Appeal from Shawnee District Court; MATTHEW J. DOWD, judge.
SYLLABUS BY THE COURT 1. Under K.S.A. 60-455, evidence that a defendant committed another crime or civil wrong was inadmissible to prove the defendant's propensity to commit the crime charged. But such evidence was admissible, subject to K.S.A. 60-445 and K.S.A. 60-448, if relevant to prove some other material fact, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Several steps are required in determining whether such evidence was properly admitted under this statute. 2. One avenue through which evidence of prior crimes or civil wrongs could be probative of plan was similarity. Before a district judge could admit evidence of prior bad acts to prove plan under K.S.A. 60-455, the evidence must have been so strikingly similar in pattern or so distinct in method of operation to the current allegations to be a signature. 3. On appeal, an appellate court will review a district court's decision regarding admission of evidence of prior bad acts under the "signature" standard for an abuse of discretion. 4. Judicial discretion is abused if judicial action is (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. 5. Under the non-constitutional harmless error standard of K.S.A. 60-261, the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record. 6. Under Supreme Court Rule 8.03(g)(1) (2011 Kan. Ct. R. Annot. 72), a party must allege that an issue was decided erroneously by the Court of Appeals in order for that issue to be properly before the Supreme Court on petition for review.
The opinion of the court was delivered by: Biles, J
Review of the judgment of the Court of Appeals in an unpublished opinion filed March 26, 2010.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
The opinion of the court was delivered by BILES, J.:
Robert Longstaff challenges on petition for review the Court of Appeals' decision affirming his convictions for two counts of rape of a child under 14 years of age and one count of aggravated indecent liberties with a child. Longstaff claims error when evidence of his previous conviction for attempted aggravated incest of his daughter was admitted at trial under K.S.A. 60-455. He also challenges the admission of a videotaped interview in which he contends detectives implied he was not being truthful. We affirm his convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Longstaff was charged with two counts of rape of a child under 14 years of age, with alternative counts of aggravated indecent liberties with a child, and one count of aggravated indecent liberties with a child. The charges involved his three granddaughters. The State's complaint alleged the crimes occurred between May 2004 and January 2005, when Longstaff's adult daughter Lisa was living in Longstaff's house with Lisa's husband and four children: Lisa's two daughters, B.C. and J.C.; Lisa's niece, J.S.C.; and Lisa's son, D.C.
The investigation commenced after Lisa filed a police report in March 2005 claiming her father had raped her at his home 4 months earlier on Thanksgiving. Lisa also disclosed to officers that she had been sexually abused by Longstaff as a child. Lisa was asked by police to question the children living in Longstaff's house whether they had been molested. That led eventually to further inquiry and the charges at issue in this appeal.
The three girls testified at trial that Longstaff touched them, with B.C. pointing out Longstaff to the jury when asked whether anyone had touched her private areas, J.C. testifying that Longstaff touched her "bechina" with his hand while she sat on his lap in a rocking chair, and J.S.C. testifying that Longstaff touched her in areas he should not touch, including her "bechina." At the time of the alleged crimes, B.C. was 8 years old and J.S.C. was 5. The record is unclear whether J.C. was 5 or 6 years old.
Several independent sources also testified about the children's disclosure of sexual abuse. Their grandmother testified that each of the three girls told her Longstaff touched them in a sexual way, though none of the disclosures were specific except for that of J.S.C., who said Longstaff "put his finger where it didn't belong."
A police detective who interviewed each of the girls separately testified at trial that B.C. told him Longstaff touched her "private area" twice with his hand and also rubbed his knee on her "private area" while they were in the living room. The detective said J.C. also told him Longstaff touched her "private area" or vagina, and that J.S.C. did not speak much during her interview and instead demonstrated on a teddy bear what happened by rubbing her hand back and forth on the bear's crotch area.
Helen Swan, an investigator employed by the Kansas Department of Social and Rehabilitation Services, conducted a forensic "Safe Talk" interview in which the girls separately disclosed the abuse in greater detail. At trial, Swan testified that B.C. told her Longstaff touched her vagina with his knee while she sat on his lap once while they were sitting in a computer chair and again when they sat on the couch. Swan testified B.C. said her brother was present during at least one of the incidents.
In J.C.'s "Safe Talk" interview, Swan testified that J.C. described Longstaff as being "straight up" after she got off of his lap, and that J.C. talked about it hurting, about her body being nervous, and about it being bad. Swan also said J.C. told her about penises going inside vaginas, as well as saying that people could use hands and knees to masturbate children.
Swan also testified that J.S.C. told her that Longstaff rubbed her vagina, telling Swan it hurt because Longstaff put his hand or part of his hand inside her vagina. Swan testified that J.S.C. said Longstaff kissed her with his mouth open and that she saw him naked. J.S.C. stated that this occurred when she sat on Longstaff's lap in the living room.
Several nurses testified about the results of SANE/SART medical examinations administered on the girls. The nurse performing B.C.'s exam testified that B.C. had a scar between her vagina and anus which was consistent with a "mounting injury" caused by a blunt force like a penis stretching and tearing the tissue. The nurse testified that during the exam, B.C. told her that Longstaff touched her on two separate occasions while they were watching television. B.C. said that on both occasions she was sitting on Longstaff's leg, they were both facing the television, and Longstaff rubbed her vagina. According to B.C., Longstaff told her not to tell anybody because he could go to jail. The nurse testified that she concluded the injuries were suggestive of sexual abuse based on the interview and physical examination.
The nurse examining J.C. testified that she observed redness in J.C.'s vagina from blunt force that looked like a recent injury. This nurse determined the injury was caused by something like a finger, penis, bottle, or something else with a rounded edge. The nurse said J.C. told her Longstaff touched her most often in the dining room, and that Longstaff also told her not to tell anyone. J.C. said the touching would occur when her grandmother was taking a nap and when her sister and cousin were in the living room. The nurse concluded J.C.'s exam was nonspecific, meaning there was nothing to definitely indicate there was or was not abuse.
As to J.S.C.'s examination, the performing nurse testified she found redness throughout J.S.C.'s vaginal area that appeared fresh. She said she found an old scar between J.S.C.'s vagina and anus that she determined was the result of tissue ripping from some sort of blunt penetration from possibly a finger, penis, or even a pen. The nurse concluded the scar was consistent with sexual abuse.
Later during trial, the State sought to admit Longstaff's redacted videotaped interview with detectives. Longstaff objected to portions of the video, arguing that the detectives commented about Longstaff's credibility. The district court determined the comments were not improper and admitted the tape. A detective who conducted the interview testified that on the video Longstaff admitted molesting his daughter Lisa when she was younger and had been charged with felony attempted aggravated incest for that crime. Longstaff told detectives he served 5 years' probation for fondling Lisa and attended therapy sessions during that time. The detective also testified that Longstaff said he touched Lisa's breasts and would touch her hair when she would sit on his lap.
The detective also testified that when asked about his grandchildren, Longstaff initially denied inappropriately touching them. Longstaff claimed that whenever the children would sit on his lap, he would move them because of what had happened with Lisa. But later in the interview, the detective continued, Longstaff said he believed something did happen to the children because they would not lie about being abused. He told the detective he could have done something to the children and just did not remember doing it. Longstaff also claimed small children did not excite him anymore because he ...