State v. Gonzalez

310 P.3d 1079

STATE of Kansas, Appellee,

v.Richard GONZALEZ, Appellant.

Nos. 107,375, 107,376.

Court of Appeals of Kansas.

Oct. 11, 2013.

Appeal from Douglas District Court; Sally D. Pokorny, Judge.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Crystalyn Oswald, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD–BURGER, P.J., BUSER and STANDRIDGE, JJ.

MEMORANDUM OPINION

PER CURIAM.

A jury convicted Richard Gonzalez of aggravated sodomy and aggravated indecent liberties with a 4–year–old child. Gonzalez seeks a new trial based on three allegations of evidentiary error and a claim of prosecutorial misconduct during closing arguments. He also raises case-specific challenges to the constitutionality of his two hard 25 life sentences imposed for both crimes under Jessica's Law. We find no error related to these claims and therefore affirm Gonzalez' convictions. Finally, Gonzalez argues, and the State concedes, that the sentencing court could not order that Gonzalez be subjected to lifetime monitoring upon his release to parole. Accordingly, we remand this case to the district court for entry of a nunc pro tunc order deleting the reference in the journal entry to lifetime electronic monitoring.

Factual and Procedural History

On July 13, 2009, R.K. was 4 years old and attended Gloria Windholz' home daycare. Richard Gonzalez was Windholz' father and resided at the home. Gonzalez went by “Grandpa” among the children. During naptime, the other children slept in one room on cots while R.K. stayed in the living room because she was transitioning away from naptime.

On August 25, 2009, while R.K.'s mother was taking her to swim lessons, Mother asked R.K. if she had taken a nap during the day. R .K. responded that she did not take a nap because Grandpa kept bothering her. Mother asked R.K. what she meant, and R.K. responded, “ ‘Well, he makes me suck on his fingers.’ “ Mother then asked R.K. why Grandpa did that and R.K. stated, “ ‘I don't know. He sticks his finger in my poopie hole and it hurts.’ “ Mother then asked R.K. where Windholz was at the time, and R.K. told her that she was resting upstairs. Mother also asked R.K. if she had told Windholz about the incident, and R.K. responded in the negative. Mother went on to R.K.'s swim lesson because she did not want to scare R.K. or for her to think that anything was wrong.

After R.K.'s swim lesson, Mother and Father took R.K. to Lawrence Memorial Hospital but were then directed to take R.K. to Stormont–Vail in Topeka, Kansas. At Stormont–Vail a nurse proceeded with a vaginal exam of R.K. and took some swabs. Mother also gave law enforcement the underwear that R.K. was wearing that day because she noticed a white spot on them.

Two days later, on August 27, 2009, Detective Rita Fulton–Mays and Lindsay Bishop, a social work specialist, interviewed R.K. about the incident with Grandpa. The interview was videotaped and shown at the jury trial. During the interview, R.K. told Bishop that she did not like napping on the couch because “Grandpa keeps doing stuff to me.” R.K. told Bishop that Grandpa holds and touches her cheeks; i.e., her buttocks. In addition, R.K. said that Grandpa makes her suck his fingers and that he sucks her fingers. R.K. then said that Grandpa put his finger up R.K.'s poopie spot; i.e., her anus. She said that Grandpa also licked her anus, her tummy, and her buttocks. R.K. said that Grandpa touched her potty parts; i.e., her vagina. At the end of the interview, using anatomically correct male and female dolls, R.K. described that Grandpa put his finger in her anus and that “it hurt so bad.” Using the dolls, she also showed Bishop that Grandpa showed her his wee wee/pee pee; i.e., his penis, and made her touch it.

Joy Thomas, a nurse at Stormont–Vail, performed the sexual assault examination on R.K. During the exam Thomas noticed redness around the anal area. She also noticed that there was petechiae at the 6 o'clock location and an abrasion at the 7 o'clock location of R.K.'s rectum. Thomas determined that the petechiae and the abrasion were abnormal and could have been caused by the penetration of any hard object, such as a finger, but could also be caused by a hard stool. Thomas indicated that the petechiae was more consistent with an object going in rather than coming out. Thomas also took swabs from R.K.'s anal area and DNA samples from R.K.'s mouth.

Gonzalez voluntarily provided a DNA sample from the inside of his cheek. Gonzalez' and R.K.'s DNA samples as well as R.K.'s underwear were sent to the Kansas Bureau of Investigation (KBI) to be tested. The results indicated that there were traces of amylase on R.K.'s underwear that were consistent with Gonzalez' Y DNA which occurred once in 1,786 individuals in the general population.

On March 5, 2010, the State charged Gonzalez with one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child.

The jury found Gonzalez guilty of both aggravated criminal sodomy and aggravated indecent liberties with a child. The sentencing court sentenced Gonzalez to two concurrent hard 25 life sentences with lifetime electronic monitoring while on parole.

Gonzalez filed a timely notice of appeal.

Admission of the Videotape

Two days after R.K. reported to her mother that Grandpa bothered her during naptime, she was interviewed by a social work specialist about her interaction with Grandpa/Gonzalez. The interview was videotaped.

At trial, R.K. was presented as a witness. During her direct testimony, R.K. remembered that Gloria had a dad that lived at the day care and that R.K. took naps at the daycare on the couch. She remembered no one else was in the room with her when she took her naps, but Gloria's dad would come into the room during naptime. She further reported that she told her mother what happened to her during naptime and she remembered speaking to Lindsay, the social work specialist, about naptime and Grandpa. She stated she did not remember anything else and she did not want to talk about it. The prosecutor pressed her on her failure to remember details:

“Q. Okay. And, [R.K.], is this something you don't want to talk about today?

“A. I don't want to talk about it today.

“Q. Okay. Are you saying you don't remember because you don't want to talk, or because you really don't remember?

“A. I really don't remember.”

The defense then cross-examined R.K. and asked her about naps, her imaginary friends, and whether her imaginary friends bothered her during naps. R.K. responded that she liked naps and that her imaginary friends never bothered her during naps. That was the extent of the cross-examination. The defense never questioned R.K. about Gonzalez or what happened during naptime at Windholz' day care. It should also be noted that the district court never made a finding that R.K. was unavailable.

The videotaped interview of R.K. was admitted during Bishop's testimony after R.K. was excused from the witness stand.

Gonzalez argues that R.K. was unavailable as a witness when the videotaped interview was shown to the jury and should not have been admitted as evidence because he did not have the opportunity to confront R.K. about the allegations she made against him. Because of this, his right to confront R.K. was denied and such an error was not harmless.

A criminal defendant has the right “to be confronted with witnesses against him” under the Confrontation Clause of the Sixth Amendment to the United States Constitution. Similarly, a criminal defendant has the right “to meet the witness[es] face to face” under § 10 of the Kansas Constitution Bill of Rights. The United States Supreme Court, in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), determined that testimonial hearsay statements are inadmissible unless the declarant is unavailable to testify and the criminal defendant had a prior opportunity to cross-examine the declarant. R.K.'s interview with Bishop was testimonial. See State v. Henderson, 284 Kan. 267, 281–94, 160 P.3d 776 (2007).

Appellate courts use a de novo standard of review when considering issues pertaining to the Confrontation Clause. State v. Noah, 284 Kan. 608, 612, 162 P.3d 799 (2007). If a court determines that a criminal defendant's right to confrontation has been violated, the constitutional harmless error standard from Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is applied. Henderson, 284 Kan. at 294.

Gonzalez relies on State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980), for his argument that R.K. was unavailable as a witness because she never repeated any of the allegations she made previously against Gonzalez and because she could not remember what happened during naptime at Windholz' daycare. In Lomax & Williams, our Supreme Court found that when a witness completely fails to testify regarding the events in question, then that witness is unavailable for cross-examination and the admission of previous allegations violates a criminal defendant's right to confrontation. 227 Kan. at 660–62. However, the court also distinguished the facts in Lomax & Williams by stating: “This is not a case where a witness, acting in good faith, was unable to testify as to the subject matter of her prior statement because, through no fault of her own, she had lost her memory in regard to such events.” 227 Kan. at 661–62.

The State primarily relies on State v. Stafford, 296 Kan. 25, 49, 290 P.3d 562 (2012), where our Supreme Court relied on State v.. Osby, 246 Kan. 621, 632–33, 793 P.2d 243 (1990), for the following rule on witness unavailability:

“[I]f the declarant, while testifying at trial, answers some questions concerning the subject matter of the out-of-court statement, yet refuses or is unable to answer other questions, the declarant is considered ‘...