Opinion
No. 107,524.
2013-05-17
STATE of Kansas, Appellee, v. Byron JOHNSON, Appellant.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 2010, Byron Johnson was charged with multiple sex crimes for sexual encounters with his stepdaughter, D.C., when she was 13 and 16. In 2011, Johnson was convicted by a jury of one count of rape and four counts of aggravated incest. Under Kansas law, sexual intercourse with a child under age 14 is rape, K.S.A.2005 Supp. 21–3502(a)(2), and both sexual intercourse and sodomy with one's own child or stepchild who is 16 years old but not yet 18 is aggravated incest, K.S.A. 21–3603(a)(2)(A).
D.C. testified that while she was 16 she had more than 10 sexual encounters with Johnson, and the State charged four separate counts of aggravated incest. Johnson asked the district court to give an instruction that the jury must unanimously agree upon the same underlying criminal act to convict on each count. Such an instruction ensures that the defendant receives his or her right to a unanimous jury verdict (with all jurors agreeing on what the defendant did that constituted criminal conduct), but the district court refused to give the requested instruction. Johnson argues that this was reversible error, but we conclude that the error was harmless on the facts of this case. The jury clearly believed D.C.'s testimony, and we see no reasonable probability of jury disagreement about whether all—or only some—of the alleged acts took place.
Johnson also raises several other arguments, but none have merit:
• Two of the aggravated-incest charges were based on sodomy offenses, and Johnson argues that the jury instruction for aggravated incest by sodomy presented an alternative-means issue ( i.e., that sodomy may be committed in more than one way) and that the State failed to present evidence of each alternative means for committing sodomy. But this argument has been rejected recently by the Kansas Supreme Court.
• Johnson also alleges that the prosecutor committed misconduct in closing argument by telling the jury that it “must” convict if it believed D.C.'s testimony. Johnson claims that “should” and “must” have different meanings, but the Kansas Supreme Court has found that “should” and “must” may be used interchangeably in criminal-case jury instructions, and we find no misconduct in the prosecutor's use of the word “must” in closing argument.
• Johnson's final claim is that his prior convictions, which were used to calculate his sentence under the Kansas sentencing guidelines, should have been proven to a jury. This argument also has been rejected by the Kansas Supreme Court.
Factual and Procedural Background
In November 2010, Byron Johnson was charged with three counts of rape and two counts of aggravated criminal sodomy, with alternate charges of four counts of aggravated incest. The charges stem from incidents with Johnson's stepdaughter, D.C, when she was 13 and 16.
In April 2011, Johnson was tried by a jury in Wyandotte County. Johnson was accused of digitally penetrating D.C.'s vagina when she was 13 (which Kansas law defines as sexual intercourse) and of having sexual intercourse and oral sex with D.C. when she was 16. D .C. testified that while she was 16, she and Johnson gave each other oral sex and had sexual intercourse “over ten times.” At the close of evidence, the district court amended the charges to one count of rape for the digital penetration at age 13 and four counts of aggravated incest. The jury was instructed that two of the counts of aggravated incest were committed by sodomy (which Kansas law defines to include oral contact with either the male or female genitalia) and two counts were committed by sexual intercourse.
Johnson requested a multiple-acts unanimity instruction that would have required the jury to unanimously agree on the same underlying act for each of the aggravated-incest charges. The district court declined to give the instruction.
During closing argument, the prosecutor referred the jury to the first specific incident of Johnson performing oral sex on D.C. But the prosecutor didn't otherwise describe other specific acts of aggravated incest, only repeating that D.C. testified that sexual intercourse happened “at least ten times.” Also during closing argument, the prosecutor told the jurors that if they believed D.C.'s then they must convict Johnson.
The jury found Johnson guilty of all five counts—one count of rape and four counts of aggravated incest. On November 17, 2011, the district court sentenced Johnson to 272 months for rape and 32 months for each count of aggravated incest; the sentence lengths were based on a criminal-history classification of C and the Kansas sentencing guidelines. The district court ordered all five counts to run consecutive to each other for a total prison sentence of 400 months.
Johnson has appealed to this court.
Analysis
I. The District Court's Failure to Give a Multiple–Acts Unanimity Instruction Was Harmless Error.
Johnson first argues that the district court committed reversible error by not giving a multiple-acts unanimity instruction for the counts of aggravated incest. A multiple-acts case occurs where several acts are alleged and any one of them could constitute the crime charged. State v. Colston, 290 Kan. 952, 961, 235 P.3d 1234 (2010). When the State relies on multiple acts to support one criminal charge, a unanimity instruction usually is required to make sure that all jurors have agreed that the defendant committed one of the specific acts alleged, although a unanimity instruction isn't required if the State adequately elects and tells the jury which acts it is relying on. State v. Torres, 294 Kan. 135, 146, 273 P .3d 729 (2012).
In our case, the State concedes that a unanimity instruction should have been given but contends that the failure to give it was harmless error. Thus, the only question for us to decide is whether the error was harmless. The right to a unanimous verdict is a statutory right, see State v. Voyles, 284 Kan. 239, 250, 160 P.3d 794 (2007), so to find the error harmless, we must be persuaded that there is no reasonable probability that the error affected the trial's outcome. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
By the time the jury considered the charges, the State had charged Johnson with two counts of aggravated incest by sodomy and two counts of aggravated incest by sexual intercourse. In closing argument, the State elected to refer to a specific incident for only one of the four counts, noting evidence of the first encounter in which Johnson performed oral sex on D.C. in her bedroom to support one count of aggravated incest by sodomy. The prosecutor didn't elect specific acts on which to base the other count of aggravated incest by sodomy and the two counts of aggravated incest by sexual intercourse. In talking about aggravated incest by sexual intercourse, the State said: “And when I asked her how many times [intercourse] happened, she said it happened at least ten times. And so we've only charged two occasions.” The State later repeated, “And there are two counts of that, and like I said, you've heard evidence of at least ten times that that happened.”
As in an earlier Kansas case, Voyles, which involved the reversal of convictions of aggravated criminal sodomy for incidents involving the defendant's daughter and stepdaughter, Johnson argues that he was substantially prejudiced because evidence of more multiple acts than charges has the same effect as evidence of propensity to commit the crime—and evidence of propensity, or a natural inclination to commit the crime, is unfairly prejudicial. See 284 Kan. at 255 (reversing under clearly erroneous standard because court was firmly convinced that there was a real possibility jury would have returned a different verdict if unanimity instruction had been given). In Voyles, two children testified about specific incidents at different times and different places such that it was possible to identify 20 specific acts that could have supported the eight charges. 284 Kan. at 253–54.
But the factual discrepancies identified at trial were greater in Voyles than in our case, the victims were younger, and the risk that memories had been manipulated or were in error seems to have been greater there too. We also must recognize that not all witnesses can provide testimony that separates by date and location each sexual act that has occurred over a period of months or years.
In a case more similar to Johnson's, State v. Arculeo, 29 Kan.App.2d 962, 974–75, 36 P.3d 305 (2001), our court concluded that a defendant's right to a unanimous verdict wasn't endangered in a case where there were repeated sexual acts over a long period of time and the defense was a general denial that any of the acts had occurred. In that case, our court concluded that the failure to give a unanimity instruction due to the prosecution's failure to specifically elect particular acts was harmless error. 29 Kan.App.2d at 975–76. We concluded that the case tried to the jury had been focused on the credibility of the victim, and the defendant had been given a full opportunity to present his case:
“The case at bar demonstrates the difficulty of requiring a specific election or jury agreement where the evidence shows repeated sexual abuse of a young child over a long period of time. [The victim's] description of the alleged abuse offered no distinguishing characteristics identifying any separate and distinct incidents of abuse. Rather, the abuse ‘result[ed] in an amalgamation of the crimes in the child's mind’; thus, ‘the child's testimony [was] reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis.’ People v. Luna, 204 Cal.App.3d 726, 748, 250 Cal.Rptr. 878(1988).
“Arculeo's due process right to a reasonable opportunity to defend against the charges was not violated. The sole issue was credibility. The generic nature of the evidence did not raise a question as to the sufficiency of that evidence. While the jury was not provided any evidence as to the frequency of the alleged crimes, e.g., once a month for 4 months, none was necessary because the appellant was charged with only one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child. Moreover, [the victim] gave sufficiently specific evidence of the sexual acts. The jury could have reasonably concluded from [the victim's] testimony that his account could have come only from personal experience.
“Furthermore, Arculeo's right to jury unanimity was not endangered. Although the evidence indicated that the incidents of sexual acts occurred more than the one time charged, the evidence in its entirety offered no possibility of jury disagreement regarding Arculeo's commission of any of these acts. The only issue before the jury was the credibility of [the victim's] account of the repetitive sexual offenses alleged. By the jury's rejection of Arculeo's general denial, the appellant has his unanimous jury verdict.” Arculeo, 29 Kan.App.2d at 974–75.
Here, D.C, who was 18 at the time of trial, testified about engaging in oral sex and vaginal sex with Johnson when she was 16. D.C. testified generally about their encounters: “He would give me oral first and then I would give him oral and that's when he would put his penis in my vagina.” D.C. estimated that this sequence happened “over ten times.” She agreed that she couldn't remember exact dates and that she wasn't sure exactly how many times it happened. D.C. testified that Johnson performed oral sex on her “ten times or more,” that he penetrated her with his penis “probably close to ten times,” and that she performed oral sex on him “ten times also.” She also agreed that all of the encounters happened in their home when she was 16. A detective testified that D.C. had been unable to detail every encounter when police interviewed her and that she told him a generalization without specific details other than the number of times it happened.
Johnson didn't testify in his own defense. The defense's closing argument focused on D.C.'s dislike of Johnson, the lack of physical evidence, and contending that the allegations weren't true.
The pattern instruction for unanimity that should have been given reads: “The State claims distinct multiple acts which each could separately constitute the crime of [aggravated incest]. In order for the defendant to be found guilty of [aggravated incest], you must unanimously agree upon the same underlying act.” PIK Crim. 4th 68.100. Except for the initial incident of oral sex that was described, the nature of the evidence presented would have made it difficult for the jury to distinguish one alleged underlying act of aggravated incest from another. As in Arculeo, the sole issue here was the credibility of D.C.'s account of the repetitive sexual acts alleged. She gave sufficiently specific evidence of the sexual acts to support the charges.
At trial, Johnson argued that the unanimity instruction was required because six jurors could have believed Johnson gave oral sex to D.C. and six jurors could have believed D.C. gave oral sex to Johnson, not that there was some cause to believe that fewer than four potential crimes had taken place. We conclude that it is unlikely that the outcome of the trial would have been different if the unanimity instruction had been given. The evidence was such that the jury either believed that all of the acts alleged happened or that none of the acts happened. The evidence offered no reasonable probability of jury disagreement about whether all of the alleged acts happened. See Arculeo, 29 Kan.App.2d at 975. Because there is no reasonable probability that the error affected the outcome of the trial, we find the error harmless.
II. The Sodomy Statute Doesn't Create an Alternative–Means Issue That Requires Reversal for Lack of Evidence.
Johnson next argues that the two counts of aggravated incest by sodomy should be reversed because the State failed to present evidence for each of the alternative means of committing the crime. Sodomy can be proven by either oral contact with or oral penetration of the female genitalia, K.S.A. 21–3501(2), and Johnson argues that the State failed to present evidence of oral penetration of the female genitalia. The State contends that the jury instruction for aggravated incest by sodomy didn't create an alternative-means issue.
Johnson's argument fails in light of three Kansas Supreme Court opinions that were issued after he filed his brief. The Kansas Supreme Court has analyzed the sodomy definition in K.S.A. 21–3501(2) and held that “the specific definition of oral contact used in the statute—‘oral contact or oral penetration of the female genitalia or oral contact of the male genitalia’—does not contain alternative means.” State v. Britt, 295 Kan. 1018, 1025, 287 P .3d 905 (2012). The Court has reaffirmed this holding twice. State v. Stafford, 296 Kan. 25, 52–53, 290 P.3d 562 (2012) (“The phrase ‘oral contact or oral penetration of the female genitalia or oral contact of the male genitalia’ does not create alternative means and, consequently, does not trigger concerns of jury unanimity or demand application of the super-sufficiency requirement.”); State v. Wells, 296 Kan. 65, 85, 290 P.3d 590 (2012) (“The phrase ‘oral contact or oral penetration of the female genitalia or oral contact of the male genitalia’ does not establish two alternative means of committing sodomy. Instead, the phrase only establishes one means of committing sodomy—oral contact of genitalia.”). Therefore, in light of controlling Kansas Supreme Court precedent, the jury instruction here didn't present an alternative-means issue. Accordingly, there is no alternative-means error.
III. The State Didn't Commit Prosecutorial Misconduct by Telling Jurors That They Must Convict Johnson if They Believed D.C.
Johnson's third argument is that the State committed prosecutorial misconduct in its closing argument by telling the jurors they had to convict Johnson if they believed D.C.'s testimony. Specifically, Johnson contends that the prosecutor diluted the burden of proof and misstated the law. The State argues that the prosecutor didn't embellish the burden of proof and simply argued credibility, which is permissible.
Kansas appellate courts use a two-step analysis for allegations of prosecutorial misconduct involving improper comments to the jury. State v. Phillips, 295 Kan. 929, 943, 287 P.3d 245 (2012). First, we determine whether the comments were outside the wide latitude of language and manner allowed to a prosecutor in making closing arguments. 295 Kan. at 943. If so, we then determine whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. 295 Kan. at 943. Three factors are considered in this determination: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. 295 Kan. at 943. This last factor may not override the first two factors unless the State proves beyond a reasonable doubt that the error complained of didn't affect the outcome of the trial in light of the entire record. State v. Sprung, 294 Kan. 300, 313, 277 P.3d 1100 (2012).
Here, the first question is whether the prosecutor's comments were outside the wide latitude allowed in a closing argument. See Sprung, 294 Kan. at 312. A prosecutor's statement that incorrectly defines or impermissibly dilutes the State's burden of proof is outside the wide latitude given to prosecutors in closing argument. State v. Magallanez, 290 Kan. 906, 914–15, 235 P.3d 460 (2010).
Johnson's argument centers around the following portions of the State's closing argument, given in rebuttal:
“Ladies and gentlemen, it's as simple as this: If you believe what [D.C.] says, then you must convict. It's as simple as that. If you believe that those things happened and you have to ask yourself credibility.
....
“... If you believe what she said, you have to find the defendant guilty.
....
“Ladies and gentlemen, if you believe what she was testifying to you, you must convict and I ask that you do.”
One jury instruction, following an approved pattern instruction, told the jury: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) Johnson argues that the prosecutor telling the jury that they “have to find the defendant guilty” and “must convict” is a misstatement of the law because “should” and “must” have different meanings.
But the Kansas Supreme Court has rejected this argument more than once, finding that “should” and “must” both convey a sense of duty and obligation. See State v. McCloud, 257 Kan. 1, 15–16, 891 P.2d 324,cert. denied516 U.S. 837 (1995); State v. Lovelace, 227 Kan. 348, 354, 607 P.2d 49 (1980) (stating that “should” and “must” “can be used interchangeably in criminal instructions”); State v. Stuart and Jones, 223 Kan. 600, 603–04, 575 P.2d 559 (1978) (noting that “should” conveys a sense of duty and obligation and couldn't be misunderstood by a jury); see also State v. Fawl, No. 103,004, 2011 WL 4563067, at *7 (Kan.App .2011) (unpublished opinion) (finding no error when prosecutor said jury “must” convict if it believed key evidence). We therefore conclude that the prosecutor didn't misstate the law and the statements weren't outside the wide latitude allowed in closing argument.
IV. The District Court Didn't Err in Sentencing Because Prior Convictions Aren't Required to be Proven to a Jury.
Finally, Johnson argues that his prior convictions used to increase his sentence weren't submitted to a jury or proven beyond a reasonable doubt in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct 2348, 147 L.Ed.2d 435 (2000) (holding that any fact that increases the penalty for a crime beyond the statutory maximum, other than the fact of a prior conviction, must be submitted to jury and proven beyond a reasonable doubt). The Kansas Supreme Court has rejected this argument. State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002). And the Kansas Supreme Court hasn't indicated a change on this issue. State v. Hughes, 290 Kan. 159, 173, 224 P.3d 1149 (2010). We are, of course, bound by Kansas Supreme Court precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011). The district court committed no error by considering Johnson's past offenses when determining his guidelines sentences.
The district court's judgment is therefore affirmed.