State v. Andrews, No. 113,971
| Decision Date | 06 March 2020 |
| Docket Number | No. 113,971 |
| Citation | 458 P.3d 995 (Table) |
| Parties | STATE of Kansas, Appellee, v. Terrill L. ANDREWS, Appellant. |
| Court | Kansas Court of Appeals |
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McAnany, P.J., Green and Buser, JJ.
This is Terrill L. Andrews' direct appeal of his multiple convictions for sex crimes against three young girls. Andrews presents five issues for our consideration. We have reordered them for ease of analysis. First, Andrews contends that his statutory and constitutional speedy trial rights were violated when his defense counsel obtained unauthorized trial continuances. Second, Andrews asserts his statutory and constitutional rights were violated when he did not appear in court to object to defense counsel's unauthorized trial continuances. Third, he claims he was deprived of conflict-free defense counsel during the litigation. Fourth, Andrews states the district court erred when it found a complaining witness, T.H., was unavailable to testify at the bench trial and, as a result, admitted her preliminary hearing testimony in evidence at the trial. Fifth, Andrews argues that the district court erroneously denied his motion for a psychological evaluation of the complaining witness, A.C., who testified at the bench trial.
Upon our review of the parties' briefs, the extensive record on appeal, and considering the oral arguments, we do not find any reversible error regarding the issues presented and, therefore, we affirm the convictions.
In early October 2013, A.C., a 13-year old girl, and T.H., a 16 -year old girl, ran away together from a group home in Wichita. T.H. had previously met Andrews, who was 40 years old, and from October 10, 2013, until October 12, 2013, the two girls stayed at his residence. About October 12, 2013, A.C. left Andrews' residence and reported that Andrews had engaged in sexual intercourse with her on three occasions while at the residence.
A.C. made this report to Tiffany Smith, a coordinator at the Open Arms Child Development Center in Wichita. Smith immediately contacted the Wichita Police Department and a criminal investigation was commenced. Officer Shawn Isham interviewed A.C. at her foster home. A.C. told Officer Isham that Andrews had raped her "multiple times," and described the location of his residence. At trial, A.C. testified to three separate occasions that Andrews raped her and touched her breasts.
Nurse Ruthann Farley testified at trial. Farley conducted a sexual assault medical examination on A.C. at a local hospital, corroborated the girl's testimony, and stated that A.C. had abrasions and lacerations indicative of blunt force trauma. Farley opined that these injuries appeared recent and were consistent with A.C.'s account that she had been raped.
Upon learning of A.C.'s report, police officers visited Andrews at his residence to determine if other runaways were at the home. Andrews informed the officers he was the only person inside the house but he consented to a search of his residence. During the search, officers discovered T.H. hiding in a bedroom closet. Andrews was arrested.
The State obtained a search warrant to view the contents of Andrews' cellphone. At trial, Detective David Wertz testified that Andrews' cellphone contained a video of both A.C. and T.H. naked in the shower. The video included a view of Andrews reflected in the mirror and recorded his voice as he spoke to both girls. Andrews' cellphone also contained a video of him engaging in oral sexual relations with T.H.
At the preliminary hearing, T.H. testified that she had sexual intercourse and oral sexual relations with Andrews. She indicated that Andrews took some videos during the oral sexual relations. During trial, the district court found T.H. unavailable as a witness and, as a result, a transcript of her preliminary hearing testimony was read by the trial court.
A third victim, R.M., a 14-year-old girl, was identified during the search of Andrews' cellphone. The search revealed numerous lewd pictures of R.M. and sexually explicit text messages between Andrews' and R.M.'s cellphone numbers. At trial, R.M. testified that she had texted with Andrews for a few months before the sexual incidents occurred. In their text conversations, Andrews had claimed to be a teenager. R.M. testified that she had sexual intercourse with Andrews on three separate occasions.
Andrews was initially charged on October 16, 2013. An amended information was later filed which charged him with three counts of rape (A.C.); three counts of aggravated indecent liberties with a child (A.C.); three counts of aggravated indecent liberties with a child (R.M.); and two counts of sexual exploitation of a child (T.H.).
Following a bench trial held on February 10, 2015, Andrews was found guilty of three counts of rape (A.C.); three counts of aggravated indecent liberties with a child (R.M.); and two counts of sexual exploitation of a child (T.H.). The trial court acquitted Andrews of three counts of aggravated indecent liberties with a child (A.C.). The trial court made extensive and detailed findings of fact in support of its verdicts at the conclusion of the bench trial.
With regards to the three counts of rape involving A.C., the trial court found it was undisputed that A.C. was only 13 years of age at the time of the occurrences. The trial court noted that at trial, A.C. denied that she consented to sexual intercourse and this testimony was corroborated based on the report she made to the police. Still, the district court observed that given her age, "it doesn't really make any difference whether she consented to this or not." Additionally, the trial court commented that the forensic medical exam "found injuries consistent with intercourse." In summary, the trial court characterized the evidence of guilt as "strong."
As to the two counts of sexual exploitation of T.H., the trial court found that T.H. was 16 years old during the relevant time periods. Two videos discovered on Andrews' cellphone that were admitted in evidence "clearly indicate or show or depict [T.H.] engaging in sexually explicit conduct and it is done with the intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the defendant or any other person." Additionally, the trial court found that Andrews promoted the performance of the sex act by videotaping it. As to both counts, the trial court found the evidence of guilt was "overwhelming."
With regards to the three counts of aggravated indecent liberties with R.M., the trial court found that she was 14 years of age during the relevant time periods. The trial court concluded that on September 25, 2013, Andrews checked R.M. out of school and "she ended up at his house and they had sex three different times." While the trial court noted that there was some question regarding whether the sexual encounters were consensual or not consensual, it stated
The trial judge noted that R.M. was a reluctant witness and, as a result, commented, Because the evidence proving three counts of aggravated indecent liberties with R.M. was "more than sufficient," the trial court found Andrews guilty of those three counts.
After the trial, on June 2, 2015, Andrews was sentenced under the aggravated habitual offender statute, K.S.A. 2013 Supp. 21-6626, to a controlling term of life in prison without parole.
Given the speedy trial right to personally appear in court, and attorney conflict issues raised by Andrews on appeal, it is necessary to detail the procedural background of this criminal litigation.
At all times following his arrest Andrews was in custody and awaiting trial. At the inception of the prosecution, the district court appointed Sharon Barnett to represent Andrews. Barnett represented Andrews at the evidentiary preliminary hearing held on January 9, 2014, and the arraignment the following day. Shortly thereafter, in a letter to Barnett filed with the district court on January 27, 2014, Andrews handwrote: "Respectfully request no further continuances be made on my [behalf] without my verbal consent in open court." In a second letter to Barnett filed on February 3, 2014, Andrews handwrote: "[N]o continuances or motions are to be made or filed on my behalf without my prior verbal approval in open court."
About six months later, Andrews filed a pro se motion to dismiss Barnett as his attorney claiming ineffective assistance of counsel, objecting to the continuation of trial without his consent, and violation of his right to a speedy trial. A hearing on the motion was held on July 25, 2014. At the hearing, Barnett responded:
The district court concluded there was no basis to appoint new counsel because, although Andrews had no right to appear in court on continuance motions, he did have a right for Barnett to consult with him about continuances which she had done.
Andrews promptly filed a motion to reconsider, wherein he advised he had "filed an official complaint" against Barnett with the Office of the Disciplinary Administrator. At a...
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