State v. Moyer

302 Kan. 892

STATE of Kansas, Appellee, v. Steve Kelly MOYER, Appellant.

No. 105

183.

Supreme Court of Kansas.

Oct. 16, 2015.

Robert A. Anderson, Sr., of Robert A. Anderson Law Office, of Ellinwood, argued the cause and was on the brief for appellant.

Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

Opinion

The opinion of the court was delivered by JOHNSON, J.:

Steve Kelly Moyer directly appeals his five convictions for sex crimes against his minor daughter, J.M. He alleges that (1) the trial court judge was required to recuse; (2) his trial counsel's conflict of interest denied him the right to a fair trial; (3) the district court denied him due process by failing to conduct a meaningful hearing on his pro se pretrial motions for new counsel; (4) the district court erred in denying his motion for an independent physical examination of J.M.; (5) a mistrial was required after the jury

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mistakenly viewed the unredacted version of the victim's intake interview; (6) the district court erred in failing to provide the jury with a unanimity instruction on four of the counts charged; (7) the district court provided an erroneous limiting instruction on prior crimes or civil wrongs evidence; (8) the prosecutor committed reversible misconduct in closing argument; and (9) cumulative error denied him a fair trial. As an alternative, Moyer asks this court to remand for a State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), hearing to determine whether his trial counsel was ineffective, but only if this court holds that none of the alleged errors requires a reversal of his convictions.

As more fully set forth below, we remand the case to the district court for further proceedings to determine whether Moyer was denied his Sixth Amendment right to counsel, either because trial counsel was not constitutionally competent or was not constitutionally conflict-free.

Factual and Procedural Overview

In 1993, Moyer met his future wife, Jessica. On February 18, 1995, they had their first child, J.M. After J.M. was born, the couple married and had four more children, H.M., K.M., S.M., and D.M.

Jessica encouraged Moyer to spend more time with the couple's children because she felt Moyer was not sufficiently involved in their lives. But Jessica was not pleased when Moyer began spending time alone with J.M. behind closed doors in the master bedroom, to the exclusion of the younger children. When J.M. was about 11 years old, Moyer began showering with J.M., until Jessica said that she did not like that. When Jessica asked Moyer about condoms that were missing from her dresser, he responded that the children were probably playing with them.

In August of 2008, the Moyers moved from Denver to Goodland, Kansas. Moyer continued to spend more time with J.M. than the other children. When Jessica inquired about this dynamic, Moyer explained that he wanted to “finish what [he] started with [J.M.].”

On April 5, 2009, J.M. told Jessica that Moyer had been sexually abusing her. J.M. explained that the abuse started when she was 11 years old, after she began menstruating. J.M. gave Jessica several items as evidence of the sexual relationship: two used condoms that J.M. secretly kept from sexual encounters with Moyer in Denver, a recording of a sexual encounter between J.M. and Moyer that occurred in the shed outside of the family's Goodland home, a rag that J.M. used to clean herself after the sexual encounters in Goodland, and a notebook containing an agreement between J.M. and Moyer enumerating a points system Moyer designed detailing the number of points J.M. must obtain in order to complete the sexual relationship with Moyer.

The next day, after Moyer went to work, Jessica and J.M. went to the sheriff's office to report Moyer's abuse. One of the officers set up an intake interview for J.M. with the Western Kansas Child Advocacy Center (hereinafter “intake interview”).

The intake interview included a voluminous account of Moyer's sexual abuse of J.M., beginning when she was 11 years old and continuing up to the day she reported it to Jessica. J.M. discussed each of the specific acts that the State ultimately relied upon to convict Moyer, as well as numerous other, uncharged acts of sodomy and sexual intercourse.

The State charged Moyer in a third amended complaint with five counts of sexual abuse against J.M.: aggravated criminal sodomy in violation of K.S.A. 21–3506(a)(1) (sodomy with a child under 14 years of age), aggravated indecent liberties with a child in violation of K.S.A. 21–3504(a)(1) (sexual intercourse with a child who is 14 or more years of age but less than 16 years of age), and three counts of criminal sodomy in violation of K.S.A. 21–3505(a)(2) (sodomy with a child who is 14 or more years of age but less than 16 years of age). The case proceeded to trial, where J.M.'s testimony was consistent with her intake interview, recounting that the sexual abuse began when she was 11 years old and the family was living in Denver. To begin, Moyer manually touched J.M.'s vagina. The abuse progressed to J.M.

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performing oral sex on Moyer and then to vaginal and anal intercourse.

When the family moved to Goodland, Moyer took J.M. to a shed by their house and explained a coding system that enumerated the sexual acts J.M. must perform on him. J.M. explained that number 1 was a “[h]and job,” number 2 was a “[b]low job,” number 3 was “[w]hen he went inside [her] vagina,” number 4 was “[w]hen he was on top,” and number 5 was “[i]n my butt.” J.M. also described a notebook containing an agreement between J.M. and Moyer, which was titled “Computer Software” and the first line of which read: “Start: 30,000 mega bites.” J.M. explained that she could earn points for performing sexual acts, but she could lose points for certain actions, and the 30,000 reference was to the number of points she had to earn to complete her sexual relationship with Moyer. Further, when Moyer grounded J.M., she had to earn points through the number coding system and she also received money for reaching a certain number of points.

J.M. explained the terms used in the agreement: “start & run ” meant when she “went up and talked to him to get the stuff started”; “auto run ” meant when she “went up to him on [her] own, and then [she] ... asked what [she] wanted to do to him on [her] own”; “auto run supreme ” meant “[w]e do it all the way, and don't, like, tell him, like, I don't know what to do next, or something like that”; “act ” meant when she would “go up and do it” on her own; and “EWD ” and “EWOD ” meant “[e]at with drink” and “eat without drink,” and both referred to “eating” Moyer's ejaculate.

The agreement also has a “virus” heading, which J.M. testified set forth actions that would take away points. For instance, if she talked or pushed Moyer away while Moyer was touching her, he would take away 100 points. If she used her teeth or vomited during a “blow job,” she lost 100 points. Finally, a “[n]o response” meant that she lost 100 points because she did not do anything sexual with Moyer all day. At trial, an expert in handwriting analysis testified it was “highly probable” that Moyer prepared the agreement.

After explaining the agreement, J.M. testified that Moyer sexually abused her in the shed outside of the family's home, in her parent's bedroom, in her sister H.M.'s bedroom, in her bedroom, in the kitchen, and in the living room. This abuse included Moyer touching her breasts, J.M. giving Moyer “blow jobs,” Moyer being “on top” of her, and sexual intercourse. Much of J.M.'s testimony was not tied to a certain date.

J.M. also discussed specific events that she was able to link to more definite time frames. On October 2, 2008, when J.M. was 13 years old, she hid an audio recorder in the shed in order to record Moyer's abuse. J.M. testified that on that day, Moyer made J.M. give him a “blow job.” There are sounds on the audio recording indicative of sexual acts taking place, and, at one point, Moyer whispered, “try, try, try go further.” J.M. asked “what if I did this to [M.M.],” one of her friends from school. Moyer told J.M. to “wait till you get married to do that.” J.M. also asked Moyer, “can you feel the cotton in my mouth,” and Moyer made an affirmative noise. About a minute later, J.M. asked Moyer, “You know that thing that hangs down ... when you go up, it makes me [inaudible].” Moyer then told J.M. to whisper things like that. Later in the audio recording, Moyer used the number coding system discussed above and told J.M. what to work on to “make it faster.” Moyer also told J.M. “instead of talking to me once a day, the more the merrier.” In her intake interview and at trial, J.M. explained “talking” means sexual acts.

The next instances of sexual abuse J.M. tied to a specific date occurred on February 19, 2009. On this date, J.M. was 14 years old. Moyer took her to Walmart to make a list of items she wanted for her birthday. On the way home, Moyer drove to his work and parked the minivan behind his work truck. In the back of the minivan, J.M. gave Moyer two “blow jobs” and Moyer had sex with her. J.M. said Moyer did not ejaculate that day. The State submitted J.M.'s birthday list into evidence. The list indicated the points J.M. earned that day.

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J.M. also testified about two specific instances of abuse that occurred in April of 2009. The first happened when Moyer licked her vagina in the family's bathroom. The second, Moyer's last act of sexual abuse, occurred in her parents' bedroom when J.M. “touch[ed] [Moyer] on the penis and then g [a]ve him a blow job.”

Sexual Assault Nurse Examiner (SANE) Tricia Carney testified regarding the physical examination she performed on J.M., explaining that the vaginal area is treated like a clock for purposes of identifying the location of injuries. Carney noticed J.M. had thinning to the 6 o'clock area of...