State v. Gaona

• Decision Date: 29 May 2009
• Docket Number: No. 98,822.,98,822.
• Citation: 208 P.3d 308
• Parties: STATE of Kansas, Appellee, v. Rodolfo GAONA, Appellant.
• Court: Kansas Court of Appeals

208 P.3d 308

STATE of Kansas, Appellee, v. Rodolfo GAONA, Appellant.

No. 98,822.

Court of Appeals of Kansas.

May 29, 2009.

Matthew J. Edge, of Kansas Appellate Defender Office, of Topeka, for appellant.

Tamara S. Hicks, assistant county attorney, John P. Wheeler, Jr., county attorney, and Steve Six, attorney general.

Before RULON, C.J., MALONE and GREENE, JJ.

GREENE, J.

Rodolfo M. Gaona appeals his convictions for two counts of rape and two counts of aggravated criminal sodomy, arguing error in the admission of certain testimony and in the exclusion of certain documentary evidence, instruction error, cumulative error, and sentencing error. We agree with Gaona that the district court erred in failing to give an instruction for the lesser included offense of attempted rape as to one of the rape charges, and we must therefore reverse that conviction and remand for further proceedings. We reject the remaining claims of trial error and affirm all other convictions. We dismiss the sentencing challenge for lack of jurisdiction.

Factual and Procedural Background

Gaona regularly babysat his wife's two children during her second shift work. On December 21, 2005, the 8-year-old son reported to his mom (Robbie) that Gaona and the 10-year-old daughter, M.L., "have a sick game." When questioned by mom, the daughter broke down in tears and refused to discuss the allegation. Mom took the children to the police station where they were interviewed by law enforcement personnel before M.L. was transported to the local hospital for a sexual assault examination. Ultimately, M.L. told a nurse at the hospital that Gaona would show her sex movies and would often wait until her brother went to sleep before he tried to have sex with her. M.L. also told the nurse (Washburn) that Gaona "'put his thing up my butt'" and "`puts his doinkey in my yaya.'"

Gaona was subsequently charged with three counts of rape, contrary to K.S.A. 21-3502(a)(2), and four counts of aggravated criminal sodomy, contrary to K.S.A. 21-3506(a)(1).

At trial, the allegations were discussed in more detail by both of the children, and a child abuse specialist testified about the patterns and dynamics observed in sexually abused children. Gaona testified in his own defense and denied any inappropriate touching of M.L. He also testified that he had problems getting or maintaining an erection due to erectile dysfunction. Ultimately the jury found Gaona guilty of two of the three rape charges and two of the four aggravated criminal sodomy charges. At sentencing, the district court imposed the aggravated number in the applicable grid box and sentenced Gaona to 330 months' imprisonment. Gaona timely appeals.

Did the District Court Err in Admitting the Testimony of the Child Abuse Specialist?

Prior to trial, the State sought to endorse Kelly Robbins as an expert witness to testify about the typical behavior of sexually abused children. The district court determined that it was premature to rule on the motion, but ultimately allowed her to testify at trial over Gaona's objection. On appeal, Gaona argues that Robbins was not qualified to testify as an expert witness in such matters because she did not have the training to understand or diagnose mental disorders, citing State v. McIntosh, 274 Kan. 939, 58 P.3d 716 (2002), and State v. Villanueva, 274 Kan. 20, 49 P.3d 481 (2002). We review a district court's ruling on the qualifications of a witness as an expert and the admission of expert witness testimony for an abuse of discretion. McIntosh, 274 Kan. at 955, 58 P.3d 716.

Although Robbins was not a psychiatrist, psychologist, social worker, mental health technician, or family therapist, she had specific training in child interview techniques and a wealth of experience in the investigation of child sexual abuse. She has a bachelor of science degree in Administration of Justice with a major in investigation. She has been certified by the American Prosecutor's Research Institute to teach "Finding Words" protocol, a methodology for interviewing child witnesses-especially those who may have suffered sexual abuse. Her training since 1999 has included a host of institutes addressing child abuse investigation and prosecution. Previously, she worked as a special agent for the Kansas Bureau of Investigation where her duties included the investigation of child abuse cases. At time of trial, she was the executive director of two nonprofit groups, the Western Kansas Child Advocacy Center (WKCAC) and "Finding Words" of Kansas. She testified that her work at WKCAC included the conducting of forensic interviews of children, and that she had interviewed more than 150 children who were purported to be victims of sexual abuse. "Finding Words" is a national program that teaches protocol to properly interview children, and Robbins was involved in bringing this program to Kansas and had taught the protocol to others.

Admissibility of expert testimony is governed by K.S.A. 60-456(b), which provides in part that the testimony of an expert witness

"in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness." (Emphasis added.)

Although our Supreme Court has discussed issues surrounding expert testimony in the prosecution of sex crimes in both McIntosh and Villanueva, the court has not held-contrary to Gaona's suggestion on appeal-that testimony as to common behaviors of sexually abused victims should be given only by an expert licensed or otherwise qualified to diagnose and treat mental disorders, such as a psychiatrist or licensed clinical social worker. A panel of this court held in Villanueva that it was error not to curtail an unlicensed social worker in giving diagnostic testimony concerning the symptoms of rape trauma syndrome and then relating them to a specific victim, and the Supreme Court reversed concluding this trial error was not harmless. The holdings of both courts, however, have no application here because Robbins was not asked to provide a medical diagnosis or to relate it to this specific victim, but rather was confined to a general discussion of common behavioral traits of sexually abused children.

In McIntosh, our Supreme Court agreed that "`qualified expert witness testimony on the common patterns of behavior of a sexually abused child was admissible to corroborate the complaining witness' allegations.'" 274 Kan. at 957, 58 P.3d 716. Although the expert witness in McIntosh was a licensed social worker and therefore may have been more qualified than Robbins, the court did not establish any bright-line prerequisites for the qualifications to give such testimony. The court noted that the expert in McIntosh did not testify that the victim was abused; he provided only "circumstantial support in favor of [the victim's] credibility by demonstrating that her behavior was not inconsistent with someone who had been sexually abused." 274 Kan. at 959, 58 P.3d 716.

Absent clear prerequisites from our Supreme Court for the qualifications to give the testimony contemplated by McIntosh, we look to the applicable statute. Based on the criteria provided in K.S.A. 60-456(b), the question is whether Robbins' testimony as to the behavioral traits of sexually abused children was "within the scope of the special knowledge, skill, experience or training" that she possessed. Reviewing this for an abuse of discretion, we are unable to conclude that the district court was arbitrary, fanciful, or otherwise unreasonable in allowing the testimony. Robbins clearly possessed a degree of "training," "special knowledge," and "experience" in the interviewing of sexually abused children. We reiterate that Robbins confined her testimony to the common behavioral traits without relating them to the specific victim, that she did not provide diagnostic testimony beyond her credentials, that she did not state or imply that M.L. had been sexually abused, that she did not opine on whether the victim was truthful or credible, that she did not suggest in any manner that Gaona had any involvement, and that the totality of her testimony appears to have been within the permissible scope of such testimony endorsed by our Supreme Court in McIntosh.

For these reasons, we conclude there was no abuse of discretion in allowing Robbins to testify as she did, and we reject Gaona's challenge to her credentials.

Did the District Court Err in Failing to Instruct the Jury on the Lesser Included Offense of Attempted Rape?

Gaona was charged with rape in Counts I, III, and V but was convicted only of Counts I and III. Count I was based on acts alleged to have occurred on December 20, 2005, while Count III was based on acts alleged to have occurred on December 19, 2005. The district court instructed the jury on the lesser included offense of attempted rape with respect to Count I, but declined to issue this same instruction for Count III despite Gaona's request that it be given. Gaona argues the court's failure to so instruct the jury on Count III constitutes reversible error.

With the exception of a felony-murder case, a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial as long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense. If, however, from the evidence the jury could not reasonably convict the accused of the lesser offense, then an instruction on a lesser included offense is not proper. State v. Simmons, 282 Kan. 728, 741-42, 148 P.3d 525 (2006).

"`In a criminal action, a trial court must instruct the jury on the law...