State v. Harpe
| Docket Number | 124,732 |
| Decision Date | 15 September 2023 |
| Parties | State of Kansas, Appellee, v. Albert L. Harpe, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; TYLER J. ROUSH, judge.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett district attorney, and Kris W. Kobach, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., GREEN and HILL, JJ.
Albert L. Harpe appeals his conviction for aggravated sexual battery, arguing that the State did not present sufficient evidence and that the trial court erred in instructing the jury. He also argues that the statute is unconstitutionally vague and that the Kansas Offender Registration Act (KORA) violates the First Amendment and Fourteenth Amendment to the United States Constitution. For the reasons set out below, we affirm.
Harpe was in a relationship with A.D. for about three-and-a-half years, and they had twin children together. Harpe and A.D lived together in Wichita until sometime before August 2019. Shortly after Harpe left the home, A.D. sought and obtained a temporary protection from abuse order against Harpe.
According to A.D.'s trial testimony, Harpe "got involved with [a] pastor," and the pastor "tricked" her into allowing Harpe back into her life. In late September 2019 A.D. agreed to bring the twins to see Harpe and the pastor at a coffee shop. While Harpe spent time with the children, the pastor and some men held a Bible study with A.D. A.D. left the coffee shop with Harpe and the children. Harpe drove A.D to an eye appointment and watched the kids while A.D. had a procedure done on her eye. Harpe drove A.D. home from eye surgery and stayed at her home to watch the children while she recuperated. Once at A.D.'s home, Harpe "basically just stayed and didn't leave" and A.D. "allowed it basically" because the pastor had made her feel obligated to let Harpe back into her life.
On September 30, 2019, Harpe and A.D. went to bed arguing. While in the bed, Harpe attempted to initiate intercourse with A.D., attempting to verbally convince her to have sex with him. A.D. testified that Harpe pulled her pants down. While she was trying to pull them back up, he penetrated her vagina with his erect penis. A.D. pushed Harpe off her, but he wrapped his arms around her head.
One of A.D.'s children woke up and knocked on the bedroom door. The child testified that her mother's scream was not a "she-seen-something scream," but instead a "she's hurt type of scream." The child had never heard her mother scream like that, so she went and knocked on A.D.'s bedroom door. The child's knocking caused Harpe to stop and let go of A.D. A.D. called the police.
On the 911 call, A.D. reported that Harpe tried to have sex with her against her wishes and that she wanted him gone. A voice, which A.D. identified as Harpe's voice, could be heard demanding A.D.'s phone, but she did not give it to him. When police arrived, the officers spoke to Harpe and A.D. separately. In addition to the interviews, police also took DNA swabs. Although police were conducting an investigation, Harpe was not immediately charged with a crime.
After the incident on September 30, 2019, Harpe no longer stayed in A.D.'s home. But A.D. testified that she saw Harpe again on October 7, 2019. A.D. testified that she woke up somewhere around 2 or 3 a.m. to see Harpe standing over her bed wearing blue latex gloves. She testified that a screwdriver fell out of his pocket. A.D. testified that Harpe asked to pray with her and after they prayed, he grabbed her phone and ran away, leaving the gloves behind.
The next day, police learned that Harpe was in Wichita Municipal Court for another matter, and detectives went to interview him. During the interview, Harpe denied going to A.D.'s home the previous day but admitted to being in the neighborhood and throwing blue latex gloves at A.D. when he saw her near the neighborhood mailboxes. Investigators photographed pry marks on the lock on A.D.'s front door and the blue gloves on the floor in front of the door.
At trial, the pastor and his wife testified that Harpe was staying at their home on October 7, 2019, and he slept on the couch. The pastor and his wife also testified that it would be highly unlikely Harpe could have left their house without their dogs barking and waking them up.
Based on the incidents of September 30 and October 7, 2019, the State filed two complaints against Harpe. The State charged Harpe with rape, in violation of K.S.A. 2019 Supp. 21-5503(a)(1)(A); aggravated sexual battery, in violation of K.S.A. 2019 Supp. 21-5505(b)(1); and violating a protective order, in violation of K.S.A. 2019 Supp. 21-5924(a)(1) for the events of September 30, 2019. And, related to October 7, 2019, the State charged Harpe with aggravated burglary, in violation of K.S.A. 2019 Supp. 21-5807(b)(1); theft, in violation of K.S.A. 2019 Supp. 21-5801(a)(1); robbery, in violation of K.S.A. 2019 Supp. 21-5420(a); criminal damage to property, in violation of K.S.A. 2019 Supp. 21-5813(a)(1); and violating a protective order, in violation of K.S.A. 2019 Supp. 21-5924(a)(1). The cases were consolidated for trial.
A jury convicted Harpe of aggravated sexual battery and two counts of violating a protective order. The sentencing court determined that Harpe had a criminal history score of C. The sentencing court imposed a prison sentence of 57 months (4 years, 9 months) for aggravated sexual battery, to run concurrent with his 12-month jail sentences for each violation of a protective order. The sentencing court also advised Harpe of his duty to register under KORA.
Harpe timely appeals.
Did the State present sufficient evidence to sustain a conviction of aggravated sexual battery?
Harpe argues that the State failed to present evidence that A.D was overcome by force or fear, which is an element of aggravated sexual battery. The State argues that the evidence shows that Harpe used some force in pulling down A.D.'s pants and penetrating her. And the State argues that A.D.'s testimony evinced fear.
Our standard of review is the following:
" " State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021).
"This is a high burden, and only when the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt should we reverse a guilty verdict." State v. Meggerson, 312 Kan. 238, 247, 474 P.3d 761 (2020).
A verdict may be supported by circumstantial evidence, if such evidence provides a basis for a reasonable inference by the fact-finder regarding the fact in issue. Circumstantial evidence, to be sufficient, need not exclude every other reasonable conclusion. State v. Colson, 312 Kan. 739, 750, 480 P.3d 167 (2021).
A conviction of even the gravest offense can be based entirely on circumstantial evidence. State v. Pattillo, 311 Kan. 995, 1003, 469 P.3d 1250 (2020). But see State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017) (circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances). There is no legal distinction between direct and circumstantial evidence in terms of their respective probative value. Aguirre, 313 Kan. at 209.
K.S.A. 2019 Supp. 21-5505(b)(1) defines aggravated sexual battery as the touching of a victim who is 16 or more years of age without consent with the intent to arouse or satisfy the sexual desires of the offender or another when the victim is overcome by force or fear. Harpe argues that the State failed to establish that A.D. was "overcome by force or fear." K.S.A. 2019 Supp. 21-5505(b)(1). Our Supreme Court has provided guidance on each of the key words, "overcome," "force," and "fear" under K.S.A. 2019 Supp. 21-5505(b)(1).
Our Supreme Court has found that "'overcome'" means "'to get the better of'" and "'to affect or influence so strongly as to make physically helpless or emotionally distraught.'" State v. Brooks, 298 Kan. 672, 691, 317 P.3d 54 (2014) (quoting from Webster's Third New International Dictionary 1607 [1993]). In short, "'overcome'" is synonymous with the terms "'overpower,' 'conquer,' and 'subdue.'" 298 Kan. at 691. This definition from Brooks is particularly useful not just for what is included in the definition, but also what is specifically excluded. In the battle over definitions between the majority in Brooks and the dissents, the majority disagreed with the proposed synonyms "'immobilized'" and "'paralyzed.'" 298 Kan. at 691-92.
In Brooks, the defendant managed to access his ex-wife's e-mail account just two months after their divorce was finalized. He forwarded to his own account some e-mails which indicated that his ex-wife was having an affair with a married male coworker. Brooks then called his ex-wife read portions of the e-mails, and said that he would be coming over to her house for sex that evening. When Brooks arrived at her house, he threatened to give copies of the e-mails to her employer and to her coworker's wife if she did not do as he said. She told Brooks that she did not want to have sex with him, and it would be against her will. When Brooks told her to take off her underwear and she hesitated, Brooks started getting agitated. So, she took off her underwear. While Brooks had intercourse with her, she...
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