State v. Snyder

STATE OF KANSAS, Appellee, v. STEVEN JON SNYDER, Appellant.

No. 119,452

COURT OF APPEALS OF THE STATE OF KANSAS

February 14, 2020

NOT DESIGNATED FOR PUBLICATION

MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed February 14, 2020. Affirmed in part, reversed in part, vacated in part, and remanded for resentencing.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM: Steven J. Snyder appeals following his convictions of two counts of rape, one count of attempted rape, two counts of aggravated indecent liberties with a child, and one count of kidnapping. Snyder claims: (1) the State committed reversible prosecutorial error during closing argument; (2) the district court committed reversible error by denying his request to use demonstrative exhibits during closing argument; (3) even if the first two errors do not independently require reversal, they do so when considered cumulatively; (4) there was insufficient evidence to support his kidnapping conviction; (5) the district court committed reversible error in instructing the jury on kidnapping; (6) Snyder's convictions of aggravated indecent liberties were multiplicitous; (7) the district court erred by ordering consecutive sentences; and (8) the district court erred by ordering lifetime postrelease supervision. We agree with Snyder that there was insufficient evidence to support his kidnapping conviction and that his convictions of aggravated indecent liberties were multiplicitous. We also agree that the district court erred by ordering lifetime postrelease supervision. Thus, we affirm in part, reverse in part, vacate in part, and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

The parties are aware of the extensive factual and procedural history of this case. We will set forth the facts only to the extent necessary to address the issues Snyder has raised on appeal. Snyder met A.B. (Mother) in 2005, and they began an off-and-on romantic relationship. Their first daughter, K.B., was born in 2006 and their second daughter, H.S., was born in 2010.

In 2014, Mother's sister's son, D.L., was charged in juvenile proceedings with molesting K.B. Snyder asserts that he was the individual who reported to police that D.L. had molested K.B. and that doing so strained his relationship with Mother. Their relationship became so strained that Mother asked him to relinquish his parental rights to K.B. and H.S., but Snyder refused to do so. In December 2014, Mother, H.S., and K.B. moved into a new home, and Snyder went to live with his parents. Even though they were separated, Snyder would watch the girls at Mother's house while Mother worked in the basement, taking calls for a cell phone insurance company.

In April 2015, H.S. told Mother that Snyder "had touched her 'puter,'"—H.S.'s word for vagina—with his "turkey"—H.S.'s word for penis. Mother asked H.S. if she was sure, and H.S. said she was. Mother called Snyder, who denied it, and Mother did not report H.S.'s accusation to the police. Mother thought that H.S. was trying to get attention because Mother was putting so much attention into D.L. molesting K.B. Mother and Snyder continued their "on and off" relationship, but at some point in 2015, Snyder stopped taking care of the girls at Mother's home while she worked. On November 16, 2015, Mother opened the door to H.S.'s bedroom and saw her lying on the bed on her back with her feet on the wall, naked, with her body in "a 'v'" position and her fingers in her vagina. Startled, H.S. pulled her fingers out of her vagina. Mother told H.S. not to do that because she could hurt herself, and H.S. said, "'But Mommy my Daddy does it.'" Mother asked what H.S. meant, and H.S. replied "'He takes his turkey and puts it on my puter.'" Mother did not question H.S. further at the time; instead, she told H.S. "'that's not supposed to happen'" and put H.S. to sleep in her bed. Mother tried to call Snyder, but she could not reach him. She also called Maternal Grandmother and told her what H.S. had said; Maternal Grandmother advised her to call the police.

Mother called the Salina Police Department on November 18, 2015. She told the dispatcher that she "need[ed] to report child molestation" of her daughter. When asked if she knew what happened or who molested her daughter, Mother replied, "Her dad," and gave Snyder's name. Mother explained that she "caught [H.S.] playing with herself and we had a discussion and she told me that her dad would touch her." The dispatcher told Mother that they would send someone to speak with her.

Officers Andrew Meek and Jon Roberts responded to the call. Mother told them that she had seen H.S. "playing with herself" two days earlier, so she asked H.S., "Has anybody done that to you?" and H.S. replied, "My daddy." After explaining to Roberts that H.S.'s "word for penis is turkey" and her word for vagina is "puter," Mother said that H.S. told her that Snyder "took his turkey and put it in my puter."

Mother explained that H.S. had made similar comments the previous April, but Mother thought she was making the comments to get attention, "like her older sister is getting attention" because of D.L.'s ongoing juvenile proceedings. Mother said that Tuesday evening—the night before Mother called the police—H.S. also told her about atime when Snyder was watching television with K.B. and H.S. and he had a blanket over H.S. "and he was messing with her." H.S. had told Mother that Snyder had touched her "underneath my flower blankie." Mother also said that she had asked K.B. if Snyder had done anything to her and K.B. denied that anything happened.

Detective Crystal Marks was assigned to the case and she scheduled a forensic interview for H.S. on November 20, 2015. Highly summarized, H.S. told Marks that her dad had put his "puter" on her "puter" more than one time. On November 25, 2015, Marks interviewed K.B., who stated that her cousin had molested her but that no one else had ever touched her in a place she did not like. That same day, Snyder was arrested and charged with three counts of rape of H.S.

Mother began taking H.S. and K.B. to counseling. In November 2016, K.B. told her therapist that Snyder had touched her inappropriately when she was nine years old. When Marks learned that K.B. had disclosed that Snyder had molested her, she scheduled a second forensic interview with K.B. During the second interview, K.B. said that Snyder made her touch his penis and that he tried to touch her vagina. K.B. said that she, H.S., and Snyder were in Snyder's room on his bed, and H.S. was "sound asleep." K.B. said, "He was trying to pull down my pants. But then I got to escape. But then he dragged me back in the room." She clarified that Snyder unbuttoned and unzipped her pants and pulled them and her underwear down. K.B. told Snyder that she had to go to the bathroom, where she tried to lock the door, "but somehow he got in."

When Marks took K.B. through the events, asking for more detail, K.B. said that Snyder's hands were "right there" when she made her excuse to escape, and she pointed to her abdominal/genital area. Marks asked if Snyder's hands were "on your vagina" and K.B. nodded and agreed. At this point in the interview, K.B. said that Snyder had rubbed his hand "on the outside" of her vagina for "a minute" before she said she had to go to thebathroom. K.B. stated that her pants were around her ankles when she went into the bathroom, and she closed the bathroom door.

When Snyder opened the bathroom door, K.B. tried to crawl out to run away and get outside, but Snyder grabbed her arm, so she tried to kick him and tried to escape. Later in the interview, K.B. said after Snyder grabbed her arm, "he like tried to pull me, so I kicked him." Then, still in the bathroom, Snyder rubbed the outside of her vagina by putting his hand inside her underwear. K.B. said that the bathroom door was shut again when Snyder rubbed her vagina, at which point, H.S. had woken up and was trying to get into the bathroom.

Later in the interview, K.B. told Marks that earlier during the same nap, Snyder had grabbed her hand and made her touch his penis and he ignored her when she told him to stop. K.B. estimated that the entire nap was 30 minutes to an hour. K.B. said she touched his penis for about a minute and it was "slimy" and "soft like a worm." K.B. said that when she pulled her hand away, Snyder began pulling her pants down. Toward the end of the interview, Marks asked K.B. about her initial comment that Snyder dragged her back into the bedroom. K.B. said he had not dragged her into the bedroom, he dragged her back into the bathroom when she was trying to escape.

As a result of these statements, the State charged Snyder in a new criminal case with three counts of aggravated indecent liberties with a child and one count of kidnapping. With the district court's permission, the State consolidated the two cases against Snyder, resulting in one case charging three counts of raping H.S., three counts of committing aggravated indecent liberties with K.B., and one count of kidnapping K.B.

The five-day jury trial began on August 28, 2017. We will not recite all the evidence admitted at the trial. Marks testified about her forensic interview with thechildren. H.S. testified and, highly summarized, described three times that Snyder touched or tried to touch her "puter" with his "puter."

K.B. also testified. K.B. testified that Snyder had touched her private parts in his bedroom when she was nine years old. K.B. testified that her grandparents were out shopping, and H.S., K.B., and Snyder were in his bedroom to take a nap. All three of them were under the covers and Snyder unbuttoned her pants, pulled the zipper down, and pulled her pants down. K.B. testified that she "thought he was going to try to...