Opinion
No. 109,165.
2015-03-6
STATE of Kansas, Appellee, v. David Lawrence SMITH, Appellant.
Appeal from Atchison District Court; Martin J. Asher, Judge.Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant.Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Martin J. Asher, Judge.
Robert D. Campbell, of Campbell Law Office, P.A., of Atchison, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., POWELL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
POWELL, J.
David Lawrence Smith appeals from his convictions of one count of aggravated indecent liberties with a child under 14 years of age and two counts of aggravated indecent liberties with a child over 14 years of age but less than 16 years of age. Smith alleges the district court committed reversible error by: (1) admitting a photograph of a latch on the victim's brothers' bedroom door; (2) denying his motions for a new trial; (3) responding to two jury questions in writing; (4) failing to include in the jury instructions the element for aggravated indecent liberties that the defendant must be over the age of 18; (5) using a special question on the verdict form; (6) imposing a life sentence which is categorically disproportionate in violation of the Eighth Amendment to the United States Constitution; (7) designating his pre-KSGA in-state and out-of-state convictions as person felonies; and (8) using his criminal history to increase his sentence. Because the district court improperly classified Smith's pre-KSGA out-of-state conviction as a person felony, we must vacate Smith's sentence and remand for resentencing, but we affirm Smith's convictions and the district court in all other respects.
Factual and Procedural History
On July 23, 2011, a woman named Amanda contacted the Atchison County Sheriff's Department to request a civil standby while she helped her sister, Gayla Robinson, and Robinson's children move out of a residence in that county. Two officers, Undersheriff Larry Myer and Sergeant Jeremy Peak, accompanied Robinson's two sisters and their husbands to Robinson's residence. Robinson and her four children lived with her boyfriend, Smith.
When the parties arrived at the residence, Robinson was outside with her three sons working on and cleaning an air conditioner unit. The home's main air conditioner had broken, and they had installed a window air conditioner in Robinson and Smith's bedroom earlier that day. Once the window unit was installed, Smith went into the bedroom to lie down. Robinson testified she and her daughter, B.N.M ., also went into the bedroom to lie down. Smith was naked but had a blanket over him up to his waist. Robinson testified it was normal for him to sleep without clothes. Robinson claimed Smith then sent her outside to work with the boys on the other air conditioner so they could install it in the boys' bedroom. Smith denied telling Robinson to leave; he claimed he had gone to sleep and did not know B.N.M was in the room with him. B.N.M. testified she was watching a movie and Smith was sleeping.
Outside, Robinson told the officers things were bad between her and Smith so she needed to leave and go back to Arkansas with her sisters. Robinson had not told Smith she was planning on leaving as she was afraid to tell him because he had a bad temper and would hit her and her children.
Robinson indicated to the officers that Smith was inside the residence taking a nap. The officers knocked on the front door, but no one answered. Robinson then gave them permission to go inside and told them Smith was in their bedroom. Myer knocked on the bedroom door, and it swung open. He saw Smith lying on his side naked on the bed with a blanket only draped over his calves and upper thigh. B.N.M. was also on the bed next to Smith. Myer testified he saw B.N.M.'s arm on Smith down around the lower part of his stomach or groin area. B.N.M. testified her hand was on his side. B.N.M. jumped off the bed and out of the bedroom. As she walked by Peak, he asked if she was ok and B.N.M. shook his hand and said thank you.
Smith got dressed, and the officers told him Robinson and the children were going to leave. Smith was cooperative and gave Robinson a truck to transport her belongings. After loading the truck, Robinson, her four children, Robinson's sisters and their husbands, and Smith all went to the sheriff's office. B.N.M. rode to the office with her Aunt Amanda and Amanda's husband.
Myer interviewed B.N.M., who told him Smith had been sexually abusing her since she was age 7. She told Myer that since moving to Kansas in September 2010, Smith would send her mother and brothers outside, then he would sit on the couch or a chair, have her remove her clothes, bend over, and would insert his fingers in her vagina. He would also remove her shirt and bra and rub her breasts. She said it had occurred 15 to 20 times from September 2010 through July 2011, although she did not identify any specific dates. She told them the last time it had occurred was 2 or 3 weeks prior to the police coming on July 23, 2011. She said she had not told anyone because she was scared Smith would hurt her or her brothers. Myer called the University of Kansas Hospital, which advised that a medical examination of B.N.M. was not needed because she said sexual contact had not occurred for weeks.
During the trial, B.N.M. testified she had turned 14 years old on February 22, 2011, and sexual contact with Smith had occurred several times in the year before and after her birthday. Before trial, B.N.M. had not given any specific dates of when the sexual abuse occurred; however, at trial she said she remembered two specific dates. B.N.M. testified that on Father's Day, June 19, 2011, Smith sent Robinson and B.N.M.'s three brothers out to take care of the dogs. He then sat on the edge of the couch and made B.N .M. pull down her pants; he put her hand on his penis and inserted his fingers into her vagina. She testified the same thing happened on July 10, 2011, Smith's birthday. She did not give other specific dates or number of times other incidents occurred, but she claimed sexual contact occurred multiple times while she was 13 years old and multiple times between February and June 2011 when she was 14. She testified the sexual encounters were always the same.
B.N.M claimed no sexual contact occurred on the day Myer and Peak were in the home, and Smith was not charged with anything related to that date. B.N.M. testified she had never told anyone about the sexual contact because she was afraid of Smith and was afraid he would hit her, her brothers, or her mother because he had done so before. In December 2010, an SRS worker visited B.N.M. and her family, and B.N.M. told the worker she was not afraid of Smith. B.N.M. never mentioned any sexual abuse.
The defense introduced two birthday cards and one Father's Day card into evidence through Robinson. One of the birthday cards was to Smith from B.N.M. and her siblings. Inside, B.N.M. wrote: “Happy birthday, Dad. I hope you have the best 52nd birthday ever and hope you get everything you want and wish for. You mean so much to me, Dad. I love you with all my heart. I love you always.” In the Father's Day card, B.N.M. wrote: “Happy Father's Day. I love you. Hope you have the best Father's Day ever. I love you with all my heart.” B.N.M. acknowledged that while she had written that she loved Smith, she was angry and upset about the sexual contact and she did not love him or want to be with him. Smith denied having sexual contact with B.N.M., and he denied ever threatening her or that she was afraid of him. On February 15, 2012, the jury found Smith not guilty of three counts of rape and guilty of three counts of aggravated indecent liberties with a child.
On February 22, 2012, Smith's trial attorney, John Kurth, filed a motion for new trial and judgment of acquittal. On April 2, 2012, Smith filed a pro se motion for new trial and judgment of acquittal for misrepresentation of counsel. On April 5, 2012, Kurth filed a second motion for a new trial or judgment of acquittal. In his pro se motion for new trial, Smith alleged ineffective assistance of counsel of Kurth, so the court appointed a new defense attorney, J. Phillip Crawford.
Crawford filed another motion for new trial and a motion for judgment of acquittal on July 3, 2012. Crawford also filed an objection to the presentence investigation report and a motion to declare the hard 25 life sentence under K.S.A.2010 Supp. 21–4643 unconstitutional. The district court held an evidentiary hearing on July 12, 2012, at which it addressed all the filed motions for new trial. Kurth and Smith testified. The district court denied Smith a new trial.
On August 2, 2012, Smith filed a pro se motion to vacate his convictions and a motion alleging ineffective assistance from Crawford, asking the district court to dismiss Crawford and to allow Smith to represent himself. Smith waived his right to counsel and filed a pro se motion for judgment of acquittal on September 6, 2012. On September 10, 2012, Smith filed another pro se motion for new trial and then on September 20, 2012, Smith filed a second pro se motion for new trial or acquittal and a motion objecting to his presentence investigation report. On September 20, 2012, the district court denied Smith's pro se motions for new trial and judgment of acquittal and sentenced him to life plus 154 months in prison.
Smith timely appeals.
Did the District Court Err by Admitting a Photograph of B.N.M.'s Brothers' Bedroom Door into Evidence?
On redirect examination of Myer, the State submitted additional pictures of the interior of Robinson and Smith's home. Two pictures were of the second bedroom where Robinson's three boys slept. The first picture, State's Exhibit 8, showed the interior of the room and a latch on the door. The second picture, State's Exhibit 9, was a close-up of the outside of the bedroom door with the latch hooked to the wall. Smith told Myer he put the lock on the outside of the door so that the boys could not get up in the middle of the night to eat. Robinson explained they had problems with the boys getting food from the kitchen, especially one of the boys who was diabetic and had eaten food that caused medical problems related to his diabetes.
Defense counsel did not object to the admission of State's Exhibit 8 but did object to the admission of the second picture, State's Exhibit 9, claiming it was not relevant. The court overruled the objection because the photograph showed the interior of the house. After the conclusion of the State's case-in-chief, defense counsel renewed his objection to State's Exhibit 9, arguing the picture and the testimony about it were highly inflammatory and prejudicial. The objection was again overruled. On appeal, Smith argues the district court erred by admitting the picture of the latch because it was irrelevant and prejudicial.
Multiple inquiries are involved when the admission or exclusion of evidence is challenged on appeal. The court must determine whether the evidence was relevant. Generally, all relevant evidence is admissible. K.S.A. 60–407(f). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60–401(b). This definition encompasses two elements: a materiality element and a probative element. Standards of review for each element vary. A fact is material if it “has a legitimate and effective bearing on the decision of the case and is in dispute.” State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). Review for materiality is de novo. State v. Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 (2013). “Evidence is probative if it has any tendency to prove any material fact.” Stafford, 296 Kan. at 43, 290 P.3d 562. We review the district court's assessment of the probative value of evidence under an abuse of discretion standard. Ultreras, 296 Kan. at 857, 295 P.3d 1020.
Smith argues the presence of a latch on the outside of the boys' bedroom door had no tendency to prove any material fact because Smith was not charged with acts involving B.N.M.'s brothers. The State argues the picture was relevant because it showed the inside of the house where the alleged sexual abuse of B.N.M. occurred. However, B.N.M. testified the sexual abuse occurred in the living room or Smith and Robinson's bedroom. We agree it was relevant for the State to show the jury the inside of the home as it related to where the alleged sexual abuse occurred, but a close-up picture of B .N.M.'s brothers' bedroom door had no tendency to prove any material fact related to the charges. Therefore, we must conclude the district court erred by admitting the picture, State's Exhibit 9.
However, an
“erroneous admission of evidence is subject to review for harmless error. See K.S.A. 60–261. The harmless-error analysis under K.S.A. 60–261 ... requires [the court] to determine whether there is a reasonable probability that the error affected the outcome of the trial in light of the entire record. [Citation omitted.] ... [T]he party benefitting from the error bears the burden of establishing the error was harmless.” State v. Greene, 299 Kan. 1087, 1095–96, 329 P.3d 450 (2014).
Smith argues the admission affected the outcome of the trial because the photograph suggested to the jury that he mistreated B.N.M.'s brothers, leading to the inference that he was the type of person who would mistreat and sexually abuse B.N.M. The State argues that regardless of whether the district court had admitted the picture, it was only one piece of evidence among many concerning the children's fear of Smith, and the main issue at trial concerned the credibility of B.N.M. and Smith. We must agree with the State.
First, State's Exhibit 9 was not the only photograph showing the latch on the outside of the boys' bedroom door. The latch was visible in State's Exhibit 8—the photograph of the inside of the boys' bedroom—and Smith did not object to its admission. Although the latch was not as prominent in State's Exhibit 8 as it was in State's Exhibit 9, the jury still had the opportunity to see the latch on the door even if State's Exhibit 9 had not been admitted.
Second, the picture of the hook and latch and the discussion of why it was there may have raised concerns in the jurors' minds about Smith's parenting techniques, but there was ample evidence introduced regarding Smith's temper and propensity to hit B.N.M., her brothers, and her mother. B.N.M. testified she did not tell anyone about the sexual abuse because she was scared of Smith and afraid he might hurt her brothers or her mother if she told. She stated Smith had hit her brothers before, and her mother testified she was afraid to tell Smith that she and the children were leaving him because he had a bad temper and had hit her and her children.
We conclude there is no reasonable probability that the outcome of the trial would have been different without the admission of State's Exhibit 9, and the admission of State's Exhibit 9 was harmless error.
Did the District Court Err by Denying Smith's Motions for New Trial?
After the trial, Kurth filed a timely motion for new trial. Subsequently, Smith filed his own pro se motion for new trial, which was untimely as it was filed beyond the 14–day time limit. Kurth then filed an untimely second motion for a new trial. After the court appointed Smith new counsel, Crawford filed an untimely motion for a new trial. The district court held an evidentiary hearing to address all the motions. Because the motions alleged Kurth provided ineffective assistance of counsel during the trial, both Kurth and Smith testified. The district court made findings of fact on the record and denied Smith a new trial. Smith's motions can be effectively be divided into two groups: the first dealing with his allegations of ineffective assistance of counsel, and the second asserting two trial errors committed by the district court. a. Does this court have jurisdiction over issues raised in untimely motions for new trial?
Before we address of the merits of the numerous motions for a new trial, we are constrained to initially note that neither party nor the district court raised the issue of whether the district court had jurisdiction to review the issues raised in Kurth's, Smith's, and Crawford's motions for a new trial filed outside the 14–day time limit as contained in K.S.A.2014 Supp. 22–3501. We have a duty to raise jurisdictional questions sua sponte. State v. Williams, 298 Kan. 1075, 1080, 319 P.3d 528 (2014) (citing State v. Berreth, 294 Kan. 98, 117, 273 P.3d 752 [2012] ). Because a question surrounding jurisdiction is one of law, we exercise unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966, 130 S.Ct. 3410, 177 L.Ed.2d 326 (2010).
Under differing circumstances, appellate courts have taken various approaches towards addressing untimely motions for new trial, but under State v. Kirby, 272 Kan. 1170, 1193–94, 39 P.3d 1 (2002), the most recent Supreme Court case addressing the issue, an untimely motion for a new trial based on ineffective assistance of counsel may be construed as a motion for postconviction relief. See also State v. Kingsley, 252 Kan. 761, 765–66, 851 P.2d 370 (1993) (untimely pro se motion for new trial on basis of ineffective assistance of counsel construed as postconviction motion for relief). Because all but one of the untimely motions for a new trial asserted ineffective assistance of counsel, the district court had jurisdiction over the merits of these claims, giving us appellate jurisdiction as well. Moreover, since the district court held an evidentiary hearing on the motions, the record is sufficiently complete for us to appropriately address Smith's claims. b. Standard of review
“The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. [Citation omitted.] Judicial discretion is abused only when no reasonable person would take the view of the district court. The party who asserts abuse of discretion bears the burden of showing it. [Citation omitted.]' “ State v. Fulton, 292 Kan. 642, 648, 256 P.3d 838 (2011) (quoting State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 [2007] ).
A judicial action constitutes an abuse of discretion if the action
“(1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
c. Did Kurth provide ineffective assistance of counsel?
Smith first argues the district court erred by finding his trial counsel did not provide ineffective assistance. He argues Kurth provided ineffective assistance of counsel because he: (1) failed to object to the admission of prior bad acts evidence; (2) did not strike a potential juror “for cause” even though she had worked directly with B.N.M. in school; (3) failed to submit a letter from B .N.M.'s Aunt Amanda into evidence; (4) failed to use two alleged prior inconsistent statements to impeach B.N.M.; (5) did not arrange for an independent psychological examination of B.N.M.; (6) did not request a change of venue; (7) failed to request and obtain copies of phone conversations between Smith and Robinson; and (8) did not request a continuance to consult with his client during trial when B .N.M. identified specific dates of the alleged sexual abuse.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). An appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009). If the district court made either an error of law or an error of fact in determining that Smith did not receive ineffective assistance of counsel, then it necessarily abused its discretion in denying his motion for new trial on that basis.
To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two elements. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, if the first element is shown, then the defendant must establish that counsel's deficient performance prejudiced the defense, meaning that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance is highly deferential and requires consideration of the totality of the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. 288 Kan. at 416, 204 P.3d 557. If counsel had made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. Strategic decisions made after a less than comprehensive investigation are reasonable to the extent a reasonable professional judgment supports the limitations on the investigation. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009) (quoting State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 [2004] ).
To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. In making such a determination, the reviewing court must consider all the evidence before the judge or jury. Harris, 288 Kan. at 416, 204 P.3d 557. i. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to make a contemporaneous objection to the admission of prior bad acts evidence?
Smith argues Kurth's performance fell below an objective standard of reasonableness because he did not contemporaneously object to the admission of evidence regarding uncharged bad acts. At trial, evidence referred to prior bad acts by Smith, such as hitting or beating B.N.M., her brothers, and her mother, as well as other allegations about incidents of possible abuse in different states.
During the hearing on Smith's motion for new trial, Kurth testified he did not lodge a contemporaneous objection to the prior bad acts evidence because he, Smith, and the prosecutor had discussed allegations and charges against Smith in different states but agreed they were going to focus on the allegations and events that occurred in Atchison County. Kurth knew before trial that the individuals testifying might mention these allegations of abuse and potential claims from other states, but he did not object because he did not want to draw attention to them. Instead, he chose to make a motion for mistrial and allow Smith to deny the prior bad acts when he testified. There was never a pretrial hearing to determine the admissibility of the prior bad acts evidence, but Kurth testified he and the prosecutor had a “gentlemen's agreement” that they would both attempt to keep witnesses from testifying about anything other than the Atchison County allegations.
Kurth told Smith of this agreement before trial. Smith testified Kurth told him the prosecutor agreed not to solicit evidence about allegations that Smith hit Robinson, B.N.M., and her brothers, that Smith kept food from them, or that he forced them to work without paying them. Smith had planned to testify, and Kurth claimed that decision was made and remained unaltered by the admission of the prior bad acts evidence during trial.
The district court ruled the better practice would have been to have a pretrial hearing rather than just a “gentleman's agreement.” However, it found that the evidence of prior abuse allegations and police contact was inevitably going to be brought in by the defense through witness testimony because the defense's strategy was to argue that B.N.M. had multiple opportunities throughout the years to report the abuse allegations to social workers or the police yet failed to do so. In fact, the defense's first two witnesses were workers from the State who met with the family to investigate allegations of abuse and offer the family services. Therefore, the fact that physical abuse allegations had been made against Smith in the past was required to explain why the social workers had contact with the family. The defense also needed to explain why B.N.M. had had multiple opportunities to tell the police. The evidence that Smith and Robinson had a stormy relationship and that law enforcement was sometimes used to keep the peace was needed for Smith's defense theory.
However, even if Kurth erred by failing to object, and even if the district court erred by allowing the evidence to be admitted, we conclude the errors were harmless. The district court analyzed how it might have ruled had the issue been brought up in a pretrial hearing. It found most of the prior bad acts evidence would have been admissible because it was relevant to the material issue of why B.N.M. was scared of Smith and why she did not tell anyone about the sexual abuse sooner. The testimony alleging prior bad acts, such as hitting B.N.M., was not discussed in great detail but was merely offered as an explanation of why B.N.M. was afraid. Moreover, the district court gave a prior-bad-acts limiting jury instruction despite the lack of a pretrial hearing and Kurth's failure to object during trial.
The record shows Kurth made a strategic decision not to object and thereby draw attention to the evidence of prior bad acts. Additionally, substantial competent evidence supported the district court's finding that the evidence would have been admissible even if Kurth had objected. The district court also gave a limiting instruction; therefore, it is unlikely the outcome would have changed even if Kurth had made contemporaneous objections. The district court did not abuse its discretion by denying this claim. ii. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to strike a potential juror for cause?
Second, Smith argues Kurth should have struck a potential juror for cause pursuant to K.S.A. 22–3410(2)(i) rather than waiting to strike her during peremptory strikes. This juror knew B.N.M. from working with her at school and stated she knew B.N.M. pretty well. The prosecutor asked the juror if she felt she could sit and listen to the case and decide it on the evidence; the juror answered she would try. The defense struck the potential juror from the jury during the peremptory challenges.
At the hearing on Smith's motion for new trial, Kurth explained he did not see a need to strike any potential juror for cause based on whether the juror knew B.N.M., Myer, himself, or any other participant if the juror believed he or she could be fair and impartial and not biased. In the end, Kurth did use peremptory strikes to remove several potential jurors who knew persons involved in the case, including the juror who knew B.N.M. Kurth claimed he discussed with Smith the potential jurors and which ones to peremptorily strike, but Smith claimed he did not have any say in whom to strike. Since the potential juror at issue thought she could be a fair juror even though she knew B.N.M., the district court ruled there would not have been grounds to strike her from the jury pool for cause. Therefore, Kurth did not err by waiting to strike her during peremptory strikes. Substantial competent evidence supported the district court's findings and conclusion of law. The district court did not err by denying this claim. iii. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to utilize a letter from B.N.M. to her Aunt Amanda during trial?
Third, Smith argues Kurth failed to use a letter B.N.M. wrote to her aunt to discredit B.N.M.'s statement that she was afraid of Smith. Before trial, Smith brought Kurth a letter B.N.M. wrote to Amanda. The letter referred to a time when Robinson, B.N.M., and her brothers had left Smith but then returned to live with him. The first part of the letter said it had been the children's idea to move back in with Smith, not Robinson's. Kurth testified he and Smith discussed presenting the letter at trial to discredit B.N.M.'s testimony that she was afraid of Smith; however, Kurth explained he did not use the letter because it discussed events in another state. Kurth said, “We didn't bring the letter in because it discussed other things we've already talked about and the fact that basically [B.N.M.] had already testified she was scared of him and that it was just kind of not the way it was.” Smith claimed he asked Kurth to introduce the letter into evidence at trial, but he never did. The letter was provided to the district court during the hearing but was not included in the record on appeal. Kurth said Smith thought the letter was important and wanted Kurth to talk to B.N.M. about it; however, Kurth said Smith never told him to try to submit the letter into evidence, nor did they ever specifically agree not to submit it during trial.
The district court denied all of Smith's various motions for new trial but did not make specific findings regarding this issue of the letter. Neither party objected nor requested the court make additional findings. When no such objection is made, we can presume the district court found all facts necessary to support its judgment. See Drach v. Bruce, 281 Kan. 1058, 1080, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278, 127 S.Ct. 1829, 167 L.Ed.2d 317 (2007). Generally, decisions of whether and how to conduct cross-examination of a witness are matters of trial strategy. Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008). Kurth testified he knew about and had read the letter, but he decided against using the letter during trial because it discussed other matters harmful to his client. Kurth's actions were not constitutionally deficient, and the district court correctly denied this claim. iv. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to use two prior inconsistent statements when cross-examining B.N.M.?
Fourth, Smith argues Kurth should have used two prior inconsistent statements made by B.N.M. when cross-examining her. Crawford identified an inconsistent statement B.N.M. made to Myer regarding whether Smith made her take off her own clothes or whether he took them off of her. Crawford also pointed out that B.N.M. testified Myer was the first person she told about the sexual abuse. However, in B.N.M.'s statement to Myer, she told him she told her Aunt Amanda and Amanda's husband about the sexual abuse in the car when they were driving from Smith's house to the police station where she reported the abuse to Myer. Kurth admitted he did not point out either of these prior inconsistent statements during trial.
Kurth testified he did not believe introducing the statements would have helped. He explained that both he and Smith knew B.N.M. had told her aunt and uncle about the sexual abuse before telling Myer, but it was unnecessary for him to clarify her statement during the trial because she would have merely explained Myer and Peak were the first police officers she told. Kurth claimed the decision whether to bring up a prior inconsistent statement was a matter of trial tactics.
Kurth also stated he and Smith decided not to have Amanda testify, despite the possibility it could reveal inconsistencies in B.N.M's statements, because Amanda's testimony would have been more harmful than helpful to Smith's defense. At the hearing on the motions for a new trial, Smith claimed Amanda was telling B.N.M. to lie about the sexual abuse in order to separate Robinson (Amanda's sister) and Smith. Smith testified he wanted Amanda to testify so she could be caught in her lies.
Again, the district court did not make specific findings regarding B.N.M.'s inconsistent statements and whether Amanda should have testified, and neither party objected nor requested the court make additional findings. Without an objection, we presume the district court found all facts necessary to support its denial of the claim. See Drach, 281 Kan. at 1080, 136 P.3d 390. The decisions of whether to call a witness or how to cross-examine a witness are matters of trial strategy. Wilkins, 286 Kan. at 982, 190 P.3d 957. Kurth testified he did not believe using these two inconsistent statements would have been helpful, and he decided not to have Amanda testify because it would have been harmful to Smith's defense. Kurth's representation was not constitutionally deficient; therefore, the district court did not err in denying this claim. v. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to set up a psychological examination of B.N.M.?
Fifth, Smith argues Kurth was ineffective because he failed to obtain a psychological evaluation of B.N.M., which he felt was critical as the State's case was based on B.N.M.'s testimony and her credibility was crucial. Smith claims learning more about B.N.M.'s understanding of veracity and whether she had other issues that would have impacted her credibility could have greatly aided his defense. The State disagrees and argues nothing in the case indicated that B.N.M. suffered from any mental defect or had an issue with truthfulness; therefore, it was reasonable for Kurth not to pursue the psychological examination.
Smith claimed he asked Kurth about the hearing held pursuant to State v. Gregg, 226 Kan. 481, Syl. ¶ 3, 602 P.2d 85 (1979), to determine whether the court would order B.N.M. to undergo a psychological examination and why an independent psychological examination of B.N.M. was never obtained. At the Gregg hearing, the district court found the facts of the case did not meet the factors described in Gregg meriting an order for a psychological examination. See 226 Kan. at 487–89, 602 P.2d 85. The district court refused to order B.N.M. to undergo the examination but advised the parties they could have a psychological examination of B.N.M. done on their own.
Kurth testified he obtained and reviewed school records and other records from Arkansas but did not find anything indicating B.N.M. had a mental deficiency or anything of that nature. Kurth also testified he did not feel the Gregg factors were met and there was a question about whether B.N.M.'s mother would consent to a psychological examination of B.N.M. After the Gregg hearing, Kurth and Smith discussed whether an examination would be done, but Kurth testified they “just didn't pursue it any further.” Kurth claimed he and Smith never had a specific agreement to ask for the psychological examination with the consent of all parties. According to Kurth, it became a nonissue. At the hearing on the motions for a new trial, Smith claimed Kurth never discussed the psychological evaluation with him after the Gregg hearing.
The district court found it was not ineffective assistance of counsel for Kurth not to pursue a psychological examination of B.N.M. after the Gregg hearing because the case facts were not even close to showing a need for the examination of B.N.M. Robinson would have needed to consent to the evaluation, which would have been logistically difficult since B.N.M. and Robinson were living in Arkansas. Smith fails to point to any specific evidence that would support his claim that a psychological examination would have revealed information so important it would have impacted B.N.M.'s credibility to the extent that the jury would have found him not guilty. The record supports the district court's findings of fact and conclusions of law. vi. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to request a change of venue?
Sixth, Smith claims Kurth should have requested a change in venue and was ineffective for not doing so. Before trial, Smith asked Kurth multiple times about changing the venue of the trial because he was concerned about the coverage of the case in the local newspaper and on the radio. Smith testified Kurth never explained why he believed the court would not grant a motion to change venue. Kurth testified he believed the court would not change the venue because the coverage in the newspapers and on the radio was nothing out of the ordinary and he felt the potential jury members questioned during voir dire had either not heard anything or, even if they had, had not formed an opinion as to Smith's guilt prior to hearing the evidence.
Kurth understood many people in the jury pool knew at least one of the police officers involved in the case, but he testified that was common in a small, rural county. Kurth explained that usually he asked each juror whether he or she could be fair and impartial despite knowing an individual involved in the case. During voir dire, no potential juror who knew one of the police officers said it would affect his or her ability to be fair. Kurth stated he never considered using the fact that potential jurors knew the police officers or others involved in the case as a reason to either request a change of venue or to strike the whole jury panel.
The district court found Kurth was not ineffective for failing to request a change of venue because mere publicity alone is insufficient to change venue. State v. Carr, 300 Kan. 1, 65–66, 331 P.3d 544 (2014) (quoting State v. Dunn, 243 Kan. 414, 424, 758 P.2d 718 [1988] ). Only 3 of the 36 potential jurors had heard about the case before trial, and there was no real danger Smith was not going to receive a fair trial due to publicity. All three of the potential jurors who had heard about the case through the press were struck during peremptory strikes by the defense. Since none of the individuals who actually sat on the jury had heard publicity about the case, it is clear the case was tried before a jury unaffected by publicity just as if venue had been changed. The district court correctly found this claim had no merit. vii. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by not requesting any recordings of phone calls between Smith and Robinson?
Seventh, Smith argues Kurth's failure to investigate whether phone calls between Robinson and Smith were recorded prohibited him from making an informed decision about whether Robinson's recorded statements could have been used to undermine B.N.M.'s credibility.
Before trial the prosecutor's office made Kurth aware of phone calls between Robinson and Smith while Smith was in jail. The prosecutor's office was concerned about the possibility of witness intimidation. Kurth advised Smith to stop talking to Robinson on the phone because the calls might be recorded. Smith indicated to Kurth that Robinson had told him she did not believe B.N.M.'s allegations and she felt intimidated by law enforcement to testify. Smith claimed he asked Kurth to request any recordings of his conversations with Robinson, but Kurth did not pursue it. Kurth admitted that if Robinson had felt she was being forced to testify, he could have discussed it with her during the trial, and he conceded it might have aided Smith. However, Kurth maintained he could not have asked Robinson to give her opinion on whether B.N.M. was telling the truth. Kurth testified he did not know whether phone calls to and from inmates at the Atchison jail were recorded and did not ask. He advised Smith not to talk to Robinson because he knew there was a possibility such phone calls were recorded.
Again, the district court did not make specific findings regarding this issue. But as neither party objected nor requested the court make additional findings, we presume the district court found all facts necessary to support its denial of the claim. See Drach, 281 Kan. at 1080, 136 P.3d 390.
In our view, Robinson's statements could not have been introduced at trial. First, Smith claims Robinson's alleged statements that she did not believe B.N.M.'s allegations could have been used to undermine B.N.M.'s credibility. However, “[a] witness may not express an opinion on the credibility of another witness [citations omitted] ... because the determination of the truthfulness of a witness is for the jury.” State v. Albright, 283 Kan. 418, 430–31, 153 P.3d 497 (2007). Second, Smith claims Robinson's alleged statements that she felt forced to testify may have helped Smith's defense by undermining B.N.M.'s credibility. It is unclear to us how Robinson's statements that she did not want to testify or felt forced to testify would have affected the jury's evaluation of B.N.M.'s credibility. The jury had the opportunity to see and hear B.N.M. testify and directly evaluate her credibility. We conclude the verdict would not have been different had Kurth further investigated the recorded phone calls. viii. Did the district court abuse its discretion in finding Kurth did not provide ineffective assistance of counsel by failing to request a continuance in order to consult with Smith when B.N.M. identified two specific dates of the sexual abuse for the first time during trial?
Eighth, Smith claims Kurth was ineffective for not seeking an immediate continuance when B.N.M. unexpectedly identified two specific dates of sexual abuse—Father's Day and Smith's birthday—for the first time during the trial. Smith argues Kurth should have asked for a continuance in order to confer with Smith about an alibi to refute B.N.M.'s allegations. After the trial, Kurth filed a second motion for a new trial, arguing the defense was not given additional time or the opportunity to investigate the dates even though he did not request a continuance during the trial. Kurth testified he did not ask whether Smith had an alibi for the specified days until after the trial. Smith testified that after the trial he told Kurth he was at the lake all day on his birthday, so there could not have been sexual contact between Smith and B.N.M. at their house.
Again, like a number of Smith's other ineffective assistance of counsel claims, the district court did not make specific findings regarding this issue, but neither party objected nor requested the court make additional findings. Without an objection, we presume the district court found all facts necessary to support its denial of the claim. See Drach, 281 Kan. at 1080, 136 P.3d 390.
Smith argues Kurth's failure to request a continuance prohibited him from obtaining a witness to support Smith's testimony that the whole family was at the lake, not at home, on Smith's birthday. We disagree. First, surprises happen during trials, and counsel is not obligated to immediately stop the proceedings because a surprise occurs. Second, Kurth had the opportunity to cross-examine the victim about her surprise recall of these dates, and Smith, during his testimony, directly refuted the allegation that sexual abuse occurred on his birthday. Third, Kurth had time before presenting the defense's case-in-chief to confer with Smith and prepare an appropriate response if one was available. Fourth, Smith fails to provide us with any witness who would, in fact, provide an alibi and substantiate his testimony that the family was camping at Centralia Lake on his birthday. Finally, B.N.M. testified on cross-examination that the abuse occurred after they returned from the lake, meaning that any alibi witness confirming Smith's testimony that the family was at the lake on his birthday would not have been helpful. Given this record, we are unpersuaded that counsel was ineffective on this point. d. Did the district court err by finding the admission of State's Exhibit 9 was not prejudicial and by finding it did not give the jury an improper initial instruction?
As we stated earlier, Smith's motions for a new trial were composed of two parts—one alleging ineffective assistance of counsel and one alleging the district court erred by: (1) admitting State's Exhibit 9 and (2) telling the jury, prior to opening arguments, that it hoped the jury would reach a verdict.
First, we have already determined the admission of State's Exhibit 9 (the photograph of B.N.M.'s brothers' bedroom door with hook and latch on the outside) was harmless error. The district court correctly rejected this argument.
Second, Smith takes issue with an initial instruction given by the district court to the jury before opening arguments. We note this contention was raised by Smith's second counsel, Crawford, in the July 3, 2013, motion for a new trial, which makes it untimely. Accordingly, we must deny it on that basis. However, even assuming the issue was timely raised, we still deny it on the merits.
After the jury had been selected, the judge explained the jurors' roles:
“[It] is really very simple in a way in that what we want you to do is just listen to the evidence, then determine the facts from that evidence, then apply the law that I will give you at the conclusion of the evidence and hopefully arrive at a verdict, so again your main thing is to pay close attention to what is testified to from the witness stand.”
Crawford's motion for a new trial argued the court implied to the jury that declaring a verdict was necessary and that a hung jury would not be acceptable. The district court rejected this argument. The instruction was given before opening arguments or any evidence was presented. The court did not see how a jury could feel compelled to reach a verdict after hearing that initial instruction.
Smith raises the issue again on appeal and argues the initial instruction was coercive. He cites to State v. Struzik, 269 Kan. 95, 103–12, 5 P.3d 502 (2000), in which the jury initially could not agree on a verdict after a weeklong trial. The district court allowed the jury to go home and return the next morning. That morning the court asked the jurors to make a good-faith effort and deliberate for 1 hour; if they decided they could not reach a unanimous verdict, then they would report that to the judge. One hour later, the jury returned with a unanimous verdict. Our Supreme Court found the judge's oral instruction limiting the deliberations to 1 hour was not coercive and did not pressure the jury into reaching a verdict; instead, “the judge was clear that the time limit was to prevent a prolonged attempt at fruitless deliberations.” 269 Kan. at 112, 5 P.3d 502.
This case is easily distinguishable from Struzik. In the present case, the district court stated the jury would “hopefully arrive at a verdict” at the beginning of the trial when it was explaining the general duties of the jury, before opening arguments, before any evidence was presented, and well before the jury actually received instructions and deliberated. The district court correctly ruled its statement during the initial instructions was not coercive. Because the district court correctly found Smith's arguments to be without merit, it did not abuse its discretion by denying the motion for new trial based on these arguments.
Did the District Court's Process in Answering the Jury's Questions During Deliberation Violate Smith's Statutory and Constitutional Rights?
Smith argues the process by which the district court responded to the jury's questions violated Smith's statutory and constitutional rights. He claims his statutory right in K.S.A. 22–3420(3) was violated because the jury did not receive the court's response in open court and in the presence of the defendant, and he claims his constitutional rights to be present at every critical stage of the trial, to a public trial, and to an impartial judge were violated. A claim that a defendant was deprived of his statutory and constitutional rights to be present during a portion of the trial raises legal questions that are subject to unlimited review on appeal. See State v. Engelhardt, 280 Kan. 113, 121, 119 P.3d 1148 (2005).
While deliberating, the jury sent a written request to the court seeking a copy of the investigating officers' reports. On the record in the courtroom, the court read the request to the parties and noted the appearances of the defendant, defense counsel, and the prosecutor. The court advised the parties of its proposed response to which neither party objected. The court responded: “No. You can only consider the evidence that has been admitted by the Court, Instruction No. 2.” The jury sent a second written question asking the court for the legal definition of “rape” and “aggravated indecent liberties with a child.” The court again noted the appearances of the defendant, defense counsel, and the prosecutor and proposed a response referring the jury to the given instructions. It stated: “Please see Instruction 8 through 13.” Neither Kurth nor the prosecutor objected to the response.
The record does not specify that the court's answers were written and delivered to the jury, but this court may assume as much since there is no record of the jury returning to the courtroom to have the court's answer read to it. While discussing the questions and responses on the record, the court did not directly ask Smith whether he agreed with the court's response or its method of delivery.
Before reaching the merits of Smith's argument, however, it is important to note Smith failed to object to the district court's written answers to the jury's questions and that he raises this issue for the first time on appeal. Smith also did not challenge the trial court's procedure in responding to the question in writing rather than calling the jury into the courtroom to communicate the answer. Generally, since issues not raised before the trial court cannot be raised for the first time on appeal, State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008), our review of this question would appear to be foreclosed. However, there are three recognized exceptions to this rule: “(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court is right for the wrong reason.” State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014).
Smith claims we may address this issue because it presents a purely legal question and involves Smith's fundamental right to a fair trial. The facts are not disputed; the issue involves the interpretation of a statute and constitutional rights, which are questions of law, and if there is an error that is not harmless, it would be determinative of the case. Therefore, we will review this issue for the first time on appeal. a. Did the district court violate Smith's statutory right?
Smith's statutory argument relies on K.S.A. 22–3420(3), which governed the trial court's procedures for answering questions from the jury:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
(NOTE: The legislature amended this statute as of July 1, 2014. See L.2014, ch. 102, sec. 7. The amendment occurred after all parties had submitted their briefs, and the parties have not argued the new statute is retroactive.)
“ ‘K.S.A. 22–3420(3) explicitly requires that any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is absent voluntarily.’ “ State v. King, 297 Kan. 955, 966, 305 P.3d 641 (2013) (quoting State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 [2000] ). The State concedes the court violated K.S.A. 22–3420(3) and should have had the jury return to the courtroom in order to read the court's response to each question in the presence of the defendant. However, the State argues the error was harmless which we will address below. b. Did the district court violate Smith's constitutional rights?
Smith also argues the district court violated three constitutional rights: (1) his right to be present at every critical stage of the trial; (2) his right to a public trial; and (3) his right to an impartial judge.
“Appellate arguments on a defendant's right to be present at every critical stage of his or her criminal trial raise an issue of law over which this court exercises unlimited review.” State v. Verser, 299 Kan. 776, 787, 326 P.3d 1046 (2014). Under both the United States Constitution and K.S.A. 22–3405, a criminal defendant has the right to be present at every critical stage of his or her trial. See State v. Herbel, 296 Kan. 1101, 1109, 299 P.3d 292 (2013). This right includes the right to be present for communications between the district court and the jury after the jury retires for deliberation. K.S.A. 22–3420(3); Herbel, 296 Kan. at 1107, 299 P.3d 292. Generally, a defendant may waive his or her right to be present, but the right is so “personal to him or her [that it] cannot be waived through the counsel, unless the defendant and counsel have previously discussed the matter and agreed upon the waiver.” Verser, 299 Kan. at 788, 326 P.3d 1046. The record does not indicate Smith personally, or through counsel, waived his right to be present. Smith was not present when the jury received the written communication from the court; therefore, Smith's right to be present at every critical stage of his trial was violated.
Next, Smith argues the district court's procedure violated his right to a public trial under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Smith's argument is again based on his contention that the communication with the jury was not effective until the jury received the written answer in the jury room. In this case, the judge read the jury questions on the record in the courtroom with both attorneys and the defendant present. The court decided on an answer to each of the jury's questions on the record which is now available to the public as part of the court file. The public was not present when the jury actually received the court's answer in the jury room, but jury deliberations are never open to the public. Under the facts of this case, we conclude Smith's constitutional right to a public trial was not violated. See State v. Womelsdorf, 47 Kan.App.2d 307, 325, 274 P.3d 662 (2012) (denying Womelsdorf's claim that court's written response to jury question violated her right to public trial), rev. denied 291 Kan. 1256 (2013).
Finally, Smith claims the district court's written communication with the jury violated his right to an impartial judge. Smith compares this case to State v. Brown, 362 N.J.Super. 180, 827 A.2d 346 (2003), where the jurors requested a readback of the victim's testimony. The Brown case was distinguished and this issue was discussed by another panel of this court in Womelsdorf, 47 Kan.App.2d at 323–24, 274 P.3d 662:
“During the jury's deliberations in Brown, the jurors requested a readback of the victim's testimony. Although the defendant objected, the district judge ordered that the readback occur in the jury room, with counsel present, but without the judge or the defendant present. Moreover, prior to the readback, the district judge went into the jury room with the jury but outside the presence of counsel and the defendant and instructed the jurors that they could take notes on the readback but not to discuss the readback in front of counsel.
“On appeal, the Superior Court of New Jersey, Appellate Division, held that the readback of testimony was a ‘critical stage of the criminal proceedings'; that a defendant has a right to be present; and that the readback must be conducted in open court, on the record, and under the supervision of the presiding judge. 362 N.J.Super. at 182, 188–89, 827 A.2d 346. The court stated that it found the readback to be a critical stage of the proceedings because ‘[i]t is furnishing [jurors] with information they need to decide the case.’ 362 N.J.Super. at 188–89, 827 A.2d 346. The court concluded that the district court denied the defendant his right to be present at the critical stage and, by barring the public, also denied the defendant his right to a public trial. 362 N.J.Super. at 189, 827 A.2d 346. Accordingly, the court reversed the defendant's convictions and remanded for a new trial. 362 N.J.Super. at 189–90.
“The result in Brown was based primarily on violations of the defendant's constitutional right to be present at each critical stage of the trial and also the right to a public trial, rather than on the defendant's constitutional right to an impartial judge. Moreover, the facts of Brown are clearly distinguishable from Womelsdorf's case. The Brown court determined that the readback was a critical stage of the proceeding because it furnished the jurors with information they needed to decide the case. Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial. As the State points out, there is a distinct difference between the lengthy process of a readback, which also necessarily involves the court reporter, and the process of delivering a short written answer to a jury question which does not provide additional information. Under the facts of this case, we conclude that the district court's procedure in responding to the jury question in writing did not violate Womelsdorf's constitutional right to an impartial judge.”
The facts of this case are similar to Womelsdorf and distinguishable from Brown. The written answers in this case did not provide the jury additional evidence and referred it back to the given jury instructions. We conclude the district court did not violate Smith's right to an impartial judge. c. Were the district court's violations of Smith's statutory and constitutional rights to be present at every critical stage of the trial harmless error?
“[A] violation of the right to be present is subject to the harmless error rule.” State v. Betts, 272 Kan. 369, 391, 33 P.3d 575 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006). When an error infringes upon a party's federal constitutional right, a court will declare a constitutional error harmless only when the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.3d 705, reh. denied 386 U.S. 987 [1967] ). Although the right to be present also implicates the violation of a statutory right, the constitutional harmless error test applies when violations of both statutory and constitutional rights arise out of the same acts or omissions. Herbel, 296 Kan. at 1110–11, 299 P.3d 292.
Here, there was no reasonable possibility the error contributed to the verdict. The district court's response to the jury question did not misstate the law or the evidence. Instead, the answer merely informed the jury that the requested documents were not available, and the jury must consider only the evidence admitted during the trial. Essentially, the district court's response restated an instruction initially provided to the jury. The second response simply referred the jury to the jury instructions. The answers did not provide any additional information that could have changed the jury's verdict. Furthermore, the answer did not place undue emphasis on whether the jury should find Smith guilty or not guilty. We conclude beyond a reasonable doubt that the district court's procedure of submitting the answer in written form rather than calling the jury into the courtroom to receive the answer had no impact on the outcome of the trial, and any error was harmless.
Did the District Court Err By Submitting a Special Question Regarding Smith's Age to the Jury?
Smith argues the district court committed structural error when it (1) failed to include an essential element of the crime of aggravated indecent liberties with a child under the age of 14 in the jury instructions and (2) submitted a special question to the jury regarding Smith's age. Smith acknowledges Kansas appellate courts have previously reviewed jury instructions that were not objected to under the clearly erroneous and harmless error standard; however, Smith argues we should instead find the district court's error was structural error because it created structural defects in the constitution of the trial mechanism which diluted the State's burden of proof. In the alternative, he claims the jury instructions were clearly erroneous and are reversible error. The State ignores Smith's structural error argument and admits submitting the defendant's age as a special question was error but asserts such error was harmless.
Jury Instruction 9 instructed the jury on aggravated indecent liberties with a child under age 14:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant submitted to lewd fondling or touching of his person by [B.N.M.], with the intent to arouse or to satisfy the sexual desires of the defendant;
“2. That at the time of the act, [B.N.M.], was a child under the age of 14; and
“3. That this act occurred between September 1, 2010, and February 22, 2011, in Atchison County, Kansas.
“Lewd fondling or touching may be defined as a fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of the offender. Lewd fondling or touching does not require contact with the sex organ of one or the other.”
The verdict form for this offense stated: “If you find the defendant guilty of aggravated indecent liberties with a child, do you also unanimously find beyond a reasonable doubt that the defendant was 18 years of age or older at the time the offense was committed?”
The jury found Smith guilty of aggravated indecent liberties with a child under age 15 and checked yes that it found Smith was 18 years of age or older at the time of the offense. Smith did not object to the instruction or verdict form.
Smith asserts the district court erred because it omitted an essential element from the jury instruction for aggravated indecent liberties with a child, claiming this error was structural error. Our Supreme Court, following the United States Supreme Court, “found structural error require[es] automatic reversal in only a few limited cases such as cases involving the complete denial of counsel, a biased trial judge, racial discrimination in grand jury selection, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction.” State v. Daniels, 278 Kan. 53, 61, 91 P.3d 1147 (citing Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 [1999] ), cert. denied 543 U.S. 982 (2004). The Neder Court found the failure to submit an element of the crime to the jury was not structural error and, instead, was subject to harmless error review. Neder, 527 U.S. at 17.
Smith acknowledges this case is similar to State v. Reyna, 290 Kan. 666, 234 P.3d 761, cert. denied ––– U.S. ––––, 131 S.Ct. 532, 178 L.Ed.2d 391 (2010). Reyna argued the district court's failure to instruct the jury that it must find Reyna was over the age of 18 at the time of the offenses violated his right to a trial by jury under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights as defined in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Nowhere was the jury instructed about Reyna's age, but during the trial Reyna himself testified he was 37 years old. Reyna's age was uncontroverted. The Reyna court ruled the district court erred by failing to instruct on an essential element of the offense, the defendant's age, but the harmless error analysis still applied “to the omission of an element from the instructions to the jury when a review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.” 290 Kan. at 681, 234 P.3d 761.
In this case, the State presented evidence that Smith's date of birth was July 10, 1959. Just as in Reyna, this evidence was uncontroverted. Despite the Reyna court's conclusion, Smith argues the omission of the element in the aggravated indecent liberties instruction itself was structural and not subject to the harmless error test because the jury could not have understood that Smith's age was a claim the State had to prove beyond a reasonable doubt in order to sustain a Jessica's Law conviction for aggravated indecent liberties with a child. However, since our Supreme Court found no structural error in Reyna when the jury instructions completely failed to ask the jury to decide whether the defendant was over 18 years old at the time of the offense, it follows there was no structural error when the jury instructions at least ask somewhere for the jury to find the defendant was over the age of 18. We reject Smith's argument that omitting an essential element in the jury instructions was structural error.
Because Smith did not object to the district court's instructions, we review the instruction for clear error. See K.S.A.2014 Supp. 22–3414(3). To determine whether it was clearly erroneous to give or fail to give an instruction, we must first decide whether an error occurred, which presents a legal question subject to unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012). After first determining the district court erred in giving the instruction, we then conduct a reversibility inquiry. The test for clear error requiring reversal is whether we are firmly convinced the jury would have reached a different verdict had the instruction error not occurred. This assessment involves a review of the entire record and a de novo determination. The burden of showing clear error remains with the defendant. 295 Kan. at 516, 286 P.3d 195.
This case is nearly identical to State v. Brown, 298 Kan. 1040, 1045, 318 P.3d 1005 (2014), in which the jury found the defendant guilty of rape and aggravated indecent liberties with a child. Like here, the jury instructions setting forth the elements of the crime did not include Brown's age, but the jury answered in the affirmative to special questions on the verdict forms as to whether Brown was 18 years of age or older at the time the offenses were committed. Our Supreme Court held Brown was entitled to have the jury instructed on his age as part of the elements instructions because the defendant's age was an essential element of the off-grid crimes of rape and aggravated indecent liberties with a child. 298 Kan. at 1045, 318 P.3d 1005. Finding State v. Osburn, 211 Kan. 248, Syl. ¶ 5, 505 P.2d 742 (1973), remained good law, the Brown court held the district court erred in submitting the element of age to the jury in special questions on the verdict forms but concluded the errors were harmless because the trial record included evidence from which the jury was justified in finding, as indicated by its answer to the special question, that Brown was aged 18 or older. 298 Kan. at 1046–49, 318 P.3d 1005.
Under the analysis set out in Brown, we find the district court erred by not instructing the jury on Smith's age as part of the element instructions and by submitting the element of age to the jury in a special question on one of the verdict forms. But, these errors were harmless because the jury affirmatively answered the special question about Smith's age and that decision was supported by the undisputed evidence of Smith's date of birth presented at trial.
Is Smith's Sentence Categorically Disproportionate Under the Eighth Amendment to The United States Constitution?
Smith argues his hard 25 life sentence imposed under Jessica's Law, K.S.A.2010 Supp. 21–4643(a)(1)(C), for his conviction of aggravated indecent liberties with a child under age 14 is categorically disproportionate and, therefore, cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. According to Smith, “the Eighth Amendment does not permit a first-time offender to be sentenced to life in prison for an offense involving sexual contact with a minor, without any element of force, coercion, or penetration.” Smith specifically raises this as a categorical and not a case-specific proportionality argument. This exact argument was addressed and rejected by our Supreme Court in State v. Cervantes–Puentes, 297 Kan. 560, 566, 303 P.3d 258 (2013):
“[We] reject this claim because Cervantes–Puentes' appellate counsel failed to construct a valid categorical claim. Cervantes–Puentes asks this court to consider the constitutionality of a hard 25 sentence for first-time offenders convicted of committing a sexual offense against a minor when the offense does not involve penetration, force, or coercion. As we have in the past, we decline to consider a purported categorical claim that, in reality, presents a case-specific proportionality challenge to a term-of-years sentence. See State v. Florentin, 297 Kan. 594, 605–06, 303 P.3d 263 (2013) (rejecting defendant's attempt to define the range of crimes for his categorical claim as rape by “ ‘consensual digital penetration of the victim, who is thirteen years or older,’ “ when crime involves no “ ‘force, prostitution or pornography, a weapon, or ... bodily injury to the victim’ ”); [ State v.] Mossman, 294 Kan. [901,] 928[, 281 P.3d 153 (2012) ] (rejecting defendant's attempt to define range of crimes for his categorical claim as ‘crimes to those involving sex with a child who is 14 or 15 where the crime is committed without any element of force, coercion, prostitution, or pornography’). Accordingly, we reject Cervantes–Puentes' purported categorical claim.”
Based on our Supreme Court's holding in Cervantes–Puentes, we conclude that Smith's hard 25 life sentence was not categorically disproportionate under the Eighth Amendment.
Did the District Court Err By Classifying Smith's Pre–1993 In–State and Out–Of–State Convictions as Person Felonies???
Smith filed a motion objecting to his criminal history score in the presentence investigation report, claiming two pre-KSGA convictions should not have been scored as person felonies. The State produced two journal entries from Smith's prior cases. One was a conviction for aggravated battery in the state of Kansas in May 1993; the second contained convictions for jailbreak, felonious assault, forgery, and malicious destruction in the state of Michigan in 1981. Based on these documents, the district court found Smith was previously convicted of two person felonies: aggravated battery in Kansas and felonious assault in Michigan. The district court denied Smith's objection to his criminal history category and declared his criminal history to be category B based on two prior person felonies.
On appeal, Smith argues the district court erred by classifying these two prior convictions as person felonies because they occurred before Kansas adopted the Kansas Sentencing Guidelines Act (KSGA), K .S.A. 21–4701 et seq. , effective July 1, 1993. Interpretation of sentencing statutes is a question of law subject to unlimited review. State v. Murdoch, 299 Kan. 312, 314, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014. “If a statute is plain and unambiguous, appellate courts do not speculate about legislative intent or resort to canons of construction or legislative history.” 299 Kan. at 314, 323 P.3d 846.
The issue relating to the pre-KSGA out-of-state conviction was recently addressed by our Supreme Court in Murdoch, which held that all pre-KSGA out-of-state convictions must be classified as nonperson felonies. 299 Kan. at 319, 323 P.3d 846. Because we are bound by Supreme Court precedent, State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we must conclude the district court erred by scoring Smith's Michigan conviction as a person felony.
However, Murdoch did not directly address pre-KSGA in-state convictions. Smith makes three arguments that his May 1993 Kansas aggravated battery conviction should be counted as a nonperson felony. First, he argues the language of K.S.A.2014 Supp. 21–6810(d)(6), formerly K.S.A. 21–4710(d)(8), mandates his conviction be considered a nonperson crime. K.S.A.2014 Supp. 21–6810(d)(6) states: “Unless otherwise provided by law, unclassified felonies and misdemeanors shall be considered and scored as nonperson crimes for the purpose of determining criminal history.” Our Supreme Court expressly rejected this interpretation of the statute in Murdoch, 299 Kan. at 318, 323 P.3d 846:
“[I]t is likely K.S.A. 21–4710(d)(8) was adopted to address the scoring of a very limited number of current criminal statutes that do not categorize the crimes as person or nonperson offenses. See, e.g., K.S.A. 21–4213 (unlawful failure to report a wound is a ‘class C misdemeanor’); K.S.A. 21–4218 (unauthorized possession of a firearm on the grounds of or within certain state buildings is a ‘class A misdemeanor’); K.S.A. 21–4312 (unlawful disposition of animals is a ‘class C misdemeanor’); K.S.A. 21–4409 (knowingly employing an alien is a ‘class C misdemeanor’). And we believe it unlikely the legislature intended that K.S.A. 21–4710(d)(8) govern all pre–1993 convictions.”
Second, Smith points out that the statute provides how to classify and score out-of-state offenses but does not include how to classify pre-KSGA in-state convictions not designated as person or nonperson. He argues under the doctrine of unius est exlusion alterius, i.e., the inclusion of one thing implies the exclusion of another, that the legislature did not intend for pre-KSGA offenses to be designated, treated, and scored according to the person/nonperson designations. Smith's description of the out-of-state conviction sentencing statute is incorrect. While the statutes specify that a crime shall be comparable to a Kansas offense, they fail to state whether an out-of-state crime should be compared to a Kansas offense as of the date of the prior crime; July 1, 1993; the date of the present crime; or some other date. See K.S .A.2014 Supp. 21–6810 and K.S.A.2014 Supp. 21–6811. Since the statutes do not address this issue, it cannot logically follow that the legislature did not intend for pre-KSGA in-state offenses never to be designated person or nonperson.
Third, Smith argues that because the statute governing his May 1993 aggravated battery conviction did not designate it as a person or nonperson crime, it cannot be counted as a person felony in this case. Smith mentions State v. Williams, 291 Kan. 554, 244 P.3d 667, Syl ¶ 4, 244 P.3d 1667 (2010), in support of this position. The Williams court addressed out-of-state offenses committed after the KSGA was adopted in 1993, holding that the comparable Kansas offenses should be determined as of the date the out-of-state offenses were committed. 291 Kan. at 562, 244 P.3d 667. Williams was integral in the Murdoch analysis. Unfortunately, neither party provided a notification of additional authority or made additional arguments based on Murdoch.
Another panel of this court recently confronted the conundrum created by Murdoch over how to classify pre-KSGA in-state convictions in State v. Waggoner, 51 Kan.App.2d ––––, Syl. ¶ 1, ––– P.3d –––– (No. 111,548, 343 P.3d 530, 2015 Westlaw 402760, filed January 30, 2015). Most significantly, the panel held that K.S.A. 21–4711(e) does not apply to in-state convictions by its very terms, meaning that the analysis used in Murdoch also does not apply to in-state convictions. Waggoner, 343 P.3d 530, 2015 Westlaw 402760, at *8–10. Because there is no provision in the KSGA on how to classify pre-KSGA in-state convictions, the panel reasoned it was required to “look to the overall design and purposes of the KSGA.” 343 P.3d 530, 2015 Westlaw 402760, at *8. The court stated:
“Under the sentencing guidelines, designation of a crime as person or nonperson depends on the nature of the offense. Crimes which inflict, or could inflict, physical or emotional harm to another generally are designated as person crimes. Crimes which inflict, or could inflict, damage to property generally are designated as nonperson crimes.” 343 P.3d 530, 2015 Westlaw 402760, at *8.
The Waggoner court further held the defendant's argument that his prior juvenile adjudication for attempted aggravated battery should be classified as nonperson was contrary to the overall design and purpose of the KSGA. In particular, the panel noted that right after the KSGA was enacted, all prior convictions would have been pre-KSGA convictions, and it was inconceivable the legislature would have intended all in-state pre-KSGA convictions to be scored as nonperson offenses for criminal history purposes. 343 P.3d 530, 2015 Westlaw 402760, at *9.
The court then examined the elements of aggravated battery as they existed before the enactment of the KSGA, stating that since no crime prior to the enactment of the KSGA was classified as person or nonperson, an examination of the “nature of the offense” rather than its classification was required. Pre–KSGA, “aggravated battery was defined as ‘the unlawful touching or application of force to the person of another with intent to injure that person or another....’ “ 343 P.3d 530, 2015 Westlaw 402760, at *9 (quoting K.S.A. 21–3414 [Ensley 1988] ). The court concluded the defendant's pre-KSGA in-state juvenile adjudication for attempted aggravated battery was properly classified as a person felony for criminal history purposes under the KSGA because “[a]ttempted aggravated battery is, and always has been, a crime which inflicts, or could inflict, physical or emotion harm to another person ...”, the crime as it existed at the time the defendant committed it contained the same elements, and an attempt to commit a crime is treated as a person or nonperson crime in accordance with the designation of its underlying crime. 343 P.3d 530, 2015 Westlaw 402760, at *9–10.
The same analysis applies here. Smith's pre-KSGA in-state conviction in May 1993 for aggravated battery was properly classified as a person felony for criminal history purposes as the nature of the offense at the time Smith committed it was one which would inflict physical or emotional harm to another person.
Did the District Court Violate Smith's Sixth and Fourteenth Amendment Rights When it Used his Criminal History To Increase his Sentence?
Finally, Smith argues that the use of his criminal history to calculate his sentence was unconstitutional because his past convictions were not proved in this case to a jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has rejected this argument, and we reject it as well. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
The judgment of the district court is affirmed in part, vacated in part, and remanded for resentencing.
* * *
ATCHESON, J., concurring in part and dissenting in part.
I join in the result in this case in every respect except the determination of Defendant David Lawrence Smith's criminal history. On that point, I agree that State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014), modified by Supreme Court order September 19, 2014, requires that Smith's conviction in Michigan for felonious assault before the Kansas Sentencing Guidelines went into effect must be scored as a nonperson felony for criminal history purposes. But I cannot agree that his Kansas conviction for aggravated battery predating the guidelines should be scored as a person felony. That result is incompatible with the reasoning of Murdock and, in light of Murdock 's treatment of out-of-state convictions, reads into the sentencing statutes an equal protection violation. I, therefore, respectfully dissent from that much of the majority opinion and would find that Smith's aggravated battery conviction should be treated as a nonperson felony for criminal history purposes.
I first discuss why Murdoch requires Smith's aggravated battery conviction be scored as a nonperson felony, and I then outline the equal protection problem in not doing so.
As I understand Murdock, the majority essentially reasons this way:
1. Under K.S.A. 21–4711(e), now K.S.A.2014 Supp. 21–6811(e), a court must classify an out-of-state conviction as a person or nonperson felony based on the comparable Kansas offense as shown by the statutory elements of the two crimes.
2. The court has to look at the Kansas crimes as they were statutorily defined at the time the defendant committed the out-of-state crime to determine the comparable offense, as required by State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010).
3. For an out-of-state conviction before the sentencing guidelines went into effect July 1, 1993, the court has to find the comparable preguidelines Kansas offense.
4. Kansas felonies were not classified as person or nonperson felonies before the 1993 guidelines, so the comparable out-of-state felony must be considered “unclassified” and, thus, a nonperson felony consistent with K.S.A. 21–4710(d)(8), now K.S.A.2014 Supp. 21–6810(d)(6).
As a result, the Murdoch majority concluded that all out-of-state convictions predating the sentencing guidelines must be classified as nonperson felonies for criminal history purposes. 299 Kan. at 319, 323 P.3d 846. The three dissenting justices submitted the majority's position amounted to an unreasonable reading of the sentencing statutes precisely because Kansas crimes were not labeled as person felonies or nonperson felonies before the guidelines were enacted. 299 Kan. at 321–23, 323 P.3d 846 (Rosen, J. dissenting, joined by Luckert and Moritz, JJ.). And the dissenters recognized the majority's construction of the relevant statutes necessarily requires all in-state felony convictions predating the sentencing guidelines be considered nonperson offenses for criminal history purposes. 299 Kan. at 319, 323 P.3d 846. Although the Murdock dissenters may have the better of the statutory construction argument, the sentencing statutes must be applied in keeping with the majority's holding and rationale—a position that has commanded four votes and is, therefore, the law.
An essential link in the Murdock rationale is determining whether the comparable in-state crime predating the sentencing guidelines should be treated as a person felony or a nonperson felony. The determination as to the comparable in-state offense then dictates the classification of the defendant's out-of-state conviction, the ultimate issue in Murdock. Here, we need progress in the Murdock analysis only so far as classifying Smith's preguidelines in-state conviction for aggravated battery, since that conviction need not then be likened to an out-of-state conviction to assess Smith's criminal history. There is, of course, no logical or legally principled reason why the in-state conviction would be treated differently simply because the last step—the comparison between the in-state conviction and an out-of-state conviction—is unnecessary. For that reason, I part ways with my colleagues and with the panel decision in State v. Waggoner, 51 Kan.App.2d ––––, –––P.3d –––– (No. 111,548, 343 P.3d 530, 2015 WL 402760, at *10, filed January 30, 2015).
Basically, my colleagues and the Waggoner panel recycle, with some elaboration, the arguments of the dissenters in Murdoch, pronounce those arguments “consistent with the overall design and purpose” of the sentencing statutes, and apply them to classify in-state convictions predating the sentencing guidelines as person felonies in fixing the defendants' criminal histories. However intellectually satisfying the result might be in the abstract, it does not conform to the law established in Murdoch.
More importantly, perhaps, treating in-state convictions predating the sentencing guidelines as person felonies when comparable out-of-state convictions must be treated as nonperson felonies, consistent with Murdock, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In this case, my colleagues gloss over the constitutional problem their interpretation of the sentencing statutes creates. The panel in Waggoner is similarly silent.
To illustrate the constitutional defect, take the hypothetical cases of stickup artists John Doe and Richard Roe. Each has just been convicted of aggravated robbery, a felony violation of K.S.A.2014 Supp. 21–5420, in Shawnee County District Court. Doe has convictions for aggravated robbery in 1982 and 1992 in Jackson County, Missouri, just over the state line. Under Murdock, those convictions must be treated as nonperson felonies for criminal history purposes. Roe favored liquor stores in Johnson County, Kansas, as targets and racked up aggravated robbery convictions there also in 1982 and 1992. Under Waggoner and the majority's approach in this case, those convictions should be scored as person felonies for purposes of Roe's current conviction. With two person felonies in his criminal history, Roe faces a presumptive guidelines sentence of 206 to 228 months in prison on his present offense. Conversely, Doe, with two nonperson felonies, faces a presumptive sentence of 74 to 83 months. That's roughly the difference between a presumptive 18–year sentence for Roe and a presumptive 6 1/2–year sentence for Doe. As the example shows, defendants' criminal histories have a direct relationship to presumptive sentences for present crimes and person felonies significantly escalate those histories. See Murdock, 299 Kan. at 314, 323 P.3d 846.
The Equal Protection Clause prohibits state governments from creating classifications among persons resulting in different treatment without some degree of justification. See Western & Southern L.I. Co. v. Bd. of Equalization, 451 U.S. 648, 660, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981) (“[T]he Fourteenth Amendment ... introduced the constitutional requirement of equal protection, prohibiting the States from acting arbitrarily or treating similarly situated persons differently ....”); see also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.”); accord State v. Cheeks, 298 Kan. 1, 5, 310 P.3d 346 (2013). The intensity of judicial review or scrutiny of governmental action creating classifications implicating equal protection rights depends upon the nature of the government's line drawing. If the government classification burdens a fundamental right or divides based upon suspect class characteristics, such as race or religion, the courts must apply strict scrutiny and will uphold the classification only if it furthers compelling government interests and is narrowly tailored to advance those interests. Plyler v. Doe, 457 U.S. 202, 216–17, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982); Zablocki v. Redhail, 434 U.S. 374, 388, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Bostic v. Schaefer, 760 F.3d 352, 375 & n. 6 (4th Cir.2014); Kitchen v. Herbert, 755 F.3d 1193, 1218 (10th Cir.2014). When a classification impinges on neither a fundamental right nor a suspect class, the courts commonly apply rational basis review in deciding an equal protection challenge. Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997); Kwong v. Bloomberg, 723 F.3d 160, 172 (2d Cir.2013). A government classification survives rational basis review if “ ‘a plausible policy reason” ’ supports the scheme and it is not so removed from that reason as to result in an “ ‘arbitrary or irrational’ “ distinction. Fitzgerald v. Racing Assn. of Central Iowa, 539 U.S. 103, 107, 123 S.Ct. 2156, 156 L.Ed.2d 97 (2003) (quoting Nordlinger v. Hahn, 505 U.S. 1, 11–12, 112 S.Ct. 2326, 120 L.Ed.2d 1 [1992] ); see Heller v. Doe, 509 U.S. 312, 319–20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); Cheeks, 298 Kan. at 9, 310 P.3d 346. The classification may be upheld for any justifiable purpose; the purpose need not be the one that prompted its adoption. See McDonald v. Board of Election, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Estate of Kunze v. C.I.R., 233 F.3d 948, 954 (7th Cir.2000).[*]
[*]The courts have applied “intermediate scrutiny”—more demanding than rational basis review and less so than strict scrutiny—to equal protection challenges based on a few recognized class characteristics, including gender and legitimacy. See Hoyden ex rel. A.H. v. Greensburg Community School, 743 F.3d 569, 577 (7th Cir.2014) (gender); Pierre v. Holder, 738 F.3d 39, 50 (2d Cir.2013) (gender and legitimacy). Intermediate scrutiny would not be applicable here.
The courts typically apply rational basis review to sentencing statutes challenged on equal protection grounds. See Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); United States v. Titley, 770 F.3d 1357, 1359 n. 3 (10th Cir.2014). As the Chapman Court explained, upon a criminal conviction, a person may be punished as required by statute and consistent with constitutionally mandated equal protection “so long as the penalty is not based on an arbitrary distinction.” 500 U.S. at 465. A statute is presumed constitutional for purposes of rational basis review, and the party seeking relief bears the burden of proving an equal protection violation. Heller, 509 U.S. at 320; Titley, 770 F.3d at 1359.
I assume rational basis review applies here. If the sentencing scheme, as construed in Murdoch on the one hand and in Waggoner and here on the other, violates the Equal Protection Clause under that standard, any analysis using the far more rigorous strict scrutiny test would be superfluous. I turn to that task.
A cornerstone of the sentencing guidelines was and remains “ ‘ “standardiz [ing] sentences so that similarly situated offenders would be treated the same [.]” ‘ “ State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011). The discordant treatment of preguideline convictions for comparable in-state and out-of-state convictions imposed by Murdoch and Waggoner (and repeated here) conflicts with and seriously undermines that critical policy objective. Otherwise similarly situated defendants are treated quite differently for presumptive punishment based merely on where they may have committed felonies before the guidelines went into effect.
I suppose the disparity could survive rational basis review if it advanced some other legitimate purpose. But I can see no rational reason, let alone a good one, the armed robbers Roe and Doe should face significantly different presumptive sentences based on their criminal histories. Nor do I see some sensible explanation as to why Smith's criminal history should be higher because he committed an aggravated battery in Kansas years ago rather than in some other state. Drawing a substantive distinction between instate and out-of-state convictions for crimes otherwise deemed to be comparable in establishing defendants' criminal histories looks to be wholly arbitrary and without any conceivable rationality.
Accordingly, scoring comparable preguideline offenses differently for criminal history purposes based solely on where they occurred—the necessary result of applying the sentencing statutes as construed in Murdoch and Waggoner—violates the Equal Protection Clause. In short, convictions for comparable in-state and out-of-state crimes must be treated the same, as either person felonies or nonperson felonies, for criminal history purposes.
The constitutional defect now infecting the sentencing statutes incubated in an odd way. Usually, statutes violate the Equal Protection Clause because of how the legislature drafted them. That's not true here. The violation has been injected into the sentencing statutes through the combined effect of appellate judicial decisions construing the language rather than some inherent constitutional defect in that language. Because Murdoch, as controlling precedent, holds that all out-of-state felony convictions predating the 1993 sentencing guidelines have to be treated as nonperson felonies in scoring criminal histories, the same treatment must be extended to in-state felony convictions rendered before the guidelines to satisfy equal protection requirements. Rather than doing so, my colleagues and the Waggoner panel have chosen to treat in-state convictions differently, thereby creating an equal protection violation. In essence, to avoid expanding what they see as an ill-conceived holding in Murdoch, they have precipitated a constitutional deficiency.
On a basic level, their choice runs counter to settled rules of statutory construction. The prime directive among the canons recognizes that statutory language should be construed, if possible, to effect the legislative intent animating an enactment. State v. Kendall, 300 Kan. 515, 520–21, 331 P.3d 763 (2014). As I have noted, a primary policy objective of the guidelines was to eliminate marked sentencing disparities among similar defendants. By breaking with Murdoch and treating comparable past offenses quite differently for criminal history purposes, my colleagues and the Waggoner panel upend that policy. Moreover, nothing in the statutory language suggests, let alone requires, that comparable offenses should be scored differently in assessing criminal histories. So the outcome here cannot be reconciled with that canon. Another canon requires that a statutory ambiguity be resolved in a way that renders the measure constitutional rather than unconstitutional. Clark v. Martinez, 543 U.S. 371, 380–81, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (As between “plausible statutory constructions,” a court should reject one that “would raise a multitude of constitutional problems.”); St. Louis S.W. Ry. v. Arkansas, 235 U.S. 350, 369–70, 35 S.Ct. 99, 59 L.Ed. 265 (1914); Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 135–36 (3d Cir.2000). A court, for example, may apply a narrow construction to an otherwise potentially vague statute to supply sufficient specificity to avert a constitutional deficiency. Boos v. Barry, 485 U.S. 312, 330–31, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); United States v. Sutclife, 505 F.3d 944, 953 (9th Cir.2007). I don't know that the sentencing guidelines are ambiguous on this point. But a logical corollary to the canon would preclude an intermediate appellate court from construing a statute in a way that both evades a controlling ruling from a superior court and creates a constitutional defect to do so.
For those reasons, I respectfully dissent from the treatment of Smith's conviction for aggravated battery as a person felony in scoring his criminal history. In keeping with Murdoch and equal protection requirements, it must be scored as a nonperson felony.