State v. Barlow

Decision Date07 February 2020
Docket NumberNo. 120,166,120,166
Parties STATE of Kansas, Appellee, v. Thomas Eugene BARLOW, Appellant.
CourtKansas Court of Appeals

Hope E. Faflick Reynolds, of Kansas Appellate Defender Office, for appellant.

Jason B. Oxford, assistant county attorney, Krista Blaisdell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Leben, P.J., Gardner, J., and McAnany, S.J.


Per Curiam:

After a jury convicted Thomas E. Barlow of aggravated criminal sodomy and indecent liberties with a child, the district court sentenced him to 104 months in prison. Barlow raises five issues in this direct appeal. He argues the district court erred (1) by denying his motion to suppress his confession, (2) by admitting evidence of prior sexual misconduct, (3) by denying the admission of evidence concerning Kansas' rape shield law, and (4) by improperly instructing the jury. He also argues that K.S.A. 2018 Supp. 60-455(d) violates his due process rights under the Kansas and the United States Constitutions. Finding no error, we affirm.

Factual and Procedural Background

Thomas Barlow and his ex-wife have five children together. H.B. is their oldest daughter. In October 2016, when H.B. was 15 years old, H.B. told Mother that she no longer wanted to live at home because Barlow had been molesting her. Mother dropped H.B. off then went to the police station where she met with Officer Kyle Hagen. Once he interviewed Mother, Hagen asked to speak with H.B.

H.B. told Hagen that Barlow began to touch her sexually when she was between 9 and 12 years old. At first, these encounters involved kissing, groping, and touching of the areas around her breasts, thighs, and genitals. Later, these encounters progressed to oral sex, digital penetration of H.B.'s vagina, and, once, penile penetration of H.B.'s vagina. These encounters started when the family lived in Wichita and continued when they moved to Geary County. The molestation usually occurred in the living room, in her parents' bedroom, or in the family's shared bathroom. It happened multiple times a week, normally when Mother was away at work. It stopped when, one week before H.B. revealed this molestation, she told her father that she did not want him to touch her anymore. In response, he threatened to withhold her Wi-Fi access or to increase her chores.

After this interview, Hagen and Mother went to pick up the other children at the family home to place them in protective custody. Barlow was there so Hagen asked if he would go to the police station for an interview. Because Barlow complied, Hagen did not arrest him or put him in handcuffs.

Hagen interviewed Barlow at the police station around 11 p.m. Hagen read Barlow his Miranda rights, which Barlow waived. Hagen informed Barlow that someone had told police that he had inappropriately touched H.B. Barlow denied the allegations and said he had not touched her "other than normal affection, hugging, kissing on [the] forehead." Then Hagen told Barlow that H.B. had made the allegations. Barlow continued to deny he had done anything wrong. Hagen asked more specific questions about Barlow's physical contact with H.B., yet Barlow still denied that he had ever purposefully touched H.B. inappropriately. Hagen then asked if Barlow could think of any reasons why H.B. would make up these allegations. Barlow could not.

Hagen explained that the police take allegations of sexual misconduct seriously. If H.B. had falsely accused Barlow, she could face a charge for giving a false statement and that could lead to incarceration in jail, prison, or a juvenile detention facility. And it could also complicate her admission into college. Hagen repeatedly asked Barlow to tell the truth. Hagen told Barlow this was best for everyone and, if the allegations were true, the police would find out eventually. Still, Barlow had nothing to add, so Hagen ended the interview and took Barlow back to his house.

About two-and-one-half hours later, Barlow called the police department, requesting that Hagen pick him up. Barlow told the dispatcher that he had been praying and God told him he should confess. After Hagen picked Barlow up and returned to the police station, Hagen reissued the Miranda warning and Barlow again waived it. Barlow began by asking if his family could live their lives normally, even if he was not there. Hagen stated that would depend on what he told him.

Barlow told Hagen that he had had 30 to 40 sexual encounters with H.B. These encounters started out as tickling but progressed to sexual touching. He estimated the encounters began around the time H.B. was 13 years old and continued until a week before the interview. Barlow denied any penile penetration but admitted to digital penetration. Sometimes, Barlow would perform oral sex on H.B. as well. H.B. had touched his testicles, but he did not recall her touching his penis. These encounters happened in his bedroom and in the shared bathroom, while his wife was at work. Barlow stated that he never forced himself upon H.B. Instead, he insisted that she would give him affirmative signals to engage in the touching. He also told Hagen that he had been good at denying these encounters in the past, but Hagen's words about telling the truth stuck with him. After Barlow provided a signed, written confession, Hagen arrested him.

Before trial, Barlow moved to suppress his confession. The district court denied that motion. Barlow also moved to introduce evidence pursuant to K.S.A. 2018 Supp. 21-5502. The district court denied that motion as well. The State, however, moved to admit evidence pursuant to K.S.A. 2018 Supp. 60-455(d), and the district court granted that motion.

At trial, H.B., Mother, and Hagen testified for the State. The jury viewed the audio and video recordings of Barlow's confession as well as his written statement. Hagen testified that Barlow's confession generally corroborated H.B.'s allegations. But he noted these discrepancies between the two accounts:

• the number of occurrences,
• any penile penetration of H.B.'s vagina,
• any oral sex performed on Barlow, and
• who initiated the sexual encounters.

Barlow called witnesses to establish foundation for pictures of Barlow's home, and text messages between H.B. and her boyfriend. And Barlow testified that at the time of H.B.'s allegations he had a hydrocele

which caused one of his testicles to be greatly enlarged.

The jury found Barlow guilty of one count of criminal sodomy and two counts of aggravated indecent liberties with a child, but it acquitted Barlow of two counts of aggravated indecent liberties and four counts of criminal sodomy. The district court sentenced Barlow to 104 months in prison, lifetime postrelease supervision, and sex offender registration.

Barlow appeals.

Did the District Court Err by Denying Barlow's Motion to Suppress His Confession?

Barlow first argues that Hagen's statements during his interrogation overbore his will, rendering his confession involuntary. Barlow points to Hagen stating that H.B. could face prison time or the juvenile detention center if she made false allegations, and to Hagen imploring Barlow to tell the truth. Barlow raised those claims in his motion to suppress evidence of his confession, but the district court denied it.

Standard of Review

Our standard of review for a district court's decision on a motion to suppress has two components. We review the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Gibson , 299 Kan. 207, 215-16, 322 P.3d 389 (2014). But we review the ultimate legal conclusion using a de novo standard. When, as here, the material facts supporting a district court's decision on a motion to suppress evidence are not in dispute, the ultimate question of whether to suppress is a question of law over which we have unlimited review. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018).

The Governing Law

The Fifth Amendment to the United States Constitution protects individuals' right against self-incrimination. This protection is incorporated to the states through the Fourteenth Amendment. Malloy v. Hogan , 378 U.S. 1, 6-11, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Our Legislature has codified this right in K.S.A. 2018 Supp. 60-460(f). See State v. Guein , 309 Kan. 1245, 1261-62, 444 P.3d 340 (2019). In effect, coerced confessions should be inadmissible in a criminal trial. A confession is coerced when a defendant's "will has been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte , 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854 (1973). In essence, the touchstone consideration is voluntariness. State v. Palacio , 309 Kan. 1075, 1087, 442 P.3d 466 (2019).

When a defendant claims police coerced him or her into making incriminating statements, the State bears the burden to prove, by a preponderance of the evidence, that the defendant made the statements voluntarily. State v. Garcia , 297 Kan. 182, 188, 301 P.3d 658 (2013). Courts employ a case-by-case evaluation to determine (1) whether impermissible coercion was present and (2) whether that coercion overbore the defendant's free and independent will. Guein , 309 Kan. at 1260. This coercion can be mental or physical. State v. Stone , 291 Kan. 13, 21, 237 P.3d 1229 (2010). Courts make this determination by considering the totality of the circumstances, aided by the following nonexclusive factors:

" "(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language." [Citation omitted.] " Stone ,

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