State v. Rivera

1
No. 100,470

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICARDO F. RIVERA,
Appellant.

SYLLABUS BY THE COURT

1.
Venue is a jurisdictional fact that must be proved to the jury in a criminal case.

2.
In the ordinary case, venue is shown by proof that the crime occurred in the county
where trial takes place, see K.S.A. 22-2602, but there are several exceptions to the
general venue rule. See K.S.A. 22-2603 to K.S.A. 22-2612. When one of these
exceptions applies, the district court should modify the pattern jury instruction to fit the
facts of the case.




2
3.
Jury verdicts in criminal cases must be unanimous, so a problem may arise when
the State presents evidence of more than one act that could constitute one of the crimes
charged.

4.
To determine whether a case is a multiple-acts case that requires a unanimity
instruction, the appellate court must first determine whether the case is truly a multiple-
acts case. The core question is whether the defendant's conduct related to each charge is
part of one overall act or represents multiple acts that are separate and distinct, such as
when independent criminal acts have occurred at different times or when a later criminal
act is motivated by a fresh impulse.

5.
When the acts at issue occur in a series over a very short time frame and form
parts of a whole, the case is not a multiple-acts case that requires a jury instruction on
unanimity.





3
6.
When the district court becomes aware of a possible conflict of interest between a
criminal defendant and his or her attorney, the court must make an inquiry to ensure that
the defendant's Sixth Amendment right to counsel is protected.

7.
An appellate court reviews allegations of prosecutorial misconduct in two stages.
First, we must determine whether the prosecutor has committed misconduct by exceeding
the wide latitude given an attorney to argue the case based upon the evidence. Second, if
we find misconduct, we must consider whether the misconduct prejudiced the defendant
and denied him or her a fair trial. In making that determination, we consider whether the
comments were gross and flagrant, whether they were motivated by ill will, and whether
the evidence was so overwhelming that the comments probably had little effect on the
jury's consideration of the case.

Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion
filed November 25, 2009. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.


4
Bradford L. Williams, assistant county attorney, Matthew W. Ricke, county
attorney, and Steve Six, attorney general, for appellee.

Before MALONE, P.J., PIERRON and LEBEN, JJ.

LEBEN, J.: Ricardo Rivera appeals his conviction for two counts of rape, raising
several claims of error: (1) that the district court relieved the State of its burden to prove
that the rape took place in Kingman County, (2) that the district court failed to make the
State specify which actions it relied upon for each rape charge, resulting in the possibility
of a nonunanimous jury verdict, (3) that the district court failed to give Rivera a new
attorney after a conflict arose with the attorney who represented him at trial, and (4) that
prosecutorial misconduct tainted the jury trial. After careful review of the record, we find
no error.

The State charged two separate rapes based on events occurring in a rural area and
different acts taking place at a residence in Kingman. We find that the State presented
the two events in a way that left no real possibility of a nonunanimous verdict. And
while the victim's testimony left some question regarding the exact rural location at
which one rape occurred, the district court's somewhat inconsistent instructions on the
State's obligation to prove venue could not have reasonably misled the jury given the
evidence in this case. The district court held a hearing before trial on Rivera's motion for

5
new counsel, and the court's decision that the existing attorney could continue to
represent Rivera was reasonable. Finally, we find no prosecutorial misconduct in this
case; the prosecutor's statements that Rivera complains about were fair comment on the
evidence presented.

I. The Trial Court's Jury Instructions on Venue, Though in Error,
Do Not Require Reversal.


The State's evidence told of two rapes. One occurred during a stop as the victim
was driving on rural roads with Rivera as a passenger, and the other occurred at the
victim's residence in Kingman. The victim indicated that she hadn't had a good sense of
direction as she had tried to drive Rivera from Kingman to his home in Murdock. So the
State asked the district court to give the jury an instruction based on K.S.A. 22-2604,
which provides that when a crime is committed so near the boundary between two
counties that it can't be readily determined in which county the crime occurred, the State
may prosecute it in either county. The district court gave that instruction—over Rivera's
objection—in addition to a typical instruction on the elements of the offense that said the
State must prove that each rape occurred in Kingman County.

On appeal, Rivera contends that the State was required to prove, beyond a
reasonable doubt, that the crime took place in Kingman County. Rivera argues that the

6
special venue instruction lessened the State's burden. The State counters that the special
venue instruction is authorized by K.S.A. 22-2604 for cases like this one.

We will set out the full instructions given by the district court on this question
because they are inconsistent with one another. In Instruction No. 4, the district court
gave a standard instruction, based upon a pattern jury instruction, PIK Crim. 3d 57.01, for
the elements of the rape charge:

"The defendant is charged with the crime of rape in Count 1. The
defendant pleads not guilty.
"To establish these charges, each of the following claims must be
proved:
1. That the defendant had sexual intercourse with [the victim];
2. That the act of sexual intercourse was committed without the
consent of [the victim] under circumstances when:
a. She was overcome by force or fear; and
3. That this act occurred on or about the 26th day of August, 2007,
in Kingman County, Kansas."

Thus, in Instruction No. 4, the district court told the jury that the State had to prove that
the crime took place in Kingman County. But in Instruction No. 9, the district court told
the jury that when it couldn't be readily determined where a crime near the county
boundary had occurred, the State could prosecute the case in either county: "Where a

7
crime is committed on or so near the boundary of two or more counties that it cannot be
readily determined in which county the crime was committed, the prosecution may be in
any of such counties."

When an instruction is given over the defendant's objection, appellate courts must
review the instructions as a whole. We do not reverse based on an instructional error if
the instructions as a whole fairly state the law as applied to the facts in that case and the
jury could not reasonably have been misled by them. As a general matter, errors that do
not actually prejudice the defendant's substantial rights do not require reversal if
substantial justice has been done. State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009).

In Rivera's case, whatever the law may be, the existence of an instruction error
seems apparent because the two instructions we've quoted are inconsistent. As stated in
Instruction No. 4, the State had to prove that the rape occurred in Kingman County. So
why did the jury need to know that the State could bring the case either in Kingman
County or a neighboring county if was difficult to determine in which county the rape
had occurred?

To sort this out, we first need to identify several concepts that have intersected in
these instructions. Instruction No. 4 is what we generally call the elements instruction,
which sets forth the elements that the State must prove to obtain a conviction for the

8
specific crime charged. But our usual nomenclature is actually a bit imprecise here
because the last item included in that elements instruction—that the crime took place in
Kingman County, Kansas—is not actually an element of the crime.

Crimes are defined in Kansas by the legislature, and it has defined rape in K.S.A.
21-3502. That statute contains no required element regarding where the crime took
place.

Beyond the elements, though, two other requirements are key to prosecuting
someone for a crime: jurisdiction and venue. The court must have personal jurisdiction
over the defendant and subject-matter jurisdiction over the crime. And venue must be
proper, meaning that the case is being tried in the correct court. The issue now before us
centers around this venue requirement.

Like many states, Kansas has a venue-related provision in its state constitution.
Section 10 of the Bill of Rights of the Kansas Constitution provides that the accused in a
criminal case is entitled to "a speedy public trial by an impartial jury of the county or
district in which the offense is alleged to have been committed." Since Kansas selects
jurors from within each county, the net result is that unless the defendant waives this
right, see, e.g., K.S.A. 22-2616, a defendant's trial must occur in the county in which the
crime was committed. See Addington v. State, 199 Kan. 554, 559-60, 431 P.2d 532

9
(1967). That rule has also been placed in a statute, K.S.A. 22-2602, which requires that a
case be prosecuted "in the county where the crime was committed" unless otherwise
provided by law.

But that rule is subject to some exceptions. One such exception is found in K.S.A.
22-2603, which allows the trial in either of two counties when two or more acts are
required to commit an offense and at least one of them occurs in each county. The
Kansas Supreme Court considered the constitutionality of that exception in Addington.
The court concluded that Section 10 of the Kansas Bill of Rights brought with it certain
common-law concepts, including the established rule now reflected in K.S.A. 22-2603
that when an offense occurred partly in two counties, the trial can be in either county.
Thus, the Addington court held that the statute, which was an identical predecessor to
K.S.A. 22-2603, was constitutional. Our Supreme Court has also noted that exceptions
like the ones found in K.S.A. 22-2603 and K.S.A. 22-2604 are based on the
commonsense notion that a criminal should not escape punishment because the crime's
exact location was concealed. State v. Grissom, 251 Kan. 851, 889, 840 P.2d 1142
(1992).

These venue provisions are considered jurisdictional in Kansas. Thus, "the
prosecution of an accused, over his objection, in a local jurisdiction other than that fixed
by the legislature is void." Addington, 199 Kan. 554, Syl. ¶ 11. Other decisions have

10
referred to the proof of the proper venue for trial as a jurisdictional fact that must be
proved by the State in every case, a fact that the jury must determine. State v. Hunt, 285
Kan. 855, 859, 176 P.3d 183 (2008); State v. Pencek, 224 Kan. 725, 729, 585 P.2d 1052
(1978).

Apparently because Kansas law requires that the jurisdictional facts supporting
proper venue be proved in every case, the committee that prepares pattern jury
instructions has included venue as one of the elements of each offense. Thus, even
though it isn't strictly an element of the offense, it is, as a practical matter, handled as if it
were. And as far as we can determine, the committee has not provided any comments on
how to modify that portion of the elements instruction if a situation like the one in
Addington is encountered.

With these concepts in mind, let's now return to Rivera's case. The district court
gave the standard elements instruction, which included the requirement that the crime
must have taken place in Kingman County. Neither the State nor Rivera suggested any
modification to that instruction. The district court also gave a separate instruction, based
on K.S.A. 22-2604, telling the jury that a case may be prosecuted in either of two
counties when its commission was so near the county line that it can't be readily
determined where it was committed. The State requested that instruction; Rivera
objected to it.

11

The State requested the instruction because the defense had spent considerable
time in cross-examination of the victim about where the country rape had taken place.
Rivera's attorney agreed that the statute, which was mirrored in the instruction, was "a
correct statement of the law," but he said the instruction wasn't needed because "the jury
can figure out what county it occurred in." The district court asked whether he
"intend[ed] to argue that the evidence is lacking as to where this occurred," and Rivera's
attorney admitted, "Well, that could happen, yes." The district court ruled that because
Rivera's attorney had focused on the victim's uncertainty about the location in cross-
examination, "it's appropriate to include this instruction . . . [s]o that the jury can draw
whatever conclusions they want to draw about the appropriateness of the prosecution as
to the out of town series of facts."

The district court's instructions were in error because Instruction No. 9, if it has
any application to Rivera's case, contradicts Instruction No. 4. Instruction No. 4 says
quite clearly that the crime must have been committed in Kingman County, while
Instruction No. 9 offers additional possibilities. We recognize that a jury is supposed to
consider all of the instructions together and try to harmonize them. A juror might
conclude that Instruction No. 9 was supposed to modify Instruction No. 4 so as to allow
the crime to have been committed either in Kingman County or its neighboring county.

12
That apparently was the district court's intention. But that's a pretty confusing way to
express that concept to lay jurors.

We have no quarrel with the committee that has drafted the pattern instructions in
its conclusion that it makes sense to include the required jurisdictional facts for venue as
part of the elements instruction for each crime charged. But when one of the exceptions
to prosecution in the single county in which the crime was committed applies, the district
court should amend the elements instruction to tell the jury what jurisdictional facts must
be proved.

Here, for example, the last portion of the elements instruction given as Instruction
No. 4 could have been revised this way to reflect the impact of K.S.A. 22-2604:

That this act occurred on or about August 26, 2007, either (a) in Kingman
County, Kansas, or (b) in a neighboring county if you find that the crime
was committed so near the boundary of Kingman County that it cannot be
readily determined in which county the crime was committed.


By doing so, the jury would have been told exactly what the State had to prove. District
courts should use pattern instructions when they are applicable, but they also should
modify them when a change is needed to make them accurate for a specific case. Dixon,
289 Kan. 46, Syl. ¶ 10. But a modification of the standard elements instruction is called

13
for in situations that involve jurisdictional facts other than the general one in which the
crime occurred within the county of trial.

The Kansas Supreme Court dealt with a similar situation in Hunt. The State had
charged the defendant with murder. The body had been found in Crawford County, but
the victim had last been seen in neighboring Bourbon County. When an act causes a
death in one county but the death occurs in another county, the prosecution may be in
either county under K.S.A. 22-2611. That statute also provides that death is presumed to
have occurred in the county where the body was found. Thus, under K.S.A. 22-2611, the
act of murder takes place in both the county in which a person fatally injures another and
in the county where death occurs, but a jury may presume in the absence of other
evidence that death took place where the body was found. 285 Kan. at 860, 864. The
Hunt opinion concluded that the jury should have been instructed that, to convict the
defendant, it must find that the murder occurred in Crawford County and also instructed
that it's ordinarily presumed that death occurred in the county where a body is found. 285
Kan. at 864. Our ruling is consistent with Hunt in holding that the jury should have been
given an instruction about the specific venue rule at issue.

Even though the instruction given to Rivera's jury was somewhat in error, we
conclude that reversal is not required because the jury could not possibly have been
misled. To convict Rivera, under any understanding of the instructions, each juror must

14
have concluded either that the crime occurred in Kingman County or that it took place so
near the county line that it couldn't be readily determined in which county the crime took
place. And in either of those situations, if found by the jury, K.S.A. 22-2604 squarely
authorized prosecution of Rivera in Kingman County.

Although K.S.A. 22-2604 permits Rivera's prosecution in Kingman County, the
evidence presented to the jury also strongly suggests that the crime did take place in
Kingman County. The victim said that she was trying to take Rivera back to his
residence in Murdock; she also said that the furthest distance they drove was to Rago.
We can readily take account of the location of Kansas towns. See Ehrsam v. Borgen, 185
Kan. 776, 778, 347 P.2d 260 (1959). Murdock is about 9 miles east and 2 miles south of
Kingman; Rago is about 1 mile east and 13 miles south of Kingman. From Rago, it's still
about 4 miles further south to reach the county line; from Murdock, it's still about 6 miles
further east to reach the county line. As jurors from Kingman County would have
known, her testimony didn't appear to make it at all likely that she had left Kingman
County even though she said that she wasn't sure of her directions on the country roads.

But even if the parties did cross the Kingman County line before the rural rape
took place, K.S.A. 22-2604 still authorized prosecution in Kingman County. Rivera's
argument on appeal is that even though K.S.A. 22-2604 allows prosecution in either
county, the State still must prove "that the crime occurred with the county[] because it is

15
an element of the crime." On this point, Rivera confuses the proof of the jurisdictional
fact of venue with the actual elements of rape. Where the crime took place is not an
element of rape under K.S.A. 21-3502. It's simply a jurisdictional fact that must be
proved in compliance with the general venue statute, K.S.A. 22-2602, and the exception
applicable in Rivera's case, K.S.A. 22-2604. The State's evidence met its burden of proof
as to the jurisdictional facts of venue in Rivera's case.

We note that Rivera has not raised any claim, either before the district court or on
appeal, that K.S.A. 22-2604 is unconstitutional as beyond the scope of Section 10 of the
Kansas Bill of Rights. While the Addington case determined that a similar provision, the
predecessor to our current K.S.A. 22-2603, was within the common-law understanding
incorporated into Section 10 of the Kansas Bill of Rights, we are not aware of any Kansas
appellate decision that has considered the constitutionality of K.S.A. 22-2604, and we
express no position on that question. See 22 C.J.S., Criminal Law § 181.


II. No Problem Exists with the Unanimity of the Jury Verdict.


Rivera next claims that because the victim said that sexual intercourse started,
stopped, and restarted at each of the two locations at which she said she was raped, there
is a danger that the jury didn't unanimously agree about which of Rivera's acts constituted
each of the two rapes. The district court did not give the jury a unanimity instruction,

16
which tells the jury that it must agree upon the specific act that constitutes each crime.
Jury verdicts must be unanimous, so a problem may arise when the State presents
evidence of more than one act that could constitute one of the crimes charged.

When a question of juror unanimity is raised, our first task is to determine whether
the case is indeed a multiple-acts case. If not, there's no unanimity problem. State v.
Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007). The core question here is whether the
defendant's conduct related to each charge is part of one overall act or represents multiple
acts that are separate and distinct, such as when independent criminal acts have occurred
at different times or when a later criminal act is motivated by a fresh impulse. State v.
Stevens, 285 Kan. 307, 314, 172 P.3d 570 (2007).

The Kansas Supreme Court has applied the current tests for multiple-acts cases in
two cases. In Voyles, two victims testified or made statements to relatives that could
have supported the charging of a separate count of aggravated indecent solicitation and
aggravated sodomy for encounters occurring at five different locations, all apparently on
different days, for each girl. That evidence potentially indicated 20 different offenses,
but the State charged only 8—2 counts of aggravated indecent solicitation and of
aggravated sodomy per girl. Thus, Voyles held that it was a multiple-acts case: the jury
could have amalgamated the testimony regarding acts at different locations to convict the
defendant. 284 Kan. at 244. In Stevens, the court found that a charge of driving under

17
the influence of alcohol was not a multiple-acts case even if alternative means of
violating the statute were alleged. Rather, the driver engaged in a continuous course of
conduct that wasn't motivated by a fresh impulse. 285 Kan. at 314. Whether a case is a
multiple-acts case is a question of law that the appellate court considers independently.
Voyles, 284 Kan. 239, Syl. ¶ 1.

A related legal question to the unanimity issue is multiplicity, where the State
charges as multiple offenses what is really just one. See State v. Schoonover, 281 Kan.
453, 133 P.3d 48 (2006). Under the multiplicity doctrine, the State is forbidden in some
cases from charging multiple counts of rape or attempted rape when seemingly separate
acts have occurred within a short time or as a continuous course of events. See State v.
Dorsey, 224 Kan. 152, 156, 578 P.2d 261 (1978) (State could not charge three different
attempted rapes when less than an hour separated the acts). Because the issues of
unanimity and multiplicity are closely related, some panels of our court have considered
the Schoonover factors for multiplicity when determining whether a case is a multiple-
acts case. E.g., State v. Schofield, 2009 WL 2242424, at *2 (Kan. App. 2009)
(unpublished opinion); State v. Soriano-Garcia, 2008 WL 142104, at *2 (Kan. App.)
(unpublished opinion), rev. denied 286 Kan. 1185 (2008). Thus, in addition to the
statement of the test from Voyles and Stevens, we may also consider whether the acts
occurred at or near the same time, whether they occurred in the same location, whether an

18
intervening event or a causal relationship existed, and whether a fresh impulse motivated
the acts. Schoonover, 281 Kan. at 507.

To determine whether each charge against Rivera was a multiple-acts charge, we
must review the testimony of the victim in greater detail. She said that Rivera came to
her apartment in Kingman shortly after midnight and that he said that he was too
intoxicated to drive home to Murdock. She agreed that he could sleep on the couch.
When Rivera made sexual advances, she rebuffed them and offered to drive him home.
He agreed, and they left in his car. At Rivera's request, she agreed to take back roads
because he said he had an open case of beer in the backseat.

During the trip, Rivera made her stop twice. At the first stop, he got out to relieve
himself but then made another unsuccessful advance. At the second stop, Rivera said he
felt sick, and he leaned out of the car. After a few minutes, he sat up and pulled the keys
out of the ignition. He then began to choke her, and the parties struggled in the car. She
was unable to break his grip around her neck.

After a time, Rivera stopped choking her. He told her that they were going to have
sex, and he told her to remove her pants. He then ordered her out of the car. He first
tried to have intercourse on the trunk, but it didn't work. He then had sex with her on the
hood of the car and later by the front car door. The victim said that the encounter lasted

19
about an hour and that Rivera made her perform oral sex on him during that time. She
eventually persuaded him to stop, and he told her to drive him back to her apartment.
During the trip back, he threatened to kill the victim and her son if she reported the rape.

After the parties returned to Kingman, Rivera raped her again in her apartment.
She said that this encounter lasted about half an hour. She said that intercourse stopped
at one point because she told Rivera that she wanted to go find some lubricant (which she
didn't have), but he quickly brought her back to the bedroom and resumed intercourse
when she didn't return with the lubricant. Rivera eventually passed out at around 5
o'clock in the morning.

Rivera contends that although there were only two rape charges, the victim
testified that Rivera forced her to have oral and vaginal sex several times over a 5-hour
period in two different locations. He contends therefore that different members of the
jury could have found separate acts for each of the rapes, thus presenting a multiple-acts
case. The State argues that there were two separate incidents, one in a rural area when
the car was stopped, and one at her apartment in Kingman.

Rivera essentially wants to require that the State choose which specific act it relies
upon to support the rape charge at each location. Under this argument, the jury would
need to parse each separate penetration and withdrawal. For example, the State would

20
have to specify that its rape charge for the rural rape specifically charged vaginal
penetration by force on the car's hood, not by the car's front door after Rivera moved the
victim to a different position. We do not believe that Kansas law requires such a macabre
exercise.

The acts were charged in two counts—one for conduct in rural Kingman County
and one for conduct at the victim's Kingman apartment. Each of the counts stood alone;
neither of them were multiple-acts counts under Voyles. All of the acts for one count
occurred just outside Rivera's car, and all of the acts for the other count occurred in the
victim's bedroom. While the victim said that the events at the car took about an hour in
total, the events charged as rape (intercourse on the car's hood and near the car's front
door) occurred in a fairly continuous sequence, generally interrupted only to change
positions, at Rivera's direction, or to have the victim perform oral sex on him to allow
him to gain or maintain an erection so that he could continue. Similarly, the events in the
victim's bedroom occurred in a fairly continuous sequence, interrupted only by her brief
attempt to stall by looking for a lubricant product that wasn't in the apartment at all.
While it may be arguable whether a fresh impulse existed once Rivera returned to the
victim's apartment, that factor doesn't override the others we've noted in this case, and
Rivera has not argued that the convictions were multiplicitous, i.e., that he could only be
charged with one rape for the entire sequence of conduct. Further, there was plenty of
time for Rivera's initial impulse to attack the victim to subside on the trip back to her

21
apartment. In sum, we conclude that the two counts of rape were supported by the
evidence and that neither count was by itself a multiple-acts offense.

Our decision is consistent with two prior decisions from our court. In State v.
Villanueva, 29 Kan. App. 2d 1056, 1064, 35 P.3d 936 (2001), rev'd on other grounds 274
Kan. 20, 49 P.3d 481 (2002), the defendant was convicted of rape. The State presented
evidence that the defendant penetrated the vagina using his finger and, later, his penis.
Penetration by either the finger or the penis constitutes sexual intercourse, which
combined with lack of consent and a victim who is overcome by force or fear constitutes
rape. See K.S.A. 21-3501; K.S.A. 21-3502. But even though penetration by either the
finger or the penis would have been sufficient to prove rape, combined with the other
evidence, our court rejected the defendant's claim that a unanimity instruction was needed
because the attack "was one continuous event." 29 Kan. App. 2d at 1064. More recently,
in State v. Most, 2009 WL 2371008, at *9 (Kan. App. 2009) (unpublished opinion), pet.
for review pending, the defendant was convicted of two counts of aggravated indecent
liberties with a child for having sexual intercourse with a child under the age of 16. Once
again, the State's evidence for each of the two separate incidents was that the defendant
had put his fingers and, later, his penis into the girl's vagina. Here too, sexual intercourse
for the purposes of an aggravated-indecent-liberties charge may be found after
penetration by either a finger or a penis. Our court again concluded that this was not a

22
multiple-acts case: each charge represented a separate incident, even though the
defendant penetrated the girl in each incident with both his fingers and his penis.

As a practical matter, the rules for determining when a case is a multiple-acts case
are designed to ensure that the jury actually has agreed unanimously that the charged
crime occurred. As Justice Carol A. Beier noted in an academic discussion of these rules,
they must be "suitably pragmatic and protective" when applied to the myriad of cases that
are encountered. See Beier, Lurching Toward the Light: Alternative Means and Multiple
Acts Law in Kansas, 44 Washburn L.J. 275, 321 (2005). She also noted another case of
interest, State v. Staggs, 27 Kan. App. 2d 865, 9 P.3d 601, rev. denied 270 Kan. 903
(2000). In Staggs, the defendant—charged with one count of aggravated battery—had
both punched and kicked the victim during a fight. A panel of our court concluded that it
wasn't a multiple-acts case because "the evidence established a continuous incident that
simply cannot be factually separated." 27 Kan. App. 2d at 868. We agree with Justice
Beier's comment that there need be no requirement that the State elect a specific act or the
jury be given a unanimity instruction when "the acts at issue occur in a series over a very
short time and form parts of a whole." 44 Washburn L.J. at 301. We believe that the
factual situation of our case, like those found in Villanueva and Most, is such a case, not a
multiple-acts case under Voyles.


23
During closing argument, the prosecutor told the jury that one count of rape was
based on what occurred in rural Kingman County and that the other count was based on
what occurred later at the victim's apartment in Kingman. The prosecutor accurately
separated the two distinct incidents that were, indeed, separate for unanimity purposes.
The State did not need to further elect, with respect to the rape by the car, whether it was
prosecuting the attack on the car's hood or by the car's front door. Nor did the State need
to further elect, with respect to the rape in the apartment, whether it was prosecuting the
attack before—or after—the victim attempted to distract Rivera by searching for a
lubricant that wasn't there.

III. The District Court Properly Denied Rivera's Motion for a New Attorney.


Less than a month after Michael Brown was appointed by the court to represent
Rivera, Rivera moved to discharge Brown because Rivera said the attorney hadn't
responded to Rivera's communication requests. The district court held a hearing to
consider the matter within 3 weeks of the motion's filing, and more than 3 months before
the case was tried.

At that hearing, the district court asked Brown about the extent of Brown's contact
with his client. In response to additional questions from the court, Brown said that he did
not believe that communication had so broken down that he would be unable to represent

24
Rivera effectively, and Brown said that he felt it was possible that other attorneys
appointed to replace him would face similar problems. After hearing these comments,
Rivera said he had nothing further to add. The district court denied the motion, noting:
 That Brown had filed a motion to reduce Rivera's bond that was heard by the
court within a week of Brown's appointment;
 That Brown had promptly requested discovery materials from the State, and
that Brown had forwarded that information to Rivera within 3 weeks of
Brown's appointment; and
 That Brown had handled at least dozens of serious sex-offense cases.
Rivera contends on appeal that the district court should have dismissed Brown and that
Rivera's right to be represented by "conflict-free" counsel was violated because Brown
essentially argued against Rivera's motion to dismiss Brown.

A criminal defendant has a fundamental right to effective counsel under the Sixth
Amendment to the United States Constitution, and that right applies to the states through
the Fourteenth Amendment. Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100
S. Ct. 1708 (1980). This right includes the right to representation free from conflicts of
interest. State v. Toney, 39 Kan. App. 2d 1036, 1040, 187 P.3d 138 (2008).

When the trial court becomes aware of a possible conflict of interest between a
defendant and his or her attorney, the court must make an inquiry to ensure that the

25
defendant's Sixth Amendment right to counsel is protected. The court abuses its
discretion if it doesn't do so. State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006).
Here, the district court made an appropriate inquiry into Rivera's complaint. The district
court first asked Rivera about his complaints. The court then required that Brown explain
what sort of communications he'd had with his client. Brown did so without revealing
confidential information. The court then gave Rivera a final opportunity to add anything
he might want to before the court ruled. And the court reviewed the court file to
determine when the attorney had been appointed, what actions the attorney had taken to
date, and the timeliness of those actions. After reviewing that information, the district
court was impressed by how quickly the attorney had obtained a hearing on a motion to
review the defendant's bond: "To be in court within a week on that is very timely. Can't
get in court much quicker than that." The court was also impressed by how quickly the
attorney had obtained the relevant discovery materials and forwarded them to his client:
"It doesn't get any quicker than that . . . ."

We find no error in the district court's denial of Rivera's motion to dismiss his
attorney.








26
IV. The Prosecutor Did Not Commit Misconduct in Closing Argument.


Rivera's next argument is that the prosecutor committed misconduct in his closing
argument to the jury. Rivera specifically argues that the prosecutor improperly bolstered
the credibility of the victim and improperly expressed personal opinions during this
segment of the closing argument:

"You told me—I asked you, the Court's instructed you, you would
decide this case on what you hear [from the witness stand]. And everything
you heard from there . . . backed up what [the victim] told you. I don't
know where the beer went out of the back seat of the car. They didn't seize
the car until the next, until late that night. I don't know who had access to
the car. But I know one thing, [the victim] was on the hood of that car.
That I know.
"And I want you, when you go back there, I want you to ask yourself
a question. And that question is simply this. Why? Why would she tell
you this story if it wasn't true?
". . . She's got nothing to gain. She's got nothing but embarrassment
and guilty feelings. . . ."

We review allegations of prosecutorial misconduct in two stages. First, we must
determine whether the prosecutor has committed misconduct by exceeding the wide
latitude given an attorney to argue the case based upon the evidence. Second, if we find
misconduct, we must consider whether the misconduct prejudiced the defendant and

27
denied him or her a fair trial. In making that determination, we consider whether the
comments were gross and flagrant, whether they were motivated by ill will, and whether
the evidence was so overwhelming that the comments probably had little effect on the
jury's consideration of the case. State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658
(2009).

We are not entirely sure whether the prosecutor has gone beyond the wide latitude
afforded for argument. The quoted comments were all in response to the defense
attorney's closing argument, in which he said that the victim's story didn't "make any
sense" and emphasized various potential pieces of evidence that the State hadn't brought
before the jury or explained. Defense counsel questioned whether DNA evidence
gathered from the hood, which showed a match to the victim, might simply have been
there because she'd been around the defendant (who presumably had been around his car)
or because she'd been around the car before. That led to the prosecutor's responsive
argument that the "one thing" he knew in the case was that the victim had been on the
car's hood. In his initial argument, the prosecutor had noted the DNA evidence that
supported that claim as well as the photos of the hood that showed a pattern of dust that
he also said supported the victim's testimony about what had happened on the car's hood.

The prosecutor's statement about what he knew seems to us merely the use of a
figure of speech or rhetorical technique rather than an expression of knowledge based on

28
the prosecutor's own personal investigation. In common speech, we often say, "I believe"
or "I think" or even the stronger "I know" without actually trying to pass something off as
our own independent knowledge. See Goutis v. Express Transport, Inc., 699 So. 2d 757,
763-64 (Fla. Dist. App. 1997), disapproved on other grounds by Murphy v. Int'l Robotic
Systems, 766 So. 2d 1010, 1031 (Fla. 2000); Forman v. Wallshein, 671 So. 2d 872, 874-
75 (Fla. Dist. App. 1996). The prosecutor's discussion of whether the victim had any
motive to lie was in response to the defense attorney's closing argument. We also
generally do not find prosecutorial misconduct requiring reversal in limited responses to
the defendant's closing argument. See State v. Murray, 285 Kan. 503, 517, 174 P.3d 407
(2008).

But even if we find that the prosecutor went beyond the normal latitude afforded
in closing argument, we conclude that it did not prejudice the defendant or deny him a
fair trial. The comments were brief and made directly in response to the defendant's
closing argument. We do not find them to have been gross or flagrant or motivated by ill
will. And the evidence of guilt in this case was quite strong: the victim testified
consistently with her past statements, and physical evidence corroborated her testimony.
See State v. Morton, 38 Kan. App. 2d 967, 974, 174 P.3d 904, rev. denied 286 Kan. 1184
(2008) (finding no reversible error even though prosecutor may have improperly
bolstered victim's credibility). We find no reversible error based on prosecutorial
misconduct.

29



V. No Other Error Requires Reversal Here.


The defendant has raised two other issues on appeal, but neither has merit. First,
he argues cumulative error. Since we have not found error at all, we find no cumulative
error, either. Second, he argues that the district court violated his constitutional rights
when it chose the aggravated sentence. Kansas guidelines give the district court three
potential sentences to choose from: a standard sentence, a higher sentence (called the
aggravated sentence), and a lower sentence (called the mitigated sentence). In Rivera's
case, the district court picked the higher number for a longer sentence. Rivera argues that
this is unconstitutional under Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d
856, 127 S. Ct. 856 (2007), but his argument was rejected by the Kansas Supreme Court
in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). We are of course
bound by its decision.

The judgment of the district court is therefore affirmed.