State v. Hunter

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NOT DESIGNATED FOR PUBLICATION

No. 114,856


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT EARL HUNTER,
Appellant.


MEMORANDUM OPINION

Appeal from Ford District Court; VAN Z. HAMPTON, judge. Opinion filed December 9, 2016.
Affirmed.

Terry J. Malone, of Williams-Malone P.A., of Dodge City, for appellant.

Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

Per Curiam: Claiming there is insufficient evidence to sustain his convictions,
Robert Earl Hunter asks us to overturn his convictions for rape of a child under 14 and
two counts of indecent liberties with a child under 14. Hunter received three concurrent
life sentences for these crimes and contends that:

First, there was insufficient evidence;
second, the aggravated habitual sexual offender statute is unconstitutional; and
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third, the district court erroneously admitted a video recording of a police
interview with the victim.

Having carefully reviewed the record, we find no merit in this appeal. We affirm
his convictions.

J.C., the victim, spent the summer of 2013 living in Bucklin with several family
members including Hunter. J.C. was 8 years old. Hunter was 63 years old. J.C. moved to
Bucklin shortly after the prior school year finished. At some point during the summer,
Hunter began sexually fondling J.C. She remembered three distinct events where Hunter
acted inappropriately.

The first inappropriate action occurred when J.C. and Hunter were outside sitting
on a bench in the backyard. J.C. asked to sit in Hunter's lap. After J.C. sat in his lap,
Hunter put his hands down her pants. Hunter entered J.C.'s pants in the back and moved
his hand toward her vagina. Hunter touched the outside of J.C.'s vagina and penetrated
her vagina with his hand. J.C. told Hunter to stop, and she ran away from Hunter.

The second inappropriate action occurred while Hunter was filling up a swimming
pool. Hunter asked J.C. if she wanted to touch his "cocka"—the word J.C. used for
penis—with her hand. J.C. heard Hunter unzip his pants. It is unclear whether J.C. saw
Hunter's penis. At one time J.C. stated she did not see his penis, but at another she stated
his penis was sticking straight out of his pants.

The third inappropriate action by Hunter occurred after Hunter woke J.C. up while
the rest of the household was asleep. Hunter made her breakfast and, after eating, they
went back to Hunter's bedroom to watch television. After they were inside the room,
Hunter began kissing J.C. Hunter kissed her on the lips, neck, and between her breasts.
Hunter asked if J.C. liked what he was doing, and she told him to quit. J.C. heard Hunter
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unzip his pants. Then, J.C.'s brother entered the room and asked to go swimming. Hunter
zipped up his pants.

After the summer had ended, J.C. returned to live with her mother in Wichita,
Kansas. J.C. had been acting up after she returned home. While J.C. and her mother were
having dinner, J.C. told her mother that Hunter had touched her. J.C.'s mother contacted
the Wichita sexual assault center. J.C. was taken to the Wichita police exploited and
missing child unit to be interviewed. J.C. told the police the reason she finally blurted out
that Hunter had hurt her was that "I had it too long."

The State charged Hunter with one count of rape of a child under 14 under K.S.A.
2011 Supp. 21-5503(a)(3) and two counts of indecent liberties with a child under the age
of 14 under K.S.A. 2011 Supp. 21-5506(b)(3)(A)&(B). The State amended the complaint
to charge Hunter as an habitual offender. Hunter was considered an habitual offender due
to a prior conviction for aggravated incest—perpetrated against his 10-year-old and 12-
year-old daughters. The State introduced evidence of the prior crimes at trial.

At trial, J.C. was confused about how often the touching happened and provided
inconsistent testimony. At one point she stated the touching happened every other day,
and at another point she stated the touching happened three times a day. Describing the
touching as happening every other day was the best way J.C. could explain how often it
happened. The State introduced a video recording of Detective David Wertz interviewing
J.C. about what had happened to her. The recording was admitted without objection.

The jury convicted Hunter on all three counts. Hunter sought a downward
departure, arguing the habitual offender statute violated the 8th Amendment prohibition
of cruel and unusual punishment. The court denied this motion and sentenced Hunter to
three concurrent life sentences.

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There was sufficient evidence.

Hunter raises two arguments about insufficient evidence:

First, J.C. told different stories to different people which shows a jury could not
believe her story beyond a reasonable doubt; and
second, there is no evidence of his intent for any of the crimes.

When reviewing sufficiency of the evidence this court looks at the evidence in the
light most favorable to the prosecution and upholds the conviction if the evidence
convinces this court that a jury could find the defendant guilty beyond a reasonable
doubt. State v. Laborde, 303 Kan. 1, 6, 360 P.3d 1080 (2015). When looking at the
evidence the court will not reweigh witness credibility. State v. Daws, 303 Kan. 785, 789,
368 P.3d 1074 (2016).

Hunter argues that because J.C. told different stories, no jury could convict him
beyond a reasonable doubt. He is actually asking this court to reweigh the credibility of
J.C.'s testimony. This court is not in a position to reweigh the credibility, but rather
accepts the jury's determination of credibility. State v. Holt, 221 Kan. 696, 700-01, 561
P.2d 435 (1977). The fact J.C. was not able to pinpoint exactly when Hunter violated her
does not make her testimony so lacking in credibility to overturn the convictions. State v.
Rowray, 18 Kan. App. 2d 772, 780, 860 P.2d 40 (1993).

Hunter's second argument concerns the indecent liberties charges. He claims the
State presented no evidence of his specific intent to excite sexual pleasure of himself or
J.C., or his general intent to rape. Intent can be proven through circumstantial evidence
alone. See State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). However, inferences
drawn from circumstantial evidence must be based upon proven facts. See State v.
Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
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For the indecent liberties charges, the State proved Hunter kissed J.C. on her lips,
neck, and between her breasts and at a different time asked J.C. to hold his penis in her
hand. For the rape charge, Hunter placed his hand in J.C.'s underwear and penetrated her
vagina. These actions are sexual in nature, and the jury could properly infer Hunter's
intent from his proven actions alone. See State v. Clark, 298 Kan. 843, 850, 317 P.3d 776
(2014). Additionally, the State showed Hunter had previously committed sexual crimes
against his daughters. The Kansas Legislature, through K.S.A. 2015 Supp. 60-455(d),
permits the use of previous convictions of sexual crimes to be used as propensity
evidence in a prosecution. See, e.g., State v. Bowen, 299 Kan. 339, 349-50, 323 P.3d 853
(2014). The jury could infer that because Hunter had previously assaulted similar victims,
he had the requisite intent to excite his or J.C.'s sexual pleasure and his intent to rape.

Because these inferences are based upon proven facts, the jury could have found
Hunter had the requisite intent for the crimes he committed. See Richardson, 289 Kan. at
127. Thus, there is sufficient evidence for the conviction.

Supreme Court precedent controls the issue concerning the Habitual Sexual Offender
Statute.

Hunter challenges the aggravated habitual sexual offender statute as
unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed.
2d 435 (2000), and the 8th Amendment's prohibition against cruel and unusual
punishment. Hunter recognizes the Kansas Supreme Court has determined this statute is
constitutional but wishes to preserve these arguments for federal review. This court is
duty bound to follow Kansas Supreme Court precedent, unless there is an indication the
Supreme Court is changing its position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264
P.3d 1027 (2011).


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We will not consider Hunter's issue about the videotape.

Finally, Hunter challenges whether it was proper to admit the recorded video of
the police's interview with J.C. Hunter made no contemporaneous objection to the
admission of this video at trial. K.S.A. 60-404 generally precludes an appellate court
from reviewing an evidentiary challenge absent a timely and specific objection made on
the record. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016). A trial objection needs
only to be as specific as necessary for the trial court to "consider as fully as possible
whether the evidence should be admitted and therefore reduce the chances of reversible
error." State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). A lack of a
contemporaneous objection can be overcome if the purpose of the rule has been satisfied.
See State v. Hart, 297 Kan. 494, 510-11, 301 P.3d 1279 (2013).

In State v. Barber, 302 Kan. 367, 373-74, 353 P.3d 1108 (2015), a lack of a
specific, timely objection was overcome by pretrial motions regarding the admissibility
of challenged evidence. Barber raised an objection at trial referring to the pretrial
proceedings, which "signaled to the trial court . . . that he was not raising a different legal
argument from those already considered by the trial court." 302 Kan. at 373.

Here, Hunter did not raise a specific and timely objection at trial and filed no
pretrial motion regarding the admissibility of the recording. The district court was not
given the opportunity to consider whether the recording should have been admitted.
Therefore, the purpose of the contemporaneous objection rule is not satisfied and K.S.A.
60-404 prevents this court from analyzing Hunter's challenge to this evidence. See
Richmond, 289 Kan. at 429.

Affirmed.