State v. Coburn

87 P.3d 348, 32 Kan. App. 2d 657, 2004 Kan. App. LEXIS 354
CourtCourt of Appeals of Kansas
DecidedApril 9, 2004
Docket88,421
StatusPublished
Cited by6 cases

This text of 87 P.3d 348 (State v. Coburn) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Coburn, 87 P.3d 348, 32 Kan. App. 2d 657, 2004 Kan. App. LEXIS 354 (kanctapp 2004).

Opinions

Greene, J.:

Edward Coburn appeals his convictions of three counts of aggravated indecent liberties with a child (J.W.), three counts of aggravated indecent liberties with a second child (S.W.), and one count of sexual exploitation of a child. He frames 11 specific points of error and cumulative error. We reverse and remand for new trial due to a clearly erroneous jury instruction, and we attempt to narrow issues for remand.

Factual and Procedural Overview

S.W. and J.W. are minor granddaughters of Coburn’s wife, Rose. The girls lived with their mother, C.W., about 2 blocks from the home of Coburn. The girls would frequent Cobum’s home, sometimes for parties, during which Coburn would play “tickling games” with the girls, according to Rose. At some point, C.W. became suspicious that something was wrong. Specifically, the girls told her that Cobum was touching them on their bottom and making comments about their chests. After her suspicions were aroused, C.W. did not permit further contact.

Unfortunately, her intervention apparently came too late. After S.W. had trouble at school, she confided to her mother that Coburn had put his hand in her pants. J.W. was then questioned and ulti[659]*659mately stated that Coburn had also touched her. C.W. then reported these matters to the police.

On March 19, 2000, Cobum reported for work at the Apple Market quite early and was seen shortly thereafter leaving with a satchel under one arm. The safe was found unlocked, and the receipts from the previous business day were missing. When Rose awakened that morning, she found a note from Cobum stating, in part:

“My leaving is going to be the best for everyone. Since everytime I do something I am being accused of doing something like [J.W.] and [S.W.]. I AM NOT A child molester. . . . At least I’ll have fun the last years of my life—the money will help me settle down—I am sorry honey it didn’t work out. Love, Ed.”

In order to investigate where Cobum might have gone, C.W. and her husband went to Cobum’s computer the day after he left and found a train schedule that showed a stop in Las Vegas, and they also found pornography involving young girls. When they reported the pornography to the authorities, the computer was seized.

S.W. and J.W. both testified at trial. S.W. testified that she first met Cobum before he moved to Kansas, and that in the summer of 1998, Cobum touched her in her genital area. After Cobum moved to Kansas, S.W. recalled one incident that occurred in the basement of Rose’s house where Coburn touched her with his hand in her genital area, and she recalled two such incidents that occurred in the living room of Rose’s house. She also saw Cobum touch her sister, J.W. J.W. testified that Cobum would begin the physical contact by tackling and then tickling her, but he would then move his hands to the area of her genitals. She recalled at least three incidents where Cobum either made his clothed genital area have contact with her or he tried to touch her genital area with his hand.

The testimony of S.W. and J.W. was corroborated by other girls who had attended the parties or been present at Rose’s house and observed Coburn’s conduct. These witnesses testified as to their observations but also testified regarding conversations they had with J.W. wherein J.W. told of Cobum’s inappropriate conduct in “sticking] his hand inside her pants” or “down to her vagina.”

[660]*660The State called FBI computer specialists to describe what was found on Coburn’s computer. Over the objection of the defense, some of the names of the websites were listed, including “Sex-hound,” “Teenysex,” “Teen-eroticism.com/yteens,” and “Lolitasnude-young.com.” When a sampling of the documents saved on Cobum’s hard drive was printed, among the documents were 20 photos of young, unclothed girls. An expert pediatrician and director of child abuse services at the Kansas University Children’s Center testified that the girls in at least five of the photos were under the age of 18.

The jury found Coburn guilty of all charges, and he was sentenced to a controlling term of228 months’ imprisonment. He then perfected this appeal.

The Trial Court Erred in Instructing the Jury that Coburns Flight Could be Considered in Determining Guilt.

The State requested a separate instruction on flight pursuant to State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967), overruled in part on other grounds. State v. Underwood, 228 Kan. 294, 615 P.3d 153 (1980). Cobum objected to the instruction, but the State told tire trial court that there were a number of cases since Mojfitt holding that the flight instruction is proper. The court overruled tire objection and gave the following instruction:

“If you find from the evidence that the defendant, soon after the commission of the offenses alleged in the information, fled to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence. His flight, if he did flee, is not sufficient in itself to establish guilt, but a circumstance which you may consider in determining the probabilities of his guilt or innocence. The weight to which that circumstance is entitled is a matter for the Jury to determine in connection with all the facts brought out in the case.”

Both the State and the defense failed to cite for the trial court or for this court on appeal the controlling authority of State v. Cathey, 241 Kan. 715, 730-31, 741 P.2d 738 (1987), which departed from Mojfitt and held that such a flight instruction is clear error.

“The purpose of instructing the jury is to guide the jurors in their dehberations and to aid them in arriving at a legally proper verdict. It is the trial judge’s duty [661]*661to explain to the jury the law of the case and to point out the elements necessary to be proved by the State in a criminal case. Instructions which are erroneous and misleading can constitute grounds for a new trial. When instructing a jury, a trial judge may not single out and give undue emphasis to particular evidence, even though the instruction states the correct principle of law.
“It is clearly erroneous for a judge to instruct the jury on a defendant’s consciousness of guilt by flight, concealment, fabrication of evidence, or the giving of false information. Such an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury. The flight instruction was clearly a grave departure from the accepted form. By giving the flight instruction, the trial judge violated the McCorgary prohibition. This violation and other trial errors require that Cathey’s conviction be reversed and the case be remanded for a new trial in accordance with this opinion.” (Emphasis added.)

The instruction disapproved in Cathey was nearly identical to that at issue in this appeal. This instruction no longer appears in PIK, and was apparently removed sometime after the Cathey decision. We find it curious if not misleading for the prosecution to have been unaware of Cathey but to suggest that “a number of cases” since Mojfitt held the instruction proper.

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State v. Coburn
87 P.3d 348 (Court of Appeals of Kansas, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
87 P.3d 348, 32 Kan. App. 2d 657, 2004 Kan. App. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-coburn-kanctapp-2004.