Opinion
No. 106,279.
2012-09-21
STATE of Kansas, Appellee, v. Jonathan NELSON, Appellant.
Appeal from Johnson District Court; Peter V. Ruddick, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M, Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Peter V. Ruddick, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M, Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jonathan Nelson appeals from his conviction of sexual exploitation of a child in violation of K.S.A. 21–3516. Nelson was convicted after a bench trial based, in part, on stipulated facts and, in part, on the admission of five photographs of underage girls. On appeal, Nelson argues that the State failed to present sufficient evidence to support his sexual exploitation of a child conviction. Specifically, Nelson argues that the State failed to present sufficient evidence to show the following: (1) that the persons depicted in the photographs were under age 18; (2) that the photographs depicted sexually explicit conduct; and (3) that Nelson possessed the photographs with the intent to arouse his sexual desires or appeal to his prurient interest. We disagree. Nelson also argues that his conviction must be reversed because he did not knowingly and voluntarily waive his right to a jury trial. We disagree. Accordingly, we affirm.
On November 11, 2006, the Federal Bureau of Investigation (FBI) told Detective Brian Houlihan that Nelson might have a subscription to a child pornography website. The FBI then asked the Kansas Cyber Crimes Task Force to question Nelson about the possible subscription. That same day Houlihan, accompanied by Kansas Bureau of Investigation (KBI) Special Agent Angie Wilson, went to Nelson's house to question him about the subscription.
Nelson allowed Houlihan and Wilson into his home and allowed them to question him about the subscription. During the course of the interview, Nelson told Houlihan and Wilson that if they inspected his computer they “were going to find some questionable images.” Moreover, Nelson admitted during the interview that he was sexually aroused by children. Specifically, Nelson stated that he was sexually stimulated by children and that his interests were female girls from 12 to 15 years old. Even so, Nelson clarified that although he was sexually attracted to underage girls, he had never acted out on those interests.
At the conclusion of the interview, Nelson signed a consent form and allowed Houlihan and Wilson to take his computer, his mother's computer, and five memory cards from his house. After Houlihan and Wilson took the computers and memory cards, those items were turned over to Ross Capanetto—a forensic analyst at the Heart of American Computer Forensic Lab. Capanetto's investigation revealed images that showed child pornography, possible child pornography, child erotica, and adult pornography.
Eventually, Nelson was charged with one count of sexual exploitation of a child under K.S.A. 21–3516, K.S.A. 21–4704, and K.S.A. 21–4707. After multiple attorneys appointed to represent him withdrew, Nelson moved for self-representation and was allowed to represent himself. Nelson waived his right to a jury trial, and his case proceeded to a bench trial on stipulated facts. Two items entered into evidence: (1) the stipulated facts for which Nelson and the State had agreed and (2) the five pictures that the State claimed showed that Nelson had possessed images of underage girls which constituted sexually explicit conduct and possessed the images with the intent to arouse his sexual desires or appeal to his prurient interest.
The one-page, three paragraph, stipulation of facts stated the following:
“The Overland Park Police Department was contacted by the Federal Bureau of Investigations regarding an investigation of Jonathan Nelson and possession of child pornography. The FBI Cyber Division was investigating the pornography website known as ‘Little Virgins'. It was discovered that Jonathan Nelson had purchased a membership to this website.
“On November 6, 2007 FBI Special Agent Angie Wilson and Detective Houlahan contacted Jonathan Nelson at his home in Johnson County, Kansas. Jonathan Nelson admitted purchasing a membership, for less than $50.00, to the ‘Little Virgins' website in the summer of 2005. He stated that he believed that the site was legal because of a disclaimer that the website conformed to laws of the United States and because the previews he saw did not appear sexually explicit. He admitted he downloaded approximately 200 sequential images of children between the ages of 5 and 15. The children were nude or partially clothed and in sexually suggestive positions. He disclosed he had been sexually aroused by females 12 years of age and older.
“Computer and memory cards were collected from Nelson's home. These items were examined by the Heart of America Regional Computer Forensic Laboratory. At least 48 of the images were determined to be children under 18 years of age in sexually suggestive poses. Officers determined that Nelson possessed the aforementioned computer images while he resided in Johnson County, Kansas between June 1st, 2005 and November 6th, 2007.”
After the trial court reviewed the stipulated facts and the five photographs, it found Nelson guilty of one count of sexual exploitation of a child. Later, Nelson was sentenced to 32 months' imprisonment.
Did the State Present Sufficient Evidence to Convict Nelson of Sexual Exploitation of a Child?
Nelson first argues that the State failed to present sufficient evidence “to prove the persons depicted in the photographs were younger than 18 years of age.” The State, however, disagrees and argues that it presented sufficient evidence because the stipulation of facts stated that the persons depicted in the photographs were under the age of 18.
“ “ ‘When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030(2011).
In determining whether there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983); see also State v. Naramore, 25 Kan.App.2d 302, 321–27, 965 P.2d 211,rev. denied 266 Kan. 1114 (1998) (expert testimony that defendant physician's treatment was within reasonable health care protocols insufficient to uphold murder and attempted murder convictions).
Moreover, a verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. The evidence need not exclude every other reasonable conclusion or inference. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008); see Kuxhausen v. Tillman Partners, 291 Kan. 314, 320, 241 P.3d 75 (2010). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom.” McCaslin, 291 Kan. at 710. The circumstances utilized to infer guilt must be proved and cannot be inferred or presumed from other circumstances. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
In this case, the trial court decided this case based, in part, on stipulated facts and, in part, on five photographs. When a case is decided on stipulated facts, an appellate court has de novo review. State v. McCammon, 45 Kan.App.2d 482, 488, 250 P.3d 838,rev. denied 292 Kan. 968 (2011); State v. Downey, 27 Kan.App.2d 350, 362, 2 P.3d 191,rev. denied 269 Kan. 936 (2000). Nevertheless, when a trial judge, sitting as a trier of facts in a criminal case, makes a judgment involving a real conflict in the evidence in the sense that reasonable persons might honestly vary in their conclusion, an appellate court generally will not reweigh the evidence and will review all the evidence and consider it in the light most favorable to the State. Thus, we separate the trial court's determination of an ultimate fact involving a real conflict in the evidence and the trial court's determination of an ultimate fact involving a stipulation of facts and apply the appropriate standard to each component.
K.S.A. 21–3516(a) sets out six different forms of conduct that constitute sexual exploitation of a child. K.S.A. 21–3516(a)(2), the prohibited conduct relevant here, prohibits the following:
“[P]ossessing any visual depiction, including any photograph, film, video picture, digital or computer generated image or picture, whether made or produced by electronic, mechanical or other means, where such visual depiction of a child under 18 years of age is shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender, the child or another.”
To support his first sufficiency argument, Nelson relies on State v. Perez–Rivera, 41 Kan.App.2d 579, 203 P.3d 735 (2009). Nelson maintains that “ Perez–Rivera stands for the proposition that there must be evidence to support the determination of a person's age.... The ages ‘assigned’ to the persons in the images were not directly corroborated by any evidence in the record.”
Nelson's reliance on Perez–Rivera is misplaced. In Perez–Rivera, the defendant was convicted of felony domestic battery. On appeal, the defendant argued that the State presented insufficient evidence to support his domestic battery conviction because it failed to present any evidence to show that the victim—the defendant's wife—was 18 years of age or older when the alleged battery occurred. See K.S.A. 21–3412a(c)(l) (defining family or household member as “persons 18 years of age or older who are spouses, former spouses, parents or stepparents ...”). The State argued that it presented circumstantial evidence to satisfy the age requirement of K.S.A. 21–3412a because there was an inference that the victim was at least 18 years old as she had been married to the defendant for 2 1/2 years when the incident occurred and based on the victim's appearance and demeanor at trial. The Perez–Rivera court rejected the State's argument and held that the State had failed to present sufficient evidence to convict the defendant because it did not present any evidence to show that the victim was at least 18 years old when the alleged domestic battery occurred. 41 Kan.App.2d at 583. The Perez–Rivera court reasoned:
“Simply put, the jurors could not make an inference concerning Wendy's age based on their personal knowledge or observations; a juror's inference can only be based on evidence presented at trial. Because the State failed to put on evidence to show Wendy was 18 years old when the incident occurred, the defendant's conviction for domestic battery must be reversed.” 41 Kan.App.2d at 583.
Unlike Perez–Rivera where the jurors could not infer the victim's age based solely on their personal knowledge or observations, the trial court here determined the age of the girls in the photographs based on evidence presented at trial and on Nelson's own statements. At trial, the State entered the stipulated facts and the five photographs into evidence. Under the stipulated facts, Nelson admitted that he downloaded “approximately 200 sequential images of children between the ages of 5 and 15.” The five photographs selected by the State were among the 200 photographs downloaded by Nelson and were the same photographs presented at Nelson's preliminary hearing. After the State read the stipulated facts into the record and sought to admit the five photographs into evidence, Nelson asked whether the photographs were the same as those used during the preliminary hearing. Specifically, Nelson asked, “Based on your analysis—based on the forensics laboratory analysis, they said five are clearly child pornography, and those are the five; correct?” The State responded, “Yes,” and the photographs were then entered into evidence.
There was a real conflict involving the five photographs as to: (1) whether the photographs depicted children under the age of 18 in a sexually explicit way in violation of K.S.A. 21–3516(b)(1); (2) whether the photographs depicted lewd exhibition of genitals or pubic area of children within the scope of definition of sexually explicit conduct; and (3) whether Nelson possessed the photographs with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest.
During the trial, Nelson impliedly conceded to the trial court that the girls depicted in the five photographs were under the age of 18:
“THE DEFENDANT: Your Honor, I'd like to make it clear that I don't consider the images that have just been admitted to you—that they're sexually explicit, that there was any element of scienter concerning the sexual explicitness. I'll accept they were actually children. It hasn ‘t been proved, but I will accept it.” (Emphasis added.)
Our Supreme Court has defined a stipulation as “ ‘an argument, agreement, admission or concession made in judicial proceedings by the parties thereto or their attorneys.” ’ [Citations omitted.]” Morrison v. Hurst Drilling Co., 212 Kan. 706, 709, 512 P.2d 438 (1973). When viewed in the light most favorable to the State, Nelson's statements at trial could be construed as a concession that the girls depicted in the photographs were children, that is, that the girls in the photographs were under the age of 18. When Nelson's concession is coupled with the State's stipulated facts and the five photographs entered into evidence, the trial court properly determined that the girls were under the age of 18 based on this evidence. Thus, when viewed in the light most favorable to the State, the State presented sufficient evidence to show that the girls depicted in the photographs were under the age of 18.
Next, Nelson argues that the State failed to present sufficient evidence to show that the five photographs entered into evidence depicted sexually explicit conduct. Nelson maintains that because the stipulated facts contained the phrase “sexually suggestive” instead of the “sexually explicit” language under K.S.A. 21–3516(a)(2), his conviction must be reversed. K.S.A. 21–3516(b)(l) defines “sexually explicit conduct” as follows:
“ ‘Sexually explicit conduct’ means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sadomasochistic abuse for the purpose of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person.”
Although the stipulated facts contained the phrase “sexually suggestive” instead of the phrase “sexually explicit,” Nelson's argument that his conviction must be reversed based on the stipulated facts is disingenuous because the State also entered five photographs into evidence. Therefore, the trier of fact (in this case the court) could determine whether the five photographs were sexually explicit and did not have to rely merely on the language in the stipulation of facts. Consequently, we will focus on the pictures themselves instead of the language contained in the stipulation of facts.
The five photographs entered into evidence generally fall into the category of lewd exhibition because they show images depicting young girls' exposed genitals or pubic area. See K.S.A. 21–3516(b)(1).
Because several of the photographs entered into evidence at Nelson's bench trial depicted lewd exhibition of genitals and pubic area, they satisfy the “sexually explicit” requirement under K.S.A. 21–3516. The trial court properly determined that several of the photographs depicted children under age 18 in sexually explicit ways. Thus, when viewed in the light most favorable to the State, there was sufficient evidence to show that Nelson possessed photographs depicting several minors' exposed genitals or pubic area and that they were lewd exhibition of the minors' genitals or pubic area within the scope of definition of sexually explicit conduct.
Finally, Nelson argues that the State failed to present sufficient evidence to show that he possessed the five photographs with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest. Specifically, Nelson maintains that “the stipulated fact that [Nelson] ‘had been’ aroused by girls 12 years of age and older at some unspecified time was not sufficient proof that at the time he was in possession of these five images, he was actually aroused by them.” Although the State concedes that there was no direct evidence that Nelson possessed the five photographs with the intent to arouse or satisfy his sexual desires or to appeal to his prurient interest, it argues that the trial court correctly ruled that circumstantial evidence established Nelson's intent.
The State did present sufficient circumstantial evidence to show that Nelson possessed the photographs with the intent required under K.S.A. 21–3516(a)(2). Although Kansas appellate courts have not expressly ruled that possession of nude photographs alone is sufficient circumstantial evidence to prove intent under K.S.A. 21–3516, more than one Kansas appellate court has implied such. See State v. Liebau, 31 Kan.App.2d 501, 505, 67 P.3d 156 (“[w]hile we can assume under the facts of this case that Liebau made and possessed the videotapes with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest ...”), rev. denied 276 Kan. 972 (2003); see also State v. Coburn, 32 Kan.App.2d 657, 663–64, 87 P.3d 348 (adopting the Liebau court's rationale, which included the assumption that the defendant possessed the material with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest.), rev, denied 278 Kan. 848 (2004).
When Nelson's possession of the photographs is coupled with his admission in the stipulated facts that “he had been sexually aroused by females 12 years of age and older,” an inference can be made that he possessed the photos with the intent required under K.S .A. 21–3516(a)(2). The website's name, “Little Virgins,” further supports this inference. Because Nelson admitted that he had been aroused by young girls and that he had purchased a membership for the “Little Virgins” website, a strong inference can be made that he downloaded the pictures from the website with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest.
Because we view the evidence in the light most favorable to the State, the State met its burden to show that Nelson possessed the photographs with the intent to arouse or satisfy his sexual desires or appeal to his prurient interest.
Nelson also seems to argue that K.S.A. 21–3516(a) is unconstitutional because it lacks a scienter element for the age of the person depicted. In particular, Nelson states that “[t]he constitutionality of a statute such as the one at issue in the instant case is seriously in doubt if it is bereft of a scienter requirement as to the age of the person depicted. “[A]ppellate review of the constitutionality of a statute is a question of law over which we exercise unlimited review.” State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 451, 172 P.3d 1154 (2007). In Kansas, a statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and the duty to do so. State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009); Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 817, 207 P.3d 1055 (2009). Although no Kansas case has expressly addressed the merits of Nelson's argument, our Supreme Court has implicitly stated that Nelson's constitutional argument carries little weight when the material is pornographic. See State v. Zabrinas, 271 Kan. 422, 427, 24 P.3d 77 (2001) (After defendant argued for the first time on appeal that K.S.A. 21–3516 was unconstitutional because it lacked a scienter requirement for the age of the child depicted, the court declared: “[B]ased on the clearly pornographic nature of all the material viewed, the consideration of the [defendant's] scienter contention is not necessary here.”). In other words, because the material viewed on appeal was clearly pornographic, the defendant's scienter argument lacked merit. Likewise, the five photographs depicted in this appeal are pornographic. As a result, K.S.A. 21–35I6(a) is constitutional.
Did Nelson Knowingly and Voluntarily Waive His Right to a Jury Trial?
Next, Nelson argues that his conviction must be reversed because the record does not show that he knowingly and voluntarily waived his right to a trial by jury. The State argues that because Nelson failed to raise this argument below, he is barred from raising it on appeal. Alternatively, the State argues that the trial court did not err in finding that Nelson knowingly and voluntarily waived his right to a jury trial.
Thus, to address the merits of Nelson's jury trial waiver issue, we first must determine if we have jurisdiction to decide this issue. To support its argument, the State relies on State v. Luna, 271 Kan. 573, 576–77, 24 P.3d 125 (2001). In Luna, our Supreme Court ruled that the defendant's jury trial waiver issue had not been properly preserved for appeal because the defendant had not raised it at the trial court. The Luna court cited the general rule that constitutional grounds asserted for the first time on appeal are not properly before the appellate court for review. Then, without further analysis, the Luna court declared: “Under the circumstances, we conclude the waiver of the jury trial issue is not properly before us, nor was it properly before the Court of Appeals.” 271 Kan. at 577.
Thus, the State maintains that this court is barred from reaching the merits of Nelson's jury trial waiver argument because of Luna 's binding precedent. Nevertheless, the State's argument is misplaced because our court has been consistent in allowing this issue to be raised for the first time on appeal. See, e.g., State v. Duncan, 44 Kan.App.2d 1029, 1037, 242 P.3d 1271 (2010); State v. Bowers, 42 Kan.App.2d 739, 740–41, 216 P.3d 715 (2009); State v. Dean, No. 105,682, 2012 WL 1450441, at *2–3 (Kan.App.2012) (unpublished opinion), petition for rev. filed May 21, 2012; State v. Hosier, No. 104,425, 2011 WL 4031541, at *l–2 (Kan.App.2011) (unpublished opinion); State v. Harred, No. 102,089, 2010 WL 4668327, at *3 (Kan.App.2010) (unpublished opinion). For instance, our court stated the following in Bowers:
“Generally, even constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. [Citation omitted.] There are, however, exceptions to this general rule, including: ... (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights.... [Citation omitted.]
“This court has noted ‘[t]here is no more fundamental right in the United States than the right to a jury trial.’ [Citation omitted.] There can be little doubt, therefore, that the consideration of the denial of a right to a jury trial is necessary to prevent the denial of a fundamental right.” 42 Kan.App.2d at 740.
Consequently, to be consistent with previous court precedent, we will address whether Nelson knowingly and voluntarily waived his right to a jury trial.
“The question of whether a criminal defendant voluntarily waived his right to a jury trial is a question of fact, and, on appeal, this court reviews the record to determine whether substantial competent evidence supported the district court's finding.” ' State v. Bland, 33 Kan.App.2d 412, 415, 103 P.3d 492,rev. denied 279 Kan. 1008 (2005). But because the facts in this case are not disputed, the question of whether Nelson knowingly and voluntarily waived his right to a jury trial is reviewed de novo. See State v. Duncan, 291 Kan. 467, 470, 243 P.3d 338 (2010).
The Sixth and Fourteenth Amendments to the United States Constitution, as well as § 10 of the Kansas Constitution Bill of Rights, guarantee a criminal defendant the right to a jury trial. The constitutional right to a jury trial is triggered when the defendant is facing potential imprisonment for an offense exceeding 6 months. State v. Sykes, 35 Kan.App.2d 517, 523, 132 P.3d 483,rev. denied 282 Kan. 795 (2006). In this case, there is no question that Nelson had a constitutional right to a jury trial because Nelson was charged with sexual exploitation of a child and sentenced to 32 months in prison.
Because the right to trial by jury is constitutionally grounded, waiver of the right must be strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975); see K.S.A, 22–3403(1); K.S.A. 22–3404(1). The test for determining the validity of a jury trial waiver is if the waiver was knowingly and voluntarily made, and the waiver of the right to a jury trial will not be presumed from a silent record. 216 Kan. at 589. To provide additional safeguards against involuntary waiver and to minimize uncertainty in determining whether the defendant knowingly and intelligently waived the right to a jury, the Irving court held: “[F]or a criminal defendant to effectively waive his right to a trial by jury, the defendant must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record.” 216 Kan. at 590.
Nelson concedes that he orally waived his right to a trial by jury on the record in open court. The record supports Nelson's concession. Before Nelson's bench trial, the court expressly informed Nelson that he had a right to a jury trial. Because Nelson wanted to clarify which five photographs the State planned to enter into evidence, the trial court and Nelson had a detailed discussion about his right to a jury trial. The relevant portion of the transcript reads as follows:
“[DEFENDANT NELSON]: But [the trial court] also asked if [it] is going to determine the facts, and the fact is the images are everything in this case. And when I—the five images that I looked at before, fine. The appellate court looks at those images. I have no problem with that. Those are the images that are going to be determined. That should be in the stipulation of facts should it not?
“[TRIAL COURT]: Are those the five images?
“[THE PROSECUTOR]: Yes, I am planning on making that part of the record.
“[DEFENDANT NELSON]: And I have looked at them. I have seen the five images....
“[TRIAL COURT]: Hang on, Mr. Nelson. Mr. Nelson, hang on. We're talking about whether or not you are going to waive your right to a trial by jury....
“[TRIAL COURT]: Okay. Understanding all that do you want to waive your right to a jury or not?
“[Defendant Nelson continues to argue the facts of the case.]
“[TRIAL COURT]: Hang on. Hang on. You are losing me here. Are you agreeing to the stipulated facts or not?
“[DEFENDANT NELSON]: No, I'm agreeing to the stipulated facts. I am simply
“[TRIAL COURT]: Are you waiving your right to have this case heard by ajury of your peers?
“[DEFENDANT NELSON]: Yes if you guys
“[THE PROSECUTOR]: Judge, I'm not going to be comfortable proceeding if it is going to be a qualified waiver.
“[THE COURT]: That is what I am asking.”
After further discussion and explanation, Nelson agreed to waive his right to a jury trial when he stated, “I waive my right to a jury.” The record and this colloquy show that the trial court and Nelson discussed in open court Nelson's right to a trial by jury. Nelson replied orally on the record in open court that he waived his right to a jury trial and wanted to have a bench trial. This evidence indicates that Nelson knew of his right to a jury trial and agreed to waive it in open court. Nelson's waiver in open court on the record generally is sufficient to show that his waiver was knowing and voluntary. See Dean, 2012 WL 1450441, at *4 (citing Irving, 216 Kan. at 590).
Ignoring his open court waiver, Nelson instead argues that his waiver was not knowingly and voluntarily made because he “incorrectly understood that his case would be presumptive probation if he went to bench trial instead of jury trial.” Moreover, Nelson argues that the trial court incorrectly told him that his case was not a presumptive prison case, when in actuality—based on his criminal history and the crime charged—the underlying facts did present a presumptive prison case.
Nelson's jury trial waiver argument is flawed. When determining if a defendant has knowingly and voluntarily waived his or her right to a trial by jury, “that determination is not made in a vacuum but must be based upon the facts and circumstances in each case. State v. Clemons, 273 Kan. 328, 340, 45 P.3d 384 (2002). Here, Nelson argues in part that his waiver was not knowingly or voluntarily made because he “incorrectly understood that his case would be presumptive probation if he went to bench trial instead of jury trial.” But a review of the record does not support Nelson's argument. On November 10, 2009, the trial court conducted a hearing to determine if Nelson would be allowed to represent himself at trial. At the hearing, Nelson asked the court if his status would be presumptive probation if he agreed to waive his right to a jury and proceed to a bench trial on stipulated facts. The relevant portion of the transcript reads as follows:
“[DEFENDANT NELSON]: Could we still have a stipulated bench trial? My understanding is if we had a stipulated bench trial because it doesn't use up resources of the Court and it doesn't inconvenience the witnesses, that 1 would be presumptive probation. Is that not true?
“[TRIAL COURT]: Well, that isn't true. Assuming you have a criminal history of less than—of nothing other than misdemeanors, it is what we call a border box case if you are convicted of a [severity] level 5 crime. That means there is no presumption in favor of a prison sanction or against a prison sanction.... It would be up to the Court to decide whether or not certain criteria are met that are themselves a little bit complicated, but basically that there are therapeutic resources available in the community that would favor a non-prison sanction; that the public safety would not be compromised by a non-prison sanction; that those were available to you and ought to be ordered. But there isn't a presumption in favor of probation on a Level 5 case.
“Now, if the State recommends probation on a border box case, then certainly that is something I will consider. But you should not go forward assuming you are going to get probation on a case no matter what happens because that isn ‘t a guarantee I will make you.” (Emphasis added).
When the underlying facts of this case are viewed as a whole, they indicate that the trial court did not misinform Nelson about his potential sentence. Nelson thought that his status would be presumptive probation for sentencing purposes if he waived his right to a jury trial and proceeded to a bench trial under stipulated facts. The trial court, however, expressly told Nelson that this was not true. Even if Nelson's case was a presumptive prison case the trial court's statement here could not have affected Nelson's decision to waive his jury trial because the trial court expressly told him that his case was not a presumptive probation case. Moreover, Nelson did not raise an objection to his jury trial waiver at any time after he waived his right to a trial by jury. The underlying facts here simply do not present the silent record situation where our court generally has reversed and remanded for a new trial. See State v. Larraco, 32 Kan.App.2d 996, 1001, 93 P.3d 725 (2004). (“If the record is silent, a waiver of a constitutional right will not be presumed.”) As a result, Nelson did knowingly and voluntarily waive his right to a trial by jury.
Affirmed.
* * *
ATCHESON, J., concurring.
The procedural posture of this case and the record below cast a shadow over the proper standard of review this court should apply in reviewing Defendant Jonathan Nelson's conviction for one count of sexual exploitation of a child in violation of K.S.A. 21–3516. Whatever the correct standard, there was sufficient evidence to support the conviction, so I concur in affirming the judgment.
The State contended photographic images on Nelson's computer depicted girls under 18 years of age appearing in sexually explicit ways that violated K.S.A. 21–3516(a)(2). Representing himself, with standby counsel, Nelson agreed to a bench trial on stipulated facts. At the trial, the State offered a factual narrative and five photographs as evidence. The Johnson County District Court found Nelson guilty.
This court has held that a de novo standard applies to appellate review of the sufficiency of the evidence to support a conviction in a bench trial on stipulated facts. State v. McCammon, 45 Kan.App.2d 482, 488, 250 P.3d 838,rev. denied 292 Kan. 968 (2011); State v. Downey, 27 Kan.App.2d 350, 362, 2 P.3d 191,rev. denied269 Kan. 936 (2000). The standard makes sense. When the facts are stipulated, the district court neither makes credibility determinations nor weighs other conflicting evidence. In short, there are no witnesses and no factual disputes when everything is admitted by stipulation. The district court simply applies the stipulation to the statutory elements of the offense and decides if those elements have been proven beyond a reasonable doubt. That is essentially a question of law. And an appellate court can engage in the same exercise just as insightfully as the district court.
The district court record here is not a model of clarity as to the scope of the stipulation. It plainly extends to the words on paper, as the majority notes. But neither those words nor the discussion at the trial are clear about the admission of the photographs. I take the photographs to be part of the stipulation, since no formal evidentiary foundation was laid for them and they were not really offered independent of the stipulation. On that basis, I would give the defendant the benefit of the ambiguous record and assume the photographs were included in the stipulation. If that's correct, appellate review would be de novo, requiring the panel to find the stipulated facts and the photographic evidence sufficient to prove Nelson guilty beyond a reasonable doubt.
The panel, of course, has reviewed the appellate record, including the photographs. Based on that review, I am convinced beyond a reasonable doubt the State presented evidence establishing Nelson's guilt of one count of sexual exploitation of a child. So I join in the judgment affirming his conviction, and I concur in the majority's overall analysis of why the evidence conforms to the statutory elements of the offense.
The more difficult question is what standard of review ought to be applied if the photographs were not part of the stipulation but were offered and admitted separately in the bench trial as what amounts to contested evidence. The photographs are immutable in the sense they depict what they depict. Neither side offered expert testimony from, say, a pediatrician or an anatomist as to the ages of the girls. At least some of the photographs were of girls who obviously looked to be significantly younger than 18 years old, obviating the need for expert testimony to establish that fact as part of the State's case-in-chief. Nelson, of course, offered no countervailing evidence. In a criminal case tried to the court, should the age of the persons or the determination of whether they are shown in “sexually explicit” ways within the meaning of the statute be treated as fact issues subject to review for substantial evidence or as legal conclusions subject to de novo review when the only relevant evidence is undisputed? I could discern no easy answer to that question. But it is a question that need not be resolved in this case because under either standard the record evidence requires this court to affirm Nelson's conviction.