1. Where the defendant's age is an essential element of an off-grid crime, the defendant is entitled to have that element included in the jury instruction that enumerates the elements of the crime. Where the defendant's age is an essential element of the charged crime, the trial court errs when it submits the question of the defendant's age to the jury in a special question on the verdict form rather than including the element in the jury instruction that enumerates the elements of the crime.
2. Where a jury answers a special question finding that the defendant was age 18 or older when committing the charged crime, and the evidence is sufficient to support that finding, the trial court's failure to include the defendant's age in the jury instruction on the elements of the crime is harmless error.
3. Under the two-step process for analyzing prosecutorial misconduct in closing argument, we first decide whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. When a prosecutor makes a statement in closing argument for which there is no evidentiary support, the first prong of the prosecutorial misconduct test has been met, regardless of whether the statement was an unintentional or inadvertent misstatement of fact.
4. A prosecutor may comment on a defendant's motive or state of mind in closing argument when the comment is based upon reasonable inferences that may be drawn from the admitted evidence.
5. During appellate review for the sufficiency of the evidence, this court does not reweigh the evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.
6. A defendant who wants appellate review of the trial court's compliance with the procedures set forth in K.S.A. 22-3421 for inquiring about the jury's verdict must first raise that issue in the trial court.
7. In analyzing a claim of cumulative error, the appellate court must assess whether multiple trial errors have combined to affect the outcome of the trial and deny the defendant a fair trial.
8. The district court does not have jurisdiction to order lifetime electronic monitoring, or impose any conditions of parole, and to do so constitutes error. Where a defendant's conviction is for an off-grid offense, the defendant becomes eligible for parole after serving the mandatory minimum sentences imposed, and the district court's imposition of lifetime postrelease supervision is erroneous.
Appeal from Atchison District Court; Martin J. Asher, judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Gerald R. Kuckelman, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
A jury found Daniel Brown guilty of rape and aggravated indecent liberties with a child. The elements jury instructions did not include Brown's age, but the jury answered in the affirmative to special questions on the verdict forms as to whether Brown was 18 years of age or older at the time the offenses were committed. In the process of sentencing Brown to two consecutive off-grid sentences of life imprisonment, with both having a mandatory minimum term of 25 years (hard 25), the journal entry of sentencing imposed lifetime electronic monitoring and lifetime postrelease supervision.
Brown appeals his convictions and sentences, claiming: (1) The district court erred by accepting the jury's verdicts without first inquiring into their accuracy; (2) the district court erred in submitting the element of age to the jury in special questions on the verdict forms; (3) there was insufficient evidence submitted to sustain the convictions for rape and aggravated indecent liberties with a child; (4) the prosecutor committed reversible misconduct during closing arguments; (5) the district court erred in imposing lifetime electronic monitoring as part of his sentences; (6) the journal entry of sentencing does not correctly reflect the sentences pronounced from the bench; and (7) cumulative error denied him a fair trial. We take the liberty of consolidating and reordering the issues for our discussion and, ultimately, we affirm Brown's convictions and two consecutive hard 25 life sentences, but we vacate the portions of the sentences ordering lifetime postrelease supervision and lifetime electronic monitoring and remand with directions.
Factual and Procedural Overview
In May 2010, 11-year-old J.D. was sleeping inside her home while her mother and stepfather, Brown, partied outside. According to J.D., sometime in the early morning hours she awoke when Brown entered her bedroom, laid down next to her, and placed his hand on her breast, underneath her clothing.
After Brown left for work the next morning, J.D. told her mother that Brown had come into her room the night before but did not provide any other details. When Brown returned home from work that day, he took J.D. to a nearby field to practice calling turkeys. When the two returned to the house, J.D. eventually told her mother that Brown had raped her at the field. Her mother immediately took J.D. to the hospital, where law enforcement was summoned. That same evening, J.D. informed a pediatric sexual assault examiner that Brown had rubbed his saliva on J.D.'s vagina before penetrating it with his penis. A physical examination revealed injuries to J.D.'s vagina that were consistent with J.D.'s statement that a violent sexual act had recently taken place.
Brown was arrested and charged with one count of aggravated indecent liberties with a child and one count of rape. J.D.'s trial testimony was that after taking her to a field to practice turkey calling, Brown raped her while he stood outside the passenger door of the truck and she was lying across the front seat. J.D. related that Brown took something from his hand and placed it on his penis before effecting vaginal penetration.
A forensic scientist from the Kansas Bureau of Investigation (KBI) testified that blood and saliva, but no seminal fluid, were located on the underclothing J.D. was wearing at the time of the rape. The blood was consistent with J.D.'s blood type. The scientist also testified that penile swab samples taken from Brown shortly after the alleged rape tested consistent with J.D.'s DNA profile. However, upon cross-examination, the KBI scientist admitted the possibility that the samples could have come from one of J.D.'s relatives, such as her mother.
At trial, Brown testified that he had lived in Muscotah, Kansas, since 1991 and had worked at Armstrong Tires for over 13 years. While Brown admitted to taking J.D. turkey calling, he denied raping her. Brown also denied entering J.D.'s room and placing his hand on her breast. Brown offered that he believed that J.D. had fabricated the story implicating him because J.D. was upset that Brown planned to divorce her mother.
The jury convicted Brown of rape and aggravated indecent liberties with a child. The court sentenced him to two consecutive terms of hard 25 life imprisonment.
Jury Instructions on the Element of Defendant's Age
Brown challenges the elements instructions for both crimes because they did not tell the jury that it had to find that Brown was age 18 or older before it could convict him of the charged crimes. He contends that submitting the age element in special questions on the verdict forms meant that the jury would make its findings of guilt before determining the existence of the requisite age element, which in turn would prevent the jury from properly considering the age element in conjunction with the other jury instructions that guide the jury in weighing and evaluating evidentiary issues within a criminal trial.
Standard of Review
Brown initially objected to the elements instructions on the basis that they failed to include his age as an element of each crime. When the district court explained that the age element was included on the verdict forms by special questions, as recommended by the Notes on Use to the pattern instructions in PIK Crim. 3d 57.01 and PIK Crim. 3d 57.06, defense counsel withdrew the objection. That circumstance leaves us in the position of employing a clearly erroneous standard of review. See State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012) (when instruction issue not properly preserved with appropriate objection in trial court, appellate court refers to K.S.A. 22-3414(3) to recite that the standard of review is whether the instruction is clearly erroneous). Jury instructions are clearly erroneous only if we are firmly convinced that the jury would have reached a different verdict had the error not occurred. State v. Tully, 293 Kan. 176, 196, 262 P.3d 314 (2011).
Brown was charged with rape, in violation of K.S.A. 21-3502(a)(2), which defines rape as sexual intercourse with a child who is under 14 years of age. The statute also provides that rape, as described in subsection (a)(2), is an off-grid person felony when the offender is 18 years of age or older. K.S.A. 21-3502(c). "In other words, the statute defining rape makes a defendant's age-18 years or older-an ...