State v. Inkelaar

• Decision Date: 21 October 2011
• Docket Number: No. 101,987.,101,987.
• Citation: 264 P.3d 81,293 Kan. 414
• Parties: STATE of Kansas, Appellee,v.Nathan INKELAAR, Appellant.
• Court: Kansas Supreme Court

293 Kan. 414

264 P.3d 81

STATE of Kansas, Appellee,

v.Nathan INKELAAR, Appellant.

No. 101,987.

Supreme Court of Kansas.

Oct. 21, 2011.

Syllabus by the Court

1. Under the circumstances of this case, the defendant preserved an evidentiary error for appeal by filing a motion in limine, objecting during the State's proffer of the evidence, and asking the trial court for a continuing objection to admission of the evidence, even though the defendant did not object after the specific questions at issue.

2. A trial court does not abuse its discretion by admitting evidence of prior crimes if the evidence does not actually or probably bring about the wrong result under the circumstances of the case.

3. An overly broad limiting instruction on K.S.A. 60–455 evidence will be deemed harmless error if the defendant was not prejudiced by the inclusion of more of the statutory factors than were warranted by the evidence in the case.

4. A defendant preserves for appellate review a prosecutorial misconduct issue based on evidentiary error by objecting to the lack of a legal or factual basis for a question.

5. A defendant challenging the sufficiency of the charging document for the first time on appeal must show the alleged defect either (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.

6. Error in failing to instruct the jury on the element of the defendant's age as required to prove the off-grid felonies of aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child under Jessica's Law, K.S.A. 21–4643(a)(1)(C) and (G), was harmless when several witnesses confirmed the defendant was older than 18 at the time of the offenses and this evidence was uncontested.

7. The trial court did not abuse its discretion in denying the admission of third-party evidence when the totality of facts and circumstances in the case did not connect the third party to the crime charged.

Ryan Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

This is a direct appeal from Nathan Inkelaar's convictions for one count of rape, one count of aggravated indecent liberties with a child, one count of attempted aggravated indecent liberties with a child, and three counts of aggravated criminal sodomy. He argues: (1) The trial court erred in allowing the State to introduce K.S.A. 60–455 evidence of prior sexual abuse to show plan, intent, or absence of mistake or accident; (2) the prosecutor committed misconduct during cross-examination of the defendant's brother; (3) the trial court lacked jurisdiction to sentence the defendant under Jessica's Law, K.S.A. 21–4643, because the defendant's age was omitted from the complaint and from the jury instructions; and (4) the trial court abused its discretion by excluding evidence of third-party guilt. We reject his arguments and affirm.

Facts and Procedural Background

Inkelaar's convictions involve two victims, M.C. (a 9–year–old girl) and Z.C. (an 11–year–old boy), who are siblings. The children lived with their father, A.C., and their stepmother, V.C. Inkelaar and A.C. were long-time friends.

Inkelaar would sometimes babysit the children, which included occasions where they would spend the night at Inkelaar's home. On Friday, November 30, 2007, A.C. was preparing to leave town for the weekend, and Inkelaar agreed to let M.C. and Z.C. spend the night at his home. The next afternoon, V.C. called and spoke to the children and Inkelaar by telephone, and Inkelaar asked if they could spend another night because he was decorating for Christmas. V.C. agreed. Then, on Sunday, December 2, 2007, M.C. called her stepmother and asked to come home. V.C. did not have a car, so she could not go pick up the children. V.C. asked where Inkelaar was, and M.C. said he was still asleep. V.C. told M.C. to wait until Inkelaar woke up and then ask him to bring her home.

Later that afternoon, Inkelaar brought the children home. When M.C. got out of the car, she was wearing a new pair of boots. V.C. was angry at Inkelaar for buying this gift because it was close to Christmas (she had planned to buy the same boots for M.C.) and because she had previously told him to stop spoiling the children with gifts. A.C. had specifically told Inkelaar not to buy the children any shoes because of V.C.'s shopping plans.

That night, after Inkelaar left, V.C. was sitting on the couch with the children when M.C. revealed that Inkelaar made them play “strip Candyland” over the weekend. When V.C. asked her if she knew what “strip” means, M.C. said, “Yeah, you have to take your clothes off.” M.C. said both she and Z.C. had to remove clothing during the game, and Inkelaar removed clothing too.

V.C. did not call the police right away because she first wanted to talk to the children's father, who had not yet returned from his trip. When A.C. returned a couple of days later, V.C. told him about M.C.'s allegations. A.C. called law enforcement and reported the suspected child molestation.

Detective Lori Werlein of the Exploited/Missing Children's Unit of the Sedgwick County Sheriff's Department interviewed M.C. and Z.C. Although a DVD and a transcript of the interviews were later admitted into evidence, neither of those exhibits was included in the record on appeal (and it does not appear a request to have them added was ever submitted). The detective's affidavit regarding the substance of the interview is in the appellate record, however, and indicates that M.C. told the detective about the strip Candyland game, that M.C. and Z.C. ended up with no clothing on, and that Inkelaar rubbed his “ ‘weenie’ ” on M.C.'s “ ‘titties and crotch’ ” and also on Z.C.'s “ ‘titties and crotch.’ ” M.C. said Inkelaar's clothing was off, his “ ‘weenie’ was ‘big and hairy,’ ” and that “ ‘juice’ ” came out of it and went on M.C.'s and Z.C.'s skin.

M.C. told the detective that Inkelaar started doing “ ‘dirty stuff’ ” to her when she was 5 years old. Inkelaar made her rub his penis when her brother was asleep, and Inkelaar would take a shower with her. He also rubbed M.C.'s “ ‘booty’ ” with his “ ‘weenie.’ ” M.C. told the detective Inkelaar locked her in the bathroom and made her “ ‘suck his dick’ ” and he also “ ‘sucked [her] crotch.’ ” M.C. also said Inkelaar took off her clothes and put his mouth on her crotch while she sat on the toilet. She said he stopped because her brother came into the room. Sometimes Inkelaar would make her lick and “ ‘suck his dog's pussy.’ ” In the detective's affidavit, she also indicated M.C. told her about Inkelaar making her watch pornography and having “ ‘dirty magazines' ” at his house.

With regard to Z.C.'s interview, the detective's affidavit indicated Z.C. said “ ‘things' ” had been happening to his sister and himself. When asked to explain what he meant by “ ‘things,’ ” Z.C. said it was “ ‘sexual harassment’ ” and it was not happening as much to him as to his sister. Z.C. told the detective that Inkelaar, with his hands, touched M.C.'s “ ‘private’ ” while her pants were off. He also told the detective about the strip Candyland game and indicated they had to take their clothing off and sit on the couch. Z.C. said that Inkelaar touched M.C.'s face with his “ ‘weenie’ ” and also put his “ ‘weenie’ ” in Z.C.'s face. According to the detective's affidavit, both children indicated Inkelaar “told them not to tell what happened because if they did then he would go to jail.”

At trial, M.C. testified Inkelaar touched her “crotch” with his “wiener” and rubbed his “wiener” on Z.C.'s chest during the game of strip Candyland. Z.C. also testified they played strip Candyland. Z.C. said Inkelaar touched his sister's “private” with Inkelaar's finger, Inkelaar's “wienie” was out, and it was “big”; but Z.C. denied Inkelaar touched either child with his “wienie.” Z.C. testified that M.C. told him Inkelaar would touch her at night and “make her watch movies and stuff.” Z.C. remembered a time when his sister was taking a shower and Inkelaar went into the bathroom with her, but Z.C. denied going into the bathroom himself. Z.C. felt embarrassed when his sister told V.C. about what happened, and that is why Z.C. did not say anything. Z.C. testified Inkelaar told them not to tell.

In addition to testifying about strip Candyland, M.C. claimed Inkelaar had been inappropriately touching her since she was 4 years old. This happened at Inkelaar's home while her brother was either asleep on the couch or playing outside with friends. According to M.C., Inkelaar touched her “crotch” with his finger and his “wiener.” She described this happening when she was sleeping, sitting on the toilet, or taking a shower. Inkelaar also stuck his “wiener” in her “butt” after making her bend over his bed. He made M.C. watch pornographic movies while her brother slept on the couch. M.C. performed oral sex on Inkelaar, who told her, “If you suck my wiener, I'll buy you anything you would want.” He also forced M.C. to perform oral sex on a dog and told M.C. if she did not “do it, we won't go to Wal–Mart or get any breakfast.” She also indicated Inkelaar “would touch Z.C. on his titties with his wiener.” M.C. testified Inkelaar said if she told anybody in her family about these things he was doing, “he would go to jail.”

Inkelaar did not testify in his own defense. The jury watched a DVD of Inkelaar's police interview, in which he made statements about the accusations of M.C. and Z.C. As with the interviews of the victims, neither the DVD nor the transcript of Inkelaar's interview was included in the...