State v. Cervantes-Puentes

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,020

STATE OF KANSAS,
Appellee,

v.

SERGIO CERVANTES-PUENTES,
Appellant.


SYLLABUS BY THE COURT

1.
Trial courts apply a two-step process to determine whether to admit or suppress an
eyewitness identification. First, the court determines whether the procedure used for
making the identification was impermissibly suggestive. Second, if the challenged
procedure is found to be impermissibly suggestive, the court considers eight factors to
determine whether, under the totality of the circumstances, there was a substantial
likelihood of misidentification.

2.
Appellate courts apply a bifurcated standard to review a district court's decision to
admit or suppress an eyewitness identification. The appellate court reviews the district
court's factual findings to determine whether those findings are supported by substantial
competent evidence and reviews the legal conclusions drawn from those findings de
novo.

3.
The party alleging a trial error has the burden of designating a record that
affirmatively shows prejudicial error.
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4.
When considering a case-specific disproportionality challenge to a sentence under
the Eighth Amendment to the United States Constitution and § 9 of the Kansas
Constitution Bill of Rights, a district judge must make factual findings and draw
conclusions of law.

5.
Criminal defendants are responsible for ensuring the district court makes adequate
factual findings under State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), to permit
appellate review of a case-specific challenge to the constitutionality of a sentence.

6.
A criminal defendant may raise a categorical challenge to the proportionality of
his or her sentence under the Eighth Amendment to the United States Constitution, as
interpreted in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010), for the first time on appeal because such a claim involves a question of law.

7.
A criminal defendant raising a categorical challenge to the proportionality of his or
her sentence under the Eighth Amendment to the United States Constitution, as
interpreted in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010), must demonstrate the existence of a valid categorical claim.

Appeal from Sedgwick District Court; JEFF GOERING, judge. Opinion filed June 14, 2013.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge,
of same office, was on the brief for appellant.
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Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: Sergio Cervantes-Puentes appeals his conviction of one count of
aggravated indecent liberties with a child and sentence of life without the possibility of
parole for 25 years. We affirm his conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2009, the State charged Cervantes-Puentes with one count of aggravated
indecent liberties with a child. At trial, the State established that Cervantes-Puentes
approached a 13-year-old female, C.M.B., in a store in Wichita, pretended he was trying
to find a shirt that would fit his daughter, held a shirt up to C.M.B., and, while standing
behind C.M.B., rubbed his erect, clothed penis against her clothed buttocks. C.M.B.
immediately walked away and reported the incident to her mother who, in turn, reported
the incident to store security. Cervantes-Puentes was apprehended before he left the store,
and C.M.B. confirmed he was the man involved in the incident. At trial, C.M.B. again
identified Cervantes-Puentes as the man who approached her and brushed against her in
the store.

Pursuant to K.S.A. 2009 Supp. 60-455, the State presented evidence at trial that
Cervantes-Puentes had similar encounters with adult women in other Wichita stores
between March and May 2009. Specifically, the State presented testimony from two
witnesses, S.B. and D.B., each of whom testified that Cervantes-Puentes approached
them on separate occasions in a store, pretended to need assistance in sizing and
purchasing a shirt for his wife, and rubbed his clothed erection against their clothed
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backsides. The State also introduced a surveillance video depicting Cervantes-Puentes
performing the same actions with a third, unidentified female victim from the same store
where the incidents involving S.B. and D.B. occurred.

Cervantes-Puentes testified at trial that he frequently buys clothing to send to his
wife and three daughters who live in Mexico. He further admitted that he approached
C.M.B. and held a shirt up to her to see if it would fit his oldest daughter, but he denied
that his decision to approach C.M.B. or his action in holding the shirt up to her were
sexually motivated.

The jury found Cervantes-Puentes guilty of aggravated indecent liberties with a
child in violation of K.S.A. 21-3504(a)(3)(A) (lewd fondling or touching of a child under
14 years of age with intent to arouse or satisfy the sexual desires of child, offender, or
both). The district court denied both Cervantes-Puentes' motion challenging the
constitutionality of his anticipated sentence and his motion for a sentencing departure and
imposed a sentence of life imprisonment with no possibility of parole for 25 years under
"Jessica's Law," K.S.A. 21-4643(a)(1)(C). We have jurisdiction over Cervantes-Puentes'
direct criminal appeal under K.S.A. 22-3601(b)(1) (life sentence imposed under K.S.A.
21-4643; case docketed before July 1, 2011).

DISCUSSION

Cervantes-Puentes failed to provide an adequate appellate record to support his first
claim of error.

Cervantes-Puentes challenges his conviction on only one ground. Specifically, he
alleges the district court erred in admitting in-court identifications from S.B. and D.B.
because prior to trial, each witness was shown an impermissibly suggestive photo array.

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Ordinarily, trial courts apply a two-step process to determine whether to admit or
suppress an eyewitness identification. First, the court determines whether the procedure
used for making the identification was impermissibly suggestive. State v. Mitchell, 294
Kan. 469, 476, 275 P.3d 905 (2012); State v. Corbett, 281 Kan. 294, 304, 130 P.3d 1179
(2006). Second, if the challenged procedure is found to be impermissibly suggestive, the
court considers eight factors to determine whether, under the totality of the
circumstances, there was a substantial likelihood of misidentification. Mitchell, 294 Kan.
at 476-78; Corbett, 281 Kan. at 304-05.

This two-part analysis applies equally when determining whether to admit or
suppress an in-court identification that has allegedly been tainted by a pretrial
identification procedure. See State v. Ponds, 227 Kan. 627, 630, 608 P.2d 946 (1980)
(stating that "in-court identifications may be capable of standing on their own even
though preceded by deficient pretrial confrontations," and noting that courts should
consider various factors "to test the reliability of the courtroom identification").

On appeal, we ordinarily apply a bifurcated standard to review a district court's
decision to admit or suppress an eyewitness identification. We review the district court's
factual findings to determine whether those findings are supported by substantial
competent evidence and review the legal conclusions drawn from those findings de novo.
Corbett, 281 Kan. at 304.

Here, in response to Cervantes-Puentes' argument that S.B. and D.B. viewed an
impermissibly suggestive photo array prior to trial, the district court held a hearing to
consider the admissibility of the eyewitnesses' anticipated in-court identifications. The
court heard testimony from the detective who assembled the photo array, reviewed the
photo array, determined the photo array was not impermissibly suggestive, and overruled
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the motion to suppress the photo array and the eyewitness identifications without
considering any factors related to reliability.

At trial, the State did not admit the photo array or elicit any testimony from the
witnesses regarding the fact that they viewed the photo array before trial. Moreover,
defense counsel did not elicit any testimony from the witnesses regarding any of the
factors commonly considered to challenge the reliability of an eyewitness identification.

Although the State did not admit the photo array or any testimony regarding it at
trial, Cervantes-Puentes maintains on appeal that the photo array was impermissibly
suggestive because his photo was the only photo with "a larger gap of empty space
between the top of the head and the top frame of the photo." He contends the array
highlighted his short stature, thereby resulting in "a substantial likelihood that S.B. and
D.B. misidentified [him]" based on the "suggestive photo array."

But Cervantes-Puentes failed to include the photo array in the appellate record,
preventing our review of the district court's factual findings and legal conclusion
regarding the array. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012)
(reiterating that party alleging trial error has burden to designate record affirmatively
showing prejudicial error). Further, even if appellate counsel had included the photo array
in the appellate record, the lack of a trial record regarding the factors ordinarily
considered in determining the reliability of an eyewitness identification would hinder our
ability to conduct the second part of the analysis. Accordingly, we affirm Cervantes-
Puentes' conviction.

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Cervantes-Puentes failed to properly preserve or present any constitutional challenges to
his sentence.

Cervantes-Puentes challenges the constitutionality of his sentence on two grounds:
(1) a case-specific claim under § 9 of the Kansas Constitution Bill of Rights, and (2) a
categorical claim under the Eighth Amendment to the United States Constitution. We
reject these sentencing challenges because Cervantes-Puentes' trial counsel failed to
ensure adequate findings from the district court on his § 9 claim, and his appellate
counsel failed to construct a valid categorical Eighth Amendment claim.

Case-specific claim

In the district court, Cervantes-Puentes' trial counsel raised and argued a case-
specific claim under § 9 of the Kansas Constitution Bill of Rights. But the district court
failed to make any factual findings regarding this claim, and Cervantes-Puentes' trial
counsel did not request such findings.

At oral argument before this court, Cervantes-Puentes' appellate counsel conceded
Cervantes-Puentes' case-specific § 9 claim is not properly before us because of the lack of
factual findings by the district court regarding the first prong of the three-prong test from
State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). See also State v. Seward, 296
Kan. 979, 981, 297 P.3d 272 (2013) ("When considering a case-specific
disproportionality challenge to a sentence under the Eighth Amendment and § 9, a district
judge must make factual findings and draw conclusions of law."); State v. Ortega-
Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008) (noting that considerations under the
first Freeman prong are "inherently factual"). Further, as we have often held, the
defendant is responsible for ensuring the district court makes the factual findings
necessary for appellate review. See State v. Raskie, 293 Kan. 906, 923-24, 269 P.3d 1268
(2012) (emphasizing that defendants are responsible for ensuring the district court makes
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adequate findings under Freeman to permit appellate review); State v. Seward, 289 Kan.
715, 720, 217 P.3d 443 (2009) (same); see also State v. Berriozabal, 291 Kan. 568, 592,
243 P.3d 352 (2010) (noting that Seward clarified that defendant bears burden to ensure
adequate Freeman findings at district court level). Cervantes-Puentes' trial counsel's
failure to request adequate factual findings from the district court prevents us from
considering Cervantes-Puentes' case-specific § 9 claim.

Categorical claim

Next, Cervantes-Puentes relies on the categorical analysis set forth in Graham v.
Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), to raise what he
characterizes as a categorical Eighth Amendment challenge to the proportionality of his
sentence. In Graham, the United States Supreme Court considered the proportionality of
a term-of-years sentence "'as it applie[d] to an entire class of offenders who have
committed a range of crimes.'" State v. Mossman, 294 Kan. 901, 928, 281 P.3d 153
(2012) (quoting Graham, 130 S. Ct. at 2022-23). We have recognized that an Eighth
Amendment categorical claim involves a question of law and may be raised for the first
time on appeal. State v. Gomez, 290 Kan. 858, 865-66, 235 P.3d 1203 (2010).

Nevertheless, we reject this claim because Cervantes-Puentes' appellate counsel
failed to construct a valid categorical claim. Cervantes-Puentes asks this court to consider
the constitutionality of a hard 25 sentence for first-time offenders convicted of
committing a sexual offense against a minor when the offense does not involve
penetration, force, or coercion. As we have in the past, we decline to consider a purported
categorical claim that, in reality, presents a case-specific proportionality challenge to a
term-of-years sentence. See State v. Florentin, 297 Kan. ___, ___ P.3d ___ (No. 104,883,
opinion filed June 14, 2013), slip op. at 13 (rejecting defendant's attempt to define the
range of crimes for his categorical claim as rape by "'consensual digital penetration of the
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victim, who is thirteen years or older,'" when crime involves no "'force, prostitution or
pornography, a weapon, or . . . bodily injury to the victim'"); Mossman, 294 Kan. at 928
(rejecting defendant's attempt to define range of crimes for his categorical claim as
"crimes to those involving sex with a child who is 14 or 15 where the crime is committed
without any element of force, coercion, prostitution, or pornography"). Accordingly, we
reject Cervantes-Puentes' purported categorical claim.

As a final matter, given the specific facts of this case, we note that the district
court denied Cervantes-Puentes' motion for a sentencing departure under K.S.A. 21-
4643(d), but appellate counsel has not challenged that denial on appeal.

Affirmed.