State v. Myatt

• Decision Date: 05 April 1985
• Docket Number: No. 55870,55870
• Citation: 237 Kan. 17,697 P.2d 836
• Parties: STATE of Kansas, Appellee, v. John E. MYATT, Appellant.
• Court: Kansas Supreme Court

Page 836

697 P.2d 836

237 Kan. 17

STATE of Kansas, Appellee, v. John E. MYATT, Appellant.

No. 55870.

Supreme Court of Kansas.

April 5, 1985.

Syllabus by the Court

1. The two-part test for determining whether admission of out-of-court statements of a witness who does not testify at trial violates the defendant's right to confrontation are: First, the witness must be unavailable; second, the witness's out-of-court statements must have "adequate indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Following Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

2. K.S.A. 60-460(dd), authorizing an additional exception to the general rule excluding hearsay with respect to the extrajudicial statements of children, is not, on its face, violative of the confrontation clause of the Sixth Amendment. The exception allows for admission of the hearsay statements only if the two prongs of Ohio v. Roberts 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), are met. First, the trial judge must hold a hearing to determine whether the child is disqualified as a witness. If the trial judge finds the child is "unavailable," he must determine if the statement is "apparently reliable" and "the child was not induced to make the statement falsely by use of threats or promises." Through the use of the words "apparently reliable" it is implicit that the judge must find the evidence contains "particularized guarantees of trustworthiness."

3. A child is considered to be unavailable for constitutional purposes if the trial court determines that the child is disqualified to testify.

4. Under K.S.A. 60-460(dd) the determination of reliability and trustworthiness must be made on a case-by-case basis. Such factors as the age of the child; his or her physical and mental condition; the circumstances of the alleged event; the language used by the child; the presence of corroborative physical evidence; the relationship of the accused to the child; the child's family, school, and peer relationships any motive to falsify or distort the event; and the reliability of the testifying witness can be examined.

5. The rules of evidence are to be applied at the preliminary hearing. Accordingly, the disqualification and reliability hearings of K.S.A. 60-460(dd) are to be held prior to the preliminary hearing. Failure to do so may be harmless error if the hearings are held prior to trial and it is determined that the statements are admissible.

6. The State need not prove the precise time a crime occurred unless it is an essential element of the offense. The time of the offense is not an essential element of indecent liberties with a child. Where the evidence at the preliminary hearing tends to place the occurrence of the offense within a certain time frame, the trial court's denial of a bill of particulars stating the precise time is not prejudicial to the defendant.

7. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.

8. The venue of an offense is jurisdictional. The State must prove that the offense occurred in the county where it is being prosecuted. Where the evidence shows that the crime occurred in a particular home located within the county where the case is being tried, it is sufficient to establish venue in that county.

Ralph J. DeZago, Public Defender, argued the cause, and Christopher E. Biggs, of Junction City, was on the brief for appellant.

Lloyd R. Graham, Asst. Co. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

SCHROEDER, Chief Justice:

John D. Myatt (defendant-appellant) appeals from his conviction of indecent liberties with a child. K.S.A. 21-3503. The Court of Appeals affirmed the conviction in an unpublished opinion filed September 13, 1984. 688 P.2d 747. We accepted review in order to examine the constitutionality of K.S.A. 60-460(dd).

The defendant had been dating the child victim's mother since January of 1981. Although he did not live with the child's mother, he did have sexual relations with her and occasionally spent the night at her home. The mother left her three children alone with the defendant at various times. The victim, a six-year-old girl, was the oldest child. She had two younger brothers.

In mid-September 1982, the defendant and the mother both contracted gonorrhea. The child was diagnosed in the first week of October as having gonorrhea. When questioned, she told both an SRS caseworker, Joe Johnson, and a police investigator, Carlos Roman, that the defendant had hurt her in her vaginal area. By pointing to September 5 on the calendar, she indicated to Officer Roman that this "touching" had occurred on that date. The child also told Officer Roman that she was afraid to tell what happened in front of her mother and asked him not to say anything to her.

In November of 1982, the defendant was charged with one count of indecent liberties with a child. The complaint alleged that the act took place in Geary County on or about September 5, 1982. The original complaint alleged that the child had been raped. When the examining doctor determined that the child's hymen was intact, the complaint was amended to allege "lewd fondling or touching." Evidence revealed that gonorrhea is readily transmissible through sexual contact short of intercourse. There was also evidence that gonorrhea may be transmitted through dirty bath towels. The mother testified that she sometimes shared a towel with her daughter.

The defendant, having waived a jury trial, received his bench trial in June 1983. The child did not testify. Both parties had stipulated prior to trial that the child was disqualified to testify. During the trial, the court conducted a hearing pursuant to K.S.A. 60-460(dd) to determine whether the child's out-of-court statements made to Joe Johnson and Carlos Roman were reliable. Based on testimony of the child's psychiatrist, the trial judge determined that the statements were reliable and they were admitted, through the testimony of Carlos Roman and Joe Johnson, under K.S.A. 60-460(dd).

The defendant denied committing the offense. He offered an alibi that he was on duty at Fort Riley on September 5, and did not contract gonorrhea until September 15.

The trial court found the defendant guilty, and specifically found that the offense had occurred around the third week of September rather than on September 5. The court sentenced the defendant to four to fifteen years.

The defendant raised eight issues on appeal. Two of the issues challenged the constitutionality of the new hearsay exception, K.S.A. 60-460(dd). In addition, he alleged numerous errors by the trial court. In affirming the defendant's conviction, the Court of Appeals found the statute constitutional and the trial court free from error.

K.S.A. 60-460(dd) provides an exception to the rule against hearsay:

"Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:

....

"(dd) In a criminal proceeding or in a proceeding to determine if a child is a deprived child under the Kansas juvenile code or a child in need of care under the Kansas code for care of children, a statement made by a child, to prove the crime or that the child is a deprived child or a child in need of care, if:

"(1) The child is alleged to be a victim of the crime, a deprived child or a child in need of care; and

"(2) the trial judge finds, after a hearing on the matter, that the child is disqualified or unavailable as a witness, the statement is apparently reliable and the child was not induced to make the statement falsely by use of threats or promises.

"If a statement is admitted pursuant to this subsection in a trial to a jury, the trial judge shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, any possible threats or promises that might have been made to the child to obtain the statement and any other relevant factor."

The defendant contends that K.S.A. 60-460(dd) is unconstitutional as it violates both the Sixth Amendment right to confront witnesses and the Fourteenth Amendment rights to due process and equal protection. He further contends that even if the statute is constitutional on its face, the trial court improperly applied the statute and allowed admission of unreliable hearsay evidence in violation of his right to confront witnesses.

The Court of Appeals, in an unpublished opinion of this case, upheld the constitutionality of the statute in September of 1984. In November 1984, the Court of Appeals published an opinion which also upheld the statute's constitutionality. See State v. Pendelton, 10 Kan.App.2d 26, 690 P.2d 959 (1984). The constitutionality of this statute has not heretofore been determined by this court.

In 1982, when the Kansas legislature created the child-victim hearsay exception, it became the 30th exception to the rule against admitting hearsay as evidence in trial proceedings. Kansas was one of the first states to enact this type of statute. Research reveals that at...