Opinion
No. 107,433.
2013-02-8
STATE of Kansas, Appellee, v. Lora J. GAY, Appellant.
Appeal from Marion District Court; Michael F. Powers, Judge. Barry Albin, of Dwight, for appellant. Andrew D. Bauch, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Appeal from Marion District Court; Michael F. Powers, Judge.
Barry Albin, of Dwight, for appellant. Andrew D. Bauch, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Defendant Lora J. Gay appeals from the decision of a Marion County jury convicting her of multiple felony charges for her participation, along with two men, in the sexual assault of a 14–year–old girl. Gay raises an array of issues on appeal. None of them warrants reversal of any of the convictions. We, therefore, affirm.
Facts and Procedural History
On June 26, 2010, M.B., the victim of the assault, began working for Terry Bowen pulling plaster and doing other tasks to assist in the interior wall construction of two buildings. Bowen was a distant relative of her mother's boyfriend. Two days later, M.B. went with Bowen to his house for a lunch break along with Gay and Kenneth Frederick. M.B. was sitting on the couch watching television when she noticed Bowen locking the front door and closing the window blinds. According to M.B., Gay, Bowen, and Frederick grabbed her, carried her into a bedroom, and threw her on the bed. Gay and Frederick held M.B. down while Bowen stood in front of her and took off his pants and underwear. He then stripped M.B. from the waist down and raped her. M.B. testified that Bowen and Frederick switched places. Frederick then raped her. The two then switched places again, and Bowen performed cunnilingus on M.B. Throughout the assault, Gay pinned M.B.'s arms down. Gay also called M.B. names and told her to stop screaming. When M.B. didn't quiet down, Gay struck her in the head.
The assault stopped when they heard knocking at the front door. Gay told everyone to get dressed quickly and to leave the bedroom. M.B. briefly returned to the couch and then opened the front door where Jimmie Thouvenell, her mother's boyfriend, was waiting. The others had gone into another room. Frederick summoned M.B. and told her they would kill her if she told anyone what had happened. Gay said they would come after M.B. again but she wouldn't know where or when. M.B. told the jury she took the threats seriously and feared for her own safety and that of her family.
Thouvenell testified that he thought it odd that Bowen had the shades closed during the day. After getting no response when he knocked on the door, Thouvenell heard movement in the house, so he tried the door and found it locked. He then pounded on the door and waited until M.B. opened it. Thouvenell said he saw Bowen, Gay, and Frederick in another room. He told M.B. they needed to go. As they were leaving, Thouvenell noticed that M.B.'s pants were wet. He asked what happened, and she said she had an accident.
Before then M.B. was happy and outgoing, according to Thouvenell. She became withdrawn and much quieter, regularly and uncharacteristically retreating to her room for long periods. Thouvenell began to suspect something had happened to M.B. while she was working for Bowen. But M.B. said nothing. M.B. later confided in Thouvenell's son, and Thouvenell and M.B.'s mother learned about the attack. M.B.'s mother took her to the local police.
On July 13, M.B. told Peabody Police Chief Bruce Burke what Bowen, Frederick, and Gay had done. He arranged for M.B. to undergo a sexual assault examination at a Wichita hospital 3 days later. The State filed criminal charges against Gay, Bowen, and Frederick in Marion County.
In late June 2011, Gay was tried together with Bowen and Frederick. The State presented audiotapes of law enforcement interrogations of Gay and Frederick. None of the defendants testified, and Gay offered no evidence. The jury convicted Gay of two counts of rape, one count of aggravated criminal sodomy, one count of aggravated kidnapping, and one count of criminal threat. The jury acquitted Gay of misdemeanor battery. On December 11, 2011, the district court sentenced Gay to a controlling term of 310 months in prison. Gay has timely appealed.
Legal Analysis
We take up the issues essentially as Gay has presented them, supplementing the facts as necessary.
Evidence admitted under K.S.A.2010 Supp. 60–455 as to Bowen
First, Gay argues that the State's introduction of Bowen's convictions under K.S.A.2010 Supp. 60–455 unfairly prejudiced her in the joint trial of the three defendants. She concedes the evidence, entailing two convictions for sex crimes against minors, was properly admitted as to Bowen. At a pretrial hearing on the consolidation of the cases against the defendants for trial, Gay personally favored a single trial, apparently contrary to the advice of her lawyer. Gay's lawyer examined her on the record about the risks of a joint trial, including the possible admission of Bowen's past crimes. Gay told the district court she wanted a consolidated trial notwithstanding the risks. To that extent, the point on appeal amounts to invited error, and we decline to consider it for that reason. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011); State v. Smith, 232 Kan. 128, Syl. ¶ 2, 652 P.2d 703 (1982) (“Where a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.”).
Gay also suggests that during the trial, the district court failed to inform the jurors that Bowen's crimes could only be considered as evidence against him and not the other defendants. The record, however, shows that immediately after the other crimes evidence had been admitted, the district court informed the jurors how it should be viewed as to Bowen and specifically told them: “I must also strongly remind you are not to consider Mr. Bowen's previous convictions when determining the guilt or innocence of Ms. Gay or Mr. Frederick.” In the jury instructions given at the close of the case, the district court repeated that admonition in one instruction and in a separate instruction stated that “any evidence which was limited to Terry Bowen should not be considered by you as to any other defendant.” The district court adequately described and limited the use of the other crimes evidence. Gay's claim is unavailing.
Prosecutor's opening statement
Gay next argues that during opening statements, the prosecutor improperly commented on Bowen's assertion of his right to remain silent while being questioned by law enforcement officers. The State violates a defendant's constitutional rights with that sort of evidence or argument. See Doyle v. Ohio, 426 U.S. 610, 617–19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (prosecutor violates defendant's right to due process by eliciting evidence defendant chose to remain silent after law enforcement officers had provided Miranda warnings); State v. Parks, 294 Kan. 785, 793–94, 280 P.3d 766 (2012) (outlining nature of a Doyle violation). Even if we presume Gay could assert a point on appeal based on the violation of Bowen's rights, she fails here.
Gay has not included the opening statement in the record on appeal. We cannot, therefore, review the precise remarks of the prosecutor or place them in the context of the overall address to the jury. The appellant has an obligation to furnish a record permitting adequate review of his or her arguments. State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). That hasn't happened. In short, we simply cannot assess whether there was a violation at all. So Gay's argument fails.
Prosecutor's violation of order in limine
Third, Gay argues the State violated an order in limine with a question posed to Wilma Mueller, a licensed social worker with the Department of Social and Rehabilitation Services, regarding the department's operating procedures in determining whether allegations of physical and sexual abuse should be deemed substantiated or unsubstantiated. Mueller interviewed M.B. about the circumstances of the assault shortly after the report to the police. At a pretrial motions conference, defense counsel sought to exclude both any reference to SRS's protocol for making a finding about whether a child had been abused and the particular finding as to M.B. At the hearing, the prosecutor disavowed any intention to introduce information about the protocol or the result regarding M.B. The district court, therefore, granted the motion in limine.
An assistant attorney general, who had not been present at the motions hearing, joined the prosecution team and presented Mueller as a government witness at trial. Early in the direct examination of Mueller, the following exchange took place:
“[STATE]: Would you investigate both cases of physical abuse and sexual abuse and neglect?
“[MUELLER]: Yes.
“[STATE]: After you would do one of those cases would it then be your job to either substantiate or unsubstantiate findings?
“MR. SNAPP: Objection.
“MR. HARGER: Your honor, I object. We have an order in limine on that topic.
“[STATE]: Obviously, I did not know.
“THE COURT: Do you wish to withdraw the question, counsel?
“[STATE]: Absolutely.
“THE COURT: Thank you. The objection is sustained. The question is withdrawn. Go ahead.”
“[STATE]: Would you then sometimes proceed with a case and then provide services for those families?”
“[MUELLER]: Yes.”
As the district court correctly ruled, the question to Mueller about finding the abuse to be substantiated or unsubstantiated violated the order in limine.
On appeal, the State argues otherwise because Mueller never answered the question. But that largely misses the point of an order in limine. An order in limine commonly prohibits any reference to a particular fact or circumstance in front of the jury because its mere mention would be highly prejudicial to one side and difficult to correct, as a practical matter, with an admonition to disregard. This situation is illustrative of that purpose. The objectionable question specifically cued the jurors that part of Mueller's job entailed a judgment about whether the alleged abuse actually happened. It was not a generic what-did-you-do-next type of inquiry that drew an objectionable response. The question, even left asked but unanswered, likely would set off speculation about whether SRS found M.B's abuse substantiated. Similarly, defense counsel's objection suggests a desire to exclude that information—a position that makes sense only if the finding were supportive of M.B .'s version of events. Had the parties honored the order, none of those problems would have arisen because the topic never would have been broached in front of the jurors.
The State also argues the assistant attorney general did not act willfully, so any violation should be excused. But that, too, seems insufficient. At least one member of the prosecution team attended the motions conference and was well aware of the order. That person had an obligation to inform the assistant attorney general later joining the team of orders affecting presentation of evidence at trial. And the late arriving assistant attorney general ought to have affirmatively inquired about any such orders. So the State's argument shirks a certain amount of responsibility for learning of and abiding by court orders. In that respect, the knowledge of one of the prosecutors about the court order fairly might be imputed to the others in assessing the violation. (The duty to be informed of court orders is not a one-way street. If a criminal defendant secures substitute counsel late in the proceedings, that lawyer has an obligation to familiarize himself or herself with the orders the district court has already entered in the case and ought to be held accountable for failing to do so.)
The assistant attorney general, however, did not appear to flagrantly violate the order. She did not pose a provocatively leading question, such as: “You investigated this matter and found M.B.'s sexual abuse to be substantiated, didn't you?” Nor did she return to the SRS protocol or the resulting determination either directly or inferentially after the district court cautioned her.
The issue boils down to whether Gay's right to a fair trial was substantially compromised by the question. Gay identifies no particularized constitutional error, and we consider none. We then ask whether there was a reasonable probability the error affected the outcome of the trial. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (standard for assessing prejudice of nonconstitutional error attributable to the State). The State bears the burden of showing the absence of that probability. State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012). Evaluating the record as a whole, we find there was no reasonable probability the result at trial would have been different without the error. The case ultimately turned on M.B.'s credibility. The jurors had the opportunity to see her as she testified on direct and cross-examination—a powerful tool for assessing veracity. See State v. Bellinger, 47 Kan.App.2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J., dissenting) (“The judicial process treats an appearance on the witness stand, with the taking of an oath and the rigor of cross-examination, as perhaps the most discerning crucible for separating honesty and accuracy from mendacity and misstatement.”). Based on their verdicts, the jurors necessarily found M.B. to be credible. We doubt the jurors substituted some speculation about Mueller's finding in the SRS process for their own judgment shaped by the actual trial evidence and, most particularly, M.B.'s courtroom testimony and demeanor. We comfortably find no reasonable probability the objectionable question posed to Mueller contributed to the verdicts against Gay, notwithstanding the violation of the order in limine.
Denial of psychological evaluation of M.B.
For her fourth point on appeal, Gay argues the district court erred in denying her motion for a pretrial psychological evaluation of M.B. 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 trial judges in making the call on ordering an examination. 291 Kan. at 581;State v. Gregg, 226 Kan. 481, 490, 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 court may consider evidence corroborating the victim's accusations against the defendant. If the defense request looks to be a “fishing expedition,” the trial 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 on a request for a psychological evaluation rests in the trial court's sound discretion. Gregg, 226 Kan. at 489.
Gay submits that M.B. had been in SRS custody for an extended time and had received counseling as part of the agency's program for her. But Gay neither identifies the particular purpose of the counseling nor cites any clinical diagnosis of M.B. as suffering from a recognized mental illness. Participation in “counseling” would not in and of itself suggest grounds for an independent psychological evaluation. Even assuming the accuracy of that representation, Gay introduced no evidence to suggest M.B. suffered from an illness or condition that impaired her ability to accurately perceive or recall events or that disposed her to tell falsehoods. Gay failed to show any sort of requisite mental instability.
Nothing in the record indicates M.B. had ever made false allegations of sexual misconduct against other persons or held some idiosyncratic view of an oath or affirmation to tell the truth in court or otherwise. Gay notes that M.B. gave more expansive accounts of the sexual assault over time, but she does not suggest those accounts were inherently bizarre or patently inconsistent. M.B. apparently did not initially identify Gay to the authorities as being involved. While that certainly could be fodder for cross-examination, it is not the sort of circumstance singularly warranting a psychological evaluation. That seems particularly true in light of Thouvenell's recollection that he saw Gay, Frederick, and Bowen at Bowen's house—placing them at the scene of the assault immediately after it happened, consistent with M.B.'s account.
Gay also suggests a general lack of corroborating evidence. As with many sexual assaults, there were no independent eyewitnesses to the attack. And because M.B. did not immediately tell anyone what happened to her, the case lacked biological and other physical evidence that might have supported her account. But M.B.'s version was supported in at least several respects. As we mentioned, Thouvenell's account of approaching Bowen's house and his interaction with the people inside matches M.B.'s description of the shades being drawn, the door locked, and the location of the defendants after they left the bedroom. He also observed a distinct change in M.B.'s mood and activities after picking her up from Bowen's house. Finally, Bowen's criminal convictions in 1995 and 2000 for sex crimes against 11– and 12–year–old victims corroborate M.B.'s account that he sexually assaulted her. Apart from how those convictions should be treated as evidence in a trial of the criminal charges, where they might be excluded as unduly prejudicial, the district court could have considered them as corroborative of M.B.'s accusation in deciding the motion for a psychological examination. See K.S.A.2010 Supp. 60–455(d) (In a prosecution for a sex crime, the defendant's conviction of an “offense of sexual misconduct ... may be considered for its bearing on any matter to which it is relevant and probative.”).
In short, we see scant reason for an independent psychological examination of M.B. On appeal, however, a defendant must demonstrate the district court abused its discretion in denying the motion. That itself imposes a stringent standard on appellate review. A district court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Mills, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). In other words, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A trial court errs in that way when its decision “ ‘goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ “ 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007] ). Finally, a trial court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. Ward, 292 Kan. 541, Syl. ¶ 3 (outlining all three bases for an abuse of discretion). We have little difficulty concluding that on the record here other district courts would have denied the motion. Gay has failed to demonstrate an abuse of discretion and, thus, error.
Admission of nurse's expert forensic testimony
Gay next argues that the district court erred in allowing a nurse to offer expert testimony to the effect that a vaginal abrasion she observed in making a physical examination of M.B. was “consistent with” a sexual assault of the sort M.B. described. Gay submits that only a medical doctor—and in particular, a gynecologist—properly could have provided that sort of forensic testimony. The admission of expert testimony lies within the discretion of the district court. State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008); Taylor v. Maxwell, 197 Kan. 509, Syl. ¶ 2, 419 P.2d 822 (1966).
The district court must determine if the proffered witness is an expert and whether the opinion evidence bears on an issue outside the ordinary understanding of lay jurors and, therefore, would be helpful to them. K.S.A. 60–456(b); State v. Cooperwood, 282 Kan. 572, 578, 147 P.3d 125 (2006); Taylor, 197 Kan. 509, Syl. ¶ 2. As with any other testimony, the expert opinion must be relevant to a disputed issue in the case.
Here, Gay focuses solely on the qualifications of the nurse to provide expert testimony. Under K.S.A. 60–456(b), a person may be an expert in a particular discipline based on “special knowledge, skill, experience or training.” The statutory criteria are intentionally broad and permit a person to acquire sufficient expertise through one of those means or a combination of them. See Grohusky v. Atlas Assurance Co., 195 Kan. 626, 629–30, 408 P.2d 697 (1965) (Construing a predecessor statute to K.S.A. 60–456(b) containing identical language, the court held that “[t]here are no precise requirements as to the mode in which skill or experience [to be an expert] shall have been acquired.”). Thus, practical experience alone may be enough to qualify someone as an expert witness. Grohusky, 195 Kan. at 630. So no particular academic credential typically stands as a necessary condition.[*]
FN[*] In a few specialized circumstances, such as medical negligence cases, an expert witness may have to meet certain professional qualifications. See K.S.A. 60–3412. This is not such a case, and Gay points to no such additional statutory requirements.
In this case, Holly Pham, the registered nurse who examined M.B., had special training through the SANE/SART program to provide care to sexual assault victims and to collect forensic evidence. Pham took 40 hours of coursework tailored to that specialization and participated in a hands-on preceptorship for 6 months. Pham had been a SANE/SART nurse at the Wichita hospital for 22 months before seeing M.B. and estimated that she had conducted over 80 sexual assault examinations. In addition, Pham testified that she had participated in more than 100 hours of continuing education in forensic nursing while at the hospital.
We find no abuse of the district court's discretion in determining that Pham's training and experience qualified her to give expert testimony about the clinical findings she made in examining M.B. and whether what she saw was “consistent with” sexual assault. This court reached a comparable conclusion in State v. Humphrey, 30 Kan.App.2d 16, 22–24, 36 P.3d 844 (2001), rev. denied 273 Kan. 1038 (2002), finding no abuse of discretion in allowing a similarly trained nurse to give similar testimony. A witness need not be a medical doctor to provide expert testimony that sequelae may be indicative of sexual abuse if he or she otherwise has particularized training or experience to do so. The jurors were free to consider Pham's qualifications in deciding what weight to give her testimony, just as they might take account of alternative explanations for M.B.'s physical condition.
Sufficiency of district court record
Gay offers an amorphous argument that the district court record somehow precludes her from presenting a complete appeal. Gay points out that the opening statements and closing arguments are not part of the appellate record. She similarly complains that the audio recordings of the law enforcement interrogations of her and Frederick are not in the appellate record, although the recordings were marked and admitted as trial exhibits. Gay does not explain why those portions of the district court record were not included in the appellate record.
As we pointed out earlier, the party taking an appeal is obligated to see that an adequate record is compiled for the appellate court. Kidd, 293 Kan. at 601. The sufficiency of that record depends upon the issues an appellant intends to present. We do not understand Gay to be saying she asked that the opening statements and closing arguments be transcribed for inclusion in the record and was refused for some reason. Nor do we take her argument to be that transcripts of those portions of the trial could not have been prepared because the recording medium has been lost. Gay makes no argument that the audio recordings of the statements she and Frederick gave to law enforcement could not have been requested for inclusion in the record or that a request for them went unfulfilled. She apparently has filed no motion with this court to supplement the record on appeal.
Apart from offering no explanation for the mechanics of why the appellate record lacks those portions of the trial, Gay provides no concrete reasons as to how those materials would aid her appeal. To much the same effect, Gay says many of the transcripts of the electronically recorded pretrial proceedings contain sections indicated as being unintelligible. But she fails to explain how those omissions adversely affect specific arguments she has made on appeal or otherwise intended to make. Without some colorable showing of prejudice, we fail to discern a legal basis to afford Gay any relief, let alone the reversal of her convictions as she requests.
Sufficiency of the evidence
For her final point on appeal, Gay argues the evidence at trial was insufficient to support her convictions. In reviewing a sufficiency challenge, we construe the evidence in a light most favorable to the party prevailing below, here the State, and in support of the jury's verdicts. An appellate court will neither reweigh the evidence generally nor make credibility determinations specifically. State v. Trautloff, 289 Kan. 793, 800, 217 P.3d 15 (2009); State v. Pham, 281 Kan. 1227, 1252, 136 P.3d 919 (2006). The issue for review is simply whether rational jurors could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Gay does not suggest the lack of evidence to support particular elements of the crimes. Rather, she points to conflicting evidence submitted to the jurors and contends M.B.'s version of the attack lacked credibility. So, Gay says, the jurors should have entertained a reasonable doubt about what happened and acquitted her. The argument, however, asks us, as an appellate court, to do precisely what we cannot—to weigh the evidence and to credit witnesses to reach a result at odds with the jurors' collective determination of the facts. We would impermissibly invade the province of the jurors as fact-finders to hold for Gay on this point.
Conclusion
Gay has raised a slew of challenges to her convictions. But none of them demonstrates reversible error.
Affirmed.