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State v. Nesbitt

Supreme Court of Kansas

June 1, 2018

State of Kansas, Appellee,
Kasey L. Nesbitt, Appellant.


         1. The res gestae of a crime includes the acts committed before, during, or after the happening of the principal occurrence, when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence. Deaths caused within the time and circumstances of an underlying felony's res gestae qualify as felony murders. The focus is on whether the act causing the death occurred during the res gestae of the underlying felony; the death resulting from that act need not have occurred immediately.

         2. Evidence of felony murder is sufficient when testimony supports the State's theory that a victim's death 21 days after a rape was caused by blood clots that formed because of the victim's immobility, which, in turn, was precipitated by her pain from injuries suffered in the attack.

         3. A direct causal connection exists between the crime underlying felony murder and the death that follows from it unless an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death. An intervening event does not qualify as extraordinary if it was foreseeable.

         4. Sufficient evidence supports a defendant's conviction on felony murder, including the foreseeability of a rape victim's death 21 days after the attack, when injuries the victim suffered caused pain that immobilized her, giving rise to development of fatal blood clots.

         5. Sufficient evidence supports a defendant's conviction of aggravated burglary on the theory that he or she entered a dwelling, in which there was a human being, with intent to commit a sexually motivated crime therein when the jury heard testimony that, with the exception of a mutilated back door through which the attacker entered and a disorganized master bedroom where the rape occurred, the house was tidy and orderly; there were no signs of someone entering the house to commit theft, e.g., drawers and cabinets left open or their contents disturbed; neither responding officers nor crime scene investigators noticed anything missing or moved, and valuable items in open view were left behind by the attacker; and the victim was raped during the burglary.

         6. Comments from a prosecutor in closing arguments that inflame the passions or prejudices of a jury are prohibited. Such comments distract the jury from its mission to decide the case on the evidence and controlling law. A prosecutor's description of a 100-year-old victim as a "treasure" to her family is erroneous, but, in the context of this case, harmless.

         7. A race-switching exercise jury instruction, worded as suggested by the defendant in this case, is not legally appropriate in Kansas. Such an instruction tells jurors to deviate from their legal responsibility to disregard anything but the facts and the controlling law when arriving at their verdict in a case.

         8. Cumulative error may require reversal of a defendant's conviction if-under the totality of the circumstances-more than one error substantially prejudiced the defendant and denied the defendant the right to a fair trial. The doctrine of cumulative error does not apply when only one error has been detected.

          Appeal from Sedgwick District Court; Benjamin L. Burgess, judge.

          Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, argued the cause, and Samuel Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

          Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


          Beier, J.

         Defendant Kasey L. Nesbitt appeals his convictions for felony murder, rape, and aggravated burglary, arising from a violent and ultimately fatal attack on 100-year-old M.S. in her home.

         Nesbitt raises five issues on appeal: (1) insufficient evidence to support felony murder; (2) insufficient evidence to support aggravated burglary; (3) prosecutorial error; (4)error in refusal to give a requested jury instruction on a race-switching exercise; and (5)cumulative error.

         We reject these challenges and affirm Nesbitt's convictions.

         Factual and Procedural History

         The attack on M.S. came to light in the early morning hours of September 30, 2014, when she knocked on her neighbor's door. The neighbor's son answered the knock, finding a visibly "distressed" and "shaking" M.S. wrapped only in a bathrobe. M.S. said someone was breaking into her house. After letting M.S. inside and checking M.S.'s house for intruders, the son called police.

         On arrival, officers of the Wichita Police Department also checked M.S.'s house for intruders. They found none but noted that the lock on the back door had been damaged and glass broken out. Although the master bedroom appeared disorganized, the officers did not notice anything obvious that had been disturbed or taken from the rest of the house. The officers interviewed M.S., noting that her right wrist was bruised and swollen. M.S. gave the officers her name, consented to a search of her home, and was taken to the hospital.

         Crime scene investigators took photos of the back door of M.S.'s house, observing that the frame was lying on the ground in two pieces, surrounded by glass and sheetrock dust. Both of the door's strike plates had been knocked out, and one of them was lying on the floor. Like the officers before them, the investigators observed that the house was tidy and orderly, with the exception of the damage to the back door and some disarray in the master bedroom, where the attack had taken place.

         The bedding in the master bedroom had been pulled back, and a pillow was lying on the floor next to the bed. As the crime scene investigators collected evidence, they saw jewelry; car keys; and a purse containing a wallet, medications, and cash in open view. They also did not detect "evidence that anything was moved" or missing in the rest of the house. Three items from outside M.S.'s house were collected and photographed: a Dr. Pepper can in the alley behind it, a cigarette butt on its west side near the back door, and a switchblade in its backyard. Although the can and switchblade were tested for identifiable fingerprints, none were found.

         A sexual assault nurse examiner (SANE) saw M.S. at the hospital and collected evidence. During the nurse's examination, M.S. could not be moved without causing her great pain. She also complained of severe pain while lying still. M.S. particularly cited great pain in her right arm, bottom, and back. The nurse made note of several injuries, including "extensive bruising beginning at [M.S.'s] head to her toes, " indicating recent blunt force trauma. The nurse would later testify that M.S. had a fracture of her lower right arm that caused swelling.

         The nurse also discovered substantial injuries to M.S.'s genital area. M.S. had a 5 millimeter by 5 millimeter abrasion on her labia minora, which, the nurse later testified, was associated with trauma. In addition, M.S. had bleeding under the tissue in the area where she urinated. M.S. also had "a large hole" just below her vaginal opening. M.S.'s vagina was swabbed for evidence, and the swabs were turned over to police.

         After the SANE exam was finished, M.S. was admitted to the hospital, where she told her attending physician that she had "generalized pain all over" and had an especially hard time walking because her "bottom [was] hurting all the time." Hospital caregivers also discovered M.S. had compression fractures in her lower spine, which were likely to be attributable to her attack and considered the likely source of her lower back pain. M.S. required a significant amount of help to move; pain from her injuries limited her ability to move herself. Doctors did not see improvement in M.S.'s mobility during her two-week hospital stay. Rather, they observed M.S. become weaker and suffer increasing trouble with mobility.

         At the end of the two weeks, M.S. was transferred to a skilled nursing facility for physical therapy. She died 6 days later-approximately 21 days after the attack.

         The coroner, Dr. Jamie Oeberst, would eventually confirm M.S.'s extensive bruising and the fractures noted by the hospital staff and the substantial reduction in her mobility that followed from the pain these injuries produced. According to Oeberst, M.S.'s reduced mobility ultimately contributed to the formation of blood clots in her legs, which traveled to M.S.'s lungs, killing her. Oeberst estimated that the clots had formed three to seven days before M.S.'s death. "[T]he clots in her legs that then went to her lungs is her cause of death. And the reason she developed those clots in her legs was because-was a result of the immobilization after the assault." Oeberst certified M.S.'s death as a homicide, with the attack, obesity, dementia, and advanced age contributing to her death. Oeberst acknowledged that it was possible, however, that the blood clots could have formed even if the attack on M.S. had not occurred.

         M.S. was never able to give a complete description of the person who attacked her. She was able to say only that the attacker was a man. She told her daughter-in-law and a nurse, "I guess you could say I was raped, " and, "[W]ell, I guess you could call it a rape." When a hospital psychiatrist asked M.S. if she knew why she was in the hospital, he testified, M.S. told him she was raped. But, at other times, M.S. said she did not know why she had been hospitalized. The psychiatrist diagnosed M.S. with dementia, primarily due to her advanced age.

         Police did not have a suspect until DNA testing of M.S.'s SANE examination swabs revealed a local-and state-database match to a 2002 sample taken from Nesbitt because of another incident. Before M.S. died, the State charged Nesbitt with rape ...

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