State v. Bressman, 56698

• Citation: 689 P.2d 901,236 Kan. 296
• Decision Date: 26 October 1984
• Docket Number: No. 56698,56698
• Parties: STATE of Kansas, Appellee, v. Richard Roger BRESSMAN, Appellant.
• Court: United States State Supreme Court of Kansas

Page 901

689 P.2d 901

236 Kan. 296

STATE of Kansas, Appellee, v. Richard Roger BRESSMAN, Appellant.

No. 56698.

Supreme Court of Kansas.

Oct. 26, 1984.

Syllabus by the Court

1. The rape shield statute (K.S.A.1983 Supp. 21-3525) allows evidence of an alleged rape victim's prior sexual conduct, if it is proved relevant to any fact at issue, such as the identity of the rapist, the consent of the victim, and whether or not the defendant actually had intercourse with her. Decisions regarding the relevancy of evidence rest within the sound discretion of the trial court, which should not be set aside absence a showing of abuse of discretion.

2. Under the factual circumstances set forth in the opinion, it is held that the trial court did not err in excluding proffered evidence of the complaining witness's prior history of gonorrhea.

3. Under K.S.A. 60-456, the opinion testimony of experts on the ultimate issue or issues is not admissible without limitation. Such testimony is admissible only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence.

4. The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case. Where the normal experience and qualifications of laymen jurors permit them to draw proper conclusions from given facts and circumstances expert conclusions or opinions are inadmissible.

5. An expert's opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.

6. State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), which holds that, when consent is the defense in a prosecution for rape, qualified expert psychiatric testimony regarding the "rape trauma syndrome" is relevant and admissible, does not authorize a medical expert to testify that, in his opinion, the complaining witness in a particular case was raped.

Merle E. Parks, Kansas City, argued the cause and was on brief for appellant.

Jerome A. Gorman, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on brief for appellee.

PRAGER, Justice:

This is a direct appeal in a criminal action from jury convictions of rape (K.S.A.1983 Supp. 21-3502) and aggravated sodomy (K.S.A.1983 Supp. 21-3506). Many of the facts are undisputed and essentially are as follows: The victim, whom we will call Mrs. T, was separated from her husband and lived with her two and one-half year old son in Leavenworth. Several weeks earlier, her husband had moved out of the family home and was staying in the home of a mutual friend in Kansas City, Kansas. At 10:30 p.m. on May 5, 1983, Mrs. T and her son caught a ride from Leavenworth to Kansas City and proceeded to the home of the mutual friend so that she could talk with her husband. Although Mrs. T talked with him, she was not able to persuade him to come home. During the evening, the defendant, Richard Roger Bressman, arrived at the friend's home. Having failed to convince her husband to come home, Mrs. T began looking for a ride back to Leavenworth. Apparently no one wanted to furnish her transportation. She then asked defendant Bressman to driver her home and offered him $10 for gas. He reluctantly agreed and they left the friend's residence at approximately midnight in his car with defendant driving and Mrs. T and her son as passengers. At this point, the facts in the case enter the area of dispute.

According to Mrs. T's testimony, they first stopped to obtain gas and then proceeded toward Leavenworth. On the way, defendant drove the car off of Highway K-7 onto State Avenue and then proceeded along a dirt road. According to Mrs. T, defendant stopped the car, threatened her with a knife, and forced her to disrobe. Then he forced her to have vaginal and oral sex. She testified that she tried to run away from him twice. She saw the lights of a car approaching the area. She ran toward it and screamed for help. It was a patrol car with a deputy sheriff driving. The officer yelled for defendant and he came out of the woods and surrendered. Mrs. T, who was partially disrobed, dressed and awakened her son who was still peacefully sleeping in the back of defendant's vehicle. The defendant was arrested and taken to the Wyandotte County jail. Mrs. T was taken to the Bethany Medical Center for an examination.

The defendant's testimony was substantially different. He testified that he pulled off the road because he had to go to the bathroom and felt sick to his stomach. He testified that, after the car stopped, Mrs. T began unbuttoning her shirt and asked if he wanted to have sex. The defendant testified that he declined and went into the woods to urinate and vomit. According to defendant, Mrs. T followed him into the woods. He told her to go back to the car. Shortly thereafter, the patrol car arrived, and Mrs. T told the officer that she had been raped. Defendant was then arrested. Defendant denied that he had had any sexual relations with Mrs. T or molested her at any time.

Some of the evidence presented in the case partially corroborated Mrs. T's version of the incident. Other evidence corroborated the testimony of the defendant. Mrs. T was taken to the Bethany Medical Center where all of the tests customarily made to determine whether sexual acts had taken place were made. These tests included an examination of all clothing; saliva tests; head, pubic, and urine analyses; vaginal swabs; and a physical examination of Mrs. T. Some of the materials were analyzed at the medical center. The remaining materials were sent to the KBI laboratories in Topeka for analysis. All of the State's expert witnesses testified that none of the tests provided any evidence to show that sexual acts had taken place. There was testimony from the deputy sheriff that, when he arrived at the scene, he observed someone running through the woods. He then saw the defendant emerge from the woods with his pants down, his zipper open, and his belt dragging on the ground. The officer also found two open knives in the woods next to a creek bed. The defendant was tried to a jury which brought in a verdict of guilty on both counts. Defendant appealed.

The first point raised by the defendant on the appeal is that the trial court erred in limiting defense counsel's cross-examination of the complaining witness regarding her past history of gonorrhea. Mrs. T testified, both at the preliminary hearing and at trial, that, during the time defendant was forcing her to engage in sexual acts, she told defendant to stop because she had gonorrhea. At that point, defendant did cease raping her and forced her to perform oral sex. In her statement to sheriff's officers, Mrs. T stated she told the defendant she had gonorrhea to get him to stop raping her. The officer inquired as to whether or not she actually had gonorrhea, and she replied that she did not. Mrs. T had gonorrhea tests at Bethany Hospital on the day of the incident which were negative. She had been treated for gonorrhea not long before the incident of May 5, 1983.

Prior to trial, defense counsel filed a motion in limine to determine the extent to which he could inquire into Mrs. T's past history or treatment for gonorrhea. In his argument, he mentioned records of the City-County Health Department, but those medical records were not offered. The State contended that the matter was completely irrelevant, because the medical tests of Mrs. T made on the day of the incident established that she did not have gonorrhea and, therefore, any prior history of gonorrhea was irrelevant and inadmissible since it inferentially involved prior sexual conduct and was inadmissible under the rape shield statute (K.S.A. 60-447[a] [Weeks], subsequently transferred to K.S.A.1983 Supp. 21-3525). K.S.A.1983 Supp. 21-3525(2) provides:

"(2) Except as provided in subsection (3), in any prosecution to which this section applies, evidence of the complaining witness' previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court."

It should be noted that the defendant filed a timely motion for admission of the testimony concerning the complaining witness's previous history of gonorrhea. The matter was presented to the trial court which held that the defendant would not be allowed to inquire or introduce evidence as to her prior history of gonorrhea. Stated simply, it is the position of defendant that he was not bringing up the subject to embarrass the complaining witness. Defendant contends that, since she testified that she told the defendant that she had gonorrhea and later made a statement to the sheriff's officer denying that she had gonorrhea, he had...