State v. Raskie

• Decision Date: 17 February 2012
• Docket Number: No. 102,847.,102,847.
• Parties: STATE of Kansas, Appellee, v. Jeffrey D. RASKIE, Appellant.
• Court: Kansas Supreme Court

269 P.3d 1268

293 Kan. 906

STATE of Kansas, Appellee,

v.Jeffrey D. RASKIE, Appellant.

No. 102,847.

Supreme Court of Kansas.

Feb. 17, 2012.

Syllabus by the Court

1. K.S.A. 60–404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.

2. Under K.S.A. 60–404, a contemporaneous objection must be made to evidentiary based claims of prosecutorial misconduct in order to preserve the issue for appellate review.

3. In closing arguments, a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and the controlling law.

4. Constitutional grounds for reversal asserted for the first time on appeal are not properly before an appellate court for review.

5. The failure to cite legal authority or present an argument to support a contention constitutes a waiver of the argument.

6. When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.

7. PIK Crim.3d 51.10, which instructs a jury to not consider the penalty, does not shift the burden of proof.

8. The cumulative-error doctrine does not apply if there is no error or only one error.

9. It is appropriate to vacate a sentence and remand for further proceedings where the defendant presented arguments regarding the cruel and unusual nature of a Jessica's Law hard 25 life sentence but the district court failed to make findings as required by State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950 (1978).

Jessica J. Travis, of the Travis Law Firm, LLC, of Olathe, argued the cause, and was on the briefs for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

Defendant Jeffrey D. Raskie was convicted of two counts of aggravated indecent liberties with a child. On appeal he attacks his convictions on several grounds, arguing (1) the district court erred in admitting evidence of certain molestation “grooming” items—photographs, a vibrator, and a corset—that were not used by Raskie or the victim during the charged incidents; (2) the prosecutor committed misconduct by presenting the “grooming” evidence and making comments during closing argument about Raskie's lurid intent; (3) the district court erred in admitting evidence of Raskie's postings on a social networking website because the State failed to lay a proper foundation and because this evidence constituted hearsay; (4) the district court erred in denying Raskie's motions for judgment of acquittal “due to witness inconsistencies and lack of independent evidence”; (5) the district court erred in giving Instruction No. 5, which mirrored PIK Crim.3d 51.10 (penalty not to be considered by the jury), because it shifted the burden of proof to the defense; and (6) he was denied a fair trial based on cumulative error. We conclude that Raskie either failed to preserve or waived his evidentiary issues and the district court did not err in denying the motions for judgment of acquittal or in giving PIK Crim.3d 51.10. The only issue on which we find error is Raskie's prosecutorial misconduct claim relating to closing argument. We conclude this error does not warrant reversal of Raskie's convictions, however.

Raskie also attacks his sentence, arguing his hard 25 life sentence constitutes cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. He argues, in part, that the district court failed to make adequate findings and requests his sentence be vacated and the case be remanded for additional findings. We agree with him on this point.

Facts and Procedural Background

In October 2000, Raskie married his wife, S.R., who had a 7–year–old daughter, C.R., from a previous relationship. Raskie adopted C.R. the following month. During the marriage, the couple had two more children together. Eventually, Raskie and S.R. began experiencing problems in their marriage, mostly related to finances, and in May 2006 the couple separated. By court order, the couple had a shared child-custody arrangement.

On the afternoon of Valentine's Day 2007, which was a day the children were to be with Raskie for the evening and overnight, C.R. told a school counselor she was being sexually abused by Raskie. The counselor called S.R., who in turn called C.R. and said, “I know that you don't like going to your dad's house. Can you please tell me what's going on?” At first C.R. was calm and indicated that she “didn't want to go because he was mean to her. He made her do chores and things like that.” Then C.R. got more agitated and upset and said, “And he shows me his penis.” S.R. made arrangements for C.R. to stay elsewhere that night.

The next day, S.R. took C.R. to the Olathe Police Department, where they spoke with Detective Kenton Thompson. Thompson suggested taking C.R. to Sunflower House, Inc., a child abuse prevention center, for a physical examination and a forensic interview. S.R. took C.R. to Sunflower House on February 16, 2007, where C.R. was interviewed by a forensic interviewer outside the presence of her mother. Through video monitoring, Thompson observed the interview, in which C.R. indicated that Raskie exposed his genitals to her; showed her pornography; touched her on the breasts and vagina, both over and under her clothing; bent her over a bed and used his penis to penetrate her anus; touched her with vibrators externally on her vagina and anus; bought her lingerie, such as corsets and thong panties; and videotaped her while she showered. C.R. indicated this behavior started when her mother began taking college classes at night. According to C.R., the abuse continued even after her parents had separated. During C.R.'s physical examination, she complained of both physical and sexual abuse.

At some point after the Sunflower House interview, Detective Thompson indicated to S.R. that C.R. had been sexually abused. Thereafter, S.R. took steps to modify the child-custody arrangement and eventually kept the children with her full time.

Officers continued their investigation. Among other things, they monitored Raskie's computer contact with C.R. through C.R.'s account on Myspace, a social networking website, and the officers subpoenaed Myspace to get information on Raskie's account. Also, about a month after the Sunflower House interview, Thompson interviewed C.R., primarily to get information to use in obtaining a search warrant of Raskie's residence. C.R. described a plastic tub next to Raskie's bed, where he kept some vibrators. C.R. also described thong panties and a corset, which were kept in her bedroom dresser at Raskie's residence. In addition, C.R. directed the detective to the video camera in the headboard of Raskie's bed. And C.R. described a photograph she had seen at Raskie's residence, depicting a woman's breast pierced with a nipple ring.

At trial, C.R., who was 15 years old at the time, testified against Raskie. She testified that Raskie started touching her inappropriately when she was around 10 years old. She indicated that every night her mom attended a class, Raskie would come into her room. The first time, C.R. was asleep in her bed when she awoke to find Raskie touching her vagina over her clothing. Over time, the touching progressed. Raskie touched C.R.'s breasts and vagina under the clothing. “Then one day, he started using a vibrator” under the clothing. C.R. described a “skinny purple” vibrator and a “fat purple” one. She also described other vibrators, including a small “gold” one, about which C.R. said, “He tried giving it to me as a present.” C.R. testified about other presents from Raskie, including a “glass vibrator,” a “sucker that was in the shape of a penis,” thong panties, and corsets. C.R. said she asked for one of the corsets “[b]ecause my friends had them that they wore like under their clothes.” When asked if this was “more like a fashion trend than a sexual thing,” C.R. said, “Yes.” C.R. had another purple corset that she did not ask for. She testified that Raskie bought it for her from Victoria's Secret. She thought he gave it to her on Valentine's Day, but she was not sure.

C.R. testified that on a regular basis Raskie would put his penis and testicles in her face. She testified about another incident where, after her parents had separated, she and Raskie were arguing and she “got pushed over the bed.” Then, Raskie “put his penis in [her] butt.” C.R. testified that it went inside her body and hurt her “stomach and [her] butt.” Raskie stopped because she was elbowing him and fighting to get him off of her. C.R. said this incident happened before her 13th birthday, but Raskie continued to touch C.R.'s vagina and to use a vibrator on her after she turned 13.

C.R. also testified that she had to shower in Raskie's master bathroom because the “hallway bathroom was broken.” One time she noticed a red light shining through the shower's glass door. C.R. got out of the shower, followed the light, and discovered a video camera on the headboard in the master bedroom. When C.R. looked at the recordings, she saw videos of herself naked in the shower. She erased the recordings, and Raskie got angry at her. After that, Raskie tried to hide the video camera under...