State v. Yarbrough
| Decision Date | 19 July 2013 |
| Docket Number | No. 108,096.,108,096. |
| Citation | 303 P.3d 727 |
| Parties | STATE of Kansas, Appellee, v. David YARBROUGH, Appellant. |
| Court | Kansas Court of Appeals |
STATE of Kansas, Appellee,
v.
David YARBROUGH, Appellant.
No. 108,096.
Court of Appeals of Kansas.
July 19, 2013.
Appeal from Wyandotte District Court; Thomas L. Boeding, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MALONE, C.J.
David Yarbrough appeals his convictions and sentences following a jury trial at which he was convicted of multiple counts of sexual abuse of his step-granddaughter, A.G. Yarbrough argues that the prosecutor committed misconduct during voir dire and that the district court erred in denying his motion for a mistrial based on prejudice in the jury pool. He also contends that the district court erred in denying his motion for new trial based on ineffective assistance of counsel. With respect to his sentences, Yarbrough argues that the district court erred in denying his motion for a downward dispositional departure and erred in sentencing him to life imprisonment with parole eligibility after a mandatory minimum of 25 years rather than a mandatory minimum of 20 years. Finding no reversible error, we affirm the district court's judgment.
Yarbrough was charged with 19 counts, including three counts of rape, four counts of aggravated indecent liberties with a child, two counts of attempted aggravated indecent liberties with a child, eight counts of aggravated criminal sodomy, and two counts of attempted aggravated criminal sodomy for allegedly molesting his step-granddaughter, A.G., on numerous occasions between February 1, 2009, and July 31, 2010. A.G. was under 14 years old at the time of the alleged offenses.
During jury voir dire, the prosecutor read the 19 counts to the jury pool and asked if any potential jurors thought it would be too traumatic for them to listen to the evidence in the case. Fourteen potential jurors stated that they could not be fair and impartial jurors based solely on the nature and/or number of charges against Yarbrough, even though they agreed that Yarbrough was presumed innocent and that they had not yet heard any evidence. Those jurors were excused from further service.
Later during voir dire, the prosecutor asked if any potential jurors had known a child to make false allegations of sexual abuse against another person. One potential juror answered yes. The following exchange then occurred:
“[PROSECUTOR]: And how did you come to learn that the allegations were false?
“[POTENTIAL JUROR]: I was at—actually told by an employee in the prosecutor's office they didn't believe the allegations in the first place.
“[PROSECUTOR]: Now, did you take— did the system work as far as weeding the case out before the case went to trial ?
“[POTENTIAL JUROR]: The case was dismissed six days before trial, 20 months after the allegations were made so it sat and sat and sat and obviously the alleged victims, the alleged victim family, our family, suffered a great deal during that 20 months.
“[PROSECUTOR]: Okay. But the case was ultimately dismissed?
“[POTENTIAL JUROR]: Yes, it was.
“[PROSECUTOR]: It never went to trial?
“[POTENTIAL JUROR]: Correct.
“[PROSECUTOR]: Now, is there anything about that experience that you think you cannot be fair and impartial in this case?
“[POTENTIAL JUROR]: Listening to some of your questions, I'm like okay, I can see both sides of answering them, for example, the medical evidence. There's some pretty severe allegations in there about some very, you know, specific and concrete contact between the alleged perpetrator and the alleged victim. I would more often than not—not always necessarily expect some medical evidence, not have to, but kind of anticipate some of it. Knowing how the system works having been a paralegal working at the table, having been involved with the family of someone involved in the allegations and having a prosecutor actually tell me they never believed the charges in the first place, it's hard to sit back and be unbiased knowing also that they knew the detective failed in his job.
“[PROSECUTOR]: Do you think you could listen to the evidence and do you think you could put that experience aside and just make your decision only on the evidence you hear in this case?
“[POTENTIAL JUROR]: If I am confident that everybody followed proper protocol and procedures, I'm okay with it. It's when the system clearly fails and they all turn a blind eye to somebody not doing their job, then I have a problem.
“[PROSECUTOR]: Okay. Thank you.” (Emphasis added.)
That potential juror ultimately was not selected to sit on the jury. The following day, after the parties made their opening statements but before any evidence was heard, Yarbrough moved for a mistrial on the basis that the jury pool was prejudiced by the number of potential jurors who stated that they could not be impartial based on how many counts had been filed in the case. The district court summarily denied the motion.
Trial TestimonyA.G.'s mother, Jasmine, testified that for many years, A.G. and her younger sister would spend the night approximately every other weekend at the house of their paternal grandmother, Gracie Yarbrough (Gracie), and her husband, Yarbrough. Jasmine stated that A.G. would sometimes indicate that she did not want to go to her grandparents' house, but that A.G. appeared to get along with her grandparents and that the families generally had a good relationship. At the time, A.G. was receiving good grades at school and did not have any discipline or attendance problems. In July 2010, Jasmine's nephew was killed. The family became occupied with that situation, so A.G. and her sister visited their grandparents' house less frequently. Around the same time, A.G. developed sleeping problems, although A.G. never told Jasmine why she was having trouble sleeping.
Jasmine testified that during the early morning hours of February 18, 2011, while A.G. and her younger sister were staying with their grandparents, Jasmine received a text message from A.G. stating that she had been “touched” by Yarbrough since she was 9 or 10 years old and that she believed he had raped her the year before. Jasmine immediately called Gracie, told Gracie what A.G. had texted, drove over to the house, and waited outside with her daughters until police arrived. Police officers who responded to the scene testified that A.G. told them that Yarbrough had been molesting her since she was 9 or 10 years old and that the last incident occurred in July 2010. Because the last incident allegedly occurred over 6 months earlier, police did not attempt to locate or preserve any DNA evidence. A.G. did undergo a medical exam, although the results of that exam were not discussed at trial.
Later in the day on February 18, 2011, A.G. was taken to Sunflower House, a children's advocacy center, to be interviewed by a forensic interviewer specially trained in non-leading interview techniques. The forensic interviewer who interviewed A.G. testified that during the interview, A.G. stated that Yarbrough touched her breasts underneath her clothes with his hands and mouth, touched her vagina with his finger both on the inside and outside on multiple occasions, inserted his finger and his penis into her anus on multiple occasions, and inserted his penis into her vagina on one occasion. A.G. stated that Yarbrough had asked her to touch his penis with her mouth and her hand, but she refused. A.G. also stated that Yarbrough had told her to keep it a secret and had offered her driving practice and gave her money. The forensic interviewer testified that it was not unusual for a child victim to delay disclosing abuse. A video of A.G.'s interview at Sunflower House was admitted into evidence.
At trial, A.G. testified that Yarbrough began touching her when she was around 9 or 10 years old while she was at her grandparents' house. She stated that Yarbrough would use his hands to touch her butt, vagina, and breasts, both over and underneath her clothes, and that she would take off her clothes when Yarbrough told her to do so. Yarbrough would also touch her butt, vagina, and breasts with his mouth. A.G. further testified that Yarbrough put his finger inside her anus and her vagina on multiple occasions. He also put his penis inside her anus on multiple occasions. On at least one occasion, he put his penis inside her vagina. Yarbrough also asked her to touch his penis with her mouth, but she refused. According to A.G., the last incident occurred in July 2010, when Yarbrough put his penis inside her vagina.
A.G. stated that these incidents always occurred at night. Usually, she would be asleep and Yarbrough would wake her up and ask her to come into the back room or into the second bedroom. On at least one occasion, A.G. was awake and watching television in the living room with Gracie, and Yarbrough asked A.G. to come into the back room. After the touching occurred, A.G. returned to the living room with Gracie. Every time an incident occurred, both Gracie and A.G.'s younger sister were in the house, although they usually were asleep and always in a different room. Yarbrough told A.G. not to tell anybody, and she believed he let her practice driving his car because she let him touch her. A.G. testified that she finally sent her mother a text about these incidents because she was afraid that Yarbrough might start touching her younger sister.
Gracie testified on Yarbrough's behalf. She testified that she saw A.G. and her younger sister 2 to 3 days per week and most weekends from February 2009 to July 2010. She denied that Yarbrough was ever alone with the girls. When the girls stayed overnight, they slept with Gracie in her room while Yarbrough slept elsewhere in the house. However, A.G. sometimes fell asleep on the couch in the living room. Gracie never noticed...
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