State v. Prine

200 P.3d 1

287 Kan. 713

STATE of Kansas, Appellee, v. John PRINE, Appellant.

No. 93,345.

Supreme Court of Kansas.

December 1, 2006.

January 16, 2009.

Kerry E. McQueen, of Sharp, McQueen, McKinley, McQueen & Dodge, P.A., of Liberal, argued the cause, and Stephen C. Griffis, of the same firm, was on the brief for appellant.

Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Phill Kline, attorney general, were on the brief for appellee.

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

Defendant John Prine was convicted of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child because of his conduct with a 6-year-old girl. He petitioned for our review of the Court of Appeals decision affirming his convictions in State v. Prine, No. 93,345, unpublished opinion filed December 1, 2006. We address K.S.A. 60-455 and sufficiency issues.

Factual and Procedural Background

Prine's sufficiency claim requires more elaborate discussion of the troubling case than might ordinarily be necessary.

As E.K. was taking her 6-year-old granddaughter, A.M.C., home from kindergarten on December 11, 2003, A.M.C. told her that "John" had touched her in ways he should not have touched her. E.K. notified A.M.C.'s stepmother, J.C., who came home from work and immediately took A.M.C. to the doctor. An examination revealed no injuries. J.C. had asked Prine to babysit A.M.C. and her baby brother and sister that morning; he had babysat for the family before. Prine was the best friend of A.M.C.'s father.

J.C. filed a police report. That day, Sergeant John Taylor of the Hutchinson Police Department's Juvenile Detective Bureau videotaped an interview of A.M.C. Taylor asked A.M.C. about truth and lies, and A.M.C. indicated she understood the difference. Taylor talked about good touching and bad touching, and A.M.C. said that John always gave her bad touches. A.M.C. was able to identify body parts and understood that some were private. She knew a private part on a girl is the chest. She described her bottom and referred to her vagina as her "front." She referred to a penis on a boy as a "front" too.

A.M.C. told Taylor that Prine had touched her "lots of times" when he was babysitting and her parents were gone. She said this had happened in the living room; in the laundry room by the dryer; in her parents' room; and once in the playroom while her brother and sister were present. A.M.C. said Prine touched her between her legs with his fingers, his tongue, and his tummy.

Taylor asked A.M.C. what Prine would do with his fingers when he would touch her between the legs. A.M.C. took her index and middle finger, put them up to her mouth, acting like she had licked them, and then swiped them down between her legs. She said he licked his fingers and put them between her legs. A.M.C. said, "I know what that is. It's a bad touch." She said the fingers went inside and outside.

A.M.C. also said that Prine sometimes used his fingers to pull her front apart and would lick inside. She said, "I don't know why he did that." She said she had asked him why he would do stuff like that to her, and he would not listen; she said he thought what he was doing was fun and funny.

A.M.C. also said that once she was lying on the floor with her clothes on, but with her pants down past her bottom, and Prine put his tummy between her legs and scooted her. She explained that she was on her back, her legs were almost over her head, apart, and John's exposed tummy was touching her. When asked where Prine's tummy was touching her, A.M.C. stood up and pointed to her vagina. Taylor asked her if this was on the inside or out, and A.M.C. said, "I told you, on the inside and outside."

Steve Edwards, a clinical social worker at Horizon Mental Health Center, who interviewed A.M.C. on December 18, 2003, had been working for many years with S.M., Prine's 9-year-old daughter, through a school program. Police interviewed S.M. in late December 2003, and she stated that her father had often given her bad touches. She said she was little when he had sex with her. When asked what she meant, S.M. said Prine would be naked; that he would yell at her; that he would remove her pants; and that he would set her on top of him as he lay in bed. She said she felt his penis on her vagina, but he never did anything with it, and she never saw it. S.M. thought this had happened two or three times, but she did not remember how old she was; when pressed, she suggested it was when she was 4 or 5.

The State charged Prine in four counts. The first three counts related to incidents involving A.M.C.: rape; aggravated criminal sodomy; and aggravated indecent liberties with a child. A second count of aggravated indecent liberties with a child, Count IV, was based on his alleged sexual abuse against S.M.

At Prine's preliminary hearing, the district judge granted a defense motion to dismiss Count IV, because there was no evidence the prosecution of that count had been commenced within 5 years of the commission of the crime. Prine was bound over for trial on the first three counts.

The State moved to admit evidence of other crimes or wrongs pursuant to K.S.A. 60-455. The defense opposed admission of any evidence relating to sexual abuse allegations made against Prine by S.M. or by J.J.S., Prine's half sister. The State argued the evidence was relevant to prove the material facts of intent, plan, and absence of mistake or accident. Each involved a girl about 5- or 6-years-old and simulation of a sex act without penetration by the penis; two of the cases involved oral sodomy and digital penetration. The defense responded that if the allegations had any probative value, it was far outweighed by potential prejudice; that the allegations were not similar enough to the charged crimes; that any similarities that did exist were common to many sexual abuse allegations; and that the evidence was too remote in time to be probative. The district judge decided that the evidence would be admissible at trial to prove intent, plan, and absence of mistake or accident.

At trial, A.M.C. testified about the three events she had previously described to Taylor. She said that Prine pushed her pants and underwear down, licked his fingers, and touched her front; he spread her legs, put his tongue on her front, and "was just licking it like some dog"; and, one time when she was on the floor and part of her pants were off, Prine pulled her legs apart in the air, put them over his shoulders, and scooted her with his front touching her front. She said the first event happened in the living room, the play room, in her parents' room, and in the laundry room; the second event happened in the living room; and the third event happened in the living room. The first event happened lots of times, she said, almost every day that her parents were not home. She also testified that no one had told her to say these things; rather, "it really happened." She further testified that when she asked Prine to stop and asked him why he did these things, he said it was funny to him. A.M.C. said she told her grandmother about Prine because she did not want these things to happen anymore.

A.M.C.'s trial testimony deviated from her initial interview with Taylor in one respect. She testified that Prine's fingers touched her only outside, rather than the inside and outside which she had spoken about with Taylor.

Edwards testified concerning his initial interview with A.M.C., in which she related the same incidents involving Prine that she had told police about earlier. She had demonstrated Prine's licking of his fingers in the same manner, and she had used anatomically correct dolls to demonstrate where and how Prine had touched her. Edwards further testified that he had seen A.M.C. more than a dozen times since her initial interview, and she remained extremely consistent in her disclosures. He also testified that, although A.M.C. had not experienced a traumatic event such as a tornado, a fire, or seeing someone die, she exhibited signs of posttraumatic stress disorder, including recurring nightmares, sleep disturbance, and exaggerated fear of Prine.

Over a defense objection, Edwards also testified that, before his initial meeting with A.M.C. in December 2003, he had performed a sexual abuse evaluation on then 8-year-old S.M. S.M. told Edwards that Prine would force her to go into his bedroom, would put honey on his private part, and would force her to "get back on him." She told Edwards defendant would laugh at her when she tried to wash away the honey that had gotten on her private part.

Also over a defense objection, 9-year-old S.M. testified that Prine had touched her in a bad way. She testified specifically that Prine had taken her clothes off and gotten on top of her. She testified that, when she was 3 or 4, he put honey on his private part and got on top of her. He laughed at her when she tried to wash off the honey that had gotten on her. S.M. also said that Prine "smacked" her.

S.M.'s mother testified over objection that, in December 2002, S.M. had told her she had been naked and defendant had laid her on top of him. S.M. had asked her mother if that act was sex.

J.J.S., Prine's 27-year-old half sister, testified that Prine had sexually abused her when they lived in the same house in the 1980's. Specifically, J.J.S. said that, when she was 4 or 5 years old and Prine was 17, he forced her to perform oral sex on him; he performed oral sex on her; he put his penis between her legs and rubbed it on her vagina; and he put his pointer and middle fingers inside her vagina after wetting them in his mouth. J.J.S. performed the same action that A.M.C. had performed to demonstrate. J.J.S. also testified that once, two of her other half brothers had witnessed her performing oral sex on Prine.

M.S., Prine's stepbrother, testified that, when he was about 12 years old,...