State v. Sellers, 101,208.
| Decision Date | 22 June 2011 |
| Docket Number | No. 101,208.,101,208. |
| Citation | 253 P.3d 20,292 Kan. 117,292 Kan. 346 |
| Parties | STATE of Kansas, Appellee,v.Jerry D. SELLERS, Jr., Appellant. |
| Court | Kansas Supreme Court |
1. The appellate standard of review for a district judge's decision on a motion for psychological evaluation of a complaining witness in a sex crime prosecution is abuse of discretion. Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the district court.
2. The determination of whether compelling circumstances exist to support an order for a psychological evaluation of a complaining witness in a sex crime prosecution requires an examination of the totality of the circumstances in the case, considering the following nonexclusive list of factors: (1) whether there is corroborating evidence of the complaining witness' version of the facts; (2) whether the complaining witness demonstrates mental instability; (3) whether the complaining witness demonstrates a lack of veracity; (4) whether similar charges by the complaining witness against others are proven to be false; (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition; and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.
3. In this sex crime prosecution, under the totality of the circumstances, the defendant did not meet his burden to demonstrate a compelling need for a psychological evaluation of the complaining witness.
4. The issue of multiplicity is a question of law, and an appellate court's review is unlimited. Questions of statutory interpretation and construction, on which multiplicity turns, are reviewed de novo on appeal. When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it. The court will not resort to canons of statutory construction or consult legislative history if the language of a statute is clear and unambiguous as written.
5. The conduct underlying Counts 1 and 2 in this case was not unitary; thus the counts were not multiplicitous.
6. Ordinarily, constitutional challenges to a statute raise questions of law subject to unlimited appellate review. But constitutional claims must be preserved for appeal by advancement and argument in the district court. The defendant in this case did not preserve his challenge to the constitutionality of lifetime postrelease as part of the punishment under Jessica's Law for aggravated indecent liberties with a child.
7. Under State v. Bello, 289 Kan. 191, 199–200, 211 P.3d 139 (2009), and its progeny, the defendant in this case was not subject to the sentencing provisions of Jessica's Law, K.S.A. 21-4643, because the State failed to prove he was 18 years old or older at the time of his crimes. However, under K.SA 22-3717(d)(I)(G), proof that a defendant is 18 years or older is not required to impose lifetime postrelease supervision for conviction of a sexually violent crime.
8. The lifetime electronic monitoring ordered by the district judge must also be vacated. On remand, the district judge should be guided by this court's decision in State v. Jolly, 291 Kan. 842, 847–48, 249 P.3d 421 (2011).
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.David E. Yoder, county attorney, argued the cause, and Steve Six, attorney general, was with him on the brief for appellee.
This is a direct appeal from defendant Jerry D. Sellers, Jr.'s jury conviction on two counts of aggravated indecent liberties with a child, in violation of K.S.A. 21–3504(a)(3)(A). Sellers received a consecutive 72–month prison sentence on Count 1 and 59–month sentence on Count 2. The district court judge also ordered that Sellers be subject to lifetime postrelease supervision and lifetime electronic monitoring.
Sellers raises five issues for our consideration: (1) Whether the district judge erred in denying his motion for a psychological evaluation of the victim; (2) whether his convictions were multiplicitous; (3) whether the order for lifetime postrelease is unconstitutional; (4) whether the district judge erred in modifying his sentence; and (5) whether the district judge erred by ordering lifetime postrelease and lifetime electronic monitoring.
Sellers lived with C.M. and her 13–year–old daughter, M.R.C., in C.M.'s home. Sellers and C.M. had previously been deployed together in the Army National Guard, serving in Kuwait. Sellers' relationship with M.R.C. became strained, and C.M. and M.R.C. began to argue about him. The worst of these arguments occurred in early December 2007.
On December 3, 2007, C.M. went to her sister's home to talk about the situation. C.M. asked her sister to try to talk to M.R.C. to find out what was bothering her. The sister did as asked the same evening while making dinner with M.R.C. When M.R.C. learned from the sister that Sellers was going to ask C.M. to marry him, M.R.C. told the sister that Sellers had touched her. Upon urging by the sister, M.R.C. also told C.M. that Sellers had touched her “up top and down below.”
Later that evening, C.M. told Sellers that M.R.C. had said he touched her breast and “down there.” C.M. told Sellers she would get him some help. When Sellers left for work the next morning, however, C.M. took M.R.C. to the police station to report the incident.
C.M. and M.R.C. arrived at the police station at 6 a.m. and met with Officer Joshua Lowe to give an initial report. Lowe interviewed C.M. and M.R.C. and prepared a report before referring the case to a detective for further investigation.
M.R.C. reported that Sellers put his hands up her shirt and felt her chest and touched her on her pubic area. Lowe asked a series of yes/no follow-up questions, including whether “Jerry had put his hands down her pants.” M.R.C. said Sellers had not done so. M.R.C. believed that the touching incident occurred around Saturday, November 17, 2007. Lowe asked M.R.C. if she was home alone with Sellers when the touching occurred, and she replied that she was. In addition, in response to Lowe's question about how Sellers went about touching her, M.R.C. said that Sellers just walked up and touched her.
Lowe eventually would testify that his purpose with the initial interview was to get enough information to see if the matter warranted calling in a detective to conduct a forensic interview.
At 10 a.m. the same day as the Lowe interview, Detective Michael Yoder interviewed M.R.C. at the Heart to Heart Advocacy Center. M.R.C. told Yoder that she did not get along with Sellers and worried that he would divert her mother's affection. M.R.C. also told Yoder that the touching incident occurred around Thanksgiving; she thought it happened on November 16.
Describing the incident, M.R.C. told Yoder that between 10 a.m. and 11 a.m., she went to lie down with her mother on her mother's bed. M.R.C. lay on one side of the bed and her mother on the other, and the two held hands. Sellers joined them on the bed, lying between M.R.C. and her mother with his head level with M.R.C.'s waist. Sellers put his arm over M.R.C.'s leg, then moved his hand so it was between M.R.C. and the mattress, and then moved it from touching her stomach to her chest. M.R.C. told Yoder that when Sellers' hand had reached her breast, he moved his hand around over her breast. Sellers then stopped touching M.R.C. and left the room to go check on the family's dog, which was making noise in another room.
M.R.C. told Yoder that Sellers then came back into the room, checked to see if her mother was asleep, lay back down, and put his hand on M.R.C.'s leg. He moved his hand up to M.R.C.'s pubic area. Sellers then got off the bed again and walked over to her mother's side of the bed to see if she was still asleep. He then walked to M.R.C.'s side of the bed and started to push M.R.C.'s shirt up. At that point, M.R.C. squeezed her mother's hand and woke her up.
Yoder asked M.R.C. if there had been any other incidents in which Sellers touched her inappropriately; and she said there was another incident the previous Halloween. M.R.C. said that Sellers touched her on her buttocks when she, Sellers, and her mother were cooking in the kitchen. M.R.C. also reported a third incident, in which she hugged Sellers goodnight and he grabbed her on the buttocks.
Sellers was charged with three counts of aggravated indecent liberties with a child under K.S.A. 21–3504(a)(3)(A). Count 1 was for touching M.R.C.'s breast on or about November 17, 2007. Count 2 was for touching M.R.C.'s pubic area on or about November 17, 2007. Count 3 was for touching M.R.C.'s buttocks around Halloween 2007.
At Sellers' December 19, 2007, preliminary hearing, M.R.C. testified. Her story about the touching on the bed around Thanksgiving was the same as that she had told to Yoder. On cross-examination, M.R.C. admitted that she initially dismissed the Halloween touching of her buttocks as accidental. She also admitted that she did not tell anyone about Sellers touching her until she learned about Sellers' and her mother's marriage plans and that this news upset her.
About a month after the preliminary hearing, Sellers filed a notice of alibi, stating that he was on duty with the Army...
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