Opinion
No. 110,169.
2015-01-30
STATE of Kansas, Appellee, v. James W. VANROYEN, Appellant.
Appeal from Elk District Court; Michael E. Ward, Judge.Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.Natalie Chalmers, assistant solicitor general, of Office of the Kansas Attorney General, for appellee.
Appeal from Elk District Court; Michael E. Ward, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Natalie Chalmers, assistant solicitor general, of Office of the Kansas Attorney General, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 2011, James W. VanRoyen was convicted by a jury of nine counts of aggravated indecent liberties with a child; three counts of sexual battery; one count each of indecent solicitation of a child, aggravated indecent solicitation of a child, criminal sodomy, and aggravated criminal sodomy. There were three victims: K.V. (DOB 1994), K.L.V. (DOB 1995), and H.V (DOB 1997). The State alleged the crimes occurred in Elk County.
VanRoyen is a close relative of the victims. The victims lived with family members in a trailer in rural Elk County. VanRoyen lived with other family members at “grandma's house,” which was also located in rural Elk County about 3 miles from the trailer.
Together, the three victims described a pattern of repeated sexual abuse by VanRoyen, stating various sex acts had occurred “too many [times] for [them] to count” or “a million times.” On appeal, VanRoyen does not challenge the sufficiency of the evidence for the acts themselves. Instead, he challenges the sufficiency of the evidence for when and where the acts occurred.
Some of the convictions were for off-grid felonies because the victim was under 14 years of age when the offenses occurred. The trial court ran all of the sentences concurrently, resulting in VanRoyen serving a single hard–25 life sentence. Additional facts related to the individual crimes will be set out in the analysis.
VanRoyen appeals his convictions in Counts 1, 2, 4, 5, 6, 7, 12, 13, 14, and 16. Having carefully considered the record and the parties' briefs, we affirm the convictions in Counts 1, 2, 4, 5, 6, 7, 14, and 16 and reverse the convictions and vacate the sentences related to Counts 12 and 13.
Issues Related to the Preliminary Examination
VanRoyen contends his conviction on Count 4, relating to the off-grid aggravated criminal sodomy of K.V., should be reversed “as a matter of law.” When arguing for this count at the preliminary examination, the State relied on a specific instance of sodomy which occurred in a bam. After that hearing, however, the prosecutor discovered the bam incident occurred on a different date, outside of the statute of limitations. On appeal, the State submits (as it did in the district court) that other occasions of aggravated criminal sodomy against K.V. occurred within the statute of limitations and within the time period charged in Count 4. VanRoyen claims, however, that as a result of his conviction for Count 4, he was deprived of due process, and the prosecutor committed misconduct.
Our standard of review on due process claims is unlimited. State v. Robinson, 281 Kan. 538, 540, 132 P.3d 934 (2006). We apply a two-fold standard on prosecutorial misconduct claims, first determining whether misconduct occurred, and if it did, asking whether the defendant has shown plain error. See State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The preliminary examination was held on March 1, 2012. To bind VanRoyen over for arraignment and trial on Count 4, the State offered proof, in part, that VanRoyen committed the crime of aggravated sodomy between November 22, 2006, and February 22, 2008. The former date was the start of the statute of limitations period, and the latter date was the day before K.V.'s 14th birthday.
In support of this and other counts, K.V. testified that VanRoyen made her engage in oral sodomy “[m]aybe a dozen times” before she was taken into protective custody on November 3, 2011. K.V. said the first incident occurred in a barn near grandma's house. A family member discovered the sexual abuse while it was occurring and, as a consequence, K.V. was punished.
K.V. could not recall the specific date of the barn incident at the preliminary examination, but she testified the oral sodomy incidents had begun when she was 14 or 15 years of age. In contrast, K.L.V. testified the barn incident had occurred in 2007, and certainly during the 2006–2007 school year. Since K.V. was actually 12 and 13 years of age during the 2006–2007 school year, the prosecutor relied on the testimony of K.L.V. to prove Count 4 at the preliminary examination:
“Count 4 ... the date is November 22d, 2006 through February 22d of 2008.... This is for oral sodomy with a child under 14. Your Honor, this incident would be the [barn] incident where [K.V.] was caught.... Now, I realize that [K.V.] didn't put the date in this time frame. But then we had [K.L.V.] come in and was certain that the date was sometime in 2007 she thought. And so that is ... the specific act that we're after in Count 4.”
After the preliminary examination but before trial, the family member who had discovered the sexual abuse recalled that the barn incident occurred in September 2006—beyond the statute of limitations period. The State notified VanRoyen's counsel and the trial court of the new evidence, and there were extensive discussions with the trial court regarding the admissibility of this aggravated criminal sodomy of K.V. Prior to trial, the trial court heard evidence from three witnesses to determine whether the limitations period had been tolled by concealment. Ultimately, the trial court found the limitations period had not been tolled. As a result, the trial court did not allow the barn incident to provide the basis for Count 4, but it still permitted admission of the barn incident as a prior crime under K.S.A. 60–455.
On a related matter, prior to trial, both counsel also discussed with the trial court new allegations of sexual abuse by the youngest victim, H.V. At least one of the new allegations fit within the existing counts involving H.V., including the time frames. The State informed the trial court, however, that the new allegations were not part of the evidence presented at the preliminary examination. The trial court advised the parties it was “not going to allow you to argue that act as basis for conviction” since the new allegations had “never been subject to a preliminary hearing.” However, the trial court permitted admission of the new allegations as prior crimes under K.S.A. 60–455.
Due Process Claim
Turning now to VanRoyen's due process claim, he argues on appeal:
“Because there was no additional evidence of any aggravated sodomy within the proscribed [ sic ] time period and the State had elected to rely solely on the conduct that was eventually found to be outside of the statute of limitations, the district court lacked jurisdiction to try and convict Mr. VanRoyen of Count 4 because he had not been bound over for trial on any other evidence or information.”
It is unclear whether VanRoyen intends to challenge the sufficiency of the evidence relating to Count 4 at the preliminary examination or to contest the trial court's jurisdiction at trial. We will consider both claims.
First, we are persuaded the evidence was sufficient to bind VanRoyen over for arraignment and trial on Count 4. The standard of proof at the preliminary examination was probable cause, K.S.A. 22–2902(3), meaning “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” State v. Washington, 293 Kan. 732, 734, 268 P.3d 475 (2012). The trial court had to “draw inferences favorable to the prosecution from the evidence presented,” and it was not to “be concerned with sufficiency of the evidence to support a conviction. [Citations omitted.] Even where the evidence is weak, the defendant should be bound over for trial if the evidence tends to disclose that the offense charged was committed and that the defendant committed it.” 293 Kan. at 734.
K.V. testified the incidents of oral sodomy began in the barn, and K.L.V. testified the barn incident occurred during the 2006–2007 school year. Evidence that the sexual abuse, 12 incidents in total, started in the 2006–2007 school year could cause a prudent person conscientiously to entertain a reasonable belief that at least one incident of the sexual abuse occurred sometime after the beginning of the limitations period on November 22, 2006, but before K.V. turned 14 on February 22, 2008.
We acknowledge that the prosecutor at the preliminary examination identified the barn incident as “the specific act that we're after in Count 4” and that this statement changed by the time of trial. VanRoyen, however, cites no authority limiting a magistrate's probable cause determination at the preliminary examination to a prosecutor's arguments when deciding whether a defendant should be bound over for arraignment and trial. Instead, the controlling statute emphasizes the evidence presented at the hearing:
“If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant.” K.S.A. 22–2902(3).
Moreover, any attack on the evidence at a preliminary examination is waived on appeal if it not was raised in the trial court. See State v. Butler, 257 Kan. 1043, 1059–60, 897 P.2d 1007 (1995). After the preliminary examination and during the pretrial hearings when the new witness testified that the barn incident occurred in September 2006, VanRoyen did not argue this evidence was somehow insufficient to bind him over on Count 4. Importantly, as the State emphasizes, even VanRoyen's counsel acknowledged during these arguments that there were incidents other than the barn incident which could provide the factual basis to support Count 4.
Additionally, “where an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.” 257 Kan. at 1062. VanRoyen does not argue prejudice at trial, at least on this issue. Any error during the preliminary examination was therefore waived or abandoned on appeal. See State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012).
Lastly, the trial court excluded evidence of H.V.'s new sexual abuse allegations as direct proof at trial because they had not been presented at the preliminary examination. This indicates the trial court was aware of what evidence had not been presented at the preliminary examination, and the court was carefully preserving VanRoyen's rights. Moreover, VanRoyen does not challenge the admission of this other crimes evidence under K.S.A. 60–455. In sum, nothing in the record shows VanRoyen was denied due process with regard to the preliminary examination.
Lack of Jurisdiction Claim
There was also jurisdiction for the district court to conduct the preliminary examination and trial. As just discussed, there was evidence that during the time period alleged in Count 4 K.V. was the victim of aggravated criminal sodomy and probable cause existed to believe VanRoyen committed the crime. As a result, VanRoyen was bound over to the district court for arraignment and trial was proper. See K.S.A. 22–2902(3).
In support of its position, the State cites State v. Brown, 299 Kan. 1021, 327 P.3d 1002 (2014), which featured a jurisdictional attack on a preliminary examination. Our Supreme Court rejected the attack, stating it “fails on multiple levels, both factual and legal.” 299 Kan. at 1029. The most important point for the present case is the principle, which we have already stated, that errors during the preliminary examination may be waived. In Brown, our Supreme Court reasoned: “Obviously, if defects or shortcomings in the preliminary hearing proceedings can be waived, then they cannot be considered jurisdictional errors; subject matter jurisdiction cannot be conferred upon a district court by consent, waiver, or estoppel.” 299 Kan. at 1030.
We conclude the trial court had subject matter jurisdiction with regard to Count 4.
Prosecutorial Misconduct Claim
In a related argument, VanRoyen claims he was denied a fair trial due to prosecutorial misconduct. VanRoyen bases his claim on the prosecutor's statements made during arguments at the pretrial hearing that Count 4 was supported by “several incidents” apart from the one which occurred in the barn. As mentioned earlier, VanRoyen's counsel made similar acknowledgments to the trial court during the same pretrial hearing. VanRoyen's counsel even suggested that instead of tolling the statute of limitations, the barn incident could be considered “60–455 evidence ... and then the other ... oral occurrences that are alleged could still count into Count 4.” Given the trial court's ruling, it is apparent the trial court followed VanRoyen's counsel's recommendation.
The question then arises whether both counsel accurately told the trial court that other incidents proven at the preliminary examination supported Count 4. As discussed earlier, K.V. testified that about 12 incidents of oral sodomy occurred before she was taken into protective custody on November 3, 2011. She recalled these incidents started with the barn incident, and testimony by K.L.V. established that the barn incident occurred during the 2006–2007 school year, when K.V. was 12 or 13. Of note, K.V. could not specify the dates of the remaining 11 incidents, but in order for none of them to fall within the time frame charged in Count 4, VanRoyen would have first engaged in the barn incident and then stopped sexually abusing K.V. for the remainder of the 2006–2007 school year, over the summer of 2007, through the fall of 2007, and then only resumed after February 23, 2008, when K.V. had turned 14.
The evidence at the preliminary examination did not support this factual scenario. Instead, it showed that VanRoyen was sexually abusing the girls opportunistically and repeatedly. Given the standard of proof at a preliminary examination, the prosecutor had a sufficient factual basis to properly argue to the district court that Count 4 was supported by incidents other than the barn incident. VanRoyen has not shown prosecutorial misconduct.
Sufficiency of Evidence to Support Convictions for Counts 1 and 2
VanRoyen challenges the evidence supporting the convictions for Counts 1 and 2. Each count charged off-grid aggravated indecent liberties with K.V., a child under age 14. In particular, VanRoyen challenges the proof of the offense date charged in Count 1, January 25, 2007, but he does not challenge the offense date charged in Count 2, March 7, 2007. With regard to both counts, VanRoyen asserts the State failed to prove venue in Elk County.
In resolving this issue, an appellate court must consider all the evidence in the light most favorable to the prosecution and decide whether a rational factfinder could have found VanRoyen guilty beyond a reasonable doubt. See State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
Offense Dates
As K.V. described the crimes, the initial and predominate offense by VanRoyen was that “[h]e would rub himself on me.” She testified he “would lay [ sic ] on top and just start moving.” She said, “His lower part [penis]” would touch “[m]y lower part [vagina],” while both individuals were wearing clothing.
K.V. said the “rubbing” would happen at the trailer, at grandma's house, or on “country roads.” With regard to the roads, she said VanRoyen would “pull me out of classes” and “take me out on an old dirt road, and he would rub himself on me.” K.V. testified that VanRoyen would return her to school within about 30 minutes.
At trial on November 14, 2012, when K.V. was 18 years old, she could not recall the specific dates VanRoyen had taken her from school. However, as related to Count 1, the State produced a “Student Daily Checkout Sheet” for January 25, 2007, signed by K.V. when she was 12 years old. Marked State's Exhibit 6, the document showed K.V. had left school for about 26 minutes on that day. Next, as related to Count 2, the State produced State's Exhibit 7, a similar checkout sheet dated March 7, 2007, when K.V. had recently turned 13 years of age. This document showed that she had signed out of school for 32 minutes.
After reviewing these exhibits with K.V., the prosecutor asked, “And can you remember any other reason that you would have been checked out for that length of time?” K.V. answered, “No.”
VanRoyen challenges the proof of the offense date charged for Count 1 because the prosecutor limited this last question and answer to Count 2. VanRoyen argues that “[K.V.] was only asked about what might have happened as it related to Exhibit 7. The State failed to make a similar inquiry as to Exhibit 6. Therefore, there was no testimony from [K.V.] as to why she checked out of school on January 25, 2007.”
Applying our standard of review, we are not persuaded by VanRoyen's argument. Considering all of the evidence in the light most favorable to the State, the prosecutor asked K.V. to examine two checkout sheets in sequence, and she confirmed her own signature and the times she was gone from school on January 25, 2007, and on March 7, 2007. The prosecutor then asked if she could recall any other reason she would be gone “for that length of time.” Since the length of time in each incident was about 30 minutes—the duration of time which K.V. had testified it took for VanRoyen to commit the sexual abuse and return her to school—the jury could reasonably conclude K.V. was referring to both incidents when she answered the prosecutor's question.
Moreover, during cross-examination, K.V. again indicated that she was referring to both incidents:
“Q.... Earlier you testified that you recall a rubbing incident ... in January of 2007 and March of 2007, I believe, due to these school checkout sheets.
“Is it accurate, then, you don't recall the incident as far as when they [occurred], but just looked at this sheet and said, yeah, something occurred there probably?
“A. Yes.”
Considering the content and context of the direct and cross-examination of K.V., we conclude a rational jury could have found VanRoyen guilty beyond a reasonable doubt of Counts 1 and 2 based, in part, upon the State's proof of the two offense dates.
Elk County Venue
VanRoyen concedes the State proved that the trailer and grandma's house are located in Elk County, but he contends K.V. “never identified where [he] would drive after they left school.” The State counters that K.V. directly testified that these and other incidents occurred in Elk County.
In resolving this question we are guided by our Supreme Court's precedent: “Venue may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred.” State v. Damewood, 245 Kan. 676, Syl. ¶ 12, 783 P .2d 1249 (1989).
The prosecutor asked K.V. at the end of her testimony, “Going back to these incidents and you've named a number of places where they happened, the trailer, your grandma's house ... out on country roads away from the school. What county were those incidents in?” K.V. answered, “Elk County.” The State is correct that K.V. testified to the venue of these two crimes.
The State also argues that circumstantial evidence proved the incidents occurred in Elk County. See State v. Martin, 241 Kan. 732, Syl. ¶ 6, 740 P.2d 577 (1987) (“Venue is a question of fact ... and, like any other fact, it may be proved by circumstantial evidence.”).
In 2007, before moving to the trailer, K.V. lived in Longton, which is located in Elk County. The school she attended was also in Longton. The State introduced a map of Elk County in evidence, and it shows Longton is some distance from the county line. It is reasonable to infer, as the State suggests, that given the circumstances of time and distance, VanRoyen could not have driven far from the school when he returned K.V. within about 30 minutes, which included 5 to 10 minutes of sexual abuse while parked.
Considering both the direct and circumstantial evidence, and viewing it in the light most favorable to the prosecution, a rational jury could have found VanRoyen guilty beyond a reasonable doubt of Counts 1 and 2 based, in part, upon the State's proof that both offenses occurred in Elk County.
Sufficiency of Evidence to Support Convictions for Counts 4, 5, 6, and 7
VanRoyen challenges the sufficiency of the evidence supporting the convictions for Counts 4, 5, 6, and 7. In particular, VanRoyen complains that KV “had no independent recollection of any oral incidents after the statute of limitations had run.”
At the outset, VanRoyen does not explicitly brief Count 7, misdemeanor sexual battery against K.V., but it appears this is a typographical error. In fact, VanRoyen refers to charges of “sexual battery as alleged in Counts 5 and 6,” but Count 5 actually charged VanRoyen with criminal sodomy. Since VanRoyen correctly identifies Count 5 as criminal sodomy in the same issue, and since Counts 6 and 7 were for sexual battery against K.V., we assume that VanRoyen also intends to challenge Count 7. We will not, however, consider Count 3 on appeal. VanRoyen fails to brief Count 3, and issues not briefed are deemed waived or abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
As discussed earlier with regard to the preliminary examination, in Count 4 the State charged VanRoyen with off-grid aggravated criminal sodomy against K.V., which occurred between November 22, 2006, and February 22, 2008. At trial, K.V. testified that VanRoyen made her engage in oral sodomy “[m]aybe a dozen times.” She testified generally that VanRoyen sexually abused her continuously, stopping only for a week or so at a time. Unlike at the preliminary hearing, the State called the family member who had discovered the sexual abuse, and she testified the barn incident occurred on September 3, 2006.
At trial, K.V. directly testified that oral sodomy had in fact occurred at least one time within the dates alleged in Count 4. Moreover, given her testimony that the oral sodomy was occurring not occasionally but repeatedly from September 2006, it may be inferred circumstantially that at least 1 of the 11 other incidents of oral sodomy occurred between November 22, 2006, and February 22, 2008. Although K.V. could not testify to a specific day within the dates alleged, a rational factfinder, considering the evidence in the light most favorable to the prosecution, could conclude beyond a reasonable doubt that VanRoyen had committed aggravated criminal sodomy as alleged in Count 4.
In Count 5, the State charged VanRoyen with severity level 3 criminal sodomy against K.V., which allegedly occurred between February 23, 2008, and February 22, 2010. Once again, K.V. specifically testified at trial that the sexual abuse occurred during the time period charged. Additionally, given the testimony by K.V. to a pattern of sexual abuse, it may be inferred circumstantially that at least 1 of the 11 other incidents of oral sodomy after the barn incident occurred between February 23, 2008, and February 22, 2010. As with Count 4, this direct and circumstantial evidence was sufficient to support the conviction of criminal sodomy in Count 5.
In Count 6, the State charged VanRoyen with misdemeanor sexual battery against K.V. between February 23, 2010, and June 30, 2011. This charge related to a sexual rubbing incident after K.V. had turned 16 years old. At trial, K.V. not only testified that the rubbing happened “[a] lot” after she turned 16, she described one incident in particular where her father went to town, leaving her in the trailer with VanRoyen. She said VanRoyen took her into her father's bedroom and “rubbed himself on me.” Viewed in the light most favorable to the prosecution, a rational factfinder could have found VanRoyen guilty beyond a reasonable doubt of committing this crime within the time period alleged.
In Count 7, the State charged VanRoyen with misdemeanor sexual battery against K.V. on or about November 2, 2011. K.V. testified that the night before she was taken into protective custody, VanRoyen took her into the barn, locked the door, and “laid on me.” Evidence at trial showed that K.V. was taken into protective custody on November 3, 2011. As a result, there was direct testimony by the victim supporting this conviction.
As to all these counts, VanRoyen generally complains about the “vagaries” of K.V.'s testimony. It is true that K.V. could not always relate a specific incident to a specific date, but “[w]here a prosecution is not commenced promptly after the alleged commission of an offense or the event is not otherwise brought to public notice it is not unusual for uncertainty as to dates to appear particularly where the memories of children are involved.” State v. Sisson, 217 Kan. 475, 478, 536 P.2d 1369 (1975). VanRoyen urges us to consider that the trial court ordered judgments of acquittal regarding K.L.V. on Counts 8, 9, 10, and 11, but we will not consider the trial court's basis for those acquittals because they relate to a different victim and different counts. Under our standard of review, there was sufficient evidence to support the convictions for Counts 4, 5, 6, and 7.
Sufficiency of Evidence to Support Convictions for Counts 14 and 16
VanRoyen claims the State's evidence failed to establish the offense dates for Counts 14 and 16. Inexplicably, VanRoyen presents argument with respect to Count 14, but he omits any argument on Count 16. Both convictions were for off-grid aggravated indecent liberties with H.V.
The range of dates for Count 14 was January 1, 2011, to June 30, 2011. The jury was instructed to decide whether VanRoyen had “touched” H.V. “in a lewd manner” during this time period. The critical question is, therefore, whether the evidence showed a lewd touching during January 1, 2011, to June 30, 2011.
At trial on November 15, 2012, H.V. testified that VanRoyen had opened the door to the bathroom when she was inside and “grabbed [her] butt” and “[her] boobs.” She was certain this touching happened in 2011, but she could not remember the date. The prosecutor played a DVD of an interview of H.V. conducted on November 3, 2011, just after she was taken into protective custody. On that date, more than 1 year before trial, H.V. advised that the bathroom incident occurred in June 2011, when she was 13 years of age. In short, H.V.'s statement made during the pretrial interview provided sufficient evidence to support the time period alleged by the State in Count 14.
The range of dates alleged in Count 16 was “sometime in September 2011.” Since VanRoyen fails to brief this count, we could deem it waived or abandoned on appeal. See Boleyn, 297 Kan. at 633. However, the evidence clearly supported the conviction. H.V. testified that in September 2011, less than 2 months before she was taken into protective custody, she was sleeping in the front room of her grandma's house. She awoke to find VanRoyen lying on her, dressed only in boxers, moving his penis “[u]p and down” on her hip. She said he then “put his pointed finger” into her “butt crack” and “was going up and down.” H.V. testified that she woke her younger sister afterwards and told her, and this sister testified at trial that she thought the incident had occurred in September 2011. Viewing this testimony in the light most favorable to the prosecution, the State established the time period alleged in Count 16.
Sufficiency of Evidence to Support Convictions for Counts 12 and 13
With regard to Counts 12 and 13, VanRoyen contends the State did not provide sufficient evidence to establish that the sexual abuse occurred in Elk County.
Count 12 alleged VanRoyen had committed severity level 4 aggravated criminal liberties with K.L.V. between July 1, 2011, and September 28, 2011. At trial, the prosecutor first asked K.L.V. about criminal acts which allegedly occurred in earlier time frames and were charged in other counts. In response, K.L.V. testified that VanRoyen had started grabbing her breasts when she was 12. She said this conduct occurred “[t]oo many [times] for me to count” and that it “happened at the pole barn or going into Longton” in VanRoyen's truck.
The prosecutor then said he wanted to “talk about ... from July 1st of 2011 to the day before your 16th birthday.” Unlike her testimony regarding VanRoyen's earlier behavior, K.L.V. now described a specific incident where VanRoyen had touched her breasts, “[a]bout three weeks before my birthday,” meaning her 16th birthday on September 29, 2011. This incident fell within the range of dates charged in Count 12.
Next, the prosecutor asked K.L.V. questions related to venue:
“A. Where did this happen?
“Q. I don't recall.
“A. So one of the places you've talked about earlier?
“Q. What?
“A. Was it one of the places you've talked about earlier or was it another place?
“Q. I don't recall.
....
“Q. Was this in a vehicle?
“A. I can't recall at this moment. It isn't something that I remembered.”
On cross-examination, VanRoyen's trial counsel showed K.L.V. a transcript of her preliminary hearing testimony wherein she testified that the last incident of sexual abuse had occurred 3 weeks before she was taken into protective custody on November 3, 2011. The prosecutor on redirect examination then asked K.L.V., “Do you still remember the incident three weeks before your 16th birthday?” K.L.V. testified, “I don't because it's not something I want to remember.” The prosecutor did not inquire further.
Assuming the evidence was sufficient to prove the existence of a criminal act within the time charged for Count 12, VanRoyen argues “there was no evidence that this incident occurred” in Elk County. The State responds that the jury could have inferred the incident occurred in VanRoyen's truck, but we do not think it could have done so beyond a reasonable doubt. K.L.V. was testifying about earlier time periods when she mentioned VanRoyen's truck, and she could not or would not say the same thing about the incident 3 weeks before her 16th birthday.
The State points to no other evidence establishing venue on this count, and our review of the record discovered none. We conclude the State failed in its burden to prove venue with regard to Count 12.
Count 13 alleged VanRoyen had committed misdemeanor sexual battery against K.L.V. between September 29, 2011, and November 2, 2011. As just discussed, the testimony by K.L.V. regarding an incident that occurred 3 weeks before she was taken into protective custody was developed on cross-examination, and she also mentioned it during a recorded interview. Nevertheless, VanRoyen is correct when he argues that “neither the State nor defense counsel ever inquired as to where this incident occurred.” The State again maintains the jury could conclude the acts had occurred in VanRoyen's truck, but there was little to support that inference, and almost nothing to show where the truck might have been located at the time. We conclude the State failed in its burden to prove venue with regard to Count 13.
In conclusion, the convictions for the crimes alleged in Counts 1, 2, 4, 5, 6, 7, 14, and 16 are affirmed. The convictions for the crimes alleged in Counts 12 and 13 are reversed and the sentences vacated.
Affirmed in part, reversed in part, and vacated in part.