First issue for appeal
The first involved whether the district court violated Herbel’s constitutional and statutory rights when it replayed his recorded statement to a deliberating jury outside of his presence, but in the courtroom.
The higher court ruled it did, but was a harmless error.
According to the higher courts ruling, the argument that the district court violated the defendant’s Sixth Amendment right to confront his accuser and therefore violated his 14th Amendment right to a fair trial cannot be considered for the first time on appeal.
The higher court further stated that the error is harmless only if the State proves beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record, adding there is no reasonable possibility that it contributed to the verdict.
Herbel’s argument was that the replaying of the DVD to the deliberating jury in the courtroom and outside of his presence violated his Sixth Amendment and Kansas statute to be present at every “critical” stage of his criminal trial.
He also said this includes the right to be present whenever the court communicated with the jury.
Second issue for appeal
Herbel, through his attorney, also questioned if the lower court erred when it allowed the 5-year-old victim to testify with a “comfort person” alongside her.
The higher court ruled there was no injury to his case based on the presence of a teddy bear in front of her.
However, Herbel’s attorney argued that jurors were going to have some sympathy for her.
He further argued on appeal that the trial court harmfully failed to make any inquiry about the necessity of a comfort person and therefore failed to make findings supporting the need.
But, according to the higher court’s decision, Herbel’s own repeated failures to raise the issue to the trial court before the jury’s verdict demonstrates that he and his counsel obviously saw no reason to question the comfort person’s presence on the stand.
It was further stated he would require the trial court to act on the issue, invite the presentation of evidence, make the fact-based determinations of necessity, nonnecessity, and then rule on the issue.
“Our case law suggests this is not the trial court’s responsibility,” the court stated.
Third issue for appeal
The final issue for appeal involved whether the lower court’s jury instruction on reasonable dout legally inappropriate.
The higher court ruled, no, and accordingly affirmed Herbel’s conviction.
Citing its decision, the court needed to first determine if the reasonable doubt instruction was legally and factually appropriate.
Based on opinions and language cited by Herbel, along with other points of law, the court ruled against him.
Herbel was sentenced to two life terms after being found guilty of rape and aggravated indecent liberties with a child.
He is currently serving a mandatory minimum of 25 years on each count.
Both offenses are considered off-grid felonies under Jessica’s Law, which was signed into Kansas law in 2006 and imposes a 25-year sentence for adults convicted of a violent sex crime against a child. A second conviction triggers a 40-year-term and a third results in life without parole.