SYLLABUS BY THE COURT
1. Evidence of character traits other than honesty or veracity, or their opposites, is inadmissible. K.S.A. 60-422(c).
2. Evidence of a specific instance of conduct relevant only to prove a trait or character is inadmissible. K.S.A. 60-422(d).
3. The determination of a Kansas guideline criminal sentence depends upon the severity level of the crime and the criminal history of the offender. At sentencing, the State has the burden of proving a defendant's criminal history by a preponderance of the evidence. K.S.A. 2009 Supp. 21-4715(a).
4. A defendant may contest the alleged criminal history by notifying in writing the prosecutor and the court of any error in the proposed criminal history. The notice shall specify the exact nature of the alleged error. The State shall have the burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history. If an offender later challenges a criminal history which has been previously established, the burden of proof shall shift to the offender to prove such offender's criminal history by a preponderance of the evidence. K.S.A. 2009 Supp. 21-4715(c).
Appeal from Johnson District Court; Sara Welch, judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Clayton J. Perkins, legal intern, Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Hill, P.J., Pierron and Schroeder, JJ.
In this criminal appeal, Roy Wetrich contends the district court erred when it prevented him from presenting evidence that his wife had lied about him in a statement she gave the police. Kansas law allows a witness' credibility to be attacked by presenting evidence that the witness has a character trait for dishonesty. That trait may not be proved by evidence of a specific instance of conduct but may be proved only by opinion testimony. Because Wetrich sought the admission of evidence he claimed would prove his wife had lied to the police, a specific instance, we hold the district court correctly denied its admission to show she was lying on this occasion.
Wetrich also asks us to find a sentencing error because he was not allowed to contest his criminal history. The sentencing statutes now permit an offender to challenge a criminal history that has been previously established but when doing so, the offender has the burden to prove his or her criminal history by a preponderance of the evidence. We hold the district court incorrectly denied Wetrich an opportunity to contest his criminal history based upon the doctrine of collateral estoppel. We affirm Wetrich's convictions but vacate his sentence and remand for a new sentence, thus giving Wetrich an opportunity to contest his criminal history.
Evidence of domestic violence arises in this case.
In early 2009, Suzanne Galbraith lived with her husband Roy Wetrich and their two children in Olathe. The two offer different stories about what happened. Galbraith testified that on March 7, 2009, she and Wetrich got into a disagreement in their upstairs bedroom. Wetrich began threatening her and banging her against the wall. According to Galbraith, she got away from Wetrich and ran downstairs. When Galbraith refused to come back upstairs, Wetrich came after her. Galbraith then ran out the back door and down the street. Once outside, Galbraith testified she telephoned a friend, Al Wymer, and asked him to come over and calm Wetrich down. After this, Galbraith received a phone call from Wetrich, who told her to come back to the house to help him look for some papers. Galbraith returned to their house.
When Galbraith approached their back door, she saw Wetrich seated in a chair. When Wetrich noticed her, he jumped up and approached her so fast that she became scared. According to Galbraith, Wetrich came outside, grabbed her and pushed her against the brick wall of their house, and then forced her back inside. Galbraith testified she yelled, "Roy, no. Please, no, " but Wetrich forced her over to the computer, pushed her down on the floor, and held her there with his foot while he loaded a gun. Wetrich then put the gun barrel to Galbraith's head and said, "Do you want me to kill you, you stupid bitch? This is how easy it would be for me to blow your fucking head off."
Galbraith testified Wetrich then tossed the gun onto a nearby pool table and told her that he was going to teach her a lesson because she had run from him. Wetrich grabbed her shirt, jerked her up onto her knees, and then punched her in the chest, knocking the wind out of her. Wetrich let Galbraith go. She then ran across the room to the other side of the pool table. Galbraith testified Wetrich picked up a pool cue, broke it over his knee, and began jabbing it towards her throat and chest without making contact. Wetrich then told Galbraith that if she did not "stop crying and whining that [her] chest was hurt, that he was going to break it, and he was going to hurt [her] worse." Galbraith also testified she vaguely remembers sitting in the dining room chair before the pool cue incident with Wetrich's back towards her and then him turning around with the gun and telling her "that the boys didn't need any parents, and he was going to kill [them] both."
Wetrich dropped the pool cue when Wymer and his girlfriend Karen Wry arrived outside. Before Wymer and Wry came into the house, Wetrich told her to "[s]top crying and act like everything's okay." According to Galbraith, Wetrich then put the gun in a case, slid it across the pool table to her, and indicated that she should take it upstairs.
Wymer later testified that once in the house, he saw Galbraith holding her chest and she told him that Wetrich "was beating on her." Wry testified that she noticed a red mark on Galbraith's chest. Both Wymer and Wry testified Galbraith carried a metal case upstairs. Galbraith and Wry went upstairs together. Once there, Galbraith told Wry what had just happened with Wetrich. Wry observed that the metal case contained an "old revolver handgun." Wymer and Wry left. No one called the police.
According to Galbraith, a couple of days after the incident they both went to the hospital after she complained to Wetrich of chest pain from him punching her. Before going, Wetrich told Galbraith she could only see a doctor if she "kept [her] mouth shut and let him tell the story of what happened." At the hospital, Wetrich stated that Galbraith had tripped over the cat and fallen down some stairs.
Then, in April 2009, Galbraith told the principal at their children's school about the March 7 incident. Galbraith and the principal agreed to meet at the school on April 3, 2009, so that Galbraith and the children could go to Safe Home. As Galbraith left her house that day with some belongings, two police officers approached her. The officers made sure Galbraith was alright and took her to the school. The police arrested Wetrich later that same day. Detective Damon Bell subsequently searched their house and seized some marijuana.
On April 6, 2009, Galbraith obtained a district court no-contact order prohibiting Wetrich from making contact with her. Wetrich subsequently called Galbraith from jail and told her not to go to court and testify against him and she should leave Kansas and go to his father's house in Missouri so the State would drop the charges against him. Wetrich also told ...