August 14th. The Kansas Supreme Court has issued its decision in State v. Morningstar (No. 99,788) an appeal arising from a child abuse prosecution. In a unanimous opinion, written by Justice Dan Biles, the Court upheld the conviction of Gary Morningstar for the rape of his six-month old daughter but vacated his Jessica’s Law sentence, in accordance with the recent precedent in State v. Bello.
The background to this case is revolting and covered in the Court’s opinion which is linked here and for this reason we see no reason to repeat it in this entry. Suffice to say that the abuse Morningstar inflicted on his daughter resulted in her hospitalization and was described by a nurse who had been involved in 188 previous sex abuse cases, as the worst trauma to a child she had ever seen.
Morningstar raised three issues. The first two concerned the State’s not having presented evidence to the jury that Morningstar was over 18 which the Court has held is a required element of the automatic life without parole for 25 years sentence under Jessica’s Law. Morningstar argued that because of this his conviction should be vacated. The Court rejected this argument, holding that the lack of evidence presented concerning his age did not mean that the crime had not happened, merely that a different sentencing regime must take effect. Therefore, Morningstar succeeded on his second point, that the Jessica’s Law sentence be vacated and he be remanded for resentencing under the Sentencing Guidelines.
Morningstar’s final argument was that the prosecutor engaged in misconduct with comments he made to the Jury about how Morningstar had left the baby lying in the bath after she had sustained her injuries while he made a telephone call to his wife. The Court rejected this argument finding that the prosecutor’s comments were acceptable and that even if they had not been they would still not have risen to the level of misconduct since they were supported by substantial evidence and therefore did not prejudice his defense.
Morningstar’s original sentence was vacated and the case remanded for resentencing. He will therefore receive a more lenient sentence under the Kansas Sentencing Guidelines.