State v. Pack

• Decision Date: 27 March 2015
• Docket Number: 110,467.
• Parties: STATE of Kansas, Appellee, v. Ronald PACK, Appellant.
• Court: Kansas Court of Appeals

345 P.3d 295 (Table)

STATE of Kansas, Appellee

v.Ronald PACK, Appellant.

110,467.

Court of Appeals of Kansas.

March 27, 2015.

Review Denied Sept. 23, 2015.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.

MEMORANDUM OPINION

PER CURIAM.

Ronald K. Pack appeals his convictions by a jury of two counts of rape of a 9–year–old girl. Pack raises alleged trial errors and sentencing errors. Pack argues the trial court erred by: (1) denying his motion for a psychiatric evaluation of the victim; (2) denying his motion to suppress because the consent to search was involuntary; (3) allowing a verdict form that listed the guilty option above the not guilty option, (4) refusing to give a jury instruction on avoiding sympathy and favoritism; and (5) a combination of these errors resulting in cumulative error. Regarding sentencing, Pack argues Jessica's Law should be declared unconstitutional under both the Kansas and United States Constitutions and the trial court erred in denying his motion for departure. We affirm.

On July 7, 2011, the State charged Pack with two counts of rape of E.F. Prior to trial, Pack filed a motion to suppress claiming his consent to search his house was involuntary. He also filed a motion to have a psychological evaluation conducted on E.F. because of questions about her credibility. The trial court held a full evidentiary hearing and denied both motions.

Pack does not challenge the sufficiency of the facts in this case, but he continues to maintain his innocence. Pack and his longtime girlfriend, Patricia Wylie, lived across the street from Scott and Lisa Cyr. Lisa had two daughters from a previous marriage, 9–year–old E.F. and 6–year–old A.F. Wylie's daughter Rhonda and Rhonda's 6–year–old daughter, Gabriel, often stayed with Pack and Wylie. E.F. and A.F. called Pack, “Ronnie”, and called Wylie, “grandma.” E.F. testified they were both like grandparents. E.F. and A.F. spent a lot of time at Pack's house playing with Gabriel.

E.F. testified that in January 2011, Pack told E.F. to come inside his house while A.F. and Gabriel continued to play in the snow. Pack told E.F. to come into his bedroom because he had a checker board game. Pack told E.F. to lie down and take off her snow clothes because she was tracking snow in the house. Pack took off E.F.'s pants and took something out of the night stand. E.F. testified it was a massager-type of thing and he plugged it in and it rumbled. E.F. testified that Pack put the massager inside her private area. He would take it out and put oil on it with a Q–Tip and then put it back inside her. E.F. testified Pack was wearing a robe, but that she could see his private area.

E.F. testified this occurred a second time in March or April 2011. She was wearing shorts and a T-shirt this time. E.F. and A.F. were playing with Gabriel again. E.F. said she was talking with Pack in his kitchen and she was scratching her back. Pack offered to put lotion on her back and told her to go into his bedroom. Pack had E.F. lay down in the same manner. E.F. testified she was scared and Pack told her that if she told anyone, they would both be in a lot of trouble. E.F. said he used the massager again and did the same thing to her except that he did not use any oils this time. E.F. said Pack was wearing a robe again and that she could see his private area. E.F. told Shawnee County Sheriff's Detective Keith Allen that during the second time, Pack told her he was doing an experiment to “try and get [her] toes to curl.” E.F. testified the situations would stop when she got up and left the bedroom. E.F. testified it was not until July 2011 that she told her mom about what Pack had done because she was afraid for her sister when she saw Pack whispering to A.F. She did not want the same thing to happen to A.F.

Lisa and Scott called the police, and Wichita Police Officer Jonathan Estrada spoke with E.F. E.F. was taken to the hospital for a sexual assault examination and an interview with Det. Allen at the Wichita Police station. At trial, E.F. identified the massager and oils that Pack used on her. E.F. was cross-examined at trial concerning inappropriate things she may have learned from the neighborhood girl, E.V. Lisa Cyr had told E.F. she was not allowed to spend time with E.V. anymore.

Karen Wilson–Diehl, a forensic nurse examiner, testified concerning E.F.'s examination and E.F.'s statements that Pack had put a massager inside her vagina and had rubbed oils on the outside of her vagina. She said it happened in January 2011 and again in March or April 2011. Det. Allen also testified to E.F.'s statements concerning the type and date of Pack's contact with E.F. and use of the massager. Shelly Steadman testified concerning the DNA evidence received from both E.F. and Pack. Steadman testified that from the evidence obtained from the massager, E.F. could not be excluded as a major contributor to the DNA profile.

Pack presented the testimony of Dr. Robert W. Burnett to challenge the interviews and examinations performed on E.F. The defense called Jay D. Sutter to discuss Pack's work record during the time of the offenses. The defense called Michael Baker, Pack's co-worker, to testify that Pack was a person with high integrity and how he would trust Pack with any member of his family. Ronda Hogan, Wylie's daughter, testified about her and her daughter Gabriel's association with Pack and how Gabriel played with E.F. and A.F. all the time. Wylie testified on behalf of Pack and their long-term relationship. Wylie testified about their sexual relationship and Pack's erectile dysfunctional problems for several years prior to 2011. Wylie testified about the vibrators and massagers they had in their bedroom. Wylie also testified concerning her consent to search the house and how it was conducted by the police officers.

The jury convicted Pack on both counts. His motion for a new trial and motion for acquittal were denied. The trial court also denied Pack's request for a departure to the sentencing grid and then a durational departure of that sentence. The court also denied Pack's motion to find his presumed sentence under Jessica's Law to be unconstitutional under the constitutions of both Kansas and the United States. The court sentenced Pack to two life sentences (hard 25) in accordance with Jessica's Law, K.S.A.2010 Supp. 21–4643. Enacted in 2006, Jessica's Law provided a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years for the rape of a child under 14 years of age. K.S.A.2010 Supp. 21–3502 ; K.S.A.2010 Supp. 21–4643. Pack appeals.

Pack first argues compelling reasons existed to justify a psychiatric evaluation of E.F. and the trial court abused its discretion by denying the evaluation. The court found E.F.'s veracity was not sufficiently called into question and there was possible corroborating DNA evidence. However, the court stated the motion was not purely frivolous as it would be if the court found it to be just a fishing expedition.

When examining whether the trial court's denial of a psychological evaluation is proper, we review for an abuse of discretion. A trial court abuses its discretion only when no reasonable person would take the view adopted by the court. State v. Sellers, 292 Kan. 346, Syl. ¶ 1, 253 P.3d 20 (2011).

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. See State v. Berriozabal, 291 Kan. 568, Syl. ¶ 4, 243 P.3d 352 (2010). In determining whether compelling circumstances exist, a district court considers the following nonexhaustive list of factors: (1) whether there is corroborating evidence of the complaining witness' version of the facts; (2) whether the complaining witness demonstrates mental instability; (3) whether the complaining witness demonstrates a lack of veracity; (4) whether similar charges by the complaining witness against others are proven to be false; (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition; and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth. State v. McCune, 299 Kan. 1216, 1231, 330 P.3d 1107 (2014).

Applying these above listed six factors known as the Gregg factors (State v. Gregg, 226 Kan. 481, 489–90, 602 P.2d 85 [1979] ), Pack does not argue E.F. demonstrated mental instability or that she had made similar allegations against others that were proven to be false. Instead, he argues E.F. demonstrated a lack of veracity, the presence of corroborating evidence was weak, the motion was not a fishing expedition, and E.F. was never questioned about whether she knew what it meant to tell the truth. In his motion, Pack only alleged there were questions concerning E.F.'s veracity, there was limited corroborating evidence, and an evaluation was necessary for the trial court to be able to judge E.F .'s competency to testify.

At the hearing on the motion for psychological examination, Scott Cyr, E.F.'s stepfather, testified that before they called the police he wanted to verify some of the facts with A.F. because of the severity of the allegations and to make sure it was not a “fish story.” They also discussed E.F.'s involvement with an older neighborhood girl, E.V. On cross-examination, Cyr said that it was not that E.F. told lies, but that she tended to ramble on and give a lot more details than may be necessary. He said E.F. did not exaggerate any more than a normal child. Jake Lawson, a private detective hired by Pack's former employer, spoke with Cyr. Cyr told Lawson that E.F. had...