State v. Russ
| Decision Date | 12 May 2023 |
| Docket Number | 124,233 |
| Parties | State of Kansas, Appellee, v. Nathan Raye Russ, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Trego District Court; THOMAS J. DREES, judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HURST, P.J., MALONE and BRUNS, JJ.
A jury convicted Nathan Raye Russ of two counts of rape and one count of aggravated indecent liberties with a child, and the district court sentenced him to a lengthy prison sentence followed by lifetime parole and postrelease supervision should he ever be released. On appeal Russ alleges the district court erred by not including a jury instruction for the lesser included offense of attempted rape, and because insufficient evidence supported his conviction for aggravated indecent liberties with a child. He also challenges the imposition of lifetime postrelease supervision. This court finds no error requiring reversal of Russ' convictions but does find the imposition of lifetime postrelease supervision an error. As such, the court affirms his convictions and sentences for rape and aggravated indecent liberties with a child but reverses the imposition of postrelease supervision.
The State charged Russ with two counts of rape and one count of aggravated indecent liberties with a child related to his abuse of a single victim. After living out of state with her mother, the victim returned to Kansas after her mother's unexpected and tragic death in a car accident. Before returning to Kansas, the victim lived with her maternal aunt K.G., for approximately five months. While living with K.G the victim never expressed concern about her interactions with Russ.
In October 2019 the victim eventually returned to Kansas, but K.G. had secured some custody agreement that required K.G. to confirm the victim's school enrollment in Kansas. A few days before the victim started first grade at the elementary school in Kansas, K.G. called the grade school counselor to notify the school about the victim's mother dying so the school could be aware of that recent traumatic event. On January 31, 2020, the school counselor went to retrieve the victim from class for a regular visit, and noticed that the victim walked awkwardly when she stood up from her desk. When asked, the victim said that her feet did not hurt, so the counselor asked where she was experiencing pain and according to the counselor, the victim pointed to her bottom. The counselor immediately took the victim to the nurse's office.
The school nurse then performed a physical examination while the school counselor stayed in the room. The school nurse asked the victim where she was experiencing pain and the victim again said that her bottom hurt and that it hurt when she urinated. Because of this, the nurse told the victim to ask to see the nurse the next time she needed to use the restroom. The school counselor then took the victim back to her office to talk. The school counselor asked the victim why she thought she was experiencing the pain. The victim then said, because of "what daddy and I do that I'm not supposed to talk about." The school counselor became more concerned and texted the secretary to contact the police.
At trial, the school counselor explained she was concerned because A few days before the victim reported the pain, the victim had licked one of her classmates on the face. When the school counselor asked the victim why she had licked her classmate, the victim explained that she only licked the classmate and did not kiss them. In response, the counselor asked if anyone had ever licked the victim before, and the victim explained that Russ had licked her. The counselor asked where Russ had licked her, and the victim "pointed to her chest where her breasts would be."
The school nurse testified that when the victim returned to her office later that day to urinate, the nurse reminded her to wipe and in response the victim said that Russ "likes it when I'm clean." The nurse testified that the victim then "took a piece of toilet paper, real small piece, and barely touched herself on the front and then threw it in the toilet." The nurse reported what happened to the school counselor and the chief of police, Ashley Garza, who had arrived at the school in response to the school's concerns. Based on that information, Garza decided to have an acute forensic child interview done with the victim, which Garza explained was typical when there was suspicion of child sexual abuse. Garza also requested that a sexual assault nurse examiner (SANE) examine the victim, which occurred later that same day at a medical center.
The SANE nurse examined the victim and used an alternate light source on the victim's clothing. The SANE nurse collected the victim's underwear, took DNA samples from the victim, and took photographs during the examination. When reviewing the photographs, the SANE nurse noticed what appeared to be "bluish discoloration in the inner groin creases on both sides of [the victim's] inner leg." However, the SANE nurse noted that there was no acute or chronic injury to the victim's external vaginal genitalia, perineum, or anus. The SANE nurse also noted that the victim's hymen remained intact. The SANE nurse testified that the findings did not mean that the victim had not been sexually assaulted. The SANE nurse explained that there are a variety of reasons someone might not have injury after sexual contact, including the amount of or lack of force applied to the area. Chief Garza sent the sexual assault kit from the SANE nurse to the Kansas Bureau of Investigation (KBI). Garza later collected two buccal swabs from Russ. A forensic scientist for the KBI examined the sexual assault kit and tested the victim's underwear for possible DNA. Seminal fluid that was consistent with Russ' DNA was found in the crotch area of the victim's underwear.
After the investigation into the victim's possible sexual assault, the victim returned to live with her aunt, K.G. On that first night, K.G. said the victim was afraid that Russ could find her and get to her there, and K.G. had to reassure her that their gated community area and door locks would help keep her safe. According to K.G., the first night the victim returned to her house, the victim reported that Russ had sexually assaulted her and that he would touch her private parts in a way that hurt and would not stop when she asked. K.G. said the victim also told her that Russ had put his private parts inside of her private parts on a regular basis. When K.G. asked the victim if she had told anyone about what Russ did, the victim said she did not because Russ had threatened to take her to a house where no one could find her if she ever told.
K.G. took the victim to multiple doctors, including a sexual abuse therapist, her primary care physician, and some specialists. K.G. accompanied the victim to all of her doctor's appointments. During the visits to the doctors, information concerning what Russ did to the victim was disclosed. The victim testified that K.G. told the doctors about what Russ had done to her, and that the victim did not report the events to the doctors. The information communicated included that Russ would regularly put his privates in the victim's privates, which hurt her hips, and that Russ threatened the victim about telling others what occurred.
K.G. corresponded with Chief Garza about the victim via email. In one of those emails, K.G. told Garza that a private counselor had been retained, and that "[w]e worked with her for the entire four months she was with us and there was never any hard evidence that she or the other children had been abused." K.G. also told Garza about what the victim told K.G. the night they returned to K.G.'s house.
The victim, who was between seven and eight years old at the time of trial, testified in two short increments. During the victim's initial testimony, she said that Russ "hurt me" when she lived in Kansas. She testified that she and Russ were alone when he hurt her and that she had her clothes off, and she confirmed that she asked Russ to stop but that he did not. The victim also said that she later told K.G. about what happened, and that K.G. told the doctors about it.
When the State recalled the victim, she discussed drawings that she had made "[w]ith paper, some crayons, and a stapler." The victim described the drawings, which included the words "The Horrible Book" on the first page, as pictures she drew of her and Russ. In one drawing, she identified Russ as "that man" and one page has the phrase "be quiet" written on it. The victim described one drawing as her and Russ alone in Russ' room on his bed with her clothes off. When asked if she remembers if Russ' clothes are off, she said, "[y]es, but it's hard to admit." The victim confirmed that what the drawing depicted happened more than once when she lived in Kansas after her mother died and that when it happened Russ touched her private parts, touched her private parts with his private parts, and stuck his private parts in her private parts.
The victim testified that she created the drawings with the help of her therapist when she was living with her aunt, K.G. The victim explained that the therapist did not draw anything but that "[s]he told me what to draw." She also testified that K.G. was with her during these appointments with her...
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