State v. Willis

• Decision Date: 02 October 2015
• Docket Number: 110,954.
• Citation: 358 P.3d 107,51 Kan. App. 2d 971
• Parties: STATE of Kansas, Appellee, v. Lamar WILLIS, Appellant.
• Court: Kansas Court of Appeals

51 Kan.App.2d 971

358 P.3d 107

STATE of Kansas, Appellee

v.Lamar WILLIS, Appellant.

110,954.

Court of Appeals of Kansas.

Oct. 2, 2015.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., ARNOLD–BURGER, J., and JOHNSON, S.J.

Opinion

MALONE, C.J.

Lamar Willis appeals his convictions of two counts of aggravated indecent liberties with a child, one count of aggravated criminal sodomy, and one count of attempted rape.Willis claims: (1)the district court erred in denying his requests for discovery; (2)the district court erred by granting the State's motion in limine and excluding certain evidence; (3)the district court violated his due process rights by admitting evidence of prior crimes under K.S.A. 60–455;(4)the district court gave an erroneous limiting instruction regarding the K.S.A. 60–455 evidence; (5)the prosecutor committed misconduct during closing argument; (6) cumulative error requires reversal; and (7)the district court erred by denying his motions for a sentencing departure.We agree, in part, with Willis' claim that the district court erred in denying his requests for discovery, and we remand for the district court to conduct an in camera inspection of certain records.However, we affirm the district court's judgment on all remaining claims.

Factual and Procedural Background

We will review the facts in detail.In 1996, Sherry Jones and James Newman began dating and, on December 1, 1998, their daughter, J.N., was born.At some point, J.N. went to live with her grandmother.Although Jones and Newman split up around 2001, Newman continued to see J.N. and the two sons he had with Jones.

Also in 2001, Jones met Willis, whom she married in 2003.They lived in Leavenworth, Kansas.Newman's sister, Nicole Newman, and J.N. were close, and on occasion Nicole would pick up J.N. at her grandmother's house and take her to Leavenworth, to Jones and Willis' home.Nicole later testified that on multiple occasions, Jones was not home when Nicole and J.N. arrived at the house, so Nicole would leave J.N. alone with Willis.Jones and Willis divorced within less than a year, but they remained friends and, in 2004, they reconciled and remarried.

In 2005, J.N. came to live with Jones, Willis, and J.N.'s brothers in Leavenworth.During that time, Jones worked nights and Willis worked days, so Willis was the only adult with the children at night.Newman later testified that at times he would call Willis and Jones' house and his two sons would be there but Willis and J.N. would not be at home.Also, Newman testified that on at least one occasion, when he picked up J.N. from the house, J.N. and Willis were the only ones home and J.N. was in a bedroom.

Discovery of Facebook messages

Jones and Willis divorced for a second time soon after they remarried, but they remained close.In 2006, Nicole helped J.N. set up an email account so that Nicole and J.N. could stay in touch.Nicole knew the password to J.N.'s account and monitored it regularly.At some point, J.N. also obtained a Facebook account, which Nicole learned about when J.N. sent her a friend request on Facebook.

Sylvia Cheney, Jones' sister and J.N.'s aunt, learned in early 2010 that J.N. had two Facebook accounts—one under her own name and one under the name “Jade.”Cheney informed Jones, who punished J.N. and told her to delete the accounts.Jones later testified that she discovered that J.N. had been using the false online identity to communicate with older men on Facebook.

In April 2011, Jones and J.N. moved to Kansas City, Kansas.Willis had moved there around the end of 2010.Although he remained in contact with J.N. and her brothers, Willis stated that he moved in part because Jones had become involved with another man and had “pulled the kids away from [Willis].”Jones later testified that Willis spent more time with J.N. than he did with the boys and that Willis bought J.N. items he did not buy the boys, such as a cell phone and a computer.

On September 10, 2011, Nicole checked J.N.'s email account and found that Willis had sent Facebook messages to J.N. that Nicole felt were inappropriate.The Facebook messages had been forwarded to J.N.'s email account.Specifically, Nicole found the following message inappropriate:

“You're my buddy, I consider u one of my best best best friends.As far as I'm concerned, your'e an awesome person,; and God knws I miss u terribly bad.I miss us sitting around talking while Jade try and convince me to let her have company with her horny self.(Is she still like she use to be, wanting to date older guys.... n still very horny)?U knw her better than I do.So is she?”

Nicole printed out that message and some others between Willis and J.N. and gave them to Newman, who showed them to Jones.Jones called Willis and asked him what was going on, but Willis laughed it off and told Jones that Jade was one of J.N.'s older friends.Jones and Newman asked J.N. why Willis talked to her as he did in the message, and J.N. repeatedly said she did not know.

At that point, Jones remembered that J.N. had used the identity Jade before.She confronted J.N. and said that she knew J.N. was Jade, but J.N. refused to say anything to either Jones or Newman.Newman took Jones and J.N. to a relative's house, where Jones' family had gathered.Once there, Jones and her sisters spoke with J.N., who ultimately revealed that Willis had touched her sexually.Newman stated that J.N. was “shaken up and crying and shaking.”Jones called the police.

Law enforcement investigation

Officer Sarah Panjada of the Kansas City, Kansas, Police Department responded to the call and spoke with Jones, whom she described as “upset” and “very animated.”Jones told Panjada that her ex-husband had inappropriate contact with J.N. Jones showed Panjada the Facebook messages and said that J.N. had told her that Willis had “been feeling on her and kissing on her.”With Jones' permission, Panjada spoke with J.N.Although J.N. appeared uncomfortable and embarrassed, she told Panjada that she and Willis had sexual contact on multiple occasions.According to J.N., Willis had touched her breasts and her genitals, kissed her, and tried to penetrate her vagina with both his fingers and his penis.J.N. also described being naked in a bed with Willis and said he forced her to perform oral sex on him.J.N. had difficulty remembering how far back the abuse went but remembered it happening in April 2007 in Leavenworth.

On September 15, 2011, Erin Weiss, a forensic interviewer, interviewed J.N. at the Sunflower House.In the interview, J.N. described numerous times when Willis had sexually assaulted her.J.N. also stated that Willis took naked photographs of her, showed her a video of Willis and Jones having sex, and told her if she told anyone, both he and Jones would hurt her.On September 19, 2011, pediatric nurse practitioner Jana Etherton–Still examined J.N. at Children's Mercy Hospital and found a notch on J.N.'s hymen, which could have resulted from previous trauma or could have been a normal variant.

On September 20, 2011, police searched Willis' house, supervised by Detective Jackie Lynn.Claude Harper, a member of the crime scene investigation unit, collected a computer, a camera, flash drives, and a tripod and camcorder from the house and seized a laptop computer and flash drive from Willis' truck.Forensic scientist Todd Taylor, who worked at the Heart of America Regional Computer Forensics Laboratory, examined the computer, the cameras, and the flash drives.He found nothing relevant to allegations of sexual abuse on the laptop, the camcorder, the digital camera, the memory card in the digital camera, or one of the flash drives.On another flash drive, in a space where deleted items are found, Taylor found photographs of a bed with no bedding, photographs of a girl, and photographs of the girl with a man.None of the photographs was overtly sexual.

Criminal charges and prosecution

On September 22, 2011, the State charged Willis with two counts of rape, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child, all off-grid person felonies.After the preliminary hearing, the State asked to amend the information.The district court granted the request, and the State amended the information to charge an additional three counts of aggravated indecent liberties with a child, to charge an additional three counts of aggravated criminal sodomy, and to charge the rape counts in the alternative as attempted rape.

Both parties filed a number of pretrial motions.The district court heard argument and resolved most of the motions at a hearing on November 30, 2012.We will discuss the motions and the district court's ruling in more detail later in this opinion.

The jury trial began on March 25, 2013.The State presented testimony from Nicole, who read into the record the objectionable Facebook message she had shared with Newman.Newman and Jones testified as well.In addition to relating the information above, Jones testified that since moving to Kansas City, J.N. had spent the night at Willis' home a couple of times without her brothers and that Willis had once hired J.N. to clean his kitchen.Cheney testified that she had seen Willis pick up J.N. in his truck.The State played for the jury Jones' 911 call reporting that her ex-husband had molested J.N.

Panjada testified about responding to that call and her contact with Jones and J.N. Harper and Lynn testified about the search of Willis' home.Taylor testified about what he found—and did not find—in his examination of the electronics seized in the search.During his testimony, the State admitted the deleted photographs Taylor discovered on one flash drive.Weiss testified, and the State showed the jury the recording of Weiss' interview with...