Opinion
No. 106,509.
2012-09-21
STATE of Kansas, Appellee, v. Oscar Lee SIMS, Jr., Appellant.
Appeal from Riley District Court; David L. Stutzman, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; David L. Stutzman, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Oscar Lee Sims, Jr., appeals his convictions of rape and aggravated intimidation of a witness. On appeal, Sims contends that the trial court erred in denying his motion to present evidence regarding the victim's prior allegedly false police report. We agree, but we find the error was harmless. Sims also argues that the aggravated intimidation of a witness statute creates alternative means of committing the crime. We disagree. Accordingly, we affirm.
On October 5, 2009, L.S. lived with her husband, her four children, her father-in-law, Oscar Sims, and his wife, Anna. L.S. testified that around 7:30 a.m., after the children had left for school, Sims came into L.S.'s room, flipped the covers off of her, and told her to shut the f* * * up or he would kill her. L.S. testified that she was wearing a t-shirt and underwear when Sims pulled the covers off of her. L.S. testified that Sims was upset with L.S. because she had been cheating on Sims' son, with Josh Holbrook. According to L.S., Sims then lunged at her and put a knife to her throat. Sims demanded that L.S. show him where Holbrook lived and that she help him kill Holbrook. L.S. denied knowing where Holbrook lived. L.S. further testified that Sims put his forearm on her neck making it difficult for her to breathe. He then put his right hand down her pants and put his finger inside her vagina while kissing her on the lips. L.S. testified that she cried and begged Sims to stop. According to L.S., Sims calmed down once she agreed to help him kill Holbrook. Shortly afterwards, L.S. went to the bathroom. When she came out, Sims grabbed her by the arm and pulled her into a bedroom. He then pulled down her underwear and took off her shirt. He told L.S. that he needed to check her “body language” to see if she was lying. Sims then told L.S. that if she told anyone about what had happened that he would kill her and anyone she told.
After Sims left the room, L.S. sent a text message to her mother and her brother asking them to come to the house and bring the police with them. L.S. then called the police, but when she saw Sims coming back down the stairs she hung up the phone.
Sims denied that he raped L.S. At trial, Sims admitted to kissing L.S. and to touching her on the outside of her underwear, but he denied that he inserted his finger inside her vagina. Sims testified that when he hugged her she arched her back in a funny way that made his hand slip down the back of her underwear on top of her buttocks. He further testified that he immediately pulled his hand out of her underwear.
Officer Nathan Boeckman, one of the officers who responded to the incident, testified that when Sims was asked to give a DNA swab from his mouth and fingers, he agreed to furnish a sample. But he immediately put his right index finger in his mouth and began sucking on it. Officer Boeckman testified that he did not see Sims sucking on his finger until after he asked Sims for a DNA sample. Officer Boeckman further testified that when Sims went to use the bathroom, Officer Boeckman went with him and asked Sims to not wash his hands. After using the bathroom, Officer Boeckman watched Sims grab some toilet paper and rub the paper on his right hand.
Officer Boeckman further testified that after Sims was placed under arrest, he took Sims to the police station. When they were in the booking area of the police station, Sims told Officer Boeckman that when he gave L.S. a hug his right hand accidently slipped down the backside of her underwear over her buttocks and into her vagina. Sims further told Officer Boeckman that L.S. was not wearing any underwear and that his right index finger penetrated her vagina. Sims stated that he could not immediately remove his hand because L .S. thrust her body forward and she would not allow him to remove his hand for 10 or 15 seconds or possibly longer.
Officer Sonia Gregoire, another responding officer, testified that she saw Sims immediately put his finger in his mouth after being asked for a DNA sample. Officer Gregoire further testified that in Sims' first written statement he did not mention any inappropriate touching of L.S. Officer Gregoire questioned Sims and he admitted to kissing L.S. with his tongue that morning even though he had not mentioned this in his written statement. When Officer Gregoire asked Sims whether L.S.'s vaginal fluid would be on his hand, Sims stated that vaginal fluid could be on his hand. But if it was, it was there because of an accident. Sims explained to Officer Gregoire that when he hugged L.S., his hand accidently slipped down her underwear but he immediately pulled his hand out and apologized.
The jury convicted Sims of rape and aggravated intimidation of a witness or victim. The trial court sentenced Sims to 155 months' in prison for the rape charge and 18 months' for the aggravated intimidation of a witness charge. The trial court ran the sentences concurrently. Sims was also sentenced to lifetime postrelease supervision. Did the Trial Court Err in Excluding Evidence?
Sims argues that the trial court erred by excluding evidence of a prior false accusation made by L.S. Sims maintains that the trial court erred when it prevented defense counsel from asking L.S. questions about a recent previous incident in which she accused someone else of attacking her with a knife. Sims contends that this evidence was admissible to impeach the credibility of L.S., Sims' primary accuser. Moreover, the evidence was relevant to his theory of defense that L.S. was fabricating the allegations against him.
The admission and exclusion of evidence lies within the sound discretion of the trial court. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Leitner, 272 Kan. 398, 408, 34 P.3d 42 (2001). Moreover, under the harmless error rule of K.S.A. 60–261, a trial court's error in the admission or exclusion of evidence is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears inconsistent with substantial justice. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).
Sims contends that the trial court's error was of constitutional magnitude because it affected his right to confront and cross-examine his accuser. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, we must be able to declare beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict. See Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert denied132 S.Ct. 1594(2012).
Before trial, defense counsel moved to admit evidence that L.S. had made a prior false accusation to police of an attack by a male with a knife to cover up her whereabouts during an extra-marital affair. At a pretrial hearing, defense counsel presented the police report to the court. The court took the matter under advisement. The trial court later denied the motion finding that it was an attempt to impeach credibility through specific instances of conduct, in violation of K.S.A. 60–422(c) and (d).
Sims argues that the trial court erred in excluding the evidence of L.S.'s previous false accusation to police based on our decision in State v. Barber, 13 Kan.App.2d 224, 766 P.2d 1288,rev. denied 244 Kan. 739 (1989). In that case, Barber challenged his conviction for indecent liberties with a child on the grounds that the trial court erred in excluding evidence of the victim's prior accusations of sexual abuse against other individuals. The Barber court found that “evidence of prior false accusations of sexual abuse may be admissible to impeach the credibility of the complaining witness.” 13 Kan.App.2d at 226. The court further found that the rape shield statute was inapplicable because the evidence was not being proffered to prove prior sexual conduct. 13 Kan.App.2d at 226. The Barber court further held that, under certain circumstances, the character trait limitations of K.S.A. 60–422 must bend to a defendant's right of cross-examination; however, this admission of evidence is not without limit. The court noted that such evidence is admissible only after the trial court makes a threshold determination that there is a reasonable probability that the prior accusation was false. 13 Kan.App.2d at 226.
The State maintains that Barber is inapplicable here because the prior accusation in this case did not involve sexual conduct. The Barber court addressed the issue of prior false accusations in the context of a sex crime. Sims was also charged with a sex crime, and the credibility of the victim making the accusations was an issue at trial. Although the previous accusations being questioned in this case did not involve false accusations of sexual abuse, the analysis is the same. When the credibility of the witness is a major factor in the outcome of the case, it is error to exclude evidence which may otherwise be inadmissible as specific instances of conduct under K.S.A. 60–422(d), where it is being offered to test the credibility of the witness after the witness has testified to the falsehood of a fact. See State v. Macomber, 241 Kan. 154, 158, 159, 734 P.2d 1148 (1987).
In this case, after being reported missing, L.S. recently reported that a male with a knife attacked her. Here, the trial court did not make the threshold determination whether there was a reasonable probability that L.S.'s prior accusation was false. Moreover; the State admitted that defense counsel could probably prove the falsity of L.S.'s previous accusations. Had such a determination been made, the evidence would have been relevant to L.S.'s credibility concerning her accusations against Sims.
On appeal, the State argues that the trial court properly excluded the evidence because it was an improper form of character evidence based on specific instances of conduct and, therefore, was inadmissible under K.S.A. 60–422(c) and (d). The problem with this argument is that it was specifically rejected in Barber. As stated earlier, the Barber court held that “under certain circumstances the limitation of 60–422 must bend to a defendant's right of cross-examination.” 13 Kan.App.2d at 226. Thus, we determine that the trial court erred by excluding the evidence of L.S.'s previous accusation of being attacked with a knife without making a threshold determination whether there was a reasonable probability that the prior accusation was false.
Although we have determined that it was error for the trial court to exclude the evidence without first making a determination of its falsity, our analysis does not end there. For example, if the trial court had made a threshold determination about the falsity of the previous accusation and concluded that this evidence should be excluded, we would still need to consider whether the exclusion of this evidence harmed Sims. The improper exclusion of evidence is subject to a harmless error analysis. “When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.” State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995); see K.S.A. 60–621; Ward, 292 Kan. 541, Syl. ¶ 5, 6.
Here, Sims was allowed to attack L.S.'s credibility throughout the trial. Specifically, Sims was able to show that L.S. was having an extramarital affair. Also, L.S.'s work manager testified that L.S. had a reputation for being untruthful. Additionally, during cross-examination of L.S., Sims' attorney questioned L.S. about inconsistencies in her testimony at trial compared to her testimony at the preliminary hearing and also challenged her story of what actually happened on the date at issue.
Moreover, the overwhelming evidence against Sims makes it unlikely that the line of questioning about the prior false accusations would have changed the result of the trial. At trial, the State presented overwhelming evidence against Sims. For example, in Sims' hand-written statements he admitted to touching L.S.'s backside or vagina. One written statement was extremely damaging to Sims. In that statement, Sims wrote:
“I recalled that while [L.S.] my dauter-in-law [ sic ] kissed me at the table when my hand went into her pants she pushed into me and wouldn't let me pull my hand out for about 10–15 sec. and said ‘woo’ then laughed and started drinking coffee I made her. The officer say [ sic ] to tell how she walks in front of me with nothing on but a towel, comes up and fixs [ sic ] herself and [ sic ] sandwich in her night gown and talks to me for 5 or 6 mins. Also how she calls me to her room to talk to me about things in her bedroom. Officer said to say if she was tight or loose as the finger went in[.] I would say on recall kind of loose.”
In addition to Sims' criminalizing statements, the officers' testimony that Sims immediately began trying to clean his right index finger after he was asked to give a DNA sample was also damaging. And finally, Sims' son, Joe, testified that after the incident Sims called Joe's phone and asked him to put it on speaker phone where he apologized to L.S. for hurting her.
Based on the overwhelming evidence against Sims, we determine that the exclusion of the evidence of the previous false accusation did not affect the outcome of the trial in light of the entire record; i.e., there was no reasonable possibility that the error changed the result of the trial. The fact that the jury was not able to consider that L.S. might have falsely accused someone else of attacking her with a knife does not substantially diminish the overwhelming evidence which supported Sims' rape conviction. Is Aggravated Intimidation of a Witness an Alternative Means Crime?
Next, Sims argues that the aggravated intimidation of a witness statute creates alternative means of committing the crime. Sims maintains that the first means is preventing or dissuading L.S. from making a report of a crime, and the second means is attempting to prevent or dissuade L.S. from making a report of a crime. Sims argues that there was insufficient evidence to convict him because the State did not prove that he prevented or dissuaded L.S. from reporting a crime because she did report the crime.
The State charged Sims with aggravated intimidation of a victim under K.S.A. 21–3833(a)(1) as follows:
“That on or about October 5, 2009, the Defendant, OSCAR SIMS, within Riley County, Kansas, did then and there knowingly, feloniously and maliciously prevent, dissuade, or attempt to prevent or dissuade, a witness, victim or person acting on behalf of a victim, from making any report of the victimization of a victim to any law enforcement officer, prosecutor, probation officer, parole officer, correctional officer, community correctional services officer or judicial officer when the act is accompanied by an expressed or implied threat of force or violence against a witness, victim or other person or the property of any witness, victim or other person.”
At trial, the trial court instructed the jury on the following elements of the crime of aggravated intimidation of a victim:
“The Defendant is charged with the crime of aggravated intimidation of a victim. The Defendant pleads not guilty.
“To establish this charge, teach of the following claims must be proved:
“1. That the Defendant prevented or dissuaded or attempted to prevent or dissuade a victim, L.S. (YOB: 1986), from making a report of a crime against an individual, Oscar L. Sims, Jr., to any prosecutor, law enforcement, probation, parole, correctional community corrections or judicial officer;
“2. That the act was accompanied by an expressed or implied threat of force or violence against the person of that victim;
“3. That the Defendant did so knowingly and maliciously; and,
“4. That this act occurred on or about the 5th day of October, 2009, in Riley County, Kansas.”
Our court recently addressed this issue and determined that the phrase prevent or dissuade or attempted to prevent or dissuade does not create an alternative means case. See State v. Aguirre, 45 Kan.App.2d 141, 148, 245 P.3d 1 (2011) (“One does not commit the crime of intimidating a witness by alternative means of either doing it or merely trying to do it.” “[T]here is but one criminal act: to intimidate a victim or witness with the intent to deter the reporting of a crime, whether or not the intimidation is successful.”) ( rev. granted September 21, 2011; argued April 12, 2012); State v. Houston, No. 104,589, 2011 WL 6311866, at *6–7 (Kan.App.2011) (unpublished opinion) (The witness intimidation statute creates mutually exclusive ways to commit the crime. There cannot be sufficient evidence of both an attempt to prevent witness from reporting and actual prevention. Because the jury must either agree on one means or the other, jury unanimity is not implicated.), petition for rev. filed December 29, 2011; see also State v. Praylow, No. 105,711, 2012 WL 1072762, at *4'(Kan.App.2012) (unpublished opinion) (While relying on Aguirre and Houston, the court held that the phrase preventing or attempting to prevent a witness from reporting a crime does not establish alternative means of committing aggravated intimidation of a witness.), petition for rev. filed April 20, 2012.
Additionally, the State contends that Sims' alternative means argument fails because of invited error. We agree. A party may not invite error in a case and then complain of that error as a ground for reversing an adverse judgment. State v. Miller, 293 Kan. 535, 554, 264 P.3d 461 (2011). “When defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.” State v. Bailey, 292 Kan. 449, 459, 255 P.3d 19 (2011).
Here, Sims requested the aggravated intimidation of a witness instruction that he now argues deprived him of his right to a unanimous jury verdict. Thus, his alternative means argument fails because of invited error.
Affirmed.