State v. Wells, 290 P.3d 590

Wells and Stafford were jointly tried for rape, aggravated criminal sodomy, and aggravated endangering a child involving S.W., Wells’ minor daughter; issues align with State v. Stafford.
Jury convicted Wells on two counts of rape (off-grid under 21-3502(a)(2)), one count of aggravated criminal sodomy (off-grid under 21-3506(a)(1)), and one count of aggravated endangering a child; aggravated sodomy (oral) and anal sodomy were acquitted.
Unanimity instruction was given due to multiple potential underlying acts; prosecutor’s closing argued that acts could be found true on ‘at least one’ or ‘second time,’ potentially misstating law.
Cross-examination of S.W. about depth of penetration was limited; sexual-assault examiner testified there were typically no visible injuries months after penetration.
District court answered a jury question about ‘abets’ in writing after conference with counsel; Wells objected to a written answer rather than open court.
Wells challenged: improper prosecutorial argument, alternative means issue, cross-examination limitation, right to be present, cumulative error, departure-sentence denial, and parole eligibility.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct on unanimity	Prosecutor misstated unanimity for rape counts, prejudicing Wells.	Unanimity instruction properly applied; statements were within closing.	Prosecutor misconduct occurred but was harmless; no reversal.
Alternative means in aggravated sodomy (oral)	Language created two alternative means requiring super-sufficiency review.	Language describes a single means (oral contact of genitalia) not two alternatives.	No alternative-means error; no Wright-applicable reversal.
Limitation of cross-examination on penetration depth	Depth of penetration testimony would bolster credibility.	Cross-exam focused on relevance; depth test not probative given lack of injuries.	District court did not abuse discretion; testimony would have limited probative value.
Right to be present during jury question handling	Written answer violated presence at all critical stages.	Presence satisfied because defendant participated in discussing response; not required to read aloud.	No violation; writing answered the question with presence during discussion.
Cumulative error	Multiple errors together prejudiced Wells.	Only one minor error; not cumulatively prejudicial.	No cumulative error; fair trial preserved.
Parole eligibility after 25 years	Should be eligible after 20 years under 22-3717(b)(2).	Jessica’s Law requires 25-year minimum before parole for off-grid life sentences.	Parole eligibility fixed at 25 years; no error.

State v. Voyles, 284 Kan. 239 (2007) (unanimity required for multiple-acts cases)
State v. Bunyard, 281 Kan. 392 (2006) (misstating law in closing arguments not tolerated)
State v. Brown, 295 Kan. 181 (2012) (guidelines for determining alternative means in statutes)
State v. Burns, 295 Kan. 951 (2012) (interpretation of sodomy elements and alternatives)
State v. Urban, 291 Kan. 214 (2010) (statutory interpretation and alternative means principles)
State v. Engelhardt, 280 Kan. 113 (2005) (presence at all critical stages; confrontation/due process linkage)
State v. Coyote, 268 Kan. 726 (2000) (procedure for answering jury questions in writing with defendant present)
State v. Hyche, 293 Kan. 602 (2011) (parole eligibility overlap with off-grid sentences)
State v. Raskie, 293 Kan. 906 (2012) (prosecutorial misconduct and prejudice burden)