STATE OF KANSAS v. GELDY GUTIERREZ-FUENTES

Topeka, KS - Criminal defense attorney represented Geldy Gutierrez-Fuentes with one count of rape, one count of aggravated battery, one count of aggravated burglary, and one count of criminal threat charges.

On October 5, 2016, the Wichita Police Department received two 911 calls asking

for assistance at D.S.'s address and reporting that a woman had been hit in the face and

was bleeding. When Officer Dane Myers arrived, he saw D.S. sitting on the stairs outside

her apartment building with "blood all over her face and . . . on her hand." Because D.S.

did not speak English, Myers obtained D.S.'s name and apartment number from a

neighbor and went to the scene to find the door had been forced open and a piece of the 3

door frame was lying on the ground. When Myers went into the apartment, he saw what

appeared to be blood on the wall by a light-switch plate next to the door. D.S. was later

transported to the hospital.

When Myers arrived at the hospital, D.S. was speaking with hospital personnel

through an interpreter and with help from her Spanish-speaking neighbor. Myers relied

on the hospital interpreter and D.S.'s neighbor to relay questions and answers between

D.S. and himself. Ultimately, D.S. underwent surgical repairs for the injuries, including

the implantation of six titanium plates in her face.

Myers testified that D.S. said that she had broken up with Gutierrez-Fuentes the

day before—October 4, 2016—and she had been afraid he would come back to hurt her,

so she had spent the previous night away from her apartment. After she returned home

the next day, Gutierrez-Fuentes came to the apartment and said he was going to kill her

and punched her in the face repeatedly. D.S. also testified that while hitting her,

Gutierrez-Fuentes told her that "if [she] was not going to be with him that he could kill

[her]," and D.S. was afraid that she was going to die. D.S. testified that she did not know

why Gutierrez-Fuentes stopped hitting her and she did not remember Gutierrez-Fuentes

leaving; she thought that she blacked out and when she came to, she was on the floor in

her living room, bleeding. Myers testified that during this conversation with D.S. he

noticed her eye had begun to swell shut.

Through the use of an interpreter, D.S. was examined by forensic nurse Tracy

Hess the day after the incident. D.S. described the incident and her violent relationship

with Gutierrez-Fuentes and concluded the conversation by stating that "he finally stopped

when he saw there was a lot of blood and he left and then she went out and the neighbor

had called 911." D.S. also told Hess that earlier that week, Gutierrez-Fuentes had come to

her home and "wanted sex and she was afraid to say no, so she said she just took a deep 4

breath and let him have sex with her." D.S. said she felt like she was coerced to have sex

with Gutierrez-Fuentes and that she only did so out of fear.

That same day, D.S. spoke with Wichita police officer Rick Peña, who speaks

Spanish and is an interpreter for the Wichita Police Department. Peña testified that D.S.

said she and Gutierrez-Fuentes had dated for about three months and that two days before

the incident, Gutierrez-Fuentes came to her apartment, entered with a key she had given

him, woke her up, and had sex with her "against her will."

A week later, Officer Peña and Detective Heather Huhman met with D.S. At this

point, D.S. clarified that she had given Gutierrez-Fuentes a key to her apartment but she

had "rigged" the door so that it could not be easily opened from the outside even with a

key. She affirmed that "she felt like she was going to be killed" during the attack on

October 5.

On October 31, 2016, the State charged Gutierrez-Fuentes with one count of rape,

one count of aggravated battery, one count of aggravated burglary, and one count of

criminal threat. Gutierrez-Fuentes was arrested on February 3, 2017, and the district court

appointed counsel to represent him soon after. On March 29, 2017, the State filed an

amended information, adding a second count of aggravated battery. Gutierrez-Fuentes

pleaded not guilty to all charges.

After a series of continuances and two changes of appointed defense counsel,

Gutierrez-Fuentes' jury trial began on August 21, 2018. The State presented evidence

from Linda Ester, a Sedgwick County 911 records custodian, and the two 911 calls from

October 5, 2016. D.S., Peña, Huhman, and Myers also testified.5

The jury viewed Myers' body camera footage of his actions at D.S.'s apartment,

his conversation with D.S. at the hospital, and photographs of D.S.'s apartment. On crossexamination, Myers testified that D.S. did not state that Gutierrez-Fuentes forced her to

have sex.

Doctor Timothy Benning testified about D.S.'s injuries and opined that such

injuries do not commonly occur together as the result of a single impact. Rather, the

cheekbone fracture was consistent with someone being punched on the cheekbone and

the orbital fracture was consistent with a direct blow to the eyeball itself. Benning agreed

that D.S.'s injuries amounted to "getting your face crushed" and that she suffered

"significant" injuries.

Hess testified that D.S.'s genital examination showed no sign of acute injury, but

"[i]t's fairly common that there's no injury with sexual intercourse." She stated that D.S.

did not tell her that Gutierrez-Fuentes used force to rape her; rather, D.S. said she was

overcome by fear. Hess testified that there was nothing in her examination of D.S.

inconsistent with the history D.S. reported to her. On cross-examination, Hess

acknowledged that there was nothing in her examination of D.S. inconsistent with the

theory that D.S. had not been raped and she agreed that she had "no idea" whether D.S.

was raped. The State introduced into evidence and published to the jury 27 photographs

Hess took of D.S. during the examination.

D.S. said that she did not report the initial attack to police because she was afraid.

When asked what she was afraid of, she replied, "I don't know. I just—I tell him to leave

and he left and I thought that was the end of it." However, D.S. also said that GutierrezFuentes came to the apartment on October 4 to retrieve his belongings and she asked

Gutierrez-Fuentes for his key to the apartment, but he said that he had lost it. 6

Gutierrez-Fuentes presented no evidence. During closing argument, defense

counsel focused on the rape charge, arguing insufficient evidence and emphasizing the

inconsistencies in the evidence. After less than three hours of deliberation, the jury

reached a verdict, finding Gutierrez-Fuentes not guilty of rape, guilty of the two counts of

aggravated battery, guilty of aggravated burglary, and guilty of criminal threat. On

October 12, 2018, the district court sentenced Gutierrez-Fuentes to a controlling sentence

of 82 months' imprisonment. He timely appeals.

DID THE STATE VIOLATE GUTIERREZ-FUENTES' CONSTITUTIONAL RIGHT TO A SPEEDY

TRIAL?

The Sixth Amendment to the United States Constitution provides: "In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury." This provision applies in state court through the Due Process Clause of

the Fourteenth Amendment to the United States Constitution. State v. Owens, 310 Kan.

865, 869, 451 P.3d 467 (2019) (citing Klopfer v. North Carolina, 386 U.S. 213, 222-23,

87 S. Ct. 988, 18 L. Ed. 2d 1 [1967]). The Kansas Supreme Court recently found that a

19-month delay did not violate a defendant's constitutional right to a speedy trial. 310

Kan. at 866. The court reached this decision after applying the four nonexclusive factors

of length of delay, reason for delay, the defendant's assertion of his right, and prejudice.

310 Kan. at 869 (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d

101 [1972]).

Courts consider these factors together with all relevant circumstances and none of

the four factors is an independently sufficient reason to find a violation. See 310 Kan. at

869. That being said, "the United States Supreme Court has explained the [length of]

delay factor is 'to some extent a triggering mechanism. Until there is some delay which is 7

presumptively prejudicial, there is no necessity for inquiry into the other factors that go

into the balance.'" 310 Kan. at 872 (quoting Barker, 407 U.S. at 530).

The State first filed charges against Gutierrez-Fuentes on October 31, 2016, but he

was not brought to trial until August 21, 2018. Gutierrez-Fuentes argues that this length

of time violated his constitutional right to a speedy trial. The State disagrees.

Preservation

Gutierrez-Fuentes contends that he properly preserved the constitutional speedy

trial issue for appellate review because defense counsel asserted his right to a speedy trial

and because Gutierrez-Fuentes "personally repeatedly objected to delays in his trial

process." The record is unclear on when exactly Gutierrez-Fuentes objected to the delay

in the proceedings. Gutierrez-Fuentes argues two places in the record on appeal, both of

which occurred more than 18 months after charges were filed. First, he cites a June 15,

2018 hearing at which defense counsel stated: "I just want to make sure the record

reflects that we are not acquiescing into this continuance, we still are asserting our right

to a speedy trial and we want to make sure that this is preserved for the record in case this

ends up on appeal." Second, he cites a July 18, 2018 hearing when his counsel was ill and

not able to attend, at which he personally informed the court: "I've been here for a year

and five months and nothing." And he asked the court about his pro se motion regarding

speedy trial. With these two statements, Gutierrez-Fuentes asserts on appeal that

"[b]ecause [he] objected to continuances and invoked his right to a speedy trial, this issue

is properly before this court."

Speedy trial is both a statutory and constitutional claim. See K.S.A. 2019 Supp.

22-3402. Gutierrez-Fuentes argues in his brief that the delay violated his constitutional

right to a speedy trial. As Gutierrez-Fuentes does not argue that his statutory right to 8

speedy trial was violated, we deem this issue abandoned for the purposes of appeal. See

State v. Littlejohn, 298 Kan. 632, 655-56, 316 P.3d 136 (2014). The constitutional

argument was not raised in the district court at trial and is being presented for the first

time on appeal. Accordingly, Gutierrez-Fuentes did not properly preserve a constitutional

speedy trial right for appellate review. See State v. Godfrey, 301 Kan. 1041, 1043, 350

P.3d 1068 (2015) (holding that a party generally may not raise constitutional grounds for

reversal for the first time on appeal).

That being said, there are several exceptions to the general rule that a new legal

theory may not be asserted for the first time on appeal, including when appellate courts

must consider the theory to prevent the denial of fundamental rights. See State v. Phillips,

299 Kan. 479, 493, 325 P.3d 1095 (2014). Supreme Court Rule 6.02(a)(5) (2020 Kan. S.

Ct. R. 34) requires an appellant to explain why an appellate court should consider for the

first time an issue not raised below. Gutierrez-Fuentes argues that this court should

consider his constitutional speedy trial issue for the first time on appeal because "failure

to reach the issue would result in the denial of a fundamental right." The United States

Supreme Court has held that "the right to a speedy trial is 'fundamental.'" Barker, 407

U.S. at 515. So Gutierrez-Fuentes may raise the issue on appeal despite his failure to raise

it in the district court at trial.

Standard of Review

The parties agree that this court exercises unlimited review over constitutional

speedy trial claims. But in December 2016, more than 10 years after either of the cases

the parties cite for the standard of review, the Kansas Supreme Court noted that "while

the district court's application of Barker to a particular set of facts is a question of law,

what the set of facts is seems to be a question for the district court." (Emphasis added.) In

re Care & Treatment of Ellison, 305 Kan. 519, 533, 385 P.3d 15 (2016). Thus, "[t]he 9

factual findings underpinning a district court's decision regarding a defendant's

constitutional speedy trial right are reviewed for substantial competent evidence, but the

ultimate legal conclusion drawn from those facts is reviewed de novo." Owens, 310 Kan.

at 868 (citing In re Care & Treatment of Ellison, 305 Kan. at 533-34).

Because Gutierrez-Fuentes did not raise a constitutional speedy trial issue in the

district court at trial, the district court had no opportunity to make any factual findings

related to the Barker factors. And "it is not our job to engage in fact-finding." State v.

Rizal, 310 Kan. 199, 204, 445 P.3d 734 (2019). However, for the reasons stated below, a

remand is not required for additional factual findings as the delay in this case was not

presumptively prejudicial and Gutierrez-Fuentes makes no argument that he suffered any

actual prejudice as required.

Analysis regarding prejudice

Whether the length of delay between arrest and trial is presumptively prejudicial

depends on the peculiar circumstances of each case, and the mere passage of time is not

determinative. State v. Weaver, 276 Kan. 504, Syl. ¶ 3, 78 P.3d 397 (2003). Additionally,

the "tolerable delay for an ordinary crime is less than for a complex one." 276 Kan. at

511. As stated above, the Owens court instructs us that this threshold must first be met

prior to a discussion of the Barker factors.

Under the Sixth Amendment, whether a delay is presumptively prejudicial is

determined by the factual circumstances of each case rather than by a bright-line time

frame. The delay analysis is different based on the complexity of the crime. See Owens,

310 Kan. at 872-73 (citing Barker, 407 U.S. at 530-31). In its brief, the State argues that

all of the continuances, save the last three-and-one-half months, were attributable to the

defendant and the delay was not presumptively prejudicial. However, the length of delay 10

is a factor for consideration after the threshold has been met, and Owens points out that

we are not to blur the lines between the two levels of analysis.

The Kansas Supreme Court has found a 23-month delay was not presumptively

prejudicial in a complex murder trial. See State v. Mathenia, 262 Kan. 890, 895, 942 P.2d

624 (1997). Here, the case involved investigations into rape, aggravated battery, and

criminal threat. The trial included testimony from multiple police officers and physicians

and involved significant questions regarding the facts related to each charged crime. Trial

occurred approximately 22 months after charging and approximately 18 months after

arrest. Based on the complexity of the case, we hold that the 18-month delay was not

presumptively prejudicial.

However, even if the delay was presumptively prejudicial, Gutierrez-Fuentes

offers no explanation or argument regarding actual prejudice suffered. He argues that he

was appointed three different attorneys during his time in custody and the last one was

appointed less than one month before trial. However, Gutierrez-Fuentes makes no

argument as to why having three attorneys or when the appointment occurred impaired

the defense or resulted in prejudice.

The State makes three arguments regarding this issue. First, Gutierrez-Fuentes

does not identify any specific prejudice. Second, an immigration hold was in place for

Gutierrez-Fuentes. Lastly, there was no claim that the defense was impaired by the length

of the delay. Gutierrez-Fuentes did not file a reply brief rebutting or addressing these

points. The State correctly points out that incidentally mentioning a point is insufficient.

See Brubaker v. Branine, 237 Kan. 488, 490, 701 P.2d 929 (1985). As a result, GutierrezFuentes has abandoned any argument regarding actual prejudice from the delay, which is

dispositive of this issue, and no further fact-finding from the district court is necessary.11

The district court did not violate Gutierrez-Fuentes' Sixth Amendment right to a speedy

trial.

WAS THERE SUFFICIENT EVIDENCE TO SUPPORT GUTIERREZ-FUENTES' AGGRAVATED

BURGLARY CONVICTION?

Gutierrez-Fuentes argues that there was insufficient evidence to support his

aggravated burglary conviction. The State charged Gutierrez-Fuentes with aggravated

burglary under K.S.A. 2016 Supp. 21-5807(b)(1), which prohibits "without authority,

entering into . . . any . . . [d]welling in which there is a human being, with intent to

commit a felony, theft or sexually motivated crime therein." Gutierrez contends that the

State failed to prove that he was legally unauthorized to be in D.S.'s apartment. The State

disagrees.

"Appellate courts review sufficiency claims in a criminal case to determine whether '"a

rational factfinder could have found the defendant guilty beyond a reasonable doubt."' In

making this determination, appellate courts view the evidence in the light most favorable

to the State, which means the court '"does not reweigh evidence, resolve evidentiary

conflicts, or make determinations regarding witness credibility." [Citations omitted].'"

State v. Williams, 308 Kan. 1439, 1443, 430 P.3d 448 (2018).

Gutierrez-Fuentes argues that even under this standard of review there is

insufficient evidence to show that he was unauthorized to enter the apartment, citing State

v. Vasquez, 287 Kan. 40, 194 P.3d 563 (2008). Among other things, Vasquez was

charged with committing aggravated burglary in December 1998 by "entering into or

remaining within [his wife] Robin's house with the intent to commit first-degree murder."

287 Kan. at 43. Vasquez and Robin married in 1996, but "by mid-1998, Robin was

seeking a divorce." 287 Kan. at 44. In October 1998, Vasquez went to Mexico to harvest

crops on his land; while there, he contacted Robin, who "told him she did not want him to 12

return." 287 Kan. at 44. While Vasquez was gone, Robin "moved his belongings to the

home of Vasquez' sister," and when Vasquez returned to Kansas in the first week of

December 1998, he stayed at his sister's home. 287 Kan. at 44. Vasquez was convicted of

the aggravated burglary charge and on appeal he argued that there was insufficient

evidence that he lacked authority to enter Robin's house.

The Kansas Supreme Court reasoned:

"Our opinion in State v. Franklin, 280 Kan. 337, 345-46, 121 P.3d 447 (2005), is

helpful in deciding this issue. In that case, a majority of this court reversed the aggravated

burglary conviction of a former live-in girlfriend who entered her former boyfriend's

residence and attacked his current paramour. Evidence of lack of authority was

insufficient when the defendant had testified that she had permission to be in the

residence, and that she had clothes in the residence and a car in its garage. In response,

the State had relied on the timing of the attack, 1:54 a.m., as well as the defendant's lack

of conversation with residents on the night of the attack, her estrangement from the

boyfriend, and her failure to visit the residence in the previous several weeks.

"Viewing all of the evidence in this case in the light most favorable to the

prosecution, the State certainly demonstrated that Robin wanted nothing to do with

Vasquez. She had asked him to stay in or go back to Mexico; and she had moved at least

some of his belongings out of their house and into his sister's. Yet the State did not prove

that on December 11, 1998, Vasquez was legally unauthorized to enter the house he and

Robin had lived in together. Robin may have obtained a restraining order or may have

planned to file a PFA action, as she told [the police officer], but there was no evidence

that Vasquez had been served with any order of this type. He was still married to Robin.

Although [the officer's] discouragement of contact with Vasquez' wife was good advice,

it lacked the force of law. In keeping with our Franklin decision, we hold that the

evidence at trial was insufficient to show Vasquez lacked authority to enter Robin's

house. His conviction on aggravated burglary must therefore be reversed and its

corresponding sentence vacated. [Citations omitted.]" Vasquez, 287 Kan. at 59-60.13

Gutierrez-Fuentes argues that the evidence the State presented at his trial is

analogous to that presented in Vasquez. There was evidence that D.S. and GutierrezFuentes had lived together in the apartment for four months, and D.S. testified that she no

longer wanted Gutierrez-Fuentes in the apartment after their breakup on October 4, 2016.

He asserts that under Vasquez, this court must reverse his aggravated burglary conviction.

This case is distinguishable from Vasquez. Unlike the case at bar, the residence in

Vasquez was a shared marital home. See 287 Kan. at 60. Vazquez had not been

previously asked to return his key, as Gutierrez-Fuentes had been. D.S. and GutierrezFuentes were not married, and the record contains no evidence that he had any property

rights in the residence.

The State requests this court to apply the Kansas Supreme Court's more recent

holding in Williams. In that case, the defendant and victim were dating and the

aggravated burglary in question occurred at the victim's home. The Williams court

focused on the property rights of the victim, noting that "someone with a property

interest—as an owner or lessee, for example—has the right to exclude others from the

property." 308 Kan. at 1445. It acknowledged that in certain cases, such as Vasquez, it

had held that the State failed to prove a lack of authority since both the defendant and the

victim had a property interest in the residence. 308 Kan. at 1446. And the Williams court

further acknowledged that "a close question exists" when the State does not present direct

evidence about the defendant and victim's property interests in the residence where an

aggravated burglary occurs. 308 Kan. at 1446. But circumstantial evidence can

sufficiently support a factual conclusion that a defendant lacked authority to enter a

residence. See 308 Kan. at 1446.

Forcible entry is a circumstance that can demonstrate a defendant lacked authority

to enter. 308 Kan. at 1446. The Williams court reasoned:14

"Here, the State presented circumstantial evidence that Robinson had to give

permission in order for Williams to enter and that Williams recognized or acquiesced in

her right to exclude him. Robinson testified that Williams did not live with her and she

had taken back his key a few days before the incident. This suggests she had the right to

give and revoke permission. Williams called and talked about dropping by, which

suggests he did not perceive he had a right to demand access to the residence. And

Robinson asked Williams not to come over on the night of the incident and refused to let

him in when he knocked on her door. Significantly, Williams did not try to enter, even

though the door was initially unlocked. Once Robinson answered the door, she told

Williams to leave and then locked the door. When Williams returned, he broke the door

open to gain entry—evidently he did not have a key.

"Based on this evidence, a rational fact-finder could conclude beyond a

reasonable doubt that Williams entered the house without authority." 308 Kan. at 1446-

47.

D.S. testified at trial that she ended her relationship with Gutierrez-Fuentes and

had asked for his key. This suggests that D.S. had the right to give and revoke GutierrezFuentes' permission to enter the apartment. Her testimony that Gutierrez-Fuentes came to

the apartment to retrieve his belongings suggests that he recognized that right. D.S.

further testified that on the day of the aggravated burglary, Gutierrez-Fuentes first came

to the window of her apartment, knocked, and said he wanted to speak to her. This

suggests that he realized he needed her permission to enter the apartment. Moreover,

when D.S. did not let Gutierrez-Fuentes in, he forcibly broke the door open to gain entry,

which, as noted in Williams, suggests he lacked authorization to enter.

Based on the evidence set forth above, a rational fact-finder could conclude

beyond a reasonable doubt that Gutierrez-Fuentes entered the apartment without

authority. This court finds the evidence was sufficient to support the verdict on this issue.15

DID THE DISTRICT COURT ERR BY ADMITTING INADMISSIBLE HEARSAY AT TRIAL?

Gutierrez-Fuentes argues that the district court erred in admitting hearsay

testimony from Myers and Hess about statements D.S. made to them through an

interpreter. Under K.S.A. 2019 Supp. 60-460, "[e]vidence of a statement which is made

other than by a witness while testifying at the hearing, offered to prove the truth of the

matter stated, is hearsay evidence and inadmissible" unless it falls within certain

delineated exceptions.

When Myers began to testify about his conversation with D.S.—as facilitated by

an interpreter—Gutierrez-Fuentes objected on foundation and hearsay grounds, arguing

that the State had not shown that the interpretation was accurate and that the interpreter,

not Myers, should testify about the statements. The district court overruled the objection,

holding: "It's hearsay, but it's based upon what she said and she will be testifying and

you can clarify that at a later time. She is going to be testifying, so she will be available

for cross-examination." As the district court implicitly recognized, K.S.A. 2019 Supp. 60-

460(a) allows hearsay evidence if it is "[a] statement previously made by a person who is

present at the hearing and available for cross-examination with respect to the statement

and its subject matter, provided the statement would be admissible if made by the

declarant while testifying as a witness." Nevertheless, the district court noted GutierrezFuentes' request for a continuing objection.

Similarly, when the State asked Hess to testify about "what [D.S.] said was the

reason for your consult with her," Gutierrez-Fuentes again objected on foundation and

hearsay grounds. The district court overruled the objection and noted Gutierrez-Fuentes'

request for a continuing objection. By objecting on hearsay grounds and obtaining a

continuing objection, Gutierrez-Fuentes preserved this issue for appellate review. See 16

State v. Mattox, 305 Kan. 1015, 1035, 390 P.3d 514 (2017) (noting that a continuing

objection to the admission of evidence preserves the issue for appellate review).

Gutierrez-Fuentes concedes that "because D.S. testified, D.S.'s actual statements

would not be hearsay." He tries to distinguish his argument by contending that he does

not challenge Myers' and Hess' testimony about D.S.'s statements; rather, he asserts that

the inadmissible hearsay occurred when they testified about what the interpreter had told

them. Gutierrez-Fuentes argues that because the unidentified interpreter was not available

for cross-examination, Myers' and Hess' testimony about what the interpreter told them

was inadmissible hearsay. He contends that the erroneous admission of hearsay requires

reversal of his convictions and remand for a new trial. The State replies that the

statements were not inadmissible hearsay and, even if the district court erred by allowing

the testimony, any error was harmless.

As the parties agree, Kansas appellate courts "review a trial court's determination

regarding whether hearsay is admissible under a statutory exception for an abuse of

discretion." See State v. Jones, 306 Kan. 948, 957, 398 P.3d 856 (2017). A district court

abuses its discretion by taking an action that is arbitrary, fanciful, or unreasonable; based

on an error of law; or based on an error of fact. 306 Kan. at 957. Yet even if a district

court errs by admitting inadmissible evidence, the result is not necessarily reversal of the

defendant's convictions and remand for a new trial. See State v. Sean, 306 Kan. 963, 986,

399 P.3d 168 (2017) ("Even if we assume all of the testimony was erroneously admitted,

our analysis below demonstrates its admission amounted to harmless error.").

The State directs this court to persuasive authority from the Georgia Court of

Appeals regarding the admissibility of testimony from an interpreter as a "language

conduit." See Lopez v. State, 281 Ga. App. 623, 636 S.E.2d 770 (2006). In Lopez, the

interpreter did not testify at trial. The court allowed the testimony from the witness who 17

used the interpreter after finding that the overall circumstances showed the interpreter had

no motive to distort the interpretation and it was otherwise accurate. That court ultimately

held that the statements should be relied on as the declarant's statement themselves

without an added layer of hearsay unless a motive to mislead or distort was present. 281

Ga. App. at 625-26.

The Kansas Supreme Court has not directly addressed the issue of whether or not a

neutral third-party's interpreter's statements are inadmissible hearsay if the interpreter

does not testify at trial. In discussing competency challenges to court-appointed

interpreters, the Kansas Supreme Court discussed the role of the interpreter as more than

a "mere witness" and commented that interpreters are presumed to have acted regularly in

the performance of their official duty. See State v. Van Pham, 234 Kan. 649, 662, 675

P.2d 848 (1984). In Van Pham, the court explicitly complimented the district court on its

procedural framework for handling objections to the court interpreter's interpretation

outside the presence of the jury, stating that hearing variations or arguments on actual

word meanings stated by the interpreter may confuse the jury. 234 Kan. at 665.

State and federal courts across the country are split on the language conduit rule,

although a majority of jurisdictions have generally applied the rule favorably when

addressing interpreted statements from a defendant. See State v. Lopez-Ramos, 929

N.W.2d 414, 420 (Minn. 2009) (holding that the interpreted statements are the statements

of the declarant and not the interpreter). The Ninth Circuit upheld its prior adoption of the

language conduit rule regarding interpreters after it was requested to review the rule

under a Confrontation Clause analysis. See U.S. v. Orm Hieng, 679 F.3d 1131, 1140-

1141 (9th Cir. 2012) (discussing Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 [2004]). In Orm Hieng, the defendant spoke in his native Cambodian

language to a special agent of the United States Drug Enforcement Administration

through the use of a Cambodian-English interpreter. Prior to the selection of the jury, the 18

question arose as to whether the interpreter, who was also serving as an interpreter during

the trial, would need to be excluded from the courtroom with the other witnesses. The

trial court concluded that "'the interpreter is obviously not a percipient or a fact witness to

any of the events'" and allowed the interpreter to remain in the courtroom. 679 F.3d at

1137.

Under the language conduit rule, the Orm Hieng court found that a district court

must consider all relevant factors, "'such as which party supplied the interpreter, whether

the interpreter had any motive to mislead or distort, the interpreter's qualifications and

language skill, and whether actions taken subsequent to the conversation were consistent

with the statements as translated.'" 679 F.3d at 1139. The Ninth Circuit found that by

applying this threshold analysis to the interpreter, the matter stems from the law of

evidence, divorced from the Sixth Amendment, regarding whether the interpreted

statements are attributed directly to the original speaker or to the interpreter who literally

utters the words. 679 F.3d at 1140. The defendant in Orm Hieng made no objection at

trial and could not identify anything in the record that suggested the interpreter was

anything other than a language conduit under the purview of the factors listed above.

Accordingly, the interpreter's statements were not considered hearsay, and the interpreter

was simply a language conduit. 679 F.3d at 1139.

Based on the Kansas Supreme Court's guidance in Van Pham that interpreters are

more than mere witnesses and are presumed to have acted regularly in the performance of

their duty, and that trial courts may handle challenges to the accuracy of an interpreter's

interpretation outside the presence of a jury, this panel agrees with the state and federal

courts that have favorably applied the language conduit rule. We thus adopt the language

conduit rule that "'[e]xcept in unusual circumstances, an interpreter is "no more than a

language conduit and therefore [the] translation"'" is viewed as the declarant's own.

United States v. Cordero, 18 F.3d 1248, 1253 (5th Cir. 1994).19

This panel must now consider all relevant factors to determine whether the

interpreted statements were made by an interpreter acting simply as a language conduit of

the victim.

In this case, the record reveals that the interpreter was supplied to the officer as an

employee of the hospital. The record contains no evidence, or argument, of a motive to

mislead by the interpreter. Furthermore, the statements interpreted to the officers were

consistent with the testimony provided at trial, as discussed in more detail below.

Accordingly, we find that the language conduit rule applies, and the statements of D.S. to

officers through an interpreter should be attributed as D.S.'s direct statements without an

additional layer of hearsay.

Gutierrez-Fuentes argues: "The district court improperly admitted evidence that

falls squarely under the hearsay rule set out in K.S.A. 60-460. As a result, this court

should reverse and remand for a new trial." The Kansas Supreme Court has held that

"[e]rror in the admission of evidence that does not implicate a defendant's constitutional

rights is harmless if there is no reasonable probability the error affected the trial's

outcome in light of the entire record." State v. Chapman, 306 Kan. 266, 276, 392 P.3d

1285 (2017). The party benefitting from the error bears the burden to show harmlessness.

306 Kan. at 276. Courts may "simply mov[e] to harmlessness without deciding whether

the [district] court erred" in admitting certain evidence if the harmlessness analysis is

dispositive. See 306 Kan. at 277.

Although we have already found that admitting the evidence was not in error, even

if error did exist, it was harmless. Gutierrez-Fuentes does not point to specific statements

by Myers or Hess. Generally, the challenged portion of Myers' testimony was D.S.

relating—through an interpreter—that she had broken up with Gutierrez-Fuentes on

October 4, 2016, and then spent the night away from her apartment because she was 20

afraid Gutierrez-Fuentes would return and hurt her. D.S. said that she did not want

Gutierrez-Fuentes in her apartment. D.S. said that after she returned to her apartment the

next day, Gutierrez-Fuentes came into her apartment, told her he was going to kill her,

and punched her several times in the face. She said that she was scared for her life and

that Gutierrez-Fuentes stopped punching her when he heard someone outside the

apartment.

Hess' testimony was similar and added details. Hess also testified that D.S. said—

again, through an interpreter—that the Monday before the attack, Gutierrez-Fuentes had

come to the apartment and D.S. had sex with him even though she did not want to. Hess

said that D.S. also testified that before the day Gutierrez-Fuentes broke into the

apartment, he had grabbed her by her neck and thrown her during an argument.

But all of the material facts related through Hess' or Myers' testimony that

Gutierrez-Fuentes challenges as inadmissible hearsay came in through other,

unchallenged witness testimony as well. Peña spoke directly with D.S.—without an

interpreter—and Peña testified that D.S. told him about having sex with GutierrezFuentes "against her will." Peña further testified that D.S. said that during an argument,

Gutierrez-Fuentes "grabbed [D.S.] by the neck and threw her down on the couch." And

he testified that D.S. told him that on October 5, 2016, Gutierrez-Fuentes "forced his way

into her apartment" and hit her multiple times with his fist. Huhman, who spoke with

D.S. using Peña as an interpreter, testified that D.S. told her "she felt like she was going

to be killed" during the October 5 events. And D.S. also testified at length about these

events.

Even if the district court had erred by allowing Myers and Hess to testify about

statements from the interpreter that were attributed to D.S., in light of the entire record, 21

there is not a reasonable probability that Myers' and Hess' testimony affected the trial's

outcome. So reversal is not warranted.

DID THE ELEMENTS INSTRUCTION FOR COUNT TWO ALLOW THE JURY TO CONVICT

GUTIERREZ-FUENTES OF AGGRAVATED BURGLARY BASED ON UNCHARGED CONDUCT?

In his final issue, Gutierrez-Fuentes argues that the district court erred when it

instructed the jury on the elements of aggravated battery as charged in count two.

With respect to count two, the amended information alleged in relevant part that

Gutierrez-Fuentes "did then and there unlawfully and knowingly cause physical contact

with another person, to-wit: DS, in a manner whereby great bodily harm, disfigurement

or death could have been inflicted, to-wit: strangulation." But the district court instructed

the jury on the charge in instruction number 7 that "[t]o establish this charge, each of the

following claims must be proved: 1. The defendant knowingly caused bodily harm to

D.S. in any manner whereby great bodily harm, disfigurement or death can be inflicted."

Gutierrez-Fuentes asserts that the district court committed reversible error by

giving this instruction because it was broader than the operative information and thus it

allowed the jury to convict him based on uncharged conduct. He asserts two ways in

which the instruction was improperly broad. First, he contends that the jury instruction as

given allowed his conviction if the State merely showed that he knowingly caused great

bodily harm, rather than requiring the State to show that he caused physical contact in a

rude, insulting, or angry manner and that this contact could have inflicted great bodily

harm, as required under the statutory citation in the charging document. Second, he

contends that the jury instruction as given allowed his conviction if the State merely

showed he knowingly caused great bodily harm, rather than conforming to the charging 22

document's narrower assertion that he knowingly caused great bodily harm by

strangulation.

The State replies that the invited error doctrine bars this claim and, in the

alternative, that the argument fails on its merits. Gutierrez-Fuentes did not file a reply

brief or otherwise respond to the State's invited error argument. And that argument

resolves this issue—the invited error doctrine bars Gutierrez-Fuentes' challenge to jury

instruction number 7.

Review of jury instructions is a multistep process, beginning with reviewability.

Regarding this step, "'[w]hether the invited error doctrine applies is a question of law

over which this court has unlimited review.'" State v. Cottrell, 310 Kan. 150, 161, 445

P.3d 1132 (2019). Further,

"'the invited-error doctrine does not automatically apply every time a party requests an

instruction at trial but then, on appeal, claims the district court erred by giving it. Instead,

appellate courts must engage in a searching analysis of the facts of the case to determine

whether the complaining party truly invited the error.'

"There is no 'bright-line rule' for applying the invited error doctrine, and context

matters. On the one hand, 'the mere failure to object to a proposed instruction at the

instructions conference does not trigger the doctrine.' 'On the other hand, when a

defendant actively pursues what is later argued to be an error, then the doctrine most

certainly applies.' The fact that a defendant submitted a proposed instruction before trial

does not prevent applying the invited error doctrine if the error 'was as obvious before

trial as after trial.' [Citations omitted.]" 310 Kan. at 162.

In this case, Gutierrez-Fuentes submitted his proposed jury instructions on August

17, 2018, four days before the jury trial began. For count two, he proposed a jury

instruction that did not include the language Gutierrez-Fuentes now asserts should have 23

been in the instruction as given. Moreover, during the jury instruction conference on the

final day of the trial defense counsel stated that he had "no objection" to instruction

number 7.

As the State points out in its brief, this case is materially indistinguishable from

State v. Fleming, 308 Kan. 689, 423 P.3d 506 (2018). Because Fleming also addressed

the invited error doctrine's application to a jury instruction that was broader than the

charging document, its analysis controls this case. See State v. Hall, 298 Kan. 978, 983,

319 P.3d 506 (2014) (holding that the Court of Appeals must follow Kansas Supreme

Court precedent absent some indication that the Kansas Supreme Court intends to depart

from that position).

In Fleming, the charging document specified that the aggravated robbery charge

was based on the taking of a cell phone and a wallet from the victim's presence, while the

theft charge was based on the taking of a television, a PlayStation, a laptop computer, and

watches. But the jury instruction ultimately given on aggravated robbery did not

specifically identify the taken property on which the charge rested. After his conviction

for aggravated robbery, Fleming challenged the instruction on appeal, arguing that it was

"broader than the charge set out in the complaint against him." 308 Kan. at 691.

Like Gutierrez-Fuentes, the proposed jury instruction Fleming submitted to the

district court did not mirror the charging document. It removed the language specifying

that Fleming took "'property, to-wit: cell phone, wallet'" and stated only that Fleming

took "'property from the presence of'" his victim. 308 Kan. at 691-92. The State's

proposed jury instruction and the district court's instruction—to which Fleming did not

object—also used the term "property" and did not identify the specific property taken.

308 Kan. at 692. 24

On appeal, the Kansas Supreme Court agreed with Fleming that a defendant

submitting proposed jury instructions at pretrial that included an instruction later given by

the district court did not always bar an appellate challenge to that instruction. 308 Kan. at

701-02. Rather, the determining factor is "the nature of the error." 308 Kan. at 702. For

example, an alternative means challenge to a jury instruction could not be invited error by

a defendant's pretrial proposed jury instructions "'because the trial had not yet occurred'"

when the defendant proposed the instruction. 308 Kan. at 702. In other words, "'counsel

could not appreciate before trial that the instruction would be overbroad—as measured by

the State's evidence—until that evidence was submitted.'" 308 Kan. at 702. But when "'a

lawyer submits a pretrial instruction on the elements of an offense that defines the offense

more expansively than it is charged by the State,'" the invited error doctrine applies

because the expansion of the crime as charged is "as obvious before trial as after trial."

308 Kan. at 702-03. Thus, "'[t]he defendant's actions in causing the alleged error and the

context in which those actions occurred must be carefully reviewed in deciding whether

to trigger this doctrine.'" 308 Kan. at 701.

Turning to the facts of the case before it, the Kansas Supreme Court noted that the

charging document was clear that the aggravated burglary charge was based on the taking

of only two items, and

"Fleming's counsel had notice of the particular facts the State alleged supported its case

and that those facts could be of particular significance to different charges brought. Yet

Fleming's counsel proposed an instruction that used the pattern language rather than

proposing a modification limiting the jury's consideration to the specific property alleged

[in the complaint] and did not at any later point object or request a modification. [Citation

omitted.]" 308 Kan. at 707.

Under these circumstances, the Fleming court held that "invited error precludes our

review of Fleming's asserted jury instruction error on these facts." 308 Kan. at 707. 25

Similarly, when Gutierrez-Fuentes' counsel submitted the proposed instruction to

the district court, he was aware of the particular facts on which the charges rested and the

theory of aggravated battery upon which he was charged. Yet his proposed instruction

used language broader than that in the charging document and did not include the

language which Gutierrez-Fuentes now asserts was required. Furthermore, GutierrezFuentes did not request that the district court modify the jury instruction to better align it

with the charging document at the jury instruction conference. Thus, under Fleming, the

invited error doctrine applies and bars Gutierrez-Fuentes' claim that the jury instruction

requires reversal.

For the reasons stated above, the decision of the district court is affirmed.