STATE OF KANSAS, Appellee, v. NATHAN INKELAAR, Appellant.
No. 101,987
Supreme Court of Kansas
October 21, 2011
264 P.3d 81
Ryan Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: This is a direct appeal from Nathan Inkelaar‘s convictions for one count of rape, one count of aggravated indecent liberties with a child, one count of attempted aggravated indecent liberties with a child, and three counts of aggravated criminal sodomy. He argues: (1) The trial court erred in allowing the State to introduce
FACTS AND PROCEDURAL BACKGROUND
Inkelaar‘s convictions involve two victims, M.C. (a 9-year-old girl) and Z.C. (an 11-year-old boy), who are siblings. The children lived with their fathеr, A.C., and their stepmother, V.C. Inkelaar and A.C. were long-time friends.
Inkelaar would sometimes babysit the children, which included occasions where they would spend the night at Inkelaar‘s home. On Friday, November 30, 2007, A.C. was preparing to leave town for the weekend, and Inkelaar agreed to let M.C. and Z.C. spend the night at his home. The next afternoon, V.C. called and spoke to the children and Inkelaar by telephone, and Inkelaar asked if
Later that afternoon, Inkelaar brought the children home. When M.C. got out of the car, she was wearing a new pair of boots. V.C. was angry at Inkelaar for buying this gift because it was close to Christmas (she had planned to buy the same boots for M.C.) and because she had previously told him to stop spoiling the children with gifts. A.C. had specifically told Inkelaar not to buy the children any shoes because of V.C.‘s shopping plans.
That night, after Inkelaar left, V.C. was sitting on the couch with thе children when M.C. revealed that Inkelaar made them play “strip Candyland” over the weekend. When V.C. asked her if she knew what “strip” means, M.C. said, “Yeah, you have to take your clothes off.” M.C. said both she and Z.C. had to remove clothing during the game, and Inkelaar removed clothing too.
V.C. did not call the police right away because she first wanted to talk to the children‘s father, who had not yet returned from his trip. When A.C. returned a couple of days later, V.C. told him about M.C.‘s allegations. A.C. called law enforcement and reported the suspected child molestation.
Detective Lori Werlein of the Exploited/Missing Children‘s Unit of the Sedgwick County Sheriff‘s Department interviewed M.C. and Z.C. Although a DVD and a transcript of the interviews were later admitted into evidence, neither of those exhibits was included in the record on appeal (and it does not appear a request to have them added was ever submitted). The detective‘s affidavit regarding the substance of the interview is in the appellate record, however, and indicates that M.C. told the detective about the strip Candyland game, that M.C. and Z.C. ended up with no clothing on, and that Inkelaar rubbed his “‘weenie‘” on M.C.‘s “‘titties and crotch‘” and also on Z.C.‘s “‘titties and crotch.‘” M.C. said
M.C. told the detective that Inkelaar started doing “‘dirty stuff‘” to her when she was 5 years old. Inkelaar made her rub his penis when her brother was asleep, and Inkelaar would take a shower with her. He also rubbed M.C.‘s “‘booty‘” with his “‘weenie.‘” M.C. told the detective Inkelaar locked her in the bathroom and made her “‘suck his dick‘” and he also “‘sucked [her] crotch.‘” M.C. also said Inkelaar took off her clothes and put his mouth on her crotch while she sat on the toilet. She said he stopped because her brother came into the room. Sometimes Inkelaar would make her lick and “‘suck his dog‘s pussy.‘” In the detective‘s affidavit, she also indicated M.C. told her about Inkelaar making her watch pornography and having “‘dirty magazines‘” at his house.
With regard to Z.C.‘s interview, the detective‘s affidavit indicated Z.C. said “‘things‘” had been happening to his sister and himself. When asked to explain what he meant by “‘things,‘” Z.C. said it was “‘sexual harassment‘” and it was not happening as much to him as to his sister. Z.C. told the detective that Inkelaar, with his hands, touched M.C.‘s “‘private‘” while her pants were off. He also told the detective about the strip Candyland game and indicated they had to take their clothing off and sit on the couch. Z.C. said that Inkelaar touched M.C.‘s face with his “‘weenie‘” and also put his “‘weenie‘” in Z.C.‘s face. According to the detective‘s affidavit, both children indicated Inkelaar “told them not to tell what happened because if they did then he would go to jail.”
At trial, M.C. testified Inkelaar touched her “crotch” with his “wiener” and rubbed his “wiener” on Z.C.‘s chest during the game of strip Candyland. Z.C. also testified they played strip Candyland. Z.C. said Inkelaar touched his sister‘s “private” with Inkelaar‘s finger, Inkelaar‘s “wienie” was out, and it was “big“; but Z.C. denied Inkelaar touched either child with his “wienie.” Z.C. testified that M.C. told him Inkelaar would touch her at night and “make her watch movies and stuff.” Z.C. remembered a time when his sister was taking a shower and Inkelaar went into the bathroom with her, but Z.C. denied going into the bathroom himself. Z.C. felt embarrassed when his sister told V.C. about what happened, and that is
In addition to testifying about strip Candyland, M.C. claimed Inkelaar had been inappropriately touching her since she was 4 years old. This happened at Inkelaar‘s home while her brother was either asleep on the couch or playing outside with friends. According to M.C., Inkelaar touched her “crotch” with his finger and his “wiener.” She described this happening when she was sleeping, sitting on the toilet, or taking a shower. Inkelaar also stuck his “wiener” in hеr “butt” after making her bend over his bed. He made M.C. watch pornographic movies while her brother slept on the couch. M.C. performed oral sex on Inkelaar, who told her, “If you suck my wiener, I‘ll buy you anything you would want.” He also forced M.C. to perform oral sex on a dog and told M.C. if she did not “do it, we won‘t go to Wal-Mart or get any breakfast.” She also indicated Inkelaar “would touch Z.C. on his titties with his wiener.” M.C. testified Inkelaar said if she told anybody in her family about these things he was doing, “he would go to jail.”
Inkelaar did not testify in his own defense. The jury watched a DVD of Inkelaar‘s police interview, in which he made statements about the accusations of M.C. and Z.C. As with the interviews of the victims, neither the DVD nor the transcript of Inkelaar‘s interview was included in the record on appeal. According to Detective Werlein‘s affidavit and the testimony of Detective William Riddle, Inkelaar was interviewed by Detective Riddle and another detective, Don Story. Detective Riddle could not recall whether Detective Werlein observed the interview from another room. Although Detective Riddle testified at trial, he did not divulge the details of Inkelaar‘s statements; thus, the trial transcript does not provide those details for this court. Detective Werlein‘s affidavit, however, contains somе particulars about Inkelaar‘s interview, such as Inkelaar‘s explanation that on Saturday, December 2, 2007, M.C. and Z.C. started talking about “wanting to play ‘Strip Candyland‘” and M.C. started trying to take her clothes off. According to Detective Werlein:
“[Inkelaar] stated that he wrestles and tickles with both kids a lot and it‘s not unusual for them to ‘slip’ out of their pants or shirts. [Inkelaar] also admitted that
he has gotten an erection during the wrestling, but claims that when that happens he stops the play. [Inkelaar] stated that during the wrestling with the victims he has possibly grabbed private parts of their bodies. When asked about the dog, [Inkelaar] stated that he had never had anyone ‘act out a sexual fantasy’ with a dog. [Inkelaar] maintained that anything that happened to the victims was not intentional and he was very sorry. Throughout the interview [Inkelaar] denied any intentional sexual activity with either M.C. or Z.C.”
In addition, the trial court allowed the State to introduce evidence of other crimes or civil wrongs pursuant to
In addition to presenting the defense of a general denial of any wrongdoing, Inkelaar sought to raise a third-party defense involving A.C. by asserting there were prior allegations that A.C. had sexually abused his children, M.C. and Z.C., when they were 2 and 3 years old, respectively. It was further alleged that A.C. engaged in sexual activity with his younger half-brother a couple of times
The jury convicted Inkelaar of one count of rape, in violation of
ISSUE 1: Did the trial court err by allowing the State to introduce
First, Inkelaar argues the trial court should not have permitted the State to introduce evidence of other crimes оr civil wrongs under
Preservation of Issue for Appeal
As a preliminary matter, the State contends Inkelaar failed to preserve this evidentiary issue for appeal because, according to the State, he failed to lodge a “timely and specific objection” to the admission of the
As pointed out by the State, this court has recently emphasized, under
Contrary to the State‘s argument, however, Inkelaar preserved this issue by asserting a continuing objection after having voiced specific reasons the evidence was not admissible. The specific reasons the evidence was inadmissible were first articulated in Inkelaar‘s pretrial motion in limine in which he asked the trial court to exclude “any statement or remark from any witness that Defendant has ever been accused previously of something similar to the accusations in this case with other parties.” The issue was also raised when the State filed a competing pretrial motion asking the court to allow it to introduce evidence of prior sexual abuse allegations against Inkelaar. The court reserved ruling on the motion.
Later, during the course of the State‘s case, outside the presence of the jury, the trial court heard arguments and considered evidence regarding the
The State argued the evidence was admissible to show plan, intent, or absence of mistake or accident. Defense counsel argued the evidence was inadmissible because the concepts of intent and
Defense cоunsel not only objected to the admission of the evidence during the State‘s proffer, he also voiced two additional objections to the evidence. The first objection was made when the State questioned Detective Werlein regarding her interviews of M.C. and Z.C. The pertinent colloquy began when the prosecutor asked the detective if, during her investigation, she had located and interviewed other possible prior victims of Inkelaar‘s improper conduct. The detective testified she had located B.W., K.M., and their father, and she had asked B.W. and K.M. about what Inkelaar had allegedly done to them as children. Then, defense counsel stated: “And, Your Honor, just to lodge an objection contemporaneously to that information, if I could.” The objection was acknowledged by the trial court and, in context, clearly referenced the “information” to be revealed to the jury during subsequent testimony, i.e., the details of the alleged prior sexual abuse of B.W. and K.M.
The second objection came just before the testimony of T.M., B.W., and K.M., which immediately followed the testimony of Detective Werlein. T.M. testified first, and before his direct examination began, defense counsel raised a “continuing objection to this matter,” which was acknowledged by the trial court. Although defense counsel raised no objections during B.W.‘s or K.M.‘s testimony, the standing objection was sufficient to apply to the admissibility of the prior sexual abuse evidence later presented by all three of these witnesses—especially because just shortly before the
These circumstances satisfy the preservation requirement because the pretrial objections were renewed during the trial, where the court was able to consider the proffered evidence immediately before it was presented to the jury. And defense counsel took the additional step of lodging a standing objection. See State v. Houston, 289 Kan. 252, 271, 213 P.3d 728 (2009) (“In the alternative, counsel should have asked for a continuing objection and thereby eliminated the need for the later trial objection.“).
Applicable Statute/Standards of Review
Finding that Inkelaar preserved this evidentiary issue for appeal, we begin our discussion with the language of
The version of
“Subject to
K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition tо commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject toK.S.A. 60-445 and60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”K.S.A. 60-455 .
It should be noted that the legislature amended the statute effective April 30, 2009. See L. 2009, ch. 103, sec. 12;
As provided by
“The court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact ‘has a legitimate and effective bearing on the decision of the case.‘” State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 (2007). Our standard of review for materiality is de novo. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).
“The court must also determine whеther the material fact is disputed. Reid, 286 Kan. at 505; Garcia, 285 Kan. at 14 (‘[T]he element or elements being considered . . . must be substantially at issue in the case.‘). The court must also determine whether the evidence is relevant to prove the disputed material fact, i.e., whether it has ‘any tendency in reason to prove’ that fact.
K.S.A. 60-401(b) ; Reid, 286 Kan. at 505. This court reviews relevance—in particular, the probative element of 60-455—for abuse of discretion. Reid, 286 Kan. at 507.“The court must next determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 503. Our standard for reviewing this determination is also abuse of discretion. Reid, 286 Kan. at 512 (citing Garcia, 285 Kan. at 18). Finally, if the presented evidence meets all of these requirements, then the trial court must give a limiting instruction informing the jury of the specific purpose for [the evidence‘s] admission.’ Garcia, 285 Kan. at 12.” State v. Hollingsworth, 289 Kan. 1250, 1258, 221 P.3d 1122 (2009).
Plan
One basis on which the trial court admitted evidence of Inkelaar‘s alleged prior sexual abuse of other children was to prove plan under
The question of whether evidence is unduly prejudicial is determined by whether its probative value is outweighed by undue prejudice. See Reid, 286 Kan. at 503. Evidence of other crimes or civil wrongs is unduly prejudicial when it “““actually or probably brings about the wrong result under the circumstances of the case.“’ [Citation omitted.]” Hollingsworth, 289 Kan. at 1259. On appeal, the trial court‘s assessment of this question is reviewed for abuse of discretion. The burden of proof is on the party alleging the court‘s discretion was аbused. Garcia, 285 Kan. at 18-19. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view 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 factual 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).
Applying this standard, we conclude the trial court did not abuse its discretion when it determined the evidence of the alleged prior crimes was not unduly prejudicial, i.e., it would not bring about the wrong result. First, the prior crimes evidence was brought into question by the testimony of Inkelaar‘s ex-wife, who testified one of the alleged prior victims told her the allegations made by B.W. and K.M. against Inkelaar were false. Second, although Inkelaar focuses on the potential for undue sympathy for M.C. and Z.C., the jury was instructed it could only consider the evidence for the purposes stated in the instruction, and we presume the jury followed the instruction. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). Third, although there were some inconsistencies in the statements of M.C. and Z.C., the evidence against Inkelaar was strong. Further, M.C. and Z.C. were сonsistent in most ma-
Intent and Absence of Mistake or Accident
Because we determine the evidence was admissible on the basis of plan, we need not consider Inkelaar‘s arguments regarding the propriety of admitting the evidence to prove intent or the absence of mistake or accident. Even if the admission on those grounds was erroneous, the evidence was properly before the jury. The only potential prejudice would be because of including the additional grounds in the limiting instruction.
This court has held “[a]n overbroad limiting instruction on
ISSUE 2: Did the prosecutor commit misconduct during cross-examination of the defendant‘s brother?
Next, Inkelaar contends the prosecutor committed misconduct during cross-examination of his brother, Tyrone, who testified on
Standard of Review
A two-step analysis applies to Inkelaar‘s claim of prosecutorial misconduct:
“‘In general, appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury follows a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. [Citation omitted.]
“‘In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor‘s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling.“‘” State v. Adams, 292 Kan. 60, 66, 253 P.3d 5 (2011).
See State v. Tosh, 278 Kan. 83, 85, 91, 91 P.3d 1204 (2004).
Preservation of Issue
The State presents a preliminary argument regarding whether Inkelaar preserved this issue. The State concedes the defense counsel objected to the statute of limitations questions on several grounds, including that the questions were not relevant, they called for legal conclusions, they assumed facts not in evidence, and they failed to fully state the law. Nevertheless, the State complains In-
Here, however, the defense raised the evidentiary objections required by
Under either an evidentiary analysis or a prosecutorial misconduct analysis, we begin by determining whether the prosecutor‘s questions were proper. Within the scope of a prosecutorial misconduct analysis, this inquiry would answer whether the questions were within the latitude allowed the prosecutor. Then, in an analytical step unique to prosecutorial misconduct analysis, an appellate court, in determining if the prosecutor‘s conduct requires reversal, reviews (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor‘s part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. Adams, 292 Kan. at 66.
Step One: Prosecutorial Misconduct
Inkelaar argues misconduct occurred because the prosecutor misrepresented the legal effect of the statute of limitations relevant to the crimes at issue,
We agree the prosecutor‘s questions were not predicated on an accurate statement of the law and were improper.
Step Two: Factors
As previously noted, in the second step of the prosecutorial misconduct analysis we consider three factors: (1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor‘s part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. Adams, 292 Kan. at 66.
Turning to the third factor, whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors, in the past we frequently stated the third factor cannot override the first two factors unless we are able to say the harmless error tests of both
Our recent opinion in Ward, 292 Kan. 541, brought about a modification in this portion of the prosecutorial misconduct standard. Ward synthesized our caselaw on harmless error and recognized the same standard applies regardless of whether we are applying an analysis under
Hence, satisfying the level of certainty imposed by both the state and the federal constitutional harmless error standard, as we have required in our past cases, necessarily means the State, as the party who has benefitted from the prosecutorial misconduct, bears the burden to establish beyond a reasonable doubt that the error did not affect the defendant‘s substantial rights, i.e., there is no reasonable possibility the error affected the verdict. We have adopted this view in several recent decisions. This recognition simply means the third factor cannot override the first two factors unless we are able to say the Chapman constitutional error standard has been met. See State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011); State v. Hall, 292 Kan. 841, Syl. ¶¶ 14, 15, 257 P.3d 272 (2011); State v. Hernandez, 292 Kan. 598, 603-04, 257 P.3d 767 (2011); State v. Stieben, 292 Kan. 533, 539, 256 P.3d 796 (2011).
Even though the State‘s burden is more difficult to meet under this standard than under the stаte statutory harmless error standard that applied to our analysis of Issue 1, we conclude the State has met its burden. We note that Inkelaar‘s argument of prejudice is based on inferences that were never argued to the jury; it would require the jury to conclude Inkelaar has not been and will not be prosecuted for these crimes and the sole reason for the lack of prosecution is the bar of the statute of limitations. Even assuming the jury independently connected all of the necessary dots to get to this conclusion, which seems unlikely, evidence was presented that the charges had been brought against Inkelaar for these al-
More important, there was strong evidence of the crimes against M.C. and Z.C. that was independent of the alleged prior wrongs relating to K.M. and B.W. In addition, M.C. and Z.C. gave consistent statements in most material respects throughout the investigation and at trial. We hold there is no reasonable possibility the questions regarding the statute of limitations affected the verdict in this case.
ISSUE 3: Did the trial court lack jurisdiction to sentence the defendant under Jessica‘s Law,
Some of Inkelaar‘s charged crimes, such as those related to sodomy, were alleged to have been committed before the July 2006 effective date of Jessica‘s Law,
Standard of Review
Inkelaar‘s overarching argument addresses jurisdiction, statutory interpretation, and constitutional interpretation; therefore, this court‘s review is unlimited. See State v. Martinez, 290 Kan. 992, 1017, 236 P.3d 481 (2010); State v. Gonzales, 289 Kan. 351, 365-66, 212 P.3d 215 (2009); State v. Bello, 289 Kan. 191, 195-96, 211 P.3d 139 (2009) (citing State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 [2007]; Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 [2006]); and State v. Bryan, 281 Kan. 157, 159, 190 P.3d 85 [2006]. Separate standards of review apply to the two sub-issues argued by Inkelaar.
Complaint
In the first subissue, Inkelaar challenges whether the complaint was sufficient to confer subject matter jurisdiction. In Counts 6 and 7 of the second amended complaint, Inkelaar was charged with committing aggravated indecent liberties with a child on or about December 1, 2007. As acknowledged by the State in its appellate brief, the complaint identified both counts as violations of
plaint fails to include an essential element of a crime charged, it is ‘fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.’ ” Gonzales, 289 Kan. at 366 (quoting State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 [2006]).“[t]he Sixth Amendment to the United States Constitution gives an accused the right to ‘be informed of the nature and cause of the accusation‘; the Kansas Constitution Bill of Rights, § 10 mandates that ‘the accused shall be allowed . . . to demand the nature and cause of the accusation against him.’ Generally, if a com-
This court has repeatedly dealt with the same issue raised by Inkelaar. See, e.g., State v. Huerta-Alvarez, 291 Kan. 247, 254-56, 243 P.3d 326 (2010); Martinez, 290 Kan. at 1017-18; Gonzales, 289 Kan. at 366-70; Bello, 289 Kan. at 195-200. A defendant challenging the sufficiency of the charging document for the first time on appeal must show the alleged defect either “(1) prejudiced the defendant‘s preparation of a defense; (2) impaired thе defendant‘s ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant‘s substantial rights to a fair trial. [Citation omitted.]” State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275 (2009); see State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003); see also State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006) (applying the post-Hall analysis).
Applying this test in Martinez and Gonzales, for example, this court held the respective defendants were adequately informed of both the crime charged and the penalty. In each case we determined it was sufficient that the complaint listed the defendant‘s date of birth, stated the charge was for an off-grid person felony, and otherwise specifically listed the elements of the crime—aggravated indecent liberties with a child under the age of 14 in Gonzales, 289 Kan. at 369, and rape of a child under 14 years of age in Martinez, 290 Kan. at 1018. Further, this court found it significant in both cases that neither defendant contended that the preparation of his defense or his right to a fair trial were impaired. Nor did either defendant show his conviction in question affected any subsequent prosecution. See Martinez, 290 Kan. at 1018; Gonzales, 289 Kan. at 368-69.
The same conclusions apply in this case. The two amended complaints listed Inkelaar‘s date of birth (1963), stated the offenses in both aggravated indecent liberties counts were off-grid person felonies, and otherwise listed the elements of aggravated indecent liberties with a child, which was the only Jessica‘s Law crime at
Jury Instructions
Inkelaar‘s second age-related challenge relates to the trial court‘s failure to instruct the jury to determine whether Inkelaar was 18 years of age or older at the time of the offenses of aggravated indecent liberties with a child. In raising this issue, Inkelaar relies on several recent decisions involving Jessica‘s Law in which this court held the failure to allege and instruct on the defendant‘s age was error under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). See State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009); Gonzales, 289 Kan. at 371; Bello, 289 Kan. at 199-200. In those cases, the record contained no evidence on which a jury could have based a finding about the defendant‘s age, even if the jury was properly instructed. Accordingly, this court remanded the cases for resentencing under the Kansas Sentencing Guidelines Act,
But, as aptly noted by the State in its letter of additional authority under Supreme Court Rule 6.09(b) (2010 Kan. Ct. R. Annot. 48), this court subsequently considered, in State v. Reyna, 290 Kan. 666, 234 P.3d 761, cert. denied 562 U.S. 1014 (2010), whether the failure to instruct the jury on this element of the crime was harmless error when the trial record contained evidence of the defendant‘s age that would have permitted the jury to make the appropriate finding, if properly instructed to do so. In doing so, this court
Our recent discussion of the federal constitutional harmless error standard in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), reaffirms this standard must be applied to an Apprendi based, i.e., a federal Constitution based, error. See Ward, 292 Kan. at 567 (citing Gamache v. California, 562 U.S. 1083, 131 S. Ct. 591, 178 L. Ed. 2d 514 [2010], to explain that states must apply federal harmless error standard when reviewing claims under the United States Constitution). Further, we note this standard is equivalent to the standard this court applies to any claim of instructional error where no objection has been made at trial. Compare Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353, reh. denied 508 U.S. 968 (1993) (quoting Chapman, 386 U.S. at 24, and explaining Chapman standard means relief from error is required “merely because there is a ‘reasonable possibility’ that trial error contributed to the verdict“), with State v. Bailey, 292 Kan. 449, 455, 255 P.3d 19 (2011) (explaining
Applying the federal constitutional harmless error standard in Reyna and several subsequent cases, we determined the failure to
In Inkelaar‘s case, evidence of Inkelaar‘s age was presented to the jury. Inkelaar did not testify in his own defense, but Detective Riddle testified Inkelaar was born in 1963. And the detective confirmed Inkelaar was over 18 years of age at the time of the December 5, 2007, police interview. Additionally, Tyrone testified he was 39 years old at the time of trial and Inkelaar was 6 to 8 years older. T.M. testified he was 46 years old at the time of trial and had attended junior high and high school with Inkelaar, who entered military service shortly after high school. M.C. testified Inkelaar had “been my dad‘s friend for, I think, 28 years or so.”
We conclude beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. Consequently, the error in failing to instruct the jury regarding Inkelaar‘s age was harmless. Accordingly, we affirm Inkelaar‘s off-grid sentences under Jessica‘s Law.
ISSUE 4: Did the trial court abuse its discretion by excluding evidence of third-party guilt?
For Inkelaar‘s final argument, he contends the trial court deprived him of his right to present a defense by denying his request to introduce evidence of a third party‘s guilt. Inkelaar specifically complains about the court‘s refusal to permit evidence of prior sexual abuse allegations against A.C., the father of the victims in this case. This contention lacks merit.
A trial court‘s decision under the third-party evidence rule at the heart of the evidentiary question before this court is subject to an abuse of discretion standard of review on appeal. See State v. Marsh, 278 Kan. 520, 531, 102 P.3d 445 (2004), rev‘d on other grounds Kansas v. Marsh, 548 U.S. 163, 123 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). This standard of review places the burden of proof on appeal on the party alleging that such an abuse of discretion occurred. State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007); State v. Trotter, 280 Kan. 800, 810, 127 P.3d 972 (2006). The trial court‘s decision may be an abuse of discretion if the decision does not rest on considerations imposed by prior case law, i.e., is based on an error of law. See Ward, 292 Kan. at 550 (discretion is abused if decision [1] is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view 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 factual finding on which a prerequisite conclusion of law or the exercise of discretion is based); State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006) (trial court‘s discretion must be guided by the considerations imposed by prior case law).
During the cross-examination of A.C., when he was testifying about his children‘s allegations against Inkelaar in this case, defense counsel asked A.C. whether he had ever “been accused of anything like this.” The trial court sustained the State‘s objection based on relevance. Then, outside the presence of the jury, defense counsel moved to present evidence of prior allegations against A.C. by his younger half-brother, J.B. The trial judge initially stated: “If it doesn‘t involve these particular children, I don‘t believe it‘s admissible.” The court further indicated it appeared as if defense counsel was engaging in a “fishing expedition” and refused to allow Inkelaar to pursue the matter during A.C.‘s cross-examination. The court did indicate it would review the matter if the defense presented a brief on the issue.
The next day, outside the presence of the jury, defense counsel proffered testimony from J.B. The proffer stated that J.B. would
Before the jury returned to the courtroom, defense counsel also told the court he had additional information, in the form of medical records, suggesting A.C. hаd allegedly sexually abused M.C. and Z.C. when they were 2 and 3 years old, respectively. The information indicated A.C.‘s ex-wife, J.M., the biological mother of M.C. and Z.C., had reported the alleged abuse. The trial court withheld a ruling on the admissibility of this third-party guilt evidence in order to give defense counsel a chance to locate J.M. As for the evidence involving J.B.‘s allegations of sexual abuse by A.C., the trial court found it was “very remote in time.”
The following day, defense counsel was permitted to proffer the testimony of J.M. Outside the presence of the jury, J.M. testified that in 2001, 2-year-old M.C. told her A.C. “whipped out his weenie and wanted her to suck it.” J.M. said she was bathing M.C. and noticed “bruises on her behind.” J.M. testified she took M.C. to the hospital, a nurse “checked her out,” and “SRS investigated” the matter. When asked if Z.C. ever indicated his father had touched his “wee-wee,” J.M. testified, “Not to my knowledge, no.”
Defense counsel argued both J.B. and J.M. should be allowed to testify “as defendant‘s claim of third-party defense.” Defense counsel explained to the trial court: “We‘re asking the jury to consider evidence that a third party [A.C.] . . . has a strong motivation to try and make sure that [Inkelaar] is the person that is taken to Court for these things so that he himself can avoid possible prosecution.” The court considered and excluded the evidence under the third-party evidence rule.
Third-Party Evidence Rule
Generally, evidence of the motive of a third party to commit the crime, standing alone, is not relevant, but such evidence may be relevant if there is other evidence connecting the third party to the crime. The trial court must evaluate the totality of facts and cir
Inkelaar argues the third-party evidence in this case is “analogous” to the third-party evidence in Marsh, 278 Kan. 520, and State v. Evans, 275 Kan. 95, 62 P.3d 220 (2003). (Although Marsh was reversed by the United States Supreme Court as to the death penalty issue presented in the case, this court has explained that Marsh remains good law as to the third-party evidence rule. See, e.g., Brown, 285 Kan. at 303.) In Marsh, this court made it clear the admission of third-party evidence does not turn on the sometimes hazy distinction between direct and circumstantial evidence. In that case, Marsh was accused of killing a mother and her child, but there was also evidence a third party, who was the husband and father of the victims, might have been involved. The Marsh court found the defendant had proffered more than mere evidence of the husbаnd‘s motive, in part because there was evidence of a mixture of the husband‘s blood and the blood of one of the victims on Marsh‘s shoes. As a result, this court held Marsh‘s right to a fair trial had been violated by the trial court‘s exclusion of the third-party evidence. Marsh, 278 Kan. at 533.
In Evans, the defendant tried to admit evidence that another person was seen holding the murder weapon immediately after the fatal shot was fired. Evans, 275 Kan. at 105-06. There was also evidence that a third party admitted to the shooting and later dumped the body. This court held the trial court erred in not admitting the third-party evidence. Evans, 275 Kan. at 106.
Hence, in both cases there was evidence linking the third party to the crime. In contrast, in this case there is no evidence that A.C. could have committed the crimes charged against Inkelaar. In this regard, this case is more like State v. Adams, 280 Kan. 494, 505, 124 P.3d 19 (2005).
In Adams, the defendant was charged with the death of a small child in a shaken baby scenario. Adams tried to admit evidence establishing the child‘s mother had abused one of her daughters from a previous marriage and the divorce decree from that marriage gave her only supervised visits with the children. Adams was
Similarly, in this case, none of the evidence proffered by the defense connected A.C. to the charged crimes. The allegations involving A.C.‘s half-brother did not involve the victims in this case and are alleged to have occurred before the victims were even born. As for the allegations of A.C.‘s sexual abuse of the victims, according to the proffered evidence, J.M. reported the alleged incidents occurred when the children were ages 2 and 3 years old, respectively. As observed by the trial court, the alleged sexual abuse in the present case did not begin until approximately 2 years after those prior acts, when M.C. was 4 years old. The incidents that led to the report of abuse—on or about November 30 to December 2, 2007—occurred while the children were staying with Inkelaar and A.C. was out of town. Finally, as the trial court pointed out, both children only identified Inkelaar as the perpetrator of the sex acts in this case.
In summary, there is nothing tying A.C. to the charged crimes. Inkelaar‘s attempt to show third-party guilt falls short, and we hold the trial court did not abuse its discretion in denying the admission of the evidence.
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JOHNSON, J., concurring in part and dissenting in part: I agree with the majority‘s ultimate decision to review the
The majority apparently justifies its serial objection requirement on the possibility that the evidence at trial will unfold differently than it did at the pretrial hearing. I submit that there is a much less draconian solution to that potentiality. An appellate court presented with a defendant‘s challenge to the district court‘s pretrial ruling allowing the admission of contested evidence where the defendant did not reassert an objection at trial could simply review the matter on the basis of the evidence presented at the pretrial hearing. In other words, the defendant must have reasserted his or her objection at trial and requested a reconsideration of the court‘s pretrial ruling in order to get an appellate review based upon the evidence presented at trial. In that manner, the defendant gets an appellate review of the precise ruling that he or she asked the district court to make, and the district court cannot be overruled based upon evidence that the court did not consider in making its ruling. On the other hand, the defense is relieved of the hypertechnical requirement that it engage in acts of futility to preserve a challenge to a ruling that has been made explicitly clear to everyone involved with the case.
Ironically, the majority makes the point that the constitutional and jurisdictional aspects are well-settled law. Quoting from State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009), the majority acknowledges that the state and federal constitutions require sufficient clarity in the charging document so that the accused is informed of the nature and cause of the accusation. The complaint in this case contained the elements which would constitute the severity level 3 version of aggravated indecent liberties with a child. See
The Gonzales quote selected by the majority also recites that a complaint that fails to include an essential element of the crime charged is ” ‘fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.’ ” 289 Kan. at 366
The majority notes that Inkelaar raises the charging document issue for the first time on appeal and, therefore, it employs the post-Hall analysis of essentially determining whether the defendant has been prejudiced by the defective complaint. I cannot square that approach with the rather fundamental principle that subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court‘s own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Moreover, a party‘s failure to challenge a district court‘s jurisdiction cannot create subject matter jurisdiction where it did not already exist. State v. Hoffman, 45 Kan. App. 2d 272, 275, 246 P.3d 992 (2011) (parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court‘s jurisdiction does not invest the court with the requisite subject matter jurisdiction). Indeed, as the majority‘s author very recently declared: “An appellate court has no authority to create equitable exceptions to jurisdictional requirements.” Board of Sedgwick County Comm‘rs v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011). Accordingly, we lack subject matter jurisdiction to engage in fact-finding to determine Inkelaar‘s guilt as to the off-grid severity level of aggravated indecent liberties with a child.
Next, I would add that there is a statutory mandate, omitted from the majority‘s analysis, which provides that “[u]pon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.”
Finally, it simply offends ones innate notion of fair play to have a defendant charged with a specific crime, defend against that crime, and be convicted by the jury of that crime, but then allow the sentencing judge to impose the sentence for a crime of greater severity. If a person test-drove, selected, and took title to a subcompact automobile, we would not allow a judge to make an after-the-fact order requiring the purchaser to pay the dealership the sticker price on the most expensive luxury model on the lot. I see no difference here and I would not permit it to happen.