State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 118,482

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TODD A. JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed December 14,
2018. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., ATCHESON and GARDNER, JJ.

PER CURIAM: Todd A. Jones appeals his conviction following a jury trial, arguing
(1) the State failed to present sufficient evidence to support his aggravated indecent
liberties with a child conviction; (2) the district court committed clear error in failing to
give a unanimity jury instruction; and (3) the State withheld exculpatory or impeachment
evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963). We affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

On December 15, 2016, K.D., who was 14 years old at the time, lived with her
family in an apartment complex in Emporia, Kansas. On that date, she was home with her
younger brothers and decided to visit her grandma alone at her apartment across the
street. K.D. was on the sidewalk outside the apartment building when Jones asked her if
she would help him move boxes in his apartment.

K.D. knew Jones as her upstairs neighbor and had been to his apartment a couple
of times. On Halloween, K.D. went to Jones' apartment with her brother, and Jones gave
her a king-size box of candy, gave her brother full-size candy bars, and took a picture of
them on his phone. A few days before Jones asked K.D. for help, K.D. had asked if Jones
would help her unlock a phone she bought at school. Jones agreed to help, so K.D. left
the phone with him. K.D. explained that while she was not entirely comfortable asking
Jones for help, she asked him, in part, because he and his brother stated they knew how to
hack into phones. K.D. admitted she could not ask the seller to unlock the phone because
the phone was stolen and she could not get her parents' help because she had misbehaved
and was not supposed to have a phone.

After K.D. agreed to help Jones move boxes, they went to his apartment and he
closed the door behind her. K.D. went into the living room; Jones asked K.D. to take a
seat, so she sat down on his couch. Jones offered K.D. some pie and a soda. K.D.
declined his offers of food and drink, then Jones sat down next to K.D. and started to
touch her inappropriately. K.D. testified Jones leaned onto her and eventually put himself
on top of her, with one leg on her side and one leg in between her legs. K.D. stated that
Jones touched her boobs over her shirt, rubbed her thigh, and made comments like,
"These are nice." K.D. could not recall any other comments Jones made. Jones touched
and kissed her neck and cheek, and Jones placed his hand on her neck and did not choke
her but squeezed it. At one point, Jones shoved his mouth onto K.D.'s mouth and put his
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tongue into her mouth; K.D. stated he tasted like cigarettes. Jones also pulled down his
pants and put his privates or penis on K.D.'s thigh on top of her pants. K.D. did not look
but she felt him pressing against her; his private felt hard, and K.D. stated he continued
touching her boobs. Jones tried to touch K.D.'s privates and tugged at her pant waistband,
but she kept pushing him away. K.D. stated that she froze, could not do anything, and did
not want to look at Jones, so she stared at the television.

Jones stopped after K.D. started crying and told him her parents would be home
soon and her brothers needed her. K.D. stood up, and Jones got off her. K.D. started
walking towards the door and Jones sort of blocked her, but she moved past him, left
Jones' apartment, and returned to her apartment downstairs. K.D. went to the bathroom
and threw up. K.D. initially testified she made her brothers go to their room and she
called her aunt and told her what happened. K.D. later stated that she called her grandma
first to get her aunt's phone number so her aunt could help her with homework because
K.D. did not want her grandma to know. K.D. stated her grandma provided her with the
aunt's phone number then came over to the apartment to ask K.D. what was wrong, but
K.D. did not tell her grandma what happened. K.D.'s grandma testified that K.D. called
her that night and asked her to have her aunt call her so she could help K.D. with
homework.

The aunt testified that she has a close relationship with K.D. She called the
family's house phone after her mother called her saying K.D. wanted to talk to her. The
aunt lived in Burlington, Kansas, and described K.D.'s voice during the call as teary and
shaky. The aunt continued questioning K.D. to figure out what was wrong, and K.D.
eventually told her aunt that she went to help someone move boxes and that someone
tried to touch her or was grabbing her. The aunt said her roommate overheard the
conversation and called a friend who worked for the Emporia Police Department. While
the aunt was speaking with K.D., K.D.'s grandma showed up at K.D.'s apartment. The
aunt then drove to Emporia.
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While K.D. was waiting for her aunt, the police arrived at K.D.'s apartment. K.D.
testified she eventually told the police some of what happened. Emporia Police Officer
Gabrielle Withington testified that she interviewed K.D. two times that night and
described K.D. as crying and pacing around the kitchen. Withington admitted K.D. first
described the events in less detail; however, Withington did not ask K.D. questions
during the initial interview. Initially, K.D. told Withington that Jones pushed her down,
climbed on top of her, and was kissing her all over the left side of her face. K.D. stated
Jones put his tongue inside her mouth, was rubbing his penis on her leg, and was
massaging her throat. K.D. gave a second statement about an hour later, during which
Withington asked K.D. questions. Withington described K.D.'s statements to her during
the second interview, which were generally consistent with K.D.'s later testimony at trial.

After talking to police, K.D. went to a Topeka hospital with her mother and her
aunt. At the hospital, K.D. told Sexual Assault Nurse Examiner (SANE) Jennifer Harris
some of what happened. K.D. told Harris that Jones told her to sit down and offered to
add more pop to her 2-liter bottle. K.D. did not give the bottle to him because she was
scared he would put something in it. Harris testified that K.D. told her Jones sat on top of
her and started kissing and touching her mouth and neck, and he put his tongue into her
mouth. Jones kept trying to pull off K.D.'S shirt and touched her breasts over her clothing
but never touched skin. Jones attempted to pull down her pants, pulled down his pants,
and rubbed her leg with his penis on top of her pants. K.D. did not look at Jones' penis
but stated she could feel it on her thigh. K.D. also told Harris that Jones had his hand near
her trachea and she did not want to do anything because she was scared he would murder
her. Based on K.D.'s statements, Harris took DNA swabs from K.D.'s neck and around
the outside and inside of her mouth. Harris collected K.D.'s clothing and inspected her
pants with a blacklight but saw no bodily fluids. Harris stated the blacklight would not
show bodily fluids if the fluids were dry.

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During Emporia Police Detective David Holmes' interview with Jones, Holmes
obtained two oral swabs from Jones that were sent to the Kansas Bureau of Investigation
(KBI) for testing. Holmes stated he saw a pie on the counter and soda in the refrigerator
in Jones' apartment. Holmes did not take K.D.'s phone into evidence—the phone K.D.
purchased was inside Jones' apartment—but he did take pictures of it. Holmes obtained a
search warrant for Jones' phone and recovered the picture Jones took on Halloween.

The next day, Michelle Colyer of the Kansas Department for Children and
Families conducted a forensic interview of K.D. During the interview, K.D. told Colyer
about the phone she had bought that her parents did not know about, but K.D. would not
say who sold her the phone. K.D. said she had taken the phone up to Jones to have him
activate it a few days before because he had a similar phone. K.D. thought Jones was
going to give her the phone back, but she did not ask him about the phone when she went
up to his apartment the night of the incident.

The State charged Jones with aggravated indecent liberties with a child more than
14 years but less than 16 years of age and criminal restraint. KBI forensic scientist Rachel
White testified at trial that she analyzed all the DNA swabs taken from K.D.'s neck,
mouth, and oral cavity and that the swabs matched K.D.'s DNA profile. However, while
K.D.'s oral swab contained some male DNA, the value was too small for testing
purposes, and the quality of the mouth swab sample did not allow her to draw any
conclusions. As for the neck swab, White identified two male donors in the sample and
separated the donors into a major and minor contributor, because one person was more
present than the other. White concluded that she could not exclude Jones as a contributor
because his DNA male haplotype was consistent with a partial minor male haplotype
developed for comparison purposes. White explained the probability of selecting an
unrelated male in the general population with the partial minor male DNA haplotype was
1 in 442 individuals.

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Jones testified in his defense. Jones had moved from Colorado that August to start
a new job. He did not spend a lot of time at his apartment, had interacted some with
K.D.'s family, and knew all the families who lived in his building. Jones' brother had
stayed with him between September and Thanksgiving and may have had more
interactions with K.D.'s family.

On Halloween, Jones' brother went to the store and had bought too much candy.
Jones gave K.D. a box of Whoppers and his neighbor's child a box of Hot Tamales; he
also gave out handfuls of candy to all the kids to get rid of it. Jones explained he took a
picture of K.D. and her brother because he thought the costumes were neat and to show
his Central American coworkers—who were curious about Halloween—the costumes.
Jones testified K.D. came up to him in the parking lot as he exited his car one time before
Thanksgiving and grabbed his arm because she wanted to see his iPhone 7.

Jones testified that on the evening of December 15, 2016, he was smoking a
cigarette and reviewing a work project on his phone outside on the apartment landing.
K.D. came up and asked him if he had an iPhone charger. Jones went into his apartment,
grabbed his charger and gave it to K.D., and she left. Shortly after, Jones went inside his
apartment and, about five minutes later, he heard a knock at the door. Jones testified K.D.
told him she could not get the phone to work. Jones had made an apple pie and had some
soda, and he thought it polite to offer K.D. some. Jones looked at K.D.'s phone and tried
to unlock it for about five minutes. During that process, Jones stated he and K.D. grabbed
the phone back and forth from each other, and K.D. sat on the opposite side of the sofa
from him. Jones described K.D. as extremely anxious and worried about her parents.
After his attempts to unlock the phone, Jones told K.D. he could see if someone at work
could help, and K.D. left the phone with him. Jones stated he did not know the phone was
stolen at that time.

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After K.D. left, Jones went outside to smoke a cigarette and noticed a parked
police vehicle. Jones stated that his next memory was an officer knocking on his door,
and the police would not tell him what was going on. Jones became aware there was an
investigation when Holmes approached him, but he testified he was in shock that night
and could not recall his interactions with the police or giving a DNA sample.

Jones testified that the police requested he go to the police station. He complied
and stated the questioning lasted about 20 minutes. Holmes told him there was a
surveillance system at the apartment complex, and Jones stated, "Good." Jones said he
would be glad that the interaction with K.D. was caught on camera because it would
show she came up to him twice and he never asked her to move boxes. Later, Jones
learned that no system existed. Jones denied kissing, licking, rubbing, or making any
sexual contact with K.D. Jones also admitted that before that night, neither he nor K.D.
had any reason to be mad at the other.

The jury acquitted Jones of criminal restraint but found him guilty of aggravated
indecent liberties with a child. The district court sentenced Jones to a term of 41 months
in prison and lifetime postrelease supervision.

Jones timely appeals.

I. DID THE STATE PRESENT INSUFFICIENT EVIDENCE TO SUPPORT JONES'
AGGRAVATED INDECENT LIBERTIES CONVICTION?

Jones first argues that the State failed to present sufficient evidence to support his
conviction for aggravated indecent liberties with a child.

"'When the sufficiency of the evidence is challenged in a criminal case, this court
reviews the evidence in a light most favorable to the State to determine whether a rational
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fact-finder could have found the defendant guilty beyond a reasonable doubt. In making a
sufficiency determination, the appellate court does not reweigh evidence, resolve
evidentiary conflicts, or make determinations regarding witness credibility.' An appellate
court will reverse a guilty verdict even if the record contains some evidence supporting
guilt only in rare cases when the court determines that evidence was so incredulous no
reasonable fact-finder could find guilt beyond a reasonable doubt. [Citations omitted.]"
State v. Torres, 308 Kan. 476, 488, 421 P.3d 733 (2018).

Under K.S.A. 2017 Supp. 21-5506(b)(2)(A), aggravated indecent liberties with a
child occurs when the child is more than 14 but less than 16 years of age and the
defendant engages in "[a]ny lewd fondling or touching of the person of either the child or
the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires
of either the child or the offender, or both."

To prove Jones guilty, the State needed to establish that (1) Jones lewdly fondled
or touched K.D. without her consent; (2) Jones intended the lewd fondling or touching to
arouse or satisfy sexual desires of either himself, K.D., or both; (3) K.D. was more than
14 but less than 16 years of age; and (4) the conduct took place in Lyon County, Kansas,
on or about December 15, 2016.

Our Supreme Court has explained that

"a touch is prohibited if it meets the common meaning of the term 'lewd,' i.e., if the touch
is sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to
sensual desire or imagination; or indecent, obscene, or salacious. In considering if a touch
is lewd, a factfinder should consider whether the touch tends to undermine the morals of
a child and is so clearly offensive as to outrage the moral senses of a reasonable person."
State v. Reed, 300 Kan. 494, Syl. ¶ 1, 332 P.3d 172 (2014), cert. denied 135 S. Ct. 1566
(2015).

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"Whether a touching is lewd depends upon the totality of the circumstances and is
a question for the jury. Accordingly, whether the action offends the moral senses of a
reasonable person is a determination left to the jury. [Citations omitted.]" State v.
Rutherford, 39 Kan. App. 2d 767, 776, 184 P.3d 959, rev. denied 286 Kan. 1184 (2008).

Our review of the record shows the State presented sufficient evidence to support
Jones' conviction for aggravated indecent liberties with a child. K.D. testified she was 14
years old on December 15, 2016, and the State placed into evidence K.D.'s prior
statements to investigators that Jones either sat down next to K.D. or sat down on top of
her. K.D. testified that Jones sat down next to her and placed himself on top of her. K.D.
described Jones as touching her boobs over her shirt and rubbing her thighs; attempting to
touch her boobs under her shirt and pulling down her pants; and making comments to her
such as "These are nice." K.D. also stated Jones kissed and licked her on the neck and
cheek and, at one point, pulled her mouth towards his and put his tongue into her mouth.
K.D. said that Jones pulled down his pants and pressed his privates or penis on her thigh.

Jones argues we should find the State presented insufficient evidence to support
his conviction based on the inconsistencies in K.D.'s statements, her inconsistent
behavior and statements about Jones, her conduct in regards to the stolen phone, and the
State's lack of DNA evidence. But with these arguments, Jones asks us to reweigh the
evidence, resolve evidentiary disputes, and make witness credibility determinations,
which is something we cannot do. See Torres, 308 Kan. at 488.

The jury heard all the evidence, including K.D.'s prior statements and testimony,
Jones' testimony, and the DNA evidence. Jones described his interactions with K.D.
differently than K.D. and denied making sexual contact with her. K.D., however,
described Jones' conduct at trial in a generally consistent manner with her statements to
police, the SANE nurse, and the forensic interviewer. Although some of K.D.'s
statements and testimony were inconsistent, the jury, as the fact-finder, weighed the
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evidence, resolved evidentiary disputes, and made witness credibility determinations. In
reviewing the evidence in the light most favorable to the State, we conclude that
sufficient evidence supports Jones' aggravated indecent liberties with a child conviction.

II. DID THE DISTRICT COURT COMMIT CLEAR ERROR IN FAILING TO GIVE A
UNANIMITY JURY INSTRUCTION?

Jones argues the district court erred by failing to give a unanimity jury instruction
but acknowledges that he requested no such jury instruction before or at trial.

"'Where an instruction was not requested during the trial, an appellate court applies a
clearly erroneous standard of review.' Whether the failure to give a unanimity instruction
in a multiple acts case is clearly erroneous involves a de novo review of the entire record.
'Whereas the burden to show harmlessness generally shifts to the party benefitted by the
error, the burden to show clear error under K.S.A. 22-3414(3) remains on the defendant.'
[Citations omitted.]" State v. [Chris] King, 299 Kan. 372, 379, 323 P.3d 1277 (2014).

However, Jones argues instead that we should review the reversibility of any
instructional error under the harmlessness standard because the district court's failure to
instruct the jury on unanimity violated his constitutional rights. Although Jones
acknowledges he raises his constitutional claims for the first time on appeal, he
nevertheless argues we should review his claim to serve the ends of justice or prevent a
denial of his fundamental rights. In response, the State argues that under State v.
Williams, 295 Kan. 506, 510-17, 286 P.3d 195 (2012), we should not allow Jones to
avoid the clear error standard by presenting a constitutional claim for the first time on
appeal.

Generally, a theory not raised before the district court, even a constitutional issue,
cannot be raised for the first time on appeal. There are recognized exceptions to the
general rule, including when the "consideration of the theory is necessary to serve the
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ends of justice or to prevent the denial of fundamental rights." State v. Phillips, 299 Kan.
479, 493, 325 P.3d 1095 (2014). Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34)
requires a party to explain why an issue not raised below should be considered for the
first time on appeal.

But Jones presents no authority in support of his argument that the constitutional
harmlessness standard applies despite his lack of a contemporaneous objection. When an
appellant either fails to support an argument with pertinent authority or explain why the
argument is sound in the face of contrary authority, that appellant fails to properly brief
that argument, which is akin to abandonment. See State v. Tague, 296 Kan. 993, Syl. ¶ 3,
298 P.3d 273 (2013). In Williams, our Supreme Court explained that "characterizing the
issue as a constitutional claim does not significantly advance [a defendant's] procedural
posture. Even constitutional grounds for reversal are not properly before the appellate
court for review if they are being asserted for the first time on appeal." 295 Kan. at 517.
Moreover, our Supreme Court has held: "The failure to give a jury instruction is reviewed
for clear error unless the issue is properly preserved." State v. Brammer, 301 Kan. 333,
339, 343 P.3d 75 (2015); see also K.S.A. 2017 Supp. 22-3414(3) (clear error standard
applies if defendant fails to object to giving of or failure to give instruction). For these
reasons, we will review Jones' claim that the district court improperly failed to give a
unanimity jury instruction for clear error.

Under Kansas law, a defendant is entitled to a unanimous jury verdict. K.S.A. 22-
3421; State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014). When a case involves
multiple acts and any one of the acts could constitute the crime charged, the jury must be
unanimous in finding which specific act constitutes the crime. See State v. De La Torre,
300 Kan. 591, 595, 331 P.3d 815 (2014). To ensure jury unanimity in multiple acts cases,
the State must elect which act it is relying upon for the charge or the district court must
instruct the jury that it must unanimously agree on the specific act constituting the crime
charged. State v. Akins, 298 Kan. 592, 618, 315 P.3d 868 (2014). However, this court has
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held the State need not elect a specific act and the district court need not give a unanimity
jury instruction "when 'the acts at issue occur in a series over a very short time and form
parts of a whole.'" State v. Rivera, 42 Kan. App. 2d 1005, 1018, 219 P.3d 1231 (2009)
(quoting Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in
Kansas, 44 Washburn L.J. 275, 301 [2005]), rev. denied 290 Kan. 1102 (2010).

We apply a three-part test to analyze multiple acts cases. The first part of the test
requires us to decide whether the case involves multiple acts or a unified course of
conduct. See State v. [Kameron] King, 297 Kan. 955, 979, 305 P.3d 641 (2013).
Resolving this issue presents a question of law over which we exercise unlimited review.
See Santos-Vega, 299 Kan. at 18. Should we find the defendant's conduct unitary, then
the analysis ends. See State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007).

When reviewing the first step,

"the threshold question is whether jurors heard evidence of multiple acts, each of which
could have supported conviction on a charged crime. This court has determined that acts
are multiple acts if they are factually separate and distinct. And incidents are factually
separate when independent criminal acts have occurred at different times or different
locations or when a later criminal act is motivated by a 'fresh impulse.' Factually separate
and distinct incidents are not what this court calls 'unitary conduct.' The factors we have
used to determine the existence of unitary conduct are: '"(1) whether the acts occur at or
near the same time; (2) whether the acts occur at the same location; (3) whether there is a
causal relationship between the acts, in particular whether there was an intervening event;
and (4) whether there is a fresh impulse motivating some of the conduct."' [Citations
omitted.]" [Chris] King, 299 Kan. at 379.

The State charged Jones with aggravated indecent liberties with a child more than
14 but less than 16 years of age. Jones acknowledges the State presented evidence that he
allegedly engaged in lewd fondling and touching of K.D. at the same location and within
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a short time period. But Jones argues the case involves multiple acts based on the
different alleged acts and the evidence supporting each act.

Contrary to Jones' argument, his acts were not separate and distinct; rather, his acts
were causally related. No intervening events or fresh impulses interrupted Jones' acts.
K.D.'s testimony described one incident with Jones that took place on December 15,
2016, inside Jones' apartment when K.D. was 14 years old: Jones sat down next to her,
placed himself on top of her, and touched her inappropriately. After Jones began the
inappropriate touching, K.D. froze and did not or could not do anything, and Jones only
stopped when she started crying and told him she needed to leave. Thus, the evidence
shows Jones engaged in a series of acts over a short period of time which formed parts of
the whole.

Because Jones did not commit multiple acts, the unanimity jury instruction he
claims should have been given was not necessary. Accordingly, the district court did not
err in failing to give a unanimity jury instruction.

III. DID THE STATE COMMIT A BRADY VIOLATION?

Jones argues for the first time on appeal that the State violated his rights under
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to
disclose exculpatory and impeachment evidence before trial that the phone K.D. asked
Jones to help her activate was stolen.

Generally, we review a district court's decision regarding a Brady violation de
novo and give deference to the district court's findings of fact. State v. DeWeese, 305
Kan. 699, 709, 387 P.3d 809 (2017).

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"In Brady v. Maryland, the United States Supreme Court held: '[T]he suppression
by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. So prosecutors have a positive duty to disclose
evidence favorable to the accused—which encompasses both exculpatory and
impeachment evidence.

"This court requires three essential elements to establish a Brady violation: '"(1)
The evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; (2) that evidence must have been suppressed by the State,
either willfully or inadvertently; and (3) the evidence must be material so as to establish
prejudice."' [Citations omitted.]" 305 Kan at 710.

A "reasonable probability" test applies to the materiality element, meaning "'[t]he
evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A
"reasonable probability" is a probability sufficient to undermine confidence in the
outcome.' [Citations omitted.]" 305 Kan. at 710.

Jones acknowledges he did not raise his Brady violation argument below, but he
argues we should consider his claim for the first time on appeal to serve the ends of
justice or to prevent the denial of a fundamental right. See Phillips, 299 Kan. at 493.
Other panels of this court have found that this exception may apply to Brady violations
raised for the first time on appeal. See State v. Mead, No. 115,989, 2017 WL 4082240, at
*8-9 (Kan. App. 2017) (unpublished opinion) (finding defendant could have asserted
denial of important right exception); State v. Nelson, No. 104,070, 2012 WL 1919859, at
*14 (Kan. App. 2012) (unpublished opinion) (applying to argument based on motion for
new trial proceedings raising Brady violation for first time on appeal). But even when
faced with a potential denial of a defendant's fundamental rights, as here, we may decline
to consider the issue if the record is insufficient to address the merits. See, e.g., State v.
Ortega-Cadelan, 287 Kan. 157, 160, 194 P.3d 1195 (2008).
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Without venturing into the thicket of whether this issue has been properly
preserved and assuming without deciding that Jones has established the first two prongs
of the test showing a Brady violation, our review of the record fails to establish the
materiality element. The record shows the jury was aware that K.D.'s phone was stolen
when it reached its verdict. K.D. admitted the phone was stolen during cross-
examination. Jones testified he did not know that the phone was stolen at the time he
agreed to help K.D. Jones also testified he and K.D. had no reason to be mad at each
other before that night. Finally, defense counsel argued in closing that K.D. may have
accused Jones because he could not get her stolen phone to work. The State addressed the
defense's argument on rebuttal and argued the jury could also reasonably infer the
opposite finding from the evidence, i.e., K.D. would not accuse or discredit Jones
because he agreed to help her get the phone to work. The jury was presented with the fact
the phone was stolen and the parties argued about its effect at the trial. Accordingly,
Jones cannot meet the materiality element necessary to establish a Brady violation.

Affirmed.