State v. Dern, No. 106,406.

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation301 P.3d 789
PartiesSTATE of Kansas, Appellee, v. Justin George DERN, Appellant.
Decision Date27 December 2013
Docket NumberNo. 106,406.

301 P.3d 789

STATE of Kansas, Appellee,
Justin George DERN, Appellant.

No. 106,406.

Court of Appeals of Kansas.

May 24, 2013.
Review Granted Dec. 27, 2013.

Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.




Justin George Dern appeals his convictions and sentences for sex crimes against his two daughters. He argues the district court should not have admitted his confession to law enforcement or evidence of his prior sexual misconduct; there was insufficient evidence to support his convictions; and the district court erred in instructing the jury on reasonable doubt and by imposing lifetime electronic monitoring.

Justin and Jami Dern had been married for 12 years when the alleged incidents occurred. They had three children together—a 7–year–old boy and 3–year–old twin girls, CD. and F.D. In late June 2010, CD. told Jami that she had seen “daddy's peepee,” but Justin quickly explained that she had seen him “going potty.”

On the evening of July 29, 2010, Jami took their son to a friend's house for a sleepover while Justin stayed home with the girls. The girls were asleep when Jami returned home.

After Justin left for work the next morning, Jami asked the girls about their evening with him. F.D. said, “I saw daddy's peepee.” When Jami asked her about it, F.D. said, “Daddy took out his peepee like this,” and pulled down the front of her underwear. She said, “I touched daddy's peepee.” When Jami asked her how she touched it, F.D. said, “Up and down like this,” while moving her cupped hand up and down. When Jami asked her if there was anything else she wanted to share, F.D. said, “I licked daddy's peepee.” When Jami asked her where she licked it, F.D. said, “I licked his peepee and then I licked his butt. I licked down there by his butt.” CD., who had been sitting next to Jami during the conversation, said, “Daddy just made me sad, and I don't want to see that again.”

Justin denied the girls' allegations at first—once when Jami called him at work and again when he got home. But later that evening, he locked himself in the bathroom. Jami found him sitting on the toilet seat, crying, with a loaded handgun by his side. He told her that he could not remember committing the alleged acts but “something inside him [told] him that he did it.” She thought he was suicidal so she hid the gun and ammunition.

The next day, Jami contacted Eric Dannefer, their pastor and Justin's best friend, to tell him Justin was suicidal. After a brief communication with Justin, Dannefer became concerned about Justin's mental state and made him promise not to do anything until they spoke in person. Dannefer visited the Justin house that evening. Justin explained to Jami and Dannefer that he had become aroused a couple of months earlier when the girls walked in on him in the restroom and wanted to see his penis. One time, he said, “[D]addy's got to put it away. It's an ouchy,” and when F.D. said, “Oh, well, can I give it a kiss?” he said, “Yeah, okay, you can give it a kiss.” Another time, he was sitting on the couch and CD. wanted to reach up his shorts to touch his penis. Justin confessed that on the night in question the girls had touched and licked his penis and he had masturbated in front of them. Concerned for his mental health and safety, Jami and Dannefer convinced Justin to check himself into the VA hospital. Jami drove him there. Justin was admitted on August 1, 2010, due to suicidal ideation.

Mario Lopez, an acute care psychiatric social worker at the hospital, was assigned to Justin's case. Justin confessed to Lopez that he had had “sexual contact” with his girls on four separate occasions, the last of which occurred on July 29, 2010, and involved them touching and licking his penis and him masturbating in front of them.

Brian Woodworm, a detective with the Pottawatomie County Sheriff's Office, investigated the alleged sexual abuse. Woodworth made an audio recording of his interview with Justin, which took place at the hospital on August 4, 2010. Justin confessed that the sexual abuse had been going on for “[a]bout two months.” It began with C.D.'s curiosity about his penis and progressed to him showing the girls his penis and letting them touch it. “The third time,” he allowed CD. to hold and stroke his penis, which aroused him. “[T]he fourth time,” he started to get aroused again so he let the girls touch and kiss his penis and put it in their mouths, and he ejaculated in the living room.

Justin was discharged from the hospital on August 6, 2010. The State charged him with two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties. Justin pled not guilty to the charges. Before trial, the district court denied Justin's motion to suppress his confession to law enforcement and granted the State's motion to allow evidence of Justin's prior sexual misconduct.

Jami, Lopez, Woodworm, and Justin testified to the aforementioned facts at the jury trial. Justin, however, testified that he had not committed any of the alleged acts against the girls. He said the girls may have seen him urinating on the night in question, but he had told them to leave the bathroom and they did. When Jami confronted him, he firmly denied the allegations and she threatened him with jail if he was not “straight” with her. The allegations and the thought of losing his family caused him to contemplate suicide. He confessed to Jami and Dannefer “just to get them to leave [him] alone”—he was distraught because they had spent 2 hours telling him that he must have committed the alleged acts and Jami had said she would leave him if he did not confess. He confessed to Lopez because he was unstable, defeated, and afraid of losing his family. He confessed to Woodworth, incorporating details about the progressive nature of sexual abuse suggested by Jami and Dannefer, because he had been offered help and treatment and thought he could save his family.

The jury found Justin guilty on all counts. The district court sentenced him to a controlling term of two consecutive life sentences with the possibility of parole after 25 years and imposed the requisite lifetime parole and registration. Justin timely appeals.

Justin first argues the district court should have excluded his confession to law enforcement because it was “unknowing and involuntary,” given the location, his mental state, his ignorance of possible charges, and Woodworm's promises to get him help.

A dual standard is used when reviewing the suppression of a confession. In reviewing a district court's ruling on a motion to suppress a confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Summers, 293 Kan. 819, 825, 272 P.3d 1 (2012).

Before trial, Justin filed a motion to suppress his confession to law enforcement. At the suppression hearing, the audio recording and transcript of Justin's interview with law enforcement were admitted into evidence. Woodworth interviewed Justin at the VA hospital on August 4, 2010, in a room that locked people out, not in. Justin's first statement was that he was “very excited about getting ... treatment.” Woodworth responded by saying that his first goal was to get Justin the help he needed. Justin said “there was not even a chance” of him being discharged that day because “they want[ed] to make sure [he was] over the suicide thing .” The only medication Justin was taking was for his thyroid, diabetes, and stomach issues. Woodworth explained that he was there to get Justin's side of the story after talking to Jami and the girls.

Justin was told multiple times that he was not under arrest, he was not required to talk, and he could talk after getting an attorney. When Justin asked what the “worst case scenario” was for him, Woodworth said he did not know because the county attorney would make the decision based on his report. When Justin questioned whether he should have an attorney present, Woodworth said that it was understandable if he wanted to talk to an attorney first, but “[s]ometimes it [ ] look[s] better to the county” if he were to talk to him instead. After telling Woodworth that he would like to cooperate and “attorneys c[ould] come later,” Justin confessed. Later, Justin said he was “long past” the suicidal “stage.” The interview lasted for about 40 minutes.

After the hearing, the district court denied Justin's motion to suppress. The court made the following factual findings: (1) “[D]efendant was clearly conscious and was capable of understanding what [he] said and did during the interview” because he told Woodworth that he was “long past” the “stage” of being suicidal; (2) “There is simply no evidence to support a finding that any compulsion, infliction of suffering on defendant or anyone else, or the threat of the same was part of this interview process”; (3) “[D]efendant's statements were not induced by prolonged interrogation under such circumstances as to render the statement involuntary” because “[t]he interview took less than an hour” and “[l]aw enforcement offered to terminate the interview several times, if defendant wanted to consult with an attorney”; and (4) “[D]efendant's statements were not induced by any threats or promises concerning action to be taken by the county attorney's office, or by law enforcement itself with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”...

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