State v. Marshall
| Citation | 334 P.3d 866,50 Kan.App.2d 838 |
| Decision Date | 05 September 2014 |
| Docket Number | 109,350. |
| Parties | STATE of Kansas, Appellee, v. Jamie G. MARSHALL, Appellant. |
| Court | Kansas Court of Appeals |
50 Kan.App.2d 838
334 P.3d 866
STATE of Kansas, Appellee
v.
Jamie G. MARSHALL, Appellant.
109,350.
Court of Appeals of Kansas.
Sept. 5, 2014.
Review Denied July 24, 2015.
Samuel Schirer, of Kansas Appellate Defender Office, of Topeka, for appellant.
Steven J. Obermeier, deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STEGALL, J., and BUKATY, SJ.
Opinion
STEGALL, J.
Jamie Marshall was convicted of raping A.M., a developmentally disabled adult under his care. The State alleged and the jury found a fiduciary relationship between Marshall and A.M. and, as such, Marshall received an enhanced sentence. This is Marshall's direct appeal claiming: (1) the State committed reversible misconduct during closing arguments; (2) he was denied his due process rights under the Fifth and Sixth Amendments because the State did not allege the aggravating factor of a fiduciary relationship in the criminal complaint; and (3) an Apprendi violation. Because we find that no reversible error occurred below, we affirm.
Facts
A.M. is a developmentally disabled adult with moderate mental retardation. Because of her disabilities, A.M. is not able to live independently. In February 2012, she was living in Caring Hands, a facility that provides care and supervision in a residential setting. On January 28, 2012, A.M. developed a skin rash on her upper inner thigh as a result of an antibiotic she had been taking. A yellow tinted medical cream was being used by Caring Hands to treat the rash. By February 28, 2012, the rash had cleared.
Jamie Marshall was one of the Caring Hands employees charged with A.M.'s care during this time. His job duties entailed transporting the residents to day activities and supervising them in the evening hours, occasionally staying overnight. On the afternoon of February 28, 2012, Marshall arrived to work at the Caring Hands residence where A.M. and two other Caring Hands residents lived. Also staffing the residence that afternoon was Caring Hands employee Emma White. About 5:30 p.m., White left Marshall alone with A.M. and the other two residents in order to attend a work training event.
During the morning hours of February 28, Marshall had been engaged in a drawn out argument with his girlfriend, Lindsey Misner, with whom he had a child. Marshall and Misner lived together in an apartment near A.M.'s Caring Hands residence. After White left the Caring Hands residence, Marshall loaded all three of the Caring Hands residents into the Caring Hands van and drove
to his apartment to continue his domestic dispute with Misner. Marshall and the residents returned to the Caring Hands residence at about 6 p.m. that evening.
Marshall and the State presented very different versions of what happened next. According to Marshall, after bringing A.M. and the other residents back to the Caring Hands facility, he stepped outside to call Misner. When he went back inside he found A.M. sitting on the corner of her bed with her pants pulled down below her waist. When Marshall told her to pull her pants up, A.M. responded, “It hurts,” and pointed to her genitals. Marshall testified that he was aware of A.M.'s rash and assumed that the rash was
causing A.M. discomfort. Marshall then called White and asked when she planned to be back at the Caring Hands residence. According to Marshall, he discussed applying medication to A.M.'s rash; however, White testified that the only subject of the call was how much longer she was going to be away from the residence. Marshall testified that after the call with White he went to the medicine cabinet, retrieved the rash medication, and applied it to A.M.'s “legs and all over the top of her vagina.” Marshall testified that after he applied the medication, A.M. gave him a hug and said thank you.
A.M. also testified at trial. In her testimony, she said, “[H]e poked me in my private area ... [w]ith the poker.” A.M. testified that Marshall used a pink lotion, not the yellow tinted cream, and that when Marshall touched her it made her feel sad. A.M. then clarified that Marshall poked her on the inside of her body. A cup and pen were used to demonstrate the difference between inside and outside due to A.M.'s significant verbal and conceptual disabilities.
Following the incident, Marshall again drove to his apartment in the Caring Hands van. This time, he took only A.M. with him, leaving the other two residents unattended. Misner testified that when he arrived, Marshall was acting agitated and angry and began to demand money. At this time, a friend of Misner's was present in the apartment. Misner's friend became concerned due to the escalating nature of the argument and called the police, at which point Marshall left the apartment. During this time, A.M. never left the van.
Soon thereafter, Marshall arrived with A.M. back at the Caring Hands residence. In the meantime, another Caring Hands employee, Amanda Mathews, had come to the residence. Mathews testified that after dropping A.M. off, Marshall told her he had an emergency and left in a rush. Marshall then returned to his apartment. On arriving, Marshall found Officer Jason Goddard at the scene in response to the domestic disturbance call. Goddard testified that Marshall and Misner were arguing over money in a savings account that Marshall felt was his. Marshall stated that he
needed the money for gas. Marshall was eventually allowed to leave the apartment.
Back at the Caring Hands residence, Mathews noticed that A.M. was wearing pajama pants when Marshall dropped her off, which struck Mathews as unusual. Similarly, prior to A.M.'s return, Mathews had noticed that A.M.'s service dog was at the residence without A.M., which was also unusual. Later that evening, while A.M. was in the restroom, she began to call for Mathews. Mathews asked A.M. what was wrong, and A.M. said that she was hurt and pointed to her genitals. Mathews asked why she was hurting, and A.M. responded, “Jamie, Jamie,” and began to cry. Mathews then took A.M. to the hospital.
At the hospital, Officer Brandon Faber responded to the reported rape. Faber testified that he spoke to A.M. at the hospital and she told him that a person named Jamie put too much lotion on her genitals and hurt her. Jennifer Johnson, the program coordinator for the Forensic Assessment Consultation and Treatment Program, testified that she examined A.M. on February 28, 2012. Johnson testified that A.M. told her that Marshall had smeared lotion on her, hurt her, and she was upset that Marshall had not apologized for hurting her. A.M. told Johnson that Marshall was the one who took her pants off. Johnson's examination of A.M. revealed a fresh laceration on A.M.'s fossa navicularis, an injury that was consistent with penetration of the vagina. Johnson collected
DNA swabs and A.M.'s clothing for DNA testing.
The next day Jennifer Coughlin, a forensic interviewer employed by Sunflower House, spoke to A.M. During that interview A.M. told Coughlin that Marshall had put too much lotion on A.M. with his hands, that it hurt, that it made her real sad, and that he did not say he was sorry. A.M. stated that Marshall had used a pink lotion, that Marshall had touched her inside her body, and that she had asked Marshall to stop.
Meanwhile, after leaving his apartment following the domestic disturbance call, Marshall went to his uncle's home in Overland Park, Kansas, where he stayed the night. Marshall testified that around midnight he received a call from the director of Caring Hands to inform him that there were suspicions that Marshall had
raped A.M. The next morning, Marshall left his uncle's house and drove to his mother's home in Connecticut. According to Marshall, he had a previously arranged visit to Connecticut planned and he wanted to take his car to his mother's house so Misner could not sell it. However, Marshall told Misner that he was headed west, telling her at various times that he was going to Salina and Arizona.
Marshall eluded law enforcement for 2 weeks. He was eventually tracked down in Connecticut, arrested, and transported back to Kansas in the middle of March. While he was in jail in Johnson County, Marshall met and talked with fellow inmate Jeremy Valadez. Valadez testified that Marshall had admitted, over the course of several conversations, that Marshall had used his fingers to penetrate A.M. Valadez testified that Marshall said he fled to Connecticut because of the charges against him and never said anything about treating A.M.'s rash with medical ointment.
Additional evidence presented by the State included DNA evidence showing that Marshall's DNA matched the profile of the DNA on genital swabs taken from A.M. on the night of February 28 and...
To continue reading
Request your trial