State v. Vandervort
| Decision Date | 25 July 2003 |
| Docket Number | No. 87,975.,87,975. |
| Parties | STATE OF KANSAS, Appellee, v. DREW S. VANDERVORT, Appellant. |
| Court | Kansas Supreme Court |
Cory D. Riddle, assistant appellate defender, argued the cause, and Randall L. Hodgkinson, deputy appellate defender, was with him on the briefs for appellant.
James L. Spies, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee. The opinion of the court was delivered by
A jury convicted defendant Drew S. Vandervort of two counts of rape, one count of attempted rape, three counts of criminal sodomy, and seven counts of aggravated indecent liberties with a child. All counts stem from incidents involving his three daughters. Vandervort was sentenced to a controlling term of 586 months. The Court of Appeals held that the trial court did not err in denying his motion to suppress statements he made prior to a Miranda warning, that his confession coupled with corroborating testimony was sufficient evidence supporting his conviction for aggravated indecent liberties with a child, and that Vandervort had waived any argument that his criminal history was incorrect. The Court of Appeals affirmed in part, reversed the attempted rape conviction, and remanded the indecent liberties convictions for resentencing under the 1996-99 grid. State v. Vandervort, No. 87,975, unpublished opinion filed November 27, 2002. The matter comes before this court pursuant to its grant of Vandervort's petition for review.
We affirm in part, reverse in part, vacate the sentence, and remand for resentencing.
On Sunday, September 17, 2000, Drew S. Vandervort left his home in the family van with the intent to drive to Mexico. Vandervort wanted to separate himself from his family so he would no longer molest his children and so they could get help. Vandervort and his wife, Carol, had four children, daughters B.V., T.V., and A.V., and son D.V. Vandervort's van ran out of gas in a small town in Texas, and there he sought out a minister, confessed to him, and was persuaded to return to Kansas City to turn himself in. Greg Knapp, a guidance counselor at B.V.'s school, testified that on September 18, 2000, he received a long distance phone call from Texas. The caller identified himself as Vandervort and said he was B.V.'s father. He wanted to confess he had done some bad things and told Knapp he had been molesting his children. The next morning, Vandervort called Knapp again and asked him to contact his wife and let her know the van was about a block away from the house. The following day, Carol came in to talk to Knapp about what to do. During their conversation, Vandervort phoned again and spoke of turning himself in.
Carol testified that she spoke to her husband on the phone in Knapp's office. She said he told her he was trying to turn himself in but no one would take him unless she pressed charges. Carol met her husband at 7th and Central, and they went to a police station in downtown Kansas City, Kansas. Carol stated she was told they would have to file a report at the Indian Springs Police Station.
On September 19, 2000, Vandervort, accompanied by his wife Carol, entered the front desk area of the Indian Springs Police Station to make a report. Officer David Abernathy of the Kansas City, Kansas, Police Department testified that Vandervort stated he wanted to turn himself in for having sex with his children. Abernathy said the officers at the front desk began filling out paperwork and advised Vandervort that charges would be brought against him. Abernathy testified that they were not interrogating Vandervort and that "[e]verything he said, he said from his own volition." At no point while filling out the report forms did the officers inform Vandervort of his right to remain silent. Abernathy said they were gathering information for the report, not conducting an interrogation.
Abernathy stated that after the point when Vandervort confessed to committing rape, sodomy, and incest, he did not feel Vandervort would be free to leave and said he would legally detain him. However, the officers never formally took Vandervort into custody or placed him under arrest because he made no attempt to leave. Abernathy decided almost immediately that a detective should be called. Detective James Smith of the Kansas City, Kansas, Police Department went to the Indian Springs Police Station to meet with Vandervort after his commander told him Vandervort wanted to turn himself in for molesting his children. Before interviewing Vandervort, Smith interviewed Carol and took a short statement from her. Vandervort remained in the lobby of the station. He had not been handcuffed or placed under arrest, but Smith did not believe Vandervort was free to leave at that time.
Vandervort testified that he was not advised of his rights until he met with Smith. He said, as far as he knew, he was free to leave.
Smith testified that after identifying himself to Vandervort, he asked whether Vandervort wanted to speak with him. Smith stated that Vandervort indicated he wanted to talk to him. Smith accompanied Vandervort back to the conference room, then conducted a short interview with him after advising him of his Miranda rights. Vandervort placed his initials after each paragraph of the advice of rights form and signed a waiver of his rights that Smith gave him. Smith testified that Vandervort did not appear to be under the influence of any drugs or alcohol. Smith then proceeded to tape-record Vandervort's confession.
Vandervort confessed to Smith that he had molested his oldest daughter, B.V., and his younger two daughters "on many different occasions." He stated that he had sexual contact with B.V. more than 50 or 60 times, and that on the first occasion he had forcibly penetrated her.
The State charged Vandervort with rape, aggravated criminal sodomy, aggravated indecent liberties with a child, and attempted rape in a 71-count information. Before trial, however, due to the prosecutor's amendment of the information and dismissal by the trial court, Vandervort faced trial on only 13 counts.
Defense counsel filed a motion to suppress Vandervort's confession prior to trial. The trial court denied the motion to suppress, finding that Vandervort's statements to police were voluntary. In September 2001, the case proceeded to trial by a jury.
On September 6, 2001, the jury found Vandervort guilty of two counts of level 1 rape, one count of attempted rape, three counts of aggravated criminal sodomy, and seven counts of aggravated indecent liberties with a child. Defense counsel filed a motion for durational and/or dispositional departure based on the fact that Vandervort would not have faced prosecution but for the fact that he turned himself in to police. At the September 21, 2001, sentencing hearing, the court denied the motion for departure. Vandervort was sentenced to a presumptive term of 586 months of confinement in the custody of the Department of Corrections, with 36 months of post-release supervision for the primary offense of rape. The sentencing court directed that Vandervort serve his 12 additional convictions concurrently.
Vandervort filed a timely notice of appeal of his sentence and the denial of his motion for a new trial. He set forth five assertions of error in his brief to the Court of Appeals, concerning the motion to suppress, sufficiency of the evidence, the jury instruction on attempted rape, his criminal history, and the sentencing grid. In an unpublished opinion, the Court of Appeals held: (1) the trial court did not err in denying the motion to suppress Vandervort's statements; (2) B.V.'s testimony corroborating Vandervort's confession was sufficient evidence to support his conviction for aggravated indecent liberties with A.V.; (3) Vandervort waived any argument that his criminal history was incorrect when his counsel stipulated to his history at sentencing; (4) the jury instruction on attempted rape was clearly erroneous since it covered potential facts outside the 2-year statute of limitations; and (5) the sentencing judge had applied the wrong sentencing grid.
The Court of Appeals reversed Vandervort's conviction for attempted rape but noted the reversal would have no apparent impact on his sentence since it was to run concurrent with the sentence for rape. The panel also held that Vandervort should be resentenced on his seven convictions for aggravated indecent liberties with a child and the one conviction for attempted rape using the 1996-99 Kansas Sentencing Guidelines Grid. The Court of Appeals affirmed Vandervort's remaining convictions.
We granted Vandervort's petition for review of the Court of Appeals' decision. Before this court, Vandervort contends that the Court of Appeals erred in affirming the denial of his motion to suppress and in refusing to consider the merits of whether a prior Virginia conviction was appropriately classified in his criminal history.
Vandervort claims that the Court of Appeals erred in affirming the district court's decision to deny his motion to suppress the statements he made to police prior to the time when he was apprised of his Miranda rights. He asks this court to remand this matter for a new trial.
" " State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).
The question presented is whether, under the facts presented, the police conducted a custodial...
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