State v. Wright, No. 97,013.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtBeier
Citation224 P.3d 1159
PartiesSTATE of Kansas, Appellee, v. Mary Ann WRIGHT, Appellant.
Decision Date26 February 2010
Docket NumberNo. 97,013.
224 P.3d 1159
STATE of Kansas, Appellee,
v.
Mary Ann WRIGHT, Appellant.
No. 97,013.
Supreme Court of Kansas.
February 26, 2010.

[224 P.3d 1160]

Michelle Davis, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.

Jan Satterfield, county attorney, argued the cause, and Steve Six, attorney general, was with her on the briefs for appellee.

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


This is a direct appeal from defendant Mary Ann Wright's conviction of rape. Wright argues that there was insufficient evidence to convict her of rape by force or fear and that the district court erred in admitting evidence under K.S.A. 60-455.

FACTUAL AND PROCEDURAL BACKGROUND

Wright provided massages out of her home. She was primarily self-taught, learning with the aid of books and videos from the library. Wright's clients included J.L., age 21.

On the day the rape allegation arose, J.L. arrived at Wright's home for a massage. Wright asked J.L. if she would be interested in a full body massage. When J.L. had agreed, J.L. disrobed and covered herself with a beach towel. She first lay face down. Wright massaged J.L.'s back, buttocks, legs, and feet and then asked J.L. to roll over. J.L. felt uneasy as Wright began massaging the top of her breasts but assumed it was part of the full body massage. J.L. dozed off as Wright began massaging her calves and feet. When she woke up, she saw Wright's hand and arm between her legs and felt Wright's fingers moving in and out of her vagina. J.L. became tense; Wright stopped; and J.L. left.

J.L. did not contact the Leon Police Department until the next day. The police referred her to the Butler County Sheriff's Department.

J.L. met with a sheriff's deputy and informed him that she fell asleep during the massage, woke up, and discovered Wright penetrating her vagina with two fingers. J.L. said that "she was startled at first and afraid. Then she got mad and felt like getting up and hitting [Wright]. But she was too afraid and [Wright] said something to the effect that she just wanted her to experience the full massage.... [J.L.] said that ... it paralyzed her [with fear]."

J.L. also mentioned that another of Wright's clients had told her that Wright asked an inappropriate question during a massage. The second client eventually told the sheriff's deputy that Wright had offered her a genital massage.

As the investigation continued, a female detective with the Sedgwick County Sheriff's Office scheduled a massage by Wright. Eventually, this detective would testify at trial about her experience with Wright. The detective said that the massage was significantly different from other massages she had received. Wright had removed a towel so that the detective lay on the massage table undressed and uncovered. In addition, Wright made her uncomfortable with certain of her motions during the massage of the detective's buttocks and touched the detective's breasts with her palm. According to the detective, Wright also offered her a genital massage.

224 P.3d 1161

A search of Wright's home eventually resulted in seizure of several pornographic videos and books. During the search, the Butler County sheriff's deputy informed Wright of her Miranda rights. Wright agreed to talk to the deputy, confessing that she had offered genital massages to some of her clients. Wright said that "[f]or a female [a genital massage] was a massage of the outer lips and also the vagina.... On a male ... it was a massage of the penis until ejaculation." Wright also admitted that she may have slipped and accidentally inserted her finger into J.L.'s vagina.

A second Butler County sheriff's investigator also interviewed Wright, who told him that a "genital massage is when ... the male penis and the woman's vaginal area was massaged." Wright again admitted that she had offered genital massages to her clients but said that none had accepted. She initially denied inserting her fingers into J.L.'s vagina but later said that she had used vegetable oil for J.L.'s massage, that the oil was slick, and that her finger may have slipped into J.L.'s vagina while she was massaging her thigh. Wright also admitted that she visited pornographic sites of nude women and acknowledged that she was bisexual, but Wright said she had never acted on her sexual attraction to women. Wright said she had become sexually excited while giving her first few massages but had since "been able to block that out."

Wright then wrote a statement about her encounter with J.L.:

"I accidentally slipped my index finger into the outer vagina about one half inch when massaging [J.L.] May of 2005. I was massaging her inner thighs when this occurred. It was not intentionally done. And I am very sorry it happened.... I did not do this on purpose, as I am not doing massages for sexual gratification. I am doing it for others to help relieve stress, tension and [to promote] general good health."

The State charged Wright with one count of rape. The State filed a pretrial motion seeking to admit evidence of (1) Wright's offers of genital massage to the second client and the Sedgwick County sheriff's deputy, and (2) her expression of her sexual attraction to other women. The State argued this evidence was relevant to prove absence of mistake or accident under K.S.A. 60-455. During a hearing on the motion, the State also sought admission of Wright's statement that she had visited pornographic websites to prove Wright's state of mind and intent. Wright argued that the evidence was highly prejudicial and irrelevant. The district judge ruled in favor of the State, saying:

"[I]n the case before the court the defendant does not deny the intercourse but asserts mistake or lack of intent to rape. Mistake or accident denotes an honest error. This defense is completely consistent with the [State v. Davidson, 31 Kan.App.2d 372, 379-82, 65 P.3d 1078 (2003),] rationale for admitting K.S.A. 60-455 evidence when, in fact, it is proper to be admitted.

"This court further finds (1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed material fact; and (3) the probative value of the evidence outweighs its prejudicial effect for the reasons and rationale [as] set forth in the State's memorandum and brief pursuant to the applicable case law therein.

"Finally, pursuant to [State v. Morgan, 207 Kan. 581, 485 P.2d 1371 (1971)], this Court finds the prior act is admissible, irrespective of a conviction."

During trial, J.L. testified about her meaning when she described "dozing off" during her massage:

"Q. [Y]ou had never fallen asleep during these [massages]?

"A. I would doze off on occasion.

"Q. When was that?

"A. Any time I would be relaxed enough to close my brain—my brain was relaxed. I couldn't call it sleeping. I wasn't in a complete deep sleep like I do every night when I go to bed.

"Q. So the—but you still you went ahead and fell into a deep sleep the first time you are getting this full body massage?

"A: There is a difference between sleeping maybe five minutes or so and sleeping eight hours.

224 P.3d 1162

"Q: There was a—there was a level of sleep you were in? Were you asleep or not asleep during this full body massage?

"A: That's—I dozed off to sleep. It was not a very deep sleep like I am when I sleep a full eight hours."

The second client to whom investigators had been directed by J.L. testified that Wright had informed her during a massage that "she could do neck, shoulders, back, full body, genitals." She also testified that she had stopped going to Wright for massages because Wright became "scary," once calling her 20 times in a 6-hour period. Another day, the client testified, her caller identification system showed 28 calls from Wright. Wright also had left notes on the second client's car and had asked children to bring notes to the client's workplace.

Wright testified in her defense. She addressed one of the videos seized during the search of her home, saying she had ordered it from a catalog and did not realize it was erotic:

"A. I still didn't realize [it was erotic] until you are all talking about it up here. I looked at the title and it says Tantric Massage.

. . . .

"Q. Okay and [the video] includes hand massages, if you will, of males to the point of ejaculation, correct?

"A. Yes.

"Q. And it includes genital massages, [including] penetration to the point of climax or orgasm, correct?

"A. Yes.

"Q. And you don't consider that sexual?

"A. It is sexual, but it was in the massage and I thought that was part of the massage. Having never had a massage myself I did not know."

Wright also asserted that she had made her statements to the Butler County sheriff's investigator under stress:

"A.... [The investigator] started talking about did I touch [J.L.] accidentally? And I said, I don't think so. I don't know. Because it had been [a]while since I had given [J.L.] a massage and I was really in a state of shock.

. . . .

"A. [The investigator] said, now think about it. I said, well, I might have had, because I was not sure. And he kept at me and saying, well, are—you have to be really sure. And I[sat] there maybe two minutes. I said, well, I did apparently touch [J.L.] accidentally."

Wright also testified that she had identified herself as bisexual but had never acted upon her sexual attraction to other women and had not obtained sexual gratification through her massage practice. She tried to explain why she had not completely covered the Sedgwick County sheriff's deputy with a towel and said she had offered her a genital massage:

"A. I had a towel there. And I have found out since that I should have kept [the deputy] covered. My massage material that I had showed totally nude without cover.

. . . .

"A. I thought that was the way it should be done. I hadn't learned any better.

"Q. Did you at any point have a discussion with [the deputy] about a genital...

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147 practice notes
  • State v. Brown, No. 108,218.
    • United States
    • United States State Supreme Court of Kansas
    • July 3, 2014
    ...the defendant's participation, if any, in the actual commission of the crime.” (Emphasis added.) In State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010), we said that “ Timley required sufficiency of evidence to support each alternative means upon which a jury is instructed, in order to......
  • State v. Brown, No. 112,782.
    • United States
    • United States State Supreme Court of Kansas
    • September 15, 2017
    ...on a means for which there was no trial evidence, it would violate the super sufficiency rule from [State v.] Wright [ 290 Kan. 194, 224 P.3d 1159 (2010) ], which requires sufficient evidence ‘to support each alternative means upon which a jury is instructed.’ ... Reversal for insufficient ......
  • State v. Stafford, No. 103,521.
    • United States
    • United States State Supreme Court of Kansas
    • December 14, 2012
    ...for aggravated criminal sodomy (oral) must be reversed pursuant to the super-sufficiency requirement of State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). As we recently noted in State v. Brown, 295 Kan. 181, Syl. ¶¶ 3–6, 284 P.3d 97......
  • State v. Ortega, 106,210.
    • United States
    • United States State Supreme Court of Kansas
    • October 3, 2014
    ...to prove both these and all other alternative means contained in K.S.A. 21–3422. See 300 Kan. 773State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010) (in alternative means cases, jury needs not be unanimous as to which means defendant utilized but there must be substantial competen......
  • Request a trial to view additional results
147 cases
  • State v. Brown, No. 108,218.
    • United States
    • United States State Supreme Court of Kansas
    • July 3, 2014
    ...the defendant's participation, if any, in the actual commission of the crime.” (Emphasis added.) In State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010), we said that “ Timley required sufficiency of evidence to support each alternative means upon which a jury is instructed, in order to......
  • State v. Brown, No. 112,782.
    • United States
    • United States State Supreme Court of Kansas
    • September 15, 2017
    ...on a means for which there was no trial evidence, it would violate the super sufficiency rule from [State v.] Wright [ 290 Kan. 194, 224 P.3d 1159 (2010) ], which requires sufficient evidence ‘to support each alternative means upon which a jury is instructed.’ ... Reversal for insufficient ......
  • State v. Stafford, No. 103,521.
    • United States
    • United States State Supreme Court of Kansas
    • December 14, 2012
    ...for aggravated criminal sodomy (oral) must be reversed pursuant to the super-sufficiency requirement of State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010), and State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994). As we recently noted in State v. Brown, 295 Kan. 181, Syl. ¶¶ 3–6, 284 P.3d 97......
  • State v. Ortega, 106,210.
    • United States
    • United States State Supreme Court of Kansas
    • October 3, 2014
    ...to prove both these and all other alternative means contained in K.S.A. 21–3422. See 300 Kan. 773State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010) (in alternative means cases, jury needs not be unanimous as to which means defendant utilized but there must be substantial competen......
  • Request a trial to view additional results

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