1. K.S.A. 2012 Supp. 60-455(d) states an exception to the general rule in K.S.A. 2012 Supp. 60-455(a) prohibiting the admission of other crimes or civil wrongs evidence for the purpose of proving a propensity to commit a crime. In sex crime prosecutions, K.S.A. 2012 Supp. 60-455(d) explicitly allows evidence of other acts or offenses of sexual misconduct to show a propensity and any other matter to which it is relevant and probative.
2. In this case, even if the trial judge erred in admitting evidence of uncharged sex crimes committed by the defendant against the victim, because K.S.A. 2012 Supp. 60-455(d) would permit admission of the same evidence on retrial to demonstrate the defendant's propensity to commit the charged crimes, his convictions are not reversible. There has been no error affecting substantial rights under K.S.A. 60-261.
3. For generic evidence—that is, evidence that outlines a series of undifferentiated incidents, each of which could support a separate criminal sanction—to be sufficient to support a conviction on one or more counts, the evidence must: (1) describe the kind of act or acts committed with sufficient specificity to assure that unlawful conduct has occurred and to differentiate between various types of proscribed conduct; (2) describe the number of acts committed with sufficient certainty to support each of the counts alleged; and (3) establish the general time period in which these acts occurred. Additional details regarding the times, places, and circumstances of various incidents may assist in assessing the credibility of the victim's testimony and the State's case, but are not essential to sustain a conviction.
4. Under the factors stated in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), for determining whether a sentence violates § 9 of the Kansas Constitution Bill of Rights, a life sentence with a mandatory minimum sentence of 620 months' imprisonment for committing the crime of aggravated indecent liberties with an 8-year-old child is not a cruel or unusual punishment where the defendant violated a position of trust, the defendant committed the offense on multiple occasions, there was evidence of psychological harm to the victim, the defendant had a significant criminal history, and the punishment is proportionate to the punishment for other serious crimes in Kansas. This is true even though the punishment is harsher than that imposed in most other states for the same crime.
5. An inmate who has received an off-grid indeterminate life sentence can leave prison only if the Kansas Prisoner Review Board grants the inmate parole. Therefore, a sentencing court has no authority to order a term of lifetime postrelease supervision in conjunction with an off-grid indeterminate life sentence.
Appeal from Reno District Court; Timothy J. Chambers, judge.
Lydia Krebs, of Kansas Appellate Defender Office, argued the cause, and was on the brief for appellant.
Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
A jury convicted Edward Spear, III, of six counts of aggravated indecent liberties with a child and acquitted him of four counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). On appeal, he attacks his convictions on several grounds, arguing: (1) The trial court erred in admitting evidence of Spear's prior acts of sexual misconduct for the purpose of proving intent and absence of mistake or accident; (2) in the alternative, the State failed to present sufficient evidence to support four of his six convictions of aggravated indecent liberties with a child; (3) his life sentence with a mandatory minimum sentence of 620 months' imprisonment violates § 9 of the Kansas Constitution Bill of Rights; and (4) the sentencing court erred in imposing lifetime postrelease supervision rather than parole.
We conclude any error in the admission of evidence of Spear's prior sexual misconduct did not affect his substantial rights under K.S.A. 60-261 and, therefore, does not warrant reversal. We agree, however, with Spear's argument that there is not sufficient evidence to support four of his six convictions of aggravated indecent liberties with a child; consequently, we reverse those four convictions. We further hold that his life sentences for the remaining two convictions of indecent liberties with a child do not violate § 9 of the Kansas Constitution Bill of Rights, but the sentencing court erred in imposing lifetime postrelease supervision rather than parole.
Facts and Procedural Background
In 2002, when L.S. was 3 years old, L.S.'s mother, M.S., married Joey Spear. Joey had two brothers, Skyler Spear and Edward Spear (Spear), the defendant. Two years after their marriage, M.S. and Joey divorced, and M.S. began living with Skyler. The couple lived at various locations in Hutchinson and McPherson until Skyler was imprisoned.
In March 2006, M.S. and L.S. moved to Hutchinson, which is in Reno County, to live with friends. While there, L.S., who was 7 years of age at the time, told one of the friends that Spear had inappropriately touched her. This led to M.S. making a report to Officer Matthew Neal of the Hutchinson Police Department. M.S. repeated L.S.'s statement to her that Spear had touched L.S.'s "pee pee" when Spear and L.S. had been alone in a car.
Officer Neal then interviewed L.S., who told him her "Uncle Ed" touched her "pee pee" when she was left alone in a car with him. She also said that Uncle Ed told her not to tell anyone or he would hurt her. Neal determined this incident likely happened in McPherson County.
McPherson Police Department Detective Mark Brinck was contacted to take over the investigation. Brinck conducted a videotaped interview of L.S. in which she stated, "One of my uncles touched me on my pee pee." She identified the uncle as Spear and identified her "pee pee" as her private part, where she would go pee. Brinck asked L.S. how many times Spear touched her, and she stated that she could not count but that it happened a lot of times.
The investigation ended when M.S. and her children, including L.S., moved out of the state in the summer of 2006.
In the spring of 2007, M.S. and her children moved back to Hutchinson. Sometime during the summer of 2007, they moved in with Spear. As a result of the prior incident with Spear, M.S. initially avoided leaving L.S. alone with Spear. M.S. would even have Spear take showers with her so Spear and L.S. would not be alone. When school began, L.S. attended school in McPherson and lived during the week with Mary Spear, the mother of the three Spear brothers. On weekends, L.S. would return to Hutchinson and her mother.
About the time school started during August 2007, M.S. started working approximately 38 hours a week. Her regular shift was from 3 p.m. to 11 p.m., including Friday and Saturday nights. For three or four weekends, Spear watched M.S.'s children, including L.S., while M.S. was at work.
On October 12, 2007, the Kansas Protection Center received an anonymous call regarding the welfare of L.S., and Trooper Mike Robinson with the Kansas Highway Patrol went to Spear's home to investigate. Robinson visited with L.S. alone, and L.S. told him she was being hurt, her Uncle Ed kissed her a lot, and he would go up and down with his finger on her "pee pee" while "mommy" was at work.
In the investigation that followed, L.S. was interviewed by Detective Pat Voth of the Hutchinson Police Department. L.S. described two incidents where Spear touched her, one the previous month and one the previous year. Regarding the touching that occurred the previous month, she said that she was upset with Spear because he kissed her at least three or four times and touched her. She described the kisses as going sideways and then Spear would put his tongue in her mouth. She said Spear also put his finger in her "pee pee." Regarding the touching that occurred the previous year, L.S. described an occurrence in a car where Spear touched her "pee pee" under her clothes with his finger in a motion that she described as similar to when you would call someone toward you. She explained that Spear told her he would spank her if she told anyone.
Voth also interviewed Spear, who told him L.S. was jealous of his relationship with M.S., would call him her boyfriend, and always wanted him to hug and hold her. He did not admit to any inappropriate touching of L.S.
Special Agent Roger Butler with the Kansas Bureau of Investigation also conducted a recorded interview with Spear. Spear stated he had learned from L.S. that his mother, Mary Spear, had told L.S. to say that Spear had touched her. Spear believed that Mary was mad at him for starting a relationship with M.S. According to Spear, on the night of the welfare check, M.S. asked L.S. if Spear had done anything; L.S. said, "No."
Butler asked Spear if he had ever had sexual contact with L.S. Spear initially told Butler that he would wake up and L.S. would be rubbing his crotch with her foot, but it did not arouse him and he would tell her to stop. Later in the interview, Spear admitted that when L.S. would rub his crotch with her foot, he would get aroused, but he would just roll over and go to sleep. Then, he reported that one time he became aroused while they were lying in bed watching a movie and he went to the bathroom to relieve himself. When Butler asked Spear if L.S. had ever tried to take his hand and put it between her legs, Spear responded, "Yes, a couple of times while her mom was at work." When it would happen, Spear would pull his hand away. When Spear asked L.S. why she wanted to do it, she said because her brother does it.
When Butler asked about L.S.'s allegation that Spear touched her "pee pee" under her clothes, Spear admitted to such a touching on one occasion. His version of the incident was that L.S. had taken a bath, dressed herself, and came into the bedroom to watch a movie. Usually she wore a shirt and panties, but that time she did not have panties on. So, when she pulled his hand between her legs, he touched her bare skin.
L.S. was taken to see a pediatrician on January 28, 2008. She told him that her Uncle Edward had hurt her by touching her "pee pee" with his finger. She also told him that Uncle Edward had kissed her on the lips and on the side of her face. The physician asked L.S. whether Spear would touch her with other objects, and she reiterated that he only touched her with his finger. She told him that this happened a lot of times— sometimes in a bedroom, sometimes in a car. She initially denied seeing Spear's penis but later described that he had taken her hand and guided it to his penis, and she had held it. She described Spear's touching by saying he would put his finger on her vaginal area. L.S. demonstrated how Spear moved his finger by moving a pen in the air; the doctor reported she moved the pen "back and forth and up and down" or "side to side and up and down." The doctor performed a physical examination but found no injury.
On May 15, 2008, Spear was charged with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). The complaint described an incident during which Spear allegedly engaged in lewd fondling or touching of L.S.; it was alleged this act occurred "on or between August and September 2007." After L.S. testified at Spear's preliminary hearing that Spear touched her "pee pee" with his finger "like 10" different times, the State amended the complaint to allege 10 counts of aggravated indecent liberties with a child.
Defense counsel filed a motion for a bill of particulars, requesting the State to specify the circumstances of the additional charges. In response, the State filed a bill of particulars and used the following language for each of the 10 counts:
"That in latter August, 2007, though September, 2007, between the hours of 3:00 p.m. and 11:00 p.m., the Defendant lewdly fondled or touched the vaginal area of 7-year-old [L.S.], beneath her clothing with his finger and with the intent to arouse or satisfy the sexual desires of either [L.S.] or himself, while both were inside the residence located at 316 W. 15th Ave., Hutchinson, Reno County, Kansas. The touching occurred while the child's mother, [M.S.], was away from the home and working . . . . The child cannot remember the specific times of the day or days of the week in which she was touched. The mother was working a five-day work week that included weekends."
At trial, L.S., who was 11 years old at the time, testified she did not remember much about the incidents. She said that when she was at home in Hutchinson with Spear while her mother was at work, she had been "bad touched" by Spear. She could not remember how many times the touching happened in that house, but she testified that it happened more than once—"like 11" times. She also testified that Spear touched her in a car. She told the jury that Spear would touch her "pee pee, " which she described as the area between her legs where she goes "pee, " with his finger going up and down. She said the touching occurred inside her clothes while they were in the bedroom watching television. She also told the jury that when he would touch her, she would tell him to stop. She did not tell anyone because he told her not to.
The State also called Officer Neal and Detective Brinck to testify about the 2006 report, and the jury viewed the video recording of Brinck's interview with L.S. The jury also heard the testimony of Trooper Robinson, Detective Voth, and Special Agent Butler and watched the video recordings of their interviews of L.S. and Spear. Also, the pediatrician testified regarding his examination of L.S. and her statements to him. Spear chose not to testify.
The jury convicted Spear of six counts of aggravated indecent liberties with a child and found Spear not guilty on four counts. The sentencing judge, who was also the trial judge, ...