State v. Rucker

• Decision Date: 16 July 1999
• Docket Number: No. 753., No. 80, No. 106
• Citation: 987 P.2d 1080,267 Kan. 816
• Parties: STATE OF KANSAS, Appellee, v. FRANK F. RUCKER, JR., Appellant.
• Court: Kansas Supreme Court

267 Kan. 816

987 P.2d 1080

STATE OF KANSAS, Appellee, v. FRANK F. RUCKER, JR., Appellant.

Nos. 80,106, 80,753.

Supreme Court of Kansas.

Opinion filed July 16, 1999.

Elizabeth Seale Cateforis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Doyle Baker, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.:

Frank F. Rucker, Jr., appeals his jury convictions of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(2)(A), a severity level 3 person felony, and stalking, K.S.A. 21-3438(a), a severity level 10 person felony.

Rucker raised four issues, contending that (1) the trial court abused its discretion in denying his request for a psychological evaluation of the alleged victim, (2) evidence that he had allegedly similarly sexually abused another child was erroneously admitted, (3) K.S.A. 21-3438 is unconstitutionally vague and violated his Sixth and Fourteenth Amendment rights, and (4) there was insufficient evidence to support the conviction of stalking.

We affirm both convictions. We hold the trial court did not abuse its discretion in denying the psychological evaluation, evidence that Rucker had similarly sexually abused another child was properly admitted pursuant to K.S.A. 60-455, the stalking statute, K.S.A. 21-3438, is constitutional, and there was sufficient evidence to support the stalking conviction.

Factual Background

Although 31 witnesses testified for the State, we need not detail all of the sordid facts because the appellant does not question the existence of sufficient evidence to support the jury's determination of guilt for the charge of aggravated indecent liberties with a child. We will present only those facts necessary to address Rucker's claims of error.

Frank Rucker and his wife, Kathy Rucker, had a stormy relationship from the time they met in 1985 through late March 1997 when this prosecution began. The relationship began in Wichita but faltered when Kathy returned to North Carolina and became pregnant with C.N.R. by a third party. It was reestablished when she returned to Wichita and resumed living with Rucker when C.N.R. was born in 1986. Rucker signed C.N.R.'s birth certificate, and the three of them lived together for a short time.

At some point, Rucker and Kathy married, although Kathy was not yet divorced from her first husband. A paternity action was filed where the trial court determined that it was in C.N.R.'s best interest that Rucker be determined to be her "presumed father." Rucker and Kathy's relationship was contentious, and they constantly battled over physical abuse, visitation, and child support. Their custody of C.N.R. was shared, with C.N.R., living with Kathy during the week and with Rucker on the weekends.

Immediately prior to his arrest on March 28, 1997, the parties had been obtaining court orders—Kathy's to protect her from abuse and Rucker's to obtain visitation. When Rucker attempted to enforce his visitation rights, C.N.R. told her mother that Rucker had been sexually abusing her and that she did not want to go with him. C.N.R. was taken to a hospital for a physical examination and then to a children's home.

At trial, the State was permitted to present evidence that Rucker had allegedly sexually abused another daughter, S.R., from his previous marriage to C.H. This evidence was introduced through the testimony of the victim, S.R., her sister, K.T., and C.H.

K.T. testified she had witnessed Rucker abusing her sister, S.R., on several occasions when K.T. was 9 or 10 years old and S.R. was 12 years old. K.T. testified that, while watching television, S.R. was called to help her mother and was told by Rucker, "Pull your panties up and get in there." On another occasion, K.T. remembered seeing Rucker on top of S.R. "moving back and forth." On another occasion K.T. awoke because the bunkbed she shared with S.R. was creaking and K.T. saw Rucker's face. K.T. also remembered a family vacation where she saw her father abuse her sister.

K.T. admitted on cross-examination that she did not report her sister's abuse until some 15 years after it occurred. She had tried to file a complaint, but was told that she could not do so because she was not the victim. She said she kept silent because she was scared of Rucker and had never talked to her sister about the abuse. She admitted that after she told her mother, her sister denied the abuse had occurred.

K.T. testified that as C.N.R. grew older she noticed a change in her behavior and became concerned that her father might be sexually abusing her, just as he had S.R. K.T. wrote of her concerns in a letter to a counselor in 1992, but when questioned, C.N.R. denied any abuse had occurred.

S.R. testified that Rucker had sexually abused her from the time she was 5 years old until she was 13 years old. She remembered being sexually abused by him when she was in kindergarten and that "it was introduced to [her] as sort of like a game, something that daddies did with their little girls, something that was acceptable." She said she was told not to "tell, [that her] mother wouldn't like it, [and] that [she would] get in a lot of trouble."

S.R. testified the abuse progressed when she was 8 or 9 years old to her being made to lie on the bed without any clothing as Rucker rubbed his penis against her, touched her inappropriately, and tried to make her kiss him; sometimes Rucker looked at pornographic magazines while doing this. S.R. testified that he would force her to lie down, rub against her, and usually ejaculated onto her stomach or pubic area, and after he was finished, he would tell her to "go get cleaned up."

S.R. recalled that Rucker would apply a yellow lotion to her before he would rub against her and recalled being fondled under a blanket and being abused while on a family vacation. If she cried or complained, Rucker would slap her and he threatened to kill "Shoo Shoo," the family dog, to which she was very attached, should she tell anyone about the abuse.

S.R. testified Rucker stopped sexually abusing her when she began menstruating, about age 13. She explained at trial, "I was still naive enough not to connect the pregnancy thing that he probably was concerned about." S.R. testified that Rucker never inserted his penis into her vagina; rather, he rubbed it on her vaginal area.

S.R. admitted on cross-examination that when she was asked by her mother whether Rucker had abused her, she "denied it or told her [she] didn't want to talk about it." She also stated she has never spoken to her sister K.T. regarding the abuse.

C.N.R. testified that Rucker started abusing her when she was 4 or 5 years old. Rucker would enter her bedroom, rub baby oil on her vagina, and then rub his penis against it. If C.N.R. would protest, Rucker would slap her. He threatened harm to her favorite pet if she said anything. C.N.R. admitted that although she was asked several times and by several different people, she always denied that any abuse occurred, having been told that if she said anything she would be taken away from him. She was scared. The last incident of abuse occurred during the last scheduled visitation before Rucker was arrested. She said she finally admitted to being abused because she "wanted where he wouldn't do it anymore."

Others suspected that C.N.R. was being abused. Kathy found a pubic hair in C.N.R.'s underwear after she had returned from a visit. The incident was reported to the police but no action was taken because C.N.R. denied that any abuse was taking place.

Health care practitioners testified that Rucker brought C.N.R. to a clinic for a pregnancy test in 1996, and when they spoke to C.N.R. alone, Rucker became angry. A detective testified a search warrant executed on Rucker's residence after his arrest produced a bottle of baby oil and a baby oil stain on the bedspread where C.N.R. slept when she visited Rucker. A counselor testified C.N.R. told her Rucker abused her on almost every visit and the nature of the abuse was identical to that testified to by other parties.

The events which resulted in the stalking charge occurred after C.N.R. made the sexual abuse allegations and while the claim was being investigated between April 2, 1997, and April 15, 1997. Although there was a court order suspending Rucker's right of visitation and contact with C.N.R., he followed her school bus and watched her repeatedly from a restaurant and a gas station while she was at school. C.N.R. testified she knew Rucker was watching and following her and it frightened her. A school district employee was assigned to sit on the bus with her and protect her.

C.N.R. testified she saw Rucker watching her from the gas station on her first day back after being released from the children's home. She reported the sighting to her teacher. She saw him watching from the restaurant across the street, stating, "I was scared; and wherever I went, it's like he was watching me.... He made me feel like I couldn't ever go anywhere without being watched."

C.N.R.'s bus driver told of an incident where Rucker drove in front of the school bus, forcing it to stop, and then glared at her "evil like, just looked at me real evil." The bus driver testified that C.N.R. was on the bus and knew her father was following her.

The principal at C.N.R.'s school testified that someone from the restaurant had called to report that a person was watching the children on the playground from the restaurant location. The description fit Rucker, who was identified by the principal.

C.N.R.'s teacher testified she saw Rucker watching from the gas station and that on one occasion Rucker brought C.N.R.'s backpack to school while C.N.R. was not there. The backpack contained a picture of C.N.R.'s...