Opinion
No. 111684.
04-03-2015
STATE of Kansas, Appellee, v. James TOLLIVER, Appellant.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. John Bryant, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
John Bryant, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Tolliver, initially charged with attempted rape, was found guilty of aggravated sexual battery. He claims that the court did not instruct the jury properly when it failed to give an attempted aggravated sexual battery instruction, even though he did not request such an instruction at trial. Indeed, there was conflicting testimony here as to whether Tolliver's pants were up or down when he was discovered with the victim; there was no DNA or genetic material found on the victim; nor were there any bodily fluids, semen, cuts, tears, or bruises found on the victim. There was no real evidence proving that Tolliver touched the victim. Because of these circumstances, we are firmly convinced that the jury would have reached a different verdict if the instruction had been given. We reverse the conviction and remand for a new trial.
The events unfold at a residential healthcare center.
James Tolliver was working as a certified nursing assistant for Sedgwick Healthcare Center. Tolliver had been a CNA since 1999. Prior to this incident, Tolliver had been working at the Sedgwick Healthcare Center for about 6 weeks. According to the supervisor, Tolliver “went above and beyond what a lot of CNAs do,” his work was “excellent,” and he would be ranked on top of the other employees—a “ten or a nine.”
In March 2012, 61–year–old A.M. was a resident in the Center. A.M., diagnosed with Alzheimer's, was a totally dependent resident; she was unable to do anything on her own. She could not walk, feed herself, bathe herself, or speak.
Okechukwu Amueke, a/k/a Raymond, was the supervisor of the entire building. Raymond assigned a list of patients to Tolliver, and Tolliver was supposed to check the vitals of these patients. Raymond testified that A.M. was not on Tolliver's list that night.
There was evidence that the facility was understaffed. Moreover, it was not uncommon for CNAs to help others with their rounds.
After giving the assignments that evening, Raymond noticed Tolliver was writing with a blue pen when he was supposed to be using a black pen. Raymond said he told Tolliver he would get him a black pen. When Raymond returned, Tolliver was gone. Raymond located Tolliver in A.M.'s room. Tolliver said he was in A.M.'s room that night because he was changing her brief. A.M. was incontinent and required a “check and change” every 2 hours.
A.M.'s room was dark with only a streak of light. There was a mat on the floor next to A.M.'s bed for her protection in case she rolled off of the bed. A.M.'s door was always open.
When Raymond was looking for Tolliver, he walked by A.M.'s room and noticed the floor mat was out of place. When Raymond went into the room he saw Tolliver at the foot of A.M.'s bed. Raymond testified Tolliver was “rising up from the crouched position” when he walked in. Then Raymond testified, “Tolliver was standing right between her feet and her waist at the time I got into the room, so, as soon as he saw me bend down to put that mat into position, he rose up and that's when I saw him.”
Tolliver stated he had tripped on the mat because it was not very bright in the room. He also forgot about the mat and was not thinking about it when he was changing A.M.
Raymond testified A.M.'s brief was open. Raymond asked Tolliver what he was doing. Raymond admitted he was shocked, so he took a deep breath and approached Tolliver in the room. Raymond said, “He didn't say anything, and then I seen [sic ] his pants drop all the way to the floor and then, to be sure, I reached for his shirt, which was still hanging above his—I just wanted to see if he had his underwear on, and there was no underwear.” Raymond said he saw Tolliver's flaccid penis exposed. Tolliver denied that his pants were ever off.
Raymond gave different versions of the events to different people. According to Kathy Simon, the assistant director of nursing, Raymond told her he walked in and saw Tolliver on his knees with his pants down around his ankles. Nurse Oluwakemi Ademosu, a/k/a Kimmy, testified Raymond told her he found Tolliver “trying to make love to [A.M.]” and he saw Tolliver with his pants around his knees and he was “wanting to lean” towards A.M.
Agent Philip McManigal testified Raymond told him he saw Tolliver on top of A.M., A.M.'s legs were spread apart, Tolliver's pants were down, and Tolliver got off immediately. When Raymond pulled up Tolliver's smock he saw his penis was erect. Kevin Crowley, the administrator, testified Raymond was still very stunned even though the incident had occurred an hour to an hour and a half prior to their meeting.
Immediately following the incident in A.M.'s room, Raymond, Simon, and Kimmy examined A.M.'s perineum area. Raymond did not notice any bruising, cuts, scratches, or tears. He testified A.M. was calm while he examined her. Simon testified she did not see any discharge, nor did she see any cuts, scratches, tears, or bruises. Simon said A.M. could not be combative because she had upper body contractures, but she could cry; A.M. was awake and calm during the exam. Kimmy testified she observed A.M.'s red face, like she was angry. She also saw a clean, open brief under A.M. Kimmy did not do much of an examination, but she did notice redness in her perineum area. However, Kimmy did not know whether the redness was normal for A.M. since she was not Kimmy's patient. Kimmy did not notice any semen or bodily fluids.
Officer Andrew Paasch was called to the Center to respond to “a possible sexual activity there, something sexual happened.” Officer Paasch contacted emergency medical services to transport A.M. to a hospital to collect potential forensic evidence by using a rape kit. Officer Paasch did not know whether a rape had actually occurred, but due to what was described, he thought it was best to investigate further.
A.M. was transported to Via Christi Hospital for a sexual assault examination. Ruthanne Farley was the registered nurse on call for the sexual assault program at that time. First, Farley contacted A.M.'s durable power of attorney to obtain consent to perform the examination. Second, Farley attempted to collect a medical history directly from A.M., but she was unsuccessful because A.M. had a history of Alzheimer's and was unable to communicate her medical history. Farley said she attempted to ask A.M. some questions during the exam and A.M. was able to answer some questions with a yes or no. Farley also testified, “I believe, just by my memory, she was able to follow some commands when I would ask her to move a certain side of her body or wiggle her fingers or toes. She was not able to give me a full history of what happened.”
Farley continued with a head-to-toe assessment, checking for any injuries, and collecting evidence swabs—oral swabs, buccal swabs, and genital swabs. Farley stated:
“This exam was a difficult one in that [A.M.] had a history of dementia and lots of muscle contractures, which means her legs were drawn up and her muscles were very tense, so she was very difficult to get to relax during the exam. She was also incontinent during the exam, so there was a lot of stool that had to be cleaned as well .”
Farley testified A.M. was upset during the genital exam; it caused A.M. “a bit of discomfort to have her legs situated for us to visualize areas.” A.M. was unable to position her legs in the stirrups for the examination. Farley noted there was a lot of redness, but she could not say this was caused by sexual contact. The redness could have come from A.M.'s incontinence or from her brief. After taking the swabs to check for DNA, Farley performed an alternative light source test. Farley did not locate any bodily fluids as a result of that test.
Agent McManigal testified that the Kansas Bureau of Investigation tested the swabs Farley took at Via Christi. There was no genetic or DNA link between those swabs and Tolliver. Agent McManigal also testified the results were not surprising because there is often no DNA left behind. He further stated there was no indication a rape was “completed.”
The jury found Tolliver not guilty of attempted rape but guilty of aggravated sexual battery. Tolliver appeals his conviction.
Even though at trial Tolliver did not request a jury instruction on attempted aggravated sexual battery, he now claims it was clear error for the district court to fail to give such an instruction.
The law on this is well established. A party cannot claim error for the district court's failure to give a jury instruction unless the failure to give the instruction was clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013). The appellate court uses a two-step process in determining whether the challenged instruction was clearly erroneous: (1) the court must determine whether there was any error at all by considering whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record; (2) if the court finds error, it must assess whether it is firmly convinced that the jury would have reached a different verdict without the error. Reversibility is subject to unlimited review and is based on the entire record. 297 Kan. at 203–04. The party claiming error in the instructions has the burden to prove the degree of prejudice necessary for reversal. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d 353 (2014).
K.S.A.2013 Supp. 21–5109 governs lesser included crimes. K.S.A.2013 Supp. 21–5109(b) provides:
“(b) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
“(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) of K.S.A.2013 Supp. 21–5402, and amendments thereto;
“(2) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
“(3) an attempt to commit the crime charged; or
“(4) an attempt to commit a crime defined under paragraph (1) or (2).”
(Emphasis added.)
K.S.A.2013 Supp. 21–5301(a) defines attempt as “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”
Thus, it is clear that giving an attempt instruction in this case was legally appropriate because attempted aggravated sexual battery is a lesser included offense of aggravated sexual battery.
Our reading of the record leads us to conclude that giving an attempted aggravated sexual battery instruction was factually appropriate in this case. We are mindful that the jury found Tolliver not guilty of attempted rape but guilty of the alternative charge of aggravated sexual battery. This concerns us.
Raymond, Simon, Kimmy, and Farley all examined A.M.'s perineum area. Nobody noticed any bodily fluids, semen, cuts, bruises, or tears. Kimmy and Farley both testified they noticed some redness. However, Kimmy was not familiar with A.M. since she was not Kimmy's patient, and Farley could not determine whether the redness was due to incontinence or sexual contact. The State claims: “Tolliver admitted to Agent McManigal that his DNA would be ‘all over’ A.M. because he touched her.” After reviewing the DVD in the record, it is clear this statement was taken out of context. Tolliver said his DNA would be “all over” A.M. because he worked with A.M. and had been in her room, not because he touched her inappropriately without his gloves, as the State implies. The jury also heard testimony that Farley took several swabs from A.M. to test for DNA. There was no genetic material or DNA linking those swabs to Tolliver.
The jury heard testimony from Raymond that he saw Tolliver with his pants down. The jury also heard several witnesses testify to a different version of Raymond's story. The jury is in the best position to weigh the evidence. But a criminal defendant has a right to instructions on all lesser included offenses supported by the evidence as long as the evidence justifies a jury verdict consistent with the defendant's theory. Of course, if the jury could not, from the evidence, reasonably convict the accused of the lesser offense, then an instruction on a lesser included offense is not proper. State v. Thomas, No. 97,767, 2008 WL 762515, at *2 (Kan.App.) (unpublished opinion) rev. denied 286 Kan. 1182 (2008).
Notable for its absence is any proof in the record that Tolliver even touched A.M. with or without any sexual intent. Touching is an element of the crime of aggravated sexual battery that the State is required to prove beyond a reasonable doubt. Under such a charge, the touching of A.M. had to have been done with the intent to arouse or satisfy the sexual desires of Tolliver or another. See K.S.A.2013 Supp. 21–5505(a).
We turn now to the second step of our analysis as required by Smyser. With all of the different versions of Raymond's reports, the lack of forensic evidence of any sexual fluids being present, the possibility that the redness in A.M.'s intimate areas could be due to her brief, and no evidence of Tolliver touching A.M., we are firmly convinced that the jury would have reached a different verdict had the attempted aggravated sexual battery instruction been given. We conclude that failure to give the instruction was clearly erroneous. Therefore, we reverse Tolliver's conviction and remand for a new trial.
Because we are reversing this case and remanding for a new trial, we need not address the issues concerning sufficiency of the evidence and alternative means. Finally, as Tolliver's sentence is vacated with this reversal, we need not address his Apprendi issue.
Reversed and remanded for a new trial.