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Appeal from Bourbon District Court; MARK ALAN WARD, judge.
Convictions affirmed, sentences vacated in part, and remanded.
BY THE COURT
1. 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 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.
2. 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.
3. Evidence the defendant possessed legal pornography of any particular sexual orientation is not probative to rebut or impeach the defendant's claim that he or she does not actively engage in the particular sexual practice portrayed in the pornography.
4. Under the nonconstitutional harmless error standard of K.S.A. 60-261, the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record.
5. A jury instruction directing the jurors that " [y]ou must presume that the defendant is not guilty until you are convinced from the evidence that [the defendant] is guilty" should have substituted " unless" for " until." But use of the word " until" was not cause for reversal.
6. The district court did not commit error by instructing the jury that " [i]f you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty." While not the preferred instruction, it was legally appropriate.
7. 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.
8. K.S.A. 22-3717(u) provides that the parole (now prisoner review) board shall order electronic monitoring as a condition of parole for inmates sentenced to parole for life.
Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Terri L. Johnson, county attorney, argued the cause, and Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
BILES, J. JOHNSON, J., dissenting.
[299 Kan. 963] Biles, J.
Francis Smith directly appeals his convictions of four sex offenses. The charges stem from an incident during which Smith touched two girls, who were 13 and 15 years old, while photographing them in provocative poses wearing two-piece, bikini-style bathing suits. Smith orchestrated the photo session and had the teenage girls touch each other for some of the photographs. He was convicted
of two counts of aggravated indecent liberties with a child and two counts of indecent liberties with a child. A majority of the court affirms his convictions, but we remand on a sentencing issue.
Smith raises seven issues: (1) whether the trial court erroneously admitted prior crimes evidence to prove motive and intent; (2) whether the trial court erroneously admitted photographs of the covers of pornographic magazines and videos taken from his house; (3) whether the trial court's jury instruction on burden of proof was clearly erroneous; (4) whether the sentencing court erroneously used a prior conviction for multiple sentencing purposes; (5) whether the sentencing court exceeded its authority by entering orders prohibiting contact with the victims; (6) whether the sentencing [299 Kan. 964] court erroneously ordered lifetime electronic monitoring; and (7) whether the sentencing court erroneously imposed lifetime postrelease supervision for the off-grid offenses.
Factual and Procedural Overview
Smith was charged with and convicted of two counts of aggravated indecent liberties with a child against the 13-year-old victim (H.D.) and two counts of indecent liberties with a child against the 15-year-old victim (M.M.) based on events occurring on May 20, 2008. That day, H.D. and M.M. skipped school and went to Smith's house. Smith had become a family friend after meeting H.D.'s father through work. H.D. and her two older brothers frequently watched movies and played video games at Smith's house.
There is conflicting evidence whether the incident was planned, but Smith took multiple Polaroid photographs of H.D. and M.M. in their bikini swimsuits, which were later shown to H.D.'s father, leading to a police investigation. Twenty-four photographs were admitted into evidence at trial, although some are duplicates. It is necessary to describe the photos to understand their content and context to the issues discussed.
A few photos are of H.D. and M.M. from the waist up in bikini tops. In the remaining photos, H.D. and M.M. had removed their pants and are wearing bikini bottoms. The photos include images of H.D. and M.M. standing with their legs spread apart; sitting or standing with their arms or legs intertwined while pressing their lips together or open-mouthed touching tongues; and some show H.D. and M.M. positioned with their heads towards a wall while their legs are spread open towards the camera. In one photo, H.D. and M.M. are on their hands and knees with their legs spread open towards the camera, their heads turned towards each other with lips pressed together.
A detective interviewed H.D. and M.M. These interviews were recorded and played for the jury. In her interview, M.M. said Smith had already bought H.D. the bikini she wore in the photographs and that " Smith told [H.D.] whenever he bought it that he wanted pictures and [H.D.] said Ok." When asked whether there was anything Smith did or said that the detective should know about, M.M. [299 Kan. 965] said H.D. wanted to wash her hair before taking the pictures and Smith suggested H.D. shower. When asked what M.M. thought he meant, M.M. said Smith was not going to leave " [b]ut once we said that we were just going to wash our hair he said ok I'm going to go to Walgreens." M.M. also said Smith told them to act like they were kissing and told them " that we were hot a lot." She explained she and H.D. were " iffy" about the pictures in which Smith had both girls face the wall so their heads were positioned away from the camera because " he is old and we are young."
When asked if anything happened besides picture taking, M.M. said Smith would adjust their bikini bottoms as they were lying on the floor, which she said " would gross us out" and " it is nasty." When asked whether Smith's hands touched their bottoms, M.M. said " yes and usually whenever [Smith] would be fixing [H.D.]'s he would pull it up or whatever and then he would tap her and he'd go back and take a picture."
M.M. also said that after Smith adjusted their swimsuit bottoms for the picture with them on their hands and knees and their bottoms towards the camera, Smith went back to take the picture and said, " [Y]eah, [H.D.] knows I like young girls." M.M. told the detective Smith later took them to Walmart
after giving them $50 each. On the way, Smith asked the girls if their boyfriends would like the pictures more if they were topless and offered them $200 to take pictures with their tops off next time.
In her police interview, H.D. said Smith had suggested taking the photographs to submit to some people in California who could get her and M.M. modeling jobs and that Smith paid each girl $50 after taking the photographs. H.D. denied Smith touched the girls during the photo session but amended this statement later at trial and admitted he had touched them. H.D. said Smith had told her " many times," including " a couple days ago," that he is " interested in young girls."
After interviewing H.D. and M.M, law enforcement officers went to Smith's residence. Smith admitted taking pictures of the girls from their waist up but denied taking the other pictures. He said a lady he did not know, possibly M.M.'s aunt, took the other photographs. Smith acknowledged he paid the girls $50 but denied [299 Kan. 966] the money was for the photographs. He admitted possessing a set of the photographs but said he had disposed of those photographs.
Smith consented to a search of his residence, during which officers discovered and photographed several DVDs and magazines depicting young females in sexual positions and containing titles such as " Barely Legal," " Teenage Nymphos," " Teach the Young, Make them Cum," " Just 18," " Just Popped," " Cherry Pop," " Ripe," and " Wild Cherries." The search also uncovered a DVD entitled " Luxurious," which allegedly depicted a " she-male." As Smith was being arrested and handcuffed after the search, he said he would not have engaged in any improper action with the girls because he was gay and liked " he-shes" or females with male genitalia.
At trial, M.M. testified that Smith began taking the photos in his living room while she and H.D. were wearing bikini tops and jeans. Smith then proposed they act like they were kissing and suggested they take more pictures in an empty bedroom. She said Smith decided how the girls should pose and instructed them to spread their legs apart. And when describing how Smith touched the girls, M.M. testified that at various times Smith " took his finger (indiscernible) [H.D.]'s bottoms and pulled 'em out" ; spread their legs further apart; and spread their legs apart while holding their knees. Discussing the photos in which the two teenagers were touching, M.M. described how Smith instructed at different times that she place her leg over H.D.'s, that the girls touch their lips together to look like they were kissing, or that the girls press their arms together. M.M. testified she was not sexually aroused by the photos and that it bothered her when Smith touched her because it was " awkward."
H.D. testified it was Smith's idea to take the pictures and that they had discussed it beforehand. She also contradicted her earlier statement that Smith did not touch her and M.M while he took the photographs. She testified Smith adjusted their swimsuit bottoms and repositioned their legs. When the prosecutor asked, " When you say he adjusted your bottoms, what part of your swimsuit did he adjust?" H.D. responded, " Around the crotch area." H.D. said she believed Smith was sexually aroused when the photographs [299 Kan. 967] were taken because of the way he had H.D. and M.M. position themselves. She said Smith told them not to tell anybody about the photographs; but if anyone asked, they were to say M.M.'s aunt took the photographs.
H.D. further testified that Smith told her on several occasions he loved her and was attracted to young girls. She said Smith on an earlier occasion tried to give her a purple vibrator while she and Smith were alone at his house. She testified Smith said he did not " know if [H.D.] would appreciate [the vibrator] or not or if [H.D.] would accept it, but it's worth it." H.D. said she did not accept the vibrator. One of her brothers later discovered a purple vibrator in Smith's house. Smith also gave H.D. two pair of thong underwear, which she accepted. She testified Smith gave her the underwear shortly after her 13th birthday, explaining that Smith said he " figured since [H.D. was] getting older [she] would probably be getting into things like that." Her brothers later
discovered the underwear and threw them away.
H.D.'s sister and brother testified about Smith's relationship with H.D. The sister testified H.D. said she liked going to Smith's house because " he would give her kind of odd jobs, you know, do the dishes for $20 or . . . he would just give her money a lot." H.D. testified that Smith would pay her for " [d]oing small chores, like dishes or just picking up." Smith would also pay H.D.'s brothers money, but H.D. described this as " [n]ot a lot, to do some outside work once in a while." One of H.D.'s brothers described Smith as " always kind of flirty after a while" and said Smith " started to get a little bit too friendly" before he gave H.D. the two thongs.
Smith testified that he took the photographs to give to the girls, who were not going to see each other over the summer. He denied being sexually aroused while taking the photographs.
Prior to trial, Smith moved for an order in limine prohibiting admission of any evidence relating to the pornography discovered at his house, arguing its prejudicial effect outweighed any probative value. The State argued the pornographic magazines and videos were relevant to prove Smith's sexual desires, which was an essential element of the crimes charged. Specifically, the State wanted the evidence to prove Smith was attracted to young girls to contradict [299 Kan. 968] his assertion that he was gay. The district court denied the motion.
At trial, photographs of the covers of magazine and DVDs were admitted in conjunction with a detective's testimony about why he took each photograph of this material. In the testimony, the detective referenced each publication's title and generally stated the " woman on the front cover is underdeveloped."
The State filed a pretrial motion to admit Smith's 1993 convictions for aggravated indecent liberties with a child, aggravated criminal sodomy, and rape. The State argued these prior crimes were relevant under K.S.A. 60-455 to show motive and intent. At the hearing on the motion, the State added an argument that the court should follow the newly amended statute, K.S.A. 2009 Supp. 60-455(d). Smith argued that statute was still subject to K.S.A. 60-445 constraint in which the value of the prior convictions evidence was substantially outweighed by the risk of prejudice. In ruling the prior convictions evidence was admissible, the trial court found the prior convictions both relevant and probative of intent and motive.
The State's theory for the first aggravated indecent liberties charge was that Smith " solicited [H.D.] to engage in fondling or touching of the person of another in a lewd manner, with intent to arouse or satisfy the sexual desires of [H.D.], the defendant or another." Its theory for the second was that Smith " fondled or touched the person of [H.D.], in a lewd manner, with intent to arouse or satisfy the sexual desires of either [H.D.], or the defendant or both." Similarly, the State's theory for the first indecent liberties charge was that Smith " solicited [M.M.] to engage in lewd fondling or touching of the person of another with the intent to arouse or to satisfy the sexual desires of [M.M.], the defendant or another." And the State's theory for the second was that Smith " fondled or touched the person of [M.M.], in a lewd manner, with intent to arouse or satisfy the sexual desires of either [M.M.], or the defendant or both." The jury convicted Smith on all four charges.
The district court imposed a hard 40 life sentence for each aggravated indecent liberties with a child conviction and ordered they be served consecutively, i.e., Smith would not be parole eligible for [299 Kan. 969] 80 years. The other two grid-box sentences for indecent liberties with a child were imposed to run concurrent to each other and to the hard 40 sentences.
Smith timely appealed directly to this court. We have jurisdiction under K.S.A. 22-3601(b)(1) (maximum sentence of life imprisonment imposed for off-grid crime; appeal docketed prior to July 1, 2011).
Prior Crimes Evidence
Smith begins by challenging the district court's admission into evidence of his 1993 crimes. He argues this prior crimes evidence was not relevant to establish ...