State v. Garrett

• Decision Date: 27 May 2017
• Docket Number: 191,114
• Court: Kansas Court of Appeals
• Parties: State of Kansas, Appellee, v. Mary Ann Garrett, Appellant.

State of Kansas, Appellee, v. Mary Ann Garrett, Appellant.

No. 114, 191

Court of Appeals of Kansas

May 27, 2017

NOT DESIGNATED FOR PUBLICATION

Appeal from Butler District Court; David A. Ricke, judge.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Cheryl M. Pierce, assistant county attorney, and Derek Schmidtattorney general, for appellee.

Before Hill, P.J., Malone and Gardner, JJ.

MEMORANDUM OPINION

PER CURIAM.

Mary Ann Garrett appeals from a jury verdict that found her guilty of child abuse and interference with law enforcement.She challenges the jury instructions, the prosecutor's conduct, the sufficiency of the evidence, and her sentence.Finding no reversible error, we affirm.

Factual and procedural history

On October 27, 2014, Garrett brought 2-1/2-year-old C.C. into an emergency room.C.C. was wearing only a diaper and his legs had been severely burned.Garrett told the emergency room nurse that she was C.C.'s babysitter and that she had left him in the bathroom with another little girl so they could use the potty chairs while she went to get pull-ups from another room.She heard screaming and when she got back into the bathroom she discovered that the little girl had turned the water on in the bathtub and was spraying C.C. with it.She pulled C.C.'s pants off, and his skin fell off with them.C.C. had sustained deep second-degree burns and was transferred to a burn specialist in Wichita.

Law enforcement investigated the incident and tested Garrett's water temperature.Garrett told law enforcement that H.B., her 3-year-old granddaughter, whom Garrett also babysat, had sprayed C.C. while Garrett was out of the room.She told them C.C. had been using a potty chair in the bathtub when H.B. sprayed him and that he had his pants down around his ankles and his socks on.

Garrett later went for an interview at the police station and admitted that she had sprayed C.C. with hot water.She stated that when she took him to use the toilet, he had diarrhea all over his pants and running down his legs, so she put him in the bathtub to spray him off with the detachable hose shower head.She sprayed him off, and he said it was hot, so she turned the knob down and continued spraying him.She then noticed that he had been burned so she left him in the bathtub to go change the diaper of another child she was watching when she heard C.C. yelling.She went back in and H.B. was spraying him with the water, but the water was not hot then.Garrett was arrested and charged with one count each of child abuse and interference with law enforcement.

Many witnesses testified at the jury trial.The State's witnesses included C.C.'s mother(H.C.), Ashley Greer(a registered nurse who worked in the emergency room when C.C was brought in), J. Elizabeth Heflin, M.D.(a physician and a pediatric hospitalist with the Via Christi Clinic in Wichita who testified as an expert witness in the area of pediatrics), Detective Robert Albert from the Butler County Sheriff's Office(the investigator who took the initial information in this case from the El Dorado Police Department), Detective Monty Hughey of the Butler County Sheriff's Office(who interviewed Garrett four times during his investigation), Patricia Brown(H.B.'s mother and Garrett's ex-daughter-in-law who lived with Garrett), Chad Young(Chief Deputy of the El Dorado Police Department, who interviewed Garrett twice), and Garrett herself.We find it unnecessary for purposes of resolving the issues on appeal to set forth their testimony here.We note only that Brown testified that one day around the time that officers were coming to check the water temperature, she overheard Garrett telling H.B., Brown's daughter, "Do you remember what you're going to tell the detective, that you burned [C.C.]?"Brown contacted officers after Garrett was arrested and related this conversation.

Garrett testified on her own behalf.We set forth her testimony at length.She stated that back on October 27, 2014, she was babysitting C.C. and other children.She was getting ready to do what she called an hour of down time, so she put H.B. in her bed- a crib with sides-and took C.C. to the bathroom.Garrett testified that H.B. was able to climb out of her crib and did so frequently.When she pulled down C.C.'s pants, she saw that he had diarrhea.It had gone all down his legs and was in his pants, so she took off his pants and put him in the shower to rinse him off.He was wearing socks and they were saturated with diarrhea, but she left them on him.

Garrett said that she had been washing dresses in the bathtub about 30 minutes earlier using water which she had turned all the way to hot.The shower head was detachable and connected by a flexible hose that connected at the top of the shower head.It had an on/off switch and a hot/cold nozzle.She said that when she turned on the water, C.C. said, "[H]ot, hot" and backed up a little, so she turned the knob down.She finished rinsing him off, and he quit complaining that the water was hot.She did not know how long she sprayed him.

After she rinsed him off, she heard her grandson, so she went to check on him and decided to change his diaper, leaving C.C. standing in the bathtub.She then heard screaming and went back into the bathroom.H.B. had come into the bathroom and was spraying the front of C.C., who was still standing in the bathtub.She did not feel the water but immediately turned it off and picked up C.C. because she could see that he was red and blistering.She put him on the couch and put his diaper on loosely, then she loaded two other children in the car and headed to the emergency room.

Garrett testified that she was not punishing or disciplining C.C. in any way the day he was injured.She would not punish a child for having a poopy diaper.She testified that when she turned the water on to rinse C.C. off, she did not intend for it to be as hot as it turned out to be.She intended to spray C.C., but she did not intend to spray him with water that would burn him.

Garrett testified that she initially told the hospital personnel only that she had rinsed C.C. off after finding he had diarrhea.She testified she told the first officer she spoke to, Detective Hughey, the same thing, adding that H.B. had also sprayed him after she went in to change her grandson.She testified that she told that version to Deputy Young as well.

On cross-examination, Garrett admitted that when she took C.C. to the hospital, she did not tell law enforcement exactly what had happened because she was scared.She testified that she did not remember telling Detective Hughey that C.C.'s skin was red when she took him out of the shower or that he was shaking.She did not remember telling Detective Hughey that the skin came off C.C.'s lower extremities.She testified that although H.B. was spraying C.C., H.B. did not get wet.

Garrett testified that she had told the police what happened.The prosecutor asked, "At first?"Garrett responded, "I told them.I left some stuff out, yes.But I did tell them."The prosecutor asked what she left out.She said that she"made it [to] where [H.B.] had sprayed him first instead of me."She reiterated that she sprayed C.C. first and then H.B. sprayed him later.She admitted that was not what she initially told law enforcement, stating she was not thinking straight at the time.She knew what she told law enforcement was not true.She did not recall having told Detective Hughey that the reason she had blamed H.B., her granddaughter, was so she(Garrett) would not get in trouble.She understood that law enforcement would talk to her granddaughter, and they did so.Garrett presented no further evidence.

The jury found Garrett guilty of child abuse and interference with law enforcement, and the district court subsequently sentenced her to 58 months of imprisonment.Garrett timely filed a notice of appeal.

Was it clearly erroneous for the district court not to give a mental culpability instruction on the interference with law enforcement charge?

Garrett first argues that the district court committed clear error by failing to give the jury an instruction defining the mental culpability necessary for the charge of interference with law enforcement.

Our standard of review when addressing challenges to jury instructions follows:

"'(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801(2011), cert. denied565 U.S. 1221(2012).'[Citation omitted.]"State v. Woods, 301 Kan. 852, 876, 348 P.3d 583(2015).

Garrett's argument fails under the first step of this analysis.Although a defendant may challenge a jury instruction for the first time on appeal, when the defendant agrees with a jury instruction on the record, the defendant invites error and may not later challenge that instruction.State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148(2012).

Such is the case here.During the instruction conference, the district court specifically asked counsel whether it should give a culpable mental state instruction with this charge.Counsel discussed which option of the definition of knowing...