State v. Bowen
299 Kan. 339
| Kan. | 2014Background
- Victim M.B., age 14, reported being raped by Terry L. Bowen and Kenneth Fredrick II, and that Lora Gay held her down; Bowen was charged with two counts of rape (one as principal, one as aider/abettor), aggravated criminal sodomy, aggravated kidnapping, and battery; jury convicted on rape (both counts), sodomy, and kidnapping; acquitted of battery.
- Bowen had prior sexual convictions (including solicitation of an 11-year-old and sexual battery of a 12-year-old); those convictions were later admitted at trial as propensity evidence under K.S.A. 60-455(d).
- Bowen’s preliminary hearing counsel previously had prosecuted Bowen on earlier charges; Bowen executed an on-the-record waiver at the preliminary hearing; counsel later withdrew when the State sought to introduce prior convictions at trial.
- During deliberations the jury sent a question about “confinement” to the court; the court, after conferring on the record with counsel, sent a written answer into the jury room via court personnel rather than reading it aloud in the defendants’ presence.
- District court sentenced Bowen as an aggravated habitual sex offender to life without parole on one rape count and concurrent terms on remaining counts, and included a no-contact order with the victim and codefendants; the State conceded the no-contact condition exceeded the court’s statutory authority.
Issues
| Issue | Bowen's Argument | State's Argument | Held |
|---|---|---|---|
| Conflict of interest at preliminary hearing | Bowen: his prelim counsel had prosecuted him earlier; waiver was insufficient and structural error requires automatic reversal | State: Bowen waived the conflict on the record; no contemporaneous conflict because State hadn’t yet sought admission of prior convictions | Court: Waiver on the record was effective; no structural-error reversal; claim fails under Mickens/Strickland framework |
| Admission of prior sex-crimes evidence (propensity) | Bowen: K.S.A. 60-455(d) should be limited by subsection (a), evidence was irrelevant/prejudicial or barred by K.S.A. 60-447 | State: Propensity evidence is permitted under 60-455(d); prior crimes were similar and probative; court limited presentation to journal entries and gave limiting instruction | Court: Admitting prior convictions was not an abuse of discretion; propensity evidence admissible and presentation mitigated prejudice; K.S.A. 60-447 claim not preserved |
| Aiding-and-abetting instruction (alternative means/unanimity) | Bowen: Instruction listed multiple ways to aid/abet, creating alternative means and unanimity problem under Timley | State: Aiding and abetting assigns responsibility rather than creating alternative means of committing rape | Court: Aiding and abetting is not an alternative means of committing the underlying offense; no unanimity error; conviction supported |
| Jury question answered by written note outside defendant's presence | Bowen: Statutory and constitutional rights violated (presence, public trial, impartial judge); seeks reversal as structural error | State: Procedure violated K.S.A. 22-3420(3) but any error was harmless; written answer’s content was not prejudicial | Court: Statutory right to be present was violated but harmless beyond a reasonable doubt under Chapman/Herbel factors; public-trial and impartial-judge claims abandoned for inadequate briefing |
| No-contact order as part of sentence | Bowen: No-contact condition is illegal when combined with an incarceration sentence and exceeds sentencing authority | State: Concedes error | Court: No-contact portion of lifetime postrelease supervision vacated as illegal per Plotner; remainder of sentence affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (constitutional standard for ineffective assistance of counsel)
- Mickens v. Taylor, 535 U.S. 162 (framework for conflicts-of-interest claims and when structural reversal applies)
- Cuyler v. Sullivan, 446 U.S. 335 (adverse-effect test for conflicts in joint representation)
- State v. Remmert, 298 Kan. 621 (propensity evidence admissible under 60-455(d) in sexual-offense prosecutions)
- State v. Timley, 255 Kan. 286 (alternative-means / jury-unanimity discussion)
- State v. Plotner, 290 Kan. 774 (no-contact order combined with incarceration can be an illegal sentence)