Appeal from Wyandotte District Court; ERNEST L. JOHNSON, judge.
SYLLABUS BY THE COURT 1. K.S.A. 21-3502 does not state alternative means of committing rape even though it incorporates the statutory definition of sexual intercourse from K.S.A. 21-3501(1), which includes three types of penetration of the female sex organ-by a finger, the male sex organ, or any object. K.S.A. 21-3501(1), rather than stating alternative means, merely defines "sexual intercourse" and describes different factual circumstances by which a defendant might perpetrate the single actus reus of the crime of rape-penetration of the female sex organ. 2. When a defendant challenges his or her statement to a law enforcement officer as involuntary, the prosecution must prove the voluntariness of the statement by a preponderance of the evidence. 3. In determining whether a statement to a law enforcement officer was the product of an accused's free and independent will, a trial court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of 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. These factors are not to be weighed against one another with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act. 4. On appeal of a trial court's determination regarding the voluntariness of a confession, an appellate court applies a dual standard when reviewing the trial court's decision on a suppression question. First, the factual underpinnings of the decision are reviewed under a substantial competent evidence standard. Next, the appellate court reviews the trial court's legal conclusion drawn from those facts de novo. The appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. 5. K.S.A. 60-404 provides that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial. 6. A sentencing judge who mistakenly references the nonexclusive list of mitigating factors found in K.S.A. 21-4716(c)(1) (presumptive sentencing guidelines sentence; downward departure), which is a part of the general departure statute under the Kansas Sentencing Guidelines Act, rather than the more specific Jessica's Law's nonexclusive list of mitigating departure factors found in K.S.A. 21-4643(d), abuses his or her discretion by making an error of law.
The opinion of the court was delivered by: Luckert, J.:
Conviction affirmed, sentence vacated, and case remanded with directions.
The opinion of the court was delivered by LUCKERT, J.:
A jury convicted Michael Randolph of one count of rape of a child under the age of 14, in violation of K.S.A. 21-3502(a)(2). Randolph appeals his conviction, raising three issues. First, he makes an argument this court has recently rejected-that the definition of "sexual intercourse," which is an element of the crime of rape, states alternative means, each of which must be supported by sufficient evidence. Second, he argues the trial court erred in admitting his statement to law enforcement officers after finding the statement was voluntarily made. We reject this argument, concluding there was substantial competent evidence to support the trial court's findings. We hold the statement was the product of Randolph's free and independent will. Third, Randolph argues the trial court erred in the admission of certain evidence. But he failed to object to the admission of the evidence at trial and, thus, failed to preserve this issue for consideration on appeal. Because we reject or do not consider Randolph's attacks on his conviction, we affirm his rape conviction.
Randolph also appeals from his sentence, again raising several arguments. He correctly argues that the sentencing judge abused his discretion by applying the wrong statute and, therefore, the wrong legal standard when denying Randolph's motion for departure from the statutory sentence. Because we do not find this error harmless, we vacate Randolph's sentence and remand for resentencing without reaching all of Randolph's other sentencing arguments.
FACTS AND PROCEDURAL BACKGROUND
Randolph's conviction stems from an incident at the apartment of his sisters, who were baby-sitting 6-year-old Z.T. and her brother, 7-year-old K.H., on December 3, 2008. That night, the children slept next to each other on pallets on the living room floor, and Randolph slept nearby.
The next morning when Z.T. and K.H. were picked up by their mother, K.H. told his mother he saw Randolph pull off Z.T.'s pants and lie on top of her. Z.T. then told her mother that she woke up and found that Randolph had "pulled off her panties and had his face between her legs."
Z.T.'s mother took Z.T. to a hospital for a sexual assault examination, and law enforcement officers arrived shortly thereafter. Z.T. told an officer that a man licked her vagina and climbed on top of her. The officer referred Z.T. to Sunflower House, a center that conducts forensic interviews of children who have allegedly been sexually abused.
Z.T. told a Sunflower House interviewer that Randolph touched her "'cookie,'" which she identified as the vaginal area on a female anatomical diagram, with his hands and his '"stuff,'" which she identified as the penis on a male anatomical diagram. She also said he touched her "cookie" on the "inside" and that Randolph put his "stuff" inside her "cookie." When asked how she knew Randolph did this, she said she "was feeling it."
Z.T. said when one of Randolph's sisters turned on the light and came down the hallway, Randolph acted like he was asleep.
In a separate Sunflower House interview, K.H. said he saw Randolph pull down his sister's pants and get on top of her. He did not see what happened to Z.T.'s panties and Randolph's clothing was on. K.H. said he woke up because Randolph was making a "thumping noise." This happened for about "1 minute." When asked why Randolph stopped, K.H. said one of Randolph's sisters turned on the hallway light, so Randolph got off of Z.T. and pretended to be asleep. When Randolph's sister turned off the light and went back to her bedroom, Randolph started "playing with himself" by putting his hands inside the front of his pants; then Randolph went back to sleep. According to K.H., his sister subsequently told him that Randolph had gotten on top of her, but K.H. said he already knew that because he had seen it.
Following these interviews, Kansas City, Kansas, Police Detective Ken Cantwell contacted Randolph, who voluntarily went to the police station. Once there, Randolph read aloud, initialed, and signed a form setting out his Miranda rights and agreed to a waiver of those rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966). Randolph was interrogated in two segments. The first segment lasted 1 hour and 15 minutes and was not recorded; the second segment lasted about 15 minutes and was audio-recorded. At first, Randolph consistently denied that anything happened. Eventually, however, he confessed to touching Z.T.'s vagina with his fingers and said his fingers penetrated her vagina "slightly" or a "quarter of an inch." Randolph said the only reason he stopped was because K.H. woke up and was looking at him. During the trial, Cantwell testified regarding his questioning of Randolph, and Randolph's recorded statement was played for the jury. The recording included Randolph's confession that he digitally penetrated Z.T.'s vagina.
Both children testified at trial. Z.T.'s trial testimony was ambiguous and somewhat inconsistent with her Sunflower House interview. Nevertheless, she testified that Randolph took off his pants and touched her "private part" with his "private part" on the "inside of my body." When asked how she knew Randolph touched her with his private part, Z.T. answered, "I don't know, because my brother must have told me. He was laying [sic] right by me." When asked if she could feel it when Randolph touched her private part, Z.T. said, "No." But on cross-examination, Z.T. testified that her brother did not tell her anything. K.H. testified that at some point during the night, he woke up and saw Randolph get on top of his sister and touch her with his "private."
Randolph testified in his own defense and recanted his confession. No physical evidence-such as DNA testing-was admitted that tied Randolph to the crime.
The jury found Randolph guilty of rape of a child under 14 years of age, in violation of K.S.A. 21-3502(a)(2). Before sentencing, Randolph filed a motion for departure from Jessica's Law, which provides that a first-time offender who is 18 years or older and convicted of rape as defined in K.S.A. 21-3502(a)(2) (sexual intercourse with a child under the age of 14) must be sentenced to a lifetime sentence with a mandatory minimum of not less than 25 years "unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure." See K.S.A. 21-4643(a)(1), (d). The sentencing judge, after referring to the mitigating factors in K.S.A. 21-4716(c)(1), the general departure statute under the Kansas Sentencing Guidelines Act, rather than the departure factors that are unique to Jessica's Law, found there were no substantial and compelling reasons for a departure in this case. In imposing the lifetime sentence with the mandatory minimum of 25 years, the judge also indicated that if Randolph were to be "granted some kind of parole, [Randolph] will be on lifetime supervision as parole or post-release applies." The journal entry of sentencing reflects that the court imposed lifetime postrelease supervision.
Randolph now timely appeals. This court has jurisdiction under K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed; off-grid conviction under K.S.A. 21-4643 of hard 25 sentence).
JURY WAS NOT INSTRUCTED ON ALTERNATIVE MEANS
Randolph first challenges his conviction of rape, claiming he was denied his statutory right to a unanimous verdict because the jury instruction presented alternative means of committing the crime and the State failed to present sufficient evidence of each means. See State v. Wright, 290 Kan. 194, 206, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). More specifically, Randolph argues that rape of a child under the age of 14 under K.S.A. 21-3502(a)(2) is an alternative means crime because an essential element of the crime-"sexual intercourse"-is defined in a manner that creates three distinct ways of committing rape, providing it is "any penetration of the female sex organ by a finger, the male sex organ or any object." See K.S.A. 21-3501(1). Thus, according to Randolph, the State was required to prove he committed each "means" of penetration upon which the jury was instructed. In this case, the jury instruction included only two of the options-penetration "by a finger or by the male ...