State v. Gould

• Decision Date: 25 May 2001
• Docket Number: No. 82,641.,82,641.
• Citation: 271 Kan. 394,23 P.3d 801
• Parties: STATE OF KANSAS, Appellee, v. CRYSTAL D. GOULD, Appellant.
• Court: Kansas Supreme Court

271 Kan. 394

23 P.3d 801

STATE OF KANSAS, Appellee, v. CRYSTAL D. GOULD, Appellant.

No. 82,641.

Supreme Court of Kansas.

Opinion filed May 25, 2001.

Keith E. Schroeder, deputy district attorney, argued the cause, and Timothy J. Chambers, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for the appellee.

Debra J. Wilson, assistant appellate defender, argued the cause, and Kirk C. Redmond, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the brief for appellant.

The opinion of the court was delivered by

SIX, J.:

Defendant Crystal Gould appeals her K.S.A. 21-3609 convictions on three counts of child abuse. Gould also claims for the first time on appeal that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed.2d 435, 120 S. Ct. 2348 (2000), renders her enhanced sentence void and the Kansas upward departure sentencing scheme, part of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., unconstitutional.

Our jurisdiction is under K.S.A. 20-3018(c), a transfer on our motion from the Court of Appeals.

Gould first contends that her convictions should be reversed. She asserts: (1) insufficient evidence; (2) prosecutorial misconduct during closing arguments; and (3) district court error in failing to instruct the jury regarding multiple counts and aggravated battery. Finding no reversible error, we affirm her convictions.

Gould next attacks her sentence on two grounds: (1) district court error in imposing an upward departure sentence based upon factors that were not substantial and compelling; and (2) the constitutional principles set forth in Apprendi. We agree to consider her constitutional claim and, in doing so, vacate her upward departure sentence. Our holding on the constitutional issue moots Gould's contention that the evidence supporting her upward departure sentence was not substantial and compelling. We remand for imposition of a sentence not to exceed the statutory maximum applicable to the facts as found by the jury beyond a reasonable doubt.

FACTS

D.G. was born to Crystal and Leland Gould on September 20, 1996. Her brother, L.G., and sister, S.G., twins, were born on January 4, 1998. The Goulds' friend and co-worker Robert E. Popp II was babysitting the children on January 23, 1998. The twins were about 3 weeks old.

On the evening of the 23rd, defendant Gould and Leland went out with Leland's parents. Before the couples met that evening, Edith, Leland's mother, called Popp at 9:30 p.m. to check on the children. Popp reported the children were fine; however, Edith heard a baby crying in the background. Gould and Leland returned home around midnight. The children were asleep.

The next morning, Leland's parents noticed that D.G., 16 months old, was bruised and had a black eye. S.G. had bruises on her head, forehead, and knees. L.G. also had bruises on his forehead. When asked how the children got hurt, Gould said she did not know. She thought maybe D.G. hit her head on her baby bed.

Popp returned to Gould's home later that day to watch television and to check on the children. He asked Gould about the bruises on D.G.'s face. Gould said she did not know how they got there. Popp also noticed a bruise on L.G.'s head. Gould and her husband said D.G. must have hit L.G. with a toy.

On Sunday, January 25, Gould and Leland took the children to a park and to the zoo. L.G. became fussy at home around 9 p.m. His parents could not soothe him. Between 10 and 10:30 p.m., Gould laid L.G. on her bed and turned on a radio. She was alone in the room with L.G., off and on, until around 11 p.m. Then, Gould came out to tell Leland that L.G. was not breathing. L.G.'s "color was kind of bad," and his arms and legs were limp. Edith came over to watch D.G. and S.G., and Gould and Leland took L.G. to the emergency room.

When they arrived at the emergency room, L.G. was experiencing activity suggestive of seizures. He did not breathe for prolonged periods of time. The next day, he was transferred by helicopter to Wesley Medical Center in Wichita. A CAT scan showed that L.G.'s brain was swollen. He suffered an acute bleed or epidural hematoma on the left posterior part of the brain and multiple areas of bleeding into the upper part of his brain. Further examination revealed two small circular bruises above his right hip and a hemorrhage in his left eye. The medical evidence showed that L.G. had suffered a stroke.

A physician specializing in pediatric critical care testified to the following at trial:

"This type of injury would have to have been the result of a very forceful blunt injury, either where a flat surface was brought against the fixed head, say a fist hitting the skull, or shoe hitting the skull, something like that. Or where the child's head, itself, was being accelerated and ran into a fixed object of say a wall or a door."

The physician said that, based on the analysis of an MRI scan, the epidural hematoma could not have occurred before January 25, 1998. The multiple areas of subdural bleeds were consistent with forceful and repetitive shaking. According to the physician, L.G. will likely require total care for the rest of his life. L.G. "will probably suffer from spastic quadriplegia, which means his muscles will constantly be stiff and difficult for him to coordinate or move. He will probably not be able to talk."

S.G. and D.G. were examined on January 29. S.G. had three fractured ribs, a contusion on a rib, and a fractured thigh bone. A nuclear medicine physician testified that these injuries were consistent with a squeezing injury. S.G. also had a skull fracture and evidence of bleeding in her brain consistent with the type of injury an infant might sustain in an automobile accident. D.G. had a bruise on her right cheek, a smaller bruise on her left cheek, and some bruising on her forehead. She also had a broken rib consistent with a squeezing injury.

Gould denied harming her children. Two witnesses testified that Gould had abused her children. In November 1997, they saw Gould with D.G. at a laundromat. She jerked D.G. around by the arm, pulling her from washer to washer, and was "flicking" the child in the mouth. Another bystander confronted Gould, and one of the witnesses called the police.

In January 1998, one of the neighbors was in the laundry room next to Gould's apartment and heard a woman yelling inside the apartment. The neighbor heard a loud slapping sound, followed by a baby's scream. Another neighbor saw Gould, while she was still pregnant with the twins, pick D.G. up by the arm, kick her in the head and call her a "little f___ng bitch."

Popp, the babysitter, also testified regarding Gould's abusive activities. He said Gould was physically violent with the children when they cried. She would often place the children alone in her bedroom and turn on a radio. Popp described a closet/make-shift bedroom where D.G. was placed, with the louvered doors shut, for hours at a time.

Popp had seen Gould slap the children. He saw her pick up S.G. by the ribs and shake her. He also saw Gould pick up L.G. by one arm, scream at him, slap his face, and drop him in a violent manner. This drop caused L.G. to tremble and his eyes to roll back into his head.

Gould was charged with three counts of child abuse under K.S.A. 21-3609. The jury convicted her on each count.

Sentencing

The district court imposed a controlling sentence of 136 months, with a post-release supervision period of 36 months.

Under K.S.A. 21-3609, a defendant guilty of abuse of a child has committed a severity level 5 person felony. Gould had no criminal record and her criminal history score was I. The authorized sentencing range was 31-32-34 months. K.S.A. 2000 Supp. 21-4704. The State moved for an upward departure sentence under K.S.A. 2000 Supp. 21-4716 citing as reasons: (1) the victims were Gould's children; (2) the abuse of L.G. was so bad that he will never walk, talk, or care for himself; (3) the abuse of S.G. was severe; and (4) Gould showed no emotion or remorse until she was found guilty. The district court granted the motion and departed to 68 months each for Counts I and II (involving the twins), to run consecutively. Gould was sentenced to 34 months for Count III (involving D.G.), to run concurrent with Counts I and II. The three K.S.A. 2000 Supp. 21-4716(b)(2) aggravating factors the judge found to be substantial and compelling reasons for imposing the departure sentences were: (1) the victims "were particularly vulnerable due to age, infirmity, or at least reduced physical capacity which was known or should have been known to the offender"; (2) "the defendant's conduct during the commission of the current offenses manifested excessive brutality to the victims in a manner not normally present in that offense"; and (3) "the offense involved a fiduciary relationship which existed between the victims and the defendant." See K.S.A. 2000 Supp. 21-4716(b)(2)(A) (B) and (D). Because K.S.A. 2000 Supp. 21-4720(c)(3) prohibits the "total imprisonment term of the consecutive sentences, including the imprisonment term for the departure crime" to "exceed twice the maximum presumptive imprisonment term of the departure sentence following aggravation" (the double-double rule), Gould's maximum total sentence was limited to 136 months.

DISCUSSION

We first consider Gould's claims challenging her convictions.

Sufficiency of Evidence

Gould contends that her convictions with respect to S.G. and D.G. are not supported by sufficient evidence. Our standard of review requires us to review all of the evidence in the light most favorable to the prosecution. If, after doing so, we are convinced that a rational factfinder could have found Gould guilty beyond a reasonable doubt, the evidence is sufficient. State v. Johnson, 266 Kan. 322, 326, 970 P.2d 990 (1998).

Gould was convicted under K.S.A. 21-3609, which says: "Abuse of a child is...