Gaona v. State
| Decision Date | 09 August 2021 |
| Docket Number | 5:19-cv-03262-HLT |
| Parties | RODOLFO GAONA, Petitioner, v. STATE OF KANSAS, Respondent. |
| Court | U.S. District Court — District of Kansas |
Petitioner Rodolfo Gaona (“Gaona”), a prisoner in the custody of the State of Kansas, brings this petition for federal habeas corpus relief under 28 U.S.C. § 2254.[1] Doc. 1. Because the stated grounds are unexhausted, procedurally defaulted, or not meritorious, the Court dismisses in part and denies in part Gaona's petition and declines to issue a certificate of appealability.
The Charges: Gaona was charged with three counts of rape in violation of K.S.A. 21-3502(a)(2) and four counts of aggravated criminal sodomy in violation of K.S.A 21-3506(a)(1).[2]All seven counts involved Gaona's stepdaughter, M.L.
The Trial: During trial, the State called M.L.'s mother R.G., as its first witness. R.G. testified that she married Gaona and that she, Gaona, M.L., and her son lived together. R.G. further testified that M.L. was 11 years old and that she had been diagnosed with Attention Deficit Hyperactivity Disorder. R.G. worked second shift, and Gaona would watch the children while she was at work. M.L. typically arrived home from school before her brother, and Gaona arrived home from work between 5:30 p.m. and 6:30 p.m.
R.G testified that the morning of December 21, 2005, she, her son, and M.L. went shopping after she and Gaona had an argument. During the outing, her son told her that Gaona and M.L. had a “sick game.” When R.G. asked M.L. what he was talking about, M.L. started crying and “told me that she couldn't tell me because something bad would happen to me.” After M.L. calmed down, R.G. asked M.L. questions “to be sure that there was actually a crime before I did anything about it, ” including asking whether Gaona put his penis in M.L.'s vagina. Later, once R.G. had taken M.L. to the police station, M.L. talked to Detective Jeff Steele and investigator Nikki Wiecken. M.L. then was taken to the hospital for a sexual abuse evaluation by a Sexual Assault Nurse Examiner (“SANE”). After the SANE evaluation, M.L. was interviewed by Wiecken with a social worker present.
R.G. also testified that M.L. told her that the encounters with Gaona caused M.L. to bleed, but R.G. never found blood on M.L.'s clothes, bedding, or the toilet. R.G. testified that M.L. had mentioned having pain while going to the bathroom but was never seen by a doctor for this complaint. R.G. also testified that M.L. told her that M.L. had seen a pornographic movie with Gaona and that Gaona had threatened her.
R.G. was questioned about other adult males with whom M.L. had been in contact and said that the only other such males were friends and neighbors. R.G. was also questioned about her relationship with Gaona. She testified that she and Gaona had disagreements, a few of which were loud and some of which occurred in front of the children. R.G. did not recall ever asking Gaona for a divorce, but Gaona had told her several times that she could leave him. Although R.G. remained married to Gaona at the time of his trial, she testified that she could not afford to get a divorce and that she and the children had not had contact with Gaona since M.L.'s allegations came to light.
M.L.'s brother, age 9, testified at trial that he could not remember what M.L. told their mom while shopping. He said that he had seen Gaona and M.L. in Gaona's bedroom, with M.L. lying on the bed and Gaona standing in front of the bed. M.L.'s brother said that Gaona was doing “[s]omething to my sister, ” which he called “[p]laying a nasty game with her.” At trial, M.L.'s brother said that he saw the “nasty game” more than once, but he could not remember how many times. Before trial, he had told a police officer that he saw it one time, but he had told his mother that he saw it more than once.
M.L.'s brother further testified that “my sister didn't seem that she liked” the “nasty game.” But he also said that he did not see Gaona touch M.L. and that both Gaona and M.L. had their clothes on each time he saw them. He said he never talked to M.L. about what he had seen, and Gaona had told him not to tell his mother. He did not tell his mother until the shopping excursion because he was afraid Gaona would hurt his mother.
M.L.'s brother also testified that he sometimes heard his mother and Gaona arguing but “not very much” and that it bothered him “a little bit.” He said that he only “kind of” liked Gaona as a stepfather and wanted to get rid of him “[a] little bit.”
M.L. testified at trial that she talked to her mother after her brother told her mom “what [Gaona] did.” She described going to the police station, telling a police officer what happened, and then seeing a nurse for an examination and telling the nurse what happened. M.L. said that she had to go to the nurse because Gaona “was doing something real bad.” When asked what that meant, M.L. first said “I don't want to say it, ” but then explained that it meant Gaona “was making me have sex with him.”
M.L. testified that she referred to her private parts as her “yaya” and to a boy's private parts as a “doinkey.” She stated that Gaona had touched her yaya. She said she “forgot” whether Gaona's doinkey touched her yaya, but she testified that his doinkey touched her “butt.” M.L. told the nurse that her yaya got sore and explained that it was caused by “[t]he doinkey.” She further testified that Gaona put his doinkey in her mouth, and she told him to quit. She also testified Gaona touched her butt with his finger, but she “forgot” if it went inside. M.L. first answered “[n]o, no, ” when asked if Gaona put his finger in her yaya, but then said that he did. She stated that she did not know how many times Gaona had touched her but that it was more than once. M.L. had previously testified that the last time Gaona touched her she had her eyes closed and did not see which part of his body touched her.
M.L. also testified that she and Gaona had watched a movie with naked people in it one time. She said that the touching that Gaona did to her was also what had happened in the movie. M.L. testified that she did not know the dates on which the touching occurred, but they happened when her brother was asleep or at a friend's house and her mom was at work. M.L. initially stated that the time her brother saw her and Gaona when she was on the bed, she and Gaona both had their clothes on and were not touching. She later testified, however, that her brother saw them more than once and that she did not know if they were clothed each time. M.L. said that Gaona had told her not to reveal what happened and said he would shoot her family if she did.
M.L. also testified that she did not like Gaona as a stepfather and that she wanted to get rid of him. She thought he was unfair when he punished her, and she did not like it when he argued with her mother, which happened often.
Pam Washburn, a SANE, testified about her examination of M.L., including M.L.'s description of what had occurred. M.L. told Washburn that her stepfather was having sex with her and showing her sex movies. Washburn testified that M.L. said, “He put his thing up my butt and, um, he tried to have sex with me”; “[t]hat's what he always does”; and “[t]hat's what he always does, puts his doinkey in my yaya.” M.L. also reported that she sometimes bled when she went to the bathroom. Washburn further testified that M.L. told her that M.L. and Gaona watched a sex movie on December 20, 2005, and that, on December 19, 2005, Gaona “tried to have sex with [her].”
Washburn testified that she had found an “irregular margin” on M.L.'s hymen, an “abnormal finding” for a pediatric patient and one consistent with sexual abuse. She observed no abnormal findings in M.L.'s anal area, but she testified that “injury to the anal area is extremely rare.” Washburn saw no physical evidence of acute trauma during her exam of M.L.
Wiecken was the investigator who interviewed M.L. on the day the crimes were reported and again the day after. Wiecken testified that she had special training in interviewing children but did not have a college degree. Wiecken completed a “Finding Words” program covering a particular interview protocol to be used when there were allegations of child sexual abuse. By the time of Gaona's trial, Wiecken had completed approximately 30 forensic interviews of children, 20 of which were before her interview of M.L. About half a dozen of the children were around M.L.'s age.
Wiecken testified that she attempted to get “sensory type details” from the children she interviewed because “these aren't things that a child can really be coached on.” Part of the Finding Words protocol calls for “exploring the alternative hypothesis, ” and Wiecken said that she and M.L. discussed other people in the home. M.L. denied that anyone else had touched her in the way
Gaona had touched her. Wiecken did not ask M.L. specifically if she had been around other adults on December 19 and December 20, 2005. Wiecken testified that she used dolls and anatomical drawings during her interviews with M.L., who “was having a hard time talking about what happened to her.” M.L. did talk about “sex movies” and disclosed the date of her last contact with Gaona. Wiecken's interviews of M.L. were videorecorded and the recordings were admitted into evidence and played to the jury.
Wiecken also interviewed M.L.'s brother twice but only recorded the second interview. Using dolls, M.L.'s brother told Wiecken that he had seen M.L. on the bed and Gaona standing by the bed and demonstrated with the doll a motion “described as a humping or [what] one might see in sexual acts.” M.L.'s brother told Wiecken...
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