State v. Brown
244 P.3d 267
| Kan. | 2011Background
- Brown lived with Nakisha H. and her two daughters, M.H. and L.H., in autumn 2007.
- On November 3, 2007 Brown babysat the children; L.H. (age 10) alleged he woke her, took her downstairs, and made sexual advances.
- L.H. testified Brown pursued her, stated sexual comments, asked to touch her, and chased her when she tried to flee.
- L.H. reported the incident to her family and police; Sunflower House interviewed L.H. and videotaped the interview for trial.
- Brown was charged with attempted aggravated indecent liberties with a child and aggravated indecent solicitation; age was not included in amended informations.
- The jury convicted Brown and he was sentenced to life under Jessica's Law for Count I and 32 months for Count II; jurisdiction existed under 22-3601(b)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of prior consistent statements | Brown argues the statements bolstering L.H.'s testimony were improperly admitted. | Brown contends lack of objection at the relevant testimony preserves error for review. | Not preserved; admissible under 60-460(a) as prior statements of a testifying witness. |
| Voluntary intoxication instruction for specific intent crimes | Brown asserts intoxication negated intent, requiring an instruction. | Brown did not rely on intoxication as his theory of defense at trial. | Error not reversible; no instruction required given lack of preserved intoxication defense and evidence insufficiency. |
| Deadlock jury instruction | Emphasized language in Instruction No. 13 about undetermined charges could mislead. | Unclear impact if any on verdict; defense did not object to instruction. | |
| 0 | Allen-type instruction was error but not reversible under the circumstances. | ||
| Age as an element affecting Jessica's Law sentencing | Age needed to be proved for off-grid offenses under Apprendi-based analysis. | Age not properly instructed; sentence should reflect grid-offense sentencing if age is contested. | Sentence vacated and remanded for resentencing on the sentencing grid due to lack of sufficient age evidence. |
| Charging document sufficiency regarding defendant's age | Charging document failed to allege Brown's age for enhanced penalty. | Challenge to jurisdiction and essential element misstatement. | Conviction affirmed; charging documents adequate to inform and permit defense; jurisdiction preserved. |
Key Cases Cited
- State v. Johnson, 286 Kan. 824 (2008) (contemporaneous objection and cross-examination relevance; preservation rule)
- State v. Hollingsworth, 289 Kan. 1250 (2009) (contemporaneous objection rule; evidentiary appeals)
- State v. Gonzales, 289 Kan. 351 (2009) (defendant's charging information sufficiency and rights to fair trial)
- State v. Bello, 289 Kan. 191 (2009) (age element and Apprendi-type analysis; grid sentencing remand)
- State v. Morningstar, 289 Kan. 488 (2009) (age as an element; evidentiary standard for age finding)
- State v. Colston, 290 Kan. 952 (2010) (harmless error for omitted element when evidence is overwhelming)
- State v. Reyna, 290 Kan. 666 (2010) (harmless error analysis for omitted age element)
- State v. Salts, 288 Kan. 263 (2009) (deadlocked jury instruction error; not reversible)
- State v. Ellmaker, 289 Kan. 1132 (2009) (Allen-type instruction error; not reversible)