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Click here for the full text of this decision FACTS:William Richard Chapman Jr. was charged with aggravated sexual assault of his 6-year-old stepdaughter, K.M.F. The first trial ended in a mistrial when, at 6:00 on a Friday, the jury indicated it was deadlocked at 8-4. Before the second trial, the trial court held a hearing to determine if K.M.F.’s mother, Katina, or her grandfather, Clarence, would be allowed to testify as an outcry witness. Katina said that sometime between late March and late May of 2001, K.M.F.’s brother told her that Chapman had been “freaking” on K.M.F., and K.M.F. said that Chapman had called her into the back room of their house, put lotion on his “private part” and tried to stick it in her “behind.” Katina said she thought she was the first adult K.M.F. told about the incident. Clarence said that when he was taking K.M.F. and her brother to Kansas City for spring break between April 3 and April 5, 2001, that the brother again said Chapman had been “freaking” K.M.F., and K.M.F. said that Chapman had been “freaking on me and my sister.” She stated that Chapman had used his penis. She also told Clarence that she had told Katina “awhile back” or “a few days ago” about what happened. The trial court designated Clarence as the outcry witness because he could recall a certain date that K.M.F. told him about the offense. Clarence testified at trial, as did K.M.F.’s father, Raytwan Grayson. Raytwan testified that when K.M.F. told him the news, she was upset and crying. Raytwan said that he called Katina, as well as a child abuse hotline and the police. Chapman was convicted. At the punishment phase, Katina testified as the outcry witness. During her testimony, she explained that Chapman had also abused K.M.F.’s older sister, who has cerebral palsy and can communicate only through gestures and nods. She said that when she asked the sister if Chapman had ever done anything to her sexually, the sister nodded “yes.” Chapman was sentenced to 88 years in prison. On appeal, Chapman complains about the trial court’s sua sponte declaration of a mistrial, of Clarence’s testimony as the outcry witness, of Raytwan’s testimony, and of Katina’s testimony in the punishment phase. HOLDING:Affirmed in part; reversed and remanded in part. The court first finds that the trial court’s declaration of a mistrial was warranted. Thought Chapman complains that the jury deliberated at night, the court finds no authority prohibiting such deliberations. Furthermore, there is no indication that the nighttime deliberations prompted the mistrial. Instead, the jury twice indicated it was deadlocked, and the trial court ordered the mistrial for that reason. The court agrees with Chapman that Clarence should not have been allowed to testify as the outcry witness on the charged offense. There is no requirement under the outcry witness statute that the witness who can name a date certain is the one to be designated as the outcry witness. Clarence’s own testimony confirms that it was Katina who first heard K.M.F.’s allegations since he said K.M.F. said she’d told Katina “awhile back” or “a few days ago.” Nonetheless, the court finds the error was harmless. K.M.F. testified without objection about the offense. A pediatrician testified from the report he worked up on K.M.F. shortly after the spring break trip, where she revealed Chapman had been abusing her. The court adds that even if Clarence’s testimony had been excluded, the jury still could have concluded that he believed K.M.F. because he immediately called Raytwan and made sure the proper authorities were notified. The court rejects Chapman’s contention that Raytwan was allowed to testify as an outcry witness. The court points out that Raytwan’s testimony was not about the offense, but about what K.M.F. was like when she told him the news, and what he did in response to hearing the news. The court, therefore, affirms Chapman’s conviction. The court, however, reverses the punishment, finding the admission of Katina’s evidence about the extraneous offense allegedly committed against K.M.F.’s sister to be erroneous. Because the testimony was not about the charged offense, the trial court erred in designating it as outcry testimony. The error was not harmless, either, the court concludes. It was not cumulative of other evidence, as the trial court precluded mention of the same offenses during the guilt/innocence phase. The prosecution made reference to the incidents during its closing arguments during the punishment phase. Combined with the medical testimony offered, the court opines that the jury may have considered a harsh sentence to be appropriate for someone who committed aggravated assault against K.M.F., and who also sexually assaulted a child with cerebral palsy. OPINION:Charles W. Seymore, J.; Fowler, Edelman and Seymore, JJ.

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