had a boyfriend, but he begged her to talk to him
2
and said he was going through a rough time. S.M. said she agreed to meet, and Villa-
Juarez picked her up and drove her to his residence. Once there, he started kissing and
touching her, and she told him to stop and that she was only there to talk. Villa-Juarez
said okay, but then pushed her back onto the bed and began touching her again. S.M.
begged him to stop and asked him to take her home, but instead he had sex with her
against her will. Officer Kolbeck described S.M. as distraught during this encounter,
noting that her hands were shaking. Officer Kolbeck took S.M. to Western Plains
hospital.
Amanda Guthrie, a forensic nurse at Western Plains, examined S.M. Guthrie
noticed bruises on S.M.'s neck and legs. She did not note trauma in the genital area.
Guthrie's report was admitted in evidence. It included a narrative account by S.M. about
the incident. Guthrie also testified regarding what S.M. told her happened at Villa-Juarez'
residence.
Sergeant Lee Kolbeck with the Dodge City Police Department interviewed S.M.
as part of his investigation. The interview was video recorded and admitted into evidence
at trial. Sergeant Kolbeck recounted S.M.'s version of events, which was consistent with
her trial testimony.
Sergeant Kolbeck also interviewed Villa-Juarez. During the interview, Sergeant
Kolbeck asked him whether he had sex with S.M. Villa-Juarez admitted that he did have
sexual relations with her. When Sergeant Kolbeck asked Villa-Juarez whether S.M.
wanted to have sexual relations, he responded that she did not. Villa-Juarez explained
that he wanted to have sex because his girlfriend was pregnant and keeping him at a
distance. He admitted to kissing S.M., putting his mouth on her vagina, and inserting his
penis in her vagina. Villa-Juarez also admitted to Sergeant Kolbeck that he told S.M. that
he would have a friend do the same thing to her that he did if she talked to the police, and
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that he said this to scare S.M. Of note, Villa-Juarez specifically admitted to Sergeant
Kolbeck that he raped S.M.
The State charged Villa-Juarez with rape, aggravated criminal sodomy, aggravated
kidnapping, aggravated sexual battery, and aggravated intimidation of a witness or
victim.
At trial, Villa-Juarez denied raping S.M. According to him, while at his home, he
engaged in oral sex on S.M., and when he finished, she asked him to take off his clothes
and lay down on the bed. Villa-Juarez testified that S.M. then got on top of him and put
his penis in her vagina. He testified that it "wasn't a really good experience." He
explained that S.M. accused him of hurting her and that she hurt him as well by moving
against his penis in a way that caused him to lose his erection. According to Villa-Juarez,
this was why he suggested calling a friend—so that someone could finish having sex with
her after he lost his erection. Villa-Juarez confirmed that S.M. became angry at this
suggestion, began cussing at him, and asked him to take her home, which he did.
The jury found Villa-Juarez guilty on all counts, except as to the aggravated
kidnapping charge where the jury found him guilty of the lesser included offense of
criminal restraint. The district court sentenced Villa-Juarez to 147 months in prison with
a postrelease supervision term of 36 months.
Villa-Juarez appeals.
DENIAL OF MOTION TO DISMISS THE VENIRE
Villa-Juarez contends the district court erred in summarily denying his pretrial
motion to dismiss the venire. He asserts that the district court should have at least held a
hearing where the issue could have been further explored.
4
The Pretrial Proceedings
Eight days before trial, Villa-Juarez filed a motion to discharge the jury venire and
for a hearing regarding venire selection based on Sixth Amendment grounds. In his
motion, he alleged that Hispanics were systematically excluded from the jury venire in
Ford County. In support of the motion, defense counsel explained that for many years he
began tracking the composition of jury venires for cases in which he was the trial
attorney. His personal data collection consisted of counting as Hispanic all potential
jurors with names of Hispanic origin. Defense counsel reviewed potential jurors in 17
trials over a 10-year period. Included as exhibits to his motion were United State Census
data from Ford County and juror information sheets with designations showing which
potential jurors Villa-Juarez' counsel designated as Hispanic.
Defense counsel asserted that only 15.7% of the potential jurors in those 17 trials
were Hispanic. He contrasted this with the percentage of Hispanics in Ford County,
which he asserted was 51.2%. Defense counsel argued that the disparity was egregious.
Such a large discrepancy, he claimed, demonstrated systematic exclusion of Hispanics
from the jury selection process in Ford County in violation of Villa-Juarez' Sixth
Amendment rights.
The district court heard oral arguments on Villa-Juarez' motion just before voir
dire on the first day of trial. Finding insufficient evidence of systematic exclusion, the
district court denied the motion.
"[S]election of a petit jury from a representative cross section of the community is
an essential component of the Sixth Amendment right to a jury trial." Taylor v.
Louisiana, 419 U.S. 522, 528, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). "Restricting jury
service to only special groups or excluding identifiable segments playing major roles in
the community cannot be squared with the constitutional concept of a jury trial." 419 U.S.
5
at 530. The United States Supreme Court has set forth three factors that a person must
show to establish a prima facie violation of the fair cross-section requirement:
"(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2)
that the representation of this group in venires from which juries are selected is not fair
and reasonable in relation to the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion of the group in the jury-selection
process." Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
The parties agree that the first Duren factor has been satisfied—Hispanics are a
distinctive group in the community. See United States v. Shinault, 147 F.3d 1266 (10th
Cir. 1998). The parties disagree, however, whether Villa-Juarez presented sufficient
evidence to satisfy the other two elements of the Duren test.
In ruling on the motion, the district judge stated:
"I have had an opportunity to review the 168-page motion that was filed with
attachments. Based on my review of that, and the information that was provided therein, I
am going to deny the motion and find that there is no proof of systematic exclusion by
the Court on the issue that was raised."
The written journal entry of trial was also succinct, stating: "The Court finds
insufficient evidence of systematic exclusion and denies the defendant's motion."
It is unclear whether the district court ruled in Villa-Juarez' favor on the first two
Duren factors, whether it assumed the factors were satisfied for the sake of argument, or
whether it considered the two factors at all. It is clear, however, that the district court
considered and rejected Villa-Juarez' factual basis related to the third Duren factor—
whether underrepresentation was due to systematic exclusion of Hispanics in the jury
selection process.
6
Under the circumstances, for purposes of this appeal, we find that the first Duren
factor was met, and we will assume—without deciding—that the second Duren factor
was shown. Our review will be limited to a consideration of the third Duren factor:
Assuming that Hispanics are under-represented in the jury venire, has Villa-Juarez shown
that it is due to their systematic exclusion in the jury selection process?
Standard of Review
The parties each suggest a standard of review. Citing precedent from the Sixth
Circuit Court of Appeals, Villa-Juarez asserts that this issue presents a mixed question of
law and fact, which this court should review de novo. The State also proposes a de novo
standard of review, noting that the court did not make any factual findings which leaves
only a question of law.
The statute governing motions to discharge jury panels provides some guidance on
the proper standard of review. It sets forth a procedure for courts to evaluate these
motions. First, the court must consider whether the motion "state[s] facts which, if true,
show that the jury panel was improperly selected or drawn." K.S.A. 22-3407(2). If the
movant satisfies this step, then "it shall be the duty of the court to conduct a hearing."
K.S.A. 22-3407(3).
In the present appeal, although the district court did not conduct an evidentiary
hearing, it specifically considered a voluminous amount of evidence submitted by
defense counsel before finding that Villa-Juarez failed to make a sufficient showing of
systematic exclusion of Hispanics. Under these circumstances, our court is in just as good
a position as the district court to evaluate the motion and supporting materials de novo to
determine whether Villa-Juarez met his burden to show the systematic exclusion of
Hispanics in the jury-selection process.
7
Analysis
On appeal, Villa-Juarez contends the district court erred when it dismissed his
motion and found that he failed to provide sufficient evidence of systematic exclusion.
Assuming for the sake of argument that Villa-Juarez showed that the representation of
Hispanic people in jury venires is not fair and reasonable in relation to the number of
such persons in Ford County, he was then required to prove that the "underrepresentation
is due to systematic exclusion of the group in the jury-selection process." Duren, 439
U.S. at 364.
Villa-Juarez asserts that "proof of a statistical disparity, when shown to have
occurred over a period of time, satisfies the third prong of [the] test." The State replies
that Villa-Juarez must show more, specifically that the State actively discriminated in the
jury selection process. The State asserts that "nothing in Villa-Juarez's motion to the
district court or his brief for the Court of Appeals sheds any light on the cause of the
underrepresentation of Hispanic jurors." We agree.
The process of selecting eligible jurors in Kansas is governed by state law and
local rule. Under state law, jury lists shall be prepared from voter registration records,
driver's license records, census records, and records of State identification cards. K.S.A.
43-162. The district court of each county prepares a list of potential jurors from these
sources. K.S.A. 43-162; K.S.A. 43-157(b). Villa-Juarez' motion or brief does not inform
us as to how Ford County compiles its juror list. We note that the Sixteenth Judicial
District, which includes Ford County, states on its website that it primarily uses the list of
licensed drivers provided by the State. A computer randomly selects a pool of potential
jurors for each trial." https://16jd.kscourts.org/16th-Judicial-District/Jury-Duty. Our
Supreme Court has held that jury panels selected from lists of registered driver's license
holders is within the statutory mandates. State v. Mayberry, 248 Kan. 369, 381, 807 P.2d
86 (1991).
8
Villa-Juarez' argument on this element, in both his motion and appellate brief, is
that the alleged disparity shown by his data is prima facie evidence that Hispanics are
systematically excluded from the jury selection process. Importantly, he makes no
argument—good or bad—about the procedures employed by the State to summon
citizens of Ford County for jury duty.
Villa-Juarez' counsel has raised the same systematic exclusion argument before
this court in State v. Perez, No. 119,336, 2019 WL 1746762, at *3 (Kan. App. 2019)
(unpublished decision); State v. Perez-Mares, No. 119,632, 2019 WL 1746756, at *2
(Kan. App. 2019) (unpublished decision). We note Villa-Juarez' argument and evidence
in support of the third Duren factor was similar in those cases to this case on appeal. In
both prior cases, our court ruled that numerical evidence of disparity does not support an
inference that the State caused the underrepresentation by systematic exclusion of
Hispanics. There must be something more. Perez, 2019 WL 1746762, at *4-5; Perez-
Mares, 2019 WL 1746756, at *3.
As noted by our court in the Perez and Perez-Mares decisions, the United States
Supreme Court has had two lines of cases in which allegations of systematic exclusion
have been successful. First, are "'rule of exclusion'" cases, where the movant shows that a
cognizable group was totally excluded or only received token representation in the jury
selection process. Second, are cases where a movant shows substantial
underrepresentation and "'obvious opportunities for discrimination' [Citations omitted.]"
United States v. Test, 550 F.2d 577, 586 (10th Cir. 1976) (discussing the two lines of
cases).
Villa-Juarez' claim, like the claims in Perez and Perez-Mares, falls into the second
category. Assuming he showed substantial underrepresentation of Hispanics in Ford
County jury pools, he did not make any showing of opportunities for discrimination in
9
the process of selecting the jury venire. As a result, his argument on the third Duren
factor is legally insufficient.
On appeal, Villa-Juarez cites Duren in support of his argument that numbers alone
can satisfy the systematic exclusion requirement, quoting the following passage:
"Finally, in order to establish a prima facie case, it was necessary for petitioner to
show that the underrepresentation of women, generally and on his venire, was due to their
systematic exclusion in the jury-selection process. Petitioner's proof met this requirement.
His undisputed demonstration that a large discrepancy occurred not just occasionally but
in every weekly venire for a period of nearly a year manifestly indicates that the cause of
the underrepresentation was systematic—that is, inherent in the particular jury-selection
process utilized." 439 U.S. at 366.
In Duren, Billy Duren moved to dismiss the jury panel. Duren contended that his
right to trial by a jury chosen from a fair cross-section of his community was denied by
provisions of a Missouri law that granted women an automatic exemption from jury
service upon request. Duren showed that women were substantially unrepresented in jury
pools in Jackson County, Missouri. 439 U.S. at 359-61. The United States Supreme Court
found that the disproportionate exclusion of women "was quite obviously due to the
system by which juries were selected." 439 U.S. at 367. In other words, Duren
demonstrated that the underrepresentation was due to the operation of Missouri's law
which exempted women from jury service. 439 U.S. at 367.
Here, Villa-Juarez makes no showing that any jury selection procedure employed
by the State caused the alleged underrepresentation of Hispanics in Ford County. See also
Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 51 L. Ed. 2d 498 (1977)
(applying a test similar to Duren's in a race-based challenge to grand jury selection and
stating that the systematic exclusion prong required evidence of a "selection procedure
that is susceptible of abuse or is not racially neutral" [Emphasis added.]). Unlike Duren,
10
where women were substantially unrepresented in Jackson County, Missouri, jury
venires—which the Supreme Court attributed to Missouri's law granting women an
automatic exemption from jury service upon request—in Villa-Juarez' case, there is no
showing or suggestion that a statute, procedure, or practice has resulted in systematic
exclusion of Hispanics. For this reason, Duren does not support Villa-Juarez' claim.
Statistical presentation of disparity can establish the second Duren factor of a
prima facie case that the fair cross-section requirement under the Sixth Amendment was
not met. Duren, 439 U.S. at 364. But that evidence is not sufficient to establish the third
Duren factor. To establish the third Duren factor, there must be evidence in addition to
statistical disparity for courts to infer that the underrepresentation is due to systematic
exclusion of a distinctive group. Villa-Juarez did not make this showing. Accordingly,
the district court did not err in denying his pretrial motion to discharge the jury venire.
ADMISSIBILITY OF CORROBORATING TESTIMONY
Next, Villa-Juarez contends the district court erred by allowing cumulative
testimony from the responding officer (Officer Kolbeck), forensic nurse (Guthrie), and
lead detective (Sergeant Kolbeck), along with Guthrie's report containing S.M.'s narrative
and the recording of S.M.'s interview with Sergeant Kolbeck. Villa-Juarez asserts that
this evidence repeated S.M.'s version of events to the jury multiple times, which
improperly bolstered S.M.'s credibility with proof of her prior consistent statements.
Although Villa-Juarez candidly concedes that in State v. Kackley, 32 Kan. App. 2d 927,
935, 92 P.3d 1128 (2004), our court found that witness testimony repeating a rape
victim's account is permissible in rape prosecutions, he argues that Kackley was wrongly
decided and should be overturned.
For its part, the State presents a multifaceted response. First, it argues that Villa-
Juarez' claim that the district court erred in allowing the State to present evidence that
11
bolstered S.M.'s credibility was not preserved for appeal in the district court. Second, the
State cites State v. Washington, 226 Kan. 768, 602 P.2d 1377 (1979), and Kackley for the
proposition that evidence by other witnesses corroborating a rape victim's account of a
sexual assault is admissible evidence at trial. Finally, the State argues that even if the
district court erred, given Villa-Juarez' pretrial confession, any error was harmless.
Whether the district court erred in declining to exclude the evidence at issue is
reviewed for abuse of discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
At the outset, we question whether Villa-Juarez preserved this evidentiary issue
for appeal. At trial, Villa-Juarez objected to testimony from Officer Kolbeck, Guthrie,
and Sergeant Kolbeck, as well as to Guthrie's report and Sergeant Kolbeck's recorded
interview with S.M. On each occasion at trial the stated basis for the objection was that
the witness' testimony was "cumulative."
For the first time on appeal, however, Villa-Juarez argues that the witness'
repetition of S.M.'s account of the sexual assault was objectionable because:
"[t]he general rule is that prior consistent statements regarding the details of a sexual
assault are not a proper subject of testimony by a witness to whom a victim complained,
and the only exception is that the person to whom the victim complained, if the complaint
was made seasonably, may testify that the complaint was made and the circumstances
surrounding it. To the extent the Kackley Court declared otherwise, it erred, and should
be overruled."
Leslie Kackley was convicted of aggravated indecent liberties with a child under
the age of 14. At trial, the victim, the victim's mother, and the investigating officer all
testified regarding the victim's account of the incident. On appeal, our court noted that
Kansas courts have "embraced the general rule that prior statements of a witness,
consistent with his or her own testimony at the trial, are not admissible in corroboration
12
of the witness' testimony unless the witness has been impeached and then only for the
purpose of rehabilitation." 32 Kan. App. 2d at 935.
However, our court stated that there was an exception to this rule for rape
prosecutions, "where evidence of the complaint of the prosecutrix is permitted for the
express purpose of corroborating her testimony through the testimony of other
witnesses." 32 Kan. App. 2d at 935 (citing 65 Am. Jur. 2d, Rape § 61, p. 600-01). We
asserted that Kansas courts embraced this exception in Washington, 226 Kan. at 770.
Kackley, 32 Kan. App. 2d at 935. Our court extended the exception to prosecutions for
sexual abuse of children and found that the district court did not err in admitting the
corroborating testimony. 32 Kan. App. 2d at 935.
Returning to this case, on appeal Villa-Juarez glosses over the fact that he made a
different objection at trial than the one he now argues. At trial, Villa-Juarez objected to
the repetitious witness testimony as cumulative. But in Kackley, the defendant's objection
was more specific than simply a general objection to cumulative testimony. There, the
defense objection was based on Kansas caselaw generally holding that prior consistent
statements of a witness are not admissible to corroborate the witness' testimony unless
that testimony has been impeached. 32 Kan. App. 2d at 935.
Our Supreme Court has clearly addressed this situation wherein a defendant
objects to admission of evidence on one basis at trial and then asserts a new basis to
object on appeal: We have adopted a bright-line interpretation of K.S.A. 60-404. See
State v. Garcia-Garcia, 309 Kan. 801, 810, 441 P.3d 52 (2019) ("Under K.S.A. 60-404,
'"evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely
and specific objection to the alleged error at trial."'"). Moreover, it is not sufficient for a
defendant to object on one ground and argue another ground on appeal. 309 Kan. at 810("The contemporaneous objection rule is not satisfied by objecting on one ground at trial
and arguing another ground on appeal because it would undercut the statute's purpose.");
13
State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009)("[T]he trial court must be
provided the specific objection so it may consider as fully as possible whether the
evidence should be admitted and therefore reduce the chances of reversible error."
[Emphasis added.]); see State v. George, 311 Kan. 693, 701, 463 P.3d 469 (2020).
Villa-Juarez objected at trial to witness testimony reprising S.M.'s account of her
sexual assault because the evidence was cumulative. For the first time on appeal, he
objects because the testimony improperly bolstered S.M.'s credibility with proof of prior
consistent statements. Because Villa-Juarez' complaint is at variance with Kansas
statutory and caselaw procedural precedent, we find this issue is not preserved for
appellate review. See 311 Kan. at 704.
Finally, for the sake of completeness, we observe that if we were to consider the
merits of Villa-Juarez evidentiary issue and assume that admission of some or all of the
challenged evidence was erroneous, we would conclude that such error was obviously
harmless.
As summarized in the Factual and Procedural Background section of this opinion,
there was overwhelming evidence of Villa-Juarez' guilt in the sexual assault of S.M. At
trial, S.M.'s testimony established the elements of the crimes charged. As S.M. told Villa-
Juarez, she promptly reported the crimes to the police. The first officer to interview S.M.,
Officer Kolbeck, described her as distraught and teary, with her body and hands visibly
shaking. Shortly thereafter, Guthrie examined S.M. and noted bruises on her neck and
legs. Most importantly, during Sergeant Kolbeck's interview of Villa-Juarez, the
defendant candidly admitted to raping S.M. and described the sexual assault with details
that closely corroborated S.M.'s testimony at trial. Applying the federal constitutional
harmless error standard, we are convinced beyond a reasonable doubt that there is no
reasonable possibility that any claimed evidentiary errors affected the verdicts. See State
v. Williams, 306 Kan. 175, 203, 392 P.3d 1267 (2017).
14
Affirmed.
15