Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge.
1. When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. When the accused has gone to trial and been found guilty beyond a reasonable doubt, any and all error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.
3. Under the facts of this case, a child victim's videotaped statements as to the number of incidents, coupled with a physician's opinion as to penetration consistent with the position described by the victim, are sufficient to support convictions of six counts of rape.
4. A district court may abuse its discretion in refusing to grant a requested continuance to the defense where the basis for such continuance is to retain an expert witness whose testimony may be crucial to the defense. Factors to be considered in determining whether to grant a continuance to secure attendance of a witness include the possible prejudice to the defendant, the diligence or lack thereof disclosed in attempting to secure the attendance of the witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if the continuance is granted.
5. The services of an expert in the general area of child witnesses and their suggestibility may indeed be critical to the defense in child abuse cases, and the scope of such testimony may include: (1) The proper and improper interviewing procedures and techniques to be used in child sexual abuse cases; (2) how certain procedures and techniques could adversely affect the reliability and accuracy of a child's statements; and (3) the problems perceived with the interviewing techniques used in a specific case.
6. The proper protocols and techniques used to interview child victim witnesses is a matter not within the knowledge and understanding of the average juror.
7. Under the facts of this case, refusing to grant a continuance for a defendant to retain an expert on child witnesses was outside the applicable legal standards and therefore an abuse of discretion.
8. Where there is no logical or material connection between the asserted fact that a defendant bought a child victim a nightgown and the allegations of rape and criminal sodomy, evidence regarding the nightgown is irrelevant.
The opinion of the court was delivered by: Greene, J.
Reversed and remanded with directions.
Before GREEN, P.J., GREENE and LEBEN, JJ.
Brent Huntley appeals his multiple convictions of rape and aggravated criminal sodomy of his own young children, arguing insufficiency of evidence at preliminary hearing and at trial, error in refusing to disqualify a juror, error in the admission of certain evidence, instruction error, and abuse of discretion in denying the defense a continuance in order to retain an expert witness to assist in evaluating the child witnesses' testimony. We agree that the district court abused its discretion in denying the continuance solely on the grounds that any testimony from such witnesses would be inadmissible and that rescheduling the trial might be difficult; accordingly we must reverse Huntley's convictions and remand for a new trial.
Factual and Procedural Background
Huntley was charged with multiple counts of rape and aggravated criminal sodomy after a spring-break visit by his 5-year-old biological daughter, M.E., and her 4-year-old half-brother, S.M. The children initially reported Huntley's conduct to a school counselor and their natural mother, and they ultimately discussed the alleged sexual abuse during forensic interviews at Sunflower House in Kansas City, which interviews were recorded by videotape. Further detail of the allegations will be discussed in connection with our analysis of the sufficiency of the evidence.
Prior to trial, the defense moved for a continuance in order to retain an expert to examine the videotaped statements of the children to render an opinion on the words they used and their mannerisms. The district judge denied the motion, stating:
"Your motion for continuance is denied. I'll note two specific reasons for that. First off, probably the most important is I'm not sure even if you and the State of Kansas paid for the money to hire whomever you were going to hire to look at these tapes, that this Court was going to allow that testimony to come in. I think that you can, by cross-examination, question the people as to can kids be led, and are they subject to that? I think jurors normally know those things just because they've had kids and therapy kids. And so, some of those things are not expert testimony type issues, they are common sense. Certainly the law is clear for you to have an expert to come in and say, 'I've looked at these tapes, and this girl was lying. I don't know who made her lie, but she's lying,' is not the appropriate testimony, not appropriate expert testimony. You can argue that she is mistaken or confused or whatever to the jury, and the jury may well find that to be the case. I don't know the facts in this case at all. But certainly that is within the province, the sole province of the jury to decide who's telling the truth and who's not in this case and in ever criminal case. Secondly, if I granted your motion, even though you had suggested to me might be available to go back to trial next month, this Court couldn't put you back on a jury trial docket until March at the next time. I was not prepared, and based clearly on the reason I had from a number one situation to put Mr. Huntley and make him stay in jail another four months before trial merely over the subject of an expert I might not let testify based on my understanding of the law in Kansas at this point in time. So, with those reasonings in mind that's why I denied your motion."
The jury convicted Huntley on 6 counts of rape and 7 counts of aggravated criminal sodomy. He was sentenced to 362 months' ...