Opinion
No. 110,193.
2014-11-7
STATE of Kansas, Appellee, v. Luz D. CORONADO, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., STANDRIDGE and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Luz D. Coronado appeals her convictions and sentence for one count of aggravated indecent liberties with a child and four counts of sexual exploitation of a child. She argues that two of her charges are multiplicitous and therefore violate her constitutional rights under the Double Jeopardy Clause of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. She also argues that the district court erred when it denied her departure motion prior to sentencing. Finding no error, we affirm.
Facts
On November 2, 2011, Natalie Nicks received a text message from her husband, Greg Nicks, which was not meant for her. It contained a picture of a naked girl. This prompted Natalie to log into Greg's e-mail account, something she had never done before. She knew his password because he used the same password for everything.
Natalie logged into the one G-mail account she knew Greg had. However, while investigating the content of that account, she discovered that Greg had a second G-mail account. She was able to log into the second account with Greg's typical password. There were no e-mails on the main page of that account, but Natalie knew it was Nick's regular practice to erase all of his e-mails each day. Instead of e-mails, Natalie found 177 days' worth of conversations stored in the account. G-mail contains a feature that allows users to chat by instant message rather than by sending e-mails. This chatting can take place via a computer or a cell phone. G-mail automatically saves all instant message conversations unless a user changes the default settings.
Natalie opened a chat conversation that had occurred between Greg and Coronado on November 1, 2011. The conversation was sexually explicit and involved Natalie's children. Natalie asked her best friend to call the police.
As a result of the subsequent investigation, Coronado was charged with one count of aggravated indecent liberties with a child and four counts of sexual exploitation of a child. She waived her right to a jury trial, and the case proceeded to a bench trial. At trial, Detective Jennifer Wright with the Wichita Police Department gave a detailed account of an instant message conversation that occurred between Coronado and Greg on November 1, 2011. At 9:04 a.m. on that date, Greg initiated the G-mail instant message conversation with Coronado by sending a message saying: “ ‘Hey, baby.’ “ Coronado was at work, but Greg was at home with his two daughters, 14–month–old A.N. and 7–week–old E.N.
At 11:31 a.m., Greg sent a message to Coronado that said: “ ‘So since I'm home alone with my girls, should I do anything for you?’ “ In reply, Coronado said: “ ‘That sounds like fun for you, Daddy.’ “ “Daddy” was apparently a nickname Coronado used to refer to Greg. Again, Greg asked: “ ‘Should I do anything for you?’ “ Coronado responded: “ ‘I don't know. Do you want to?’ “ Greg then wrote: “ ‘I want to do anything you want me to do. What would turn you on?’ “ Coronado responded: “ ‘You could let your oldest play with your cock.’ “ Greg then wrote: “ ‘Would you like that or love that?’ “ Coronado replied that she would “ ‘love that.’ “
A short time later, Greg sent a message to Coronado that said: “ ‘She is touching it now.’ “ She responded: “ ‘Wow. Wish I could see that.’ “ Greg asked Coronado if she wanted a picture of it, and Coronado replied: “ ‘Yes, I would.’ “ Greg then told Coronado that if she was serious, he would send a picture. Coronado replied: “ ‘Yeah, I am very serious. You know me.’ “ The State entered a copy of the picture into evidence. It was sent by e-mail along with two other pictures to Coronado at 1:47 p.m. and it depicted A.N. touching Greg's penis. Greg sent a message stating that he was nervous sending the pictures because he was not sure she would like them. Coronado sent an instant message back telling Greg she loved what she saw.
The two continued their G-mail conversation. After some discussion about their shared interest in young incest, Greg asked if Coronado liked children 5 years old and older or if she would “ ‘go younger now.’ “ There was apparently a break in the conversation during which Coronado did not respond to Greg's messages, so at 2:09 p.m. Greg asked: “ ‘I scared you off?’ “ She replied: “ ‘No, Dad, not at all. Still here.’ “ After some more discussion about Coronado's sexual interest in young boys, Greg said: “ ‘I feel like you don't really want to talk about all of this, or am I just making that up in my head?’ “ At 2:15 p.m., Greg sent another message consisting only of a smiley face. At 2:23 p.m., Coronado replied: “ ‘Daddy, quit trippin’.' “
Next, Greg sent a message asking: “ ‘Anything else you want me to do that your dirty mind would love?’ “ This time, Coronado replied: “ ‘Come fuck me.’ “ Greg answered that he wished he could but asked again if there was anything he could do at his home that would turn her on. Coronado told him that the only thing she needed was sex with him. Greg then asked if there was anything else she wanted him to do with A.N. Coronado responded by asking what Greg would like to do to her. Greg replied, in part: “ ‘[A]nything you want.’ “ Coronado then expressed some reservations about giving instructions to Greg, noting that she was new at this and that she was shy. Greg sent a message stating that he loved “ ‘everything that [came] out of [her] mouth’ “ and that he wanted to know all of her dirty thoughts, her deepest, darkest secrets, and her desires.
Sometime shortly after 2:47 p.m., Greg asked: “ ‘So what comes to mind when I ask you what would turn you on with my oldest?’ “ Coronado responded: “ ‘Maybe a little sucking.’ “ Greg then asked: “ ‘Her sucking my dick?’ “ She responded: “ ‘Yeah.’ “ Greg then sent a message asking: “ ‘Would you like that if I had her try.’ “ She replied: “ ‘Oh, yes, Daddy, I would.’ “ He then responded: “ ‘Okay. I will. Anything for you.’ “ Coronado said that she loved it, and Greg asked: “ ‘Honestly? A little or a lot?’ “ Coronado replied: “ ‘A lot Daddy.’ “ The next message from Greg said: “ ‘She had her mouth on it. Doesn't know to suck yet, but licked it.’ “
Coronado then responded that she liked what Greg was saying and that even a little lick would turn her on. Apparently confused, Greg asked: “To watch her lick? Or do you want me to lick her?' “ To this, she responded: “ ‘Daddy, both. I love that a lot. Wow.’ “ Later, Greg sent a message stating: “ ‘I can lick her if you would like me to.’ “ She replied: “ ‘Yes, I would. And then she can lick you.’ “ Greg then asked if she would like a picture of his tongue on A.N.'s vagina. Coronado responded that she would. After a few more messages, Greg said: “ ‘Her legs twitched when I licked her. Would you like licking her and making her twitch?’ “ Coronado replied: “ ‘Oh, yes, Daddy. What else did she do?’ “ Greg answered: “ ‘She laid there very still. Actually think she liked it,’ “ Greg then sent a message stating that he sent a picture of this act as well. Coronado confirmed that she received it and said that she loved it. An e-mail containing a picture depicting Greg's face near A.N.'s vaginal area was sent at 3:08 p.m.
Next, Coronado asked Greg to rub his penis on A.N.'s vagina. Greg sent a message saying that he had done so and claimed to have sent a picture of that act as well, but it was never received by Coronado. Greg told her that he could not resend it because he had already deleted it.
Coronado did not testify at trial. During closing argument, the State clarified that it believed Coronado was guilty of all five counts against her because she had aided and abetted Greg in the commission of the crimes. The district court found Coronado guilty of all five counts against her.
Coronado filed a motion for dispositional or durational departure. In it, she argued that several mitigating factors justified her departure, including her lack of significant criminal history, the fact that she was a nonviolent offender, her relatively minor participation in the crimes, the availability of treatment programs for her, and her willingness to assist with the prosecution of Greg. At Coronado's sentencing hearing, the district court denied her departure motion and ordered her to serve concurrent life sentences with no possibility of parole for 25 years.
I. Multiplicity
Coronado argues her convictions under counts 2 and 4 are multiplicitous. She similarly argues that counts 3 and 5 are multiplicitous. Multiplicity is the charging of a single offense in several counts of a charging document. Multiplicitous convictions violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights because they constitute multiple punishments for a single offense. State v. Weber, 297 Kan. 805, 808, 304 P.3d 1262(2013).
Coronado raises these multiplicity issues for the first time on appeal. Generally, issues not raised before the district court will not be considered on appeal. State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). There are three exceptions to this general rule: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the trial court's decision was correct, but it relied on the wrong ground or assigned a wrong reason for its decision. State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012). Whether convictions are multiplicitous is solely a question of law over which appellate courts have unlimited review. Further, the Kansas Supreme Court has stated specifically that multiplicity issues may be considered for the first time on appeal to serve the ends of justice or prevent a denial of fundamental rights. State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010). Therefore, this court may address the merits of Coronado's claims.
When analyzing whether convictions are multiplicitous, an appellate court first decides if the convictions arose from the same conduct. If not, there is no Double Jeopardy Clause violation. However, if the conduct did arise from the same conduct, this court next decides whether, according to the relevant statute, the conduct constitutes one offense or two. State v. Sprung, 294 Kan. 300, 306–07, 277 P.3d 1100 (2012). A. Same conduct
Multiple convictions do not arise from the same conduct if the conduct is committed separately or severally. State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007). To determine whether a defendant's convictions arose from the same conduct, this court should consider the following four factors: (1) whether the acts occurred at or near the same time, (2) whether the acts occurred at the same location, (3) whether a causal relationship existed between the acts, in particular whether an intervening event separated the acts, and (4) whether a fresh impulse motivated some of the conduct. Sprung, 294 Kan. at 307.
Coronado argues that counts 2 and 4 arose from the same conduct. She makes the same argument related to counts 3 and 5. Thus, we begin by clarifying the specific conduct that led to each conviction. Count 2 contained a charge of sexual exploitation of a child in violation of K.S.A.2013 Supp. 21–5510(a)(1). That statute states:
“(a) Sexual exploitation of a child is:
(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, to engage in sexually explicit conduct with the intent to promote any performance.” K.S.A.2013 Supp. 21–5510(a)(l).
Coronado's conviction under count 2 resulted from aiding and abetting Greg while he took a picture of A.N. touching his penis.
Count 3 contained a charge of sexual exploitation of a child in violation of K.S.A.2013 Supp. 21–5510(a)(4). That subsection of the statute states: “(a) Sexual exploitation of a child is: ... (4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, knowing the character and content of the performance.” K.S.A.2013 Supp. 21–5510(a)(4). Coronado's conviction under count 3 resulted from aiding and abetting Greg while he transmitted the picture of A.N. touching his penis.
Count 4 contained another charge under K.S.A.2013 Supp. 21–5510(a)(l). This was related to Coronado's aiding and abetting of Greg as he took the picture of his mouth near A.N.'s vagina. Count 5 was another violation of K.S.A. 2103 Supp. 21–5510(a)(4), and resulted from aiding and abetting of Greg as he transmitted that photograph to her.
1. Counts 2 and 4
Turning to the factors announced above, the first question is whether the acts described in counts 2 and 4 occurred at or near the same time. At approximately 1:41 p.m. on November 1, 2011, Coronado suggested that Greg let A.N. play with his penis. Later, between 2:47 p.m. and 3:08 p.m., the two discussed Greg licking A.N.'s vagina and taking a picture of that act. Therefore, a little more than an hour separated the acts Coronado claims constitute the same conduct. It is true that the G-mail instant message conversation was, in a sense, continuous. The record indicates that Coronado and Greg chatted intermittently for several hours without explicitly ending the conversation at any time. However, there was a substantial amount of time between the messages resulting in count 2 and the messages resulting in count 4. This factor, then, weighs against Coronado's argument.
Second, the conduct clearly occurred in the same location. During the entirety of their conversation, Greg was at home and Coronado was at work. This factor favors Coronado's argument.
Third, Coronado argues that no intervening event separated the two acts leading to counts 2 and 4. As support for her argument, she cites Weber, 297 Kan. 805. In that case, Weber attempted to rape his victim, M.E.W., but was unable to achieve penile penetration. He then penetrated M.E.W.'s vagina with his fingers and, afterwards, again attempted penile penetration unsuccessfully. He was convicted of rape and attempted rape. The State argued that Weber's inability to achieve penile penetration was an intervening act that separated the attempted penile penetration from the digital penetration. The Kansas Supreme Court rejected this argument, finding that no external event disrupted Weber's rape of M.E.W. Rather, Weber's inability to accomplish penile penetration directly caused him to resort to digital penetration. It stated that Weber embarked on the singular act of raping M.E.W. and continued until he ejaculated. Therefore, it found that his convictions for rape and attempted rape arose from the same conduct. 297 Kan. at 810–11.
It is unclear what relevance Coronado believes Weber has to this case. She appears to be arguing that no external event disrupted the singular criminal act of exploiting A.N. She cites State v. Sellers, 292 Kan. 346, 358, 253 P.3d 20 (2011), in which the defendant began molesting his victim, then left the room for 30 to 90 second to quiet a barking dog, then returned to molest his victim again. The Supreme Court found that this was a sufficient intervening event to break the causal chain between the two acts of molestation and rejected Sellers' multiplicity argument. 292 Kan. at 358–60. But an intervening event sufficient to separate two criminal acts does not need to be something external such as a barking dog. A panel of this court has recognized that a defendant's own decision to turn around and run away was an intervening event between the defendant's conviction for aggravated assault of a person as an individual and the separate crime of aggravated assault of the same person as a police officer. State v. Hawkins, 40 Kan.App.2d 10, 16–18, 188 P.3d 965 (2008), rev. denied 287 Kan. 767 (2009). This case clearly indicates that a defendant's own actions can be an intervening event.
Here, the record reflects an intervening event between counts 2 and 4. After the first photo was taken and sent to Coronado, the conversation between the two changed significantly. Greg expressed concern that he had scared Coronado off with his sexual interest in his daughter. When Greg asked if she would like him to do anything else, Coronado shifted the topic completely away from children and told Greg that she wanted to have sex with him. Moreover, when Greg brought the conversation back to A.N., Coronado professed that she was shy and initially refused to provide instructions to Greg. Only later, after another significant change in the conversation's tone, did she tell Greg that she wanted him to lick A.N.'s vagina and that she would like a picture of it. This change in subject matter and tone during the conversation was an intervening event between the two counts that, again, weighs against a finding of multiplicity.
Finally, Coronado argues that the State did not show that a fresh impulse motivated the conduct leading to count 4, but rather that the impulse for both counts 2 and 4—namely, to engage in a sexual chat—was the same. In Colston, the defendant was convicted of one count of rape. He argued that the district court erred by not giving a unanimity instruction because multiple acts could have sustained each conviction. Two of the alleged acts occurred on the same day. On that date, Colston removed B.N.'s clothes and had intercourse with her. After Colston finished, B.N. asked if she could leave to use the restroom. Colston said no and instructed her to urinate on the bed. As she urinated, Colston held his finger in her vagina. Using the same test applied to the multiplicity challenge in this case, the Supreme Court found that the digital penetration was motivated by a fresh impulse when B.N. asked to use the restroom. Therefore, the penile penetration and digital penetration constituted separate acts. 290 Kan. at 962–64.
Here, the acts leading to the second picture were similarly motivated by a fresh impulse. As discussed above, after Greg took and sent the first picture, Coronado momentarily abandoned the topic of incest. She told Greg she wanted to have sex with him, then said she was shy about telling Greg what else she would like to see him do to A.N. After telling Greg this, however, she apparently developed a fresh impulse and asked Greg to do something with A.N. that was unlike the act they had discussed earlier that day. She said she would like to see Greg lick A.N.'s vagina and take a picture of it. The shift in the topic of conversation, as well as her initial reticence to give Greg further instructions regarding A.N. indicate that her messages asking Greg to produce the second photo were motivated by a fresh impulse distinct from her initial impulse to ask for the first picture.
In summary, the actions leading to counts 2 and 4 did not occur at or near the same time, they were separated by an intervening event, and count 4 was motivated by a fresh impulse. Consequently, Coronado's convictions under counts 2 and 4 did not arise from the same conduct, but were instead separate and distinct crimes, and therefore were not multiplicitous.
2. Counts 3 and 5
Coronado similarly challenges her convictions for counts 3 and 5 as multiplicitous. She argues that counts 3 and 5 arose from the same conduct for precisely the same reasons that she argues that counts 2 and 4 did. The only difference as it relates to the analysis of this issue is the relevant timing of the two acts.
Counts 3 and 5 arose from Coronado aiding and abetting Greg as he transmitted the two sexually explicit pictures of A.N. to Coronado. The first picture was sent at 1:47 p.m. on November 1, 2011. The second picture was sent 3:08 p.m. the same day. As with counts 2 and 4, there was a substantial amount of time between the two acts.
The rest of the above analysis related to counts 2 and 4 applies equally to Coronado's argument that counts 3 and 5 are multiplicitous. The conduct did occur in the same location, but the shift in the topic of conversation between the acts leading to counts 3 and 5 and Coronado's initial refusal to instruct Greg about what to do to A.N. constituted an intervening event and indicates a fresh impulse motivated count 5. Because they did not arise from the same conduct, counts 3 and 5 were not multiplicitous.
II. Coronado's departure motion
Lastly, Coronado argues that the district court erred when it denied her departure motion. A district court's decision to deny a departure motion is reviewed on an abuse of discretion standard. State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 (2012). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2001), cert. denied 132 S.Ct. 1594 (2012). A decision is arbitrary, fanciful, or unreasonable when no reasonable person would have taken the view of the district court State v. Florentin, 297 Kan. 594, 599, 303 P.3d 263 (2013).
On appeal, Coronado cites several mitigating factors that were brought to the attention of the district court. Specifically, she notes that she had only a single misdemeanor on her criminal history report, her participation in the crime was relatively minor compared to Greg's actions, she was willing to assist the State in its prosecution of Greg, she was willing to seek treatment, and that, even with a departure sentence, she would still be subject to lifetime postrelease supervision and lifetime offender registration. Coronado argues that, in light of these mitigating factors, the district court abused its discretion by denying her departure motion.
The mere existence of mitigating factors does not obligate a district court to grant a departure sentence. In exercising its discretion to grant or deny a request to depart, a district court reviews the mitigating circumstances and weighs those against any aggravating circumstances to determine whether substantial and compelling reasons exist for a departure. State v. Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014). In reviewing the district court's decision, this court must affirm the denial of the departure motion if it finds that even one reasonable person would agree with the district court judge. Florentin, 297 Kan. at 602.
Here, after hearing arguments by both parties, the district court noted that although Coronado's involvement may have been less than that of Greg's, she still was significantly involved. The court also expressed its concern that, given the right circumstances, Coronado may reoffend. Most significantly, the district court expressed its belief that some actions “are just so basically wrong that punishment has to be imposed.” The court found that no substantial and compelling reasons existed for departure and therefore denied the motion. A reasonable person could agree with the district court's decision, and, for that reason, we find no abuse of discretion.
Affirmed.