Opinion
No. 107,617.
2013-08-30
STATE of Kansas, Appellee, v. Steven REED, Appellant.
Appeal from Wyandotte District Court; John J. McNally, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury found Steven Reed guilty of three counts of raping his 11–year–old daughter. Reed appeals, arguing that the district court violated his right to a fair trial by failing to give a limiting instruction as to certain evidence which he claims was K.S.A. 60–455 evidence. Because we find the district court did not err in failing to give a limiting instruction on such evidence, we affirm.
Factual and Procedural History
On October 29, 2010, Reed was charged with three counts of raping his 11–year–old daughter (T.M.) between March 1, 2007, and September 30, 2010. In April 2011, the State added two charges of aggravated indecent liberties.
In October 2010, T.M.'s mother discovered her daughter was pregnant. T.M. and her mother filed a police report. T.M. terminated the pregnancy, and a DNA test showed a 99.999% probability that the baby's father was Reed.
T.M. would regularly spend time with Reed at his house each weekend. T.M. testified that Reed raped her in each house he lived, referred to in the record as the apartment, the house on 32nd, and the Victory house. T.M. said that Reed would touch her breasts with his hands and put his penis inside her vagina.
During the trial, the State played a recording of Reed's interview with the police to the jury; however, the parties did not provide the recording or a transcript of the recording in the record on appeal. T.M.'s mother and the social worker who interviewed T.M. regarding the sexual encounters both testified to what T.M. had told them about how her father had touched her. Reed's attorney never objected to any of these statements as containing K.S.A. 60–455 evidence of prior bad acts.
Reed testified and admitted that his penis had touched T.M.'s vagina on one occasion and that he had ejaculated at least 6 or 7 times during what he referred to as “sexual contacts.” He also admitted that the last time T.M. came over to his house was the last time he had sexual contact with her. At the conclusion of the State's evidence, the district court granted Reed's motion to dismiss the two counts of aggravated indecent liberties, and neither party objected to the given jury instructions. The jury convicted Reed of three counts of rape.
Reed timely appeals.
Did the District Court Err in Failing to Give a Limiting Instruction Regarding K.S.A. 60–455 Evidence?
Reed argues that the district court violated his right to a fair trial by failing to give a limiting instruction as to the introduction of K.S.A. 60–455 evidence. Reed contends that the evidence presented by the State to support the subsequently dismissed charges of aggravated indecent liberties qualified as K.S.A. 60–455 evidence. Reed specifically challenges the evidence that he touched T.M.'s breasts, he penetrated her vagina, and he had additional sexual contacts resulting in ejaculation. In response, the State argues that Reed did not properly preserve this argument for review and that the evidence identified as at issue by Reed was not K.S.A. 60–455 evidence. Since answering these questions involves questions of law, our review is unlimited. State v. Prine, 297 Kan. 460, 474, 303 P.3d 662 (2013) (appellate review of the interpretation of the applicable statutes is de novo); accord State v. Breeden, 297 Kan. –––– (No. 104,475, 2013 WL 2712181, at *4 [2013] ) (legal appropriateness of an instruction is a question of law with unlimited appellate review).
Our Supreme Court has examined the question of whether the failure to object to the admission of evidence of the defendant committing uncharged crimes against the same victim prohibits the defendant from claiming on appeal that the district court erred in failing to give an unrequested limiting instruction pursuant to K.S.A. 60–455. Breeden, 2013 WL 2712181, at *12. Our Supreme Court stated it would be “frivolous” to require a party to object to admissible evidence in order to preserve a request for a limiting instruction under K.S.A. 60–455 and ultimately held that “a failure to object to the admission of the evidence does not waive the right to raise an issue on appeal regarding whether the failure to give a limiting instruction was clearly erroneous.” 2013 WL 2712181, at *12. Therefore, we will consider Reed's argument that a limiting instruction was required.
The State argues a limiting instruction is not required because the challenged evidence does not fall under K.S.A. 60–455 as there was not clear evidence that the additional instances of touching, penetration, or ejaculation occurred separately from the three charged rapes. See K.S.A.2010 Supp. 60–455(a) (person must commit another crime or civil wrong on another specified occasion ). If the challenged incidents did not occur separately, then the State is correct as the evidence is relevant and probative and is admissible without regard to K.S.A. 60–455. See K.S.A. 60–401(b) (evidence is relevant if it has any tendency in reason to prove any material fact); State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009) (Under K.S.A. 60–407[f], all relevant evidence is admissible unless statutorily prohibited.). However, even if we assume these additional instances of touching, penetration, and ejaculation were separate acts from the charged rapes, they would still be admissible under K.S.A.2010 Supp. 60–455(d).
K.S.A.2010 Supp. 60–455(d) states: “[I]n a criminal action in which the defendant is accused of a sex offense ..., evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.” The first requirement of subsection (d), that the defendant be accused of a sex offense, is satisfied because Reed was charged with three counts of rape and two counts of aggravated indecent liberties with a child. The second requirement of subsection (d) requires that there was “evidence of the defendant's commission of another act or offense of sexual misconduct,” as defined in K.S.A.2010 Supp. 60–455(g). K.S.A.2010 Supp. 60–455(g)(l) includes in its definition any act described in article 35 of chapter 21 of the Kansas Statutes Annotated prior to the repeal and recodification of the criminal code in 2011. Due to T.M.'s age, the penetration of T.M.'s vagina qualifies as rape under K.S.A.2010 Supp. 21–3502(a)(2). The touching of T.M's breasts and the sexual conduct resulting in ejaculation qualifies as aggravated indecent liberties with a child under K.S.A.2010 Supp. 21–3504(a)(3)(A). Thus, if these incidents occurred separately from the charged rapes, then both elements of K.S.A.2010 Supp. 60–455(d) were satisfied and the evidence would have been admissible at trial as such evidence was clearly relevant and probative.
As a result, “[i]n a sex crime prosecution governed by new subsection (d), there remains no reason to tell jurors to ignore the bearing prior sexual misconduct may have on the defendant's propensity to commit the charged crime or crimes. If other sex crimes or civil wrongs are relevant, i.e., material and probative of propensity, the jury may consider them for that.” Prine, 297 Kan. at 479. Because the challenged evidence would have been admissible under K.S.A.2010 Supp. 60–455(d), or simply as relevant and probative evidence, the district court did not err by failing to provide the jury with a limiting instruction.
Reed's convictions are affirmed.