State v. Eaton

• Decision Date: 03 March 1989
• Docket Number: No. 60991,60991
• Citation: State v. Eaton, 244 Kan. 370, 769 P.2d 1157 (Kan. 1989)
• Parties: STATE of Kansas, Appellee, v. Lowell Thomas EATON, Appellant.
• Court: Kansas Supreme Court

Page 1157

769 P.2d 1157

244 Kan. 370

STATE of Kansas, Appellee, v. Lowell Thomas EATON, Appellant.

No. 60991.

Supreme Court of Kansas.

March 3, 1989.

Syllabus by the Court

1. The right to confrontation of a witness under the Kansas and United States Constitutions includes the right of the accused to face-to-face confrontation while a victim/accuser is testifying against the accused.

2. The fundamental right of a defendant to confront a witness in a criminal trial is not absolute and has exceptions where necessary to further an important public policy.

3. The State's interest in protecting child victims of sex crimes and in obtaining reliable testimony from a child witness in sexual abuse trials constitutes an important public policy sufficient to justify an exception to a defendant's right to confrontation.

4. A defendant in a sexual abuse trial is not denied his constitutional right to confrontation where the child-victim witness testifies via closed-circuit television, pursuant to K.S.A. 22-3434, provided the trial court finds that in-court, face-to-face testimony by the child-victim witness would so traumatize the child as to prevent the child from reasonably communicating or would render the child unavailable to testify, as more specifically stated in the opinion.

5. The State has the burden of proving by clear and convincing evidence that the child-victim witness would be so traumatized and thus unavailable to testify.

6. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and, before the statute may be stricken, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

7. A statute apparently void upon its face may be constitutional when construed and limited in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. Following In re Adoption of Baby Boy L., 231 Kan. 199, Syl. p 13, 643 P.2d 168 (1982).

8. The application of K.S.A. 22-3434 without first requiring the necessary individualized finding of trauma would, under the decision of Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), render the statute unconstitutional as a denial of defendant's right to confrontation under the Sixth Amendment to the United States Constitution.

9. K.S.A. 22-3434 is construed to implicitly require a finding by the trial court that the in-court, face-to-face testimony by the child-victim witness would so traumatize the child as to prevent the child from reasonably communicating or render the child unavailable to testify, as more specifically stated in the opinion.

10. The record on appeal is examined in a child abuse case and it is held: The trial court did not err in failing to instruct the jury on the crime of aggravated sexual battery as a lesser included offense. The trial court did err (1) in failing to instruct upon the crime of attempted aggravated criminal sodomy and (2) in permitting the child-victim witness to testify by closed-circuit television pursuant to K.S.A. 22-3434.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs for appellant.

Susan E. Jones, Special Prosecutor, argued the cause, and Robert T. Stephan, Atty. Gen., was with her on the brief for appellee.

ALLEGRUCCI, Justice:

The defendant, Lowell Thomas Eaton, appeals his convictions of one count of indecent liberties with a child (K.S.A. 21-3503) and one count of aggravated criminal sodomy (K.S.A. 21-3506). The State cross-appeals on a question reserved.

The victim in the case, B.M., was seven years old at the time the alleged acts occurred. B.M. lived with her grandmother. B.M.'s five-year-old brother, her teenaged aunt, and an uncle also lived with the grandmother. The defendant was a friend of B.M.'s grandmother and, at times, baby-sat with the children. On occasion, B.M. and her brother would spend evenings and weekends with the defendant.

In late November 1986, B.M. indicated to her aunt that the defendant had been touching her. B.M.'s grandmother was informed and she notified the sheriff. She was instructed to take B.M. to see Dr. Stephen C. Meyers, a pediatrician in Garden City. Dr. Meyers examined B.M., and at trial he testified that he found no physical evidence of vaginal or anal intercourse. He further testified that the hymen was still intact, and that, during the course of the examination, B.M. denied that the defendant had put his penis in her mouth.

Officer Linda Morgan, a volunteer reserve deputy sheriff, conducted two interviews with B.M. Prior to each interview, B.M.'s grandmother talked with B.M. and compiled a list of all the sexual acts the defendant had allegedly done to B.M. There were several inconsistencies among the lists, interviews, and B.M.'s testimony. At trial, she testified that the defendant put his penis in her mouth and that he had tried to put his penis in her "pee-pee" three times. The testimony was inconsistent with what she told Dr. Meyers and with the second list. Although the lists indicated that the defendant had put his finger in B.M.'s vagina, she did not indicate that to the officer at the time of the two interviews.

B.M.'s brother testified that he had observed the defendant put his "thing" in B.M.'s mouth. This observation was allegedly made through the bedroom window while the brother was playing in the defendant's back yard.

The defendant did not testify, but did call several witnesses to testify for the defense. A friend of defendant was one such witness. She testified, among other things, that B.M.'s grandmother brought B.M. and her brother over to the defendant's house on November 15, 1986, several days after the alleged incidents, and that B.M. ran over to the defendant, sat in his lap, kissed him on the cheek, and told him she loved him.

The State called Carol Lightner, a staff social worker at the Garden City Mental Health Center, as a rebuttal witness. She testified as to her education and work experience treating sexually abused children. The defendant objected on the grounds her testimony would be improper rebuttal. Prior to the trial court's sustaining defendant's objection, the prosecuting attorney stated that "the State intends to offer the expert testimony of Mrs. Lightner to rebut the expert testimony that Mr. Pierce offered through Dr. Meyers."

The jury found the defendant guilty on both counts. Additional facts will be stated as necessary to determine the issues raised on appeal.

The defendant first contends that the district court erred in failing to instruct the jury on the crime of aggravated sexual battery as a lesser included offense of the crime of indecent liberties with a child. The defendant relies upon State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987). This court's decision in Hutchcraft was subsequently limited by our decision in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), which is controlling in the present case. In Fike, we concluded that aggravated sexual battery is not a lesser included offense of indecent liberties with a child. 243 Kan. at 373, 757 P.2d 724. We find no merit in the defendant's argument.

The defendant also argues that the district court erred in failing to instruct the jury on attempted aggravated criminal sodomy. One witness for the defendant testified that the complaining witness had told him that an adult man "had attempted to touch her with his fingers, ... had tried to place his thing in her mouth." The witness later testified that B.M. also denied that the man had engaged in "oral sex with her by sticking his penis in her mouth." Had the jury credited this testimony, it could have found that the defendant had attempted to commit aggravated criminal sodomy but failed to complete the attempt. The district court, therefore, erred in failing to instruct upon the crime of attempted aggravated criminal sodomy.

The State contends that the defendant waived his right to an instruction on attempted aggravated criminal sodomy when he failed to propose an instruction on the offense. We find no merit in the State's argument. Under K.S.A. 21-3107(3), a trial court has an affirmative duty to instruct the jury as to all lesser included crimes of which the defendant might reasonably be convicted. This duty applies whether or not the defendant has requested the proposed instruction. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).

The State also contends that an instruction on the crime of attempted aggravated criminal sodomy would have been inappropriate, since other evidence presented in the case indicated that the crime had been completed. See State v. Grauerholz, 232 Kan. 221, 654 P.2d 395 (1982). However, the duty to instruct on all lesser included offenses does not arise simply where the preponderance of the evidence introduced in the case supports a conviction upon the lesser offense. Instead, an instruction upon a lesser included offense is required even though the evidence supporting the lesser offense may be weak and inconclusive. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981).

The defendant next argues that the trial court erred in permitting B.M. to testify by means of closed-circuit television, pursuant to K.S.A. 22-3434. K.S.A. 22-3434 provides in part:

"(a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, the court may order that the testimony of the child be taken:

"(1) In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; or

"(2) outside the courtroom and be recorded for showing the courtroom before the court...