NOT DESIGNATED FOR PUBLICATION
No. 122,898
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
SHANE C. RUTLEDGE,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Edwards District Court; BRUCE T. GATTERMAN, judge. Opinion filed June 25, 2021.
Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL, J., and MCANANY, S.J.
PER CURIAM: Shane Curtis Rutledge was convicted of rape and aggravated
indecent liberties with a child. Following an unsuccessful direct appeal, Rutledge filed his
K.S.A. 60-1507 motion which is the subject of this appeal. Rutledge contended in that
motion that his trial counsel provided ineffective assistance in responding to a question
that was presented by the jury during deliberations. The district court rejected this claim,
and Rutledge appealed.
We issued a show cause order to determine whether we should consider this
appeal on the merits. Based on the response to that order, we conclude that we should
consider Rutledge's claim on appeal. Turning to the merits, our review of the matter leads
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us to the conclusion that the district court did not err in denying Rutledge's ineffective
assistance of counsel claim, and we affirm the ruling of the district court.
FACTS
The specific facts related to Rutledge's crimes are detailed at length in this court's
opinion in Rutledge's direct appeal. See State v. Rutledge, No. 114,221, 2017 WL
1104531, at *1 (Kan. App.) (unpublished opinion), rev. denied 306 Kan. 1329 (2017).
They are not relevant to this appeal from the district court's ruling on Rutledge's K.S.A.
60-1507 motion. Instead, Rutledge's current appeal is narrowly focused on one trial issue.
During jury deliberations, the jury sent to the court the following written question:
"We heard testimony for the victim that penatration [sic] occurred. Our problem is that at
the interview nor at the trail [sic] the defendant never was asked if penetration occurred.
Our understanding that the burden of proof is on the State. Should his no response be
considered?"
Rutledge was present when the judge read the question and while the judge
conferred with the prosecutor and defense counsel. The prosecutor recommended that the
jury be instructed to refer back to Instruction No. 4, regarding the elements of the rape
charge, which included a definition of penetration. In response, Rutledge's trial counsel
stated:
"Your Honor, first, I guess, it is my recollection that the Defendant was asked that
question and his answer was no during my direct examination. I'm sure the record would
reflect that. However, I don't believe it's necessary to direct them to Instruction Number
4, jury instruction 4. It may cause more confusion. I just think the first jury instructions
about it's up to them to use their collective memories to arrive at a decision should be
sufficient."
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Rutledge's counsel was correct that during direct examination, Rutledge had denied
penetrating the victim's vagina. But neither the prosecutor nor defense counsel suggested
that the jury be provided with a read-back of the testimony on that point to clarify that
fact for the jury.
The jury's question was not a model of clarity, and the district court so indicated.
The court commented that the question did not indicate jury confusion about what
constituted penetration, but rather a question "as to whether or not the trier of fact can
consider their collective understanding of the evidence." Thus, following the
recommendation of Rutledge's counsel, the district court decided to answer the question
by referring the jury to Instruction No. 1 and to the jury instructions as a whole. As a final
note, the court observed: "That may generate another question if that doesn't go where
the jury is coming from. But at least the next question may be clearer for us."
Prior to sending the response to the jury, the district court asked whether there was
any objection to the proffered response. The State objected and renewed its request that
the jury be referred to Instruction No. 4. Rutledge's counsel did not object to the court's
proposed response.
Shortly thereafter, the jury rendered its verdicts, convicting Rutledge of both
counts charged. Rutledge was sentenced to life in prison with the possibility of parole
after 25 years. Later, on direct appeal, a panel of this court upheld Rutledge's convictions.
Rutledge, 2017 WL 1104531 at *6. With regard to the jury question issue, the panel held
that if there was any error in answering the jury question, it was invited by defense
counsel and could not be raised on appeal. 2017 WL 1104531, at *5.
Thereafter, Rutledge filed a pro se K.S.A. 60-1507 motion, asserting seven claims
of ineffective assistance of his trial counsel. His appointed 1507 counsel added a claim
that counsel on Rutledge's direct appeal also was ineffective. Following an evidentiary
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hearing on Rutledge's motion, the district court denied relief on all of these claims, and
this appeal followed.
ANALYSIS
On appeal, Rutledge claims the district court erred in rejecting his claim that his
trial counsel provided ineffective assistance in responding to a question that was
presented by the jury during deliberations. He has abandoned the other claims raised
before the district court.
We note in passing that Rutledge briefly addresses the fact that the court
responded to the jury question in writing rather than assembling the jurors in the
courtroom to answer their question. But he does not identify this as having anything to do
with the district court's ruling on his claim of ineffective assistance of counsel.
Accordingly, we will not consider it.
Rutledge argues on appeal that his counsel provided ineffective assistance by
requesting that the court answer the jurors' question by referring them to the instructions
already provided to them instead of requesting a reading of the trial transcript to refresh
their recollections regarding Rutledge's denial of penetrating the victim's vagina.
When the district court conducts an evidentiary hearing on claims of ineffective
assistance of counsel, we review the district court's factual findings using a substantial
competent evidence standard. We review the district court's legal conclusions de novo.
State v. Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018).
"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
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probability the jury would have reached a different result absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
"Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury." Robinson v. State, 56 Kan. App. 2d 211, Syl. ¶ 3, 428 P.3d 225 (2018); see
State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015). The reviewing court must
strongly presume that counsel's conduct fell within the broad range of reasonable
professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). To
establish prejudice, the defendant must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been
different, with a reasonable probability meaning a probability sufficient to undermine
confidence in the outcome. Sprague, 303 Kan. at 426.
Here, the prosecutor suggested that the jury should be referred to Instruction No. 4
for the elements of the crime of rape and a definition of penetration. But defense counsel
recognized that the jury question did not reflect a confusion over what constituted
penetration.
The district court likewise determined that the question did not indicate a
confusion about what constituted penetration. Rather, the court interpreted the question as
expressing some confusion about "whether or not the trier of fact can consider their
collective understanding of the evidence." The district court's answer to the question
appropriately referred the jury to the previously given instructions—Instruction No. 1 in
particular—to resolve the issue.
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Another possible construction of this rather unclear jury question could be that
some jurors thought Rutledge had not been asked about penetration, while others thought
otherwise; the latter based on the question, "Should his no response be considered?" In
this interpretation of the question, the "his no response" in the question could be
construed as Rutledge's denial of penetration. In any event, defense counsel proposed—
and the district court agreed—that the jurors should be referred to the instructions as a
whole, and Instruction No. 1 in particular, which instructed them to use their collective
memories to arrive at a decision.
Rutledge argues that the court should have ordered a read-back of Rutledge's
testimony on this point. But the jury did not ask for a read-back. Nor did the State
recommend a read-back of any testimony. Rather, the court's answer simply reaffirmed
the jury's need to rely on their collective memory, while recognizing that if that does not
resolve the issue "[t]hat may generate another question if that doesn't go where the jury is
coming from."
Rutledge also claims that the court's failure to provide a read-back of Rutledge's
testimony to resolve the penetration question removed the issue of penetration from the
jury's consideration, thereby relieving the State of the burden of proving this element of
the crime. We disagree. The jurors acknowledged in their question that the burden of
proof was on the State. This would include the burden to prove penetration, a burden
spelled out in the court's previous instructions, to which the court referred in its answer.
The court's response did not indicate one way or the other whether penetration had
occurred. Rather, the jurors were told in Instruction No. 1 that they were to use their
collective memory to resolve this issue of fact.
We consider that either of the interpretations of the jury's question, which we
discussed, was a reasonable one. But if there is some other reasonable interpretation of
the question, the district court did not abuse its discretion when it responded to one of
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multiple reasonable interpretations. State v. Bowser, 312 Kan. 289, 307-08, 474 P.3d 744
(2020). Moreover, when presented with jury confusion related to a point of evidence, it is
appropriate for the district court to either read the testimony back to the jury or direct the
jury to rely on its collective memory. State v. Stieben, 292 Kan. 533, 537, 256 P.3d 796
(2011). The district court properly referred the jury to the instructions already given. The
district court did not err in its answer to the jury question. And if the district court did not
err in this regard, Rutledge's trial counsel cannot be found to have been ineffective in
recommending it.
The district court did not err in denying relief on Rutledge's K.S.A. 60-1507
motion. Thus, we need not address the issue of prejudice.
Affirmed.
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