State v. Blaurock

• Decision Date: 27 February 2009
• Docket Number: No. 97,040.,97,040.
• Citation: 201 P.3d 728
• Parties: STATE of Kansas, Appellee, v. Robert D. BLAUROCK, Appellant.
• Court: Kansas Court of Appeals

201 P.3d 728

STATE of Kansas, Appellee, v. Robert D. BLAUROCK, Appellant.

No. 97,040.

Court of Appeals of Kansas.

February 27, 2009.

Jocilyn B. Oyler, of Kansas Appellate Defender Office, for appellant.

Amory K. Lovin, assistant district attorney, Jerome A. Gorman, district attorney, and Stephen N. Six, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

GREEN, J.

Robert Blaurock appeals his jury trial convictions and sentences for rape, aggravated criminal sodomy, and sexual exploitation of a child. Blaurock raises five arguments on appeal. First, Blaurock argues that the trial court erred in admitting evidence of other crimes he allegedly committed against the victim in this case. Nevertheless, we determine that the other crimes evidence was admissible to prove plan and identity under K.S.A. 60-455. Although the trial court did not conduct the appropriate analysis under K.S.A. 60-455 before admitting the evidence, the error was harmless. Moreover, under the particular facts of this case, the lack of a limiting instruction on plan and identity did not constitute reversible error. Accordingly, Blaurock's argument fails.

Next, Blaurock contends that the trial court erred in allowing an unredacted videotape to be given to the jury in this case. Nevertheless, Blaurock's failure to request redaction of the videotape precludes appellate review of this issue. Next, Blaurock maintains that the State violated his statutory right to a speedy trial by failing to bring him to trial within 90 days under K.S.A. 22-3402. Blaurock's argument fails for two reasons: (1) Blaurock was not being held in custody solely for the subject criminal charges in his second trial; and (2) the trial court did not abuse its discretion in granting the State's continuance and, therefore, the State had 180 days to bring Blaurock to trial under K.S.A. 22-3402. As a result, we agree with the trial court that there was no violation of Blaurock's statutory speedy trial right under K.S.A. 22-3402.

Next, Blaurock argues that the combination of errors in this case deprived him of a fair trial. Nevertheless, because Blaurock has not established any error in this case, his argument on this issue fails. Finally, Blaurock contends that the trial court erred in using his criminal history, which was not proven to a jury beyond a reasonable doubt, to increase his penalty. Blaurock's argument is controlled by our Supreme Court's decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). As a result, his argument fails. Accordingly, we affirm.

First Trial

In November 2005, Blaurock went to trial on ten counts of rape in violation of K.S.A. 21-3502; one count of aggravated kidnapping in violation of K.S.A. 21-3421; one count of aggravated criminal sodomy in violation of K.S.A. 21-3506 with an alternative count of criminal sodomy in violation of K.S.A. 21-3505; and one count of sexual exploitation of a child in violation of K.S.A. 21-3516. Each of the rape counts had an alternative count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504. The counts were all based on allegations of sexual misconduct by Blaurock against his girlfriend's 14-year-old daughter, C.S. Blaurock lived with C.S. and her mother, Tammy. The alleged acts took place after April 30, 2005, and before May 25, 2005; on May 25, 2005; and on June 1, 2005.

After a 3-day trial, the jury found Blaurock guilty of one count of aggravated indecent liberties with a child based on the June 1, 2005 incident. The jury acquitted him of seven counts of rape (with alternative counts of aggravated indecent liberties with a child), which were based on the allegations of sexual misconduct occurring after April 30, 2005, and before May 25, 2005. The jury acquitted him of aggravated kidnapping, which was based on the May 25, 2005, incident. Finally, the jury was unable to reach a verdict on two counts of rape, which were based on the May 25, 2005, incident; the count of aggravated criminal sodomy (alternative count of criminal sodomy), which was based on the June 1, 2005, incident; and one count of sexual exploitation of a child, which was based on pictures taken during the June 1, 2005, incident.

Second Trial

In April 2006, the State brought Blaurock to trial for the second time on one count of rape (alternative aggravated indecent liberties with a child), which was based on the May 25, 2005, incident; one count of aggravated criminal sodomy (alternative criminal sodomy), which was based on the June 1, 2005, incident; and one count of sexual exploitation of a child, which was based on pictures taken during the June 1, 2005, incident.

May 25, 2005, Incident

At Blaurock's second trial, C.S. testified that on the morning of May 25, 2005, she was awakened by Blaurock flipping her over, tying her wrists behind her back, and placing duct tape over her mouth. Blaurock eventually took the duct tape off of C.S.'s mouth because she was having problems breathing. Blaurock tried to lead C.S. to his bedroom, but C.S. ran into the kitchen and grabbed a knife on the counter. C.S. testified that she was going to slit her throat because she did not want to have sexual intercourse with Blaurock. Nevertheless, C.S.'s hands were still tied behind her back, and she was unable to reach her throat. Blaurock took the knife away from C.S. and then dragged her to his bedroom.

According to C.S., Blaurock threw her on his bed and told her that they were going to have sex every day for a period of months. C.S. testified that she was crying and telling him no. C.S. further testified that Blaurock said that if they missed a day, then one of her friends or relatives was going to disappear. According to C.S., Blaurock had her cousins' and friends' pictures and their addresses on a piece of paper that he showed to her.

C.S. testified that Blaurock undressed her and forced her to have sex with him that morning while her hands were still tied. Moreover, after he untied her hands, Blaurock told C.S. that they were going to take sexual pictures. C.S. testified that she unwillingly sat on Blaurock's face, and Blaurock took a picture of them through the mirror on the headboard of the bed.

C.S. testified that as Blaurock was dragging her to the bedroom during the May 25 incident, he hit her in the eye. Tammy later noticed a bruise on C.S.'s face. When Tammy asked about the bruise, C.S. told Tammy that she did not know what had happened. Tammy tried to question C.S. further, but C.S. became irritated and asked Tammy to drop the matter. Blaurock's brother, Marty Blaurock, testified that he had noticed C.S.'s black eye between May 25 and June 1, 2005. Nevertheless, Marty testified that Blaurock, Blaurock's son Johnathan, and Mike Wertacet had told him that Tammy had become angry and had hit C.S. in the eye.

May 1, 2005, through May 24, 2005, Incidents

C.S. testified that Blaurock had abused her earlier in May 2005 before the May 25 incident. C.S. could not remember the number of times the abuse had occurred before May 25. C.S. testified that Blaurock would wake her up every other morning as soon as her mother left for work around 6:45 a.m. and would sexually abuse her. According to C.S., the incidents happened between when her mother left for work and when C.S. left the house around 7:25 a.m. to catch the bus for school. One morning at school after the sexual abuse happened a couple of times, C.S. told her friend, D.P. D.P. testified that she told C.S. to report the incident.

C.S. recounted a particular incident in May 2005, where Blaurock had told her that she was pregnant and that he needed to put a little white pill in her vagina and have sexual intercourse with her three times that day. Blaurock told C.S. that if they did that, she would not be pregnant anymore. According to C.S., Blaurock placed the pills in her vagina three times on that particular day, and she and Blaurock had sexual intercourse each time. C.S. testified that on that particular day, she was out of school due to either a teacher in-service day or to her being ill.

C.S. testified that during the month of May, Blaurock had given her bellybutton rings and shirts. In addition, Blaurock and Tammy had given C.S. tickets to two concerts. C.S. testified that she felt like Blaurock was buying these items so she would have sex with him.

June 1, 2005, Incident

C.S. testified that no sexual abuse occurred after May 25, 2005, and before June 1, 2005. On June 1, 2005, however, C.S. was at the dining room table on the telephone with D.P. when Blaurock told her to get off the telephone. When C.S. got off the telephone, Blaurock told her to go to the bedroom. According to C.S., she told Blaurock "no" and began to argue with him. Blaurock then pulled her to his bedroom and told her to take off her pants. C.S. testified that she curled up in a ball on the bed because she did not want any sexual abuse to occur.

C.S. testified that Blaurock undressed himself, pulled C.S.'s shorts off, and forced her to have sexual intercourse with him. C.S. further testified that after they had sexual intercourse, Blaurock forced his penis into her mouth and then photographed her. According to C.S., she was upset and crying and kept telling Blaurock "no," but she eventually complied with his request because she wanted to end the incident. C.S. testified that Blaurock then made her sit on his penis, and he took another picture.

C.S. testified that after the incident was over, she got up and ran to the bathroom. Blaurock then went outside. C.S. called D.P. and told her that Blaurock had raped her. D.P. encouraged C.S. to get help. C.S. then went to see her neighbor, M.T., who lived two houses away, and asked to use her telephone. C.S. called the police and told them that she had been raped by Blaurock. C.S. then called Tammy at work and told her that Blaurock had raped her.

When Officer Miguel Pena arrived at M.T.'s home, he was met...