State v. Stewart, No. 120,655

458 P.3d 996 (Table)

STATE of Kansas, Appellee,

v.Joe Louis STEWART Jr., Appellant.

No. 120,655

Court of Appeals of Kansas.

Opinion filed March 6, 2020

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Standridge, P.J., Leben and Bruns, JJ.

MEMORANDUM OPINION

Per Curiam:

A jury convicted Joe Louis Stewart Jr. of two counts of aggravated indecent liberties with a child under the age of 14 years. On appeal, Stewart contends that the district court erred when it allowed the State to introduce evidence of a prior instance of sexual misconduct under K.S.A. 2017 Supp. 60-455(d). Stewart also contends that the district court erred in instructing the jury about the prior crimes evidence. Based on our review of the record, we find no reversible error. Thus, we affirm Stewart's convictions.

FACTS

J.R. began dating Stewart in 2015. At the time, J.R. was a single mother and had three daughters. One of the daughters, S.R., was nine years old. During his relationship with J.R., Stewart spent a lot of time with S.R. According to J.R., Stewart became a "father figure" to S.R and bought her several things. One of the items he bought S.R. was a cell phone.

In July 2016, Stewart and J.R. were on a break in their relationship. Even so, Stewart asked if he could remain a part of S.R.'s life, and J.R. permitted him to do so. On July 25, 2016, Stewart went to J.R.'s apartment to watch a movie. At the apartment, Stewart, J.R., and S.R. laid on the bed in J.R.'s bedroom to watch the movie.

S.R. testified at trial that her mother got up and went to the bathroom. While J.R. was out of the room, S.R. asked Stewart to scratch her back. Stewart, who was lying next to her on the bed, scratched her back under her nightgown. Although Stewart denied doing so, S.R. testified that he slid his hand down her back into her underwear and put his finger in her anus.

Shortly after J.R. returned from the bathroom, Stewart said he was going home. As he was leaving, J.R. and S.R. went with him into the living room. After Stewart left the apartment, S.R. began to cry and told her mother that Stewart had put his hand down the back of her pants. She also told her mother that Stewart had put his tongue in her mouth when she hugged him when he was leaving. Although J.R. went outside to confront Stewart, he was already gone. When she went back inside the apartment, J.R. told S.R. that she would never have to see Stewart again.

In September 2016, J.R. and S.R. saw Stewart and a woman riding in a vehicle with a child in the backseat. S.R. told her mother that she did not want "anything to happen to that child that happened to me." At that point, J.R. decided to call the police. Subsequently, S.R. was interviewed by Kayla Delgado, a child protections specialist with the Kansas Department for Children and Families. In the interview, S.R. repeated the allegations that she had told her mother.

On October 17, 2017, the State charged Stewart with two counts. In the first count, the State charged him with aggravated sodomy or, in the alternative, aggravated indecent liberties with a child under the age of 14 related to the incident in the bedroom. In the second count, the State charged Stewart with aggravated indecent liberties with a child under the age of 14 related to the incident as Stewart was leaving J.R.'s apartment.

Prior to trial, the State filed a motion to admit evidence of prior sexual misconduct under K.S.A. 2017 Supp. 60-455(d). In the motion, the State sought to admit evidence at trial of a prior allegation of sexual misconduct involving the 11-year-old daughter of a woman Stewart had once dated. After holding a hearing on the motion, the district court took the matter under advisement. Ultimately, the district court ruled that the prior allegation was similar enough to the current charges to meet the threshold requirement of K.S.A. 60-455(d) evidence.

At a two-day trial held on September 24-25, the State presented evidence in support of its charges, including the K.S.A. 60-455(d) evidence. The State elicited testimony from T.T. and her daughter, J.T., about an incident that occurred in 2011. T.T. testified that Stewart moved in with her and her two children in 2008. After the relationship ended and Stewart moved out, the two remained friends. On occasion, Stewart would come over to her house to babysit the children.

Just before Thanksgiving in 2011, T.T. asked Stewart to babysit while she was at work. T.T. testified at Stewart's trial that J.T. called her at work and told her that he had touched her in an inappropriate manner. T.T. testified that she came home from work and confronted Stewart. After he denied the incident, T.T. brought J.T. down from her bedroom and she continued to accuse Stewart of inappropriate touching. Stewart continued to deny the allegations, and T.T. told him to get out. According to T.T., she did not report the incident to the police because she was "in shock" about what had happened. She also testified that she feared for her safety because Stewart knew martial arts.

J.T. also testified at trial about the prior incident. She testified that Stewart came into her bedroom and asked if she wanted to come downstairs to watch television with him. According to J.T., she was sitting with Stewart on the couch when he removed the safety pin that was holding the top of her pajamas together. She testified that Stewart told her that she was old enough to have her shirt opened a little bit. J.T. testified that this caused her to feel uncomfortable, so she went back up to her room to go to bed.

J.T. testified that Stewart came into her bedroom and laid down beside her on the bed. She further testified that Stewart told her that he would buy her a cell phone that she wanted. During the conversation, Stewart allegedly began rubbing J.T.'s chest and then moved his hand inside her underwear and touched her between the legs. J.T. indicated that she told Stewart that she was uncomfortable, and he stopped. J.T. believed that she went to sleep after the incident and called her mother the next morning to tell her what happened. J.T. also thought she talked to the police just after the incident occurred. A couple of years later, J.T. began therapy and the incident was ultimately reported to the police.

Stewart also testified at trial. He denied inappropriately touching either S.R. or J.T. He also denied that T.T. had ever confronted him about the allegation involving J.T. Stewart also testified about his on-and-off again relationship with J.R. and acknowledged that he served as a father figure to S.R. Regarding the allegations in this case, Stewart admitted that he went to J.R.'s apartment to watch a movie with her and S.R. Stewart testified that although S.R. asked him to scratch her back, he refused. He also denied that J.R. ever left him alone with S.R. in the bedroom. Stewart also denied touching S.R. in any way while in the bedroom. According to Stewart, he hugged S.R. and kissed her on the lips at the door before he left the apartment. However, he denied putting his tongue in her mouth. Stewart testified that although J.R. called him later that night to ask about a phone that he said he would get for S.R., she did not make any accusations about inappropriate touching.

At the close of the evidence, the State voluntarily dismissed the aggravated sodomy charge but continued to pursue two counts of aggravated indecent liberties with a child under the age of 14 years. After deliberation, the jury convicted Stewart of both charges. The district court subsequently sentenced him to concurrent Hard 25 sentences. Thereafter, Stewart filed a timely notice of appeal.

ANALYSIS

K.S.A. 60-455(d) Evidence

On appeal, Stewart first contends that the district court erred in admitting evidence of the alleged prior criminal act. Although Stewart candidly admits that the prior allegations involving J.T. "bore some similarities to the incident at issue in this trial," he argues that the testimony of the witnesses about the prior event was so inconsistent that the prejudicial value of the evidence outweighs its probative value. As a result, Stewart argues the erroneous admission of this evidence denied him a fair trial.

We first consider whether Stewart has preserved this issue for appeal. Whether an issue has been properly preserved for appeal is a question of law that this court reviews de novo. State v. Haberlein , 296 Kan. 195, 203, 290 P.3d 640 (2012). To preserve an evidentiary issue for appellate review, a party must lodge a timely and specific objection at trial. K.S.A. 60-404 ; State v. Dupree , 304 Kan. 43, 62, 371 P.3d 862, cert. denied 137 S. Ct. 310 (2016). "Even when the district court rules on the admissibility of evidence pretrial, a party must still make an objection at trial before the admission of the evidence because the unfolding of a case may require a reevaluation of the reasons for the initial ruling. [Citation omitted.]" 304 Kan. at 62.

A contemporaneous objection gives the district court the opportunity to reevaluate its relevance and potential for prejudice in light of the evidence to be presented to the jury. Rulings on pretrial motions have no legal consequence until the evidence is presented at trial. The contemporaneous objection rule found in K.S.A. 60-404 allows a district court to act as a gatekeeper of the evidence to be admitted at trial and gives the court the opportunity to consider evidentiary issues to reduce chances of reversible error. See State v. King , 288 Kan. 333, 342, 204 P.3d 585 (2009).

The Kansas Supreme Court recently rejected a defendant's claim that a pretrial objection meets the definition of a timely contemporaneous objection in regard to K.S.A. 60-455 evidence. State v. Ballou , 310 Kan. at 591, 612-14, 448 P.3d 479 (2019). It reasoned that a pretrial ruling is subject to change at...