State v. Smyser
297 Kan. 199
| Kan. | 2013Background
- Smyser was convicted of aggravated criminal sodomy of his 7-year-old stepdaughter, K.S., in Marion County, Kansas, based on trial testimony and medical findings.
- K.S. described that Smyser engaged in anal penetration and touched her bottom; a nurse noted anal tears consistent with penetration, and K.S. testified to the acts.
- The State charged Smyser in April 2008; the jury found him guilty; the appeal was timely filed under K.S.A. 22-3601(b)(1).
- Smyser argued issues about alternative means, jury instructions, and sentencing, including electronic monitoring, no-contact orders, and BIDS fees.
- The district court imposed electronic monitoring and no-contact restrictions, and awarded BIDS attorney fees without fully addressing Smyser’s ability to pay.
- The Court of Appeals affirmed the conviction, vacated the electronic monitoring and no-contact provisions, and remanded for BIDS-fee reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alternative means under K.S.A. 21-3501(2) | Smyser argues the statute provides separate means (body part vs. object). | State contends those are means within a single act, not separate alternatives. | Alternative-means argument rejected; testimony supports anal penetration within a single means. |
| Reasonable doubt jury instruction | Smyser claims the instruction lowered the State’s burden, creating error. | State argues instruction was legally appropriate and not misleading. | Instruction found legally appropriate; no reversible error. |
| Electronic monitoring and no-contact as sentencing provisions | These provisions are impermissible sentencing dispositions. | State likely defends as permissible conditions. | Electronic monitoring and no-contact orders vacated as illegal sentence. |
| BIDS attorney fees and ability to pay | Court failed to weigh Smyser’s ability to pay before imposing BIDS fees. | Fees should be assessed, with discretion to weigh resources. | Fee order vacated and remanded for proper consideration of financial resources. |
Key Cases Cited
- State v. Burns, 295 Kan. 951 (2012) (analytical distinction: alternative means within a single means)
- State v. Beaman, 295 Kan. 853 (2012) (electronic monitoring and no-contact proceedings improper in sentencing)
- State v. Plotner, 290 Kan. 774 (2010) (no-contact order as part of sentencing improper)
- State v. Phillips, 289 Kan. 28 (2009) (BIDS fees; court may adjust based on ability to pay)
- State v. Robinson, 281 Kan. 538 (2006) (recorded findings required for fee assessments)
- State v. Williams, 295 Kan. 506 (2012) (clear-error standard for jury instruction challenges)
- State v. Herbel, 296 Kan. 1101 (2013) (instruction using 'any' not reversible when context supports accuracy)
- Beck v. State, 32 Kan. App. 2d 784 (2004) (Beck analysis on ambiguity of 'any' in instructions)
- State v. Plummer, 295 Kan. 156 (2012) (instructional framework and harmless-error standard)