State v. Reed

• Decision Date: 08 August 2014
• Docket Number: No. 105,307.,105,307.
• Citation: 332 P.3d 172
• Parties: STATE of Kansas, Appellee, v. Willie E. REED, Appellant.
• Court: Kansas Supreme Court

332 P.3d 172

STATE of Kansas, Appellee,

v.Willie E. REED, Appellant.

No. 105,307.

Supreme Court of Kansas.

Aug. 8, 2014.

Syllabus by the Court

1. In stating the elements of aggravated indecent liberties with a child under the age of 14 in K.S.A. 21–3504(a)(3)(A), the legislaturedid not define the prohibited conduct by identifying body parts that could or could not be fondled or touched. Nor did the legislature specify that there must be skin-to-skin contact or that the offender must use his or her hands to fondle or touch the victim for there to be a violation of the law. Instead, a touch is prohibited if it meets the common meaning of the term “lewd,” i.e., if the touch is sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; or indecent, obscene, or salacious. In considering if a touch is lewd, a factfinder should consider whether the touch tends to undermine the morals of a child and is so clearly offensive as to outrage the moral senses of a reasonable person.

2. Under the facts of this case, a rational factfinder could find the defendant's touching of two 8–year–old female victims—acts that included the defendant rubbing his genital area against the girls' buttocks in what was described as a “humping” motion and touching one girl on the buttocks—tended to undermine the girls' morals and to outrage the moral sense of a reasonable person, even though everyone was fully clothed.

3. K.S.A. 21–3504(a)(3)(A) prohibits lewd touching with the intent to arouse the offender, the child, or both; actual arousal or satisfaction of the sexual desires of either participant is not necessary.

4. Under the facts of this case, the defendant's act of rubbing two 8–year–old girls' buttocks with his genitalia, by its very nature, suggests a sexual intent.

5. An issue not briefed by an appellant is deemed waived and abandoned.

6. 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. The trial judge must be provided the specific objection, so the judge may consider as fully as possible whether the evidence should be admitted. Thus, appellate review is precluded if a party objects to evidence on one ground at trial but then asserts a different ground on appeal.

7. Prior statements by a witness are generally material and probative, i.e., relevant, because the consistency or lack thereof between the statement and the testimony either corroborates or undercuts the witness' credibility.

8. Raising new grounds for an evidentiary objection in a motion for new trial is too late to satisfy the timely objection requirement of K.S.A. 60–404.

9. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. While there are exceptions to this general rule, a party waives and abandons those exceptions by failing to argue in the party's appellate brief for their application.

10. Under the holding in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the State may not attempt to impeach a defendant's credibility by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent as recognized in Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966).

11. A prosecutor's reference to a defendant's prearrest silence is not a violation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

12. The cumulative error doctrine does not apply if no error or only one error supports reversal.

13. Appellate courts do not make factual findings but review those made by trial judges.

14. A defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the trial judge are sufficient to support appellate argument by filing of a motion invoking the judge's duty under Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265), if necessary.

Ronald L. Jurgeson, of Ronald L. Jurgeson, LLC, of Lee's Summit, Missouri, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Willie E. Reed was convicted by a jury of two counts of aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 21–3504(a)(3)(A). The offenses, which occurred approximately 2 years apart, involved two 8–year–old–girls, C.T. and A.R. The sentencing judge imposed concurrent life sentences without the possibility of parole for 40 years. Now Reed appeals, raising five issues relating to alleged trial errors and one issue relating to sentencing: (1) Was the evidence sufficient to support Reed's convictions; (2) did the trial judge err by admitting into evidence two handwritten notes, one from each victim describing her version of events; (3) did the trial judge err by admitting into evidence the victims' recorded statements; (4) during Reed's testimony, did the trial judge err by allowing the prosecutor to ask questions which, according to Reed, pointed to his postarrest silence; (5) even if no single error warrants setting aside Reed's convictions, does the cumulative error doctrine entitle Reed to a new trial; and (6) does Jessica's Law, K.S.A. 21–4643, as applied to Reed, constitute cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution?

Reed failed to preserve several of these arguments by not making a timely and specific objection to evidence or not creating a sufficient record for appeal. Reed's remaining arguments lack merit, leading us to affirm Reed's convictions and sentences.

Facts and Procedural Background

The incident involving C.T. took place at her home between August 1, 2006, and September 30, 2006. C.T.'s stepfather regularly invited friends, including Reed, to watch Sunday football at the family's home. According to C.T.'s trial testimony, one day while Reed and others were at her house watching football, Reed entered her room. C.T. was on her bed, lying on her stomach, and reading a book. Reed leaned over her and “humped [her] back and forth.” When asked which of Reed's body parts was touching her, C.T. said it was his “hip area and down,” and C.T.'s mother testified that C.T. also referred to him touching her with his “private.” C.T. further explained that Reed rubbed against “the middle of [her] back and down” to the “knee area.” Reed then went into the bathroom, which could only be accessed through C.T.'s bedroom or the master bedroom. When he came out, he told C.T. “to get on the ground so he could see what [she] was reading” C.T. knelt next to her bed and leaned on the bed with the book in front of her. Then, Reed knelt down behind her and “humped [her] back and forth again” with his “private.” C.T. said she got up to get a drink of water, and he left.

C.T. told her parents about Reed's conduct a couple of weeks later. C.T.'s parents decided they would not report the incident to law enforcement, but C.T.'s mother suggested C.T. write about the incident in her journal. C.T.'s mother explained to the jury that Reed was no longer welcome in their home, and if they and Reed happened to attend the same event, C.T.'s parents would either leave or keep their daughter close to them.

The incident involving A.R. occurred 2 years later on or about September 1, 2008, at a Labor Day barbecue at which Reed, A.R., and A.R.'s family were guests in a mutual friend's home. A.R. testified she wanted to play in the backyard with her 14–year–old brother and some other children, but her brother told her to go to the front yard. As they argued, Reed came up to A.R. and told her it was “okay” and she did not “have to worry about it.” He told her to “come on” and started walking with A.R. around the house to the front yard. Reed draped his arm over her shoulder and placed his hand on her buttocks. According to A.R., when they got to the “vent” (air conditioning unit) at the side of the house, Reed stopped her and pulled her in front of him. He then pressed the “front of his pants” against her “butt.” A.R. explained to the jury that by “front of his pants,” she meant the area used for “peeing.” A.R. told him to stop and ran away.

At some point, Reed approached A.R.'s brother and asked him something like, “[I]f somebody ever touch[ed] my sister, would I take up for her, or would I do something for her.” A.R.'s brother found the question odd and simply told Reed, “[Y]eah, I would take up for her.”

Later that night, A.R. told her mother about her encounter with Reed. At some point that night or the next day, A.R. also told her aunt. A.R.'s mother, like C.T.'s mother, told her daughter to write a note about what happened at the barbecue. A.R. did so on September 8, 2008, approximately 1 week after the incident.

C.T.'s mother heard about the incident involving A.R. from A.R.'s aunt. This led to C.T's and A.R.'s mothers visiting. The two mothers decided to file police reports and to turn over their daughters' handwritten descriptions of what had happened with Reed.

Reed was charged with two counts of aggravated indecent liberties with a child under the age of 14. At trial, Reed testified in his own defense and denied ever touching either girl. With regard to the 2006 allegation involving C.T., Reed acknowledged that because of the layout of the house, he passed through C.T.'s bedroom to access the bathroom. When asked if he had ever seen C.T. “over at the...