Appeal from Rice District Court; RON L. SVATY, judge.
SYLLABUS BY THE COURT 1. The Kansas statute prohibiting rape, K.S.A. 21-3502,-which incorporates the statutory definition of sexual intercourse from K.S.A. 21-3501(1), as penetration of the female sex organ "by a finger, the male sex organ or any object"-does not create an alternative means crime. 2. The use of a phrase referencing the sexual desires "of either the child or the offender, or both" in the Kansas statute defining aggravated indecent liberties with a child, K.S.A. 21-3504, does not create an alternative means crime. 3. In this case, under the three prongs of the State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), proportionality test, the defendant's hard 25 life sentence under Jessica's Law for rape is not disproportional and so is not impermissible under § 9 of the Kansas Constitution Bill of Rights. 4. Under the three prongs of State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), in this case, the defendant's hard 25 life sentence under Jessica's Law for aggravated indecent liberties with a child is not disproportional under § 9 of the Kansas Constitution Bill of Rights.
The opinion of the court was delivered by: Beier, J.
The opinion of the court was delivered by BEIER, J.:
Defendant Stacy Robert Newcomb appeals his convictions on one count of rape and one count of aggravated indecent liberties for his conduct with his third-grade stepdaughter, as well as his two consecutive Jessica's Law hard 25 life sentences.
Newcomb argues: (1) Rape is an alternative means crime, and the State's proof of at least one of the means on which the jury was instructed was insufficient; (2) aggravated indecent liberties is an alternative means crime, and the State's proof of at least one of the means on which the jury was instructed was insufficient; (3) his Jessica's Law hard 25 life sentence for rape is disproportional under § 9 of the Bill of Rights of the Kansas Constitution; and (4) his Jessica's Law hard 25 life sentence for aggravated indecent liberties is disproportional under § 9.
We hold that none of Newcomb's arguments has merit, and we affirm his convictions and sentences.
FACTUAL AND PROCEDURAL BACKGROUND
Newcomb's 8-year-old stepdaughter, K.S., told her school friends that Newcomb had been touching her private parts and having sex with her. A mother of one of the friends learned of the allegation and called the police. After an investigation, the State charged Newcomb with two counts of aggravated indecent liberties with a child.
During Newcomb's preliminary hearing, the State presented evidence that Newcomb had penetrated K.S.'s vagina with his penis. Then the court, on its own motion, amended the first count to charge rape rather than aggravated indecent liberties.
At trial, K.S. testified that Newcomb touched her inappropriately, inserted his "wiener" into her "front butt," and fondled her in the bathtub and while they watched "inappropriate" movies. K.S. also testified that Newcomb told her not to tell anyone about the abuse.
Newcomb testified in his own defense and denied all of the allegations. After the jury found Newcomb guilty on both counts and before sentencing, Newcomb filed a motion challenging the constitutionality of Jessica's Law. The district court judge made factual findings under the three-part test enunciated in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and determined that Jessica's Law was constitutional.
Rape as an Alternative Means Crime
Newcomb's first argument raises an issue of statutory interpretation. "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, 193-94, 284 P.3d 977 (2012).
A criminal defendant has a statutory right to a unanimous jury verdict. See K.S.A. 22-3421; State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶ 13, 285 P.3d 361 (2012); State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), this court explained:
"'In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.'"
"Because jury unanimity is not required as to the means by which an alternative means crime is committed, unanimity instructions are not required in alternative means cases." Rojas-Marceleno, 295 Kan. at 544. Nevertheless, the State must meet a "super-sufficiency of the evidence" requirement, i.e., present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Rojas-Marceleno, 295 Kan. at 544. If the ...