Opinion
No. 106,610.
2012-11-16
STATE of Kansas, Appellee, v. Ziad K. KHALIL–ALSALAAMI, Appellant.
Appeal from Riley District Court; Paul E. Miller, Judge. Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Riley District Court; Paul E. Miller, Judge.
Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ziad K. Khalil–Alsalaami appeals his convictions and sentences for aggravated criminal sodomy of a child. The trial court imposed the mandatory minimum sentences of 25 years under Jessica's Law, K.S .A.2010 Supp. 21–4643. We affirm the convictions and sentences.
Factual and Procedural History
On May 1, 2010, C.J., a 13–year–old girl, attended a party in Manhattan hosted by Khalil–Alsalaami, who was 28 years old at the time. Several attendees testified that C.J. appeared to be in her late teens. Khalil–Alsalaami was in the United States as a permanent resident after serving as an interpreter for the United States military forces in Iraq.
C.J. traveled to the party from Ft. Riley with three men of unknown ages. According to C.J. and two of these men, a discussion arose whether C.J, would have sex with Khalil–Alsalaami for money. C.J. testified that she refused the suggestion, but one of the men testified that she agreed to the idea.
In C.J.'s version of events, one of the men asked if she was tired and led her to Khalil–Alsalaami's bedroom to lie down. This man testified that C.J. went to the bedroom intending to have sex in return for money. Regardless, C.J. and the two men agreed she was in the bedroom with Khalil–Alsalaami.
C.J. testified that Khalil–Alsalaami pushed her onto the bed, undressed her, and forced her to engage in oral sodomy, sexual intercourse, and anal sodomy. Khalil–Alsalaami admitted to oral and anal sodomy during a police interview, but he claimed that he thought C.J. was 18 or 19 years old and had consented to the sexual acts. Khalil–Alsalaami denied sexual intercourse or agreeing to pay money for the sex acts.
At trial, Khalil–Alsalaami changed his account of the incident, specifically denying that he entered the bedroom or had sexual relations with C.J. He claimed he said otherwise in the police interview because the officer repeatedly suggested that sex had occurred. Khalil–Alsalaami did not assert coercion, however, and the State produced his earlier stipulation that “his statements to law enforcement were knowing and voluntarily given and he was not under any compulsion and no threats or promises were made to him.”
The State charged Khalil–Alsalaami with two counts of aggravated criminal sodomy and one count of rape. The jury found Khalil–Alsalaami guilty on both aggravated criminal sodomy counts, but it acquitted him on the rape count.
Khalil–Alsalaami moved for a departure from the 25–year mandatory minimum sentence. The trial court found one of the statutory mitigating circumstances applied—lack of criminal history—but found no nonstatutory mitigating circumstances applied. The trial court concluded there were no substantial and compelling reasons to depart, imposed the mandatory minimum sentence of 25 years for each sodomy count, and ran the sentences concurrently. Khalil–Alsalaami appeals.
Subject Matter Jurisdiction
For the first time on appeal, Khalil–Alsalaami contends the trial court lacked subject matter jurisdiction over him because he was not arraigned. We apply unlimited review to both the existence of subject matter jurisdiction and the question of what process is due. See State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010); State v. Moody, 282 Kan. 181, 188, 144 P.3d 612 (2006).
The record on appeal indicates that Khalil–Alsalaami was arraigned on the information charging him with the three sex offenses on September 13, 2010. On April 11, 2011, shortly before trial, the State filed an amended information that was identical to the original, except that the State added to the sodomy charges the allegation that Khalil–Alsalaami was over 18 years of age at the time of the offenses. No new offenses were added to the amended information.
Khalil–Alsalaami tacitly acknowledges that he did not object in the district court to any failure to arraign him. The law generally provides that when a defendant is not arraigned and goes to trial without objection, that defendant effectively waives arraignment absent a showing of prejudice to the defense. See United States v.. Cook, 972 F.2d 218, 222 (8th Cir.1992); United States v. Hart, 457 F.2d 1087, 1089 (10th Cir.1972); State v. Jakeway, 221 Kan. 142, 143–45, 558 P.2d 113 (1976); State v. Rubick, 16 Kan.App.2d 585, 586, 827 P.2d 771 (1992).
Our Supreme Court has directed: “[T]here can be no appealable error for a failure to have new preliminary hearings and new arraignments on an amended Information when defendant has failed to timely object.... Moreover, ... even timely objections must be coupled with actual prejudice to the defendant's rights.” State v. Pennington, 288 Kan. 599, 603, 205 P.3d 741 (2009).
Khalil–Alsalaami does not show or even allege prejudice. He states he was a “foreigner whom [ sic ] only [ sic ] been in the United States for approximately 14 months at the time said allegations was [ sic ] lodged,” but he does not claim actual ignorance of the charges or any inability to prepare a defense. Instead, he argues that a silent record will not support waiver, but the record was not silent. Khalil–Alsalaami was arraigned on the original information charging him with the three sexual offenses. We conclude the defendant was aware of the criminal allegations against him, pled not guilty, went to trial, and mounted a sophisticated defense with 11 defense witnesses.
Because Khalil–Alsalaami was arraigned on the original information charging the three sex offenses, he did not object to any failure to arraign on the amended information, and he fails to show prejudice on appeal, we conclude he was not deprived of due process of law, and the trial court had jurisdiction over the matter.
Alternative Means
The charging document in the present case did not specify the acts constituting aggravated criminal sodomy. At trial, the district court gave two sodomy instructions, each asking the jury to determine whether Khalil–Alsalaami had “engaged in sodomy.” The trial court then gave a separate instruction defining sodomy as: “1) oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; or 2) anal penetration, however slight, of a male or female by any body part or object.”
During closing arguments the prosecutor told the jury that Khalil–Alsalaami “put his penis in [C.J.'s] mouth.... That's aggravated criminal sodomy. And [Khalil–Alsalaami] put his penis in [C.J.'s] anus. That's also aggravated criminal sodomy based on the instructions that you've been given.”
Khalil–Alsalaami challenges the sufficiency of the evidence under an “alternative means” theory, while also referring to “multiple acts” and “multiple means.” The defendant states: “The dilemma in this case is clear: only one purported act of anal penetration occurred.” From this, Khalil–Alsalaami argues: “The jury could have improperly concluded guilt on both counts based solely on a single act of anal copulation. One cannot determine if the jury relied on anal copulation for count II, or count III, both count II and III, or neither, instead basing their verdicts upon oral contact .”
Given Khalil–Alsalaami's argument, we could read this as a combined multiplicity and multiple acts issue. At oral arguments, however, Khalil–Alsalaami's counsel clarified that the issue he is raising is alternative means. Under any of these theories our review is unlimited. See State v. Colston, 290 Kan. 952, 962, 971, 235 P.3d 1234 (2010); State v. Rollins, 46 Kan.App.2d 17, Syl. ¶ 1, 257 P.3d 839 (2011), rev. denied 293 Kan. –––– (2012).
Khalil–Alsalaami is correct that aggravated criminal sodomy is an alternative means crime. State v. Burns, 295 Kan. ––––, Syl. ¶ 7, ––– P.3d –––– (2012).
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]” State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
Considered as alternative means, the result of this analysis is clear. C.J. personally testified about oral and anal sex, similar to her pretrial written statement. Khalil–Atsalaami admitted to police that he had engaged in oral and anal sex. Because the State presented substantial evidence of both oral and anal sodomy, Khalil–Alsalaami has not shown error. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). We will briefly mention the other theories as well.
Khalil–Alsalaami does not allege oral and anal sodomy are the same conduct as required for multiplicity. Colston, 290 Kan. at 971. And the jury was instructed: “Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge.” Because jurors are presumed to follow their instructions, we may conclude Khalil–Alsalaami was not convicted twice for the same conduct. See State v. Reid, 286 Kan. 494, Syl. ¶ 18, 186 P.3d 713 (2008).
Finally, although the State alleged at least two acts of sodomy, it elected the particular acts in closing arguments. This, together with the instructions, was sufficient in cases of multiple acts. See Colston, 290 Kan. at 961. We find no reversible error.
Knowledge of C.J.'s Age
Next, Khalil–Alsalaami contends “the State was not required to prove [he] knowingly or intentionally engaged in sodomy with a child under the age of 14.” He also argues the “State did not present one shred of evidence that [he] was aware of the victims [ sic ] age.” Whether Khalil–Alsalaami's knowledge of C.J.'s age was an element of the crime is a question of law subject to unlimited review. See State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011).
Although K.S.A. 21–3506(a)(1) requires proof a child “is under 14 years of age,” it does not require proof the defendant knew that fact. More specifically, under K.S.A. 21–3202(2), “[p]roof of criminal intent does not require proof that the accused had knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.” As a result, “aggravated criminal sodomy ... is a general criminal intent crime,” State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997), and “it is not a defense that an accused did not have knowledge of the age of a minor victim.” State v. Fore, 17 Kan.App.2d 703, Syl. ¶ 1, 843 P.2d 292 (1992), rev. denied 252 Kan. 1093 (1993). This issue is without merit.
Reasonable Doubt Instruction
For the first time on appeal, Khalil–Alsalaami contends the reasonable doubt instruction provided to the jury was erroneous. He did not object below.
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” State v. Williams, 295 Kan. ––––, Syl. ¶ 3, 286 P.3d 195 (2012).
In the determination of whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, “the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” 295 Kan. ––––, Syl. ¶ 4. If the reviewing court concludes the district court erred in giving or failing to give a challenged instruction, the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses “whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. ––––, Syl. ¶ 5. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal. See 295 Kan. ––––, Syl. ¶ 5.
Khalil–Alsalaami contests the following portion of the reasonable doubt instruction, which followed PIK Crim.3d 52.02 except that it substituted “any” for “each” as indicated by the italicized word below:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If 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.” (Emphasis added.)
A panel of this court considered a similar argument under similar facts in State v. Beck, 32 Kan.App.2d 784, 787–88, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). The panel found no error in part because any ambiguity was resolved by the elements instruction, which required “each” of the elements to be proved. 32 Kan.App.2d at 787–88.
In the present case, the jury was advised with regard to the aggravated criminal sodomy instructions: “To establish this charge, each of the following claims must be proved.” Reading the instructions as a whole, instead of isolating the passage in question, there is not a real possibility the jury would have rendered a different verdict under the correct PIK language. See 32 Kan.App.2d 784, Syl. ¶ 1;State v. Womelsdorf, 47 Kan.App.2d 307, 332–34, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012.
Proof of Khalil–Alsalaami's Age
Khalil–Alsalaami contends his sentences for aggravated criminal sodomy are invalid because the jury instructions did not list his “age as a factor for the jury to decide.” The prosecutor noted the omission at the instructions conference, but the trial court stated, “It's on the verdict form.” “When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably mislead the jury.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The verdict form included this question: “If you find the defendant was guilty of aggravated criminal sodomy, do you also unanimously find beyond a reasonable doubt that the defendant was 18 years of age or older at the time the offense was committed?” Following the question were lines indicating “Yes” and “No,” and the jury checked the “Yes” line. Because the jury did make a factual determination on Khalil–Alsalaami's age, we find no reversible error.
Prosecutorial Misconduct
Khalil–Alsalaami argues the prosecutor committed misconduct by telling “the jury that the legislature enacted a law that does not require criminal intent to be proven and that an alleged [victim's] deception of their age rather verbally or by fake I.D., is not a defense against the crime of [aggravated criminal] sodomy with a child under the age 14 years.” This issue is related to Khalil–Alsalaami's earlier claim about proof of C.J.'s age.
Appellate review of prosecutorial misconduct has two steps. First, we must decide whether the comments were outside the wide latitude allowed the prosecutor when discussing the evidence. Second, we must ask whether any misconduct constituted plain error. See State v. McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011).
Because Khalil–Alsalaami does not cite the record for the prosecutor's alleged comments, we may presume the allegation is not supported by the record. Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39). A review of the record, however, did locate the following closing argument by the prosecutor:
“One of the instructions also is that the age of the victim is not a defense or lack of knowledge of the age of the victim is not a defense. It doesn't matter if C.J. said she was 17 or 19 or 21. It doesn't matter if she would have produced a photo I.D. that said she was 21. It doesn't matter that if anybody else stated that she was a different age than what she was. The fact is she was 13. The legislature has decided that having sexual intercourse or having any kind of sodomy with a child under 13 is a crime. And we are asking you, the jury, to follow the law as it's been instructed. You've taken an oath to follow the law. You may or may not agree with the law, but you've taken an oath to follow the law as [the judge] instructed you and her age or knowledge about her age is not a defense.”
The prosecutor was referring to the jury instruction which stated: “It is not a defense that the accused did not have knowledge of the age of a minor, even though age is a material element of the crime with which he is charged.” As discussed earlier, this jury instruction was a correct statement of Kansas law, and the prosecutor's argument did not deviate from it. As a result, there was no prosecutorial misconduct. See State v. McCullough, 293 Kan. 970, 988, 270 P.3d 1142 (2012) (where “the prosecutor did not misstate the law,” a prosecutorial misconduct argument “fails under the first prong”).
Sentencing Under Jessica's Law
For his final issue, Khalil–Alsalaami argues the trial court erred by denying his motion for a departure from his 25–year mandatory minimum sentences. The trial court could depart if it found “substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21–4643(d). “When a sentencing court denies a defendant's motion to depart under K.S.A. 21–4643(d), we review the denial for abuse of discretion. [Citation omitted.]” State v. Hyche, 293 Kan. 602, 605, 265 P.3d 1172 (2011).
“[J]udicial discretion is abused:
“ ‘[I]f judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.’ [Citations omitted.]” 293 Kan. at 605.
Khalil–Alsalaami relies primarily on the third factor. We will briefly set out the evidence and arguments before relating the trial court's finding.
Khalil–Alsalaami testified at trial regarding Iraqi culture. He stated sex with a 13–year–old girl would: “Get you trouble and shame to me and my family and my tribe. And I get killed. No. The police kill me, the tribe kill me. And my family denies me, they take me away from my family.”
Khalil–Alsalaami's counsel argued at sentencing: “This is an extraordinarily sad circumstance. This man has had everything taken from him. Whenever he gets out of prison he's gonna be sent back to Bagdad, back to his home.”
After this argument, the trial court began its ruling as follows:
“Okay. Well, this is a sad circumstance here today because of the fact that we are even here. The fact is that the jury convicted this defendant of these two counts. The fact is the jury believed him when he said he did not rape this girl apparently because they didn't convict him of that charge. The—apparently they believed his admissions to [the police] as opposed to the denials that he gave in court and his explanation [to the police] that it was okay ... to sodomize a child but not to rape her because that would be in violation of his marriage vows and would cause him to suffer the shame and death if he were back in Iraq and committed that adultery. At least that's what I heard in this courtroom.”
Khalil–Alsalaami argues the trial court's comments were “[wholly] and completely unsupported by the evidence in this case.” The State contends the comments were reasonably based on Khalil–Alsalaami's testimony about the consequences of having sex with a 13–year–old girl quoted above.
Although Khalil–Alsalaami did testify regarding Iraqi culture, we did not locate in the record the testimonial reference recounted by the trial court at sentencing. To establish reversible error, Khalil–Alsalaami has to show the trial court based a conclusion of law or exercise of discretion on the unsupported factual finding. See Hyche, 293 Kan. at 605. We are persuaded that the trial court was merely speculating about the jury's rationale for reaching its mixed verdicts, in response to counsel's argument, not that it was making a finding for the purpose of sentencing. Only after the trial court made its comments did the trial court turn to the departure question and begin discussing the statutory and nonstatutory mitigating circumstances.
Khalil–Alsalaami also argues the trial court ruled on the mitigating circumstances “in very summary fashion.” Jessica's Law does not require specificity, however, when departure is denied, State v. Harsh, 293 Kan. 585, 587, 265 P.3d 1161 (2011), and Khalil–Alsalaami did not object to a lack of findings below. We may therefore presume the trial court found the facts necessary to support its decision. See State v. Harris, 293 Kan. 798, 808, 269 P.3d 820 (2012).
Next, Khalil–Alsalaami mentions his lack of criminal history as a mitigating circumstance. The trial court made such a finding, but we agree with the State that Khalil–Alsalaami's status as a recent immigrant discounts the mitigation. Khalil–Alsalaami's conduct before immigration, aside from his service as a translator, is unknown.
Khalil–Alsalaami also points to testimony that C.J. was a willing participant. But C.J. testified she was not a willing participant, and the jury did not resolve the dispute. We believe the dispute discounts any mitigation. See State v. Thomas, 40 Kan.App.2d 1082, 1090, 198 P.3d 203 (2009).
Next, Khalil–Alsalaami relies on the fact that witnesses believed C.J. was older than her actual age. The trial court apparently did not find this to be substantial and compelling, and a reasonable person could agree. C.J.'s appearance was beside the point if she did not consent. Mitigating circumstances are substantial and compelling only if they are real, not imagined or ephemeral, and force the court to go beyond the status quo or ordinary result. See Harsh, 293 Kan. at 586. The testimony that C.J. looked older than her actual age was not a real and forceful reason to depart in light of the conflicting testimony regarding her consent.
Finally, Khalil–Alsalaami “cites his many years service [ sic ] to the United States Army, while in Iraq, serving as a local interpreter for military forces.” It is difficult to categorize this as a mitigating circumstance. Khalil–Alsalaami's service to the United States military was unrelated to the crimes in question or the justice process generally, unlike the statutory mitigating circumstances. See K.S.A. 21–4643(d)(1)–(6). Even if prior service to the armed forces were a proper nonstatutory mitigating circumstance, a reasonable person could conclude it was not a substantial and compelling reason to depart under the facts of this case.
In the present case, a reasonable person could conclude, as did the trial court, that in light of all the circumstances the mitigating circumstances were not substantial and compelling reasons to depart from the 25–year mandatory minimum sentence.
Affirmed.