State v. White

• Decision Date: 06 August 2021
• Docket Number: No. 122,039,122,039
• Citation: 494 P.3d 248
• Court: Kansas Court of Appeals
• Parties: STATE of Kansas, Appellee, v. Johnny C. WHITE, Appellant.

494 P.3d 248

STATE of Kansas, Appellee,

v.Johnny C. WHITE, Appellant.

No. 122,039

Court of Appeals of Kansas.

Opinion filed August 6, 2021.

Kasper Schirer, 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 Powell, P.J., Malone and Gardner, JJ.

Gardner, J.:

Johnny C. White appeals his conviction of aggravated indecent liberties with a child under the age of 14. He argues that the district court committed reversible error by excluding polygraph examination evidence integral to his defense, allowing the State to amend its charging document, admitting an unduly prejudicial video of his confession to a prior crime, and committing cumulative error. White also argues, and the State agrees, that the district court erred in sentencing him. We agree that White's sentence must be corrected but find no error warranting the reversal of his conviction.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2017, C.U. told her aunt, Malinda G., that she had been sexually abused in 2009. Although C.U. was sitting in the same room as Malinda, C.U. sent this information to her through a text message. C.U.'s text said that when she was around eight years old, a man named "John" touched her inappropriately when she was at a sleepover with her friend, A.B. C.U. alleged this happened three times. Shannon B., A.B.'s aunt, owned the home where the abuse occurred. Although she did not reference Shannon by name, C.U. told Malinda that she thought "John" was A.B.'s aunt's father and lived in the basement of the house.

C.U. and Malinda found on Facebook a picture of the person C.U. believed was her abuser. Believing she knew her abuser's first and last names, C.U. found photos of John B., which she thought showed similar "facial features" to the man who sexually abused her. C.U. identified John B. as her abuser.

Unbeknownst to C.U., John B. was not Shannon's father but her father-in-law. And John B. did not live or typically stay overnight in Shannon's home. Johnny C. White is Shannon's biological father and he lived in Shannon's home for several years; his bedroom was in the basement. And White had sexually abused Shannon's daughter, his granddaughter, who was a similar age as C.U. and spent a lot of time with C.U. In 2014, White pleaded guilty to aggravated indecent liberties with a child for his sexual abuse of his 15-year-old granddaughter.

Investigation of C.U.'s Allegations

The morning after C.U. made her disclosure, Malinda called the police. She told the responding officer about C.U.'s statements and showed him a picture of John B. The officer reported the basic information Malinda provided, including C.U. and John B.'s names, before leaving. After the officer left, C.U. reviewed the photo of John B. and realized, possibly because of her Mother's persuasion, that she had misidentified him as the person who abused her. She then identified White as her abuser.

Detective Dan Ribble investigated C.U.'s claims. C.U. told Ribble that White had assaulted her, although she identified her abuser as Shannon's dad. When asked why the police report listed John B., C.U. explained that she had misidentified John B. but had since realized that White was her abuser. C.U. also told Ribble that she knew White had sexually abused his granddaughter.

C.U., who was 15 or 16, also told Ribble that she was around 8 years old and in the second grade when the crime occurred. She alleged that White had inappropriately touched her twice but she remembered only one time. She recalled that White had walked upstairs from his room in the basement, entered the living room where she was sleeping on the couch, sat on the couch, pulled her underwear down, touched her vagina, and forced her to touch his penis. C.U. believed she was lying on her side during the assault.

Interrogation, Polygraph Examination, and Confession

Ribble first interviewed White at the Hutchinson Correctional Facility on August 3, 2017. He advised White before he began questioning him that White did not have to speak to him without an attorney present. White told Ribble that he remembered C.U. and generally described what she looked like as a child. White also remembered seeing C.U. at Shannon's home, sometimes sleeping on the couch in the living room. But White denied having touched C.U. and said he never forced C.U. to do anything to him. Before concluding the interview, Ribble asked White if he would later submit to a polygraph examination to corroborate his claims, and White agreed.

Ribble returned to the Hutchinson Correctional Facility with Rick Atteberry, a Kansas Bureau of Investigation investigator, to administer a polygraph examination on August 17, 2017. Atteberry read White his Miranda warnings before administering the examination. Ribble was not present when Atteberry questioned White and administered the examination, which took around two hours. Throughout the examination, White maintained that he did not touch or otherwise engage in any sexual activity with C.U. But Atteberry concluded that the polygraph results showed White was being dishonest. And when Ribble returned to the interview room, Atteberry told Ribble that White had failed the polygraph examination, so Ribble began questioning White again.

During his renewed questioning, Ribble referenced White's previous conviction and actions with his granddaughter. Ribble told White that he, not C.U., was lying and that White needed to describe what he did to C.U. because she needed answers so she could get some closure. White acknowledged his previous conviction and conceded that he had sexually abused his granddaughter but continued to deny that he touched C.U. or forced her to touch him. But around 20-30 minutes into Ribble's renewed questioning, White ultimately admitted that C.U. "[was] not lying" and then confessed that he had touched her sexually. White gave details, ultimately admitting that he had rubbed C.U.'s vagina with his hand to make her feel good. But White denied that C.U. had touched him.

Pretrial Proceedings

The State charged White with two off-grid counts of aggravated indecent liberties against a child under 14 years old. The first count charged that White touched C.U.'s vagina and the second charged that White forced C.U. to touch his penis.

Before trial, White moved to suppress his 2017 confession, asserting it was involuntary and coerced by the polygraph examination. The State argued that White's confession was admissible but moved to exclude any mention of the polygraph examination.

The State also moved in limine to admit a video of White's 2014 confession related to his previous conviction as K.S.A. 60-455(d) propensity evidence. The 2014 video showed an interview by Detective Nathan Gerdsen, in which White confessed in graphic detail to sexual acts with his 15-year-old granddaughter. White objected, arguing the prejudicial effect of the 2014 video was huge, outweighing any probative value, and that the 2014 and 2017 events were factually dissimilar.

The district court held evidentiary hearings on the parties' motions and ultimately ruled for the State. The district court

• found White's 2017 video confession was voluntary and admissible;

• granted the State's motion to exclude all evidence related to White's polygraph examination, including that he agreed to take the examination, that he took the examination, or that he failed the examination; and

• granted the State's request to admit White's 2014 video confession as propensity evidence under K.S.A. 60-455(d).

White's Stipulation

Before the district court swore in the jury, White signed a written stipulation that he "was convicted of aggravated indecent liberties on June 10, 2014 in Sedgwick County District Court for events occurring on March 1, 2014 with [C.N.B.]." C.N.B. was White's 15-year-old granddaughter, as the State emphasized in its opening statement, and as later testimony established. White noted that he was not waiving his prior objection to the admission of that conviction or of the 2014 video confession associated with that case. The court accepted the stipulation, confirmed that White had waived no arguments through the stipulation, and renewed its prior rulings on the admission of evidence under K.S.A. 60-455(d).

Opening Statements

In his opening statement, White told the jury that C.U.'s allegations were not credible as shown by the circumstances prompting her accusation, the length of the delay in her disclosure, the lack of physical evidence, the inconsistencies in her disclosures to Malinda and Ribble, and the initial identification of John B. as her accuser. White also argued that the evidence would show that the police used coercive tactics to obtain his false confession.

The State's opening referred to White's 2017 and 2014 confessions. The State told the jury that it could consider the evidence involving White's granddaughter but clarified that White was not on trial for those actions.

Exhibits

Shortly after making its opening statement, the State admitted and published the video of White's 2014 confession. Throughout the confession, White openly admitted to committing a sex offense—describing an act that most would characterize as rape—against his teenage granddaughter. White cried throughout the interview and told the interviewing detective that he hated himself and had attempted suicide because of his crime.

The State also admitted photos of some of C.U.'s texts to Malinda, and the video of White's 2017 confession. Although the jury heard evidence that Ribble had interviewed White twice, the video showed only a redacted version of the August 17 interview in which White admitted that he touched C.U. sexually but denied that she touched him in any way.

Testimony

The State presented testimony from Gerdsen, Malinda, Shannon, C.U., and Ribble. White did not testify on his own behalf, referencing the district court's order...