Appeal from Johnson District Court; JOHN P. BENNETT, judge.
Conviction affirmed, sentence vacated, and case remanded with directions.
BY THE COURT
1. K.S.A. 22-3218 requires a criminal defendant to give written notice to the prosecuting attorney if the defendant plans to offer evidence of an alibi at trial. The notice shall state where the defendant contends he or she was at the time of the crime and include the names of alibi witnesses.
2. When a defendant submits an alibi notice to the State but withdraws or abandons his or her alibi defense before trial, evidence related to the alibi notice or the statements made therein is inadmissible.
3. When a defendant is convicted of rape and has at least one prior rape conviction, K.S.A. 21-4642 and K.S.A. 21-4704(j)(2)(B) both apply equally and neither is more specific. Such a defendant is therefore to be sentenced under the more lenient statute, K.S.A. 21-4704(j).
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of the same office, was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
MORITZ, J. BILES, J., concurs in the result.
A jury convicted Andrew Greene of rape, and the district court imposed a life sentence without the possibility of parole after adjudging Greene an aggravated habitual sex offender. In this direct appeal, Greene argues the district court erroneously admitted statements he made in a pretrial notice of alibi, entitling him to reversal of his conviction and a new trial. We agree the district court erred in admitting Greene's statements, but because we conclude the error was harmless, we affirm Greene's conviction.
[299 Kan. 1088] Citing State v. Turner, 293 Kan. 1085, 272 P.3d 19 (2012), and the rule of lenity, Greene also argues the district court should have sentenced him as a persistent sex offender under K.S.A. 21-4704(j), rather than as an aggravated habitual sex offender under K.S.A. 21-4642. Because we resolved this issue in Greene's favor in Turner, we vacate Greene's sentence and remand for resentencing.
Factual and Procedural Background
The State charged Greene with one count of rape, alleging that on March 9, 2009, Greene had sexual intercourse with A.F. under circumstances when A.F. was incapable of giving consent due to mental deficiency or disease, which condition was known or reasonably apparent to Greene. See K.S.A. 21-3502(a)(1)(C). The following relevant facts were established at Greene's trial.
In 2009, 22-year-old A.F. volunteered at Catholic Charities in Olathe where her mother, M.F., worked as a case manager. M.F. testified A.F. has been diagnosed with autism with pervasive developmental delays and mild to moderate mental retardation and that she has an Intelligence Quotient (IQ) of 55. At Catholic Charities, A.F. performed basic tasks like sorting donated clothing and preparing sacks of groceries for needy families. Greene frequently visited Catholic Charities to pick up bread or clothing.
On March 9, 2009, M.F. left Catholic Charities around 11:15 a.m. to pick up donated appliances. A.F. remained at Catholic Charities, folding clothing and placing it on a hallway table. A.F. testified Greene approached her in the hallway, told her she was pretty, and asked her if she wanted to be his girlfriend. A.F. testified they did not talk long but she liked that Greene paid attention to her, and she was interested in having a boyfriend. Shortly thereafter, A.F. took some empty boxes outside to place them in a dumpster and saw Greene sitting in his car. Greene asked A.F. if she wanted to go for a ride with him, and A.F. got into Greene's car. A.F. testified she wanted to go with Greene, but she did not remember where he said they were going. Over the next few hours, Greene and A.F. visited the public library, visited Greene's friends at a car shop or car wash, stopped at a McDonald's to get a drink, and parked in a wooded area at Lake Olathe.
[299 Kan. 1089] A.F. testified Greene was nice to her and held her hand as they drove. At some point, Greene asked A.F. to be his girlfriend, and she said yes. While they were parked at the lake, Greene told A.F. to remove her clothing. After A.F. complied, Greene removed his own clothing.
A.F. demonstrated difficulty at trial in identifying and testifying about body parts. But with the aid of a marker, anatomical diagrams of the male and female body, and a
series of painstaking questions from the prosecutor, A.F. testified Greene placed his mouth on her mouth, breast, and vagina; placed his penis on the outside of her vagina; and placed his fingers inside her vagina.
After the encounter at the lake, Greene drove A.F. back toward Catholic Charities. Meanwhile, M.F. had returned to Catholic Charities and notified police A.F. was missing. M.F. testified she reported A.F. missing because if A.F. became lost or was in unfamiliar surroundings A.F.'s " mental age [would go] from maybe a 12-, 13-year-old to a 5-year-old," A.F. would be scared, and she would not know how to ask for help.
Henry Harrison, the husband of M.F.'s coworker, assisted with the search. Harrison saw A.F. in a car with Greene near Catholic Charities. Harrison signaled Greene to stop the car, and Greene complied. Harrison rolled down his window and told A.F. the police were looking for her and her mother was very concerned. A.F. got out of Greene's car, and Greene drove away.
A.F. went inside the Catholic Charities building where she was met by M.F. and a police officer. M.F. testified she took hold of A.F.'s hand and could feel A.F. " shaking from the inside." According to M.F., A.F.'s hair was tousled and her face displayed a flat affect, or lack of emotional expression. A.F. did not want to speak with the police, so M.F. took A.F. to M.F.'s office. There, A.F. told M.F. the details of her encounter with Greene as recounted above. M.F. then relayed the information to police.
Later that day, M.F. took A.F. to the hospital for a sexual assault examination. The nurse examiner completed a rape kit and turned it over to police. A.F.'s vaginal and cervical swabs tested negative for seminal fluid, but Greene was identified as a potential male donor of non-sperm DNA found on A.F.'s vaginal swab.
[299 Kan. 1090] Two days after the incident, M.F. took A.F. to Sunflower House for a forensic interview with Sarah Byall. At trial, Byall testified A.F. seemed shy and primarily communicated through short, " abrupt" answers, but she appeared to understand the questions asked.
A.F. disclosed to Byall that Greene approached her while she was folding clothes and asked her to go to dinner. A.F. agreed and they left in Greene's car, eventually driving to the woods. There, Greene told A.F. to remove her clothes, and he removed his own clothes. A.F. told Byall that she and Greene then engaged in vaginal intercourse an Greene placed his mouth on her breast. After they stopped at Greene's workplace, Green took A.F. back to Catholic Charities and gave her his phone number.
Byall testified A.F. had difficulty identifying and talking about body parts during the interview so A.F. used diagrams to indicate where Greene touched her. On cross-examination, Byall testified A.F. stated she wanted the sexual encounter to happen. The State admitted the video recording of A.F.'s Sunflower House interview and played it fo the jury.
Two inmates who were housed with Greene after his arrest testified on behalf of the State. One inmate, William Haley, testified Greene told him he picked up A.F. from Catholic Charities, talked her into going to a park, convinced her he cared for her, and " fingered her." Haley, who knew M.F. through her work at Catholic Charities, later told M.F. about his conversation with Greene.
The second inmate, Fawaz Al-Said, testified Greene told him he was accused of raping a mentally retarded girl. Greene said he saw the girl working inside Catholic Charities, he approached her when she went outside to empty trash, and he asked her where the library was. Greene said the girl agreed to show him where the library was and to get dropped back off, and they went to the library for 2 or 3 hours. Greene also told Al-Said that he took the girl to get a drink at Burger King or McDonald's and to visit some of his friends at an auto detail shop near the Great Mall. Finally, Greene told Al-Said that he took the girl to Lake Olathe and tried to " get head" from her but Greene could not maintain an erection so he spit in his hand, pulled her ...