State v. Bliss

• Decision Date: 24 September 2021
• Docket Number: 120,252,120,134
• Citation: 498 P.3d 1220
• Parties: STATE of Kansas, Appellant/Cross-appellee, v. Christopher M. BLISS, Appellee/Cross-appellant.
• Court: Kansas Court of Appeals

498 P.3d 1220

STATE of Kansas, Appellant/Cross-appellee,

v.Christopher M. BLISS, Appellee/Cross-appellant.

120,134

120,252

Court of Appeals of Kansas.

Opinion filed September 24, 2021.

Matt Maloney and Lesley A. Isherwood, assistant district attorneys, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant/cross-appellee.

Peter Maharry and Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee/cross-appellant.

Before Malone, P.J., Warner and Hurst, JJ.

Warner, J.:

A jury found Christopher Bliss guilty of several crimes arising from a violent argument with his wife. The appeal before us involves issues raised by Bliss and by the State. Bliss challenges several rulings the district court made before and during his jury trial, ranging from evidentiary claims to constitutional questions to the sufficiency of the evidence supporting one of his convictions. And the State challenges the district court's decision to impose a prison sentence shorter than the presumptive duration under Kansas law. After carefully considering the parties' arguments, we affirm all but one of Bliss' convictions, and we affirm the district court's departure sentence.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of March 12, 2017, M.B. arrived at Wesley Medical Center in Wichita with her 12-year-old daughter A.B. The treating nurse noted M.B. had a cut requiring stitches on her right ring finger. Because M.B. primarily speaks Spanish, she explained through an interpreter that she cut her hand when Bliss—her husband—threw a plate at her. The nurse reported the injury to police, and Officers Jessica Helwi and Jesus Soto of the Wichita Police Department responded to the call. After photographing M.B.'s injury and discussing M.B.'s statement with the nurse, Officer Helwi interviewed A.B., and Officer Soto interviewed M.B.

During her interview, M.B. described a series of interactions with Bliss that began the previous day. Late on March 11, M.B. was lying in bed with her one-year-old son asleep next to her when Bliss sat down and said he wanted to have sex. After she declined, Bliss got on top of her, kissing her neck and rubbing her over her clothing. Although M.B. tried to scream, Bliss covered her mouth with his hand and told her he would have sex with her whether she wanted to or not. They briefly struggled until the baby woke up and started to cry; Bliss then left and slept elsewhere.

M.B. told the officer that she and Bliss were in their bedroom the next morning, again arguing about having sex. Bliss was kissing M.B.'s neck and pulled down her pants but stopped when he saw A.B. looking in the room. A.B. told Officer Helwi that she went upstairs after hearing M.B. scream and saw M.B. with her pants pulled down. Bliss, M.B., and A.B. then went downstairs, and A.B. went outside.

M.B. stated that at some point, she told Bliss that she was tired of arguing with him in front of their children and no longer wanted to be with him. Bliss punched her in the arm and stated that if he could not have her, nobody could. M.B. then took their baby upstairs and started packing a suitcase; Bliss followed and threw the suitcase, and they began arguing again. During this argument, M.B. noticed the baby had moved near the staircase. Afraid he might fall, she went to pick him up; Bliss picked him up first and closed the door, holding it shut for a few moments and trapping M.B. inside the bedroom.

M.B. explained that when she eventually got out of the room and past Bliss, she went downstairs to leave through the front door. Bliss reached the door and blocked M.B.'s exit, telling her to go to the basement. She then began running to the back door, hoping to move the refrigerator sitting in front of the door. But as she ran to the kitchen, Bliss threw a plate at her. M.B. raised her arm to block the plate, and the plate cut her finger. M.B. again attempted to go back to the front door, but in the living room, Bliss grabbed her by the hair and threw her to the ground. He then began throwing items from the mantle and threatened to kill her and their children. Eventually, M.B. opened a window and told A.B.—who was still outside—to call A.B.'s aunt and, later, 911. Bliss eventually allowed M.B. to go outside to calm the baby, who was crying.

The State charged Bliss with attempted rape, aggravated sexual battery, aggravated battery, and two counts (charged in the alternative) of aggravated kidnapping—one to facilitate the commission of attempted rape and the other to inflict bodily injury on or terrorize M.B. During the pretrial proceedings, the district court granted a protective order prohibiting Bliss from contacting M.B., and Bliss was released on bond.

About a month after the incident in March, M.B. reported to law enforcement that Bliss had called her on the phone, sent her social-media messages, and confronted her at a local shopping center. The police department also learned that Bliss attempted to call M.B. from jail, with these calls detailed in the jail's phone records. Based on this information, the State charged Bliss in a separate case with violating and attempting to violate a protective order.

M.B. initially cooperated with police officers during the investigation. She spoke to the police and gave investigators permission to review her medical files. She informed the police about Bliss' attempts to contact her. She also discussed her concerns with a victim advocate at the police department. For instance, she described how Bliss' family came over to the house where she was staying in an effort to convince her to drop the charges—actions that eventually led to charges against Bliss' mother. And because Bliss' family threatened to have her deported—M.B. is not a U.S. citizen—the victim advocate connected her with an immigration attorney.

M.B. testified at the preliminary hearing in June 2017. During the hearing, M.B.'s testimony broadly confirmed her statements she provided to police at the hospital, though M.B. could not recall several details. She also responded to inquiries about Bliss' postarrest contact with her before indicating that she wanted to stop answering questions. Bliss cross-examined M.B. regarding the March argument, but he did not inquire as to the contacts made in violation of the court's protective order.

After the preliminary hearing, M.B. became less cooperative. And in August 2017, M.B. provided a statement recanting her original accusations to the Sedgwick County Public Defender's Office—the office representing Bliss. In this recantation, M.B. stated that on March 11, she and Bliss had been arguing about money. She also stated that they were going to have sex the next day, but A.B. interrupted them. And she explained that after they went downstairs, she and Bliss began arguing about money again. She stated she threw a plate at Bliss, cutting her finger, and her sister-in-law eventually drove her to the hospital. M.B. went on to describe how she told the prosecutor that she did not want to press charges but was told the judge would place her in jail and that Bliss would try to hurt her.

Before trial, the State filed several motions, three of which are relevant to this appeal:

• The State asked the court to consolidate the two pending cases against Bliss—the first case arising from the incidents on March 11 and 12 and the second case involving violations of the protective order. The State explained that the facts in both cases were tied together, as the protective order Bliss was charged with violating in the second case was issued as a condition of his bond in the first case.

• The State indicated that it had been unable to locate M.B. and A.B. to serve subpoenas for trial and sought a determination that both witnesses were unavailable to testify. The State sought to admit M.B.'s preliminary hearing testimony, her statements to police officers, and her conversations with the victim advocate under various exceptions to the hearsay rule. The State also sought to admit A.B.'s statements during her 911 call and her statements to Officer Helwi at the hospital.

• The State requested that the court exclude any evidence of M.B.'s recantation. In making this request, the State reiterated that M.B. was unavailable to testify. It noted that the recantation did not fall into any hearsay exceptions.

The district court held a series of hearings to discuss the State's requests and Bliss' objections. After considering the parties' arguments, the court granted all three motions. As a result, both cases against Bliss were tried together. Neither M.B. nor A.B. testified at trial. The jury heard evidence relating to M.B.'s statements to law enforcement at the hospital and afterward, as well as A.B.'s 911 call and her statements to the officer at the hospital. The district court also did not allow the jury to hear evidence regarding M.B.'s subsequent recantation of her statements, though it informed the parties that it would reconsider that ruling if M.B. appeared and testified at trial.

On the first day of trial, M.B. arrived with court-appointed counsel. Through an interpreter, she indicated she wished to invoke her right against self-incrimination under the Fifth Amendment to the United States Constitution. The court discussed this request with the parties and M.B. outside the jury's presence. Bliss argued that M.B. should be required to exercise her right against self-incrimination in front of the jury, but the court disagreed based on longstanding Kansas caselaw. M.B. then provided limited testimony to the court, declining to answer each question asked based on her right under the Fifth Amendment.

At the close of the trial, the jury found Bliss guilty of aggravated sexual battery, both counts of aggravated kidnapping, and the lesser-included offense of battery, as well as violation of a protective order and attempted violation of a protective order. The jury found that Bliss was not guilty of attempted rape.

Under the...