Opinion
No. 106,068.
2012-08-3
STATE of Kansas, Appellant, v. Kamie Jo HAGEY and Roger Paul Hagey, Appellees.
Appeal from Finney District Court, Michael L. Quint, Judge. John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. J. Scott Koksal, of Lindner & Marquez, of Garden City, for appellees.
Appeal from Finney District Court, Michael L. Quint, Judge.
John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant. J. Scott Koksal, of Lindner & Marquez, of Garden City, for appellees.
Before ARNOLD–BURGER, P.J., McNANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's finding of no probable cause to support the prosecution of Roger and Kamie Hagey on several charges. The Hageys were charged with five counts of child abuse or endangerment and two counts of making false information in connection with their foster parent license. At the conclusion of the preliminary examination, the district court dismissed one charge of child abuse. The court also dismissed one charge of making false information against each defendants for lack of probable cause. At the State's request, the district court dismissed the case, and the State filed this appeal alleging that the evidence was sufficient to establish probable cause to hold both of the defendants for trial on all of the criminal charges.
The State presented the following evidence at the preliminary examination:
In 2007, Kamie Hagey entered into a diversion agreement in connection with the State's claim that she engaged in aggravated child endangerment.
In 2008, the Hageys applied to become foster parents. They contacted St. Francis Community Services to begin the licensing process, and Barbara Clark was assigned to handle their case. As part of the licensing process, the Hageys were required to complete a licensing packet for the Kansas Department of Health and Environment (KDHE). The licensing packet contained a form entitled “Request for KBI/SRS Child Abuse Registry Check for Child Care and Residential Care Facilities.” The bottom of the form contained “yes or no” questions, and the form instructed the applicants to answer the questions “with regard to the persons listed on [the] form.” The last question on the form asked whether any applicant listed has ever “[s]igned a diversion agreement involving child abuse or a sexual offense.”
On June 8, 2008, the Hageys completed the criminal record history form and submitted it to Clark. The Hageys answered “[n]o” to the question about prior diversion agreements. Kamie provided the information on the form for both herself and Roger.
The Hageys successfully completed the application process and became licensed foster parents. On November 18, 2009, as part of the license renewal process, the Hageys completed another copy of the “Request for KBI/SRS Child Abuse Registry Check for Child Care and Residential Care Facilities” form and submitted it to Clark. The Hageys again responded “[n]o” to the question about prior diversion agreements. This time, Roger provided the information on the form for himself and Kamie.
In early 2010 the Hageys became foster parents for 3–year–old H.D. (the boy) and his 5–year–old sister.
The boy attended a day care center. Over the course of 6 months the boy's teacher, Hillary Arteaga, noticed bruises on the boy's body, particularly on Mondays after the weekend. On Monday, June 28, 2010, Arteaga, noticed “lots of bruises and scratches” on the boy's body. According to Arteaga, the boy had bruises on his back and the back of his legs and new scratches on his face by his right eye. Arteaga questioned Roger about these injuries, and Roger said the bruises on the back of the boy's legs were from “horseplay in the lake” during a recent camping trip and the scratches were from falling in the grass. Arteaga did not take any further action, nor did she take any pictures of H.D.'s injuries.
The next day Arteaga observed new bruises on the boy's buttocks. Arteaga contacted the Child Protective Services anonymous hotline.
Frederick Elad, a special investigator with SRS, went to the Hageys' home to investigate the allegation. Elad testified that he knocked on the Hageys' door several times and no one answered, so he returned to his car and called the Hageys' home phone. Someone claiming to be a babysitter answered the phone. The babysitter told Elad the Hageys were not home, and she did not know when they would return. Elad told the babysitter that he was investigating a child abuse case and he needed to see the child. The babysitter told Elad that she was currently on a long-distance call, and she asked him to wait. After 3 or 4 minutes, Kamie opened the front door and invited Elad in. When Elad questioned Kamie about the “babysitter thing,” Kamie explained that she had lied about her identity because she had several telemarketers bothering her that day and she did not want to be disturbed.
Elad observed that the boy had bruises all over, including a bruise on his eye similar to a black eye, bruises on his back and thigh, and a mark on his foot. Kamie told Elad that the boy had a medical condition that caused him to bruise easily, and she showed Elad a bottle of what appeared to be an over-the-counter medication she uses to treat the boy. Kamie said the boy sustained injuries to his eye and back while on a camping trip when he tripped and fell in their camping trailer and missed a step while leaving the trailer. She said the boy's shoes gave him a blister that caused the mark on his foot.
Elad took photographs of the boy's injuries and told Kamie to bring the boy to the SRS office the following morning for an interview with social worker Kim Ramsey. When Kamie and the boy failed to show up the following morning, Elad and Ramsey went to the day care center where they located the boy and took him to the local hospital emergency room where additional photographs of the boy were taken.
That same day Detective Freddie Strawder interviewed Roger and Kamie at the police department. Kamie said she had not spanked the boy and that Roger was in charge of disciplining the children. Roger stated that he had spanked the boy 4 days earlier because the boy “peed the bed” in the family's brand new camper.
Detective Tanya Bradley heard Kamie state that she knew “they should have gotten rid of [the boy] earlier because she knew he was ... going to be trouble.”
In July 2010, Dr. James Anderst, a child abuse pediatrician and section chief of child abuse pediatrics at Children's Mercy Hospital in Kansas City, Missouri, reviewed an SRS activity log, a copy of the boy's hospital medical records, some typed information, and photographs of the boy taken on June 29. According to Dr. Anderst, the boy's injuries were consistent with “a medical diagnosis of child abuse.” Anderst stated that “multiple scientific studies” have shown that “[e]ar bruising is highly consistent with abuse” because the ear is “a very protected area” that is not commonly injured in a fall. Anderst noted that the boy had multiple “looped” and “linear” bruises on the backside of his body, which typically occur when someone is beaten with an extension cord or a belt. (The police had recovered belts from the basement and kitchen of the Hageys' home, places where one would not typically expect to find them.) Anderst stated that “[t]he back is a very unusual place to have an accidental bruise” because it is a flat surface that does not “bruise very easily” and the buttocks “is [also] a hard place to bruise accidentally.”
Anderst opined that it was highly unlikely that the boy sustained his injuries in the manner described by Kamie because the boy had no lacerations or cuts on his skin. If the boy was injured as Kamie described, he would have sustained abrasions or lacerations, not bruises. Anderst, concluded that there was a “[z]ero percent” chance the boy sustained his injuries accidentally. He did not believe the boy had a medical condition which caused him to bruise easily because “[k]ids with bleeding disorders have persistent bruising. They don't just stop bruising when you put them in a different spot. And I asked when this child was put into foster care did his bruising go away, and I was told yes.” Further, the boy's blood tests at the hospital did not indicate that he suffered from a bleeding disorder which would cause bruising.
About a week after the preliminary examination, the district court issued its findings and rulings. The court determined that the State did not establish probable cause with respect to the charge of abuse of a child. With respect to the two counts of making false information, the district court found probable cause to bind Kamie over on the count relating to the SRS form she signed and to bind Roger over on the count relating to the separate SRS form he signed. Neither was bound over on the count relating to the SRS form that was signed by the other.
After denying the State's motion for reconsideration, the district court dismissed the case without prejudice to permit the State to pursue this appeal. The State then filed its notice of appeal pursuant to K.S.A. 22–3602(b)(1) and (3).
Jurisdiction
The Hageys challenge the State's right to pursue this appeal under the provisions of K.S.A. 22–3602. This raises a question of law over which we have unlimited review. See State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Kansas appellate courts generally have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by the applicable statutes. State v. Gill, 287 Kan. 289, 294, 196 P .3d 369 (2008). If the appellate court does not have jurisdiction, the appeal must be dismissed. 287 Kan. at 294.
K.S.A. 22–3602(b) permits the State in a criminal case to appeal, as a matter of right, from a final judgment in only four specific situations:
“(1) From an order dismissing a complaint, information or indictment;
“(2) from an order arresting judgment;
“(3) upon a question reserved by the prosecution; or
“(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.”
Here, the State appeals under subsection (b)(1), from an order dismissing a complaint, and under subsection (b)(3), upon a question reserved. According to the Kansas Supreme Court, “the purpose of a State's appeal on a question reserved is to provide an answer to a question of statewide importance that will aid in the correct and uniform administration of the criminal law in future cases. [Citation omitted.]” State v. Mathis, 281 Kan. 99, 103, 130 P.3d 14 (2006). The State does not address how this case involves a question of statewide importance; therefore, the State has abandoned its appeal on this basis. See State v. Gomez, 290 Kan. 858, 866, 235 P.3d 1203 (2010). Accordingly, the State is only entitled to pursue this appeal if subsection (b)(1) applies.
Relying upon State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983), and State v. Bickford, 234 Kan. 507, 672 P.2d 607 (1983), Roger and Kamie contend that K.S.A. 22–3602(b)(1) does not authorize the State to appeal from an order dismissing some of the counts of a multiple-count complaint. They claim the statute only permits the State to appeal from an order dismissing an entire “ ‘complaint, information or indictment.’ “
However, as noted by the Kansas Supreme Court, “[i]t has long been held [that] the State may appeal from an order quashing or setting aside one count of an information, although another count charging a different act is held sufficient or is not attacked.” State v. Zimmerman & Schmidt, 233 Kan. 151, 154, 660 P.2d 960 (1983) (citing State v. Levine, 125 Kan. 360, 362, 264 Pac. 38 [1928];State v. Lumber Co., 83 Kan. 399, Syl. ¶ 1, 111 Pac. 484 [1910] ). Neither Freeman nor Bickford alters this long-standing rule.
In Freeman, the State appealed under K.S.A. 22–3602(b)(1) (Ensley 1981) from an order dismissing two counts of a four-count information while the remaining charges against Freeman were still pending in the district court. Similarly, in Bickford, the State appealed the dismissal of one count of a two-count complaint against Bickford, pursuant to K.S.A. 22–3602(b)(1) (Ensley 1981). Unlike in Freeman and Bickford, no charges remained pending before the district court when this appeal was taken. The district court had dismissed the entire complaint without prejudice. Accordingly, we have jurisdiction to consider this appeal.
Dismissal of the Charge of Abuse of a Child under K.S.A. 21–3609
The State contends that the district court erred in dismissing the alternative charge of abuse of a child because sufficient evidence was presented at the hearing to establish probable cause to believe the Hageys inflicted “ ‘cruel and inhuman corporal punishment’ “ upon a child under the age of 18, in violation of K.S .A. 21–3609.
“The court's role at a preliminary examination is restricted.” State v. Bell, 268 Kan. 764, 767, 1 P.3d 325 (2000). The purpose of the preliminary examination was to determine whether probable cause existed to bind the Hageys over for trial on the State's charges. See State v. Anderson, 270 Kan. 68, 71, 12 P.3d 883 (2000). The State was required to present sufficient evidence to show that a felony had been committed and that there was probable cause to believe that the Hageys committed it. See K.S.A. 22–2202(16); Bell, 268 Kan. at 764. The test is whether “ ‘ “there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that it appears a felony has been committed.” [Citation omitted].’ “ Bell, 268 Kan. at 767. Probable cause exists to believe the defendant(s) committed the alleged felony if the “ “ ‘evidence [is] sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” ‘ [Citations omitted.]” 268 Kan. at 767. When making a probable cause determination,
“ ‘the court must draw inferences favorable to the prosecution. Moreover, the evidence needs only to establish probable cause, not guilt beyond a reasonable doubt. The court's role is not to determine the wisdom of the decision to file charges or to determine whether the possibility of a conviction is likely or remote.’ [Citations omitted.]” State v. Fredrick, 292 Kan. 169, 171–72, 251 P.3d 48 (2011).
We review the district court's probable cause determination de novo. Fredrick, 292 Kan. at 171.
The State charged Roger and Kamie with abuse of a child by “unlawfully, feloniously and intentionally inflict[ing] cruel and inhuman corporal punishment upon [the boy]” contrary to K.S.A. 21–3609. Abuse of a child is defined in K.S.A. 21–3609 as performing any of the following on a child under age 18:(1) intentionally torturing, (2) cruelly beating, (3) shaking which results in great bodily harm, or (4) inflicting cruel and inhuman corporal punishment.
The district court mistakenly found no probable cause with respect to this charge because there was no evidence that the conduct of Roger or Kamie, which apparently did not involve shaking the boy, resulted in great bodily harm. The court noted:
“An abundance of bruises were found but not broken bones nor any long range injury to the child. Use of a belt or hanger does not elevate the bruises to the level of great bodily harm and are not alone, per se abuse. Spanking and the use of physical punishment may be a violation of foster care rules but unless a statute is specifically violated, it does not automatically rise to the basis of a violation of the law.”
The meaning of the statute is clear. The State need only show great bodily harm in cases involving shaking of the child, not in cases involving the infliction of cruel and inhuman corporal punishment on a child. In State v. Carr, 265 Kan. 608, 617, 963 P.2d 421 (1998), disapproved on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), the Kansas Supreme Court found that a jury instruction on child abuse accurately “informed the jury that to commit the crime of abuse of a child, the defendant must have cruelly beaten, inflicted cruel and inhuman bodily punishment upon, or have shaken [the victim] in a manner which resulted in great bodily harm.” Similarly, in State v. Smallwood, 264 Kan. 69, 85, 955 P.2d 1209 (1998), the Kansas Supreme Court defined child abuse as “intentionally torturing, cruelly beating, shaking which results in great bodily harm, or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years. K.S.A. 21–3609.”
The evidence presented at the preliminary examination and recounted above, when viewed in the light favoring the State, was sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief in Roger's and Kamie's guilt. See Bell, 268 Kan. at 767. Accordingly, we must reverse the dismissal of these charges and remand for further proceedings.
Dismissal of the Charges of Aiding and Abetting in Making False Information under K.S.A. 21–3711
The State contends that the district court erred in dismissing a charge of aiding and abetting in making false information under K.S.A. 21–3711 because sufficient evidence was presented to establish probable cause to believe Roger and Kamie caused a false writing to be made, generated, or distributed in order to obtain and later to renew their foster care license.
As noted earlier, the last question on the SRS foster care application form and the later license renewal form asks whether any applicant listed has ever “[s]igned a diversion agreement involving child abuse or a sexual offense.” Both times the question was answered in the negative. Once the application process was complete, the Hageys became licensed foster parents. The following year their license was renewed based, in part, on their negative response to this same question. The State charged both Roger and Kamie under K.S .A. 21–3711 in connection with the original application and the later license renewal form. The statute defines the crime of making false information as:
“Making false information is making, generating, distributing or drawing, or causing to be made, generated, distributed or drawn, any written instrument, electronic data or entry in a book of account with knowledge that such information falsely states or represents some material matter or is not what it purports to be, and with intent to defraud, obstruct the detection of a theft or felony offense or induce official action.” (Emphasis added.) K.S.A. 21–3711.
The district court found probable cause to bind Kamie over on the original application which she signed but not the renewal form which she did not sign; and probable cause to bind Roger over on the renewal form he signed but not on the original application which he did not sign. The court stated:
“The State desires that Count Two and Count Three apply to both Defendants and that each be bound over for trial on the theory that each was aiding and abetting the commission of the crime. The only testimony on this issue came from Barbara Clark and in exhibits 18, 19 & 20 [ sic ]. The Court can find no testimony or evidence that either Defendant ever reviewed the information submitted by the other to KDHE nor signed off as to the accuracy of any document other than that document signed or filled out by them. Count Two applies only to Kamie Hagey and Count Three applies only to Roger Hagey.”
The State contended that the testimony of Barbara Clark established that Roger and Kamie were “jointly applying for a foster home license” and each participated equally in the application process. Thus, it argues that the district court erred in not binding each of them over for trial on both charges because the evidence established probable cause to believe they caused the false writings to be made in order to induce official action: the issuance and later renewal of their foster care license.
Aside from contesting the State's theory, the Hageys argue that the district court erred when it found probable cause existed to bind them over on the other charge of making false information because of lack of evidence of the knowledge element of the crime. But the Hageys failed to cross-appeal, so we disregard this argument. See K.S.A.2011 Supp.60–2103(h).
The district court found that the State presented sufficient evidence to establish that Roger and Kamie committed the offense of making false information with respect to the form each one personally filled out and signed. But with respect to these aiding and abetting counts, the State only needed to establish probable cause to believe that Roger and Kamie knowingly caused the false information to be made, generated, distributed, or drawn with intent to induce official action. See K.S.A. 21–3711.
Clark testified that in order for Roger and Kamie to become foster parents, “they both had to participate in [the] application [and renewal] process.” Moreover, Clark testified that she believed Roger and Kamie both submitted the forms to her, in person, on both occasions. Furthermore, Roger and Kamie each personally filled out one of the criminal record history forms and were aware that the instructions required applicants to answer the questions “with regard to [all of] the persons listed on [the] form.” Although circumstantial, this evidence certainly suggests that Roger and Kamie knew that a false writing was created on their behalf in order to induce official action in granting or renewing their foster parent license.
Viewed in the light favoring the State, the evidence at the preliminary examination was sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that Roger and Kamie aided and abetted one another in causing a written instrument to be prepared with the knowledge that the document falsely states a material matter about Kamie's history and with the intent to induce official action in the form of issuing and then later renewing the Hagey's license as foster parents. The district court erred in not binding each of the Hageys over on these charges.
Reversed and remanded.