State v. Cox

304 P.3d 327, 297 Kan. 648, 2013 WL 3122599, 2013 Kan. LEXIS 550
CourtSupreme Court of Kansas
DecidedJune 21, 2013
DocketNo. 103,674
StatusPublished
Cited by13 cases

This text of 304 P.3d 327 (State v. Cox) is published on Counsel Stack Legal Research, covering Supreme Court 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. Cox, 304 P.3d 327, 297 Kan. 648, 2013 WL 3122599, 2013 Kan. LEXIS 550 (kan 2013).

Opinion

The opinion of the court was delivered by

BEIER, J.:

This is defendant Ryan Cox’s direct appeal from jury convictions of two counts each of aggravated criminal sodomy and aggravated indecent liberties with a child. He was sentenced to concurrent prison terms of 165 months on each sodomy count and 61 months on each indecent liberties count. Because his constitutionally protected right to a public trial was violated when the district court closed the courtroom during display and discussion of photographs of the victims’ genitalia, we must reverse the convictions and remand for a new trial. In addition to analyzing the [650]*650public-trial claim, we review only those among Cox’s other appellate issues that are likely to arise again upon retrial.

Factual and Procedural Background

Cox began dating the mother of the two victims (Mother) in April 2000, when he was 18 and she was 19. During the course of their ensuing 7-year relationship, they had various residences, sometimes together and sometimes apart. Mother had two daughters from a prior relationship, C.W. and M.W. Since their birth, the girls had resided with Mother’s mother (Grandmother). In 2004, Mother and Cox had a son together. In March or April of 2007, they purchased a house and, for the first time, began living together with the three children. Four months later, C.W. and M.W. told Grandmother that Cox had been sexually abusing them.

At trial, Grandmother testified that the girls were complaining one night that they did not want to go home with Cox. When Grandmother asked them why, M.W., 9 years old at the time, told her, “[Cox] hurts us.” C.W., then 7 years old, made a similar statement, and the girls told Grandmother that Cox made them “watch dirty stuff on his computer” and put his “thingy” in their mouths and in their “girl parts.” Grandmother called Mother at work and relayed what the girls had said.

After learning of the girls’ accusations, Mother immediately called Cox and told him generally what the girls had said. He denied the accusations and told Mother that the girls were making them up. When Mother got off work early the next morning, she picked the girls up and took them to the police station. There, Tammy Hinman, a social worker with the Department of Social and Rehabilitation Services (SRS), now the Department of Children and Families, interviewed the girls individually. These interviews were videotaped, and the tapes were played to the jury at trial. ■

In her interview, M.W. was reticent; but she identified Cox as tire person who had been hurting her and indicated that she was afraid of him. She responded affirmatively when asked if he had touched her on her girl parts, if he had touched her with his hands, and if he had touched her with another part of his body. She re[651]*651sponded affirmatively when asked if Cox had put his boy parts into her mouth and on her girl parts. She said that one time Cox had put his boy part into her bottom, but she screamed and he stopped. She said Cox would take her sister out of the room the two girls shared, and she had heard her sister protest that Cox promised he would not do it anymore.

C.W. was more forthcoming about Cox “doing some bad stuff to us.” She said, “[Cox] makes us suck his penis.” A few times, she said, she saw “white stuff’ come from his penis. She also said Cox had tried to put his penis in her bottom once and got “a little bit inside”; but she screamed, so he just put it in her mouth. She said that one night Cox came for her sister and “tried to go inside her,” but she screamed.

Both girls said that Cox made them watch bad movies, some depicting grown-ups and some depicting men and little girls.

A few days after the girls made their accusations, sexual assault nurse examiner (SANE) Jan Owens examined them. Owens took photographs during the examinations. At the State’s request and over a defense objection at trial, the district court judge closed the courtroom to spectators while pictures of the girls’ genitalia were exhibited and discussed. The judge attributed the closure to “the personal nature of the photographs.” As soon as the photographs were removed from view, members of the public were allowed back into the courtroom.

At trial, Owens described how the photographs of the victims’ genitalia compared to diagrams of the genitalia of typical girls about the same age. Owens found no acute or healed trauma, but she did find an unusual “lack of hymenal tissue”; she testified that she had never examined a child with such limited amount of tissue. On both girls, the hymenal tissue was “thinned”; the vaginal wall was “exposed”; and there was “narrowing.” Owens testified that these are three of four possible signs that raise suspicions of sexual abuse, and they could be consistent with penetration or rubbing.

KBI Special Agent Steve Rosebrough conducted interviews with each of the girls immediately after their SANE exams. His interviews also were videotaped, and the tapes were played for the jury. In the Rosebrough interviews, the girls repeated their previous [652]*652allegations against Cox. Rosebrough testified on cross-examination that he did not do any follow-up investigation into possible motives for the girls’ allegations, because he did not believe they were lying.

Rosebrough also testified that he interviewed Cox and executed a search warrant at Cox’s house. The search uncovered a single disc containing adult pornography; it was later suggested drat it belonged to Cox’s friend. Rosebrough discovered no child pornography in the home or on Cox’s computer. He testified that Cox was nervous but cooperative during his interview; Cox denied sexual activity with the girls.

Other testimony at trial revealed that, during the first few days after the allegations surfaced, Mother was going back and forth from her mother’s house, where the girls were staying, to the house she shared with Cox. Mother testified that she spent the night at Cox’s house one night but that Cox was not home. She testified that she was veiy angiy during this time. Grandmother testified that Mother initially defended Cox. Hinman testified that she believed Mother was in denial and “didn’t seem fully ready to accept that what her children had revealed could possibly be the truth.” Apparently because Mother was still in contact with Cox, the girls were taken into the custody of SRS. After Mother severed ties with Cox, she and the girls returned to live with Grandmother.

Both girls testified at trial.

C.W.—then 10 years old—testified that she had watched “nasty movies” with Cox, in which people were having “S-E-X.” She testified that, at night, Cox would come to get her and her sister out of bed and do “bad stuff’ to them; he made them touch his penis with their hands and mouths; he touched their “girl parts” with his penis and hands; and, when he put his penis in their mouth, white stuff would come out. She testified that she and M.W. never told anyone because “he said not to” and they were afraid.

M.W.—11 years old at the time of trial—also testified that Cox made her watch movies in which people were doing “bad stuff.” She testified, with difficulty, that Cox would sometimes touch his boy part to her girl part and mouth and that he would touch her between her legs.

[653]*653Cox’s evidence consisted largely of testimony supporting his good character. His mother testified that, when Cox told her about the allegations, she knew they were false.

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Cite This Page — Counsel Stack

Bluebook (online)
304 P.3d 327, 297 Kan. 648, 2013 WL 3122599, 2013 Kan. LEXIS 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cox-kan-2013.