State v. Stanton

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NOT DESIGNATED FOR PUBLICATION

No. 118,255

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASE DEREK STANTON,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed August 24, 2018.
Affirmed.

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

Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District
Judge, assigned.

PER CURIAM: When a defendant is charged with certain sex offenses, including
aggravated criminal sodomy, evidence of the defendant's prior "act or offense of sexual
misconduct is admissible, and may be considered for its bearing on any matter to which it
is relevant and probative." K.S.A. 2017 Supp. 60-455(d).

Jase Derek Stanton was charged with two counts of aggravated criminal sodomy.
The State sought permission to admit evidence that Stanton had been previously
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convicted of sexual misconduct under similar circumstances. The State also sought
permission to admit similar evidence of sexual misconduct that did not lead to
convictions. The district court agreed that the evidence was admissible.

At a bench trial, the issues in the case boiled down to a credibility determination
between the alleged victim and Stanton. The district court found the victim more credible
and found Stanton guilty of one count of aggravated criminal sodomy. The record shows
that the court considered the evidence of prior sexual misconduct in reaching its finding.

Stanton appeals, arguing that the district court abused its discretion in admitting
the evidence of prior sexual misconduct because the district court did not consider the
correct factors in determining whether the probative value of the evidence substantially
outweighed its prejudicial impact. Because we find that the district court properly
weighed the evidence and did not abuse its discretion in admitting the evidence, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

A bench trial was held on two charges filed against Stanton of aggravated criminal
sodomy, one with L.B. as the victim and one with T.J. as the victim.

Prior to trial, the State sought permission to introduce evidence pursuant to K.S.A.
2015 Supp. 60-455(d) ("evidence of the defendant's commission of another act or offense
of sexual misconduct is admissible, and may be considered for its bearing on any matter
to which it is relevant and probative"). The State proffered that Stanton had previously
engaged in similar sexual misconduct under similar circumstances. Following a hearing,
the court admitted the evidence stating:

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"I am of the opinion that they all are sufficiently similar as to the allegations contained in
the case pending now. They involved alcohol, they involved partying, usually asleep or
perhaps passed out. They were all adult males, and mostly if not—well, maybe not all,
but most of them were in the military. I think this clearly establishes a propensity, motive,
and is admissible under our statute and case law.

"As to whether or not the probative value outweighs any undue prejudice, clearly
it's prejudicial, but due to the factors which I have just limited or just—the factors which
I've just stated on the record, I believe and I would find that the probative value
outweighs any prejudice."

The case proceeded to trial with the following evidence presented.

L.B., then 19 years old, and his friend T.J.—both soldiers with the United States
Army—went drinking in Manhattan, Kansas. They met Stanton, a 28-year-old former
Marine Corps reservist, and others at a bar shortly before closing time. After the bar
closed L.B. and T.J. went back to Stanton's house to continue partying.

Stanton made L.B. and T.J. some shots of liquor and some mixed drinks, which
they consumed. L.B. testified that he went out to Stanton's deck and that he did not
remember what happened after that until he woke up with Stanton on top of him. L.B.
testified that he was dazed when he was waking up. He stated that Stanton was sitting on
top of him and was sodomizing him. L.B. testified that he was unconscious when Stanton
got on top of him and pulled down L.B.'s pants. L.B. testified that he did not consent to
Stanton actions.

L.B. stated that he got away from Stanton and went to the bathroom. After leaving
the bathroom, L.B. saw that T.J. was asleep or passed out with his pants and underwear
also down to his knees. L.B. pulled T.J.'s pants back up. L.B. went to the deck and
attempted to call his chain of command and some family but was unable to reach anyone.
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According to L.B., Stanton came out to the deck but L.B. did not speak with him.
Ultimately, L.B. called the Army's sexual harassment program hotline (SHARP). The
SHARP representative told L.B. to meet a SHARP representative at a nearby Starbucks.
L.B. went back inside and tried to wake up T.J. but was unable to do so. L.B. testified
that this was unusual, T.J. would normally wake up even after similar nights of drinking.
L.B. left T.J. at Stanton's to meet with the SHARP representative.

The SHARP representative took L.B. to the hospital to receive a sexual assault
exam. T.J. went to the hospital separately. L.B. and T.J. both received sexual assault
examinations. Swabs from both L.B. and T.J. contained a foreign DNA profile that
matched Stanton.

Stanton's testimony at trial was fairly consistent with L.B.'s until the time when the
sexual encounter took place. Stanton testified that L.B. was more sober than anyone else
at the house. Stanton testified that he performed consensual oral sex on L.B. and that L.B.
performed consensual anal sex on him. Stanton testified that after having sex L.B. went
to the bathroom, came back, and appeared to be getting emotional. L.B. went out to the
deck and he and Stanton talked for "the better part of a half an hour." After talking,
Stanton told L.B. that he was going to go to bed. After everyone had left Stanton texted a
friend that he had a "three-way while that moron Boston kid [T.J.] was asleep in the
living room."

As for the evidence of Stanton's prior sexual assaults the parties stipulated that
Stanton was convicted of two counts of aggravated sexual battery from events occurring
in July 2008. The victim, B.C., testified at trial that, in the summer of 2008, he went to a
party for a friend who was in the military and being deployed to the Middle East. Stanton
was present. B.C. drank heavily and got sick. Stanton helped B.C. get to a couch and laid
him down. B.C. testified that he was in and out of consciousness due to the alcohol.
Stanton took B.C.'s pants off and performed oral sex on him. B.C. did not consent to the
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oral sex. B.C. told Stanton to leave and B.C. fell asleep or passed out. Later, a friend of
B.C.'s woke B.C. up. B.C. had to pull his pants up when he woke up. B.C. told his friend
what happened, and the friend contacted the police, eventually leading to Stanton's
conviction in 2010. Evidence related to three more sexual assaults that did not result in
convictions was also presented pursuant to the district court's pretrial order allowing its
admission.

Z.T., a member of the Marine Corps Reserves, testified that while deployed with
Stanton he attended a Marine Corp ball in November 2005, and became intoxicated. Z.T.
returned to his bunk and felt sick. He went outside to throw up a couple of times and
eventually laid on the ground outside and passed out. The next thing Z.T. remembers was
waking up in Stanton's room. Z.T.'s pants where down by his knees and Stanton was on
top of him touching Z.T.'s penis. Z.T. pushed Stanton out of the way and returned to his
room. Z.T. did not initially report the incident. A few weeks later Z.T. woke up in his
room and Stanton was touching him across his hips. Z.T. reported the incident, a court
martial was held, and Stanton was acquitted.

J.R., another member of the Marine Corps Reserves, testified that on December
31, 2006, he had three drinks and went to bed. J.R. woke up in the morning to discover
that someone was grabbing his penis. J.R. chased the person out of his tent and noticed
the person was wearing either red shorts or a red shirt. J.R. chased the person into a
different tent and looked into the individual living areas of the tent. J.R. noticed that
Stanton was wearing the same clothes as the person he chased. J.R. reported the incident,
a court martial was held, and Stanton was acquitted.

C.C., also a member of the Marine Corps Reserves, testified that he, Stanton, and
two other men were bunking together on base after a night of drinking alcohol. C.C. and
another individual were sharing a bed, one other man had a bed to himself, and Stanton
was sleeping on the ground between the beds. During the night Stanton reached up
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toward C.C.'s penis multiple times and C.C. told him to stop each time. Some time passed
and C.C. heard Stanton get up and approach the other man in C.C.'s bed. Stanton put his
arm in between the man's legs and was rubbing them. C.C. threatened to hurt Stanton if
he did not stop. C.C. reported the incident. This event was alleged to have occurred
sometime in the summer or fall of 2007.

After considering the evidence, the court found Stanton guilty of one count of
aggravated criminal sodomy for his actions involving L.B. and not guilty of the
remaining count involving T.J., who did not appear at trial. In reaching its decision the
court noted that L.B.'s and Stanton's testimony could not be reconciled. It is apparent
from the court's ruling that it found L.B.'s testimony more credible. In addition, the court
found that Stanton's 2010 conviction was similar to the events alleged in the present case.
The court noted that the other allegations of sexual assault did not have a "great deal of
probative value" because of the acquittals.

Stanton, who had a criminal history score of A under the Kansas Sentencing
Guidelines, was sentenced to 592 months in prison. He timely appeals.

ANALYSIS

The district court did not abuse its discretion by admitting evidence of Stanton's
prior sexual misconduct.

When a defendant is charged with certain sex offenses, including aggravated
criminal sodomy, evidence of that defendant's prior "act or offense of sexual misconduct
is admissible, and may be considered for its bearing on any matter to which it is relevant
and probative." K.S.A. 2017 Supp. 60-455(d). However, the district court should consider
whether the probative value of the evidence of prior sexual misconduct would be
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substantially outweighed by its prejudicial impact. State v. Lowrance, 298 Kan. 274, 291,
312 P.3d 328 (2013).

A district court's decision that the probative value of evidence of prior acts
outweighs the prejudicial impact of the evidence is reviewed for abuse of discretion. 298
Kan. at 291. A judicial action constitutes an abuse of discretion if (1) no reasonable
person would take the view adopted by the trial court; (2) is based on an error of law; or
(3) is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587
(2015). The burden to show an abuse of discretion is on the party alleging that the
discretion was abused. Lowrance, 298 Kan. at 291.

The district court allowed the admission of evidence related to a 2010 conviction,
as well as evidence of three similar incidents that did not result in convictions. After
hearing the evidence, the district court judge noted that he did not believe the three
incidents that did not result in convictions had much probative value, so they apparently
were not considered. However, the 2010 conviction, which involved B.C., was similar to
the events alleged in the present case. So it is only the 2010 conviction involving B.C.
that Stanton argues was not sufficiently probative to outweigh its prejudicial effect.

There can be no dispute that evidence of the 2010 conviction was prejudicial.
Most evidence presented by the State in an attempt to establish a defendant's guilt is
prejudicial. See State v. Garcia, 285 Kan. 1, 18, 169 P.3d 1069 (2007) ("'All evidence
that is derogatory to the defendant is by its nature prejudicial to the defendant's claim of
not guilty.'"); State v. Overton, 279 Kan. 547, 554, 112 P.3d 244 (2005) ("All evidence
supporting the State's charges is prejudicial to the defendant."); State v. Williams, 235
Kan. 485, 493, 681 P.2d 660 (1984) ("It was prejudicial as is all evidence against the
accused in criminal actions. That is its purpose.").

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We pause here to note that the parties spend a great deal of their briefs analyzing
Stanton's actions against the list of factors a panel of this court found useful in State v.
Boysaw, 52 Kan. App. 2d 635, Syl. ¶ 7, 372 P.3d 1261 (2016), rev. granted 306 Kan.
1321 (2017). But we note that a petition for review was granted by our Supreme Court in
Boysaw and until such time as a decision is issued by the Supreme Court it has no force
or effect. See Supreme Court Rule 8.03(j) (2018 Kan. S. Ct. R. 53). That said, we agree
that nonexclusive factors to consider in evaluating the probative value of prior acts
evidence should include such things as similarity, closeness in time, number of prior acts,
intervening circumstances, and the necessity of the evidence beyond what is already
offered at trial. See United States v. Benally, 500 F.3d 1085, 1090-91 (10th Cir. 2007)
(cited with approval in State v. Prine, 297 Kan. 460, 478, 303 P.3d 662 (2013); accord
State v. Remmert, 298 Kan. 621, 628, 316 P.3d 154 (2014), disapproved on other
grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015). So we will examine those
factors here.

The district court found that the probative value of the prior acts outweighed their
prejudicial effect because they were substantially similar to the allegations in the present
case noting that "[t]hey involved alcohol, they involved partying, usually asleep or
perhaps passed out. They were all adult males and . . . most of them were in the military."
Stanton disagrees, contending that the prior acts involving B.C. were devoid of evidence
that Stanton attempted to discuss emotional issues with B.C. as he claimed to do with
L.B. Stanton also argues there was no evidence that a sex act other than oral sex occurred
with B.C. But Stanton's arguments are unnecessarily specific. The circumstances need
not be identical, merely similar. See State v. Bowen, 299 Kan. 339, 349, 323 P.3d 853
(2014) (evidence was probative of Bowen's propensity to commit the acts alleged by
victim because the prior crimes were sufficiently similar to victim's allegations). There
are clear similarities, as outlined by the district court, between the current case and the
sexual misconduct involving B.C.

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The acts were fairly close in time. In fact, Stanton was still subject to registration
as a sexual offender from his 2010 conviction when these acts occurred in 2015. See
K.S.A. 2017 Supp. 22-4906(b)(1)(H) (duration of registration is 25 years).

Although the judge found that there was limited probative value to the acts for
which there was no conviction, the judge noted in his pretrial ruling that these acts all
involved nonconsensual sex with drunk or unconscious military personnel. There were
four actions total, the latest of which resulted in a conviction. Moreover, the State did not
simply present this evidence by way of a sterile police report, it presented the live
testimony of the victim in each case to be subjected to cross-examination by Stanton's
attorney.

There does not appear to be any intervening events between the prior offenses and
the current offenses that would diminish the probative value of the prior offenses. An
intervening circumstance seems to be something more akin to a life change in the part of
the defendant. For example, in Benally the defendant argued that he was an alcoholic
when the prior crimes occurred, but he was no longer an alcoholic when his current crime
was committed. 500 F.3d at 1093. No such intervening events were present here.

Finally, the case essentially boiled down to a credibility determination between
L.B. and Stanton. Additional evidence indicating that Stanton had a propensity to act as
L.B. testified was both relevant and probative to the State's case. Given the physical
evidence tying Stanton's DNA to L.B.'s genitals, had Stanton denied sexual intercourse
completely the need for the evidence of prior sexual misconduct would be lessened, but
that is not what occurred in this case. Stanton was alleging consensual sexual contact
when the evidence showed he had a propensity to engage in nonconsensual sex acts with
highly intoxicated or sleeping military personnel.

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Ultimately, Stanton has failed to show that the district court abused its discretion
in ruling that the evidence of his prior sexual misconduct was admissible. The ruling was
not based on an error of law or fact. Moreover, the district court's conclusion regarding
the weighing of the probative value against the prejudicial impact is not so far afield that
no reasonable person would take the view adopted by the court. See Marshall, 303 Kan.
at 445.

Affirmed.