Opinion
No. 106,974.
2012-12-7
STATE of Kansas, Appellee, v. Roger Lee NICHOLS, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Roger Lee Nichols was convicted of aggravated criminal sodomy and aggravated indecent liberties with a child, but he claimed that the victims were lying. When testimony at trial revealed that one of the child victims had been in counseling, Nichols sought a mistrial because the State hadn't disclosed that the child was in counseling. Nichols asks that his convictions be set aside because a mistrial should have been declared.
But Nichols has failed to show that anything in the child's counseling records would have supported his case, and the State's duty to disclose evidence like this arises only if the evidence would be helpful to Nichols and significant enough to matter at trial. Nichols has not made those showings.
Nichols also makes two other claims on appeal. He argues that the sodomy offense as presented to the jury consisted of alternative means of committing the crime, and that the State didn't present evidence to support each means. But recent appellate decisions demonstrate that sodomy is not an alternative-means offense in the way Nichols argues. Nichols also argues that his sentence constitutes cruel and unusual punishment. But he did not make that argument in the district court in a way that's sufficient to raise the issue on appeal. We therefore affirm the district court's judgment.
Factual Background
Christina Williams dated Roger Nichols from 2003 to 2008. Williams has two children: M.G., born in 1998, and T.H., born in 2001. M.G. and T.H. called Nichols “Dad” even though he was not their biological father, and he was often left alone with the two girls. After the breakup, Nichols and Williams remained friends, and Nichols still interacted with M.G. and T.H.
On May 22, 2010, Williams overheard M.G.'s friend ask her over speakerphone, “Do you remember what your stepdad did to your sister?” When Williams questioned M.G. about this comment, M.G. told Williams that Nichols had done “adult things” to both M.G. and T.H. On further questioning by Williams, although the girls couldn't say how many times they were abused, they agreed that it happened “[a] lot,” and when Williams wasn't around. At that point, Williams called the police.
After police investigation, Nichols was charged with one count of rape, one count of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. The jury convicted Nichols of aggravated criminal sodomy of T.H. and of aggravated indecent liberties with both M.G. and T.H. The jury acquitted Nichols of raping M.G.
At trial, Williams testified that M.G. had been undergoing counseling for depression since early 2010—before Williams was aware of the sexual abuse. Nichols moved for a mistrial because the State had not disclosed that M.G. was in counseling; Nichols claimed that this omission prejudiced his trial rights. If he had been aware of this information, Nichols argued, he would have subpoenaed the counseling records “because the information in those counseling sessions and any potential denials or recantation that occurred could have been absolutely pivotal to this case.” The State admitted that it was aware of the counseling but never obtained the records because it did not feel they were necessary. The judge denied Nichols' motion for mistrial, finding no violation of any discovery orders.
M.G. testified that Nichols touched her chest and inserted his penis and fingers into her vagina on multiple occasions. M.G. also reported that Nichols either urinated or ejaculated on her back and in her mouth:
“[Nichols] said he was going to put lotion on my back. But it didn't feel like lotion. It was all warm and liquidy, and it started running. And—well, it pretty much felt like he was peeing on my back.
...
... [Another time, Nichols] told me that he was going to give me some candy, and then there was something in my mouth, and it was gross, and it was warm, and it was all liquidy, and I didn't know what it was ‘cause my face was covered up. And then I uncovered my face, and I started spitting it out. And then he said it was probably old candy.”
M.G. first remembered the abuse occurring in 2006, when she was 7 to 8 years old. According to M.G., this abuse happened “a lot,” over a long period of time, until she was 11 or 12 years old.
T.H. testified that Nichols touched her “bottom” or “butt” with his fingers on multiple occasions. Sometimes, Nichols' fingers penetrated her anus. When T.H. would scream, Nichols covered her mouth. T.H. did not believe that Nichols ever used his penis or other parts of his body to touch or penetrate her.
Nichols presented the testimony of several of his family members who claimed that M.G. and T.H. had admitted to lying about the abuse. Both M.G. and T.H. denied making these statements, maintaining that they never told anyone that the abuse hadn't happened. Nichols also testified in his own defense, denying that he ever sexually touched, exposed himself to, urinated on, or ejaculated on either M.G. or T.H.
After the jury's guilty verdicts, Nichols filed a motion for a departure sentence, arguing in part that K.S.A.2006 Supp. 21–4643 (known as Jessica's Law) was unconstitutional because it (1) mandated cruel and unusual punishment and (2) provided sentences that were disproportionate to other Kansas statutes covering the crimes of aggravated criminal sodomy and aggravated indecent liberties with a child. Nichols also argued several mitigating factors for the judge to consider in deciding whether to give Nichols a lighter sentence. In his written motion, Nichols did not cite or argue State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), in which the Kansas Supreme Court outlined three factors for analyzing cruel-or-unusual-punishment claims under the Kansas Constitution, but the State argued the three Freeman factors in its response.
At sentencing, the judge orally denied Nichols' motion for a departure sentence, making no findings on whether Jessica's Law was unconstitutional. The judge simply found that Nichols had not presented substantial or compelling reasons to depart from the “hard–25” life sentence on any of the three counts.
Nichols was sentenced to three hard–25 life sentences under the Jessica's Law statute, K.S.A.2006 Supp. 21–4643, with two of the counts to run consecutively. Nichols has appealed to this court.
Analysis
I. The District Court Did Not Abuse Its Discretion in Denying Nichols' Motion for a Mistrial Based on the State's Failure to Disclose the Fact That M.G. Was Undergoing Counseling.
Nichols' first argument is that the district court erred when it denied his motion for a mistrial. Because the State did not disclose the fact that M.G. was undergoing counseling, Nichols insists that this evidence casts doubt on all of Nichols' convictions, requiring reversal and remand for a new trial.
On appeal, we review a trial court's decision denying a motion for mistrial under an abuse-of-discretion standard. Judicial discretion is abused if the judicial decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594 (2012).
To determine whether the trial court's ruling was unreasonable or based on an error of law, we must review the State's duty to disclose evidence. Prosecutors have a positive duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment, regardless of the good faith or bad faith of the prosecution. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Warrior, 294 Kan. 484, Syl. ¶ 7, 277 P.3d 1111 (2012). The failure to meet this duty is generally called a Brady violation. We exercise unlimited review on appeal of a district court's determination as to the existence of a Brady violation, though we must give deference to the trial court's findings of fact. See Warrior, 294 Kan. 484, Syl. ¶ 13. To constitute a Brady violation, “(1) [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.” Warrior, 294 Kan. 484, Syl. ¶ 10.
Here, the fact that M.G. was in counseling came out on direct examination of her mother at trial. Both Nichols and the State were unaware of the contents of the counseling records. The State did not fail to comply with any discovery requests, so unless there was a Brady violation, there was no cause for a mistrial.
Nichols argues that the State either (1) suppressed the evidence in bad faith in order to obstruct the defense or (2) intentionally failed to disclose evidence that had a high probative value—an ability to prove or disprove an issue at hand—and could not have escaped the State's attention. But Nichols alleges no facts that show that the State acted in bad faith or must have known the evidence was probative. Nichols simply argues that the State was aware that M.G. was undergoing counseling and failed to disclose it. Nichols relies only on speculation to claim that the counseling records might show that M.G. was lying about the abuse.
We note too that there is no Brady violation when the information in question was available to the defendant through reasonable diligence. See State v. Wilson, 41 Kan.App.2d 37, 51, 200 P.3d 1283 (2008); United States v. Zagari, 111 F.3d 307, 320 (2d Cir.1997); Boorigie v. State, No. 101,030, 2010 WL 2816794, at *16 (Kan.App.2010) (unpublished opinion). Here, Nichols hired an investigator who spoke to some of the State's witnesses. During the investigation, Nichols could have discovered that M.G. was in counseling, and then he could have subpoenaed the records. Nichols could have obtained this information through reasonable diligence—the State certainly did not prevent Nichols from uncovering this evidence.
But even if the evidence had been suppressed or withheld by the State, Nichols has not shown that the contents of the counseling records were favorable to him or material to his defense—two of the three requirements for a Brady violation. See Warrior, 294 Kan. 484, Syl. ¶ 10. In fact, Nichols fails to argue either of these prongs of the Brady test.
Nichols cannot make these arguments because neither party was aware of the contents of the counseling records. Evidence is material only if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Warrior, 294 Kan. 484, Syl. ¶ 11. And “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Warrior, 294 Kan. 484, Syl. ¶ 11. Without knowing what information the counseling records contained, Nichols has no way to show that the records could have influenced the outcome of the trial. As the State argues, Nichols only asserts an unsupported hunch that that the counseling records could have been favorable to him and material to his defense.
The party claiming an error has the burden of designating a record that affirmatively shows the error. State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012); State v. Osterloh, No. 100,577, 2010 WL 445670, at *3 (Kan.App.2010) (unpublished opinion) (“Importantly, the record on appeal does not contain any of the discovery that is central to [the defendant's] complaints.”), rev. denied 291 Kan. 916 (2011). Hypothetically, M.G.'s counseling records could have bolstered Nichols' defense that M.G. and T.H. admitted to lying about the sexual abuse. But Nichols is unable to designate anything in our record to move that possibility from the realm of sheer conjecture to one of relevant assertion.
Nichols has failed to show the required elements of a Brady violation. Therefore, the district court did not abuse its discretion in refusing to grant a mistrial.
II. The Definition of Sodomy Did Not Create Alternative Means of Committing the Crime.
Nichols' next argument is that the jury instructions created an alternative-means situation and that the State didn't present evidence to support each alternative means.
For the charge of aggravated criminal sodomy, the jury was instructed that sodomy means “anal penetration, however slight, of a male or female by any body part or object,” This definition came verbatim from K.S.A. 21–3501(2). Nichols argues that this instruction created alternative means of committing aggravated criminal sodomy. The State presented evidence of anal penetration of a female by a body part. But because the State presented no evidence that there was also (1) anal penetration by any object or (2) anal penetration of a male, Nichols insists that his conviction must be vacated.
In an alternative-means case, the jury doesn't have to be unanimous as to the means by which the crime was committed as long as substantial evidence supports each means. State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010). The test for sufficiency of the evidence is whether, taking the evidence in the light most favorable to the State (since the jury ruled in its favor), a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Two recent Kansas Supreme Court cases are central to the analysis of Nichols' claim. In the first, State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), the court summarized the general rules for alternative-means analysis:
“[I]n determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters—options within a means—that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” Brown, 295 Kan. 181, 284 P.3d at 991–92.
To consider Nichols' argument, we must focus on what the court called the “actus reus,” which are the specific wrongful acts that constitute the conduct that has been made criminal by the statute at issue here, K.S.A. 21–3501(2) (defining sodomy).
The second Kansas Supreme Court case relevant here, State v. Burns, 295 Kan. ––––, 287 P.3d 261 (2012), considered that statutory subsection, K.S.A. 21–3501(2). In its entirety, that subsection forbids not only anal penetration, language we've already noted, but also oral contact or intercourse with an animal:
“ ‘Sodomy’ means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.” K.S.A. 21–3501(2).
Our Supreme Court determined that this definition “creates three alternative means of committing sodomy: (1) oral contact; (2) anal penetration; and (3) sexual intercourse with an animal.” Burns, Syl. ¶ 7.
In Burns, as here, only the second alternative—anal penetration—was at issue. Our Supreme Court concluded that the different methods set out in the statute for anal penetration did not constitute true alternative means: “Within the second alternative means of committing sodomy, the anal penetration charged here, the definition in K.S.A. 21–3501(2) only presents options within a means, that is, various factual circumstances that would prove the crime.” Burns, Syl. ¶ 8. The court specifically held that even though the statute prohibited penetration “by any body part or object,” the State didn't have to prove penetration by both a body part and an object, even though both were included in the jury instruction. Burns, slip op. at 17.
That directly negates one of Nichols' arguments—that the State's lack of proof of penetration by an object created an alternative-means problem. Nichols also suggests that the lack of anal penetration of a male, also part of the generic definition, presents an alternative-means problem. We see no logic in that position.
Nichols is correct that the State did not present evidence showing that every conceivable option by which anal-penetration sodomy could occur actually took place here. But the State was not required to present evidence of these circumstances because their inclusion in the statutory definition of sodomy does not create alternative means of committing the crime.
III. Nichols Did Not Preserve His Cruel–and–Unusual–Punishment Challenge for Appeal.
Nichols' final argument is that his sentence violates his right to be free from cruel and unusual punishment under the Kansas Constitution. The State counters that Nichols did not preserve this issue for appeal. (Despite Nichols' reference to the Eighth Amendment in the subject heading of this third issue in his brief, Nichols does not argue a violation of the United States Constitution in the body of his brief, so we do not address that possible claim.)
To determine whether a sentence is cruel or unusual, the district court must make legal and factual inquiries. State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012). An appellate court reviews the factual bases of the district court's findings under a substantial-evidence standard but reviews the ultimate legal conclusion without any deference to the district court. 294 Kan. at 720. Statutes are presumed to be constitutional and must be construed as constitutionally valid if there is any reasonable way to do so. 294 Kan. at 720.
When analyzing cruel-or-unusual punishment claims under section 9 of the Kansas Constitution Bill of Rights, Kansas courts consider three factors:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
See Woodard, 294 Kan. at 722. These factors are commonly known as the Freeman factors, based on the case in which they were adopted. Each of the Freeman factors should be considered, but one factor “ ‘may weigh so heavy that it directs the final conclusion.’ “ 294 Kan. at 720 (quoting State v. Ortega–Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 [2008] ).
We note these factors because a court's ability to consider them requires the development of a factual record. For that reason, the issue of cruel or unusual punishment will not be reviewed for the first time on appeal because it requires the district court's findings on the three-part Freeman test. State v. Naputi, 293 Kan. 55, 67, 260 P.3d 86 (2011).
Our Supreme Court did make an exception to this rule in State v.. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009), but the exception was a limited one. In Seward, the district court made no findings and conclusions on whether the defendant's sentence was cruel or unusual. But the defendant's constitutional arguments were mentioned during plea negotiations, included in his written motion for a downward-durational-departure sentence, and restated on the record at his sentencing hearing. 289 Kan. at 718. Although the district court's rejection of the defendant's constitutional arguments might be implied from the court's silence on the issue, silence does not provide a foundation for appellate review. 289 Kan. at 720. After noting that both the defendant and the district court shared responsibility for the absence of adequate findings and conclusions, the Kansas Supreme Court took the unusual step of remanding the case to the district court to make such findings and conclusions, but it emphasized that future defendants should not expect an appellate court to hear such an issue without factual findings in the district court:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge's duty under Rule 165, if necessary.” Seward, 289 Kan. at 721.
See also State v. Roberts, 293 Kan. 1093, 1097, 272 P.3d 24 (2012) (refusing to consider a cruel-and-unusual-punishment argument raised for the first time on appeal and refusing to remand to the district court to make findings when the defendant made no effort to raise the argument before the district court); State v. Gomez, 290 Kan. 858, 868, 235 P.3d 1203 (2010) (refusing to consider constitutional argument without adequate record).
The State insists that Nichols has not preserved this issue for appeal. Although Nichols briefly argued that his sentence would be cruel and unusual in his motion for a departure sentence, the district court did not address the issue at sentencing. The extent of the district court's findings at sentencing were that Nichols had not presented substantial or compelling reasons to depart from the hard–25 life sentence on any of the three counts.
Perhaps the closest precedent to Nichols' case is Naputi, 293 Kan. at 68. There, the defendant made a one-sentence argument in his motion for a departure sentence that Jessica's Law unconstitutionally mandated cruel and unusual punishment and only argued the general sentencing provisions of the statute. The Kansas Supreme Court held that the constitutionality of the defendant's lifetime postrelease supervision was never presented to the district court and would not be considered for the first time on appeal. 293 Kan. at 68. See State v. Levy, 292 Kan. 379, 385, 253 P.3d 341 (2011) (noting the warning in Seward that a remand for further findings was an exceptional situation and thereby finding that a constitutional challenge to Jessica's Law was not properly preserved for appeal).
Our Supreme Court did find a cruel-and-unusual-punishment argument preserved for appeal in State v. Raskie, 293 Kan. 906, 923–24, 269 P.3d 1268 (2012), even though the district court did not make adequate findings. The Raskie court found that the defendant made the effort to preserve the issue and “did more than make a brief statement in a motion.” 293 Kan. at 923. Specifically, the defendant (1) filed a motion to continue sentencing so that he could present his argument that his sentence was disproportionate and unconstitutional; (2) argued the three Freeman factors at sentencing; and (3) asked the court for more time to submit additional written arguments to preserve the issue for appeal. Raskie, 293 Kan. at 923–24. Although these efforts did not result in adequate findings for appeal, the Kansas Supreme Court remanded the case to the district court to consider the motion and make appropriate findings. 293 Kan. at 925–26.
Here, Nichols only cursorily argued in his departure motion that Jessica's Law mandated cruel and unusual punishment. Similarly, Nichols only briefly mentioned this argument when arguing for a departure at sentencing. On appeal, Nichols slightly claims he “preserved the issue by filing a motion to determine sentence unconstitutional.” But Nichols only filed a motion for a departure sentence—his motion did not seek invalidation of the statute. Although Nichols arguably addressed part of the first Freeman factor when he argued the lack of documented harm to the victims, he did so in the context of mitigating factors to support a departure sentence. See Freeman, 223 Kan. at 367. Similarly, although Nichols argued that his sentence was disproportionate compared to other Kansas statutes covering the same offenses, he did not argue the second Freeman factor—that his sentence was disproportionate compared to more serious crimes, such as homicide. See 223 Kan. at 367. Therefore, Nichols did not address the three Freeman factors, which determine whether a sentence violates the Kansas Constitution.
Nichols was sentenced on June 22, 2011—more than 20 months after Seward was published on October 2, 2009. 289 Kan. at 715. After Seward, Nichols was required to ensure that the district court's findings were sufficient if he wanted to preserve the issue for appeal. 289 Kan. at 721. Nichols failed to do so. He never filed a motion to invoke the judge's duties under Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246) to make additional findings, and Nichols never attempted anything more than a cursory cruel-and-unusual-punishment argument while seeking a departure sentence. Nichols' efforts to make the argument and create a record for appeal fell far short of the efforts made in Raskie, 293 Kan. at 923–24. Instead, Nichols' efforts closely resemble the facts of Naputi, where the defendant made only a cursory, unspecific argument that Jessica's Law mandated cruel and unusual punishment. 293 Kan. at 68.
Without adequate findings by the district court, this court cannot consider Nichols' constitutional challenge. Nichols failed to ensure that the district court made sufficient findings, and Nichols' arguments do not address the fundamental rule that a lack of specific findings and conclusions regarding a constitutional challenge leaves an appellate court with nothing to consider. Accordingly, we cannot consider Nichols' constitutional challenge.
The district court's judgment is affirmed.