Appeal from Labette District Court; DANIEL L. BREWSTER, judge.
1. K.S.A. 22-3403 and K.S.A. 22-3421 give a criminal defendant the right to a unanimous jury verdict. An appellate court exercises de novo review over issues of jury unanimity.
2. As a general rule, juries are presumed to have followed instructions given by the trial court. Moreover, it is a jury's legal duty and proper function to accept the law as given in the instructions.
3. Where multiple acts are alleged and any one of them could constitute the crime charged, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in these cases, our Supreme court has required that either the State elect the particular criminal act upon which it will rely for conviction or the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
4. Reviewing whether a trial court has properly admitted evidence under K.S.A. 60-455 requires an appellate court to review the legal basis for the trial court's decision. When an appellate court reviews the legal basis for admitting evidence, the standard of review is de novo.
5. Although evidence of prior crimes and other civil wrongs is inadmissible to prove a person's propensity to commit crime, thereby implying that he or she committed the crime at issue, K.S.A. 60-455 allows the admission of such evidence when that evidence is relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Before evidence of prior crimes may be admitted under K.S.A. 60-455, three requirements must be met. First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice. If these three requirements are met, an appellate court's review is limited to whether the trial court abused its discretion. Discretion is abused when no reasonable person would take the view of the trial court.
6. One theory for admitting evidence of a prior crime or civil wrong to prove plan under K.S.A. 60-455 is to show that the method of committing the prior crime is so similar to that used in the present crime that one could reasonably conclude that the defendant committed both crimes.
7. Normally, the admission or exclusion of evidence is measured by the harmless error rule. In determining if the erroneous admission or exclusion of evidence is harmless, the appellate court must consider if it is inconsistent with substantial justice, that is, affects the substantial rights of a defendant and, if not, whether this court can declare beyond a reasonable doubt that the error had little, if any, liklihood of having changed the result of the trial.
8. A trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to a defendant. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the decision will not be set aside on appeal unless an abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced.
9. When reviewing a trial court's decision of whether to grant a new trial, an appellate court is limited to determining whether the trial court abused its discretion.
10. A defendant in a criminal trial is entitled to a fair and impartial trial. The purpose of a trial in a criminal case is to ascertain the truth or falsehood of the charges against the defendant, and it is a part of the duty of the trial judge to see that the full truth is developed by the evidence.
11. A trial court has an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment to the United States Constitution.
12. When a trial court is told of a possibility that a witness' testimony may have been improperly influenced by a bystander's conduct in the courtroom, the trial court is required to initiate an investigation to ensure that the defendant's right to a fair trial has not been violated.
13. Multiple trial errors may require reversal of a defendant's conviction if the cumulative effect of the errors substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found if the evidence against the defendant was overwhelming.
The opinion of the court was delivered by: Green, J.
Before McANANY, P.J., GREEN and CAPLINGER, JJ.
Paul Robert Dayhuff appeals his jury trial conviction and sentence for aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). First, Dayhuff argues that he was denied his right to a unanimous verdict because the prosecutor relied on acts not charged in the complaint to obtain his conviction. Nevertheless, the jury in this case was properly instructed on the elements of the charged crime. Moreover, the State never argued to the jury that uncharged acts could provide a basis for Dayhuff's conviction. Further, the jury was properly instructed on juror unanimity in a multiple acts case. Therefore, Dayhuff's argument fails.
Next, Dayhuff argues that his right to a fair trial was violated by the admission of prior evidence under the plan exception of K.S.A. 60-455. Because there was insufficient evidence presented in this case to show a "strikingly similar" or a "signature" act, we conclude that the trial court erred in admitting evidence of Dayhuff's prior crimes under the plan exception of K.S.A. 60-455. As a result, Dayhuff's case must be reversed and remanded for a new trial. Next, Dayhuff contends that his right to a fair trial was violated by the conduct of a child advocate during the child's testimony. We determine that the trial court's refusal to allow Dayhuff to develop a factual basis for his motion for mistrial at the time of trial denied him the opportunity to show what, if any, influence the child advocate's conduct may have had on the child's testimony when the child's credibility was being considered by the jury. Accordingly, we reverse and remand for a new trial.
Next, Dayhuff argues that cumulative error denied him a fair trial. Nevertheless, we have already determined that there is reversible error in this case. Whether considered alone or in combination, the errors in this case denied Dayhuff a fair trial.
Finally, citing Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), Dayhuff contends that the trial court erred in including his prior convictions in his criminal history. Because we are reversing, we need not consider Dayhuff's challenge to his criminal history. But see State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
On June 15, 2003, Pam Brown reported to the police that her daughter, H.D., had told Brown that she had been sexually abused by Dayhuff. Brown and Dayhuff had been married to each other but had divorced in February 1998. Brown told the interviewing officer that after returning home from a visit with Dayhuff, H.D. had told Brown that Dayhuff had put his hands down H.D.'s pants several times and had attempted to get H.D. to touch his penis. H.D. was 9 years old at the time of the alleged incidents.
The sexual abuse allegedly occurred when H.D. was staying with Dayhuff at his brother's home between June 2, 2003, and June 13, 2003. H.D. told Brown about the sexual abuse the day before she was scheduled to return to Dayhuff's home for another visit. Brown testified that H.D. told her that Dayhuff had touched her vagina and had attempted to place H.D.'s hand on his penis. H.D. told Brown that the touching had occurred at night. Brown called the police and reported the sexual abuse. Brown also faxed a voluntary written statement to the police department. After Brown faxed her statement, H.D. told Brown that Dayhuff had said that he would kill Brown if H.D. told her about the abuse.
Susan Beitzinger, an investigative social worker, interviewed H.D. on June 17, 2003. The interview was videotaped. Beitzinger was the only person with H.D. during the interview. A police officer and Katherine Adams, a child advocate, observed the interview through a one-way mirror. During the interview, H.D. told Beitzinger that she had lain down at night in a bedroom at Dayhuff's brother's home when Dayhuff raised her nightgown and reached into her underwear and touched her private part. H.D. was lying in her bed, and Dayhuff was lying naked in his bed in the same room. Dayhuff's brother was in a downstairs bedroom. H.D. told Beitzinger that Dayhuff told H.D. to keep it a secret. The following morning, H.D. was still lying in her bed when Dayhuff asked her to touch his private part. H.D. refused to touch Dayhuff.
On June 24, 2003, Brown took H.D. to the hospital for a sexual assault examination. H.D. told the examining nurse, "I don't like my daddy any more. He touched me. He touched me a lot of times." The examining nurse found no physical evidence of sexual abuse. Nevertheless, the nurse testified that she would not expect to find any physical evidence of sexual abuse when a child had been touched on the outside of the vagina. Moreover, the nurse testified that when an exam occurs over 72 hours after the alleged sexual abuse, any trauma would have healed by that time.
The State charged Dayhuff with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). Before trial, the State moved to admit evidence of Dayhuff's prior crimes against his previous girlfriend's daughter, S.A., to show plan under K.S.A. 60-455. The trial court granted the State's motion to admit the evidence under K.S.A. 60-455. At trial, Bobbie Wiltsie, who investigated S.A.'s case, testified about four separate incidents of sexual abuse allegedly committed by Dayhuff against S.A. In addition, S.A. testified about two of these instances of sexual abuse. Before Wiltsie and S.A. testified, Dayhuff renewed his objection to the introduction of the prior crimes evidence under K.S.A. 60-455.
H.D. testified at trial about the alleged sexual abuse. H.D. recounted two incidents when Dayhuff had touched her while they were lying in separate beds in a bedroom at Dayhuff's brother's house. During the first incident, Dayhuff reached under H.D.'s clothes and touched the outside of her vagina. H.D. testified that Dayhuff was not naked when he touched her. H.D. testified that this incident occurred at night. In the second incident, Dayhuff again reached under her clothes and touched the outside of her private part. Dayhuff also grabbed H.D.'s hand and attempted to have her touch him. According to H.D., this second incident occurred when it was dark outside. H.D. testified that Dayhuff told her to keep it a secret.
Immediately after H.D.'s testimony, Dayhuff moved for a mistrial on the basis that an individual in the courtroom had been gesturing to H.D. and shaking her head while H.D. testified, essentially coaching H.D.'s testimony. Dayhuff informed the trial court that another attorney, John Bullard, who was watching the trial, had told him of the individual's action and that defense counsel's secretary had also been in the courtroom. Dayhuff requested that he be allowed to present testimony from his counsel's secretary about the individual's actions. The trial court told Dayhuff that he could bring up the issue in a motion for a new trial if he was convicted.
The jury found Dayhuff guilty of aggravated indecent liberties with a child. Dayhuff moved for a new trial. Among numerous issues raised in his motion for a new trial, Dayhuff argued that although he informed the trial court that an individual in the courtroom had been directing H.D.'s testimony, the trial court did not take any action with this information. After conducting an evidentiary hearing, the trial court denied Dayhuff's motion for a new trial. The trial court sentenced Dayhuff to 204 months in prison.
I. Was Dayhuff denied his right to a unanimous verdict?
First, Dayhuff argues that he was denied his right to a unanimous verdict because the State relied upon acts that were legally insufficient to sustain a conviction for aggravated indecent liberties with a child based upon how the crime was charged in the complaint.
K.S.A. 22-3403 and K.S.A. 22-3421 give a criminal defendant the right to a unanimous jury verdict. State v. Unruh, 281 Kan. 520, 527, 133 P.3d 35 (2006). An appellate court exercises de novo review over issues of jury unanimity. ...