Rasmüs R. Eddy directly appeals his jury convictions for multiple counts of serious sex offenses perpetrated against A.E., his 4-year-old granddaughter. Eddy raises two arguments on appeal: (1) The State presented insufficient evidence to prove that he committed rape by tire alternative means of penetrating the victim with an object, and (2) the district court erroneously denied his request to have' a psychological evaluation performed on die victim. This сourt has direct jurisdiction pursuant to K.S.A. 22-3601(b)(1), prior to its 2011 amendments. We affirm.
Factual and Procedural Overview
The incidents underlying the charges against Eddy occurred in the spring of 2009, while A.E. was staying at Eddy’s house for a few days at Eddy’s request. The child related to her mother and other relatives that she had seen naked adults on Eddy’s computer; that Eddy had touched her in the vaginal area with his finger; and that Eddy had licked her vagina. Eddy admitted to the
During closing argument, the prosecutor explained the charges against Eddy and related the facts supporting each charge. Count I charged rape based upon Eddy’s admittedly putting his finger inside the child’s labia, albeit ostensibly to rub oil on a sore. Count II charged aggravated criminal sodomy based on A.E.’s testimony that Eddy licked her vagina. Count III, promoting obscenity to a minor, was based on Eddy allowing A.E. to view pornography. Count IV, aggravated indecent liberties with a child, was based on Eddy’s testimony that he placed his hand over A.E.’s vagina and kissed her inner thigh. Counts V and VI each charged aggravated indecent libertiеs with a child and were based on Eddy’s testimony that A.E. grabbed his penis on two different occasions, as well as his having held his penis while showing it to A.E. Finally, Counts VII-XI were aggravated criminal sodomy charges based on Eddy’s testimony that “as many as five times he let [A.E.] slidе down his face while she was naked, and that she’d come in contact with his nose and his mouth. That’s oral contact.”
The jury acquitted Eddy on one of the aggravated criminal sodomy charges, Count VIII, but convicted him on all of the other cоunts.
Eddy filed a posttrial motion for acquittal, arguing, inter alia, that tire five convictions for aggravated criminal sodomy that were based on the single, unitary incident where A.E. repeatedly slid down Eddy’s face were multiplicitous. The district court denied the motion, and Eddy has not asserted multiplicity in this appeal.
The sentencing court granted Eddy’s motion to impose a sentencing guidelines grid sentence, pursuant to K.S.A. 21-4643(d), and the district court ultimately imposed a controlling prison sentence of 310 months, or 25 years and 10 months. Eddy timely appealed.
Alternative Means
On the rape count, the court instructed the jury that one of the claims the State had to prove was “[t]hat the defendant had sexual intercourse with [A.E.].” Then the jury instructions set forth the following definition: “Sexual intercourse means any penеtration of the female sex organ by a finger or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” (Emphasis added.)
Eddy contends that the definition of sexual intercourse given to the jury created alternative means by which it could have found that the rape occurred, i.e., by penetrating A.E.’s sex organ with a finger or by penetrating A.E.’s sex organ with an object. Therefore, to ensure jury unanimity, the State was required to present the jury with sufficient evidence to support a conviction under both alternative means or the conviction must be reversed. See State v. Wright,
Standard of Review
“Issues of statutoiy interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law renewable de novo on appeal.” State v. Brown,
Analysis
Subsequent to Eddy’s trial, this court resolved the question of whether the definition of sexual intercoursе created alternative means of committing rape. In State v. Britt,
Eddy’s brief was submitted prior to our decision in Britt. At oral argument, the defense did not proffer any compelling reason that we should reverse Britt’s holding that the definition of sexual intercourse does not malee rape an alternative means crime. We stand by that ruling, which resolves the issue against Eddy. There was sufficient evidence that Eddy penetrated the child’s labia with his finger, which would support the sexual intercourse element of the crime of rape.
Psychological Evaluation of the Victim
For his other issue, Eddy contends that the district court erred in denying his request to have A.E. undergo a psychological evaluаtion to determine the admissibility of her testimony. He argues that an examination was warranted because: (1) A.E. was an impressionable 4-year-old girl who was subject to her mother’s control for a full month before giving a statement to law enfоrcement officers, and (2) A.E.’s allegations were uncorroborated. We do not find Eddy’s proffered reasons to evaluate A.E. to be compelling.
Standard of Review
This court applies an abuse of discretion standard when reviewing a district court’s decision on a motion for a psychological evaluation of a complaining witness. State v. Stafford,
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the viеw adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factuаl finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward,292 Kan. 541 , 550,256 P.3d 801 (2011), cert. denied132 S. Ct. 1594 (2012) (citing State v. Gonzalez,290 Kan. 747 , 755-56,234 P.3d 1 [2010]).
The party asserting an abuse of discretion has the burden of persuasion. State v. Woodward,
Analysis ■
Appellate courts are typically loathe to find an abuse of discretion when a district court refuses to order a psychological examination of a young sex abuse victim, unless the circumstances are extraordinary. “In general, a defendant is entitled to a psychological examination of a complaining witness in a sex crime if compelling circumstances justify such an examination.” (Emphasis added.) Stafford,
To assess tire existence of compelling circumstances, a court should examine the totality of the circumstаnces, and, at least since our decision in State v. Gregg,
With respect to tire first factor, Eddy contends that there was no evidence to corroborate A.E.’s allegations. Granted, the State did not present any physical or medical evidence to corrobоrate the charges. But Eddy’s own statements, both to law enforcement officers and at trial, provided plenty of corroboration for A.E.’s description of events. He admitted touching the inside of A.E.’s labia; he admitted contact betwеen his mouth and A.E.’s genitalia; and he admitted showing the child pornography on his computer. Indeed, some of the convictions were based solely upon Eddy’s own statements, such as the counts related to A.E. touching or seeing Eddy’s penis, because the child never told anyone that she saw or touched her grandpa’s penis. While Eddy put his own spin on why the alleged acts occurred, he nevertheless corroborated that they did occur. A psychological examinаtion of the victim would have added nothing to the question of the defendant’s specific intent. ' -
With respect to the remaining factors, Eddy did-not present any evidence that A.E. displayed any mental instability, demonstrated any lack of veraсity, made any similar charges against others that were proven to be false, or indicated an inability to understand what it means to tell the truth. To the contrary, the motion for an evaluation in this case appears to be a primе example of a fishing expedition.
Eddy tries to suggest that A.E.’s mother was involved in “heated custody proceedings” with A.E.’s father, which provided the incentive for the mother to plant permanent false memories in A.E.’s mind in order to frame A.E.’s grandfather for sex abuse, and that the 4-week delay in obtaining A.E.’s law enforcement interview provided mother with the opportunity.to effect her scheme. There are a number of disconnects in that line of reasoning.
First, the record does nоt support the heated custody dispute claim. Rather, there was some testimony that A.E.’s mother and father were quarreling because mother wanted father to take A.E. for awhile, but he was financially unable to do so. Moreover, Eddy dоes not explain why framing him for sex abuse would have provided A.E.’s mother with any advantage in her alleged dispute with her ex-husband.
Most importantly, however, on May 1, 2009, A.E. told the same thing to her mother, her grandmother, her great aunt, and the sexual assault nurse examiner. Then, 4 weeks later, on May 28, 2009, she repeated the same allegations to the law enforcement officer. The only inconsistency to which Eddy can point is that in the later interview, A.E. used the term “nasty” for the first time. Again, Eddy fails to explain the significance of that distinction. Even if A.E.’s mother planted the notion that the sex abuse was “nasty,” it does not rénder suspect the child’s consistent statements of what Eddy did to her. Certainly, it is not a compelling circumstance that would justify a psychological examination.
In sum, Eddy fails to establish any valid reason that would support a finding of compelling circumstances to warrant a psychological examination of the sex abuse victim in this case. As such, the district court’s denial of the evaluation motion cannot be -deemed an abuse of discretion. The ruling is affirmed.
Affirmed.