State v. Howe

1

NOT DESIGNATED FOR PUBLICATION

No. 117,287

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DARREN CURTIS HOWE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed August 10, 2018.
Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., LEBEN, J., and BURGESS, S.J.

PER CURIAM: Darren Curtis Howe appeals his jury trial convictions and sentences
for criminal sodomy and indecent liberties with a child. However, Howe's only claim on
appeal is that the district court abused its discretion when it denied his second motion to
admit prior sexual activity of the complaining witness after the jury was impaneled and
before any evidence had been presented to the jury. We find no abuse of discretion, and we
affirm.


2

FACTS

In December 2013, the State charged Howe with aggravated indecent liberties with
a child and criminal sodomy after his 14-year-old niece, A.O., accused Howe of forcing
her to perform fellatio, penetrating her with his fingers, and trying to have sex with her.
The incident occurred in September 2013. The State later amended its information
charging Howe with rape or, in the alternative, aggravated indecent liberties with a child;
aggravated criminal sodomy or, in the alternative, criminal sodomy; and aggravated
indecent liberties with a child or, in the alternative, indecent liberties with a child.

On April 21, 2016, pursuant to the rape shield statute, see K.S.A. 2017 Supp. 21-
5502, Howe's fourth appointed counsel moved to admit evidence of A.O.'s prior sexual
activities with a boy her age and her lying about whether anything occurred because the
allegation against Howe came shortly after A.O.'s mother told her she knew A.O. had sex
with the boy. After a hearing, the district court ruled the evidence was relevant to show
A.O.'s motive to fabricate the allegations against Howe. The district court allowed the
evidence for the limited purpose of discussing A.O.'s denial of the conduct, her mother's
later confirmation of the conduct, and the timing of the allegations against Howe. The
district court specifically forbid Howe from dwelling on the details of A.O.'s sexual
encounter with a boy her age.

On May 12, 2016, Howe's fifth attorney entered his appearance and moved to
continue the jury trial set for May 17, 2016. The district court continued the trial until
August 23, 2016.

The trial began at 9:30 a.m. on Tuesday, August 23. The district court asked both
parties if they were ready for trial and Howe said he was. About six hours later, the jury
was sworn in. Before opening statements, the State noted Howe's defense counsel had
"mentioned" some work his investigator had done that may be subject to the rape shield
3

statute and made an oral motion to prevent discussion of this evidence during opening
statements. The district court told Howe he "will need to have something filed. If it isn't,
it's abandoned. And it may be too late anyway, but I will see what you have to say." Howe
filed his motion and affidavit under the rape shield statute at 10:07 p.m. that night.

Howe's motion alleged A.O. had had consensual sex with a boy her age but when
confronted by J.A., the boy's girlfriend, A.O. claimed she was raped. It also alleged she
took nude pictures of herself and viewed pornography. He argued the evidence should be
admitted to show A.O.'s reputation for untruthfulness, particularly about sexual activities.
He also argued it showed her "gratuitous knowledge of sexual behavior." Finally, the
motion identified the witnesses as A.O.'s "peers." The attached affidavit, signed by Howe's
defense counsel, simply stated:

"I the below signed certify and affirm the information contained in the Defendant's
Motion to Admit Evidence under K.S.A. [2017 Supp.] 21-5502 is true to the best of my
knowledge. The testimonial evidence would be provided by parties who have knowledge
of the matter and would be brought in through those parties."

At the hearing on the motion just before the start of the second day of the trial,
Howe apologized for the lateness of the motion. He clarified he did not have this
information until the previous weekend and was unable to verify it until the Monday
before trial. He explained the purpose of the evidence was to show A.O. had a history of
untruthfulness about her sexual experiences and to explain her knowledge of the sexual
acts she accused Howe of initiating. The State argued the motion was untimely and the
affidavit did not comply with K.S.A. 2017 Supp. 21-5502. It also argued the evidence of
nude photographs and viewing pornography were irrelevant, particularly since A.O. was a
freshman in high school when the incident occurred so her sexual knowledge was not
gratuitous. The State also noted its investigator spoke with J.A. the previous night and she
told the investigator she never heard A.O. say she had been raped.

4

The district court denied the motion as untimely because the case was almost three
years old. It also found Howe's evidence did not comply with the statute, finding: "But at
this late date, I think an affidavit should be from the people that you are proffering this
from. This is sort of thirdhand, at best." The district court found neither the nude
photographs nor viewing of pornographic materials were relevant and concluded: "As far
as this allegation that she may have talked about rape about somebody else, you haven't
given me enough to even make a determination, and I am ruling that you have not
followed the procedure and it is inadmissible." Howe noted his affidavit was similar to the
affidavit filed in the previous motion to admit evidence under the rape shield statute. Still,
the court determined the motion was untimely and the evidence was inadmissible.

The jury found Howe guilty of criminal sodomy and indecent liberties with a child.
It acquitted him of all other charges. The district court sentenced Howe to 71 months'
imprisonment for criminal sodomy and 32 months' imprisonment for indecent liberties
with a child and ran the sentences concurrently.

ANALYSIS

Howe's motion was untimely and insufficient.

Howe argues the district court erred when it refused to grant his motion and conduct
a hearing to consider the admissibility of A.O.'s prior sexual history. He contends the
district court erred because the evidence he wished to introduce had only been recently
discovered and the district court had granted a similar motion to admit evidence of A.O.'s
prior sexual conduct.

K.S.A. 2017 Supp. 21-5502(b) restricts the admission of a sexual assault victim's
previous sexual conduct with any person—including the defendant—unless the district
court specifically finds it has relevance "and is not otherwise inadmissible as evidence." In
5

addition, K.S.A. 2017 Supp. 21-5502(b) requires a written motion, made at least seven
days before trial, and an affidavit that includes an offer of proof of the previous sexual
conduct. "Absent waiver by the district court, failure to file the required motion within the
time specified by the statute precludes admission of the evidence at trial." State v. Walker,
252 Kan. 117, 134, 843 P.2d 203 (1992). This furthers the State's interest in protecting
sexual assault victims, protects against surprise to the prosecution, and permits the district
court to weigh the relevance and admissibility of the evidence. 252 Kan. at 134.

Here, the district court denied Howe's motion based on his failure to file his motion
more than seven days before trial. It refused to waive the timeliness requirement, finding:
"This case is in[to] three years old. Almost. We're about a month away from the 36th
month. To come in[to] trial and have this and say, 'Well, we didn't know until now,' I don't
find it excusable." The district court also noted the affidavit attached to the motion was
insufficient to comply with the statute because the affidavit contained "thirdhand
[information], at best."

A district court's decision to exclude evidence under the rape shield statute is
subject to an abuse of discretion standard. State v. Lackey, 280 Kan. 190, 219, 120 P.3d
332 (2005), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317
(2006). A judicial action constitutes an abuse of discretion if (1) no reasonable person
would take the view adopted by the trial court; (2) the action is based on an error of law; or
(3) the action is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d
587 (2015).

The district court did not abuse its discretion. Its denial of Howe's motion was not
based on an error of law; as the record reflects, the district court understood it had the
ability to waive the timeliness requirement. Similarly, the district court's denial was not
based on an error of fact because Howe's motion was not filed seven days before trial.
6

Thus, the only questions is whether no reasonable person would take the view adopted by
the trial court.

Howe argues the "obvious purpose" of the rape shield statute is to prevent surprise
to the prosecution and, since the State was aware of his witnesses and had a contrary
statement from one of the witnesses, there was no surprise. Howe contends Walker is
distinguishable because he apologized for the lateness of the motion and explained the
evidence only came to light over the preceding weekend. In Walker, the defendant moved
to admit evidence of a prior consensual sexual relationship between his brother and the
victim to show he believed the relationship was ongoing and consensual, so he could not
be convicted of aiding and abetting his brother's rape and aggravated criminal sodomy.
Walker filed his motion the day before trial and, without giving a reason for the denial, the
district court denied the motion. On appeal, the Kansas Supreme Court affirmed, stating:
"It was the defendant's unexplained failure to comply with the notice provision that
precluded the district court from determining if the evidence was relevant and admissible.
. . . We find no error in excluding the evidence." 252 Kan. at 135.

While Walker is not directly on point, it is not as distinguishable as Howe argues.
Howe filed his motion after 10 p.m. on the first day of the trial, after the jury was
impaneled and before any evidence had been presented. Walker did not explain the reason
for the motion's untimeliness. Although Howe apologized for the lateness of the motion
and suggested he only learned of the evidence over the weekend, he does not identify why
he was unable to discover the evidence until the weekend before trial in a case pending for
almost three years. Second, Howe discovered the evidence on August 19, 2016, but he did
not file his motion until 10:07 p.m. on August 23, 2016. While Howe stated he was waiting
to file the motion until he verified the evidence, there is no indication the district court was
aware of the potential for the motion until after the jury was sworn in. Even then, Howe
did not raise the issue. Instead, the State raised the issue through an oral motion in limine
to prevent Howe from discussing the evidence, which potentially implicated the rape
7

shield statute, during opening statements. Although Walker is superficially distinguishable,
Howe inadequately explained the reason for the delay in filing the motion.

Howe also argues the district court's rejection of the affidavit was unreasonable
because it found a similar, earlier affidavit sufficient to support a hearing. The State
apparently concedes the affidavits were "substantially similar." Still, as the State suggests,
the district court focused on the lateness of the motion: "But at this late date, I think an
affidavit should be from the people that you are proffering this from." (Emphasis added.)
Additionally, neither Howe's motion nor his affidavit identify who would testify about the
allegations made in his motion. It simply states the witnesses would be A.O.'s "peers."
(Howe did identify three witnesses at the hearing on his motion.) The district court later
noted: "As far as this allegation that she may have talked about rape about somebody else,
you haven't given me enough to even make a determination, and I am ruling that you have
not followed the procedure and that it will be inadmissible."

Despite Howe's arguments, a reasonable person could agree with the district court's
decision to deny the motion as untimely. Howe filed his motion after the jury was
impaneled instead of seven days before trial. He did not explain why he had not discovered
the information contained in his motion, only suggesting he learned of the behavior the
weekend before trial. Rather than notifying the district court when he discovered the
information on Friday, Howe waited until after he verified the information on Tuesday
before telling the district court of the potential motion. The motion and affidavit did not
identify who would testify about the allegations in Howe's motion. The district court did
not abuse its discretion when it denied Howe's motion as untimely and determined the
attached affidavit was insufficient to support the motion.

Affirmed.