State v. Hill

• Decision Date: 20 July 2001
• Docket Number: No. 83,147.,83,147.
• Citation: 26 P.3d 1267,271 Kan. 929
• Parties: STATE OF KANSAS, Appellee, v. JIMMY HILL, JR., Appellant.
• Court: Kansas Supreme Court

271 Kan. 929

26 P.3d 1267

STATE OF KANSAS, Appellee, v. JIMMY HILL, JR., Appellant.

No. 83,147.

Supreme Court of Kansas.

Opinion filed July 20, 2001.

Reid T. Nelson, assistant appellate defender, argued the cause, and Janine Cox, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the brief for appellant.

Gary L. Foiles, county attorney, argued the cause, and Eric W. Godderz, former county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

SIX, J.:

This case considers the appropriate lens for appellate review when focusing on defendant's claims of multiplicity and failure to give a juror unanimity instruction in a multiple acts case. Defendant Jimmy Hill, Jr., appeals his convictions for rape, aggravated indecent liberties with a child, and aggravated indecent solicitation of a child. K.S.A. 21-3502(a)(2); K.S.A. 21-3504(a)(3)(A); K.S.A. 21-3511(a). Hill was sentenced to a controlling term of 200 months. The Court of Appeals affirmed Hill's convictions. State v. Hill, 28 Kan. App.2d 28, 11 P.3d 506 (2000).

Our jurisdiction is under K.S.A. 20-3018(b). We granted Hill's petition for review to resolve a conflict among various Court of Appeals opinions which have differed in applying either harmless error or structural error as the standard for appellate analysis in multiple acts cases.

The issues raised by Hill in his petition for review, underlying the selection of the appropriate lens for appellate review here, are whether: (1) the district court erred by failing to instruct the jury regarding unanimous verdicts; (2) the charge of rape is multiplicitous with the charge of aggravated indecent liberties with a child; and (3) Hill's conviction for aggravated indecent solicitation of a child is supported by sufficient evidence. The Court of Appeals applied a harmless error analysis; we agree. Finding no error, we affirm.

FACTS

Hill's convictions were based on the evening events of May 18, 1998, at the home of B.M., a 13-year-old girl. At trial, B.M. testified that she returned home after a friend's eighth grade graduation, watched television, and prepared for bed. At 9:30 p.m., she called her father and told him that she and her 10-year-old brother were home. Hill, who was a friend of B.M.'s father, called the house. B.M. told him that her father was not there. Hill later entered the home, found B.M. in the bathroom, and said, "Hey, I'm here." B.M. testified that she thought he arrived after 10 p.m. He grabbed her waist and kissed her on the mouth with his tongue. B.M. tried to push him away. Hill lifted up her sports bra and from behind put his hand inside her pants and underwear. One finger penetrated B.M.'s vagina. He repeated the act from the front. B.M. repeatedly told Hill to stop and to leave because her father would be home soon. B.M. pushed Hill against the side of the bathtub.

As B.M. started to leave the bathroom, Hill got up, turned her around from behind, and kissed her again. He lifted up her sports bra and kissed her chest. B.M. repeated that her father would be home soon and walked out of the bathroom. Hill followed B.M. down the hallway to the kitchen and asked her, "So where are we going to get it on?" When B.M. got to the kitchen, Hill started kissing her and touching her breasts. He inserted his finger into her vagina again. B.M. went to the living room, where Hill tried to push her onto the couch. She repeated that he needed to leave and that her father was going to be home soon. He kissed her and sat down on the couch. B.M. walked to the bathroom, and Hill left the house.

B.M.'s cross-examination revealed inconsistencies between her testimony regarding what may have taken place in the kitchen and her previous statements to the police. Her statements to police did not mention that any penetration of her vagina took place in the kitchen. Hill did not testify. In a written statement to police, he said that he had stopped by B.M.'s house at around 10:30 p.m. on the night in question, but he left when B.M. told him that her father was not home. Hill told Officer Loquist that he then stopped at an exgirlfriend's house and was there for about an hour. The ex-girlfriend testified that Hill called her around 9:49 p.m. and arrived at her house around 10:45 p.m. She said he left around midnight. Hill's friend Ryan Hull testified that Hill had been at his house on the night in question and left around 10:30 p.m.

The jury found Hill guilty as charged.

DISCUSSION

The Rape Charge

Hill argues that the district court committed structural error by failing to instruct the jury that its verdict must be unanimous regarding which of the two acts of digital penetration constituted the rape. B.M. testified that Hill penetrated her vagina with his finger both in the bathroom and in the kitchen. Until the day before trial, the State was unaware that a second penetration had allegedly occurred in the kitchen. Thus, Hill was charged with only one count of rape (the bathroom incident).

Here, the district court gave a general unanimity instruction. It also gave the following instruction:

"Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the presiding juror."

The court instructed the jury on rape and that sexual intercourse was a required element of rape. However, the court did not instruct the jury that its verdict must be unanimous regarding which of the two acts of digital penetration constituted the rape. Hill keys on the failure to so instruct, labeling the failure structural error mandating reversal.

At this point in the opinion, a review of the transcript is appropriate to show how the evidence of the digital penetration in the kitchen was heard by the jury. The State in its direct examination of B.M. did not ask about penetration in the kitchen. B.M.'s testimony on direct was:

"A.... [W]hen I got into the kitchen he started kissing me again.

"Q. Was he touching you again?

"A. Yes.

"Q. Was he touching your breasts again?

"A. Yes, but my sports bra wasn't lifted up.

"Q. So he's touching you on the outside of that?

"A. Yes.

"Q. Was he touching you below also?

"A. Yes.

"Q. How did it stop?

"A. I backed away from him.

"Q. And what happened?

"A. I walked—I was going to grab the phone and I decided not to because I was scared he might do something to me and so I walked into the living room and he tried to push me down on the couch and I said, `Jimmer, you need to leave, my dad is going to be home,' and he kissed me and then he sat down on the couch and I went to walk into the bathroom and I stopped at the end of the hallway and he said, `Yeah, I guess I do,' and he got up and left."

The kitchen digital penetration testimony occurred during B.M.'s cross-examination. The questioning from Hill's counsel developed this way:

"Q. Did you stay in the kitchen?

"A. I stood in the middle of the kitchen, yes, told him he needs to leave.

"Q. Did Mr. Hill come into the kitchen after you?

"A. Yes, he did.

"Q. And what did he do there?

"A. He kissed me repeatedly, lifted my sports bra up, and he did the same exact thing he did in the bathroom except he did not kiss my chest area.

"Q. Did he—did he insert his finger in your vagina again?

"A. Yes, he did.

"Q. Both from the back and the front?

"A. Just the back."

The State did not reference the kitchen rape in its closing argument.

Hill contends his right to a unanimous verdict was violated by the district court's failure to give a unanimity instruction with respect to the multiple acts of alleged rape. Hill failed to request such an instruction at trial. Generally, when no request or objection is made, we reverse only if the failure to give an instruction was clearly erroneous. See State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995). The Court of Appeals here found that the district court erred in failing to give a unanimity instruction but concluded that the error was harmless. Hill notes that the Court of Appeals' holding conflicts with State v. Wellborn, 27 Kan. App.2d 393, 4 P.3d 1178,rev. denied 269 Kan. 940 (2000), and State v. Barber, 26 Kan. App.2d 330, 988 P.2d 250 (1999). Wellborn and Barber applied a structural error analysis in reversing and remanding for new trials where unanimity instructions were not given in multiple acts cases.

Resolution of the harmless error-structural error conflict involves a question of law, over which we have unlimited review. See State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000).

The Court of Appeals in an extensive analysis recognized the existence of two views regarding juror unanimity in multiple acts cases. One view holds that the failure to give the specific unanimity question results in structural error, which requires the appellate court to reverse and remand the case. See State v. Arceo, 84 Hawaii 1, 32-33, 928 P.2d 843 (1996) (defendant's constitutional right to a unanimous verdict is violated unless the State elects the specific act it is relying on to establish the crime or a specific unanimity instruction is given); Hill, 28 Kan. App.2d at 31 (citing concurring case law in other jurisdictions).

Structural errors "are so intrinsically harmful as to require automatic reversal (i.e., `affect substantial rights') without regard to their effect on the outcome." Neder v. United States, 527 U.S. 1, 7, 144 L. Ed.2d 35, 119 S. Ct. 1827 (1999). Automatic reversal is required in limited situations. See, e.g., Johnson v. United States, 520 U.S. 461, 468-69, 137 L. Ed.2d 718, 117 S. Ct. 1544 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed.2d 799, 83 S. Ct. 792 [...