State v. Ferenz
| Decision Date | 27 February 2015 |
| Docket Number | No. 111156.,111156. |
| Citation | 343 P.3d 562 (Table) |
| Parties | STATE of Kansas, Appellee, v. George FERENZ, Appellant. |
| Court | Kansas Court of Appeals |
Samuel Schirer, Kansas Appellate Defender Office, for appellant.
Barry K. Disney, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
George Ferenz appeals following his convictions of two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. Ferenz argues that (1) his two convictions of aggravated criminal sodomy were multiplicitous, as were his two convictions of aggravated indecent liberties with a child; (2) the district court erroneously admitted evidence of names of deleted computer files; (3) the district court committed structural error by using special questions on the verdict forms; (4) the complaint was defective as to the aggravated criminal sodomy charges, depriving the district court of jurisdiction over those charges; (5) the district court abused its discretion by failing to explicitly rule on Ferenz' motion for a departure sentence; and (6) the journal entry of judgment incorrectly indicates lifetime postrelease supervision when in fact Ferenz will receive lifetime parole. We agree with Ferenz on his first issue and we reverse the multiplicitous convictions and vacate the corresponding sentences. We also vacate the lifetime postrelease supervision portion of his sentences, but we affirm the district court's judgment in all other respects.
When Ferenz met his future wife, Amanda, in the spring of 2009, she had a 4–year–old daughter, C.J. After Ferenz and Amanda married that September, they and C.J. lived together in Ogden, Kansas. In July 2010, Amanda gave birth to their son, B.F. Ferenz, who was in the Army, was deployed to Afghanistan from April 2011 until January 2012, during which time Amanda and the children left Kansas to stay with family. When Ferenz returned from Afghanistan, he was stationed at Fort Riley and the family moved into a house in Manhattan, Kansas.
The house in which they lived had two bathrooms: a bathroom off the hallway, which the children used, and a bathroom adjoining the master bedroom, which Amanda and Ferenz used. Amanda later testified that she had never seen C.J. use the shower in the master bathroom and that there was no reason for her to do so. According to Amanda, when C.J. would shower, she did so in the hall bathroom and left the clothing she wore before the shower in that bathroom, where Amanda retrieved them. Amanda later testified that she did the family's laundry and Ferenz only washed his own clothes if he needed them the following day.
After Ferenz returned from Afghanistan, Amanda's relationship with him was “not so good”; they fought about their finances and her drinking. Amanda threatened to take C.J. and leave Ferenz and, at the beginning of October 2012, had purchased two bus tickets to do so. Ultimately, however, she did not leave and, after that, Amanda felt that their relationship was improving.
On Sunday, October 21, 2012, Amanda went to work at 5 p.m. She returned home shortly after 1 the next morning, spoke briefly with Ferenz, and went to bed. According to Amanda's later testimony, the following morning when C.J. woke Amanda after Ferenz had left for work, Amanda noticed that C.J. was not wearing the clothes Amanda had laid out for her the night before. Amanda asked C.J. about the clothes when she could not find them in C.J.'s room. C.J. explained that she was not wearing the clothes that Amanda had set out for her because she had worn the outfit the day before. Amanda thought this answer was strange because C.J. had been wearing pajamas when Amanda left for work the day before, so she asked C.J. why she had put on a clean outfit after 5 p.m. C.J. said that she did not know. Amanda checked the hall bathroom and the clothes hamper in the laundry room, but still could not find the clothes.
Amanda again asked C.J. why the clothes were not in her bathroom if she had worn them the day before, and C.J. replied, “ ‘Because I took a shower in your shower.’ “ When Amanda asked C.J. why she showered in that shower, C.J. replied, “ ‘Because I took a shower with [Ferenz].’ “ Amanda attempted to clarify whether C.J. took a shower while Ferenz was in the bathroom or whether Ferenz was in the shower with her. C.J. stated that she took a shower with Ferenz and that they were both naked.
Amanda later testified that she sat down on the bed with C.J. and asked her if Ferenz had touched her. C.J. responded that Ferenz had hugged her and “ ‘tickled [her] private part.’ “ Amanda asked C.J. if Ferenz had touched himself or asked her to touch his private part, and C.J. hid her face in the pillow and said, “ “ Amanda told C.J. that she should not keep secrets from her, and C.J. informed Amanda that Ferenz had “ ‘asked [her] to tickle his private parts.’ “
Law enforcement investigation
At this point, Amanda found a babysitter for B.F. and took CJ. to the police station. At the police station, Amanda spoke with Officer Carla Swartz of the Riley County Police Department. Swartz described Amanda as initially calm but stated that Amanda became distraught and upset as she related the morning's events. Swartz informed Detective Sonia Gregoire that Amanda was reporting possible inappropriate touching of a child by an adult, and Gregoire met with Amanda. Gregoire, Amanda, and CJ. left the police station and met at the Child Advocacy Center, where the Riley County Police Department prefers to interview children. Amanda gave Gregoire a brief overview of what had happened, and Gregoire interviewed C J.; the interview was videotaped.
During the interview, Gregoire and C J. looked at body diagrams and C J. referred to the vaginal area as a private part and a penis as a private part. C J. acknowledged to Gregoire that people are not supposed to touch her private parts, but C J. said that Ferenz had touched hers. When Gregoire asked to hear more, C J. said, “Like when we're taking a shower together” and told Gregoire that Ferenz had tickled her on her private part and her butt with his fingers the previous night while Amanda was at work. C J. also told Gregoire that Ferenz had C J. touch his private part, that water came out, and that it had to be a secret. C J. informed Gregoire that Ferenz had put his private part inside her private part and inside her butt. C J. said that Ferenz also had asked her the night before to touch his private part with her tongue while they were lying on the bed without any clothes.
After the interview, Amanda, C J., and a social worker went to Topeka for a physical examination. In the meantime, Gregoire contacted military police to have Ferenz report to the police station. Ferenz arrived around 11 a.m., and Gregoire conducted a videotaped interview with Ferenz. At the beginning of the interview, Ferenz stated he did not know what was going on; he was angry and felt that Amanda had lied and was using C.J. against him. After Gregoire read Ferenz his Miranda rights, he agreed to talk with her in more detail; he also consented and submitted to a DNA test.
Ferenz repeatedly denied touching C.J. inappropriately. He explained that C.J. usually showered in her bathroom but had showered in his bathroom the previous night because he was using the hall bathroom. When Gregoire told Ferenz about C.J.'s specific allegations against him, Ferenz denied the allegations and said he did not know why C.J. would say such things. Ferenz stated that the previous night, he and C.J. had showered at the same time, but C.J. showered in the master bathroom and Ferenz in the hall bathroom. Later in the interview, Ferenz changed his statement to explain that C.J. showered first in the master bathroom because he was using her bathroom and then Ferenz showered in the master bathroom after C .J. finished her shower. Ferenz stated that after his shower he masturbated and was watching TV in his bedroom when C.J. came in to watch TV with him. Ferenz said that C.J. was wearing pajamas and he was only wearing shorts.
Ferenz said that C.J. lay on the pillow next to him and put her head on his shoulder; he had his arm around her. Gregoire asked Ferenz if at any time he grabbed C.J.'s breast or touched anywhere close to C.J.'s vagina, and Ferenz responded, He said that “maybe” he touched the outside or inside of C.J.'s pants and admitted that they did tickle each other but asserted that it was innocent, although his hand might have slipped as he tickled her inner thigh. Ferenz told Gregoire that when he accidentally touched C.J., he did so for a couple of seconds, then backed off because he “knew [he] brushed it” as he was transitioning from tickling her leg to her hip. He stated that they tickled each other for approximately 5 minutes but maintained that C.J. never touched his penis. Ferenz also said that he pinched C.J.'s butt “all the time” and had done so the previous night.
During the interview, Ferenz also acknowledged that C.J. had once “caught [him] watching porn” and that he had let her see maybe a minute of it, but “it wasn't hardcore.” Ferenz stated he had been watching pornography on a computer when C.J. walked over and asked what it was; Ferenz told C.J. the woman was giving a blow job. While he admitted this, Ferenz still denied ever touching C.J. inappropriately.
When asked if there was any way he could explain fluid on C.J.'s back, Ferenz stated that he probably touched his penis while cleaning it after masturbating, so when C.J. got onto the bed and he touched her back, he could have transferred semen onto her. Ferenz explicitly stated that he did not shower with C.J., he did not have her touch his penis, and he did...
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