An attorney for a Wichita man convicted in 2012 of raping and trafficking a 13-year-old girl told the Kansas Court of Appeals on Tuesday that his client’s convictions should be reversed because the trial judge stated the girl’s age in one of the jury instructions.
Attorney Randall Hodgkinson argued that because the teen was allowed to give her own age during the trial of Donald L. Davis – testimony which he argued was hearsay, since the girl has no firsthand knowledge of her own birth – and because the judge then reiterated her age in the instruction, it stripped jurors of their responsibility to decide for itself whether the girl’s age met the requirements for prosecution under the state’s aggravated human trafficking law.
He also argued that since the age was listed in one instruction, all of the instructions were tainted.
Davis, 51, is serving life in prison under Kansas’ version of Jessica’s Law on three rape convictions and three aggravated human trafficking convictions for having sex with and pimping out a 13-year-old runaway. The girl’s age was among elements focused on at trial because she testified that she told Davis and another man she was older.
“The problem is that we have pointed out is that the instruction in this case essentially told the jury that the complaining witness ... was 13 years old,” Hodgkinson told the three-judge panel, which heard six appeals Tuesday at before students at Wichita State University in honor of U.S. Constitution Observation Day.
“And it is our position that that essentially removed that essential element from the decision of the jury. And that’s improper. It violates Mr. Davis’ right to a jury trial on that essential element.”
Sedgwick County Assistant District Attorney Matt Maloney, who represented the state, disagreed, saying that the girl’s age was listed as part of a written summary of elements that had to be proven by the state during trial.
“There’s no way to give an element’s instruction without listing the elements, and that’s all it did in this case,” Maloney said. “The fact that it specified the age that the state alleged instead of just saying (the victim was) ‘under 18’ doesn’t change the equation at all.”
The court, he added, can only reverse Davis’ conviction “if it’s clearly convinced that the jury would’ve reached a different verdict because of the alleged error.”
Judges David Bruns, G. Joseph Pierron Jr. and Anthony Powell heard appeals in six cases from Finney, Ford, Sedgwick and Stanton counties on Tuesday. Davis’s appeal and that of Nelson Glover, who was convicted in the 2011 strangulation and beating of 47-year-old John Tolliver, were from Sedgwick County.
The court is expected to issue written rulings in the appeals in about 60 days.
According to the Kansas state Office of Judicial Administration, Davis’ attorney raised four arguments in his appeal: that the jury should have decided the girl’s age, that the District Court was wrong to admit hearsay evidence of the girl’s age, that the district county improperly excluded some evidence, and that Kansas’ aggravated human trafficking law is unconstitutional.
The judges at times seemed skeptical of Hodgkinson’s arguments regarding the girl stating her age to the jury, and they challenged his arguments.
“You’re saying that testimony about her own age was hearsay?” Pierron asked.
“Unless she has personal knowledge of it, yes,” Hodgkinson said.
“What, do you have to bring your mother to testify as to your age? Don’t you think an individual is competent to testify as to their age?”
The judges also pointed out that a classmate of the girl’s and a police officer testified about the 13-year-old’s age at trial.
Hodgkinson responded by arguing that a person learns about his or her birth through means such as the word of a family member or seeing a birth certificate, and has no personal memory of the event. That, he said, makes a person’s testimony of his or her own age hearsay.
“But isn’t all knowledge almost hearsay then? All history, therefore, is hearsay?” Pierron asked.
“I think unless you have personal knowledge – and I know you don’t – then you are relating” someone else’s statements, he replied.
Maloney, the prosecutor, in his arguments pointed out that while the defense objected to the instructions at trial, it was a vague, general objection that did not take issue with the listing of the girl’s age.
“It’s really a silly argument that someone testifying about their own age is not within their personal knowledge,” Maloney said.
“I think society operates just fine on the theory that people are, in fact, the best source of knowledge with respect to their own age.”
A few dozen Wichita State students attended Davis’ appeal, which began at 1:30 p.m. and ran for about 30 minutes. Attorneys each had 15 minutes for arguments.