Opinion
109,871.
12-05-2014
STATE of Kansas, Appellee, v. Donald L. DAVIS, Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
MEMORANDUM OPINION
POWELL, J.
Donald Davis appeals from his convictions of three counts of statutory rape and three counts of aggravated human trafficking. Davis claims (1) the district court improperly instructed the jury on an essential element by stating K.P., the victim, was 13 years old; (2) the district court admitted hearsay testimony regarding K.P .'s age; (3) the district court erred by excluding certain evidence; and (4) the aggravated human trafficking statute is unconstitutionally overbroad and vague. Because we find no reversible error, we affirm Davis' convictions.
Facts
K.P. met a girl nicknamed Mookie while they were both staying at the Wichita Children's Home. After leaving the children's home in December 2010, instead of going home with her stepmother, K.P. ran away to live with Mookie. She spent several weeks at Mookie's house, eventually owing Mookie money stemming from prostitution. Because K.P. needed money, Mookie provided her with Davis' phone number, and K.P. called Davis to arrange for him to pick her up. About a week before Christmas Day, Davis picked up K.P. in his Escalade at a local gas station. K.P. testified she was 13 years old in December 2010 but admitted she lied to Davis about her age. Davis was in his 40s.
K.P. testified that on the day Davis picked her up, he took her to an apartment where they engaged in sexual intercourse. K.P. stated Davis wanted to “try out the merchandise.” K.P. and Mookie then stayed with Davis at his house for several days. Over the course of the next week, K.P. claimed she had sex with Davis two other times at his house. Also during that week, Davis set up three appointments for K.P. with a man named Mike. Each time, Davis drove K.P. to Mike's home where she had sex with him. Mike was in his 40s or 50s.
K.P. explained that Mookie was in Davis' Escalade the first time he took her to Mike's house. Davis told her what to charge Mike, and K.P. collected the payment and gave the money to Davis when he picked her up from Mike's house. K.P. testified that after each time she had sex with Mike, she gave the money to Davis, who then returned half of the money to her. K.P. then gave her share of the money to Mookie.
At some point, K.P. told Davis she did not want to “be a hoe” anymore. K.P. was upset and crying, so Davis took her to his home where they watched television. K.P. testified they went to Davis' house so Mookie would not know that K.P. was not at a scheduled prostitution engagement. K.P. then called her friend Kelli to ask if she could stay at her house. Kelli's mother talked to Davis who, pretending to be K.P.'s uncle, gave K.P. permission to be at Kelli's house. Davis took K.P. to Kelli's house.
At Kelli's house, K.P. told Kelli she had been working as an escort for a man named “Bay-bay.” It is unclear exactly how long K .P. stayed at Kelli's house, but Kelli's mother kicked K.P. out of their house around 4:30 a.m. on Christmas Eve. As a result, K.P. called Davis to pick her up. Later that day, Davis took K.P. back to Kelli's house to get some clothes she had left. When K.P. returned, Kelli took down the license plate number of the Escalade, which her mother then gave to the police. The police traced the license plate number to Davis' house, where they found K.P. around 10:30 p.m. An officer transported K.P. to the Exploited and Missing Children Unit (EMCU). Police searched the Escalade and found a packaged condom and tennis shoes in a shopping bag from the store Journey. K.P. testified the shoes in the bag were hers.
Davis agreed to voluntarily go to EMCU. Officer Michael Nagy interviewed Davis, who waived his rights and agreed to talk with Nagy. Davis admitted he tried to have sex with K.P. once but claimed he was unable to penetrate her vagina. He also admitted taking K.P. to Mike's house three times and telling her what to charge. He said he then split Mike's payment 50/50 with K.P.
Medical examiners took DNA swabs from K.P. and determined Davis was excluded as a contributor to the DNA found in her vagina but confirmed the DNA was consistent with Mike's DNA.
A jury convicted Davis of three counts of aggravated human trafficking and three counts of rape. The district court sentenced Davis to a controlling hard 25 years in prison.
Davis timely appeals.
Did the District Court Improperly Instruct the Jury That an Essential Element of the Crimes Was Fulfilled?
Davis' first claim of error is that the district court improperly instructed the jury on an essential element of aggravated human trafficking by inserting the language “to wit: KNP, age 13”, which Davis contends affirmatively directed the jury on an element of the crime in violation of his right to a jury trial under the Sixth Amendment to the United States Constitution and § 5 of the Kansas Constitution Bill of Rights. The State argues Davis is mischaracterizing the instructions, as the language “to wit: KNP, age 13” did not instruct the jury that K.P. was 13 years old but merely reflected that the State alleged K.P. was 13 years old.
The jury instructions for the three counts of aggravated human trafficking each stated:
“To establish this charge, each of the following claims must be proved:
“1. That the defendant transported a person under 18 years of age, to wit: K.N.P., age 13, knowing that K.N.P., with or without force, threat or coercion would be used to engage in sexual gratification of another....” (Emphasis added.)
Davis' requested instruction for aggravated human trafficking did not include the language “to wit: K.N.P., age 13.” At the instruction conference, Davis' counsel objected to the court's final jury instructions anywhere the court's instructions differed from Davis' proposed instructions. Davis' counsel explained, “[We] ask that our proposed instructions be given, which I won't belabor the record. Our authority for each of those instructions is at the bottom. And I would simply rest with that, your Honor.” The district court overruled the objections.
The standard under which we should review Davis' contention of error is in dispute because there is a question as to whether Davis' trial counsel properly preserved the issue below. In order to preserve a challenge to a particular instruction on appeal, a party is required to object before the jury to the giving or the failure to give a particular jury instruction, “stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction ... is clearly erroneous.” K.S.A. 22–3414(3). Davis argues our standard of review is unlimited because counsel properly objected. If so, our duty then would be to determine as a matter of law whether the instruction fairly and accurately stated the applicable law. See State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). If the instruction failed in this regard, then the State would have the burden to show that the error did not affect the outcome. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
However, the State claims Davis failed to properly object before the trial court because defense counsel's objection was too broad, the objection did not identify the specific instructions to which he was objecting, and defense counsel failed to present specific arguments as to particular portions of an instruction.
“When a party fails to object to or request a jury instruction at trial, review on appeal is limited to determining whether the instruction was clearly erroneous. K.S.A. 22–3414(3) ; see State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). The application of this standard consists of two parts. ‘First, “the reviewing court must ... 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.’ “ 296 Kan. at 1121 (quoting State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 [2012] ).
“ ‘If error is found, then the second part is considered, i.e ., the clearly erroneous analysis moves to a reversibility inquiry and “the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ “ 296 Kan. at 1121 (quoting Williams, 295 Kan. 506, Syl. ¶ 5 ).” State v. Brown, 300 Kan. ––––, ––––, 331 P.3d 781, 792 (2014).
The State relies on State v. Breedlove, 295 Kan. 481, 286 P.3d 1123 (2012), for its contention that Davis' trial counsel did not properly object below because the objection lacked sufficient specificity. In Breedlove, defense counsel lodged a vague objection to an instruction by saying, “Well, I consistently ask the Court to not include the Allen instruction which is in instruction 12.” 295 Kan. at 497. The Breedlove court found defense counsel's objection was not specific enough and applied the clearly erroneous standard of review. 295 Kan. at 497.
In this case, defense counsel's objection was even less specific than in Breedlove; counsel merely objected to any instruction which differed from defense counsel's proposed instructions. Accordingly, we find Davis' trial counsel failed to properly object below, and we therefore apply the clearly erroneous standard of review.
“The Sixth Amendment to the United States Constitution provides: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....’ This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995] )....
“An instruction that includes a factual determination made by the trial court ‘invades the province of the jury as the factfinder’ and violates the defendant's rights to have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772.” State v. Stieben, 292 Kan. 533, 537, 256 P.3d 796 (2011).
To support his contention that the instruction was improper, Davis relies on State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003), where the defendant shot a man and was convicted of aggravated battery. At trial, the treating physician testified the bullet missed bone, major arteries, veins, and nerves. He testified “ ‘that it was a through and through injury.’ “ 276 Kan. at 760. A police officer and the victim testified that the bullet entered the victim's upper right thigh and exited through his right buttock. The jury received an instruction laying out the elements of level 4 (intentional) aggravated battery and the lesser included offense of level 5 (reckless) aggravated battery. Both crimes required the jury to find the defendant “ ‘caused great bodily harm to another person, to-wit: [the victim].” ‘ 276 Kan. at 761. A subsequent jury instruction specifically defined the term “great bodily harm” to mean a “ ‘through and through bullet wound.’ “ 276 Kan. at 762.
The Brice court addressed “[w]hether the through and through bullet wound instruction deprived Brice of his rights under the Fifth and Sixth Amendments [to the United States Constitution] to have a jury determine guilt beyond a reasonable doubt on every element of a charged offense.” 276 Kan. at 768. Uncontroverted evidence showed Brice inflicted a through and through bullet wound ; however, the district court's definitional instruction left no room for the jury to decide on its own whether that element of the charged offense was proved beyond a reasonable doubt. This violation of Brice's Fifth and Sixth Amendment rights required the court to reverse and remand the case for a new trial. 276 Kan. at 775.
Davis argues the language stating “K.N.P, age 13” also left no room for the jury to decide whether the State had proved beyond a reasonable doubt K.P. was, in fact, 13 years old. The State argues the language at issue was appropriate because it was stated in the complaint, and a jury instruction cannot be broader than the crime charged in the complaint. See State v. Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009).
First, we must look at whether the instructions were legally appropriate. Plummer, 295 Kan. at 161. The district court claimed the aggravated human trafficking instructions used were directly out of PIK Crim.3d 56.44 (2010 Supp), but the PIK instruction does not provide a space to state the exact age of the victim. It states “[t]hat the defendant by any means (recruited)(harbored)(transported)(provided)(obtained) a person under 18 years of age....” PIK Crim.3d 56.44. The PIK Notes on Use suggest that if the State is charging aggravated human trafficking as an off-grid felony, then the jury instructions should ask whether the jury unanimously finds “the defendant was 18 years of age or older and the victim was under the age of 14 years at the time the offense was committed.” PIK Crim.3d 56.44. In this case, the State charged the aggravated human trafficking offenses as severity level 1, on-grid felonies, so the additional question about the defendant's and victim's ages was not required. Moreover, we note the State also charged the rape offenses as off-grid felonies, where the jury would have had to find the victim was under the age of 14 when the act of sexual intercourse occurred. The rape jury instructions did not list K.P.'s age as 13 as did the aggravated human trafficking instructions.
We hold the jury instructions for the three counts of aggravated human trafficking were not legally appropriate because the district court added the language stating K.P.'s age into the PIK instruction, which essentially instructed the jury that an essential element—whether the victim was under the age of 18—was satisfied.
Because the instructions were legally inappropriate, we move on to the second part of the test to assess whether we are firmly convinced the jury would have reached a different verdict had the instruction error not occurred. Davis argues the error implicates his right to a fair trial by a jury under both the Sixth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, and § 5 of the Kansas Constitution Bill of Rights. To the extent Davis' state and federal constitutional rights are implicated, such violations do not require reversal if the error was harmless. See State v. Flynn, 299 Kan. 1052, 1069, 329 P.3d 429 (2014).
As discussed in more detail in the next issue, we believe the State produced sufficient evidence to support a finding that K.P. was 13 years old. The jury observed K.P. while she testified; K.P. stated her date of birth; other witnesses testified about K.P.'s age; and circumstantial evidence from K.P.'s friend Kelli demonstrated K.P. was 13 years old in December 2010 or, at the very least, under 18 years old.
The aggravated human trafficking instructions required the jury to find K.P. was under the age of 18, but the rape instructions required the jury to find K.P. was under 14 years old. The aggravated human trafficking jury instructions' statement that K.P. was age 13 could have influenced the jury's decision in finding K.P. was under 14 years old for the purposes of the rape offenses; nevertheless, the evidence of K.P.'s age at the time of the offenses was clear and uncontested at trial. We are not firmly convinced the jury would have reached a different verdict had the aggravated human trafficking instructions not stated K.P.'s age as 13.
Did the District Court Err by Admitting Hearsay Testimony Regarding K.P.'s Age?
Davis next claims the district court improperly admitted hearsay testimony of K.P.'s age by allowing K.P. to state she was 13 years old in December 2010. At trial, the prosecutor asked K.P. how old she was at the time of the alleged offense. Defense counsel objected that the question elicited hearsay testimony. The district court overruled the objection, and K.P. answered that she was 13. The prosecutor then asked K.P. her date of birth. She gave her exact date of birth. Defense counsel did not object to K.P. stating her date of birth. Parenthetically, we also note that the State obtained a pretrial ruling to allow the admission of K.P.'s birth certificate but never introduced it at trial.
An appellate court exercises de novo review of a challenge to the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence. State v. Holman, 295 Kan. 116, Syl. ¶ 6, 284 P.3d 251 (2012). The erroneous admission of evidence is subject to review for harmless error under K.S.A.2010 Supp. 60–261. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013).
As an initial matter, we must first determine whether this issue has been properly preserved for appeal. It is a well-established rule of law that a party objecting to the admission of evidence is required to lodge a timely and specific objection at trial in order to preserve the issue for appeal. K.S.A. 60–404 ; State v. Kelley, 42 Kan.App.2d 782, 791, 217 P.3d 56 (2009). Significantly, we note that defense counsel failed to object to the second question regarding the victim's date of birth. At oral argument, the appellate defender argued the objection had been properly preserved because trial counsel had objected to the first question regarding the victim's age. However, counsel fails to provide us any cases supporting this proposition, and we are unpersuaded. See McKissick v. Frye, 255 Kan. 566, 582, 876 P.2d 1371 (1994) (“Kansas does not follow the rule that if an earlier objection is overruled, repeated objections are not required....”).
Even assuming the issue had been properly preserved for appellate review, we question whether testimony regarding one's own age constitutes hearsay. K.S.A. 60–460 provides that “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence.” (Emphasis added.) Here, no out of court “statement” was offered into evidence. Instead, K.P. was merely asked how old she was at the time of the alleged crime, and she answered the question based on her personal knowledge. She did not repeat an assertion made by another person.
If simply stating one's own age in court constitutes hearsay, the same could be true of one's name as well as nearly any other information learned in school or elsewhere throughout a person's life. Moreover, even if we were to agree that testimony as to one's own age is hearsay, the testimony would still be admissible under an exception to the hearsay rule. See K.S.A.2010 Supp. 60–460(x) ; State v. Vandermeer, 843 N.W.2d 686, 689–90 (N.D.2014) (hearsay testimony as to one's own age admissible under exception for reputation concerning personal or family history). Accordingly, if there was any error, it was harmless.
Factors we are to consider in reviewing the erroneous exclusion of evidence for harmless error include “the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.” State v. Ultreras, 296 Kan. 828, Syl. ¶ 11, 295 P.3d 1020 (2013).
K.P.'s assertion that she was 13 years old was cumulative because she also testified to her exact date of birth without objection from defense counsel. Defense counsel was allowed to fully cross-examine K.P. and elicited from K.P. that she lied to Davis about her age; however, defense counsel never asked questions aimed at contesting her testimony stating her date of birth. Additionally, other witnesses testified about K.P.'s age. The officer who transported K.P. to the ECMU testified K.P. was 13 at the time Kelli's mother kicked K.P. out of their house. Kelli did not directly testify about K.P.'s age but did provide circumstantial evidence to support a finding that K.P. was at least under 18 years old in December 2010. Kelli testified she was 14 years old at the time of the trial and that she knew K.P. from school. The trial was held almost 2 years after the charged offenses. The jury also had the opportunity to view K.P. while she testified, which provided circumstantial evidence to support the conclusion that if she was under 18 years of age at the trial, then she was under 18 years of age 2 years prior.
Therefore, even if the district court erred by allowing K.P. to testify she was 13 at the time of the offenses, the error was harmless.
Did the District Court Err by Excluding Evidence?
Davis argues the district court improperly excluded evidence, hindering Davis' right to present his theory of defense and impeach witnesses. He claims the district court erred by restricting evidence regarding (1) details about K.P.'s prior prostitution-related activities involving Mookie, (2) whether K.P. told Davis she was 17 years old, and (3) whether K.P. had a sexual relationship with Kelli's brother which triggered Kelli's mother kicking K.P. out of their home.
Multiple inquiries are involved when the admission or exclusion of evidence is challenged on appeal. The principal inquiry is for the court to determine whether the evidence is relevant. Generally speaking, all relevant evidence is admissible. K.S.A. 60–407(f). K.S .A. 60–401(b) defines “ ‘relevant evidence’ “ as “evidence having any tendency in reason to prove any material fact.” This definition encompasses two elements: a materiality element and a probative element. The standard of review for each element is different. A fact is material if it “has a legitimate and effective bearing on the decision of the case and is in dispute.” State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012). Review for materiality is de novo. Ultreras, 296 Kan. at 857. “Evidence is probative if it has any tendency to prove any material fact.” Stafford, 296 Kan. at 43. An appellate court reviews the district court's assessment of the probative value of evidence under an abuse of discretion standard. Ultreras, 296 Kan. at 857.
During the trial, Davis proffered the following evidence. Mookie's pimp was someone named “DJ.” Mookie asked K.P. to go with her on a trick. Mookie and K.P. went out with two men and had sex with them but were so intoxicated they forgot to collect the money owed by the two men. They owed DJ over $200 so he threatened to beat Mookie and K.P. if they did not come up with the money. In order to obtain the needed money, K.P., with Mookie's help, contacted Davis. K.P. lied to Davis about her age. Davis also proffered that while K.P. was staying at Kelli's house she had some kind of sexual relationship with Kelli's brother.
The district court ruled Davis would only be allowed to ask whether K.P. owed Mookie a debt stemming from an act of prostitution and was not permitted to elicit the details behind the debt. Davis was also permitted to ask whether K.P. lied to Davis about her age but not whether she told him she was 17 years old. The court also ruled details about K.P.'s relationship with Kelli's brother or reasons behind why Kelli's mother kicked K.P. out of their house to be irrelevant to the charged crimes against Davis.
On appeal, Davis claims the details surrounding K.P.'s debt to Mookie were critical in order to allow the jury to determine K.P.'s relationship with Mookie. The State argues Davis was allowed to, and in fact did, ask K.P. whether she owed Mookie money in connection to prior acts of prostitution; therefore, Davis was able to elicit evidence about K.P.'s relationship with Mookie.
The aggravated human trafficking charges required the jury to find Davis transported a person under 18 years of age, knowing the person would be used for the sexual gratification of another. See K.S.A.2010 Supp. 21–3447(a)(2). It is not relevant whether Mookie or Davis was K.P.'s “pimp” before, during, or after the times of the offenses. It is only relevant whether Davis knew he was driving K.P. to Mike's house in order for K.P. to have sex with Mike. The details of why K.P. owed Mookie a debt for events occurring before Davis transported her to Mike's house were immaterial and correctly excluded from evidence as irrelevant.
Davis also argues evidence showing K.P. told him she was 17 years old should have been admissible. First, he claims it was generally relevant as impeachment evidence showing K.P.'s willingness to lie. However, Davis was allowed to ask K.P. whether she lied to Davis about her age, and she admitted she did. Davis had the necessary testimony to advance his theory of defense that K.P. was willing to lie. Second, he contends the evidence K.P. told Davis she was 17 years old was relevant because K.P.'s age was a disputed fact. K.P.'s actual age at the time of each offense (both rape and human trafficking charges) was a material and contested fact, but it was irrelevant what K.P. said her age was or how old Davis thought K .P. was at the time. The district court did not err by excluding such evidence.
Last, Davis contends the district court improperly excluded evidence regarding whether K.P. had a sexual relationship with Kelli's brother which triggered Kelli's mother kicking K.P. out of their home. He claims such evidence was admissible to impeach both Kelli and her mother and explain why K.P. called Davis after being kicked out of Kelli's home. K.P.'s motivation for calling Davis after leaving Kelli's house is irrelevant to any of the rape or aggravated human trafficking crimes. It does not matter how or why K .P. called Davis. Kelli and her mother both denied that Kelli's mother told K.P. to leave because she had sex with Kelli's brother. Neither witness was directly asked if K.P. had sex with Kelli's brother. Therefore, even if the district court had allowed Davis to ask K.P. whether she engaged in sexual intercourse with Kelli's brother, the answer would not dispute any portion of Kelli's or Kelli's mother's testimony.
The district court did not err by excluding the challenged evidence.
Is the Aggravated Human Trafficking Statute Unconstitutionally Vague and Overbroad?
Davis' fourth and fifth issues on appeal allege the aggravated human trafficking statute, specifically K.S.A.2010 Supp. 21–3447(a)(2), is unconstitutionally overbroad and vague. After Davis submitted his brief, arguments identical to the ones made by him were rejected by our Supreme Court in State v. Williams, 299 Kan. 911, 924, 329 P.3d 400 (2014). As we are duty bound to follow our Supreme Court's precedent, we must find Davis' arguments to be without merit. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012).
Affirmed.