Opinion
No. 108,598.
2013-11-1
STATE of Kansas, Appellee, v. Allen D. THOMPSON, Appellant.
Appeal from Sedgwick District Court; Jeff Goering, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeff Goering, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Allen D. Thompson confessed to taking several naked photographs of a toddler he was babysitting. He admitted he took the photos as part of a sexual fantasy. He was convicted of aggravated indecent liberties with a child and sexual exploitation of a child.
Relying on the special rule for persistent sex offenders, the district court sentenced Thompson to life imprisonment with a minimum of 456 months of imprisonment for the aggravated indecent liberties conviction, the only sentence at issue here.
Thompson raises four issues on appeal. First, he argues that the burden of proof instruction given by the trial court was erroneous. But because our Supreme Court has specifically found the instruction given in this case is not legally erroneous, his claim fails. Second, he argues that the trial court erred in allowing the case detective to sit behind the bar and assist the prosecutor during trial in violation of the sequestration order. Although we do not believe that the court abused its discretion in allowing the case detective to remain in the courtroom, if it was error it was clearly harmless.
Next, Thompson argues that the sentencing court erred by applying the doubling provision of the persistent sex offender sentencing statute to his off-grid Jessica's Law, K.S.A. 21–4643, offense. We agree because even if the doubling provision applies it only impacts the maximum sentence, not the minimum sentence. In this case, Thompson has already received life in prison as his maximum sentence. Accordingly, his sentence is vacated and the case remanded for resentencing. Finally, Thompson argues that the sentencing court erred when it sentenced him based on a criminal history score that relied on prior convictions that were neither included in the complaint nor proven to a jury beyond a reasonable doubt. Because our Supreme Court has repeatedly rejected this argument, we are required to do the same. Affirmed in part, reversed in part, Thompson's sentence is vacated, and the case is remanded for resentencing.
Factual and Procedural History
In April 2009, law enforcement searched Thompson's residence and found two computers and a digital camera with sexually explicit material containing images of children.
During a videotaped interview, Thompson admitted that he took several pictures of his great nephew, the victim in this case. The photographs showed a child around 2 or 3 years of age whose diaper was off and his penis was exposed. In other pictures, the child's buttocks area was exposed and spread apart to expose the anus. There was also a picture of Thompson's penis next to the victim's penis.
In April 2009, the State filed a complaint against Thompson consisting of one count of aggravated indecent liberties with a child, one count of sexual exploitation of a child, two counts of sexual exploitation of a child through possession of a visual depiction, and one count of furnishing alcohol to a minor. The complaint was amended dropping the one count of furnishing alcohol to a minor.
After a jury trial, the jury found Thompson guilty on all four counts.
According to the presentence investigation report, Thompson had three previous convictions for possessing material depicting a minor engaged in sexually explicit conduct. Relying on the special rule for persistent sex offenders, the district court sentenced Thompson to life imprisonment with a minimum of 456 months of imprisonment for the conviction of aggravated indecent liberties with a child.
Thompson filed a timely notice of appeal.
Additional facts will be added as necessary.
The Burden of Proof Jury Instruction
Thompson argues that the district court erred when it gave the inaccurate jury instruction on the State's burden of proof because the instruction, by solely using the word “any” instead of “each,” does not require the State to prove beyond a reasonable doubt each and every element of the crime charged.
Thompson failed to object to the jury instruction; therefore, the clearly erroneous standard of review is appropriate. See K.S.A. 22–3414(3); State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). To determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court must necessarily first determine whether an error occurred. Thus, the court must review the merits of the claim of error; this presents a legal question subject to unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
The district court gave the following jury instruction on the test to determine whether Thompson was guilty or not:
“If you have a reasonable doubt as to the truth of any of the claims made by the State, you must find Mr. Thompson not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find Mr. Thompson guilty.”
This exact instruction was questioned in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). Our Supreme Court found that the use of the word “any” in the jury instruction did not create any confusion and was legally appropriate. 296 Kan. at 1123–24, 299 P.3d 292. Moreover, if any confusion did occur it was cleared up by the jury instructions that set out the individual elements for each of the crimes charged, which all contained the following language: “ ‘To establish this charge, each of the following claims must be proved.’ “ 296 Kan. at 1123, 299 P.3d 292.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). Herbel was reaffirmed in State v. Smyser, 297 Kan. 199, 205–06, 299 P.3d 309 (2013). Herbel is dispositive of Thompson's argument. The district court's use of this burden of proof jury instruction was legally appropriate and jury instruction Nos. 8, 10, 11, and 12 regarding the individual elements of each of the crimes charged included the following language: “To establish this charge, each of the following claims must be proved.” Therefore, the district court did not err when it gave the above jury instruction on the State's burden of proof.
Moreover, as the State points out, Thompson requested this particular instruction in his proposed jury instructions. A defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Case Detective Seated Behind the Prosecutor Throughout the Trial
Thompson contends that the district court abused its discretion when it allowed the case detective to sit behind the prosecutor throughout the trial. Thompson asserts that by doing so, it gave the detective extra credibility with the jury.
The district court's decision whether to sequester a witness is discretionary. State v. Sampson, 297 Kan. 288, 292, 301 P.3d 276 (2013). A judicial action constitutes 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. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
Thompson filed a motion to sequester all witnesses, including the case detective on the case. At a pretrial hearing, the prosecutor requested that the case detective be allowed to sit in the gallery behind the prosecutor's table during the trial. The prosecutor stated, “She's kind of my right hand in this, due to the massive amount of information and evidence in the case.” After the district court was assured that the case detective “would be the first substantial witness called,” it allowed the case detective to stay in the courtroom throughout the trial.
In Sampson, our Supreme Court stated:
“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.]” 297 Kan. at 297, 301 P.3d 276.
Although, the State did uphold its guarantee that the case detective would be its first substantial witness, this was the only factor that the district court relied on to allow the case detective to remain in the courtroom and act as an assistant to the prosecutor. According to Sampson, the district court should have looked to several factors before deciding to allow the case detective to remain in the courtroom and assist the prosecutor. But Sampson was decided in May 2013, so the district court in this case did not have the benefit of its guidance.
At the time of trial in this case the guiding principle was contained in Geders v. United States, 425 U.S. 80, 87–88, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). The United States Supreme Court made clear that there are two major aims to the practice of sequestering witnesses. First, it prevents the witnesses from tailoring his or her testimony to that of earlier witnesses. Second, it “aids in detecting testimony that is less than candid.” See State v. Heath, 264 Kan. 557, 589, 957 P.2d 449 (1998) (citing Geders ). Here, the judge clearly had the potential for tailoring the testimony at the forefront of his ruling when he allowed the detective to remain on the condition that she was the first substantive witness to testify, thus serving to prevent her from tailoring her testimony. The prosecutor indicated that the request was due to the massive amount of evidence in the case, apparently referring to the items mined from Thompson's computers and digital camera. In addition, Thompson's counsel did not question the candidness of the detective's testimony. In light of this evidence, we cannot say that the decision to allow the detective to remain in the courtroom, although not at counsel table, was an abuse of discretion, even though the court did not make the specific findings now required by Sampson.
But even if we were to find, based on its failure to expressly consider all the factors set out in Sampson, that the district court abused its discretion when it allowed the case detective to remain in the courtroom throughout the trial, this court must determine whether such an abuse of discretion was harmless. In Sampson, the parties stipulated that this type of error—which in that case included the detective actually sitting at counsel table—was a constitutional error. Citing Ward, the Supreme Court noted that the party who benefits from the error bears the burden of showing that the error was harmless. Sampson, 297 Kan. at 299, 301 P.3d 276. Although it is unclear whether the mere granting of an exception to the sequestration rule, without the added factor in Sampson of the detective actually sitting at counsel table, rises to the level of constitutional error, for the purpose of our analysis here, we will assume it does. If the error is found to be harmless using such a heightened standard, then certainly any lesser standard is also met. Under the Ward standard, the State must show “ ‘beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.]” Sampson, 297 Kan. 299–300.
Again we note that the primary purpose of sequestering witnesses is to prevent the witness from tailoring his or her testimony to that of earlier witnesses. Heath, 264 Kan. at 589, 957 P.2d 449. At trial, the prosecutor presented three witnesses before having the case detective testify. The first witness established that he is the father of the victim and the nephew of the defendant. The father identified Thompson as the defendant and testified that Thompson was rarely alone with the victim. The father also identified his apartment and its interior through photograph exhibits.
The second witness was mother of the victim. Her testimony established, through a photograph, that the victim was inside the father's apartment when the photograph was taken.
The third witness was a forensic investigator who examines computers for evidentiary items. He assisted in the execution of the search warrant on Thompson. While in Thompson's bedroom, the investigator found a computer and identified the computer tower at trial but indicated that he did not conduct a search of the hard drive on the computer.
The fourth witness was the case detective on the case. The detective testified regarding the contents of the chili pornographic evidence found on Thompson's computers and digital camera, including the pornographic pictures of the victim. The detective also testified that during the interview with Thompson, he admitted to taking the pornographic pictures of and with the victim who was his great-nephew. During the interview, Thompson also acknowledged that some of the other child pornography on the computers was his and that his purpose in having the pornography was for sexual fantasy and arousal.
Based on the testimony of the first three witnesses it does not appear these witnesses provided any substantial evidence as to the crimes charged against Thompson. It was not until the case detective testified that the jury was introduced to any evidence of aggravated indecent liberties with a child and the sexual exploitation of a child. The detective did not tie her testimony to that of the first three witnesses. In addition, after her testimony was concluded, she was not recalled to the stand. Therefore, the case detective did not violate the purpose of a sequestration order by tailoring her testimony to that of prior witnesses.
Thompson also argues that allowing the detective to assist gave the detective extra credibility with the jury. But Thompson presents no evidence regarding the number of times the detective and prosecutor consulted each other in front of the jury, if at all. The detective was not sitting at counsel table. She was in the audience, behind the bar. A review of the record on appeal reveals nothing about any consultation between the two in front of the jury, nor does Thompson present any such evidence on appeal. In Sampson, the detective sat at counsel table and testified four times, clearly tying his testimony to that of prior witnesses. Sampson, 297 Kan. at 298–99, 301 P.3d 276. We have no evidence before us that the detective's testimony and credibility was somehow bolstered by her mere presence in the courtroom throughout the trial.
Finally, as argued by the State, the evidence against Thompson was overwhelming. The jury saw explicit photographic evidence of the crimes charged and also heard Thompson's interview with law enforcement where he admitted to the acts that formed the bases for the crimes charged against him. He admitted that he took the photographs of the child who was the victim in the case and that he did so as part of a sexual fantasy.
Under these circumstances, we are persuaded beyond a reasonable doubt that the district court's order in allowing the case detective to remain in the courtroom throughout the trial did not impact the trial's outcome and was, therefore, harmless.
The Persistent Sex Offender Statute
Thompson contends that the district court erred when it applied the doubling provision of the persistent sex offender sentencing statute to his off-grid Jessica's Law offense. He argues that the persistent sex offender statute applies only to presumptive sentences. His off-grid sentence under Jessica's Law is not a presumptive sentence.
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012). As a general rule, a criminal statute should be strictly construed in favor of the accused, and any reasonable doubt about a statute's meaning must be decided in favor of the accused. But this general rule is subordinate to the rule that judicial interpretation must be reasonable and sensible to affect legislative design and intent. State v. Burnett, 297 Kan. 447, 451, 301 P.3d 698 (2013).
We begin our review with the specific sentencing statute that applies to Thompson. Pertinent to this discussion, and undisputed by the parties, Thompson was convicted of aggravated indecent liberties with a child under K.S.A. 21–3504(a)(3). When this crime is committed by someone over the age of 18, as Thompson was here, it is considered an off-grid person felony. See K.S.A. 21–3504(c). Thompson's specific conviction of aggravated indecent liberties with a child subjects him to the sentencing provisions under K.S.A. 21–4643(a)(1). Unless an exception applies, the mandatory term of imprisonment for Thompson is a minimum of 25 years in prison and a maximum sentence of life in prison. Because these crimes are governed by a specific term-of-years sentencing statute, rather than the sentencing guidelines grid, they are considered off-grid sentences.
The provision that we must interpret here is one of the listed exceptions under the statute. K.S.A. 21–4643(a)(2)(B) provides:
“(2) The provision of paragraph (1) requiring a mandatory minimum term of imprisonment of not less than 25 years shall not apply if the court finds:
....
(B) the defendant, because of the defendant's criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guideline grid for nondrug crimes and the sentencing range exceeds 300 months [25 years]. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.”
The district court looked to the sentencing guidelines for nondrug crimes and determined that if this crime were sentenced under the guidelines the severity level would be III and the criminal history would be B. Thompson does not dispute the crime severity level or criminal history score assigned by the district court. Under the corresponding nondrug sentencing grid box, Thompson would be subject to presumptive maximum prison sentence of 228 months and a minimum of 206 months. His current minimum sentence of 300 months exceeds both of those.
Next the district court looked to K.S.A.2008 Supp. 21–4704(j)(1), a subsection of the sentencing guidelines for nondrug crimes, which provides:
“(1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of the presumptive imprisonment term.”
Thompson does not dispute the finding that he is a persistent sex offender. Using this provision, the district court doubled the maximum sentence from 228 months to 456 months. Because this is more than 300 months, the district court adopted the higher sentence and set Thompson's sentence at a minimum of 456 months (38 years) and a maximum term of life in prison.
Thompson argues this was error for two reasons. First, he argues that the doubling provision of K.S.A.2008 Supp. 21–4704(j) was not properly considered based on our Supreme Court's ruling in State v. Wilson, 294 Kan. 818, 280 P.3d 784 (2012). Like Thompson, Wilson was charged with aggravated indecent liberties with a child. Also, like Thompson, there was no dispute that Wilson qualified as a persistent sex offender under the statute. The district court applied the doubling provision to double Wilson's mandatory minimum sentence from 25 years to 50 years. Our Supreme Court vacated the sentence and found that the doubling provision has no application to indeterminate off-grid sentences based on a strict interpretation of the statute. 294 Kan. at 820, 280 P.3d 784.K.S.A.2008 Supp. 21–4704(j) only applies to a persistent sex offender “whose current convicted crime carries a presumptive term of imprisonment.” Because an indeterminate life sentence is not a “presumptive term of imprisonment” under the sentencing guidelines, the doubling provision had no application to Wilson's case. 294 Kan. at 820, 280 P.3d 784.
Second, Thompson argues that even if the provision were applied it requires that the court double the maximum sentence, not the minimum sentence. In this case, as in Wilson, the maximum comparative sentence is life in prison which is greater than even the doubled sentence of 456 months. The doubling provision has no impact on the minimum sentence. The Wilson court reached the same conclusion.
“Even if an indeterminate life term could be correctly described as ‘presumptive,’ its ‘maximum duration’ is life, not any applicable mandatory minimum that must be served before the inmate becomes eligible for parole. Thus the persistent sex offender statute cannot apply to double the mandatory minimum of 25 years' imprisonment for an off-grid Jessica's Law offense.” 294 Kan. at 820, 280 P.3d 784.
In contrast, the State argues that the district court's use of the doubling provision in K.S.A.2008 Supp. 21–4704(j) was appropriate because the district court used the doubling provision to calculate Thompson's mandatory minimum term under K.S.A. 21–4643(a)(2)(B). K.S.A. 21–4643(a)(2)(B) was not discussed in Wilson. The State argues that to hold otherwise would make a persistent sex offender sentenced under the guidelines subject to a greater minimum sentence than one sentenced under K.S.A. 21–4643.
So we return to our original question. What is the meaning and purpose of K.S.A. 21–4643(a)(2)(B)? When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. In re Tax Appeal of Burch, 296 Kan. 713, 722, 294 P.3d 1155 (2013). Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
To reiterate, under K.S.A. 21–4643(a)(2)(B), the 25–year mandatory minimum does not apply if the court finds that
“the defendant, because of the defendant's criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guideline grid for nondrug crimes and the sentencing range exceeds 300 months. In such case, the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range.”
This language seems to require that the court convert, for comparison purposes, the defendant's off-grid sentence to a grid sentence. This would be consistent with K.S.A. 21–4707(c)(1), which provides that “[w]hen considering an unranked offense in relation to the crime severity scale, the sentencing judge should refer to comparable offenses on the crime severity scale.” Thus, because an off-grid offense is essentially an unranked offense in the sentencing guidelines grid for nondrug crimes, the district court would use the highest severity level set out in the statute establishing the particular crime to compare sentences. Accordingly, K.S.A. 21–4643(a)(2)(B) is merely a way for the sentencing court to make sure that the defendant who would be presumptively sentenced to more than a minimum of 300 months under the sentencing guidelines, would be required to serve, as a minimum number of months, that which he would have been required to serve under the sentencing guidelines for nondrug crimes with similar severity levels. That is exactly what the district judge did in this case. He converted the case for comparison purposes to a severity level III crime and imposed Thompson's criminal history level of B. This resulted in comparative guidelines sentence of a 228–month maximum sentence and a 206–month minimum sentence. K.S.A.2008 Supp. 21–4704(a).
It should be noted that neither party argues that this was an incorrect application of K.S.A. 21–4643 by the district court. However, Thompson does argue that because the comparative grid sentence did not exceed the 300 months required by K.S.A. 21–4643(a), the 300–month minimum sentence would apply. Thompson argues that it was error for the district court to take the next step and use K.S.A.2008 Supp. 21–4704(j) to double the maximum presumptive imprisonment term from 228 to 456 in order to push Thompson beyond the 300–month cut-off under K.S.A. 21–4643(a)(2)(B).
We agree. As the Supreme Court stated in Wilson the doubling provision of K.S.A.2008 Supp. 21–4704(j) applies only to the maximum sentence and has no application to the minimum sentence. Thompson's maximum sentence is life in prison. Accordingly, an offender's minimum sentence cannot be impacted by it. The doubling provision has no application in the case of an indeterminate life sentence. 294 Kan. at 820, 280 P.3d 784.
This interpretation will not have the result complained of by the State. In fact, K.S.A. 21–4643(a)(2)(B) seems to have been intended to prevent the problems the State foresees. To use an example propounded at oral argument, if Thompson were under 18 at the time of the offense he would fall under a presumptive prison grid box with a maximum sentence of 228 months (19 years) and a minimum sentence of 206 months (almost 17 years). See K.S.A. 21–3504(c); K.S.A.2008 Supp. 21–4704(a). Once the doubling provision is applied, he would have a maximum sentence of 456 months (38 years) and a minimum sentence still of 206 months (almost 17 years). This is still less than the 25 years to life required by K.S.A. 21–4643(a)(1). On the other hand, if Thompson had been charged with rape of a child less than 14 years of age, with his B criminal history he would have been subject to a maximum of 618 months and a minimum of 554 months under the sentencing grid. See K.S.A. 21–3502(a)(2), (c); K.S.A.2008 Supp. 21–4704(a). Since this is more than his minimum sentence of 300 months under K.S.A. 21–4643, he would be subject to the 554–month minimum grid sentence but still a maximum of life in prison.
Therefore, the district court's use of the doubling provision for persistent sex offenders under K.S.A.2008 Supp. 21–4704(j), when calculating whether Thompson's minimum sentence would go beyond 300 months under K.S.A. 21–4643(a)(2)(B), was in error, and we are required to reverse and remand for resentencing consistent with this opinion.
Sentence Based on a Criminal History Score Without Requiring the State to Present and Prove Prior Convictions to a Jury Beyond a Reasonable Doubt
Thompson asserts that the district court erred when it sentenced him based on a criminal history score that relied on prior convictions that were neither included in the complaint nor proven to a jury beyond a reasonable doubt. Thompson relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), but acknowledges our Supreme Court's holding in State v. Ivory, 273 Kan., 44, 46–48, 41 P.3d 781 (2002), and raises this issue to preserve it for federal review.
Absent some indication that our Supreme Court is departing from its position in Ivory, this court is bound thereby. See State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011). Our Supreme Court continues to apply its decision in Ivory without divergence. See, e.g., State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (affirming Ivory, 273 Kan. at 46–48, 41 P.3d 781). Similarly, the United States Supreme Court reaffirmed that prior convictions need not be proven to a jury beyond a reasonable doubt. See James v. United States, 550 U.S. 192, 214 n. 8, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). This court is duty bound to follow Ivory. Thus, this court rejects Thompson's claim that his rights were violated under Apprendi.
Affirmed in part, reversed in part, sentence vacated, and case remanded with directions for resentencing consistent with this opinion.