State v. Stimec

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CORRECTED OPINION

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,229

STATE OF KANSAS,
Appellee,

v.

JEFFREY W. STIMEC,
Appellant.


SYLLABUS BY THE COURT

1.
Review of an allegation of prosecutorial misconduct involving improper
comments to the jury requires a two-step analysis. First, an appellate court decides
whether the comments were outside the wide latitude allowed the prosecutor in
discussing the evidence. Second, if misconduct is found, an appellate court must
determine whether the improper comments constitute plain error; that is, whether the
statements prejudiced the jury against the defendant and denied the defendant a fair trial.

2.
A prosecutor's improper comment or argument can be prejudicial, even if the
misconduct was extemporaneous and made under the stress of rebutting argument made
by defense counsel.

3.
If a prosecutor commits misconduct, the State, as the party who benefited from the
misconduct, is burdened with demonstrating beyond a reasonable doubt the error did not
affect the defendant's substantial rights, i.e., that there is no reasonable possibility the
error affected the verdict.
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Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed April 19, 2013.
Reversed and remanded.

Michelle Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Jennifer L. Myers, assistant district attorney, argued the cause, and Robbin L. Wasson, assistant
district attorney, Jerome Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief
for appellee.

The opinion of the court was delivered by

MORITZ, J.: Jeffrey Stimec appeals his jury conviction of two counts of
aggravated indecent liberties with a child, arguing the prosecutor committed misconduct
during rebuttal closing argument by encouraging the jury to return to the jury room and
take a poll to determine whether any of them had engaged in conduct similar to the
allegations against Stimec. Stimec also asserts other allegations of prosecutorial
misconduct and argues his sentence was illegally imposed under Jessica's Law, K.S.A.
2006 Supp. 21-4643.

Because we hold today that the prosecutor's statements during rebuttal constituted
misconduct and deprived Stimec of a fair trial, we do not reach Stimec's remaining
allegations of prosecutorial misconduct or his sentencing claims. Accordingly, we reverse
his convictions and remand this case for a new trial.

ANALYSIS

Our review of an allegation of prosecutorial misconduct involving improper
comments to the jury requires a two-step analysis. First, we decide whether the comments
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were outside the wide latitude allowed the prosecutor in discussing the evidence. Second,
if misconduct is found, we must determine whether the improper comments constitute
plain error; that is, whether the statements prejudiced the jury against the defendant and
denied the defendant a fair trial. State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011). In
the second step of the two-step analysis, the appellate court considers three factors: "(1)
whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill
will on the prosecutor's part, and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors." State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).

Further, we have held that none of these three factors is individually controlling
and before the third factor can override the first two factors, we

"'"must be able to say that the harmlessness tests of both K.S.A. 60-261 . . . and Chapman
v. California, 386 U.S. 18, [22,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) . . . , have been
met." [Citation omitted.]' State v. McCaslin, 291 Kan. 697, 715-16, 245 P.3d 1030
(2011). The basic test asks whether the error affected the defendant's substantial rights,
meaning whether the error affected the outcome of the trial." State v. Smith, 296 Kan.
111, 130, 293 P.3d 669 (2012).

Stimec challenges three statements made by the prosecutor during closing
argument. Because we hold that the statements made during rebuttal, standing alone,
were so prejudicial as to require reversal, we will not address the propriety of the
remaining statements.

At trial, the State presented evidence that Stimec's 6-year-old son, J.S., spent every
other weekend with Stimec, and when he returned home one weekend, J.S. told his
mother he slept naked with Stimec and Stimec and J.S. put lotion on each other, including
on each other's private parts.
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J.S.'s mother and stepfather reported J.S.'s statements to the police. A forensic
examiner interviewed J.S., and a tape of the interview was played at trial. During the
interview, J.S. said Stimec frequently rubbed lotion all over J.S. and sometimes J.S.
rubbed lotion all over Stimec. J.S. also reported that Stimec sometimes said, "[I]t feels
good" and, "Oh yeah," as this conduct was occurring.

Stimec testified he put lotion on his son but never in inappropriate places.
Consistent with this testimony, in closing argument Stimec's counsel suggested "[m]ost
people that have kids probably put lotion on them, sunscreen, after a bath, whatever, but
for him to put lotion on his son's back after a bath isn't a crime." In rebuttal argument, the
prosecutor responded:

"It is not illegal to put lotion on a child's back. It is not illegal to put it on their ankles,
knees, shoulders, head, anywhere else. None of that is a crime, absolutely, but it is a
crime to stroke your son's penis with lotion. I mean, let's just call it what it is, okay, that's
a crime. You know what, feel free to take a poll in the jury room when you go to
deliberate, take a poll. If there is one member of this panel who has stroked their son's
penis with lotion, then by all means, find that way. I suspect that won't be the case."

Stimec contends that with these comments, the prosecutor improperly appealed to
the passions and prejudices of the jurors and distracted the jury from its role as factfinder.
Further, he contends the prosecutor's comments "sent the message that any jurors who
voted not guilty may have engaged in this conduct themselves."

This court has repeatedly emphasized that it is improper for a prosecutor to
comment on facts not in evidence, to divert the jury's attention from its role as factfinder,
or to make comments that serve no purpose other than to inflame the passions and
prejudices of the jury. See, e.g., State v. Hall, 292 Kan. 841, 848, 257 P.3d 272 (2011)
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(citing cases holding prosecutors commit misconduct by commenting on facts outside of
evidence); State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006) (reaffirming that
prosecutors are not permitted to make statements that inflame the passions or prejudices
of the jury or distract the jury from its duty to make decisions based on evidence and
controlling law); State v. Villanueva, 274 Kan. 20, 33-36, 49 P.3d 481 (2002) (finding
prosecutor committed misconduct by suggesting rape victims essentially would be raped
a second time through questions and arguments at trial related to victim's credibility);
State v. Henry, 273 Kan. 608, 640-41, 44 P.3d 466 (2002) (finding prosecutor committed
reversible misconduct when prosecutor urged the jury to consider how the victim's
mother must have felt on Mother's Day); see also State v. Majors, 182 Kan. 644, 648, 323
P.2d 917 (1958) ("Although an attorney may indulge in impassioned bursts of oratory or
may use picturesque language as long as he introduces no facts not disclosed by the
evidence, he is bound to remember that he is an officer of the court, that his liberty of
argument must not degenerate into license, and that he should always be decorous in his
remarks to the extent that they do not impair administration of justice.").

Here, the prosecutor's suggestion that the jury return to the jury room and take a
poll to determine whether any of them had "stroked their son's penis with lotion" may
well have been facetious, or "tongue in cheek." Nevertheless, the comments were highly
improper for several reasons, including that they: (1) appealed to the passions and
prejudices of the jury; (2) diverted the jury's attention from the facts of the case,
explicitly inviting the jury to consider facts outside the record; (3) implicitly commented
on Stimec's credibility; (4) misstated the evidence by suggesting Stimec "stroked" his
son's penis when in fact, the victim's statements and testimony did not utilize this phrase;
and (5) potentially exposed individual jurors to ridicule by their colleagues, decreasing
the likelihood any juror would argue for acquittal. Under these circumstances, we have
no hesitancy in concluding the prosecutor's statements were inappropriate and in error.

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Citing State v. Baker, 249 Kan. 431, 819 P.2d 1173 (1991), the State responds to
the allegations of misconduct by suggesting the prosecutor's comments were provoked by
Stimec's counsel's closing argument and thus were not improper. But in State v. Marshall,
294 Kan. 850, 858-61, 281 P.3d 1112 (2012), we disavowed any language in our
previous cases indicating that defense provocation can justify prosecutorial misconduct:
"[W]e hold that a prosecutor's improper comment or argument can be prejudicial, even if
the misconduct was extemporaneous and made under the stress of rebutting argument
made by defense counsel." 294 Kan. at 861. In short, defendants do not open the door to
prosecutorial misconduct. See State v. Manning, 270 Kan. 674, 697, 19 P.3d 84 (2001),
disapproved of on other grounds by State v. King, 288 Kan. 333, 204 P.3d 585 (2009).

Further, as the party benefiting from the effect of the improper comments, the
State has failed to even argue that the comments did not prejudice the jury against Stimec
or deny him a fair trial. See State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012)
(providing that as to prosecutorial misconduct, the State is burdened with demonstrating
"there is no reasonable possibility the error affected the verdict"). Significantly, the
prosecutor's inappropriate comments in this case went directly to the heart of the issue the
jury was asked to decide—who was telling the truth as to the nature and extent of
Stimec's actions, Stimec or his son?

Under these circumstances, we conclude the prosecutor's statements here were so
patently egregious and prejudicial as to deny Stimec a fair trial, requiring that we vacate
his convictions and remand for a new trial.

Reversed and remanded.