Opinion
NO. 2015 KA 1517
06-14-2016
STATE OF LOUISIANA v. AARON KITZLER
Bertha M. Hillman Louisiana Appellate Project Covington, Louisiana Counsel for Defendant/Appellant Aaron Kitzler Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana
Case No. 13-CR8-122103 The Honorable Scott Gardner, Judge Presiding Bertha M. Hillman
Louisiana Appellate Project
Covington, Louisiana Counsel for Defendant/Appellant
Aaron Kitzler Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Counsel for Appellee
State of Louisiana BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. THERIOT, J.
Defendant, Aaron G. Kitzler, was charged by grand jury indictment with aggravated rape, a violation of La. R.S. 14:42(A)(4) (count one), and with molestation of a juvenile, a violation of La. R.S. 14:81.2 (count two). He pled not guilty. Following a jury trial, defendant was found guilty as charged on count one and not guilty on count two. Thereafter, defendant filed a motion for new trial, alleging that the victim in count one had recanted her allegations. After a series of hearings, the trial court denied defendant's motion for new trial. For his conviction on count one, defendant was sentenced to life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. The trial court denied defendant's motion to reconsider sentence. Defendant now appeals, alleging that the trial court erred in denying his motion for new trial. For the following reasons, we affirm defendant's conviction and sentence.
In 2015, the legislature amended the title of "aggravated rape" to "first degree rape." See 2015 La. Acts No. 184, § 1 & 2015 La. Acts No. 256, § 1. However, any reference to the former crime of aggravated rape is the same as a reference to the current crime of first degree rape. See La. R.S. 14:42(E).
FACTS
In the instant case, the charged offenses concern two separate alleged victims, K.K. (count one) and A.C. (count two), and two different periods of time. Because defendant was found not guilty on count two, the evidence presented at trial relating to that offense is not detailed in this opinion, except where it may be relevant to issues concerning the conviction on count one.
K.K. (the victim) is the daughter of L.K., and the former stepdaughter of defendant. K.K. was born on March 14, 2000. L.K. and defendant began dating in 2004, and they married in October of 2005. They divorced in May of 2014.
In accordance with La. R.S. 46:1844(W), the victim and her immediate family members are referred to by their initials throughout this opinion.
At trial, K.K. testified that defendant forced her to engage in oral and vaginal intercourse, beginning when she was nine years old while living in Mount Hermon, Louisiana. She stated that defendant raped her multiple times over the course of three years. According to K.K., these incidents would occur on nights when her mother was at work. She testified that defendant told her not to tell anyone, or he would beat her "half to death." K.K. described defendant's private area as being shaved. K.K. repeated the substance of these allegations of abuse in two recorded interviews that were introduced at trial - a Children's Advocacy Center (CAC) forensic interview with JoBeth Rickels, and a patient medical history with Nurse Anne Troy at the Audrey Hepburn Care Center.
K.K. testified at trial that the abuse stopped when, on November 18, 2012, she told her aunt (T.C.) and a family friend, Michelle Almanza, about having been raped. K.K. made her report of abuse to the sheriff's office on that same date. According to K.K., she had previously tried to tell her mother, grandparents, and other family members about the abuse, but they did not believe her.
L.K. testified at trial regarding K.K.'s prior allegations of abuse. She stated that on two occasions prior to November 18, 2012, K.K. said that defendant had been messing with her. According to L.K., she told K.K. both times that she would have to involve the police, at which point K.K. recanted her statement. L.K. explained that on the first occasion, K.K. made the accusation because she was mad that she was being forced to leave a friend's house, and she later admitted that she lied about defendant touching her. On the second occasion, K.K. made the allegation to her grandmother and aunt while she was at a campground for a family gathering. Both times, L.K. presented the allegations to defendant, and he denied ever having touched K.K. At trial, L.K. testified that she believed K.K.'s instant allegations of abuse because K.K. did not change her story this time, and she never recanted despite having been moved into a foster home. L.K. confirmed that defendant kept his private area shaved. On cross-examination, L.K. testified that she discovered at one point during her marriage to defendant that he had been seeing Almanza behind her back. She was aware that they had kissed, but unsure if they had engaged in any sexual behavior. According to Almanza's trial testimony, A.C. (the alleged victim in count two) reported in 2009, when she was sixteen, that she had been having oral and vaginal sex with defendant. Almanza allegedly confronted defendant about A.C., but neither she nor A.C. reported defendant to the police. Almanza testified that on November 18, 2012, K.K. told her that defendant had been sexually abusing her. She testified that she asked K.K. to describe defendant's private area, which she did. According to Almanza and A.C.'s own trial testimony, A.C. confirmed the appearance of defendant's private area based on K.K.'s description. On cross-examination, Almanza denied ever dating or sleeping with defendant.
Although not explicitly stated by Almanza's testimony, the implication is that K.K. described defendant's private area as being clean shaven.
Defendant testified at trial. He stated that he began a relationship with Almanza while he was married to L.K. According to defendant, this relationship came to light when L.K. saw him and Almanza kissing at a party. Defendant stated that he begged L.K. to forgive him - which she did - and later told Almanza to "stay away" and that he did not want her around anymore. Defendant categorically denied ever having touched K.K. in an inappropriate way, including forcing her to engage in any type of sexual intercourse. On cross-examination, defendant admitted that he kept his private area shaved.
After deliberating, the jury returned verdicts finding defendant guilty of the aggravated rape of K.K., but not guilty of molesting A.C.
MOTION FOR NEW TRIAL
In his sole assignment of error, defendant contends that the trial court erred in denying his motion for new trial. The motion for new trial was predicated on K.K.'s post-trial statements that defendant never molested her or touched her inappropriately and that Almanza forced or coerced her into making the allegations against defendant.
Louisiana Code of Criminal Procedure article 851 provides, in pertinent part:
(A) The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
(B) The court, on motion of the defendant, shall grant a new trial whenever:
* * *
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.
A defendant who seeks a new trial based on newly discovered evidence must establish that: (1) the new evidence was discovered after trial; (2) failure to discover the evidence before trial was not attributable to his lack of diligence; (3) the evidence is material to the issues at trial; and (4) the evidence is of such a nature that it would probably produce a different verdict in the event of retrial. State v. Cavalier, 96-3052 (La. 10/31/97), 701 So.2d 949, 951 (per curiam).
The trial court has much discretion in ruling on a motion for new trial. State v. Hammons, 597 So.2d 990, 994 (La. 1992). In ruling on a motion for new trial, the trial court's duty is not to weigh the evidence as though it were a trier of fact determining guilt or innocence; rather its duty is the narrow one of determining whether there is new material fit for a new trier of fact's judgment. Cavalier, 701 So.2d at 951; State v. Prudholm, 446 So.2d 729, 736 (La. 1984). The merits of a motion for new trial based on newly discovered evidence should be viewed with extreme caution in the interest of preserving the finality of judgments. Furthermore, where the issue on a motion for new trial primarily involves a question of credibility, the trier of fact is better situated to make such determinations. See State v. Tyler, 342 So.2d 574, 588 (La. 1977), cert denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). Discussing the issue of credibility as a basis for a new trial in Tyler, the Louisiana Supreme Court stated:
Experience teaches that recantations of trial testimony should be looked upon with the utmost suspicion. And, as a legal proposition, a new trial should not be granted on the ground that the newly discovered evidence destroys the credibility of the state's witness.342 So.2d at 588 (citations omitted).
The trial court held three hearings before denying defendant's motion for new trial. At the first hearing, J.B. (K.K.'s grandmother) testified that K.K. returned to live at her mother's home after trial, having resided in foster care for much of the period since her report of abuse. According to J.B., K.K. told her that she did not want defendant to go to jail for something he did not do, and she explicitly stated that defendant never touched her. J.B. stated that K.K. told her she had been coaxed by Almanza into making the accusation against defendant. On cross-examination, J.B. admitted under the state's questioning that L.K. did not currently have a job and that defendant had a good job at the time of his arrest.
K.K.'s brother also testified at this first hearing. He stated he had heard A.C. say that her own allegations against defendant were not true and that she made them because her mother (T.C., the aunt who was present with Almanza at K.K.'s disclosure) had threatened her to do so. K.K.'s brother also confirmed the victim's post-trial recantation, explaining that K.K. said the allegations were not true and that Almanza forced her into making these allegations by threatening to call the Office of Community Services and have K.K. removed from her home. On cross-examination, K.K.'s brother said that he and his mom were present at their home when K.K. recanted her allegations against defendant.
At trial, K.K.'s brother testified to this same effect as a defense witness.
The Office of Community Services has been renamed the Department of Children and Family Services. --------
K.K. herself was also present at this first hearing on the motion for new trial. On the advice of appointed counsel, she invoked her Fifth Amendment right not to testify.
Two additional witnesses testified at the second hearing. K.C., A.C.'s sister and K.K.'s cousin, was the first witness to testify. She stated that she was present, along with her mother (T.C.), Almanza, and K.K., when K.K. made the allegations against defendant on November 18, 2012. According to K.C., K.K. had come to spend the weekend with them. On the night before K.K. made the allegations, the family held a barbecue. K.C. described that Almanza came into the house and asked K.K. to go into the bathroom with her. K.C. did not know what occurred while K.K. and Almanza were in the bathroom, but they were in there for approximately five to ten minutes. Almanza exited the bathroom first, with K.K. exiting shortly after. According to K.C., everything seemed normal at the time. K.K. made her allegation the following afternoon. K.C. testified that she talked to K.K. "a couple of times" about the incident, and "her story never changed." After trial, K.C. again spoke with K.K., at which time she stated that Almanza had forced her to make the allegations. On cross-examination, K.C. said that L.K. brought up the topic of K.K.'s recantation when K.C. saw K.K., her brother, and L.K. at a Dollar Store in Mount Hermon.
Jeremy Williams, a friend of K.K.'s family, also testified at the second hearing. He described that on the day K.K. made her allegations, he was outside of T.C.'s house as a police officer walked K.K. to his car. According to Williams, K.K. told him at that point, "I said something wrong and they're bringing me to another home." He stated that K.K. also said, "I got pressured into saying stuff about my dad touching me." Williams said that when he pressed K.K. further, the police officer told K.K. she could not say anything else and that she had to get into the car. Williams stated that he later talked to K.K. after the trial, and she repeated she had been pressured into making the allegations. On cross-examination, Williams admitted that L.K. was present for K.K.'s post-trial recantation. He also acknowledged that he never went to the police about what K.K. allegedly told him on the day of her report, but he explained on re-direct examination that he did not know he was supposed to tell anyone and preferred to stay out of what he considered to be family business.
K.K. was the sole witness to testify at the final hearing on the motion for new trial. Waiving her rights under the Fifth Amendment, K.K. admitted she had previously testified that defendant raped her. However, she stated this allegation was untrue and that she had been forced into making it. K.K. testified that defendant never sexually assaulted her or physically harmed her in any way. She explained that Almanza had forced her into making the allegation out of revenge, because defendant had gone back to L.K. instead of being with her. K.K. stated that Almanza had taken her into the bathroom and told her to make the allegations, or else she would make them against defendant, K.K.'s mother, and her grandparents. K.K. testified that she was scared of Almanza's threat because she believed that she and her brother would be placed up for adoption if she did not make the allegation. On cross-examination, K.K. admitted that she had been in OCS custody for approximately twenty-three months during the pendency of defendant's trial, having been returned to her mother after the trial was completed. K.K. admitted to making the consistent allegations of abuse to multiple parties, including the police, OCS, JoBeth Rickels, Anne Troy, a therapist, the assistant district attorney, and the jury. On re-direct examination, K.K. implied that she perceived a difference between adoption and foster care, with the latter meaning she might eventually be able to go home. According to K.K., the threat of adoption was made by T.C., A.C., and Almanza.
After hearing the testimony presented by the defense during three hearings, the trial court denied the motion for new trial. The trial court did not issue oral or written reasons for its denial of this motion.
In Cavalier, the Supreme Court stated:
Newly discovered evidence affecting only a witness's credibility "ordinarily will not support a motion for a new trial, because new evidence which is 'merely cumulative or impeaching' is not, according to the often-repeated statement of the courts, an adequate basis for the grant of a new trial." Nevertheless, the court possesses the discretion to grant a new trial when the witness's testimony is essentially uncorroborated and dispositive of the question of guilt or innocence and it "appears that had the impeaching evidence been introduced, it is likely that the jury would have reached a different result." In making this determination, the court may assume that the jury "would have known that [the witness] had lied about the matter[.]"701 So.2d at 951-52 (citations omitted).
Because the trial court did not give reasons for denying defendant's motion for new trial, we are unsure of the precise basis for this ruling. Considering the four factors from Cavalier, 701 So.2d at 951, it appears from the record that the first three elements have been met. We must now determine whether K.K.'s recantation "is of such a nature that it would probably produce a different verdict in the event of retrial." Id. In doing so, we consider whether there are any special circumstances to suggest that K.K.'s latest testimony is truthful to an extent that the trial court should have reasonably concluded that K.K.'s recantation would have created a reasonable doubt of guilt in the jurors' minds. See Prudholm, 446 So.2d at 736.
At the outset, we have little doubt that K.K.'s recantation, if believed, would create a reasonable doubt of guilt in the minds of jurors. However, the question is whether there are special circumstances to suggest the truthfulness of her latest testimony.
There are many factors weighing in favor of the truthfulness of K.K.'s initial testimony. First, she consistently repeated her story of forced oral and vaginal intercourse spanning three years after the November 18, 2012 report of abuse. The disclosures presented to the jury - K.K.'s testimony, as well as her recorded CAC and medical history statements - were consistent, detailed, and unwavering. K.K. described exactly what sexual acts defendant forced her to perform, provided an accurate description of defendant's pubic area, discussed that defendant did not use a condom, and explained that he ejaculated during these incidents. She testified and reported that the incidents took place at her home, while her mother was away at work, and she stated that defendant threatened to beat her "half to death" if she told anyone, a phrase that appears consistently within her testimony and reports. Additionally, K.K. testified at trial that she had previously tried to tell other members of her family about the abuse, including her mother and grandmother, but they repeatedly disbelieved her. Further, K.K. testified briefly at trial about times the defendant would show her pictures of naked people, including a picture of a possible ex-girlfriend from his native Ohio. In short, the sheer amount of detail related by K.K. throughout her testimony and recorded statements, with their high degree of coherence and consistency, make them extremely credible. The state also elicited testimony at the post-trial hearings that L.K. was consistently present with K.K. on most occasions when she made a recantation to a third party, and L.K. appears to have been the person who generally raised this issue to others. This casts suspicion upon the truthfulness of K.K.'s recantation, as it possibly could have been coaxed by L.K.
There is little doubt from the record that some degree of animosity existed among Almanza, L.K., and defendant, due to the relationship that existed between Almanza and defendant; however, that relationship does not appear to be the deciding factor in the divorce between L.K. and defendant. L.K. testified at trial as a state witness that she believed K.K.'s allegations of abuse against defendant and divorced him for that reason.
Williams testified that K.K. spoke to him on the day she made her report, and he stated that K.K. told him that she had been pressured; however, he did not testify that K.K. told him she lied.
Finally, K.K. testified regarding her specific fears that caused her to maintain her initial story until after the trial. She stated that T.C., A.C., and Almanza made her fearful that she would be placed up for adoption if she did not maintain her story. K.K. explained that she perceived adoption to be different than being placed into foster care because she believed that she would eventually be able to leave foster care. K.K. explained that her meeting in the bathroom with Almanza lasted approximately five to ten minutes. The record does not reflect what was exactly said in that time period; however, it is unlikely that the two could have concocted such a comprehensive and detailed account of sexual abuse in that short amount of time. All that is known about that conversation comes from K.K., who said Almanza pressured her into making the allegations with the threat of adoption. It should also be noted that K.K. never testified that Almanza told her to lie, but only pressured or threatened her to make the allegations against defendant.
Defendant cites the recent case of State v. Maise, 2014-1912 (La. 6/30/15), 172 So.3d 639 (per curiam), as one which presents a factual scenario similar to this one. In Maise, the supreme court determined that the defendants were entitled to a new trial based upon newly discovered evidence relating to the credibility of the victim's testimony and that of a corroborating witness.
Maise, however, involved a victim who offered different versions of her story "at virtually every juncture of the investigation and prosecution of the[] defendants," as well as a corroborating witness who offered two different versions of her story on successive days of testimony, after receiving transactional immunity from the state. Maise, 172 So.3d at 645. In contrast to the victim in Maise, K.K.'s version of her story was remarkably consistent beginning with her initial report and continuing through the culmination of her trial testimony. Only after defendant had been convicted and K.K. returned to her mother's custody did K.K.'s story change.
We do recognize that the instant case shares a similarity to Maise in that K.K. purportedly provided what defendant characterizes as a pretrial recantation to Williams. However, we note an important distinction. In Maise, the victim provided an exculpatory version of the events to a friend one week after the defendants' arrests. This phone conversation was heard by the friend who called the victim, as well as by two other individuals who listened in on the call while standing next to the friend. Moreover, the immunity-holding corroborating witness also made a pretrial disclosure to a third party that mirrored the exculpatory version of events related by the victim in her phone call witnessed by three individuals. See Maise, 172 So.3d at 644-45.
The circumstances of the instant case are distinguishable in the sense that K.K.'s purported pretrial recantation to Williams was uncorroborated. Also, Williams never testified that K.K. explicitly told him the allegations against defendant were false. Rather, he testified that K.K. stated she was pressured into saying something she believed was wrong. In Maise, the multiple sources of the newly discovered evidence created a strong inference of the truthfulness of that recanted version of events. No such strong inference exists here, and the more reasonable inference of truthfulness appears to lie with K.K.'s initial story that she was raped by defendant.
Based on the facts and circumstances of this case, and considering the record as a whole, we find no error or abuse of discretion in the trial court's denial of the motion for new trial based on newly discovered evidence. The defendant did not adequately demonstrate special circumstances to establish the truthfulness of K.K.'s latest testimony recanting her allegations of sexual abuse. As a result, we cannot say that K.K.'s recantation is anything more than merely cumulative or impeaching of the testimony presented at trial. See Cavalier, 701 So.2d at 951.
This assignment of error is without merit.
CONVICTION AND SENTENCE AFFIRMED.