State v. Sumpter
| Citation | 313 P.3d 105 |
| Decision Date | 22 November 2013 |
| Docket Number | No. 108,364.,108,364. |
| Parties | STATE of Kansas, Appellee, v. Timothy SUMPTER, Appellant. |
| Court | Court of Appeals of Kansas |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
Timothy Sumpter appeals his convictions and sentences for various sex crimes against four women. He argues the district court erred by consolidating his three cases for trial, admitting into evidence his statement to law enforcement officers, and instructing the jury on multiple acts. He also contends the State committed prosecutorial misconduct and there was cumulative error. As to his sentences, he argues the court erred in using his prior convictions to enhance his aggravated kidnapping sentence, in imposing the aggravated sentences in the grid boxes for his other convictions, and in imposing a no-contact order. We affirm the convictions and sentences and vacate the no-contact order.
The State filed three separate cases against Sumpter. In 11CR1290, it charged him with attempted rape or aggravated sexual battery for an incident in the park involving A.C. and aggravated sexual battery for an incident at Dillons involving A.P. In 11CR1638, it charged Sumpter with aggravated kidnapping, rape (amended to attempted rape after preliminary hearing), and aggravated sexual battery for an incident in the Old Town area involving J.B. And in 11CR1187, the State charged him with kidnapping and aggravated sexual battery for an incident in his vehicle involving A.E. Sumpter pled not guilty to the charges. Before trial, the district court granted the State's motion to consolidate the three cases for trial and denied Sumpter's motion to suppress his statement to law enforcement officers.
In September 2010, 23–year–old A.C. met Sumpter at a party. The two exchanged phone numbers and agreed to meet in person after exchanging a few text messages. After meeting at a fast food restaurant at around 8 p.m., Sumpter drove himself and A.C to a nearby nature center where they walked and talked for almost 2 hours. He began to act strangely and attributed his behavior to a pill he had taken earlier that evening. When she tried to run away, he tackled her and repeatedly fondled her buttocks while he masturbated. She tried to push him away, but he held her down. She eventually convinced him to stop and called a friend to pick her up. Later that evening, he told her via text message that a nurse at the hospital said the pill must have been Oxycontin. A.C. reported the incident to the police the next day, identifying her attacker as “Timothy.”
In January 2011, 22–year–old J.B. was at bar in the Old Town area of Wichita. She left alone at around 1 a.m. to retrieve something from her car. As she approached the car, a stranger began to follow her and ask her questions. A video surveillance camera captured their encounter. She told him twice to leave her alone. He told her he was not trying to be disrespectful, but a beautiful woman such as herself should not be walking alone at that hour and he wanted her to be safe. Because he said something else funny, she let her guard down and allowed him to walk with her. He tried to force his way into her car. He punched her in the face, and she fought back. Then, with his knee to her throat, he grabbed her buttocks and moved his hands towards her vagina, but he stopped when she told him she was on her period. She blacked out and when she woke up, he was masturbating and made her touch his penis. By feigning sexual interest, she managed to force him out and lock the car, but he had her keys. When she opened the door to retrieve them, he forced his way inside again. He hiked up her skirt and pressed his body against her. She managed to force him out of the car again just as another car pulled up. He told the driver, “[I]t's just my girlfriend, she's crazy.” J.B. knew her attacker as “Justin” and reported the incident to police that night. She was intoxicated and falsely reported that she had bitten his penis. The next morning, she underwent a sexual assault examination, during which scrapings were taken from underneath her fingernails.
In February 2011, 24–year–old A.P. worked at Dillons and began chatting with Sumpter, who was a regular customer. They exchanged phone numbers so they could arrange a double date. At around 2 a.m. one morning, he called her because he was upset about a friend's death and wanted to talk. She told him she needed to sleep because she had to get up early for work. When she got to work at 6:40 a.m., he was waiting for her in the parking lot. He asked her several times to get into his white SUV, but she refused and told him he had to come into the store if he wanted to talk. He said he wanted to talk in a private place so no one would see him cry. When they were alone in one of the store aisles, he told her his friend had died and he started to cry. They got off topic and he asked what her favorite part of her body was. When she humored him and said her buttocks, he grabbed it. She told him to stop but he grabbed it again, and when she tried to leave, he bear-hugged her and grabbed it yet again. A.P. reported the incident to the police that day, identifying her attacker as “Tim.” When Sumpter called A .P. later to apologize, he spoke to her boyfriend and told him his name was “Dustin”
In April 2011, 19–year–old A.E. met Sumpter at the home of her friend's potential boyfriend. He was drinking. They ended up alone together, talking. He insinuated that he wanted to have sex with her. He exposed his penis and masturbated. When she tried to leave, he started to cry and told her “about his dead dad.” She listened because she felt bad for him. They went outside so he could smoke, but it was cold so he suggested they sit in his white SUV. He decided to drive them around. He talked about wanting to kill himself and said he had a gun in the vehicle. He drove them to a park and seemed determined to kill himself. She tried to jump out of the vehicle, but he stopped her by putting his arm around her neck and waist. She kicked and screamed, but he did not let her go until a security car pulled up. He agreed to take her back to the party if she did not say anything to the security guard. After being told to leave the park because it was after hours, he continued to drive them around. He stopped on an isolated dirt road and started to touch her. She told him to stop and tried to push him away, but he put his hands down her pants and grabbed her buttocks. A deputy sheriff pulled in behind them at around 2:30 a.m. A.E. reported the incident, and Sumpter was arrested. No weapons were found in the vehicle. Sumpter told the deputy he “had been in a relationship [with A.E.] for over a year.”
Detective Wiswell was the lead detective in A.P.'s case. During his investigation, he learned about A.C.'s case and that both victims had a connection to Sumpter, who was in custody in connection with A.E.'s case. He set up an interview with Sumpter, in which Detective Wendy Hummel, who was investigating J.B.'s case, also participated. During the recorded interview, Sumpter denied knowing A.C., denied going to the park with her, and denied going to the hospital that night. Sumpter admitted knowing A.P. but denied having any contact with her beyond her cashing his checks at Dillons. Sumpter denied knowing J.B. but admitted going to Old Town and defending himself when a woman who had given him a fake phone number attacked him for calling her a liar. Sumpter denied that he drove a white SUV and refused to give a DNA sample.
Detective Hummel testified that during the interview Sumpter initially denied having any contact with J.B., but he then admitted “it could have been him [on the surveillance video], but it wouldn't have been the way he normally acts.” Sumpter admitted he had a drinking problem and when he drinks he gets emotional and sometimes violent. Later, the detectives secured a court order to obtain Sumpter's DNA and discovered he could not be excluded as a minor contributor to the DNA found under the fingernails of J.B.'s left hand.
Sumpter testified to the following: He tried to have sex with A.E .; he did not masturbate in front of her; he held her in his vehicle to save her life; and he did not grab her buttocks in the vehicle. He touched A.C.'s buttocks with one hand and his penis with the other; he accidentally pulled her pants down when he was grabbing her buttocks and she walked away; and he did not go to the hospital, but he had a friend call a nurse about the pill he took. He touched A.P.'s buttocks as he was hugging her. Sumpter admitted it was him in the Old Town surveillance video. He slapped J.B. because she spit on him. He did not push her into the car; instead, she pulled him in by his shirt. He choked her because she was hitting him with her keys. He touched her buttocks, exposed his penis, and masturbated because she came onto him. She touched his penis, but he did not try to touch her vagina or push his body against her buttocks. He did not tell police everything during his interview because he was scared, nervous, worried about losing his job, SUV, and apartment, and did not know what to do. On cross-examination, he admitted to committing sexual battery against A.C., A.P., and J.B. and “lik[ing] butts.” He also admitted his father had died in 2009.
Regarding the incident with A.E., the jury found Sumpter guilty of the lesser included offense of criminal restraint and aggravated sexual battery. Regarding A.C., the jury found him not guilty of attempted rape and guilty of the lesser included offense of sexual battery. Regarding A.P., the jury found him...
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