Opinion
No. 105,597.
2012-12-14
STATE of Kansas, Appellee, v. Jeffrey Allen CROFT, Appellant.
Appeal from Johnson District Court; John P. Bennett, Judge. Scott C. Gyllenborg, of Gyllenborg & Dunn, P.A., of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; John P. Bennett, Judge.
Scott C. Gyllenborg, of Gyllenborg & Dunn, P.A., of Olathe, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
LEBEN, J.
Jeffrey Croft was convicted of electronic solicitation of a child after he engaged in a computer chat with someone he thought was a 15–year–old girl, discussed sexual acts that he would like to do with her, and arranged to meet her to do those acts. On appeal, he raises issues based on the lack of a definition in the electronic-solicitation statute of the words “entice” and “solicit.” None of the claims has merit:
• He claims that the statute is unconstitutionally vague and overbroad based on its lack of definitions. But you can't challenge a vague statute if its terms clearly apply to you, and no reasonable person would fail to understand that Croft's actions were forbidden by this statute. As to overbreadth, or the applicability of the statute to other conduct it is not meant to prohibit, Croft hasn't shown that the statute covers within its terms some conduct that would be protected free speech.
• He claims that the jury instructions were in error because the district court didn't define the terms, but courts need not define terms the ordinary person would understand. In context, the terms were easily understood in Croft's case.
• He claims that the evidence didn't show he enticed anyone since the 15–year–old girl turned out to be an adult sheriff's detective. But a statute forbidding solicitation is violated even if the person solicited takes no action, and this statute prohibited such communication with a person the defendant believes is a child.
That was the case here under the jury's conclusions about the facts. Croft makes no successful claim on appeal, so we must affirm his conviction for electronic solicitation.
Croft also appeals his sentence, but we have no jurisdiction to consider that issue.
Factual Background
We begin with the sort of notice you might find at the beginning of a television program intended for adult audiences: this opinion contains some explicit language, more than we would have preferred to include. But ultimately we must answer questions about whether Croft reasonably understood that he was soliciting or enticing a girl to engage in unlawful sexual acts, which requires that we review the specific words Croft used. We also must determine whether the evidence—basically the words Croft used—sufficiently proved the crime charged. This too requires that we look at the evidence in some detail.
The events that led to Jeffrey Croft's arrest began in December 2006 in an Internet chat room designated by Yahoo as a place for adult romantic chatting. While in that chat room, using a service called Yahoo Messenger, Croft contacted someone with the screen name olathegirl2000 while he was using the screen name jeffinlawrence. The person with the screen name olathegirI2000 identified herself as Mia Cooper and had an online profile that indicated that she was 14. Mia was actually Timothy Shavers, a detective for the Johnson County Sheriff's Office. Since Croft thought he was chatting with Mia—and Croft's beliefs are central to the charge against him—we'll refer to the chat exchanges as having taken place between Croft and Mia.
The two had brief conversations though Yahoo Messenger sporadically in 2007 and 2008. In 2007, Mia told Croft that she was 14, and he told her he was 30.
Croft contacted Mia again through Yahoo Messenger in May 2008. Mia told Croft that she was 15, and he responded that he was 31. Croft told Mia, “[I]'m fine with you being 15.”
Immediately after that comment, Croft moved the conversation to talk of meeting and sexual activity. Detective Shavers testified about the online conversation:
“A. His reply is, ‘i'm fine with you being 15,’ and a smiley face. Then says, ‘when and where should we meet up?’ I said, ‘I don't know what u wanna do with me.’ He says, ‘hehe. you want me to answer that honestly?’ I say, ‘yes. all i want is honesty.’ He says, ‘lol. what if the answer is naughty?’ I say, ‘i just want honesty.’
....
“A.... [Croft responded,] ‘hehe. well, honestly, i would really like to play with you—make out, maybe eat your pussy (i LOVE eating pussy!), but only if you wanted to do those things, i would never try to force you.’ I say, ‘thanks.’ And, ‘r u serious? i've never had that done b4’ is my next line here. And he says, ‘yeah, i'm totally serious. I LOVE doing it, and i bet you would love getting it.’ Love here all caps like in an e-mail.”
The conversation then returned to meeting up. In response to Croft's questions, Mia explained that she lived with her mother, who worked during the day. Croft suggested getting together at lunch time, and Mia agreed. He then brought the conversation back to sexual activities, again as described in Detective Shavers' testimony:
“A.... He says, ‘after that, I'll come over, hang out a bit, play around. If you're in the mood to have your clit licked, i'll go down on you and give you a couple orgasms.’ And [emoticon] smiley face.
....
“A. I said one of these while we were talking about sexual experience, ‘i don't have a lot of experience.’.... Jeff C. says, ‘that's okay, i don't mind teaching you some things.’ And then a winking smiley face, ‘lol well, what would you want to try and [I'll] tell you if [I'm] kewl with it,’ is my response. He replies, ‘well i would start out by just making out with you.’ And I say, ‘ok kewl.’ ‘then i would probably want to play with your tits, maybe suck on them a little.’ Winking smiley face. I say, ‘ok .’ And then he says, ‘maybe touch your pussy, play with your clit some.’ Again with the smiley face. I say, ‘ok kewl.’ .... ‘then i would really like to lick you!’ is his response. I say, ‘thank you.’ And he replies, ‘you would be cool with all that?’.... I say, ‘yeah, thanks.’ He replies, ‘yw.’ You're welcome. I say, ‘kewl.’ He says, ‘if you want to, you could also play with my cock.’ ‘what would you want me 2 do?’ is my question. Then he says, ‘well, you could play with it, maybe suck it if you like doing that.’ My question is, ‘would u want me 2?’ He replies, ‘yes, but only if you were kewl with it!’ “
After a bit more conversation about whether Mia has any past sexual experience, Croft told Mia, “[W]e're going to have FUN tomorrow. [Y]ou're going to feel so good!” Shortly after that, they ended the chat.
The next morning, Croft initiated another chat with Mia to finalize arrangements for the meeting. After Mia gave Croft her address, Croft initiated a final discussion of what they would do when they met:
“A. He says, ‘okay, what do you want to do when i get there?’ My reply is, ‘what u wanna do when u get here u can b honest with me .’ He says, ‘hehe, I don't know, we'll figure it out when i get there.’ I say, ‘i mean [I'm] kewl with what we talked about, it's kewl.’ He says ‘great!’.... I ask, ‘is that what u wanna do?’ He says, ‘yes.’ I say, ‘ok.’ ‘is that what you want to do?’ I say, ‘yea, if you wanna.’ I ask if he wanted to. He says, ‘yes.’ I said, ‘ok, kewl.’ “
The address Mia had given Croft turned out to be an Olathe apartment used by the sheriff's office, and Croft was arrested when he came to the apartment.
Croft was charged with electronic solicitation. Before trial, Croft moved to dismiss the complaint and invalidate the electronic-solicitation statute as unconstitutional, a motion the district court ultimately denied. In September 2010, a jury found Croft guilty of electronic solicitation.
Croft testified at trial that because he was communicating with people he had met in an adult chat room, he thought that Mia was an adult who was engaging in role-playing. He said that, until he was arrested, he never considered the possibility that Mia might be a 15–year–old. As a factual matter, however, the jury was told that it could convict Croft only if the jury concluded beyond a reasonable doubt that he had believed the person he had communicated with was less than 16 years old. Since the jury convicted Croft, it must not have believed his testimony that he thought Mia was a role-playing adult.
On January 21, 2011, the district court granted Croft's motion for a downward-durational-departure sentence and sentenced Croft to 39 months in prison. Croft has appealed to this court.
Analysis
I. Croft Has Not Presented a Valid Challenge to the Constitutionality of the Electronic–Solicitation Statute.
Croft first argues that the electronic-solicitation statute is unconstitutional because it is vague and overbroad. Specifically, Croft argues that the statute is vague because if fails to define “entice” and “solicit” and because the mental state required for a violation to occur is unclear. Croft also argues that the statute is overbroad because it has a chilling effect on free speech. The State defends the statute's constitutionality and also suggests that Croft doesn't have standing to make either the overbreadth or vagueness challenge.
We agree that Croft lacks standing to challenge the statute's constitutionality on vagueness grounds: a person whose conduct is clearly covered by a statute's terms has no standing to attack the statute for vagueness when applied to other circumstances. We have unlimited review on standing questions, so we must decide the standing issue independently, without any required deference to the district court. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011).
With regard to overbreadth, however, free-speech issues are at stake, so Croft is allowed to challenge the statute's constitutionality by raising questions about how the statute might be applied to others. Even so, we find no constitutional problem: the hypothetical situation Croft brings up—sending a sexual message electronically to a group thought to all be adults and accidentally communicating a sexual desire to a child—wouldn't be illegal under this statute. We also review the question of a statute's constitutionality independently, without any required deference to the district court. State v. Rupnick, 280 Kan. 720, 736, 125 P.3d 541 (2005); State v. Black 1999 Lexus ES300, 45 Kan.App.2d 168, 176, 244 P.3d 1274 (2011). a. Croft Lacks Standing to Challenge the Statute for Vagueness .
To figure out whether Croft has standing to challenge the statute on vagueness grounds, we must first review the general standards applied for vagueness. That's because “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” See Ream v. City of Overland Park, 244 Kan. 638, 639, 772 P.2d 758 (1989) (citing Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 [1974] ). Nor may a party ordinarily challenge the constitutionality of a statute by invoking the rights of others. State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006). So if Croft was readily able to understand that his conduct was prohibited by the statute, he has no standing to challenge it based on hypothetical cases involving different conduct by others.
Courts use a two-part test to determine whether a statute is unconstitutionally vague. First, the statute should give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. Dissmeyer v. State, 292 Kan. 37, 39, 249 P.3d 444 (2011). Second, the statute should provide explicit standards for its enforcement so as to prevent arbitrary and discriminatory enforcement. Rupnick, 280 Kan. at 737;Black 1999 Lexus, 45 Kan.App.2d at 176. A vague statute impermissibly delegates basic policy matters to police officers, judges, and juries for resolution on a case-by-case basis. Rupnick, 280 Kan. at 737. The test for vagueness is often described as a common-sense determination about fundamental fairness. State v. Richardson, 289 Kan. 118, 124, 209 P.3d 696 (2009).
With an understanding of what's required for a statute not to be impermissibly vague, let's turn next to the statutes defining the offense for which Croft was convicted. At the time of Croft's offense, electronic solicitation had a statutory definition focused on enticing or soliciting a person believed to be a child to participate in an unlawful sexual act:
“(a) Electronic solicitation is, by means of communication conducted through the telephone, internet, or by other electronic means:
(1) Enticing or soliciting a person whom the offender believes to be a child under the age of 16 to commit or submit to an unlawful sexual act; or
(2) enticing or soliciting a person whom the offender believes to be a child under the age of 14 to commit or submit to an unlawful sexual act;
“(b) Electronic solicitation as described in subsection (a)(1) is a severity level 3 person felony. Electronic solicitation as described in subsection (a)(2) is a severity level 1 person felony.
“(c) For the purposes of this section, ‘communication conducted through the internet or by other electronic means' includes but is not limited to e-mail, chatroom chats and text messaging.” K.S.A. 21–3523.
The complaint filed against Croft charged that he had used electronic communications to entice or solicit a person Croft believed was under the age of 16 to commit or submit to an unlawful act, specifically criminal sodomy. Sodomy was defined at that time to include any oral contact with either male or female genitalia, K.S.A. 21–3501(2), and was criminal when done with a child under 16 years old. K.S.A. 21–3505(a)(2).
Croft's argues that because the statute doesn't define “enticing” or “soliciting,” he—and others—wouldn't know when their conduct is prohibited by this statute. Let's consider this argument by contrasting what's meant by entice or solicit with regard to Croft's conduct and the criminal statutes we've just reviewed.
Solicit is defined in the Kansas Criminal Code as “to command, authorize, urge, incite, request, or advise another to commit a crime.” K.S.A. 21–3110(21). Croft cites the definition of entice from the Merriam–Webster Online Dictionary: “[T]o attract artfully or adroitly or by arousing hope or desire.” A similar definition is found in the American Heritage Dictionary: “To attract (someone), usually to do something, by arousing hope, interest, or desire.” American Heritage Dictionary 595 (5th ed.2011).
The jury concluded beyond a reasonable doubt that Croft had solicited or enticed the person he thought was a 15–year–old girl to engage in oral sexual activities with him. Based on the specifics of Croft's chat with Mia, we think any person of ordinary intelligence would have understood that this conduct was prohibited. See, e.g., United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir.2003); State v. Gallegos, 220 P.3d 136, 142 (Utah 2009); State v. Osmundson, 546 N.W.2d 907, 910 (Iowa 1996). Croft described several oral sexual acts that he wanted to participate in with a 15–year–old. He said that he would like or “LOVE” to do them. After discussing specific sexual acts he wanted to do with her, Croft told the person he thought was a 15–year–old girl, “[W]e're going to have FUN tomorrow. [Y]ou're going to feel so good!” And he confirmed again the next morning, before going to meet her, that he wanted to do the acts they'd talked about the day before.
Simply, Croft solicited or enticed Mia to engage in unlawful sexual acts by saying that he wanted to do these things, describing them in detail, and saying they would make the girl “feel so good!”
Because any person of ordinary intelligence in Croft's position would have understood that he was violating the statute, Croft can't challenge the constitutionality of this statute on vagueness grounds based on hypothetical situations in which he alleges the statute's reach would be uncertain. Our court rejected a similar constitutional challenge to the electronic-solicitation statute based on standing earlier this year in State v. Smith, No. 104,598, 2012 WL 687067, at *l–3 (Kan.App.2012) (unpublished opinion). In Smith, the defendant listed legal but vulgar phrases that he argued could lead to a conviction under the language of the statute. 2012 WL 687067, at *2. But Smith himself had admitted that he had told a person he believed to be a 14–year–old girl that he wanted to perform oral sex on her. 2012 WL 687067, at * 1. That evidence alone put Smith's conduct within the scope of conduct prohibited by the statute. 2012 WL 687067, at *3. Our court noted that Smith didn't contend that his actions were outside the scope of the statute and that his vagueness argument seemed to invoke the rights of others. 2012 WL 687067, at *2–3. Therefore, we held that Smith had “no standing to challenge the statute as vague for not giving him fair warning of what it prohibits.” 2012 WL 687067, at *3.
Here, Croft makes no credible argument that he didn't understand the statute or had to guess at its meaning as applied to his own conduct. He only argues that the terms “entice” and “solicit” weren't defined and are subject to a wide variety of interpretations.
But Croft's conversation with Mia was within the realm of activity that the electronic-solicitation statute quite clearly seeks to prohibit. See Smith, 2012 WL 687067, at *3. Croft's vagueness argument that “entice” and “solicit” are subject to a wide variety of interpretations merely invokes the rights of others—no such wide variety of possible interpretations applies in Croft's case. Therefore, Croft has no standing to challenge the electronic-solicitation statute as vague for not giving him fair warning of what it prohibits. See Smith, 2012 WL 687067, at *3.
Before completing our discussion of the standing problem with Croft's vagueness challenge, we should note that the State didn't explicitly state in its appellate brief that Croft lacked standing to make this claim. (The State did invoke standing by name regarding overbreadth.) But even without using the term “standing,” the State argued standing on the vagueness issue, saying that “[a] defendant for whom a statute is applied constitutionally cannot argue that the law can be hypothetically applied unconstitutionally.” And the State specifically cited our decision in Smith on the vagueness issue. Further, even if the state had not mentioned standing at all, Kansas courts treat standing as a matter of subject-matter jurisdiction that may be raised by the court on its own motion. State v. Ernesti, 291 Kan. 54, 60, 239 P.3d 40 (2010).
We conclude that Croft does not have standing to challenge the constitutionality of the statute on vagueness grounds.
b. Croft Has Not Demonstrated That the Statute Is Unconstitutionally Overbroad.
We must start our review of Croft's overbreadth argument by determining whether we have standing to consider it. Croft's basis for alleging that the electronic-solicitation statute is unconstitutionally overbroad is the argument that the statute could outlaw an adult's sexual message to an entire chat room if an underage member of the chat group happened to be enticed by the message. It should be noted that this isn't what Croft did—his sexual messages weren't sent to an entire chat room, they were only sent directly to the person he believed was Mia Cooper.
As we've already discussed, a defendant ordinarily doesn't have standing to argue that a statute would be unconstitutional if applied to third parties in hypothetical situations. State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012). But there's one more wrinkle to the standing issue regarding overbreadth: Croft contends that because the statute is overbroad, it would prohibit not only criminal conduct but also free speech regarding lawful conduct. The traditional rules of standing are somewhat different in the First Amendment area, where there is no absolute requirement that a person attacking a statute for being overbroad be directly affected. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
This exception allows a litigant to challenge a statute because it may cause others not before the court to refrain from constitutionally protected speech even if his own rights aren't violated. 413 U.S. at 612. Because Croft's allegations touch on First Amendment rights, his overbreadth argument is properly before this court. See State v. Williams, 46 Kan.App.2d 36, 41–42, 257 P.3d 849 (2011) (“However, ‘[a] special standing rule permits a party to raise overbreadth when a statute purports to regulate the First Amendment rights of others.’ ”) (quoting State v. Neighbors, 21 Kan.App.2d 824, 829, 908 P.2d 649 [1995] ),rev. granted ––– Kan. –––– (March 9, 2012); 16 C.J.S. Constitutional Law § 117.
An overbroad criminal statute is one that “makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions.” Dissmeyer, 292 Kan. at 43. A successful overbreadth challenge must prove that “ ‘(1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications.’ “ Dissmeyer, 292 Kan. at 40–41 (quoting Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 [2005] ). Courts use a common-sense approach when determining what conduct a statute potentially could prohibit. State v. Wilson, 267 Kan. 550, 557, 987 P.2d 1060 (1999) (noting that “courts will not give strained meanings to legislative language through a process of imaginative hypothesizing; a common-sense interpretation of the statute is the guiding principle”).
Croft's lone hypothetical scenario involves an adult sending a sexual message to an entire chat room and somehow unknowingly enticing an underage person who happens to be in the chat room. The conclusion that this conduct would violate the electronic-solicitation statute is based on a faulty assumption—that the electronic-solicitation statute doesn't require the specific intent to solicit or entice a child. The statute makes it illegal to entice or solicit “a person whom the offender believes to be a child,” K.S.A. 21–3523(a)(1), (2). Solicitation statutes are generally considered specific-intent statutes, State v. Brown, 291 Kan. 646, Syl. ¶ 5, 244 P.3d 267 (2011), and our court has similarly concluded that the electronic-solicitation statute is a specific-intent statute. Smith, 2012 WL 687067, at *4–6. Consistent with these cases and the statutory language, a person must intend to communicate with a child (“a person whom the offender believes to be a child”) to violate the statute.
Accordingly, Croft's argument fails the second part of the overbreadth test: Because the statute requires the specific intent to entice or solicit a child to engage in an unlawful sexual act, Croft has pointed to no unconstitutional application of the statute that we need to guard against. There simply is no reading of this statute that would criminalize sex-related speech between adults. In addition, Croft's argument fails the first part of the overbreadth test too: Protecting sexual talk between adults isn't what the statute seeks to do. Rather, it protects minors from being lured into sexual activity with adults through Internet chat rooms or other electronic communication. See Smith, 2012 WL 687067, at *3. Croft has not shown that the electronic-solicitation statute is unconstitutionally overbroad.
II. There Was Sufficient Evidence to Show That Croft Was Guilty of Enticing.
Croft's next argument is that there wasn't enough evidence for a reasonable juror to conclude that he “enticed” a nonexistent child to participate in an unlawful sexual act. Croft argues that neither the fictional Mia Cooper nor the detective was actually enticed by having hope or desire aroused. The State contends there was sufficient evidence that showed that Croft lured someone he believed to be 15 by asking her to meet for the purpose of performing unlawful sexual acts on each other.
When the sufficiency of evidence is challenged after a conviction, we must consider the evidence presented in a light most favorable to the State (since the jury found in the State's favor), along with any reasonable inferences to be drawn from the facts, to determine whether a reasonable fact-finder could conclude beyond a reasonable doubt that the defendant committed the charged offense. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). A criminal defendant has a statutory right to a unanimous jury verdict. But unanimity isn't required as to the means by which the crime was committed as long as substantial evidence supports each alternative means. State v. Rojas–Marceleno, 295 Kan. ––––, Syl. ¶ 13, 285 P.3d 361 (2012). In an alternative-means case, the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt. Reversal is required only if the State fails to present sufficient evidence to support both means when the jury is instructed on alternate means of committing a single crime. 285 P.3d 361, Syl. ¶ 14.
For the purpose of discussing this issue, we'll assume that this presented a true alternative-means situation in which the State had to have at least some evidence to support both solicitation and enticement. Croft argues that there was no evidence of enticement; he doesn't suggest a lack of evidence of solicitation. So we look to see whether the evidence supported the conclusion that Croft enticed Mia in violation of the statute.
Croft's argument centers around the assertion that the definition of entice, which he again cites from the Merriam–Webster Online Dictionary, is “to attract artfully or adroitly or by arousing hope or desire: tempt.” Croft argues that a nonexistent child is incapable of being enticed and that the detective never testified that he was enticed.
But child-solicitation statutes—whether face-to-face or electronic—that use the “enticing or soliciting” language focus on the offender's actions and don't require any proof of the child's actions, let alone proof of the child's internal hopes or desires. See Rojas–Marceleno, 285 P.3d at 377;Brown, 291 Kan. at 655. As the Utah Supreme Court said in a case arising under a statute similar to ours, “[T]he crime is committed as soon as the defendant ‘solicits' or ‘entices' a minor to engage in unlawful sexual activity. Nothing more is required. The crime is committed at the keyboard.” Gallegos, 220 P.3d at 142. Here, there was sufficient evidence in the record that Croft enticed a person he believed was a 15–year–old girl into meeting for the purpose of performing unlawful sexual acts on each other.
III. The Jury Instructions Weren't Clearly Erroneous.
Croft's also contends that the jury instructions were clearly erroneous because they failed to define “entice” and “solicit.” Croft asserts that there is a real possibility that the jury could have found him not guilty if the terms had been defined. The State contends that there is no real possibility the jury would have rendered a different verdict.
Croft didn't object to the jury instructions at trial, so we may reverse only for clear error: Under K.S.A.2011 Supp. 22–3414(3), no party may claim that failing to give a jury instruction was error unless the party objected at trial or unless the failure to give an instruction is clearly erroneous. To determine whether it was clearly erroneous to fail to give an instruction, we first must determine whether the failure was erroneous at all. State v. Williams, 295 Kan. ––––, Syl. ¶ 4, 286 P.3d 195 (2012).
If we determine there was an error in the instructions, we must then determine whether reversal is required. The test for that is “whether [the reviewing court] is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. ––––, Syl. ¶ 5, 286 P.3d 195. The defendant has the burden to show error. 295 Kan, ––––, Syl. ¶ 5, 286 P.3d 195.
Croft has not met the burden to show that the failure to define “entice” and “solicit” in the jury instructions was an error. Croft's argument consists of two sentences: “Without defining ‘entice,’ the jury failed to understand that [‘entice’ and ‘solicit’] are not synonymous and have significant and different meanings. Moreover, there is a real possibility the jury could have rendered a different verdict if this error [had] not occurred.” Croft's proposed jury instructions didn't include definitions for “entice” and “solicit,” he didn't object to the instructions that were given, and he didn't argue that the terms were different in his closing argument to the jury.
A trial court doesn't need to define every word or phrase in the jury instructions. State v. Norris, 226 Kan. 90, 95, 595 P.2d 1110 (1979); State v. Cummings, 45 Kan.App.2d 15, 24, 243 P.3d 697 (2010). Additional terms should be defined only when the instructions as a whole would mislead the jurors or cause them to speculate. Norris, 226 Kan. at 95. A term that is widely used and readily comprehended by people of common intelligence doesn't require a defining instruction. State v. Roberts–Reid, 238 Kan. 788, 789, 714 P.2d 971 (1986).
Here, Croft hasn't met his burden of showing that “entice” and “solicit” aren't widely used terms readily comprehended by people of common understanding. Other courts have found them to have a commonly understood meaning. E.g., Gallegos, 220 P.3d at 141–42;People v. Willis, No. 269836, 2007 WL 4248527, at *3 (Mich.App.2007) (unpublished opinion). Further, even if it had been an error not to define these terms, Croft hasn't met his burden of showing that there is a real possibility the jury would have found him not guilty had the terms had been defined. Croft has not shown an instruction error.
IV. We Have No Jurisdiction To Consider Croft's Challenge of His Sentence.
Croft's last argument is that the presumptive sentence of 55 to 247 months in prison for electronic solicitation is cruel and unusual punishment. Croft argues that electronic solicitation of a child is punished more severely than face-to-face solicitation of a child. But the State contends that Croft is improperly seeking an advisory opinion since he didn't receive the presumptive sentence. Instead, Croft received a downward-durational-departure sentence of 39 months in prison.
We have a duty to question our own jurisdiction on appeal. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010). We have concluded that we do not have jurisdiction to consider an appeal regarding Croft's sentence, which is less than the presumptive sentence for his offense under Kansas sentencing guidelines.
At the time Croft filed his appeal, K.S.A. 21–4721(a) provided that a departure sentence could be appealed by either the State or by the defendant. But K.S.A. 21–4721(c)(1) separately provided that the appellate courts “shall not review ... [a]ny sentence that is within the presumptive sentence for the crime.” (Those provisions have since been recodified as K.S.A.2011 Supp. 21–6820(a) and 21–6820(c)(1), effective July 1, 2011.) From a jurisdiction standpoint, if Croft's 39–month sentence is considered to be “within the presumptive sentence,” then we have no jurisdiction to consider an appeal of his sentence. And that's the case even if, as here, Croft purports to present a constitutional issue on the sentencing appeal. See State v. Huerta, 291 Kan. 831, 838–41, 247 P.3d 1043 (2011); State v. Dillon, 45 Kan.App.2d 1075, 1075–76, 253 P.3d 383 (2011).
Our court addressed this issue in 1995 in State v. Crawford, 21 Kan.App.2d 169, 897 P.2d 1041 (1995). In Crawford, the defendant had received a durational-departure sentence of 34 months, while the midrange sentence under the guidelines would have been 57 months. The defendant had also sought a dispositional-departure sentence to probation, which was denied. Our court held that it had no jurisdiction to consider Crawford's appeal that he should have received a sentence even shorter than 34 months because he had already received a sentence within the presumptive sentence. 21 Kan.App.2d at 170–71. Thus, the court held that we had jurisdiction to hear an appeal of a departure sentence only when the sentencing court had “departed adversely to the appealing party.” 21 Kan.App.2d at 170. The Crawford opinion has been followed in many later cases, including an unpublished opinion in 2011 from the Kansas Supreme Court, State v. Foy, No. 103,883, 2011 WL 432378, at *1 (Kan.2011) (unpublished opinion), and a case earlier this year in which our court concluded that it had no jurisdiction over a sentencing appeal in an electronic-solicitation conviction when the defendant had already received a durational-departure sentence in his favor. State v. Manzur, No. 105,619, 2012 WL 924869, at *1 (Kan.App.2012) (unpublished opinion).
The Crawford opinion did not explicitly tie its ruling to the specific words of the statute, which provides that the appellate courts “shall not review ... [a]ny sentence that is within the presumptive sentence for the crime.” K.S.A. 21–4721(c)(1). But its holding is a reasonable interpretation of the statutory language. The guidelines provided for a sentence for Croft of from 55 to 61 months, and the district court granted a departure to 34 months. That 34–month sentence is not within the guideline range of 55 to 61 months, but it is within the guidelines sentence, which may be up to 61 months. Among the definitions of “within” are “[n]ot exceeding the limits or extent of in ... time” and “[n]ot exceeding the fixed limits of; not beyond.” American Heritage Dictionary 1990 (5th ed.2011). In the context of this statute, as Crawford recognizes, it would make no sense to allow an appeal of a departure sentence in the defendant's favor when the defendant would have had no right to appeal a sentence within the guidelines range of 55 to 61 months. It makes sense, in context and given the words of the statute, to view a sentence less than the guideline range as one “within the presumptive sentence for the crime.” That reading is consistent with Crawford and with the statutory language.
Based on Crawford and the statutory language, we have no jurisdiction to consider Croft's appeal of his sentence. Croft received a sentence within the presumptive sentence; we have no jurisdiction to consider the sentencing appeal.
The district court's judgment is affirmed. Croft's appeal of his sentence is dismissed for lack of jurisdiction.