State v. McFarland ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,154
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RUSSELL WAYNE MCFARLAND,
Appellant.
MEMORANDUM OPINION
Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed October 9,
2020. Affirmed.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: While Defendant Russell Wayne McFarland was confined in the
sexually violent predator program at the Larned State Hospital, he entered an area
reserved for staff and then physically confronted and repeatedly attempted to kiss a
female employee. Another inmate quickly interceded to end the assault. A jury sitting in
Pawnee County District Court convicted McFarland of one count of aggravated sexual
battery. On appeal, McFarland complains the district court improperly admitted a letter
he wrote to another inmate about 10 days after the incident that essentially contains a
confession. We find no error and, therefore, affirm McFarland's conviction and the
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resulting sentence. Even if we are wrong, the admission of the letter during the trial was
harmless error given the other compelling evidence of McFarland's guilt.
FACTUAL AND PROCEDURAL HISTORY
In early May 2018, McFarland followed a 19-year-old woman who worked in the
hospital unit housing the sexually violent predators into a hallway off limits to inmates,
pushed her against a wall, and tried to kiss her. The woman blocked those attempts with
her arms. Within a minute or two, another inmate passed by the hallway, saw what was
happening, and physically restrained McFarland.
The State charged McFarland with one count of aggravated sexual battery, a
severity level 5 person felony violation of K.S.A. 2017 Supp. 21-5505(b)(1). The State
had to prove McFarland touched the woman without her consent "to arouse or satisfy
[his] sexual desires" and relied on "force or fear" to overcome her resistance. K.S.A. 2017
Supp. 21-5505(b)(1). A jury heard the case in January 2019 and convicted McFarland.
The district court later sentenced McFarland to serve 200 months in prison, reflecting a
downward durational departure from the presumptive guidelines range of 228 to 256
months.
The State's evidence presented during the trial included:
⦁ A security videotape showed S.C., the female employee, walking down a
corridor and turning onto the staff-only corridor. McFarland then follows S.C. into the
restricted area. The video shows the inmate who stopped the attack entering that area
shortly afterward. The restricted corridor was not monitored with a video camera.
⦁ S.C. testified and described McFarland's assault. Suffice it to say that S.C.
recounted an attack that met the legal definition of aggravated sexual battery.
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⦁ Another inmate in the sexually violent predator (SVP) program testified that
before the May 2018 incident, he had a conversation with McFarland in which
McFarland outlined sexual desires for S.C. consistent with the attack.
⦁ After the incident, a hospital security officer questioned McFarland about what
happened. The security officer testified that McFarland admitted going into the restricted
area and trying to kiss S.C.
⦁ Directly pertinent to McFarland's point on appeal, another inmate in the SVP
program testified that he received a handwritten letter sent to him through the U.S. mail
about 10 days after the incident. At trial, the inmate identified the handwriting as
McFarland's. He told the jury he turned the letter and the accompanying envelope over to
a hospital employee. The return address on the envelope identifies McFarland as the
sender, and the letter is signed "Rusty." The letter discusses several topics, including the
incident with S.C. The description of the incident essentially includes an admission to
each element of the aggravated sexual battery charge. The district court admitted the
letter and envelope as an exhibit over McFarland's objection based on a lack of
foundation and an insufficient chain of custody.
The SVP inmate who intervened and stopped McFarland's assault of S.C. was not
called as a witness during the trial. McFarland did not testify in his own defense and
offered no other evidence.
LEGAL ANALYSIS
For his only issue on appeal, McFarland contends the district court erred in
admitting the letter he wrote to his fellow SVP inmate that included a description of his
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sexual assault of S.C. He says the error deprived him of a fair trial. As we have already
indicated, we find the argument unavailing in each respect.
As a general matter, a district court's decision to admit otherwise relevant physical
evidence, such as a document, over an objection based on foundation entails an exercise
of judicial discretion. See State v. Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d 680 (2013);
Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002). And
those calls will be reviewed on appeal for abuse of that broad authority. A district court
exceeds that discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State
v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011).
A writing such as McFarland's letter must be authenticated before it can be
admitted as evidence. K.S.A. 60-464. Authentication requires proof that the writing is
what it purports to be. The threshold showing for admissibility is minimal and may be
satisfied with circumstantial or direct evidence. Anything beyond that threshold goes to
the weight a fact-finder may accord the writing rather than its admissibility as an exhibit.
See State v. Robinson, 303 Kan. 11, 225-26, 363 P.3d 875 (2015).
In a rough sense, there are two components to the authentication of the letter. First
is authorship. That is, the State must offer some evidence indicating McFarland wrote the
letter. And second, the State has to show that when the letter was introduced at trial, it
remained in substantially the same condition as when it was received. Authorship of the
letter was not disputed at trial or on appeal. There was, in any event, sufficient evidence
on that score. The recipient testified he was familiar with McFarland's handwriting and
the letter looked to be his penmanship. See In re Estate of Field, 55 Kan. App. 2d 315,
322, 414 P.3d 1217 (2018). The return address indicated the letter came from McFarland.
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On the second component, the prosecutor may not have done a stellar job of
establishing the letter remained in substantially the same condition, but the effort was
enough to clear the minimal hurdle for admissibility. The SVP inmate to whom
McFarland wrote identified the letter as what he received and further testified it was
"consistent" with other letters he had received. The inmate said he turned the letter over
to an employee of the hospital. That employee testified during the trial and told the jurors
she obtained the letter from the inmate. She explained that she placed the letter in an
evidence bag and then sealed and initialed the bag. The employee testified that the letter
appeared to be in the same condition as when she received it. All of that provides a
sufficient foundation to admit the letter as a trial exhibit. The district court did not abuse
its discretion in doing so.
McFarland's objection was couched in terms of foundation and chain of custody.
But the State had no obligation to establish an unbroken "chain" of custody in the sense
of producing as witnesses every government employee or agent who had initialed the
evidence bag or had handled the letter. The testimony from the inmate to whom
McFarland mailed the letter and from the hospital employee who then took custody of it
adequately established the letter had not been altered in some material way. That's
sufficient to furnish the evidentiary foundation to admit the letter as an exhibit. The
jurors, as the finders of fact, had the prerogative to give that testimony and the letter itself
whatever weight they felt the evidence deserved in assessing McFarland's guilt or
innocence.
Assuming for the sake of argument the district court erred in admitting the letter as
an exhibit, the error would not require reversal of McFarland's conviction if it were
otherwise harmless. We assess harmlessness under the standards set out in Ward, 292
Kan. 541, Syl. ¶ 6, for constitutional and nonconstitutional errors. The wrongful
admission or exclusion of evidence typically creates a nonconstitutional error. See State
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v. Broxton, 311 Kan. 357, 366, 461 P.3d 54 (2020) (erroneous exclusion of evidence);
State v. Torres, 294 Kan. 135, 143-44, 273 P.3d 729 (2012) (erroneous admission of
evidence). That's true here. Accordingly, the State, as the party benefiting from the error,
has to show there was no reasonable probability the wrongfully admitted evidence
affected the outcome of the trial in light of the record as a whole. Broxton, 311 Kan. at
366; Ward, 292 Kan. 541, Syl. ¶ 6.
Measured on that scale, the content of the letter did not so shift the weight of
evidence that we are persuaded there was a reasonable possibility, let alone a probability,
of a not guilty verdict had it been excluded. McFarland's statements in the letter were
duplicative of what he told his fellow inmate before he assaulted S.C. and what he told
the investigator afterward. Perhaps even more significantly, S.C.'s testimony describing
the attack established each element of the aggravated sexual battery charge. And the
jurors had no demonstrable reason to disregard S.C.'s account—an account that squared
with McFarland's other representations about what he intended to do and then did. Any
error would have been harmless.
Affirmed.
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