State v. Wilson, 105,196.

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation293 P.3d 168
PartiesSTATE of Kansas, Appellee, v. John David WILSON, Appellant.
Docket NumberNo. 105,196.,105,196.
Decision Date18 January 2013

293 P.3d 168

STATE of Kansas, Appellee,
John David WILSON, Appellant.

No. 105,196.

Court of Appeals of Kansas.

Jan. 18, 2013.

Appeal from Johnson District Court; Sara Welch, Judge.
Catherine A. Zigtema, of Maughan & Maughan LC, of Lenexa, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., MALONE, J., and BUKATY, S.J.



John David Wilson appeals his conviction for aggravated battery with great bodily harm. He argues the district court erred in three respects: in admitting evidence that Wilson had been physically violent towards the victim, Mary Murphy, on prior occasions; in preventing him from cross-examining Murphy about specific instances of her conduct; and in giving a sympathy instruction. For the reasons explained in this opinion, we find the district court did not err in any of these respects and we affirm.

We first set forth a rather detailed recitation of the explicit facts as testified to at the trial in order to better understand the issues on appeal.

The Facts

Wilson met Murphy when the two were children. Murphy and Wilson's sister were classmates. Wilson's sister was abducted and murdered as a child. Authorities charged a man 30 years later for the murder, and in August 2007, Murphy went to the preliminary hearing in that case and became reacquainted with Wilson. A romantic relationship began. Wilson moved from Florida to Kansas City to be with Murphy, and the two married October 19, 2007.

This case involves a May 3, 2008, fight between Wilson and Murphy. Both parties testified at trial, and both gave very different versions of the incident.

Murphy's Testimony

According to Murphy, on the morning of the incident she and Wilson went to her daughter's track meet in Bonner Springs. They arrived around 9:30 a.m. and watched the meet for about an hour and then went home. Wilson told Murphy he had finally decided to leave her. Wilson had threatened this before, but this time, he apparently was actually going to leave. At 11:30 a.m., Murphy went the Chief's Bar and Grill because she did not want to watch Wilson leave. Within 30 minutes, however, Wilson walked into the bar. Murphy was surprised and happy to see him and the two hugged. Although Wilson did not tell Murphy he was staying, she assumed he was not leaving her because he came to the bar.

Murphy asked the bar owner, Debra Pardee, for a ride on her motorcycle. Debra said she could not give Murphy a ride, but her husband, Norman Manning, known as Chief, could take Murphy for a ride. When Manning and Murphy returned from their ride, Wilson seemed agitated and ordered three shots of liquor. This made Murphy angry, as the two had agreed Wilson would not drink shots because they made him aggressive. Murphy left the bar around 12:30 or 1 p.m. and went home to take a nap.

Murphy awoke to commotion in the basement, but she did not see any cars outside. She went downstairs and found Wilson packing his things. Murphy testified that Wilson was very drunk. He was talking to someone on the phone and Murphy could tell it was a female, so she took the phone and asked who was on the other end of the call and the person hung up. Murphy grabbed a gas can and sprinkled gasoline over Wilson's suitcases and told him, “ ‘Since I bought all this stuff for you, you are not taking it with you.’

Wilson took the gas can from Murphy and poured it over her head. He told Murphy that if he could not take his things, he would burn everything. He pulled out a book of matches, lit two, and then blew them out. He shoved Murphy and she fell backwards and hit her head on the edge of his dresser. Murphy began bleeding and Wilson told her that he did not cause the bleeding but rather it was Murphy's fault. Murphy told Wilson he was right because she knew there was going to be a fight and she was afraid.

When Murphy got up, Wilson punched her about a dozen times. Murphy covered her face and asked Wilson to stop. Murphy was on her hands and knees trying to catch her breath when Wilson kicked her in the rib cage and she fell to the concrete floor. She again tried to get up, but Wilson kicked her in the ribcage two more times and that rolled her over onto her back where she lost consciousness. When asked if she ever hit Wilson, Murphy said, “Sir, if I tried to hit him, we [sic] would be attending a murder trial.”

When Murphy regained consciousness, Wilson was standing above her with a butcher knife in one hand and a long, serrated bread knife in the other. He told Murphy, “ ‘Today you die.’ “ Wilson stabbed Murphy in the face and dragged the knife across her face. He then asked her if she would prefer to have her throat slashed or be stabbed in the heart. He lunged at her and cut her on the other side of her face.

Murphy was trying to think of a way out of the basement, so she asked Wilson if she could have one last cigarette before she died. Wilson said yes, and as Murphy walked in front of him, he hit her three times in the back with something—maybe a bat or a board, which threw her to the ground where he began strangling her and banging her head on the concrete floor. Wilson told Murphy he was “going to dispatch [her] to the Lord.”

Wilson eventually let go and Murphy tried to walk but something was wrong with her back, so she began crawling. Wilson dragged Murphy up the stairs. The two went to the garage and Wilson told Murphy she stunk and took her shirt off and threw it in the garage before they entered the house. Wilson sat Murphy in the dining room and she had a cigarette.

When Murphy finished her cigarette, Wilson shoved her out of the chair and she hit the wall. Wilson took off her clothes, forced her into the bedroom, and told Murphy he was going to “get some,” which Murphy thought meant that they were going to have sex. Wilson told Murphy to get on her hands and knees on the bed, which Murphy did not want to do. Wilson grabbed baby oil, put it on himself and Murphy, and anally raped her. Wilson dragged Murphy off the bed, threw her on the floor, and told her to perform oral sex on him.

Wilson then went to the bathroom, and Murphy crawled to the front door and tried to get out of her house for help. Wilson heard Murphy turn the doorknob and he came out of the bathroom, told her she was not leaving, and pulled her away from the door. Murphy tried again unsuccessfully to leave, and Wilson then put a robe on her, laid her in the bed, and left the room.

When Wilson returned, he had a box cutter razor blade and told Murphy he was going to cut his wrists. He did not actually cut his wrists, however, and Murphy began asking Wilson if she could call an ambulance. Wilson refused, saying, “ ‘No way. They're going to know I did it.’ “ Murphy told Wilson she would not tell the ambulance crew how she was injured; she said she would say she was in a car accident. Wilson eventually allowed Murphy to call 911 at 9:34 p.m. When Wilson heard sirens, he left out the back door.

Wilson's Testimony

Wilson described a very different event. He testified that May 2, 2008, was a particularly good day for the couple. Then on May 3, the couple woke up, had sex, and started getting ready to go to the track meet. When they returned home, Wilson told Murphy he was going to the bank to get money for his trip home to Florida. When he returned from the bank, Murphy was not at the house and he could not get in touch with her on her cell phone, so he went to Chief's because he and Murphy had talked about going there earlier in the day. Murphy was there, and the two drank at the bar and discussed whether Wilson would leave. Murphy left the bar before Wilson, and Wilson got a ride home with another bar patron.

When Wilson arrived home, he was on the phone with a friend, and Murphy took the phone and screamed, “ ‘Who is this bitch from Florida.’ “ Wilson said he immediately got up to avoid confrontation and went downstairs to do his laundry and pack his belongings so he could move out. Murphy took Wilson's phone and told him she would not give him a ride to his car, at which time the two began arguing. The couple then had a very sad conversation about everything that had gone wrong in their relationship. The conversation ended when the two went to the bedroom and had sex, but Wilson did not ejaculate because he said that the relationship could not be fixed through sex. Wilson then went downstairs and continued to do laundry and pack. As he was waiting for his laundry, Wilson and Murphy watched television upstairs.

When Wilson was getting ready to walk to Chief's and get his car, Murphy told him, “ ‘I'm going to end this all.’ “ About a minute later, Wilson heard a crashing noise in the basement, got up, and went downstairs where he found his television on the floor. He turned around and saw Murphy pouring gasoline in his tote. Wilson froze, and Murphy told him, “ ‘You're not going to abandon me, like you did your sister,’ “ and began “dousing” Wilson with gasoline. Wilson “swatted” at her to get her to stop. When Murphy stuck the gas can in his eye, Wilson knocked the can out of her hand. Wilson could not see because he had gas in his eyes but he heard a lighter. He opened his left eye and there was fire coming at his shirt. Wilson slapped Murphy down and jumped backwards. He saw a sandwich knife on the dresser and picked it up because he was scared. He swiped at Murphy with the knife once.

Wilson heard the click of the lighter again and tackled Murphy; the two hit the corner of the dresser. Murphy was on top of him and again trying to light him on fire. In an effort to get the lighter, Wilson threw a series of kicks and punches and pinned Murphy to the floor where he got the lighter out of her hand, ending the fight. Wilson washed the gasoline out of his eyes with water from the washing machine and then turned around and looked at Murphy.

Wilson testified the...

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