State v. Gunby

McFarland, C.J.,

dissenting: I write separately to express my disagreement with that portion of the majority opinion that restricts the admissibility of all prior crimes evidence to what is permissible under K.S.A. 60-455 and the restrictions thereon.

The majority reasons that the practice of admitting evidence independent of K.S.A. 60-455 came about as the result of case law mistakenly construing the list of material facts as exclusive rather than exemplary, combined with development of the rule requiring automatic reversal in cases in which K.S.A. 60-455 evidence was admitted without a limiting instruction. According to the majority, these two factors led the court to develop the rule admitting evidence of prior similar acts between the defendant and the victim *68 independent of K.S.A. 60-455 in the marital discord and child sexual abuse context as “avoidance techniques.” Thus, the majority concludes that the admissibility of prior acts between the defendant and the victim grew out of the restrictions of K.S.A. 60-455.

Actually, the admissibility of relevant prior acts between the defendant and the victim was established long before the enactment of K.S.A. 60-455 in 1963. In State v. Owen, 162 Kan. 255, 259 , 176 P.2d 564 (1947), we said:

“The general rule, however, is that the commission of the offense for which a person is on trial cannot be proved by evidence that such person committed another but independent offense although it be of die same sort. The basic rule is well stated in 22 C.J.S., Criminal Law § 682, as follows:

The general rule, which is subject to exceptions stated in § § 683-690, infra, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible, and such evidence of an independent crime is inadmissible for die reason, among others, that it ordinarily does not tend to establish the commission by accused of the offense charged, diat accused must be tried for one offense at a time, and diat, in accordance widi die more extensive general rule, which applies to all cases, civil or criminal, die evidence must be confined to die point in issue.’ ” (Emphasis added.)

K.S.A. 60-455, and the common law upon which it was based, was designed and intended to apply only to evidence of other crimes not in any way connected with that charged in the information. We said in State v. Wright, 194 Kan. 271, 274 , 398 P.2d 339 (1965) (citing State v. Kirby, 62 Kan. 436 , 63 Pac. 752 [1901]):

“As early as the turn of die century the general rule was recognized that testimony as to die commission of offenses by a defendant in a criminal case, not in any way connected with that charged in the information, and which would tend to degrade and prejudice him, should be carefully excluded from the jury.” (Emphasis added.)

State v. Borchert, 68 Kan. 360 , 74 Pac. 1108 (1904), is illustrative. The defendant in Borchert was charged with rape of his minor daughter. The State introduced evidence of a number of similar acts between the defendant and the daughter. On appeal, the defendant argued the admission of the other criminal acts violated *69 the rule that “it is not competent in a prosecution for one offense to show that the defendant is guilty of another similar offense merely for the purpose of enabling the jury to infer that as he had committed one crime he would be likely to commit another.” 68 Kan. at 361 (discussing State v. Stevens, 56 Kan. 720 , 44 Pac. 992 [1896]).

The Borchert court disagreed that this rule applied. The court clarified that evidence of prior similar offenses between the defendant and the prosecuting witness in a sex crimes case is admissible, not as an exception to the general rule that one crime cannot be proved in order to establish an independent crime, but rather, in spite of that rule because it supports the charge by showing the relationship of the parties and corroborates the direct evidence of the crime charged. 68 Kan. at 361-62 .

The court’s conclusion in Borchert is based on the fundamental recognition that such evidence is inherently connected with the evidence proving the crime charged and, thus, is not subject to the rule concerning the admissibility of other, unrelated crimes — even as an exception. This recognition, not a need to avoid the harsh application of K.S.A. 60-455, served as the basis for post-K.S.A. 60-455 expression of the rule that prior similar acts between the same parties are admissible independent of K.S.A. 60-455. See State v. Bly, 215 Kan. 168, 175-76 , 523 P.2d 397 (1974) (evidence disclosing another criminal offense which has a direct hearing on and relation to tire commission of the offense itself is not governed by K.S.A. 60-455 and is admissible without a hmiting instruction).

A review of just two of the cases in which we have held admissible evidence of prior similar conduct between the same parties illustrates how such evidence is inherently related to and connected with the crime charged.

In State v. Crossman, 229 Kan. 384, 387 , 624 P.2d 461 (1981), we held that in cases involving illicit sexual relations or acts between an adult and child, evidence of prior acts of a similar nature between the defendant and the same victim is admissible without the safeguards required by K.S.A. 60-455, where it is offered to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the *70 testimony of the complaining witness as to the act charged. 229 Kan. at 387 .

The defendant in Crossman was charged with indecent liberties and aggravated sodomy committed against his stepdaughter. The family dynamics among the child victim, her mother, her stepfather, and her siblings were an integral part of the case, as explained in the opinion:

“The complaining witness testified extensively as to the complex family relationship among herself, her mother, her stepfather, her sister and her five brothers. Defendant is portrayed as a domineering and brutal man. The mother-daughter relationship is one of constant quarreling and bickering. The sexual relationship between the complaining witness and defendant extended over several years in varying degrees. Being the object of defendant’s sexual desire had actually aided the complaining witness in two respects: (1) defendant ceased his severe discipline of her, and (2) defendant took the child’s side in her frequent disputes with her mother. The mother testified as a defense witness and was supportive of defendant, stating she did not believe the child. The prosecution introduced evidence that on one occasion several years earlier the mother had summoned the police for defendant’s sexual molestation of the child.” 229 Kan. at 385 .

In holding such evidence was admissible independent of K.S.A. 60-455, we noted that the defense strategy was to portray the victim as a mentally unstable child who had made up the allegations. Thus, with her veracity as the key issue in the trial, answers to why she tolerated the situation so long before reporting it, why she did not discuss the allegations with her mother, etc. made the whole family relationship, including prior sexual acts with the defendant, highly relevant to the crime charged. 229 Kan. at 387 .

More recently, evidence of similar prior sexual conduct with the complaining witness was held admissible independent of K.S.A. 60-455 in State v. McHenry, 276 Kan. 513 , 78 P.3d 403 (2003), under virtually the same scenario as in Crossman :

“Like Crossman , McHemy’s defense was to attack the veracity of his daughter and the other family members. McHemy’s theory was that the rest of his family concocted allegations of sexual abuse in order to remove him from the home. He called a defense witness who testified that the daughter had stated she could get whatever she wanted from McHenry by claiming he had sexually abused her. Given McHenry’s attack on his family’s credibility, the evidence of his prior sexual abuse of his daughter falls squarely within the Crossman rule. The evidence showed that the relationship between McHemy and his daughter had involved a *71 continuing course of conduct (ongoing sexual abuse) with McHenry gaining control through the extension or withholding of privileges. The evidence provided information for the jury to consider in assessing the defense: the timing of the past complaint in the context of other family dynamics at the time; the fact that past complaints had not resulted in action by those in authority; and a long-standing system of rewards which might explain the daughter’s failure to come forward.” 276 Kan. at 520-21 .

Let us examine some other possible scenarios: A 10-year-old child is asleep in her bedroom, which shares a common wall with the bedroom where her mother is asleep. Mother s live-in boyfriend comes into' the girl’s bedroom, touches her shoulder to awaken her, and then snaps his fingers. The girl immediately performs oral sex on the boyfriend and he leaves die room. Not a word is spoken. The girl testifies the mother’s boyfriend had forced her to do this numerous times in the past, had threatened her with bodily harm, and diat her mother accused her of lying when she reported prior incidents and beat her. The prior criminal activity is an integral part of the charged crime and has always been admissible independent of K.S.A. 60-455.

Take another example: Husband calls his wife, is very angry, and states he is on his way home to beat her up. She does not leave, does not call 911, or in anyway seek protection. Instead, she cowers and waits. Why? Husband has beaten her up on many previous occasions. When she had tried to escape, called 911, or otherwise sought protection, subsequent beatings in retaliation for such acts were more severe, including threats to kill her if she tried anything like that again. The prior criminal acts are an integral part of the present crime.

As these cases and hypothetical scenarios show, prior criminal acts by a defendant against the same victim are frequendy necessary to understand the victim’s actions or inactions prior to, during, or after the commission of the charged crime. Such evidence does not concern prior, separate, unrelated crimes that are not connected to the crime charged — the type of evidence intended to be covered by K.S.A. 60-455. Instead, such evidence is inherently related to and interconnected with the crime charged and, thus, tends to prove the offense. Accordingly, it is admissible despite the fact it tends to show the commission of other crimes.

*72 This is vastly different from the admission of totally independent crimes. An example of this would be attempting to prove the identity of the defendant as the masked robber of a liquor store (the charged crime) by introducing evidence that the defendant had been convicted 2 years earlier of being the masked robber of another liquor store. As we recognized in Crossman , certainly the restrictions of K.S.A. 60-455 are intended to apply to such a scenario:

“Probably the most common use of K.S.A. 60-455 involves tire issue of identity. For example, a liquor store is robbed. There is no question that the store was robbed. The only issue is who did it. The prosecution dren seeks to introduce evidence that the defendant has previously committed anodier robbery on a specified date, utilizing a similar modus operandi. The purpose of the evidence is to establish that the defendant was die robber of die liquor store. The utilization of one specific crime to prove a separate and independent crime is a sensitive area which needs safeguards.” (Emphasis added.) 229 Kan. at 387 .

In summaiy, K.S.A. 60-455, and the common law upon which it was based, was never intended to apply to evidence that is admissible due to its inherent connection to the crime charged. Such evidence, otherwise admissible, is not rendered inadmissible merely because it also tends to show the defendant has committed some other crime. I dissent from that portion of the majority opinion which holds otherwise.

Lockett, ]., Retired, joins in the foregoing dissenting opinion.