Opinion
No. 105,503.
2012-07-27
STATE of Kansas, Appellee, v. Sean Thomas FINCH, Appellant.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jodi E. Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Jodi E. Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Sean Thomas Finch appeals his convictions at a bench trial for two counts of aggravated indecent liberties with a child 14 to 16 years of age; one count for sexual intercourse and the other count for lewd fondling. Finch argues there was insufficient evidence to support his convictions and also that his sentence of lifetime postrelease supervision under K.S.A. 22–3717(d)(1)(G) violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights prohibition against cruel and unusual punishment.
Finch was previously married to Kim Dodds. Dodds had a child, A.F., from a previous relationship and Finch adopted A.F. Finch and Dodds had a child of their own, D.F. Both A.F. and D.F. are severely mentally challenged. Dodds and Finch divorced.
Finch married Tina Alejos in July 2005. Alejos had four children from previous relationships, C.A., J.C., M.M. and J.M. Shortly after Finch and Alejos were married, Dodds, A.F., and D.F., came to live with them due to the economic struggles of both families. Alejos testified that she and Dodds became best friends. Finch and Alejos lived together until Finch moved out in November 2009. Alejos was seeing other men, and marriage counseling did not work. Alejos filed for divorce from Finch in February 2010.
Alejos testified that in late November 2009, Dodds told her about allegations of sexual contact between Finch and A.F. Both Dodds and Alejos obtained protection from abuse orders against Finch. Alejos questioned M.M. about whether Finch had similar sexual contact with her. M.M. initially told Alejos that nothing had occurred. Later, in March 2010, M.M. told Alejos that Finch had been touching her.
M.M. testified that Finch began touching her when they moved into the apartment on 3rd Street. M.M. was 14 years old at the time. Alejos testified they moved into the apartment on 3rd Street in July 2007. M.M. testified that at first Finch would just touch her breasts with his hands. This happened several times. M.M. said that Finch then began touching her vagina and buttocks. M.M. said that Finch eventually had sexual intercourse with her and it happened more than once, probably five times. M.M. testified that Finch would also have her hold his penis in her hand. She said the sexual contact continued until Finch moved out in November 2009.
M.M. testified the first person she told about the sexual abuse was her boyfriend, Brent Botkin. She and Botkin began dating December 13, 2009, and had been dating for approximately 2 months before she told him about it. Botkin testified M.M. told him about the sexual abuse around Christmas 2009. M.M. said that when the situation with A.F. came out, Alejos asked her if Finch had touched her. She told her no because she was afraid that Finch would hurt Alejos or her family. M.M. eventually disclosed the sexual abuse when she was confronted again by Alejos and Alejos' boyfriend Doug Landon. When M.M. again denied the sexual abuse. Botkin became upset and left the room. M.M. followed Botkin. Botkin told M.M. that she needed to tell everyone about the sexual abuse. M.M. revealed Finch's sexual abuse to her family. Alejos called the police.
Corporal Colleen Stewart of the Topeka Police Department responded to the call. Corporal Stewart testified that M.M. stated she and Finch had sexual encounters between November 2008 and November 2009. M.M. described the first encounter where Finch touched her breasts over her clothes and the last encounter where he tried to take her clothes off, but she was able to stop him. M.M. told Corporal Stewart there were approximately 20 encounters and some of them involved sexual intercourse.
Brenda Henry, a social work specialist for the Kansas Department of Social and Rehabilitation Services (SRS), conducted a “safe talk” interview with M.M. on March 10, 2010. The trial court watched the videotape of interview. The video is not included in the record on appeal.
The State charged Finch with multiple counts involving both A.F. and M.M. Regarding A.F., the State charged Finch with two counts of aggravated indecent liberties with a child (lewd fondling), severity level 4 person felonies in violation of K.S.A. 21–3504(a)(2)(A). Regarding M.M., the State charged Finch with aggravated indecent liberties with a child (sexual intercourse), a severity level 3 person felony, in violation of K.S.A. 21–3504(a)(l); rape, a severity level 1 person felony, in violation of K.S.A. 3502(a)(1)(A); and aggravated indecent liberties with a child (lewd fondling), a severity level 4 person felony, in violation of K.S.A. 21–3504(a)(2)(A).
Finch waived his right to a jury trial and had a bench trial. At the start of the trial, the court considered A.F.'s ability to be a witness because she is mentally challenged. The trial court ruled that due to A.F.'s limited understanding, she was “too limited to be competent to be a witness in this matter.” Later in the trial, the court dismissed the two counts involving A.F.
Finch took the stand in his own defense. He testified that he believed Alejos and Dodds “concocted these stories” because of their maliciousness toward him and because Alejos was divorcing him.
The trial court convicted Finch of both counts of aggravated indecent liberties with a child involving M.M. However, the court acquitted Finch of the rape charge stating there was insufficient evidence of force or fear necessary to support a rape conviction. The court sentenced Finch to a presumptive sentence of 66 months of incarceration on the aggravated indecent liberties (sexual intercourse) conviction and a presumptive sentence of 41 months' incarceration on the aggravated indecent liberties (lewd fondling) conviction. The court ran the sentences consecutively for a total term of 107 months of incarceration. The court also ordered Finch to serve lifetime postrelease supervision. Finch appeals.
First, Finch challenges the sufficiency of the evidence. Our standards of review for this issue are well established. When the sufficiency of the evidence is challenged in a criminal case, the 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. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, an appellate court cannot reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. See State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005). However, if the evidence presented in support of a charge is so incredible and improbable as to defy belief, the evidence is not sufficient to sustain a conviction. State v. Matlock, 233 Kan. 1, 3, 660 P.2d 945 (1983). Furthermore, “[a] conviction of even the gravest offense ‘ “can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom.’ “ “ McCaslin, 291 Kan. at 710 (quoting State v. Drayton, 285 Kan. 689, 711, 175 P.3d 861 [2008] ). “However, the circumstances utilized to infer guilt must be proved; they cannot be inferred or presumed from other circumstances.” State v. Richardson, 289 Kan. 118, Syl. ¶ 5, 209 P.3d 696 (2009).
To prove aggravated indecent liberties (sexual intercourse), the State had to show that Finch engaged in sexual intercourse with MM., who was 14 or more years of age but less than 16 years of age. See K.S.A. 21–3504(a)(l). To prove aggravated indecent liberties (lewd fondling), the State had to show that Finch engaged in nonconsensual lewd fondling or touching of M.M., who was 14 or more years of age but less than 16 years of age, with the intent to arouse or satisfy the sexual desires of Finch or M.M. or both. See K.S.A. 21–3504(a)(2)(A). In arguing that the State failed to establish these elements, Finch focuses on the lack of physical evidence. He argues this case was transformed primarily into a credibility battle.
Finch is substantially correct that there was no physical evidence of crime. For example, there was no physical evidence of sexual trauma or physical abuse. There was no DNA evidence. Hence, as Finch states, the case was largely a credibility contest. To support his insufficiency argument, Finch points to the vagueness of M.M.'s description of the allegations again him. He states there was never any evidence presented that he was physically abusive to the children and school officials testified how he cared for A.F. in her contacts with the school. Finch also points to the inconsistencies of when M.M. actually told Botkin about the sexual abuse before she told her family—namely whether it was 2 months after they started dating, or Christmas 2009, which would have been only 2 weeks. Finch also points out that when MM. talked to police detectives about the allegations, she said she had told her best friend “Sammy” about the allegations 2 weeks before she had told her family. Yet, investigators never spoke with Sammy to confirm this claim.
In effect, Finch asks us to reweigh the evidence and assess credibility. That is not the role of an appellate court. See State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009) (appellate court does not reweigh the evidence, resolve conflicting evidence, or assess the credibility of the witness). A factfinder who has convicted a defendant is presumed to have believed the State's evidence and to have drawn from that evidence all inferences favorable to the State. State v. Aikins, 261 Kan. 346, 392, 932 P.2d 408 (1997).
The trial court stated the critical decision was whether M.M.'s testimony was credible. The court found that is was credible based on her demeanor in court and the safe talk interview. Again, we do not have the videotape of the safe talk interview on appeal. We do not have a complete record. It is Finch's burden to provide a complete record on appeal in support of his position. See State v.. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008) (The burden is on the appellant to designate a record to support a claim of error at the trial court.).
The trial court found corroborating evidence in the fact that M.M. reported the sexual abuse to her boyfriend weeks before it was reported to authorities and also that reporting the abuse to her boyfriend was not triggered by any anger she might have had toward Finch and his treatment of Alejos or Dodds.
Our review of the record reveals that the State presented sufficient evidence to support Finch's aggravated indecent liberties convictions beyond a reasonable doubt. Viewing the evidence in the light most favorable to the State, we are convinced that a rational factfinder could have found Finch guilty beyond a reasonable doubt. For his last argument, Finch claims the imposition of lifetime postrelease supervision is cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The State urges us not to address the issue because it is raised for the first time on appeal. Pursuant to a nearly identical factual and procedural situation in State v. Naputi, 293 Kan. 55, 260 P.3d 86 (2011), we find that the issue is not properly preserved for appeal.
The Naputi court had before it an Eighth Amendment challenge to Naputi's lifetime postrelease supervision sentence after convictions of seven counts of aggravated indecent liberties with a child under age 14. Naputi had briefly addressed the issue in his motion for departure, but the Naputi court still refused to address the issue because it was not sufficiently raised in the trial court. Here, there is no evidence the constitutionality of the lifetime postrelease supervision was ever addressed below. The Naputi court held:
“We have repeatedly stated that the issue of cruel and/or unusual punishment will not be reviewed for the first time on appeal because it requires the district court's findings upon the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). State v. Garza, 290 Kan. 1021, 1033, 236 P.3d 501 (2010); State v. Easterling, 289 Kan. 470, 486, 213 P.3d 418 (2009); State v. Thomas, 288 Kan. 157, 160–61, 199 P.3d 1265 (2009); State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008). Granted, in State v. Seward, 289 Kan. 715, 720–21, 217 P.3d 443 (2009) (filed 3 months after the briefs in this case but before oral argument), we faulted both the district court and the defendant for failing to make an adequate record for review, and we remanded to the district court to apply the Freeman factors. 289 Kan. at 722. However, we cautioned that such an outcome was an exceptional situation. 289 Kan. at 721. Central to that decision was the finding that the defendant had adequately raised the issue before the district court.
“Here, Naputi made a one-sentence argument in his motion for departure that ‘the “one size fits all” sentencing mandate ... is unconstitutional in that it amounts to punishment that is cruel and unusual.’ Trial counsel argued the issue with respect to the general sentencing provisions of Jessica's Law and made no mention of lifetime postrelease supervision. Accordingly, we cannot fault the district court for failing to make adequate findings on the constitutionality of lifetime postrelease supervision when that issue was never presented to the sentencing court. Therefore, we decline to consider the issue for the first time on appeal.” 293 Kan. at 67–68.
Based on Naputi, Finch's Eighth Amendment challenge was not preserved for appeal.
Affirmed.