State v. Smith
| Citation | 344 P.3d 396 (Table) |
| Decision Date | 06 March 2015 |
| Docket Number | 109,165. |
| Parties | STATE of Kansas, Appellee, v. David Lawrence SMITH, Appellant. |
| Court | Court of Appeals of Kansas |
Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant.
Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
David Lawrence Smith appeals from his convictions of one count of aggravated indecent liberties with a child under 14 years of age and two counts of aggravated indecent liberties with a child over 14 years of age but less than 16 years of age. Smith alleges the district court committed reversible error by: (1) admitting a photograph of a latch on the victim's brothers' bedroom door; (2) denying his motions for a new trial; (3) responding to two jury questions in writing; (4) failing to include in the jury instructions the element for aggravated indecent liberties that the defendant must be over the age of 18; (5) using a special question on the verdict form; (6) imposing a life sentence which is categorically disproportionate in violation of the Eighth Amendment to the United States Constitution; (7) designating his pre-KSGA in-state and out-of-state convictions as person felonies; and (8) using his criminal history to increase his sentence. Because the district court improperly classified Smith's pre-KSGA out-of-state conviction as a person felony, we must vacate Smith's sentence and remand for resentencing, but we affirm Smith's convictions and the district court in all other respects.
On July 23, 2011, a woman named Amanda contacted the Atchison County Sheriff's Department to request a civil standby while she helped her sister, Gayla Robinson, and Robinson's children move out of a residence in that county. Two officers, Undersheriff Larry Myer and Sergeant Jeremy Peak, accompanied Robinson's two sisters and their husbands to Robinson's residence. Robinson and her four children lived with her boyfriend, Smith.
When the parties arrived at the residence, Robinson was outside with her three sons working on and cleaning an air conditioner unit. The home's main air conditioner had broken, and they had installed a window air conditioner in Robinson and Smith's bedroom earlier that day. Once the window unit was installed, Smith went into the bedroom to lie down. Robinson testified she and her daughter, B.N.M ., also went into the bedroom to lie down. Smith was naked but had a blanket over him up to his waist. Robinson testified it was normal for him to sleep without clothes. Robinson claimed Smith then sent her outside to work with the boys on the other air conditioner so they could install it in the boys' bedroom. Smith denied telling Robinson to leave; he claimed he had gone to sleep and did not know B.N.M was in the room with him. B.N.M. testified she was watching a movie and Smith was sleeping.
Outside, Robinson told the officers things were bad between her and Smith so she needed to leave and go back to Arkansas with her sisters. Robinson had not told Smith she was planning on leaving as she was afraid to tell him because he had a bad temper and would hit her and her children.
Robinson indicated to the officers that Smith was inside the residence taking a nap. The officers knocked on the front door, but no one answered. Robinson then gave them permission to go inside and told them Smith was in their bedroom. Myer knocked on the bedroom door, and it swung open. He saw Smith lying on his side naked on the bed with a blanket only draped over his calves and upper thigh. B.N.M. was also on the bed next to Smith. Myer testified he saw B.N.M.'s arm on Smith down around the lower part of his stomach or groin area. B.N.M. testified her hand was on his side. B.N.M. jumped off the bed and out of the bedroom. As she walked by Peak, he asked if she was ok and B.N.M. shook his hand and said thank you.
Smith got dressed, and the officers told him Robinson and the children were going to leave. Smith was cooperative and gave Robinson a truck to transport her belongings. After loading the truck, Robinson, her four children, Robinson's sisters and their husbands, and Smith all went to the sheriff's office. B.N.M. rode to the office with her Aunt Amanda and Amanda's husband.
Myer interviewed B.N.M., who told him Smith had been sexually abusing her since she was age 7. She told Myer that since moving to Kansas in September 2010, Smith would send her mother and brothers outside, then he would sit on the couch or a chair, have her remove her clothes, bend over, and would insert his fingers in her vagina. He would also remove her shirt and bra and rub her breasts. She said it had occurred 15 to 20 times from September 2010 through July 2011, although she did not identify any specific dates. She told them the last time it had occurred was 2 or 3 weeks prior to the police coming on July 23, 2011. She said she had not told anyone because she was scared Smith would hurt her or her brothers. Myer called the University of Kansas Hospital, which advised that a medical examination of B.N.M. was not needed because she said sexual contact had not occurred for weeks.
During the trial, B.N.M. testified she had turned 14 years old on February 22, 2011, and sexual contact with Smith had occurred several times in the year before and after her birthday. Before trial, B.N.M. had not given any specific dates of when the sexual abuse occurred; however, at trial she said she remembered two specific dates. B.N.M. testified that on Father's Day, June 19, 2011, Smith sent Robinson and B.N.M.'s three brothers out to take care of the dogs. He then sat on the edge of the couch and made B.N .M. pull down her pants; he put her hand on his penis and inserted his fingers into her vagina. She testified the same thing happened on July 10, 2011, Smith's birthday. She did not give other specific dates or number of times other incidents occurred, but she claimed sexual contact occurred multiple times while she was 13 years old and multiple times between February and June 2011 when she was 14. She testified the sexual encounters were always the same.
B.N.M claimed no sexual contact occurred on the day Myer and Peak were in the home, and Smith was not charged with anything related to that date. B.N.M. testified she had never told anyone about the sexual contact because she was afraid of Smith and was afraid he would hit her, her brothers, or her mother because he had done so before. In December 2010, an SRS worker visited B.N.M. and her family, and B.N.M. told the worker she was not afraid of Smith. B.N.M. never mentioned any sexual abuse.
The defense introduced two birthday cards and one Father's Day card into evidence through Robinson. One of the birthday cards was to Smith from B.N.M. and her siblings. Inside, B.N.M. wrote: In the Father's Day card, B.N.M. wrote: B.N.M. acknowledged that while she had written that she loved Smith, she was angry and upset about the sexual contact and she did not love him or want to be with him. Smith denied having sexual contact with B.N.M., and he denied ever threatening her or that she was afraid of him. On February 15, 2012, the jury found Smith not guilty of three counts of rape and guilty of three counts of aggravated indecent liberties with a child.
On February 22, 2012, Smith's trial attorney, John Kurth, filed a motion for new trial and judgment of acquittal. On April 2, 2012, Smith filed a pro se motion for new trial and judgment of acquittal for misrepresentation of counsel. On April 5, 2012, Kurth filed a second motion for a new trial or judgment of acquittal. In his pro se motion for new trial, Smith alleged ineffective assistance of counsel of Kurth, so the court appointed a new defense attorney, J. Phillip Crawford.
Crawford filed another motion for new trial and a motion for judgment of acquittal on July 3, 2012. Crawford also filed an objection to the presentence investigation report and a motion to declare the hard 25 life sentence under K.S.A.2010 Supp. 21–4643 unconstitutional. The district court held an evidentiary hearing on July 12, 2012, at which it addressed all the filed motions for new trial. Kurth and Smith testified. The district court denied Smith a new trial.
On August 2, 2012, Smith filed a pro se motion to vacate his convictions and a motion alleging ineffective assistance from Crawford, asking the district court to dismiss Crawford and to allow Smith to represent himself. Smith waived his right to counsel and filed a pro se motion for judgment of acquittal on September 6, 2012. On September 10, 2012, Smith filed another pro se motion for new trial and then on September 20, 2012, Smith filed a second pro se motion for new trial or acquittal and a motion objecting to his presentence investigation report. On September 20, 2012, the district court denied Smith's pro se motions for new trial and judgment of acquittal and sentenced him to life plus 154 months in prison.
Smith timely appeals.
On redirect examination of Myer, the State submitted additional pictures of the interior of Robinson and Smith's home. Two pictures were of the second bedroom where Robinson's three boys slept. The first picture, State's Exhibit 8, showed the interior of the room and a latch on the door. The second picture, State's Exhibit 9, was a close-up of the outside of the bedroom door with the latch hooked to the wall. Smith told Myer he put the lock on the outside of the door so that the boys could not get up in the middle of the night to...
To continue reading
Request your trial