State v. Olsman
| Decision Date | 04 September 2020 |
| Docket Number | No. 120,119,120,119 |
| Citation | 58 Kan.App.2d 638,473 P.3d 937 |
| Parties | STATE of Kansas, Appellee, v. Matthew Allen OLSMAN, Appellant. |
| Court | Kansas Court of Appeals |
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Warner, J., and Lahey, S.J.
A jury convicted Matthew Allen Olsman of one count of attempted rape and one count of kidnapping. In this appeal, he contends: (1) There was insufficient evidence to support his conviction for kidnapping; (2) the district court erred in not allowing him to call the victim's sister as a witness to testify about the victim's reputation for dishonesty; (3) the district court erroneously instructed the jury on kidnapping; (4) the State committed prosecutorial error in closing argument; (5) the district court erred in denying his motion for new trial; and (6) cumulative error. For the reasons set forth below, we affirm the attempted rape conviction but reverse the conviction for kidnapping.
In December 2015, J.P. lived in Howard, Kansas, near Olsman, whom she had briefly dated in high school many years prior. J.P.'s daughter often played with the daughter of Olsman and his wife, but there was no contact between the adults. On December 6, 2015, J.P. sent Olsman the first of many text and Facebook messages the two would exchange that day. She asked if he could jumpstart her car. Olsman agreed but requested food in exchange. After J.P. prepared a casserole, she and her two-year-old son took it over to Olsman's house. After Olsman let her in his mobile home, J.P. put the casserole in the kitchen then sat in the living room and engaged in conversation with Olsman. He told J.P. that his wife was gone for a few weeks.
After talking with Olsman for 10 or 15 minutes, J.P. told Olsman she needed to go home and started walking toward the front door. Olsman grabbed J.P.'s right forearm and said, "[L]et's bring up old times." J.P. took this to mean Olsman was referring to prior sexual encounters when they dated in high school. She told Olsman "no" and "stop." But Olsman picked J.P. up underneath her arms, "bearhugged" her, and carried her down the hallway into his bedroom. Olsman threw J.P. onto the bed and climbed on top of her. Olsman grabbed at J.P.'s shirt and started trying to kiss her. J.P. told Olsman to stop, but he did not. Olsman lifted up J.P.'s shirt and bra, exposing her breasts. He started kissing J.P.'s neck and breasts then started reaching down her pants. At that point, J.P. used her fingernails to claw Olsman's back beneath his shoulder blades, trying to get away from him. However, Olsman did not stop; according to J.P., he put his hand down her pants and put his finger inside her vagina, to which she did not consent.
As J.P. continued telling Olsman to stop, J.P.'s son began hitting Olsman, telling him, J.P. eventually received a call from her son's father, and Olsman allowed her to sit up to answer the phone. He instructed her to answer the phone and say she would call him back. J.P. did so and then tried to run out of the room, but Olsman grabbed her by the waist, threw her back onto the bed, and climbed back on top of her. J.P. bit Olsman on the shoulder. He told her he wanted her to come back later that night. At first, J.P. told Olsman no, and he continued to hold her down. After she promised she would come back, Olsman let J.P. get up and leave the house with her son.
After J.P. left the residence, Olsman called her and told her not to tell anyone what happened. J.P. told Olsman to stop calling and texting her but asked if he would still come over and jumpstart her vehicle. Olsman came over, jumpstarted J.P.'s vehicle, and after doing so, took J.P.'s phone from her hand and deleted some of the text messages between the two. J.P. then drove to see her boyfriend, Michael Hamilton. On the way, she called her son's father and told him what happened. He suggested she call the police when she got to Hamilton's house. When she arrived, J.P. told Hamilton what happened, and Hamilton advised her to call the police. J.P. contacted the Elk County Sheriff's Department and spoke to the City of Howard Police Chief Jetta Osburn, who instructed J.P. to come to the sheriff's office.
J.P. met with Chief Osburn, provided a statement, had pictures taken, and agreed to submit to a sexual assault nurse's exam (SANE). Chief Osburn drove J.P. to Wichita where SANE nurse Tina Peck performed the exam. J.P. told Peck what happened, and Peck took swab samples from J.P.'s genital area, fingertips, neck, and left breast, along with fingernail scrapings and a buccal swab. Peck noticed an abrasion on J.P.'s right wrist but no injuries to her genital area. The KBI performed forensic testing of the swabs collected during the SANE exam. Olsman's DNA was present in the swabs from the right fingernail scrapings, left neck swab, and left breast swab.
While J.P. was at the SANE exam, Deputy Sheriff Dave Oehm and another deputy went to Olsman's house and asked if he would come to the sheriff's office to discuss J.P.'s allegations. Olsman agreed but requested a ride because he had been drinking alcohol; the other deputy gave Olsman a ride. At the sheriff's office, Olsman agreed to waive his rights under Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and speak with the deputies. Olsman initially denied anything occurred. He offered several conflicting accounts of how the scratches on his back were caused. First, he claimed they were from his wife. Then, he claimed they happened because he fell on his back onto some gravel. He told a different officer he got the scratches at work. But Olsman later told Oehm they happened when he "fell taking a piss."
Olsman was unable to explain how J.P. knew he had scratches on his back but agreed to have photographs taken of the scratches. While the photographs were being taken, Olsman said, "[I]f you see a bite mark on my arm it's from my wife." Olsman later claimed he and J.P. kissed in his home and J.P. scratched him and bit his arm while they were doing so. But Olsman denied anything occurred in his bedroom and claimed J.P. initiated things. Olsman also denied he exchanged any messages with J.P. before admitting he had contacted her on Facebook Messenger earlier that day.
The State charged Olsman with one count of aggravated kidnapping, one count of rape, and one count of interference with a law enforcement officer. The interference with a law enforcement officer charge was subsequently dismissed at the preliminary hearing.
Olsman did not testify at trial. He proffered evidence from J.P.'s sister, C.B., regarding J.P.'s reputation for dishonesty. After a proffer of the evidence outside the presence of the jury, the district court held it was inadmissible for lack of foundation.
The jury convicted Olsman of the lesser included crimes of kidnapping and attempted rape. Olsman filed a motion for new trial, which the district court denied at sentencing. The district court imposed concurrent sentences of 55 months' imprisonment for both counts and lifetime postrelease supervision for the attempted rape conviction.
Olsman timely appealed his convictions and sentences. Additional facts are set forth as necessary herein.
Olsman argues the State did not present sufficient evidence to support his conviction for kidnapping. Specifically, Olsman asserts the confinement of J.P. was incidental and inherent in the attempted rape and it had no independent significance outside of being part of the attempted rape.
" State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).
The State charged Olsman with kidnapping J.P. in violation of K.S.A. 2015 Supp. 21-5408(a)(2), which provides: "Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent ... to facilitate flight or the commission of any crime ." (Emphasis added.) In its complaint, the State specifically alleged Olsman kidnapped J.P. to facilitate the crime of rape. The State's charge of rape was that Olsman knowingly engaged in sexual intercourse with J.P. without her consent and while she was overcome by force or fear, a violation of K.S.A. 2015 Supp. 21-5503(a)(1)(A). Accordingly, the use of force to take or confine J.P. for purposes of kidnapping overlaps with the force or fear required to overcome the victim for purposes of rape.
In support of his argument, Olsman relies on State v. Buggs , 219 Kan. 203, 547 P.2d 720 (1976). There, the victims, a store owner and her son, "were accosted outside the [store], at the fringe of the parking lot, where they were subject to public view." 219 Kan. at 216, 547 P.2d 720. Buggs and his accomplice then forced the victims back inside the store. Once inside, Buggs and his accomplice demanded and took money from the victims, and Buggs raped the store owner. Our Supreme Court determined that "a kidnapping statute is not reasonably intended to cover movements and confinements which are slight and ‘merely incidental’ to the commission of an underlying lesser crime." 219 Kan. at 215, 547 P.2d 720.
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