State v. Bourassa, 82,060.[1]

• Decision Date: 30 December 1999
• Docket Number: No. 82,060.[1],82,060.[1]
• Parties: STATE OF KANSAS, Appellee, v. CHARLES P. BOURASSA, Appellant.
• Court: Kansas Court of Appeals

28 Kan. App.2d 161

15 P.3d 835

STATE OF KANSAS, Appellee, v. CHARLES P. BOURASSA, Appellant.

No. 82,060.¹

Court of Appeals of Kansas.

Opinion filed December 30, 1999.

Cory Riddle and Elizabeth Seale Cateforis, assistant appellate defenders, and Jessica R. Kunen, chief appellate defender, for appellant.

Charles R. Reimer, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before PIERRON, P.J., KNUDSON, J.,and WAHL, S.J.

KNUDSON, J.:

This is a direct appeal by Charles Bourassa after jury trial convictions for the rape and kidnapping of V.R. and the kidnapping of L.R. Bourassa contends the district court erred in denying his pretrial requests for production of V.R.'s mental health records, a mental evaluation of V.R., and permission to introduce evidence of V.R.'s previous sexual history. Bourassa also contends the district court erred in its failure to instruct the jury on the crimes of criminal restraint and aggravated indecent solicitation as lesser included offenses of kidnapping.

We conclude denial of Bourassa's pretrial motions for V.R.'s evaluation and use of her sexual history constituted an abuse of judicial discretion and denied him access to evidence fundamental to his theory of defense. We reverse Bourassa's convictions and remand this case to the district court for retrial.

General Facts

During the late morning of March 28, 1998, sisters V.R., age 11, and L.R., age 9, were in a Wichita city park located about one-half mile from their home. While it is far from clear exactly how it happened, we know from the evidence that the two children got in 63-year-old Charles Bourassa's van and went with him on approximately a 20-mile trip, during which they stopped at local fishing lakes, a liquor store, another park by Bourassa's home in Valley Center, and a Dairy Queen. Eventually, L.R. got out of the van and went home. V.R. stayed with Bourassa until late afternoon when he dropped her off at a Dollar Store. From there, V.R. went to a nearby self-service laundry and several hours later at approximately 8:20 p.m. called the police for help. V.R. was not aware her family had earlier notified the authorities she was a runaway. Wichita Police Officer Salcido went to the laundry and immediately recognized V.R. from a previous encounter with her. Salcido took V.R. to the Sedgwick County juvenile intake and assessment center. When interviewed, V.R. indicated she had been molested, and the investigation was turned over to Detective Swanson. A subsequent sexual assault examination at a local hospital disclosed injuries consistent with trauma or force to V.R.'s vagina and anal area. Further investigation quickly identified Bourassa as the perpetrator; he was arrested and charged with rape and kidnapping. Upon conviction, Bourassa was sentenced to a total term of 341 months' confinement.

Request For V.R.'s Mental Evaluation and Mental Health Records

Bourassa contends that the district court erred in denying his motion for a mental evaluation of V.R. and production of her mental health records.

At the hearing on this motion, Bourassa's trial counsel explained to the district court that V.R. had been under psychological care at Prairie View in Newton, Kansas, and had accused her father of sexually molesting her. The judge was also told that V.R. had reportedly mutilated two kittens and had a tendency to soil herself. Counsel then stated:

"[T]he Court does not have the transcript of the preliminary hearing before it. One has been requested and ordered, but it has not yet been prepared by the court reporter. It was a preliminary hearing held in front of Judge Dewey that the victim of the rape, [V.R], testified that the rape took place in the front seat of the van with her sister being in between herself and Charles Bourassa. The younger sister did not testify that she saw any sexual contact between Charles Bourassa and her older sister. Thank you."

It is unfortunate a transcript of V.R.'s testimony at the preliminary hearing was not available at the time the motion was heard. A reading of the transcript discloses other incongruous statements made by V.R. that supported Bourassa's requests.

In its response to Bourassa's argument, the State without elaboration acknowledged V.R. was taking Prozac and does have behavior disorders.

District Judge Rebecca Pilshaw, in denying Bourassa's motion, stated:

"I'm overruling the motion based on the fact that this is a direct evidence case, that there is corroborating evidence in addition to that. This is not one of those `he said/she said' type of things; it's whether all of the witnesses will be believed by the jurors. Probably the closest you come in your argument is the—your theory, I'm going to call it, that perhaps there have been false allegations made in the past; but by no means does the fact that no charges were ever filed mean that these were false allegations, especially if these are things that are just now coming to light through the course of therapy that the girl is currently in.

"It is obtrusive. It does diminish the confidentiality and the confidence that someone who needs—desperately needs the help of a psychologist desires, and therefore I find that there should be compelling reasons and that those—the reasons stated are not compelling to the degree rendering disclosure of the records or an independent psychological evaluation to be warranted."

Mental Evaluation

The standard of review when a district court denies a motion to compel a psychiatric examination in a sex crime case is abuse of discretion. State v. Lavery, 19 Kan. App.2d 673, 676, 877 P.2d 443, rev. denied 253 Kan. 862 (1993). "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court." State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998).

In the following reported cases, the decision of the district court not to allow a psychiatric examination was upheld. There are no published cases where an appellate court has found an abuse of discretion.

In State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), the Supreme Court established the "middle ground" approach to deciding whether the district court should have ordered a psychiatric examination of the complaining witness: "[A] trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination."

In Gregg, the defendant was convicted of aggravated sodomy and aggravated indecent solicitation of a child. Defendant filed a pretrial motion requesting that the victim be given a psychiatric evaluation. The defendant based his request on factors such as the victim's age, the seriousness of the crime, and the lack of corroborating evidence. The Supreme Court noted that defense counsel presented no evidence of the child's mental instability, lack of veracity, or similar charges against other men proven to be false. The court equated the motion to a fishing expedition "in the hope something damaging and admissible in the trial would be unearthed." 226 Kan. at 490. The court concluded that no compelling reason for ordering the mental evaluation was given, and the district court did not abuse its discretion. 226 Kan. at 490.

In State v. Lavery, 19 Kan. App.2d 673, 877 P.2d 443 (1993), the defendant was convicted of aggravated criminal sodomy. The district court denied his request for a psychiatric examination of the complaining witness. Lavery contended that the victim, K.R., had been inappropriately exposed to sex and that she was using the knowledge to falsely accuse him. He presented evidence that K.R. used foul language, was possibly molested by another man in the neighborhood, and had told a false story about killers in the school basement to two neighborhood girls. The district court also noted that there was an incident where K.R. was "playing doctor" with other children. 19 Kan. App.2d at 676-77.

The district court concluded that there was no evidence that would tend to indicate that K.R. was using any knowledge of sexual activity gained through conduct with Forth to fabricate an allegation against Lavery. It also found that foul language or lack of supervision did not indicate any kind of mental aberration, flight of fancy, or lack of veracity. It found that the evidence presented did not reach the "compelling reason" standard. On appeal, this court affirmed the district court's decision. 19 Kan. App.2d at 677.

In State v. Blackmore, 15 Kan. App.2d 539, 540, 811 P.2d 54, aff'd in part and rev'd in part 249 Kan. 668, 822 P.2d 49 (1991), the defendant was convicted of indecent liberties with a child. Blackmore requested a psychiatric examination of Jacob, the complaining witness. The district court denied the motion.

Jacob's grandmother had taken him to a mental health center for treatment of behavior problems. His problematic behavior included hyperactivity, sleeplessness, bowel movements in his pants, and gagging himself at night until he vomited. On appeal, this court found that the district court did not abuse its discretion. It found that there was no evidence that Jacob had made similar charges against other men that were proven to be false. It also concluded that there was no evidence that he was mentally unstable. Finally, this court stated that although Jacob took medication for earaches and asthma, there was no showing that the medication affected his veracity or mental stability. 15 Kan. App.2d at 542.

We believe all of the above cases are distinguishable from the case now before us. Bourassa's lawyer did proffer evidence of V.R.'s mental instability and that she had made a recent charge of her father sexually molesting her. The motions judge was told V.R. had mutilated two kittens...