State v. Scheetz

541 P.3d 79

STATE of Kansas, Appellee,

v.Mark SCHEETZ, Appellant.

No. 124,054

Supreme Court of Kansas.

Oral Argument Held September 13, 2023.

Opinion Filed January 12, 2024.

Jacob Nowak, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the briefs for appellee.

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

K.S.A. 60-404 requires a party to make a timely and specific objection at trial to preserve an evidentiary challenge for appellate review. The statute has the practical effect of confining a party's appellate arguments to the grounds presented to the district court. It also directs that a verdict "shall not" be set aside, or a judgment reversed, based on the erroneous admission of evidence without a contemporaneous trial objection. Here, the State argues a Court of Appeals panel untethered itself from these statutory commands when reversing a jury verdict convicting Mark Scheetz of aggravated criminal sodomy, rape, sexual exploitation of a child, and victim intimidation. See State v. Scheetz , 63 Kan. App. 2d 1, 524 P.3d 424 (2023). We agree with the State, reverse the panel, vacate a portion of its published opinion, and affirm the convictions.

The panel held the cumulative prejudicial effect of various trial errors, including the admission of propensity evidence about other underage girls, denied Scheetz his constitutional right to a fair trial. 63 Kan. App. 2d at 33-36, 524 P.3d 424. But it reached that outcome without individually considering the specific trial objection made to each piece of propensity evidence. Instead, it aggregated the objections and treated the propensity evidence generically as a group, which allowed the panel to adopt a novel perspective of K.S.A. 2022 Supp. 60-455(g) on the mistaken belief that the question was "not altogether different from what [Scheetz] argued below." 63 Kan. App. 2d at 10, 524 P.3d 424.

The panel erred in its preservation analysis, causing it to overstep appellate boundaries to reach questions about K.S.A. 2022 Supp. 60-455(g)'s scope not presented to the district court. Accordingly, we vacate its ruling on those questions. See K.S.A. 60-2101(b). We also reject the panel's relevancy, prosecutorial error, and cumulative error conclusions. We affirm the district court's judgment on the issues subject to our review.

FACTUAL AND PROCEDURAL BACKGROUND

Scheetz lived for about three years with M.C.'s mother beginning around November 2012. In 2019, police met with M.C. as part of another investigation to ask about her interactions with him. She disclosed Scheetz had molested and raped her "[a] lot" when she was 11 to 13 years old. She said the sexual contact occurred "[a]ll the time"—"potentially 75 times."

As a result, the State charged Scheetz with two counts of aggravated criminal sodomy under K.S.A. 2015 Supp. 21-5504(b)(1) (sodomy with a child under 14 years old), two counts of rape under K.S.A. 2015 Supp. 21-5503(a)(3) (sexual intercourse with a child under 14 years old), and sexual exploitation of a child under K.S.A. 2016 Supp. 21-5510(a)(2) (possessing a visual depiction of a child under 18 years old shown engaging in sexually explicit conduct). Later, the State amended its complaint to include a count of intimidating a victim under K.S.A. 2020 Supp. 21-5909(a)(1) (trying to dissuade a victim from testifying at trial with an intent to interfere with the orderly administration of justice) after confiscating a letter Scheetz addressed from jail to M.C.

During an eight-day trial, the State presented 31 witnesses, including M.C., who was 19 by that time. She testified Scheetz was her mother's then boyfriend, and the three lived together for almost three years. She described her mother's frequent drinking, quick temper, and tendency to make her leave the house. She described this as making her life "hell." When the prosecutor asked about her connection with Scheetz at that time, she answered, "He was all I had."

She detailed four separate sexual encounters with Scheetz when she was 11 to 13 years old. First, M.C. had a fight with her mother and ran away one night. Scheetz went looking for her. After he found her, they ended up spending the night at her grandfather's house. The two were in the bedroom, while her grandfather slept in another room. She could not remember specifically what Scheetz told her but remembered he "[j]ust pulled down" his basketball shorts, and she had oral sex with him. Next, she said Scheetz digitally penetrated her vagina on a hunting trip, while he took videos using his iPhone, "probably the [version] 4, maybe the 5." She said Scheetz had a "photo vault" application on his phone, where he stored "all of [their] videos." Third, she testified they had sexual intercourse in the rec room at her mother's house. Finally, she described a time when Scheetz performed oral sex on her in her bedroom.

When she was 13, she moved to her biological father's house in a different city, and never saw Scheetz again. But the two exchanged pictures via Snapchat. Scheetz sent her pictures of his penis, and M.C. sent him naked photos of herself. Years later, when investigators came to her father's house to ask about Scheetz, M.C. told them about the photos on his phone. She also said she would not be surprised "if he still has a pair of [her] panties" because he told her, "He would go down and check [her] panties to see if he could make [her] wet one of those nights."

During a search of Scheetz' residence and vehicle, police seized two phones belonging to Scheetz. His iPhone 5 had an application called "Keepsafe," a password protected vault for storing images separate from where they would normally be on an iPhone. Of those images, M.C. recognized herself in seven sexually explicit photographs using clues like her blanket, pillowcase, navel piercings, and a hand scar. She identified herself in a picture of a female from the belly button to her breast covered by one of the subject's and one of the female's hands; a picture of a topless female with both of her breasts visible; two pictures of a vagina and a hand with the subject's fingers inserted; a picture of an unclothed female lying on her back touching her vagina with one hand, and her breasts viewable; a picture of the same female's pubic area; and a picture of a female's vagina and anus. Police also found a Crown Royal bag containing six pairs of women's underwear. M.C. did not recognize any as hers, but DNA testing of one sample yielded a major profile consistent with Scheetz and a partial minor profile consistent with M.C., but not consistent with her mother.

M.C. testified about her mother's reaction to Scheetz' and her interactions. She said, "[T]here was a day that Mom was really upset, and she ended upcoming [sic ] outside and screaming that, ‘He's touching my daughter.’ " The mother called police and was "scream[ing] at the cops that her boyfriend was raping her daughter." The prosecutor asked what made her mother say that. She responded that one night her mother entered the rec room while M.C. was on top of Scheetz, who saw her mother approaching and immediately threw her off him. The mother asked what they were doing. They said they were in a nipple-pinching game.

To support the victim intimidation charge, the State presented a letter Scheetz addressed to his brother from jail that contained another letter addressed to M.C. Scheetz asked his brother to mail the letter inside to her. This happened while Scheetz awaited trial. The letter to M.C. claimed to be written by an anonymous woman, called "[a] true friend," but appears to be written by Scheetz. It begins with the statement: "I wanted to reach out to you ... and ask if you were truly aware of the full picture of this situation." Then it discussed the consequences of her testifying and tried to persuade her to drop the case:

"You can be his Superhero ..... You alone can save him. Even if something ever did occur ....

....

"[T]ell them this didn't happen and you don't want to go through with this .... [S]o maybe they can get it dismissed before ... and nobody has to know. ... You can prevent both yourself and [Scheetz] from a lot of embarrassment, as well as other witnesses being embarrassed. ... I don't want you to live with the regret of [Note: statement redacted] ... you were involved with something equally."

Scheetz testified in his own defense. As to M.C.'s first allegation, he recalled the night when the two were in her grandfather's bedroom. He said he was in his blue jeans, not basketball shorts. He admitted talking with M.C. on the bed but denied any sexual activity. He made a general denial for the other three incidents. When asked about the time M.C.'s mother accused him of sexual contact with M.C., he said only, that "may have been" since "[i]t was not uncommon for [her mother] to get drunk and talk nonsense." He acknowledged playing a nipple-pinching game with M.C., and that her mother saw them doing it.

Scheetz then addressed his collection of women's underwear. He said he started keeping them during his junior high years. He said not every woman he had been involved with contributed, but some had. He believed one pair of underwear belonged to M.C.'s mother. Neither the defense nor the prosecutor asked him about the photos on his phone or his letter to M.C.

Scheetz called four witnesses who had spent time around M.C. and him. Each generally denied seeing anything inappropriate.

The jury convicted Scheetz as charged. The district court sentenced him to life in prison without the possibility of parole for 50 years. He appealed to the Court of Appeals, claiming improperly admitted propensity evidence, prosecutorial error in closing arguments, and cumulative error. The panel reversed his convictions after it found the individually...