IN THE SUPREME COURT OF THE STATE OF KANSAS
Nos. 80,106
80,753
STATE OF KANSAS,
Appellee,
v.
FRANK F. RUCKER, JR.,
Appellant.
SYLLABUS BY THE COURT
Under the facts of this case, the defendant's convictions for aggravated indecent liberties with a child, K.S.A. 21-3504(a)(2)(A), and stalking, K.S.A. 21-3438(a), are affirmed. We hold (1) the trial court did not abuse its discretion in denying the defendant's request for a psychological evaluation of the alleged victim, (2) evidence that the defendant had similarly sexually abused another child was properly admitted pursuant to certain exceptions of K.S.A. 60-455, (3) K.S.A. 21-3438 is constitutional, and (4) there was sufficient competent evidence to support the stalking conviction.
Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge. Opinion filed July 16, 1999. Affirmed.
Elizabeth Seale Cateforis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Doyle Baker, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: Frank F. Rucker, Jr., appeals his jury convictions of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(2)(A), a severity level 3 person felony, and stalking, K.S.A. 21-3438(a), a severity level 10 person felony.
Rucker raised four issues, contending that (1) the trial court abused its discretion in denying his request for a psychological evaluation of the alleged victim, (2) evidence that he had allegedly similarly sexually abused another child was erroneously admitted, (3) K.S.A. 21-3438 is unconstitutionally vague and violated his Sixth and Fourteenth Amendment rights, and (4) there was insufficient evidence to support the conviction of stalking.
We affirm both convictions. We hold the trial court did not abuse its discretion in denying the psychological evaluation, evidence that Rucker had similarly sexually abused another child was properly admitted pursuant to K.S.A. 60-455, the stalking statute, K.S.A. 21-3438, is constitutional, and there was sufficient evidence to support the stalking conviction.
Factual Background
Although 31 witnesses testified for the State, we need not detail all of the sordid facts because the appellant does not question the existence of sufficient evidence to support the jury's determination of guilt for the charge of aggravated indecent liberties with a child. We will present only those facts necessary to address Rucker's claims of error.
Frank Rucker and his wife, Kathy Rucker, had a stormy relationship from the time they met in 1985 through late March 1997 when this prosecution began. The relationship began in Wichita but faltered when Kathy returned to North Carolina and became pregnant with C.N.R. by a third party. It was reestablished when she returned to Wichita and resumed living with Rucker when C.N.R. was born in 1986. Rucker signed C.N.R.'s birth certificate, and the three of them lived together for a short time.
At some point, Rucker and Kathy married, although Kathy was not yet divorced from her first husband. A paternity action was filed where the trial court determined that it was in C.N.R.'s best interest that Rucker be determined to be her "presumed father." Rucker and Kathy's relationship was contentious, and they constantly battled over physical abuse, visitation, and child support. Their custody of C.N.R. was shared, with C.N.R. living with Kathy during the week and with Rucker on the weekends.
Immediately prior to his arrest on March 28, 1997, the parties had been obtaining court orders--Kathy's to protect her from abuse and Rucker's to obtain visitation. When Rucker attempted to enforce his visitation rights, C.N.R. told her mother that Rucker had been sexually abusing her and that she did not want to go with him. C.N.R. was taken to a hospital for a physical examination and then to a children's home.
At trial, the State was permitted to present evidence that Rucker had allegedly sexually abused another daughter, S.R., from his previous marriage to C.H. This evidence was introduced through the testimony of the victim, S.R., her sister, K.T., and C.H.
K.T. testified she had witnessed Rucker abusing her sister, S.R., on several occasions when K.T. was 9 or 10 years old and S.R. was 12 years old. K.T. testified that, while watching television, S.R. was called to help her mother and was told by Rucker, "Pull your panties up and get in there." On another occasion, K.T. remembered seeing Rucker on top of S.R. "moving back and forth." On another occasion K.T. awoke because the bunkbed she shared with S.R. was creaking and K.T. saw Rucker's face. K.T. also remembered a family vacation where she saw her father abuse her sister.
K.T. admitted on cross-examination that she did not report her sister's abuse until some 15 years after it occurred. She had tried to file a complaint, but was told that she could not do so because she was not the victim. She said she kept silent because she was scared of Rucker and had never talked to her sister about the abuse. She admitted that after she told her mother, her sister denied the abuse had occurred.
K.T. testified that as C.N.R. grew older she noticed a change in her behavior and became concerned that her father might be sexually abusing her, just as he had S.R. K.T. wrote of her concerns in a letter to a counselor in 1992, but when questioned, C.N.R. denied any abuse had occurred.
S.R. testified that Rucker had sexually abused her from the time she was 5 years old until she was 13 years old. She remembered being sexually abused by him when she was in kindergarten and that "it was introduced to [her] as sort of like a game, something that daddies did with their little girls, something that was acceptable." She said she was told not to "tell, [that her] mother wouldn't like it, [and] that [she would] get in a lot of trouble."
S.R. testified the abuse progressed when she was 8 or 9 years old to her being made to lie on the bed without any clothing as Rucker rubbed his penis against her, touched her inappropriately, and tried to make her kiss him; sometimes Rucker looked at pornographic magazines while doing this. S.R. testified that he would force her to lie down, rub against her, and usually ejaculated onto her stomach or pubic area, and after he was finished, he would tell her to "go get cleaned up."
S.R. recalled that Rucker would apply a yellow lotion to her before he would rub against her and recalled being fondled under a blanket and being abused while on a family vacation. If she cried or complained, Rucker would slap her and he threatened to kill "Shoo Shoo," the family dog, to which she was very attached, should she tell anyone about the abuse.
S.R. testified Rucker stopped sexually abusing her when she began menstruating, about age 13. She explained at trial, "I was still naive enough not to connect the pregnancy thing that he probably was concerned about." S.R. testified that Rucker never inserted his penis into her vagina; rather, he rubbed it on her vaginal area.
S.R. admitted on cross-examination that when she was asked by her mother whether Rucker had abused her, she "denied it or told her [she] didn't want to talk about it." She also stated she has never spoken to her sister K.T. regarding the abuse.
C.N.R. testified that Rucker started abusing her when she was 4 or 5 years old. Rucker would enter her bedroom, rub baby oil on her vagina, and then rub his penis against it. If C.N.R. would protest, Rucker would slap her. He threatened harm to her favorite pet if she said anything. C.N.R. admitted that although she was asked several times and by several different people, she always denied that any abuse occurred, having been told that if she said anything she would be taken away from him. She was scared. The last incident of abuse occurred during the last scheduled visitation before Rucker was arrested. She said she finally admitted to being abused because she "wanted where he wouldn't do it anymore."
Others suspected that C.N.R. was being abused. Kathy found a pubic hair in C.N.R.'s underwear after she had returned from a visit. The incident was reported to the police but no action was taken because C.N.R. denied that any abuse was taking place.
Health care practitioners testified that Rucker brought C.N.R. to a clinic for a pregnancy test in 1996, and when they spoke to C.N.R. alone, Rucker became angry. A detective testified a search warrant executed on Rucker's residence after his arrest produced a bottle of baby oil and a baby oil stain on the bedspread where C.N.R. slept when she visited Rucker. A counselor testified C.N.R. told her Rucker abused her on almost every visit and the nature of the abuse was identical to that testified to by other parties.
The events which resulted in the stalking charge occurred after C.N.R. made the sexual abuse allegations and while the claim was being investigated between April 2, 1997, and April 15, 1997. Although there was a court order suspending Rucker's right of visitation and contact with C.N.R., he followed her school bus and watched her repeatedly from a restaurant and a gas station while she was at school. C.N.R. testified she knew Rucker was watching and following her and it frightened her. A school district employee was assigned to sit on the bus with her and protect her.
C.N.R. testified she saw Rucker watching her from the gas station on her first day back after being released from the children's home. She reported the sighting to her teacher. She saw him watching from the restaurant across the street, stating, "I was scared; and wherever I went, it's like he was watching me. . . . He made me feel like I couldn't ever go anywhere without being watched."
C.N.R.'s bus driver told of an incident where Rucker drove in front of the school bus, forcing it to stop, and then glared at her "evil like, just looked at me real evil." The bus driver testified that C.N.R. was on the bus and knew her father was following her.
The principal at C.N.R.'s school testified that someone from the restaurant had called to report that a person was watching the children on the playground from the restaurant location. The description fit Rucker, who was identified by the principal.
C.N.R.'s teacher testified she saw Rucker watching from the gas station and that on one occasion Rucker brought C.N.R.'s backpack to school while C.N.R. was not there. The backpack contained a picture of C.N.R.'s cat that was located at Rucker's home. C.N.R. perceived the picture as a threat from Rucker that he might harm her pet.
A waitress at the restaurant testified that when she waited on Rucker, he was looking out the window. He described C.N.R. and told the waitress that the girl knew he was watching her.
Rucker's attorney, who had represented him for the past 10 to 15 years, testified he told Rucker there was no problem with watching C.N.R. from the restaurant. On cross-examination, the attorney admitted that a no contact order under circumstances such as these usually meant no contact of any kind. He testified that Rucker brought C.N.R. to his office and when asked whether she wanted to live with Rucker full-time rather than part-time, she answered "yes."
Rucker was found guilty of both counts and sentenced to a term of 213 months.
Psychological Evaluation
Rucker first argues the trial court abused its discretion in denying his request for a psychological evaluation of the alleged victim.
The standard of review of a defendant's motion for a psychiatric examination of a complaining witness in a sex crime case is whether the trial court abused its discretion in denying such request. State v. Brown, 249 Kan. 698, 710, 823 P.2d 190 (1991).
Judicial discretion is abused only when the action is arbitrary, fanciful, or unreasonable. Said in another way, discretion is abused only when no reasonable person would take the actions and view adopted by the trial court. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991).
In his motion requesting a psychological evaluation of C.N.R., Rucker suggested C.N.R. had been under psychological care relating to the alleged acts, the nature of her testimony was crucial to his defense, the complaining witness had psychological motivations for making the charge, and the evidence would be relevant to the issue of the credibility of the complaining witness.
In arguing on the motion prior to trial, Rucker pointed to the long-term visitation and custody battle and implied the prior disputes between C.N.R.'s mother and himself had a psychological effect on C.N.R. The State presented evidence which corroborated C.N.R's story. It proffered reports of her suspected abuse; evidence corroborating her claims, including the baby oil stains on the bedspread; Rucker's bizarre behavior in having C.N.R. submit to a pregnancy test; and Rucker's past sexual abuse of another daughter. There was no evidence of C.N.R. ever making false accusations and no evidence that C.N.R. was mentally unstable or lacked veracity.
In ruling on Rucker's motion, the trial court recognized his concerns but found there was significant testimony corroborating C.N.R.'s allegations, and that nothing about C.N.R. indicated a disease or defect that would be spotted in a psychological evaluation. The trial court concluded C.M.R.'s credibility would ultimately have to be judged by a jury and overruled the motion.
State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979), is the controlling Kansas authority on this issue. After discussing different ways other jurisdictions have dealt with the issue, we adopted a middle ground approach, holding "a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination." 226 Kan. at 489.
We followed Ballard v. Superior Court, 64 Cal. 2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966), suggesting that
"'the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity.'" Gregg, 226 Kan. at 489.
In our case, like in Gregg, no facts were stated or evidence introduced as to the child's mental instability, lack of veracity, similar charges against other men proven to be false, or any other reason why this particular child should be required to submit to such an examination.
Rucker recognizes the authority of Gregg but asserts the trial court failed to give sufficient consideration to the hostile relationship between Rucker and C.N.R.'s mother. Additionally, Rucker contends the trial court erroneously commented about evidence concerning his stalking charge.
The trial court's ruling was not an abuse of discretion. Rucker had the burden of presenting evidence to establish a compelling reason for the psychological examination and failed to do so. This case is similar to others in which the burden of showing mental instability, lack of veracity, similar charges against other men proven to be false, or some other reason why a particular victim should be required to submit to examination went unsatisfied. See State v. Brown, 249 Kan. at 710-11 (the trial court did not abuse its discretion in denying defendant request because he failed to present evidence that would warrant a psychiatric examination of the complaining witness); State v. Blackmore, 15 Kan. App. 2d 539, 542, 811 P.2d 54, aff'd in part and reversed in part 249 Kan. 668, 822 P.2d 49 (1991) (no abuse of discretion to deny motion for psychiatric examination; no evidence that complaining witness was mentally unstable or lacked veracity).
Prior sexual misconduct
Rucker contends the trial court erred when it permitted the State to introduce evidence under K.S.A. 60-455 that he had abused an older daughter in a similar manner.
The admissibility of prior crimes evidence under K.S.A. 60-455 is within the discretion of the trial court and will not be interfered with unless such discretion is abused or unless the evidence is clearly irrelevant to any of the issues. State v. Nunn, 244 Kan. 207, 210-11, 768 P.2d 268 (1989); State v. Riedel, 242 Kan. 834, 839, 752 P.2d 115 (1988). As we have previously stated, discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Martin, 237 Kan. 285, Syl. ¶ 2, 699 P.2d 486 (1985). A party claiming abuse of trial court discretion bears the burden of showing such abuse. State v. Larry, 252 Kan. 92, 95, 843 P.2d 198 (1992).
K.S.A. 60-455 provides:
"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
There are three requirements which must be satisfied for evidence to be admitted under K.S.A. 60-455. The trial court must find that "(1) the evidence is relevant to prove one of the facts specified in the statute; (2) the fact is a disputed, material fact; and (3) probative value of the evidence outweighs its potential prejudice." State v. Lane, 262 Kan. 373, 388, 940 P.2d 422 (1997).
The required hearing prior to trial revealed the State sought to introduce the previously described testimony of K.T. and S.R. The record shows that the nature of the abuse of S.R. and C.N.R. was similar, a yellow lotion was being used, penetration was not accomplished, threats to pets were made, and similar statements were made.
Defense counsel argued the prejudicial impact outweighed its probative value and contended that if admitted, it would deny Rucker a fair trial.
The trial court ruled:
"I am going to allow the evidence as it is relevant to prove intent, identity, preparation, plan, and lack of mistake or accident. I recognize that it is prejudicial; but I find that its probative value outweighs its prejudicial effect, and you [defense counsel] will certainly be allowed to test the credibility of these witnesses through your cross-examination."
On appeal, Rucker contends the trial court erred in admitting evidence of prior abuse of S.R. He contends the factors listed were not materially disputed facts and that the prejudicial effect outweighs the probative value of the testimony to the extent that his right to a fair trial was denied.
Few areas of our jurisprudence have been subject to more conflicting views and decisions than the application of K.S.A 60-455. See 1 Gard and Casad, Kansas C. Civ. Proc. 3d Annot. § 60-455 (1997). We will not by this case solve any of the problems spawned by a myriad of prior cases.
Rucker argues first that, in applying the three-part test, the evidence was not relevant to any of the statutory factors. While we will hereinafter state that certain of such factors may have been improperly included in the trial court's ruling, the striking similarity between the manner of abuse testified to by S.R. and C.N.R. makes the testimony relevant. We said in State v. Faulkner, 220 Kan. 153, Syl. ¶ 6, 551 P.2d 1247 (1976), that evidence is relevant if it renders the desired inference more probable than it would be without the evidence or has any tendency in reason to prove a material fact. We hold the necessary relevance was clearly established for the trial court to consider the admissibility of prior acts evidence.
In considering the intent exception, Rucker contends his intent was not a proper reason for the admission of the alleged prior crimes because intent was not at issue in the case. His defense was that the act did not occur at all and cites Nunn, 244 Kan. 207, Syl. ¶ 3, as holding that where criminal intent is obviously proved by the mere doing of an act, the introduction of other crimes evidence has no real probative value to prove intent.
The State counters by arguing that because the prior sexual acts with S.R. were similar to those with C.N.R., the question of intent was a disputed material fact. The State cites the holding in State v. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974), that "[w]here an act in itself may be susceptible of two interpretations, one innocent and the other criminal, then the intent with which the act is done becomes the critical element in determining its character." Thus, the State argues that in presenting its case in order to sustain its burden of proof, intent was in issue. The State also contended that Rucker had not claimed at the pretrial hearing that the acts had not occurred, but only that the evidence was not relevant and unduly prejudicial. Because of this, the State contends that intent remained an issue in dispute.
This court has addressed a similar issue in State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), and later in State v. Clements, 252 Kan. 86, 89-90, 843 P.2d 679 (1992). The defendant in Damewood, much like in this case, argued that his defense was innocence and that intent was not an issue because the mere doing of the act shows intent. Damewood had committed a similar crime in the past with a different victim. We concluded that the testimony of the prior crime met all of the requirements for admission under K.S.A. 60-455 and that its probative value outweighed any prejudice. In reaching this conclusion in Damewood, we relied upon State v. Fisher, 222 Kan. 76, 85, 563 P.2d 1012 (1977) (evidence of prior similar sexual acts was admissible to prove intent, plan, and design), and State v. Crossman, 229 Kan. 384, 624 P.2d 461 (1981).
Our Crossman decision allowed evidence of prior sexual acts with the same child to be admitted independent of K.S.A. 60-455 under our rule that, in cases involving illicit sexual activity with a child, evidence of prior similar acts between the same parties is admissible independent of K.S.A. 60-455. The Damewood court further commented: "'This is not to say that evidence of prior acts could not have been introduced pursuant to K.S.A. 60-455 to establish intent.'" Damewood, 245 Kan. at 681 (quoting Crossman, 229 Kan. at 387).
Damewood expanded the Crossman decision and essentially held that testimony the defendant committed similar sexual acts with someone other than the complaining witness was properly admitted to show intent and plan. A similar situation clearly exists under the fact of this case.
The testimony in the present case showed that Rucker's abusive nature was substantially similar as to both S.R. and C.N.R. Both victims were abused from the time they were 5 years old until just before puberty. Both victims were the legal children of the perpetrator. Both victims testified Rucker applied a lubricant to her vaginal area. Both victims testified Rucker rubbed his penis on the lubricated area until he reached satisfaction. Both victims testified that Rucker slapped them if they protested in any way. There was evidence that Rucker threatened to kill the pets of both victims should they disclose the abuse.
We reached the same result in Clements as we did in Damewood. In Clements, it was argued that, as to the admission to show intent, Nunn, 244 Kan. 207, stands for the proposition that "'intent becomes an issue for the purposes of K.S.A. 60-455 only when the defendant admits doing the act in question but maintains that he did it in innocence.'" 252 Kan. at 90.
Based on the facts in Clements that the defendant's actions might be construed to be innocent in nature we held:
"In Clements' situation, intent must be proved to support a charge of sexual battery (a backrub does not, by itself, necessarily constitute sexual battery).
"Damewood is controlling on the issue of plan. The general method used by Clements to entice young boys is similar enough to show a common approach that is tantamount to a plan.
"Clements' argument arising from [State v.] Graham[, 244 Kan. 194, 768 P.2d 259 (1989),] and Nunn is not persuasive." 252 Kan. at 90.
The admission of the prior sexual misconduct in Clements was proper because the defendant's intent could have been innocent and was therefore a factual issue. Also, in Clements, as in Damewood and in our case, the plan exception justified admission of the testimony. See State v. Tiffany, No. 77,835 decided July 9, 1999, for a similar discussion on this issue and additional comments on earlier cases which we will not repeat herein.
The logic and reasoning behind the admission of similar sexual misconduct based on the proof of intent may be questioned in prior cases as well as this one, but the evidence admitted in each case clearly shows plan. And, we have held that even if erroneous for one reason, where there are other reasons for admission which follow the exceptions, the error is harmless. See State v. McBarron, 224 Kan. 710, 713, 585 P.2d 1041 (1978).
We are hard-pressed to see how identity was in any manner an issue in this case, notwithstanding the State's contention that Rucker's taking C.N.R. to a clinic for a pregnancy test justified a belief that identity could be a material fact because according to Rucker she had "messed a couple weeks earlier with some boys at the baby sitter." We believe that Rucker's argument on appeal that identity was not in issue better states the situation. It is interesting to note that identity as set forth in K.S.A. 60-455 was in earlier cases in Kansas considered to relate to "identity of person or crime." See State v. Frizzell, 132 Kan. 261, 264, 295 Pac. 658 (1931). However, Lane, 262 Kan. at 389, held that identity was a material fact in a Kansas death because the defendant testified he was not involved in a death occurring in a substantially similar matter in another State. We hold that identity is not a 60-455 factor to be considered in this case.
In considering the exception relating to plan and preparation, Rucker argues that no causal link existed between the prior sexual abuse and the current allegations and that the long time period separating their occurrences rendered them unrelated. The State relies on Damewood, 245 Kan. at 682, in its contention that when a complete denial exists, evidence of prior sexual acts that are similar is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the same crime or acts.
In Damewood, we said:
"Admission of evidence under 60-455 to show plan has been upheld under at least two theories. In one the evidence, though unrelated to the crimes charged, is admitted to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.
. . . .
"The rationale for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citation omitted.]
"Another line of cases has held evidence of prior crimes or acts is admissible to show plan where there is some direct or causal connection between the prior conduct and the crimes charged." 245 Kan. at 681-82.
The prior crimes evidence in Damewood was admitted because it "was strikingly similar to the method and plan" used in the later crime. 245 Kan. at 682.
As we have noted in the intent analysis, there are striking similarities between the alleged and prior offenses to warrant the admissibility of the testimony to prove plan. See Clements, 252 Kan. at 90; State v. Grissom, 251 Kan. 851, 924, 840 P.2d 1142 (1992) (applying Damewood to uphold trial court's determination that unrelated evidence of a similar prior crime admissible to show plan in current charge).
Rucker relies on State v. Marquez, 222 Kan. 441, 446, 565 P.2d 245 (1977), where preparation for an offense is defined as "devising or arranging means or measures necessary for its commission" to argue that preparation is not applicable here because no series of acts in preparation for the crime were shown. Essentially, he argues that the alleged abuse of S.R. cannot be said to be preparation for the later abuse of C.N.R. Although the modus operandi of the two crimes were similar, it is difficult not to agree with Rucker that this is not a situation where one initiates and sets forth a process aimed at eventual completion of the later crime. See Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411, 422 (1972).
Finally, as to lack of mistake or accident, that element was not at issue because there was no contention that the acts were purely those normal to the interplay between a father and a young daughter. This is really nothing more than another way of saying that the defendant acted intentionally. See Faulkner, 220 Kan. at 156-57.
As to those disputed elements for which the prior crimes evidence was relevant in this case, we hold the probative value of the evidence outweighed its potential to prejudice, and we find no abuse of discretion in the admission of the testimony. Although the trial court abused its discretion by also admitting the evidence to prove certain other elements which were not in dispute, we note the large volume of other evidence and the overall strength of the case against Rucker in concluding that such error was harmless and does not require a new trial in this case.
Constitutionality of stalking statute, K.S.A. 21-3438