State v. Kilgore

• Decision Date: 10 July 2001
• Docket Number: No. 24200-1-II.,24200-1-II.
• Citation: 26 P.3d 308,107 Wash.App. 160
• Parties: STATE of Washington, Respondent, v. Mark Patrick KILGORE, Appellant.
• Court: Washington Court of Appeals

26 P.3d 308

107 Wash.App. 160

STATE of Washington, Respondent, v. Mark Patrick KILGORE, Appellant.

No. 24200-1-II.

Court of Appeals of Washington, Division 2.

July 10, 2001.

Sean P. Wickens, Law Offices of Sverre O. Staurset P.S, Tacoma (Court Appointed), for Appellant.

Barbara L. Corey-Boulet, Pierce County Deputy Pros Atty, for Respondent.

HOUGHTON, J.

Mark Patrick Kilgore appeals from his conviction of three counts of child rape and four counts of child molestation, arguing that the trial court committed various evidentiary errors. We reverse one count of child rape and one count of child molestation, affirm the other five counts, and remand for further proceedings.

FACTS

In 1993, Kilgore moved to Washington with his wife, Nicolette, his stepdaughter, A.B., and their son, Bradley. Soon after their arrival, Bradley was diagnosed with brain cancer, which meant that Nicolette had to spend many nights away from home at the hospital with Bradley. RP 930, 1374. While Nicolette was away, A.B. said Kilgore molested and raped her, both vaginally and anally. These incidents comprise Counts IV (first degree child rape), V (first degree child rape), and VI (first degree child molestation).

In spring 1995, Kilgore's two brothers-in-law, D.O. (age 10) and T.O. (age 8), came to live with the Kilgores. They testified that while they were living there, Kilgore got them drunk and on separate occasions, molested them. These incidents comprise Counts III (first degree child molestation against D.O.) and VII (first degree child molestation against T.O.).

Kilgore and Nicolette separated in the fall 1995. During summer 1996, Kilgore spent time at the house of his half-sister, Cheryl M. On June 28, 1996, Kilgore cared for his step-niece, C.M., while Cheryl and Jay M., C.M.'s father, were out celebrating Cheryl's birthday. C.M. said that while they were gone, Kilgore molested her. Then on July 4, 1996, Kilgore took C.M. to the home of a patient Kilgore cared for, where C.M. said Kilgore raped her. These incidents comprise Counts I (first degree child molestation) and II (first degree child rape).

A.B.

Evidence of Kilgore's rapes and molestation of A.B. came from A.B.'s testimony and through Nicolette's and Caryn Bujnowski's testimonies repeating A.B.'s hearsay statements. A.B. testified that Kilgore had rubbed her front and back lower private parts with his hand on her skin six or seven times. She testified that she did not remember if his hand went inside her. She told him to stop but he would not. These incidents took place on Kilgore's bed while Nicolette was at the hospital with Bradley. A.B. testified that she did not tell her mother immediately because she was afraid Kilgore would hurt her mother. A.B. also testified that Kilgore had given her, T.O., and D.O. beer to drink. During cross and re-direct examinations, defense counsel and the prosecutor asked her about statements she had given about the incident.

Nicolette explained that Kilgore frequently cared for A.B. while she was at the hospital with their son. She testified that after T.O. and D.O. had come forward with allegations against Kilgore, A.B. came forward and told Nicolette that Kilgore had also touched her. A.B. described incidents of his rubbing her private parts and her touching his. She also described one incident where Kilgore had gotten her, T.O., and D.O. drunk, encouraged her to strip, and had T.O. and D.O. look at her vagina. Finally, A.B. told Nicolette about how Kilgore had raped her and about how it hurt. A.B. said that she wished Nicolette had let her go to the hospital with Bradley.

Nicolette described another incident that provided circumstantial corroboration of A.B.'s charges. Once she came home unexpectedly early from the hospital and found all of the children and Kilgore dancing and drinking beer. Another time, while in a card shop at a mall, A.B. wandered into an "adult" section, got Nicolette's attention, pointed to some massage oil, and said that was the oil Kilgore had used on her.

Finally, Nicolette testified about some of Kilgore's actions that were corroborating evidence. After allegations had been raised against Kilgore involving D.O. and T.O., Nicolette testified about how Kilgore started to behave overly nicely toward A.B. and bought her extravagant gifts. Nicolette also testified about a telephone conversation where Kilgore admitted, "You know, maybe this really did happen. Maybe I was dreaming, or maybe it was in my sleep, maybe it was subconscious." Report of Proceedings at 958. This statement took Nicolette by surprise so she had Kilgore repeat it to Cheryl M.

The final witness who testified about A.B.'s statements was Caryn Bujnowski, a forensic investigator with the prosecutor's office. Bujnowski testified in detail about A.B.'s description of how Kilgore had molested and raped her. Kilgore began by giving A.B. massages with oil and kissing her. He then would rub her on her naked private parts. He also made her touch his penis and play with it. Finally, he penetrated her both vaginally and anally on several occasions. During these incidents, "stuff" would "squirt" out of his penis. Report of Proceedings at 1097-1100.

After A.B. had testified, the prosecutor came forward and told the court that A.B.'s grandmother, Lynn B., had told him about a conversation she had had with A.B. The prosecutor said that Lynn B. told him that in this conversation, A.B. had told her that she was scared and did not want to testify. The prosecutor said Lynn B. told him she had then asked A.B. if she was making anything up, and A.B. stated that maybe she was. But later, Lynn B. testified under oath about the incident and explained that A.B. had never said she was making anything up; instead Lynn B. testified that she told the prosecutor she was worried about A.B. telling stories because A.B. could not remember all of what happened. The prosecutor also had A.B. interviewed after Lynn B. told him about this alleged incident, and A.B. assured the interviewer that she had not made up the allegations or told Lynn B. that she had.

Defense counsel, however, asked the court to make A.B. available for a new interview. He requested the trial court to order a new interview because he did not want to call A.B. as a witness and have her cry in front of the jury. The prosecutor opposed this, arguing that Lynn B.'s testimony showed that A.B. had never said she made anything up and that requiring her to return to the courthouse would be traumatic. The trial court did not allow defense counsel to re-interview A.B.

D.O. & T.O.

At trial, D.O. testified about how Kilgore had molested him. Kilgore plied D.O. with Olde English malt liquor while Nicolette was at the hospital and then convinced D.O. to sleep with him in his and Nicolette's bed. D.O. was not suspicious because he liked his brother-in-law. But in the early morning hours, D.O. awakened when Kilgore reached down D.O.'s sweatpants and fondled D.O.'s penis. D.O. pretended to wake up, got out of bed, and left. D.O. testified that Kilgore later explained that he did not like what he had done, but he had had a nightmare. D.O. also described a second incident where Kilgore had gotten him drunk and molested him.

T.O. testified to a similar incident. He had also gotten drunk and slept in Kilgore's bed, only to awake with Kilgore touching his penis. This incident occurred before the incident with D.O. Bujnowski testified that T.O. had made similar statements to her.

C.M.

C.M., who was 10 years old, moved to Washington to live with her father, Jay M., and his wife, Cheryl M., in 1996. During that summer, Kilgore, spent time at the M.'s. On June 28, 1996, Cheryl's birthday, Kilgore arranged to baby-sit C.M. by encouraging Jay to take Cheryl out; Kilgore even made the dinner reservations for Jay. C.M. testified that while her parents were out on that date, Kilgore turned off all the lights, lit candles, and sat on the couch next to her. He then started to kiss her and rub her private parts. She tried to get up, but he held her down. His hand went under her clothes and moved around on her genitalia.

On July 4, 1996, Kilgore took C.M. to the house of a patient he cared for. While there, C.M. went to a spare bedroom to rest. C.M. testified that Kilgore came in, closed the door, took off his clothes, took off her clothes, and raped her. C.M. tried to stop him but could not. C.M. also related a third incident of molestation and said that Kilgore had done it lots of other times.

C.M. finally told her mother, Sharon M., about the rapes while she was visiting her mother in August 1996. C.M. explained that she did not immediately report the abuse because she was afraid that her father would kill Kilgore.

Circumstantial evidence supported parts of C.M.'s testimony. Cheryl remembered coming home from her birthday dinner to find all the lights out and candles lit. When she and Jay came through the door, they were greeted by C.M., acting very strangely, and Kilgore looming behind her. Cheryl also testified about an incident when Kilgore asked to take C.M. out. When they returned, C.M. was wearing a ring, a silky low-cut black dress, and high heels. Kilgore explained that he had bought the items for C.M. because she had a crush on him. Finally, Cheryl testified that Kilgore had once stated in a conversation with his wife, which Cheryl overheard, that "he possibly could have done this." Report of Proceedings at 609.

The State also presented testimony from Joyce Epstein-Ross, a nurse practitioner, who had examined C.M. To help with her diagnosis, Epstein-Ross took C.M.'s sexual history. To lay a foundation for the admission of C.M.'s statements to Epstein-Ross, the State called Epstein-Ross to testify about the interview. Epstein-Ross testified that she asked C.M. if she knew why she was there, and C.M. responded that she was there because Kilgore had molested her. Next, Epstein-Ross explained to C.M. that sh...