State v. Simpson

The opinion of the court was delivered by

Per Curiam:

After the State charged James L. Simpson with aggravated indecent liberties with a child and aggravated child endangerment, Simpson requested a psychiatric evaluation of the complaining child witness. Although the district court ordered the evaluation, the child’s mother refused to give the necessary consent, so Simpson filed a motion in limine seeking to suppress the child’s testimony and statements. The district court granted Simpson’s motion, and the State filed an interlocutory appeal. After analyzing potential legal justifications for suppression and concluding none supported the district court’s ruling, the Couit of Appeals panel reversed the district court’s suppression order. State v. Simpson, No. 105,182, 2011 WL 4563106 (Kan. App. 2011) (unpublished opinion). We granted Simpson’s petition for review.

Because we conclude the State’s narrow argument to the Court of Appeals fails, we reverse the Court of Appeals’ decision, affirm the district court’s ruling, and remand for further proceedings.

Factual Background

Our resolution of this case requires only a brief factual recitation. The State charged 43-year-old James Simpson with aggravated indecent liberties with a child and child endangerment after 13-year-old K.S. told law enforcement Simpson touched her chest and vagina with his hand. Law enforcement also was given a note from K.S. to Simpson wherein K.S. wrote: “I’m mad at you but I stell Love you can stell do it with me” and “ps I (drawn heart) U baby boy.”

Following a preliminary hearing at which K.S. testified, Simpson filed a motion seeking a psychiatric evaluation of K.S. Citing State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), Simpson argued the State’s case hinged on K.S.’s credibility and because K.S. had “conveyed several extremely .divergent accounts” of the contacts between her and Simpson, a psychiatric evaluation was appropriate. Simpson also suggested that K.S. suffered from a “mental disease or defect” based on K.S.’s intelligence quotient (IQ), which was in the .1 percentile for her age group. Finally, Simpson contended K.S. had a motive to lie “based upon her sister’s conduct in a pending Douglas County case against her father.”

The State urged the district court to reject Simpson’s request for a Gregg evaluation, asserting K.S.’s low IQ demonstrated neither an inability to tell the truth nor a “mental instability.” The State also argued that K.S. had consistently described Simpson’s conduct and that an eyewitness corroborated Simpson’s inappropriate conduct with K.S.

Ultimately, the district court granted Simpson’s motion and ordered K.S. to submit to a psychiatric evaluation. In support, the court cited K.S.’s age and low cognitive abilities.

Approximately 1 month later, the parties informed the district court that G.I.S., K.S.’s mother, refused to consent to K.S.’s evaluation, believing it was not in K.S.’s best interest. Protracted proceedings followed, during which the district court considered but declined to decide whether it could order G.I.S. to consent to K.S.’s evaluation. At one point, the court warned the State that if G.I.S. maintained her refusal to consent, the court would suppress K.S.’s testimony and any discussion of her statements. The State protested, asserting that suppression was not an appropriate remedy because K.S. was a competent witness.

Eventually, approximately 3 months after the district court granted Simpson’s motion for a psychological evaluation, Simpson filed a motion in limine seeking to suppress K.S.’s statements and testimony based on her failure to undergo a Gregg evaluation. In support, Simpson cited K.S.A. 60-408, which gives the district court discretion to determine a witness’ qualifications to testify, and briefly mentioned a case discussing the Confrontation Clause.

The district court granted Simpson’s motion in limine. The State then filed an interlocutory appeal, asserting the district court erred in granting the motion in limine because K.S. was a competent witness and qualified to testify.

In an unpublished decision, the Court of Appeals reversed the district court’s decision suppressing K.S.’s statements and testimony, and in doing so the panel considered and rejected several possible justifications for the decision. Initially, the panel determined the rules of evidence did not permit the suppression because an individual is qualified to be a witness as long as he or she is capable of expression and can understand the duty to tell the truth, i.e., the person is competent. Because the district court did not find K.S. incompetent, the panel rejected this rationale. Simpson, 2011 WL 4563106, at *5-6. The panel further declined to find that the district court suppressed K.S.’s testimony as a sanction, concluding sanctions were inappropriate because no party had violated a court order. 2011 WL 4563106, at *7. Next, the panel concluded the district court’s decision could not be upheld as a ruling on a limine motion because suppression based on a motion in limine is appropriate only when the evidence is inadmissible, and the panel found no legal basis for finding K.S.’s statements and testimony inadmissible. 2011 WL 4563106, at *10-11. Finally, the panel rejected Simpson’s constitutional arguments, finding Simpson failed to demonstrate that his fundamental right to present his theory of defense would be implicated if he were forced to proceed to trial without the Gregg evaluation. 2011 WL 4563106, at *11-12. Finding no basis upon which to affirm the district court’s de-cisión, the panel reversed the suppression ruling and remanded for further proceedings.

We granted Simpson’s petition for review, obtaining jurisdiction under K.S.A. 60-2101(b).

Analysis

The State’s interlocutory appeal presented the Court of Appeals with “[t]he narrow issue” of whether the trial court abused its discretion “when it deemed the witness to be incompetent and suppressed the testimony of that witness” even though “the Defendant introduced no evidence that tended to establish one of the two alternative standards for witness incompetency pursuant to K.S.A. 60-417.” Despite the singular issue framed by the State, the Court of Appeals considered multiple alternative bases for the trial court’s ruling, ultimately rejecting them all.

But unlike the panel, we choose to confine our review to the narrow issue framed by the State. And while that issue may be intriguing, it does not fit either the facts of this case or the ruling of tire district court.

More specifically, the record does not support the State’s contention that the district court based its ruling solely on a determination that K.S. was incompetent to testify. While the State repeatedly urged the district court to conduct a hearing to determine K.S.’s competency, the court failed to focus on any particular concern in its orders related to the motion to compel or during any of the proceedings generated by the motion. For instance, in the journal entry formalizing the court’s limine order, tire district court indicated it based its ruling on “the previous rulings and Orders of the court” and “the non party [sic], natural mother’s, failure to consent to the evaluation of the alleged victim and consequential failure to comply with the previously ordered evaluation/examination.” This language seems to suggest, as Simpson contends, that the court suppressed K.S.’s testimony as a sanction for her mother’s refusal to comply with the evaluation order.

Further, at an earlier hearing on a motion to compel, the district court intimated a due process concern, opining that the defendant should “have the opportunity to have access to [the evaluation re-suits] for whatever legitimate use they may be as a matter [of] law in his defense.” Thus, while the basis for the district court’s ruling is less than clear, it is clear that the court’s concerns about the victim’s competency were not the sole reason for the court’s decision to suppress K.S.’s testimony.

The State, as the appellant in this case, bears the burden of compiling a record sufficient to support its arguments. See Nold v. Binyon, 272 Kan. 87, 96, 31 P.3d 274 (2001). If the district court’s findings were inadequate for an appellate court to review the State’s argument on appeal, the State must shoulder part of the blame and suffer the consequences. Cf. State v. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009) (district court and appellant share responsibility for inadequate findings; a litigant who fails to object to inadequate Rule 165 findings is foreclosed from making appellate argument that depends on what is missing).

Although ultimately unsuccessful, we will respect the State’s strategic decision to narrowly frame its issue. Because the State asked the Court of Appeals only to review whether the district court abused its discretion in making a competency determination, we must find the record and the district court’s rulings inadequate to answer this question.

Accordingly, we reverse the Court of Appeals, affirm the district court’s decision, and remand for further proceedings.

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