State v. Castillo ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,996
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JESUS G. CASTILLO,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed May 21, 2021.
Affirmed.
Jacob Nowak, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before MALONE, P.J., ATCHESON, J., and BURGESS, S.J.
PER CURIAM: Jesus G. Castillo was convicted of eluding police, two counts of
interference with law enforcement (obstructing official duty and filing a false report),
theft, and reckless driving after fleeing from police in his vehicle and then reporting that
his vehicle had been stolen during the time the crimes occurred. One of the two officers
who identified Castillo as the driver of the vehicle did so based on a traffic stop from
three months earlier. The district court ruled that the fact of the traffic stop could be
admitted into evidence for the purpose of establishing the officer's ability to identify
Castillo, but no details of the stop should be elicited. Castillo makes several evidentiary
arguments on appeal, including that the district court allowed impermissible K.S.A. 60-
1
455 evidence by allowing additional details of the traffic stop and that the court allowed
improper rebuttal evidence. Castillo also argues that the prosecutor's misstatement of the
facts constituted prejudicial error. While admission of the rebuttal evidence was likely
erroneous and the prosecutor's misstatement of the facts was clearly an error, these errors
were not substantial. The errors dealt with matters tangential to the case. Even their
cumulative effect is not enough to recommend reversal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Officers with the Shawnee County Sheriff's Office ran a license plate tag on a blue
Mazda 6 in the early hours of April 4, 2017. The tag came back as stolen. Officers
initiated pursuit but lost the vehicle. Deputy Colton Johnson was able to find it within one
or two minutes and continued the pursuit. Deputy Johnson was advised to terminate the
pursuit after a couple of minutes.
Shortly thereafter, Deputy Justin Dobler spotted the blue Mazda and engaged his
emergency lights. The vehicle fled. Deputy Dobler drove behind the vehicle until it
eventually came to a stop on a dead-end street after driving over spike traps. When the
occupants jumped out of the vehicle, Deputy Dobler recognized the driver as Castillo
based on prior contact with Castillo. Officers were unable to stop any of the vehicle's
occupants. Deputy Johnson arrived at the scene. He estimated that he arrived
approximately 45 minutes after his initial pursuit. Castillo's driver's license was found in
the abandoned Mazda, and Deputy Johnson recognized Castillo from the driver's license
photo as the driver involved in the earlier pursuit.
Later that morning, Castillo called the Sheriff's Office to report that his Mazda had
been stolen from his driveway overnight. Deputy Johnson received a voicemail from
Castillo regarding the report. Deputy Johnson tried to call Castillo back and also visit him
in person, but he had difficulty locating Castillo. He finally made contact with Castillo at
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his residence on May 29, 2017. Castillo provided a written statement in support of his
stolen vehicle report alleging that Alan Leanos may have stolen his vehicle. Deputy
Johnson did not follow up on Castillo's stolen vehicle report because "[he] knew that
[Castillo] was the driver of the vehicle" involved in the pursuit.
The State charged Castillo with eluding police, felony interference with law
enforcement (obstructing official duty), theft, reckless driving, and misdemeanor
interference with law enforcement (making a false report).
Before trial, the State filed a motion to admit evidence pursuant to K.S.A. 60-455.
Specifically, it wanted to introduce evidence that Deputy Dobler identified Castillo based
on Castillo's prior contact with law enforcement. Castillo responded with a motion in
limine seeking to exclude any prior bad acts under K.S.A. 60-455. The district court ruled
that the State could present evidence that Castillo was stopped in January 2017, but no
further details of the stop. The court reasoned that members of the jury pool were likely
to have been pulled over for a traffic infraction and that such evidence was not as
prejudicial as other types of information that comes in under K.S.A. 60-455.
At trial, Deputy Dobler testified that he recognized Castillo as the driver of the
Mazda "[b]ased on prior contact with the subject." On cross-examination, defense
counsel asked Deputy Dobler whether the previous incident from which he recognized
Castillo was a traffic stop. Deputy Dobler answered affirmatively. Defense counsel also
questioned Deputy Dobler about the number of traffic stops he conducted (approximately
100 to 150 per month), whether he ever had a good view of Castillo when he chased him
from behind, what the lighting conditions were like at 3 a.m. when the pursuit occurred,
and how far away from Castillo he was. Defense counsel then asked again whether
Deputy Dobler could identify someone from a traffic stop given that he had conducted so
many of them. Deputy Dobler responded that "the prior contact was very distinct." At this
point, defense counsel asked to approach the bench and said that Deputy Dobler's
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"testimony is going to 60-455, which he wasn't supposed to go in to." The district court
replied that Deputy Dobler did not go into any prior crime or the reason for the stop and
had not yet reached any K.S.A. 60-455 evidence. On redirect examination, Deputy
Dobler testified that his prior traffic stop with Castillo was distinct because, while an
average traffic stop takes 7 to 11 minutes, Castillo's took a couple of hours.
In Castillo's case-in-chief, he called Deputy Dobler and asked him to look at
Defense Exhibits 1, 2, and 3, which were offense reports on Leanos. Deputy Dobler
testified that he had never seen or had contact with Leanos. Nonetheless, defense counsel
had Deputy Dobler read details from the exhibits. The reports showed that Leanos was
arrested for possession of a stolen truck and fleeing from police April 11, 2017; driving a
stolen car, crashing, and leaving the scene on April 17, 2017 (and being in possession of
methamphetamine once he was found); and stealing a vehicle and initiating a pursuit on
May 21, 2017. Defense counsel called Deputy Johnson and performed a similar exercise.
As the final day of trial began, the State announced its intention to admit Deputy
Johnson's body camera video footage from the night he took Castillo's stolen vehicle
report as rebuttal evidence. The video is approximately 16 1/2 minutes long. This video
begins with Castillo telling Deputy Johnson that when he woke up on April 4, 2017, his
car was gone. Castillo spent several minutes providing a written statement. When he
finished, Castillo told Deputy Johnson that he suspected Leanos of stealing his car. He
stated:
"I think it was this one guy that got caught up a month or so ago, his name was Alan
Leanos and he got caught up with a stolen 2016 Toyota or something like that. And, um,
that night I got caught with him and another friend that's also in jail, like that night I was
just trying to hang out with, you know, people from back in the day. It was Alan's
birthday or something. And when I hung out with them, yeah, well they found [inaudible]
they found a pipe and a scale that belonged to him. But, they just left it in all my car, it
was all his stuff."
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Castillo advised that Leanos could be found in jail. They also discussed Deputy Johnson's
attempts to reach Castillo.
Defense counsel objected to admission of the video exhibit on the basis that it was
not rebuttal evidence and because it contained K.S.A. 60-455 evidence of Castillo's prior
bad acts. The district court watched the video and believed that Castillo's reference to the
prior stop was vague. The court did not consider Castillo's statement about Leanos' pipe
and scale to be K.S.A. 60-455 evidence. Further, the court held that the evidence was
proper on rebuttal because it explained that Castillo had some prior contact with Leanos
and that sometimes people who are connected with criminals "go[] on later to commit
some crimes." The court then conducted a short Jackson v. Denno hearing. Following
that, the State called Deputy Johnson to the stand and moved to admit the video. Castillo
objected on the basis that he did not "believe [the video] is rebuttal evidence."
The jury found Castillo guilty as charged. The district court sentenced Castillo to
12 months of probation with an underlying prison sentence of 14 months. Castillo
appealed.
ANALYSIS
I. The district court did not err in admitting prior crimes evidence.
Castillo argues on appeal that the district court allowed two instances of prior
crimes evidence in violation of K.S.A. 60-455. First, he challenges the admission of
Deputy Dobler's testimony that his prior contact with Castillo was "distinct." Second, he
asserts that the State admitted prior crimes evidence through Deputy Johnson's body
camera video which "demonstrat[ed] that Mr. Castillo was previously pulled over for a
traffic violation where drug paraphernalia was confiscated from his car."
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K.S.A. 2020 Supp. 60-455 provides:
"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion."
"Under the plain and unambiguous language of the statute, evidence of prior crimes or
civil wrongs cannot be admitted to prove a criminal defendant's propensity to commit the
charged crime, but it can be 'admissible when relevant to prove some other material
fact.'" State v. Gunby, 282 Kan. 39, 48, 144 P.3d 647 (2006) (quoting K.S.A. 60-455).
There are several safeguards "designed to eliminate the danger that the evidence
will be considered to prove the defendant's mere propensity to commit the charged
crime." 282 Kan. at 48. These include the requirement that K.S.A. 60-455 evidence be
relevant to prove one of eight material facts listed in the statute, that the material fact be
disputed, and that the probative value of the evidence outweigh its potential for producing
undue prejudice. The Kansas Supreme Court has recognized at least three types of
prejudice that can result from admission of prior wrongs without these safeguards:
"'First a jury might well exaggerate the value of other crimes as evidence proving that,
because the defendant has committed a similar crime before, it might properly be inferred
that he committed this one. Secondly, the jury might conclude that the defendant deserves
punishment because he is a general wrongdoer even if the prosecution has not established
guilt beyond a reasonable doubt in the prosecution at hand. Thirdly, the jury might
conclude that because the defendant is a criminal, the evidence put in on his behalf
should not be believed.'" 282 Kan. at 48-49 (quoting State v. Davis, 213 Kan. 54, 58, 515
P.2d 802 [1973]).
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Determining whether evidence constitutes prior crimes evidence under K.S.A. 60-
455 presents a question of statutory interpretation, which this court reviews de novo.
State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). In reviewing the admission of
prior crimes evidence under K.S.A. 60-455, an appellate court uses a three-step test. First,
the court considers whether the evidence is relevant to establish a material fact at issue.
Determining whether the prior crimes evidence is material is subject to de novo review.
Second, the reviewing court must determine whether the material fact is disputed and
whether the material fact is relevant to prove the disputed fact. This determination by the
district court is reviewed for an abuse of judicial discretion. Finally, the court must
consider whether the probative value of the evidence outweighs its prejudicial effect.
This step is also analyzed under an abuse of discretion standard of review. State v.
Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018).
Castillo does not challenge the evidence under the first two prongs of the test. He
agrees that the identity of the Mazda's driver was material to the outcome of the case and
in dispute. He argues only that the district court erred in finding the evidence more
probative than prejudicial.
A. The District Court Did Not Err Under K.S.A. 60-455 in Allowing Deputy
Dobler's Testimony that His Prior Contact with Castillo Was "Distinct."
Castillo argues that the district court erred in permitting Deputy Dobler's
testimony that his prior stop of Castillo was "distinct." He asserts that the evidence on the
distinctness of the stop exceeded the court's pretrial order and that its prejudicial effect
outweighed its probative value.
As a preliminary matter, the admissibility of evidence that Deputy Dobler
recognized Castillo from a prior traffic stop is not at issue. In fact, it was defense counsel
who first asked whether the prior contact was a traffic stop. Even if evidence of the traffic
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stop's occurrence was admitted in error, a party that invites error may not then complain
of that error on appeal. State v. Hebert, 277 Kan. 61, 78, 82 P.3d 470 (2004); see also
State v. Anthony, 282 Kan. 201, 215, 145 P.3d 1 (2006) (holding that defendant invited
any error that may have arisen from evidence that defendant threatened murder victim
because it was defense counsel who asked the witness whether defendant had made any
threats).
Castillo's brief also mentions Deputy Dobler's testimony regarding the atypical
length of the stop. He relies on it to argue that the evidence regarding the traffic stop "far
exceeded the court's rationale for admission, because while getting pulled over for a
traffic violation may be a common occurrence most jurors have experienced, having that
traffic stop extend multiple hours certainly isn't." However, this issue is not preserved
because Castillo did not make a contemporaneous objection to this testimony at trial. See
State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010) ("The contemporaneous
objection rule requires each party to make a specific and timely objection at trial in order
to preserve evidentiary issues for appeal."). Castillo makes no comment as to why this
court should address this unpreserved issue. Accordingly, it should not be considered.
Notwithstanding the lack of a contemporaneous objection, there was no error in
admitting the evidence. In making this determination, we analyzed how Deputy Dobler's
description of the stop as "distinct" affected the probative value and prejudicial effect of
the traffic stop evidence. Castillo's brief discusses how the evidence exceeded the
justification for the district court's order. However, very little is said on the issue of how
Deputy Dobler's testimony actually prejudiced Castillo. To demonstrate error, Castillo
must show that the district court abused its discretion in determining that the probative
value of the evidence outweighed its prejudicial effect. See Haygood, 308 Kan. at 1393.
He failed to meet this burden.
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Evidence of the prior traffic stop was offered to establish Deputy Dobler's basis
for identifying Castillo. As the parties agree, this fact is material as Castillo's
identification is in dispute. This is demonstrated by defense counsel's questions to Deputy
Dobler about the lighting, speed of the pursuit, his distance from Castillo, and other
factors that impacted his ability to identify Castillo as the Mazda's driver. Deputy
Dobler's testimony that the prior stop was distinct provides a rational basis why he so
clearly remembered Castillo. It explains how Deputy Dobler, who conducted
approximately 100 to 150 traffic stops per month, which only lasted 7 to 11 minutes on
average, could remember Castillo after three months. The prejudicial effect of the
testimony, on the other hand, is minimal. That Castillo was the subject of a traffic stop,
even a distinct one, is not inherently suggestive that he committed the crimes charged in
this case.
It must be specifically noted that it was questioning by defense counsel that
opened up the door to the very evidence Castillo now complains of. It was established by
defense counsel's cross-examination that Dobler's prior contact with Castillo was the
result of a traffic stop. Defense counsel went further in trying to attack Dobler's
identification by questioning how he could remember this traffic stop given he conducted
so many of them. Dobler answered the question in a manner that was actually quite
benign given the circumstances when he said the stop was "distinct." It is only logical
that the question of how it was distinct would follow. Castillo cannot complain that
defense counsel's questions led to testimony that he did not like. See Herbert, 277 Kan. at
78.
It cannot be said that the district court abused its discretion in permitting the
testimony.
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B. The District Court Did Not Err Under K.S.A. 60-455 in Admitting the Video of
Deputy Johnson Taking Castillo's Statement Where Castillo Mentions Leanos'
Crimes Discovered During the Traffic Stop.
Castillo also argues that the district court erred under K.S.A. 60-455 when it
allowed the State to admit Deputy Johnson's body camera video because "evidence that
police found drug paraphernalia in [Castillo's] car . . . constitute[s] prior crimes evidence
under K.S.A. 60-455(a)." This evidence, he asserts, also exceeded the scope of the district
court's order on K.S.A. 60-455 evidence.
Before reaching the merits, this court must address the application of the
contemporaneous objection rule. The State argues that this issue is not preserved because
Castillo did not make a contemporaneous objection on K.S.A. 60-455 grounds when the
exhibit was admitted. Castillo acknowledges that he only objected to the exhibit on the
grounds that it was improper rebuttal evidence. However, he asks this court to consider
the issue because the purpose underlying the preservation rule has been satisfied.
Generally, any pretrial objection to the admission or exclusion of evidence must
be preserved by contemporaneously objecting at trial. K.S.A. 60-404; State v. Richard,
300 Kan. 715, 721, 333 P.3d 179 (2014). The purpose of this rule "is to give the trial
court the opportunity to conduct the trial without exposure to tainted evidence, thus
avoiding possible reversal, and the rule is also necessary to ensure that litigation may be
brought to a conclusion." State v. Spagnola, 295 Kan. 1098, 1102, 289 P.3d 68 (2012).
However, "preservation is a prudential rather than jurisdictional obstacle to appellate
review," and on occasion Kansas appellate courts have refused to strictly apply the
contemporaneous objection rule in some contexts upon finding the underlying purpose
for the rule has been satisfied. See, e.g., State v. Hart, 297 Kan. 494, 510-11, 301 P.3d
1279 (2013); Spagnola, 295 Kan. at 1103; State v. Breedlove, 295 Kan. 481, 490-91, 286
P.3d 1123 (2012).
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Castillo has a persuasive argument that the spirit of the preservation rule has been
satisfied. He objected to the video's admission on K.S.A. 60-455 grounds when the State
announced its intention to introduce the video as rebuttal evidence. Because the video
was brought in during the State's rebuttal case, the district court watched the video with
the benefit of two days of trial testimony to provide context to its analysis. After hearing
the parties' arguments and reviewing the exhibit, the district court held that the evidence
could be admitted. Shortly thereafter, with the court's ruling still fresh, the State moved to
admit the video. The district court had full opportunity to address Castillo's argument he
now advances on appeal, which arguably satisfies the purpose of the preservation rule.
See Kansas City Power & Light Co. v. Strong, 302 Kan. 712, 723-24, 356 P.3d 1064(2015).
Assuming that the preservation rule has been satisfied, Castillo's argument must
fail on the grounds that the evidence he complains of is not prior crimes evidence under
K.S.A. 60-455. He claims that his statements in the video concerning Leanos' pipe and
scale being found in his car constitutes evidence of prior crimes. It may be evidence of a
prior crime, but it was a crime committed by Leanos. There is nothing in the statement
that Castillo committed a crime or any inference that he did. His mere association with
Leanos is not evidence that Castillo committed a crime.
Castillo's brief comment in the video does not fall under the prior crimes analysis.
It does not show that Castillo committed a crime or civil wrong.
Notwithstanding any of the foregoing, the admission of the testimony concerning a
distinct traffic stop or the video that refers to Leanos' prior crime is harmless error.
Erroneous admission of K.S.A. 60-455 evidence "is not so inevitably so prejudicial to
require automatic reversal." Gunby, 282 Kan. at 57. Rather, the evidence is examined
under a harmless error analysis where the party benefiting from the admission of the
evidence must persuade the court that there is no reasonable probability that the error
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affected the trial's outcome in light of the entire record. State v. Brown, 58 Kan. App. 2d
599, Syl. ¶ 7, 473 P.3d 910 (2020), rev. denied 312 Kan. 894 (2021).
In support of its argument that any error is harmless, the State emphasizes Deputy
Dobler's testimony that he recognized Castillo with certainty. During the pursuit, Deputy
Dobler had multiple light sources, including his headlights, a spotlight, and a white light
bar mounted on top of his vehicle, that allowed him to clearly see the Mazda's driver.
This, coupled with his testimony concerning the lengthy prior stop of Castillo, provided
strong support for his identification of Castillo. Deputy Johnson was also "100 percent"
certain that he correctly identified Castillo. He did not think that Leanos looked at all like
Castillo.
Castillo makes the opposite argument—that the officers' ability to identify him
after catching only "brief glimpses of him through the darkness of night during their
pursuits"—was far from certain. The case "pitted the reliability of the officer[s']
identification against Mr. Castillo's credibility." He asserts that his defense that Leanos
stole his car was reasonable and, further, that the credibility of his assertion was bolstered
by the fact that Leanos had been arrested in three prior cases which involved auto theft.
The State's argument is more compelling. The evidence concerning Castillo's
identification from the night of the pursuits was strong. A jury could have easily
concluded Castillo was the driver based on this evidence alone. Furthermore, the
bolstering of Castillo's identification as a result of the prior distinctive traffic stop was not
an error on the part of the State, but the result of questioning by the defense. The video
of Castillo's interview by Detective Johnson did not concern any crime alleged to have
been committed by Castillo. The statements from the video that Leanos was arrested for
possession of a pipe and scales could have bolstered Castillo's defense that Leanos was
prone to criminal behavior and capable of stealing Castillo's car. Any errors under
K.S.A. 60-455 in admitting these details from Castillo's prior traffic stop were harmless.
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II. The district court erred in admitting rebuttal evidence, but such error was harmless.
As stated above, Castillo objected to Deputy Johnson's body camera video footage
on the basis that it was improper rebuttal evidence. His objection to the evidence on that
basis is properly preserved. By allowing in the video, which contained evidence that
Castillo "previously had drug paraphernalia confiscated from his car," Castillo asserts
that the district court "undoubtedly tarnished his credibility in the eyes of the jury and
thereby unduly prejudice[ed] his defense." This court reviews the admission of rebuttal
evidence for abuse of discretion. State v. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003(2010).
The Kansas Supreme Court has defined rebuttal evidence as follows:
"'Rebuttal evidence is that which contradicts evidence introduced by an opposing
party. It may tend to corroborate evidence of a party who first presented evidence on the
particular issue, or it may refute or deny some affirmative fact which an opposing party
has attempted to prove. It may be used to explain, repel, counteract, or disprove
testimony or facts introduced by or on behalf of the adverse party. Such evidence
includes not only testimony which contradicts witnesses on the opposite side, but also
corroborates previous testimony.' State v. Willis, 240 Kan. 580, 583, 731 P.2d 287(1987)." Sitlington, 291 Kan. at 464.
The defense's case-in-chief was focused on showing that Leanos had a recent
history of stealing vehicles and fleeing from police. Deputy Johnson's body camera
footage did not serve to confirm or deny this defense. It added no explanation or
challenge to Castillo's evidence. The additional facts surrounding the traffic stop in
particular were not part of Castillo's evidence. Instead, Castillo fought throughout the
trial to keep those facts out of evidence. In short, the propriety of allowing this evidence
as rebuttal evidence is questionable and likely an abuse of discretion.
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It is not necessary to determine whether the district court erred in admitting the
video as rebuttal evidence because improperly admitted rebuttal evidence is subject to the
harmless error test. State v. Johnson, 33 Kan. App. 2d 490, 497, 106 P.3d 65 (2004). As
outlined above, if the district court erred by admitting the video, the error was harmless
and unlikely to change the outcome of the case.
III. The prosecutor did not commit reversible error by misstating the evidence.
Castillo also argues that the prosecutor committed reversible error by misstating
the evidence to the jury three times during rebuttal.
The appellate court uses a two-step process to evaluate claims of prosecutorial
error: error and prejudice. State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).
"To determine whether prosecutorial error has occurred, the appellate 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, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt 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.
The first misstatement occurred when the prosecutor said Deputy Dobler
recognized Castillo from "prior incidents with him." Defense counsel objected that,
because Deputy Dobler only had one prior contact with Castillo, saying there were
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"incidents"—i.e., plural incidents—misstated the evidence. The prosecutor corrected her
statement to say that Deputy Dobler recognized Castillo from a single prior incident. The
district court also instructed the jury to disregard the prosecutor's inaccurate statement
because the prosecutor misspoke.
The second and third instances occurred when the prosecutor said:
"What we did see here on the Axon video we saw today was that Mr. Castillo and
Mr. Leanos know each other. They've been together when Mr. Leanos has been taken in
for possessing meth before. They were together when Mr. Leanos got in trouble with law
enforcement. Mr. Leanos isn't just a stranger to the defendant, he's a guy that he rides
around in cars with."
At trial, Castillo objected to the statement that Castillo "rides around in cars with" Leanos
because the evidence only showed one instance of Castillo and Leanos riding in a vehicle
together. Again the prosecutor corrected her statement, and the court instructed the jury
to disregard the inaccurate statement. On appeal, Castillo also objects to the statement
that Leanos and Castillo were together when Leanos was arrested for methamphetamine,
in that the body camera video only revealed that a pipe and scales were in Castillo's car.
A review of the record supports Castillo's argument that the prosecutor misstated the facts
in these three instances. The State does not dispute this on appeal, instead focusing on the
prejudice analysis.
While the three statements at issue here constitute prosecutorial error because they
misstate the facts, the error had "little, if any, likelihood of changing the result of the
trial." State v. Flournoy, 272 Kan. 784, 797, 36 P.3d 273 (2001).
Castillo argues that he is prejudiced by the State's misstatement that Leanos was
arrested for methamphetamine while they were together as opposed to finding scales and
a pipe because it "resulted in the jury being advised that Mr. Castillo was previously
15
involved in much more serious criminal activity than was presented in the evidence." He
reasons that "[i]n Kansas, possession of methamphetamine is always a felony whereas
possession of paraphernalia is often times a misdemeanor offense." See K.S.A. 2020
Supp. 21-5706(a), (c)(1); K.S.A. 2020 Supp. 21-5709(b), (e)(3). There are several
reasons, however, why this misstatement likely had no effect on the verdict. First, the
statement did not discuss prior criminal activity on Castillo's part, just Leanos'. Second,
the fact that police had previously found methamphetamine on Leanos was first
introduced to the jury by Castillo when he admitted several offense reports pertaining to
Leanos. It is unlikely that the jury would have been shocked by a statement that Leanos
was found to be in possession of methamphetamine rather than a pipe and scales when
Castillo had already established that Leanos had a proclivity for that behavior. Third,
there is nothing to show that the prosecutor tried to paint Castillo with the broad brush
that because Leanos had possessed methamphetamine on prior occasions, Castillo must
have also.
The two instances where the prosecutor suggested that Castillo had multiple
contacts with Leanos and Deputy Dobler were even less likely to impact the verdict.
Castillo argues that by stating that Deputy Dobler had multiple prior incidents with
Castillo, "the State implicitly advised the jury Mr. Castillo had previously committed
multiple crimes." He also contends that because the jury was led to mistakenly associate
Castillo and Leanos "riding in a car together with methamphetamine possession,
misstating the number of times the two ride around in cars suggests Mr. Castillo is
frequently nearby or in possession of methamphetamine." Castillo's arguments rely
heavily on general inferences. Also, the misstatements did not directly concern the crimes
charged against Castillo. These factors reduce the prejudicial effect of the errors. Any
remaining negative inferences the misstatements concerning multiple contacts with
Leanos may have caused was cured by defense counsel's quick objections, the
prosecutor's corrections, and the district court's admonishments to the jury to disregard
16
the misstatements. These corrections emphasized that there was only evidence of a single
contact between Castillo and the two others.
The Supreme Court found factors similar to those in this case noteworthy in
holding that the prosecutor's misstatement of the facts was harmless error in State v.
Thomas, 307 Kan. 733, 415 P.3d 430 (2018). There, a jury convicted Sheena Thomas of
one count of aggravated battery with a deadly weapon (a stiletto heel) against her
coworker, Traci Borntrager, after a dispute over a sale of clothing. Thomas maintained
that Borntrager was the initial aggressor. At trial, a witness testified that Borntrager had
been the aggressor in an earlier altercation with Thomas. In closing argument, the
prosecutor said the witness testified that Thomas was the initial aggressor in the earlier
altercation and that this testimony supported the State's claim that Thomas was the
aggressor in the crime charged. Defense counsel objected that the prosecutor misstated
the evidence, and the court said, "'The jury will be the decider of the evidence.'" 307 Kan.
at 744.
On appeal, the Supreme Court held that the error was harmless beyond a
reasonable doubt. First, the misstatement at issue did not "directly concern the aggravated
battery itself," and the witness "did not see the fight during which Borntrager suffered the
stiletto-inflicted wound." 307 Kan. at 745. Second, defense counsel clarified the witness'
testimony following the misstatement. Third, the district court instructed the jury that it
should disregard any statement not supported by the evidence.
Here, any prejudicial effect of the prosecutor's misstatements was minimized by
instructing the jury to disregard statements made that are not supported by evidence. The
prosecutor corrected her statement to say that Deputy Dobler recognized Castillo from a
single prior incident. In addition to giving the jury the general instruction on disregarding
statements not in evidence, the district court also admonished the jury immediately after
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the misstatements were made to disregard two of the prosecutor's inaccurate statements.
For these reasons, the prosecutorial errors do not warrant reversal.
IV. Cumulative error did not deny Castillo a fair trial.
Finally, Castillo argues that cumulative errors denied him a fair trial. Cumulative
trial errors, when considered together, may require reversal of the defendant's conviction
when the totality of the circumstances establish that the defendant was substantially
prejudiced by the errors and denied a fair trial. State v. Hirsh, 310 Kan. 321, 345, 446
P.3d 472 (2019). In assessing the cumulative effect of errors during the trial, appellate
courts examine the 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. 310 Kan. at 345-46.
In addition to the prosecutorial errors, the district court likely erred when it
admitted Deputy Johnson's body camera footage as rebuttal evidence. Thus, a cumulative
error analysis would be appropriate. Even when viewed together, however, these errors
were not significant enough to deny Castillo a fair trial. Castillo claims prejudice from
each error generally weakened his credibility by leading the jury to infer that he was
involved in criminal activity. Additionally, each error involves a factual matter that is not
directly related to the charges against Castillo and which have found to be harmless.
Under these circumstances, the cumulative effect of the errors does not outweigh the
strength of the State's evidence. The State had two police officers confidently identify
Castillo as the driver of the Mazda. The jury heard evidence challenging that
identification. The errors did not impact the jury's ability to weigh the evidence. Instead,
the errors dealt with tangential facts.
Affirmed.
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