State v. Brunson
| Decision Date | 07 February 2020 |
| Docket Number | No. 118,555,118,555 |
| Citation | 456 P.3d 1015 (Table) |
| Parties | STATE of Kansas, Appellee, v. Edward BRUNSON, Appellant. |
| Court | Kansas Court of Appeals |
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Ethan Zipf-Sigler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.
Before Hill, P.J., Leben, J., and Walker, S.J.
Edward Brunson seeks the reversal of his convictions on six counts of aggravated sodomy, primarily arguing that evidence of other sex crimes he had committed was improperly admitted at his trial. Although a statute, K.S.A. 2018 Supp. 60-455(d), allows the admission of such evidence against defendants in sex-crime cases, Brunson argues that the statute violated his rights under the Kansas Constitution.
But the Kansas Supreme Court recently held in State v. Boysaw , 309 Kan. 526, 536, 439 P.3d 909 (2019), that K.S.A. 2018 Supp. 60-455(d) doesn't violate rights guaranteed by the United States Constitution. And Kansas courts have consistently held that the Kansas constitutional provisions that Brunson says were violated provide the same protections as the analogous federal constitutional provisions. See 309 Kan. at 537. Brunson hasn't explained why this longstanding interpretation of the Kansas constitutional provisions is incorrect, so he has not shown that this statute violates the Kansas Constitution.
Brunson also argues that this evidence should not have been admitted because, even under the statute, the evidence must be more probative of a disputed issue than unduly prejudicial against the defendant. But the district court's decision on that point is reviewed only for an abuse of discretion, and we conclude a reasonable person could agree with the district court's conclusion that the evidence was more probative than prejudicial.
Brunson makes two additional arguments unrelated to his evidentiary claims. First, he contends that the prosecutor made improper statements during jury selection and opening argument to the jury. But we conclude that those statements were within the broad discretion given to attorneys presenting a case at trial. Second, Brunson contends that the district court erred by sentencing him to three consecutive life sentences without the chance of parole for his crimes. As he points out, a person can't really serve three life sentences; we all have but one life. But sentences serve many purposes, including retribution, and the Kansas Supreme Court has upheld several other sentences that would exceed a defendant's life expectancy. We find no error in the sentences imposed here.
Brunson has not shown that the district court erred when conducting his trial or when sentencing him. We therefore affirm the district court's judgment.
In 2015, Brunson's sister, E.B., reported that Brunson had sexually abused her son, A.E., and his cousin, A.M., beginning in 2011 at the Kansas City, Kansas home of the woman they considered to be their grandmother. E.B. told the jury that she learned that Brunson had molested A.E. and A.M. shortly in 2015, when her sister, A.T., called her and told her that their aunt had told A.T.
A.T. told the jury that she found out that Brunson had molested the boys on the day of Grandmother's funeral in 2012. She said Brunson's girlfriend had told the aunt that Brunson "had been touching the kids." A.T. also said A.M. initially denied that Brunson had molested him. It wasn't until a couple of years after the aunt initially told A.T. what Brunson had done that A.M. confirmed that what the aunt had said was true. A.T. told the jury that A.M. wrote on a piece of paper that Brunson had touched him and A.E. A couple of days after she found out about the abuse, A.T. said she called E.B. and told her.
E.B. said that after she and A.T. spoke, she asked A.E. if what A.T. had said was true. She said A.E. initially denied it, but that after a few minutes he admitted that Brunson had molested him. Although E.B. told the jury that she tried to get A.E. to tell her the details of Brunson molesting him, A.E. didn't want to talk to her because it was embarrassing. After the conversation between E.B. and A.E., E.B. went to A.T.'s house; A.M. then told E.B. that Brunson had also molested him. Shortly after that, E.B. reported the crimes to the Kansas City, Kansas Police Department.
The officer working the report desk when E.B. reported what happened, Phil Schwery, testified at trial. He said that both A.E. and A.M. came to the report desk and told Schwery what had happened. Then Schwery described how the boys used a cell phone note application to type out a message describing what Brunson had done to them. Schwery read that cell phone note from his report:
Schwery said his involvement with the case ended after he interviewed the boys.
A.M. was 18 years old when the trial took place. He told the jury that he first met Brunson, his uncle, when A.M. was about 10 years old. He said that he first met Brunson at Grandmother's house and that the abuse began in the summer after they met.
A.M. said he would talk to Brunson at Grandmother's house because Brunson cut his hair. After Brunson finished cutting A.M.'s hair, A.M. said he went to Brunson's room to watch T.V. and when Brunson came into his room, he locked the door and told A.M. to take his clothes off. After that, A.M. said Brunson took his penis out and told A.M. to kiss it; then Brunson performed anal sex on A.M. A.M. said that Brunson cut his hair every other week and that the sexual abuse would happen every time he got his hair cut.
A.M. told the jury that Brunson started to abuse A.E., who was eight or nine years old at the time, about one to two years after Brunson started to abuse A.M. He said the first time Brunson abused A.M. and A.E. together, Brunson had asked them "to pee in his mouth." A.M. also said that Brunson asked A.M. and A.E. to "suck each other's penis[es]" and that Brunson tried to perform anal sex on A.E. that day.
A.M. said that Brunson threatened to kill him if he ever told anyone about what Brunson had done to him and A.E. He said he never told anyone about the abuse because he didn't want his mom or anyone else in the family to get in trouble. Finally, A.M. said the abuse happened about every other week until he was 14 or 15 years old—a period of about four years—but that Brunson had abused A.E. fewer times. A.M. said that the abuse finally ended when Grandmother died.
A.E., who was 16 years old at the time of trial, also testified. He told the jury that like A.M., he went to Grandmother's house to visit and have Brunson cut his hair. A.E. said that Brunson would sometimes tell him and A.M. to go into his room and "[Brunson] used to like [to have] oral sex and stuff with us and physical sex."
A.E. described how Brunson would make him and A.M. perform oral sex on Brunson, how Brunson would perform oral sex on the boys, and how Brunson would make the boys perform oral sex on each other. Then A.E. told the jury that Brunson also would perform physical—or anal—sex on him and that Brunson would make A.M. perform anal sex on A.E. A.E. said that he never told anyone what happened because "[Brunson] always said if we tell, he's gonna hurt us or have somebody hurt us." A.E. echoed A.M.'s statement that Brunson had performed more sex acts on A.M. than on A.E.
When asked about his report to the police officer, A.E. said he wrote what had happened in a note app on his cell phone. He said that he wrote most of the note he showed to the police officer but that A.M. also contributed to it. Finally, like his cousin, A.E. said Brunson threatened to hurt him if he ever told anyone about what had happened.
When Brunson's girlfriend testified, she described how her relationship with Brunson developed and how it became more serious after Grandmother died. The girlfriend said Brunson moved in with her shortly after Grandmother died. She told the jury that around the time Grandmother died Brunson "got to talking about the boys and what had happened ...." She said she told Brunson that he needed to tell the boys' moms so the boys could get tested for HIV. After that conversation, the girlfriend told Brunson's aunt what Brunson had told her.
The State also presented evidence that Brunson had a propensity to commit sexual abuse against minors. At a pretrial hearing, the State asked the court to admit evidence of Brunson's prior sex-crime convictions, including one for sodomizing an 11-year-old girl and one for raping his sister. The court granted the State's request. Then at trial, over Brunson's objection, E.B. testified that Brunson had sent her a letter when she was younger in which he admitted to molesting her and A.T. She also told the jury that Brunson had made sexually charged comments towards her as recently as 2011 or 2012. The court also allowed Brunson's other sister, A.T., to tell the jury how Brunson raped her when she was 12 years old and that Brunson went to jail for that crime.
Brunson called the aunt to testify in his defense. Her testimony was...
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