State v. Fletcher, 083019 KSCA, 118, 852

Docket Nº:118, 852
Opinion Judge:PER CURIAM
Party Name:State of Kansas, Appellee, v. James M. Fletcher, Appellant.
Attorney:Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Hill, P.J., Standridge, J., and Neil B. Foth, District Judge, assigned.
Case Date:August 30, 2019
Court:Court of Appeals of Kansas
 
FREE EXCERPT

State of Kansas, Appellee,

v.

James M. Fletcher, Appellant.

No. 118, 852

Court of Appeals of Kansas

August 30, 2019

NOT DESIGNATED FOR PUBLICATION

Appeal from Douglas District Court; Peggy C. Kittel, judge.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Standridge, J., and Neil B. Foth, District Judge, assigned.

MEMORANDUM OPINION

PER CURIAM

James Fletcher appeals his convictions for aggravated indecent liberties. He argues one of the State's witnesses was unavailable or incompetent as a witness because of her poor memory. In his view, her memory-impaired testimony tainted the evidence at his trial. Thus, he claims the district court abused its discretion in denying his motion for a mistrial. We are unpersuaded and affirm the district court.

The State charged Fletcher with five counts of aggravated indecent liberties with a child under 14 years of age for engaging in lewd fondling or touching with his stepdaughter A.H. The charges against Fletcher were the culmination of an investigation by police that began when her current stepfather, T.M., called the police to report that he and A.H.'s mother, S.H., suspected that Fletcher had sexually abused the girl.

Those two suspected Fletcher sexually abused the girl after Fletcher went to their house on February 9, 2015, and admitted that he was attracted to A.H. S.H. recorded her conversation with Fletcher, including his disclosure about being attracted to teenaged girls and his concern that he would be attracted to A.H. Later, Fletcher made similar admissions to law enforcement officers during the investigation.

Just before his trial, Fletcher asked the court to declare S.H. unavailable to testify. He claimed that the State had disclosed S.H. was "coping with an unknown illness that affects her ability to remember events . . . ." Fletcher claimed the State also reported "it is unknown whether she will be able to testify at the upcoming trial." The defense stated it had tried to contact S.H. but she did not respond. In the alternative, Fletcher asked the court to hold a hearing to determine the extent of her illness and how it related to her ability to testify.

When the motion was heard, the defense told the court that it now had S.H. under subpoena, planned to call her as a witness at trial, and was withdrawing its motion.

Fletcher then renewed his motion to suppress evidence. He alleged that during S.H.'s recorded interrogation of him, she held a firearm to his head, and he surrendered his cellphone and its passcode to S.H. He argued he could not provide valid consent for a search and so the evidence collected from his cellphone should therefore be suppressed.

The district court heard testimony from T.M., S.H., and Fletcher on his renewed motion to suppress. The court also listened to S.H.'s recording of Fletcher's disclosures. The court found Fletcher's testimony incredible. It further found "[t]he evidence presented [at the hearing], to me, made it clear that the victim's mother did not show a weapon to Mr. Fletcher," and denied Fletcher's motion to suppress.

At trial, Fletcher maintained that S.H. coerced his statements at gunpoint.

We recount portions of the evidence because of Fletcher's claims on appeal.

We offer summaries of several of the trial witnesses to show that the prosecution was not based just on S.H.'s testimony.

The State first called the victim, A.H., who was then 16 years old. She provided detailed testimony that Fletcher began fondling her breasts when she was 11 years old and continued until around January 2015 when she was 13. Fletcher would approach her at night when she was sleeping or trying to sleep. He would lift her nightshirt, touch her, and rub her breasts while talking to her about her dreams. A.H. was awake when Fletcher did this-or would be awakened by him doing this-but she would pretend to be asleep and dreaming because she was scared and confused and did not know what would happen if she revealed she was awake.

Through A.H.'s testimony, the State admitted into evidence three recorded conversations with A.H.-one with her family counselor and S.H., one with a police detective, and one with Cheryl Smith, a forensic interviewer at Sunflower House, a child advocacy center. These recordings revealed that A.H. first disclosed she had dreams of someone touching her but then in the morning she could not remember if they were real. A.H. said she had the dreams a lot, but only at Fletcher's house. A.H. eventually disclosed that Fletcher touched her by lifting up her shirt and rubbing her breast area. A.H. also disclosed she thought she wanted the encounters to be dreams-and tried to pass them off as dreams-so she would not have to tell anybody.

After the first time Fletcher touched her in this way, A.H. said she remembered not knowing what to do-whether to tell someone else or pass it off as a dream-"and I chose the latter." She did not want to tell people about the abuse because Fletcher was the first stable father figure she and her brother had, and "it would almost be selfish to take that away from him." A.H. testified that the encounters with Fletcher were not dreams and they really happened.

The State called Rachel Scattergood, a police officer who came to the house. She spoke with S.H. who reported that her ex-husband, Fletcher, molested her 13-year-old daughter, A.H. At that point, Scattergood took Fletcher to another part of the house to interview him and recorded his statement. This recording was admitted into evidence.

Fletcher at first asked Scattergood if she listened to the recording S.H. made of his earlier conversation with S.H. Scattergood said she would listen to it if he wanted her to, but she was still going to ask him some questions. Fletcher then disclosed that he "had a problem" and was attracted to teenaged girls and their body type, and he was worried he would become attracted to A.H. He said that he told S.H. a "longer version of this" information.

Fletcher first told Scattergood he had not touched A.H.'s "sexual parts," but upon more specific questioning by her about A.H.'s vagina or breasts, he said it was possible. He said he had incidental or accidental contact with A.H.'s breasts. He admitted that during this accidental contact, he wanted to touch them because he was attracted to her. Fletcher corrected himself, "She's a kid. It's not an attraction. I can't explain it." Fletcher also...

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