State v. Money
| Decision Date | 28 April 2023 |
| Docket Number | 124,268 |
| Parties | State of Kansas, Appellee, v. Michael Joseph Money, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Butler District Court; DAVID A. RICKE, judge.
Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.
Darrin C. Devinney, county attorney, Cheryl M. Pierce, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before HURST, P.J., BRUNS and SCHROEDER, JJ.
Michael Joseph Money was convicted by a jury of abuse of a child in violation of K.S.A. 2018 Supp. 21-5602(a)(3). At trial, the State presented evidence that he bound his 12-year-old son with electrical tape or a similar substance for approximately two hours and hit him multiple times with a piece of wood. Although Money does not believe his actions constituted abuse of a child, he does not deny that he committed these acts. The jury also convicted Money of possession of methamphetamine and possession of drug paraphernalia. However, he does not appeal those convictions. Finding no reversible error, we affirm Money's conviction for abuse of a child.
On the evening of January 29, 2019, Money informed the principal of his son's middle school that his 12-year-old son had confessed to stealing property and that it was located in his locker at school. The next morning, the principal checked the boy's locker for the stolen items but found nothing. The principal then called the boy into her office to talk to him about the allegations made by his father, and he told the principal that he did not have the stolen property.
During the conversation in the principal's office, the principal noticed the boy rubbing his arms and saw a sticky black substance around the boy's wrists. The principal asked him what was on his wrists, and he replied that it was from tape that his dad used to restrain him. The boy then showed the principal that he had the same sticky substance around his ankles. He also told the principal that he confessed to taking the property so that his father would stop hitting him. After the meeting ended, the principal immediately reported the suspected child abuse to the police.
Detective Scott Roberts of the El Dorado Police Department responded to the middle school and spoke with the school resource officer regarding the boy's statements. Detective Roberts then interviewed Money's son at the school, and he described having been restrained to a table by his father with black electrical tape for a lengthy period of time. He further indicated that while he was restrained on the table, his father hit him with a board on his back, buttocks, and the back of his legs. He told Detective Roberts that his father tied him up because he suspected him of stealing.
Detective Roberts observed redness around the boy's wrists. He also noticed black smudges around the boy's wrists and ankles. However, he did not see any evidence of bruising or other injuries. Following the interview, Detective Roberts took the boy and his two younger siblings into protective state custody. The three children were transported to the Sunlight Child Advocacy Center where they were interviewed about the incident and the conditions in their home.
Money agreed to come into the police department for an interview with Detective Roberts. The interview was video recorded with Money's consent. The video was later admitted into evidence and played for the jury at trial. During the interview, Money told the detective that he had been having a lot of problems with his son stealing things and had tried a variety of things to get him to stop. After these efforts proved to be unsuccessful, Money decided to institute what he called a "scared straight" program with his son.
Money told Detective Roberts that part of the "scared straight program was to bind [his son's] arms and wrists with . [an] unknown rubbery substance that had fallen off of a KG&E truck that had driven by his front yard." Money also admitted hitting his son with a piece of wood. He explained that the board he used to strike his son "was approximately 100 years old, and splintered if it was barely hit on anything."
Money described restraining his son's wrists and ankles and threatening to swat him with the board. According to Money, his goal was to scare his son into thinking he was going to be hit with the board, but that he "hardly got a swat in." Money indicated that he understood there were lines he could not cross in punishing his son. Detective Roberts told Money that it would have been "okay" if he had just swatted his son. But that he was concerned about the allegation that the boy had been tied up and hit with a board.
On January 31, 2019, Rebecca Munger with the Sunlight Child Advocacy Center interviewed the 12-year-old and his siblings. During an interview, the boy confirmed that his father had tied him up with black electrical tape and had hit him more than 20 times with a large board. He told Munger that he was tied up for about two hours. Specifically, the boy explained that the incident began around 4 p.m. when he got home from school and lasted until around 6 p.m. when his father had to get ready to go to a band concert for one of his other children.
During her interview, one of Money's other children told Munger that there was a camera in the room where her father had tied up her brother. She indicated that her father had covered the camera with his hat during the incident, and she said that her father had threatened to hit her brother more than 100 times, but he did not do so. She also reported that she knew about the black electrical tape used on her brother and saw her father tie him to a table and hit him with a board. Based on the information obtained by the police, a search warrant was obtained and the camera with a DVR was found. The data retrieved from the DVR corroborated the daughter's report that her father had covered the camera with his hat during the incident. During the search of Money's house, the police also seized a bag of methamphetamine and a glass pipe.
On April 30, 2019, the State charged Money with: (1) one count of abuse of a child based on cruel and inhuman corporal punishment; (2) possession of methamphetamine with intent to distribute; (3) possession of drug paraphernalia with intent to use; (4) criminal use of weapons; and (5) aggravated intimidation of a witness. The district court commenced a four-day jury trial on May 4, 2021. At trial, the district court dismissed the charges of possession of a weapon and aggravated intimidation of a witness.
During the trial, the State presented nine witnesses and introduced more than 30 exhibits that were admitted into evidence. These exhibits included the video of the police interview of Money, videos of the interviews of the 12-year-old boy and one of his siblings, and photographs showing the marks left on the boy's wrists and ankles the day following the incident. In addition, the exhibits included several items found in the home during the execution of the search warrant.
At trial, the boy testified that he had lied when he told the principal, Detective Roberts, and Munger that his father had hit him. He also testified about a letter he had written in which he claimed that he missed his father and wanted to go home. Further, the detective identified a photograph of a piece of wood and testified that Money had pointed it out and identified it as the wood he used to hit his son. After the State rested, Money exercised his right not to testify and presented no evidence at trial.
After considering the evidence presented at trial, the jury convicted Money of abuse of a child, possession of methamphetamine, and possession of drug paraphernalia. Subsequently, Money filed a motion for a new trial, which was denied by the district court. At Money's sentencing hearing, the district court denied his motion for dispositional departure but granted his motion for durational departure. Ultimately, the district court sentenced Money to 32 months in prison to be followed by 24 months of postrelease supervision.
Thereafter, Money filed a timely notice of appeal as to his abuse of a child conviction. He does not challenge his other two convictions.
The parties have identified five issues on appeal. First, whether the district court erred by failing to give an unrequested jury instruction on the affirmative defense of appropriate parental discipline. Second, whether K.S.A. 2018 Supp 21-5602 is unconstitutionally vague. Third, whether the prosecutor committed reversible error during her closing argument. Fourth, whether the State presented sufficient evidence to support Money's conviction for abuse of a child. Fifth, whether cumulative errors require reversal of Money's abuse of a child conviction.
Money contends that the district court erred in failing to give a jury instruction regarding the affirmative defense of parental discipline. It is undisputed that Money did not request that the district court give a parental discipline instruction to the jury. Because Money did not request a parental discipline instruction at trial, we review the district court's failure to give the instruction for clear error. K.S.A. 2022 Supp. 22-3414(3); State v Tahah, 302 Kan. 783, Syl. ¶ 5, 358 P.3d 819 (2015).
A district court's failure to give a jury instruction is clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred. K.S.A. 2022 Supp. 22-3414(3); State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018). In other words, Money has the burden...
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