Opinion
No. 107,511.
2013-06-7
STATE of Kansas, Appellee, v. James G. BEESON, Appellant.
Appeal from Osage District Court; Phillip M. Fromme, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Osage District Court; Phillip M. Fromme, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
James G. Beeson was convicted of four counts of rape, three counts of aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy against his stepniece. On appeal, he raises three points of error. First, Beeson asserts that the State committed prosecutorial misconduct during closing argument when the prosecutor stated that Beeson stole the victim's innocence. But we find this comment was fair comment on the evidence presented because the victim testified that before Beeson's actions, she did not know or understand what sex was and that through Beeson's actions she learned what sex was. Next, Beeson asserts that rape, aggravated indecent liberties with a child, and aggravated criminal sodomy are all alternative means crimes and the State failed to provide evidence as to each alternative means listed in the jury instructions. Because our Supreme Court has already addressed Beeson's argument in other cases and found that the methods used to penetrate the victim and the objects of the offender's intent are simply options within a means and not alternative means, Beeson's claim of error as to each of these crimes fails. And finally Beeson contends that the district court erred when it dissuaded the jury from asking any questions during deliberation unless the questions were important. Because the information provided to the jury was accurate and Beeson presents nothing more than the mere possibility of prejudice, we cannot find that it rose to the level of misconduct so as to deprive Beeson of a fair trial. We affirm.
Factual and Procedural History
When S.W. was 7 or 8 years old, she and her two other siblings stayed the night with Beeson, her stepuncle, in his trailer. S.W. testified that there were no other adults in the trailer. Everyone was in the living room, and when her siblings fell asleep, Beeson got on top of S.W., said he wanted to pop her cherry, put his penis in her vagina, and put his mouth on her breast. S.W. told Beeson that it hurt, but he told her to be quiet. When Beeson was finished, S.W fell asleep, but in the morning, Beeson woke her and again put his penis in her vagina. Afterwards, Beeson told S.W. not to tell or he would hurt her and they would both get in trouble.
When S.W. was 9 years old, she stayed the night at Beeson's new trailer with her siblings and Beeson's girlfriend at the time. Beeson asked her to go with him outside to look at some cars behind his shed. While there, he made S.W. lay on the ground without her pants and proceeded to put his penis in her vagina; he again said that he wanted to pop her cherry, and he put his mouth on her breast. Beeson also made S.W. put her mouth on his penis. Beeson's girlfriend began calling for them, and Beeson made S.W. put on her pants really fast and walk out from behind the shed. When S.W. went back into the trailer, she sat on the couch. Beeson was sitting beside her and had S.W. put a blanket over their laps. Beeson began to touch S.W.'s vagina. Later that night, while S.W. was sleeping in the guest bedroom, she woke up and Beeson had his mouth on her vagina, and he then made S.W. put her mouth on his penis. In the morning, Beeson woke S.W. up and he put his penis in her vagina.
In September 2009, S.W. told her paternal aunt, A.M., and the rest of her family about Beeson's sexual acts against her. A.M. testified that she noticed something was the matter with S.W. and she was able to eventually get S.W. to talk about and write down Beeson's sexual actions against her. S.W.'s father was informed of what happened, as well as S.W.'s stepmother, M.B., who is Beeson's sister.
M.B. left the house, called Beeson and confronted him about S.W.'s allegations. Beeson denied doing anything and told M.B. that he was coming over. When Beeson arrived at the house, he was confronted by the family about S.W.'s allegations. Beeson denied that he had sex with S.W., but he admitted that he French-kissed her and that he thought about having sex with her. When Beeson arrived at the house, he kept asking to speak with S.W. alone, but the family would not let him. M.B. began to read out loud what S.W. had written, and Beeson tried to take the paper away. He told the family to rip up the paper, throw it away, and that it should not be given to police.
When S.W. heard Beeson deny the allegations, she confronted him, with the family standing nearby, and told him that he did do all those things to her.
When A.M. was calling the police, Beeson approached her, asked her not to call the police, and nearly pushed her over as he was trying to get the phone out of her hands, but she was able to connect with the police anyway.
Dr. Terra Frazier, a pediatrician who specialized in child physical abuse, sexual abuse, and neglect, testified that she performed a sexual assault forensic examination on S.W. Based on Dr. Frazier's training and observations of S.W., the physical findings were consistent with S.W.'s disclosure that someone had sexual intercourse with her.
An officer collected a sheet from the guest bedroom of Beeson's trailer, and a DNA test was performed indicating that there was seminal fluid on the sheet which matched Beeson's DNA. At the time the sheet was collected from Beeson's trailer, Beeson's girlfriend indicated that the sheet had not been changed since S.W.'s overnight stay with them.
Beeson was charged with four counts of rape, three counts of aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy. After a jury trial, the jury found Beeson guilty on all counts.
Beeson was sentenced to life imprisonment with a minimum of 40 years for the first count of rape. Beeson was ordered to serve an additional term of life imprisonment, with a minimum of 40 years for the first count of aggravated indecent liberties with a child, to be served consecutively with the first count. Beeson was ordered to serve, concurrently with the first two counts, life imprisonment with a minimum of 40 years on each of the remaining counts.
Beeson filed a timely notice of appeal.
Analysis
The State did not commit prosecutorial misconduct during closing argument.
Beeson contends that the State committed prosecutorial misconduct during closing argument when the prosecutor stated numerous times that Beeson stole S.W.'s innocence, arguing that such comments were made to inflame the jury's passions or prejudices against Beeson and deny him the right to a fair trial.
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
In the first step of the prosecutorial-misconduct analysis, “a prosecutor crosses the line of appropriate argument when a remark is intended to inflame the jury's passions or prejudices or when the remark diverts the jury's attention from its duty to decide the case on the evidence and controlling law.” State v. Miller, 293 Kan. 535, 551, 264 P.3d 461 (2011).
Our Supreme Court has held that in a closing argument, a prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008). “A prosecutor ‘is given wide latitude in language and in manner [of] presentation of closing argument as long as the argument is consistent with the evidence.’ [Citations omitted.]” State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008).
During closing argument, the prosecutor stated on several occasions that Beeson had stolen S.W.'s innocence through his acts against her.
Our Supreme Court has held that “the admission of irrelevant evidence regarding the effect of a crime on the victim or the victim's family is error. [Citations omitted.]” State v. Brinklow, 288 Kan. 39, 52, 200 P.3d 1225 (2009). In Brinklow, the prosecutor, during closing argument, stated, “ ‘What we're denying is that any of that entitles anybody to take the childhood of [A.C.] and that's what happened.’ “ 288 Kan. at 51–52. While our Supreme Court found this comment constituted misconduct, they also found that the comment was isolated and fleeting and that the second prong of prosecutorial misconduct had not been met. 288 Kan. at 52.
S.W. testified that before Beeson's actions, she did not know or understand what sex was and that through Beeson's actions she learned what sex was.
In addition, the jury instruction for indecent liberties with a child includes the following definition of “[l]ewd fondling or touching”:
“[A] fondling or touching in a manner which tends to undermine the morals of the child, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the child or the offender or both.”
The situation here is different from Brinklow. Here, S.W. testified that she was unaware of what sexual intercourse was and that it was not until after Beeson had sex with her that she learned of such things. In this light, the prosecutor's comments are based on reasonable inferences drawn from the evidence presented at trial and are not misconduct. See State v. Richmond, 289 Kan. 419, 440–41, 212 P.3d 165 (2009). Accordingly, this claim of error fails.
We have no alternative means issues here.
Beeson contends that the State failed to present sufficient evidence to support the finding of guilt on each of the alternative means for committing rape, aggravated indecent liberties with a child, and aggravated criminal sodomy. We will examine each separately, but first we set forth our standard of review.
Standard of review
“Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law reviewable de novo on appeal.” State v. Brown, 295 Kan. 181, Syl. ¶ 6, 284 P.3d 77 (2012).
A reviewing court must first determine whether the criminal statute at issue is an alternative means statute. See Brown, 295 Kan. at 199–200. “To make that determination, we first consider whether an ‘or’ separates alternative means or separates ‘options within a means.’ [Citation omitted.]” State v. Britt, 295 Kan. 1018, 1023, 287 P.3d 905 (2012).
“[T]he legislature typically signals its intent to state alternative means through structure, separating alternatives into distinct subsections of the same statute. However, the legislature may also list additional alternatives or options within a single means of committing the crime. These ‘options within a means' do not constitute alternative means themselves if they do not state additional and distinct ways of committing the crime, that is, if they do not require proof of at least one additional and distinct material element. [Citation omitted.]” 295 Kan. at 1024.
Rape
Beeson challenges his rape convictions, arguing that “finger” and “male sex organ” under the definition of “sexual intercourse” are different and distinct and create alternative means to commit the crime of rape. As such, the State failed to prove that Beeson penetrated S.W.'s vagina with a finger.
K.S.A. 21–3501(1) defines “sexual intercourse” as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” The jury was instructed that “sexual intercourse” was “any penetration of the female sex organ by a finger and/or the male sex organ. Any penetration, however slight, is sufficient to constitute sexual intercourse.”
Our Supreme Court, in Britt, has already addressed this particular argument and has found that penetration of the female sex organ by (1) the male sex organ, (2) a finger, or (3) an object do not create alternative means, but merely options within a means of penetrating the female sex organ, and there is no concern for jury unanimity. 295 Kan. at 1026–27.
Aggravated Criminal Sodomy
Beeson argues that his aggravated criminal sodomy convictions must be reversed because the evidence was insufficient to support a finding of guilt on each of the alternative means for committing the crime on which the jury was instructed. Specifically, Beeson asserts that the State failed to provide sufficient evidence that he penetrated S.W. with an object. In addition, Beeson contends that oral contact or penetration of the female or male genitalia constitutes an alternative means to commit the crime and that the State failed to provide sufficient evidence that he orally contacted male genitalia.
K.S.A. 21–3501(2) states “ ‘[s]odomy’ means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.”
The jury was instructed that “[s]odomy means: (1) oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; .... (4) anal penetration, however slight, of a male or female by any body part or object.”
First, Beeson contends that “object” and “any body part” are alternative means to commit sodomy. Second, he asserts that oral contact or penetration of the “female genitalia” and oral contact of the “male genitalia” represent alternative means to commit sodomy.
“The actus reus of aggravated criminal sodomy under [K.S.A. 21–3506(a)(1) ] is the defendant's act of sodomy with a child who is under 14 years of age. The definition of sodomy, K.S.A. 21–3501(2), creates three alternative means of committing sodomy: (1) oral contact with male or female genitalia; (2) anal penetration of a male or female; and (3) sexual acts between a person and an animal.” Britt, 295 Kan. at 1024–25.
Although our Supreme Court, in Britt, did not specifically address the challenge presented by Beeson in his first argument, Britt is analogous and the same analysis applies. The definition refers to both an “object” and “any body part” to complete the act of anal penetration. However, these are merely options within a means and do not constitute alternative means themselves because they do not state additional and distinct ways of committing the crime.
Beeson's second argument fails because our Supreme Court in Britt has already determined that “ ‘oral contact or oral penetration of the female genitalia or oral contact of the male genitalia’—does not contain alternative means. Instead, the definition refers to various types of oral contact of either the male or female genitalia.” Britt, 295 Kan. at 1025.
Therefore, within the first and second alternative means to commit aggravated criminal sodomy, there are various factual circumstances that prove the crime, but these factual circumstances do not present alternative means of committing aggravated criminal sodomy, and the State presentenced sufficient evidence of the crime by proving that Beeson forced S.W. to engage in oral contact with his genitalia.
Aggravated Indecent Liberties with a Child
Finally, Beeson challenges his convictions of aggravated indecent liberties with a child, claiming the jury instructions presented alternative means as to this crime and the State failed to present sufficient evidence of each means.
The crime of aggravated indecent liberties is set out at K.S.A. 21–3504(a)(3)(A) and defined as: “Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” The portion of the jury instruction at issue here instructed the jury that to establish the charge of aggravated indecent liberties, it must find that “the defendant fondled or touched the person of [S.W.] in a lewd manner, with the intent to arouse or satisfy the sexual desires of either [S .W.] or the defendant, or both.”
Beeson argues that K.S.A. 21–3504(a)(3)(A) requires the State to present evidence that he acted with the intent to arouse or satisfy both his sexual desires and S.W.'s sexual desires. He asserts that because the State failed to present any evidence that he intended to arouse or satisfy S.W.'s sexual desires, the State failed to present sufficient evidence of each of the alternative means of aggravated indecent liberties.
Again Britt has already addressed this particular issue, and Beeson's argument fails. In Britt, our Supreme Court determined that the phrase
“ ‘either the child or the offender, or both’ ... does not state a material element of the crime but merely describes a secondary matter, the potential yet incidental objects of the offender's required intent. [Citation omitted.] Thus, the phrase outlines options within a means, and describes factual circumstances that may prove the distinct, material mental state element of the crime.” 295 Kan. at 1026.
Therefore, the jury instructions reiterating these options did not include alternative means of committing the charges of aggravated indecent liberties.
The district court did not commit judicial misconduct by its explanation of the jury question process.
Beeson argues that the district court erred during its explanation of the jury question process by telling the jurors that any questions they have should be important questions. Beeson asserts that these comments discouraged the jury from asking any questions and denied him a fair trial. Although Beeson did not lodge a contemporaneous objection to the judge's comments, our Supreme Court has held that judicial misconduct is reviewable on appeal despite the lack of a contemporaneous objection when the right to a fair trial is alleged to have been violated. State v. Tyler, 286 Kan. 1087, 1090, 191 P.3d 306 (2008).
Appellate courts have unlimited review over allegations of judicial misconduct. State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010). We must review the particular facts and circumstances of each case to determine whether judicial comments, other than jury instructions, rise to the level of judicial misconduct. The complaining party has the burden to establish that misconduct occurred and that the misconduct prejudiced the party's substantial rights. If a proper and reasonable interpretation will render the judge's remark unobjectionable, the remark cannot be found to be prejudicial. 291 Kan. at 113. The mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict or judgment. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).
Once retiring to deliberate, jurors are entitled to ask questions of the court regarding the law or evidence and the court has a duty to respond. See K.S.A. 22–3420(3). Before sending the jury out for deliberations, the district judge gave the following explanation on the process of jury questions:
“If for some reason you get hung up on something that you need an answer to, we do have a process in which you can ask questions. I will tell you in advance that for the most part there aren't very many questions that we can answer. However, if you do have a question the procedure that you must follow is that the presiding juror needs to write the question out on a piece of paper and submit it to the bailiff. Then I will be required to assemble everybody, we will have to discuss the question and determine what answer to give you. What that should tell you is that it must be a very important question for you to feel that you need to ask a question. I've had jurors that for some reason or other had dozens of questions, most of which were not that important and I don't think they knew how much time it took to answer them. And so I just simply state that you need to make sure it's something that's very important and realize that you don't at the snap of the fingers get an answer. And in many cases I can't give you additional answers than what are included in the instructions themselves.”
After reviewing the district court's comments on the jury question process, it does not appear that anything the district court stated was untrue or incorrect. The district court informed the jury that it could ask questions and provided the process required to ask any questions. It was never suggested that questions would not be honored. The district court further explained what the jury could realistically expect after a question had been asked. Beeson has failed to establish how he was prejudiced by the judge's comments other than to suggest the mere possibility that jurors may not have asked any questions because of the comments. Although we do not encourage the approach taken by the judge here, his comments do not rise to the level of judicial misconduct. See People v. Anjell, 100 Cal.App.3d 189, 203, 160 Cal.Rptr. 669 (1979) (trial court does not commit prejudicial error when explaining to the jurors the complications involved in requesting a readback of trial testimony); State v. Guinn, 58 S.W.3d 538, 548 (Mo.App.2001) (court must be cognizant of the need to discourage communications that cannot really be answered, such as request for more evidence and argument, and at the same time not discourage legitimate inquiry); State v. Bailey, 280 N.C. 264, 268–69, 185 S.E.2d 683 (1972) (no prejudice when judge expressed to the jury that judges “ ‘shudder when the jury comes back in and say[s] they have a question to ask’ ”); but see Cedars of Lebanon Hosp. v. Silva, 476 So.2d 696, 703 (Fla.Dist.App.1985) (error when court advised jury on three separate occasions that it could not become the jury's pen pal and that it did not wish to influence jury in its deliberations by answering questions).
Affirmed.