State v. Huntley

• Decision Date: 07 March 2008
• Docket Number: No. 97,338.,97,338.
• Citation: 177 P.3d 1001
• Parties: STATE of Kansas, Appellee, v. Brent HUNTLEY, Appellant.
• Court: Kansas Court of Appeals

177 P.3d 1001

STATE of Kansas, Appellee, v. Brent HUNTLEY, Appellant.

No. 97,338.

Court of Appeals of Kansas.

March 7, 2008.

B. Joyce Yeager, of Yeager Law Firm, LLC, of Overland Park, for appellant.

Amory K. Lovin, assistant district attorney, Jerome A. Gorman, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before GREEN, P.J., GREENE and LEBEN, JJ.

GREENE, J.

Brent Huntley appeals his multiple convictions of rape and aggravated criminal sodomy of his own young children, arguing insufficiency of evidence at preliminary hearing and at trial, error in refusing to disqualify a juror, error in the admission of certain evidence, instruction error, and abuse of discretion in denying the defense a continuance in order to retain an expert witness to assist in evaluating the child witnesses' testimony. We agree that the district court abused its discretion in denying the continuance solely on the grounds that any testimony from such witnesses would be inadmissible and that rescheduling the trial might be difficult; accordingly we must reverse Huntley's convictions and remand for a new trial.

Factual and Procedural Background

Huntley was charged with multiple counts of rape and aggravated criminal sodomy after a spring-break visit by his 5-year-old biological daughter, M.E., and her 4-year-old half-brother, S.M. The children initially reported Huntley's conduct to a school counselor and their natural mother, and they ultimately discussed the alleged sexual abuse during forensic interviews at Sunflower House in Kansas City, which interviews were recorded by videotape. Further detail of the allegations will be discussed in connection with our analysis of the sufficiency of the evidence.

Prior to trial, the defense moved for a continuance in order to retain an expert to examine the videotaped statements of the children to render an opinion on the, words they used and their mannerisms. The district judge denied the motion, stating:

"Your motion for continuance is denied. I'll note two specific reasons for that. First off, probably the most important is I'm not sure even if you and the State of Kansas paid for the money to hire whomever you were going to hire to look at these tapes, that this Court was going to allow that testimony to come in. I think that you can, by cross-examination, question the people as to can kids be led, and are they subject to that? I think jurors normally know those things just because they've had kids and therapy kids. And so, some of those things are not expert testimony type issues, they are common sense. Certainly the law is clear for you to have an expert to come in and say, `I've looked at these tapes, and this girl was lying. I don't know who made her lie, but she's lying,' is not the appropriate testimony, not appropriate expert testimony. You can argue that she is mistaken or confused or whatever to the jury, and the jury may well find that to be the case. I don't know the facts in this case at all. But certainly that is within the province, the sole province of the jury to decide who's telling the truth and who's not in this case and in ever criminal case. Secondly, if I granted your motion, even though you had suggested to me might be available to go back to trial next month, this Court couldn't put you back on a jury trial docket until March at the next time. I was not prepared, and based clearly on the reason I had from a number one situation to put Mr. Huntley and make him stay in jail another four months before trial merely over the subject of an expert I might not let testify based on my understanding of the law in Kansas at this point in time. So, with those reasonings in mind that's why I denied your motion."

The jury convicted Huntley on 6 counts of rape and 7 counts of aggravated criminal sodomy. He was sentenced to 362 months' imprisonment. He timely appeals.

Was the Evidence Sufficient to Support the Rape Convictions?

Before we turn to Huntley's other claims of error, we must determine whether the evidence was sufficient to support his convictions in any event. When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).

At the outset we address Huntley's claim that there was insufficient evidence presented at the preliminary hearing to bind him over for trial. We deem any such insufficiency harmless because when the accused has gone to trial and been found guilty beyond a reasonable doubt, any and all error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial. State v. Butler, 257 Kan. 1043, 1062, 897 P.2d 1007 (1995), modified on rehearing 257 Kan. 1110, 916 P.2d 1 (1996). Huntley does not argue nor *do we conclude that any such insufficiency of evidence at the preliminary hearing prejudiced him at trial. Thus, Huntley's challenge to the sufficiency of evidence at preliminary hearing is rejected.

Huntley also contends, however, that the evidence at trial was insufficient to support all six of MS convictions of rape because it failed to establish six acts of intercourse with his 5-year-old daughter. No such challenge was made to the aggravated sodomy convictions.

K.S.A. 21-3502(a)(2) proscribes sexual intercourse with a child who is under 14 years of age. "Sexual intercourse" for purposes of the crime of rape means any penetration of the female sex organ by a finger, the male sex organ, or any object. Any penetration, however slight, is sufficient to constitute "sexual intercourse." K.S.A. 21-3501(1). "Penetration is an element of rape, but any penetration, however slight, is sufficient. To establish this element, actual penetration of the vagina or rupturing of the hymen is not required; penetration of the vulva or labia is sufficient." State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261 (1994) (citing State v. Ragland, 173 Kan. 265, 268, 246 P.2d 276 [1952] ).

M.E. told the interviewer that Huntley put his private in her private and that she had bled. M.E. identified several body parts on anatomical dolls, indicating that the male doll had a "tally whacker" and the female doll had a "kitty," and that both of those were privates. M.E. used the dolls to demonstrate that Huntley would lay behind her and told the interviewer that "daddy tried to put his tally in her kitty, and that she had blood on her underwear." On two separate occasions during her interview, M.E. told the interviewer that this happened six times.

At trial, M.E. testified that she remembered talking to a lady at Sunflower House about what Huntley did. She remembered using dolls to show what Huntley did, and she confirmed that she was telling the truth. M.E. testified that she remembered telling the lady how many times Huntley performed the acts and that she was telling the truth about this. On' cross, Huntley elicited testimony that M.E. was unsure about how many times the abuse happened, but it "could have been one time."

The last date that State alleged the abuse occurred was March 26, 2005. Dr. Kay Ruth Farley testified that she performed a physical examination of M.E. at Sunflower House on May 11, 2005. Farley testified that the examination was normal, that M.E.'s hymen appeared intact, and that there was no evidence of trauma. Farley explained, however, that the absence of injuries did not mean that the abuse did not occur. Farley testified that often in child sexual abuse cases the injuries consist of "redness, some swelling, maybe a bruise, maybe a little bit of friction like a rug burn that might bleed. Minor injuries that tend to heal quickly." Farley, testified that the absence of injuries would be consistent with a child's disclosure of sexual abuse. Farley gave the jury a lengthy description of the female genitalia of a prepubital girl and testified that penetration of the outer lips or labia could occur if the abuse involved a penis coming from behind and rubbing forward.

On cross, Farley testified that a normal pelvic examination could also indicate that no sexual abuse occurred. Farley testified that if vaginal penetration had occurred, she would expect to see a tear in the hymen. Farley restated that if M.E. was abused and the abuser was laying behind her, there could have been penetration of the "outside lips" of the vagina. On redirect, Farley testified that there could be penetration of the lips without any injury to the hymen. Farley testified that, if the acts occurred as M.E. demonstrated with the dolls, there "most likely" would have been penetration of the vaginal lips. M.E. told the interviewer and her mother that she had bled. Farley testified that rubbing of the labia can cause "rug burn" type injuries that could bleed. Penetration of the labia is sufficient to constitute sexual intercourse as required for the charge of rape. Borthwick, 255 Kan. at 914, 880 P.2d 1261.

The videotaped statements of M.E. re-counting six incidents, coupled with the opinion of Farley as to penetration consistent with the position described by M.E., convince us that a rational factfinder could have found Huntley guilty beyond a reasonable doubt. We acknowledge the more equivocal live testimony of M.E. at trial, but a rational factfinder could have surmised that M.E. was uncomfortable in the trial setting and that her videotaped statements were more reliable.

Huntley also implies that there was insufficient evidence to support that six acts of rape occurred during the week of March 17, 2005, through March 26, 2005, as alleged in the information. It was beyond dispute that M.E. had been visiting Huntley in Kansas City over spring break. Moreover, all five of the, defense witnesses testified that both children were at the Huntley home...