Opinion
No. 108,361.
2013-09-20
STATE of Kansas, Appellee, v. Jerry HULSEY, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PIERRON, J.
Jerry Hulsey appeals his convictions and controlling sentence for sex crimes against D.N., his niece. He argues (1) the State committed prosecutorial misconduct; (2) the district court erred by denying his motion to sequester; (3) there was insufficient evidence to support his convictions; and (4) the district court erred in classifying his prior out-of-state conviction. We agree with Hulsey's fourth argument but affirm on the first three.
In 2008, Brenda and her two-year-old daughter D.N. lived with Brenda's grandmother, father, and sister, Mary. Mary's future husband, Hulsey, lived with them as well. Brenda and D.N. moved out following the death of Brenda's grandmother. In mid–2009, Mary and Hulsey moved into an apartment of their own and were joined by Brenda and Mary's father. Mary babysat D.N. at her apartment due to Brenda's varied work schedule.
On the evening of November 4, 2010, Brenda was taking a bath when D.N. entered to use the restroom. Brenda noticed that D.N.'s “vagina area [ ] was a little bit red” and she “was wiping ... different[ly]” than she had been taught. So Brenda asked her, “ ‘Has Uncle Jerry ever touched you?’ “ D.N. got “ ‘a real worried look on her face’ “ and said, “Yes.” When Brenda asked her what had happened, D.N. said he had “stuck his fingers in her pee-pee.” After confirming that D.N. was “ ‘sure,’ “ Brenda took her to a hospital with a 24–hour sexual assault center.
Anita Bugner, a sexual assault nurse examiner at the hospital, interviewed D.N. outside of her mother's presence. When Bugner asked her whether “anyone had ever touched her in a way that made her feel mad or sad,” D.N. said, “No,” but then she said, “ ‘Uncle Jerry hurts my pee-pee.’ “ Bugner also interviewed Brenda. Brenda reported that after D.N. said Hulsey had touched her, she put her finger “by her pee-pee” and motioned “in and out.” Brenda also reported noticing “redness in [D.N.'s] genital area the last few days,” and “blood in her underwear a few months ago.”
Teal Palivan, a detective with the Wichita Police Department, and Lori Chandler, a social worker, conducted a joint interview of D.N. A video recording of the interview was admitted into evidence. D.N. told them that Uncle Jerry had touched the inside of her “pee-pee” with his hands and that it had happened three times.
The State charged Hulsey with rape, in violation of K.S.A. 21–3502(a)(2), and aggravated indecent liberties with a child, in violation of K.S.A. 21–3504(a)(3)(A). The district court denied Hulsey's pretrial motion to sequester Det. Palivan. At the jury trial, Brenda, Bugner, Chandler, and Det. Palivan testified to the aforementioned facts. D.N. also took the witness stand and testified that on more than one occasion, Uncle Jerry had taken off her pants, touched her “pee-pee” with his finger, and put his finger inside her “pee-pee.” Hulsey took the stand in his own defense and testified he did not commit any of the alleged acts against D.N. He also testified about his and Mary's conflict with Brenda. Specifically, Brenda had been angry about them having a baby and not being able to babysit D.N. and threatened to “make sure [Hulsey] d[id] n't see [D.N.] again” and “make [his] life a living hell.” They would argue with Brenda “over food for [D.N.] or clothes to be washed for her or gas money for school.” Hulsey testified Brenda had told them numerous times that they would never see D.N. again. Mary and her father also testified about the conflict.
The jury found Hulsey guilty on both counts. At sentencing, the district court denied Hulsey's objection to his criminal history. The court sentenced him to a controlling term of life in prison with the possibility of parole after 40 years. Hulsey timely appeals.
Hulsey first argues the State committed prosecutorial misconduct by improperly bolstering D.N.'s credibility. The prosecutor made the following comments during his closing argument:
“Do kids tell—do kids lie? Of course they do. But kids lie to get themselves out of trouble, they don't lie to get somebody else in trouble. They don't make up something like this ... .[I]s it that none of the other three apply and what we are left with is [D.N,] is telling me the truth[?] She's telling me exactly what happened when she's talking about the guy who did this to her, and it's him.” (Emphasis added.)
Appellate courts use a two-prong analysis to review prosecutorial misconduct claims. First, the court must determine whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the court must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Three factors are considered in the plain error prong: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012); see State v. Inkelaar, 293 Kan. 414, 430–31, 264 P.3d 81 (2011) (misconduct is “gross and flagrant” if it was repeated or emphasized; deliberate and repeated misconduct or indifference to a court ruling constitutes “ill will”; and evidence is so “direct and overwhelming” if there is no reasonable possibility that the misconduct affected the verdict).
The first prong of the prosecutorial misconduct analysis is met where the prosecutor offers his or her personal opinion on the credibility of a witness. State v. Stone, 291 Kan. 13, 19, 237 P .3d 1229 (2010). Such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). But attorneys are permitted to make statements that draw reasonable inferences from the evidence. Stone, 291 Kan. at 19. Specifically, a prosecutor may explain to jurors “ “ ‘what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State's witnesses.’ “ [Citations omitted.]” State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011). And “when a case turns on which of two conflicting stories is true,” the prosecutor may advocate for reasonable inferences that suggest one story is not believable. State v. Hart, 297 Kan. ––––, 301 P.3d 1279, 1288 (2013); State v. Scott, 286 Kan. 54, 83, 183 P.3d 801 (2008) (prosecutor may argue that “one version is more likely to be credible based on the evidence”). Nevertheless, the jury must be left to draw the ultimate conclusion about the credibility of witnesses. Duong, 292 Kan. at 830.
Here, when the prosecutor said, “[Kids] don't make up something like this,” he essentially gave unsworn testimony about the truthfulness of children. Because his comment bolstered the credibility of a State's witness—D.N.—we find it was outside the wide latitude granted prosecutors in closing argument. See State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010) ( “[Y]ou trust children until you have a reason not to. We assume that. We assume we have taught them correctly' “; statement constituted misconduct.).
But the comment that D.N. was “telling ... the truth” was part of the prosecutor's presentation of the possible inferences to be drawn from the evidence. See State v. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999) (prosecutor's comments must be viewed in context of the whole argument). Hulsey's theory of defense was that Brenda had been feuding with the Hulsey and Mary, so she fabricated the story of sexual abuse and planted it in D.N.'s head to punish them. The prosecutor responded by giving the jury the four scenarios: “One, somebody planted this in this child's head; two, the child is just making it up on her own; three, it happened, but she got the wrong guy ...; or four, she's just right and it happened exactly the way she says it happened.” Then the prosecutor said, “[L]et's run these through,” and proceeded to advocate for reasonable inferences that suggested the first three scenarios were not believable. See Hart, 301 P.3d. at 1288. To conclude, the prosecutor asked the jury this question: “[I]s it that none of the other three apply and what we are left with is [D.N .] is telling me the truth ?” (Emphasis added.) The prosecutor did not offer his personal opinion on D.N.'s credibility. Cf. Stone, 291 Kan. at 19. Rather, the comment was part of a proper argument that D.N.'s story (Hulsey sexually abused her) was more likely to be credible, based on the evidence, than Hulsey's defense theory (Brenda planted the seed of sexual abuse). See Scott, 286 Kan. at 83. Therefore, we find the comment fell within the wide latitude afforded to prosecutors.
Although the prosecutor's first comment about the inherent truthfulness of children was error, the error was not so prejudicial that it denied Hulsey a fair trial. The comment was not gross and flagrant—the prosecutor made the comment once in his closing argument. The comment did not show ill will—the district court was not called upon to rule on the propriety of the comment. Finally, there is no reasonable possibility that the comment affected the verdict—the jury was advised it was the sole arbiter of witness credibility, by the attorneys (in voir dire and closing arguments) and the district court (in opening comments and jury instructions), and the evidence of rape and aggravated indecent liberties with a child was so direct and overwhelming (D.N. told her mother, the nurse, the social worker, the detective, and the jury that Hulsey touched and penetrated her vagina) that the misconduct would likely have had little weight in the minds of the jurors.
The State did not commit prosecutorial misconduct.
Next, Hulsey argues the district court committed reversible error by allowing Det. Palivan to sit in the courtroom during the trial.
Before trial, Hulsey filed a motion for an order of sequestration. He requested that “during the examination of any witnesses or when Mr. Hulsey is making a statement or testifying[,] that all other witnesses be excluded from the courtroom.” He sought sequestration “to avoid [any ]witnesses from listening and adopting the testimony of prior[ ] testifying witnesses.” He specifically asked the district court to extend its sequestration order to the case detective to avoid possible prejudice.
At the pretrial hearing, the district court heard arguments regarding the sequestration of the case detective. The prosecutor explained he planned to have Det. Palivan in the courtroom for a large portion of the trial; there would be instances where he would ask the detective to assist him outside of the courtroom; and the detective would sit behind the bar or behind the table at an appropriate place. Hulsey argued that exempting Det. Palivan from the sequestration order would be prejudicial because the detective would hear the other witnesses and think about how he might be able to clean up the testimony and explain inconsistencies. Hulsey argued the jury would think the detective was the most important witness because he had been there the whole time. The court ordered the sequestration of all witnesses except Det. Palivan—finding it permissible for the prosecutor to have a case detective available to assist him throughout the trial. The court advised Hulsey to object to the activities of Det. Palivan that he considered prejudicial. The record suggests that Det. Palivan sat behind the prosecutor's table throughout the trial.
A district court's decision whether to sequester witnesses is discretionary, and even if a sequestration order is in place, the court has discretion to permit certain witnesses to remain in the courtroom. Therefore, an appellate court reviews a district court's sequestration ruling for an abuse of discretion. See State v. Sampson, 297 Kan. 288, 292, 301 P.3d 276 (2013). A judicial action is an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012); see State v. Beauclair, 281 Kan. 230, 236, 130 P.3d 40 (2006) (Discretion is abused only when no reasonable person would take the district court's view, and the objecting party bears the burden of establishing such abuse.).
“The primary purpose of sequestering witnesses is to prevent them from tailoring their testimony to that of earlier witnesses. Heath, 264 Kan. at 589. When, as here, a party seeks an exception from a sequestration order for a testifying law enforcement officer based on the need to utilize the officer as an assistant at trial, the trial court should consider a number of factors, including, but not limited to, the number of attorneys prosecuting the case, the complexity of the case, how often the State plans to call the officer to testify, and whether the State could present the same testimony through other witnesses. [Citations omitted.]” Sampson, 297 Kan. at 297.
The Kansas Supreme Court recently decided two witness sequestration issues. In Sampson, the detective sat at the prosecutor's table, acted as a legal assistant, rose four times from the table to testify, returned to the table four times, and was the State's final witness. Following the detective's initial testimony, Sampson renewed his objection to the detective's presence and location in the courtroom. The Supreme Court held it was an abuse of discretion to allow the detective to sit at the prosecutor's table because it “created too great an impression that he was ‘clothed with public authority,’ thereby improperly enhancing his credibility with the jury.” 297 Kan. at 296. The court also held it was an abuse of discretion to allow the detective to remain in the courtroom because he “t[ied] his testimony to that of other witnesses.” 297 Kan. at 299–300. (ultimately holding that trial errors were harmless due to the strength of other testimony).
The only commonality between this case and Sampson is the fact that Det. Palivan was the State's final witness. Det. Palivan did not sit at the prosecutor's table, he only testified once in the State's case-in-chief, he did not tie his testimony to that of Brenda, Bugner, Chandler, or D.N., and Hulsey never objected to his presence or location in the courtroom. Cf. Sampson, 297 Kan. at 295–300. Most importantly, Det. Palivan focused his testimony on his own investigation of D.N.'s allegations, specifically his interview with Hulsey, rather than corroborating the testimony of previous witnesses.
This case is more like State v. Francis, 282 Kan. 120, 145 P.3d 48 (2006). At the pretrial conference, the prosecutor asked the district court to allow the case detective to remain in the courtroom to provide any necessary assistance during trial. Francis objected on the grounds the detective would gain both credibility with the jury and the ability to tailor his testimony, but Francis never renewed his objection at trial. On appeal, Francis claimed he was prejudiced by the detective's continuous presence in the courtroom and close proximity to the prosecution table. Our Supreme Court held that Francis could not show prejudice absent any indication in the record regarding how much time the detective spent in the courtroom or how close he sat to the prosecutor's table. 282 Kan. at 142. Like Francis, Hulsey objected at the pretrial conference but not at trial. Consequently, the record is devoid of evidence regarding the amount of time Det. Palivan spent in the courtroom or exactly where he sat. Therefore, Hulsey cannot meet his burden of establishing that no reasonable person would have declined to sequester Det. Palivan.
The district court did not err by denying Hulsey's motion to sequester.
Hulsey also argues the jury instructions created an alternative means situation and the State did not present evidence to support each alternative means of committing rape and aggravated indecent liberties with a child.
Issues of statutory construction and interpretation, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal. State v. Aguirre, 296 Kan. 99, 104, 290 P.3d 612 (2012); see State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (appellate courts exercise de novo review over jury unanimity issues). The test for sufficiency of the evidence is whether, taking the evidence in the light most favorable to the State, a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
When faced with an alternative means challenge, an appellate court must first identify whether the criminal statute supporting the charged crime is an alternative means statute. State v. Brown, 295 Kan. 181, 199–200, 284 P.3d 977 (2012) (Does the “or” separate alternative means or “options within a means”?). If the charged crime may be committed by alternative means, jury unanimity is not required as to the means by which the crime was committed as long as sufficient evidence supports each alternative means set out in the jury instructions. If the evidence is insufficient on one or more of the means on which the jury has been instructed, the conviction must be reversed. 295 Kan. at 184–85, 199–200 (Has the super-sufficiency of the evidence requirement been met?).
Hulsey's rape conviction is affirmed because the definition of sexual intercourse does not create alternative means and there was evidence that Hulsey had penetrated D.N.'s sex organ with his finger.
For the charge of rape, the jury was instructed that “[s]exual intercourse means any penetration of the female organ by a finger, the male sex organ or any object.” Hulsey argues the instruction created alternative means of committing rape. Because the State presented no evidence that there was penetration of the female sex organ by the male sex organ or any object, Hulsey claims his conviction must be reversed.
At the time of the offense, K.S.A. 21–3502(a)(2) defined rape as “sexual intercourse with a child who is under 14 years of age.” The language at issue in this case comes from K.S.A. 21–3501(1), which defined sexual intercourse as “any penetration of the female sex organ by a finger, the male sex organ or any object.”
The Kansas Supreme Court has recently decided whether these statutes create alternative means of committing rape. In State v. Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012), the court held:
“The alternative methods of penetrating the female sex organ set forth in the statute—by a finger, the male sex organ, or an object—merely describe ‘the factual circumstances in which a material element may be proven,’ i.e., the different ways in which penetration may occur. [Citation omitted.] Thus, these are not alternative means, but options within a means and the inclusion of this language in the jury instructions does not make this an alternative means case triggering concerns of jury unanimity.”
Because Hulsey's jury was not instructed on alternative means of committing rape, concerns of jury unanimity was not triggered and super-sufficiency of the evidence was not required. The State was only required to present evidence that Hulsey penetrated D.N.'s vagina with his finger, his penis, or an object. Hulsey concedes the State presented evidence that he penetrated D.N.'s vagina with his finger.
Hulsey's aggravated indecent liberties conviction is affirmed because the phrase “either the child or the offender, or both” did not create alternative means and there was evidence that Hulsey acted with the intent to arouse or satisfy his own sexual desires
For the charge of aggravated indecent liberties, the jury was instructed that the State had to prove that “the defendant fondled or touched the person of D.N. in a lewd manner with the intent to arouse or satisfy the sexual desires of D.N., Mr. Hulsey, or both.” Hulsey argues the instruction created alternative means of committing aggravated indecent liberties. Because the State presented no evidence that he acted with the intent to arouse or satisfy the sexual desires of D.N., Hulsey claims his conviction must be reversed.
At the time of the offense, K.S.A. 21–3504(a)(3)(A) defined aggravated indecent liberties “with a child who is under 14 years of age” as “[a]ny lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” The language at issue in this case is the phrase “either the child or the offender, or both.”
Our Supreme Court has also decided whether this statutory subsection creates alternative means of committing aggravated indecent liberties. The Britt court held:
“[T]he phrase ‘either the child or the offender, or both’ under K.S.A. 21 –3504(a)(3)(A) does not state a material element of the crime [of aggravated indecent liberties with a child] but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent. [Citation omitted.] Thus, the phrase outlines options within a means, and describes factual circumstances that may prove the distinct, material mental state element of the crime.” 295 Kan. at 1026.
See Brown, 295 Kan. at 200–02;State v. Burns, 295 Kan. 951, 965, 287 P.3d 261 (2012).
Because Hulsey's jury was not instructed on alternative means of committing aggravated indecent liberties, concerns of jury unanimity are not triggered and super-sufficiency of the evidence was not required. The State was only required to present evidence that Hulsey acted with the intent to arouse or satisfy his own sexual desires or the sexual desires of D.N. Hulsey concedes the State presented evidence that he touched D.N.'s vagina, and the “only logical explanation” was that he acted with the intent to arouse or satisfy his own sexual desires.
Therefore, there was sufficient evidence to support Hulsey's convictions for rape and aggravated indecent liberties.
Hulsey acknowledges Britt but insists that it was wrongly decided. We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Elkins, 44 Kan.App.2d 974, 984–85, 242 P.3d 1223 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that the Supreme Court intends to depart from its position on either issue. See State v. Miller, 297 Kan. ––––, Syl. ¶¶ 1–2, 304 P.3d 1221 (2013) (rejecting both of the alternative means arguments advanced by Hulsey).
Finally, Hulsey argues the State failed to prove by a preponderance of the evidence that he had been convicted under Ala.Code § 13A–6–62(a)(1) (1975; 1993 Supp.), and even if the State met its burden, that prior rape conviction was not “substantially the same as” his current rape conviction. Therefore, the district court should not have imposed a hard 40 sentence on him. Additional Facts Regarding Prior Conviction
Hulsey filed a posttrial motion challenging his criminal history. He admitted that one subsection of the Alabama rape statute constituted a substantially similar crime, which would warrant a sentence enhancement for his current rape conviction. But he claimed that because the State's proffered documentation did not specify which of the two subsections he was convicted under, his prior Alabama rape conviction should not be used to enhance his sentence.
In response to Hulsey's motion, the State submitted several documents to prove his criminal history: (1) The Kansas presentence investigation report stating that Hulsey had an Alabama conviction for second-degree rape; (2) an Alabama complaint charging Hulsey with two counts of first-degree rape: the first count alleged that he “engage[d] in sexual intercourse with [A.L.], a female, by forcible compulsion,” and the second count alleged that he “engage[d] in sexual intercourse with [A.L.], a female, who was less than twelve years of age”; (3) a notice of plea stating that Hulsey was charged in count one with first-degree rape and pled guilty to second-degree rape; (4) a case action summary noting that Hulsey pled guilty to count one and was granted probation; (5) an order of probation stating that Hulsey was convicted of “Count I—Rape II”; and (6) bench notes stating that Hulsey was convicted of count two rather than count one.
At sentencing, the district court heard arguments regarding Hulsey's prior conviction. Hulsey reiterated the argument set forth in his motion. The State claimed the language of the Alabama complaint showed that Hulsey's “prior crime involve[d] a child under the age of 14.” The court ultimately ruled that the combination of count two of the Alabama complaint—which cited the victim's age but not her incapacity—and Hulsey's general second-degree rape conviction constituted sufficient evidence that he was convicted under Ala.Code § 13A–6–62(a)(1), a crime substantially the same as K.S.A. 21–3 502(a)(2). Standard of Review and Applicable Law
We employ the substantial competent evidence standard to review a district court's finding that the State proved a defendant's criminal history by a preponderance of the evidence. State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010). To the extent resolution of this issue requires interpretation of sentencing statutes and classification of prior convictions, we are resolving questions of law and, thus, exercising unlimited review. See State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011); State v. Barajas, 43 Kan.App.2d 639, 642, 230 P.3d 784 (2010).
A defendant's criminal history must be determined by a preponderance of the evidence at the sentencing hearing by the sentencing judge. K.S.A. 21–4715(a). Generally, a presentence investigation report containing the defendant's criminal history worksheet will suffice. K.S.A. 21–4715(b). But if the defendant alleges an error in the criminal history worksheet, the State must produce “further evidence to satisfy its burden of proof regarding any disputed part ... of the criminal history.” K.S.A. 21–4715(c). The Kansas Supreme Court has defined preponderance of the evidence as “ ‘ “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it,” ... [and] evidence which shows a fact is more probably true than not true.’ [Citations omitted.]” In re B.D.-Y., 286 Kan. 686, 691, 187 P.3d 594 (2008).
Resolution of this issue requires examination of statutes that define crimes and those that establish sentences. Hulsey was convicted of rape under K.S.A. 21–3502(a)(2) for an act that occurred between February 2009 and October 2010. The enactment of Jessica's Law in July 2006 brought 25–year mandatory minimum sentences for certain sex crimes and 40–year mandatory minimum sentences for repeat offenders. K.S.A. 21–4643(b)(1) (hard 40 sentence for adult convicted of rape under K.S.A. 21–3502(a)(2) on or after July 1, 2006, with a prior conviction for “a crime under a law of another jurisdiction which is substantially the same as” rape under K.S.A. 21–3502 [a][2] ). Hulsey was previously charged in Alabama with first-degree rape but was ultimately convicted of second-degree rape.
At the time of Hulsey's prior offense, Ala.Code § 13A–6–62(a) defined second-degree rape as “(1) [b]eing 16 years old or older [and] engag[ing] in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female,” or “(2) ... engag[ing] in sexual intercourse with a female who is incapable of consent by reason of being mentally defective.” As stated above, at the time of Hulsey's current offense, K.S.A. 21–3502(a)(2) defined rape as “sexual intercourse with a child who is under 14 years of age.” We must decide whether Hulsey's previous crime of conviction is “substantially the same as” his current crime of conviction, warranting an enhancement from a hard 25 to a hard 40 sentence.
A recent United States Supreme Court opinion explains when a court may consider the facts underlying a prior conviction for sentence enhancement purposes. In Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438, the Supreme Court held that to determine whether a prior conviction qualifies as a sentence enhancer under the Armed Career Criminal Act, the sentencing court must use one of two approaches. If the prior conviction was for violating a “divisible statute”—one that has alternative elements, e.g., burglary involving entry into a building or an automobile—then the “modified categorical approach” must be used, which allows the court to consult reliable documents (e.g., complaint or plea agreement) to determine which element formed the basis of the defendant's prior conviction. See 133 S.Ct. at 2281–85, 2288 (explaining that the approach “merely assists the sentencing court in identifying the defendant's crime of conviction”). Otherwise, the “categorical approach” must be used, which allows the court to consider only the statutory elements of the prior conviction. 133 S.Ct. at 2281–83, 2287–90.
The Descamps Court ultimately held that the lower courts “erred in invoking the modified categorical approach to look behind [the defendant's] conviction in search of record evidence that he actually committed” the sentence-enhancing offense. 133 S.Ct. at 2293. Highlighting the implications of Sixth Amendment to the United States Constitution, the high Court noted that because any fact—other than the fact of a prior conviction—that increases a crime's maximum penalty must be submitted to a jury beyond a reasonable doubt, a sentencing court cannot extend judicial fact finding beyond the identification of a prior conviction ( i.e., determine the facts underlying a prior conviction). 133 S.Ct. at 2288 (citing Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 [2000] ).
Here, Hulsey was previously convicted of second-degree rape in Alabama. But the notice of plea does not specify whether he pled guilty to having sexual intercourse with a child over 12 and less than 16 years old or for having sexual intercourse with a person incapable of consent due to mental defect. Because of the ambiguity regarding whether Hulsey was convicted under subsection (1) or (2), Ala.Code § 13A–6–62(a) should be treated as divisible, requiring us to apply the modified categorical approach. The only reliable document, other than the notice of plea, is the complaint. It charged Hulsey with two counts of first-degree rape: one for having sexual intercourse with a child under 12 years old, in violation of Ala.Code § 13A–6–61(a)(3) (1975; 1982 Repl. ed.), and another for having sexual intercourse with the same child by force, in violation of Ala.Code § 13A–6–61(a)(1). Given that the complaint did not charge Hulsey with first-degree rape for having sexual intercourse with a child incapable of consent, in violation of Ala.Code § 13A–6–61(a)(2), it is probably more true than not true that Hulsey was convicted of second-degree rape for having sexual intercourse with a child over 12 and less than 16 years old, in violation of Ala.Code § 13A–6–62(a)(1).
Having determined that the age of the Alabama victim, not her incapacity, formed the basis of Hulsey's prior rape conviction, we must determine whether that crime was a sentence enhancer under Jessica's Law. Descamps forbids us from “look[ing] behind” Hulsey's prior conviction to determine whether he “actually committed” a crime “substantially the same as” rape under K.S.A. 21–3502(a)(2) ( i.e., whether his Alabama victim was 13 years old). Thus, an elements-based inquiry is required. See 133 S.Ct. at 2293. Nowhere in the reliable documents does it state his victim's age.
In Kansas, sexual intercourse with a child who is 13 years old (or younger) is rape—Hulsey's current crime—and sexual intercourse with a child who is 14 or 15 years old is aggravated indecent liberties with a child. See K.S.A. 21–3502(a)(2); K.S.A. 21–3504(a)(1). Whereas in Alabama, sexual intercourse with a child who is 11 years old (or younger) is first-degree rape and sexual intercourse with a child who is 13, 14, or 15 years old is second-degree rape—Hulsey's prior crime. See Ala.Code § 13A–6–61(a)(3); Ala.Code § 13A–6–62(a)(1).
Moreover, as stated above, Jessica's Law enhances the sentences of repeat offenders convicted of rape for having sexual intercourse with a child who is 13 years old (or younger). See K.S.A. 21–3502(a)(2); K.S.A. 21–4643(b)(1). But it does not enhance the sentences of those convicted of aggravated indecent liberties for having sexual intercourse with a child who is 14 or 15 years old. Compare K.S.A. 21–3504(a)(1) with K.S.A. 21–3504(a)(3) (aggravated indecent liberties is lewdly touching or soliciting a child under 14) and K.S.A. 21–4643(b)(1) (hard 40 sentence for adult convicted of aggravated indecent liberties under K.S.A. 21–3504(a)(3) on or after July 1, 2006, with a prior conviction for “a crime under a law of another jurisdiction which is substantially the same”).
We hold that Hulsey lacked a prior proven conviction that was substantially the same as his current rape conviction for these three reasons: (1) The Alabama second-degree rape statute, under which Hulsey was previously convicted, punishes conduct not covered by the Kansas rape statute ( i.e., sexual intercourse with a 14– or 15–year–old child); (2) that conduct is covered instead by the Kansas aggravated indecent liberties statute, under which Hulsey was not convicted; and (3) the Kansas Legislature chose to limit sentence enhancement to offenders who have repeatedly victimized younger children. Therefore, Hulsey should have been sentenced to life in prison with the possibility of parole after 25 years. See K .S.A. 21–4643(a)(l)(B) (hard 25 sentence for adult convicted of rape under K.S.A. 21–3502(a)(2) on or after July 1, 2006).
The district court erred in classifying Hulsey's prior out-of-state conviction.
We affirm the convictions but reverse and remand for resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded with directions.