Opinion
No. 105,777.
2012-08-3
Tyler C. PENN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Jean K. Gilles Phillips and Alice White, of Paul E. Wilson Project for Innocence and Post–Conviction Remedies, University of Kansas School of Law, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Jean K. Gilles Phillips and Alice White, of Paul E. Wilson Project for Innocence and Post–Conviction Remedies, University of Kansas School of Law, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PIERRON, J.
Tyler C. Perm appeals from the district court's denial of his K.S .A. 60–1507 motion without granting him an evidentiary hearing. For the reasons set out below, we reverse his convictions.
Penn was charged with three acts of rape under the alternative theories of “force or fear” or “incapacity to consent,” for a total of six counts. Rape by force or fear is sexual intercourse without consent when the victim was overcome by force or fear. K.S.A. 21–3502(a)(1)(A). Rape due to incapacity to consent is sexual intercourse without consent because the victim was incapable of consent due to mental deficiency or disease known by or reasonably apparent to the offender. K.S.A. 21–3502(a)(1)(C).
During the first day of trial, the State turned over an exculpatory e-mail to Penn's trial counsel, John Kerns. The e-mail was from a social worker to the prosecutor, and brought to light the victim's (N.R.) propensity to lie, manipulate, falsely accuse, and use her “slow and needy” appearance to her advantage. The district court declared a mistrial so Kerns would have ample time to investigate.
The record reveals the defense strategy executed by Kerns at the second trial. Penn's defense to the “force or fear” counts was consent, and his defense to the “incapacity to consent” counts was that N.R. was capable of consent and even if she was incapable, her mental deficiency was not known by or reasonably apparent to Penn.
The district court gave six separate rape instructions, one for each rape count. During deliberations, the court told the jury to enter a verdict on each rape count, but that it would only accept one verdict for each alleged act. The jury found Penn guilty on all six rape counts.
At sentencing, the State asked to proceed under the “incapacity to consent” counts. The district court responded by adjudging Penn guilty of those counts and dismissing the “force or fear” counts. The court sentenced Penn to a controlling term of 166 months' imprisonment, running the three “incapacity to consent” sentences concurrently. No sentences were imposed on the “force or fear” counts, but the counts are listed in the journal entry, along with notes on the jury's guilty verdicts and the State's election to dismiss the counts.
Rachel Pickering represented Penn on direct appeal. Pickering argued (1) the district court erred in excluding evidence of N.R.'s dishonesty, (2) there was prosecutorial misconduct based on questioning violative of an order in limine, and (3) the district court erred in assessing attorney fees without considering his financial resources or the burden payment would impose. This court affirmed Penn's convictions in State v. Penn, 41 Kan.App.2d 251, 201 P.3d 752,rev. denied 289 Kan. 1284 (2009), finding that the character evidence was properly excluded and the order in limine violation did not substantially prejudice Penn.
Pickering filed a petition for review, which was denied on November 5, 2009. Penn filed a timely K.S.A. 60–1507 motion, alleging ineffective assistance of trial and appellate counsel. The district court denied his motion after a nonevidentiary hearing, and Penn timely appeals.
Penn argues his trial counsel was ineffective for failing to investigate and call witnesses with knowledge of N.R.'s dishonesty and for failing to request a psychological evaluation of N.R. He also argues his appellate counsel was ineffective for failing to raise the issue of insufficient evidence on direct appeal.
A district court must hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motion and files and records of the case conclusively show that the movant is not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) and (j) (2011 Kan. Ct. R. Annot. 259). When the district court denies relief under K.S.A. 60–1507 based solely (upon counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits. Thus, appellate review is de novo. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Penn first argues that Pickering was ineffective because she did not raise the issue of insufficient evidence to support his convictions for rape due to incapacity to consent. We must determine whether Pickering's performance was deficient and, if so, whether Penn was prejudiced by her deficient performance. In other words, was her decision not to challenge the sufficiency of the evidence objectively unreasonable? And if it was, is there a reasonable probability that a sufficiency of the evidence challenge would have been successful on appeal? See State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004).
At trial, the following evidence was presented on the “incapacity to consent” rape counts. The rest of the trial evidence, which supports the “force or fear” rape counts, is summarized in Penn, 41 Kan.App.2d at 252–60.
Jan Knabe, a school counselor, testified that on April 18, 2006, N.R., a female student, reported having nonconsensual sex with Penn, a male classmate. The first thing N.R. said was, “[Can] an 18–year–old ... get into trouble for having sex with a 17–year–old[?]” At the time of the alleged rape, N.R. was taking both regular and special education classes. She had speech and learning difficulties, some hearing loss, and difficulty communicating her ideas. “[N.R.] thought she was going to hang out with [Penn], but he made her have sex with him instead. She said she was worried, he hadn't worn a condom. She didn't know if she might become pregnant.”
Stephanie Hosmer, the responding officer, testified that she could tell N.R. was mentally challenged because of her difficulty in choosing and pronouncing words.
N.R. testified she has lived in foster care since age 13. She had been placed in Wichita with foster mother Ruth Huey at age 17, and after that she lived in Garden City, in Kismet with foster mother Laura Ball, and finally in Wichita with her sister. When asked if she could live on her own, she said, “At this time, not at the moment. But when I have enough money to save up, I can live on my own.” She testified she had no disabilities but was taking medication for depression and moods. At the time of the alleged rape, she had been taking her medications as directed. She explained that when she does not take them, she “ha[s] moods, go[es] haywire, go[es] mad” over little things. She cannot pronounce words correctly and sees a speech therapist. She mainly struggles with Ls and Rs.
N.R. further testified that she took special education classes in grade school and middle school, and took half-regular and half-special education classes in high school. Her high school GPA was 2.89 and her class rank was 149 of 360, but she had Fs in science, algebra, and history. She was on the high school softball team, a member of the chess club, and played the violin. Penn was in her graphic arts and U.S. History classes. He did not know she was a special education student. He flirted with and showed off in front of her at school and asked for her phone number in front of one of his friends. She gave it to him.
N.R. also testified about the alleged rape. When Penn asked her if she was “comfortable seeing and doing it with [him],” she shook her head. N.R. said that Penn pulled out his “dick,” grabbed her hand, tried to make her touch it, and after pulling away once she did touch it. He tried to put his head between her legs “go down [on her] with his mouth,” but she stopped him by closing her legs quickly. He stuck his two fingers “up [her] vagina,” pulled them out, then “put his dick in [her] vagina” and “pull[ed] it out and in” two separate times. He wanted her to “suck his dick,” but she refused. Finally, he “pull[ed] out and ejaculate[d] all over [her] stomach.” She said she told Penn “no” six or seven times and to “stop” three or four times, but she “obeyed” because she did not want to get hurt or killed. When asked at trial, N.R. said she knew what it meant to be a virgin and thought “doing it” meant “having sex.” She also said she was disappointed in herself because people had told her that she had a lot of things going for herself and should not screw up now.
Ruth Huey, N.R.'s foster mother from February to July 2006, testified that N.R. had suffered from hallucinations, but they had been managed with medication. She supervised N.R.'s medication, and N.R. was on her medication on the day of the alleged rape. Huey thought N.R. was on medication for schizophrenia. N.R. had an individual education plan because she was considered lower functioning—when someone would explain something, she would have a hard time understanding what was supposed to be done. Speech was her only physical disability. It took Huey at least 1 month to develop an opinion that N.R. had the maturity level of a 13– or 14–year–old. At first she thought N.R. just had a speech impediment, but then she learned through observation that N.R. was very impressionable—she wanted boys to like her but did not know how to achieve that. She was flirty around older men who visited Huey's house, wanting them to pay attention to her.
Scott Wiswell, the detective who was present for Penn's physical examination, testified that he sought background information about N .R. from Huey. She told him that N.R. was very slow, very naive, and very trusting of people, but had never been diagnosed as mentally retarded. Huey also reported that N.R. was on her medications, which took care of her emotional problems.
Jennifer Dyck, the nurse who performed N.R.'s physical examination, testified about the medications N.R, was taking at the time of the alleged rape. “Ability” is an antipsychotic drug, which can be used to treat bipolar disorder and schizophrenia. “Trileptal” is an anticonvulsant drug, which can be used to treat seizure disorder and as a mood stabilizer. “Zoloft” is an antidepressant, which can be used to treat depression and posttraumatic stress disorder. “Seroquel” is an antipsychotic drug, which can be used to treat sleep disorder. She indicated that N.R. spoke “with a speech impediment and in broken sentences, not complete and fluid as you or I might speak.” The medical records release form was signed by N.R. If Dyck believed that N.R. did not have the capacity to sign, she would have had Huey sign the form.
Finally, Penn testified that he first met N.R. in Graphic Arts class a couple of weeks before the alleged rape. At first he “thought she just talked different,” but when he asked if she had an accent, she told him about her speech impediment. N.R. did not tell him she was taking special education classes; both of the classes they had together were not special education classes. He had seen N.R. in a classroom setting, but he had never seen her get called on. Penn maintained that the sex with N.R. was consensual.
We can resolve the issue of Pickering's effectiveness by determining whether a sufficiency of the evidence challenge would have succeeded on appeal. Penn was convicted of, and sentenced for, rape under K.S.A. 21–3502(a)(l)(C): sexual intercourse with N.R. when she was incapable of giving consent because of her mental deficiency. “[T]he standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
“The test for consent under [K.S.A. 21–3502(a)(1)(C) ] is whether the individual understands the nature and consequences of the proposed act. [Citation omitted.] Therefore, in order to preserve the constitutionality of the provision, the definition of ‘nature and consequences' must be sufficiently clear to permit the person proposing sex, and the jury, to discern whether the individual can give legal consent. If an individual can comprehend the sexual nature of the proposed act, can understand he or she has the right to refuse to participate, and possesses a rudimentary grasp of the possible results arising from participation in the act, he or she has the capacity to consent. Anything more open-ended would become impermissibly vague.” State v. Ice, 27 Kan.App.2d 1,4–5, 997 P.2d 737 (2000).
In Ice, the rape victim was a 17–year–old girl with an IQ of 65. When questioned extensively at trial about the depth of her sexual understanding, she was “lucid” and her account was “specific.” 27 Kan.App.2d at 1–2. Her testimony revealed that she (1) told the defendant repeatedly that she did not want to have sex, (2) knew she was being forced to have sex, (3) knew of the risk of pregnancy and AIDS, and (4) could identify specific sexual activities. The Ice court found: “Whether the jury believed or disbelieved [her] claim that [the defendant] forced her to have sex, her testimony shows she understood what was going on quiet well.” 27 Kan.App.2d at 5. The State also presented testimony of a psychiatrist who had examined the victim at the defense's request. He testified that the victim's ability to understand social situations was that of an 8– or 9–year–old and her “ability to understand the consequences of sexual acts was impaired significantly.” 27 Kan.App.2d at 3. The Ice court found his testimony “too vague” and ultimately held that there was insufficient evidence to support a conviction under K.S.A. 21–3502(a)(1)(C). 27 Kan.App.2d at 5, 7.
In State v. Wylie, No. 99,580, 2009 WL 1499159 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1104 (2010), the rape victim was a 27–year–old woman who lived in a facility for adults with disabilities. The only evidence of capacity to consent came from the victim and a caretaker. The victim's testimony revealed that “[h]er understanding of sex and its consequences [was] far from rudimentary”—she knew how men and women have sex, that women can get pregnant, and what “came” meant. 2009 WL 1499159, at *5. The victim also said “no” to sex at first, but she did not resist or fight with the defendant throughout the incident. The caretaker testified that the victim was able to live alone but had “ ‘a very big problem of people taking advantage of her.’ “ 2009 WL 1499159, at *5. The Wylie court found this evidence insufficient to establish the victim was incapable of consenting to sex. 2009 WL 1499159, at *5–6.
In State v. Hampton, No. 94,576, 2007 WL 1175843 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 948 (2007), the rape victim was a 16–year–old girl with an IQ of 64, which equates to the aptitude of a 6– or 7–year–old. The victim's testimony revealed her “rudimentary communication skills” (one-word answers) and “a rudimentary understanding of sex” ( e.g ., “sex” happened “on my private part”), and the case manager testified that the victim “would not have understood the nature of the sexual acts.” 2007 WL 1175843, at *5–6. The one-two punch of this testimony allowed the Hampton court to distinguish Ice and find the evidence sufficient to establish the victim was incapable of consenting to sex. 2007 WL 1175843, at *5–7.
Here, the district court found the evidence was sufficient to permit the jury to conclude that N.R. was incapable of consent. It based its erroneous finding on the testimony of N.R. (trouble understanding questions at trial, inability to live alone, medications, disappointed in herself after rape, speech therapy), counselor Knabe (special education student, difficulty communicating, hearing loss), Officer Hosmer (trouble communicating, appeared mentally challenged), nurse Dyck (medications, slow), and foster mother Huey (very impressionable, functions like 13– or 14–year–old). The problem is none of this evidence speaks to N.R.'s ability to understand the nature and consequences of sex.
At Penn's trial, the State introduced a lot of evidence about N.R .'s impairment level: N.R. had a speech impediment and some hearing loss; she was taking special education classes and various medications for depression and moods; she was impressionable and had the maturity level of a 13– or 14–year–old; and she spoke slowly and in broken sentences. But just because N.R. was impaired does not mean she was incapable of knowingly consenting to sex. See Ice, 27 Kan.App.2d at 5.
This case turns on the evidence of the depth of N.R.'s sexual understanding. Knabe's testimony reveals that N.R. knew the consequences of sex: (1) She worried about Penn not wearing a condom and getting pregnant; (2) foresaw punishment for an adult who had sex with a minor; and (3) predicted people would think she had ruined her life and be disappointed in her. N.R.'s testimony reveals that her understanding of sex was not rudimentary. She explained a variety of sexual acts using the correct terms. It also reveals that she knew of her right to refuse to participate: she shook her head when Penn asked if she would be comfortable having sex with him, she pulled her hand away when he pulled it toward his penis, she closed her legs when he tried to put his head between her legs, and she knew he was forcing her to have sex. The aforementioned evidence shows that N.R. knew the nature and consequences of sex.
Because there is insufficient evidence of N.R.'s incapacity to consent to sex, we must find that appellate counsel was ineffective for failing to raise the claim, and we reverse Penn's rape convictions under K.S.A. 21–3502(a)(1)(C).
The State tried this case in a way that is distinguishable from the prosecutions in Ice and Hampton. In Ice, the State pursued two theories at trial, “force or fear” and “incapacity to consent,” but used one jury instruction, which included the two alternative means of committing rape. Thus, one or more jurors could have convicted on evidence of the victim's incapacity, which was later deemed legally insufficient. In Hampton, the State pursued both theories of guilt at trial but had the district court instruct the jury on the incapacity theory only. Thus, jurors could have only convicted based on evidence of the victim's incapacity, which was later deemed legally sufficient.
Here, the State charged Penn with three acts of rape under the alternative theories, for a total of six counts. It pursued both theories of guilt at trial, and because a jury instruction was used for each count, six guilty verdicts were entered. Thus, Penn's right to a unanimous jury verdict was protected. His convictions based on the insufficient evidence that N.R. was incapable of consent were independent of his convictions based on the sufficient evidence that N.R. was overcome by force or fear. Ultimately, the State had Penn sentenced under the “incapacity to consent” convictions, perhaps based on its flawed belief that the evidence supporting such convictions was stronger than the evidence supporting the “force or fear” convictions.
The district court found that Penn was not prejudiced by Pickering's failure to argue insufficient evidence to support his “incapacity to consent” convictions because even if she had raised the issue and prevailed, Penn's rape convictions would not have been reversed because there was sufficient evidence to support his “force or fear” convictions. This is incorrect. Although Penn was found guilty of three counts of rape by force or fear, he was never convicted of those crimes. Kansas law prevented the district court from entering six rape convictions against him. See State v.. Potts, 281 Kan. 863, 870–71, 135 P.3d 1054 (2006) (“The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prohibit the State from convicting a defendant of multiple crimes for the same wrongful act.”); see also State v. Garza, 290 Kan. 1021, 1035, 236 P.3d 501 (2010) (“ ‘[T]he defendant has been charged in the alternative, [so] he may be convicted of only one offense.’ [Citation omitted.]”). The court dismissed the “force or fear” verdicts under K.S.A. 21–3502(a)(1)(A) and entered three “incapacity to consent” convictions under K.S.A. 21–3502(a)(1)(C).
Because the district court dismissed the “force or fear” verdicts, they were rendered void and cannot be reinstated. See State v. Cribbs, 967 S.W.2d 773, 786–88 (Tenn.1998). The court could not have merged the verdicts into single convictions for each act of rape because doing so would have yielded an alternative means problem. See State v. Wright, 290 Kan. 194, 201–06, 224 P.3d 1159 (2010) (must have sufficient evidence of both alternative means). We reverse the rape convictions due to insufficient evidence, and there are no valid verdicts upon which to enter additional convictions against Penn. This is, under these facts, a very unsatisfactory result, but we must rule as we have because of the legal analysis set out above.
Reversed.