State v. Dishner
| Docket Number | 124,597 |
| Decision Date | 09 June 2023 |
| Parties | State of Kansas, Appellee, v. Steven Dale Dishner, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., SCHROEDER and GARDNER, JJ.
A jury sitting in Shawnee County District Court in 2021 convicted Defendant Steven Dale Dishner of one count of aggravated criminal sodomy with a child for which he received a life sentence without parole eligibility for 25 years. On appeal Dishner contends the victim's testimony was patently unbelievable, his former wife's testimony unduly prejudiced the jury, and the prosecutor made an improper closing argument bolstering the victim's account. The points do not require reversal of the verdict and resulting sentence, although some of the testimony was irrelevant and a portion of the closing argument may have constituted prosecutorial error.
For some time, Dishner lived with J.R. and her two sons, D.T. and L.T., in a house his mother owned. Dishner and J.R eventually married, then separated, and ultimately divorced in 2018. In June 2017, well after the separation, D.T. told his father that Dishner had sexually abused him about five or six years earlier. His father informed J.R., and D.T. briefly recounted the incident to her. J.R. contacted the Topeka Police Department the next day. A detective arranged a forensic interview of D.T. that was recorded and played for the jury.
The case was first tried to a jury in 2018, and Dishner was convicted. We reversed the conviction and ordered a new trial because the district court improperly instructed the jury to consider alternative means of committing aggravated criminal sodomy that the State neither actively pursued nor presented evidence on. State v. Dishner, No. 120,422, 2020 WL 593907, at *1 (Kan. App. 2020) (unpublished opinion). Apart from having precipitated the 2021 trial, that error is now beside the point.
In the second trial, D.T. testified that when he was about six years old, he was in the bathroom of the home where he lived with Dishner, J.R., and his brother. Disher was also in the bathroom. Dishner pulled down his pants and instructed D.T to fellate him. Dishner threatened to paddle D.T. if he didn't comply. D.T. did as he was ordered. Based on the record evidence, Dishner did not otherwise sexually or physically abuse D.T. Dishner neither testified during the trial nor offered other defense evidence. The jury convicted Dishner of aggravated criminal sodomy of a child, an off-grid felony violation of K.S.A. 2011 Supp. 21-5504(b)(1) carrying a hard 25 sentence of life in prison. The district court duly imposed a life sentence on Dishner with his first parole consideration after serving 25 years. Dishner has appealed.
As we have indicated, Dishner has asserted three substantive points of error on appeal, along with a cumulative error claim. We take those up in order, supplementing our initial factual recitation as necessary.
First, Dishner contends D.T.'s testimony was both infected with inconsistencies and largely uncorroborated, rendering it inherently unreliable and, thus, insufficient to support the jury's guilty verdict. That's an argument, but it's not the law. There are some discrepancies in the multiple accounts D.T. has given of Dishner's sexual assault of him. He has said he was in the bathroom when Dishner entered but has also said Dishner was there first. He has given differing time estimates for the abusive act itself. And he recalled the bathroom as having black and white tiles, when that color scheme actually describes wallpaper there. Conversely, D.T. has consistently recounted how the core act of abuse happened.
Witnesses, as human beings, are subject to the foibles and weaknesses of imperfect memory. Details may be inaccurately perceived or imprecisely recalled; faulty memories may result from especially traumatic events, the passage of time, or both in combination. And the credibility of a witness who gives differing accounts of an event may be challenged for that reason. See State v. Salem, No. 118,351, 2019 WL 2237382, at *13 (Kan. App. 2019) (unpublished opinion); State v. Salas, No. 103,605, 2011 WL 2637432, at *2 (Kan. App. 2011) (unpublished opinion). In the criminal justice process, the jury's overarching function is to assess the credibility of testifying witnesses and otherwise weigh the evidence presented to them to determine who may have done what to whom. State v. Franco, 49 Kan.App.2d 924, 936, 319 P.3d 551 (2014) (); Salem, 2019 WL 2237382, at *13. In short, the legal premise of Dishner's point cannot be reconciled with the role of juries generally and the role of this jury in particular. The jurors observed D.T. testify and were made aware of inconsistencies in his serial descriptions of Dishner's conduct. It was for them to assess D.T.'s credibility.
To advance his argument, Dishner turns to State v. Matlock, 233 Kan. 1, 6, 660 P.2d 945 (1983), in which a majority of the court found the account of a putative rape victim so at odds with a constellation of trial evidence-including testimony from witnesses in the home and close to the room where the crime supposedly occurred- that no reasonable jury could accept her uncorroborated account. The court, therefore, reversed the defendant's conviction. The court explained that "where [the rape victim's] testimony is so incredible and improbable as to defy belief, the evidence is not sufficient to sustain a conviction." 233 Kan. at 3-4. That conclusion rested on a correct, if general, proposition: If the State fails to present evidence that could persuade a reasonable jury to find each element of the charged crime proved beyond a reasonable doubt, then the case is insufficient as a matter of law, and the district court should enter a judgment of acquittal without submitting the case the jury. See State v. Ta, 296 Kan. 230, 236, 290 P.3d 652 (2012) (). But to invoke that proposition when the purported victim testifies to those elements is extraordinary, and Matlock stands as something of a one-off on unique facts. See State v. Brinklow, 288 Kan. 39, 53, 200 P.3d 1225 (2000) ().
Here, unlike Matlock, Dishner did not produce any independent witnesses or evidence directly calling into question D.T.'s account. The Kansas Supreme Court has distinguished the outcome in Matlock in precisely that way. State v. Borthwick, 255 Kan. 899, 906-07, 880 P.2d 1261 (1994). And we recently did likewise. State v. Foster, No. 123,276, 2022 WL 1436383, at *3-4 (Kan. App. 2022) (unpublished opinion). Nothing about D.T.'s testimony or the trial evidence as a whole approximates anything remotely comparable to Matlock, and we reject the notion that the case could be considered analogous authority here.
Dishner next argues that J.R. testified at trial to legally irrelevant circumstances that unduly prejudiced him in the eyes of the jurors. The prosecutor asked J.R. about the collapse of her relationship with Dishner. In response, she described going to pick him up at work one day and finding him gone. J.R. took that as a sign Dishner had left her. She then went to the school D.T. and L.T. attended to get them and learned that Dishner had not gotten his son, so she also picked him up. Dishner's trial lawyer then interposed a relevance objection the district court sustained.
On appeal, Dishner contends the line of questioning seemed to suggest he had abandoned both his employment and his child-representations that, even if true, had no bearing on the charged crime but tended to cast him in a poor light. As to the testimony about Dishner not being at work, his lawyer did not make a contemporaneous objection. In the absence of a timely objection, the point has not been preserved for appellate review, and we will not consider it. See K.S.A. 60-404 (); State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016) (appellate review limited by need for contemporaneous trial objection).
With respect to picking up the child, we assume the objection was timely, although J.R. had begun describing the situation. On appeal, the State concedes the line of inquiry was irrelevant. But we fail to see how the testimony so prejudiced Dishner as to deprive him of a fair trial. See State v. Cruz, 297 Kan. 1048, 1075, 307 P.3d 199 (2013) () (quoting State v. Bly, 215 Kan. 168, 178, 523 P.2d 397 [1974]). At most, the testimony presented before the defense objection simply showed Dishner was, perhaps, late in getting to the school, although no later than J.R. Nothing in that testimony or the balance of the trial record indicated Dishner, in fact, abandoned his child. There is no reason to suppose the jurors engaged in such a speculative leap from otherwise largely innocuous testimony.
We presume the district court erred in admitting the testimony. But the error would not require reversal of Dishner's conviction if it were otherwise harmless. We assess harmlessness under the standards set out in State v Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), for constitutional and nonconstitutional errors. The wrongful admission or exclusion of evidence typically creates a...
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