Opinion
110,467.
03-27-2015
STATE of Kansas, Appellee, v. Ronald PACK, Appellant.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ronald K. Pack appeals his convictions by a jury of two counts of rape of a 9–year–old girl. Pack raises alleged trial errors and sentencing errors. Pack argues the trial court erred by: (1) denying his motion for a psychiatric evaluation of the victim; (2) denying his motion to suppress because the consent to search was involuntary; (3) allowing a verdict form that listed the guilty option above the not guilty option, (4) refusing to give a jury instruction on avoiding sympathy and favoritism; and (5) a combination of these errors resulting in cumulative error. Regarding sentencing, Pack argues Jessica's Law should be declared unconstitutional under both the Kansas and United States Constitutions and the trial court erred in denying his motion for departure. We affirm.
On July 7, 2011, the State charged Pack with two counts of rape of E.F. Prior to trial, Pack filed a motion to suppress claiming his consent to search his house was involuntary. He also filed a motion to have a psychological evaluation conducted on E.F. because of questions about her credibility. The trial court held a full evidentiary hearing and denied both motions.
Pack does not challenge the sufficiency of the facts in this case, but he continues to maintain his innocence. Pack and his longtime girlfriend, Patricia Wylie, lived across the street from Scott and Lisa Cyr. Lisa had two daughters from a previous marriage, 9–year–old E.F. and 6–year–old A.F. Wylie's daughter Rhonda and Rhonda's 6–year–old daughter, Gabriel, often stayed with Pack and Wylie. E.F. and A.F. called Pack, “Ronnie”, and called Wylie, “grandma.” E.F. testified they were both like grandparents. E.F. and A.F. spent a lot of time at Pack's house playing with Gabriel.
E.F. testified that in January 2011, Pack told E.F. to come inside his house while A.F. and Gabriel continued to play in the snow. Pack told E.F. to come into his bedroom because he had a checker board game. Pack told E.F. to lie down and take off her snow clothes because she was tracking snow in the house. Pack took off E.F.'s pants and took something out of the night stand. E.F. testified it was a massager-type of thing and he plugged it in and it rumbled. E.F. testified that Pack put the massager inside her private area. He would take it out and put oil on it with a Q–Tip and then put it back inside her. E.F. testified Pack was wearing a robe, but that she could see his private area.
E.F. testified this occurred a second time in March or April 2011. She was wearing shorts and a T-shirt this time. E.F. and A.F. were playing with Gabriel again. E.F. said she was talking with Pack in his kitchen and she was scratching her back. Pack offered to put lotion on her back and told her to go into his bedroom. Pack had E.F. lay down in the same manner. E.F. testified she was scared and Pack told her that if she told anyone, they would both be in a lot of trouble. E.F. said he used the massager again and did the same thing to her except that he did not use any oils this time. E.F. said Pack was wearing a robe again and that she could see his private area. E.F. told Shawnee County Sheriff's Detective Keith Allen that during the second time, Pack told her he was doing an experiment to “try and get [her] toes to curl.” E.F. testified the situations would stop when she got up and left the bedroom. E.F. testified it was not until July 2011 that she told her mom about what Pack had done because she was afraid for her sister when she saw Pack whispering to A.F. She did not want the same thing to happen to A.F.
Lisa and Scott called the police, and Wichita Police Officer Jonathan Estrada spoke with E.F. E.F. was taken to the hospital for a sexual assault examination and an interview with Det. Allen at the Wichita Police station. At trial, E.F. identified the massager and oils that Pack used on her. E.F. was cross-examined at trial concerning inappropriate things she may have learned from the neighborhood girl, E.V. Lisa Cyr had told E.F. she was not allowed to spend time with E.V. anymore.
Karen Wilson–Diehl, a forensic nurse examiner, testified concerning E.F.'s examination and E.F.'s statements that Pack had put a massager inside her vagina and had rubbed oils on the outside of her vagina. She said it happened in January 2011 and again in March or April 2011. Det. Allen also testified to E.F.'s statements concerning the type and date of Pack's contact with E.F. and use of the massager. Shelly Steadman testified concerning the DNA evidence received from both E.F. and Pack. Steadman testified that from the evidence obtained from the massager, E.F. could not be excluded as a major contributor to the DNA profile.
Pack presented the testimony of Dr. Robert W. Burnett to challenge the interviews and examinations performed on E.F. The defense called Jay D. Sutter to discuss Pack's work record during the time of the offenses. The defense called Michael Baker, Pack's co-worker, to testify that Pack was a person with high integrity and how he would trust Pack with any member of his family. Ronda Hogan, Wylie's daughter, testified about her and her daughter Gabriel's association with Pack and how Gabriel played with E.F. and A.F. all the time. Wylie testified on behalf of Pack and their long-term relationship. Wylie testified about their sexual relationship and Pack's erectile dysfunctional problems for several years prior to 2011. Wylie testified about the vibrators and massagers they had in their bedroom. Wylie also testified concerning her consent to search the house and how it was conducted by the police officers.
The jury convicted Pack on both counts. His motion for a new trial and motion for acquittal were denied. The trial court also denied Pack's request for a departure to the sentencing grid and then a durational departure of that sentence. The court also denied Pack's motion to find his presumed sentence under Jessica's Law to be unconstitutional under the constitutions of both Kansas and the United States. The court sentenced Pack to two life sentences (hard 25) in accordance with Jessica's Law, K.S.A.2010 Supp. 21–4643. Enacted in 2006, Jessica's Law provided a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years for the rape of a child under 14 years of age. K.S.A.2010 Supp. 21–3502 ; K.S.A.2010 Supp. 21–4643. Pack appeals.
Pack first argues compelling reasons existed to justify a psychiatric evaluation of E.F. and the trial court abused its discretion by denying the evaluation. The court found E.F.'s veracity was not sufficiently called into question and there was possible corroborating DNA evidence. However, the court stated the motion was not purely frivolous as it would be if the court found it to be just a fishing expedition.
When examining whether the trial court's denial of a psychological evaluation is proper, we review for an abuse of discretion. A trial court abuses its discretion only when no reasonable person would take the view adopted by the court. State v. Sellers, 292 Kan. 346, Syl. ¶ 1, 253 P.3d 20 (2011).
A psychiatric evaluation of a complaining witness in a sexual abuse case is appropriate when the defendant can show the totality of the circumstances demonstrate compelling reasons for the evaluation. See State v. Berriozabal, 291 Kan. 568, Syl. ¶ 4, 243 P.3d 352 (2010). In determining whether compelling circumstances exist, a district court considers the following nonexhaustive list of factors: (1) whether there is corroborating evidence of the complaining witness' version of the facts; (2) whether the complaining witness demonstrates mental instability; (3) whether the complaining witness demonstrates a lack of veracity; (4) whether similar charges by the complaining witness against others are proven to be false; (5) whether the defendant's motion for a psychological evaluation of the complaining witness appears to be a fishing expedition; and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth. State v. McCune, 299 Kan. 1216, 1231, 330 P.3d 1107 (2014).
Applying these above listed six factors known as the Gregg factors (State v. Gregg, 226 Kan. 481, 489–90, 602 P.2d 85 [1979] ), Pack does not argue E.F. demonstrated mental instability or that she had made similar allegations against others that were proven to be false. Instead, he argues E.F. demonstrated a lack of veracity, the presence of corroborating evidence was weak, the motion was not a fishing expedition, and E.F. was never questioned about whether she knew what it meant to tell the truth. In his motion, Pack only alleged there were questions concerning E.F.'s veracity, there was limited corroborating evidence, and an evaluation was necessary for the trial court to be able to judge E.F .'s competency to testify.
At the hearing on the motion for psychological examination, Scott Cyr, E.F.'s stepfather, testified that before they called the police he wanted to verify some of the facts with A.F. because of the severity of the allegations and to make sure it was not a “fish story.” They also discussed E.F.'s involvement with an older neighborhood girl, E.V. On cross-examination, Cyr said that it was not that E.F. told lies, but that she tended to ramble on and give a lot more details than may be necessary. He said E.F. did not exaggerate any more than a normal child. Jake Lawson, a private detective hired by Pack's former employer, spoke with Cyr. Cyr told Lawson that E.F. had exaggerated about issues in the past, but the “tenor” of the comment about a “fish story” was to verify facts prior to informing law enforcement.
Reviewing the totality of the circumstances, we conclude that the district court did not abuse its discretion. Pack's allegations resemble the allegations of defendants in cases in which our Supreme Court has upheld a trial court's refusal to order an evaluation. See, e.g., State v. Stafford, 296 Kan. 25, 40–41, 290 P.3d 562 (2012) (declining to find abuse of discretion when victim failed to disclose sexual abuse in response to broadly asserted questions); State v. Sprung, 294 Kan. 300, 316–17, 277 P.3d 1100 (2012) (declining to find abuse of discretion despite evidence victim engaged in dishonest conduct unrelated to accusations charged); State v. Price, 275 Kan. 78, 88, 61 P.3d 676 (2003) (finding no compelling reason to justify psychological examination of victim when evidence indicated victim made untruthful statements but statements were unrelated to contact with defendant and victim made no other false allegations of sexual abuse).
Under these circumstances, we conclude the trial court did not abuse its discretion in denying Pack's motion to compel a psychiatric evaluation. E.F.'s veracity was never seriously called into question. A district court rarely abuses its discretion in refusing to order a psychological examination. See Berriozabal, 291 Kan. at 581 (citing Gregg, 226 Kan. at 489 ). This is not one of those cases.
Pack next argues the trial court erred in denying his motion to suppress. Pack contends his consent for police officers to search his house was involuntary because it was obtained in an inherently coercive environment. Pack timely objected to the voluntariness of the consent at trial.
In reviewing the granting or denial of a motion to suppress evidence, appellate courts use a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The parties agree that the facts in this case are uncontested as to the search. When the material facts to a district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. 296 Kan. at 485.
The State bears the burden of proof for a suppression motion. The State must prove to the district court the lawfulness of the search and seizure. K.S.A. 22–3216(2) ; State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009). Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011). Here, the State is asserting Pack's consent to the search as the exception to the warrant requirement. The State has the burden of establishing the scope and voluntariness of the consent to search. State v. Ransom, 289 Kan. 373, 380, 212 P .3d 203 (2009).
For a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied. See United States v. Guerrero, All F.3d 784, 789–90 (10th Cir.2007); State v. Moore, 283 Kan. 344, 360, 154 P.3d 1 (2007). “Consent is voluntary if it is the product of free and independent will.” State v. Thompson, 37 Kan.App.2d 589, 593, 155 P.3d 724 (2007).
Contrary to Pack's assertion, the facts now before us are not comparable to those in Thompson. The Thompson court noted that the officers entered Thompson's home without a warrant or permission and took him to a patrol car for further investigation. Here, the detectives entered Pack's home only after Pack consented. They did not interview him inside a patrol car. They merely made requests to search his house in a calm manner and obtained a written consent.
The facts in the present case are more like those in State v. Tatum, 40 Kan.App.2d 846, 196 P.3d 441 (2008), in which KBI agents conducted a knock-and-talk regarding complaints of drug activity. Tatum answered the door and stepped out on his porch to speak to the officers. The officers asked for Tatum's consent to search the premises. The officers were in plain clothes and did not display weapons. They spoke in a conversational tone. They assured Tatum that he would not go to jail that night. After 5 to 10 minutes, Tatum consented to the search. The Tatum court found that Tatum had voluntarily consented to the search. 40 Kan.App.2d at 857–59.
As in Tatum, there is substantial competent evidence that Pack voluntarily consented to the search. Officer Estrada, a uniformed Wichita police officer, spoke with E.F. and her mother before walking across the street to Pack's house. He and another officer knocked on the door, and Wylie answered. Wylie invited the officers inside. Officer Estrada asked Pack if there was somewhere private they could talk due to the nature of the allegations. Officer Estrada and Pack went to Pack's bedroom. The other officer and Wylie stayed in the living room. Officer Estrada informed Pack of the allegations. Officer Estrada asked Pack if he would come to the station to speak with detectives. Pack agreed. Back in the living room, Officer Estrada asked both Pack and Wylie for permission to search the house. They agreed and signed individual waivers to search. Officer Estrada testified he did not threaten, promise, or coerce them to sign the waivers. Pack left with Officer Estrada. Wylie remained with the other officer. Other officers arrived to conduct the search. Wylie testified that she had no problem that night with the officers searching their bedroom and bathroom.
The consent and written waivers executed by Pack and Wylie were valid. We find no error in the trial court's ruling on the motion to suppress.
Next, Pack argues the verdict form denied his right to a presumption of innocence because it placed the option of guilty first and the option of not guilty underneath the guilty option. Pack's argument is without merit.
Two cases decided by our Kansas Supreme Court have rejected a similar argument concerning the verdict form—PIK Crim. 4th 68.060 and PIK Crim. 4th 68.070 provides similar forms. Our Supreme Court has approved a similar verdict form. See State v. Wilkerson, 278 Kan. 147, 158–59, 91 P.3d 1181 (2004) ; State v. Wesson, 247 Kan. 639, 652, 802 P.2d 574 (1990), cert. denied 501 U.S. 1236 (1991) (where guilty blank preceded not guilty blank, no prejudice to accused). Pack has not attempted to distinguish either Wilkerson or Wesson and we are duty bound to follow those decisions. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014) (The Court of Appeals is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position.). Further, a defendant is presumed innocent and the jury was so instructed. The purpose of the trial is to determine if the accused is guilty. Jury Instruction No. 6 specifically instructed the jury: “The State has the burden to prove Mr. Pack is guilty. Mr. Pack is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.” The verdict form was not erroneous.
Next, Pack argues the trial court erred in refusing to give his proposed no-sympathy jury instruction. At trial, Pack requested the fallowing proposed jury instruction, which originally appeared at PIK Crim.3d 51.07: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” The district court declined to give the instruction, finding that appellate courts generally disapprove of such an instruction and it should be used only in unusual circumstances.
When the district court refuses to give a requested instruction, an appellate court reviews the evidence in a light most favorable to the party requesting the instruction. State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009). An appellate court “examine[s] the jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.” State v. Williams, 42 Kan.App.2d 725, 726, 216 P.3d 707 (2009), rev. denied 290 Kan. 1104 (2010). A district court “is required to instruct the jury on the law applicable to the defendant's theories if there is evidence to support the theories.” State v. Baker, 281 Kan. 997, 1004, 135 P.3d 1098 (2006).
The no-sympathy instruction, PIK Crim.3d 51.07, has been removed from the Pattern Instructions for Kansas and is disapproved for general use. Baker, 281 Kan. at 1004–05 ; see State v. Rhone, 219 Kan. 542, 545, 548 P.2d 752 (1976). A district court should give the no-sympathy instruction only under very unusual circumstances where the court believes that the jury may be influenced by sympathy or prejudice. State v. Williams, 299 Kan. 1039, 1044, 329 P.3d 420 (2014) (citing Baker, 281 Kan. at 1004 ).
Pack relies on Rhone, 219 Kan. 542. However, the facts in this case are not analogous to those in Rhone and are not sufficiently unusual to require the district court to give a no-sympathy instruction. Considered as a whole, the instructions given by the district court fairly and accurately instructed the jury on the law and instructed the jury to weigh the credibility of each witness and base its verdict on the evidence admitted and the law given in the instructions. The trial court did not err by refusing to give the requested no-sympathy jury instruction. See State v. Reser, 244 Kan. 306, 316–17, 767 P.2d 1277 (1989).
Because we do not find any of Pack's alleged errors have any merit, there is no error to cumulate. See State v. Coones, 301 Kan. 64, 85, 339 P.3d 375, 391 (2014).
In his first sentencing issue, Pack argues the trial court erred in denying his motion to declare Jessica's Law unconstitutional under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
Section 9 of the Kansas Constitution Bill of Rights provides: “All persons shall be bailable by sufficient sureties except for capital offenses, where proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” Under § 9, “a punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”State v. Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010).
The Eighth Amendment which has been extended to the states under the Fourteenth Amendment to the United States Constitution, see Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Amendment “does not require strict proportionality between a crime and a sentence; rather, it forbids only an extreme sentence that is grossly disproportionate to the crime.” State v. Woodard, 294 Kan. 717, 721, 280 P.3d 203 (2012). “An Eighth Amendment challenge to a term-of-years sentence as disproportionate and therefore cruel and unusual falls into one of two general classifications:” (1) “challenges that argue the term of years is grossly disproportionate given all the circumstances in a particular case” (case-specific), and (2) “cases in which the court implements the proportionality standard by certain categorical restrictions” (categorical). Gomez, 290 Kan. 858, Syl. ¶ 4.
When evaluating a case-specific proportionality challenge to a sentence under the Eighth Amendment and § 9 of the Kansas Constitution Bill of Rights, an appellate court applies a bifurcated standard of review: “ ‘[W]ithout reweighing the evidence, the appellate court reviews the factual underpinnings of the district court's findings under a substantial competent evidence standard, and the district court's ultimate legal conclusion drawn from those facts is reviewed de novo.’ [Citations omitted.]” State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013) ; see Woodard, 294 Kan. at 720 (A case-specific proportionality challenge under the Eighth Amendment and § 9 requires a district court to make factual findings and draw conclusions of law.).
In contrast, an appellate court applies an unlimited standard of review to a categorical proportionally challenge to a sentence. State v. Ruggles, 297 Kan. 675, 679, 304 P.3d 338 (2013) ; see State v. Mossman, 294 Kan. 901, 925, 281 P.3d 153 (2012) (A categorical proportionality analysis under the Eighth Amendment does not require a review of the district court's factual findings because only questions of law are implicated.).
For the most part, Pack's challenges to his two life sentences necessarily question the constitutionality of Jessica's Law. “ ‘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. Ochs, 297 Kan. 1094, 1106, 306 P.3d 294 (2013). Given the circumstances of his case, Pack's life sentences are not disproportionate under § 9 of the Kansas Constitution Bill of Rights or the Eighth Amendment to the United States Constitution.
Whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights because of its length is controlled by the following three-part test:
“(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.” State v. Freeman, 223 Kan, 362, 367, 574 P.2d 950 (1978).
See also State v. Newcomb, 296 Kan. 1012, 1016–17, 298 P.3d 285 (2013) (No single factor controls, each prong should be considered, but “one factor may weigh so heavily that it directs the final conclusion.”).
The Kansas Supreme Court has identified the following steps for evaluating an Eighth Amendment case-specific challenge:
“ ‘[A] court must begin by comparing the gravity of the offense and the severity of the sentence. This analysis can consider a particular offender's mental state and motive in committing the crime, the actual harm caused to the victim or to society by the offender's conduct, any prior criminal history, and a particular offender's propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare the [offender's] sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, the sentence is cruel and unusual.’ [Citation omitted.]” Seward, 296 Kan. at 983.
The analysis under the Freeman factors for the Kansas constitutional challenge applies with equal force to the first of the classifications for an Eighth Amendment challenge, i.e., a case-specific challenge. See State v. Ross, 295 Kan. 424, 429, 284 P.3d 309 (2012). The first Freeman factor requires the district court to consider the nature of the offense and the character of the offender. We find the following support for the first Freeman factor:
Degree of Danger Present to Society—The trial court found that even though Pack had no prior criminal history, he presents a danger to society based on his conviction for two violent offenses.
Facts of the Crimes—Pack was convicted of sexually violent crimes. Although there were no significant physical injuries, the trial court found the injuries were massive to E.F. and overwhelming for her.
Violent or Nonviolent Nature of the Offenses—The two rapes of a 9–year–old girl are without question physically and emotionally violent crimes, even in the manner perpetrated by Pack.
Extent of Culpability for the Injury Resulting—Trial court stated that it could only speculate as to the long-term ramifications of this on E.F., but it hoped the injuries could be mitigated over time.
The second and third Freeman factors have been addressed by the Kansas courts concerning Jessica's Law under a rape conviction. The second Freeman factor requires the district court to compare the punishment under Jessica's Law for rape with punishments imposed in Kansas for more serious offenses. Addressing this factor, the trial court found that society, the Kansas Legislature, and the courts of this state have recognized this crime to be one of extreme sexual violence and the presumed sentence is constitutional.
The third Freeman factor requires the district court to compare the penalty under Jessica's Law for rape with punishments in other jurisdictions for the same offense. The court in State v. Berriozabal, No. 108,303, 2014 WL 1707417 (Kan.App.2014) (unpublished opinion), petition for rev. filed May 23, 2014) discussed how child sex crimes are among the most serious crimes in the state because of the victims. The court found Jessica's Law was not cruel and unusual regarding the rape sentence in that case. 2014 WL 1707417, at * 4–14. The same applies here. We agree with the sentencing court that based on the analysis and reasons set forth in the cases like Newcomb and Seward Pack's sentences were not cruel or unusual punishment as the relates to § 9 in the Kansas Constitution Bill of Rights.
An Eighth Amendment case-specific challenge requires the sentencing court to compare the gravity of the offense and the severity of the sentence. We find the following factors present in this comparison:
Offender's Mental State and Motive in Committing the Crimes–Pack's mental state and motive during his crimes were those of an adult, purely geared towards self-gratification, with the end goal being his pleasure at the cost of the E.F.'s innocence.
Actual Harm Caused to the Victim or To Society by the Offender's Conduct—The trial court stated it could only speculate on the long-term ramifications of this on E.F., but it hoped the injuries could be mitigated over time.
Any Prior Criminal History—Pack's criminal history was minimal and did not include prior violent offenses.
Offender's Propensity for Violence—Pack's propensity for violence was exhibited by the fact there was an age and physical disparity between he and E.F.
The Kansas Supreme Court rejected both a § 9 and an Eighth Amendment case-specific challenge to a Jessica's Law sentence in Seward, 296 Kan. 979. Seward pled guilty to rape and aggravated criminal sodomy for acts committed against his stepdaughter and received concurrent hard 25 life sentences under Jessica's Law.
Under the first Freeman prong, the sentencing judge found that Seward “held a position of authority and trust” over his victim and told her not to tell anyone about the abuse. He caused her physical pain and injury. Rape and aggravated criminal sodomy are violent offenses. His victim was between 8 and 10 years old at the time of the sexual abuse. Regarding the violent nature of the offenses, Seward argued that the “ ‘State did not present evidence that [he] used a weapon to commit the crimes, that he kidnapped or otherwise terrorized [the victim].’ “ 296 Kan. at 986. Our Supreme Court rejected that argument, finding that “[s]imply because Seward could have committed these acts more violently does not mean they are not violent in their most basic form, particularly when committed against an especially vulnerable victim.” 296 Kan. at 986. Finally, our Supreme Court noted: “The legislative intent behind Jessica's Law was to remove perpetrators of sexual crimes against children from society. [Citation omitted.] Because of high rates of recidivism among such offenders, the State ‘has a particularly compelling interest in using incarceration as a means of protecting its youth.’ [Citation omitted.]” 296 Kan. at 986–87.
Under the second Freeman prong, Seward, as does Pack, argued he would have been better off from a sentencing perspective if he had murdered his victim. Our Supreme Court reiterated:
“ ‘This argument suffers from several flaws. In the: first place, it assumes that murderers necessarily receive more lenient sentences in Kansas than violators of Jessica's Law. This is not the case. In fact, the Kansas Criminal Code sets out a list of transgressions that constitute capital murder, which is an off-grid offense. K.S.A. 21–3439. Capital murder is subject to punishment by death. K.S.A. 21–4624. The penalty for homicide in Kansas may thus be much more severe than the penalties under Jessica's Law. See K.S.A. 21–4638 ; K.S.A. 21–4643. The fact that the penalty for certain categories of homicide may be less severe than the penalties for other, nonhomicide crimes does not automatically render the penalties for the nonhomicide crimes unconstitutional. There is no strict linear order of criminal activity that ranks all homicides as the most serious crimes and all nonhomicide; crimes as less serious, with the corresponding penalties necessarily ranking in diminishing durations of imprisonment.
“ ‘Furthermore, as the State points out, Jessica's Law is not the only Kansas statute that provides for more severe penalties for nonhomicide crimes than for certain categories of homicide. Compare, e.g., rape, K.S.A. 21–3502, and aggravated kidnapping, K.S.A. 21–3420, which are severity level 1 offenses, with reckless second-degree murder, K.S.A. 21–3402(b), which is a severity level 2 offense.’ Woodard, 294 Kan. at 723–24.” Seward, 296 Kan. at 987–88.
Under the third Freeman prong, Seward argued that the vast majority of states have less severe Jessica's Law provisions than Kansas and Kansas' version of Jessica's Law is one of the harshest such laws in the nation. Our Supreme Court noted that it had already rejected Seward's broad-brush attack on the entire Kansas Jessica's Law sentencing scheme, and concluded that it was “ ‘not out of line with other jurisdictions' Woodard, 294 Kan. at 725.” 296 Kan. at 989. Our Supreme Court concluded that Kansas does not have the harshest penalties in the nation for the crimes of rape and aggravated criminal sodomy committed by an adult against a child younger than 14. 296 Kan. at 990.
Ultimately, our Supreme Court rejected Seward's § 9 challenge because none of the Freeman factors weighed in favor of the conclusion that his hard 25 life sentences for rape and aggravated criminal sodomy violated the Kansas Constitution. 296 Kan. at 990 ; see Newcomb, 296 Kan. at 1017–19 (following Seward to reject a § 9 challenge to two consecutive hard 25 life sentences under Jessica's Law; Newcomb was convicted of rape and aggravated indecent liberties for his conduct with his 8–year–old stepdaughter); see also Ochs, 297 Kan. at 1105–11 (following Seward and Newcomb to reject a § 9 challenge to a hard 25 life sentence under Jessica's Law; Ochs was convicted of the rape of an 11–year–old girl; the district court found that Ochs enjoyed a special position of trust with his victim [brother-like figure] and was babysitting her at the time of the abuse).
Turning to Seward's Eighth Amendment case-specific challenge, our Supreme Court considered the facts of the case and found that Seward had failed to meet his threshold burden of demonstrating that his sentences were grossly disproportionate to his crimes. Our Supreme Court found Woodard to be instructive:
“In that case, we held that defendant Philip Woodard's three hard 25 life sentences under Jessica's Law for aggravated indecent liberties with his twin stepchildren were not grossly disproportionate to his crimes. 294 Kan. at 722. The aggravated indecent liberties charges stemmed from his lewd fondling or touching of the children over the course of 5 years. The children were approximately 7 years old when the activity began. 294 Kan. at 719.
“As mentioned before, Seward's crimes and the activity that gave rise to his convictions are at least as serious as those before us in Woodard. His victim's age was similar to the victims' ages in Woodard, and the total duration of the abuse was comparable. But rape and aggravated criminal sodomy are substantially more invasive than lewd fondling and can cause greater physical injury. See State v. Gideon, 257 Kan. 591, 614, 894 P.2d 850 (1995) (rape, aggravated criminal sodomy extremely invasive). In fact, there was evidence of physical pain and injury to Seward's stepdaughter in this case.” Seward, 296 Kan. at 991.
Our Supreme Court did not address the remaining elements of the case-specific analysis “[b]ecause a threshold comparison of Seward's crimes and sentences d [id] not lead to an inference of gross disproportionality.” 296 Kan. at 991.
Pack was convicted of 2 counts of rape, a crime of extreme sexual violence, as well as being extremely invasive. His victim was a neighborhood 9–year–old girl. He enjoyed a special position of trust with his victim (like a grandfather). He abused her twice. He placed her in an atmosphere of fear by telling her that if she told anyone they would both be in a lot of trouble. In light of Seward, Newcomb, and Ochs, the trial court correctly held that given the circumstances of Pack's case, his sentences are not disproportionate under § 9 or the Eighth Amendment. Pack's sentences are not categorically disproportionate under the Eighth Amendment either.
The Kansas Supreme Court has identified the following steps for evaluating an Eighth Amendment categorical challenge:
“ ‘[A] court first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by the standards elaborated by controlling precedents and by the court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose, the court must determine in the exercise of its own independent judgment whether the punishment in question violates the United States Constitution. The judicial exercise of independent judgment requires consideration of the culpability of the category of offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question. In this inquiry the court also considers whether the challenged sentencing practice serves legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation.’ [Citation omitted.]” Seward, 296 Kan. at 984.
An Eighth Amendment categorical challenge requires the trial court to determine whether there is a national consensus against the sentencing practice at issue and whether the punishment in question violates the United States Constitution. Kansas is one of 33 states that have enacted similar laws to address the harm caused by violent sex offenses against children. See Berriozabal, 214 WL 1707417, at *9. The legislatures of various states implemented laws similar to Jessica's Law beginning in 2005 through 2008. Rhode Island amended its statute in 2006 to include a 25 to life sentence for first-degree child molestation. See Berriozabal, 2014 WL 1707417, at *11.
The Kansas Supreme Court rejected a categorical challenge to Jessica's Law in Ruggles, 297 Kan. 675. Ruggles pled guilty to two counts of aggravated indecent liberties with a child. He was over the age of 18 when he solicited a child under the age of 14 to engage in lewd fondling or touching in violation of K.S.A. 21–3504(a)(3)(B). He received two consecutive hard 25 life sentences. On appeal, Ruggles argued that a hard 25 life sentence for an adult offender who merely solicits a child under the age of 14 to engage in any lewd fondling or touching is categorically disproportionate and violates the proscription against cruel and unusual punishment of the Eighth Amendment. Our Supreme Court disagreed. 297 Kan. at 684–88.
After a thorough review of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (sentence of life without parole for juvenile nonhomicide offenders violates the Eighth Amendment), and Miller v. Alabama, 567 U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (sentence of life without parole for juveniles committing murder constitutes violates the Eighth Amendment), the Ruggles court noted that
“in order for an individual to successfully raise a categorical challenge to a sentencing practice, the individual must satisfy the second prong of a categorical proportionality analysis, i.e., he or she must show that, based on the characteristics of the class of offender he or she belongs to and the nature of the offense at issue, the sentencing practice is disproportionate with the offender's culpability.” 297 Kan. at 684.
Our Supreme Court found that Ruggles could not meet this prong:
“Unlike the defendant in Graham —who belonged to a category of offenders (i.e., juveniles) traditionally considered as having a lesser culpability for criminal actions and, thus, less deserving of the harshest penalties—there is nothing distinguishable about the category of offender to which Ruggles belongs (i.e., adult offenders) that would warrant special consideration. The law clearly presumes that people 18 years of age or older have reached a level of maturity that renders them fully culpable for the crimes they commit.” 297 Kan. at 685.
The Ruggles court held that the Eighth Amendment did not categorically prohibit a hard 25 life sentence for an adult offender convicted of indecent liberties with a child by soliciting a child to engage in lewd fondling or touching in violation of K.S.A. 213504(a)(3)(B). See State v. Gonzalez, No. 107,375, 2013 WL 5610146, at *13–15 (Kan.App.2013) (unpublished opinion) (following Ruggles to hold that the Eighth Amendment does not categorically prohibit hard 25 life sentences for adult convicted of aggravated indecent liberties with a child in violation of K.S.A. 21–3504 [a][3][A] and aggravated criminal sodomy in violation of K.S.A. 21–3506 [a][1] ), rev. denied 301 Kan. –––– (January 15, 2015); State v. Waisner, No. 107,728, 2013 WL 3970177, at *5–9 (Kan.App.2013) (unpublished opinion) (following Ruggles to hold that the Eighth Amendment does not categorically prohibit a hard 25 life sentence for adult offender convicted of indecent liberties with a child by engaging in lewd fondling or touching in violation of K.S.A. 21–3504 [a][3][A] ), rev. denied 299 Kan. (April 15, 2014).
In light of Ruggles, the trial court in Pack's case correctly held that the Eighth Amendment does not categorically prohibit a hard 25 life sentence for an adult convicted of rape of a child under 14 years old. Pack's sentences do not constitute cruel and/or unusual punishment.
Last, Pack argues the trial court abused its discretion in denying his motion for a downward durational or dispositional departure. Pack based his departure motion on the fact that he had a criminal history score of I, he had a good employment record, he was honorably discharged from the Navy, he had the support of family and friends, and his advanced age made him less of a risk to the community. He contends these factors take his case beyond the status quo and out of the ordinary such that denying his departure motion was an abuse of discretion.
Jessica's Law provides that a first-time offender who is 18 years of age or older and convicted of rape as defined in K.S.A.2010 Supp. 21–3502(a)(2) (sexual intercourse with a child under the age of 14) must be sentenced to a life sentence with a mandatory minimum of not less than 25 years unless, “the judge finds substantial and compelling, following a review of mitigating circumstances, to impose a departure.” K.S.A. 21–4643(a)(1)(B), (d). K.S.A. 21–4643(d) provides a nonexclusive list of mitigating circumstances a district court may consider when deciding whether to depart from the statutorily prescribed sentence:
“(1) The defendant has no significant history of prior criminal activity;
“(2) the crime was committed while the defendant was under the influence of extreme mental or emotional disturbances;
“(3) the victim was an accomplice in the crime committed by another person, and the defendant's participation was relatively minor;
“(4) the defendant acted under extreme distress or under the substantial domination of another person;
“(5) the capacity of the defendant to appreciate the criminality of the defendant's conduct or to conform the defendant's conduct to the requirements of law was substantially impaired; and
“(6) the age of the defendant at the time of the crime.”
An appellate court reviews a district court's denial of a motion for a departure from a Jessica's Law sentence for an abuse of discretion. State v. Floyd, 296 Kan. 685, 687, 294 P.3d 318 (2013). An abuse of discretion occurs when a judicial action: (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the court's view; (2) is based on an error of law; or (3) is based on an error of fact. 296 Kan. at 687.
“A district court, however, is not obligated to depart simply because a mitigating factor exists. Rather, a district court has the discretion to either grant or deny the request. In exercising this discretion, a district court first reviews the mitigating circumstances and then weighs those circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure.” State v.. Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014).
See State v. Florentin, 297 Kan. 594, 598–99, 303 P.3d 263 (2013) ( “[M]itigating circumstances do not per se constitute substantial and compelling reasons for departure”; “ ‘substantial’ “ means “ ‘something that is real, not imagined; something with substance and not ephemeral,’ “ and “ ‘compelling’ “ means “ ‘the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary’ ”).
In Pack's case, the district judge said:
“With regard to the sentence itself, the Court is going to impose the sentence, the presumed sentence in the case as requested by the District Attorney. This was a situation and I don't know, I'm not going to make any formal finding that there was a formal fiduciary relationship between the two in the sense that the Court would have to do if it was making some sort of a departure determination under the Kansas sentencing guidelines because this is an imposition of the presumed sentence. Give me just a second.
....
“.... With that being said, again, pretty much gone over the basics, the prosecutor has gone over the basics. I understand the family and Mr. Pack's friends and acquaintances have a very difficult time believing this happened. That's certainly understandable. There is certainly nothing in his criminal history or any other history that this Court is aware of that would indicate that he is a sexually violent person or that he's a predator, but the facts in the case and the finding in this case cause the Court to believe that there is a basis to impose the presumed sentence. And I don't find any substantial and/or compelling basis to depart from the presumed sentence. Specifically, I think there are some factors including Mr. Pack's service to his country, Mr. Pack's lack of any criminal history, his general character, good character reputation within the community and the fact that there is really no other information out there that indicates that he has been involved in prior criminal activity. And, again, those are all factors that the Court considers, but in this kind of situation those do not rise to the level of substantial and compelling factors to depart in this case.”
“[W]hile no two cases present the same combination of mitigating and aggravating circumstances, in several cases this court has affirmed a district court judge's denial of a motion for departure from a Jessica's Law sentence where the offender has cited mitigating factors such as the offender's lack of criminal history [and] the offender's age....” Florentin, 297 Kan. at 602 ; see State v. Roberts, 293 Kan. 1093, 1098, 272 P.3d 24 (2012) (affirming denial of Jessica's Law departure motion despite defendant's lack of criminal history and “his ‘diminished mental capacity and maturity’ ”); State v. Plotner, 290 Kan. 774, 780–81, 235 P.3d 417 (2010) (affirming denial of Jessica's Law departure motion despite defendant's claims he took responsibility for his actions, showed deep remorse, had no significant criminal record, and was relatively young at time crimes were committed). Furthermore, this court has affirmed the denial of a Jessica's Law departure motion where the district court found that the defendant's continuing course of sexual abuse of a family member over a period of time outweighed his lack of criminal history. See State v. Yarbrough, No. 108,096, 2013 WL 3791793, at *14–15 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (February 18, 2014).
It cannot be said that no reasonable person would agree with the district court's decision to deny Pack's departure motion, given he twice raped 9–year–old E.F. Therefore, Pack has failed to establish that the district court abused its discretion in considering the mitigating circumstances to determine whether substantial and compelling reasons warranted a departure. The trial court did not err by denying Pack's motion for a departure sentence.
Affirmed.