State v. Contreras

• Citation: 467 P.3d 522
• Decision Date: 29 May 2020
• Docket Number: No. 119,584,119,584
• Parties: STATE of Kansas, Appellee, v. Jose Armando CONTRERAS, Appellant.
• Court: Court of Appeals of Kansas

467 P.3d 522

STATE of Kansas, Appellee,

v.Jose Armando CONTRERAS, Appellant.

No. 119,584

Court of Appeals of Kansas.

Opinion filed May 29, 2020.

Kasper Shirer, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Malone and Gardner, JJ.

Gardner, J.:

A jury convicted Jose Armando Contreras of four off-grid Jessica's Law offenses and an additional felony—two counts of rape, two counts of aggravated criminal sodomy, and aggravated intimidation of a victim. Contreras appeals his sentence and conviction, arguing the district court denied him a fair trial by allowing a witness to invoke the Fifth Amendment privilege against self-incrimination, denying his continuance request, denying his motion for a sentencing departure, and imposing lifetime postrelease supervision. Contreras also argues that the cumulative effect of the errors requires reversal of his convictions. Agreeing that the district court erred by permitting a witness to invoke the Fifth Amendment, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2012, Contreras and the mother of the victim, K.B. (Mother) began dating. Mother would sometimes take her three children—E.B., G.B., and K.B.—to see Contreras. When Mother spent the night at Contreras' apartment, as she sometimes did, she would take her children and they would all sleep in the same room, with the three children sleeping on the floor. At times, Mother would leave her children with Contreras and his roommate while she ran errands. Mother considered his roommate her best friend and would allow him to watch her children two to three times a week.

A little over a year into the relationship, Contreras told Mother that something inappropriate had happened with K.B., then eight years old. Contreras told Mother that K.B. had tried to initiate oral sex with him but he stopped her. Contreras asked K.B. where she had learned that behavior and K.B. replied "daddy says that's what you do for nice things that people do to you." Upon hearing this, Mother made an appointment for the next day with Area Mental Health. She also posted a message on a Facebook group page saying that K.B. had confided in Contreras and had told him about being abused at her father's house over Christmas break in December 2012. The post said that Contreras had waited three days after learning this information before telling Mother. Soon after Mother posted this information on Facebook, a member of the group called police.

After police received a report that K.B. may have been sexually assaulted, Officer Charles Kuffler and Sergeant David Newland went to Mother's home to talk about the accusation. When they arrived, Mother was talking to Contreras over a live video chat on her computer. Mother refused to speak to the police and kept Contreras on the computer the entire time the officers were there. After stating their concerns about the seriousness of the accusations, officers asked Mother to bring K.B. to the Western Kansas Child Advocacy Center for a forensic interview. But Mother remained argumentative and maintained that K.B. may have made up the allegations after seeing something similar in a movie. Eventually, however, Mother agreed to take K.B. to a forensic interviewer.

Robbins' interview

Kelly Robbins interviewed K.B. At the beginning of the interview, Robbins described K.B. as "[v]ery bubbly, very talkative, [and] very cooperative[.]" But as she began talking about the abuse, K.B. became less talkative, speaking only to answer questions. She would simply shrug her shoulders to answer, say she did not know, or give one-word answers. In recounting the details of Contreras' assault, K.B. told Robbins that he "had touched her inside her wee-wee ... he pulled her pants down, went in the front and down her panties, inside her panties, and it was inside her wee-wee with his finger." She also said that "before that happened, he had made her put her mouth on his penis, and he had pulled his shorts down to make her do that." K.B. also told Robbins that her father had sexually abused her while she was staying with him over Christmas break in December 2012.

Fyler's interview and K.B.'s recantation

After K.B.'s interview with Robbins was complete, she did an extended forensic interview with David Fyler. Fyler interviewed K.B. in three sessions. During the second session, K.B. told Fyler that both her father and Contreras had sexually abused her. According to K.B., Contreras' abuse occurred in his apartment.

In the third session, K.B. recanted her accusations against Contreras. During that interview, K.B. "teared up and said she needed to tell [Fyler] something." Then she told him that what she said about Contreras was not true. When Fyler asked why she wanted to take her story back, she explained that her mother had said that Contreras would lose his son if she did not take back her accusations. Fyler then asked K.B. "would it have been true if [K.B.'s] mom had not talked to her," and K.B. nodded her head yes. So Fyler decided to speak with Mother about the recantation.

After K.B. recanted, Fyler and Robbins spoke with Mother to see if K.B. had been pressured, to make sure K.B. was safe in the home with Mother, and to make sure K.B. was safe from Contreras. Mother told Fyler and Robbins that she did not believe K.B.'s accusations against Contreras. She denied ever having pressured K.B. to recant or change her allegations against Contreras. She also denied having told K.B. that Contreras would lose his son because of K.B.'s allegations. Instead, Mother maintained that K.B. told her she had lied about what happened with Contreras but had told the truth about what had happened with her father. So Mother had told K.B. to tell Fyler "the truth."

Contreras' interview and arrest

After K.B.'s initial interview with Robbins, Special Agent Bethanie Popejoy of the Kansas Bureau of Investigation became involved in the case. Popejoy interviewed Contreras at the police station. This interview lasted for around three hours, including two breaks. After the first break, Contreras was told that K.B. had accused him of sexual assault. Contreras reacted as if he were hurt that K.B. would implicate him. But according to Popejoy, he admitted that when he went into his bedroom to help K.B. get a pen, she pulled his shorts down and put her mouth on his penis. According to Popejoy, Contreras said her mouth had been there for only two seconds before Contreras made her stop and chastised her. K.B. told Contreras that this is what her father liked to do. After the second break in the interview, Popejoy told Contreras that K.B. had said he had touched her vagina. Eventually, Contreras said that after drinking excessively and lying on the floor of his bedroom between K.B. and one of the boys he may have mistaken K.B. for Mother and put his hands on K.B.'s vagina.

Contreras was not arrested until four years after the initial investigation was done. Popejoy suggested that some of that delay was because of K.B.'s inability to testify against Contreras when she was eight years old, as some in her family and in the Department for Children and Families did not think that she could testify.

K.B.'s therapy statements to Athy

The State of Kansas took custody of K.B. in March 2014. K.B. was placed in foster care for around two years. After that, K.B. went to Kearney, Nebraska, to live with her Grandmother and Mother later moved to Kearney.

After K.B. went to live with her Grandmother, she began therapy sessions with Susan Athy. K.B. told Athy about Contreras' sexual abuse. In one session, K.B. wrote a letter to Mother because K.B. wanted her to believe her accusations against Contreras, and because she was angry that her mother continued to date Contreras even knowing of her allegations. Athy stated that K.B. was very "specific about the incidents that happened with her ... but she couldn't put them in order." Yet K.B. was clear when she discussed the individual abuse committed by her father and by Contreras. And K.B. told Athy that she feared Contreras' home because of the sexual abuse that had occurred there. K.B. was worried her brothers could suffer some form of abuse because Mother was still with Contreras. K.B. never told her therapist that she had fabricated any accusations against Contreras.

At various sessions, K.B. detailed the different occasions on which Contreras had sexually abused her. She stated that Contreras made her perform oral sex and had inserted his penis inside her. K.B. then put the incidents in order, dating the sexual abuse by her father and by Contreras on a timeline.

During a 2016 session with Athy, K.B. stated that Contreras had put his penis inside her in the apartment across from Contreras' apartment. She said that Mother, her brothers, and other adults were in the living room of that apartment during the assault. K.B. also drew a picture of the apartment she was assaulted in. She said that two other incidents occurred in Contreras' apartment. She told them that after seeing a television show about victims of sexual assault she had told Mother about the abuse, but Mother had not believed her.

K.B.'s trial testimony

In June 2017, the State charged Contreras with two counts of rape, two counts of aggravated criminal sodomy, three counts of aggravated indecent liberties with a child, and one count of aggravated intimidation of a victim. The State amended the charge to two counts of rape, two counts of criminal sodomy, and one count of aggravated intimidation of a victim.

When K.B. testified at trial she was 13 years old. She testified that Contreras had digitally penetrated her vagina, had made her touch his penis with her hand and mouth, and had raped and sodomized her. K.B.'s trial testimony about a rape was somewhat confusing. At first she testified that it occurred in another apartment but then stated that the act in the other...