State v. McCormick

• Decision Date: 09 September 2016
• Docket Number: No. 109,985,109,985
• Parties: State of Kansas, Appellee, v. Christian J. McCormick, Appellant.
• Court: Kansas Supreme Court

378 P.3d 543

State of Kansas, Appellee,
v.
Christian J. McCormick, Appellant.

No. 109,985

Supreme Court of Kansas.

Opinion filed September 9, 2016

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Kerwin L. Spencer, county attorney, argued the cause, and Matthew B. Metcalf, deputy county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Defendant Christian J. McCormick appeals from his jury convictions for rape and unlawful hosting of minors consuming alcohol.

McCormick asserts three errors on petition for review from the Court of Appeals decision affirming the district court's judgment: (1) the district judge violated his right to a fair trial by admitting evidence concerning the condition and appearance of a teenage girl who was not the victim of the charged rape; (2) the district judge erred in considering an aggravating factor when deciding whether to depart from Jessica's Law; and (3) the district judge abused his discretion by denying McCormick's motion for downward dispositional and durational departure.

We reject McCormick's first claim of error and affirm his convictions. We vacate his sentence and remand to the district court for resentencing because of the judge's statement that an aggravating factor “trumped” mitigators advanced by McCormick. Given our decision to remand, we do not reach McCormick's third claim of error.

Factual and Procedural Background

This case arose out of a small January 2012 gathering in McCormick's basement. Nineteen-year-old McCormick was joined by 19–year–old Seth LeClair and two 13–year–old girls, B.P. and K.C. B.P. and K.C. had

378 P.3d 545

given the boys money to purchase alcohol for them to drink at McCormick's house that evening.

Everyone present drank multiple shots of vodka. B.P. would later testify that she remembered only that she then lay down on a chair and fell asleep. K.C. would testify that she remembered dancing after drinking. Neither girl remembered any sexual activity with McCormick or LeClair.

While B.P. and K.C. were at McCormick's, K.C.'s father called a friend of K.C., M.Z., looking for his daughter. M.Z. learned through another friend that K.C. had gone to McCormick's house, and M.Z. and her mother drove over. After overcoming initial resistance from McCormick, M.Z. made her way to the basement and saw both B.P. and K.C.

B.P. woke up when M.Z. entered the room, but M.Z. could not rouse K.C. because of K.C.'s intoxication. With help from McCormick and LeClair, M.Z. carried K.C. upstairs, and K.C. was taken to the hospital.

When B.P. awakened, she was not wearing her pants. She got dressed and went home. B.P.'s mother noticed B.P.'s intoxication and contacted police. A responding officer spoke with B.P. and recommended that she go to the hospital to undergo a rape examination. B.P. followed the officer's recommendation.

The sexual assault nurse examiner who examined B.P. would later testify that she gathered biological evidence, including a swab of B.P.'s labia. A biologist at the Kansas Bureau of Investigation (KBI) would later testify about testing the biological material in this case, including a buccal swab from McCormick and the swab from B.P.'s labia. McCormick's DNA matched DNA found on B.P.'s labia.

Based on what the officer had learned from B.P., he went to McCormick's home. McCormick agreed to go to the police station with the officer. The officer read McCormick his Miranda rights, and McCormick agreed to talk to him. McCormick admitted that he had given the girls' money to LeClair's brother so that LeClair's brother could purchase alcohol. He also admitted that he had had sexual intercourse with B.P.

The State charged McCormick with rape and unlawful hosting of minors consuming alcohol.

At McCormick's trial, M.Z. testified about K.C.'s condition and appearance when she found her at McCormick's house:

“Q: Can you describe how [K.C.] appeared?

“A: She didn't have any pants on.

“Q: Okay. When you say she didn't have any pants on, can you tell us what you mean?

“A: She was naked from the waist down.

“Q: Okay. So she didn't have anything on at all?

“A: Huh uh.

“Q: Were you able to see her vagina?

“A: If you stood in front of her, yes.

“Q: Okay. Could you describe how she was positioned on the floor?

“A: She was sitting on her side up against the couch and her head just kind of slouched over.

“Q: She was sitting on her side?

“A: Um huh.

“Q: Were you able to wake [K.C.]?

“A: No.”

At this point, defense counsel objected to the relevance of evidence about K.C.'s condition and appearance because she was “not the alleged victim in this case.” The district judge determined the evidence was relevant to the “general scene down in the basement” and overruled the objection.

McCormick did not present any evidence, and the jury convicted him on both counts.

Before sentencing, McCormick moved for a downward durational departure to the sentencing guidelines grid from life in prison with a mandatory 25–year minimum under Jessica's Law, K.S.A. 2012 Supp. 21–6627. He argued that mitigating circumstances established substantial and compelling reasons warranting the departure, specifically, (1) he had no criminal history; (2) B.P. had willingly participated in consuming alcohol and had provided money for the alcohol, which contributed to the offense; (3) he also had consumed a significant amount of alcohol, which

378 P.3d 546

affected his capacity to appreciate the criminality of his conduct; and (4) he was young at the time of the crime. McCormick also sought a further downward departure—from the midpoint of the grid sentence range to half that amount of prison time.

The State agreed that the district judge should depart from the Jessica's Law life sentence to the grid. It made no recommendation on the number of months of imprisonment.

The district judge discussed the mitigating factors advanced by McCormick but emphasized, “The problem is there's an aggravating factor here,” B.P.'s extreme intoxication during the sexual intercourse. The judge said that the intoxication had been proved by B.P.'s credible testimony about the amount of alcohol she consumed and her lack of memory of the sexual activity. While acknowledging that McCormick's sentencing presented a “close case” and remarking that such a case was “probably why you don't have to prove consent with 13 year olds,” the judge ultimately concluded:

“[E]ven though there are some substantial mitigating factors, I think it's just trumped by the ... evidence that this particular [13–year–old] was severely inebriated to the point where she couldn't ... give consent. So I haven't heard anything that makes me think I should go ahead and ... find substantial and compelling reasons for departure....”

McCormick thus received a Jessica's Law life sentence for the rape and a concurrent one-year sentence in county jail for unlawful hosting of the gathering in his basement.

The Court of Appeals affirmed. State v. McCormick , No. 109985, 2014 WL 5312882 (Kan. App. 2014) (unpublished opinion).

Discussion

We take up the first two of McCormick's appellate issues in the order he raised them in his Court of Appeals brief and his petition for review.

Relevance of Evidence on K.C.'s Condition and Appearance

McCormick argues on appeal that the district judge erred in allowing the jury to consider evidence that K.C. was found naked from the waist down with her vagina exposed. He contends that the evidence was both irrelevant and more prejudicial than probative.

McCormick's first problem on this issue is that his trial objection questioned only relevance and not the prejudicial impact of this evidence. He argues that State v. Wells , 289 Kan. 1219, 1227, 221 P.3d 561 (2009), supports his view that this court should treat the district judge's act of weighing prejudice and probative value as inherent in the evaluation of relevance.

Wells is not helpful to McCormick. It dealt with the steps a district judge must follow to evaluate the propriety of admitting evidence of a criminal defendant's prior bad acts, not the type of evidence we are considering here; and, if anything, it demonstrated that relevance and prejudice are separate considerations. 289 Kan. at 1226–27, 221 P.3d 561. Thus we conclude that McCormick's appellate argument on prejudice is unpreserved by a proper, timely objection and we will not consider it. See K.S.A. 60–404 ; State v. Gaona , 293 Kan. 930, 954, 270 P.3d 1165 (2012) (party must make specific contemporaneous objection to admission of testimony to preserve issue for appeal).

Our standard of review on McCormick's relevance challenge is set out in State v. Coones , 301 Kan. 64, 77–78, 339 P.3d 375 (2014) :

“Relevant evidence is that which

...