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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,313

STATE OF KANSAS,
Appellee,

v.

CHAD PATRICK MCMULLEN,
Appellant.


SYLLABUS BY THE COURT


1. The State has the burden of proving that a confession was voluntary.  However, the appellant has the duty to properly designate the record on appeal to challenge a confession's admissibility, and, if that appellate record is inadequate, the appellate court will presume that the district court's findings were properly supported.

2. Inconsistencies between a child victim's prior statement and the child's live testimony at trial do not, standing alone, render the prior statement inadmissible at trial.

3. The admission at trial of a child victim's prior inconsistent statement does not violate a defendant's Sixth Amendment right to confront witnesses if that child testifies in person at the trial and is subject to the defendant's cross-examination.

4. The provisions of K.S.A. 22-3434 do not apply to an investigatory videotaped interview of a child victim who testifies in open court at trial.

5. In multiple conviction cases, the sentencing judge has the discretion to order that the individual sentences are to be served either concurrently or consecutively.  Nothing in the provisions of K.S.A. 21-4643, Jessica's Law, alters or restricts a sentencing judge's discretion to impose consecutive sentences.

Appeal from Shawnee district court; MARK S. BRAUN, judge.  Opinion filed December 18, 2009.  Affirmed.  

Michael E. Francis, of Topeka, argued the cause and was on the brief for appellant.  

Natalie Chalmers, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.:  Chad Patrick McMullen appeals his convictions and sentences for two counts of aggravated indecent liberties with a child under age 14.  McMullen challenges the admissibility of the child victim's videotaped statement, the voluntariness of his confession, and the legality of imposing consecutive hard 25 prison terms.  The appeal comes directly to this court pursuant to K.S.A. 22-3601(b)(1).  We affirm the convictions and sentences.

FACTUAL AND PROCEDURAL OVERVIEW

The victim in this case was J.J., a 5-year-old boy who is the nephew of McMullen's sister-in-law.  The incident occurred in the sister-in-law's basement, where McMullen was living at the time.  J.J.'s mother discovered the boy on McMullen's bed with his pants down around his ankles and McMullen in another area of the basement.  In response to the mother's inquiry, McMullen explained that he was looking for a toy in another room of the basement, while J.J. jumped on the waterbed.  The next day, the mother reported the incident to the police.

Helen Swan at the Prairie Advocacy Center conducted a safe-talk interview with J.J., which was videotaped.  J.J.'s mother testified that, during the interview, J.J. reported that McMullen had touched his "pee-pee" with his mouth and made J.J. put his hand on McMullen's "pee-pee."  The videotape was introduced into evidence at trial over McMullen's objection.  

While investigating the basement incident, Detective Kent Biggs contacted McMullen at his place of employment.  Initially, Biggs told McMullen that he wanted to get some information about a previously reported robbery.  McMullen agreed to meet Biggs at the police station after he finished closing the store.  When McMullen arrived at the station at approximately 12:35
a.m., the detective explained that he actually wanted to discuss the incident with J.J.  After being advised of his Miranda rights, McMullen initially denied having any physical contact with J.J.  However, McMullen then asked Biggs "hypothetically" what would happen if he altered his version of the events to be more in line with J.J.'s version.  Detective Biggs explained that McMullen would not be arrested that evening and that his statement would be forwarded to the district attorney who would decide how to proceed.  The detective denied making any specific promises in exchange for McMullen's statement.

After discussing his hypothetical question with the detective, McMullen confessed that he pulled down J.J.'s pants and fondled J.J.'s penis for 2 to 5 minutes and that he asked J.J. to touch his penis, which J.J. declined to do.  McMullen completed a written statement to that effect and was allowed to leave the station at approximately 2 a.m.  

Before trial, the State filed a motion for a Jackson v. Denno hearing to establish the voluntariness and admissibility of McMullen's written statement.  See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).  The district court ruled in favor of the State, albeit the transcript of that hearing does not appear in the record on appeal.  Ultimately, the trial court allowed Detective Biggs to read McMullen's written statement to the jury over McMullen's objection.

J.J. testified in person at trial but was reluctant to discuss the incident.  He said that he would be too embarrassed to talk about it if he had been touched in that way.  When asked on direct examination whether McMullen or anyone else touched him on the "pee-pee" that day, J.J. responded by moving his head from side to side.  However, J.J. responded in the affirmative to questions about whether his pants were down while McMullen was in the room; whether McMullen was the one who pulled his pants down; and whether McMullen had his own clothes off.  J.J. also identified via picture comparison that when the incident occurred he could see McMullen's genitals.  

During Helen Swan's testimony, J.J.'s videotaped statement was played for the trial jury, over McMullen's objection that the video was "repetitive and cumulative."   However, neither the videotape nor a transcript of its content appears in the record on appeal.  

Ultimately, McMullen was convicted by the jury of two counts of aggravated indecent liberties with a child.  His motion for a new trial, based upon the admission of his written confession and J.J.'s videotaped testimony, was denied.  The district court denied McMullen's motion for a departure and sentenced him to two consecutive hard 25 life sentences.  

ADMISSIBILITY OF CONFESSION

First, McMullen challenges the voluntariness of his confession.  He claims that his mental condition at the time of the interrogation was one of exhaustion and confusion; that the manner of the interrogation involved subtle deception; and that while the interrogation was not necessarily lengthy, he had come from a long day's work, late at night, under the misapprehension that he was going to be interviewed as a witness about a burglary.  

A. Standard of Review

"'When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard.  The ultimate legal conclusion drawn from those facts is reviewed de novo.  The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.'"  State v. Ransom, 288 Kan. 697, 705, 207 P.3d 208 (2009) (quoting State v. Gant, 288 Kan. 76, Syl.

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