State v. Eddy

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,132

STATE OF KANSAS,
Appellee,

v.

RASMUS R. EDDY,
Appellant.


SYLLABUS BY THE COURT

1.
Issues of statutory interpretation and construction, including issues of whether a
statute creates alternative means of committing a crime, raise questions of law reviewable
de novo on appeal.

2.
The gravamen of the sexual intercourse element of rape is penetration of the
female sex organ. A jury instruction that defines sexual intercourse as any penetration of
the female sex organ by a finger or any object does not create alternative means by which
the crime of rape can be committed.

3.
An appellate court applies an abuse of discretion standard when reviewing a
district court's decision on a defendant's motion for a psychological evaluation of a
complaining witness.

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4.
In general, a defendant is entitled to a psychological examination of a complaining
witness in a sex crime case only where compelling circumstances justify such an
examination. To assess the existence of compelling circumstances, a court should
examine the totality of the circumstances.

5.
In determining whether compelling circumstances exist which would warrant
ordering the psychological evaluation of a complaining witness, courts may consider the
following nonexclusive list of factors: (1) whether there is corroborating evidence of the
complaining witness' version of the facts, (2) whether the complaining witness
demonstrates mental instability, (3) whether the complaining witness demonstrates a lack
of veracity, (4) whether the complaining witness has made similar charges against others
that were proven to be false, (5) whether the defendant's motion for an evaluation appears
to be a fishing expedition, and (6) whether the complaining witness provides an unusual
response when questioned about his or her understanding of what it means to tell the
truth.

Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed March 21, 2014.
Affirmed.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the
brief for appellant.

Christina M. Trocheck, assistant county attorney, argued the cause, and Ellen Mitchell, county
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

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JOHNSON, J.: Rasmus R. Eddy directly appeals his jury convictions for multiple
counts of serious sex offenses perpetrated against A.E., his 4-year-old granddaughter.
Eddy raises two arguments on appeal: (1) The State presented insufficient evidence to
prove that he committed rape by the alternative means of penetrating the victim with an
object, and (2) the district court erroneously denied his request to have a psychological
evaluation performed on the victim. This court has direct jurisdiction pursuant to K.S.A.
22-3601(b)(1), prior to its 2011 amendments. We affirm.

FACTUAL AND PROCEDURAL OVERVIEW

The incidents underlying the charges against Eddy occurred in the spring of 2009,
while A.E. was staying at Eddy's house for a few days at Eddy's request. The child related
to her mother and other relatives that she had seen naked adults on Eddy's computer; that
Eddy had touched her in the vaginal area with his finger; and that Eddy had licked her
vagina. Eddy admitted to the police that he had allowed the child to view pornography on
his computer. He explained the touching by saying that he had rubbed baby oil on a sore
that was located on the inside of the child's labia. Eddy explained the licking by
describing how the child, while naked, playfully climbed over his head a number of
times, causing his face to contact her vaginal area. He also said that the child insisted that
he kiss her "owie," i.e., her labial sore, and that he had pretended to do so by placing his
hand over her vagina and kissing the inside of her thigh or the back of his own hand.
Eddy also told the police that the child had grabbed his penis unexpectedly on two
occasions during her visit.

During closing argument, the prosecutor explained the charges against Eddy and
related the facts supporting each charge. Count I charged rape based upon Eddy's
admittedly putting his finger inside the child's labia, albeit ostensibly to rub oil on a sore.
Count II charged aggravated criminal sodomy based on A.E.'s testimony that Eddy licked
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her vagina. Count III, promoting obscenity to a minor, was based on Eddy allowing A.E.
to view pornography. Count IV, aggravated indecent liberties with a child, was based on
Eddy's testimony that he placed his hand over A.E.'s vagina and kissed her inner thigh.
Counts V and VI each charged aggravated indecent liberties with a child and were based
on Eddy's testimony that A.E. grabbed his penis on two different occasions, as well as his
having held his penis while showing it to A.E. Finally, Counts VII–XI were aggravated
criminal sodomy charges based on Eddy's testimony that "as many as five times he let
[A.E.] slide down his face while she was naked, and that she'd come in contact with his
nose and his mouth. That's oral contact."

The jury acquitted Eddy on one of the aggravated criminal sodomy charges, Count
VIII, but convicted him on all of the other counts.

Eddy filed a posttrial motion for acquittal, arguing, inter alia, that the five
convictions for aggravated criminal sodomy that were based on the single, unitary
incident where A.E. repeatedly slid down Eddy's face were multiplicitous. The district
court denied the motion, and Eddy has not asserted multiplicity in this appeal.

The sentencing court granted Eddy's motion to impose a sentencing guidelines
grid sentence, pursuant to K.S.A. 21-4643(d), and the district court ultimately imposed a
controlling prison sentence of 310 months, or 25 years and 10 months. Eddy timely
appealed.

ALTERNATIVE MEANS

On the rape count, the court instructed the jury that one of the claims the State had
to prove was "[t]hat the defendant had sexual intercourse with [A.E.]." Then the jury
instructions set forth the following definition: "Sexual intercourse means any penetration
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of the female sex organ by a finger or any object. Any penetration, however slight, is
sufficient to constitute sexual intercourse." (Emphasis added.)

Eddy contends that the definition of sexual intercourse given to the jury created
alternative means by which it could have found that the rape occurred, i.e., by penetrating
A.E.'s sex organ with a finger or by penetrating A.E.'s sex organ with an object.
Therefore, to ensure jury unanimity, the State was required to present the jury with
sufficient evidence to support a conviction under both alternative means or the conviction
must be reversed. See State v. Wright, 290 Kan. 194, 202-03, 224 P.3d 1159 (2010) (in
alternative means case, jury need not be unanimous as to which means defendant utilized
but there must be substantial competent evidence of each instructed means). Eddy argues
that the State presented no evidence that he penetrated the child with an object,
apparently presuming that a finger is not also an object within the meaning of the
instructions.

Standard of Review

"Issues of statutory interpretation and construction, including issues of whether a
statute creates alternative means, raise questions of law reviewable de novo on appeal."
State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012). An alternative means
challenge can be raised for the first time on appeal because it implicates the sufficiency
of the evidence to support the conviction. See State v. Wells, 297 Kan. 741, 756-57, 305
P.3d 568 (2013).

Analysis

Subsequent to Eddy's trial, this court resolved the question of whether the
definition of sexual intercourse created alternative means of committing rape. In State v.
Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012), this court reasoned that the gravamen
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of the prohibited act of rape was penetration and that the listing of body parts and "any
object" merely described factual circumstances by which the element of penetration could
be proved. Because the instruction did not create an alternative means circumstance,
evidence establishing that Britt penetrated the victim's vagina with his penis was
sufficient to support his rape conviction, notwithstanding the absence of any evidence
that he penetrated the victim with a finger or another object. 295 Kan. at 1026-27; see
State v. Weber, 297 Kan. 805, 816-17, 304 P.3d 1262 (2013); State v. Miller, 297 Kan.
516, 518, 304 P.3d 1221 (2013).

Eddy's brief was submitted prior to our decision in Britt. At oral argument, the
defense did not proffer any compelling reason that we should reverse Britt's holding that
the definition of sexual intercourse does not make rape an alternative means crime. We
stand by that ruling, which resolves the issue against Eddy. There was sufficient evidence
that Eddy penetrated the child's labia with his finger, which would support the sexual
intercourse element of the crime of rape.

PSYCHOLOGICAL EVALUATION OF THE VICTIM

For his other issue, Eddy contends that the district court erred in denying his
request to have A.E. undergo a psychological evaluation to determine the admissibility of
her testimony. He argues that an examination was warranted because: (1) A.E. was an
impressionable 4-year-old girl who was subject to her mother's control for a full month
before giving a statement to law enforcement officers, and (2) A.E.'s allegations were
uncorroborated. We do not find Eddy's proffered reasons to evaluate A.E. to be
compelling.

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Standard of Review

This court applies an abuse of discretion standard when reviewing a district court's
decision on a motion for a psychological evaluation of a complaining witness. State v.
Stafford, 296 Kan. 25, 39, 290 P.3d 562 (2012).

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).

The party asserting an abuse of discretion has the burden of persuasion. State v.
Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).

Analysis

Appellate courts are typically loathe to find an abuse of discretion when a district
court refuses to order a psychological examination of a young sex abuse victim, unless
the circumstances are extraordinary. "In general, a defendant is entitled to a
psychological examination of a complaining witness in a sex crime if compelling
circumstances justify such an examination." (Emphasis added.) Stafford, 296 Kan. at 40.

To assess the existence of compelling circumstances, a court should examine the
totality of the circumstances, and, at least since our decision in State v. Gregg, 226 Kan.
481, 602 P.2d 85 (1979), courts have applied certain factors. Recently, we considered the
following nonexclusive list of factors: (1) whether there is corroborating evidence of the
complaining witness' version of the facts, (2) whether the complaining witness
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demonstrates mental instability, (3) whether the complaining witness demonstrates a lack
of veracity, (4) whether the complaining witness has made similar charges against others
that were proven to be false, (5) whether the defendant's motion for an evaluation appears
to be a fishing expedition, and (6) whether the complaining witness provides an unusual
response when questioned about his or her understanding of what it means to tell the
truth. State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010).

With respect to the first factor, Eddy contends that there was no evidence to
corroborate A.E.'s allegations. Granted, the State did not present any physical or medical
evidence to corroborate the charges. But Eddy's own statements, both to law enforcement
officers and at trial, provided plenty of corroboration for A.E.'s description of events. He
admitted touching the inside of A.E.'s labia; he admitted contact between his mouth and
A.E.'s genitalia; and he admitted showing the child pornography on his computer. Indeed,
some of the convictions were based solely upon Eddy's own statements, such as the
counts related to A.E. touching or seeing Eddy's penis, because the child never told
anyone that she saw or touched her grandpa's penis. While Eddy put his own spin on why
the alleged acts occurred, he nevertheless corroborated that they did occur. A
psychological examination of the victim would have added nothing to the question of the
defendant's specific intent.

With respect to the remaining factors, Eddy did not present any evidence that A.E.
displayed any mental instability, demonstrated any lack of veracity, made any similar
charges against others that were proven to be false, or indicated an inability to understand
what it means to tell the truth. To the contrary, the motion for an evaluation in this case
appears to be a prime example of a fishing expedition.

Eddy tries to suggest that A.E.'s mother was involved in "heated custody
proceedings" with A.E.'s father, which provided the incentive for the mother to plant
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permanent false memories in A.E.'s mind in order to frame A.E.'s grandfather for sex
abuse, and that the 4-week delay in obtaining A.E.'s law enforcement interview provided
mother with the opportunity to effect her scheme. There are a number of disconnects in
that line of reasoning.

First, the record does not support the heated custody dispute claim. Rather, there
was some testimony that A.E.'s mother and father were quarreling because mother
wanted father to take A.E. for awhile, but he was financially unable to do so. Moreover,
Eddy does not explain why framing him for sex abuse would have provided A.E.'s
mother with any advantage in her alleged dispute with her ex-husband.

Most importantly, however, on May 1, 2009, A.E. told the same thing to her
mother, her grandmother, her great aunt, and the sexual assault nurse examiner. Then, 4
weeks later, on May 28, 2009, she repeated the same allegations to the law enforcement
officer. The only inconsistency to which Eddy can point is that in the later interview,
A.E. used the term "nasty" for the first time. Again, Eddy fails to explain the significance
of that distinction. Even if A.E.'s mother planted the notion that the sex abuse was
"nasty," it does not render suspect the child's consistent statements of what Eddy did to
her. Certainly, it is not a compelling circumstance that would justify a psychological
examination.

In sum, Eddy fails to establish any valid reason that would support a finding of
compelling circumstances to warrant a psychological examination of the sex abuse victim
in this case. As such, the district court's denial of the evaluation motion cannot be deemed
an abuse of discretion. The ruling is affirmed.

Affirmed.