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No. 101,337 No. 101,338 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. JUAN M. AGUIRRE, Appellant.

SYLLABUS BY THE COURT 1. An appellate court applies the abuse of discretion standard in reviewing the district court's ruling on a criminal defendant's motion for a mistrial on account of the prosecutor's violation of an order in limine. In doing so, the appellate court first considers whether the order in limine was violated. Next, it considers whether the defendant suffered substantial prejudice from the violation. In considering the element of prejudice, the appellate court examines (1) whether the violation was so gross and flagrant as to deny the defendant a fair trial, (2) whether the misconduct demonstrated ill will, and (3) the weight the misconduct would have had in the minds of the jurors in light of the other evidence against the defendant.

2. Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment. Evidence is also exculpatory if it bears upon the credibility of a key witness on an important issue in the case.

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3. The jury in a criminal case is required to arrive at a unanimous verdict. In a case in which there are alternative means by which the crime can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on the other alternative means. When this occurs, however, this does not subvert the defendant's right to a unanimous verdict if there is substantial evidence to support each alternative means for committing the crime.

4. Normally, attempted crimes are distinct from completed crimes and constitute separate crimes. See K.S.A. 21-3301. However, K.S.A. 21-3833 defines aggravated intimidation of a victim or witness to encompass both the successful intimidation and the attempted but unsuccessful intimidation. By so doing, it is clear that whether the crime is committed is not a function of how effective the intimidation was. Rather, there is but one criminal act: to intimidate a victim or witness with the intent to deter the reporting of a crime, whether or not the intimidation is successful. In other words, one does not commit the crime of intimidating a witness by alternative means of either doing it or merely trying to do it.

5. In the context of alternative means for the commission of a crime, the word means connotes causality between a proscribed act and its undesirable consequences; a method of accomplishing an end, i.e., of causing an end to occur. The defendant may batter the victim by means of either punching or kicking. The various manifestations of the mental state of malice that a defendant may have while doing the prohibited act do not constitute alternative means for committing the crime.

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6. A party's pretrial objection to the admission of expert testimony is not sufficient to preserve the issue for appeal. The objecting party must raise an objection at trial to preserve the issue for appeal. Further, the objection at trial must be both timely and specific.

7. An appellant has the burden of furnishing a record on appeal that supports each claim of error.

8. The admission of expert testimony generally lies within the broad discretion of the district court, and the court's decision regarding the admission of such testimony will not be overturned absent a showing of an abuse of that discretion.

9. When a witness recants his or her testimony in a criminal case, the State may present the witness' prior inconsistent statements to establish the charged offenses. The witness' prior statements may be used to support a conviction.

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed January 7, 2011. Affirmed.

Rachel Pickering, of Kansas Appellate Defender Office, for appellant.

Tamara S. Hicks, assistant county attorney, John P. Wheeler, Jr., county attorney, and Steve Six, attorney general, for appellee.

Before MCANANY, P.J., ATCHESON, J., and LARSON, S.J. 3

MCANANY, J.: Juan M. Aguirre appeals his convictions and sentences in two cases: a 2006 case in which he was convicted of failing to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq.; and a 2007 case in which he was convicted of rape, aggravated indecent liberties with a child, and aggravated intimidation of a victim. The parties are well acquainted with the facts of each case so we need not recount them in detail here. The following brief synopsis should suffice.

Aguirre had been convicted of a sex crime, which resulted in him being required to register under the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. The authorities received information that Aguirre had moved from one residence to another without updating his registration under the Act. Following an investigation, Aguirre was charged with violating K.S.A. 22-4904(b), which required him to update his registration within 10 days of his move. His trial in May 2007 resulted in a mistrial. He was retried and convicted in 2008, leading to this appeal.

In the course of the investigation into Aguirre's failure to register under the Act, the Sheriff obtained information that Aguirre may have sexually abused N.R., the 15year-old daughter of the woman with whom he was living. An investigator interviewed N.R. at school. During that interview N.R. described various incidents of sexual abuse at the hands of Aguirre. In a later interview, however, N.R. recanted her previous statement. At Aguirre's trial for rape, aggravated indecent liberties with a child, and aggravated intimidation of a victim, N.R. again recanted her previous statement. However, the State introduced her prior inconsistent statement along with other evidence of Aguirre's guilt. Aguirre was convicted on all charges and this appeal followed.

Both of Aguirre's appeals were consolidated for these proceedings.

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2006 CASE I. Motion in Limine

Aguirre contends that the district court abused its discretion in denying his motion for a mistrial based upon the State's violation of a motion in limine. Prior to trial, the court entered an order excluding any reference at trial to Aguirre's prior sex offense. Aguirre and the State stipulated that he had been convicted of a crime that required him to register pursuant to the Kansas Offender Registration Act.

At trial, the State called Sondra Meier, the supervisor of the offender registration unit of the Kansas Bureau of Investigation, to testify about the registration requirements. Meier testified that Kansas law required certain offenders of violent and sexual crimes to register. Aguirre raised a general objection which was overruled and then, at the conclusion of Meier's testimony, moved for a mistrial, which the court denied.

We review the district court's ruling on Aguirre's motion for a mistrial for any abuse of the court's discretion. See State v. McReynolds, 288 Kan. 318, 329, 202 P.3d 658 (2009). In doing so, we first consider whether the order in limine was violated. Next, we consider whether Aguirre suffered substantial prejudice from the violation. See State v. Crum, 286 Kan. 145, 160, 184 P.3d 222 (2008). In considering the element of prejudice, we examine (1) whether the violation was so gross and flagrant as to deny Aguirre a fair trial, (2) whether the misconduct demonstrated ill will, and (3) the weight the misconduct would have had in the minds of the jurors in light of the other evidence against Aguirre. See State v. Albright, 283 Kan. 418, 426-27, 153 P.3d 497 (2007); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004).

Clearly, the prosecutor should have better prepared her witness to describe the Offender Registration Unit in a manner consistent with the court's order in limine. 5

Nevertheless, the testimony was not unduly prejudicial. The court informed the prospective jurors during voir dire that Aguirre was charged with failing to register as required by the Kansas Offender Registration Act. It was no secret that Aguirre was an offender who was required to register. It is safe to say that the average layperson knows that if you are convicted of a minor offense you do not have to register with the State every time you move your place of residence. It must be some sort of a big deal if you have to register. The witness categorized the big-deal offenses as violent offenses or sex offenses. The jury was not told which applied to Aguirre. The reference to violent offenses and sex offenses occurred only once. There is nothing to suggest that this single reference was intentional or motivated by ill will towards Aguirre. It certainly was not gross or flagrant. As a result, we conclude that Aguirre was not prejudiced by the witness' description of the Offender Registration Unit. The trial court did not err in denying his motion for a mistrial.

II. Exculpatory Evidence

Next, Aguirre contends that the prosecutor engaged in misconduct by failing to disclose exculpatory evidence. On the morning the trial commenced, the prosecutor advised the court, outside the presence of Aguirre or his counsel, that the preceding day she first learned that Aguirre had earlier claimed that Deputy Widows had raped N.R., the victim in the 2007 case. The prosecutor told the court that the Sheriff's Department conducted an internal investigation of the claim and determined it was unfounded. The district court concluded that the claim did not constitute exculpatory evidence with respect to the crime of failing to register and that the State was not required to disclose it to Aguirre, who obviously already knew of the claim because he made it.

"'Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.' [Citations omitted.] Evidence is also exculpatory if it bears 'upon the 6

credibility of a key witness on an important issue in the case.' [Citation omitted.]" State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997).

Clearly, whether Deputy Widows had raped N.R. was irrelevant to disprove any fact at issue in Aguirre's trial for failing to register. However, it may have had a bearing on Widows' credibility. But Aguirre cannot complain that the State failed to disclose the claim to him. After all, it was Aguirre who made the claim in the first place.

However, Aguirre may not have known of the internal investigation that followed. But how would that have been exculpatory? The conclusion of the internal investigation was that the claim was unfounded. See State v. McIntyre, 259 Kan. 488, 496, 912 P.2d 156 (1996). Could the fact of the claim and the resulting investigation have caused Widows to act in a vengeful way in investigating Aguirre? Clearly not. Aguirre had been tried before for his failure to register under the Act. That trial ended in a mistrial. Aguirre made his rape claim against Widows a couple of weeks later. Widows' investigation had been concluded long before Aguirre's claim and the internal investigation that followed. Thus, the fact of the claim against Widows and the internal investigation that followed would not have undermined Widows' credibility at trial. The prosecutor did not fail to turn over exculpatory evidence against Aguirre.

III. Cumulative Errors

Next, Aguirre claims that cumulative trial errors deprived him of his right to a fair trial. Here, however, the only possible error was the prosecutor's inadequate preparation of her witness to deal with the court's order in limine. One error does not an accumulation make. Thus, this claim necessarily fails.

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IV. Criminal History

Finally, Aguirre claims the use of his criminal history to enhance the penalty for his conviction constituted a violation of due process pursuant to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002), the Kansas Supreme Court rejected the claim Aguirre now asserts. We are bound by the holding in Ivory absent some indication the court is departing from this holding. See State v. Barajas, 43 Kan. App. 2d 639, 649, 230 P.3d 784 (2010). We see no such indication. Thus, this claim fails.

2007 CASE

I. Alternative Means

Aguirre first claims that his conviction for aggravated intimidation of a victim, as charged by the State, involved more than one means of committing the crime. The State charged Aguirre with aggravated intimidation of a victim as follows:

"That on or about the 1st day of November, 2002 through the 24th day of December, 2002, in Finney County, Kansas, Juan Manuel Aguirre, then and there being present did unlawfully, knowingly and maliciously prevent or dissuade or attempt to prevent or dissuade a victim, witness or person acting on behalf of a victim or a witness, NJR (DOB: 07/07/1991), from making a report of a crime or attempted crime, to a law enforcement, probation, parole, correctional, community correction services or judicial officer, in violation of K.S.A. 21-3833, Aggravated Intimidation of a Witness or Victim, a severity level 6 person felony."

At trial, the district court instructed the jury on the following elements of the crime of aggravated intimidation of a victim: 8

"1. That the defendant prevented or dissuaded, or attempted to prevent or dissuade, a victim, NJR, from making a report of a crime against an individual, NJR, to any law enforcement, probation, parole, correctional community correction services or judicial officer; "2. That the victim, NJR, was under 18 years of age; "3. That the defendant did so knowingly and maliciously; and "4. That this act occurred on or about the 1st day of November, 2002, through the 24th day of December, 2002, in Finney County, Kansas."

The jury was instructed further:

"As used in this instruction, maliciously means with an intent to vex, annoy, harm or injure in any way another person, or with an intent to thwart or interfere in any manner with the orderly administration of justice."

Aguirre requested a unanimity instruction, but the court refused to give it.

The jury in a criminal case is required to arrive at a unanimous verdict. In a case in which there are alternative means by which the crime can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on the other alternative means. When this occurs, however, this does not subvert the defendant's right to a unanimous verdict if there is substantial evidence to support each alternative means for committing the crime. See State v. Wright, 290 Kan. 194, Syl.

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