State v. Harris

551 P.3d 240

STATE of Kansas, Appellant,

v.Patrick Ryan HARRIS, Appellee.

No. 126,611

Court of Appeals of Kansas.

Opinion Filed June 28, 2024

Syllabus by the Court

1. Appellate courts only have jurisdiction as provided by statute. Where an appeal is not taken consistent with this statutory authority, it must be dismissed for lack of jurisdiction.

2. The State may not take an interlocutory appeal from an order suppressing evidence unless the exclusion of such evidence substantially impairs the State’s ability to prosecute its case.

3. This court is duty-bound to follow Kansas Supreme Court precedent absent some indication our Supreme Court is departing from its previous position.

Appeal from Johnson District Court; Timothy P. McCarthy, judge. Submitted without oral argument.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Kris W. Kobach, attorney general, for appellant.

Kelly R. Driscoll, deputy public defender, of Johnson County Public Defender Office, for appellee.

Before Schroeder, P.J., Isherwood and Pickering, JJ.

Schroeder, J.:

Patrick Ryan Harris has been charged with multiple crimes, including two counts each of aggravated sexual battery and aggravated criminal sodomy. Prior to trial, the district court ruled certain evidence the State sought to admit was inadmissible: (1) evidence of Harris’ other crimes and (2) the testimony of an expert witness, Dr. Daniel Murrie. The State seeks review through an interlocutory appeal. As more fully explained below, we lack jurisdiction to consider either issue; thus, we dismiss the appeal.

Factual and Procedural Background

We provide limited facts underlying the criminal charges at issue in this appeal which are based upon the victim’s testimony at Harris’ preliminary hearing.

In late 2016, the victim, S.H., met Harris when she applied for a job at the video store at which Harris managed. The pair eventually developed a sexual relationship, and S.H. wanted to explore a BDSM sexual relationship. The nonromantic, consensual sexual relationship evolved to include acts of BDSM, which S.H. understood to mean bondage, domination, sadism, or masochism and would entail Harris inflicting pain on her. Harris and S.H. had "safe words" to indicate when a participant was approaching or had reached his or her limits. S.H. explained that Harris was initially respectful of the use of these safe words.

During one sexual encounter, Harris inflicted more pain than usual. S.H. used her safe words, and Harris complied, S.H. explained the encounters were becoming more forceful, commanding, and mean—both physically and verbally. After one of the encounters, S.H. took pictures of her buttocks that depicted bruising because she was "trying to figure out a way to get out." These photographs were admitted into evidence at the preliminary hearing.

S.H. eventually told Harris that she was not sure she could continue their sexual relationship. Harris told S.H. that there were three options:

• The pair continue their relationship;

• Harris takes what he wants from S.H.; or

• Harris finds out information about S.H.’s brother and takes what he wants from him.

S.H. interpreted the final option as a threat Harris would harm her brother. Harris reiterated the three options to S.H. while whipping her with a belt. S.H. later chose the first option because she feared what Harris would do. S.H. remained determined to find a way to get out of the relationship. Harris took a picture of S.H. during this encounter, which was admitted into evidence at the preliminary hearing.

At the pair’s final encounter, Harris gave S.H. 33 "birthday spankings" on both her buttocks and breasts, causing marks and lumps to appear on S.H.’s breasts. Before leaving, Harris took a picture of S.H.’s photo identification card. S.H. took pictures of her breasts after this incident, which were admitted into evidence at the preliminary hearing.

About a week later, S.H. divulged what had been going on between her and Harris to her friends and brother, who convinced her to call the police. S.H. met with an officer and, later, detectives. S.H. provided law enforcement with a two-page written statement describing what happened. The statement did not claim Harris had forced S.H. to engage in sexual activity with him, but S.H. stated she "didn’t know that what he was doing was wrong." S.H. also turned over physical evidence she retained from their BDSM sexual relationship.

The State filed a pretrial motion to determine the admissibility of evidence of other crimes under K.S.A. 2017 Supp. 60-455. Specifically, the State alleged Harris had prior relationships with six women in which he "engaged in similar behavior, and some of it was criminal in nature." According to the State: "The evidence from these women show a pattern, motive, opportunity, plan, preparation, intent and material facts of how the defendant sought women out to inflict pain on them for his sexual gratification. Then how his behavior continued under force or threat to the victim, making it criminal."

Harris filed a response to the State’s motion, arguing the evidence of other crimes identified in the State’s motion was inadmissible. Specifically, Harris argued:

"[T]he admission of any prior bad acts evidence is not relevant, does not go to any material fact at issue and any probative value that would be obtained by the admission of such evidence would be greatly outweighed by the prejudice caused to Mr. Harris and his right to a fair trial."

The district court later conducted a hearing on the State’s motion. At the hearing, the State withdrew its attempt to seek the admissibility of evidence relating to Harris’ relationships with four of the six women identi- fied in its motion but continued to seek the admissibility of evidence relating to Harris’ relationship with the remaining two women, K.E. and K.B. The State made a proffer of the evidence from both women it would seek to admit, but, because of the timing of the State’s motion to reconsider and this interlocutory appeal, we find it unnecessary to detail the proffer.

The district court ruled the evidence at issue was inadmissible and explained its rationale for denying the requested evidence under K.S.A. 2017 Supp. 60-455(d). The State asked the district court to clarify its ruling: "The Court is denying [the motion] as to K.E. because the ultimate conviction was not a sexual-related conviction. Is that my understanding?" The district court responded, "Correct. … Mr. Harris didn’t plead to the sexual offense but he pled to aggravated battery 8. That is my ruling and my interpretation of 60-455(d)." After this ruling, the State failed to seek a timely interlocutory appeal.

As the case progressed, the State engaged the services of Dr. Murrie, a forensic psychologist, and asked him to prepare a report expressing his expert opinion on:

• " ‘The BDSM culture, e.g. standard practices within the culture, what is allowed and what is considered to be outside the bounds."

• "Mr. Harris’s ‘manner of operating’ across offenses, including selection of victims and interactions with victims."

• "The ‘victimology of his victims in these situations, e.g. how do they find themselves in these situations, why do they stay as long as they do, and the acute trauma response that a victim will show as well as what trauma exposure will look like long term.’ "

Upon receiving a copy of Dr. Murrie’s report, Harris filed a motion to exclude Dr. Murrie’s testimony, arguing it was inadmissible because it would constitute improper expert opinion testimony. Specifically, Harris argued:

"[T]he proffered expert testimony from Dr. Daniel Murrie should be deemed inadmissible for a number of reasons, including, but not limited to, the fact that Dr. Murrie is (1) not qualified to testify as an expert witness, (2) his opinions will not help the trier of fact to understand the evidence or determine a fact in issue, (3) his opinions are not based upon sufficient facts or data, (4) his opinions are not the product of reliable principles and methods, (5) he has not reliably applied the principles and methods to the facts of this case; (6) the admittance of such testimony would violate Mr. Harris’ right to confront adverse witnesses (potentially), as well as his right to a fair trial, (7) the admittance of such testimony would be cumulative; (8) not relevant, and (9) any probative value of such opinion testimony would be greatly outweighed by the prejudice caused to Mr. Harris."

The district court set the matter for hearing on Harris’ motion to exclude Dr. Murrie’s testimony, at which Dr. Murrie testified by Zoom. The State clarified it was only pursuing the admission of Dr. Murrie’s testimony as it related to the first question posed and addressed in his report: " ‘BDSM culture, e.g. standard practices within the culture, what is allowed and what is considered to be outside the bounds.’ "

Harris subsequently filed a supplemental brief in support of his motion to exclude Dr. Murrie’s testimony. The State also filed a motion to reconsider the district court’s decision denying the admissibility of the State’s evidence of other crimes over 10 months after the district court’s ruling. Harris filed a response in which he argued, among other things, that the State’s motion should be denied as untimely.

The district court conducted another hearing on both of Harris’ challenges to the admission of Dr. Murrie’s testimony and the State’s motion to reconsider the district court’s decision excluding the evidence of other crimes under K.S.A. 2017 Supp. 60-455(d). The State conceded its motion to reconsider was untimely but nevertheless urged the court to reach the merits of its motion. The district court ultimately denied the State’s motion to reconsider its decision excluding the evidence of other crimes, reasoning:

"I think that we should try this case as we do every other case: on the facts of this case. And I don’t believe there is

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