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State v. Howling

Supreme Court of Kansas

September 6, 2019

State of Kansas, Appellee,
Dashaun Ray Howling, Appellant.


         1. K.S.A. 2018 Supp. 60-456(b) does not provide a basis for excluding a forensic interview of an alleged child sexual abuse victim that does not include opinions or other testimony based on scientific, technical, or other specialized knowledge.

         2. An appellate court reviews a sufficiency of the evidence challenge to determine whether, after reviewing all evidence in the light most favorable to the State, a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. It does not reweigh evidence, resolve evidentiary conflicts, or determine witness credibility while engaging in this review.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed October 13, 2017.

          Appeal from Pratt District Court; Francis E. Meisenheimer, judge.

          Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Natalie Chalmers, assistant solicitor general, argued the cause, and Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, were with her on the briefs for appellee.


          Luckert, J.

         Dashaun Howling challenges his conviction for aggravated criminal sodomy by attacking the district court's admission of videotaped testimony of the child, testimony about that interview, and the sufficiency of the evidence. Like the defendant in State v. Ballou, 310 Kan. ___, ___ P.3d ___ (No. 116, 252, this day decided), Howling challenged the admissibility of the videotaped testimony as expert testimony. Based on our decision in Ballou, and the additional grounds discussed here, we affirm the district court's decision to admit the evidence. We also reject Howling's argument that the evidence presented was insufficient to support the conviction.

         Facts and Procedural Background

         The State charged Howling with rape and aggravated criminal sodomy based on allegations made by his then-four-year-old daughter (the child).

         The State's charges arise out of the child's overnight visit with Howling on Saturday, June 20, 2015. She stayed with him at his then-residence in Pratt County, Kansas. Her maternal grandfather picked her up to return her to her mother the next day around 4 p.m.

         On the Monday following her visit, while getting ready for a dance class that started at 6 p.m., the child asked her grandmother for medicine because her bottom was itching, tickling, and hurting. Her grandmother and mother checked the child's underwear and found blood. Her mother described the underwear as "covered in blood." The grandmother asked the child whether she had been scratching herself there. The child said, "No." After dabbing the area with a tissue, the grandmother determined the blood was coming from the child's vaginal area. The child's mother asked the child what happened, and the child replied that her dad scratched her. The child explained Howling put medicine inside her when she stayed with him over the weekend. The child's mother and grandmother took her to the hospital on the advice of the mother's attorney in a custody case. The child's mother and grandmother testified to these facts, including the child's statements about her injuries.

         At the hospital, a Sexual Assault Nurse Examiner (SANE) examined the child. When the SANE asked the child to explain why she was there, the child replied, "[D]addy scratched me." She said Howling put medicine on her, pointing to her vaginal area and rectum or anus area. She said Howling put medicine on her because she was bleeding a lot. The SANE told the child's mother and grandmother that law enforcement needed to be called. The SANE testified at trial about the child's statements.

         A detective interviewed the child at the hospital and then, at trial, testified about the statements. The child told the detective she was in the hospital because her butt was bleeding. The child at first said she did not want to explain any more, but eventually reported Howling put his finger in her butt while she was sleeping in his house. She pointed to her bottom and her vaginal area to show where Howling put his fingers. She told the detective that Howling put white medicine from the refrigerator on her butt. She said she was bleeding and had a lot of blood.

         After the detective completed her interview, the SANE again talked with the child and conducted a physical examination. The child reported her dad scratched her while she was asleep. She described that he "put two fingers in her pee and one in . . . what she called her butt." The child showed with her hand using two fingers and her thumb to describe the motion Howling made. The SANE noted abrasions to the child's labia majora and minora, skin breakdown with redness on the child's clitoral hood, and discoloration in her rectum. The SANE testified the injuries observed were consistent with the history given by the child. The SANE also collected the child's underwear with blood on the crotch area. The SANE agreed that medically it was possible the child's injury did not bleed the entire time between when the child claimed to be injured during her visit with Howling and when her injuries were discovered on Monday. The SANE explained the injury may have reopened because of the child's activities, including swimming and showering, on the day her mother and grandmother discovered it.

         Kasey Corbett later conducted a forensic interview of the child. Howling moved to exclude the video and Corbett's testimony ...

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