State v. Zamora

803 P.2d 568, 247 Kan. 684, 1990 Kan. LEXIS 209
CourtSupreme Court of Kansas
DecidedDecember 14, 1990
Docket64,129
StatusPublished
Cited by70 cases

This text of 803 P.2d 568 (State v. Zamora) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Zamora, 803 P.2d 568, 247 Kan. 684, 1990 Kan. LEXIS 209 (kan 1990).

Opinions

The opinion of the court was delivered by

Six, J.:

This criminal case concerns; (1) prosecutorial misconduct in closing argument; (2) limitation of voir dire examination; (3) multiplicity of rape charges; and (4) disposition of a motion for acquittal addressing a charge of aggravated kidnapping.

David F.B. Zamora appeals his convictions of one count of aggravated kidnapping (K.S.A. 21-3421) and three counts of rape (K.S.A. 21-3502).

[685]*685We reverse because of prosecutorial misconduct during closing argument. We find no error in the trial court’s disposition of Zamora’s claims relating to voir dire, multiplicity, and aggravated kidnapping.

Facts

On the evening of October 18, 1988, A.J., a 16-year-old girl, spoke with her stepfather at a private club in Wichita about a ride to a friend’s house to spend the night. Because the stepfather did not have a car, he told A.J. to ask one of the men in the bar with whom he was acquainted for a ride. A.J.’s request was unsuccessful.

However, Zamora, a 37-year-old club patron and acquaintance of the stepfather, offered A.J. a ride. Zamora drove to the 800 block of North Market, where A.J. thought the friend lived. A.J. had never been to the friend’s new address and could not locate the house.

After driving around for 30 minutes to an hour, A.J. asked Zamora to take her to her stepfather’s house, which was two blocks from the club. Zamora told A.J. he could not because he did not have enough gas. Zamora suggested that A.J. spend the night at his apartment, assuring her that he would take her to school the next morning. A.J. agreed. They arrived at Zamora’s second-floor apartment around 9:00 p.m.

Initially, A.J. planned to sleep on the couch. Later, Zamora told her that she could sleep in the bedroom, and he would sleep on the couch. A.J. went to sleep in the bedroom fully clothed except for her shoes. The testimony differed regarding the ensuing events.

A.J.’s Story

A.J. testified that Zamora entered the bedroom and woke her up around 1:30 a.m. He told her he wanted to make love to her and moved onto the bed. A.J. told him that she was going to scream if he did not get up. Zamora tied what A.J. thought was, a rope across her, mouth. A.J. attempted to push hiin away. Zamora removed her clothes,, tied her hands behind. her head, and tied one leg to the foot of the bed.

Zamora put “some kind of cream stuff” on his fingers and rubbed his fingers inside her vagina for a couple of seconds. This [686]*686testimony, which formed the basis for the charge of rape in Count Three of the amended information (insertion of fingers), was contradicted by Zamora.

About two minutes after Zamora inserted his fingers into A.J.’s vagina, he inserted his penis into her vagina and “went about his business.” A.J. tried to scream but Zamora pinched her nose and mouth. This testimony formed the basis for the charge of rape in Count Two of the amended information (sexual intercourse).

Zamora then moved into the living room, leaving A.J. tied up. He returned to the bedroom 15 to 20 minutes later and again inserted his penis into her vagina and performed sexual intercourse. This testimony formed the basis for the charge of rape in Count Four.

Zamora untied A.J.’s hands, laid down beside her, and tied her left hand to his. The hand-to-hand tether was to alert Zamora if A.J. tried to escape while he was asleep. Zamora later left the bedroom and laid on the couch in the living room. Zamora unplugged the phone after A.J. tried to use it. He laid down in front of the only door to the apartment, thereby preventing her escape.

Zamora planned to pick up money and buy film the following morning. He told A.J. he intended to photograph her in outfits “like G-strings” to make it look like they were having fun and that he would use these pictures as evidence if A.J. told anyone what had happened. Zamora drove A.J. to a Western Union office and he left her in the van. A.J. exited the van and ran into an adjacent motel, telling the motel clerk she had been raped and that she needed the clerk to call “the cops.” A.J. then entered a motel bathroom, locked the door, climbed out the window, and stopped a car for help.

Zamora’s Story

Zamora admitted having sex with A.J., but contended that she consented. He went into the bedroom, woke A.J., and asked her to have sex with him. A.J. responded, “Not for free.” After Zamora agreed to pay her $50, they had sexual intercourse. Zamora admitted rubbing butter on A.J.’s pubic area but denied putting [687]*687his fingers inside her vagina. A.J. was not tied up during the first encounter.

After the first encounter, Zamora watched TV in the living room. He then returned to the bedroom and asked A.J. if she had ever had “gentle bondage — bondage without pain.” A.J. agreed to participate as long as she was not hurt. No additional money was discussed. Zamora admitted tying A.J.’s hands, tying a bathrobe belt around her mouth, and having sexual intercourse. He denied tying her legs. He then untied her. Zamora admitted unplugging the phone but denied lying in front of the door.

In the morning, Zamora called his father in Colorado and asked him to send $50 via Western Union. Zamora planned to take A.J. to Western Union to pick up the money to pay her and then take her to school.

Closing Argument

Zamora contends that the State committed prosecutorial misconduct during closing argument. First, Zamora argues that the prosecutor misstated his testimony. Second, Zamora asserts that the State committed reversible error when the prosecutor told the jury that if Zamora was found not guilty, he will “get away with it” again.

Zamora asserts that the State misstated his testimony when the State argued in closing that he fantasized about rape. During closing argument, the following occurred:

“[By prosecutor] Look at the Defendant’s testimony, his version — remember this is a man who reads magazines about bondage, who fantasizes about tying up women, gagging them and having sex. Fantasizing about rape, Ladies and Gentlemen. ...
“What you have is no evidence whatsoever to support the Defendant’s story that this young lady had sex with him for money. What you have is a man who fantasizes about raping women and on October 19, 1988—
“MR. GRADERT [Defense counsel] Your Honor, I object. That is not what he testified to as fantasizing.
“THE COURT: Counsel can comment on the evidence adduced. It’s not improper. Overruled.”

In State v. Baker, 219 Kan. 854, Syl. ¶ 9, 549 P.2d 911 (1976), we stated:

“In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from [688]*688the evidence and considerable latitude is allowed in discussing it. Counsel may appeal to the jury with all the power and persuasiveness his learning, skill and experience enable him to use.”

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Cite This Page — Counsel Stack

Bluebook (online)
803 P.2d 568, 247 Kan. 684, 1990 Kan. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zamora-kan-1990.