State v. McIntosh

• Decision Date: 05 April 2002
• Docket Number: No. 86,386.,86,386.
• Citation: 43 P.3d 837,30 Kan. App.2d 504
• Parties: STATE OF KANSAS, Appellee, v. JAMES McINTOSH, Appellant.
• Court: Kansas Court of Appeals

30 Kan. App.2d 504

43 P.3d 837

STATE OF KANSAS, Appellee, v. JAMES McINTOSH, Appellant.

No. 86,386.

Court of Appeals of Kansas.

Opinion filed April 5, 2002.

Paige A. Nichols, and Reid T. Nelson, assistant appellate defenders, Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Thomas R. Stanton, deputy district attorney, Keith Schroeder, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before ELLIOTT, P.J., GREEN, J., and PADDOCK, S.J.

GREEN, J.:

James McIntosh appeals his convictions of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. On appeal, McIntosh argues that the trial court erred by (1) denying his motion for an independent psychological examination of the victim; (2) denying his motion for an independent physical examination of the victim; (3) excluding evidence that the victim had accused her brother of trying to molest her; (4) excluding evidence that the victim's mother accused McIntosh of molesting other children; (5) failing to dismiss the case because the police did not properly preserve evidence; (6) allowing an expert witness to describe the behavioral characteristics of sexually abused children; and (7) failing to give a multiple acts unanimity instruction. We disagree and affirm.

McIntosh lived with Zoe D., his girlfriend, from December 1995 until July 1999. After McIntosh moved out, Zoe's daughter, A.D., told her mother that McIntosh had sexually abused her. Zoe reported the sexual abuse to the police.

A.D. was interviewed by Detective Eric Buller, but the interviews were not recorded. A.D. told Detective Buller that McIntosh raped her using his finger and penis and that he anally and orally sodomized her. A.D. stated that the incidents occurred in several different locations throughout their residence and in the family van. A.D. also told the detective that the sexual abuse began when McIntosh moved into the house when A.D. was 7 years old and ended when McIntosh moved out of the house when she was 10 years old.

McIntosh was charged with five counts of rape, nine counts of aggravated criminal sodomy, five counts of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Two counts of aggravated criminal sodomy and two counts of aggravated indecent solicitation of a child were dismissed at the preliminary hearing. Single counts of aggravated criminal sodomy and rape were dismissed by the State after it conceded that it could not prove that those offenses occurred in Reno County, Kansas. A jury convicted McIntosh of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. McIntosh was sentenced to 316 months' imprisonment.

Independent Psychological Examination

McIntosh argues that the trial court erred in denying his motion for an independent psychological examination of A.D. McIntosh portrays this issue as a matter of exclusion of evidence necessary to present his defense theory which would constitute a denial of his due process right to a fair trial. See Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed.2d 297, 93 S. Ct. 1038 (1973). Although McIntosh had a right to present his theory of defense, that right is subject to statutory rules and case law interpretation of the rules of evidence and procedure. See State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). An examination of the record and pertinent authorities indicates that there is nothing more than an ordinary evidentiary ruling at issue. See State v. Sperry, 267 Kan. 287, 289, 978 P.2d 933 (1999). McIntosh cannot redefine the issue as a denial of the right to present a defense and thereby transform the issue from that of a simple evidentiary ruling into a constitutional issue.

In State v. Gregg, 226 Kan. 481, 487, 602 P.2d 85 (1979), the trial court denied the defendant's motion for psychiatric examination of the complaining witness in a sex crime case. The Gregg court stated that "[t]he question then becomes whether the trial court abused its discretion in the denial of the motion." 226 Kan. at 489; see State v. Lavery, 19 Kan. App.2d 673, 676, 877 P.2d 443,rev. denied 253 Kan. 862 (1993). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).

To support his argument that the trial court erred in denying his motion for an independent psychological examination of A.D., McIntosh cites K.S.A. 2001 Supp. 60-235(a), which provides:

"When the mental or physical condition, including the blood group, of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in the party's custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined...."

McIntosh's reliance on this statute is misplaced because the statute is a rule of civil procedure. In fact, the Gregg court stated that "[a] psychiatric examination of a party in a civil action may be ordered pursuant to K.S.A. 60-235 when the party's mental condition is in issue." (Emphasis added.) 226 Kan. at 485. The instant case, however, is a criminal matter. As such, A.D. is not a party to the action because the parties in a criminal case are the State and the defendant. See State v. Dressel, 241 Kan. 426, 432, 738 P.2d 830 (1987). As a result, McIntosh cannot rely on K.S.A. 2001 Supp. 60-235(a) to support his argument that the trial court erred in denying his motion for an independent psychological evaluation of A.D.

Nevertheless, McIntosh could compel a psychological examination under Gregg. The Gregg court held that "a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination." 226 Kan. at 489. Some of the factors cited by the Gregg court to be considered in determining if such compelling circumstances exist are the child victim's mental instability, the victim's lack of veracity, whether similar charges by the victim against other men were proven to be false, and any other reason why the victim should have been required to submit to such an examination. 226 Kan. at 490.

Here, McIntosh argues that an independent psychological examination was required because a State witness completed a sexual abuse evaluation of A.D. and that he wanted his own expert to evaluate A.D. Specifically, McIntosh wanted an independent psychological examination of A.D. to determine whether A.D. suffered from post traumatic stress disorder as found by the State's witness. In addition, McIntosh wanted to ascertain the effect of the repeated questioning on A.D.'s memory of the alleged events. The trial court denied McIntosh's motion for a psychological examination of A.D. after finding that none of the factors cited by the Gregg court were argued by McIntosh.

We find that the trial court correctly determined that McIntosh failed to establish a compelling reason for A.D. to submit to an independent psychological examination. At the hearing on the motion for a psychological examination, McIntosh did not argue that A.D. was mentally unstable, that she lacked veracity, or that she had made false charges against other men. Moreover, the grounds argued by McIntosh did not constitute a compelling reason to require an independent psychological examination. McIntosh could have attacked the finding of post traumatic stress disorder without conducting an independent examination of A.D. Similarly, McIntosh could have cross-examined the State's witnesses concerning the psychological evidence as to the effect of repeated questioning on A.D.'s recollection of the alleged incidents. As a result, we find that McIntosh has failed to carry his burden to show that the trial court erred in denying his motion for an independent psychological evaluation of A.D.

Independent Physical Examination

McIntosh also argues that the trial court erred in denying his motion for an independent physical examination of A.D. McIntosh claimed that an independent physical examination was necessary because the State's physician found evidence that A.D. had been sexually abused but that no photographs were taken of her injuries. McIntosh claims that the trial court's refusal to allow an independent physical examination of A.D. prevented him from presenting his theory of defense which resulted in a denial of his right to due process. However, as discussed in the previous issue, McIntosh is attempting to transform an evidentiary issue into a constitutional one. As a result, the issue is not whether the trial court's denial of his motion for a physical examination of A.D. violated his due process rights. Instead, the issue is simply whether the trial court erred in denying McIntosh's motion for an independent physical examination.

To support his argument that the trial court had authority to require an independent physical examination of the victim, McIntosh relies on K.S.A. 2001 Supp. 60-235(a). However, as previously discussed, that statute is not applicable in the present case because it only applies to civil proceedings.

The Kansas appellate courts have not considered whether a trial court may permit a criminal defendant to conduct an independent physical examination of the victim. In denying McIntosh's motion for a physical examination of A.D., the trial court relied on Gregg, even though that case involved a psychological examination, not a physical examination. The trial court found that McIntosh failed to establish a compelling reason to require A.D. to...