1. 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. Under the facts of this case, the district court judge did not abuse his discretion in denying the defendant's request to depart from a hard 25 life sentence imposed under Jessica's Law, K.S.A. 21-4643, to a sentence under the Kansas Sentencing Guidelines Act gridbox for the same crime without the age factor applicable in Jessica's Law cases and to further depart from that gridbox to a shorter term of imprisonment. Reasonable people could agree with the district court judge that the defendant's lack of prior criminal history, his age of 19, the victim's willing participation in the crime, the defendant's low to moderate risk of reoffending, and the lack of physical harm to the victim were not substantial and compelling reasons to depart from the legislatively prescribed sentence, given that the defendant raped a 13-year-old child.
3. A defendant who files a motion requesting a departure from a life sentence imposed under Jessica's Law, K.S.A. 21-4643, receives an individualized sentence in which the court considers the characteristics of the defendant and the details of the offense before imposing punishment or sentence. Such a defendant cannot argue the sentence is categorically disproportionate in violation of the Eighth Amendment to the United States Constitution by creating fact-specific categories relating to the nature of the offender and the details of the crime.
Appeal from Sumner District Court; William R. Mott, district judge.
Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.
Evan C. Watson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Defendant Nicholas Florentin was convicted of one count of rape in violation of K.S.A. 21-3502(a)(2) (sexual intercourse with a child under the age of 14), based on evidence that Florentin digitally penetrated a 13-year-old female when Florentin was 19 years old. On appeal, Florentin attacks his conviction, claiming that rape is an alternative means crime and the State failed to present sufficient evidence to establish each means upon which the jury was instructed. This court has recently rejected Florentin's alternative means argument, and, consequently, we affirm his conviction.
Florentin also attacks his sentence, arguing (1) the district court judge abused his discretion when he denied Florentin's motion to depart from the sentence provided for in K.S.A. 21-4643(a)(1)(B), commonly known as Jessica's Law, and (2) a hard 25 life sentence, imposed under Jessica's Law, is a disproportionate punishment for the crime contrary to the prohibitions on cruel and/or unusual punishment found in the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. We hold that Florentin failed to establish that the district court judge abused his discretion in denying Florentin's motion for a departure sentence. We further conclude Florentin, who received an individualized sentence, has failed to construct a valid categorical proportionality argument within the framework of the United States Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and instead has raised a case-specific argument that he waived by not arguing it in the district court and on appeal. Accordingly, we also affirm Florentin's sentence.
Facts and Procedural Background
On July 1, 2009, the State charged Florentin with two counts of rape, alleging Florentin had sexual intercourse with B.C., a child under 14 years of age, on or about June 5, 2009, and that Florentin was 18 years of age or older at the time.
At trial, Florentin and B.C. both testified that they "dated" during the summer of 2009. At that time, B.C. was 13 years old and Florentin was 19 years old. B.C. testified that Florentin "fingered" her two times. When asked to elaborate on the term "fingered, " B.C. testified that Florentin put his fingers in her vagina. B.C. testified that she willingly participated in the conduct, that she knew Florentin's age, and that she believed Florentin knew her age. B.C. testified that on one or both occasions she grabbed Florentin's hand and put it on her leg.
Florentin testified that he fingered B.C. one time, but claimed that B.C. told him she was 16. Florentin testified he quit talking to B.C. after he found out she was only 14. Called again as a rebuttal witness, B.C. testified she never lied to Florentin about her age.
The district court instructed the jury that it could convict Florentin of rape if it found that he penetrated B.C.'s female sex organ with his penis, his finger, or another object. The jury found Florentin guilty of one count of rape and acquitted him of a second count.
Following Florentin's conviction, the district court judge ordered a sex offender evaluation to be performed by Bruce Nystrom, Ph.D., whose report indicated that Florentin has a 6.6 percent chance of reoffending over the next 5 years. Based in part on this report, Florentin filed a motion for a departure sentence in which he cited several mitigating factors and requested a departure from a Jessica's Law life sentence to a sentence of 78 months' imprisonment. At the sentencing hearing, the district court judge considered Florentin's alleged mitigating circumstances but denied the departure motion, finding no substantial or compelling reasons to depart from the Jessica's Law sentence. As a result, the judge imposed life imprisonment with a minimum term of imprisonment of not less than 25 years. See K.S.A. 21-4643(a)(1)(B).
Florentin timely appeals. This court's jurisdiction arises under K.S.A. 22-3601(b)(1) (life sentence imposed pursuant to K.S.A. 21-4643).
Rape is Not an Alternative Means Crime
Florentin first challenges his conviction for 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, 201-06, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). More specifically, Florentin 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—by "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 Florentin, the State was required to prove he committed each "means" of penetration upon which the jury was instructed.
In recent cases, we have rejected this same argument and held that, as a matter of law, 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. Instead, K.S.A. 21-3501(1) merely defines sexual intercourse and describes different factual circumstances by which a defendant might perpetrate the single actus reus of the crime—"penetration of the female sex organ." The phrase "by a finger, the male sex organ or any object" does not state material elements of the crime but merely outlines options within a means. Consequently, the jury instruction reiterating these options did not include alternative means of committing the charge of rape. See State v. Newcomb, 296 Kan. 1012, 1015-16, 298 P.3d 285 (2013); State v. Swindler, 296 Kan. 670, 675-77, 294 P.3d 308 (2013); State v. Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012).
Moreover, Florentin concedes that the State presented sufficient evidence to establish one count of rape by digital penetration. Hence, there was sufficient evidence to support his conviction, and ...