Appeal from Leavenworth District Court; Gunnar A. Sundby, judge.
1. When multiple acts jury unanimity is an issue on appeal, the threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime.
2. Criminal acts are multiple if they are factually separate and distinct. Incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a later criminal act is motivated by a " fresh impulse." Factually separate and distinct incidents are not what this court calls " unitary conduct."
3. When a victim alleges 20 different incidents occurring at three different locations and the State offers proof of 11 different opportunities for the defendant to be alone with the victim, there is no " unitary conduct."
4. Even if a victim asserts that a specified act occurred only once, when a prosecutor makes statements that encourage jurors to infer multiple acts from the whole of the evidence presented, then multiple acts analysis applies.
5. When there is no indication in the record that the State informed the jury which of multiple criminal acts to rely upon to convict on a particular charge and the district judge did not sua sponte give the jury a unanimity instruction on the charge, there is multiple acts error.
6. Even if a defendant generally denies criminal conduct, if there is no unified defense in a case, and the trial is not merely a credibility contest between the victim and the defendant, multiple acts error may be reversible. In this case, reversal is necessary under the clearly erroneous standard because the State put on evidence of the unique timing of several criminal acts and the defendant put on distinct evidence to defend against allegations that he committed those acts on those dates.
7. If the State seeks to introduce evidence under K.S.A. 2013 Supp. 60-455(d) of allegations made against a defendant in an earlier case in which the defendant was acquitted, a district judge must analyze whether collateral estoppel should prevent introduction of the evidence, i.e., whether the prosecution in which the defendant was acquitted had at its heart the same issue to be entrusted to the second jury.
8. Relevant evidence about a sex crime victim's sexual history may be admissible in certain limited circumstances under Kansas' rape shield statute. In this case, specific information about the young victim's previous allegations of sexual abuse by persons other than the defendant may be admissible on retrial to demonstrate why the victim exhibits certain symptoms and behaviors, the possible source of trauma about which a psychological expert testifies, or why the victim displays sexual knowledge beyond her years.
9. When a defendant is a first-time offender under Jessica's Law, departure from the hard 25 life sentence assigned by the law is permissible.
Reid T. Nelson, Capital and Conflicts Appellate Defender, argued the cause and was on the brief for appellant.
Cheryl A. Marquardt, assistant county attorney, argued the cause, and Todd L. Thompson, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
[299 Kan. 373] Beier, J.
A jury convicted Chris King of four charges: rape by penile penetration, rape by digital penetration, aggravated criminal sodomy, and aggravated indecent liberties with a minor. The district court judge sentenced King to four concurrent hard 25 life sentences
under Jessica's Law. King raises seven issues on this direct appeal: (1) admission of evidence on a prior charge of sexual abuse for which King was acquitted; (2) failure to provide a unanimity instruction; (3) exclusion of evidence of the victim's prior sexual history; (4) denial of defense challenges to venire members for cause; (5) cumulative error; (6) constitutionality of Jessica's Law; and (7) denial of a sentencing departure motion.
[299 Kan. 374] Because we hold that King's convictions must be reversed for the lack of a unanimity instruction he challenges on his second issue, we need not reach the merits of King's fourth, fifth, and sixth issues. We provide limited guidance on his first and third issues because of the likelihood they will arise again in the event of a retrial. We also provide guidance on the seventh issue, in the event resentencing becomes necessary. We take the liberty of reordering King's issues for clarity of discussion.
Factual and Procedural Background
R.B. and her brother, M.B., began living with defendant King and the children's aunt, King's wife, Roxanne, in fall 2005. While the children lived with the Kings, Roxanne was primarily responsible for their care because King worked second shift. During weekends and school vacations, the children usually were with either their father or their grandparents.
On January 3, 2008, R.B. and M.B. went to their grandparents' home for the end of winter break from school. And, on January 7, 2008, R.B. told her grandmother that King had been touching her and making her do things to him, the last time on the morning she arrived at her grandparents' home.
R.B.'s grandmother took R.B. to the King residence to speak with Roxanne. R.B., her grandmother, and Roxanne went into a bedroom to talk about what R.B. had said. According to the grandmother's later testimony, when Roxanne learned of R.B.'s allegations, " [s]he really didn't seem surprised. She was upset. She was upset, and she seemed to feel very bad about [R.B.], but she didn't seem surprised." Roxanne, on the other hand, said that, when the three went into the bedroom, " [R.B.] climbed up on the middle of my bed and starts giggling and says, 'Uncle Chris touched me.'" Roxanne asked R.B. if King had " 'put his penis in'" R.B., and R.B. responded, " 'What's that?'"
After the discussion in the bedroom, R.B.'s grandmother removed the children from the care of the Kings.
R.B.'s mother contacted the Department of Social and Rehabilitation Services (SRS) hotline the next day. Sharon Griffin, a social worker, scheduled a time 2 days later to meet with R.B.
[299 Kan. 375] Griffin spoke with R.B., M.B., and their mother. During R.B.'s interview, she disclosed that King sexually molested her. According to R.B., on the morning of January 3, King told her to come into the bathroom with him. Once inside the room, King showed R.B. his penis, then pulled down her pants, and, according to R.B., " 'touched my private.'" King then made her " 'sit on his lap and promise not to tell.'" R.B. said that this incident was not the first of its kind. At the conclusion of the meeting, Griffin asked the children's mother to make a police report and explained that she would be referring R.B. to Sunflower House for a forensic interview. As part of the referral, Griffin also requested a medical examination of R.B.
Approximately 2 weeks later, Sarah Byall conducted a forensic interview of R.B. at Sunflower House. During the Byall interview, R.B. identified three specific areas of King's residence where he had sexually abused her: her bedroom, a bathroom, and on a couch. R.B. also described King's penis and told Byall that her " pee-pee started hurting." It is unclear whether the pain began before or after R.B. was removed from the care of the Kings.
A week later, Physician Assistant Stephanie Painter conducted a medical examination of R.B. During the examination, R.B.'s mother told Painter that R.B. had experienced some bleeding, which, according to Painter, would be consistent with allegations of sexual abuse. Painter's examination did not reveal injury to R.B.'s hymen or vulva or any sign of infection.
After viewing R.B.'s Sunflower House interview, Deputy Sheriff Robert Smith spoke to King less than a week later. King told Smith that " [R.B.] has a vivid imagination
and we've been trying to get her some type of ...