State v. Eddy

• Decision Date: 21 March 2014
• Docket Number: No. 106,132.,106,132.
• Citation: 299 Kan. 29,321 P.3d 12
• Parties: STATE of Kansas, Appellee, v. Rasmus R. EDDY, Appellant.
• Court: Kansas Supreme Court

299 Kan. 29

321 P.3d 12

STATE of Kansas, Appellee,

v.Rasmus R. EDDY, Appellant.

No. 106,132.

Supreme Court of Kansas.

March 21, 2014.

Syllabus by the Court

1.Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means of committing a crime, raise questions of law reviewable de novo on appeal.

2.The gravamen of the sexual intercourse element of rape is penetration of the female sex organ.A jury instruction that defines sexual intercourse as any penetration of the female sex organ by a finger or any object does not create alternative means by which the crime of rape can be committed.

3.An appellate court applies an abuse of discretion standard when reviewing a district court's decision on a defendant's motion for a psychological evaluation of a complaining witness.

4.In general, a defendant is entitled to a psychological examination of a complaining witness in a sex crime case only where compelling circumstances justify such an examination.To assess the existence of compelling circumstances, a court should examine the totality of the circumstances.

5.In determining whether compelling circumstances exist which would warrant ordering the psychological evaluation of a complaining witness, courts may consider the following nonexclusive list of factors: (1) whether there is corroborating evidence of the complaining witness' version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether the complaining witness has made similar charges against others that were proven to be false, (5) whether the defendant's motion for an evaluation appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.

Meryl Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Christina M. Trocheck, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Rasmus R. Eddy directly appeals his jury convictions for multiple counts of serious sex offenses perpetrated against A.E., his 4–year–old granddaughter.Eddy raises two arguments on appeal: (1)The State presented insufficient evidence to prove that he committed rape by the alternative means of penetrating the victim with an object, and (2)the district court erroneously denied his request to have a psychological evaluation performed on the victim.This court has direct jurisdiction pursuant to K.S.A. 22–3601(b)(1), prior to its 2011amendments.We affirm.

Factual and Procedural Overview

The incidents underlying the charges against Eddy occurred in the spring of 2009, while A.E. was staying at Eddy's house for a few days at Eddy's request.The child related to her mother and other relatives that she had seen naked adults on Eddy's computer; that Eddy had touched her in the vaginal area with his finger; and that Eddy had licked her vagina.Eddy admitted to the police that he had allowed the child to view pornography on his computer.He explained the touching by saying that he had rubbed baby oil on a sore that was located on the inside of the child's labia.Eddy explained the licking by describing how the child, while naked, playfully climbed over his head a number of times, causing his face to contact her vaginal area.He also said that the child insisted that he kiss her “owie,”i.e., her labial sore, and that he had pretended to do so by placing his hand over her vagina and kissing the inside of her thigh or the back of his own hand.Eddy also told the police that the child had grabbed his penis unexpectedly on two occasions during her visit.

During closing argument, the prosecutor explained the charges against Eddy and related the facts supporting each charge.Count I charged rape based upon Eddy's admittedly putting his finger inside the child's labia, albeit ostensibly to rub oil on a sore.Count II charged aggravated criminal sodomy based on A.E.'s testimony that Eddy licked her vagina.Count III, promoting obscenity to a minor, was based on Eddy allowing A.E. to view pornography.Count IV, aggravated indecent liberties with a child, was based on Eddy's testimony that he placed his hand over A.E.'s vagina and kissed her inner thigh.Counts V and VI each charged aggravated indecent liberties with a child and were based on Eddy's testimony that A.E. grabbed his penis on two different occasions, as well as his having held his penis while showing it to A.E.Finally, Counts VII–XI were aggravated criminal sodomy charges based on Eddy's testimony that “as many as five times he let [A.E.] slide down his face while she was naked, and that she'd come in contact with his nose and his mouth.That's oral contact.”

The jury acquitted Eddy on one of the aggravated criminal sodomy charges, Count VIII, but convicted him on all of the other counts.

Eddy filed a posttrial motion for acquittal, arguing, inter alia, that the five convictions for aggravated criminal sodomy that were based on the single, unitary incident where A.E. repeatedly slid down Eddy's face were multiplicitous.The district court denied the motion, and Eddy has not asserted multiplicity in this appeal.

The sentencing court granted Eddy's motion to impose a sentencing guidelines grid sentence, pursuant to K.S.A. 21–4643(d), and the district court ultimately imposed a controlling prison sentence of 310 months, or 25 years and 10 months.Eddy timely appealed.

Alternative Means

On the rape count, the court instructed the jury that one of the claims the State had to prove was “[t]hat the defendant had sexual intercourse with [A.E.].”Then the jury instructions set forth the following definition: “Sexual intercourse means any penetration of the female sex organ by a finger or any object.Any penetration, however slight, is sufficient to constitute sexual intercourse.”(Emphasis added.)

Eddy contends that the definition of sexual intercourse given to the jury created alternative means by which it could have found that the rape occurred, i.e., by penetrating A.E.'s sex organ with a finger or by penetrating A.E.'s sex organ with an object.Therefore, to ensure jury unanimity, the State was required to present the jury with sufficient evidence to support a conviction under both alternative means or the conviction must be reversed.SeeState v. Wright,290 Kan. 194, 202–03, 224 P.3d 1159(2010)(in alternative means case, jury need not be unanimous as to which means defendant utilized but there must be substantial competent evidence of each instructed means).Eddy argues that the State presented no evidence that he penetrated the child with an object, apparently presuming that a finger is not also an object within the meaning of the instructions.

Standard of Review

“Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.”State v. Brown,295 Kan. 181, Syl.¶ 6, 284 P.3d 977(2012).An alternative means challenge can be raised for the first time on appeal because it implicates the sufficiency of the evidence to support the conviction.SeeState v. Wells,297 Kan. 741, 756–57, 305 P.3d 568(2013).

Analysis

Subsequent to Eddy's trial, this court resolved the question of whether the definition of sexual intercourse created alternative means of committing rape.In State v. Britt,295 Kan. 1018, 1027, 287 P.3d 905(2012), this court reasoned that the gravamen of the prohibited act of rape was penetration and that the listing of body parts and “any object” merely described factual circumstances by which the element of penetration could be proved.Because the instruction did not create an alternative means circumstance, evidence establishing that Britt penetrated the victim's vagina with his penis was sufficient to support his rape conviction, notwithstanding the absence of any evidence that he penetrated the victim with a finger or another object.295 Kan. at 1026–27, 287 P.3d 905;seeState v. Weber,297 Kan. 805, 816–17, 304 P.3d 1262(2013);State v. Miller,297 Kan. 516, 518, 304 P.3d 1221(2013).

Eddy's brief was submitted prior to our decision in Britt.At oral argument, the defense did not proffer any compelling reason that we should reverse Britt's holding that the definition of sexual intercourse does not make rape an alternative means crime.We stand by that ruling, which resolves the issue against Eddy.There was sufficient evidence that Eddy penetrated the child's labia with his finger, which would support the sexual intercourse element of the crime of rape.

Psychological Evaluation of the Victim

For his other issue, Eddy contends that the district court erred in...