Opinion
110,445.
11-14-2014
STATE of Kansas, Appellee, v. John Elmer GOODPASTURE, Jr., Appellant.
Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., of Salina, for appellant. Kendra Lewison, assistant county attorney, and Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Bobby J. Hiebert, Jr., of Law Office of Bobby Hiebert, Jr., of Salina, for appellant.
Kendra Lewison, assistant county attorney, and Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
John Elmer Goodpasture, Jr., was convicted of 21 counts of sexual offenses which included rape and aggravated indecent liberties with a child. The trial court sentenced Goodpasture to life in prison. On appeal, Goodpasture maintains that the trial court erred in denying his request to expand the bill of particulars for a third time. He also alleges that the trial court erred in denying his motion for new trial because the State withheld exculpatory evidence. Finally, Goodpasture contends that the trial court erred in admitting prior sexual misconduct evidence under K.S.A. 60–455(d) because the subsection is unconstitutionally overbroad. Finding no merit in Goodpasture's contentions, we affirm.
In 2008, Goodpasture began dating A.H. and moved into her home with her and her two daughters, D.H. (born in 1997) and G.H. (born in 1999). The family lived in Seneca, Kansas. In 2009, Goodpasture and A.H. had a daughter together. While the family lived in Seneca, Goodpasture allegedly raped D.H.
In August 2010, A.H., Goodpasture, and the three girls moved to Manhattan, Kansas. The family lived with A.H.'s sister, M. S., until they moved into their own home.
During the summer of 2011, A.H.'s other sister, T.L., sent her daughter S.L. to Manhattan to visit. S.L. was 10 years old when she made her visit. During her visit, the family took a trip to Salina. On the drive to Salina, S.L. testified that she fell asleep in the back seat of the van driven by A.H. She awoke when Goodpasture inserted his finger in her “bladder.” S.L. explained that she calls her vagina her bladder. S.L. further testified that Goodpasture tried to kiss her on the mouth and also grabbed her hand and placed it on the outside of his clothing over his penis. S.L. testified that she pulled her hand away and moved to another seat in the car.
The next day, S.L. told G.H. about Goodpasture touching her in the car. G.H. then told Goodpasture's son, who told A.H. A.H. took all of the children to her sister's house and called S.L.'s parents. When S.L.'s parents arrived they took S.L. to the police department to report the incident. The Riley County police department initiated an investigation. When S.L. was interviewed, she told the officers about another incident that had occurred in the Manhattan home and an incident of digital penetration of her vagina that had occurred in the Seneca home during the summer of 2010.
A.H.'s daughter, D.H. was also interviewed by the police. Initially, D.H. denied any sexual misconduct. About a month later, D.H. disclosed to Detective Ryan Runyan that Goodpasture had sexually molested her over the course of many months. D.H. alleged that the incidents of sexual molestation began in the Seneca home and continued after the family moved to Manhattan.
D.H.'s father had passed away when she was 10 years old. Her mother started dating Goodpasture when D.H. was 11 or 12 years old. D.H. testified that the first molestation occurred in the Seneca home on March 21, 2009, which was the same day that D.H. found out that her mother was pregnant. D.H. testified that she was lying on the couch watching The Lion King movie when Goodpasture got on top of her. He then moved her into the bedroom, took off her clothes while holding her down, and inserted his penis inside her vagina. D.H. testified that she was babysitting when the first molestation occurred. Although the baby was crying in the other room, Goodpasture would not let her get up to take care of the baby. D.H. estimated that Goodpasture sexually molested her about 15 times while they lived in Seneca. D.H. did not tell anyone about the molestations because Goodpasture had threatened to cut her throat in front of her sisters. D.H. believed that Goodpasture was capable of carrying out that threat.
D.H. testified that the sexual abuse continued after the family moved to Manhattan, and even while they were living with A.H.'s sister. D.H. testified that while living with her aunt, Goodpasture asked her to go with him to get beer. On the way to the liquor store, Goodpasture pulled the car over and made D.H. touch his penis with her hand over his clothing.
Goodpasture allegedly continued molesting D.H. once they moved into their own home in Manhattan. D.H. testified that one time after her mother left, she was lying on the couch and Goodpasture got up, locked the door, shut the blinds, and sexually penetrated her. D.H. testified that the sexual penetrations occurred “almost every time” her mother left D.H. alone at home with Goodpasture.
The last time Goodpasture sexually penetrated D.H. was 2 weeks before he went to jail. During that incident, Goodpasture inserted his penis into D.H.'s mouth. Afterwards, D.H. went into the bathroom to rinse out her mouth. Goodpasture then grabbed her, pushed her onto the bed, and inserted his penis into her vagina. When Goodpasture got up to use the bathroom, D.H. ran into her room and shut the door. D.H. testified that Goodpasture then came into her room and “did it again.” D.H. testified that this attack lasted approximately an hour and occurred while her mother was at work, one of her sisters was at a friend's house, and her youngest sister was at home.
D.H. testified that Goodpasture had forced his penis into her mouth approximately three to five times, D.H. further testified that Goodpasture had used two sexual devices on her three to five times.
Goodpasture was charged in counts 1 through 5 with off-grid sexual offenses against S.L. and in counts 6 through 21 with off-grid sexual offenses against D.H. A jury convicted Goodpasture on all counts. Goodpasture moved for a new trial arguing that the State withheld exculpatory evidence. The trial court denied Goodpasture's motion. The trial court sentenced Goodpasture to life in prison.
Did the Trial Court Abuse Its Discretion When It Denied Goodpasture's Third Request To Expand the Bill of Particulars?
In this case, a bill of particulars and an amended bill of particulars was requested, ordered, and then provided by the State. On appeal, Goodpasture contends the State's failure to include specific dates and to differentiate between each charge in its bill of particulars hindered his ability to prepare a defense. Goodpasture also argues that the late filing of the bill of particulars hindered his ability to prepare a defense and that the trial court erred in refusing to grant a continuance. The State responds that there was no abuse of discretion by the trial court in denying Goodpasture's request to expand the bill of particulars because everything was specified in greater detail than it was before Goodpasture's request. Thus, the bill of particulars was sufficient.
A trial court has discretion in granting a bill of particulars, except in cases where the charging document is insufficient to inform the accused of the charges against which the accused must defend. State v. Bischoff, 281 Kan. 195, 207–08, 131 P.3d 531 (2006). Where, as here, a defendant challenges the sufficiency of the bill of particulars, appellate courts will not find the trial court abused its discretion in denying a request for a more definite statement “where the information disclosed in the bill of particulars, together with information revealed in the preliminary hearing and pretrial discovery, provides the defendant with ‘adequate knowledge of the nature of the charges and the opportunity to avoid surprise.’ [Citations omitted.].” State v. Webber, 260 Kan. 263, 284, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997).
A charging document must contain “a plain and concise written statement of the essential facts constituting the crime charged.” K.S.A. 22–3201(b). A charging document is generally sufficient if it contains “a plain and concise written statement of the essential fact constituting the crime ... drawn in the language of the statute,” and “[t]he precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.” K.S.A. 22–3201(b).
Nevertheless, when a complaint, information, or indictment fails to specify the particulars of the crime charged sufficiently to enable the defendant to prepare a defense, K.S.A. 22–3201(f) allows a defendant to seek clarification of a charging document by requesting a bill of particulars.
“A bill of particulars has two functions: (1) to inform the defendant of the nature of the charges and the evidence to enable him to prepare a defense, and (2) to prevent further prosecution for the same offense.” State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985) ; see also State v. Wright, 259 Kan. 117, 126, 911 P.2d 166 (1996) (“The object or purpose of the bill of particulars ... is to supplement a sufficient indictment with more specificity of detail to better understand the nature of the charges, and its effect is to limit the evidence to the transactions set out in the response to the bill of particulars.”).
“ ‘When charges in the information are clarified by facts brought out at the preliminary hearing there is no need for amplification by a bill of particulars, absent a showing of surprise or prejudice.’ “ Myatt, 237 Kan. at 29 (quoting State v. Hill, 211 Kan. 287, Syl. ¶ 9, 507 P.2d 342 [1973] ); see also Webber, 260 Kan. at 284 (information revealed during the preliminary hearing and through pretrial discovery may be sufficient to inform the defendant of the nature of the charges). Moreover, the State is generally allowed to allege approximate time frames in cases including sex offenses committed against children. See State v. Armstrong, 238 Kan. 559, 561–63, 712 P.2d 1258 (1986) ; Myatt, 237 Kan. at 28–29.
Here, the State filed a complaint, an amended complaint, an information, two amended informations, a bill of particulars, and an amended bill of particulars.
After the State filed the amended information, charging Goodpasture with 42 counts of rape, aggravated indecent liberties, aggravated criminal sodomy, and sexual exploitation of a child, Goodpasture moved to quash the information. In his motion, Goodpasture argued that the information was “constitutionally defective in that it does not state facts constituting the elements of the offense charged sufficient for [Goodpasture] to be able to defend himself.” Goodpasture requested a bill of particulars based on the argument that the alleged crimes and the time periods were too vague and speculative to enable him to prepare a defense.
The trial court granted Goodpasture's request for a bill of particulars finding as follows:
“The Court has reviewed Counts 2 through 20 and they are, in fact, ‘plain and concise’ and they are ‘drawn in the language of the statute.’ The number of identical counts, however, requires some differentiation at this point, prior to trial, to permit Defendant reasonably to prepare a defense.”
After the State filed its first bill of particulars, Goodpasture requested a more definite statement arguing that the bill of particulars was insufficient. The State then filed an amended bill of particulars, followed by two amended informations.
The third, and final, amended information charged Goodpasture with 16 counts of rape, 4 counts of aggravated indecent liberties, and 1 count of aggravated criminal sodomy. Each count included the approximate date, the location, and the alleged act.
On appeal, Goodpasture maintains that the bill of particulars was insufficient because counts 6 through 20 contained generalities such as the following: “The offenses occurred on or between September 15, 2010 and June 3, 2011.” The State explained that it was unable to give specific dates because there were numerous offenses over the course of that time period and the victim was a child and was therefore unable to provide specific dates of each occurrence.
Goodpasture argues that the lack of any real distinction between the charges should have caused the charges to be dismissed or at the very least he should have been granted a continuance to allow more time to prepare for trial.
The trial court denied Goodpasture's final request for more specificity finding as follows:
“[T]he Court has twice exceeded to what were considered to be reasonable requests by the defendant to provide more specificity to meet those two purposes ... in a Bill of Particulars.... The State has complied with filing an amended Bill of Particulars and a Second Amended Information so that everything is specified in greater detail than it was prior to defense counsel's request for the bill. For those reasons the motion is denied.”
We conclude that the trial court did not abuse its discretion in denying Goodpasture's third motion for a bill of particulars. First, the State is not required to prove the time of each occurrence because time is not an indispensable ingredient of rape, aggravated criminal sodomy, or aggravated indecent liberties. See K .S.A. 21–3502 ; K.S.A. 21–3506 ; and 21–3504. Moreover, because the crimes alleged were sex crimes against a child, the State was permitted to allege approximate time frames. See State v. Rojas–Marceleno, 295 Kan. 525, 536–37, 285 P.3d 361 (2012) ; see also Armstrong, 238 Kan. at 562–63 (concluding trial court did not abuse its discretion in denying a motion for a bill of particulars when the State charged defendant with taking aggravated indecent liberties with an 11–year–old child over a 5–month time frame).
Here, Goodpasture had the list of endorsed witnesses, had a right to a preliminary hearing, which he waived, and he had a right to discovery and inspection. Goodpasture does not allege that he was surprised or misled by anything presented.
Moreover, Goodpasture's defense was not an alibi-based defense. Instead, Goodpasture's defense was based upon an absolute denial that any inappropriate touching ever took place and that the two young victims concocted this scheme to get A.H. to end her relationship with Goodpasture. He focused on attacking the credibility of D.H. and S.L. Goodpasture has not shown that he was misled or prejudiced by the vague description of the crimes or the time span alleged. Thus, while some of the counts against Goodpasture remained vague, Goodpasture has failed to establish that the trial court abused its discretion when it denied his request for a more specific bill of particulars. Even if we were to find that the trial court erred in failing to require the State to provide further identifying factors, Goodpasture has failed to establish prejudice as a result of that error.
Did the Trial Court Abuse Its Discretion by Denying Goodpasture's Motion For New Trial?
Next, Goodpasture appeals the trial court's denial of his motion for new trial, Goodpasture maintains that he was entitled to a new trial because the State withheld exculpatory evidence which could have aided in his defense. Goodpasture argues that he was prejudiced by the State's error “because it not only hindered his trial counsel's ability to cross-examine based on the new information but also called into question the veracity [of] the victims during their testimony.”
“The court on motion of a defendant may grant a new trial to the defendant if required in the interest of justice.” K.S.A.2013 Supp. 22–3501. An appellate court reviews the trial court's decision on a motion for new trial for an abuse of discretion. State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85 (2012).
The parties dispute whether the evidence that was withheld was exculpatory. The State maintains that the trial court correctly determined that the evidence was not exculpatory and that Goodpasture was not entitled to a new trial.
“Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.” State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986).
When the prosecution suppresses exculpatory evidence, it is a violation of due process regardless of the prosecutor's good or bad faith. See Brady v. Maryland, 373 U.S. 83, 86–87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). There are three scenarios where Brady applies:
“(1) where there is a deliberate bad faith suppression for the purpose of obstructing the defense or intentional failure to disclose evidence which has high probative value and which could have not escaped the prosecutor's attention; (2) where there is a deliberate refusal to honor a request for evidence where the evidence is material to guilt or punishment, irrespective of the prosecutor's good or bad faith in refusing the request; and (3) where suppression was not deliberate and no request for evidence was made, but where hindsight discloses that it was so material that the defense could have put the evidence to significant use.”State v.. Kelly, 216 Kan. 31, 34, 531 P.2d 60 (1975).
Goodpasture argues that the State intentionally failed to disclose evidence which fits within the first scenario. Goodpasture contends that the following evidence was suppressed: (1) that two weeks before trial, D.H. had again recanted her testimony and told the State that she had made up the allegations against Goodpasture; and (2) that two weeks before trial S.L. told the State that she “could not remember anything.”
In response, the State contends that Goodpasture had knowledge that D.H. had recanted before and that the fact that she did it again did not make this exculpatory evidence. The State also contends that S.L.'s statement that she did not remember anything was made because she did not want to talk about the allegations at that time. Once they made her more comfortable, she again told the State her allegations against Goodpasture. Additionally, the State argues that no exculpatory evidence was withheld and that Goodpasture has failed to show that he was prejudiced by the nondisclosure of that information.
In this case, however, there is no evidence of bad faith or that the State deliberately withheld the information from Goodpasture and his attorney. At the hearing on the motion, the State argued that no exculpatory evidence had been withheld and that the information regarding D.H. and S.L. was simply trial preparation and not new statements that needed to be shared with the defense. Thus, any failure to disclose evidence here falls into the third category. Under this category, to receive a new trial, “the evidence must be clearly exculpatory, and the evidence must be material so that its suppression was clearly prejudicial to the defendant.” State v. Aikins, 261 Kan. 346, 382, 932 P.2d 408 (1997).
There are three essential elements to a claim that a criminal defendant's rights, under Brady, have been violated: “(I) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material as to establish prejudice.” State v. Warrior, 294 Kan. 484, Syl. ¶ 10, 277 P .3d 1111 (2012). “Evidence is exculpatory if it tends to disprove a fact in issue which is material to guilt or punishment.” Carmichael, 240 Kan. at 153. Additionally, evidence going to the credibility of a witness can be considered exculpatory. Kelly, 216 Kan. at 36–37.
After hearing arguments, the trial court denied Goodpasture's motion for a new trial. The trial judge made the following findings:
“First, let me note that credibility of the complaining witnesses here was an issue that was out in the open from early on and certainly was—it was patently an issue after the November, 2011 recantation by DVH.
....
“With respect to the pretrial meeting on July 26th with SL, that was trial preparation. It was not a new investigation or statement. It wasn't an incident, as I think that it has been cast by defendant on this motion, where she couldn't remember anything and needed help.... I don't remember, in this context, can mean I literally don't have any memory of the incident or it can also mean I don't want to say.... But when it goes further to the point then that she turns around shortly thereafter and explains the incident but in a different setting, then that becomes, in the Court's view, part of the pretrial preparation that pretty much turned out as thought.... And in that context, i don't see that as being potentially exculpatory.
....
“That takes us to August 3, with DVH, and the report and the comment on that date that she said I'm going to tell you what I told you in November, which is that it didn't happen. Now had that been the first time that she had recanted that would have been something that had to have been reported.... So it's not a new recantation that was not reported as exculpatory evidence as the Court has seen that but it is a report that we met with this person, she said what she said in November, which we reported to you.
....
“For all of those reasons, the Court does not find that the statutory basis is met for a new trial and the motion is denied.”
As the trial court correctly held, none of the withheld evidence was exculpatory. For example, “[e]vidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available to him during trial and he is not prejudiced in defending against these new facts. [Citations omitted.]” State v. Barncord, 240 Kan. 35, 43, 726 P.2d 1322 (1986). Here, Goodpasture knew that the credibility of the complaining witnesses was an issue and he knew that D.H. had already recanted once. Goodpasture tries to argue that the fact that D.H. again recanted so close to trial changes things and that he was prejudiced by not having this information. The problem with that argument is that when D.H. testified at trial she testified consistently with her statements to police and Goodpasture had the opportunity to cross-examine D.H. Thus, this evidence was not exculpatory and, even if it was, Goodpasture has failed to show how he was prejudiced by this error.
At trial, both the State and Goodpasture's counsel questioned D.H. regarding her inconsistent statements and the fact that she had recanted. The relevant questioning went as follows:
“[THE STATE:] And the first time that you met with [Ms. Lewison], what did you tell her about all of these incidences with the defendant?
“[D.H.:] I told her the truth, the same thing that I told Detective Runyan.
“[THE STATE:] Did you then later meet with her in November of 2011, as it was getting closer to the jury trial?
“[D.H.:] Yes.
“[THE STATE:] And did you tell Ms. Lewison that the defendant may have tried to rape you but he did not succeed?
“[D.H.:] Yes.
“[THE STATE:] Why did you change your statement?
“[D.H.:] I changed my statement because I did not feel safe talking about it anymore. Our family was fighting and 1 just wanted it to go away.
....
“[THE STATE:] [D.H.], I want you to tell the jury what is the truth, is the truth what you told Detective Runyan, Ms. Lewison the first time, and the jury here today or is it what you told Detective Goggins and Ms. Lewison in November?
“[D.H.:] The truth is what I told Detective Runyan and what I have said today.”
Then, on cross-examination, Goodpasture's counsel continuously pointed out that each time D.H. gave her statement she said that she was telling the truth, even though her statements differed. For example:
“[CROSS–EXAMINATION:] Now [D.H.], you went and you talked to Detective Goggins on June the 14th, didn't you, of last year?
“[D.H.] Yes.
“[CROSS–EXAMINATION:] And she asked you to tell the truth, did she?
“[D.H.] Yes, she did.
“[CROSS–EXAMINATION:] And you told her that you were telling her the truth?
“[D.H.] Yes, I did.
“[CROSS–EXAMINATION:] And you told her that in all four years that you had lived with [Goodpasture] that nothing happened?
“[D.H.]Yes, I did.
....
“[CROSS–EXAMINATION:] And then in November, several months later, you talked to Ms. Lewison, the Assistant County Attorney, didn't you?
“[D.H.] Yes, I did.
“[CROSS–EXAMINATION:] And the Victim Coordinator that is sitting back here, did you talk to them?
[D.H.] Yes.
“[CROSS–EXAMINATION:] And they asked you to tell the truth, didn't they?
“[D.H.] Yes.
“[CROSS–EXAMINATION:] And you told them that you told the truth?
“[D.H.] Yes.
“[CROSS–EXAMINATION:] And you told them that nothing had happened?
“[DM.] Yes.”
Thus, Goodpasture clearly knew that D.H. had already recanted once and that he had the opportunity to cross-examine her about her inconsistent statements. Therefore, this evidence was not exculpatory.
Additionally, S.L.'s memory loss statement was also not exculpatory evidence. The fact that shortly after making that statement S.L. explains the incident once she is in a more comfortable setting, clearly shows that this was not an exculpatory statement about which the State needed to inform the defense.
Although Goodpasture argues that his trial strategy would have been different if the evidence had been disclosed before trial, he fails to show how it would have been different. Much of the withheld evidence was already known to Goodpasture. Therefore, even without the withheld evidence, Goodpasture had peculiar knowledge of this information and could have used it to attack the victim's emotional and mental state at trial. As a result, the trial court did not abuse its discretion in denying Goodpasture's motion for new trial.
Did the Trial Court Err by Admitting Prior Sexual Misconduct Evidence Under K.S.A.2013 Supp. 60–455(d)? Is K.S.A.2013 Supp. 60 455(d) Unconstitutionally Overbroad?
Finally, Goodpasture argues that the trial court erred in allowing evidence of his prior sexual misconduct against D.H. and S.L. in violation of K.S.A.2013 Supp. 60–455(d) and that K.S.A.2013 Supp. 60–455(d) is unconstitutionally overbroad.
Before trial, the State requested the admission of Goodpasture's prior sexual conduct with D.H. and S.L., to show the relationship between the parties, and his prior sexual conduct with other young female victims, to constitute a plan. The trial court adopted the State's rationale regarding the prior misconduct with D.H. and S.L. but refused to admit the evidence involving the other young girls. The trial court held that “[a]ny minimal probative value would be far outweighed by the prejudicial effect of this testimony from three additional alleged victims of uncharged crimes.”
We must first note that although Goodpasture initially objected to the prior crimes evidence being admitted, he failed to object when D.H. or S.L. testified, or when any of the other witnesses testified regarding the prior sexual misconduct. As the State correctly argues, a party must make a contemporaneous and specific objection to the admission of evidence in order to preserve the issue for appeal. K.S.A. 60–404 ; State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011). Our Supreme Court has emphasized the importance of this rule in State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
Before trial, at the hearing on the State's motion regarding K.S.A.2013 Supp. 60–455 evidence, Goodpasture objected to the testimony the State wished to present. Goodpasture argued that K.S.A.2013 Supp. 60–455(d) was subject to the limitation on admission of propensity evidence in subsection (a) and that the trial court must evaluate the relevance of the evidence and weigh any probative value against the prejudicial effect against him. Goodpasture also argued that K.S.A.2013 Supp. 60–455 was unconstitutional. Nevertheless, Goodpasture failed to renew his objections when D.H. and S.L.'s testimony was introduced at trial. Without a timely and specific objection, the improper admission of evidence issue is not preserved for appeal. Nevertheless, this does not prevent us from addressing Goodpasture's constitutional argument because he properly raised it before the trial court and again on appeal.
An overbroad criminal statute is one that “makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions.” Dissmeyer v. State, 292 Kan. 37, 43, 249 P.3d 444 (2011). To successfully challenge a statute as overly broad, it must be shown that (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing the law's constitutional from its unconstitutional applications. Dissmeyer, 292 Kan. at 40–41. Courts sparingly apply the overbreadth doctrine and it should only be used as a last resort. Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005) ; In re A.E.S., 48 Kan.App.2d 761, 771, 298 P.3d 386 (2013) ; State v. Teter, 47 Kan.App.2d 608, 616–17, 278 P.3d 968 (2012).
Whether a statute is unconstitutionally overbroad is a question of law over which an appellate court exercises unlimited review. State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006). Moreover, “[t]he constitutionality of a statute is presumed.” 280 Kan. at 899.
Goodpasture argues that K.S.A.2013 Supp. 60–455(d) is overly broad because it “essentially permits a carte blanche admission of any prior sexual misconduct.” Goodpasture maintains that the statute strips a defendant of the ability to have a court or jury determine guilt based on the evidence at hand and that it removes the constitutional safeguards that require the State to submit convincing evidence.
The pertinent parts of 2013 Supp. K.S.A. 60–455 state:
“(a) Subject to K.S.A. 60–447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60–455 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
....
“(d) Except as provided in K.S.A. 60–455, and amendments thereto, in 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.”
Goodpasture focuses his overbreadth challenge on the statutory language “on any matter.” He asserts that “on any matter” does not require the constitutional safeguards that evidence may be admitted simply to show a propensity to commit a crime. Goodpasture suggests that this language is overly broad because as long as the defendant is accused of a sex offense and has committed another sex offense, the evidence may be admitted.
While the statute does allow the admission of propensity evidence, that is not a constitutionally protected act. Therefore, although allowing propensity evidence may be a “significant part of the law's target,” Goodpasture has failed to show that it is a constitutionally protected act.
Moreover, while the statute does carve out an exception to the admission of evidence to prove propensity, Goodpasture's overbreadth argument overlooks the safeguards built into the statute. For example, the evidence must be relevant and probative. In State v. Prine, 297 Kan. 460, 303 P.3d 662 (2013), our Supreme Court explained how to apply K.S.A.2009 Supp. 60–455(d) :
“Under the plain language of K.S.A.2009 Supp. 60–455(d), the legislature carved out an exception to the prohibition on admission of certain types of other crimes and civil wrongs evidence to prove propensity of a criminal defendant to commit the charged crime or crimes for sex crime prosecutions. As long as the evidence is of ‘another act or offense of sexual misconduct’ and is relevant to propensity or ‘any matter,’ it is admissible, as long as the district judge is satisfied that the probative value of the evidence outweighs its potential for undue prejudice.” 297 Kan. 460, Syl. ¶ 3.
Therefore, it is clear that the trial court must still determine whether the probative value of the evidence outweighs its potential for undue prejudice before admitting the prior sexual misconduct evidence. It should be noted that in this case the trial court properly weighed the probative value of the prior sexual misconduct evidence against its prejudicial value before admitting the evidence. In fact, the trial court considered all of the prior sexual misconduct evidence that the State wished to present and only allowed in the evidence relating to the current victims in the case. The court denied the admission of evidence relating to uncharged crimes against other victims finding that “[a]ny minimal probative value would be far outweighed by the prejudicial effect of this testimony ...” Thus, the trial court clearly did not apply the statute under the assumption that it permits a “carte blanche ” admission of any prior sexual misconduct as argued by Goodpasture.
As a result, we conclude that K.S.A.2013 Supp. 60–455(d), when read as a whole, is not unconstitutionally overbroad. Moreover, Goodpasture has failed to show that the admission of prior sexual misconduct evidence is a constitutionally protected activity. As a result, his argument fails.
Affirmed.