State v. Dern

• Citation: 362 P.3d 566
• Decision Date: 25 November 2015
• Docket Number: No. 106,406.,106,406.
• Parties: STATE of Kansas, Appellee, v. Justin George DERN, Appellant.
• Court: Kansas Supreme Court

362 P.3d 566

STATE of Kansas, Appellee,

v.Justin George DERN, Appellant.

No. 106,406.

Supreme Court of Kansas.

Nov. 25, 2015.

Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Sherri L. Schuck, county attorney, argued the cause, and Derek Schmidt, attorney general, was on the brief for appellee.

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

Justin G. Dern appeals from two convictions of aggravated indecent liberties with a child and two convictions of aggravated criminal sodomy involving his 3–year–old twin daughters. The State's case rested largely on Dern's admissions to others, including law enforcement, that he had committed these offenses. This aspect of the case requires application of our long-standing common-law corpus delicti rule. In so doing, we clarify how the rule applies to crimes that produce no tangible harm or injury.

Dern advances six claims of reversible error: (1) the failure to suppress his confession to law enforcement, which he claims was involuntary; (2) the admission of evidence that he confessed to other, uncharged acts of sexual misconduct with his daughters; (3) the application of the invited error doctrine to affirm his aggravated criminal sodomy convictions on the basis of jury instructions that set out alternative means; (4) the lack of corroborating evidence under the common-law corpus delicti rule to support the two convictions involving one daughter; (5) the giving of the aggravated indecent liberties with a child instruction, which Dern claims presented the jury with alternative means; and (6) the giving of the reasonable doubt instruction, which Dern alleges improperly stated the burden of proof.

We affirm Dern's two convictions for aggravated indecent liberties with a child and the life sentences imposed for them. We reverse both aggravated criminal sodomy convictions because the jury was improperly instructed on alternative means of committing that crime without supporting evidence for each means presented to the jury, and the Court of Appeals panel erroneously applied the invited error doctrine to preserve those convictions.

FACTUAL AND PROCEDURAL BACKGROUND

The Court of Appeals aptly summarized the case facts, which were incorporated by reference into Dern's petition for review to this court. The panel found:

"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, C.D. and F.D. In late June 2010, C.D. 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.’ C.D., 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 [Dern] 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 C.D. 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 Woodworth, 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 C.D. 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." State v. Dern, No. 106,406, ––– Kan.App.2d ––––, 2013 WL 2395253, at *1–2 (Kan.App.2013) (unpublished opinion).

After Dern left the VA hospital, the State charged him with two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties—one charge of each crime for each girl based on his conduct on July 29, 2010.

Before trial, the State filed a K.S.A. 60–455 motion to introduce as evidence Dern's admissions of prior sexual misconduct with C.D. and F.D., i.e., the three incidents prior to July 29, 2010, that he had described to his wife and others. The district court granted the State's motion. Dern moved to suppress his statement to law enforcement, arguing it was involuntary. The district court denied that motion.

Jami Dern, Dannefer, Lopez, and Woodworth all testified at trial to the details summarized above. C.D. and F.D. did not testify because the parties stipulated the girls were disqualified under K.S.A. 60–417. When the State rested its case, Dern moved for acquittal of both charges involving C.D. because of insufficient evidence under the common-law corpus delicti rule. The district court denied that motion.

Dern testified in his defense, recanting his admissions. He insisted on his innocence and said the only thing that happened the night the girls came into the bathroom while he was urinating was that he told them to get out and they did. He testified the only true thing was that the girls had seen his penis in a family restroom while out shopping. Dern explained he falsely confessed because he had been "hammered on" for 2 days. He pointed out he had denied all allegations until the Saturday night he met with his wife and Dannefer and confessed to them only after 2 hours of questioning so they would leave him alone. Dern said he was distressed and thought his wife would stay with him if he confessed.

Dern explained further that he confessed to the intake doctor at the VA hospital because his wife was there, and confessed to Lopez because he was still distraught, had an unstable state of mind, and was afraid he would lose his family. He said he had not thought through the consequences of telling a social worker. Finally, Dern said he made up a story for law enforcement because he was told he could get treatment and thought they just wanted to help him. He claimed he was willing to lie to save his family.

The jury convicted on all four counts. Dern received four life sentences with a mandatory minimum of 25 years, two running consecutively and two others concurrently.

The Court of Appeals affirmed all four convictions. Dern, 2013 WL 2395253, at *13.

Relevant to our review, the panel found Dern's confession voluntary and upheld the denial of his suppression motion. 2013 WL 2395253, at *5. It also held the evidence of his prior sexual misconduct was admissible under K.S.A.2014 Supp. 60–455 to prove his "criminal disposition." 2013 WL 2395253, at *8. It agreed the jury instruction improperly included alternative means of committing sodomy but declined to reverse those convictions under the invited error doctrine. 2013 WL 2395253, at *10. It held the instruction for committing aggravated indecent liberties with a child did not state alternative means. The panel further held there was adequate corroborating evidence of Dern's crimes against C.D. to satisfy the common-law corpus delicti doctrine. 2013 WL 2395253, at *11. And it held the jury was properly instructed on reasonable doubt. 2013 WL 2395253, at *12. Notably, Dern prevailed on a sentencing issue, and the State did not cross-petition for this court's review. 2013 WL 2395253, at *13. The State also did not cross-petition on the panel's holding that the jury instruction improperly included alternative means of committing sodomy.

Dern petitioned for review of the same...