State v. Coburn

• Decision Date: 01 February 2008
• Docket Number: No. 96,210.,96,210.
• Citation: 176 P.3d 203
• Parties: STATE of Kansas, Appellee, v. Edward N. COBURN, Sr., Appellant.
• Court: Kansas Court of Appeals

176 P.3d 203

STATE of Kansas, Appellee, v. Edward N. COBURN, Sr., Appellant.

No. 96,210.

Court of Appeals of Kansas.

February 1, 2008.

Janine Cox, of Kansas Appellate Defender Office, for appellant.

Renee S. Henry and Robbin Wasson, assistant district attorneys, Jerome A. Gorman, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

GREEN, J.

Edward N. Coburn, Sr., appeals from his convictions at a jury trial of six counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) and one count of sexual exploitation of a child in violation of K.S.A.1998 Supp. 21-3516(a)(2). First, Coburn contends that the trial court erred in denying his motion to sever his charge of sexual exploitation of a child from the six counts of aggravated indecent liberties with a child. We agree. Under K.S.A. 22-3202(1), the legislature has set out three alternative conditions precedent (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan) which must be met before a trial court may exercise its discretion to allow the joinder of charges. Because none of the conditions precedent under K.S.A. 22-3202(1) were met in this case, the charges should not have been joined as a matter of law. Further, the misjoinder of charges did not constitute harmless error because the highly inflammatory evidence used to, prove the charge of sexual exploitation of a child was sufficiently prejudicial to deny the defendant a fair trial. Accordingly, we reverse Coburn's convictions and remand for separate trials.

Next, citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), Coburn argues that K.S.A.1998 Supp. 21-3516 is unconstitutional under the First and Fourteenth Amendments to the United States Constitution because it criminalizes the possession of simulated nude exhibitions of a person under the age of 18. We disagree. The simulated nude exhibition language of K.S.A.1998 Supp. 21-3516(b)(1) does not render the statute unconstitutional under Ashcroft.

Finally, Coburn contends that there was insufficient evidence to convict him of the charges of aggravated indecent liberties with a child and sexual exploitation of a child. We disagree. After reviewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found the defendant guilty beyond a reasonable doubt.

In July 2001, Coburn was convicted by a jury of six counts of aggravated indecent liberties with a child and one count of sexual exploitation of a child. The aggravated indecent liberties charges were based on Coburn's lewd fondling or touching of S.W. (date of birth 06-29-89) and J.W. (date of birth 08-26-86) between November 1998 and March 2000. J.W. and S.W. are sisters and the grandchildren of Rose Coburn. Rose was Edward Coburn's girlfriend and later became his wife. The sexual exploitation charge was based on Coburn's possession of pictures on a computer depicting a child under 18 years of age engaging in sexually explicit conduct.

On appeal, this court reversed and remanded for a new trial, determining that the jury instruction that Coburn's flight could be considered in determining guilt was clearly erroneous. See State v. Coburn, 32 Kan. App.2d 657, 87 P.3d 348, rev. denied 278 Kan. 848 (2004). Before the new trial, Coburn moved to sever the charge of sexual exploitation of a child from the six counts of aggravated indecent liberties with a child. The trial court denied Coburn's motion to sever, determining that the charge of sexual exploitation of a child was of a similar character to the other charges.

At the new trial, J.W. testified that she met Coburn in the summer of 1998 when she and S.W. went to visit their grandmother, Rose, in Maryland. While J.W. and S.W were staying with Rose, Coburn would wrestle with them and tickle them. J.W. testified that Coburn would tickle their stomachs and then move his hand lower. S.W. testified that Coburn touched her vaginal area under her clothes. J.W. testified that Coburn touched her vagina once while she was visiting Rose in Maryland. According to J.W., this incident occurred around Thanksgiving 1998.

Coburn and Rose moved to Kansas around October 1998 and lived with J.W., S.W., and C.W., J.W. and S.W.'s mother, for several weeks. J.W. testified about an incident that occurred in the living room of her house on Thanksgiving day. J.W. testified that Coburn tackled her to the floor, straddled her, and held her hands above her head. J.W. testified that no inappropriate touching occurred at that time but that Coburn's conduct came close to inappropriate. Nevertheless, when interviewed by a social worker in April 2000, J.W. indicated that Coburn had touched her inappropriately during the incident at her house on Thanksgiving 1998.

Coburn testified that he and Rose moved into their own house around December 1998. The house was located approximately 2 blocks away from where J.W. and S.W. lived. J.W. testified about another incident that occurred in the basement of Rose's house. According to J.W., Coburn straddled her and attempted to put his hand into her pants. J.W. testified that Coburn rubbed her upper thigh on the outside of her clothes within an inch of her vagina.

J.W. initially testified that she did not remember Coburn touching her vagina after he moved to Kansas. Nevertheless, the prosecutor reminded J.W. of her testimony at a previous hearing where she had stated that Coburn had touched her vagina in the basement of Rose's house in Kansas. The prosecutor gave J.W. a minute to think about whether Coburn actually touched her vagina at Rose's house. J.W. then testified that she remembered Coburn touched her vagina under her clothes in the basement of Rose's house in Kansas.

Based on J.W.'s testimony at the new trial, Coburn touched her vagina once in Maryland and once in Kansas. During her interview in April 2000, however, J.W. named several touching incidents that occurred after Coburn moved to Kansas, including one at Thanksgiving, one at Christmas, two during slumber parties at her grandmother's house, and three or four other incidents.

S.W. testified that Coburn inappropriately touched her twice in the living room and once in the basement at Rose's house in Kansas. S.W. testified that she also saw Coburn inappropriately touch J.W. S.W. described an incident that occurred in the living room of Rose's house in Kansas City. According to S.W., Coburn had his arms around both S.W. and J.W. and was touching both of their "private parts."

L.C., who was J.W.'s best friend, testified that J.W. had told her that Coburn would try to touch her chest and private areas. According to L.C., she had seen Coburn try to slide his hand into the girls' shirts or pants when they were wrestling. D.F., who was a friend of S.W., also testified that S.W. had told her that Coburn had tried putting his hands into S.W.'s clothes.

C.W. testified that about a month after Coburn moved to Kansas, S.W. and J.W. became uncomfortable being around Coburn. S.W. later told her mother, C.W., about the touching incidents. C.W. questioned J.W. about whether Coburn had touched her inappropriately. At first, J.W. repeatedly denied that Coburn had touched her inappropriately. Nevertheless, J.W. eventually told her mother about the touching incidents. C.W. filed police reports about the incidents.

On the morning of March 19, 2000, Coburn stole over $10,000 from a safe at a grocery store where he worked as the assistant manager. Coburn left a note for Rose, stating that he had done nothing wrong to S.W. or J.W. Nevertheless; Coburn stated that he was living on borrowed time and that he was going to have fun with the money during the last years of his life. Coburn was later arrested in Las Vegas and brought back to Kansas.

After learning that Coburn had taken the money from the grocery store and left town, C.W. went with her husband and her husband's friend to Rose's house to attempt to determine where Coburn might have gone. While looking on the computer at Rose's house, they discovered an Amtrak train schedule. Moreover, as they were looking at the different sites that Coburn had visited, they saw what appeared to be child pornography. C.W. called the police. The computer was seized by the Kansas City, Kansas, Police Department and was sent to the Federal Bureau of Investigation (FBI).

After copying the hard drive of the computer to disc, Brian Poole, a forensic examiner with the FBI, ran forensic programs on the copy. Poole discovered numerous pornographic web sites on the history of the computer. Poole testified that the earliest date in the history of the computer was January 7, 1994, and that the next date was February 10, 2000. In the "My Documents" folder of the computer, Poole found various graphic files and a web page from a site with young virgins in photographs that appeared to be child pornography. Allison Rodriguez, who worked for the FBI on child exploitation cases, testified that the sites visited on the computer were known for child pornography. Evidence presented at trial revealed that these sites had been visited on dates when Coburn was living in Rose's house. Rodriguez testified that Coburn's name was on the Internet account found on the computer.

Rose testified that they bought the computer at a yard sale after she and Coburn moved to Kansas. Rose testified that she did not use the computer. C.W., S.W., and Rose testified that Coburn was "always" on the computer. J.W. testified that no one else used the computer besides Coburn. Neither S.W. nor J.W. ever saw what, Coburn was looking at on the computer. Whenever they would go downstairs, Coburn would turn the screen away from them or turn it off. The computer had been in the spare bedroom, the garage, and the...