State v. Chanthaseng

• Decision Date: 09 September 2011
• Docket Number: No. 101,346.,101,346.
• Parties: STATE of Kansas, Appellee,v.Phouthavy CHANTHASENG, Appellant.
• Court: Kansas Supreme Court

293 Kan. 140

261 P.3d 889

STATE of Kansas, Appellee,

v.Phouthavy CHANTHASENG, Appellant.

No. 101,346.

Supreme Court of Kansas.

Sept. 9, 2011.

Syllabus by the Court

1. The defendant failed to preserve arguments that statements made by a witness were nonhearsay or admissible under the exception for admissions against interest in K.S.A. 60–460(j). No exception to the preservation requirement applies.

2. The prosecutor committed misconduct by discussing the delayed and piecemeal “process of disclosure” of the victim of child sexual abuse and by using personal experiences of venire panel members as substitute for evidence of disclosure pattern relevant to reliability. The prosecutor did not commit misconduct by referencing the abuse victim's credibility because the prosecutor's comments, when viewed in context, were accompanied by a discussion of the evidence presented at trial and merely asked the jury to draw permissible inferences from that evidence. “Process of disclosure” misconduct does not constitute plain error requiring reversal of the defendant's conviction.

3. The district judge's failure to include the defendant's age of 18 years old or older at the time off-grid aggravated indecent liberties was committed in the jury's elements instruction does not require vacation of the Jessica's Law sentence and resentencing to a grid sentence under the Kansas Sentencing Guidelines Act, when the defendant gave uncontested trial testimony about his age.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

Phouthavy Chanthaseng appeals his conviction for aggravated indecent liberties with a child. He argues that testimony regarding statements made by a fellow inmate at the Sedgwick County Jail should have been admitted, that the prosecutor committed reversible misconduct by arguing facts not in evidence and commenting on the credibility of the victim, and that the district judge erred by sentencing Chanthaseng without requiring the jury to find beyond a reasonable doubt that he was 18 years old or older when he committed the crime.

Factual and Procedural Background

Chanthaseng's accuser was M.C.T., his wife's 12–year–old niece. M.C.T. testified that, while she was spending the night at Chanthaseng's house in Wichita, she went into the living room to ask Chanthaseng for help with her laptop. While she was sitting in the living room, she said, Chanthaseng touched her breast and vagina and then gave her $32 in cash. Chanthaseng also led her into a hallway off of the living room, where he pulled down her pants and touched his exposed penis to the inside of her thigh.

Chanthaseng testified that M.C.T. had stayed at his house but that he had not molested her. Instead, after he tried unsuccessfully to help M.C.T. with accessing the Internet from her laptop, M.C.T. went to bed.

Before trial, M.C.T. had not told her full story in one sitting. Roughly 2 weeks after the incident, while at church, M.C.T. told her cousin about the living room touching, but she did not reveal the hallway touching. A week or two later, again at church, M.C.T. told her cousin about the hallway touching. After the cousin reported M.C.T.'s story to police, M.C.T. was interviewed three times by law enforcement, but she did not say anything about Chanthaseng giving her money until the week before trial.

Chanthaseng's wife, stepdaughter, and two sons also were at home the night that M.C.T. alleged the molestation occurred. Chanthaseng's wife and his infant son were asleep. Chanthaseng's stepdaughter testified that she had seen Chanthaseng helping M.C.T. with her computer in the living room, but she could not account for the entire period before M.C.T. went to bed. The only potential witness to the crime other than the participants was Chanthaseng's 4–year–old son, who was in the living room with his father. The police did not interview the boy, and the State did not call him as a witness at trial.

One of Chanthaseng's trial defenses was that M.C.T.'s cousin and the cousin's boyfriend, My T. Nguyen, convinced M.C.T. to make false allegations so that the couple could extort money from Chanthaseng. The defense sought to support this theory by putting on evidence of statements Nguyen made to Chanthaseng while the two were both in the Sedgwick County Jail. Chanthaseng testified that Nguyen expended considerable effort to seek him out, asking around for a man of Asian descent, and eventually following Chanthaseng by moving from table to table in a common area. According to the defense's proffer, Nguyen told Chanthaseng that the cousin “put them up to this” and that Nguyen could “help” Chanthaseng “make this go away” if Chanthaseng sent $10,000 to the cousin and $1,000 to “the girl.” Nguyen then spelled the cousin's last name for Chanthaseng and provided her address. The defense attempted to elicit testimony about these statements through Chanthaseng and Michael Martin, a third jail inmate who overheard the conversation; but the district judge excluded the testimony as hearsay. Nguyen was present at trial; however, because he invoked his Fifth Amendment privilege not to testify, the district judge declared him unavailable and ruled that any testimony about his statements was inadmissible.

Despite these rulings, Chanthaseng was able to present some evidence about the substance of the conversation between himself and Nguyen. He testified that he had asked Nguyen whether sending $11,000 to the cousin would ensure that M.C.T.'s allegations were recanted, and Nguyen had confirmed this. Defense counsel also was permitted to argue this defense theory to the jury.

During voir dire, the prosecutor asked potential jurors about their history of physical or sexual abuse, referencing a “process of disclosure” and feelings of shame experienced by disclosing victims. She asked venire members if they understood “why it might take a while for a child to disclose.” Nine venire members said they had some experience with such abuse, either personally or from knowing someone who had been abused. Of these, three talked about victims not reporting instances of sexual abuse until several years later. One of the three, who had been a victim, ultimately served as a juror.

During opening statement, the prosecutor said: “Disclosure for this child has been a process, not an event.” She then restated the proposition more generally: “Disclosure is a process, not an event.”

During closing argument, the prosecutor said:

“What do you think? What—what have you seen about the secrecy, the helplessness, the entrapment [that] goes [with] these kinds of cases? Do you think this is just an additional detail that, of course, has come out in the ordinary passage of time about how a kid processes this stuff? ... We talked about, during voir dire, how disclosure of sexual abuse or even physical abuse of kids, and you heard some of your fellow jurors during jury selection, yeah, disclosure is a process, not an event.”

The prosecutor also mentioned M.C.T.'s credibility five times during her closing argument:

(1) “Yes. The evidence shows that she is a credible witness. Well, why didn't you tell your father, by the way? I thought he would be mad. She was afraid to tell her dad, because she got his permission to spend the night at his—at that house. Yes. She was afraid to tell her father.” (Emphasis added.)

(2) “Yes. She is credible, because look at the evidence. Compare, you know, what was the purpose of the State showing to you the DVD, so you could see her on October 1st, and the audio of what she was like on October 18th. And the—and the DVD of what she was like on—n May 24th of this year. What was the purpose of that, so that you could judge her yourselves, whether she has changed or whether she is funky or whether she is different. Don't you find that her manner, her candor, her demeanor was consistent throughout each time she was asked about all this stuff.” (Emphasis added.)

(3) “And then, of course, you had the opportunity to see her live in court, live, up close and personal. Yes, she is credible. She is consistent. She is the same on the elements.” (Emphasis added.)

(4) “ She's credible. You can see where she points to on the body diagrams. If you—watch the DVD again, if you need to. And there is dead time where nobody is in the room where you have the opportunity to observe what she's like.” (Emphasis added.)

(5) “But I will point out to you this, her sort of social circumstances, the quality of what her personal—her personality is like makes her more credible in terms of how you evaluate the evidence, not less. She is less susceptible of sustained manipulation the defense tries to hint at in this case.” (Emphasis added.)

Regarding Chanthaseng's age, M.C.T. testified that the crime occurred on August 31, 2007. The caption of the complaint showed Chanthaseng's birth year as 1970, and he testified that he was 38 years old at the time of trial and had been born in 1970. The district judge's instructions to the jury did not include the defendant's age of 18 or over at the time of the crime as an element of the offense. At sentencing, the district court stated that Chanthaseng was 37 years old when the crime was committed, and he sentenced Chanthaseng to life under Jessica's Law, K.S.A. 21–4643. This sentence was available only if the crime was classified as off-grid because defendant was 18 years old or older and the victim was younger than 14 at the time it was committed. See K.S.A. 21–4643(a)(1)(C).

Discussion

Testimony About Nguyen's Statements

On appeal, Chanthaseng argues that the trial court erred by excluding his and Martin's testimony about Nguyen's statements. He argues that he did...