Andrews v. State ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 126,787
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
TERRILL LAPAUL ANDREWS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Submitted without oral
argument. Opinion filed August 23, 2024. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.
Before GARDNER, P.J., GREEN and HILL, JJ.
PER CURIAM: After an unsuccessful direct appeal of his sex-crime convictions,
Terrill Andrews sought habeas corpus relief. In his K.S.A. 60-1507 motion, Andrews
claimed that his trial counsel was ineffective and therefore his convictions should be
overturned. The district court denied his motion, and he now appeals the denial of that
motion.
In this appeal, Andrews argues that his trial counsel's performance was deficient
because before his trial, his counsel failed to move to obtain and admit evidence of his
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young victim's prior sex acts—thus avoiding the bar to the admission of such evidence
found in the rape shield statute. Our review of the record leads us to conclude that
Andrews' claim amounts to speculation about what his trial counsel could have
discovered, and he fails to show how such evidence of any prior sexual activity by the
13-year-old victim was material and relevant to the issues in his trial. His claims fail to
undermine our confidence in his convictions. Simply put, Andrews has not shown that his
trial counsel's performance was deficient. We affirm.
Andrews was convicted of several sex crimes.
The court convicted Andrews of several sex crimes against three young girls at a
bench trial. The facts of his case can be found in his direct appeal in State v. Andrews,
No. 113,971, 2020 WL 1070355 (Kan. App. 2020) (unpublished opinion). We offer a
condensed summary:
"In early October 2013, A.C., a 13-year-old girl, and T.H., a 16-year-old girl,
ran away together from a group home in Wichita. T.H. had previously met Andrews, who
was 40 years old, and from October 10, 2013, until October 12, 2013, the two girls stayed
at his residence. About October 12, 2013, A.C. left Andrews' residence and reported that
Andrews had engaged in sexual intercourse with her on three occasions while at the
residence." 2020 WL 1070355, at *1.
An investigation followed the report:
"A.C. made this report to Tiffany Smith, a coordinator at the Open Arms Child
Development Center in Wichita. Smith immediately contacted the Wichita Police
Department and a criminal investigation was commenced. Officer Shawn Isham
interviewed A.C. at her foster home. A.C. told Officer Isham that Andrews had raped her
'multiple times,' and described the location of his residence. At trial, A.C. testified to
three separate occasions that Andrews raped her and touched her breasts." 2020 WL
1070355, at *1.
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The victim was examined by a nurse:
"Nurse Ruthann Farley testified at trial. Farley conducted a sexual assault
medical examination on A.C. at a local hospital, corroborated the girl's testimony, and
stated that A.C. had abrasions and lacerations indicative of blunt force trauma. Farley
opined that these injuries appeared recent and were consistent with A.C.'s account that
she had been raped." 2020 WL 1070355, at *1.
We focus on Nurse Farley's testimony because it is the heart of this appeal.
Nurse Ruthann Farley began examining A.C. on the evening of October 12, 2013.
The exam continued into the early morning hours of October 13th. Nurse Farley
examined A.C. head to toe, but A.C. would not consent to a genital exam. Nurse Farley
obtained a history from A.C., wherein A.C. stated she had multiple previous sex partners.
After the exam, a police officer took A.C. to McDonald's to get food and then to an
interview with detectives. A.C. returned to the hospital the following day for the genital
exam.
During cross-examination of Nurse Farley, Andrews' trial counsel asked leave of
the court to question her about A.C.'s reported history of having multiple sex partners.
The State objected on the basis of the rape shield statute. Trial counsel made a proffer of
evidence, questioning Nurse Farley:
"Q. . . . And then below that you wrote what about multiple partners?
"A. I wrote that she had a history of multiple partners, sex partners.
"Q. And the words in your notes are 'had sex multiple partners;' is that right?
"A. Yes. That note was referring to that she has had sex in the past.
"Q. And that information, without knowing when the sex happened, can also provide
an explanation for the physical evidence that you're testifying to about you observing on
her on that day?
"A. It doesn't state when she last – I can't – I can't really answer that question.
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"Q. Okay. But if she's had sex with multiple partners and one of them was fairly
recently, for example, that we don't even know who it is, that could provide an
explanation for why she has a tear and an abrasion?
"A. I suppose it's possible.
"Q. Okay. And the same way you say it's consistent with my client's penis causing
that damage, somebody else's could have?
"A. Right. Something touched that area."
The attorneys questioned Nurse Farley on the timing of A.C.'s injuries:
"Q. [Prosecutor:] Miss Farley, based on your training and experience, when the vaginal
area is injured how long do you expect to see those injuries? Can you give me a time
frame?
"A. Typically, with that area the healing occurs very, very quickly because it's very
vascular in nature. So when we have a tear, it typically heals within maybe 24 hours or
you start to see healing within a very quick time frame.
"Q. Okay. And you told us that you first saw [A.C.] on the 12th and the 13th but she
declined the vaginal exam, and then you did the vaginal exam on the 14th; is that correct?
"A. That's correct.
"Q. So the fact that you still saw injury on the 14th, what does that tell you?
"A. That the injuries happened very recently and that they were fairly severe.
"Q. Okay. And as to the multiple sex partners, she didn't give you any indication
about when that may have happened, did she?
"A. No. As far as I remember, that she had – that was in the past. I asked that for past
medical history.
....
"Q. [Defense counsel:] You never asked her if she'd had any other sexual contact with
other people between the time you saw her and the time you did the exam?
"A. Typically we ask that question, and it would be on my history notes which I have
to go back to. So on step 13 we ask if there's any consensual intercourse in the last three
days, and the mark – the box is check marked no. So that tells me that she did not have
any sexual intercourse in the last three days.
"Q. And that was asked, what, on the date of the second exam?
"A. That was asked on the night that I initially saw her."
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Nurse Farley later testified that injuries are typically seen "maybe 24 to 48 hours
with healing in process after the injury has occurred." She did not see any evidence of
healing in A.C.'s injuries.
The criminal trial concluded with a guilty verdict.
The district court ruled that the proffered evidence was "clearly covered by the
rape shield statute." Because no written motion was filed in compliance with the statute,
the evidence was inadmissible. Moreover, even if the motion had been filed, the proffered
evidence was not relevant and would not survive scrutiny under the rape shield law.
There was no evidence that A.C. had sex with anyone else between the time when
officers were called and the genital exam.
In closing arguments, defense counsel argued—and the district court
acknowledged—that based on Nurse Farley's testimony that the injuries typically begin
healing within 24 to 48 hours of the injury and that there was no evidence of healing in
A.C.'s case, A.C.'s injuries could have been more recent than the time A.C. was with
Andrews.
We look at all of the evidence of Andrews' guilt.
Other evidence implicating Andrews was presented at trial. A detective testified
that Andrews' cellphone contained a video of A.C. and T.H. naked in Andrews' shower.
The video showed Andrews reflected in the mirror and recorded his voice as he spoke to
the girls. Andrews' cellphone also contained a video of him engaging in oral sexual
relations with T.H. Because T.H. was unavailable as a witness at trial, her preliminary
hearing testimony was admitted into evidence. T.H. testified that she believed A.C. and
that Andrews had sexual intercourse while they were staying at his residence.
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Andrews was convicted of three counts of rape (A.C.); three counts of aggravated
indecent liberties with a child (R.M.); and two counts of sexual exploitation of a child
(T.H.).
As for the three counts of rape involving A.C., the trial court found it was
undisputed that A.C. was only 13 years of age at the time of the events. The trial court
found, "I don't think there can be much question that sexual intercourse occurred between
Mr. Andrews and [A.C.]." The court found the sexual intercourse was established by
A.C.'s testimony, by the sexual assault medical exam that found injuries consistent with
intercourse, and by the preliminary hearing testimony of T.H. that was admitted into
evidence. In conclusion, it found the evidence of guilt was strong.
The court sentenced Andrews as an aggravated habitual offender under K.S.A.
2013 Supp. 21-6626 to a controlling term of life in prison without parole. On direct
appeal, a panel of this court affirmed Andrews' convictions. Andrews, 2020 WL 1070355,
at *1, 34. The Supreme Court denied his petition for review.
Andrews files this K.S.A. 60-1507 motion.
Andrews filed this K.S.A. 60-1507 motion, arguing that his trial counsel was
ineffective for failing to file a motion that would have allowed him to bypass the rape
shield statute during the questioning of Nurse Farley at trial and for failing to investigate
whether A.C. had sex with someone else. He claims that due to the lapse in time between
the alleged assault and A.C.'s vaginal exam, her injuries could have been caused by
someone else.
At the evidentiary hearing on this claim, Andrews' trial counsel testified he did not
file a motion to admit evidence under the rape shield statute because he would have
needed some evidence to show that A.C. had sex with someone else and that it could
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affect the case, specifically that it occurred between her two medical exams because the
injuries were very recent. He made the argument in his closing argument. Trial counsel
also testified that a motion to admit evidence under the rape shield statute is not often
filed.
The district court denied the motion, ruling that Andrews failed to establish trial
counsel's failure to file the motion affected the outcome of his trial. The evidence
Andrews sought to admit was not relevant and was barred by the rape shield statute.
Whether A.C. had any other sexual experience was irrelevant to whether Andrews raped
her. Nurse Farley testified A.C.'s injuries happened very recently. According to A.C.'s
history note, she denied having any consensual intercourse in the last three days.
Andrews presented no evidence that A.C. engaged in sexual relations between the time of
Nurse Farley's examination and her return the next day for the genital examination.
Further, during much of that time, A.C. was in the presence of law enforcement officers.
In this appeal, Andrews argues his trial counsel was deficient for failing to file a
motion to allow A.C.'s sexual history into evidence and for failing to use discovery
tactics that could have led to evidence that A.C. had sex with someone else. Andrews
argues that this failure was prejudicial because trial counsel was unable to effectively
argue that A.C.'s injuries were inflicted by someone else.
Well-established rules guide us.
After an evidentiary hearing on a K.S.A. 60-1507 motion, the district court must
issue findings of fact and conclusions of law concerning all issues presented. See
Supreme Court Rule 183(j) (2024 Kan. S. Ct. R. at 242). An appellate court reviews the
court's findings of fact to determine whether they are supported by substantial competent
evidence and are sufficient to support the court's conclusions of law. Appellate review of
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the district court's ultimate conclusions of law is de novo. Khalil-Alsalaami v. State, 313
Kan. 472, 486, 486 P.3d 1216 (2021).
To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either: (1) "the judgment was rendered without
jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to
collateral attack"; or (3) "there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 2023 Supp. 60-1507(b) (grounds for relief); Supreme Court Rule 183(g)
(2024 Kan. S. Ct. R. at 241) (preponderance burden).
Claims of ineffective assistance of trial counsel are analyzed under the two-part
test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed.
2d 674, reh. denied 467 U.S. 1267 (1984), and adopted by the Kansas Supreme Court in
Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first part,
the defendant must show that defense counsel's performance was deficient. If successful,
the court moves to the second step and determines whether there is a reasonable
probability that, absent defense counsel's unprofessional errors, the result would have
been different. State v. Evans, 315 Kan. 211, 218, 506 P.3d 260 (2022).
To establish deficient performance under the first part, the defendant must show
that defense counsel's representation fell below an objective standard of reasonableness.
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel
must be highly deferential. A fair assessment of counsel's performance requires that every
effort be made to eliminate the distorting effects of hindsight, reconstruct the
circumstances surrounding the challenged conduct, and evaluate the conduct from
counsel's perspective at the time. Evans, 315 Kan. at 218. The defendant must overcome
the strong presumption that, under the circumstances, counsel's action might be
considered sound trial strategy. Khalil-Alsalaami, 313 Kan. at 486.
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Under the second step, the defendant must show that defense counsel's deficient
performance was prejudicial. To establish prejudice, the defendant must show with
reasonable probability that the deficient performance affected the outcome of the
proceedings, based on all the evidence. Khalil-Alsalaami, 313 Kan. at 486. A reasonable
probability is a probability sufficient to undermine confidence in the outcome. Evans, 315
Kan. at 218.
The burden is on the movant to establish that counsel was ineffective. In order to
meet this burden, the movant must do more than make conclusory remarks with no
evidentiary support. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015). Mere
speculative allegations are insufficient to meet this burden. State v. Barahona, 35 Kan.
App. 2d 605, 611, 132 P.3d 959 (2006).
When a movant's claim is based on what might have happened if trial counsel had
filed and fully litigated a motion concerning the admission or suppression of evidence,
the movant must prove the motion was meritorious—likely would have been granted,
and, but for the omission of the motion, there is a reasonable probability the verdict
would have been different. If the omitted motion is not meritorious then trial counsel's
failure cannot be characterized as objectively unreasonable, nor can it be considered
prejudicial. See Khalil-Alsalaami, 313 Kan. at 498-500 (motion to suppress evidence).
We review the rape shield statute.
A rape victim's prior sexual activity is generally inadmissible. But the rape shield
statute does allow evidence of a victim's prior sexual conduct if it is relevant to a fact at
issue, such as evidence that another person may have been guilty of the alleged sexual
abuse. See K.S.A. 21-5502(b); State v. Atkinson, 276 Kan. 920, 926-28, 80 P.3d 1143(2003).
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The defendant must make a written motion to the court to admit such evidence and
state its relevancy. The motion must accompany an affidavit making an offer of proof of
the previous sexual conduct. The court then will conduct a hearing to determine whether
the evidence is relevant and not otherwise inadmissible. K.S.A. 21-5502(b).
The determination of whether evidence of prior sexual conduct is probative of a
material issue—a component of relevancy—is discretionary with the district court. Such
decision will not be overturned on appeal if reasonable minds could disagree. Evidence of
prior sexual conduct that is vague, speculative, and uncorroborated is not probative and
therefore inadmissible under the rape shield statute. See State v. Berriozabal, 291 Kan.
568, 586-88, 243 P.3d 352 (2010).
Andrews fails to show his trial counsel was ineffective.
At Andrews' trial, the district court did not exclude evidence of A.C.'s sexual
history merely because his trial counsel failed to make a written motion as required. The
court also determined the evidence he sought to admit was irrelevant and would not
survive scrutiny under the rape shield law because there was no evidence that A.C. had
sex with anyone else in the relevant time frame.
Our Supreme Court has found no abuse of discretion by the district court for
excluding evidence of the victim's sexual history under similar circumstances. In State v.
Anderson, 230 Kan. 681, 682, 640 P.2d 1232 (1982), medical evidence established sexual
intercourse had occurred. The defendant wanted to elicit testimony whether the victim
was sexually active so that the jury might speculate that someone else was responsible.
But the defendant proffered no evidence that sexual intercourse between the victim and
anyone else had occurred during any relevant time period. The Supreme Court held the
district court did not abuse its discretion by excluding such testimony. 230 Kan. at 682.
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We hold the ruling in Anderson controls here. Andrews similarly proffered no
evidence that A.C. had sexual intercourse with anyone else during the relevant time. He
merely had the nurse's report that A.C. had been sexually active in the past. Andrews
wanted the district court to speculate that someone else could have been responsible for
A.C.'s injuries. Andrews has not shown a motion to admit evidence under the rape shield
statute would have succeeded. Thus, he has not shown his trial counsel was ineffective
for failing to file such motion.
Andrews' argument that his trial counsel could have found evidence that A.C. had
sex with someone else in the relevant time frame by using discovery tactics is pure
speculation. The district court's findings of fact are supported by substantial competent
evidence. Nurse Farley testified that A.C.'s injuries were recent. When A.C. first met
Nurse Farley, she denied having consensual intercourse in the last three days. She left
with law enforcement officers after the initial exam. An officer testified that after Nurse
Farley's first examination, he took A.C. to an interview with detectives. A.C. returned to
the hospital the next day for the genital exam. There was no evidence that A.C. had sex
with someone else during this time frame.
Andrews' speculation falls far short of the proof sufficient to undermine our
confidence in his convictions. He has not shown us that there is a reasonable probability
the verdicts would have been different had such a motion been filed in his trial. We
cannot hold a defense counsel to be ineffective for failing to pierce the rape shield law if
there is no evidence to prove the claim. Constitutional claims are not proved by what
might have happened. Instead, such claims—to be successful—must be based on what
happened.
Affirmed.
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