State v. VILLANUEVA, JR.
| Citation | 29 Kan. App.2d 1056,35 P.3d 936 |
| Decision Date | 07 December 2001 |
| Docket Number | No. 85,260.,85,260. |
| Parties | STATE OF KANSAS, Appellee, v. JESSE JOSEPH VILLANUEVA, JR., Appellant. |
| Court | Kansas Court of Appeals |
Peter Maharry, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.
James L. Spies, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, for appellee.
Before GERNON, P.J., KNUDSON and BEIER, JJ.
Jesse Joseph Villanueva, Jr. appeals his conviction for the rape of S.M., contending the trial court erred in admitting opinion testimony of a social worker, failing to give a multiple acts instruction, and permitting prosecutorial misconduct that was prejudicial.
We affirm. The errors committed during Villanueva's trial are harmless and did not impair his right to a fair trial.
S.M. and Villanueva were lovers. The State's theory was that after S.M. decided to end the relationship there was a violent quarrel, and Villanueva raped her. Villanueva acknowledges the quarrel but denies raping S.M. This is the second trial, with the first ending when the jury was unable to reach agreement. Additional facts will be discussed as necessary under each of the issues raised on appeal.
Michele Paynter is a social worker employed as a clinical coordinator for the Metropolitan Organization to Counsel Sexual Assault (MOCSA) located in Kansas City, Missouri. Her duties include supervision of other social workers and individually working with victims of rape.
After the first trial ended in a hung jury, the State moved to endorse Paynter as an expert witness regarding rape trauma syndrome and to further testify regarding the content of S.M.'s clinical file maintained at MOCSA. After the rape, S.M. received counseling services from Shannon Hobbs, a social worker employed by MOCSA. Paynter was Hobbs' supervisor at MOCSA. At the time of the second trial, Hobbs no longer worked for MOCSA. During the period of time MOCSA provided counseling services to S.M., Michele Paynter had no direct contact with her.
Villanueva filed a motion in limine, arguing Paynter was not qualified to testify as an expert witness regarding rape trauma syndrome. The trial court agreed and also specifically ruled Paynter would not be allowed to testify as to the signs and symptoms of the syndrome. However, the court further ruled, under the business records exception to the hearsay rule, Paynter would be allowed to testify as to the content of S.M.'s clinical file. Inexplicably, the trial court's order was not followed when Paynter testified before the jury. The following are excerpts of Paynter's testimony on direct examination:
She states that she cries a lot and even with the help of medication, she is having difficulty with her seeming depression. [S.M.] has many feelings that she wants to work on and she states that once she resolves some work—that once she resolves some of her issues, she knows that she will feel better. However, [S.M.] still seems scared to explore some of those feelings. At the end, the intervention specialist identifies that she will continue the cognitive process which is the modality that we follow in my department and it is an offset of Dr. Albert Ellis' (ph) work on rationally motive therapy.
The use of expert testimony at trial is controlled by K.S.A. 60-456. In order to testify as an expert, a witness must be skilled or experienced in the field to which the subject relates. State v. McClain, 216 Kan. 602, 606, 533 P.2d 1277 (1975). Whether a witness is qualified as an expert is left to the sound discretion of the trial court. State v. Colwell, 246 Kan. 382, Syl. ¶ 7, 790 P.2d 430 (1990).
In determining whether the trial court erred, we find instructive State v. Willis, 256 Kan. 837, 888 P.2d 839 (1995).
Willis was convicted of rape, and the issue on appeal was whether the trial court erred in admitting expert testimony from a licensed social worker that the victim suffered from post-traumatic stress disorder and rape trauma syndrome. At trial, Ruth Durham, the alleged victim's outpatient therapist from a mental health center, testified the victim's behavior was consistent with rape trauma syndrome and that the victim suffered from post-traumatic stress disorder.
The Supreme Court concluded the trial court abused its discretion in permitting Durham to give expert testimony regarding rape trauma syndrome. In its opinion reversing Willis' conviction, the court stated:
Also helpful to our analysis is State v. Reser, 244 Kan. 306, 767 P.2d 1277 (1989). At trial, Helen Swan, a licensed social worker, testified for the State. Swan evaluated the alleged victim on two different dates for a total of about 4 hours. There was no question but that Swan was a recognized expert in child sexual abuse cases. Justice Herd, writing for the court, summarized Swan's testimony as follows:
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State v. Rivera
...our court rejected the defendant's claim that a unanimity instruction was needed because the attack "was one continuous event." 29 Kan.App.2d at 1064, 35 P.3d 936. More recently, in State v. Most, 2009 WL 2371008, at *9 (Kan.App.2009) (unpublished opinion), pet. for review pending, the defe......
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State v. Villanueva
...of jurors, but held that the errors were harmless and did not impair Villanueva's right to a fair trial. See State v. Villanueva, 29 Kan. App.2d 1056, 35 P.3d 936 (2001). We granted Villanueva's petition for review of the Court of Appeals' decision. On review, Villanueva limits his claims o......