State v. Dayhuff, 94,797.

• Decision Date: 18 May 2007
• Docket Number: No. 94,797.,94,797.
• Citation: 158 P.3d 330
• Parties: STATE of Kansas, Appellee, v. Paul Robert DAYHUFF, Appellant.
• Court: Kansas Court of Appeals

158 P.3d 330

STATE of Kansas, Appellee, v. Paul Robert DAYHUFF, Appellant.

No. 94,797.

Court of Appeals of Kansas.

May 18, 2007.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Jennifer Brunetti, special prosecutor, Steven W. Wilhoft, county attorney, and Phill Kline, attorney general, for appellee.

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

GREEN, J.

Paul Robert Dayhuff appeals his jury trial conviction and sentence for aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). First, Dayhuff argues that he was denied his right to a unanimous verdict because the prosecutor relied on acts not charged in the complaint to obtain his conviction. Nevertheless, the jury in this case was properly instructed on the elements of the charged crime. Moreover, the State never argued to the jury that uncharged acts could provide a basis for Dayhuff's conviction. Further, the jury was properly instructed on juror unanimity in a multiple acts case. Therefore, Dayhuff's argument fails.

Next, Dayhuff argues that his right to a fair trial was violated by the admission of prior evidence under the plan exception of K.S.A. 60-455. Because there was insufficient evidence presented in this case to show a "strikingly similar" or a "signature" act, we conclude that the trial court erred in admitting evidence of Dayhuff's prior crimes under the plan exception of K.S.A. 60-455. As a result, Dayhuff's case must be reversed and remanded for a new trial. Next, Dayhuff contends that his right to a fair trial was violated by the conduct of a child advocate during the child's testimony. We determine that the trial court's refusal to allow Dayhuff to develop a factual basis for his motion for mistrial at the time of trial denied him the opportunity to show what, if any, influence the child advocate's conduct may have had on the child's testimony when the child's credibility was being considered by the jury. Accordingly, we reverse and remand for a new trial.

Next, Dayhuff argues that cumulative error denied him a fair trial. Nevertheless, we have already determined that there is reversible error in this case. Whether considered alone or in combination, the errors in this case denied Dayhuff a fair trial.

Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Dayhuff contends that the trial court erred in including his prior convictions in his criminal history. Because we are reversing, we need not consider Dayhuff's challenge to his criminal history. But see State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).

Facts

On June 15, 2003, Pam Brown reported to the police that her daughter, H.D., had told Brown that she had been sexually abused by Dayhuff. Brown and Dayhuff had been married to each other but had divorced in February 1998. Brown told the interviewing officer that after returning home from a visit with Dayhuff, H.D. had told Brown that Dayhuff had put his hands down H.D.'s pants several times and had attempted to get H.D. to touch his penis. H.D. was 9 years old at the time of the alleged incidents.

The sexual abuse allegedly occurred when H.D. was staying with Dayhuff at his brother's home between June 2, 2003, and June 13, 2003. H.D. told Brown about the sexual abuse the day before she was scheduled to return to Dayhuff's home for another visit. Brown testified that H.D. told her that Dayhuff had touched her vagina and had attempted to place H.D.'s hand on his penis. H.D. told Brown that the touching had occurred at night. Brown called the police and reported the sexual abuse. Brown also faxed a voluntary written statement to the police department. After Brown faxed her statement, H.D. told Brown that Dayhuff had said that he would kill Brown if H.D. told her about the abuse.

Susan Beitzinger, an investigative social worker, interviewed H.D. on June 17, 2003. The interview was videotaped. Beitzinger was the only person with H.D. during the interview. A police officer and Katherine Adams, a child advocate, observed the interview through a one-way mirror. During the interview, H.D. told Beitzinger that she had lain down at night in a bedroom at Dayhuff's brother's home when Dayhuff raised her nightgown and reached into her underwear and touched her private part. H.D. was lying in her bed, and Dayhuff was lying naked in his bed in the same room. Dayhuff's brother was in a downstairs bedroom. H.D. told Beitzinger that Dayhuff told H.D. to keep it a secret. The following morning, H.D. was still lying in her bed when Dayhuff asked her to touch his private part. H.D. refused to touch Dayhuff.

On June 24, 2003, Brown took H.D. to the hospital for a sexual assault examination. H.D. told the examining nurse, "I don't like my daddy any more. He touched me. He touched me a lot of times." The examining nurse found no physical evidence of sexual abuse. Nevertheless, the nurse testified that she would not expect to find any physical evidence of sexual abuse when a child had been touched on the outside of the vagina. Moreover, the nurse testified that when an exam occurs over 72 hours after the alleged sexual abuse, any trauma would have healed by that time.

The State charged Dayhuff with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). Before trial, the State moved to admit evidence of Dayhuff's prior crimes against his previous girlfriend's daughter, S.A., to show plan under K.S.A. 60-455. The trial court granted the State's motion to admit the evidence under K.S.A. 60-455. At trial, Bobbie Wiltsie, who investigated S.A.'s case, testified about four separate incidents of sexual abuse allegedly committed by Dayhuff against S.A. In addition, S.A. testified about two of these instances of sexual abuse. Before Wiltsie and S.A. testified, Dayhuff renewed his objection to the introduction of the prior crimes evidence under K.S.A. 60-455.

H.D. testified at trial about the alleged sexual abuse. H.D. recounted two incidents when Dayhuff had touched her while they were lying in separate beds in a bedroom at Dayhuff's brother's house. During the first incident, Dayhuff reached under H.D.'s clothes and touched the outside of her vagina. H.D. testified that Dayhuff was not naked when he touched her. H.D. testified that this incident occurred at night. In the second incident, Dayhuff again reached under her clothes and touched the outside of her private part. Dayhuff also grabbed H.D.'s hand and attempted to have her touch him. According to H.D., this second incident occurred when it was dark outside. H.D. testified that Dayhuff told her to keep it a secret.

Immediately after H.D.'s testimony, Dayhuff moved for a mistrial on the basis that an individual in the courtroom had been gesturing to H.D. and shaking her head while H.D. testified, essentially coaching H.D.'s testimony. Dayhuff informed the trial court that another attorney, John Bullard, who was watching the trial, had told him of the individual's action and that defense counsel's secretary had also been in the courtroom. Dayhuff requested that he be allowed to present testimony from his counsel's secretary about the individual's actions. The trial court told Dayhuff that he could bring up the issue in a motion for a new trial if he was convicted.

The jury found Dayhuff guilty of aggravated indecent liberties with a child. Dayhuff moved for a new trial. Among numerous issues raised in his motion for a new trial, Dayhuff argued that although he informed the trial court that an individual in the courtroom had been directing H.D.'s testimony, the trial court did not take any action with this information. After conducting an evidentiary hearing, the trial court denied Dayhuff's motion for a new trial. The trial court sentenced Dayhuff to 204 months in prison.

I. Was Dayhuff denied his right to a unanimous verdict?

First, Dayhuff argues that he was denied his right to a unanimous verdict because the State relied upon acts that were legally insufficient to sustain a conviction for aggravated indecent liberties with a child based upon how the crime was charged in the complaint.

K.S.A. 22-3403 and K.S.A. 22-3421 give a criminal defendant the right to a unanimous jury verdict. State v. Unruh, 281 Kan. 520, 527, 133 P.3d 35 (2006). An appellate court exercises de novo review over issues of jury unanimity. State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005).

Dayhuff maintains that the State argued to the jury that Dayhuff's conviction could be based upon either: (1) Dayhuff touching H.D. on the outside of her vagina; or (2) Dayhuff placing H.D.'s hand on his penis the next morning. The complaint in this case charged Dayhuff with aggravated indecent liberties with a child based upon "engaging in an act of lewd fondling or touching of the person of H.D." Although K.S.A. 21-3504(a)(3)(A) defines aggravated indecent liberties with a child as engaging in "[a]ny lewd fondling or touching of the person of either the child [who is under 14 years of age] or the offender" (emphasis added), the State never amended the complaint to allege the alternative means of committing the crime by H.D. touching Dayhuff. Dayhuff alleges that the State's failure to amend or clarify the complaint to allege a lewd fondling or touching of Dayhuff resulted in jury confusion and violated his right to a unanimous verdict.

A. Instruction on Elements of Crime

Nevertheless, the jury was properly instructed on the elements of aggravated indecent liberties with a child consistent with the elements alleged in the complaint. The jury was instructed that in order to convict Dayhuff of aggravated indecent liberties with a child, they needed to find that Dayhuff "fondled or touched H.D. in a lewd manner, with intent to arouse or to satisfy the sexual desires of either H.D. or the defendant, or both." No mention was made in the jury instruction of Dayhuff forcing or attempting to...