State v. Parker, 105,558.

• Decision Date: 10 August 2012
• Docket Number: No. 105,558.,105,558.
• Citation: 282 P.3d 643
• Parties: STATE of Kansas, Appellee, v. Paul H. PARKER, Jr., Appellant.
• Court: Kansas Court of Appeals

282 P.3d 643

STATE of Kansas, Appellee,

v.Paul H. PARKER, Jr., Appellant.

No. 105,558.

Court of Appeals of Kansas.

Aug. 10, 2012.

Syllabus by the Court

1.A district court does not abuse its discretion in denying a request to use state funds to obtain a public-opinion poll for the purpose of seeking a change of venue based on pretrial publicity when the court has decided to take extra precautions during jury selection to seat a fair and impartial jury and the court did not experience substantial problems in the jury-selection process.

2.In considering whether a district court has abused its discretion in denying a motion to change venue based on pretrial publicity, an appellate court considers a number of factors, including the ease with which the jury was selected, the degree to which publicity had circulated to other parts of the state where the trial could have been held, the challenges exercised by the defendant during jury selection, whether government officials contributed to the pretrial publicity, the severity of the offense, and the size of the area from which jurors were drawn.Media publicity alone is not enough to establish prejudice; the defendant has the burden to show that prejudice exists in the community, not as a matter of speculation but as a demonstrable reality.

3.In this case, where a jury was selected without undue difficulty and the defendant did not have any challenges for cause to a specific juror that were denied, the district court did not abuse its discretion in denying the motion to change venue.

4.On the facts of this case, the evidence was sufficient to show that the rape victim didn't consent to the defendant's acts, that she was overcome by force, and that she was physically powerless to resist.

5.When a statute defines a crime through alternative means, either of which might be committed, the jury may convict without agreement on which of the means took place so long as there is sufficient evidence to support each of the means.But a case is an alternative-means case only where a statute creates materially different ways of committing the crime, i.e., two or more truly distinct ways of committing the offense.When the rape statute provides that rape may be accomplished by penetration of the female sex organ by a finger, the male sex organ, or any object, it does not create alternative means of committing a rape.Rather, a rape is simply the act of penetration by any object (whether a finger, the penis, or some other object) when accompanied by the other legal elements that constitute a rape.

6.A hospital room occupied by a patient constitutes a structure for the purpose of an aggravated-burglary charge.Like other structures, the room has a door, is temporarily leased to an occupant, is designed to exclude others, and is intended to protect the occupant's privacy and security.

7.One of the recognized exceptions to the need for a search warrant occurs when an officer has probable cause combined with exigent circumstances.In this case, where the suspect had been apprehended and identified as having committed a rape in the hospital by identified witnesses and he had substances on his hands that could have been wiped off—even while handcuffed—before a warrant was obtained, the officer could take a swab sample for DNA testing from the suspect's hand without first obtaining a search warrant.

Appeal from Saline District Court; Rene S. Young, Judge.

Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant.

Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., PIERRON and LEBEN, JJ.

LEBEN, J.

Paul H. Parker Jr. appeals his convictions for rape and other charges because he says the district court should have moved his trial from Salina to another location due to pretrial publicity.He also contends that the district court should have ordered a public-opinion survey from public funds in support of his request to move the trial.

But an appellate court reviews these rulings only for an abuse of discretion.And even though the rape of a 94–year–old hospitalized woman understandably received widespread media attention, the district court instituted special measures for jury selection that resulted in the selection of a fair and impartial jury without undue difficulty.We therefore find no abuse of discretion.

Parker also claims that the district court made several other errors during his trial.We have considered each of them but find no error, so we affirm Parker's convictions.

Factual Background

To set the stage for our discussion of the legal issues, we first must go through the facts in some detail.Because we must take the facts in the light most favorable to the jury's verdict on some issues, such as whether the evidence was sufficient to convict Parker, we will begin with the version of events presented by the victim, investigating officers, and witnesses other than the defendant.Later, we will also review what the defendant said took place.

The events relevant to this case began on the evening of February 20, 2010, at the Salina Regional Health Center.E.A.—a 94–year–old woman—was recovering from surgery.At the time, she couldn't walk without assistance and had substantial swelling in her left leg.During her surgery, surgeons had made incisions in her groin, and she felt “very weak.”

After visiting hours were over, a man that E.A. had never seen before entered her room.She described him as heavyset, not terribly tall, “black, but not black,” with dark skin and closely cut hair; she would later identify that man as Parker.Parker sat down in E.A.'s room and chatted with her.E.A. assumed that Parker was a therapist, although Parker never said that he was.

After a nurse left the room, Parker got up and closed the door.Parker sat on the edge of the bed and rubbed E.A.'s swollen left leg.Then he touched, agitated, and penetrated E.A.'s vagina with his finger.E.A. testified that the contact hurt and was rough.She denied giving Parker any permission to penetrate her with his finger.

Parker then told E.A. to get up and lie on her stomach.E.A. protested, saying, “This isn't therapy.”Parker tried unsuccessfully to penetrate her with his penis.Parker then exposed himself and told E.A. to fondle his penis, but she refused.Parker told E.A. to turn over on her hands and knees, and he unsuccessfully tried again to penetrate her in that position.As E.A. described it, Parker then “mounted [her].”E.A. collapsed under Parker's weight screaming, “You're killing me.”

After collapsing, E.A. was lying flat on her stomach, and Parker was lying on top of her.For the third time, Parker tried unsuccessfully to penetrate E.A. with his penis.E.A. denied giving Parker permission to attempt to penetrate her with his penis.

At this point, a nurse entered the room and saw Parker on E.A.'s bed with his pants down.Parker told the nurse that he was from physical therapy and E.A. was his aunt.He jumped to the floor, pulled up his pants, and left the room.

Parker tried to leave the hospital, but he was physically restrained by various members of the hospital staff.Parker calmed down only when officers arrived and handcuffed him.

A sexual-assault nurse examiner swabbed Parker's hands for possible DNA evidence.All four swabs contained significant amounts of E.A.'s DNA.The DNA analyst believed that the large amount of E.A.'s DNA collected from the swabs was more consistent with vaginal secretions than mere skin-to-skin touching.

The same nurse gave E.A. a sexual-assault examination and found extensive bruising in E.A.'s groin area from the surgery and a laceration below her clitoris.

Before trial, Parker filed a motion to change venue, alleging that the extensive pretrial publicity in Salina was so great as to deny him an opportunity for a fair and impartial trial.To support the motion, Parker presented several newspaper articles covering the case—some of which reported on Parker's prior criminal history—along with anonymous reader comments from the Internet.The court denied the motion to change venue.

At a later hearing, the State orally asked the court to reconsider Parker's motion to change venue.The prosecutor expressed a concern that the case would be delayed if a jury could not be selected.After further consideration, the court once again denied the motion; the court said that reasonable measures could be taken to assure a fair and impartial jury.

Parker also filed a pretrial motion for expert services, requesting that the judge order the funding of a public-opinion poll “to sample community sentiment and the likelihood Mr. Parker can obtain a fair trial before an unbiased and impartial jury in Saline County.”The district court denied the motion, remarking that the poll would not be particularly helpful since the court planned to take additional measures in jury selection due to the pretrial publicity and “because the likelihood that those individuals that are polled are going to actually be on the panel that come[s] before the court is unlikely.”In support of the motion, the Board of Indigents' Defense Services (BIDS) submitted an affidavit stating that it did not have the money to fund a public-opinion poll.During the hearing, the district court noted that Parker could proceed with a poll if BIDS chose to fund it or other funds were found that could be used: “[I]f you can get BIDS to agree to pay that, certainly, that's what you all can work out.Or if Mr. Parker or his family can afford to pay for that poll, they can pursue that....Again, if you can get BIDS to pay for it, that's between you and them.”

Written questionnaires sent in advance of trial were among the measures the district court chose to use to help in selecting an impartial jury.The parties agreed to send out the questionnaires to 100 potential jurors.Additionally, the parties...