Appeal from Meade District Court; VAN Z. HAMPTON, judge.
1. K.S.A. 2009 Supp. 60-455(d) allows admission of evidence of a defendant's acts or offenses of sexual misconduct in sexual abuse cases for any matter on which they are relevant and probative, including, that the defendant has the propensity to commit a sex offense.
2. When evidence is admitted under K.S.A. 2009 Supp. 60-455 for its bearing on a defendant's propensity to reoffend, the district court is not required to issue a limiting instruction restricting the jury's consideration of the evidence.
3. Because K.S.A. 60-404's timely and specific objection requirement applies even to rights as fundamental as the right of a criminal defendant to confront witnesses, a defendant's challenge under the Confrontation Clause of the Sixth Amendment to the United States Constitution is waived if the defendant fails to object below.
4. An appellate court reviews an allegation of prosecutorial misconduct using a two-step analysis. First, it must decide if the challenged comment exceeded the wide latitude of language and manner afforded the prosecutor when discussing the evidence. Second, if the statement was outside these bounds, the court decides if the comment constitutes reversible error. To determine whether an error justifies reversal, a court examines: (1) whether the misconduct was gross and flagrant; (2) whether the prosecutor's remarks showed ill will; and (3) whether the evidence against the defendant was so direct and overwhelming that the misconduct would not have had much weight in the jurors' minds.
5. A prosecutor's speculation about facts not in evidence is misconduct.
6. When a district court departs from the mandatory minimum sentence specified in Jessica's Law, K.S.A. 21-4643, it is not free to impose a lesser mandatory minimum sentence but rather must depart to the sentencing guidelines.
Deborah L. Hughes, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger, of the same office, was on the brief for appellant.
Lee J. Davidson, assistant attorney general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
[298 Kan. 1024] MORITZ,
Donald Ray Dean appeals his convictions of two counts of aggravated indecent liberties with a child and one count each of rape, aggravated criminal sodomy, and sexual exploitation of a child. He argues the district court erred in: (1) admitting into evidence his prior conviction for indecent liberties with a child and two home videotapes under K.S.A. 2009 Supp. 60-455; (2) failing to instruct the jury that it could consider K.S.A. 2009 Supp. 60-455 evidence only for its bearing on the sexual exploitation charge; and (3) permitting a witness to read into evidence the factual basis for Dean's prior indecent liberties conviction in violation of his confrontation rights. Dean further contends the prosecutor committed reversible misconduct in his rebuttal closing argument and that his sentence is illegal and constitutes cruel and unusual punishment.
Although we find the prosecutor improperly speculated on facts not in evidence, we find no reversible trial error and affirm Dean's convictions. However, because the sentencing court imposed a mandatory minimum sentence instead of departing to a guidelines sentence after granting Dean's motion to depart, we vacate Dean's sentence and remand for resentencing.
Factual and Procedural Background
Ten-year-old S.W. participated in classroom personal safety awareness training about good and bad touches. Afterward, S.W. advised her teacher that she and her " grandpa" touched each other in " private places" and it made S.W. uncomfortable. S.W. also said that her grandpa had given her a ring and said he wanted to marry her.
[298 Kan. 1025] After S.W.'s teacher reported S.W.'s allegations, law enforcement conducted an investigation through which it learned that 57-year-old Donald Ray Dean, who was unrelated to S.W., was the man she referred to as " grandpa." A subsequent search of Dean's home revealed a number of videotapes, including one in which two young girls exposed their genitalia.
The State charged Dean with rape, aggravated criminal sodomy, two counts of aggravated indecent liberties with a child, and sexual exploitation of a minor.
Prior to trial, Dean filed a motion in limine seeking to prevent the State from introducing evidence of his 1984 conviction for indecent liberties with a child. Shortly thereafter, the State filed notice pursuant to K.S.A. 2009 Supp. 60-455 of its intent to introduce: (1) Dean's 1984 conviction for indecent liberties with a child as well as the factual basis for the conviction contained in the presentence investigation report (PSI); (2) testimony from two adult women, C.R. and A.R.,
who were the children exposing their genitalia in the video found in Dean's home, about the video and their sexual contact with Dean; and (3) several videotapes allegedly taken by Dean that focused on young girls' knees and clothed genital regions. Further, the State asserted that the version of K.S.A. 60-455 effective April 30, 2009, K.S.A. 2009 Supp. 60-455, governed the admissibility of the evidence rather than the prior version.
After additional briefing and argument, the district court agreed with the State that K.S.A. 2009 Supp. 60-455 applied. It further determined that the evidence in the State's notice was admissible " [n]ot only for those specifically stated material facts being as identified, motive, intent, plan and knowledge and identity, but also as stated in the amendment bearing on any matter to which it is relevant or probative." The district court later clarified its ruling, indicating that while C.R. and A.R. could testify about whether they were the children in the incriminating video, any testimony regarding other allegations arising from Dean's contact with them was inadmissible because of its highly prejudicial nature.
[298 Kan. 1026] The case proceeded to trial where the following facts were developed.
The State's Case
Kansas Bureau of Investigation (KBI) Special Agent Jason Larue began investigating the allegations against Dean after the Meade County Sheriff requested the KBI's assistance. Through his investigation, Larue learned that S.W. met Dean through one of her friends, B.B.
Larue interviewed 12-year-old B.B., who indicated that while she referred to Dean as " grandpa," he was actually a family friend. B.B. said she sometimes visited Dean at his home on weekends and at times her friends would accompany her, including S.W. and another girl of about the same age, L.P. B.B. told Larue that Dean had never touched her inappropriately.
B.B. also told Larue that on one occasion she saw Dean and S.W. French kissing. When Larue asked B.B. to describe the kiss, she explained, " '[Dean] had his tongue inside [S.W.'s] mouth.'" But when B.B. later testified at trial, she said she did not know what type of kiss Dean gave S.W.
B.B. showed Larue a birthstone ring Dean had given her, which Larue later learned Dean had purchased for $250. Larue also learned that Dean gave S.W. a " costume jewelry" ring so that S.W. would not feel left out.
After learning that S.W., B.B., and Dean had spray painted graffiti on a local bridge, Larue accompanied S.W. to the bridge and S.W. pointed to graffiti she had painted with B.B. and Dean. Larue took photographs of the graffiti, which included the phrases, " Will you be mine, [Dean]? Yes or no," with the word " Yes" circled, and " [B.B.,] will you be my girlfriend? Yes or No." Photographs of these and additional spray painted phrases were admitted into evidence.
B.B. testified at trial that she, S.W., and Dean sometimes played a card game called " 21." Dean would require the game's loser to remove his or her shoes, socks, or shirt. B.B. recalled having to take off her shoes and ...