Opinion
No. 109,726.
2014-11-26
STATE of Kansas, Appellee, v. Kenneth BILLINGS, Appellant.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.Korey A. Kaul, 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; Robert P. Burns, Judge.
Korey A. Kaul, 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 STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
A Wyandotte County District Court jury convicted Defendant Kenneth Billings of committing multiple sex crimes against his step-granddaughter, including off-grid offenses of rape and aggravated indecent liberties with a child. On appeal, Billings raises three issues: (1) the denial of his request for a psychological examination of the victim; (2) the district court's bar of a generic question to the investigating police officer about the veracity of children; and (3) the wording of jury instructions on multiple acts. We find no error in those respects and affirm the convictions.
Given the issues, we see no point in recounting the details of the abuse Billings inflicted on T.G. As she was growing up, T.G. and her mother lived with T.G.'s maternal grandmother and Billings from time to time. Billings and T.G.'s grandmother were married. The trial evidence showed that Billings began sexually abusing T.G. when she was in elementary school. He continued to do so periodically until T.G. moved in with her father shortly after she turned 15 years old. T.G. didn't report the abuse until then.
Following a police investigation, the prosecutor charged Billings with four counts of aggravated indecent liberties with a child, an off-grid felony; two counts of rape, an off-grid felony; two counts of aggravated criminal sodomy, an off-grid felony; four counts of aggravated indecent liberties with a child, a severity level 3 person felony; and two counts of indecent liberties with a child, a severity level 5 person felony. In August 2012, the jury convicted Billings on 12 of the 14 counts; it deadlocked on the aggravated criminal sodomy charges. The district court imposed life sentences without parole eligibility for 40 years on each of the rape convictions and ordered Billings to serve those consecutively. The district court imposed various sentences on the other offenses to be served concurrently to the rape convictions. Billings has timely appealed.
Billings first contends the district court erred in denying his pretrial request for a psychological examination of T.G. The standards for getting such an evaluation are rigorous, as they should be. State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010) (“[A] defendant is entitled to a psychological examination of a complaining witness on a showing of compelling circumstances....”). The Kansas courts have discussed psychological examinations specifically with respect to the complaining witnesses in sex crime prosecutions. The Kansas Supreme Court has developed half a dozen criteria to guide district courts in making the call on ordering an examination. 291 Kan. at 581; State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979). The criteria consider the witness' demonstrable “mental instability” and “lack of veracity,” whether the witness has lodged false allegations of sexual abuse against other persons, and indicators the witness may have an unusual understanding of “what it means to tell the truth.” Berriozabal, 291 Kan. at 581. The district court may consider evidence corroborating the victim's accusations against the defendant. If the defense request looks to be a “fishing expedition,” the district court may weigh that against allowing the examination. 291 Kan. at 581. In Berriozabal, the court also cautioned that an “allegation of mental instability does not support the ordering of a psychological evaluation absent some real evidence.” 291 Kan. at 581.
The decision to permit or deny a psychological evaluation rests in the district court's sound discretion. Gregg, 226 Kan. at 489. A district court exceeds that discretion only if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
On appeal, Billings argues that forensic evidence called into question T.G.'s credibility, warranting a psychological examination. During the investigation, T.G. said that Billings would sometimes ejaculate on a carpet in the living room during the sexual assaults of her. A forensic examination of the carpet revealed biological material in a number of places, but only one spot contained identifiable semen. That sample was insufficient for a DNA comparison. Billings advances no other reason to justify a psychological examination of T.G.
While the forensic evidence (or lack of it) might be ammunition for cross-examination of T.G. at trial, we would not say it warrants a psychological examination. Or more to the point, perhaps, we cannot conclude the district court abused its discretion in denying the examination on that basis. See State v. Eddy, 299 Kan. 29, 34, 321 P.3d 12 (2014) (“Appellate courts are typically loathe to find an abuse of discretion when a district court refuses to order a psychological examination of a young sex abuse victim, unless the circumstances are extraordinary.”). Here, there was nothing to suggest T.G. suffered from some psychological condition that impaired her ability to perceive or recall events or made her prone to telling falsehoods. Nor had she made false accusations of sexual misconduct against other persons. And the record indicates she understood the significance of an oath to tell the truth. All of those considerations support the district court's ruling. The countervailing circumstances don't come close to being persuasive, let alone compelling or extraordinary.
To find for Billings on this point, we would have to hold that a district court should order a psychological examination of a putative victim of a sex crime if there were some discrepancy between the victim's account of the offense and an aspect of the forensic evidence. We are not prepared to do so. See State v. Rojas–Marceleno, 295 Kan. 525, 532–33, 285 P.3d 361 (2012).
Billings next contends the district court improperly sustained an objection to a question regarding the truthfulness of children as witnesses that his lawyer posed to the lead police officer investigating T.G.'s allegations. In relevant part, Billings' trial lawyer asked the officer: “I'm not talking about this case specifically, but you know that children are not always truthful?” The prosecutor interposed a general objection without stating a specific reason why the question was improper. The district court sustained the objection.
A district court's decision to admit or exclude evidence will be reviewed either as a matter of law without deference if the ruling is based on materiality or as an abuse of discretion if it is based on probativeness. State v. Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d 680 (2013); see also Berriozabal, 291 Kan. at 586 (An appellate court reviews de novo a contested determination of materiality.); Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002) (A decision to admit or exclude a particular piece of evidence that is otherwise material largely rests in the trial court's sound discretion.). The Kansas Supreme Court succinctly laid out the general rule this way:
“When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. Evidence is relevant if it has any tendency in reason to prove any material fact. Accordingly, there are two elements of relevancy: a materiality element and a probative element. Materiality addresses whether a fact has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency in reason to prove a fact. An appellate court reviews a district court's determination that evidence is probative for abuse of discretion whereas the district court's decision regarding materiality is reviewed de novo.” Boleyn, 297 Kan. 610, Syl. ¶ 1.
We don't know exactly why the district court prohibited the question, since the prosecutor stated no specific reason in lodging the objection and the court was equally unexpressive in sustaining it. In analyzing the issue, we first acknowledge the obviousT.G.'s credibility was not only relevant and material but a focal point in the case for both sides. The question, however, really doesn't have anything to do with T.G. By its very terms, the question excludes the case before the jurors (and, thus, T.G.) to ask about children as a group. The credibility of children in general is not a disputed issue in this case, so the question would seem to lack materiality.
In addition, however, the question isn't in any way probative of T.G.'s credibility. We may presume that the honest answer to a question that in effect asks whether some members of a generally defined group or class are sometimes untruthful must be in the affirmative. That is, do some lawyers sometimes lie? Or does an occasional senior citizen fib? Of course, they do. But is that probative of whether a particular lawyer or senior is telling the truth as a witness in a specific case? Just as certainly, it is not. Just because some people in a broad class defined by age, profession, or a similar characteristic may lie from time to time sheds no light on whether a member of that class is doing so on a specific occasion. Accordingly, the question was not probative.
The district court properly sustained the objection. The question, as posed, was neither material to nor probative of T.G.'s credibility.
For his final issue, Billings contends the jury instructions on multiple acts were clearly erroneous and deprived him of a fair trial by effectively directing the jurors to convict him. We disagree.
T.G. described numerous sexual assaults by Billings. The jurors had to agree on a particular incident corresponding to each of the counts charged against Billings to reach a legally proper unanimous verdict on that count. State v. Soto, 299 Kan. 102, Syl. ¶ 3, 322 P.3d 334 (2014). The district court gave a separate multiple acts instruction for each crime charged, e.g., rape, aggravated indecent liberties with a child. For each of those instructions, the district court used the following language that for all practical purposes tracks PIK Crim. 4th 68.100: “The State claims distinct multiple acts which could separately constitute the crime of [particular offense stated]. In order for the defendant to be found guilty, you must unanimously agree upon the same underlying act for each count.”
Billings fastens onto the word “could” in the first sentence of the instructions and contends the language might cause jurors to conclude the acts do, in fact, establish the stated offenses. In turn, according to Billings, the instructions amount to a judicial direction to the jurors to convict. First, Billings linguistically overtaxes the wording of the instructions. The operative phrase is “could ... constitute.” In that context, “could,” as the subjunctive form of “can,” reasonably would be understood to convey possibility rather than certainty. That is, the acts “may constitute” the crimes. See Merriam–Webster's Collegiate Dictionary 178 (11th ed.2004) (“can” defined as denoting possibility and used interchangeably with “may”). Billings suggests an alternative meaning conveying “possession of a specified capability or skill.” The American Heritage College Dictionary 209 (4th ed.2004). The dictionary gives this example of the usage: “I can sing.”
Billings' approach would require the jurors to read the instructions as saying the multiple acts separately have “the capability or skill” to constitute the specified crime. That is an odd, unidiomatic way of expressing an idea. It amounts to a fractured and unlikely rendition of the instructions. We join with another panel of our court in rejecting that as a plausible interpretation of the instructions. State v. Anderson, No. 108,415, 2013 WL 6331600, at *6–7 (Kan.App.2013) (unpublished opinion).
The argument, however, also fails to take account of other language in the multiple acts instructions that undercut the effect Billings would impute. The instructions are introduced with the phrase “[t]he State claims....” What the instructions actually tell the jurors is the prosecution contends or argues—claims—these multiple acts violate the law, but you, as jurors, have to agree on a particular act to convict. The instruction doesn't tell the jurors the prosecution's claimed acts are, in fact, true or that they establish the charged crimes.
Even if there were some remote possibility the instructions could be construed that way in isolation, the burden of proof and elements instructions the district court provided the jurors correctly guided them otherwise. Each of the elements instructions informed the jury that “[t]o establish this charge ... each of the following claims must be proved,” and it then listed the statutory requirements of the crime and proof of jurisdiction. See, e.g., PIK Crim. 4th 55.030 (elements instruction for rape). The burden of proof instruction given the jurors told them to find Billings not guilty if they had a reasonable doubt about “any of the claims required to be proved by the State....” See PIK Crim. 4th 51.010.
Read together and applied collectively, those instructions required the jurors to agree on specific acts the prosecution claimed to be crimes and to then test the circumstances of those claimed acts against the factual requirements (or claims) set out in the elements instructions by the standard for proving claims set out in the burden of proof instruction. The three instructions correctly guided the jurors in their task. Construed as integrated lessons in a legal primer, they neither misstated the law nor misled the jurors in applying that law to the evidence to reach a verdict. See State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009); State v. McKissack, 283 Kan. 721, 732, 156 P.3d 1249 (2007).
Having examined all of the issues Billings has raised, we find the district court did not err.
Affirmed.