Review of the judgment of the Court of Appeals in an
unpublished opinion filed December 27, 2013.
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Appeal from Ford District Court; E. LEIGH HOOD,
1. To preserve an argument that a trial judge improperly excluded evidence, K.S.A. 60-405 requires the proponent to either make known to the trial judge the substance of the evidence at issue in a form and by a method approved by the judge or indicate the substance of the expected evidence by questions indicating the desired answers. Compliance with K.S.A. 60-405 serves a two-fold purpose by assuring that (a) the trial judge is advised of the evidence's substance and the nature of the parties' arguments; and (b) an adequate record is made for appellate review.
2. K.S.A. 60-405 does not require a formal offer of proof in the form of questions and answers. Such things as answers to discovery, arguments on a motion in limine, or in-court dialogue may fully set out the expected evidence and satisfy the statute's requirements depending on the circumstances.
3. Generally, constitutional issues cannot be asserted for the first time on appeal unless: (a) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (b) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (c) the party raising the issue asserts that the district court is right for the wrong reason.
4. Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant raising a constitutional issue for the first time on appeal to affirmatively invoke and argue an exception to the general rule that such claims may not be raised for the first time on appeal.
5. In K.S.A. 21-3504(a)(3)(A), the phrase " either the child or the offender, or both" does not state a material element of the crime of aggravated indecent liberties with a child but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent. Thus, the phrase outlines options within a means and describes factual circumstances that may prove the distinct, material mental state element of the crime.
6. The three-part test in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), applies to a determination of whether a sentence's length is cruel or unusual punishment under Section 9 of the Kansas Constitution Bill of Rights.
Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
David D. Belling, assistant county attorney, argued the cause, and Jacob Fishman, assistant county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Raymond C. Swint appeals his convictions of aggravated indecent liberties with a child and attempted aggravated indecent liberties with a child. His principal claim is that the district court erred by excluding evidence that the victim allegedly recruited another child to fabricate other claims of abuse against him. Swint also appeals the hard 25 life sentence imposed under Jessica's Law, K.S.A. 21-4643, for the aggravated indecent liberties conviction, claiming it violates Section 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. We affirm his convictions and uphold the life sentence.
Factual and Procedural Background
In April 2010, an 11-year-old daughter of Swint's family friends told a school counselor Swint had been touching her inappropriately. Swint was tried for two counts of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3)(A), and one count of attempted aggravated indecent liberties with a child, K.S.A. 21-3301 and K.S.A. 21-3504(a)(3)(A).
At trial, the victim testified Swint fondled her genitals on two occasions and described a third incident in which Swint requested she fondle his. Testifying in his own defense, Swint denied these allegations. A jury acquitted Swint of one aggravated indecent liberties charge but convicted him of the remaining aggravated indecent liberties charge and attempted aggravated indecent liberties charge. The district court sentenced Swint to life imprisonment without the possibility of parole for 25 years (hard 25) and lifetime postrelease supervision for the aggravated indecent liberties conviction. It sentenced him to a concurrent term of 155 months' imprisonment and lifetime postrelease supervision for the attempted aggravated indecent liberties conviction.
Swint timely appealed. A divided Court of Appeals panel affirmed the convictions and affirmed the sentence in part, vacating the lifetime postrelease supervision. State v. Swint, 315 P.3d 278, 2013 WL 6839354 (Kan. App. 2013) (unpublished opinion). This court granted Swint's timely petition for review. Jurisdiction is proper. See K.S.A. 60-2101(b) (review of Court of Appeals decisions).
Swint advances claims regarding: (1) the district court' exclusion of certain evidence; (2) insufficient evidence of alternative means of committing the charged crimes; (3) prosecutorial misconduct; and (4) state and federal constitutional challenges to his hard-25 prison sentence. Additional facts will be detailed as pertinent to the issue discussed.
Exclusion of Evidence
Swint argues the district court erred by excluding evidence that the victim allegedly admitted lying about the allegations against him and had asked a cousin to fabricate other claims that he had sexually abused the cousin. We will consider these contentions separately. We ultimately hold that neither issue is preserved for appellate review, each for a different reason.
Additional Facts and Procedural Background
Prior to trial, the State sought an order in limine prohibiting the offering of evidence that the victim " told a cousin, A.H., to fabricate rumors of inappropriate sexual conduct by defendant." The State asserted such evidence was " clearly collateral to the facts in issue" and would violate K.S.A. 60-422(d) (evidence of specific instances of conduct relevant only to prove that witness' character
trait inadmissible). Swint opposed the State's motion, explaining: " The Defendant would show the specific instances of conduct occurred in 2010, where the alleged victim told a close friend or relative to make up a similar story that the Defendant had touched the friend or relative." (Emphasis added.) Swint argued this was material because it showed " state of mind and motivation to tell the story [the victim] is currently telling," occurred during the same time frame as the charges against him, and was pertinent to " the relationship of the parties when this event was occurring."
The court heard arguments on the State's motion prior to the victim's trial testimony. During that hearing, defense counsel explained the evidence in issue " would not be used to a specific instance to show she's a liar, just the relationship of the parties, what [the victim's] state of mind is and what her motivation is for her telling the story she's telling today." (Emphasis added.) In ruling, the district court made clear what evidence it was considering, stating, " It's an attempt to show that [the victim] was trying to get someone else to potentially lie based on the defense that this is being presented here." (Emphasis added.) The court further explained:
" We're not dealing here in this particular case where the victim has made prior accusations against this Defendant or other men. We're not dealing with prior inconsistent statements or such other types of evidence. We're dealing with a situation where the victim supposedly told another person to make up a similar story against this Defendant."
The district court prohibited the defense " from asking the victim questions or presenting other evidence regarding this incident that we've talked about." A continuing objection was entered on the defendant's behalf.
Following Swint's convictions, the defense sought to set aside the verdict and have a new trial. In a posttrial hearing, Swint's counsel indicated the victim's cousin, A.H., was present to testify about " the statements that were excluded at trial. I need to get those in the record." But the district court did not permit any testimony, explaining, " I believe you've built a sufficient record as a proffer."
Swint's counsel then concluded, " I want to make clear that she would testify that--[A.H.] would testify that [the victim] had told her that the Defendant didn't do this, and that, to her--and, that [the victim] asked [A.H.] to make up a story similar to hers about touching, [A.H.] being touched by the Defendant." This is the first and only time in the record any suggestion appears about the victim allegedly admitting to lying about her claims against Swint, and there was no follow up to clarify how this additional component to A.H.'s claimed testimony would somehow have been included in the scope of the court's prior ruling in limine.
On appeal to the Court of Appeals, Swint asserted the district court's error encompassed the evidence that the victim both admitted falsifying her claims about Swint and asked A.H. to make up a similar story. And complicating the matter further, Swint also altered the legal basis for the claimed error by relying on State v. Barber, 13 Kan.App.2d 224, 227, 766 P.2d 1288 (1989) (holding victim in sex crime case may be cross-examined about prior false accusations based on constitutional Confrontation Clause rights despite K.S.A. 60-422[d] restrictions).
The panel unanimously held that Swint failed to preserve the claim related to the victim admitting to lying about her allegations against Swint. It noted Swint did not raise the admissibility of this alleged admission in the district court until the posttrial hearing. Swint, 2013 WL 6839354, at *6.
But the panel split over whether Swint preserved his claim relating to the evidence about the victim enticing A.H. to make up similar allegations. The panel majority affirmed the exclusion on two grounds: (1) Swint failed to make an adequate proffer of the excluded evidence; and (2) Swint's appellate arguments relating to the admissibility of this evidence were different from those raised in the district court, i.e., the Confrontation Clause argument. 2013 WL 6839354, at *9.
Judge Patrick D. McAnany dissented. He would have held Swint appropriately summarized the evidence before the trial court ruled on the motion in limine; that the district court believed Swint had made an adequate proffer after trial; and, after refusing A.H.'s testimony, the district court allowed Swint to present another short summary of the expected testimony. 2013 WL 6839354, at *20. Judge McAnany also disagreed that Swint could not raise his Confrontation Clause claim for the first time on appeal, reasoning this was an issue of law that should be resolved to prevent a denial of fundamental rights. 2013 WL 6839354, at *21.
Alleged Prior Inconsistent Statement Not Preserved for Appeal
In his appellate brief and again in his petition for review, Swint asserts:
" Prior to trial, the State filed a motion in limine, asking the district court to keep out evidence that the complaining witness in this case, [the victim], had approached another girl after the allegations in this case, and admitted that she had made up the statements against Mr. Swint and asked the ...