Lead
The opinion of the court was delivered by
Defendant John Prine was convicted of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child because of his conduct with a 6-year-old girl. He petitioned for our review of the Court of Appeals decision affirming his convictions in State v. Prine, No. 93,345, unpublished opinion filed December 1, 2006. We address K.S.A. 60-455 and sufficiency issues.
Factual and Procedural Background
Prine’s sufficiency claim requires more elaborate discussion of the troubling case than might ordinarily be necessary.
As E.K. was taking her 6-year-old granddaughter, A.M.C., home from kindergarten on December 11, 2003, A.M.C. told her that “John” had touched her in ways he should not have touched her. E.K. notified A.M.C.’s stepmother, J.C., who came home from work and immediately took A.M.C. to the doctor. An examination revealed no injuries. J.C. had asked Prine to babysit A.M.C. and her baby brother and sister that morning; he had babysat for the family before. Prine was the best friend of A.M.C.’s father.
J.C. filed a police report. That day, Sergeant John Taylor of the Hutchinson Police Department’s Juvenile Detective Bureau videotaped an interview of A.M.C. Taylor
A.M.C. told Taylor that Prine had touched her “lots of times” when he was babysitting and her parents were gone. She said this had happened in the hving room; in the laundry room by the dryer; in her parents’ room; and once in the playroom while her brother and sister were present. A.M.C. said Prine touched her between her legs with his fingers, his tongue, and his tummy.
Taylor asked A.M.C. what Prine would do with his fingers when he would touch her between the legs. A.M.C. took her index and middle finger, put them up to her mouth, acting like she had licked them, and then swiped them down between her legs. She said he licked his fingers and put them between her legs. A.M.C. said, “I know what that is. It’s a bad touch.” She said the fingers went inside and outside.
A.M.C. also said that Prine sometimes used his fingers to pull her front apart and would lick inside. She said, “I don’t know why he did that.” She said she had asked him why he would do stuff like that to her, and he would not listen; she said he thought what he was doing was fun and funny.
A.M.C. also said that once she was lying on the floor with her clothes on, but with her pants down past her bottom, and Prine put his tummy between her legs and scooted her. She explained that she was on her back, her legs were almost over her head, apart, and John’s exposed tummy was touching her. When asked where Prine’s tummy was touching her, A.M.C. stood up and pointed to her vagina. Taylor asked her if this was on the inside or out, and A.M.C. said, “I told you, on the inside and outside.”
Steve Edwards, a clinical social worker at Horizon Mental Health Center, who interviewed A.M.C. on December 18, 2003, had been working for many years with S.M., Prine’s 9-year-old daughter, through a school program. Police interviewed S.M. in late December 2003, and she stated that her father had often given her bad touches. She said she was little when he had sex with her. When asked what she meant, S.M. said Prine would be naked; that he would yell at her; that he would remove her pants; and that he would set her on top of him as he lay in bed. She said she felt his penis on her vagina, but he never did anything with it, and she never saw it. S.M. thought this had happened two or three times, but she did not remember how old she was; when pressed, she suggested it was when she was 4 or 5.
The State charged Prine in four counts. The first three counts related to incidents involving A.M.C.: rape; aggravated criminal sodomy; and aggravated indecent liberties with a child. A second count of aggravated indecent liberties with a child, Count IV, was based on his alleged sexual abuse against S.M.
At Prine’s preliminary hearing, the district judge granted a defense motion to dismiss Count IV, because there was no evidence the prosecution of that count had been commenced within 5 years of the commission of the crime. Prine was bound over for trial on the first three counts.
The State moved to admit evidence of other crimes or wrongs pursuant to K.S.A. 60-455. The defense opposed admission of any evidence relating to sexual abuse allegations made against Prine by S.M. or by J.J.S., Prine’s half-sister. The State argued the evidence was relevant to prove the material facts of intent, plan, and absence of mistake or accident. Each involved a girl about 5- or 6-years-old and simulation of a sex act without penetration by the penis; two of the cases involved oral sodomy and digital penetration. The defense responded that if the allegations had any probative value, it was far outweighed by potential prejudice; that the allegations were not similar enough to the charged crimes; that any similarities that did exist were common to many sexual abuse allegations; and that the evidence was too remote in time to be probative. The
At trial, A.M.C. testified about the three events she had previously described to Taylor. She said that Prine pushed her pants and underwear down, licked his fingers, and touched her front; he spread her legs, put his tongue on her front, and “was just licking it like some dog”; and, one time when she was on the floor and part of her pants were off, Prine pulled her legs apart in the air, put them over his shoulders, and scooted her with his front touching her front. She said the first event happened in the living room, the play room, in her parents’ room, and in the laundry room; the second event happened in the living room; and the third event happened in the living room. The first event happened lots of times, she said, almost every day that her parents were not home. She also testified that no one had told her to say these things; rather, “it really happened.” She further testified that when she asked Prine to stop and asked him why he did these things, he said it was funny to him. A.M.C. said she told her grandmother about Prine because she did not want these things to happen anymore.
A.M.C.’s trial testimony deviated from her initial interview with Taylor in one respect. She testified that Prine’s fingers touched her only outside, rather than the inside and outside which she had spoken about with Taylor.
Edwards testified concerning his initial interview with A.M.C., in which she related the same incidents involving Prine that she had told police about earlier. She had demonstrated Prine’s licking of his fingers in the same manner, and she had used anatomically correct dolls to demonstrate where and how Prine had touched her. Edwards further testified that he had seen A.M.C. more than a dozen times since her initial interview, and she remained extremely consistent in her disclosures. He also testified that, although A.M.C. had not experienced a traumatic event such as a tornado, a fire, or seeing someone die, she exhibited signs of post-traumatic stress disorder, including recurring nightmares, sleep disturbance, and exaggerated fear of Prine.
Over a defense objection, Edwards also testified that, before his initial meeting with A.M.C. in December 2003, he had performed a sexual abuse evaluation on then 8-year-old S.M. S.M. told Edwards that Prine would force her to go into his bedroom, would put honey on his private part, and would force her to “get back on him.” She told Edwards defendant would laugh at her when she tried to wash away the honey that had gotten on her private part.
Also over a defense objection, 9-year-old S.M. testified that Prine had touched her in a bad way. She testified specifically that Prine had taken her clothes off and gotten on top of her. She testified that, when she was 3 or 4, he put honey on his private part and got on top of her. He laughed at her when she tried to wash off the honey that had gotten on her. S.M. also said that Prine “smacked” her.
S.M.’s mother testified over objection that, in December 2002, S.M. had told her she had been naked and defendant had laid her on top of him. S.M. had asked her mother if that act was sex.
J.J.S., Prine’s 27-year-old half-sister, testified that Prine had sexually abused her when they lived in the same house in the 1980’s. Specifically, J.J.S. said that, when she was 4 or 5 years old and Prine was 17, he forced her to perform oral sex on him; he performed oral sex on her; he put his penis between her legs and rubbed it on her vagina; and he put his pointer and middle fingers inside her vagina after wetting them in his mouth. J.J.S. performed the same action that A.M.C. had performed to demonstrate. J.J.S. also testified that once, two of her other half-brothers had witnessed her performing oral sex on Prine.
M.S., Prine’s stepbrother, testified that, when he was about 12 years old, he saw his 5-or 6-year-old half-sister, J.J.S., performing oral sex on Prine.
The district judge also admitted, over objection, a 1993 police report J.J.S. had filed about Prine’s sexual abuse.
Nick Prine, the defendant’s other brother, was the sole witness presented by the defense.
Pursuant to an earlier Jackson v. Denno,
J.C. testified that A.M.C. did not have a swimsuit at the place and during the time frame about which Prine testified.
The State also introduced evidence that Prine had tried to blackmail A.M.C.’s mother into dropping the charges against him by threatening to tell police that her husband, A.M.C.’s father, was stealing from his workplace.
Finally, Taylor testified concerning his involvement in the case and his initial interview with A.M.C. The videotape of the interview was played for the jury, but the video tape was not included in the record on appeal.
The jury was given a limiting instruction on the prior sexual abuse evidence involving S.M. and J.J.S. It read: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant’s intent, plan, absence of mistake or accident.”
During deliberations, the jury asked the district court to “elaborate on what constitutes penetration. If a finger or fingers or tongue touch only the clitoris, does that constitute a penetration of the female anatomy or labia, or vaginal opening, or simply if someone touches the clitoris, would that constitute penetration?” The court responded by directing the jury to reread Instructions No. 3 and No. 7. Instruction No. 3 told the jury to determine the weight and credibility to be given each witness and to use its common sense, knowledge, and experience in evaluating testimony. Instruction No. 7 set out the elements of rape and defined sexual intercourse as “any penetration of the female sex organ by a finger or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.”
Two and Vz hours after initially retiring for deliberations, tire jury returned a verdict of guilty on each of the three counts.
At sentencing, the district judge denied Prine’s motions for judgment of acquittal, new trial, and downward departure. Prine argued that he had been set up because he had rejected a romantic proposition from A.M.C.’s mother, his best friend’s wife.,He then accused the district judge of failing to be impartial, of unfairly favoring the prosecution. After the judge advised Prine to “keep the cussing to [himjself,” Prine launched into a tirade of abusive language that earned him eight counts of direct criminal contempt. Each count added a consecutive 6 months to his sentence.
Based on a criminal history score of G for a prior felony failure to pay child support conviction, Prine received a 203-month sentence for rape; a 123-month sentence for aggravated criminal sodomy; and a 61-month sentence for aggravated indecent liberties with a child. Each was consecutive to the others, as well as to the multiple contempt sentences.
Prine argued four issues to the Court of Appeals: (1) There was insufficient evidence of penetration to support his conviction of rape; (2) the district judge erred in admitting evidence of his prior activities with S.M. and J.J.S.; (3) the district judge erred in admitting a photograph of him with a mustache,
A majority of the Court of Appeals’ panel affirmed in part and dismissed in part. Prine, slip op. at 13. On the sufficiency claim, one of the two issues before this court, the majority noted that, contrary to Prine’s assertion, actual penetration of the vagina is not required to establish sexual intercourse, and “any penetration, however slight, is sufficient.” Slip op. at 6-7. The majority wrote: “[Pjenetration of the vagina or rupturing of the hymen is not necessary; penetration of the vulva or labia is sufficient” to establish sexual intercourse. Slip op. at 6-7 (citing K.S.A. 21-3501(1) and, inter alia, In re B.M.B.,
On the K.S.A. 60-455 issue, the majority set out its standard of review as abuse of discretion. It noted that two of the three material factors the prior sexual abuse evidence was admitted to prove— absence of mistake and the presence of intent — were related concepts. Slip op. at 9 (citing State v. Davidson,
Moreover, the majority observed, when the facts of a prior act and an alleged crime are “strikingly similar,” the prior act is admissible to demonstrate that defendant had a plan or employed a distinct method of operation. Prine, slip op. at 10-11 (citing State v. Jones,
The majority acknowledged that a determination of relevance, i.e., the existence of probative value, and the existence of materiality'to an actual issue, formed only part of the K.S.A. 60-455 analysis; a district judge also must weigh any probative value against potential prejudice to the defendant. In this case, the majority held that the probative value of evidence of Prine’s intent was slight because of his general denial, but “the combined value of the prior bad acts evidence to prove intent, an absence of mistake or accident, and plan outweighed the potential prejudice to the defendant.” Slip op. at 11-12. The majority was “firmly convinced” that the district court did not abuse its discretion in admitting the prior sexual abuse evidence under K.S.A. 60-455. Slip op. at 12.
Court of Appeals Judge Richard Greene dissented, suggesting that an abuse of discretion standard does not come into play on a K.S.A. 60-455 issue unless and until a reviewing court determines that “(1) the evidence was relevant to prove one of the facts specified in K.S.A. 60-455; (2) the fact being
Judge Greene relied on the general rule that prior sexual conduct is inadmissible to show intent when criminal intent is obviously proved by the mere doing of the charged act. Slip op. at 14 (citing Dotson,
Judge Greene also suggested that absence of mistake or accident was not a basis for admissibility unless a defendant had offered an explanation of mistake or accident for the criminal acts alleged in the case. Slip op. at 15. Here, he argued, the defendant did not claim that he accidentally touched A.M.C. “at the times and places charged, but offered an explanation that he may have accidentally touched her at other times and places. This does [not] place in dispute . . . mistake or accident. . . .” Slip op. at 15 (citing Davidson,
Judge Greene also took issue with the degree of similarity between the allegations made by A.M.C. and those made by S.M. and J.J.S. In his view, the differences were marked. The only similarities — the relative age of the victims and Prine’s amusement at their degradation — were not enough to demonstrate modus operandi or plan. Slip op. at 15-17. As in Jones,
Judge Greene ultimately would have held that reversal was necessary on the K.S.A. 60-455 issue, because the State’s case rested entirely on the victim’s testimony, what she had told others, and the evidence of prior sexual abuse. Slip op. at 17-19 (Greene, J., dissenting).
KS.A. 60-455 Evidence of Prior Sexual Abuse
K.S.A. 60-455 provides:
“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 to 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 to K.S.A. 60-445 and 60-448 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.”
In State v. Vasquez,
“ ‘[T]he K.S.A. 60-455 analysis requires several steps. . . . [T]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in.’ [Citations omitted.]” Vasquez,287 Kan. at 49 .
We observe in Vasquez that Reid refined and extended our earlier ruling in State v. Gunby,
“ “While Gunby established that evidentiary rules may be applied either as a matter of law or in the exercise of the trial court’s discretion, depending on the contours of the rule in question, this particular determination only occurs “[o]nce relevance is established.” 282 Kan. at 47 . Gunby did not establish our standard of review for analyzing relevance of certain K.S.A. 60-455 evidence.
“ ‘[T]he legislature has defined “relevant evidence” as “evidence having any tendency in reason to prove any material fact.” This statutory definition bears some resemblance to one found in Federal Rule of Evidence 401: “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
“ ‘Several treatises have recognized that the federal rule contains both a probative, i.e., relevancy, element and a materiality element.’ Reid,286 Kan. at 504 .” Vasquez,287 Kan. at 49 .
Vasquez then continues:
“Our Reid decision then observed that materiality merged into the federal rule on relevancy through inclusion of the ‘ “requirement that the fact proved must be ‘of consequence to the determination of the action.’ . . . Determining whether evidence is ‘consequential’ depends on the applicable substantive law.” ’ ”286 Kan. at 504-05 (quoting Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.2, pp. 228-29 [2d ed. 1999]; citing 1 Federal Rules of Evidence Manual, § 401.02[2] [9th ed. 2006] [‘Both traditional requirements of relevance analysis— that evidence must relate to issues that are properly in dispute and that it must shed some light on those issues — are combined into one rule. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law.’]).” Vasquez,287 Kan. at 50 .
Vasquez explicitly recognizes that Kansas law, K.S.A. 60-401(b), mirrors federal law on the two components of the relevance concept. See Vasquez,
Vasquez also addresses the applicable standards of review on appeal:
“On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. Reid,286 Kan. at 507-09 . With respect to relevance overall, Reid concluded: ‘Obviously, if either the probative or materiality element’s standard is not met, then the evidence is inadmissible. If both standards are met, then the appellate court proceeds to the next step(s) in the [K.S.A.] 60-455 analysis established in Gunby.’ Reid,286 Kan. at 509 .
“The second step under K.S.A. 60-455, i.e., whether the fact was in issue at trial, is judged on appeal under a de novo standard. An appellate court is as capable of discerning whether a particular fact was in issue from a cold record. The third step, the district judge’s weighing of probative value and prejudicial effect, is reviewed on appeal for abuse of discretion, a more deferential standard. See Reid,286 Kan. at 512 .
“If evidence qualifies for admission under K.S.A. 60-455 but no limiting instruction was given, the standard of review should match that applied to other jury instruction issues. If the defense requested a limiting instruction and was refused or it otherwise objected to its omission by the district judge, the standard on appeal is that set out in K.S.A. 60-261; to be reversible, the error must be inconsistentwith substantial justice. See Gunby, 282 Kan. at 48, 57-59 . If the defense did not request a limiting instruction and it failed to object to its omission, the absence of a limiting instruction is reviewed on appeal under the clearly erroneous standard of K.S.A. 22-3414(3). Reid,286 Kan. at 513 . ‘ “Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.” [Citation omitted.]’ State v. Shirley,277 Kan. 659 , 666,89 P.3d 649 (2004).” Vasquez,287 Kan. at 50-51 .
Finally, Vasquez also notes our Gunby clarification of the role of harmless error analysis under K.S.A. 60-455: “ ‘[T]he admission of K.S.A. 60-455 evidence without the explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. On the contrary it may be harmless.’ ” Vasquez,
Intent
The State’s first basis for admission of evidence about Prine’s prior sexual abuse of S.M. and J.J.S. was intent. We hold that it would not have been an abuse of discretion for the district judge to decide that the first component of relevance, the existence of probative value, was satisfied on intent. The fact that Prine molested other young girls in the past, given today’s jurors’ common understanding of the psychology of those who commit such crimes, actually “shed[sj some light” on the existence of intent in this case. In this context, we use the word “intent” in the broader sense of the overall guilty mind or mens rea required for proof of criminal behavior, rather than in the particular sense of the “general intent” or “specific intent” required for proof of certain crimes. In this case, Prine was charged with two general intent crimes — rape under K.S.A. 21-3502 and aggravated criminal sodomy under K.S.A. 21-3506 — and a specific intent crime — aggravated indecent liberties with a child under K.S.A. 21-3504. The elements of aggravated indecent liberties with a child include an “intent to arouse or satisfy the sexual desires of either the child or the offender, or both.” K.S.A. 21-3504.
At least in the abstract, prior sexual abuse of others by Prine also could, as a matter of law, satisfy the second component of relevance, materiality. Criminal intent generally is “properly in dispute” in rape, aggravated criminal sodomy, and aggravated indecent liberties with a child cases.
The going gets tougher for the State on the second part of the K.S.A. 60-455 test, i.e., whether intent actually was in issue at Prine’s trial, also judged on appeal under a de novo standard. We agree with Judge Greene that, given the record before us and the egregious nature of the behavior alleged here, intent was not actually in issue. It was simply a given that, if the sexual abuse of A.M.C. occurred as described by her, it was motivated by criminal intent. See State v. Rucker,
We need go no further in our analysis of whether there was error in admitting the
Absence of Mistake or Accident
The State’s admission of the prior sexual abuse evidence to prove absence of mistake or accident breaks down in the same manner as its admission of the evidence to prove intent. Indeed, the two bases for admission of K.S.A. 60-455 evidence are largely intertwined. State v. Plaskett,
Here, absence of mistake or accident was not actually in issue in Prine’s trial. The State’s introduction of evidence about Prine’s hypothesis during his law enforcement interview that A.M.C. could have become confused by certain other incidents of nonsexual touching was insufficient to support admission of contrary evidence by the State. The hypothesis did not inform Prine’s position at trial; his defense was a categorical denial that any of the alleged events took place. Under these circumstances, the State could not open the door for itself to put S.M. and J.J.S. on the stand to rebut an innocent explanation advanced by Prine. The evidence it introduced from his interview bore no relationship to the defense theory of the case at trial. Admission of the prior sexual abuse evidence to prove absence of mistake or accident was error.
Plan
One of the avenues through which evidence of prior crimes or civil wrongs can be probative of plan or modus operandi — satisfying the first component of relevance, an ability to shed some light on a contested fact — is similarity. See State v. Damewood,
In Damewood, Darwin Gene Damewood befriended 14-year-old J.A. by interesting J.A. in Damewood’s beekeeping operation. Using beekeeping to isolate J.A. from others, Damewood proceeded to sexually molest him and threatened to punish J.A. if he told anyone. A second incident occurred, after which J.A. told his parents. At Damewood’s trial, the State presented the testimony of M.S.R., who, at 13 years old, had been drawn into beekeeping by Damewood and then sexually abused for several years. On appeal, this court found no error in admitting evidence of the prior crime because it was so “strikingly similar”; thus, it was admissible to describe “the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.”
This court stated that
“[t]he rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilizedby the defendant to accomplish the crimes or acts. [Citations omitted.]” Damewood, 245 Kan. at 682 .
Another line of cases has held evidence of prior crimes or acts is admissible to show plan when there is some direct or causal connection between the earlier conduct and the crimes charged.
This court has consistently recited these two theories for admission of K.S.A. 60-455 evidence to prove plan, but our formulation of the standard of similarity employed under the first theory has varied somewhat from case to case.
State v. Jones,
At trial, the district court permitted the State to introduce evidence of Jones’ prior conviction of indecent liberties with a child to prove plan. L.D., the victim in the earlier case, testified that her mother had been married to Jones. When L.D. was 8 or 9 years old, Jones began molesting her by taking off her clothes, touching her with his hands and penis, and rubbing himself on her. Jones attempted but never achieved sexual intercourse with L.D. L.D. testified Jones would masturbate, fondle her vagina and breast areas, and tell her that he loved her. He also wanted her to say she loved him. These incidents always happened when they were alone; Jones had told her to keep the activity a secret; and he pleaded guilty when she eventually reported the sexual abuse. L.D.’s mother never participated in the activities; and there was no talk of “colors, rituals, or ‘family values.’ ” Jones,
The Jones majority, citing State v. Tolson,
The majority held that the facts of Jones failed to meet either standard of similarity.
Justice
In State v. Kackley,
The panel concluded that the feature distinguishing this case from Jones was that Kackley had a “signature” act of first placing the underage girls’ hands on his exposed penis; “it is a signature act because it is so strikingly similar in pattern or modus operandi as to authenticate the conduct as the defendant’s when it is allegedly replicated in a later case.”
Others among our cases have upheld convictions by concluding that similarities were sufficient to admit prior bad acts to prove plan or modus operandi. In State v. Overton,
On appeal, this court upheld the admission of A.D.’s testimony because we regarded the prior bad acts it described as strikingly similar to the current allegations as to G.B. Both girls were minor students at the school where defendant taught; both were 14 years old when defendant began talking to them; both students confided in defendant about their family problems; defendant complimented both students and arranged to be alone with them at school, where he kissed and fondled each of them; defendant hired both students as babysitters; and defendant raped each of them on a particular bed in his home.
In Overton, our opinion did not focus on dissimilarities between the girls’ stories of sexual abuse. This could be due in part to an easing of our analytical burden by the limited defense argument on appeal. Overton argued that prior bad act evidence to support plan was admissible only when it bore a direct and causal relationship to the charged crimes, i.e., the second theory noted above. This theory was clearly inapplicable.
The results in Damewood, Kackley, Overton, and Rucker are consistent with those in other cases in which we concluded that a sufficient degree of similarity existed between prior bad acts and the current ¿legations to permit evidence of the prior bad acts to come in under K.S.A. 60-455 to prove plan. See State v. Moore,
The problem is that it is difficult to distinguish the factu¿ comparisons made in these cases to those made in cases in which the opposite conclusion was reached, i.e., that the prior bad acts and current allegations were too dissimilar to permit K-S.A. 60-455 evidence to prove plan or modus operandi. See, e.g., Jones,
We hope and expect that future analytical consistency in these especially wrenching cases, see Kackley,
As mentioned above, this standard governs examination of whether particular evidence has probative value, one of the two components of relevance, as outlined in Vasquez,
Turning to a comparison of the evidence of prior bad acts admitted to prove Prine’s plan here, we note that all three crimes are similar in the approximate ages and the gender of the victims. However, the specific sex acts among the victims differed. A.M.C. described discrete events of three types. S.M. described two other types of activities. The account of J.J.S. bore some similarity to one of the activities in which defendant engaged with S.M. and some similarity to a different behavior described by A.M.C. Under the signature standard we have set forth, even in light of the deferential abuse of discretion standard of appellate review, it was error to admit the evidence of Prine’s prior bad acts with S.M. and J.J.S. to prove plan in the trial of A.M.C.’s allegations.
Harmless Error
Plaving concluded there were errors in admitting evidence of prior sexual abuse of S.M. and J.J.S. to support intent, absence of mistake or accident, and plan, we next move to the question of whether these errors were harmless. The standard for harmlessness is set forth in K.S.A. 60-261:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in tire proceeding which does not affect the substantial rights of the parties.”
See State v. Woolverton,
The evidence from S.M. and J.J.S. was undoubtedly prejudicial, but we are not concerned with the garden-variety prejudice necessary for any successful prosecution. We are concerned only with undue or unfair prejudice. See Vasquez,
We are compelled to make one final set of brief comments on the K.S.A. 60-455 issues raised by this case.
Extrapolating from the ever-expanding universe of cases that have come before us and our Court of Appeals, it appears that evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A. 60-455 and, thus, that convictions of such crimes are especially vulnerable to successful attack on appeal. This is disturbing because the modem psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a
Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make K.S.A. 60-455 more workable in such cases, without doing unconstitutional violence to the rights of criminal defendants. It may be time for the legislature to examine the advisability of amendment to K.S.A. 60-455 or some other appropriate adjustment to the statutory scheme.
Sufficiency of Evidence of Rape
We briefly address Prine’s second issue on petition for review because, if he were to be successful on it, he could not be retried on the rape count. See State v. Scott,
When sufficiency of evidence is challenged in a criminal case, our standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See Vasquez,
K.S.A. 21-3502(a)(2) defines rape as “sexual intercourse with a child who is under 14 years of age.” K.S.A. 21-3501(1) defines “sexual intercourse” for purposes of rape to include: “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.”
Prine focuses on the distinction between A.M.C.’s trial testimony and her initial statement to Taylor. Because she testified at trial that Prine’s fingers touched her only on the outside, he argues, no rational factfinder could have found that there was even slight penetration.
It is true that A.M.C.’s story was not completely uniform on this particular point. She explicitly said in her interview with Taylor that Prine touched her with his fingers on her front, between her legs, “inside and outside.” Taylor testified at the preliminary hearing: “I asked her if the fingers went inside. She said they went inside and outside . . . .”
However, at trial, the prosecutor did not elicit exactly the same description of Prine’s conduct from A.M.C.:
“Q. Where did you get touched?
“A. My front.
“Q. Where at in your front? Where?
“A. My front on the outside.
“Q. How did he'touch you there?
“A. With, with his fingers.
“Q. And wliat did he do with his fingers?
“A. Licked them and put them on my front.
“Q. I’m sorry, he did what?
“A. He licked them and put it on my front.
“Q. And you said he licked it?
“A. Yes. . . . (indicating).
“Q. Okay. Do you know whether his fingers went inside you or outside, or?
“A. Outside, outside.
“Q. Okay. Do you remember previously talking to the police about this?
“A. Yes.
“Q. Did you say his fingers went in and out?
“A. Out.”
Defense counsel followed up on cross-examination:
“Q. Let me ask you this, [A.M.C.]. Let me go ahead and ask you this, Now . . . what you’re saying is that it was, that as far as [Prine] and his fingers, it was, it was always on the outside, right?
“A. Yes, only on the outside.
“Q. Okay, and the tongue was on the outside, too?
“A. Yes.
“Q. Okay, and when you’re talking about inside and outside you’re talking about the play room and the different rooms, right?
“A. Huh?
“Q. You’re talking about it was inside the house, right?
“A. Yes, we were always inside the house when he did that.”
It is important to note that the jury also watched the videotape of A.M.C.’s interview, produced on the day the sexual abuse was reported.
This court has often stated that the testimony of the victim alone can be sufficient to sustain a rape conviction without further corroboration as long as the evidence is clear and convincing and is not so incredible and improbable as to defy belief. State v. Borthwick,
We regard the evidence as sufficient to support a rape conviction. Prine’s argument ignores A.M.C.’s videotaped statement and her many consistent repetitions of the essentials of her account. It also ignores the common-sense inference of penetration that might be drawn from other evidence, such as A.M.C.’s repeated descriptions of him licking his fingers. Prine may be retried on the rape count.
Reversed and remanded for new trial.
Dissenting Opinion
dissenting: I respectfully dissent from the majority’s decision that in order for evidence of prior bad acts to be considered relevant to prove plan under K.S.A. 60-455, “the evidence must be so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature.” I further dissent from the decision reversing the defendant’s convictions.
The majority’s decision rests only on the conclusion that the “sufficiently similar” standard for admissibility of prior crimes evidence to prove plan in child sex abuse cases has been too difficult to predictably and reliably apply. In support, the majority points to several cases in which it is impossible to reconcile the results that were reached.
First, the majority’s new standard is neither more clear nor workable—only more difficult to satisfy. Second, although I agree that the decisions in these cases are irreconcilable, it is not because the standard is unworkable. Instead, it is because there have been a series of decisions by this court and the Court of Appeals that have misinterpreted and confounded the original relevancy standard for admission of plan evidence by misconstruing a single remark in State v. Damewood,
at 682. This was not a standard for admission, only a comment on the quality of the evidence at issue in that particular case. This language was subsequently further misinterpreted as requiring a “signature act.” While this divergence
The distortion of the similarity standard
In Damewood, the court explained that evidence of prior crimes to show plan is permissible under K.S.A. 60-455 where the evidence “is admitted to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.”
“In the present case, there was testimony through various State’s witnesses that defendant denied all sexual activity with J. A. The testimony of M.S.R. of the events which occurred between him and the defendant in 1983 was strikingly similar to the method and plan the defendant used with J.A., even to the use of specific language and statements as well as specific actions of the defendant.”245 Kan. at 682 .
That part of the Damewood decision describing the evidence as “strikingly similar” is not the legal principle upon which the decision is based, it is nothing more than a comment on the high degree of similarity shown by the evidence in that particular case. Certainly, evidence in any given case can meet or even exceed the standard of admissibility, without creating a higher bar for all cases that come after. That, however, is exactly what has happened.
The court’s comment in Damewood was first misapplied as the standard for admissibility in State v. Rucker,
In State v. Tiffany,
In State v. Aldaba,
“The Kansas Supreme Court upheld the admission of the evidence, finding a ‘strikingly similar’ method of operation. [Citations omitted.] Specifically, the court found it relevant that the defendant usedsimilar words to entice the victims, that the victims were about the same age, and that the criminal conduct was performed in the same manner. (Citation omitted.)” Aldaba, 29 Kan. App. 2d at 190 .
Based on this, the Court of Appeals concluded: “As in Damewood and Tiffany, the children’s accounts are ‘strikingly similar’ here.”
The term “signature” first appears in State v. Tolson,
“The State relied on State v. Damewood,245 Kan. 676 ,783 P.2d 1249 (1989), in which the court described ‘modus operandi’ as the ‘general method used by a defendant to perpetrate similar but totally unrelated crimes.’ [Citation omitted.] Damewood’s method was to interest boys in his beekeeping, which allowed him to be alone with them so that he could sexually molest them. The court found no error in the admission of tire testimony of a young man who had been drawn into beekeeping by Damewood and then sexually abused several years before the victim of the charged crime became involved with Damewood. [Citation omitted.]
“In Damewood, there was a method of operation, and it was so distinct as to be a ‘Signature.’ Damewood was being tried for arranging to spend time alone with a boy by involving the boy in his beekeeping activities and then sexually molesting him. Precisely the same pattern of conduct or method of operation was shown by the prior acts evidence to have been followed on a previous occasion.
“This case does not present such a clear picture.” (Emphasis added.) Tolson,274 Kan. at 563-64 .
It must be noted that although the Tolson opinion states that Damewood affirmed the admission of evidence because “it was so distinct as to be a ‘signature,’ ” the term “signature” was not used in Damewood.
By this point, it is obvious that the “strikingly similar” language used in Damewood, was morphing into the standard for admission of plan evidence. In 2003, in State v. Davidson,
“Under the second theory for admission of K.S.A. 60-455 evidence to show plan, Kansas courts have admitted evidence of a prior crime when its method of commission was strikingly similar to the method of the charged crime.”
“The record of this case is examined and it is held: Similarities between the prior crimes and the charged acts were not striking, and the admission of K.S.A. 60-455 evidence to show plan was improper.”31 Kan. App. 2d 372 , Syl. ¶¶ 6, 7.
In its decision, the Court of Appeals relied on the “strikingly similar” language as the legal standard for admission of plan evidence: “We conclude this case lacks the ‘striking’ similarities that have marked our precedents. Under these circumstances, it was error for the district court to admit the K.S.A. 60-455 evidence to prove plan.”
In addition, the appearance of the “strikingly similar” language in the syllabus is important, for the syllabus sets out the points of law decided in the case. See K.S.A. 20-111 (requiring opinions to include a syllabus setting out “the points decided in the case”); K.S.A. 60-2106 (b) (appellate opinions “shall contain a syllabus of the points of law decided”).
In State v. Jones,
Not surprisingly, then, in State v. Kackley,
“K.S.A. 60-455 evidence may be admissible in sex crime cases where the details of the plan or modus operandi for the prior crime and the crime for which the defendant is on trial are ‘strikingly similar or reflect a method of operation so distinctive as to be a ‘signature.’ ”32 Kan. App. 2d 927 , Syl. ¶ 3.
Most recently, in State v. Dayhuff,
“Our Supreme Court has never clarified whether the standard is ‘signature act,’ ‘strikingly similar,’ or ‘similar enough’ when determining whether the prior crimes evidence is relevant to show plan under K.S.A. 60-455. See Jones,277 Kan. at 423 . Nevertheless, since Clements our Supreme Court and this court have more recently applied the ‘strikingly similar’ or die ‘signature act’ standard when determining whether prior crimes evidence is relevant to show plan; see Rucker,267 Kan. at 826-28 ; Tiffany,267 Kan. at 500 ; Kackley,32 Kan. App. 2d at 932 ; Davidson,31 Kan. App. 2d at 381 ; and Aldaba,29 Kan. App. 2d at 190 . Our Supreme Court has never defined the term ‘similar enough,’ and Clements provides little guidance on the analysis for such a standard. Based on how our Supreme Court and this court have been treating the issue, a ‘strikingly similar’ or a ‘signature act’ analysis is the appropriate standard for this case.
“Because there was insufficient evidence presented in this case to show a distinct mode of operation that was ‘strikingly similar’ or a ‘signature act,’ we conclude that the trial court erred in admitting evidence of Dayhuff s prior crimes under the plan exception of K.S.A. 60-455.” Dayhuff,37 Kan. App. 2d at 793-94 .
This brings us to where we are today: with a new, much more restrictive, legal standard of admissibility of prior crimes evidence to prove plan than we had before, a result that occurred without any deliberate or conscious decision to abandon the original similarity standard. This is not how legal principles should develop.
We addressed the error of misconstruing language commenting on the facts of the case as the legal standard in Trustees of The United Methodist Church v. Cogswell,
On appeal, this court reversed.
“In the opinion it was stated the facts disclose ‘the property was used more or less mediately or remotely for educational purposes. But none of it was used exclusively, directly, and immediately for such purposes.’ [Citation omitted.] A careful reading of the opinion will indicate the terms ‘directly’ and ‘immediately’ used in the opinion were explanatory and designed to be descriptive of the factual situation. It is clear in the opinion the rule applied by the court to exempt property from taxation was that it must be used ‘exclusively for educational purposes.’ ” 205 Kan. at 855 .
The Cogswell court further stated:
“Where prior decisions have used the words ‘directly and ‘immediately,’ it cannot be said that their application was necessarily required by the constitution as a basis for the decision. The words were explanatory or descriptive of the facts rather than controlling in the decision-making process, and their use must be considered in the light of the facts in the particular case in which they appear. To interpret ‘exclusively’ to mean only that which is also ‘direcdy’ and ‘immediately used for a tax exempt purpose is unrealistic and would in substance add a new dimension to Article 11, Section 1 of the Kansas constitution limiting die tax exemption guaranteed by die constitution.”205 Kan. at 858 .
See also State v. Young,
That is exactly what has occurred with the language “strikingly similar.” In using those words, the court in Damewood was merely describing the fact that the circumstances of that case showed a high level of similarity — higher than the standard of similarity required for admission. In seizing upon those words without recognizing that they were never intended to establish a higher standard of similarity than that applied by the court in Damewood, our courts erred in measuring the admissibility of the evidence at issue against those words, and they ended up morphing into the standard. This is not how precedent or legal principals should develop, because then the law changes without a deliberate, conscious decision as to whether it should be changed. In none of these cases was there a fully argued and deliberate, conscious, reasoned decision to abandon the original similarity standard in favor of the higher standard imposed by requiring “striking similarity” or “signature act.” We should not allow our precedent to develop in this fashion.
In summary, I agree with the majority that there has been confusion among Kansas appellate decisions in these cases. However, I disagree that this has been because the similarity standard was too low, or, as the majority states, did not have enough “meat on its bones” to allow courts to reliably draw the line between propensity evidence and plan evidence. Instead, the confusion is the result of the erroneous evolution of a higher standard of admissibility that coexisted with the original standard. Hence, it is not surprising that decisions on the admissibility of plan evidence are impossible to reconcile.
Interestingly, the similarity standard for admissibility of prior crimes evidence to show identity has not warped over the years and is being applied with little difficulty. This shows the similarity standard is not unworkable, it just needs to be uniform. On the need for uniformity, I agree with the majority. But I see no reason to abandon the original standard set out in Damewood. Accordingly, I would hold that prior crimes evidence is relevant to prove plan where the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts.