State v. Wells

• Citation: 221 P.3d 561
• Decision Date: 11 December 2009
• Docket Number: No. 99,813.,99,813.
• Parties: STATE of Kansas, Appellee, v. Jeremy Joseph WELLS, Appellant.
• Court: United States State Supreme Court of Kansas

221 P.3d 561

STATE of Kansas, Appellee, v. Jeremy Joseph WELLS, Appellant.

No. 99,813.

Supreme Court of Kansas.

December 11, 2009.

Robert V. Eye, of Irigonegaray & Associates, of Topeka, argued the cause, and Elizabeth R. Herbert, of the same firm, was on the brief for appellant.

Bethany C. Fields, deputy county attorney, argued the cause, and Barry Wilkerson, county attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by NUSS, J.:

Jeremy Joseph Wells was convicted of one count of aggravated criminal sodomy of his fiancée's 5-year-old-daughter, C.B., in violation of K.S.A. 21-3506. He was sentenced to life in prison without the possibility of parole for 25 years. He now appeals his conviction. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the trial court commit reversible error when it admitted evidence of Wells' prior bad acts under K.S.A. 60-455? Yes.

2. Did the trial court violate Wells' right to a fair trial by limiting the testimony of his expert witness? No.

Because of the erroneous admission of prior bad acts evidence, we reverse Wells' conviction and remand for new trial.

FACTS

Wells lived with his fiancée, R.B., in Manhattan, Kansas. Also living in the home were R.B.'s three children from previous relationships: 11-year-old B.H., 8-year-old C.H., and 5-year-old C.B. B.H. had her own room. C.H. and C.B. shared a bedroom, with C.H. sleeping in a regular bed and C.B. on a mattress on the floor alongside.

R.B. worked the night shift at a store, usually from 10 p.m. to 7 a.m. Wells worked as a caterer, so he would stay home with the children while R.B. worked. The three children all called Wells "daddy." Prior to the incident alleged in this case, Wells and R.B. had lived together for approximately 5 years, and they intended to get married. However, they recently had been fighting a lot. Wells claimed that about eight times per week R.B. threatened to kick him out of the house. Whenever Wells and R.B. fought, R.B. confided in B.H. and brought her into the problem.

When R.B. returned from work the morning of December 16, 2006, B.H. reported what she had observed in C.B.'s room several hours earlier. Based upon this report and information from C.B., 2 days later Wells was charged with one count of aggravated criminal sodomy.

At the subsequent jury trial, B.H. testified that around 3:30 a.m. she heard C.B. making a groaning noise, so she went to her room to check on her. When she got to C.B.'s room, B.H. attempted to turn on the light, missed and hit the wall, but switched on the light on her second try.

According to B.H., when the light finally came on she saw C.B. lying naked and face down on her bed. Wells was beside her but under the covers. She testified that she "never saw [Wells] without clothes." B.H. knew C.B. was crying because her eyes were wet.

B.H. testified that she asked Wells what he was doing, and he replied "nothing." B.H. said, "I am going to tell mom," and Wells told her he did not care. B.H. then turned off the light and went back to her own room. According to B.H., she then heard C.B. ask if she could put her pants back on, to which Wells said yes. After looking at her statement to police, B.H. recalled that after she confronted Wells in C.B.'s room, he had walked past B.H.'s room and said, "'[Y]ou are pathetic.'"

According to B.H., once Wells left C.B.'s room, B.H. went back into C.B.'s room and either asked her why she had her pants off or why she asked Wells to put her pants back on. C.B. replied, "I don't know." B.H. then went back to her bedroom. Before R.B. came home, B.H. tried to talk to C.B. about the incident. According to B.H., C.B. could not really tell her anything: "She didn't act like anything happened." When R.B. returned home from work, B.H. reported to her mother what she had seen.

B.H. also testified that Wells had a drinking problem. According to B.H., Wells "drank a lot" of beer and tequila. B.H. was "pretty sure" he was drinking the night of the incident because she could hear bottles moving around in the other room and because his eyes were watery.

During her cross-examination, B.H. admitted that she had lied several times in the past. Her mother admitted this problem had surfaced on a number of occasions.

R.B. testified that once she heard B.H.'s information that morning, she took C.B. aside and told her to tell her the truth about what happened the night before. R.B. asked C.B. if Wells had asked her to take off her pants, and C.B. replied, "Yes." R.B. also asked if Wells had asked C.B. to take off her panties, and C.B. replied, "Yes." R.B. then asked, "What did he do?" and C.B. said he "hugged her a lot." After more questioning, C.B. told R.B. that Wells made her touch his "winky," which R.B. knew was a reference to Wells' penis.

According to R.B., she became extremely upset. When she went into her bedroom to confront Wells, he was passed out on the bed. R.B. shook him, rolled him over, and told him to get out. But Wells just rolled over and went back to sleep.

R.B. again spoke with C.B. and asked her whether Wells had done anything else. C.B. said that she did not want to say it because it was a bad word. After assurances from R.B., C.B. said that Wells had put his thing on her butt (the bad word). R.B. asked whether it was "in" or "on" her butt, and C.B. said that it was "in." R.B. clarified, "Where your poop comes out?" and C.B. said, "Yes." R.B. also asked, "Did it hurt?" and C.B. said, "Yes." C.B. also said that Wells touched her "there," putting her hand on her crotch. When R.B. again told Wells to leave, she received no response because he was passed out on the bed.

R.B. testified that after receiving this information, she called the police, with Officers Les Horn and Danielle Kelley responding. According to Officer Horn's testimony, Wells was snoring in the bedroom when they approached. Horn announced his presence three times before Wells woke up. Wells' eyes were bloodshot and he smelled of intoxicants.

A pretrial ruling had allowed the State to present evidence of Wells' prior bad acts toward C.B. and B.H. Accordingly, Officer Kelley testified that during her interview, B.H. reported that at some previous time Wells "had tried to take her underwear off." According to Kelley, B.H. had told him "no" and he left the room. B.H. also testified about the incident, saying she could not remember when it occurred but that "it was at nighttime and he had tried to get my pants off." B.H. further testified, "He just like tried to pull the side down." She told Wells "`leave me alone,'" so he left the room.

Similarly, Detective Ryan Runyan testified C.B. told him in her interview that Wells "placed his crotch into her butt crack and it hurt" and that this incident was not the first time it had happened, although she could not give him a number of occurrences. She also told him that the prior episodes had all occurred after their move into their present house. Runyan gave her an example of "in" versus "out," and C.B. confirmed it was in her butt crack. Runyan's videotaped interview with C.B., which also contained this information, was played for the jury in lieu of her testimony.

Detective Runyan, who also interviewed Wells and R.B., additionally conducted videotaped interviews of C.B.'s siblings: B.H. and C.H. According to Runyan, C.H. had told him that C.H. woke up in the middle of the night and saw B.H. come into the room when she turned on the light. C.H. looked down and saw Wells lying in the bed next to C.B.

Runyan also testified that he had completed a week-long Finding Words interview course to learn the protocol on how to interview children. He testified about what the protocol requires and how he used it. He was cross-examined regarding this training, as well as his knowledge of other protocols and methods of questioning. He was further questioned about the discrepancies in the children's statements.

A physician's assistant trained as a sexual assault examiner testified that after a thorough examination of C.B., there was no obvious trauma to her. Moreover, the results of the DNA test were inconclusive, and no physical evidence connected Wells to the alleged crime. Diana Schunn, Director of the Sexual Assault Nurse Examiner/Sexual Assault Response Team Program in Wichita, testified that the "lack of injury does not confirm or deny that penetration could have occurred."

Wells also testified on his own behalf. According to Wells, he checked on C.B. that night because she often kicks off the covers and he heard a noise. As he was tucking C.B. into bed, B.H. walked into the room, turned on the light, and asked what he was doing. He said, "None of your business. Go back to bed." B.H. told Wells that she was "telling mom," and Wells said, "I don't care. Go back to bed." B.H. went back to bed.

According to Wells, he then went to the room he shared with R.B. and fell asleep. The following morning, R.B. began yelling at him, but he assumed R.B. was upset because he did not pick her up from work, so he fell back asleep. Wells awoke sometime later when two police officers came into the bedroom. He vehemently denied touching C.B. altogether.

Dr. Kathie Nichols, a Ph.D. psychologist, testified on Wells' behalf as an expert on the subject of interviewing children. She testified about five protocols commonly used for conducting interviews with children who have alleged sexual misconduct. She testified about the use and non-use of their common principles by Detective Runyan in this case. The trial court limited her testimony, however. Among other things, it prohibited her from testifying that the Finding Words protocol as used by Runyan could cause a false accusation of sexual abuse.

The jury convicted Wells of one count of aggravated criminal sodomy...