Opinion
No. 106,406.
2013-12-27
STATE of Kansas, Appellee, v. Justin George DERN, Appellant.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Justin George Dern appeals his convictions and sentences for sex crimes against his two daughters. He argues the district court should not have admitted his confession to law enforcement or evidence of his prior sexual misconduct; there was insufficient evidence to support his convictions; and the district court erred in instructing the jury on reasonable doubt and by imposing lifetime electronic monitoring.
Justin and Jami Dern had been married for 12 years when the alleged incidents occurred. They had three children together—a 7–year–old boy and 3–year–old twin girls, CD. and F.D. In late June 2010, CD. told Jami that she had seen “daddy's peepee,” but Justin quickly explained that she had seen him “going potty.”
On the evening of July 29, 2010, Jami took their son to a friend's house for a sleepover while Justin stayed home with the girls. The girls were asleep when Jami returned home.
After Justin left for work the next morning, Jami asked the girls about their evening with him. F.D. said, “I saw daddy's peepee.” When Jami asked her about it, F.D. said, “Daddy took out his peepee like this,” and pulled down the front of her underwear. She said, “I touched daddy's peepee.” When Jami asked her how she touched it, F.D. said, “Up and down like this,” while moving her cupped hand up and down. When Jami asked her if there was anything else she wanted to share, F.D. said, “I licked daddy's peepee.” When Jami asked her where she licked it, F.D. said, “I licked his peepee and then I licked his butt. I licked down there by his butt.” CD., who had been sitting next to Jami during the conversation, said, “Daddy just made me sad, and I don't want to see that again.”
Justin denied the girls' allegations at first—once when Jami called him at work and again when he got home. But later that evening, he locked himself in the bathroom. Jami found him sitting on the toilet seat, crying, with a loaded handgun by his side. He told her that he could not remember committing the alleged acts but “something inside him [told] him that he did it.” She thought he was suicidal so she hid the gun and ammunition.
The next day, Jami contacted Eric Dannefer, their pastor and Justin's best friend, to tell him Justin was suicidal. After a brief communication with Justin, Dannefer became concerned about Justin's mental state and made him promise not to do anything until they spoke in person. Dannefer visited the Justin house that evening. Justin explained to Jami and Dannefer that he had become aroused a couple of months earlier when the girls walked in on him in the restroom and wanted to see his penis. One time, he said, “[D]addy's got to put it away. It's an ouchy,” and when F.D. said, “Oh, well, can I give it a kiss?” he said, “Yeah, okay, you can give it a kiss.” Another time, he was sitting on the couch and CD. wanted to reach up his shorts to touch his penis. Justin confessed that on the night in question the girls had touched and licked his penis and he had masturbated in front of them. Concerned for his mental health and safety, Jami and Dannefer convinced Justin to check himself into the VA hospital. Jami drove him there. Justin was admitted on August 1, 2010, due to suicidal ideation.
Mario Lopez, an acute care psychiatric social worker at the hospital, was assigned to Justin's case. Justin confessed to Lopez that he had had “sexual contact” with his girls on four separate occasions, the last of which occurred on July 29, 2010, and involved them touching and licking his penis and him masturbating in front of them.
Brian Woodworm, a detective with the Pottawatomie County Sheriff's Office, investigated the alleged sexual abuse. Woodworth made an audio recording of his interview with Justin, which took place at the hospital on August 4, 2010. Justin confessed that the sexual abuse had been going on for “[a]bout two months.” It began with C.D.'s curiosity about his penis and progressed to him showing the girls his penis and letting them touch it. “The third time,” he allowed CD. to hold and stroke his penis, which aroused him. “[T]he fourth time,” he started to get aroused again so he let the girls touch and kiss his penis and put it in their mouths, and he ejaculated in the living room.
Justin was discharged from the hospital on August 6, 2010. The State charged him with two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties. Justin pled not guilty to the charges. Before trial, the district court denied Justin's motion to suppress his confession to law enforcement and granted the State's motion to allow evidence of Justin's prior sexual misconduct.
Jami, Lopez, Woodworm, and Justin testified to the aforementioned facts at the jury trial. Justin, however, testified that he had not committed any of the alleged acts against the girls. He said the girls may have seen him urinating on the night in question, but he had told them to leave the bathroom and they did. When Jami confronted him, he firmly denied the allegations and she threatened him with jail if he was not “straight” with her. The allegations and the thought of losing his family caused him to contemplate suicide. He confessed to Jami and Dannefer “just to get them to leave [him] alone”—he was distraught because they had spent 2 hours telling him that he must have committed the alleged acts and Jami had said she would leave him if he did not confess. He confessed to Lopez because he was unstable, defeated, and afraid of losing his family. He confessed to Woodworth, incorporating details about the progressive nature of sexual abuse suggested by Jami and Dannefer, because he had been offered help and treatment and thought he could save his family.
The jury found Justin guilty on all counts. The district court sentenced him to a controlling term of two consecutive life sentences with the possibility of parole after 25 years and imposed the requisite lifetime parole and registration. Justin timely appeals.
Justin first argues the district court should have excluded his confession to law enforcement because it was “unknowing and involuntary,” given the location, his mental state, his ignorance of possible charges, and Woodworm's promises to get him help.
A dual standard is used when reviewing the suppression of a confession. In reviewing a district court's ruling on a motion to suppress a confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Summers, 293 Kan. 819, 825, 272 P.3d 1 (2012).
Before trial, Justin filed a motion to suppress his confession to law enforcement. At the suppression hearing, the audio recording and transcript of Justin's interview with law enforcement were admitted into evidence. Woodworth interviewed Justin at the VA hospital on August 4, 2010, in a room that locked people out, not in. Justin's first statement was that he was “very excited about getting ... treatment.” Woodworth responded by saying that his first goal was to get Justin the help he needed. Justin said “there was not even a chance” of him being discharged that day because “they want[ed] to make sure [he was] over the suicide thing .” The only medication Justin was taking was for his thyroid, diabetes, and stomach issues. Woodworth explained that he was there to get Justin's side of the story after talking to Jami and the girls.
Justin was told multiple times that he was not under arrest, he was not required to talk, and he could talk after getting an attorney. When Justin asked what the “worst case scenario” was for him, Woodworth said he did not know because the county attorney would make the decision based on his report. When Justin questioned whether he should have an attorney present, Woodworth said that it was understandable if he wanted to talk to an attorney first, but “[s]ometimes it [ ] look[s] better to the county” if he were to talk to him instead. After telling Woodworth that he would like to cooperate and “attorneys c[ould] come later,” Justin confessed. Later, Justin said he was “long past” the suicidal “stage.” The interview lasted for about 40 minutes.
After the hearing, the district court denied Justin's motion to suppress. The court made the following factual findings: (1) “[D]efendant was clearly conscious and was capable of understanding what [he] said and did during the interview” because he told Woodworth that he was “long past” the “stage” of being suicidal; (2) “There is simply no evidence to support a finding that any compulsion, infliction of suffering on defendant or anyone else, or the threat of the same was part of this interview process”; (3) “[D]efendant's statements were not induced by prolonged interrogation under such circumstances as to render the statement involuntary” because “[t]he interview took less than an hour” and “[l]aw enforcement offered to terminate the interview several times, if defendant wanted to consult with an attorney”; and (4) “[D]efendant's statements were not induced by any threats or promises concerning action to be taken by the county attorney's office, or by law enforcement itself with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.” Based on these findings, the court held that Justin's confession to law enforcement was admissible under K.S.A.2010 Supp. 60–460(f).
The following evidence was presented at trial regarding Justin's confession to Woodworth. Justin was admitted to the hospital due to suicidal ideation and remained in the acute care unit for the duration of his 6–day stay. On day 3, Justin told Lopez that he was no longer suicidal and was ready to return to work to support his family. On day 4, Woodworth contacted Justin in the hallway and requested an interview. Justin “walked right in” to the empty day room. Justin had no reason to know that Woodworth was recording their interview. Woodworth was unable to talk to Justin's doctor or social worker before the interview. Justin was a voluntary patient and not required to stay, but the acute care team convinced him to stay for 6 days. Justin renewed his objection to Woodworth testifying about his confession, but the district court overruled it.
The State has the burden to prove the voluntariness of a confession by a preponderance of the evidence—that the statement was the product of the defendant's free and independent will. State v. Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010). The court looks at the totality of the circumstances surrounding the confession and determines its voluntariness by considering the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. State v. Harris, 293 Kan. 798, 807–08, 269 P.3d 820 (2012).
K.S.A.2010 Supp. 60–460(f) provides for hearsay testimony regarding the admissibility of a defendant's confession as follows:
“In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
A defendant's mental condition alone should never dispose of the inquiry into constitutional voluntariness. State v. Lane, 262 Kan. 373, 386, 940 P.2d 422 (1997). In order to exclude a confession due to the defendant's mental condition, there must be a link between the coercive activity of the State and the confession. State v. Mays, 277 Kan. 359, 376, 85 P.3d 1208 (2004). A law enforcement officer's offer to convey a suspect's cooperation to the prosecutor is insufficient to make a confession involuntary. State v. Swanigan, 279 Kan. 18, 33–34, 106 P.3d 39 (2005); see State v. Banks, 260 Kan. 918, 924, 927 P.2d 456 (1996) (officer's statement that authorities would take note if defendant cooperated held not coercive); State v. Johnson, 253 Kan. 75, 84, 853 P.2d 34 (1993) (officer's statement that he would tell district attorney if defendant cooperated held not coercive).
In State v. Creekmore, 208 Kan. 933, 935, 495 P.2d 96 (1972), the defendant was accused of multiple counts of incest and carnal knowledge of a female under 18 years old. The detective suggested that if the charges were true, the defendant needed psychiatric help and he would do what he could to obtain psychiatric help for the accused. The defendant testified that he confessed in hopes he might be sent to a mental institution for a shorter time than if he was convicted and sent to prison. 208 Kan. at 935. The court affirmed the district court's decision that the confession was voluntary. 208 Kan. at 936.
Even if Justin was suicidal at the time of his confession, there is no evidence of coercion. Review of the audio recording reveals that Woodworth interviewed Justin for only 40 minutes; informed him that his statements would be reported to the county attorney; and offered to talk to him after he had acquired an attorney. Justin sounded calm and alert, and he had no trouble answering Woodworth's questions. Woodworm's statement that Justin's cooperation would “look better” to the county attorney was not coercive. See Banks, 260 Kan. at 924. Neither were Woodworth's offers to get Justin help. See Creekmore, 208 Kan. at 936. Substantial competent evidence—the audio recording—supports the district court's findings that Justin was conscious and capable of understanding what he said, and that Woodworth did not induce his confession through compulsion, threats of suffering, prolonged interrogation, or threats or promises of action by a public official. The court reached the correct legal conclusion—Justin's confession was voluntary.
Therefore, the district court did not err by admitting Justin's confession to law enforcement.
Justin also argues that the district court should have excluded evidence of his prior sexual misconduct because his intent and his relationship with C.D. and F.D. were not relevant and the evidence was more prejudicial than probative.
An appellate court exercises unlimited review over issues of statutory interpretation. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). It exercises de novo review over the issue of whether evidence is material. State v. Wilson, 295 Kan. 605, 617, 289 P.3d 1082 (2012). And it employs the abuse of discretion standard to review issues of whether evidence is relevant, probative, and not unduly prejudicial. State v. Inkelaar, 293 Kan. 414, 424, 264 P.3d 81 (2011).
Before trial, the State filed a motion to allow evidence of Justin's prior sexual misconduct to prove his intent and the credibility of the girls' statements to Jami. Relying on State v. Hart, 44 Kan.App.2d 986, 242 P.3d 1230 (2010), rev. granted 292 Kan. 967 (2011), the district court allowed the evidence to prove “the course of conduct and the relationship between the defendant and the alleged victims.” The court found the evidence was “very relevant and highly probative” but not more prejudicial than probative. Justin was granted a continuing objection to the prior bad acts evidence.
The following evidence was admitted at trial regarding Justin's prior sexual misconduct. A year before the alleged crimes, C.D. had told Jami she had seen “daddy's peepee.” Justin had sexually abused the girls three times in the 2 months leading up to the alleged crimes. He came to be aroused by the girls' curiosity about his penis. One time, he showed the girls his penis and let them touch it. Another time, he permitted CD. to stroke his penis. And another time, he allowed F.D. to kiss his penis.
The district court gave the jury the following limiting instruction: “Evidence has been admitted tending to prove that the defendant committed crimes other than the present crimes charged. This evidence may be considered solely for the purpose of proving the defendant's relationship with CD. and F.D.”
All relevant evidence is admissible unless statutorily excluded. K.S.A. 60–407(f). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b); see State v. Gilliland, 294 Kan. 519, 540, 276 P.3d 165 (2012) (a material fact is one that “ ‘ “has a legitimate and effective bearing on the decision of the case and is in dispute.” ‘ “
The version of K.S.A. 60–455 applicable in Justin's case requires that certain evidence be excluded:
“(a) Subject to K.S.A. 60–447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60–445 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
....
“(d) Except as provided in K.S.A. 60–445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.” K.S.A.2010 Supp. 60–455.
See K.S.A.2010 Supp. 60–455(g)(1) (“ ‘act or offense of sexual misconduct’ “ includes “[a]ny conduct proscribed by article 35 of chapter 21 of the Kansas Statutes Annotated”).
A district court has discretion to
“exclude otherwise admissible evidence if its probative value is substantially outweighed by the risk that its admission will unfairly prejudice the party against whom it is offered. K.S.A. 60–445; State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001) (although K.S.A. 60–445 requires probative versus prejudicial balancing only when the opposing party claims surprise, balancing may require exclusion ‘as a rule of necessity’ when the probative value is substantially outweighed by risk of unfair prejudice).” State v. Smith, 296 Kan. 111, 123, 293 P.3d 669 (2012).
See Inkelaar, 293 Kan. at 425 (prior bad acts evidence is unduly prejudicial when it actually or probably brings about the wrong result under the circumstances of the case).
To admit prior bad acts evidence, the district court must find that (1) the evidence is relevant to prove a material fact; (2) the material fact is disputed; and (3) the probative value of the evidence is not substantially outweighed by the risk of undue prejudice. State v. Torres, 294 Kan. 135, 139–40, 273 P.3d 729 (2012). If the court admits the evidence under K.S.A.2010 Supp. 60–455, it must also give a limiting instruction to ensure the jury considers the evidence only for the specific reason it is admitted. Smith, 296 Kan, at 124.
Justin correctly asserts that intent was not a disputed material fact in his case. See State v. Wells, 289 Kan. 1219, Syl. ¶ 4, 221 P.3d 561 (2009) ( “When a defendant does not assert that his or her actions were innocent but rather wholly denies that the charged conduct occurred, intent is not a disputed material fact and evidence of other crimes or civil wrongs may not be admitted to prove intent.”). The Wells facts are analogous but the legal analysis is distinguishable. Wells was charged with two counts of aggravated criminal sodomy against his fiancee's daughters. At trial, the State presented evidence that he had previously tried to remove one girl's pajamas pants and had previously committed the charged act against the other girl. Wells completely denied having committed the charged acts. The Wells court held that the evidence of Wells' prior bad acts was erroneously admitted to prove intent under a prior version K.S.A. 60–455, which consisted of current subsections (a) and (b). 289 Kan. at 1225–32. Here, we must decide whether Justin's prior bad acts were properly admitted to prove the relationship of the parties under K.S.A.2010 Supp. 60–455(d).
In Hart, 44 Kan.App.2d at 1017–18, the court found that sexual misconduct evidence was admissible to prove a material fact but not to prove criminal disposition. Meaning it interpreted 60–455(d) as being subject to the constraints of subsections (a) and (b). 44 Kan.App.2d at 1022–24. Then, using an old Supreme Court case for support, the court found that the relationship of the parties is a material fact where the defendant's prior sexual misconduct is against the same victim. 44 Kan.App.2d at 1019–21;State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 (1981) (defendant's prior sex crimes against same victim admissible “to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the complaining witness' testimony as to the act charged”). But see State v. Gunby, 282 Kan. 39, 56–57, 144 P.3d 647 (2006) (disapproving Crossman's admission of sex crimes evidence outside K.S.A. 60–455). The court ultimately reasoned that evidence of Hart's prior sexual misconduct against the same victims (1) was admissible to prove the material fact of the relationship between Hart and his victims, and (2) was relevant and probative to that material fact and not unduly prejudicial to Hart. 44 Kan.App.2d at 1024.
In State v. Young, No. 102,121, 2012 WL 401600, at * 14–16 (Kan.App.2012) (unpublished opinion), petitions for review filed March 1 and 8, 2012, the court disagreed with Hart, finding that sexual misconduct evidence was admissible to prove criminal disposition. Meaning it interpreted K.S.A.2010 Supp. 60–455(b) and (d) as being separate exceptions to 60–455(a)'s exclusion of prior bad acts evidence to prove criminal disposition. 2012 WL 401600, at *14–16. The court found that the key determinations were whether evidence of Young's sexual misconduct against a different victim was relevant and probative to the matter at issue—his disposition to sexually assault his current victim—and, if so, whether the sexual misconduct evidence should be excluded as unduly prejudicial. 2012 WL 401600, at *16.
We follow Young because its interpretation is consistent with the plain language of K.S.A.2010 Supp. 60–455. Subsection (a) excludes evidence of a defendant's prior bad acts to prove the defendant's criminal disposition (a material fact). Subsection (b) allows evidence of a defendant's prior bad acts to prove other material facts ( e.g., his intent or relationship with current victim); use of the word “other” indicates that criminal disposition is also a material fact. And subsection (d) allows evidence of a defendant's prior sexual misconduct (a subset of bad acts) to prove any matter ( e.g., his criminal disposition or relationship with current victim) if the evidence is relevant and probative to the matter.
Here, the district court should have admitted the evidence of Justin's prior sexual misconduct to prove his criminal disposition rather than his relationship with the girls. But we will affirm its decision nonetheless. See State v. Reid, 286 Kan. 494, Syl. ¶ 7, 186 P.3d 713 (2008) (“A trial court's decision to admit evidence under K.S.A. 60–455 will not be reversed if it is right, but for the wrong reason.”). Although Justin's intent to commit the charged sex crimes was not in dispute, his disposition to commit the charged sex crimes was. Justin's prior sexual misconduct was relevant and probative to his disposition to commit the charged sex crimes because it involved the same victims and took place only months earlier. The district court did not abuse its discretion by ruling that the prior sexual misconduct evidence was not unduly prejudicial. The evidence was highly probative because Justin's prior sexual misconduct was strikingly similar to the alleged crimes described by F.D.
Therefore, the district court did not err by admitting evidence of Justin's prior sexual misconduct.
Justin's next argument is that the jury instructions created an alternative-means situation and the State did not present evidence to support each alternative means of committing aggravated criminal sodomy and aggravated indecent liberties. He also argues there was insufficient evidence of aggravated criminal sodomy and aggravated indecent liberties against CD. because the State failed to present sufficient evidence to corroborate his confession.
Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal. State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 977 (2012); see State v. Kesselring, 279 Kan. 671, 678, 112 P.3d 175 (2005) (court exercises de novo review over jury unanimity issues). The test for sufficiency of the evidence is whether, considering all 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, the appellate court must first identify whether the criminal statute supporting the charged crime is an alternative means statute. Brown, 295 Kan. at 193, 199–200. (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?).
For the charge of aggravated criminal sodomy, the jury was instructed that sodomy means “(1) oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; (2) oral or anal sexual relations between a person and an animal; (3) sexual intercourse with an animal; or (4) anal penetration, however slight, of a male or female by any body part or object.” Justin argues that the instruction created alternative means of committing aggravated criminal sodomy. Because the State presented no evidence that there was also (1) oral contact or penetration of the female genitalia, (2) oral or anal sexual relations between a person and an animal, (3) sexual intercourse with an animal, and (4) anal penetration of a male or female by any body part or object, Justin claims that his convictions must be reversed.
At the time of the offense, 2010 Supp. K.S.A. 21–3506(a)(l) defined aggravated criminal sodomy as “[s]odomy with a child who is under 14 years of age.” The language at issue in this case comes from K.S.A. 21–3501(2), which defines sodomy as “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.”
The Kansas Supreme Court has recently decided whether these statutes create alternative means of committing sodomy. The court has held that K.S.A. 21–3501(2) creates three alternative means—(1) oral contact with male or female genitalia, (2) anal penetration of a male or female, and (3) sexual acts between a person and an animal—because it lists separate or distinct material elements of sodomy. State v. Stafford, 296 Kan. 25, Syl. ¶ 16, 290 P.3d 562 (2012); State v. Burns, 295 Kan. 951, Syl. ¶ 7, 287 P.3d 261 (2012). The court has also held that the phrase “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia” creates “options within a means” because it merely describes different factual circumstances that would prove a material element ( actus reus )—oral contact of genitalia. See Stafford, 296 Kan. at 51–53;State v. Wells, 296 Kan. 65, 82–85, 290 P.3d 590 (2012); State v. Britt, 295 Kan. 1018, 1022–25, 287 P.3d 905 (2012).
Alternative means issues have been the source of much criminal law litigation. As Justice Luckert has aptly noted, application of the analysis necessary to determine how to apply alternative means law is “mind-bending.” Brown, 295 Kan. at 192.
Applying current Kansas law as we understand it, we believe that the two counts of aggravated criminal sodomy should stand.
Criminal sodomy is defined as: (1) oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; (2) oral or anal sexual relations between a person and an animal; (3) sexual intercourse with an animal; or (4) anal penetration, however slight, of a male or female by any body part or object. K.S.A. 21–3501(2).
Of course, evidence here was only provided concerning definition (1). Unfortunately, as has happened entirely too often in recent years, the State, the defendant, and the court instructed on both forms of oral sodomy.
In State v. Schreiner, 46 Kan.App.2d 778, 264 P.3d 1033 petition for rev. denied February 20, 2011, the court was presented with a very similar situation. The same error occurred—instructing on both means of committing oral sodomy. There was no objection although evidence had been presented on only one of the possibilities. The Schreiner court held that by requesting or not objecting to the faulty instruction, the error, if there was one, was invited. 46 Kan.App.2d at 786–89. It also found that since there was invited error, the court would not allow the defendant to complain that the wrong instruction, which the defendant suggested and did not object to, had been given.
We follow Schreiner and find that if there was error here, it was invited. We will not allow Justin to profit from his own actions.
Justin's aggravated indecent liberties convictions are affirmed because the phrase “either the child or the offender, or both” does not create alternative means and there was evidence that Justin acted with the intent to arouse or satisfy his own sexual desires and evidence that corroborated Justin's confession that he submitted to lewd touching of his person by CD.
For the charges of aggravated indecent liberties, the jury was instructed that the State had to prove that “the defendant submitted to lewd fondling or touching of his person by [C.D. and F.D.], with the intent to arouse or to satisfy the sexual desires of either the child or the defendant, or both.” Justin argues the instruction created alternative means of committing aggravated indecent liberties. Because the State presented no evidence he acted with the intent to arouse or satisfy the sexual desires of CD. and F.D., Justin claims his convictions must be reversed.
At the time of the offense, K.S.A.2010 Supp. 21–3504(a)(3)(A) defined aggravated indecent liberties as in engaging in the following act “with a child who is under 14 years of age”: “[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.”
The Kansas Supreme Court has recently decided whether this statutory subsection creates alternative means of committing aggravated indecent liberties. The court has held that K.S.A. 21–3504(a)(3)(A) is one of several alternative means of committing aggravated indecent liberties. See Brown, 295 Kan. at 200–01. The court has also held that the phrase “either the child or the offender, or both” creates “options within a means” because it merely describes different factual circumstances that would prove a material mental element ( mens rea )—intent to arouse or satisfy sexual desires. See 295 Kan. at 2002; Britt, 295 Kan. at 1026;Burns, 295 Kan. at 965.
Because the jury here was not instructed on alternative means of committing aggravated indecent liberties, concerns of jury unanimity are not triggered and super-sufficiency of the evidence is not required. The State was only required to present evidence that Justin acted with the intent to arouse or satisfy his own sexual desires or the sexual desires of C.D. and F.D. Justin concedes that the State presented evidence that he acted with the intent to arouse or satisfy his own sexual desires ( i.e., Justin let C.D. and F.D. touch his penis because it aroused him).
Justin further argues the State failed to present sufficient evidence of lewd touching by C.D. to corroborate his confession.
“An uncorroborated extrajudicial confession is insufficient to sustain a conviction.” State v. Tillery, 227 Kan. 342, 346, 606 P.2d 1031 (1980). The purpose of the rule that a defendant cannot be convicted on his own uncorroborated confession is to prevent “errors in convictions based upon untrue confessions alone.” Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876 (1941). Corroboration of an extrajudicial confession is necessary, but it is sufficient “if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged.” Smith v. United States, 348 U .S. 147, 156, 75 S.Ct. 194, 99 L.Ed. 192 (1954). In Tillery, our Supreme Court held that the elements of indecent liberties were sufficiency proved by the defendant's confession combined with circumstantial evidence. 227 Kan. at 346–47.
The State presented several pieces of evidence that CD. had lewdly touched Justin. Jami testified that directly after F.D. reported touching and licking Justin's penis, CD. said, “Daddy just made me sad, and I don't want to see that again.” Jami, Dannefer, Lopez, and Woodworth all testified that Justin had confessed to them that CD. and F.D. had touched and licked his penis. The truth of Justin's confession was fortified by C.D.'s statement to Jami and the fact that Justin confessed three separate times, providing different details on two of those occasions.
There was sufficient evidence to support Justin's aggravated indecent liberties convictions.
Justin argues the district court's insertion of the word “any” in place of the word “each” in the reasonable doubt instruction constituted structural error because it mischaracterized the State's burden of proof.
Our Supreme Court recently clarified the standard of review applicable to jury instruction issues in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012). The threshold determination is whether the issue is reviewable. A defendant who did not object at trial can raise a jury instruction issue on appeal but bears the burden of showing clear error. 295 Kan. 506, Syl. ¶ 3 (citing K.S .A. 22–3414[3] ). The appellate court must then exercise unlimited review to determine whether an instruction error occurred, before making a de novo determination of whether the instruction error was reversible. 295 Kan. 506, Syl. ¶¶ 4, 5 (instruction error is clearly erroneous where “the reviewing court ... is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred”).
At the conclusion of Justin's trial, the jury was instructed: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) Justin did not object to the instruction.
In State v. Beck, 32 Kan.App.2d 784, 785, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004), the defendant objected to this same reasonable doubt instruction language. The Beck court implied that district courts should use the current version of PIK Crim.3d 52.02—“If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty” (Emphasis added.)—because it provides the most accurate test for reasonable doubt. But in State v. Waggoner, 297 Kan. ––––, Syl. ¶ 2, 298 P.3d 333 (2013, and State v. Herbel, 296 Kan. 1101, Syl. ¶ 9, 299 P.3d 292 (2013), we held that the reasonable doubt instruction language here, while not preferred, is legally appropriate and not error.
Furthermore, the Beck court held that the elements instruction negated the possibility that the defendant was convicted where only one element of the crime had been proven. 32 Kan.App.2d at 787–88. Here, the jury instructions on aggravated criminal sodomy and aggravated indecent liberties stated: “To establish this charge, each of the following claims must be proved....” As in Beck, this language negated any potential confusion that may have been caused by the old pattern reasonable doubt instruction.
The district court did not commit reversible error by using the old pattern instruction to instruct the jury on reasonable doubt. However, the new pattern instruction is preferred.
Finally, Justin argues that the district court lacked authority to impose parole conditions. We exercise unlimited review over issues of statutory interpretation. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
At sentencing, the district court pronounced the imposition of lifetime parole and registration but not electronic monitoring. But the sex crime supplement to the journal entry of judgment did reference lifetime electronic monitoring. Because Justin was a first-time offender and did not receive a downward departure sentence, the supplement was completed this way: “[X] Mandatory minimum of greater of Hard 25 years (300 months) or [N/A/59] months pursuant to guidelines given offender's criminal history; lifetime postrelease supervision; lifetime electronic monitoring.”
Our Supreme Court has held that the imposition of parole conditions, including lifetime electronic monitoring, is within the authority of the parole board (now prisoner review board) but outside the jurisdiction of the district court. State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011) (citing K.S.A. 22–3717(u) and K.S.A. 21–4603). The district court erred by imposing lifetime electronic monitoring. State v. Antrim, 294 Kan. 632, 636–37, 279 P.3d 110 (2012), controls because its facts are analogous to those of this case. Accordingly, we need not vacate any portion of Justin's sentences. Instead, we must “remand this case to the district court for entry of a nunc pro tunc order deleting the reference in the journal entry to lifetime electronic monitoring.” See Antrim, 294 Kan. at 636–37.
Affirmed in part and remanded with instructions.