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Appeal from Marion District Court; MICHAEL F. POWERS, judge.
BY THE COURT
1. The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that " the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." To be meaningful, the right to counsel guaranteed by these provisions necessarily includes the right to effective assistance of counsel.
2. A defendant in a criminal trial has a constitutional right to representation that is free from conflicts of interest.
3. Inconformity with the Kansas Rules of Professional Conduct is not dispositive as to whether a criminal defendant had ineffective assistance of counsel.
4. A criminal defendant is not entitled to automatic reversal of the defendant's convictions solely because the defendant's attorney at a preliminary hearing had previously served as a prosecutor against the defendant.
5. When considering a challenge to the admission of evidence, the first step is to determine whether the evidence is relevant. Relevant evidence is evidence having any tendency in reason to prove any material fact. Relevance is established by a material or logical connection between the asserted facts and the inference or result that they are intended to establish. Once relevance is established, the second step requires the court to apply the statutory rules governing admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the trial court's discretion.
6. A district court abuses its discretion when: (a) no reasonable person would take the view adopted by the judge; (b) a ruling is based on an error of law; or (c) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.
7. Under the plain language of K.S.A. 2013 Supp. 60-455(d), an exception exists to the prohibition on admission of certain types of other crimes and civil wrongs evidence to prove propensity of a criminal defendant to commit the charged crime or crimes for sex crime prosecutions. As long as the evidence is of another act or offense of sexual misconduct and is relevant to propensity or any matter, it is admissible if the district court is satisfied the evidence's probative value outweighs its potential for undue prejudice. A district court's determination that the probative value of evidence outweighs its potential for producing undue prejudice is reviewed for abuse of discretion.
8. K.S.A. 21-3205(1), the Kansas aiding and abetting statute, does not create distinct material elements of a crime, but simply assigns criminal responsibility. The statute describes factual circumstances that may be proved in order to obtain a conviction for other crimes. Alternative means are not created by the aiding and abetting statute.
9. Under K.S.A. 22-3420(3), any question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence unless the defendant is voluntarily absent.
10. When a litigant fails to adequately brief an issue it is deemed abandoned.
11. Generally, constitutional issues cannot be raised for the first time on appeal.
12. Failure to answer a deliberating jury's question on a point of law in open court and in the defendant's presence is an error subject to the harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). Under this standard, an error may be declared harmless when the party benefitting from the error proves beyond a reasonable doubt that the error complained of did not affect the trial's outcome in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict.
13. A single error does not constitute cumulative error.
14. An illegal sentence is one imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in character or term of the punishment authorized; or a sentence that is ambiguous with regard to time and manner in which it is to be served.
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
[299 Kan. 341] BILES, J.
This is Terry L. Bowen's direct appeal from his convictions of two counts of rape, one count of aggravated criminal sodomy, and one count of aggravated kidnapping. He advances various claims, which we have reordered for clarity: (1) his attorney's conflict of interest at his preliminary hearing; (2) the trial court's admission into evidence of his prior sex crimes for propensity purposes; (3) alleged insufficient evidence as to each alternative means of aiding and abetting in one rape count; (4) the district court's delivery of a written response to a jury question outside of Bowen's presence; (5) cumulative trial error; and (6) an illegal sentence that ordered him not to have contact with his codefendants or the victim. The State concedes the sentencing error.
We affirm Bowen's convictions but vacate the no-contact portion of his sentence because it exceeded the district court's authority under K.S.A. 2009 Supp. 21-4603d(a). His remaining sentence is valid and continues in force.
Factual and Procedural Background
The charges against Bowen stem from a report made by a 14-year-old girl (M.B.), who alleged Bowen and another man, Kenneth J. Fredrick II, raped her. She first reported this about 3 weeks after it occurred, explaining she had not come forward earlier because she had been threatened and was scared. About 1 week later, M.B. identified a third individual, Lora Gay, who M.B. alleged held her down while Bowen and Fredrick took turns assaulting her.
The State charged Bowen with two counts of rape--one as a principal and one as an aider and abettor--and one count each of aggravated criminal sodomy, aggravated kidnapping, and battery. See K.S.A. 2010 Supp. 21-3502(a)(1)(A) (rape); K.S.A. 2010 Supp. 21-3506(a)(3)(A) (aggravated criminal sodomy); K.S.A. 21-3421 [299 Kan. 342] (aggravated kidnapping); K.S.A. 21-3412(a)(2) (battery); K.S.A. 21-3205(1) (aiding and abetting). Bowen's case was consolidated with those against Gay and Fredrick on the defendants' motions. The jury convicted Bowen of two counts of rape, aggravated criminal sodomy, and aggravated kidnapping. He was acquitted of battery.
Based on Bowen's criminal history, which included two prior convictions for sexually violent crimes, the district court sentenced him as an aggravated habitual sex offender. See K.S.A. 2010 Supp. 21-4642. It sentenced Bowen to life imprisonment without the possibility of parole for one rape conviction and concurrent 155-month prison terms for the other three convictions. It also prohibited Bowen from having contact with M.B., Fredrick, or Gay.
Bowen timely appealed. Jurisdiction is proper under K.S.A. 2013 Supp. 22-3601(b)(3). Additional facts are described as pertinent to the issue addressed.
Ineffective Assistance of Preliminary Hearing Counsel
Bowen argues his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution was infringed because his attorney at the preliminary hearing had been the prosecutor who obtained Bowen's prior convictions of aggravated indecent solicitation 10 years earlier. Those convictions were later introduced at this trial as propensity evidence against Bowen. He now alleges his preliminary hearing counsel labored under a conflict of interest, amounting to structural error and requiring reversal of his convictions.
Standard of Review
The Sixth Amendment guarantees in " all criminal prosecutions" that " the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." This right to counsel includes the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); State v. Gonzales, 289 Kan. 351, 357, 212 P.3d 215 (2009); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland ). " The purpose of the effective assistance guarantee 'is simply to ensure that criminal defendants [299 Kan. 343] receive a fair trial.'" State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (quoting Strickland, 466 U.S. at 689).
To be meaningful the right to counsel necessitates more than a lawyer's mere presence at a proceeding. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013); Galaviz, 296 Kan. at 174. The right extends a duty of loyalty to the client. A defendant in a criminal trial must have " 'representation that is free from conflicts of interest.'" Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 ).
An ineffective assistance of counsel claim based on a conflict of interest allegation involves mixed questions of fact and law. Boldridge, 289 Kan. at 622. We review the district court's underlying factual findings for substantial competent evidence and its legal conclusions based on those facts de novo. Boldridge, 289 Kan. at 622; Gonzales, 289 Kan. at 358-59.
Bowen's preliminary hearing was consolidated with the other defendants', each of whom was represented by different counsel. When the hearing began, the State advised the court it had learned Bowen's attorney previously had prosecuted him for other crimes. The State noted Bowen was not raising this as a conflict of interest ...