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State v. Horn

November 7, 2008; as amended December 5, 2008

STATE OF KANSAS, APPELLEE,
v.
JERRY ALLEN HORN, APPELLANT.



Appeal from Johnson District Court; STEVE LEBEN, judge.

SYLLABUS BY THE COURT

1. The reference to "trial jury" in K.S.A. 21-4718 does not limit the ability of the State to only ask for upward durational departures where not guilty pleas were entered and a jury trial was held to determine guilt or innocence.

2. The aggravating factor, as set forth in K.S.A. 21-4716(c)(2)(D), of the existence of a fiduciary relationship between a defendant and a victim is not unconstitutionally vague or overbroad.

3. A fiduciary relationship existing between a defendant and his or her victim is a statutory factor that may be considered in sentencing.

4. A district court is not required to make a pretrial analysis of whether the existence of a fiduciary relationship is a proper sentencing factor to be submitted to a jury because it is one of the nonexhaustive statutory mitigating and aggravating factors listed in the sentencing guidelines.

5. Under the facts of this case, the district court did not abuse its discretion in admitting evidence of the sex acts between the defendant and the victim as evidence to establish a fiduciary relationship between the parties.

6. Under the facts of this case, the defendant's rights of confrontation under the Sixth Amendment to the United States Constitution were not violated because the victim was available for cross-examination in the proceedings below and there is case law indicating that confrontation requirements are not applicable to post-conviction proceedings.

7. Under the facts of this case, because the evidence of the sex acts between the defendant and the victim was admitted to show the extent of the relationship between the parties, a cautionary instruction should have been given, but the district court's failure to do so was not clearly erroneous.

8. Under the facts of this case, when the evidence is examined in the light most favorable to the prosecution, the jury could have found the existence of a fiduciary relationship beyond a reasonable doubt and the motion for acquittal was properly overruled. The jury was properly instructed on the definition of fiduciary relationship, and there was sufficient competent evidence to support the jury's verdict.

9. In an upward durational departure sentence proceeding, evidence may be presented that the court deems relevant to determine if any specific factors exist that may serve to enhance the maximum sentence. In this case, there is no merit to the defendant's claim that he was denied the opportunity of presenting mitigating evidence because the defendant was given the right to do so and failed to present or proffer any such evidence.

10. Under the facts of this case, although the district court did not specifically state at the sentencing hearing that the evidence establishing the fiduciary relationship between the defendant and the victim was substantial and compelling, the sentencing hearing record shows the sentencing judge had a clear understanding of the statutory sentencing obligations involving multiple convictions and, the necessary factual findings by a unanimous jury beyond a reasonable doubt of a factor which would justify an upward durational departure.

The opinion of the court was delivered by: Larson, J.

Affirmed.

Before MALONE, P.J., BUSER, J., and LARSON, S.J.

This is the appeal of Jerry Allen Horn from the upward departure sentence entered after he pled guilty to seven sex crimes with a 10-year-old boy.

Horn's arguments revolve around the procedure involved in impaneling a jury to consider whether a fiduciary relationship existed between Horn and the victim as an aggravating factor to justify an upward durational departure sentence.

The record reflects that Horn was charged with three counts of aggravated criminal sodomy with a child under the age of 14 years, a level 1 person felony in violation of K.S.A. 21-3506; three counts of aggravated indecent liberties with a child under the age of 14 years, a level 3 person felony in violation of K.S.A. 21-3504; and one count of sexual exploitation of a child, a level 5 person felony in violation of K.S.A. 21-3516. At his arraignment, Horn pled not guilty.

Horn moved to suppress the confession that he had given to a detective of the Lenexa Police Department, contending it was the result of mentally coercive tactics. Prior to trial, the State filed a notice of its intent to ask for an upward durational departure sentence based on the aggravating factor that the offenses involved a fiduciary relationship between Horn and the victim.

On the morning of trial, with a jury waiting to be called, Horn changed his plea from not guilty to guilty. There was no plea agreement. In great detail and at great length, the district court questioned Horn as to his wishes and concluded Horn was knowingly and voluntarily entering a plea of guilty to all seven charges.

The record reflects Horn understood that if a departure was granted, the sentence could be 492 months in prison. Horn was 68 years old and had an undergraduate degree in electrical engineering. He understood that by his guilty plea he was admitting that he committed the acts set forth in the amended complaint. The State provided a factual basis for the pleas. Horn agreed with the factual basis. Horn had no questions prior to the court's acceptance of his guilty pleas.

The district court then considered the State's motion for an upward durational departure sentence based on the existence of a fiduciary relationship between Horn and the victim, 10-year-old C.T.P. Both counsel discussed with the court the necessity of having the claimed upward departure factor determined by a jury but also agreed that Horn could waive a jury trial. Defense counsel stated they were prepared for a departure hearing before a jury.

The prosecution and defense argued about whether the evidence of the sexual activity between Horn and C.T.P. could come into the hearing or whether it was so prejudicial that the evidentiary value was outweighed. The district court considered the discussion an additional motion in limine to exclude the evidence and then denied the motion. The court decided the jury was entitled to know that the defendant had pled guilty to certain crimes, stating one could not divide out that part of the relationship between Horn and C.T.P.

A jury was selected, and the court gave preliminary instructions which set forth the elements of the crimes pled to, a definition of "fiduciary relationship," and the normal and usual instructions given requiring proof beyond a reasonable doubt and a unanimous verdict.

Witnesses testifying before the jury consisted of a teacher who had received a note from C.T.P. complaining of bad touches, C.T.P.'s mother, C.T.P., an interview specialist who had interviewed C.T.P. and authenticated the tape of that interview, which was played before the jury, C.T.P.'s father, and a detective who had interviewed C.T.P. and his mother and had taken pictures of the inside of Horn's apartment which were admitted into evidence.

C.T.P.'s mother testified to the outstanding relationship the family had with Horn, who had become more than a friend but like a family member. He was at their home on weekends and took the boys (C.T.P. and his twin brother) to music lessons, home from church, go-carting, waterskiing, to the lake, to camp outs, and to his home for overnights. Horn took the boys flying in a small plane, and on Saturdays went out for lunch and played games like laser tag and paintball. Horn became a part of the family and at one point, said he had spent about $3,000 entertaining the boys. C.T.P. always had extra money, which he said came from Horn.

C.T.P. testified as to his involvement with Horn, and this testimony was much like his mother's. He did not testify as to any of the sex crimes forming the basis for the complaint and plea of guilty.

The interview specialist testified her interview with C.T.P. was recorded, and the State sought to admit it into evidence. The defense renewed its pre-evidence objection to any evidence of the sexual activity, argued the evidence was cumulative, and did not address the fiduciary relationship. The court overruled the objections, finding that the "sexual conduct is clearly relevant to this proceeding." The video was admitted and viewed by the jury.

C.T.P.'s father testified to essentially the same information as his wife concerning the family's relationship with Horn. He said he had expected Horn to exercise a normal duty of care to protect others but admitted there was no formal or written agreement regarding medical treatment or care of the boys.

The police officer testified he interviewed C.T.P. and was present at the investigator's interview. He authenticated photographs of Horn's apartment, including rockets, guns, a ferret, and photographs of the boys. The officer also interviewed Horn, and over defense objections a video of that interview was admitted into evidence and shown to the jury.

After the State rested, the defense moved for acquittal, or more accurately, presented a motion contending the State had failed to establish a prima facie case showing a fiduciary relationship. The motion was denied.

Horn did not present any evidence or testimony, although he was in no manner prevented from doing so.

The parties had a jury instruction conference, and Horn objected to an instruction defining fiduciary relationship to which the district court added a sentence. This will be discussed in more detail as an issue in this appeal.

The jury was instructed, counsel for both parties argued, and the matter was submitted to the jury. The jury returned a verdict finding that a fiduciary relationship was established on each count of aggravated sodomy and aggravated indecent liberties.

At sentencing, the court heard testimony from Horn's pastor, Horn's two daughters, and the victim's parents. The court imposed a sentence of 234 months, double the standard (mid-box) sentence, on each of the three counts of aggravated sodomy, and 59 months, again double the standard sentence, on each of the three counts of aggravated indecent liberties. The sentences were imposed consecutive to each other and totaled 1,088 months, but pursuant to K.S.A. 21-4720, Horn received the maximum sentence under the law of 468 months (double the base sentence).

The court discussed all the evidence before it as justifying the sentence but did not make a specific statement that the departure factor was substantial and compelling.

Horn has filed a timely appeal raising a multitude of issues which we will consider as raised.

Horn first argues it was error to impanel a jury to consider the existence of an upward departure factor because there is no statutory authority for such action when a defendant enters a plea.

Horn additionally contends that in the absence of specific statutory authority, impaneling the jury violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and §§ 5 and 10 of the Kansas Constitution Bill of Rights.

Horn did not raise any constitutional issues before the district court. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006). Horn recognizes that he did not raise this issue below but argues consideration of the issue is properly based on the exception that consideration of the theory is necessary to serve the ends of justice and to prevent denial of fundamental rights. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). This is the case with several other constitutional issues first raised on appeal, which we will reach to protect Horn's fundamental rights.

The history of the right to have juries consider any fact that increases a criminal penalty beyond the statutory maximum is well-known. It originated in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), and was followed in Kansas by State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2001), where K.S.A. 2000 Supp. 21-4716 was struck down for allowing upward departure criminal sentences based only on a judge finding one or more aggravating factors by a preponderance of the evidence. This was followed in 2002 by amendment of K.S.A. 21-4716 and K.S.A. 21-4718 (L. 2002, ch. 170, secs. 1 and 2) by the Kansas Legislature to provide direction and procedure for jury trials convened to consider upward departure requests which must be proven beyond a reasonable doubt.

Horn first contends that the reference to a jury in the departure hearing statutes is to the "trial jury," which he translates into an argument that only the "trial jury" can hear an upward departure question and its corollary conclusion that a defendant is not subject to an upward departure when a defendant enters a ...


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