State v. Gaona

• Decision Date: 02 March 2012
• Docket Number: No. 98,822.,98,822.
• Citation: 270 P.3d 1165,293 Kan. 930
• Parties: STATE of Kansas, Appellee, v. Rodolfo GAONA, Appellant.
• Court: Kansas Supreme Court

270 P.3d 1165

293 Kan. 930

STATE of Kansas, Appellee,

v.Rodolfo GAONA, Appellant.

No. 98,822.

Supreme Court of Kansas.

March 2, 2012.

Syllabus by the Court

1. The State's witness, who was the executive director of Finding Words of Kansas was qualified under K.S.A. 60–456(b) to testify as an expert on forensic interviewing techniques used with children who allege sexual abuse but was not qualified to testify as an expert on common characteristics of sexually abused children, including delayed or piecemeal disclosure or the difficulty or frequency of coaching to produce false accusations. On the record of this case, however, the erroneous admission of expert testimony was harmless.

2. When the evidence in a case supports only one of two outcomes—the occurrence of a completed aggravated sodomy or no aggravated sodomy—a failure to give a lesser included instruction for attempted aggravated sodomy is not clearly erroneous.

3. A district judge does not err in excluding a criminal defendant's proffered medical records from evidence at trial when the defense fails to lay a foundation for the records and fails to demonstrate the relevance of many of them, when the contents of the records constituted inadmissible hearsay for which the defense has failed to assert an applicable exception, and when the sanctions available to the district judge for the defense's violation of reciprocal discovery include exclusion. In addition, if the defendant was permitted to introduce other evidence of the medical condition for which admission of the records is sought, the defendant's due process right to present a defense is not implicated by the records exclusion.

4. A criminal defendant who moves pretrial for the general exclusion of any evidence demonstrating the existence of other crimes or civil wrongs but who fails to object specifically at any time to the introduction of evidence that he showed one or more pornographic videotapes to his minor victim has failed to preserve the issue for appeal, and an appellate court need not address the issue's merits.

5. A defendant in child sexual abuse prosecution must object to admission of the alleged victim's prior consistent statements before his or her live testimony in order to preserve the timing issue for review on appeal. The absence of such an objection in this case eliminates the necessity for the merits of the issue to be addressed.

6. On the record in this case, cumulative error does not require reversal of the defendant's remaining convictions.

7. A criminal defendant may be sentenced to the highest term in the applicable Kansas Sentencing Guidelines Act grid box without proof of any aggravating factor to a jury beyond a reasonable doubt.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.

Tamara S. Hicks, assistant county attorney, argued the cause, and John P. Wheeler, county attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

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

Defendant Rodolfo M. Gaona appeals his conviction and sentence in this rape and aggravated sodomy case involving his stepdaughter, M.L.

Gaona was charged with the following crimes: Count One—rape, on or about December 20, 2005, in violation of K.S.A. 21–3502(a)(2); Count Two—aggravated criminal sodomy, on or about December 20, 2005, in violation of K.S.A. 21–3506(a)(1); Count Three—rape, on or about December 19, 2005, in violation of K.S.A. 21–3502(a)(2); Count Four—aggravated criminal sodomy, on or about December 19, 2005, in violation of K.S.A. 21–3506(a)(1); Count Five—rape, on or about September 1, 2005, through September 30, 2005, in violation of K.S.A. 21–3502(a)(2); Count Six—aggravated criminal sodomy, on or about September 1, 2005, through September 30, 2005, in violation of K.S.A. 21–3506(a)(1); Count Seven—aggravated criminal sodomy, on or about March 23, 2005, through December 19, 2005, in violation of K.S.A. 21–2506(a)(1).

The jury convicted Gaona of the rapes charged in Counts One and Three and of the aggravated criminal sodomies charged in Counts Two and Seven. The Court of Appeals reversed Gaona's conviction on Count Three. State v. Gaona, 41 Kan.App.2d 1064, 1071, 208 P.3d 308 (2009). Gaona then petitioned for this court's review of his three remaining convictions and his sentence. The State did not cross-petition on Count Three, for which the Court of Appeals had ordered a remand.

Issues

Because the Court of Appeals granted Gaona relief on the issue of whether an attempted rape instruction should have been given for Count Three, we have seven issues left for our examination:

1. Was it error to allow the Executive Director of Finding Words of Kansas to testify as an expert about the behavior of child victims of sexual abuse?

2. Did the district judge err by failing to give a lesser included instruction on attempted aggravated criminal sodomy for Counts Two and Seven?

3. Was it error to exclude Gaona's medical records?

4. Was it error to admit evidence that Gaona showed M.L. pornographic movies without an analysis of the evidence under K.S.A. 60–455?

5. Was it error to admit evidence of M.L.'s prior consistent statements before her own live testimony was given at trial?

6. Does cumulative error require reversal of Gaona's convictions?

7. Is Gaona entitled to vacation of his remaining sentence and remand for resentencing because he was given the highest term in the applicable Kansas Sentencing Guidelines Act grid box for Counts One, Two, and Seven, without proof of any aggravating factor to a jury beyond a reasonable doubt?

We hold that no error requires reversal of Gaona's three remaining convictions or his sentence for them.

Factual and Procedural Background

In Gaona's trial, the State called M.L.'s mother, R.G., as its first witness. R.G. testified that she was married to Gaona and that she, Gaona, M.L., and her son lived together. R.G. further testified that M.L. was 11 years old and that she had been diagnosed with Attention Deficit Hyperactivity Disorder. R.G. worked second shift, and Gaona would watch the children while she was at work. M.L. typically arrived home from school before her brother, and Gaona arrived home from work between 5:30 p.m. and 6:30 p.m.

R.G. testified that the morning of December 21, 2005, she, her son, and M.L. went shopping after she and Gaona had had an argument. During the outing, her son told his mother that Gaona and M.L. had a “sick game.” When R.G. asked M.L. what he was talking about, M.L. started crying and “told me that she couldn't tell me because something bad would happen to me.” After M.L. calmed down, R.G. asked M.L. questions in order “to be sure that there was actually a crime before I did anything about it,” including asking whether Gaona put his penis in M.L.'s vagina. Later, once R.G. had taken M.L. to the police station, M.L. talked to Detective Jeff Steele and investigator Nikki Wiecken. M.L. then was taken to the hospital for a sexual abuse evaluation by a Sexual Assault Nurse Examiner (SANE). After the SANE evaluation, M.L. was interviewed by Wiecken with a social worker present.

R.G. also testified that M.L. told her that the encounters with Gaona caused M.L. to bleed, but R.G. never found blood on M.L.'s clothes, bedding, or the toilet. R.G. testified that M.L. had mentioned having pain while going to the bathroom but was never seen by a doctor for this complaint. R.G. also testified that M.L. told her she had seen a pornographic movie with Gaona and that Gaona had threatened her.

R.G. was questioned about other adult males with whom M.L. had been in contact and said that the only other such males were friends and neighbors. R.G. was also questioned about her relationship with Gaona. She testified that she and Gaona had disagreements, a few of which were loud and some of which occurred in front of the children. R.G. did not recall ever asking Gaona for a divorce, but Gaona had told her several times that she could leave him. Although R.G. remained married to Gaona at the time of his trial, she testified that she could not afford to get a divorce and that she and the children had had no contact with him since M.L.'s allegations came to light. R.G. also testified that Gaona had told her about having a prostate problem.

M.L.'s brother, age 9, testified at trial that he could not remember what M.L. told their mom while shopping. He said that he had seen Gaona and M.L. in Gaona's bedroom, with M.L. lying on the bed and Gaona standing in front of the bed. M.L.'s brother said that Gaona was doing “[s]omething to my sister,” which he called “[p]laying a nasty game with her.” At trial, M.L.'s brother said that he saw the “nasty game” more than once, but he could not remember how many times; before trial, he had told a police officer that he saw it one time, but he had told his mother that he saw it more than once.

M.L.'s brother further testified that “my sister didn't seem that she liked” the “nasty game.” But he also said that he did not see Gaona touch M.L. and that both Gaona and M.L. had their clothes on each time he saw them. He said he never talked to M.L. about what he had seen, and Gaona had told him not to tell his mother. He did not tell his mother until the shopping excursion because he was afraid Gaona would hurt his mother.

M.L.'s brother also testified that he sometimes heard his mother and Gaona arguing but “not very much” and that it bothered him “a little bit.” He said that he only “kind of” liked Gaona as a stepfather and wanted to get rid of him “[a] little bit.”

M.L. testified at trial that she talked to her mother after her brother told her mom “what [Gaona] did.” She described going to the police station, telling a police officer what happened, and then seeing a nurse for an examination and telling the nurse what happened. M.L. said that she had to go to the nurse because Gaona “was doing something real bad.”...