State v. Frobish
| Decision Date | 16 October 2020 |
| Docket Number | No. 120,394,120,394 |
| Citation | 473 P.3d 960 (Table) |
| Parties | STATE of Kansas, Appellee, v. Timothy Russell FROBISH, Appellant. |
| Court | Kansas Court of Appeals |
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Buser and Powell, JJ.
Timothy Russell Frobish was convicted by a jury of his peers of several sex offenses—including aggravated indecent liberties with a child and rape—criminal threat, endangering a child, and drug offenses. Subsequently, Frobish sought a new trial on numerous grounds, one of those being a claim that his trial counsel was ineffective. The district court denied his request; Frobish now appeals, claiming his trial counsel's ineffectiveness entitles him to a new trial. He also asserts that his criminal threat conviction is unconstitutional. After a careful review of the record, we agree with Frobish that his conviction for reckless criminal threat is unconstitutional and must be reversed. We affirm the district court in all other respects.
Frobish and his wife or girlfriend (the record is unclear) were family friends of B.G. and her children, 11-year-old son A.G. and 9-year-old daughter C.G. C.G. enjoyed playing with Frobish's infant son. On February 26, 2013, Frobish was at B.G.'s house while the children were at home because of a snow day. A.G. and C.G. asked their mother if they could stay the night at Frobish's house. C.G. wanted to see Frobish's son. She packed an overnight Walmart sack that included a white sports bra.
A.G. and C.G. went to bed around 9:30 p.m., following their mother's instructions since the next day was likely a school day. After everyone was in bed, Frobish entered the room where A.G. and C.G. were sleeping and approached C.G., holding a pocketknife against his leg. C.G. testified at trial that the knife scared her. Frobish approached her bed and reached under her shirt. Frobish groped C.G.'s breast over her bra and tried to reach under her bra, but C.G. scooted away. He left when his son woke up his wife.
Later, Frobish returned and put his hand down C.G.'s pants. At times, his hands were underneath her underwear. He was interrupted and left the room when his son woke up again.
Frobish returned a third time and again put his hand down C.G.'s pants, getting closer to her vagina. Shortly after he began, Frobish got off the bed and left. C.G. got up and shut herself in the bathroom for the rest of the night.
At trial, A.G. testified that when he woke up in the morning C.G. was asleep in the same bed that she fell asleep in the night before. He woke up a few times during the night but did not see or hear anything unusual.
The next morning, Frobish dropped off A.G. and C.G. at their mother's house around 6:30 a.m. but did not come inside. Once inside, C.G. asked B.G. if they could talk privately and told her Frobish touched her inappropriately. B.G. called the police, and Detective Jessica Prater came to B.G.'s house. After speaking with her mother for a while, C.G. began to have difficulty talking about the incident, and B.G. had her write a note to describe what happened. B.G. then handed the note to Prater.
The police executed a search warrant at Frobish's home and seized two bras. At trial, C.G. identified both bras as belonging to her. One was the white sports bra she packed in her overnight bag and the other was found hidden in a hole in the wall. Both bras tested positive for Frobish's semen.
Frobish was charged with two counts of aggravated indecent liberties with a child, one count of rape in the alternative, criminal threat, three counts of endangering a child, possession of a controlled substance, and possession of drug paraphernalia.
A jury trial was held on January 27-30, 2015. Prater testified about her encounter with B.G. and C.G. following B.G.'s call to the police and read C.G.'s note into evidence. In the note, C.G. wrote that Frobish pulled down her pants twice and touched her "weird." A social worker also testified about her interview with C.G. at the Child Advocacy Center in Pittsburg, Kansas, about the touchings. The interview was recorded and admitted into evidence.
Following the trial, the jury returned guilty verdicts on all counts. After the verdict, Frobish orally moved for a new trial but agreed to file a written motion at the district court's request. In his written motion, among a number of issues raised, Frobish alleged his defense counsel was ineffective for not moving to exclude evidence of the bras as irrelevant. The district court denied the motion. Frobish was sentenced to a hard 25 sentence to be served consecutively to his criminal threat sentence. No sentence was imposed on the alternative count of attempted rape, and the sentences in the other counts ran concurrently.
Frobish timely appeals.
On appeal, Frobish challenges the district court's decision not to grant him a new trial because he claims his trial counsel was ineffective. For the first time, he also claims his criminal threat conviction is unconstitutional in light of the Kansas Supreme Court's recent decision in State v. Boettger , 310 Kan. 800, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020).
Frobish's motion before the district court listed several reasons entitling him to relief. Before us, Frobish only argues the district court should have granted his motion for a new trial because his trial counsel was ineffective for failing to prevent the State from introducing evidence of C.G.'s two bras containing Frobish's DNA. This deficient representation was prejudicial, according to Frobish, because the State used the evidence to inflame the jury and caused it to assume he possessed a character that would likely lead him to sexually assault children. Frobish also asserts the district court erred in adopting the State's arguments when denying his motion because the State's arguments were distinguishable from this case.
A district court "may grant a new trial to the defendant if required in the interest of justice." K.S.A. 2019 Supp. 22-3501(1). An order denying a motion for a new trial is reviewed for abuse of discretion. State v. Ashley , 306 Kan. 642, 650, 396 P.3d 92 (2017).
When the district court conducts an evidentiary hearing on claims of ineffective assistance of counsel, we review the district court's factual findings using a substantial competent evidence standard. The district court's legal conclusions based on those facts are subject to unlimited review. " ‘Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion.’ " State v. Butler , 307 Kan. 831, 853, 416 P.3d 116 (2018).
A criminal defendant's " ‘right to counsel is the right to the effective assistance of counsel.’ " Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prove ineffective assistance of counsel, a defendant must show that "(1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial." Edgar v. State , 294 Kan. 828, 837, 283 P.3d 152 (2012). A defendant must satisfy both elements to succeed on an ineffective assistance of counsel claim. Strickland , 466 U.S. at 687.
The performance prong requires an inquiry as to "whether counsel's assistance was reasonable considering all the circumstances." 466 U.S. at 688. The defendant must show defense counsel "made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. "Judicial scrutiny of counsel's performance must be highly deferential" and strive 466 U.S. at 689.
Strategic choices made after a thorough investigation of the law and facts, including how to conduct cross-examination, what motions to make, and all other strategic and tactical decisions are the " ‘exclusive province’ " of counsel and are " ‘ "virtually unchallengeable." ’ " State v. Johnson , 304 Kan. 924, 951-52, 376 P.3d 70 (2016) ; see Edgar , 294 Kan. at 838. It is the defendant's burden to show defense counsel's alleged deficiencies are not the result of trial strategy. Johnson , 304 Kan. at 952. But invoking "the word ‘strategy’ does not insulate" defense counsel's performance from attack, especially when defense counsel lacks the information to make an informed decision due to counsel's own deficient investigation. Edgar , 294 Kan. at 839.
Frobish alleges his defense counsel provided ineffective assistance because he did not seek to exclude or prevent the admission of the evidence that two of C.G.'s bras were found at his house with his semen on them. Had his trial counsel done so, Frobish argues, this evidence would have been excluded because it was not relevant. As we see it, Frobish cannot establish trial counsel's deficient performance, the first prong of the ineffective assistance of counsel test, unless he first demonstrates this evidence was inadmissible.
Relevant evidence is any evidence having any reasonable tendency to prove any material fact. K.S.A. 60-401(b). and "is material if it tends to establish a fact that is at issue and is significant under the substantive law of the case.’ " State v. McCormick , 305 Kan. 43, 47, 378 P.3d 543 (2016).
At trial, the State introduced two bras identified by C.G. as belonging to her. DNA testing revealed...
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