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State of Kansas v. Randy Herbel

April 5, 2013


Appeal from Marion District Court; BARRY A. BENNINGTON, senior judge, assigned.


SYLLABUS BY THE COURT 1. A criminal defendant has a right under K.S.A. 22-3405(1), as well as the Sixth Amendment to the United States Constitution, to be present at every critical stage of a trial. This includes all times whenever the trial court communicates with the jury. 2. When a criminal defendant's constitutional right to be present at all critical stages of the trial has been denied, the error is harmless only if the State proves beyond a reasonable doubt that the error will not or did not affect the outcome of the trial in light of the entire record, i.e., there is no reasonable possibility that it contributed to the verdict. 3. Under the facts of this case, where both the constitutional and non-constitutional error clearly arise from the very same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the party benefiting from the error also met the lower standard for harmlessness under K.S.A. 60-261. 4. An appellate court generally reviews a district court's decision regarding control of its trial proceedings for abuse of discretion. 5. Generally, constitutional issues cannot be asserted for the first time on appeal unless: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the question is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court is right for the wrong reason. 6. On the record presented in this case, an argument that the district court violated the defendant's Sixth Amendment right to confront his accuser and therefore violated his Fourteenth Amendment right to a fair trial cannot be considered for the first time on appeal. 7. K.S.A. 22-3414(3) establishes a preservation rule for jury instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court. 8. When a defendant does not object to a jury instruction at trial, that failure does not prevent appellate review if the error is clearly erroneous. To determine whether an instruction or a failure to give an instruction was clearly erroneous, the appellate court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record. 9. The district court did not commit error by instructing the jury that "[i]f you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty." While not the preferred instruction, it was legally appropriate. 10. Supreme Court Rule 6.09 (2012 Kan. Ct. R. Annot. 49) was not intended to be, nor should it be, used as yet another briefing opportunity. The appellate courts will not consider a Rule 6.09 letter, or any of its parts, that fails to comply with the rule.

The opinion of the court was delivered by: Nuss, C.J.


The opinion of the court was delivered by NUSS, C.J.:

Randy Herbel appeals his Jessica's Law convictions for rape and aggravated indecent liberties with a child. His issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court violate his constitutional and statutory rights when it replayed his recorded statement to a deliberating jury outside of his presence but in the courtroom? Yes, but harmless error.

2. Did the court err when it allowed the child victim to testify with a comfort person alongside her? Not preserved.

3. Was the court's jury instruction on reasonable doubt legally inappropriate? No.

Accordingly, we affirm Herbel's convictions.


On July 31, 2006, the Kansas Department of Social and Rehabilitation Services, (SRS) received two reports of child neglect involving S.C., a 5-year-old girl living in Hillsboro. The first reporter was anonymous and claimed that S.C. was covered in ringworm and was not receiving appropriate medical care. That source also reported that S.C.'s mother was having sex in front of her. The second reporter was her daycare provider, 40-year-old defendant Randy Herbel. He too reported that S.C.'s mother was not treating her for ringworm.

Wilma Mueller, an SRS social worker, began her investigation on August 3. According to her trial testimony, she met with S.C. and her mother in their house. Mueller observed that S.C. was covered in circular scabs. Mueller then met privately with S.C. and asked if her mother ever had friends visit. S.C. replied, "[Y]es, Jake, my mom's boyfriend, he has sex with my mom." Mueller then asked, "[W]hat's sex?" and S.C. whispered, "[T]hat's what Randy does to me." As Mueller further testified:

"[S.C.] said that when Randy puts [ointment for ringworm] on me, he covers my head with a towel, he takes his penis out, that she can feel it, that it's soft, and that he touches her pee-pee with his penis. She further said that she-that he did this lots of times when she was on his lap and in his bed, and then she stated that's when he stuck his penis in me."

Mueller then terminated the interview, contacted local law enforcement, and set up a sexual assault exam at Via Christi Medical Center in Wichita for that same day- August 3. Hillsboro Police Chief Daniel Kinning transported S.C. and her mother to the medical center where nurse practitioner Kathy Gill-Hopple conducted the exam.

Gill-Hopple began by taking S.C.'s medical history. According to Gill-Hopple's testimony, S.C. again stated that while Herbel was putting ointment on her naked body for ringworm he covered her head with a towel. His pants were off and "he touched his penis to her pee-pee and to her butt hole." When Gill-Hopple asked if it hurt, she replied that she was crying and that it hurt. Finally, Gill-Hopple asked S.C. if anything came out of Herbel's penis, and she replied, "[N]o, just juice, it was white." S.C. identified the incidents as occurring on the two previous days-August 1 and August 2-and one other unknown date. The sexual assault exam showed no signs of injury, which Gill-Hopple did not find unusual.

The next day social worker Mueller recorded a forensic interview of S.C. The DVD of the video interview was later admitted into evidence and played to the jury during the State's case-in-chief. On the DVD, S.C. stated that Herbel touched her butt and pee-pee with his penis three times. She reiterated that one time she was lying on her back naked on Herbel's bed, and he covered her head with a towel before touching her with his penis. S.C. additionally told Mueller that while Herbel said that he used a finger to touch her, she knew that he lied and used his penis. She also stated that Herbel stuck his penis inside her butt.

On August 17, approximately 2 weeks after S.C. was interviewed by Mueller, Chief Kinning interviewed Herbel. Herbel generally denied the allegations but admitted that he bathed and treated S.C. for ringworm.

On September 28, Chief Kinning and KBI Agent Rick Atteberry recorded their interview of Herbel. The DVD of the video interview was later admitted into evidence and played to the jury during the State's case-in-chief. Herbel discussed with them two incidents involving S.C., one occurring on August 1 and the second on August 2.

Regarding the August 1 incident, Herbel stated that after he gave S.C. a bath he placed her naked on his bed and treated her ringworm with calamine lotion. He also rubbed Vaseline on and near her vagina to treat the ringworm and another rash. According to Herbel, he rubbed the Vaseline on her vagina until he got aroused and then he stopped.

Regarding the August 2 incident, Herbel stated that he gave S.C. a bath and then again placed her naked on a towel on his bed. He again treated her with calamine and Vaseline. According to Herbel, after he rubbed the Vaseline on S.C.'s vagina for about 30 seconds, he then covered her head with a towel and began to masturbate. He claimed he bumped her clitoris with his penis and she said "ouch." He admitted that he "most likely" penetrated S.C. during the act and later admitted that he "probably" penetrated her.

During this same interview, Herbel also wrote and signed a statement paralleling most of his recorded one. The written statement was also admitted into evidence at trial during the State's case-in-chief.

The next day the State charged Herbel with one count of rape for the August 1 incident and one count of rape and one count of aggravated indecent liberties with a child for the August 2 incident. After several years of addressing Herbel's competency issues, the jury trial began in July 2009.

Included in the State's trial evidence was the brief testimony of now 8-year-old S.C. with her adoptive placement person on the witness stand beside her. S.C. testified that Herbel touched her bottom with his "pee pee," which she admitted meant his penis. But each time she was asked, she denied that he touched her vagina.

At the close of all the evidence, the State contended in its closing argument that the Count 1 rape charge was supported by the evidence that Herbel rubbed Vaseline on S.C.'s vagina on August 1. The State also argued that the Count 2 rape charge was supported by Herbel touching her vagina with his penis on August 2. It further argued that the Count 3 aggravated indecent liberties charge was supported by the evidence that he touched her butt with his penis that same day. During the State's closing argument, it played excerpts from Herbel's DVD interview with Chief Kinning and Agent Atteberry.

During the jury's deliberations, it asked to rewatch a part of the DVD containing the interview with Kinning and Atteberry where Herbel talked about the August 1 incident. The record on appeal clearly establishes that a part of the DVD was replayed for the jury in the courtroom but is silent on whether Herbel or his counsel was present.

The jury found Herbel not guilty of Count 1 (rape) for the August 1 incident. But it found him guilty of Count 2 (rape) and Count 3 (aggravated indecent liberties with a child), which stemmed from the August 2 incident. Under Jessica's Law, K.S.A. 21-4643, he was sentenced to a term of life in prison without the possibility of parole for 25 years.

Herbel timely appealed. Our jurisdiction arises under K.S.A. 22-3601(b)(1).

Additional facts will be added as necessary to our analysis.


Issue 1: The playback of Herbel's recorded interview violated his right to be present at every critical stage of the trial but was harmless error.

Standard of review

Herbel argues that the replaying of the DVD to the deliberating jury in the courtroom and outside of his presence violated his rights under the Sixth Amendment to the United States Constitution and under Kansas statute to be present at every critical stage of his criminal trial. See Illinois v. Allen,397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied 398 U.S. 915 (1970); K.S.A. 22-3405(1) ("The defendant in a felony case shall be present . . . at every stage of the trial . . . except as otherwise provided by law."). He also points out that this includes the right to be present whenever the court communicates with the jury. See State v. Garcia, 233 Kan. 589, 596, 664 P.2d 1343 (1983) (citing Shields v. United States, 273 U.S. 583, 47 S. Ct. 478, 71 L. Ed. 787 [1927]). Because the right to be present is in issue, we are faced with a question of law over which we exercise unlimited review. See State v. Burns, 295 Kan. 951, 955, 287 P.3d 261 (2012).


After the jury retired for its deliberations, it returned to the courtroom where the judge went back on the record but did not announce appearances. The transcript is silent on whether Herbel or his counsel was present.

According to the judge's statement in the transcript, the jury had requested that it "hear that portion [of the DVD] that deals with the degree of penetration that may have occurred on the first day, on August the 1st." After a juror confirmed the request on the record, the judge advised that the prosecutor had informed him the requested portion is "actually [on] several different places [on] the disk." And due to incomplete indexing, the juror agreed that the court would begin by playing back the same portion that the prosecutor played during his closing arguments. The juror further agreed that after playing that portion the replay "may have to be expanded." Once played, the judge asked, "Anything else you want to hear?" to which the juror replied, "I think that's it." The jury then returned to its deliberations at 3:01 p.m. and returned to the courtroom with its verdict at 3:25 p.m.

In addition to Herbel's arguments based upon the Sixth Amendment and K.S.A. 22-3405(1), he points out that K.S.A. 22-3420(3) specifically addresses a defendant's right to be present during jury deliberations. It states:

"(3) After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney." (Emphasis added.) K.S.A. 22-3420(3).

The State admits that the record does not specify the presence of Herbel or his counsel at the time the DVD was replayed for the jury. It also admits that our caselaw is clear. "Where the record does not affirmatively reflect the presence of the defendant, this court will presume that the defendant's constitutional right to be present was violated and that K.S.A. 22-3420(3) was not followed." State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007).

But relying on our decision in State v. Bolton, 274 Kan. 1, 49 P.3d 468 (2002), the State argues that K.S.A. 22-3420(3) does not apply to videotaped testimony.

In Bolton, during the jury's deliberations it requested to again watch a video surveillance tape of the murder that had been admitted at trial without objection and played to the jury with the defendant present. Outside Bolton's presence, but in the presence of his counsel and counsel for the State, the court ordered a playback device be placed in the jury deliberation room and the jury rewatched the tape. Although Bolton's counsel did not object, Bolton argued on appeal that the jury's rewatching of the tape violated his right to be present at all critical stages of the proceeding.

We concluded "a jury's second viewing of exhibits admitted into evidence is not subject to the requirements of K.S.A. 22-3420(3)" because a videotape cannot be as easily manipulated as readback testimony. Bolton,274 Kan. at 6. We stated:

"Here, the videotape was an exhibit which had been admitted into evidence during the course of the trial and had been played in open court before the jury and the defendant. A videotape is distinguishable from readback testimony in that the evidence on a videotape is static and is not susceptible to inflection or interpretation by a reader; regardless of the number of times a videotape is replayed or who plays the videotape, the message conveyed on the tape is the same." Bolton, 274 Kan. at 6.

Among other things, the Bolton court cited State v. Fenton, 228 Kan. 658, 620 P.2d 813 (1980), for the proposition that once a case is submitted to the jury, the jury is ordinarily given the exhibits to take into the jury room where it can examine the exhibits as many times as it desires. "The Fenton court noted that the manner in which exhibits are handled at trial is within the trial court's discretion, and the exercise of that ...

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