State v. Kelley

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NOT DESIGNATED FOR PUBLICATION

No. 119,837

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KIM L. KELLEY SR.,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed September 20,
2019. Affirmed.

Mark T. Schoenhofer, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: In 2006, a jury convicted Kim L. Kelley Sr. of two counts of rape,
one count of aggravated incest, and one count of attempted rape. The Court of Appeals
found the district court erred by admitting hearsay evidence and the error was not
harmless. It reversed and remanded for a new trial. State v. Kelley, 42 Kan. App. 2d 782,
795, 217 P.3d 56 (2009).

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In 2011, Kelley pled guilty to aggravated battery. Although the district court
sentenced him to probation, he had already served a longer term than his underlying
sentence, and his probation was terminated at sentencing.

In 2014, Kelley petitioned for expungement of his conviction. The district court
denied the request, finding expungement was inconsistent with the public welfare. Kelley
appeals.

FACTS

In 2006, K.R. lived with Kelley—her biological father—and her stepmother. On
June 7, 2006, K.R. disclosed to her stepmother that Kelley had been going into her room
and touching her. Stepmother discussed the allegations with Kelley and after meeting
with their pastor, she insisted Kelley go to the police station.

"Later that night Kelley went to the police station and informed the officers he
needed to report an incident involving his daughter. At Kelley's request, Officers Bradley
Harris and Eric Matthews led Kelley to a private interview room. Kelley provided the
officers with his name and address and stated he was there to report that he had made
sexual advances to his daughter sometime during the month of May or June. Kelley
stated he had touched his daughter on her vagina while he was masturbating. When the
officers realized Kelley was confessing to a felony offense, they asked the name of his
daughter and then terminated the interview. Harris took a picture of Kelley to document a
small scratch on the left side of his face and a bite mark on his chest. Kelley's statement
to the police was neither recorded nor reduced to writing." 42 Kan. App. 2d at 784.

K.R. reported that Kelley had sexually assaulted her three times and attempted to
do so a fourth time. She reported that the first time she resisted Kelley, but he had been
able to put his penis in her vagina. On June 6, 2006, when he tried to assault her for the
fourth time, he entered her bedroom and got on top of her. When he tried to sexually
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penetrate her, her pajama bottoms were torn. After she scratched his face and bit him, he
bit her and left the room. On June 9, 2006, the State charged Kelley with three counts of
rape and one count of attempted rape.

K.R. testified about the four incidents of sexual assault at the preliminary hearing
on June 11, 2006, but alleged the first assault was consensual. The State amended Count
1 to aggravated incest. Later, in a letter to Kelley, K.R. recanted the allegations, and
apologized to him for lying. Stepmother then took K.R. to Kelley's defense counsel,
where she reported all the incidents with Kelley were consensual. At a later date,
stepmother took her to defense counsel's office again and K.R. recanted the allegations
against Kelley and stated nothing had happened.

At the jury trial on January 23, 2007, K.R. testified she had lied about the whole
story and the first three incidents had never happened. She stated that on June 6, 2006,
Kelley tried to wake her up in the morning, but she would not get out of bed. She testified
to a physical struggle with Kelley and stated she scratched him and bit him on the
abdomen, and he bit her on the shoulder. She claimed she made the false allegations
because she had been upset with Kelley for not allowing her to date and taking away her
cell phone.

The jury convicted Kelley of all four counts. The district court sentenced him to
267 months' imprisonment with 36 months of postrelease supervision. In his direct
appeal, Kelley challenged the district court's decision to allow the detective to testify
about the interview with stepmother when the State had not called her as a witness,
therefore Kelley could not cross-examine her. The Court of Appeals found the testimony
was inadmissible hearsay that could not be deemed harmless. It reversed and remanded
the case for a new trial. 42 Kan. App. 2d at 795.

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On May 27, 2011, Kelley entered into a plea agreement with the State. He agreed
to plead guilty to one count of aggravated battery, a level 7 person felony, and the State
agreed to recommend the high grid box number and follow the presumption of probation.
Because Kelley had already served 64 months in prison, the parties agreed to
acknowledge that as jail credit and request that the district court order that his time served
satisfied any sentence imposed rather than imposing the probationary term. In his plea,
Kelley acknowledged that he

"intentionally caused 'bodily harm' to K.C.R., the sixteen (16) year old victim in the
instant matter, by biting K.C.R. on June 6, 2006 during a physical altercation with the
child. [Kelley] acknowledge[d] that his actions that day were committed in a manner
whereby great bodily harm can or could have been inflicted on K.C.R."

The district court sentenced Kelley to 24 months of probation with an underlying
sentence of 26 months in prison with 12 months of postrelease supervision. The court
ordered Kelley's probation to be terminated.

On July 15, 2014, Kelley petitioned for expungement. He asserted he had been
convicted of aggravated battery on May 27, 2011, and released from postrelease
supervision on June 28, 2011. He contended he had not been arrested or convicted of any
felony or misdemeanor since and no charges were pending or being instituted against
him, his current circumstances and behavior warranted expungement, and it was
consistent with public welfare.

The district court heard the petition on July 12, 2018. The State asserted that in
such hearings, attorneys generally proffer their evidence and there was not much to ask a
character witness on cross-examination. The State did not object to the court reviewing
letters Kelley submitted that were written by witnesses who were unable to testify, and
the State offered a written statement by K.R. Kelley did not object and stated it was "tit
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for tat" and only fair that the State submit a written statement since he also submitted
letters. The court received letters from Senior Pastor Herman Hicks of the Greater
Pentecostal Church of God in Christ; John E. Dorsett, supervisor of construction projects
for the Wichita Public Schools; Carol A. Williams; and DeWayne Henley, a deacon with
Kelley at church.

Carla Echols testified she had known Kelley and his family for many years and
she "[felt] like he absolutely should be considered for expungement. He has just been
stellar in my relationship with him." She testified that her heart sank when she heard
about what happened and that she did not feel like it should have gone before a judge.
She considered Kelley to be a "stellar human being" who was moving forward and should
not have to worry about this coming up again. When the court questioned Echols about
her understanding of Kelley's conviction, she stated she knew Kelley would have never
been involved in such a situation and considered it "a really unfortunate situation from
this young woman."

In a short bench conference, the district court asked counsel whether either party
objected to it asking Echols about the paragraph in Kelley, 42 Kan. App. 2d at 784, that
described Kelley's statements to law enforcement, informing officers that he touched
K.R.'s vagina while he masturbated. When asked if he objected, Kelley stated, "No. I
think the Court has to consider all evidence."

When the district court asked if Echols had known that Kelley's apparent
admission to police began the investigation, she stated she had not heard that. After she
stated she had heard the allegations were not true, the court clarified that the statements in
the above paragraph came directly from Kelley. Echols concluded her testimony by
stating she would need more information about what took place.

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Kelley's second character witness was Donald Smith, pastor at Eastside Cathedral
of Praise, who had known Kelley for at least 10 years. Smith considered Kelley to be a
"very dependable guy." With no prompting, he continued, "I believe in justice, but I also
have been involved in situations and circumstances where what has been said or what has
been stated to be said has not necessarily been true. I am talking about even from the
police department." He noted that he is a "pretty good judge of character" and the
allegations against Kelley did not mesh with what he knew of Kelley.

Smith expressed that "everything that is put down on paper as being stated as fact
is not always fact, even in the courtroom." When the district court stated there was no
dispute as to those statements, Smith stated, "Sometimes people can actually put things
down and put words into people's mouth. I don't know anything about that. That is the
first time I have heard that, but I have always learned, with a degree of skepticism, to
receive things as fact." He echoed Echols' statement in that he wanted to know the
circumstances of Kelley's statements. He concluded that from his perspective as pastor,
he had not seen Kelley act in a manner similar to the allegations.

Kelley next called Edward Coleman, pastor at Mount Carmel Church of God in
Christ, who had known Kelley's family for more than 25 years. Coleman had worked
with Kelley and, at stepmother's request, talked with Kelley about God. He testified that
when Kelley began attending church, his life changed. Coleman reported his relationship
with Kelley and stepmother developed to a point that they both called him "dad."
Coleman testified that he trusted Kelley around his children, all of whom were grown. He
expressed that Kelley was a changed man and he believed that if he had done anything in
his past, he would not do it again. Coleman stated that Kelley had changed his life with
God and God had blessed him to have a better future.

Stepmother was Kelley's last character witness. She testified that when K.R. made
the allegations, both she and Kelley were mandated reporters as they worked for the
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school district. She claimed the State did not call her to testify at Kelley's trial because
she would not lie and say Kelley confessed because it was K.R. who made those
allegations. Stepmother blamed Kelley's defense counsel for messing up at trial. She
described K.R. as having a reputation for dishonesty and expressed that she had been
oversexualized when she lived with her mother and grandfather. She stated she and
Kelley took K.R. out of her mother's house when she was 12 years old because Kelley
wanted to be the dad he was called to be, although she believed it was a bad idea. She
testified that Kelley never raped K.R. and never told the detectives that he inappropriately
touched her. She insisted that when detectives questioned him, he remained silent. She
also contended that K.R. switched her story many times, even waking her up at times to
tell a different story about what had happened.

On the contrary, at the hearing on Kelley's motion to assert the marital privilege,
which the district court denied, the State presented that K.R. was a year ahead of schedule
at school and was getting ready to begin her senior year. K.R. had been an A/B student
and planned on finishing high school a year early and starting school at Butler
Community College. After the investigation began and Kelley had been arrested, K.R.
remained in the home with stepmother and threatened to run away if she was removed
from the home because she wanted to graduate early and move on with her life goals.

The district court redirected stepmother's testimony, stating the hearing was not to
look back. The court acknowledged that the record showed K.R. had given different
stories. The court expressed, "We are here for an expungement hearing for Mr. Kelley.
That is what I am really expecting you to address." Stepmother testified that Kelley was a
wonderful man who took care of his children. She stated that Kelley worked on cars
when he could and hoped to obtain employment with John Dorsett, who installed
playground equipment for the school district. But he could not with a felony conviction
on his record.

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Stepmother testified: "[Kelley] is a wonderful man, and I hate that trying to help
someone put us in this predicament, in this situation." She and Kelley had a 25-year-old
nephew who lived with them sometimes and a 28-year-old son over whom they had
guardianship. They also regularly cared for their son's four-year-old twins and helped
take care of her deceased sister's grandchildren.

Kelley then proffered that he went to the police station because he only had 24
hours to make a report or he would lose his job. He provided information about what K.R
alleged, and he denied making that statement to the police. He concluded that his crime
of conviction was not a sex offense, only aggravated battery. Kelley explained that the
purpose of the expungement was so that he could obtain employment that required work
at McConnell Air Force Base and other bases. With a felony conviction, he could not
enter the facilities. He claimed that expungement allowed him to move forward from
"this horrible experience" that he had to suffer. Kelley contended that if the district court
reviewed K.R.'s statement, she expressed the need for consequences and that from 2006,
when the alleged incidents occurred, to 2018, he had served more than the time for his
crime of conviction and had carried the scourge of the conviction for 12 years. Kelley
argued he met the three statutory requirements for expungement.

In explaining that its objection to expungement was based largely on K.R.'s
wishes, the State referenced K.R.'s input statement. K.R. had marked that she did not feel
Kelley should be granted expungement and wrote:

"I feel like every action has a consequence. This happened to me when I was 16 years
old. Trying to stop him from having sex with me. I don't think he should be able to get
this expunged. I have to live with what happened [daily]. And with this on his [record],
maybe he'll remember this [daily]."

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The State argued:

"When you consider the type of crime, the allegations in this case being what they were,
that this victim suffered at the hands of her father, being inappropriately touched, I can't
imagine how that affected her. You can tell from her statement that she made that this is
something that she lives with."

The State addressed the fact that law enforcement reported what Kelley said to them and
there was no reason to doubt the officers. It pointed to Kelley and noted the Court of
Appeals reversed the conviction based only on stepmother's statements to law
enforcement. It concluded that facts from the trial were concerning and K.R. continued to
live with the effects daily. The State asked the district court to deny Kelley's petition
under the third statutory prong, as expungement was inconsistent with public welfare.

The district court noted that Kelley was not subject to the Kansas Offender
Registration Act and stated "[I]t sounds like they have young children in their home,
which is probably where the Court would have the most concern for the future, and I
mean by that, with children or persons under the age of 18." The court considered the fact
that the purpose for expungement was for employment building playground equipment
which would not be a similar circumstance to K.R.'s allegations. It questioned how
denying expungement would serve the interest of public safety if Kelley continued to
have young children in his home.

The State suggested that because K.R. lived with the scar and could not get rid of
the trauma, Kelley should not be able to get rid of the stigma of being a felon. Kelley
argued the State failed to show how expungement was inconsistent with public welfare
and its only point seemed to be that K.R. was still affected by the incident. He pointed out
that he was seeking expungement for the sake of employment and his conviction
prevented him from working at the Air Force Base. The district court focused on the
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employment possibilities upon expungement, as Kelley would have no restrictions in his
job search and could obtain employment in other school districts. The court expressed the
lack of employment limitations presented a public safety concern.

The district court found Kelley met the first and second prongs of K.S.A. 2005
Supp. 21-4619(e), in that he had not been convicted of a felony in the two years
preceding the expungement proceeding and no such crime was pending or being
instituted at the time, and, based on the character witnesses, Kelley's circumstances and
behavior warranted expungement. But the court struggled with the third factor. It noted it
had to view the prong from circumstances of the public. It viewed the offense in light of
the 2011 plea, and found the aggravated battery was premised on a bite mark that
occurred when Kelley was in K.R.'s bed early in the morning. Law enforcement had
noticed Kelley's scratch during his interview and K.R. testified to having scratched him.
The court found those circumstances and facts made the most sense in light of Kelley's
statements to police in 2006. The court expressed: "[B]ecause of that, I do have a concern
for public welfare in the future with regard to employment that Mr. Kelley could be in
that would place him around children." The court recognized that denial of the petition
did not prevent the circumstances from happening again, but it was not ready to say that
expungement was consistent with the public welfare. The court denied the petition.

Kelley appeals.

ANALYSIS

The parties agree caselaw dictates that K.S.A. 2005 Supp. 21-4619 governs the
petition as that was the statute in place at the time of the commission of the offense. State
v. Jaben, 294 Kan. 607, 613, 277 P.3d 417 (2012). Under K.S.A. 2005 Supp. 21-4619(e):

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"At the hearing on the petition, the court shall order the petitioner's arrest record,
conviction or diversion expunged if the court finds that:
(1) The petitioner has not been convicted of a felony in the past two years and no
proceeding involving any such crime is presently pending or being instituted against the
petitioner;
(2) the circumstances and behavior of the petitioner warrant the expungement;
and
(3) the expungement is consistent with the public welfare."

The parties also agree with the district court's findings that Kelley satisfied the first two
requirements. Kelley only challenges the court's findings that expungement was
inconsistent with the public welfare.

Kelley contends the district court abused its discretion when it denied his petition
for expungement as the State did not present any evidence to counter his assertions that
he satisfied the three prongs under K.S.A. 2005 Supp. 21-4619(e) and the court based its
denial on the allegation of sexual abuse although Kelley's crime of conviction was not
sexual.

When reviewing a district court's decision on a petition for expungement, the
appellate court reviews the decision using the abuse of discretion standard. State v.
Sandstrom, 273 Kan. 558, 561, 44 P.3d 434 (2002). Judicial action constitutes an abuse
of discretion if it is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law;
or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

Abuse of Discretion Based on an Error of Law

Kelley contends the district court abused its discretion by considering the sexual
nature of his overturned 2006 conviction rather than restricting its review to the facts of
the 2011 plea. It seems he is claiming the court abused its discretion by basing its
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determination on an error of law as he refers to K.S.A. 2005 Supp. 21-4619(d)(6) as a
restriction on what the district court may consider in making its determination. K.S.A.
2005 Supp. 21-4619(d) provides:

"When a petition for expungement is filed, the court shall set a date for a hearing
of such petition and shall cause notice of such hearing to be given to the prosecuting
attorney and the arresting law enforcement agency. The petition shall state:
. . . .
(6) the identity of the convicting court, arresting law enforcement authority or
diverting authority. There shall be no docket fee for filing a petition pursuant to this
section. All petitions for expungement shall be docketed in the original criminal action.
Any person who may have relevant information about the petitioner may testify at the
hearing. The court may inquire into the background of the petitioner and shall have
access to any reports or records relating to the petitioner that are on file with the
secretary of corrections or the Kansas parole board." (Emphasis added.)

Kelley focuses on the last two sentences of the statutory subsection, italicized
above, in arguing that the State presented no witnesses and the court improperly looked
beyond the 2011 plea agreement. However, in State v. Cummins, No. 104,138, 2011 WL
1196947, at *3 (Kan. App. 2011) (unpublished opinion), the Court of Appeals found that
when "considering whether an expungement is consistent with the public welfare, a court
can consider the nature of the underlying offense and not just the defendant's exemplary
behavior following the conviction." (Citing Sandstrom, 273 Kan. at 564). In Cummins,
the defendant was caught in a Target store with his pants down, using a mirror to watch a
girl trying on clothes in a changing room. The State charged him with misdemeanor
eavesdropping, not a sex offense. Because of the sexual nature of the offense, the district
court denied Cummins' petitions for expungement in 2008 and 2010. For both petitions,
the district court found expungement was inconsistent with public welfare. The Court of
Appeals affirmed the district court's finding that because of the sexual nature of
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Cummins' eavesdropping offense, which did not require sex offender registration, the
conviction needed to be preserved. 2011 WL 1196947, at *3.

Here, Kelley's petition for expungement was filed under the 2006 underlying
criminal case number. So, though Kelley's initial convictions for aggravated incest, rape,
and attempted rape were reversed, and he was ultimately convicted of aggravated battery,
the facts were available to the court as the expungement is filed under the same case
number per K.S.A. 2005 Supp. 21-4619(d)(6), and the facts used by the district court
were from the published Court of Appeals opinion. Additionally, expungement hearings
do not abide by the same rules of evidence as used in trials in that the parties often proffer
their evidence rather than conduct a formal evidentiary hearing.

While this case presents a factual scenario unlike others reviewed by this court,
because of the reversal and plea to a much lesser crime, Kelley has provided no authority
to assert that the district court lacked authority to review the case file. It seems K.S.A.
2005 Supp. 21-4619(d)(6) does not limit the court's review to the department of
corrections records and reports but expands the district court's ability to review such
reports in addition to all information included under the case number. Because the court
is charged with determining what is in the public's interest, not just the interest of the
petitioner, the statute more likely expands the court's review to documentation as to the
petitioner's most recent behaviors rather than restricting review to only the more recent
behaviors. This is reflected in Sandstrom, 273 Kan. at 563-64, and Cummins, 2011 WL
1196947, at *3, in which the Kansas appellate courts recognized that it is in the public's
interest for some offenses to remain on petitioners' records despite exemplary behavior
following conviction because of the nature of the offenses.

Though the aggravated battery as charged in 2011 was not of a sexual nature, the
initiation of the investigation did not change from 2006 to 2011. The Court of Appeals
reversed and remanded for a new trial based on the district court improperly allowing law
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enforcement to testify about stepmother's interview though the State did not call her as a
witness and so Kelley could not cross-examine her. However, the police investigation
into K.R.'s allegations began due to Kelley's statements to officers, which were not at
issue on appeal.

Significantly, in making its determination, the district court only considered the
statements that initiated the investigation, not K.R.'s allegations of rape. And before using
Kelley's statements in court, the district court called both parties to the bench and asked if
either party objected to the court asking Echols whether she was aware of Kelley's
statements to law enforcement as contained in the Court of Appeals opinion. Kelley
replied, "No. I think the Court has to consider all evidence" and the State replied, "To be
fair, Judge, it was going to be part of my argument." After asking Echols if she was
aware that Kelley had made the statements, the court stated, "In essence, it is the Court's
impression — from what I have read from the Court of Appeals' decision, which is the
only record I have — that that was kind of the initiating investigatory event." Given the
lax evidentiary standard and the court's consideration of only the statements that initiated
the investigation in light of the facts of the 2011 plea, the court did not abuse its
discretion in reviewing the Court of Appeals opinion or considering the nature of the
offense.

Invited Error

Although Kelley argues the State did not present evidence, the parties agreed that
the attorneys could proffer the evidence. The State did not object to the district court
reviewing letters written by character witnesses who were unable to testify, and Kelley
did not object to the court accepting K.R.'s input form and the State's proffer of evidence.
Kelley stated it was "[t]it for tat. I'm giving [the court] some letters; she will give [the
court] some letters. It is only fair." The State did not call any witnesses, but instead it
proffered its evidence in its final arguments. The State noted that it challenged the
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petition for expungement in large part because of the wishes of the victim. And, just as
the district court had, the State focused on Kelley's statements to law enforcement rather
than K.R.'s allegations of rape.

Even if the district court improperly considered the sexual nature of the
allegations, Kelley invited such error when he failed to object to the court questioning
Echols about his statements to law enforcement. Rather than objecting, Kelley stated, "I
think the Court has to consider all evidence." Further, he agreed to the State's proffer of
evidence and failed to object when the State addressed his statements to law enforcement.
A litigant may not invite error and then complain of the error on appeal. State v. Verser,
299 Kan. 776, 784, 326 P.3d 1046 (2014).

Abuse of Discretion for Unreasonableness

Because the underlying case revolved around allegations of sexual contact with
Kelley's daughter, who lived in his home, the district court questioned whether denying
the expungement served the interests of public safety when Kelley continued to regularly
have child relatives in his home. The State replied that K.R. believed she lived with a scar
from Kelley's actions and so he should live with the felony record for the rest of his life.
The State added that expungement was legislatively created to permit those who had
absolutely changed their lives to receive some benefit and recognized that felony
convictions affect different areas of life. The State concluded that here, Kelley's record
should remain because employers, loan officers, and others who consider criminal history
should know of his conviction.

The district court focused on the State's assertion that employers should know of
Kelley's conviction. It pointed out that expungement would permit him to work in school
districts again, which presented a concern for public safety. The court denied the petition
based on its concern for public welfare regarding Kelley's potential employment that
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would place him around children. This determination was not unreasonable, fanciful, or
arbitrary. See Sandstrom, 273 Kan. at 564 (Supreme Court affirmed the district court's
expungement denial, finding it was in the public's interest to maintain the petitioner's
murder conviction record); Cummins, 2011 WL 1196947, at *3 (Court of Appeals
affirmed district court expungement denial, finding it was in the public's interest to keep
the conviction on record because of the sexual nature of the offense). The district court
did not abuse its discretion by denying Kelley's petition for expungement.

Affirmed.