State v. McCune

• Decision Date: 18 July 2014
• Docket Number: No. 102,883.,102,883.
• Citation: 330 P.3d 1107,299 Kan. 1216
• Parties: STATE of Kansas, Appellee, v. Johnathan David McCUNE, Appellant.
• Court: Kansas Supreme Court

299 Kan. 1216

330 P.3d 1107

STATE of Kansas, Appellee,

v.Johnathan David McCUNE, Appellant.

No. 102,883.

Supreme Court of Kansas.

July 18, 2014.

Syllabus by the Court

1. A district court admits K.S.A. 60–455 evidence using a multistep process. It first determines whether the evidence is relevant to prove a material fact, including deciding whether the proffered material fact is actually in dispute.

2. The material facts listed in K.S.A. 60–455 are exemplary rather than exhaustive, and a party can seek to admit evidence to prove a material fact not specifically enumerated.

3. The doctrine of unconstitutional conditions may be implicated when two constitutional rights are placed in tension.

4. A psychiatric evaluation of a complaining witness in a sexual abuse case is appropriate when the defendant can show the totality of the circumstances demonstrate compelling reasons for the evaluation.

5. A statute is not unconstitutionally vague simply because it is unclear or susceptible to multiple interpretations.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the briefs for appellant, and Johnathan D. McCune was on a supplemental brief pro se.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

After a jury convicted Johnathan McCune of two counts of rape of a child under 14, the district court sentenced him in accordance with Jessica's Law, K.S.A. 21–4643, to two consecutive life sentences with no possibility of parole for 1,098 months. McCune appeals, alleging the district court erroneously admitted evidence, placed an unconstitutional condition on his defense, and abused its discretion by refusing to order a psychiatric evaluation of the complaining witness. He further asserts his sentence is void because K.S.A. 21–4643 is unconstitutionally vague. McCune also submitted a pro se brief asserting the prosecutor committed misconduct in his closing argument, the district court should have struck a detective's testimony that he “believed” the victim, and the district court erroneously imposed lifetime postrelease supervision.

Finding no trial errors, we affirm McCune's convictions. We vacate the district court's imposition of lifetime postrelease supervision but affirm the remainder of McCune's sentence.

Factual and Procedural Background

In December 2007, 13–year–old A.R. reported to her mother, Latricia, that her 23–year–old stepfather Johnathan McCune “touched [her] inappropriately.” A.R. later confided McCune vaginally raped her twice while the family lived in Lenexa and physically and sexually abused her for several years, predominately while the family lived in Missouri.

The State charged McCune with two counts of rape of a child under 14. See K.S.A. 21–3502(a)(2).

Pretrial motionsState's motion to admit K.S.A. 60–455 evidence

Before trial, the State filed a motion seeking to admit evidence under K.S.A. 60–455 that McCune raped, physically abused, and threatened A.R. while the family lived in Missouri and that McCune pled guilty to two charges arising from this abuse, statutory rape and child abuse, in Johnson County, Missouri. The State also sought to admit evidence McCune physically abused A.R.'s mother and older brother, A.C. The State alleged this evidence was relevant to establish a relationship or continuing course of conduct between the parties or to corroborate the complaining witness' testimony. At a later hearing on the motion, the State further asserted the evidence also was probative of identity and plan.

McCune argued evidence of his prior misconduct could not be admitted to prove identity because that fact was not at issue, nor could it be admitted to prove plan because there was no direct relationship between McCune's misconduct in Missouri and the Kansas charges.

Although it found the evidence of McCune's prior convictions more prejudicial than probative, the district court ultimately found the remaining evidence admissible. The district court rejected the State's assertion that the evidence was relevant to prove identity but admitted the evidence for its bearing on A.R. and McCune's relationship and A.R.'s reason for delaying reporting the abuse, McCune's plan, and McCune's ongoing course of conduct.

Defense motion for a psychiatric evaluation of A.R.

Prior to trial, McCune moved for a psychiatric evaluation of A.R. pursuant to State v. Gregg, 226 Kan. 481, Syl. ¶ 3, 602 P.2d 85 (1979). In support of the motion, McCune alleged: (1) The Kansas Department of Social and Rehabilitation Services (SRS) had previously investigated an accusation by A.R. that her grandmother's boyfriend sexually abused her, but no charges were filed; (2) no evidence corroborated A.R.'s allegations against McCune; (3) a lengthy time period occurred between the alleged abuse and A.R.'s disclosure; and (4) the motion was not a fishing expedition.

The State urged the district court to deny McCune's motion, pointing out that McCune's guilty plea corroborated A.R.'s allegations and that A.R.'s allegations against her grandmother's boyfriend were never proven false, just never substantiated. The State also disputed that A.R.'s delay in reporting McCune's abuse bore on her veracity.

The district court denied McCune's motion, finding no evidence that A.R. had a mental instability or that she could not understand what it meant to tell the truth. Further, the district court found no evidence that A.R. previously falsely reported similar allegations.

The State's case-in-chiefTestimony from A.R. and Latricia

A.R. met McCune in 2004 when her older sister Kaylee invited him to Thanksgiving dinner. At some point McCune and A.R.'s mother, Latricia—who was “quite a bit” older than McCune—became romantically involved, and the couple married in February 2005 when A.R. was 9 years old. McCune, A.R., Latricia, and A.R.'s then 12–year–old brother (A.C.), lived in Warrensburg, Missouri.

After Latricia and McCune were married, McCune went from being a “nice part of the family” to treating A.R., A.C., and Latricia like “servants,” spanking A.R. with his belt when she did not follow his directives and regularly beating Latricia.

In May 2005, A.R. attempted to intervene as McCune beat Latricia. But McCune hit A.R. in the head with his fist, and a friend of McCune's, who was in the home at the time, took A.R to another room in the house. A.R. could still hear furniture being broken and Latricia screaming and crying; A.R. tried to get out of the house through the kitchen, but McCune thwarted her effort. A.R. then opened her bedroom window, climbed out, and ran through a pasture and across a creek to a neighbor's house. The neighbor called police, who arrested McCune.

About 1 month later, McCune again began living with the family. Approximately a week after McCune moved back in, he approached A.R. at a time when her mother and brother were not at home. He grabbed her by the hair as she watched television, dragged her to her bedroom, threw her on her bed, and began to undo his pants. A.R. escaped briefly, but McCune caught her and vaginally raped her with his penis. As he did so, McCune told A.R. she would “pay for what [she] did.” A.R. assumed McCune meant he was retaliating against her for calling the police.

A.R. testified the intercourse lasted 5 to 10 minutes and afterward there was “white stuff all over” and blood running down her legs. McCune put A.R. in the bathtub and told her to wash up. When Latricia returned home, A.R. did not tell her about McCune's actions because McCune threatened to kill A.R. and her brother if she did.

A.R. further testified McCune raped her “maybe [five] times” during the year the family lived in Warrensburg and that during those incidents McCune penetrated her vagina with his penis and sometimes forced A.R. to perform fellatio on him. McCune also continued to hit A.R., A.C., and Latricia. A.R. testified she did not tell anyone about the abuse because she “really thought [McCune] was going to kill [her, her mother, and brother].”

In the fall of 2006, shortly before A.R. turned 10 years old, the family moved to Warsaw, Missouri, where the abuse escalated. A.R. testified McCune continued to beat her, including burning her with cigarettes. McCune also continued beating Latricia, but A.C. bore the brunt of McCune's physical abuse. According to A.R., McCune also continued the sexual abuse in Warsaw, raping A.R. once a week and then every other week.

One evening in November 2006, as Latricia and A.R. bathed the family dog, McCune returned home from an outing. Latricia asked McCune, who smelled of alcohol, where he had been and McCune responded by yelling at her and shoving the dog's nose under water. A.R. pushed McCune out of the way, allowing the dog to emerge. But McCune hit A.R. over the head with his fist and then hit and choked Latricia, slamming her head against a wall. Latricia testified the beating lasted “hours and hours.” A.R. and A.C. tried to intervene, but McCune hit them as well, breaking A.C.'s nose. McCune also tried to force A.C. to cut A.R. with a utility knife.

Eventually A.R. and A.C. managed to run to a neighbor for help. The neighbor refused to contact law enforcement and instead called A.R.'s older sister Kaylee who lived in Lenexa with her boyfriend, Miguel. Kaylee and Miguel picked up A.R., A.C., and Latricia and drove them to the police station to report the incident. A.R., A.C., and Latricia then moved to Lenexa to live with Kaylee and Miguel.

Sometime later A.R., A.C., and Latricia moved to Centerview, Missouri. The family eventually moved back to Lenexa, where McCune moved back in and resumed his physical abuse.

A.R. testified McCune twice raped her in Lenexa between March and July 2007. According to A.R., the first rape began as she sat on the living room...