State v. Colston

100,005 No. Kansas, Colston, Appellee, Appellant. v. Sanford State

(235 1234) P.3d filed Opinion 23, 2010. July Rachel L. Office, cause, Kansas Pickering, Defender Appellate argued Folsom, III, office, and Carl of the same was on the brief for appellant. Lidtke, L. cause, district Sheryl deputy the and A. attorney, argued Jerome Gorman, Six, district and Steve attorney, were with her on the attorney general, brief for appellee. of the court was delivered opinion Malone, Sanford Colston his convictions of appeals rape, J.: criminal and indecent aggravated liberties with sodomy, a child. Colston (1) claims: The trial court erred when it failed to instruction even the State give evi- unanimity though presented dence of count; acts (2) each his conviction of supporting liberties with a child should be vacated be- cause it is a lesser included offense of when both offenses are under 21-4643; (3) K.S.A. his convictions should charged be re- versed because the trial court failed to instruct the to deter- mine his as an essential offense; (4) element of each age the trial court committed reversible error when it an in- gave Allen-type struction to the before (5) deliberations and the com- began; bination of errors trial. Colston of his to a fair We deprived right have under 22-3601(b)(l). K.S.A. jurisdiction Background

Factual and Procedural B.N. was 12 old in the mother, summer of 2006 when her years Donna, Colston. Donna and B.N. had began lived dating Although life, moved that summer B.N.’s most of for they in Topeka together Dick and his live Colston to with parents, to County Wyandotte Donna, in the unfin- Colston, and B.N. Colston. stayed and Betty did not have The home home. the of basement ished family single the three to hot it started and when get August, air-conditioning of at the air-conditioned apartment them often of night spent at Dick her Cocoa B.N. adult dog Colston’s kept April. daughter, on Cocoa almost home, would check and she every day. and Betty’s Colston, Donna, and day B.N..spent On Friday, August between 8 That evening an complex pool. apartment swimming check on house to to his took B.N. and 9 Colston parents’ p.m., was and was on Dick, had a heart who condition oxygen, Cocoa. television bedroom, was and living in his watching Betty Michael, Michael had son, also there. was adult Colston’s room. him his to drive to wanted Colston and place been drinking Michael was shift. While he worked the where night employment to boss, B.N. went downstairs with his Colston phone minutes, After check on Cocoa. to the basement approximately that he downstairs door and the basement Michael went to yelled he did not When him to to take work needed Colston immediately. stairs. answer, down the Michael started an yelled receive down, some of came down but Michael to come at him not of B.N. Colston on He saw around the corner. and looked top steps Startled, turned naked. Michael of them were and both on the bed dressed, came around went got upstairs. and then Michael back and drove apartment April’s upstairs, work. 11, he told at work on

While Michael night B.N. and Colston. had seen between what he coworker about his the incident. about his cousin his ex-wife and Michael also told that he believed that but call the did Michael not night, police to the Kansas incident someone Depart- reported eventually (SRS). & Rehabilitation Services ment of Social it was told Donna that Colston “being On August Monday, and Donna crime B.N. a he had committed sex said” that against that denied and she B.N. about the confronted allegation, B.N. to take Donna decided her. Colston had touched to the (KU Kansas Medical Center Center) Medical University to determine whether she had been raped. Center, At KU Medical Donna informed the room emergency nurse, were there to B.N. McCullough, they prove Jeanine

had not been molested. exami- McCullough performed physical nation and checked B.N. for and bite marks. bruising, scratching, She also did a visual examination of B.N.’s and a blind swab vagina with a called KU Medical Center Q-tip. social worker McCullough Moore assist her. the course of Tiffany examination, During and Moore asked B.N. McCullough B.N. looked to questions Donna before Donna refused to allow B.N. to replying. answer of the many did not see questions. marks and McCullough considered the examination normal. physical

At one examination, Donna point and Colston went during outside to smoke. While B.N. was alone with McCullough Moore, B.N. told them she had been molested a man in the by basement where lived. B.N. did apartment not want to they identify the man or describe what had B.N. told happened. McCullough and Moore that when the “red-hair bed, saw them in the man guy” who was her said “don’t here,” come down and the molesting red- hair went back When Donna guy from upstairs. returned smoke Colston, break without B.N. the same repeated stray.

Moore contacted the Kansas Police City Department. Upon Officer Kohrs, Nicholas questioning by stated she had been molested her “mother’s Kohrs did not conduct an boyfriend.” extensive B.N., interview with but she informed him that her mother’s had removed her clothes and boyfriend inserted his penis Later, into her Kohrs’ when interview, vagina. tire sergeant joined B.N. identified Colston as the man who molested her. After the interview, B.N. was into SRS’s placed temporary custody.

Three later on 2006, Sarah days a child inter- Byall, view House, Sunflower conducted a specialist inter- videotaped view of B.N. B.N. told that while she was downstairs Byall basement of Dick and house on Betty’s Friday night checking Cocoa, Colston asked her to make love to him. no, She him told but he told her to not, When undress. she did he laid her on her mother’s bed and took off her shorts and swimsuit. B.N. started first, to do told B.N. he was not At Colston going anything, crying. his in her and he her then but penis vagina. legs apart put pulled 2 to 5 minutes and his her for that Colston B.N. said kept penis tried to malee it hurt. Colston him because tried to she away push knees, and but she could not on her hands roll over B.N. get Michael came down too hard. When she was do it because crying stairs, Colston stopped. Colston took her that the next told on day, Saturday, Byall She was still to check on Cocoa to the house back again. wearing out, B.N. sat on After Cocoa swimsuit and shorts. the same taking to make love her and said he wanted her bed. approached he took off her the first time. She said no but like to her again her breast. Colston stated he clothes started right rubbing her, her and he licked her breast and then to taste wanted vagina. then told B.N. it on the bed. Colston B.N. stated she “peed” time, and he his take as this would not put “private part” long lasted about 4 B.N. stated that whole encounter her body. minutes. House, Strout, a assistant at Sunflower physician per-

Stephanie B.N. B.N. to Strout that a medical examination of formed reported incident. in her swimsuit the first there was blood following with the State one count On charged August 11, 2006, in violation of on or about August rape occurring 21-3502; on or about K.S.A. one count of rape occurring August 21-3502; K.S.A. one count of in violation of 12, 2006, in or about viola- criminal sodomy occurring August 21-3506; indecent lib- of K.S.A. and one count tion 12, 2006, in vio- erties with a child on or about occurring Each count was identified in the lation of K.S.A. 21-3504. charging as an document felony. off-grid person Trial evidence held a trial on the

The district court May charges commencing Michael, Moore, Kohrs, trial, Donna, 2007. At McCullough, testified with the facts set out above. Strout consistently Byall, at Sunflower tire interview of B.N. watched videotaped addition, forensic evidence of blood House. In the State presented in the crotch area of B.N.’s swimsuit and evidence of Colston’s DNA in both the crotch area of B.N.’s swimsuit and on B.N.’s cheetah bed sheet. print

For the most B.N.’s trial was consistent with her part, testimony trial, statements at Sunflower House. At B.N. testified that on Fri- 11, 2006, she had been and tiren went to day, August swimming house to video While at the April’s play games. swimming pool, B.N. would water, sit on her mother’s in the but when her lap mother would to smoke a she would move B.N. get up cigarette to Colston’s B.N. testified that Colston would her between lap. put uncomfortable, his which made her feel so she would move legs, back onto his knee. That he and B.N. evening, suggested check on Cocoa. B.N. them, asked her mother to go accompany but she declined.

When Colston and B.N. house, arrived at Dick and B.N. Betty’s them and then went downstairs to let Cocoa out. After greeted downstairs, Cocoa came back B.N. Cocoa on her mother’s praised Colston, bed. who was basement, on the couch in the told sitting B.N. he wanted to make love to her. B.N. stated she wanted to go but Colston told her no. Colston then reminded B.N. that upstairs she had said she would do to him from mad anything keep getting and that she had been him mad Colston told B.N. making lately. she had to he down on the bed. He told her to take off her swimsuit not, and shorts. When she did he removed them. Colston then took off his shorts. B.N. testified that Colston “his put private” inside of her and that it hurt. Colston himself behind positioned B.N. and knees, told B.N. to on her hands and but she could get not because she was too from shaky crying.

B.N. also testified that Colston licked her and it hurt privates because he had not shaved. She also stated that Colston stuck his breast, her and touched her but she no finger privates provided details of these acts or the in which occurred. B.N. sequence they testified that minutes, whole incident lasted about 10 and it ended when Michael him came down the stairs and Colston told to back Colston told B.N. to dressed and not to tell go up. get because if she did he would do he did not want anybody something to do. B.N. did not tell what had because she anyone happened When she returned her mother. would hurt that Colston afraid where she noticed used restroom B.N. apartment, April’s in her swimsuit. red blood dots

litde the same went The next wearing swimming, again day, Later, to with her asked her mother she and shorts. swimsuit go declined, B.N. that Cocoa, she she care of but take telling again Like the not and it would take with Colston could very long. go house, she at Dick and B.N. arrived when Betty’s day, previous returned to the Cocoa Cocoa outside. When to let downstairs went her own bed to basement, B.N. made praise point sitting B.N., her Cocoa, mother’s bed. not her telling approached but that he done before for he had he was what day sorry do it then he would never time and to do it one more again. wanted it he never do would him he had B.N. told again, already promised can broken. that be her he promises by telling responded to She was too off her clothes. told B.N. to take shaky Colston shorts. B.N. testified her swimsuit and Colston removed so comply, B.N. then in her “lower “stuck his that Colston private.” private” restroom, and Colston told her if she could leave to use asked urinated, Colston held B.N. “no, on bed.” While [the] just go pee B.N. to dressed and then told in her Colston his get finger vagina. B.N. there would He told had to tell what not happened. anybody started she had not had because no evidence of what be happened her having periods. Colston testified that to called his mother testify. Betty he 11, her house and had Michael had been at

on Friday, August B.N. Colston and had remembered that intoxicated. She been downstairs. and B.N. She but she never saw Colston come over go at all. Donna had did come over the next that not testified day they stated no one took care State and she also that for the testified on Cocoa Saturday. that on defense. He testified testified in his own Friday, his knees so he her feet on were

while put they swimming, He testified that her, she did not sit his could throw but lap. house where B.N. went to his in the he later parents’ evening, that he took Cocoa out- Colston testified was drunk. Michael very in, room and Michael side, B.N. was in her when he came back was down the to the basement. Colston told Michael coming steps not to Michael come down because B.N. was her clothes. changing started to come down him and Colston told to back anyway go up. Then Colston also went and B.N. came after- upstairs up shortly wards. Colston denied back to the house to take care of the going He testified that went back to the house on dog Saturday. they but it was so hot returned to Sunday, they April’s apartment night sleep. trial, Donna testified that she was 31 old and

During years that Colston was almost 20 older than she. Michael testified years that he 29was old at the time of trial and his sister years April old and that Colston was their father. years evidence,

At the close of the the district court instructed the jury that Count I of 11, occurred on or about rape allegedly August 2006; Count II of occurred on or about rape allegedly August 2006; Count III of criminal occurred sodomy allegedly on or 2006; about and Count IV of August liberties with a child occurred on or about allegedly 2006. The district court also an instruction. gave jury Allen-type Colston did not instructions, of the and he did object not additional instructions. request any the State that B.N.

During closing arguments, acknowledged stated at Sunflower House that the oral sex had occurred on the second but in court she stated that it occurred on the first day, day. The State that with that details, all the core emphasized exception, the fact that the oral sex time, occurred one re- including only mained consistent.

The submitted a deliberations: “What juiy does question during ‘on or about’ mean with to the date act occurred on a[n] regard Count 4? Can it be to the date?” The district court applied previous TV, that with to Count “on or about” could refer responded respect to either 11 or but the must be unanimous as to juiy the date the offense occurred.

The found Colston I, of as in Count jury guilty rape charged criminal III, as in Count sodomy charged aggra- vated indecent liberties with a child as in Court IV. The charged Colston of as in Count II. The jury acquitted charged pre- convictions of disclosed aggra- sentence prior report investigation The trial court counts of and two rape. vated robbery, kidnapping, without the life sentences three concurrent to sentenced 21-4643(b)(l) K.S.A. for pursuant years parole possibility Law). Colston timely appealed. (Jessica’s Unanimity

Multiple Instruction Acts — crim- that his convictions first claims rape, aggravated a child involved liberties with inal sodomy, Because each conviction. have sustained could acts which multiple instruction, a the failed to district court unanimity jury give must be reversed. three convictions that all Colston argues law, a criminal trial must be unan verdict in a Under Kansas jury if the is satisfied this 22-3421. imous. K.S.A. Normally requirement on must be unanimous that its verdict instructs the trial court jury However, com can be count. unanimity each achieving separate with a count a defendant the State when single charges plicated case, are acts several acts In a acts. on based multiple multiple crime constitute the them could one of charged. alleged (2003). 107, 115, 61 Davis, P.3d 275 Kan. State v. multiple In order offense cases. common sex is acts situation especially de act for which the to the as to ensure unanimity specific jury the State to must either tire trial court is fendant require charged, it will for act which criminal elect the rely upon particular must that all or instruct the conviction jurors agree a reasonable has been criminal act same proven beyond underlying 2, 160 P.3d 794 State v. doubt. Syl. ¶ Voyles, this test to determine when out a In court set three-part Voyles, must such that has occurred acts situation agree multiple First, deter- the court must criminal act. same underlying acts, i.e., whether the de- if case involves mine multiple truly acts of one act or conduct was fendant’s represents part Second, the court each other. and distinct from are which separate occurred, i.e., was a whether there error whether must consider failure the trial court an act or a the State to elect failure by is re- whether the error Third, must determine the court instruct. versible. 284 Kan. at 252-53. We will these to Colston s apply steps case. 1—Is This A Acts Case?

Step Multiple The threshold in a acts is whether question multiple analysis defendant’s conduct is act one or acts part represents multiple which are and distinct from each other. There is no separate single test for conduct whether constitutes one act or and dis- separate tinct Rather, acts. the courts must look to the facts and multiple of the crime as to determine theory whether a argued verdict Allen, issues. State v. 540, 290 Kan. implicates unanimity 1, 2, (2010). 232 P.3d 861 Whether a case is a Syl. ¶¶ acts multiple case is a of law over which this court has unlimited review. question 284 Kan. 1. Voyles, Syl. ¶ This court has determined acts are acts if are multiple they “ Further, and distinct.

factually are separate ‘[incidents factually when acts criminal have separate occurred at differ independent ent times or a when later criminal act is motivated a “fresh by ’ ” v. State 671, 683, 279 Kan. impulse.” 112 P.3d 175 Kesselring, (2005) State v. Hill, Kan. 26 P.3d 1267 (quoting [2001]). addition, In this court has identified other factors for de if there is conduct a acts termining case. These unitary multiple “(1) factors include: whether the acts occur at near or the same time; (2) whether the acts location; occur at the (3) same whether there is a causal acts, between the relationship particular whether there was an event; (4) whether there is intervening a fresh some of the conduct.” v. State Schoon impulse motivating over, willWe this apply to determine whether of Colston’s analysis convictions involved acts. Count Rape I—

Under 21-3502(a)(2), K.S.A. is “sexual intercourse with a child who is under 14 21-3501(1) K.S.A. defines years age.” intercourse” as “[s]exual of the female sex “any penetration organ the male sex or finger, organ any object. Any penetration, however is sufficient to constitute sexual intercourse.” slight, acts evidence of that the State

Colston multiple presented argues in I. Colston identifies Count the that would rape alleged support in (1) that Colston his acts: B.N. testified four put penis possible 11; (2) B.N. testified that Colston on her put Friday, August vagina 11; (3) B.N. testified that in her on his Friday, August vagina finger 12; and in her on his Colston Saturday, August penis vagina put as she his inside her (4) testified Colston vagina put finger 12. her bed on urinated on Saturday, August in I was Count with that Colston The State rape charged argues II with on 12. Because 11 and in Count on rape August August II, in Count the State of the Colston was rape argues acquitted not be considered acts on 12 could that the possibly alleged August in I. This would the conviction Count as acts supporting multiple I 11 and the if the exact date for Count was the case be August However, was II was 12. exact date for Count August 11 and I on or about in Count with August rape occurring charged out, the could was so instructed. As the jury points jury in that occurred on 12 considered acts have still August alleged in I. conviction Count order to the rape support was commit- the exact date that an offense allegedly Generally, has held where a the crime. This court ted is not an element of his or her defense is not misled or defendant making prejudiced occurred, a conviction of when the crime the may allegation that the crime was committed follow sufficient proof properly upon limitations. State v. time within the of the statute of period 559, 561, (1986); v. Kan. 712 P.2d 1258 State 238 Armstrong, We are aware Jones, Pattern Instructions instruction on recommended by jury rape that “this act in the venue element for Kansas contains language in a PIK on or about” a date occurred specific county. specific in the 57.01. the “on or about” Crim. 3d language charging Usually and the instruction is not document Jones, jury problematic. However, one where the 4. in a case such as this Kan. Syl. ¶ dates, the “on or about” on two consecutive occurred alleged rapes invites a acts problem. language acts Here, to four the State evidence separate up presented The ev- two consecutive intercourse over of sexual days. occurring idence consisted of B.N.’s trial as well as her testimony videotaped statement. Because of the “on or about” contained in the language instructions, could have considered the acts jury alleged that occurred on 12 in order to conviction August support instance, in Count I. In this the trial court could have avoided confusion that the in Count I by instructing rape charge occurred on 11 and the allegedly Count only August rape charge II occurred 12. allegedly only August Presumably jury’s verdict in Count I was based behavior, on the but only anas court the record we cannot be appellate reviewing absolutely sure.

We with Colston that based on the Count I agree way instructed, verdict could have been charged jury’s sup- (1) the acts: B.N.’s that ported by following multiple testimony Colston his 11; inside her (2) on put B.N.’s penis vagina August that Colston his inside her testimony on put penis vagina August 12; (3) B.N.’s that Colston his inside her testimony put finger on 12. record, Based on the the vagina August digital penetration on 11 did not to be a August distinct appear factually separate act from the on that same date. The acts oc- penile penetration curred at or near the same time and location without an intervening event However, between them. we find under the facts of specific this case that the on 12 was a digital penetration August factually and distinct act from the on separate that same penile penetration date. Colston had the act of and the completed penile penetration to be motivated a fresh digital penetration appeared impulse when B.N. asked Colston if she could leave die room to urinate. Zamora, State v. See, e.g., 693-94, Kan. P.2d 568 (1990) followed about 2 minutes later (digital with penetration pen- ile two Therefore, counts of penetration supported separate rape). conviction in Count I involved acts.

Count Criminal Aggravated Sodomy III— that, based on trial, evidence at argues his presented conviction of criminal could have been based sodomy on two acts. B.N. testified at trial that Colston licked her separate on and she made a vagina statement Friday, August videotaped House, that Colston was which at Sunflower jury, presented 12. The State her on licked argues Saturday, August vagina trial, than At occurred more once. never sodomy alleged occurred from the date she Saturday sodomy changed simply that a second oral sexual en- she never testified Friday, on occurred counter Saturday. with a child who is is criminal “[sjodomy sodomy

Aggravated 21-3501(2) 21-3506. K.S.A. defines of K.S.A. under 14 years age.” the female oral as “oral contact or gen- penetration “[sjodomy” italia.” III, criminal sod- instructed that Count

The However, 2006. on or about occurred omy, allegedly about” instruction this the “on or on language charge record, it review of the not Based on is thorough problematic. that B.N. a second act of at does not sodomy alleged appear time, is there evidence of a second instance that could be con- nor the video- as under the definition. Both strued statutory sodomy at Sunflower House and her of B.N.’s statement testimony tape trial described one act of sodomy. jury’s agreement only such, date the act occurred was As re- unnecessary. specific III, issue, no acts and Colston’s Count there is multiple garding fails to survive the threshold under the Voyles question argument analysis.

Count Indecent Liberties Aggravated IV— at trial mul- that the State evidence argues presented with acts that would constitute indecent liberties aggravated (1) tiple a child. This evidence includes: the sexual intercourse (by pen- sex, (3) (2) etration with Colston’s or the oral penis finger), (4) while were at the between his they pool, putting legs intercourse, and B.N.’s clothes to sexual Colston removing prior (5) The State that it relied B.N.’s breast. argues fondling the indecent lib- one act to of only support charge aggravated and of B.N.’s breast. erties with a child—the touching licking 21-3504(a)(3) defines indecent liberties K.S.A. “[ajggravated acts with a child with a child” as of any following “engaging (A) is under 14 lewd or who touching years age: fondling offender, of either the child or the done or submitted person to with the intent to arouse or to the sexual desires of either satisfy offender, Wells, the child or the both.” or See State v. The trial court defined lewd fondling Instruction No. 11 for Count IV touching regarding indecent liberties with a child as follows: aggravated term lewd or a “[T]he means or in a manner fondling touching’ fondling touching victim, which tends to undermine the morals of the which is so offensive clearly as to the moral senses of a reasonable and which is done with the outrage person, intent to or arouse the sexual desires of either the victim specific or the satisfy offender or both. Lewd or does not contact with the fondling touching require sex of one or the other.” organ Colston first that evidence of the acts of sexual inter- argues course or oral sex constituted acts that could have multiple sup- the conviction of indecent liberties awith child. ported aggravated Under terms, the strict definition of the the acts of sexual statutory intercourse and oral sex could a conviction of support aggravated indecent liberties with a child because these acts constitute lewd or Had Colston been with fondling touching. charged only aggra- child, vated indecent liberties with a the evidence of the acts of sexual intercourse and oral sex would have created a acts situation of the criminal act. requiring jury unanimity underlying

But Colston was with counts of charged separate rape ag- criminal in addition to the gravated sodomy aggravated liberties A acts situation occurs when the charge. multiple only State evidence of two or more acts that could presents support count. Based on the of tire crimes as single theory argued by State, the evidence of sexual intercourse supported rape Colston, and the evidence of oral sex charges against supported criminal was instructed on the aggravated sodomy charge. definition of “sexual intercourse” in connection with the rape and the definition of in connection with the charges “sodomy” ag- Also, criminal was instructed that gravated sodomy charge. juiy indecent liberties with a child Colston’s required spe- cific intent to arouse or to the sexual desires of either satisfy Colston or B.N. or both. The criminal sodomy did not include this element. charges stated, there is no test for whether As have we single determining acts and courts must look to the facts constitutes conduct as determine whether a of the crime and the argued juiy theory Allen, 2. issues. verdict Syl. ¶ unanimity implicates Colston, filed the evidence Based on charges against separate State, trial, the of the crimes as at by theory argued presented received, we conclude there is no and the instructions the jury could have based the indecent lib- aggravated possibility on the acts of sexual intercourse or oral sex. erties conviction that the evidence of his B.N. be- Colston also asserts putting an act tween his while were at the could be they pool sup- legs a conviction of indecent liberties with a child. porting The State that it did not evidence that Colston responds present in lewd or with B.N. when she was on engaged fondling touching B.N. at trial that Colston her between his his testified lap. pulled uncomfortable, which made her feel so she moved to his legs, knees. the definition of “lewd or Considering fondling touching” trial, received at Colston’s act of B.N. on which placing his would not be “so offensive as to the moral lap clearly outrage of a evidence of senses reasonable Without some other person.” lewdness, act, itself, this would not support charge aggra- vated indecent with liberties a child.

Colston also claims that his act of B.N.’s clothes removing prior to sexual intercourse would constitute indecent liberties with a child. testified that Colston removed her clothes and stated he would not do to her. Colston for initially anything paused a moment and looked at B.N. Then he removed his clothes and had sexual intercourse with her. the four Schoonover fac- Applying facts, tors of conduct to these we conclude Colston’s unitaiy act of B.N.’s clothes was incidental to the sex offenses removing for which he was and did not constitute a act charged separate act of liberties. Colston’s supporting aggravated removing B.N.’s clothes and his act of sexual intercourse with B.N. occurred an event or near the same time and location without intervening acts. a moment after between the two for Although paused clothes, there was no evidence of a fresh B.N.’s removing impulse fact, In which motivated his act of sexual intercourse with her. B.N. he wanted have sexual Colston had told to intercourse already with her he removed her clothes. before

This leaves Colston’s act of B.N.’s as breast touching licking the act the conviction of indecent lib- only supporting aggravated count, erties with a child. As with the criminal aggravated sodomy stated Sunflower House that this act occurred on initially 12, trial but in her she stated that the August testimony touching of her occurred on 11. there was some breast August Although date, confusion as to the B.N. described one act the only involving of her breast. The trial court instructed the touching initially jury that the occurred liberties count on or about 12. In to a from the the district August response question jury, court clarified that with to the indecent liberties respect count, “on or about” could refer to either 11 or but the August must be unanimous as to date the the offense occurred. As jury such, IV, issue, Count there is no acts regarding multiple Colston’s fails to survive the threshold under argument question the Voyles analysis. 2—Did the Trial Court ErrP

Step Because we have identified acts the multiple supporting I, in conviction Count we must with the second proceed step test, the which is to determine whether error was commit- Voyles case, ted. In a acts either the State must inform the jury which act to in its deliberations or the court must instruct rely upon the to on the criminal act. The failure to either jury agree specific Here, elect or instruct is error. 284 Kan. 2. the Voyles, Syl. ¶ trial court did not instruct the to on the criminal jury agree specific Thus, act the in I. Count the be- supporting rape charge question comes whether the State informed the which act to properly jury the conviction. rely upon support In the the State relied the act of closing argument, upon penile 11 to the in I. Count penetration support rape charge I, Even tire State one act to Count though argued only support State failed to “elect” the act it was as re- properly relying upon The second quired by Voyles. part Voyles analysis appears 286, to be derived from State v. 875 P.2d Timley, (1994), which, turn, utilized the rule in State v. applied Kitchen, 110 Wash. 2d The Kitchen court held: evidence of several “[W]hen prosecution presents acts that could form the basis of one count either the charged, State must tell the which act to on in its deliberations or jury rely the court must instruct the aon criminal act.” jury agree specific 110 Wash. 2d at 409.

Here, discussed, as we have the State evidence of presented three acts which could have separate supported rape charge I Count based on the “on or about” in the doc- language charging ument and the instruction. the State Although argued only one act this is not the same as supported charge, informing that it could not consider evidence of other acts supporting the same or that it must on the same charge agree underlying I, criminal act. We conclude that as to Count error occurred be- cause there was a failure to elect or instruct on the act underlying the supporting charge. 3—Was It Reversible Error?

Step The final in the is to determine whether the step Voyles analysis error is reversible error. Whether an error is reversible is governed harmless error Colston did not the trial court by analysis. request a instruction. The ultimate test for harmlessness give unanimity when a instruction was not is the er- unanimity requested “clearly roneous” standard as articulated the Kansas in by Legislature “ 22-3414(3). K.S.A. 284 Kan 3. ‘Instructions Voyles, Syl. ¶ are erroneous if the court is convinced clearly only reviewing firmly that there is a real would have rendered a dif- possibility ferent if verdict the trial error had not occurred.’ omit- [Citation Carter, State v. ted.]”

In two victims claimed the defendant forced Voyles, alleged them to acts of oral sex on the defendant over a perform multiple 3-month The victims’ statements were inconsistent with period. each other as to the location of the acts and the number of acts Also, that were committed. the victims’ trial conflicted testimony with earlier statements had to the The they given police. testimony demonstrated that 20 different acts or offenses were potentially committed, was with different but the defendant only charged in The substantial inconsistencies crimes. 284 Kan. at 242-44. led this court to conclude victims’ the defendant allegations against to the failure to a instruction that the trial court’s unanimity give case. 284 Kan. at was erroneous under the facts of the clearly 255.

Here, trial. a denial defense at Colston presented general B.N.’s or of the Colston denied clothes engaging removing on 11 as the State. He re- criminal behavior August alleged by evidence allegations by presenting sponded Essen- that he and B.N. did not to his house that parents’ day. go of, I evidence amounts to the “no Colston’s tially, equivalent trial didn’t” to B.N.’s allegations. substantially response and B.N. contest between Colston credibility with For the most B.N.’s trial was consistent her part, testimony trial, at Sunflower House. At B.N. switched the dates statements of two of the offenses but this did not involve inconsistency B.N.’s was consistent about the location of rape charges. testimony the acts and the of times act occurred. number each Significantly, in Count I was corroborated Michael’s eye- rape allegation by witness that he saw Colston on of B.N. on the bed testimony top addition, and both of them were naked. In forensic evidence of DNA in Colston’s the crotch area of B.N.’s swimsuit contradicted A rea- Colston’s assertion that between them. “nothing happened” Count II sonable doubt on have been raised may testimony Colston, and Donna that B.N. did not come to the house Betty, to take care of the on but this does not undermine dog I. evidence that the verdict Count overwhelming supported Based the record in its we are not con- firmly upon entirety, vinced there is a real would have rendered a possibility if different verdict the trial error had not occurred. Accordingly, we conclude the trial court’s failure to instruction unanimity give on the in Count I was not reversible error. rape charge

Multiplicitous Convictions Next, Colston claims that his conviction of aggravated in- vacated it is a lesser liberties with a child should be because eluded offense of when both offenses are under rape charged K.S.A. 21-4643. Colston does not that trial court should argue have a lesser included offense instruction. Instead given he indecent liberties appeal argues rape with a child are when both offenses are un multiplicitous charged trial, der the same statute. Colston did not raise this issue at but this court consider a issue for the first time on may multiplicity “to serve the ends of or a denial of funda appeal justice prevent Simmons, 728, 743, 148 mental State v. 282 Kan. P.3d 525 rights.” (2006). The issue of is a of law and this court’s multiplicity question 167, 177, 195 review is unlimited. State v. P.3d McCarley, (2008). is the of a offense in several counts Multiplicity charging single aof or information. The complaint principal danger multiplicity is that it creates the for for a potential multiple punishments single offense, which is the Double Clauses of prohibited by Jeopardy tire Fifth Amendment to the United States Constitution and 10§ of the Kansas Constitution Bill of State v. Rights. Thompson, Kan. Schoonover,

In this court announced an framework analytical for whether convictions a defendant determining multiple subject to double is whether the con- jeopardy. overarching inquiry victions are for the same offense. This is divided into two inquiry both of which must be met for there to be a double components, (1) violation: Do the convictions arise from the same con- jeopardy (2) so,

duct? definition, If are there two offenses or by statutory one? 281 Kan. at 496. only

Because both must be met for there to be a double components violation, we choose to Colston’s ar- jeopardy analyze multiplicity to the second gument by Assum- proceeding directly component. for the sake of that Colston’s convictions of ing argument indecent liberties with a child arose from same con- duct, the second is to determine definition inquiry by statutory whether there are two offenses or one. The answer to this only on whether the convictions arose from a inquiry depends single statute or statutes. If the convictions arose from a single statute, the unit i.e., test is did the prosecution applied, legis-

972 under the to allow more than one unit of lature intend prosecution statutes, If the arose from the strict statute? convictions multiple i.e., does one statute of an test is elements require proof applied, the other offense? 281 Kan. at 497- element not necessary prove 98. of both and that his convictions rape aggravated argues a child arose from K.S.A. 21-4643. But this

indecent liberties with that K.S.A. 21-4643 is a crime- court has rejected premise Bello, 191, 197-98, See State v. 289 Kan. 211 P.3d statute. defining 367, (2009); Gonzales, v. 289 Kan. 139 State (2009). Instead, K.S.A.21-4643 is the statute for certain sentencing offenses, of a child under 14 and sex including rape aggravated Here, with a child under 14. Colston was indecent liberties charged 21-3502(a)(2) under K.S.A. and with indecent with rape aggravated 21-3504(a)(3)(A). liberties of a child under K.S.A. Because Colston statutes, the strict elements test is the under charged Schoonover, test that can be used to determine only multiplicity. 281 Kan. at 498.

The crimes of and indecent liberties with child rape aggravated do not have an of elements. sexual inter- identity Rape requires course. indecent liberties consists of lewd or fondling Aggravated the sexual done with the intent arouse or to touching satisfy child, offender, desires of the or both. indecent Aggravated intercourse, sexual does not liberties does not require rape intent to arouse or to the sexual desires satisfy require specific Hill, of one of the See State v. 271 Kan. 26 P.3d parties. (2001) indecent liberties not (rape multipli- test); Belcher, strict elements State v. citous under (2000) not lesser in- 4 P.3d liberties (aggravated test). cluded offense of under strict elements Because the rape elements, s convictions crimes do not contain an identity indecent liberties with a child are not mul- tiplicitous. Age as an Element of the Offenses

Colston’s Colston next claims that his convictions should be reversed be- his the district court failed to instruct the to determine cause as an essential of each element offense. that, The State age argues while recent Kansas case law Colston’s sentence supports vacating error, for this in those cases no evidence was to the presented jury Here, of the defendant’s the State heard un- age. argues from which it could conclude a reason- disputed testimony beyond able doubt that was at least 18 old at the time he years committed the crimes. Colston’s address both arguments statutory and constitutional therefore, this court’s is review interpretation; Bello, unlimited. 289 at Kan. 195-96 State v. 281 (citing Bryan, [2006]). Kan. 130 85 P.3d criminal with a child under Rape 14 sodomy of are level 1 felonies under years the Kansas age severity person Guidelines Act. 3502(c); K.S.A.21- 21-3506(c). K.S.A. Sentencing indecent liberties committed lewd or Aggravated fondling of a child under 14 of is a level 3 touching years age severity person 21-3504(c). K.S.A. However, these same crimes are felony. off-grid felonies when the offender is 18 person or older. K.S.A. years age 21-3502(c); 21-3504(c); K.S.A. 21-3506(c). K.S.A. The sentences for the crimes are set forth at K.S.A. 21-4643. Colston off-grid that this court should reverse his convictions of argues rape, ag- criminal gravated liberties with sodomy, a child because the trial court failed to instruct the to deter- mine a reasonable doubt that he atwas least 18 beyond old years at the time the crimes were committed.

Several recent cases have addressed this same issue and similar Bello, 191; facts. See Gonzales, 289 Kan. 351; 289 Kan. State v. 289 Kan. Morningstar, Colston is cor rect that based on v. New 530 U.S. 147 L. Apprendi Jersey, 435, 120 2d (2000), Ed. S. Ct. 2348 the defendant’s at the time age of the offense is an element of the crime if the State seeks to convict serious, the defendant of the more level of the offense. off-grid Bello, 289 199-200; Gonzales, Kan. at Bello, 289 Kan. at 371. In Gonzales, and this court determined the failure Morningstar, to instruct the to malee a on the defendant’s juiy was finding age error, but the result of the error was to vacate the defendant’s sentence under K.S.A. 21-4643 and to remand for resentencing under the Kansas Bello, a as offense. sentencing guidelines grid 974 371; 289 Kan. Gonzales, 200; Kan. at at Morningstar,

at 495. had no Gonzales, the State Bello,

In presented Morningstar, Here, notes there was the State of the defendant’s evidence age. the trial. Colston’s age presented testimony undisputed that Colston was old and testified that she Donna years that he was 29 Michael testified than she. older almost years 31was old trial and his sister at the time of old years April years evidence, the State father. Based on this was their and that Colston determine failure to instruct that tire trial court’s juiy argues sentences under error and his was harmless Colston’s off-grid age 21-4643 should be K.S.A. upheld. error is to a harmless violation an

Whether subject Apprendi 290 in State v. this court addressed Reyna, recently by analysis (2010). the defendant was con- 666, In Kan. Reyna, liberties with a child. of four counts of victed 25 for life without He was sentenced to years possibility parole instruct the The trial court did not to K.S.A.21-4643. jury pursuant 18 old was at least to determine the defendant that it needed years However, the defendant testi- the crimes were committed. when 37 at trial that he was old. fied years Daniels, 278 that in State v. On this court recognized appeal, (2004), 1147, 543 U.S. 982 we 53, 56-63, cert. denied Kan. 91 P.3d omit had a in which the district court reviewed case inadvertently instruction on harm from the ted the element of ag jury bodily an harm element of The bodily distinguished robbery. gravated the trial But because from a robbeiy. robbeiy simple harm was evidence of overwhelming, undisputed bodily 63; Kan. at see harmless. 278 the error to be Daniels court found (1988) 658, 671-72, 750 P.2d 1013 also State v. Redford, or fear in (omitted was overcome force that victim element by error). instruction was harmless Daniels, this court considered error

In harmless finding States, in Neder v. United Court decision United States Supreme 35, Neder was 119 S. Ct. 1827 144 L. Ed. 2d 527 U.S. the issue of trial court had taken in which the a case pre-Apprendi The trial tax fraud. in a from Supreme jury involving materiality Court concluded that to instruct the on the element refusing juiy was erroneous and Nonetheless, unconstitutional. materiality Neder Court held the error was not the that it had type previously error, i.e., found to be structural that of fundamental consti- type tutional error which is so harmful as to auto- intrinsically require matic reversal. 527 at 8. U.S. The Neder Court determined that “where a court concludes a reasonable doubt reviewing beyond that the omitted element was uncontested and over- supported by evidence, such that the verdict would have been the whelming juiy error, same absent the the erroneous instruction is found properly to be harmless.” U.S. at 17.

This court in also relied on Recuenco, v. Reyna Washington U.S. 165 L. Ed. 2d (2006), 126 S. Ct. 2546 in which the United States Court addressed whether an vi- Supreme Apprendi Recuenco, olation is structural error. In the defendant was charged with assault with a a deadly weapon, specifically, handgun. verdict form returned indicated the found

special juiy jury involved, a but failed to make the deadly weapon specific finding of a The trial court sentence enhance- handgun. imposed 3-year ment for use of a instead of the enhancement that handgun 1-year to the use of a On the Court de- applied deadly weapon. appeal, termined the case was from Neder indistinguishable except Neder involved the failure to instruct the on an element of the crime rather than the failure to instruct the on a sentencing factor. 548 U.S. at 220. The Court went on to conclude that “failure to submit a factor to the like failure to submit an sentencing jury, element to the is not structural error.” 548 U.S. at 222. juiy, decisions,

Based on these this court determined in that Reyna we will harmless error to the omission of an element apply analysis from the instructions 666, to the 290 Kan. 9. jury. Reyna, Syl. ¶ When a court concludes a reasonable doubt that reviewing beyond the omitted element was uncontested and over- supported by evidence, such that the verdict would have been the whelming jury error, same absent the the erroneous instruction is found properly 666, to be harmless. 290 Kan. 10. We also determined that Syl. ¶ the omission of an element from the instructions to characterizing error, the as an i.e., as of juiy Apprendi-type judicial factfinding 976 the maximum enhances element, that element when

the omitted error sentence, the harmless not does analysis. change applicable that evidence In of the 11. undisputed light Syl. ¶ old, in that the trial we held 37was the defendant Reyna years the defendant’s to determine to instruct court’s failure age jury 290 was harmless error. committed the crimes were at the time Kan. at 682. of Colston’s case. the outcome controls

Our Reyna holding trial at Colston’s estab- Here, evidence presented undisputed at least 18 old that he was a reasonable doubt lished years beyond ver- We are convinced the the crimes were committed. when jury in the instructions. absent the error have been the same dict would K.S.A. sentences under Colston’s we off-grid Accordingly, uphold 21-4643.

At.t.en-type Instruction reversible trial court committed claims that the Colston next before de- instruction to when it an error Allen-type gave States, L. 164 U.S. Allen v. United See liberations began. the in- did not Ed. S. Ct. object therefore, reviews this court when it was to the struction jury; given 22- K.S.A. erroneous standard. under a the instruction clearly stated, erroneous 3414(3). are instructions As clearly previously is a real that there court is convinced if the firmly reviewing only if verdict have rendered a different would possibility Carter, 284 Kan. at 324. had occurred. trial error not No. 13 to The trial court Instruction jury: provided cases, a on some If fail to reach decision all this is an case. you “Like important undecided for the time or are left being. or all of the charges charges, charge the undecided whether to resubmit charges It then to the state to decide is up sides. trial would be a burden on both at a later time. Another a different jury should surren- “This does not mean diat those any particular position favoring of evidence as to the or effect any solely der their honest convictions weight of of the arriving of other or because importance because of the jurors opinion a decision. each other’s consideration to mean that should “This does you give respectful fairness and candor. and talk over differences spirit views opinion and come to a common differences should resolve any If at all possible, you conclusion. “You be may leisurely your deliberations as tire occasion may require all

take the time feel you added.) necessary.” (Emphasis from Instruction No. 13 came language from a version prior 68.12, of PIK Crim. 3d as known commonly “deadlocked jury” instruction. In the current instruction, pattern “an- language other trial would abe burden on both sides” has been removed. Otherwise, the trial court’s Instruction No. 13 tracks almost iden- with the current tically instruction. pattern This court has addressed specifically at issue in two language recent cases. In Salts, State v. Kan. (2009), this court held that the “[a]nother trial would language be a burden on both sides” is error because it is and in- misleading accurate; however, was it not reversible error. Salts, In the instruc- tion was before the given deliberated and was jury included with all the other instructions. The defendant jury did not to the object instruction. The Salts court that, found under the erroneous clearly standard, there was no real that the would possibility have jury returned a different verdict if the error had not occurred. 288 Kan. 267; see also v. Ellmaker, State 1146-47, 221 (2009) (same P.3d 1105 instruction challenged was language jury erroneous, but not erroneous). clearly that the argues “another trial language would be a bur- den on both sides” is reversible error in his case because there is a real would have possibility jury rendered different verdict without that First, he that the language. did not argues believe jury all of B.N.’s because it testimony Colston on Count acquitted II. Second, he that the argues a difficult time with having Count IV because it sent a to the trial court question about the of “on or about” with meaning to the date the act was regard com- mitted. Colston asserts that these two facts indicate that the jury have decided to resolve its may differences and reach a verdict to avoid an additional burden creating retrial. upon As the out, State the fact that points jury acquitted not, Count II itself, does indicate that did not believe B.N.’s Rather, it testimony. indicates that the State failed to prove Count II a reasonable beyond doubt. While the trial court did IV, did the Count about question the from a

receive jury question reason no There is was the deadlocked. that indicate juiy not clearly of the its verdict any that the believe compromised jury to No. 13. in Instruction the a result of as counts language and was the deliberated before No. jury 13 Instruction given not did Colston object instructions. other all the with jury included after- same on the verdicts its reached The the instruction. jury not were deliberations so the deliberations jury noon began, read, trial court the were the verdicts After fewa hours. than more with the he or she stated each agreed and the juror jury polled This case was substantial. Colston evidence verdicts. against Allen- of the effect the Ellmaker to Salts similar regarding is are not same. We should be the instruction, result the type have would the real is a there possibility convinced firmly not occurred. had error if the trial verdict different a rendered reversible did not commit trial court conclude the we Accordingly, 13. No. Instruction error by giving Error Cumulative the errors of the cumulative claims that impact Colston Finally, a fair trial. him of his his case right deprived “ ‘ as to be so errors, great collectively, may when considered trial “Cumulative the of totality is whether The test conviction. defendant’s of the reversal require defendant] denied [the the defendant and substantially prejudiced circumstances rule, effect cumulative found this be upon error may trial. No fair prejudicial omit- [Citations the however, defendant.” evidence is overwhelming against if the ” Brown, 305- 285 Kan. Ellmaker, State v. at 1156 (quoting ted.]’ [2007]). P.3d instructions court’s concluded, the trial some of

As we have However, the none of erroneous, erroneous. not but clearly were evidence, and the of admission involved questionable errors if not was substantial overwhelming. of Colston’s evidence guilt Al- consistent. remained what of B.N.’s statements happened trial, the two of offenses dates of switched she though consistent, as did number remained the acts about details B.N.’s testimony corroborated Michael act each occurred. times saw B.N. that he incident on testifying about naked the basement. The State also forensic presented evidence of Colston’s DNA on the crotch of B.N.’s swimsuit. Given evidence, we are convinced that the firmly cumulative effect errors committed the trial court did not deprive of his to a fair trial. right

Affirmed.

Davis, not C.J., participating.

Malone, J., assigned.

[*] ## I Johnson, J., dissent on the dissenting: issue of the respectfully element of defendant’s missing as I did in State v. age, Reyna, Kan. 234 P.3d 761 (2010) (Johnson, J., dissenting).

Case Details

Case Name: State v. Colston

Court Name: Supreme Court of Kansas

Date Published: Jul 23, 2010

Citation: 235 P.3d 1234

Docket Number: 100,005

Court Abbreviation: Kan.