State v. Blanks

• Decision Date: 12 October 2012
• Docket Number: No. 105,838.,105,838.
• Citation: State v. Blanks, 286 P.3d 576 (Kan. App. 2012)
• Parties: STATE of Kansas, Appellee, v. Michael D. BLANKS, Appellant.
• Court: Kansas Court of Appeals

286 P.3d 576

STATE of Kansas, Appellee,

v.Michael D. BLANKS, Appellant.

No. 105,838.

Court of Appeals of Kansas.

Oct. 12, 2012.

Appeal from Atchison District Court; Martin J. Asher, Judge.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.

MEMORANDUM OPINION

PER CURIAM.

Michael Blanks appeals his jury conviction and sentence of one count of rape. Blanks argues that the district court erred when it denied his motion for a change of venue. Blanks also claims there was insufficient evidence to sustain his rape conviction, that the prosecutor committed misconduct during closing argument, and that the district court improperly included several Florida felonies in calculating his criminal history score. We affirm.

The evening of May 11, 2010, H.C. and her three roommates had a party at their house to celebrate the end of the school year. The party started around 10 p.m. During the party, H.C. consumed two beverages containing vodka, orange juice, and tonic water. At some point in the evening, H.C. and a group of 20 to 30 individuals left H.C.'s house and walked to Mueller's, a bar located about one block away from H.C.'s house. While at the bar, H.C. consumed two oatmeal cookie shots, which H.C. believed contained three different types of alcohol, including Bailey's and Peach Schnapps. H.C. also consumed a Long Island Iced Tea during a chugging contest with a friend. H.C. testified that a Long Island Iced Tea contains alcohol equivalent to seven mixed drinks. Mindy Smith, a bartender at Mueller's, testified that there are approximately 5 to 7 ounces of liquor in each Long Island Iced Tea served at Mueller's.

H.C. testified that after she chugged her Long Island Iced Tea, she had difficulty remembering what happened during the remainder of the night. She testified that she knew she needed to go home because her “state was not right” and she felt intoxicated. The next thing that H.C. remembered was waking up in a field, wearing only her shirt, and struggling against a man. H.C. was able to run to a residential area where she took shelter in an abandoned house. Several hours later, H.C. left the abandoned house and ran approximately 1 mile to a different house that was occupied by June Jones, who contacted law enforcement.

Even though H.C. told law enforcement that she did not believe that she was raped, law enforcement took H.C. to the local hospital for a sexual assault exam. The exam did not reveal any bruising, tearing, or abrasions to H.C.'s vaginal walls. Urinalysis showed that H.C. was not under the influence of any drugs, but a blood test showed that her blood-alcohol content was “elevated, but nothing significant.”

After she was released from the hospital, H.C. went to the police station where she viewed photographs and eventually identified Blanks as the assailant she ran away from at the park. Law enforcement brought Blanks to the police station, where he agreed to an interview with Detective Terry Kelley. Blanks told Kelley that he met H.C. at Mueller's, that H.C. smelled of alcohol, and that she appeared to be a little bit drunk. Blanks said that the two of them went to Blanks' car and H.C. performed oral sex on him. Blanks claimed that this was the only sexual contact that occurred between himself and H.C. on the night in question.

After Kelley collected an oral swab from Blanks, Blanks told Kelley that after he left Mueller's, he drove by there a little while later and picked up H.C. Blanks said that he drove H.C. to a construction site and H.C. performed oral sex on him a second time. Blanks said that the two of them also engaged in sexual intercourse. Blanks told Kelley that after he and H.C. finished having sex, he watched H.C. walk away, and he then drove home.

Blanks then changed his version of events and told Kelley that H.C. did not perform oral sex on him in his car outside of Mueller's. He said that he picked up H.C. and drove to the construction site where H.C. performed oral sex on him and they engaged in sexual intercourse. Blanks advised that after they finished having sex, H.C. walked away, and he drove home.

Blanks then said that after he left the construction site, he drove around and saw H.C. walking on Kansas Avenue and picked her up again. It was then that he drove the two of them to a park just outside of town where H.C. performed oral sex on him a second time, and then the two of them again engaged in sexual intercourse. Blanks stated that while the two of them were having sex, there was a flash of lightning and that after the lightning struck, H.C. became upset and started cursing at Blanks because H.C. believed that Blanks was trying to photograph her while the two of them were having sex. Blanks informed Kelley that H.C. took off running, that he saw her run up on the porch of a house, and that he decided to leave.

Blanks' oral swabs and H.C.'s rape kit results were sent to the Kansas Bureau of Investigation (KBI) for testing. The tests revealed that the seminal fluid obtained from H.C.'s rape kit was consistent with Blanks' genetic profile.

The State charged Blanks with two counts of rape and two counts of aggravated criminal sodomy. Prior to trial, Blanks moved the district court for a change of venue. The district court denied this motion. Blanks subsequently filed a second motion requesting a change of venue, arguing that he would be unable to receive a fair trial in Atchison County because the local newspaper had published two stories describing the details of the alleged crimes. The district court denied this motion.

During Blanks' jury trial, several witnesses testified about H.C.'s alcohol consumption and her level of intoxication on the night of the alleged rape. Lauren Russell testified that she saw H.C. drinking some type of alcoholic beverage at H.C.'s house and that she watched H.C. drink her Long Island Iced Tea in a chugging contest. Russell further testified that she believed H.C. was intoxicated before chugging the Long Island Iced Tea and that when everyone decided to leave Mueller's, H.C. was “very out of it.” Specifically, Russell recalled that H.C.'s “eyes were barely open” and H.C. was “swerving and stumbling” as they walked back to H.C.'s house.

Erin O'Connor, one of H.C.'s roommates, testified that she observed H.C. drink one or two shots and chug her Long Island Iced Tea. She testified that after the group left Mueller's and walked back to their house, she saw H.C. stumbling. She had to assist H.C. to walk up approximately 12 steps and help her to her bedroom. O'Connor testified that she put H.C. on her bed, shut the door to H .C.'s room, and locked the front door of the house. Tom Joerger, a next door neighbor of H.C.'s, testified that he believed that H.C. was intoxicated because he witnessed H.C. “stumbling all over the place,” and he believed that she was going to fall down the stairs.

John Bourneuf, another neighbor of H.C.'s, described H.C.'s condition as “totally drunk.” He testified that H.C. was pretty drunk before everyone went to Mueller's, but at the end of the night, he stated that H.C.'s balance was off, her speech was slurred, and she was totally intoxicated. Bourneuf testified that sometime around 2 a.m., after H.C. had been put in her room by O'Connor, he was sitting in a swing outside his house with his girlfriend, Kristin Thorne, and he heard Thorne say that H.C. had fallen down while walking over to his house. Thorne testified she observed H.C. leave her house and fall face forward as she was walking over to Bourneuf's house. Thorne explained that she helped H.C. walk back to her house, walked her up the stairs to her room, laid H.C. on her bed, and locked the front door to H.C.'s house after she left. According to Thorne, H.C. was “pretty drunk” before she consumed her Long Island Iced Tea. Thorne testified that H.C.'s level of intoxication was “pretty bad,” that her eyes were really heavy, and that she was “really stumbly.”

Mindy Smith, an employee at Mueller's, testified that H.C. was “very drunk” and that her level of intoxication was “pretty bad.” Smith testified that she witnessed H.C. pulling down the back of her shorts at Mueller's. Smith testified that she gave H.C. two separate warnings, telling her that she would need to refrain from engaging in that behavior or else she would be asked to leave the bar. Smith testified that with a little help from one of H.C.'s friends, she was able to get H.C. to stop pulling the back of her shorts down, and after she stopped this behavior, H.C. went back to mingling with her friends. Smith testified that H.C. left Mueller's with her friends when the bar closed at around 2 a.m. but that sometime around 2:15 or 2:30 a.m., H.C. came back to Mueller's. Smith stated that she witnessed H.C. “stumbling her way to the bar” and “walking obviously drunk.” Smith further explained that she had a little bit of difficulty communicating with H.C. but that she was able to understand that H.C. was looking for Peter.

Blanks testified at trial that sometime after Mueller's had closed, he encountered H.C. in a parking lot outside of the bar while he was talking with an acquaintance. Blanks testified that H.C. asked to ride around with Blanks in his car and he allowed her to do so. He explained that H.C. began touching his thighs and chest, rubbing her hands through his hair, and then unzipped his pants and performed oral sex on him. Blanks testified that he drove to a construction site and that he and H.C. got out of his car and engaged in sexual intercourse at the construction site. Blanks stated that after he and H.C. finished, H.C. walked away, but he picked her up again and H.C. performed oral sex on him a second time in his car. Blanks testified that he drove the two of them to a park on the outskirts of town and that he and H.C....