State v. McHenry
| Decision Date | 31 October 2003 |
| Docket Number | No. 87,950.,87,950. |
| Citation | 276 Kan. 513,78 P.3d 403 |
| Parties | STATE OF KANSAS, Appellee, v. CHARLES EVERTE McHENRY, JR., Appellant. |
| Court | Kansas Supreme Court |
Rebecca E. Woodman, capital appellant defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the brief for the appellant.
William R. Ludwig, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
A jury convicted Charles E. McHenry, Jr., of rape, aggravated indecent liberties with a child, and criminal sodomy, charges which arose out of the sexual molestation of his daughter. On direct appeal, the Court of Appeals affirmed McHenry's convictions. State v. McHenry, No. 87,950, unpublished opinion filed January 24, 2003. This court granted McHenry's petition for review on two issues: 1) Whether the district court erred in admitting evidence of prior, uncharged allegations of sexual abuse by McHenry under the "plan" exception of K.S.A. 60-455, and 2) whether prosecutorial misconduct in closing argument denied McHenry a fair trial.
We hold that there was not an abuse of discretion in admitting the evidence, although we determine that the evidence was admissible independent of K.S.A. 60-455. We also hold that the prosecutorial misconduct in closing argument did not deny McHenry a fair trial. Therefore, we affirm.
McHenry and his wife, Wendi, have five children: the victim and four sons, one older than the victim and three younger.
The November 14, 2000, Incident (Rape Charge)
McHenry's daughter testified regarding the incidents upon which the charges were based. The daughter stated that a few days before her fourteenth birthday, while Wendi was at the grocery store and her brothers were downstairs, McHenry had taken his daughter to her room, penetrated her vagina with his finger, and rubbed her breast. The daughter testified that McHenry would do this a couple of times each week. In exchange, he would give her money, grant her privileges not allowed her siblings, or let her go places. Anytime she wanted to go somewhere, McHenry would tell her she owed him a specific amount of time alone with him. He said if she told anyone he would take away all of her privileges. Wendi was always at the store, at work, at bingo, or sleeping when these events occurred.
The February 9, 2001, Incidents (Aggravated Indecent Liberties and Criminal Sodomy Charges)
A few months later, while Wendi and one brother were at bingo, McHenry told his daughter she owed him some time. He made her go up to her room while the brothers who were at home were sleeping or watching television. He then penetrated her vagina with his finger and felt her breast. After the incident, the daughter was allowed to call her boyfriend. While she was on the telephone, McHenry brought her a Kool-Aid and made her drink it. The Kool-Aid tasted funny and made her feel "weighed down." McHenry then made her go back upstairs. He undressed her, licked her vaginal area, and "fingered" her some more. A few days after that, the daughter told her brothers about the Kool-Aid, and they told their mother.
The two oldest brothers testified that a couple of times per week, when their mother was at work or at bingo, McHenry would take his daughter upstairs to her room, turn on the music, and shut the door. McHenry would tell the boys to go to the park or stay downstairs.
Wendi McHenry testified that her daughter received special treatment from McHenry and the daughter was allowed to do things her brothers were not, such as participate in sports. According to Wendi, McHenry often gave his daughter money.
Kansas Bureau of Investigation special agent William Pettijohn separately interviewed the McHenry family, except for the two youngest boys. When Pettijohn interviewed McHenry, at first McHenry denied ever being alone with his daughter in her room. He stated that he tried not to be alone with her because of the previous allegations of sexual abuse. Later, McHenry admitted that his daughter had called him to her bedroom on possibly two occasions. When he got there, his daughter told him "he could do anything to her that he wanted as long as she got what she wanted to do." McHenry said his daughter took his hand, put it down the front of her pants on the outside of her underwear, and laid her hand on his crotch on the outside of his clothing. McHenry got scared and left the room. When asked how much further the contact had gone, McHenry responded, "`Well, it didn't go as far as me fingering her or eating her out.'" At that time, Pettijohn had not told McHenry about his daughter's allegation that he performed oral sex on her.
The State filed a pretrial notice of intent to offer evidence of prior wrongs pursuant to K.S.A. 60-455. The trial court ruled the evidence was admissible to show defendant's plan or modus operandi and instructed the jury to that effect before evidence was admitted through testimony from social worker Cindy Bowen, who had worked at Kansas Social and Rehabilitation Services. As part of its final written jury instructions, the court also gave a limiting instruction stating that the jury was only to consider evidence of past crimes for the purpose of proving defendant's plan.
Cindy Bowen testified that in 1998, while she was a social worker in Stafford County, she spoke with the children's maternal grandmother about allegations of physical abuse by McHenry. Bowen went to the grandmother's home and interviewed the three older children. The daughter, who was then 10 years old, told Bowen about three different incidents of sexual abuse that occurred while the family lived in Oklahoma. She stated that in January 1997, while her mother was gone to the grocery store, McHenry asked the boys to go outside and play and then had the daughter go into his bedroom. The two undressed and the daughter stated that McHenry "put his finger up my private and sucked my boob." McHenry also told his daughter, "If you'll stay five more minutes, I'll give you $5."
In May 1997, McHenry and his daughter were riding in his semi truck. He pulled over at a rest area and had her get in the sleeper of the truck and take her clothes off. McHenry also undressed. Again, the daughter stated McHenry "put his finger in my private, sucked my boob." She also stated McHenry
In February 1998, the daughter stated McHenry came into her bedroom, "touched her private" and told her to get undressed. When he went to the bathroom, the daughter got up and went into the room where her brothers were. McHenry followed her, and she told him, "Get the hell away from me." Bowen relayed this information to the authorities in Oklahoma, but to her knowledge a criminal prosecution was never pursued there.
The defense called two witnesses. The first witness was the daughter's school principal who testified about her participation in sports and the times when sports practices were held. The second witness was McHenry's first cousin, Marian Schwab. Schwab testified that the children had stayed with her on one occasion while the parents went Christmas shopping. During that visit, the daughter told Schwab that she could get anything she wanted from McHenry by saying he had "messed with" her or had done something to her sexually. The daughter said her mother and grandmother had told her that was the way you got things. Schwab stated that she told the parents about this. Wendi denied ever having had such a conversation with either Schwab or her daughter. McHenry did not testify.
During closing argument, the defense theory was that whenever the McHenrys' marriage was in trouble, Wendi and her children fabricated allegations of sexual abuse to force McHenry out of the home. Defense counsel also focused on various inconsistencies and contradictions between the family members' testimony. Additional facts regarding the prosecutor's closing argument will be included below.
The jury convicted McHenry of rape, aggravated indecent liberties with a child, and criminal sodomy. McHenry timely appealed.
On direct appeal, the Court of Appeals affirmed McHenry's convictions but remanded for correction of his criminal history by deleting a juvenile adjudication. The flaw did not affect his criminal history score; therefore, no resentencing was necessary. McHenry, Slip op. at 9. Regarding McHenry's substantive arguments on appeal, the Court of Appeals held: 1) the trial court did not abuse its discretion in admitting evidence of the prior sexual abuse incidents; 2) the prosecutor's remarks during closing argument did not constitute misconduct; and 3) the trial court did not abuse its discretion in refusing to order a psychiatric examination of the daughter. This court granted McHenry's petition for review of the first two issues but denied his petition as to the third.
In ruling on the State's motion to present other crimes evidence, the trial court found that the evidence could be admitted on "what some would argue is an additional grounds [sic] under 60-455," i.e., modus operandi. Specifically, the trial court noted the alleged crimes always occurred when "the mother was gone to bingo or for some other reason, and the boys were told to leave."
The Court of Appeals affirmed the trial court's ruling, holding that the similarities between the prior sexual abuse incidents and the charged incidents were sufficient to uphold admission of Bowen's testimony under K.S.A. 60-455. The court found: "The sexual conduct in the incidents underlying the charges was reminiscent of the conduct underlying the earlier accusations, as were the methods by...
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