State v. Ballou

• Citation: 448 P.3d 479
• Decision Date: 06 September 2019
• Docket Number: No. 116,252,116,252
• Parties: STATE of Kansas, Appellee, v. Terry R. BALLOU Sr., Appellant.
• Court: United States State Supreme Court of Kansas

448 P.3d 479

STATE of Kansas, Appellee,

v.Terry R. BALLOU Sr., Appellant.

No. 116,252

Supreme Court of Kansas.

Opinion filed September 6, 2019

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Elizabeth H. Sweeney-Reeder, county attorney, argued the cause, and Julia Leth-Perez, assistant county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Luckert, J.:

A jury convicted Terry R. Ballou Sr. of one count of rape and one count of aggravated indecent liberties with a child. Ballou appealed, asserting five errors: (1) The prosecutor erred when, in his closing argument, he expanded the time frame in which the crime allegedly occurred; (2) the district court erred in admitting into evidence a video of an interview of the child victim without ensuring compliance with K.S.A. 2018 Supp. 60-456(b) or conducting a taint hearing to determine its reliability; (3) the district court erred by admitting evidence of alleged prior sexual misconduct by Ballou; (4) the district court erred in not ordering a psychological evaluation of the child victim; and (5) the cumulative effect of all errors warrants reversing his convictions. The Court of Appeals rejected Ballou's arguments and affirmed his convictions and sentence. State v. Ballou , No. 116,252, 2017 WL 3575610, at *1 (Kan. App. 2017) (unpublished opinion). On review of that decision, we determine no reversible error occurred, and we affirm Ballou's convictions. But we raise sua sponte the issue of whether the district court erred in sentencing Ballou to postrelease supervision and we vacate that portion of the sentence.

FACTS AND PROCEDURAL BACKGROUND

Ballou's convictions of one count of rape and one count of aggravated indecent liberties with a child resulted from acts involving his then-six-year-old daughter. The State originally alleged Ballou committed these crimes on or about April 13, 2014. On or about that date, Ballou's long-time, live-in girlfriend, Virginia Norris, left the house to run a few errands. She returned much sooner than expected to find Ballou rubbing his erect penis on his daughter's vagina and anus while the daughter was face down on a chair in the living room with her pants pulled down.

Norris reported what she saw to her mother and her adult daughter, but she did not report the incident to law enforcement authorities. Sometime later, Norris' adult daughter reported the incident to the Kansas Department for Children and Families (DCF). After receiving the report, the DCF began an investigation. Jennifer Stockard, a child protection specialist, contacted Norris about the allegations, but Norris denied knowing anything about the incident.

Stockard and a sheriff's detective contacted Ballou's daughter while she was at her babysitter's house. Based on what the child said, they decided to take her into protective custody and transport her to Safe Harbor, an interview room in the basement of the Miami County courthouse. Stockard had some familiarity with the child because, two years earlier, Stockard had interviewed her while investigating whether her brother had abused her.

After Stockard and the detective decided to take the child to Safe Harbor to continue their 2014 investigation, they contacted Norris. She came to the courthouse and gave them details about an occasion when she came home earlier than expected and found Ballou touching his daughter with his penis. Stockard then interviewed the child. Stockard recorded the interview, which was later introduced at trial over Ballou's objection. In the interview, the child revealed Ballou had penetrated her vagina and anus with his penis before Norris came home and found them. The child also said Ballou had committed the same or similar acts on multiple prior occasions.

Based on the child's allegations, Ballou was arrested and charged with and tried by a jury on the charges of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. During the trial, the State introduced evidence of the child's reports of other uncharged sex crimes or instances of sexual misconduct. The State offered this evidence under K.S.A. 2018 Supp. 60-455(d) to show Ballou's propensity to commit these acts. Ballou had filed a written pretrial objection to the admission of the evidence, which the district court overruled. He did not renew his objection at trial.

Although the jury convicted Ballou of rape and aggravated indecent liberties with a child, it acquitted him of aggravated criminal sodomy. The district court sentenced him to a life sentence without the possibility of parole for 25 years on each count. The court ordered consecutive sentences, for a total controlling sentence of lifetime imprisonment without parole for 50 years. The district court also imposed lifetime postrelease supervision for each charge.

Ballou timely appealed his convictions and sentence. The Court of Appeals assumed one error—that the prosecutor committed error by expanding the time frame in which the State alleged the crime occurred. But the panel held the assumed error was harmless. It rejected all other claims of error. See Ballou , 2017 WL 3575610. We granted Ballou's petition for review and the State's cross-petition seeking review of the panel's decision to assume the prosecutor erred by expanding the time frame for the alleged crimes. Additional facts are set forth as necessary below.

ANALYSIS

ISSUE 1: Harmless prosecutorial error occurred.

Ballou argues prosecutorial error occurred because the State, during its closing argument, expanded the time frame in which it alleged the crime occurred. In the State's initial complaint and two later amended complaints, the State alleged Ballou committed the charged offenses "on or about the 13th day of April, 2014." In opening statements, the State told the jury the "story that you're going to hear begins on April 13th, 2014." Later in the trial, the State called Norris as a witness and she testified the crime occurred on April 13, 2014. But the State broadened the alleged time frame when, during its closing argument, the prosecutor discussed the evidence about when the crime occurred and told the jury "on or about" could encompass a four-and-one-half-month period:

"The act occurred on or about, very important words, ‘or about’ the 13th day of April 2014. There's been some confusion about the exact time that this happened, exact date that this happened. There's been some argument about that. [Norris] said, well—at first, she said I thought it might have been Easter, week before that, or week after that, maybe Mother's Day, but she narrowed it down to what she thinks was April 13th. Okay. So that's the evidence we have regarding that.

"And it's important that is says ‘on or about.’ Why does it say ‘on or about’? Well, sometimes you don't know exactly when a crime occurred. You go on vacation for four weeks. You come home. Your house is burglarized. You can't say the day. You can't say it actually happened on this time. Sometimes you can, you know, if the neighbor saw the guy coming in and out and wrote it down, but a lot of times you can't. So it's not required that you find that this happened exactly on April 13th. You certainly can. And I believe the evidence presented is sufficient for that, but you just need to find that it occurred about that time. Mr. Ballou testified that, I think, the four of them, [Ballou, his daughter, his son, and Norris] had lived alone together in the house for about four and a half months before that, so we know it occurred in that time frame."

Ballou objected to the State's comments and the district court overruled his objection.

On appeal, Ballou asserts the prosecutor erred by misstating the law defining the phrase "on or about." For support he cites State v. Murr , No. 98,231, 2009 WL 596514 (Kan. App. 2009) (unpublished opinion). Considering Ballou's argument, the Court of Appeals panel concluded "the holding and facts from Murr are analogous and persuasive. Thus, for the sake of argument, we will assume, for the present purpose only, that the prosecutor's statements were a misstatement of the law and therefore amounted to error." Ballou , 2017 WL 3575610, at *7. But the panel concluded the assumed error was harmless and did not require it to reverse Ballou's conviction. 2017 WL 3575610, at *8.

The State filed a conditional cross-petition asking this court to hold that the prosecutor's comments were not a misstatement of law and no error occurred.

In considering a claim of prosecutorial error, we follow a two-step analysis. We first determine whether an error occurred. Second, if an error has been found, we evaluate the prejudice it caused to determine whether it was harmless. State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016). At the first step, error occurs if the appellate court determines the prosecutor's actions or statements "fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial." 305 Kan. at 109, 378 P.3d 1060. A criminal defendant establishes the first prong by establishing the prosecutor misstated the law or argued a fact or factual inferences with no evidentiary foundation. See State v. Wilson , 309 Kan. 67, 78, 431 P.3d 841 (2018) ; State v. Hilt , 307 Kan. 112, 124, 406 P.3d 905 (2017).

1.1 The prosecutor erred.

Ballou mainly argues the prosecutor's expansive interpretation of "on or about" amounted to a misstatement of the law. The Court of Appeals panel assumed the validity of this argument and moved to the second step of evaluating the effect of the assumed error. Ballou , 2017 WL 3575610, at *7. The State asks us to hold that the statement was not outside the wide latitude permitted the prosecutor. It, like Ballou, focuses on the legal meaning of the phrase ...