The opinion of the court was delivered by
A jury found Daniel Brown guilty of rape and aggravated indecent liberties with a child. The elements jury instructions did not include Brown’s age, but the jury answered in the affirmative to special questions on the verdict forms as to whether Brown was 18 years of age or older at the time the offenses were committed. In the process of sentencing Brown to two consecutive off-grid sentences of life imprisonment, with both having a mandatory minimum term of 25 years (hard 25), the journal entry of sentencing imposed lifetime electronic monitoring and lifetime postrelease supervision.
Brown appeals his convictions and sentences, claiming: (1) The district court erred by accepting the jury’s verdicts without first inquiring into their accuracy; (2) the district court erred in submitting foe element of age to foe jury in special questions on foe verdict forms; (3) there was insufficient evidence submitted to sus
Factual and Procedural Overview
In May 2010, 11-year-old J.D. was sleeping inside her home while her mother and stepfather, Brown, partied outside. According to J.D., sometime in the early morning hours she awoke when Brown entered her bedroom, laid down next to her, and placed his hand on her breast, underneath her clothing.
After Brown left for work the next morning, J.D. told her mother that Brown had come into her room the night before but did not provide any other details. When Brown returned home from work that day, he took J.D. to a nearby field to practice calling turkeys. When the two returned to the house, J.D. eventually told her mother that Brown had raped her at tire field. Her mother immediately took J.D. to the hospital, where law enforcement was summoned. That same evening, J.D. informed a pediatric sexual assault examiner that Brown had rubbed his saliva on J.D.’s vagina before penetrating it with his penis. A physical examination revealed injuries to J.D.’s vagina that were consistent with J.D.’s statement that a violent sexual act had recently taken place.
Brown was arrested and charged with one count of aggravated indecent liberties with a child and one count of rape. J.D.’s trial testimony was that after taking her to a field to practice turkey calling, Brown raped her while he stood outside the passenger door of the truck and she was lying across the front seat. J.D. related that Brown took something from his hand and placed it on his penis before effecting vaginal penetration.
At trial, Brown testified that he had lived in Muscotah, Kansas, since 1991 and had worked at Armstrong Tires for over 13 years. While Brown admitted to taking J.D. turkey calling, he denied raping her. Brown also denied entering J.D.’s room and placing his hand on her breast. Brown offered that he believed that J.D. had fabricated the story impheating him because J.D. was upset that Brown planned to divorce her mother.
The jury convicted Brown of rape and aggravated indecent liberties with a child. The court sentenced him to two consecutive terms of hard 25 life imprisonment.
Jury Instructions on the Element of Defendant’s Age
Brown challenges the elements instructions for both crimes because they did not tell the jury that it had to find that Brown was age 18 or older before it could convict him of the charged crimes. He contends that submitting the age element in special questions on the verdict forms meant that the jury would make its findings of guilt before determining the existence of the requisite age element, which in turn would prevent the jury from properly considering the age element in conjunction with the other jury instructions that guide the jury in weighing and evaluating evidentiary issues within a criminal trial.
Standard of Review
Brown initially objected to the elements instructions on the basis drat they failed to include his age as an element of each crime. When the district court explained that the age element was included on the verdict forms by special questions, as recommended
Analysis
Brown was charged with rape, in violation of K.S.A. 21-3502(a)(2), which defines rape as sexual intercourse with a child who is under 14 years of age. The statute also provides that rape, as described in subsection (a)(2), is an off-grid person felony when the offender is 18 years of age or older. K.S.A. 21-3502(c). “In other words, the statute defining rape makes a defendant’s age— 18 years or older—an element of the off-grid version of the crime.” State v. Portillo,
Brown was also charged with aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(3)(A), which is defined as “[a]ny lewd fondling or touching of tire person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both,” when the child is under 14 years of age. Similarly, K.S.A. 21-3504(c) provides that aggravated indecent liberties with a child is an off-grid person felony when the offender is 18 years of age or older. Consequently, the ages of both the victim and the defendant form an essential part of the elements of the off-grid versions of rape and aggravated indecent liberties with a child.
In State v. Bello,
“In Apprendi, tire Supreme Court clarified that merely because a state legislature places a sentence enhancing factor within the sentencing provisions of the criminal code does not mean that the factor is not an essential element of the offense. Apprendi [v. New Jersey], 530 U.S. [466, 495,120 S. Ct. 2348 ,147 L. Ed. 2d 435 (2000)]. If a ‘sentencing factor’ is used to increase a defendant’s sentence beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Apprendi,530 U.S. at 494 n.19; see Ring v. Arizona,536 U.S. 584 , 602,153 L. Ed. 2d 556 ,122 S. Ct. 2428 (2002).” Bello,289 Kan. at 199 .
See also State v. Brown,
Because the defendant’s age is an essential element of the off-grid crimes of rape and aggravated indecent liberties with a child, Brown was entitled to have the jury instructed on his age as part of the elements instructions. See State v. Richardson,
Some 40 years ago, in State v. Osburn,
“In view of the differences in our civil and criminal statutes relating to verdicts it is apparent the legislature intended to preserve tire time honored power of tire jury to return a verdict in a criminal prosecution in tire teeth of tire law and the facts. Therefore we hold that special questions may not be submitted to the jury for answer in a criminal prosecution. In general the only proper verdicts to be submitted in a criminal prosecution are 'guilty’ or ‘not guilty’ of tire charges.”211 Kan. at 255-56 .
When Brown’s case was tried, Osburn was binding precedent. Nothing drat has been presented here persuades us to revisit the rule prohibiting die use of special questions in criminal proceedings. In making that evaluation, we are cognizant of the unpublished Court of Appeals decision in State v. Cash, No. 107,007,
We discern that the Cash panel appears to have mischaracterized Osburns holding. The panel speaks of Osbum’s disfavoring special verdicts, when in fact Osbum clearly prohibits special questions in criminal proceedings. A special verdict “is one where the jury does not render a general verdict of guilty or not guilty, but simply finds certain facts and leaves the rest to the court.” Note, Beyond “Guilty” or “Not Guilty”: Giving Special Verdicts in Criminal Jury Trials, 21 Yale L. & Poly Rev. 263,263 (2003). Obviously, a jury’s additional finding regarding age that occurs after the jury renders a guilty verdict would not constitute a special verdict. Moreover, Osbum addressed the use of special questions, which “provide additional information that accompanies, but does not replace, the general verdict.” 21 Yale L. & Poly Rev. at 263-64. Cash likewise involved a special question, making its purported distinction from Osbum inapposite. Accordingly, we discern nothing in Cash that persuades us Osbum does not apply to the facts of this case.
Granted, the legislature has now established procedures whereby sentence-enhancing fact(s), i.e., elements of a greater offense, may be determined by a jury after it has already reached an initial verdict of guilty on the lesser degree of the offense. For example, when a prosecutor seeks an upward durational departure sentence, K.S.A. 2013 Supp. 21-6817(b)(2) allows the court to determine whether the evidence of the alleged sentence-enhancing fact or factor shall be presented and proved to the jury during the guilt phase of the trial or “whether such evidence should be submitted to the jury in a separate departure sentencing hearing following the determination of the defendant’s innocence or guilt.” Such serial factfinding is similar to that effected through the verdict
But given our review standard, a finding of error does not necessarily lead to a reversal. We must find that failing to include the element of age in the jury instructions on tire crimes’ elements and submitting the same to the jury as special questions on the verdict forms prejudiced Brown to the extent that we can declare the instructions were clearly erroneous. See Williams,
While Brown’s arguments illustrate why special questions should not be used in criminal proceedings, they do not trump this court’s holding in State v. Reyna,
Here, unlike Reyna, the record reflects that the jury was involved in the question of the defendant’s age. Its answer to the special questions established that the jury determined Brown to be age 18 or older at the time of the offenses. Furthermore, the record contains evidence from which the jury was justified in drawing that inference. Specifically, Brown testified that he had lived in Mus-cotah since 1991, which was 19 years prior to the 2010 crimes. Brown’s attempt to characterize that testimony as only implying that his family had lived in tire town since 1991 does not comport with the manner in which the question about residency was asked and answered. Inferences of fact are permitted only when supported by logic and human experience. State v. Sherrer,
If harmless error applies where the jury has no involvement in finding that the defendant was age 18 or older when committing tire crime, but the record discloses that all of the evidence establishes the defendant’s age at 18 or older, then it necessarily follows
Prosecutorial Misconduct in Closing Argument
Brown claims that the prosecutor committed three instances of misconduct during closing argument by (1) misstating the sexual assault nurse’s testimony; (2) making improper remarks about Brown’s sexual desires that were unsupported by the record; and (3) making improper and prejudicial remarks about Brown’s treatment of his wife that had no relevance to the issues at trial. Although we find that the prosecutor erroneously argued facts not in evidence, we do not find that the misconduct requires reversal.
Standard of Review/Applicable Tests
A claim of prosecutorial misconduct based on comments made during closing argument will be reviewed on appeal, even where there was no contemporaneous objection. State v. King,
“error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward,292 Kan. 541 , Syl. ¶ 6,256 P.3d 801 (2011), cert. denied132 S. Ct. 1594 (2012) (citing Chapman,386 U.S. 18 ).
Analysis
Misstatement of Witness Testimony
During closing argument, the prosecutor stated, “The doctor and the nurse both tell about the injuries. The nurse tells you that [J.D.] acted consistent with other kids that have been molested.” But the nurse actually testified that J.D.’s injuries were consistent with some type of violent sexual act. There was no evidence presented at trial indicating that J.D.’s behavior was consistent with other children who had been molested. We have previously held that misconduct occurs when a prosecutor states facts that are not in evidence. See State v. Ly,
Turning to the second step, the first factor is whether the misconduct was gross and flagrant. In State v. Lowrance, 298 Kan.
Likewise, the third factor weighs against reversal because the prejudicial effect of the prosecutor’s misrepresentation is greatly outweighed by the physical evidence implicating Brown in the rape, such as the evidence of sexual trauma and the DNA. Moreover, the nurse’s actual testimony—that J.D.’s physical injuries were consistent with a violent sexual act—was arguably stronger evidence of Brown’s guilt than the statement wrongly attributed to tire nurse. As such, when the prosecutor’s misstatement is considered in light of the entire record as a whole, we conclude that it was not reasonably possible that the comment contributed to the verdict.
Comments Regarding Browns Sexual Desires
Brown also complains of two remarks by the prosecutor about Brown’s sexual desires that Brown claims were not supported by the evidence. First, in discussing Brown’s motive, the prosecutor said:
“But, you know, he comes in, crawls in her bed with her, and he’s drunk.
“Maybe he went in the wrong bedroom and got in the wrong bed.
“But, you know, he’s lived in that house a long time.
“What did he really go in there for?
“You know, he slips his hand under the top of her shirt.
“Could it be that if he and his wife weren’t getting along, he was looking for sex soinewhere else?” (Emphasis added.)
The record did contain evidence of marital discord. Brown testified that he wanted to divorce J.D.’s mother. A prosecutor may comment on a defendant’s motive based upon reasonable infer
The second statement with which Brown takes issue was the prosecutor’s comment that “[y]ou know, he then went to work that next morning. He must have still had sex on his mind because he comes home and gets this young girl, takes her out in the field, and has sex with her.” (Emphasis added.) Again, the factual scenario is supported by the evidence, and the prosecutor’s statement about Brown’s state of mind constitutes a permissible inference that was reasonably drawn from the admitted evidence. Accordingly, we find no misconduct in that comment.
Statement Relating to Browns Treatment of His Wife
Brown’s theoiy of defense was based on his testimony that J.D. made up the allegations of sexual abuse because Brown planned to divorce J.D.’s mother due to her poor housekeeping skills. On cross-examination, the State challenged Brown’s alleged preference for cleanliness by questioning him about his dirty truck. In that vein, the prosecutor argued in closing that Brown did not care about housekeeping and posed the hypothetical question, “Why is he treating [J.D.’s mother] like she’s his slave to cook and clean for him?”
Brown argues that this comment was designed to inflame the passions or prejudices of the jury and distract it from its duty to malee a decision based upon the evidence and tire controlling law. See State v. Baker,
In sum, while we find that the prosecutor committed misconduct by misstating die sexual assault nurse’s testimony, such misconduct did not constitute reversible error.
Sufficiency of the Evidence
Brown argues that his convictions must be reversed because the State failed to present sufficient evidence that he committed the charged offenses when he was 18 years of age or older or that he committed the act of rape.
Standard of Review
When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution in determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye,
Analysis
As indicated earlier in this opinion, we find unavailing Brown’s evidentiary challenge to the age element. His own testimony established that he had resided at a particular location for 19 years prior to the two offenses, malting the fact that he was age 18 or older at the time of the offenses a most reasonable, if not compelling, inference.
Likewise, Brown’s remaining evidentiary challenge is not compelling. He attempts to attack J.D.’s credibility by claiming that the truck seat on which J.D. was lying was too high for him to have raped her while he was standing outside tire passenger door, as she claimed. But the jury rejected that argument and when we review
Jury Polling Procedure
In Kansas, a defendant has a statutory right to a unanimous jury verdict. K.S.A. 22-3421; K.S.A. 22-3423(l)(d); State v. Wright,
In Cheffen, the defendant argued that his right to a unanimous jury verdict was violated because the trial court asked the individual jurors—before the verdict was read—whether it was their verdict, rather than making inquiry after the verdict was read. Cheffen, like Brown, failed to raise this objection before the trial court, but he argued on appeal that this court could review the issue because it involved a fundamental right and constituted a question of law that did not rely on disputed facts. We rejected Cheffen’s argument, first holding that the right to a unanimous jury verdict is statutory and not constitutional; therefore, the exception for review of issues involving fundamental rights was not implicated. We also determined that consideration of the issue necessarily involved factual review. As such, we held that “the better rule is to require a party wishing to challenge the trial court’s compliance with the procedures set out in K.S.A. 22-3421 for inquiring about a jury’s verdict to have raised that issue first with the district court either in the form of a contemporaneous objection or a posttrial motion.”
Cumulative Error
Alternatively, Brown claims that even if none of the singular errors addressed above warrant reversal, their cumulative effect requires reversal. The State counters that Brown failed to establish any trial error and that the evidence overwhelmingly established his guilt. Our findings above that it was error to fail to include the defendant’s age in the elements instructions and that the prosecutor committed misconduct by stating facts not in evidence during closing argument refute the State’s claim of no trial error. Nevertheless, we find that the cumulative effect of those errors did not prejudice Brown to the point of denying him a fair trial and decline to reverse on that basis.
Standard of Review
This court utilizes a de novo standard when determining whether the totality of circumstances substantially prejudiced a defendant and denied the defendant a fair trial based on cumulative error. State v. Cruz,
Analysis
The cumulative error analysis is somewhat subjective.
As discussed above, although the jury was not instructed on the element of age, it was given the opportunity to determine Brown’s age through the use of special questions on the verdict forms and the jury’s answers were adequately supported by the evidence. Further, the prosecutor’s misrepresentation of the nurse’s testimony was ameliorated by the fact that the nurse’s actual testimony was likely more compelling than tire prosecutor’s misrepresentation of
Sentencing
Finally, Brown alleges that the trial court committed two errors relating to the imposition of his sentences. First, the trial court erroneously sentenced Brown to lifetime electronic monitoring. Second, while the sentencing court said Brown would be subject to lifetime parole after his imprisonment, the journal entry of judgment incorrectly provided that Brown would be subject to lifetime postrelease supervision. Brown requests this court to vacate his sentences and remand the matter for correction. The State concedes the trial court’s errors.
Standard of Review
Both sentencing issues raised by Brown involve an interpretation of K.S.A. 2009 Supp. 22-3717(u), which allows for unlimited review. See State v. Mason,
Analysis
With regard to the imposition of lifetime electronic monitoring, it is well setded that the imposition of parole conditions, including lifetime electronic monitoring, is vested with the parole board and outside the jurisdiction of the district court. See State v. Hyche,
It is equally well settled that where the sentence announced from the bench differs from the sentence later described in the journal entry, the orally pronounced sentence controls. See State v. Waggoner,
Convictions affirmed, sentences affirmed in part and vacated in part, and case remanded with directions.