State v. Salazar-Moreno ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 119,702
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
CORNELIO SALAZAR-MORENO,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed April 10, 2020. Affirmed.
David L. Miller, of Ney, Adams & Miller, of Wichita, for appellant.
Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before WARNER, P.J., POWELL, J., and LAHEY, S.J.
POWELL, J.: Following a jury trial, Cornelio Salazar-Moreno was convicted of
rape, adultery, and two counts of aggravated indecent liberties with a child. Salazar-
Moreno appealed his convictions, and a panel of this court affirmed. Salazar-Moreno then
filed a K.S.A. 60-1507 petition alleging ineffective assistance of trial counsel and
ineffective assistance of direct appellate counsel. The district court found appellate
counsel had been ineffective and ordered a new direct appeal but found Salazar-Moreno's
trial counsel not ineffective. Salazar-Moreno appealed the adverse ruling, and a panel of
our court affirmed, upholding his convictions of rape and aggravated indecent liberties
with a child, but vacating his conviction of adultery.
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Salazar-Moreno now brings his new direct appeal, raising seven points of error.
After a careful review of the record, and for the reasons more fully stated below, we
reject Salazar-Moreno's contentions of error and affirm his convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
Salazar-Moreno was initially charged in April 2008, but in October 2010, the State
amended the complaint for the third time, charging Salazar-Moreno with one count of
rape, two counts of aggravated indecent liberties with a child, and one count of adultery.
The charges stemmed from incidents occurring in November and December of 2007. The
then 13-year-old victim, D.D., alleged that, in the first incident, Salazar-Moreno fondled
her breast over her clothes after taking her to a store to get supplies for a school project.
In the second incident, D.D. was in Salazar-Moreno's basement checking her email on the
computer when he allegedly fondled her breasts and vagina under her clothes. The third
incident occurred on December 30, 2007, when Salazar-Moreno, while on his lunch
break, came to the house where D.D. was babysitting and raped her.
Salazar-Moreno was a friend of D.D.'s family. In early 2008, D.D. told one of her
friends that Salazar-Moreno took her virginity. In March 2008, another friend learned
about the incident and wrote a letter asking D.D.'s mother to call her. When the mother
called, the friend told her about Salazar-Moreno having sex with D.D. When D.D.'s
mother and father asked D.D. if this was true, D.D. began crying and told them that
Salazar-Moreno had come to the house where she was babysitting.
D.D.'s family filed a report with the Hutchinson Police Department. Jane
Holzrichter at the child advocacy center interviewed D.D., and Dr. Ellen Losew, a local
pediatrician, performed a medical examination of D.D. Both D.D. and her mother
provided written statements to the police. The detective investigating the case examined
the scene of the alleged rape and investigated D.D.'s allegations. A forensic scientist from
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the Kansas Bureau of Investigation tested the carpet for signs of blood. The police
obtained records from D.D. and Salazar-Moreno's cellphones.
Over two years after he was initially charged, Salazar-Moreno's jury trial began in
January 2011. The trial lasted over four days. Dr. Losew testified that the victim had a
well-healed cleft or angulation of her hymen, which extended to the vaginal wall. She
could not be certain what caused the injury, but D.D.'s report was consistent with the
results of her examination which concluded that the injury was suspicious for child
sexual abuse.
D.D. testified about the three incidents and described each incident, where it
occurred, and what Salazar-Moreno did. D.D. described hearing a phone call between her
mother and Dawn Salazar, Salazar-Moreno's wife, where Dawn stated that Salazar-
Moreno admitted to having sexual intercourse with D.D.
D.D.'s mother, father, and aunt also testified at trial. Each testified that after they
filed the police report, Dawn called D.D.'s mother to check on D.D. The victim's mother
put Dawn on speakerphone for everyone to hear. According to their testimony, Dawn
said that when she asked Salazar-Moreno about the allegations, he admitted to having
sexual intercourse with D.D.
The State called Dawn as a witness. Dawn testified that she told the victim's
mother that Salazar-Moreno denied having sex with D.D. Dawn testified that she only
called the victim's mother because she was worried about D.D. and wanted to check on
her.
Other than Dr. Losew's testimony, there was little physical evidence presented.
Salazar-Moreno called the KBI forensic scientist as a witness. The forensic scientist
testified that she found no traces of blood on the carpet where D.D. testified she had bled.
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Salazar-Moreno also called Dawn, who testified similar to her testimony during the
State's case-in-chief.
Ultimately, the jury found Salazar-Moreno guilty on all counts. Salazar-Moreno
filed several posttrial motions, including a motion for a downward dispositional and
durational departure. The district court denied these motions, and specifically, denied the
departure motion because it found Salazar-Moreno did not provide evidence of sufficient
mitigating circumstances to warrant a departure from a Jessica's Law sentence. Salazar-
Moreno was sentenced to three concurrent life prison sentences with a minimum of 25
years for the three Jessica's Law convictions and a concurrent 30-day jail sentence for the
adultery conviction.
Salazar-Moreno filed a notice of appeal. On appeal, Salazar-Moreno raised issues
regarding Dr. Losew's testimony and the district court's failure to grant a mistrial in
several instances. State v. Salazar-Moreno, No. 106,555, 2013 WL 5925894, at *2-11
(Kan. App. 2013) (unpublished opinion) (Salazar-Moreno I). A panel of this court
refused to consider the testimonial issue due to a lack of a contemporaneous objection
and found the district court had not abused its discretion in denying any of Salazar-
Moreno's motions for a mistrial. Salazar-Moreno I, 2013 WL 5925894, at *4, 11. A
mandate was filed with the district court on December 10, 2013.
In October 2014, Salazar-Moreno filed a K.S.A. 60-1507 motion alleging
ineffective assistance of trial counsel and ineffective assistance of appellate counsel.
Following an evidentiary hearing, the district court found Salazar-Moreno's trial attorneys
were not ineffective because, while they were deficient, their actions were not prejudicial.
But the district court found his appellate counsel's performance had been ineffective and
granted him a new direct appeal.
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Salazar-Moreno timely appealed the district court's 1507 ruling, arguing he had
been denied his counsel of choice and the district court had erred in concluding his trial
attorneys were not ineffective. The panel affirmed the district court in most respects but
vacated Salazar-Moreno's conviction and sentence for adultery. Salazar-Moreno v. State,
No. 115,031, 2017 WL 383433, at *9, 14 (Kan. App. 2017) (unpublished opinion)
(Salazar-Moreno II).
Salazar-Moreno now brings his new direct appeal.
ANALYSIS
On appeal, Salazar-Moreno raises seven arguments: (1) his convictions for rape
and adultery are mutually exclusive thus entitling him to a new trial; (2) the district court
erred in allowing the admission of testimony falling under the marital privilege and the
hearsay rule; (3) the district court erred in allowing Dr. Losew to testify that the injuries
to D.D.'s hymen were consistent with D.D.'s claim of rape; (4) the district court abused its
discretion in denying his motion for a psychological examination of D.D.; (5) the State
committed prosecutorial error in its closing argument; (6) cumulative error denied him a
fair trial; and (7) the district court abused its discretion in failing to grant him a
downward dispositional and durational departure. We address each argument.
I. WERE THE CONVICTIONS OF RAPE AND ADULTERY MUTUALLY EXCLUSIVE?
Salazar-Moreno argues his convictions of rape and adultery were legally and
factually impossible. Specifically, Salazar-Moreno argues adultery and rape are mutually
exclusive crimes in Kansas because adultery is a crime of consent and consent is a
defense to rape. As a result, he argues that both convictions should be reversed. The State
argues Kansas law does not state that adultery can never include nonconsensual sex and
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further contends the rape conviction in this case was based on Salazar-Moreno's sexual
intercourse with a minor making consent irrelevant.
Standard of Review
Whether convictions are mutually exclusive is a legal question subject to de novo
review. State v. Vargas, No. 119,741, 2019 WL 5485179, at *3 (Kan. App. 2019)
(unpublished opinion).
Analysis
"Mutually exclusive verdicts exist when a guilty verdict on one count logically
excludes a guilty verdict on another count." Heard v. State, 999 So. 2d 992, 1005 (Ala.
2007); see State v. Williams, 308 Kan. 1439, 1449, 430 P.3d 448 (2018). "'[L]egally
impossible verdicts only occur when "a conviction as to one of the crimes must negate an
element of the other." (Emphasis added.)'" 308 Kan. at 1449; see also 999 So. 2d at 1004("[M]utually exclusive verdicts are the result of two positive findings of fact that cannot
logically coexist."); State v. Mumford, 364 N.C. 394, 400, 699 S.E.2d 911 (2010)
("Verdicts are mutually exclusive when a verdict 'purports to establish that the
[defendant] is guilty of two separate and distinct criminal offenses, the nature of which is
such that guilt of one necessarily excludes guilt of the other.'"). This contrasts with
inconsistent verdicts which can exist in the instance "'where the elements of the two
offenses are identical, a verdict of not guilty on one count is inconsistent with a verdict of
guilty on the other count.'" State v. Beach, 275 Kan. 603, 616, 67 P.3d 121 (2003).
"[C]onsistency in a verdict is not necessary; a verdict, though inconsistent, is not
erroneous so long as there is sufficient competent evidence to support it." State v. Wise,
237 Kan. 117, 122, 697 P.2d 1295 (1985). Mutually exclusive verdicts are not
permissible. Heard, 999 So. 2d at 1005.
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Salazar-Moreno relies on State v. Hernandez, 294 Kan. 200, 273 P.3d 774 (2012),
the principal case in Kansas addressing mutually exclusive convictions. In Hernandez,
the Kansas Supreme Court found that the charge of attempted aggravated indecent
liberties with a child could not be a lesser included offense of aggravated indecent
liberties with a child because "[i]t is a legal impossibility to both attempt the commission
of a crime and complete the commission of the same crime, because the failure to
complete the commission of the crime is an element of attempt." 294 Kan. at 204. The
Kansas Supreme Court held: "The trial court could not legally enter judgment on either
verdict because the jury's finding on the other verdict precludes such judgment." 294
Kan. at 207. The district court abused its discretion in not granting the defendant's motion
for a mistrial, and our Supreme Court reversed the defendant's convictions on those two
charges. 294 Kan. at 207.
Williams is the only published Kansas Supreme Court case to address mutually
exclusive verdicts between two separate crimes. Williams was convicted, among other
crimes, of aggravated burglary and domestic battery. On appeal, Williams claimed the
convictions were mutually exclusive. The Kansas Supreme Court, adopting the elements
approach used by other jurisdictions to determine if verdicts were mutually exclusive,
held the elements of aggravated burglary and domestic battery did not negate each other
because it was legally possible for the defendant to commit and be convicted of both
crimes. 308 Kan. at 1449-50.
In Vargas, 2019 WL 5485179, another panel of our court addressed mutually
exclusive verdicts for multiple convictions under alternatively charged theories. The
panel held that because a district court lacks the authority to enter multiple convictions
under alternatively charged theories, if the jury convicts the defendant on both
alternatively charged theories, the district court must sentence the defendant for only one
of the alternate counts. 2019 WL 5485179, at *3. The panel vacated the defendant's
second conviction for fleeing or attempting to elude a law enforcement officer for
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reckless driving and remanded the case to the district court with directions for the district
court to enter an amended journal entry that reflected only one conviction. 2019 WL
5485179, at *4.
Salazar-Moreno relies upon State v. Platz, 214 Kan. 74, 519 P.2d 1097 (1974), for
the proposition that adultery and rape are mutually exclusive crimes. In Platz, our
Supreme Court held that the crime of forcible rape, which requires the act to be
performed without the victim's consent and under conditions where the victim is
overcome by force or fear, is mutually exclusive to adultery because adultery is a crime
of consenting parties. Our Supreme Court held that adultery cannot be a lesser included
offense of forcible rape, because "[p]roof of consent is a complete defense to the charge
of forcible rape" and "proof of one necessarily disproves the other." 214 Kan. at 77.
However, unlike in Platz, here, Salazar-Moreno was charged and convicted of a
version of rape in which a lack of consent is not an element of the crime. K.S.A. 21-
3502(a)(2), now codified at K.S.A. 2019 Supp. 21-5503(a)(3), prohibits sexual
intercourse with a child under the age of 14, regardless of whether the child consented.
Given that consent of the victim was not an available defense to Salazar-Moreno, making
the issue of consent irrelevant, his convictions for both rape and adultery in this instance
are not mutually exclusive.
We recognize that our holding appears to put us at odds with the panel in Salazar-
Moreno II which found Salazar-Moreno's trial counsel ineffective for failing to seek
dismissal of the adultery charge on the grounds that Salazar-Moreno's convictions for
rape and adultery were a legal impossibility. 2017 WL 383433, at *9. But "'it is never too
late to "surrender[r] former views to a better considered position."' South Dakota v.
Wayfair, Inc., 585 U.S. ___, ___, 138 S. Ct. 2080, 2100, 201 L. Ed. 2d 403 (2018)
(Thomas, J., concurring)." Baldwin v. United States, 140 S. Ct. 690 (2020) (denying writ
of certiorari) (Thomas, J., dissenting from cert. denial). Moreover, decisions of prior
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panels of our court do not bind future panels, State v. Fahnert, 54 Kan. App. 2d 45, 56,
396 P.3d 723 (2017), nor does a panel have the authority to overrule another panel. In re
Marriage of Cray, 254 Kan. 376, 382, 867 P.2d 291 (1994). While panels should afford
the opinions of prior panels respect, each panel "must uphold [its] duty to correctly
determine the law in each case that comes before [it]." Uhlmann v. Richardson, 48 Kan.
App. 2d 1, 13, 287 P.3d 287 (2012), rev. denied 298 Kan. 1208 (2013). While it is a
correct statement of the law, generally speaking, that convictions for rape and adultery
are both legally impossible and mutually exclusive, for the reasons we have explained,
because the particular version of rape Salazar-Moreno was convicted of makes consent
irrelevant, his conviction for adultery is not mutually exclusive to his rape conviction.
Thus, Salazar-Moreno is not entitled to a new trial.
Alternatively, even if we were to agree that Salazar-Moreno's rape and adultery
convictions were somehow mutually exclusive, given the Salazar-Moreno II panel's
decision to vacate Salazar-Moreno's adultery conviction, a result left undisturbed by our
decision, Salazar-Moreno no longer suffers from mutually exclusive convictions as he
asked for and received in Salazar-Moreno II the remedy he sought. See State v. Collier,
263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998) ("law of the case doctrine" precludes
reconsideration of issue); Walker v. State, No. 118,171, 2018 WL 5729849, at *3 (Kan.
App. 2018) (unpublished opinion) (decision in prior appeal settled "law of the case" and
no reconsideration allowed).
II. DID THE DISTRICT COURT ABUSE ITS DISCRETION BY ALLOWING WITNESSES TO
TESTIFY ABOUT DAWN'S PHONE CALL?
For his second issue, Salazar-Moreno argues the district court erred when it
permitted four witnesses to testify about a phone call from Dawn to the victim's mother
where Dawn allegedly stated that Salazar-Moreno admitted to having sexual intercourse
with D.D. Salazar-Moreno makes three points to support his argument: (1) the adultery
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exception to marital privilege did not apply because adultery was legally impossible; (2)
the marital privilege protects his conversation with his wife because Dawn voluntarily
disclosed the communication to third parties; and (3) Dawn's statement was inadmissible
hearsay because she was unavailable for cross-examination. The State's principal
argument in response is that Salazar-Moreno waived this argument because he did not
object at trial. The State also argues the adultery exception to marital privilege applies
and Dawn's statement was admissible because she was available for cross-examination.
Standard of Review
Review of a district court's decision to admit or exclude evidence involves a
multistep analysis. First, an appellate court must determine whether the evidence is
relevant. Evidence is relevant if it has any reasonable tendency to prove any material fact.
Relevant evidence must be both probative and material. The probative value of evidence
is reviewed under an abuse of discretion standard. Materiality is reviewed de novo.
Second, an appellate court reviews the district court's conclusion about which rules of
evidence apply de novo. Third, the district court's application of the rule is reviewed
either de novo or for abuse of discretion, depending on the nature of the rule. State v.
Hilt, 299 Kan. 176, 188, 322 P.3d 367 (2014). Whether the marital privilege applies is
subject to de novo review at step two. See State v. Collier, No. 109,529, 2014 WL
7565440, at *4 (Kan. App. 2014) (unpublished opinion). The admission of hearsay
evidence is ordinarily reviewed for abuse of discretion. Whether the trial court complied
with the specific statutory requirements for admitting evidence is reviewed de novo. State
v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012). Salazar-Moreno does not argue
the trial court did not comply with the requirements for admitting evidence, so our review
is for an abuse of discretion.
A district court commits an abuse of discretion when its decision: (1) is one that
no reasonable person would have adopted; (2) is based on an error of law; or (3) is based
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on an error of fact. The asserting party bears the burden to demonstrate an abuse of
discretion. State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
Preservation
"K.S.A. 60-404 provides that no verdict shall be set aside based upon the
erroneous admission of evidence unless an objection was 'timely interposed and so stated
as to make clear the specific ground of objection.'" State v. Belone, 51 Kan. App. 2d 179,
197, 343 P.3d 128, rev. denied 302 Kan. 1012 (2015). We generally will not review "an
evidentiary issue without a timely and specific objection even if the issue involves a
fundamental right." State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). The failure
to preserve evidentiary claims through a contemporaneous and specific objection
precludes appellate review. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
Issues not raised before the district court are not preserved for appeal unless "(1)
the newly asserted claim involves only a question of law arising on proved or admitted
facts and is finally determinative of the case; (2) the claim's consideration is necessary to
serve the ends of justice or to prevent the denial of fundamental rights;" or (3) the district
court was right for the wrong reason. State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d
200 (2012). Under Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34), the appellant
must explain why that issue should be considered for the first time on appeal if the issue
was not raised in the district court. See 294 Kan. at 465.
Salazar-Moreno admits he did not object at trial regarding either marital privilege
or hearsay. But Salazar-Moreno argues he has overcome any procedural default because
the district court found his trial attorneys' performance deficient. To support his argument
Salazar-Moreno relies on Bledsoe v. State, 283 Kan. 81, 150 P.3d 868 (2007), where the
Kansas Supreme Court held:
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"[A] 60-1507 movant can overcome a procedural default . . . and demonstrate exceptional
circumstances by [showing] there was (1) ineffective assistance of trial counsel in failing
to object regarding an issue; (2) ineffective assistance of direct appeal counsel in failing
to raise the issue; or (3) newly discovered evidence or an unforeseeable change in
circumstances or constitutional law." 283 Kan. at 88-89.
We are unpersuaded by Salazar-Moreno's argument for two reasons. First,
Bledsoe's first exception applies only when a court finds ineffective assistance of trial
counsel. 283 Kan. at 88-89. Here, the district court found Salazar-Moreno's trial
attorneys' performance deficient but not prejudicial and, therefore, not ineffective. The
Salazar-Moreno II panel affirmed this part of the district court's ruling. 2017 WL 383433,
at *14. Second, the exceptional circumstances in Bledsoe only apply to K.S.A. 60-1507
appeals. See Bledsoe, 283 Kan. at 88-89. The district court in Salazar-Moreno's K.S.A.
60-1507 motion did find Salazar-Moreno's appellate counsel ineffective, and as a result,
ordered that Salazar-Moreno was entitled to a new direct appeal.
Given this appeal is Salazar-Moreno's second direct appeal and not a K.S.A. 60-
1507 appeal, he must again follow the procedures of a direct appeal. Salazar-Moreno
does not argue one of Anderson's exceptions to the waiver rule applies, and he concedes
he did not lodge a contemporaneous objection to the admission of evidence for violating
marital privilege or the hearsay rule. Therefore, he has not preserved this issue to allow
our consideration of it on the merits.
III. DID THE DISTRICT COURT ABUSE ITS DISCRETION BY ALLOWING DR. LOSEW TO
TESTIFY THE VICTIM'S INJURIES WERE CONSISTENT WITH SEXUAL ABUSE?
For his third issue, Salazar-Moreno argues the district court erred when it allowed
Dr. Losew to provide opinion testimony that D.D. was sexually assaulted. Salazar-
Moreno argues Dr. Losew's testimony was a backdoor way for Dr. Losew to improperly
assert Salazar-Moreno sexually assaulted D.D. and bolster D.D.'s credibility. The State
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argues Salazar-Moreno failed to properly preserve this issue for appeal. In his reply brief,
Salazar-Moreno argues the finding of ineffective assistance of appellate counsel in his
K.S.A. 60-1507 motion overcomes any procedural default.
We decline to consider this issue for the reasons we've already articulated above as
Salazar-Moreno failed to properly preserve this issue with a proper contemporaneous
objection.
IV. DID THE DISTRICT COURT ABUSE ITS DISCRETION BY DENYING SALAZAR-
MORENO'S MOTION FOR A PSYCHOLOGICAL EXAMINATION OF THE VICTIM?
Salazar-Moreno next argues the district court erred in denying his motion for a
psychological evaluation of D.D. because D.D.'s recounting of the incidents contained
significant inconsistencies. Salazar-Moreno claims there was evidence that D.D. had
mental health issues. Additionally, Salazar-Moreno alleges the district court's denial of
his motion violated his rights under the Confrontation Clause of the Sixth Amendment to
the United States Constitution because it deprived him of his ability to effectively cross-
examine D.D. The State argues Salazar-Moreno's motion was a fishing expedition to
uncover potential evidence and Salazar-Moreno failed to provide the district court with
compelling reasons to order a psychological examination of D.D.
Standard of Review
"A district court's decision whether to grant a psychological evaluation of a
complaining witness [is reviewed] for abuse of discretion." State v. McCune, 299 Kan.
1216, 1230, 330 P.3d 1107 (2014). A district court commits an abuse of discretion when
its decision: (1) is one that no reasonable person would have adopted; (2) is based on an
error of law; or (3) is based on an error of fact. Thomas, 307 Kan. at 739. "When a
discretionary decision requires fact-based determinations, a district court abuses its
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discretion when the decision is based on factual determinations not supported by the
evidence." State v. Gonzalez, 290 Kan. 747, 757, 234 P.3d 1 (2010). The asserting party
bears the burden to demonstrate an abuse of discretion. Thomas, 307 Kan. at 739.
Issues pertaining to the Confrontation Clause are reviewed de novo. See State v.
Belone, 295 Kan. 499, 502-03, 285 P.3d 378 (2012).
Analysis
A district judge has the discretion to order a psychological evaluation of the
complaining witness in a sex crime case if the defendant shows compelling circumstances
to justify that examination. State v. Berriozabal, 291 Kan. 568, 580-81, 243 P.3d 352(2010); State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979). Whether the defendant
has demonstrated compelling reasons to justify a psychological examination of the victim
is viewed under the totality of the circumstances. McCune, 299 Kan. at 1231. "Appellate
courts are typically loathe to find an abuse of discretion when a district court refuses to
order a psychological examination of a young sex abuse victim, unless the circumstances
are extraordinary." State v. Eddy, 299 Kan. 29, 34, 321 P.3d 12, cert. denied 574 U.S. 840(2014).
A. The Gregg Factors
In Gregg, 226 Kan. at 490, the Kansas Supreme Court upheld the district court's
denial of a motion for a psychological examination because the defendant failed to
provide any corroborating facts or evidence to support his motion, and the motion was
clearly a fishing exhibition. The Kansas Supreme Court's analysis has developed into the
so-named Gregg factors, which are:
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"'(1) whether there was corroborating evidence of the complaining witness' version of the
facts, (2) whether the complaining witness demonstrates mental instability, (3) whether
the complaining witness demonstrates a lack of veracity, (4) whether similar charges by
the complaining witness against others are proven to be false, (5) whether the defendant's
motion for a psychological evaluation of the complaining witness appears to be a fishing
expedition, and (6) whether the complaining witness provides an unusual response when
questioned about his or her understanding of what it means to tell the truth.' Berriozabal,
291 Kan. 568, Syl. ¶ 5." McCune, 299 Kan. at 1231.
Though a nonexhaustive list, the parties here do not suggest any other additional factors
for us to consider. See Berriozabal, 291 Kan. at 581-82.
Salazar-Moreno does not address the first Gregg factor in his brief. As with many
sexual assault cases, the only witnesses to the alleged incidents were D.D. and Salazar-
Moreno. While there was no additional direct evidence, the State was able to provide
additional, circumstantial evidence. Two witnesses testified at the preliminary hearing
that Dawn called the victim's mother and told her that Salazar-Moreno admitted to having
sexual intercourse with D.D. Additionally, Dr. Losew's medical examination of D.D. led
her to conclude the injury to D.D.'s hymen was consistent with D.D.'s report. Although
no additional direct evidence exists, the existence of circumstantial evidence leads this
factor to weigh slightly in the favor of finding the district court did not abuse its
discretion.
Salazar-Moreno argues the second factor—whether the complaining witness
demonstrates any mental instability—weighs in his favor because Dr. Losew's report
documented the victim's 32-pound weight loss and noted depressive symptomatology.
Additionally, there was evidence that D.D. received mental health therapy. But Salazar-
Moreno did not present any evidence to suggest persons suffering from "depressive
symptomatology" are "any less credible than the population at large because of that
condition." See State v. Coggs, No. 104,934, 2012 WL 5364658, at *3 (Kan. App. 2012)
15
(unpublished opinion) ("Coggs introduced no evidence to suggest persons suffering from
bipolar disorder are any less credible than the population at large because of that
condition."). Additionally, Salazar-Moreno did not identify a particular purpose for the
counseling or any clinical diagnosis of a recognized mental illness. See State v. Gay, No.
107,433, 2013 WL 517828, at *5 (Kan. App. 2013) (unpublished opinion) ("Participation
in 'counseling' would not in and of itself suggest grounds for an independent
psychological evaluation."). Salazar-Moreno does not support his assertion with any
evidence to show how D.D.'s mental health therapy affected her credibility. Accordingly,
the second factor weighs in favor of finding the district court did not abuse its discretion.
Addressing the third factor—whether the complaining witness demonstrates a lack
of veracity—of the four points Salazar-Moreno makes in his brief, three of them allege
D.D. demonstrated a lack of veracity. Salazar-Moreno supports this argument by
highlighting the inconsistencies in D.D.'s recounting of the events. While D.D. did have
some variation in her description of the events, her various recountings largely remained
consistent. D.D. was inconsistent about what Salazar-Moreno wore on December 30 and
in what room the sexual intercourse occurred, but she never altered the core of her story
that Salazar-Moreno had sex with her. Additionally, there was inconsistency about the
exact months the touching occurred. But the inconsistency was whether they occurred in
October and November or in November and December. D.D. consistently stated that the
first incident occurred in Salazar-Moreno's car and involved him touching her breast over
her clothes, and the second incident occurred in Salazar-Moreno's basement and involved
him rubbing her breasts and vagina under her clothes.
Salazar-Moreno also asserts D.D. showed a lack of veracity because, when rumors
spread in her school about her sexual activity, D.D. and her friends denied that anything
occurred. While the rumor at school was not probed at a significant level before the
district court, it is not difficult to imagine a middle school girl and her friends not
wanting her entire school to find out she had nonconsensual sexual intercourse, especially
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with a man in his 30s. Trying to stop an embarrassing rumor, true or not, is less evidence
of a lack of veracity than of being a typical middle-schooler.
While some details were inconsistent, the inconsistencies do not present a
substantial and compelling reason to require a psychological evaluation. See Berriozabal,
291 Kan. at 580-81. When the complaining witness' accounts are consistent throughout
all the interviews, hearings, and the trial, the defendant generally does not establish a
compelling reason. See State v. McIntosh, 274 Kan. 939, 946, 58 P.3d 716 (2002).
Accordingly, the third factor weighs in favor of finding that the district court did not
abuse its discretion.
Salazar-Moreno does not address the fourth factor—whether similar charges by
the complaining witness against others have been proven false—and there is nothing in
the record to suggest D.D. has ever made any other allegations of sexual abuse.
Accordingly, this factor weighs in favor of finding the district court did not abuse its
discretion.
Addressing the fifth factor—whether the motion for a psychological examination
of the complaining witness appears to be a fishing expedition—the State asserts the
motion was vague, factually inaccurate, and amounted to nothing more than a fishing
expedition to uncover potential useful evidence. Salazar-Moreno was mainly concerned
with D.D.'s veracity and her recounting of the events. This appears to be a veiled
challenge to D.D.'s credibility and not evidence of compelling reasons to order an
examination. See State v. Ballou, No. 116,252, 2017 WL 3575610, at *16 (Kan. App.
2017) (unpublished opinion) (holding argument that victim's varying statements was "a
veiled challenge to [the victim's] credibility as a witness and not evidence showing
compelling reasons to order a psychological evaluation"), aff'd 310 Kan. 591, 448 P.3d
479 (2019). Accordingly, the fifth factor weighs in favor of finding the district court did
not abuse its discretion.
17
Salazar-Moreno does not address the sixth factor—whether the complaining
witness provides an unusual response when questioned about her understanding of the
truth. In her interview with Holzrichter, D.D. describes the truth as "Tell them what
happened." D.D. described telling a lie as "To make up something." When asked at the
preliminary hearing if she told the truth, D.D. responded, "Yeah." When asked what she
was told about testifying at the preliminary hearing, D.D. said, "Tell the truth." Nothing
in D.D.'s responses indicated she did not understand what the truth is. Accordingly, the
sixth factor weighs in favor of finding that the district court did not abuse its discretion.
Given that all six Gregg factors weigh in favor of finding that the district court did
not abuse its discretion, we hold the district court did not err when it denied Salazar-
Moreno's motion for a psychological evaluation.
B. Right to Confrontation
Salazar-Moreno also asserts the district court's ruling prejudiced him because it
prevented him from effectively cross-examining D.D. The right of a criminal defendant
to cross-examination is inherent in the Sixth Amendment's right to confrontation. But that
right is not absolute. "In certain circumstances it must 'bow to accommodate other
legitimate interests in the criminal trial process.'" Thomas, 307 Kan. at 738.
Salazar-Moreno cites two non-Kansas cases to support his argument. Neither case
is binding on us, and both cases are distinguishable. In Gray v. State, 640 So. 2d 186 (Fla.
Dist. Ct. App. 1994), the defendant asked for an expert to conduct a personal interview of
a complaining witness but was denied. The Florida Court of Appeals held a failure to
allow the defendant to conduct an interview deprived the defendant of fundamental
fairness because he could not present a fair defense to the State's case. 640 So. 2d at 192.
Here, Salazar-Moreno asked for a more intrusive psychological examination. In People v.
Wheeler, 151 Ill. 2d 298, 602 N.E.2d 826 (1992), the only way for a defense expert to
18
testify about the victim's alleged rape trauma syndrome besides an examination was for
the defendant to pay an expert to sit and watch the State's expert testify. The State's
expert "based her opinion on her own subjective interpretation of the victim's answers to
questions and certain nonverbal factors." 151 Ill. 2d at 310. The Illinois Supreme Court
held the State presenting testimony of an examining expert about rape trauma syndrome
while the defendant was limited to testimony from a nonexamining expert was
fundamentally unfair. 151 Ill. 2d at 311. Here, a video of Holzrichter's interview and Dr.
Losew's report based on a physical examination were available for the defendant and any
expert to analyze.
Salazar-Moreno's motion argued D.D. might not be competent to testify because
of the inconsistencies in her various recountings. Defense counsel could, and did, cross-
examine D.D. at trial about those inconsistencies. Holzrichter also testified about her
interview of D.D., and the video was played before the jury. Dr. Losew testified about the
conclusions she reached in her report. The State provided Salazar-Moreno with that
evidence, and defense counsel had the opportunity to cross-examine both witnesses.
Salazar-Moreno does not point to any additional evidence an intrusive psychological
evaluation of D.D. would have provided that would have allowed defense counsel to
more effectively cross-examine any of the State's witnesses.
The district court did not abuse its discretion.
V. DID THE STATE COMMIT PROSECUTORIAL ERROR DURING ITS CLOSING
ARGUMENT?
Salazar-Moreno alleges the prosecutor committed three errors in his closing
argument. First, the prosecutor offered his personal opinions about D.D.'s credibility
when he asked the jury what her motivation would be to make false allegations. Second,
the prosecutor attempted to lower the State's burden of proof by suggesting that any
19
doubt a juror might have was not reasonable until discussed with the other jurors. Third,
the prosecutor improperly asked the jury to "do its duty." The State responds that: (1) a
prosecutor's argument that a witness lacked a motive to be untruthful is not improper
vouching; (2) a prosecutor may distinguish between proof beyond a reasonable doubt and
proof beyond any doubt in closing arguments; and (3) a prosecutor's exhortation to the
jury to "do your duty," when taken in context, is simply a statement referencing the jury's
duty to decide the facts.
Standard of Review
We employ a two-step process to review prosecutorial error claims: error and
prejudice.
"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.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). We
continue to acknowledge that the statutory harmlessness test also applies to prosecutorial
error, but when 'analyzing both constitutional and nonconstitutional error, an appellate
court need only address the higher standard of constitutional error.' State v. Sprague, 303
Kan. 418, 430, 362 P.3d 828 (2015)." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060(2016).
20
Analysis
Prosecutors may draw
"'reasonable inferences from the evidence but may not comment on facts outside the
evidence.' Any argument 'must accurately reflect the evidence, accurately state the law,
and cannot be "intended to inflame the passions or prejudices of the jury or to divert the
jury from its duty to decide the case based on the evidence and the controlling law."'
[Citations omitted.]" State v. Longoria, 301 Kan. 489, 524, 343 P.3d 1128 (2015).
When prosecutorial error is alleged, the statements are not taken in isolation but are
viewed in context. See State v. Anderson, 308 Kan. 1251, 1261, 427 P.3d 847 (2018).
While a timely objection is not a required precondition for appellate review of a
prosecutor's statements during closing argument, an objection by defense counsel—or
lack thereof—may affect an appellate court's analysis. State v. Sean, 306 Kan. 963, 974,
399 P.3d 168 (2017).
Each statement challenged by Salazar-Moreno occurred at a different point of the
prosecutor's closing argument, and each will be addressed in the order in which Salazar-
Moreno raises them.
A. D.D.'s motivation to make false allegations
First, Salazar-Moreno argues the prosecutor committed prosecutorial error when
he made the following remark during his closing argument:
"What possible reasons could there be for inconsistencies? Maybe time. Maybe
it's been two years since the child last testified in the case. Maybe it's because it happened
so long ago. Maybe it's because of natural changes that occur in the brain as to what
happened . . . . Sometimes there are natural reasons for inconsistences. They are caused
21
by stress or perhaps they are caused by an intentional effort not to recall those events;
don't think about them. Don't dwell on them. Put it away in the back of your mind until
one day you're asked to get on the stand and recall every detail.
"Use your common sense and experience. One thing you should consider when
you're thinking about the testimony of [D.D.], what motivation? What is the motivation
for her to make false allegations in the case? Think about that very carefully. What
motivation does she have?" (Emphasis added.)
Salazar-Moreno takes issue with the italicized portion. Defense counsel objected at trial,
and the district court overruled the objection.
Generally, prosecutors may not offer their personal opinions to the jury about the
credibility of witnesses. Prosecutors may explain what a jury should look for to assess
witness credibility, especially when defense counsel has attacked the credibility of the
State's witnesses. See State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). A
prosecutor's argument that the victim did not have a motive to be untruthful does not
constitute vouching for the witness' credibility. King, 288 Kan. at 353.
In King, the Kansas Supreme Court found the prosecutor did not commit error
when the prosecutor asked the jury, "'Who has the motive to be untruthful? It's not [L.E.].
. . . The evidence [that] has been submitted to you is consistent with what she's told you.
The person who has the motive to be untruthful is not [L.E.].'" 288 Kan. at 350. This
conclusion was strengthened by the fact that the defense counsel also made statements
during closing argument about whether the victim or the defendant had a greater
motivation to lie. 288 Kan. at 351.
The Kansas Supreme Court also found no error in State v. Finley, 273 Kan. 237,
247, 42 P.3d 723 (2002), when the prosecutor stated: "'Tom and Denise are the only ones
that really have a motive to fabricate any lies in this case.'" But the court did find error
22
when the prosecutor told the jury: "'I just can't buy this story that Tom and Denise
[came] up with.'" 273 Kan. at 247. Similarly, no error was found in State v. Moore, 274
Kan. 639, 646, 55 P.3d 903 (2002), when the prosecutor told the jury, "[N]othing that
you've been told here in the last two days should indicate to you that she's a liar" and
"Well, she already paints him as a liar just by that alone."
Here, the prosecutor's statements are similar to those in King. The prosecutor
rhetorically asked the jury what motivation D.D. had to lie. Additionally, although
defense counsel had yet to make his closing argument, the defense presented at trial
focused on the inconsistencies in D.D.'s statements. Indeed, defense counsel's first words
of his closing argument were "Different story. Different story. Different story." The
prosecutor chose to address the inconsistencies in D.D.'s recounting and asked the jury to
think what D.D.'s motivation would be to lie. Unlike in King or Moore, the prosecutor
here did not answer his question. The prosecutor did not tell the jury that D.D. was telling
them the truth or that Dawn was lying. Instead, after the defense's objection, the
prosecutor told the jury that they had to decide if D.D. had a motive to falsify allegations.
The prosecutor's statements do not fall out of the wide latitude granted to
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." See Sherman, 305
Kan. at 109. Asking the jury to consider D.D.'s motivations to lie was not error.
B. Defining reasonable doubt
Salazar-Moreno next alleges the prosecutor erred when discussing the difference
between reasonable doubt and no doubt with the jury. In his closing, the prosecutor
stated,
23
"Ladies and Gentlemen, there's a presumption of innocence that applies to the
defendant, to every defendant that walks in the courtroom. The State submits it's been
pierced. You have to be convinced beyond a reasonable doubt. You can have doubt. You
can find the defendant guilty with a doubt. The question is you have to decide whether
you have a reasonable doubt. If you have a reasonable doubt, you have to find the
defendant not guilty. If you have any doubts, you need to discuss them among yourselves
to determine whether they are reasonable. And only you can decide that." (Emphasis
added.)
Salazar-Moreno alleges the italicized portion of the prosecutor's statement improperly
told the jurors that doubt could only be reasonable if discussed with the other jurors.
Defense counsel did not object to this statement.
Incorrectly defining reasonable doubt or diluting the State's burden of proof is
outside of the wide latitude given to prosecutors during closing arguments. State v. Holt,
300 Kan. 985, 1002, 336 P.3d 312 (2014). In State v. Stevenson, 297 Kan. 49, 53, 298
P.3d 303 (2013), the Kansas Supreme Court held it was permissible for the prosecutor to
"draw[] a distinction between the concept of proof beyond a reasonable doubt and proof
beyond all doubt, rather than attempting to provide a meaning for 'reasonable doubt.'" See
Sherman, 305 Kan. at 117. The prosecutor's statements there did not state or imply that
the State's burden was less than a reasonable doubt. Stevenson, 297 Kan. at 54. Though
the statement was not error, the Kansas Supreme Court cautioned that using a Wheel of
Fortune analogy to distinguish no doubt and reasonable doubt "scuffed the line of
misconduct without actually crossing it" because "only a slight difference in wording
would have resulted in error." 297 Kan. at 55. In contrast, our Supreme Court found the
use of an analogy of a puzzle with missing pieces was error because the prosecutor did
not attempt to distinguish between no doubt and reasonable doubt. State v. Crawford, 300
Kan. 740, 755, 334 P.3d 311 (2014).
24
Here, the prosecutor's statements permissibly discussed the difference between
doubt and reasonable doubt. Additionally, when taken in context, the prosecutor did not
tell the jury that doubt could only be reasonable if discussed with other juror members as
Salazar-Moreno alleges. The prosecutor told the jurors that only they can decide if their
doubts are reasonable. The prosecutor was asking the jurors to discuss any doubts with
other jurors to decide if they have reasonable doubts and ultimately determine guilt.
Finally, the prosecutor avoided the potential pitfalls discussed in Stevenson by not
employing an analogy. Instead, the prosecutor asked the jurors to determine if their
doubts were reasonable without defining reasonable doubt for them.
There was no error in the prosecutor's statements about reasonable doubt.
C. "Do your duty"
Finally, Salazar-Moreno alleges the prosecutor erred by urging the jurors to "do
your duty" in the context of asking the jury to find Salazar-Moreno guilty. In closing his
rebuttal argument, the prosecutor told the jury:
"But you do, as jurors, based on the law, have to determine whether the defendant did
have sexual intercourse with a child who was under the age of 14, in Reno County,
Kansas on December 30, 2007. Did he lewdly fondle and touch her to arouse his or her
sexual desires in December and November? Was he married? Those are the facts you're
being asked to decide beyond a reasonable doubt. The intercourse doesn't require it be
unwilling or forced at knife point. Screaming and yelling. As the quote says, virginity is
neither given willingly or taken. It doesn't matter in this case; sex with a 13-year-old
child is against the law. The State asks you do your duty." (Emphasis added.)
Salazar-Moreno takes issue with the italicized portion. Defense counsel did not
object to this statement at trial.
25
The United States Supreme Court has held that an exhortation by the prosecutor
for the jury to "'do its job' . . . has no place in the administration of criminal justice" and
is an error. United States v. Young, 470 U.S. 1, 18, 105 S. Ct. 1038, 84 L. Ed. 2d 1(1985). But the Kansas Supreme Court has stated: "A prosecutor is certainly afforded the
latitude to ask the jury to look at the evidence . . . and enter a verdict which is consistent
with that evidence and which will then be, by definition, consistent with justice." State v.
Nguyen, 285 Kan. 418, 425, 172 P.3d 1165 (2007).
In his soliloquy to the jury, the prosecutor did not explicitly ask the jury to convict
Salazar-Moreno. Instead, the prosecutor discussed the elements of the charges. He told
the jury it must decide whether Salazar-Moreno fondled and touched D.D. and whether
he was married at the time. Then the prosecutor discussed the fact that rape of a person
under the age of 14 does not require unwillingness or force. Then the prosecutor asked
the jury to do its duty. The prosecutor's statements were not designed to pressure the jury
to find Salazar-Moreno guilty. The prosecutor closed his rebuttal argument by asking the
jury to look at the evidence and answer those questions to determine a verdict. Though
asking the jury to do its duty walks the line between error and no error, in the context of
the prosecutor's statements, it is clear the prosecutor was asking the jury to apply the facts
to the law and reach a verdict rather than pressuring the jury to find Salazar-Moreno
guilty.
The prosecutor's "do your duty" statement was within the wide latitude provided
for closing arguments. There was no error.
VI. WAS THERE CUMULATIVE ERROR?
Salazar-Moreno argues the cumulative effect of the prosecutorial error and legal
errors of the district court deprived him of his right to a fair trial. We review de novo
"whether the totality of the circumstances substantially prejudiced a defendant and denied
26
the defendant a fair trial based on cumulative error." State v. Brown, 298 Kan. 1040,
1056, 318 P.3d 1005 (2014).
However, there is no cumulative error when the record fails to support the errors
raised by the defendant on appeal. State v. Marshall, 303 Kan. 438, 451, 362 P.3d 587(2015). A single error cannot support reversal under the cumulative error doctrine. State
v. Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018). As we have found no errors before
the district court, we cannot find cumulative error.
VII. DID THE DISTRICT COURT ABUSE ITS DISCRETION WHEN IT DENIED SALAZAR-
MORENO'S MOTION FOR DURATIONAL AND DISPOSITIONAL DOWNWARD
DEPARTURES?
Finally, Salazar-Moreno argues the district court erred when it denied his motion
for a durational and dispositional downward departure from a Jessica's Law life sentence.
Salazar-Moreno argues the district court improperly considered aggravating
circumstances when it heard unsworn statements from D.D.'s family before ruling on the
departure motion. Salazar-Moreno also asserts the district court committed a legal error
when it found that voluntary participation of the victim would never apply in a child sex
case and a factual error when it refused to consider that Salazar-Moreno did not use force
to commit his crimes. The State responds that the district court may consider the facts of
the case and the nature of the crime to decide a departure motion under Jessica's Law.
Further, the State argues that a minor victim's participation is not necessarily a mitigating
factor.
Standard of Review
Jessica's Law requires a defendant who is at least 18 years old and convicted of the
statutorily enumerated crime to serve a hard 25 life sentence. K.S.A. 21-4643(a)(1); State
27
v. Powell, 308 Kan. 895, 902, 425 P.3d 309 (2018). A first time Jessica's Law offender
may be sentenced under the Kansas Sentencing Guidelines Act if "the [sentencing] judge
finds substantial and compelling reasons, following a review of mitigating circumstances,
to impose a departure." K.S.A. 21-4643(d); 308 Kan. at 902.
"[A] district court's determination as to whether there are substantial and compelling
reasons to depart [is reviewed] for abuse of discretion. A district court abuses its
discretion when: (1) a ruling is based on an error of law; (2) a ruling is based on an error
of fact . . . ; or (3) a ruling is arbitrary, fanciful, or unreasonable, i.e., no reasonable
person would take the view adopted by the judge." 308 Kan. at 902-03.
Whether a fact in a departure ruling is beyond the district court's authority is a question of
law subject to de novo review. See 308 Kan. at 912. The defendant bears the burden to
establish an abuse of discretion. Thomas, 307 Kan. at 739.
Analysis
K.S.A. 21-4643(d) contains a nonexclusive list of mitigating circumstances for the
sentencing judge to consider. Jessica's Law does not allow for the weighing of
aggravating circumstances against mitigating circumstances to determine if a departure
should be granted because, with a 25-year mandatory minimum, "'there is nowhere to go
but to a less-intense place.'" State v. Jolly, 301 Kan. 313, 321-22, 342 P.3d 935 (2015)
(quoting State v. Spencer, 291 Kan. 796, 809, 248 P.3d 256 [2011]).
Jolly provides the proper framework to consider a Jessica's Law departure motion.
First, the district court reviews the mitigating circumstances without weighing them
against any aggravating circumstances. Second, the district court considers whether the
mitigating circumstances are substantial and compelling reasons to depart from the
mandatory sentence. 301 Kan. at 324. Substantial is "'"something that is real, not
imagined; something with substance and not ephemeral," while the term "'compelling'
28
implies that the court is forced, by the facts of a case, to leave the status quo or go beyond
what is ordinary."'" 301 Kan. at 323. "Finally, if substantial and compelling reasons are
found for departure . . . , the district court must state on the record those substantial and
compelling reasons." 301 Kan. at 324.
"[M]itigating circumstances do not necessarily equal substantial and compelling
reasons." 301 Kan. at 323. The facts of the case are essential for the district court to
determine if a departure is proper based on substantial and compelling reasons. The
district court "does not sentence in a vacuum. The sentencing judge is to consider
information that reasonably might bear on the proper sentence for a particular defendant,
given the crime committed, including the manner or way in which an offender carried out
the crime." 301 Kan. at 323-24.
In Powell, 308 Kan. at 906-08, the Kansas Supreme Court sought to clarify its
caselaw, recognizing that its prior decisions in Jolly and State v. McCormick, 305 Kan.
43, 378 P.3d 543 (2016), had left lower courts confused and led to inconsistent
applications. A district court is not required to state its reasons on the record for denying
a departure motion, only when granting a departure motion. Powell, 308 Kan. at 908-09.
While the Kansas Supreme Court acknowledged that it is "laudable" for the district court
to state its reasons, "those explanations are voluntary and have injected opportunity for
challenge based on our language from Jolly and McCormick." 308 Kan. at 909.
In Powell, the Kansas Supreme Court overruled cases that found abuses of
discretion when the record failed to affirmatively demonstrate the district court's
application of the Jolly framework because those cases were "oddly contrary to how
abuse of discretion review is typically performed—namely, the general rule that a party
arguing an abuse of discretion bears the burden of proving it." Powell, 308 Kan. at 910.
The Supreme Court noted that, "in other contexts, a district court's failure to express each
step of an applicable legal framework on the record has not required reversal . . . .
29
[N]othing in Jolly altered the general principles underlying abuse of discretion review."
308 Kan. at 910-11.
Under Powell, "the only question on appeal is whether something in the record
shows an abuse occurred." 308 Kan. at 911. Powell presented several arguments and
introduced evidence to argue that mitigating circumstances existed to depart from his
presumptive Jessica's Law sentence. The district court denied the motion, stating: "'After
considering all of the information presented today, the Court cannot find substantial and
compelling reasons to depart from the presumed sentence.'" 308 Kan. at 900. The district
court did not expressly state that it considered any facts or arguments as aggravating, nor
did it state whether it weighed any aggravating circumstances to reach its decision.
Powell appealed, arguing the district court failed to determine if mitigating factors
existed and included aggravating circumstances and "'inappropriate facts' in its analysis
because the court said it 'considered all of the information presented today.'" 308 Kan. at
900. Another panel of this court reversed the district court because it could not
definitively determine from the record whether the district court weighed any aggravating
circumstances. 308 Kan. at 902. The Kansas Supreme Court granted review to determine
whether to reverse the district court "simply because the court did not affirmatively
declare that it reviewed Powell's mitigating circumstances without weighing them against
aggravating circumstances." 308 Kan. at 901-02. The Kansas Supreme Court noted there
was no evidence that the district court engaged in any weighing or that it even considered
any information presented to it as aggravating. 308 Kan. at 911. Ultimately, the Kansas
Supreme Court held that it was not error for the district court to consider all of the
information presented "'today.'" 308 Kan. at 912-13.
Salazar-Moreno claimed several mitigating factors existed, including his lack of
criminal history, D.D.'s participation through her repeated phone calls to him, his
dedication to his family, his work history, and his family's need for his support. Salazar-
Moreno presented several letters and testimony from family and friends supporting him
30
and supporting his mitigating factors. The district court asked the State to respond to
Salazar-Moreno's arguments and incorporated the State's sentencing recommendations
into the argument. The State argued that all of the testimony the district court heard was
only the opinions of Salazar-Moreno's friends and family. The State did not address the
actual sentence. Defense counsel responded by asking the district court to note that the
State did not propose any aggravating factors.
After hearing both sides, the district court stated, "I was assuming I would rule on
the motion for departure first. Because the defendant has presented testimony, I'm going
to let any victims address the Court at this time, and then I certainly will hear from the
State on its recommendation on sentencing." D.D.'s mother addressed the district court
and read letters from D.D. and D.D.'s sister regarding how the experience had affected
them. Included in both letters was an allegation that Salazar-Moreno's family threatened
D.D.'s family over the allegations. D.D.'s grandparents also submitted a letter to the
district court.
The district court took a brief recess to read the letters presented by Salazar-
Moreno to support his motion. The district court noted the law required the court to
sentence Salazar-Moreno to the mandatory minimum unless the court found substantial
and compelling reasons to depart following a review of any mitigating circumstances.
The district court went through the statutorily enumerated mitigating circumstances and
found only Salazar-Moreno's lack of significant criminal history applied. The district
court acknowledged it could consider other mitigating circumstances but found that none
presented by Salazar-Moreno were "sufficient [mitigation] for me to vary from the
required statutory term." Ultimately, the district court denied the motion and imposed the
Jessica's Law sentence for each of the applicable convictions.
Salazar-Moreno asserts the testimony by D.D.'s family constituted aggravating
circumstances. By hearing their statements before ruling on his departure motion,
31
Salazar-Moreno argues the district court improperly weighed his mitigating
circumstances against the State's aggravating circumstances. We disagree. There is no
evidence in the record to show the district court considered the statements of D.D.'s
family to be aggravating circumstances or that the district court considered those
statements when denying Salazar-Moreno's motion. When the district court explained its
reasoning on the record, the district court went through the enumerated factors in K.S.A.
21-4643(d) and Salazar-Moreno's additional arguments. The district court did not
mention the State's arguments or D.D.'s family's statements. There is no evidence in the
record that the district court relied on circumstances outside of the record or weighed any
aggravating circumstances to make its ruling.
Salazar-Moreno also alleges the district court made a factual error because it
refused to consider as a mitigating factor the fact that Salazar-Moreno did not use force
during the commission of his offense. Salazar-Moreno argues this was an abuse of
discretion because evidence supported this factor. But a review of the record reveals that
the district court considered this argument. The district court stated it considered the
evidence presented by Salazar-Moreno at the sentencing hearing and found there was not
sufficient mitigation to depart from the presumptive sentence. That evidence included the
violent or nonviolent nature of the crime. Additionally, a district court is not required to
state any or all of its reasons for denying a departure motion. Powell, 308 Kan. at 908-09.
There was no error of fact and, thus, no abuse of discretion.
Salazar-Moreno argues the district court made a legal error when it stated that the
voluntary participation of the victim would never apply in the context of a child sex case.
Salazar-Moreno relies on State v. Minor, 268 Kan. 292, 313, 997 P.2d 648 (2000), and
State v. Sampsel, 268 Kan. 264, 281, 997 P.2d 664 (2000), to support his argument that
participation of a minor is a mitigating circumstance. Although the district court did state
that whether a victim is an accomplice would never apply in a crime against a child,
immediately preceding that assertion, the district court stated, "The next [possible
32
mitigating circumstance] is that the victim was an accomplice. There is no evidence to
assert that." While the district court did make a legal conclusion about that circumstance's
applicability, it first made a factual finding that there was no evidence to support that
enumerated mitigating circumstance. Even if the district court had considered that
mitigating circumstance as possible, it found no evidence to support it. There is no error
of law and no abuse of discretion.
Our remaining consideration is whether no reasonable person would take the
district court's view. A life sentence with a mandatory minimum of 25 years'
imprisonment for a Jessica's Law conviction is the rule. A departure is the exception. The
district court found the mitigating circumstances argued by Salazar-Moreno were not
substantial and compelling to justify a departure when considering the facts and nature of
the convictions. As a reasonable person could take the district court's view, we find no
abuse of discretion by the district court's refusal to grant a departure in this case.
We affirm Salazar-Moreno's convictions and sentences.
Affirmed.
33