Opinion
No. 110,146.
2014-10-10
STATE of Kansas, Appellee, v. Ronald JAMES, Appellant.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ronald James appeals after the district court found him guilty of rape of a child under 14. James raises five issues on appeal: (1) whether there was sufficient evidence to support his conviction; (2) whether the district court erred in denying his motion to suppress statements he made to law enforcement; (3) whether the district court erred in admitting evidence of his alleged prior act of sexual misconduct under K.S.A.2010 Supp. 60–455(d); (4) whether his sentence was illegal because it was ambiguous; and (5) whether the district court erred in denying his motion for a departure sentence. We do not find James' arguments on the first three issues to have merit. On the fourth issue, the State concedes that this case should be remanded to the district court for resentencing. Regarding the fifth issue, we find that the request for departure should be addressed by the district court at resentencing. Thus, we affirm in part, vacate in part, and remand for resentencing.
Facts
James was convicted of raping R.J., his 5–year–old granddaughter. The rape allegedly occurred on or around Easter Sunday 2011. At the time, James was visiting R.J.'s home, where she lived with her mother, her mother's fiancé, and her baby sister. According to R .J., James pulled down her pants and underwear. He then “stuck his finger in [R.J.'s] hole and that hurt.” Specifically, R.J. stated that James stuck his finger in the hole where she pees. Later that day, R.J. told her mother what James did to her. R.J.'s mother called the police, who came to the house and made a report. R.J. was taken by her mother to a hospital either the following day or a few days later. She was subsequently taken to Sunflower House for an interview.
On September 22, 2011, James was charged in a criminal information with one count of rape of a child under 14 years of age having occurred “on or about April 25th, 2011.” We pause to note that Easter Sunday was on April 24, 2011. At the preliminary hearing, the prosecutor discussed amending the information to allege “April 25th and 28th, 2011” as the dates of the incident, and defense counsel had no objection. The State, however, never filed an amended complaint. After the district court found probable cause and bound James over for trial, James entered a plea of not guilty.
On March 16, 2012, the State filed a motion to admit statements James had made to officers of the Kansas City, Kansas, Police Department. It does not appear that the district court ever specifically ruled on this motion. But on May 4, 2012, James filed a motion to dismiss due to police misconduct or, in the alternative, to suppress the statements he made to the police. At a hearing held on May 10, 2012, the district court indicated that the motion to dismiss or suppress arose out of a form letter sent to James by the police, and the parties agreed that motion could be decided on the written arguments presented. On June 13, 2012, the district court denied James' motion, ruling that his statements to the police were voluntary made after he was advised of his rights.
On August 1, 2012, James waived his right to a jury trial and stated he wished to have a bench trial. After inquiring of James, the district court determined that he had knowingly and voluntarily waived his right to a jury trial. Accordingly, a bench trial was held on December 20, 2012.
At trial, the State presented the testimony of R.J. and her mother. In addition, the State presented the testimony of a forensic interviewer from Sunflower House and played a video recording of the interview for the district court. Furthermore, the officer who responded when R.J.'s mother called the police after the incident occurred testified, as did a hospital social worker who did an assessment on April 29, 2011. Another social worker also testified that she met with R.J.'s mother at the hospital on April 29, 2011.
Before the next witness testified, the trial judge asked the prosecutor whether the State was proceeding under the initial criminal information. The prosecutor stated that at the preliminary hearing the State had orally “moved to amend the dates involved from April 25th to April 28th.” The prosecutor stated that it would be amended to “on or about” those dates and that it would cover the day of Easter. Defense counsel agreed with the amendment, stating, “Yes. And that certainly conforms with what the evidence has been.” Although the prosecutor agreed to formally file an amended information, it does not appear from the record that this was ever done.
Next, the State presented the testimony of the doctor who examined R.J. at Children's Mercy Hospital on April 29, 2011. She testified that R.J. had a linear laceration on her genitals. The district court admitted pictures of the laceration. The doctor noted that R.J.'s mother told her that R.J. had been itching her genitals off and on for a while but that it had gotten worse since the previous Monday. After the doctor finished testifying, the State admitted by agreement a redacted statement from Detective Angela Garrison, who had interviewed James. The State rested, and the trial judge denied the defense's motion for judgment of acquittal.
James testified at trial in his own defense. According to James, R.J., her mother, and her mother's boyfriend previously lived with him. Evidently, James asked the boyfriend to move out. James testified that R.J. and her family moved out of his house but that R .J.'s mother was upset at him. He also testified that none of what RJ. said he did to her was true and that he never had any sort of sexual contact with his granddaughter. Defense counsel's last question to James on direct examination was whether that was something he would ever do, and he answered, “I would have never ever done anything like that.”
At the beginning of her cross-examination of James, the prosecutor argued that the last question and answer had opened the door for her to admit some evidence the State previously had not intended to present. Specifically, the prosecutor stated that R.J.'s mother disclosed at the hospital that James had abused her as a child. So, when Detective Garrison interviewed James, she asked him about the mother's allegations. James responded by stating that he did “ ‘do something’ “ to R.J.'s mother when she was a child but he stopped because he “ ‘knew it was wrong.’ “ The trial judge noted defense counsel's objection but ruled that he would “allow some general questioning [about James' statement to the police], but I'm not going to allow it to be a trial of that event however long ago it was.”
On cross-examination, James denied that he told Detective Garrison that he did something inappropriate to R.J.'s mother when she was a little girl. After James' testified and the defense rested, the prosecutor decided she would recall Detective Garrison in rebuttal. Defense counsel suggested, however, that even though the defense objected to the admissibility of the evidence on the ground that it was unduly prejudicial, the parties could stipulate as to what Detective Garrison would testify to or the State could simply admit the unredacted version of the detective's notes instead of calling her to testify. The State agreed to provide the trial judge with an unredacted copy of Detective Garrison's report, which was then admitted over defense counsel's objection to its prejudicial nature. Hence, Detective Garrison was not recalled, and no other evidence was admitted in rebuttal.
After the State rested, the district court denied James' motion for judgment of acquittal. The trial judge then took a recess, after which he found James to be guilty of raping a child under the age of 14. On January 3, 2013, James filed a motion for judgment of acquittal or for a new trial. James also filed a motion for durational departure. On March 15, 2013, a hearing was held on James' posttrial motions and for sentencing. The trial judge ultimately denied the motions and imposed a “25–year sentence” as well as “lifetime parole.” The sentencing journal entry stated that James was sentenced to 300 months' imprisonment and lifetime parole. Later, the journal entry states that James was sentenced to “300 months minimum.”
Analysis
Sufficiency of the Evidence
On appeal, James contends that there was insufficient evidence to support his conviction. James argues that the State failed to prove the alleged rape occurred on the dates stated in the information. Specifically, James argues that the State failed to produce evidence that he committed the rape of R.J. between April 25 and April 28, 2011.
When the sufficiency of evidence is challenged in a criminal case, we review the evidence in a light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012). Moreover, we can decide an issue raising sufficiency of the evidence despite a defendant's failure to raise it below. See State v. Foster, 298 Kan. 348, 352, 312 P.3d 364 (2013).
The only charging document filed in this case was an information dated September 22, 2011. The information charged James with one count of rape of a child under 14 years of age “on or about April 25th, 2011.” James does not argue that there was insufficient evidence to support the allegation that the incident occurred around Easter Sunday. Instead, James argues that the State orally amended the information to allege that the act occurred between April 25 and April 28, 2011. According to James, there was insufficient evidence to support a finding of guilt as to these dates because the evidence presented at trial indicated that the rape occurred on Easter, which fell on April 24.
K.S.A. 22–3201(e) states: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” According to James, the State orally amended the information and that amendment was binding even though the State never filed an amended information. James argues that the oral amendment was effective immediately at trial and no written amendment was necessary.
In support of his position, James cites State v. Nunn, 244 Kan. 207, 224, 768 P.2d 268 (1989). In Nunn, the Kansas Supreme Court held that “[a]bsent any showing of prejudice to the defendant, when the amendment is made during trial with the defendant and defense counsel present, the amendment is effective immediately.” 244 Kan. at 224, 768 P.2d 268. Likewise, in State v. Switzer, 244 Kan. 449, 457, 769 P.2d 645 (1989), the Kansas Supreme Court held that even where the prosecution fails to journalize an oral amendment to a criminal complaint after trial, that failure does not invalidate the verdict as long as the defendant was not prejudiced.
Nevertheless, we find that James' argument that there was insufficient evidence fails. We note that the oral amendment did not limit the dates as James suggests. At the preliminary hearing, the prosecutor stated, “[T]he [information] charges that on or about April 25th, 2011. We had testimony about that. I think the Court can take judicial notice that Easter was on the April 25th, 2011.” Defense counsel stated, “That's fine.” The prosecutor continued, “But, it's on or about, and I think that satisfies Easter or the day after Easter, so. I actually maybe I should amend it to alleged April 25th and 28th, 2011.” Defense counsel stated he had no objection to that. Thus, although the parties may have been confused about the exact date of Easter, it was understood that the State was alleging that the rape occurred either on Easter Sunday or the following day.
In addition, the following conversation occurred at trial:
“[PROSECUTOR:] Yes, Your Honor. The transcript of the preliminary hearing indicates that [the prosecutor] moved to amend the dates involved from April 25th to April 28th.
“THE COURT: So not between, but the date from April 25th to April 28th.
“[PROSECUTOR:] On or about between April 25th and April 28th.
Although the trial judge requested that an amended information be filed, it appears that this was never done. Regardless, even if the information was orally amended, the State alleged the act occurred on or about between April 25 to April 28, 2011. Because the information contained allegations of sex crimes against a child, the State could allege approximate time frames. See State v. Rojas–Marceleno, 295 Kan., 525, 536, 285 P.3d 361 (2012). Furthermore, James admits the evidence showed the alleged act occurred on or around Easter, and the record reflects that this is what the trial judge understood as well. Thus, we conclude that there was sufficient evidence upon which a reasonable factfinder could conclude that James committed rape of a child under the age of 14 on or about April 25 to April 28, 2011.
James cites State v. Trautloff, 289 Kan. 793, 801–03, 217 P.3d 15 (2009), in which the Kansas Supreme Court found that it was error to instruct a jury on a more expansive definition of a crime than was charged in the complaint. Unlike Trautloff, the present case was tried to the court and the record reflects that it was understood by all involved that the State was alleging that the rape occurred in 2011 on Easter Sunday or the next day. Accordingly, there is no reason to believe that the trial judge was confused in reaching his verdict.
James also cites State v. Robinson, 27 Kan.App.2d 724, 728–29, 8 P.3d 51 (2000). In the Robinson case, which involved a charge of aggravated robbery, the complaint and the jury instructions stated that the defendant took something from the victim's person, while the evidence presented at trial showed that the defendant took something from the victim's presence. Here, of course, there is no dispute that the State was alleging that the rape occurred on Easter Sunday or the following day, and the evidence presented at the bench trial was consistent with this allegation.
In State v. Stafford, 296 Kan. 25, 54, 290 P.3d 562 (2012), the Kansas Supreme Court held the evidence was sufficient to support a rape conviction, which the information alleged occurred “ ‘on or about the 15th day of August 2006 and the 10th day of July 2007,’ “ finding that “a fair reading of the language would clearly indicate to a reasonable person that the State was alleging that the rape occurred sometime between the two dates.” Additionally, the Kansas Supreme Court found:
“ ‘Generally, the exact date that an offense was allegedly committed is not an element of the crime. This court has held where a defendant is not misled or prejudiced in making his or her defense by the allegation of when the crime occurred, a conviction may properly follow upon sufficient proof that the crime was committed at any time within the period of the statute of limitations.’ [Citation omitted.]” 296 Kan. at 55, 290 P.3d 562.
Here, James does not allege that the lack of a specific date prejudiced him in making a defense. Likewise, James does not allege that insufficient evidence was presented to establish that the rape occurred within the statute of limitations. In fact, a review of the record reveals that although he denied doing anything to his granddaughter, James was well aware prior, during, and after the bench trial that the State was alleging that the rape took place on or around Easter Sunday. Accordingly, James was not misled or prejudiced in making his defense.
In summary, RJ. testified at trial that the incident occurred around Easter 2011. Similarly, her mother testified that R.J. told her about the incident on April 25, 2011. Although R.J. did not tell her mother the exact day it happened, evidence was presented that James had been at their house was on Easter. We, therefore, conclude that a rational factfinder could have found James guilty of raping R.J. beyond a reasonable doubt.
Motion to Suppress
Next, James contends the district court erred in denying his motion to suppress certain statements he made to a law enforcement officer. There are two initial problems with his raising this issue on appeal: (1) James argues that the State failed to meet its evidentiary burden to prove that the statements were admissible, but he agreed that the district court could decide his motion to suppress based on the briefs without any additional evidence being presented by the State, and (2) James failed to object when the statement was admitted at trial.
Under K.S.A. 60–404, “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” In the present case, the statements James complains about were admitted at trial as part of an exhibit. Initially, the parties agreed to the admission of a redacted version of Detective Garrison's notes from her interview with James. Later, once the district court ruled that James' entire statement to Detective Garrison was admissible, James agreed to the State presenting an unredacted version of the statement in rebuttal in place of Detective Garrison's live testimony.
James concedes that defense counsel did not contemporaneously object at trial to the admission of the statements he is now challenging on appeal. He contends, however, that defense counsel complied with the spirit of K.S.A. 60–404 and that reviewing his suppression issue on direct appeal promotes judicial economy. The State does not analyze the issue but evidently concedes that James preserved the issue for appeal.
Before beginning the bench trial, the judge stated:
“I start off by saying you don't have to object to everything, but I hate to tell you that because you rely on that and then the Court of Appeals or Supremes comeback and say he didn't raise it again. As far as I'm concerned, any objections to my prior rulings are reserved. I will leave it up to you to protect your own record because I don't want to do anything to mess that up.
....
“But I will make the initial ruling that any of your motions that were not successful for you, those are reserved. Any motions that I ruled against the State are reserved as far as I'm concerned. I will leave it to wise counsel to protect your own record.”
Based on this statement, it would appear that the trial judge was not going to change any of his pretrial rulings and that they were reserved for appeal. Furthermore, even if we refuse to consider this issue because of defense counsel's failure to object, it would likely be raised in a postconviction motion under K.S.A. 60–1507. See State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). Accordingly, we will consider the merits of James' argument despite his failure to object at the time the evidence was admitted at trial in order to promote judicial economy.
In his pretrial suppression motion, James argued that his statements to Detective Garrison were coerced by a form letter she sent him asking for help in the investigation. James contended that the letter violated his Miranda rights. The district court set the motion for a hearing, and Detective Garrison appeared at the hearing to testify. The district court noted, however, that the only issue involved the letter and reminded defense counsel that at one time, he indicated James was willing to have the issue be decided on the written submissions. Defense counsel agreed that that was still James' position. The State indicated it did not “desire to put on any evidence if [the defense was] waiving the right to cross-examine the detective on it.” Defense counsel agreed that they were willing to waive cross-examination, and the district court excused Detective Garrison from the hearing.
In ruling on this issue, the district court noted that “[t]he Defense, in emails to and from all parties in this action and in open court, has indicated that they are challenging the use of the statement solely due to the allegations contained in this motion.” The district court noted that James was not challenging the waiver of Miranda rights subsequent to the receipt of the form letter from Detective Garrison, which he admittedly signed before giving his statement. Rather, the district court pointed out that James was only arguing that the form letter coerced him into going to the police department to provide a statement.
The district court determined that the use of the form letter did not require suppression of James' statement. In particular, the district court found that the portion of the letter that was marked as applicable to James only stated that he needed to contact the police department because he had been implicated as a suspect in a reported crime. The letter also stated that James' failure to contact the police department would not prevent the matter from being forwarded to the district attorney's office for possible filing of criminal charges. The district court stated that this was no different than if the detective had called James, asking him to come to the police department for an interview.
The district court also found that the letter's statement that failure to contact the police would not stop the investigation or prevent charges being filed was not coercive. The district court distinguished this case from State v. Swanigan, 279 Kan. 18, 44, 106 P.3d 39 (2005), in which the Kansas Supreme Court found under the totality of the circumstances that the defendant's confession was coerced. In conclusion, the district court determined that James' statement to Detective Garrison was freely and voluntarily given.
“When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure.” State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006). But when the facts material to the district court's decision on the motion are not in dispute, the question of whether to suppress is a question of law subject to unlimited review. 282 Kan. at 533, 147 P.3d 842. Furthermore, the State points out that K.S.A. 22–3215(3) requires a hearing only “[i]f the motion alleges grounds which, if proved, would show the confession or admission not to be admissible....”
James' argument that the State failed to meet its evidentiary burden to prove that the statements were admissible does not succeed because he agreed that the district court could decide his motion to suppress based on the briefs without any additional evidence being presented by the State. Specifically, James agreed that no facts were in dispute relating to his suppression motion and that the district court could decide whether the statement was voluntarily given based on the parties' written submissions. In addition, the State had Detective Garrison at the hearing ready to testify, but she was released by agreement of the parties. Accordingly, the only issue for the district court to decide was whether the form letter coerced James into giving a statement to Detective Garrison. As that was the only issue James raised below, it is the only issue he can raise on appeal. See State v. Bowen, 299 Kan. 339, 351, 323 P.3d 853 (2014). Additionally, the invited error doctrine also applies, as James was the one who suggested that the district court decide the issue solely on the parties' written submissions. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Turning to the merits of James' arguments, we note that K.S.A.2013 Supp. 60–460(f) provides:
“In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged [is admissible], but only if the judge finds that the accused (1) when making the statement was conscious and was capable of understanding what the accused said and did and (2) was not induced to make the statement (A) under compulsion or by infliction or threats of infliction of suffering upon the accused or another, or by prolonged interrogation under such circumstances as to render the statement involuntary or (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same.”
James argues that his confession was coerced because the letter Detective Garrison sent him stated he needed to come to police headquarters to give a statement and that it was imperative that he assist the police department. As the district court found, the form letter had four options and only the last option was marked. The marked section of the letter stated that James was implicated as a suspect in a crime. It did not state that he needed to give a detailed statement.
Although we would not recommend the use of such form letters by law enforcement officers, we do not find that James was coerced into making a statement to Detective Garrison. In particular, we note that before James gave his statement to the police, he was advised of his Miranda rights. Interestingly, James does not challenge the sufficiency of the Miranda warnings given to him, nor does he challenge the conditions in which the interview was conducted. Hence, any coerciveness in the form letter was dissipated when the police properly informed James of his legal rights—including the right to remain silent and the right to talk to an attorney before being asked any questions. Accordingly, we conclude that the district court did not err in denying James' motion to suppress.
K.S.A.2013 Supp. 60–455(d) Evidence
James also contends that the district court erred in allowing the State to admit evidence of alleged prior sexual misconduct under K.S .A.2013 Supp. 60–455(d). We review any determination regarding relevant evidence's probative value weighed against its prejudicial effect for an abuse of discretion. State v. Lowrance, 298 Kan. 274, 291, 312 P.3d 328 (2013). Judicial discretion is abused if the judicial decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012).
Under K.S.A.2013 Supp. 60–455(d), evidence of previous acts of sexual misconduct are admissible to show a defendant's propensity to commit sexual offenses so long as the evidence is relevant and probative. Specifically, K.S.A.2013 Supp. 60–455(d) states:
“Except as provided in K.S.A. 60–445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under ... articles 54, 55 or 56 of chapter 21 of the Kansas Statutes Annotated, ... evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.”
The statute is applicable in this case because rape, as charged in the information against James, falls within the category of sexual offenses to which the statute applies. See K.S.A.2013 Supp. 21–5503; State v. Prine, 297 Kan. 460, 476, 303 P.3d 662 (2013); State v. Dearman, No. 110,798, 2014 WL 3397185, at *5 (Kan.App.2014) (unpublished opinion).
During the bench trial, the State did not initially attempt to admit the portion of James' statement to Detective Garrison in which he purportedly admitted to doing something inappropriate to his daughter—R.J.'s mother—when she was a child. But the following exchange took place at the end of James' direct examination:
“Q. [by defense counsel:] At any time did you have any sort of sexual contact whatsoever with your granddaughter?
“A. [by James:] No, I haven't.
“Q. Is that something you would ever do?
“A. I would never have done anything like that.”
It was only after this colloquy that the State requested to be allowed to admit the evidence regarding James' prior bad acts. Defense counsel objected, arguing that the probative value of the evidence was outweighed by its prejudicial effect. The trial judge overruled the objection, stating:
“The court is very cognizant of the fact that prior incidences such as that, that were contemplated under 60–455 we're still used to talking about it like that is and can be prejudicial, many times is very prejudicial. The court is also cognizant of the fact that when a question is asked and response provided that sometimes evidence can be admissible that was not admissible before. I still think that the phraseology of the question that something ever do is not limited in scope like the previous question was. So I am going to allow some general questioning, but I am not going to allow it to be a trial of that event however long ago it was.”
Ultimately, the district court allowed the State to admit the unredacted version of Detective Garrison's notes into evidence. The notes indicate that Detective Garrison asked James about allegations made by his daughter that she had been abused by him as a child. The notes further states: “Ronald admitted that he did ‘do something’ to his daughter, when she was a child, but he said he stopped because he ‘knew it was wrong.’ “
On cross-examination, the only questions and answers on the topic were the following:
“Q. [by prosecutor:] So Mr. James, you gave a statement to Detective Garrison, correct?
“A. [by James:] Not that one.
“Q. You're saying you never said any of that?
“A. Not that”
When assessing whether evidence is admissible, the first thing a district court must determine is whether the evidence was relevant and probative. Prine, 297 Kan. at 477, 303 P.3d 662. We note that the trial judge did not have the benefit of the Prine opinion at the time he made its decision, so the district court's failure to make these specific findings was not erroneous. See State v. Dean, 298 Kan. 1023, 1033–34, 324 P.3d 1023 (2014). Moreover, because James did not object to the district court's findings, this court can presume that the district court found all facts necessary to support its judgment. See Supreme Court Rule 165(b) (2013 Kan. Ct. R. Annot. 265); State v. Herbel, 296 Kan. 1101, 1119–20, 299 P.3d 292 (2013); Dearman, 2014 WL 3397185, at *7. Nevertheless, based on our review of the record, we find that there is no question that this evidence was both relevant and probative based on the nature of the charge against James as well as his statement on direct examination that he would “never have done anything like that.”
Next, we consider whether the evidence's probative value was outweighed by any undue prejudice to the defendant. See K.S.A. 60–445. In Prine, the Kansas Supreme Court suggested that we apply the federal balancing test from United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.1998), because K.S.A.2013 Supp. 60–455(d) was modeled after Federal Rules of Evidence 413, 414, and 415. Prine, 297 Kan. at 476–78, 303 P.3d 662. The issues to consider in this four-factor test are: (1) How clearly the prior act was proven; (2) how probative the evidence is of the material fact the State wishes to admit it to prove; (3) how seriously disputed that material fact is; and (4) whether the government can use any less prejudicial evidence. Prine, 297 Kan. at 478, 303 P.3d 662 (citing Enjady, 134 F.3d at 1433). Federal courts applying this test indicate that relevant evidence of prior bad acts in cases involving sex offenses should rarely be excluded. See Dearman, 2014 WL 3397185, at *6 (citing United States v. Penally, 500 F.3d 1085, 1090 [10th Cir.2007]; Enjady, 134 F.3d at 1433; Prine, 297 Kan. at 476–78, 303 P.3d 662).
Before reaching the four-factor test, however, federal courts state that a district court “must make a preliminary finding that a [factfinder] could reasonably find by a preponderance of the evidence that the ‘other act’ occurred.” Enjady, 134 F.3d at 1433. James first argues that this preliminary finding cannot be made. We find, however, that Detective Garrison's notes containing James' purported admission regarding inappropriate acts with his daughter when she was a child are sufficient for a reasonable factfinder to conclude by a preponderance of the evidence that the prior act occurred.
In explaining his verdict, the trial judge made it clear that he did not rely heavily on the evidence of prior sexual misconduct. Rather, the trial judge spent a substantial amount of time discussing on the record the credibility of the testimony of R.J. and that of her mother. The judge then discussed the testimony and evidence from R.J.'s medical exam. Finally, the judge stated that he relied on “the totality of the evidence, everything considered, the exhibits, the video, testimony by all the witnesses” in finding James guilty of raping his granddaughter.
Based on our review of the record, it does not appear that the trial judge put a substantial amount of weight on James' alleged prior sexual misconduct in reaching the conclusion that James was guilty beyond a reasonable doubt of rape in the this case. As such, we conclude the district court did not abuse its discretion in finding the probative value of the evidence outweighed its prejudicial effect.
Even if the prejudicial effect did outweigh the probative value of the evidence of prior sexual misconduct, any error in its admission was harmless under K.S.A.2013 Supp. 60–261. See State v. Longstaff, 296 Kan. 884, 895–96, 299 P.3d 268 (2013). The State—as the party who benefitted from the admission of the evidence—has the burden of proving harmless error. See Herbel, 296 Kan. at 1110, 299 P.3d 292. Here, the State contends that the error was harmless because the evidence—particularly the testimony of R.J., the testimony of her mother, and the testimony regarding R.J.'s physical examination—was overwhelming in contrast to the evidence of James' alleged prior bad act. We agree.
Additionally, as noted above, the district court did not emphasize the evidence admitted under K.S.A.2013 Supp. 60–455(d) when explaining its verdict. Rather, the trial judge thoughtfully reviewed all of the evidence presented in concluding beyond a reasonable doubt that James was guilty. Thus, we concluded that even if the district court erred in admitting the evidence of James' prior sexual misconduct, the error was harmless based on the overwhelming evidence presented against him at trial.
Illegal Sentence
The parties agree that the district court imposed an ambiguous sentence because after discussing the factors for a downward departure and appearing to deny James' request for a departure, the district court sentenced him to a “25 year prison sentence.” As the State points out, the district court likely meant to impose the presumptive sentence of imprisonment for life with a mandatory minimum term of not less than 25 years. Nevertheless, this was not explicitly stated on the record. Additionally, the Journal Entry of Sentencing reflects that James' sentence was 300 months. Therefore, because the district court did not comply with the applicable sentencing procedure under Jessica's Law, see K.S.A.2013 Supp. 21–6627, we must vacate James' sentence and remand this case to the district court for resentencing.
Motion for Departure Sentence
Finally, James contends that the district court erred when denying his departure motion. Unfortunately, based on our review of the record, we cannot tell whether the district court ever actually denied James' motion for departure. Moreover, the district court did not check any of the boxes relating to departure sentences on the sentencing journal entry.
We note that “[t]he district court is required only to state on the record substantial and compelling reasons if it decides to grant a departure.” State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013) (citing State v. Baptist, 294 Kan. 728, 735, 280 P.3d 210 [2012], and K.S.A. 21–4643[d]—now K.S.A.2013 Supp. 21–6627[d].) Regardless, a district court needs to clearly rule on a motion for departure—one way or the other. Accordingly, we also remand James' motion for departure to the district court for determination.
Affirmed in part, vacated in part, and remanded with directions.