Call it a Plan and a Defendant's Prior (similar) Sexual Misconduct Is In: the Disappearance of K.s.a. 60-455
| Publication year | 2001 |
| Pages | 30-39 |
70 J. Kan. Bar Assn. 8, 30-39 (2001). Call it a Plan and A Defendant's Prior (Similar) Sexual Misconduct Is In: The Disappearance of K.S.A. 60-455
70 J. Kan. Bar Ass'n, September 2001, 30-39 (2001)
I. Introduction
Consider the following hypothetical fact pattern: Defendant hires a teenaged boy (Victim) to work for him on his farm. On the ruse of inviting Victim inside his empty farmhouse to cool off, Defendant forces Victim to engage in oral sodomy in the farmhouse while watching a pornographic movie depicting similar sexual activity. Defendant is charged with the aggravated criminal sodomy of Victim. Defendant denies the act charged occurred.
Prosecutor discovers Man, who will testify when he was a teenager, Defendant hired him to work on his farm, and when invited inside the empty farmhouse to "cool off", Defendant forced him to engage in oral sodomy in the farmhouse while watching a pornographic movie depicting similar activity. Before trial, Prosecutor moves to admit the testimony of Man. Should the court admit Man's testimony?
This question has produced more appellate litigation in criminal cases in federal and state courts than any other question.[1] In Kansas, the question is controlled by K.S.A. 60-455 (hereinafter "60-455"), which states:
Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-455 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.[2]
This rule of evidence codifies the long-standing exclusion of "prior acts" or "propensity" evidence, subject to the exception that the evidence is admissible if it tends to prove another, non-propensity, relevant and material fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.[3]
The Kansas Supreme Court's 60-455 jurisprudence has weathered recent criticism.[4] This article will further question the Court's interpretation of 60-455, but will focus only on the "plan" exception in sexual misconduct cases. This article will first explain, by use of the above hypothetical, the Kansas Supreme Court's rationale for admitting similar prior uncharged sexual misconduct evidence pursuant to 60-455. This article will then note the Court's interpretation of the plan exception to 60-455 in sexual misconduct cases is, for unexplained reasons, more liberal than the plan exception in non-sexual misconduct cases. I will then argue this inconsistency should be resolved in favor of the more restrictive definition of "plan", because 1) plan evidence in sexual misconduct cases does not prove a relevant, material, disputed fact, 2) a textual analysis of K.S.A. 22-3202 (criminal joinder statute) and 60-455 does not support the more liberal definition of "plan," and 3) Defendant's due process rights are violated by eroding the presumption of innocence and the prosecution's burden to prove Defendant guilty.
II. Current Interpretation of the Plan Exception in Sexual Misconduct Cases
State v. Damewood well-demonstrates the rationale used by the Kansas Supreme Court in allowing the admission of Man's testimony. For the balance of this article, unless otherwise noted, the factual background of each sexual misconduct case discussed will be that of the hypothetical posed at the beginning of this article, and will use the hypothetical's characters in discussing the holdings of the cases.[6]
In Damewood, the trial court admitted Man's testimony to prove Defendant's intent and plan of operation, and to corroborate Victim's testimony.[7] On appeal, Defendant argued intent and plan were not appropriate reasons to admit Man's testimony pursuant to 60-455, and corroboration is not one of the facts listed in the statute.[8] Defendant argued intent was not an appropriate theory to admit Man's testimony because "the mere doing of the acts suffices to show [his] intent"; furthermore, "plan" was not the appropriate theory because "no connection existed between the alleged acts of the two alleged victims."[9]
In addition to holding the evidence was admissible to prove "intent," but not "corroboration," the Kansas Supreme Court held Man's testimony was admissible to prove "plan." The Court stated:
Admission of evidence under K.S.A. 60-455 to show plan has been upheld under at least two theories. In one the evidence, though unrelated to the crimes charged, is admitted to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.
. . .
The rational for admitting evidence of prior unrelated acts to show plan under K.S.A. 60-455 is that the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts. In such cases the evidence is admissible to show the plan or method of operation and conduct utilized by the defendant to accomplish the crimes or acts. [Citations omitted].
Another line of cases has held evidence of prior crimes or acts is admissible to show plan where there is some direct or causal connection between the prior conduct and the crimes charged. [Citations omitted].[10]
Thus, the Court held it was not error to admit Man's testimony to prove Defendant's "plan."
III. The Plan Exception in Non-Sexual Misconduct Cases
The Court acknowledges in Damewood there are two lines of cases dealing with the admissibility of evidence tending to prove the defendant's "plan."[11] The first line of cases, relied on in Damewood, uphold the admission of such evidence, although unrelated to the crime charged, to show the modus operandi or general method used by the defendant to commit similar but totally unrelated crimes.[12]
The second line of cases, recognized but not relied on in Damewood, is best exemplified by State v. Marquez.[13] In Marquez, the defendant was charged with the burglary of a jewelry store in Lawrence. The trial court allowed the state to present evidence that the defendant had pled guilty to two burglaries in Liberal committed similarly to the Lawrence burglary. On appeal, the Kansas Supreme Court held the trial court erred in admitting the evidence of the Liberal burglaries to prove "plan," although identity was in issue. Justice Schroeder noted that it was easy to confuse the plan and identity exceptions of 60-455, and explained:
... Plan refers to an antecedent mental condition that points to the doing of the offense or offenses planned. The purpose in showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it was committed. Strictly speaking, the exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan or scheme directed toward the doing of the offense charged.
Something more than doing similar acts is required to have probative value in showing plan, because the object is not merely to negative an innocent intent or show identical offenses, but to prove the existence of a definite project directed toward the doing of the offense charged ... In admitting evidence of prior crimes or civil wrongs to show plan, the conclusion that the accused did the act in question is inferred basically from a structured design, not from the common features.[14]
Marquez thus stands for the proposition that "plan" evidence is only admissible when it shows a "structured design" or a "causal connection" between the charged and uncharged acts.
Applying Marquez to the hypothetical, Man's testimony cannot be admitted to prove "plan," because there is no causal connection or structured design between the charged and uncharged crimes. Without a structured, pre-existing plan between the charged and uncharged acts, there can be no inference Defendant committed the charged crime - other than by the forbidden propensity reasoning. When evidence is admissible pursuant to Marquez, a fortiori, the evidence is admissible pursuant to Damewood.[15] However, the converse is not always true, as illustrated by the hypothetical. The Kansas Supreme Court has not explained or acknowledged this conflict between the two lines of cases.[16]
Of interest is State v. Jones,[17] decided one year after Damewood. In Jones, the Kansas Supreme Court reverted to the more stringent definition of "plan" in a nonsexual misconduct case. Jones was convicted of burglary and criminal damage to property.[18] Instead of relying on Damewood's rationale, Jones cited Marquez in holding evidence of Jones' prior conviction of breaking into the same victim's home could not be admitted under the plan exception of 60-455 because "although they are similar acts ... no causal connection exists between the two events except for defendant's continuing involvement with these parties."[19] Had Jones been inclined to follow the Damewood rationale, the prior conviction would have been properly before the jury to prove Jones' "plan."[20]
IV. The Deficiencies of the Plan Exception Used in Sexual Misconduct Cases
The Kansas Supreme Court has limited to sexual misconduct cases the...
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