Joseph Jones, Jr., seeks review of the Court of Appeals’ decision, State v. Jones, No. 97,696,
Factual and Procedural Overview
Jones was employed as a live-in farmhand at a stable where H.F. and other children volunteered to work in exchange for free horseback rides. On October 16, 2005, Jones called H.F., asking if she could come to work. When she arrived at the stable, the owner and a few other volunteers were there looking at horses. However, after H.F. had completed a few chores, she discovered that she had been left alone with Jones.
When H.F. entered the tack room where Jones resided to get a drink, Jones offered her two glasses of soda that contained alcohol. H.F. said she drank both glasses despite the fact that “[i]t made [her] whole chest burn.” Jones also gave her a “joint” and repeatedly pressured her to smoke it with him. Despite her initial protests, H.F. eventually agreed to smoke it “once or twice.”
When H.F. began feeling dizzy, she attempted to call her grandmother to come for her, but Jones pushed her to tire ground, pinned her wrists, knelt on top of her, and put his penis in her mouth. Although she was unsure why, Jones obeyed her command to get off of her. Once free, H.F. threatened Jones with a fork she retrieved from a nearby table and then called her grandmother to come pick her up, before running out into the street.
When the grandmother arrived, she found H.F. staggering down the middle of the road with Jones trailing behind her. In the car, the grandmother noticed that H.F. was acting upset, hysterical, and drugged. Upon arriving at grandmother s house, H.F. vomited several times and then told her grandmother that Jones had touched her.
After learning what had happened, H.F.’s mother took her to the hospital where nurse Gannon, a sexual assault nurse examiner (SANE), conducted an examination. Nurse Gannon collected two sets of physical samples: (1) oral swabs and blood samples for the Kansas Sexual Assault Evidence Collection Kit provided by the Kansas Bureau of Investigation (KBI), and (2) blood and urine samples pursuant to the doctor’s orders to test H.F.’s “basic chem-istries to see if she was generally healthy.” The first set of physical samples was given to the local police as part of the assault kit, which was logged into evidence and sent to the KBI forensic laboratory. Those samples were not analyzed for drags or alcohol. The second set was given to the hospital laboratory for analysis, the results of which included a positive indication of alcohol and marijuana in H.F.’s system.
Jones was charged with three counts: aggravated criminal sodomy, furnishing alcohol to a minor for an illicit purpose, and endangering a child. At trial, Jones made a hearsay objection to nurse Gannon’s testimony that the hospital laboratory results indicated that H.F.’s blood and urine contained alcohol and marijuana. Initially, the district court sustained the objection based on the State’s
The jury convicted Jones on all three counts, the court sentenced him to a term of months in prison, and Jones appealed both his convictions and sentences to the Court of Appeals. In that court, he argued that several errors warranted reversal of his convictions: (1) the admission of Gannon’s testimony regarding the hospital laboratory results violated his right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution, as well as under § 10 of the Kansas Constitution Bill of Rights; (2) he was convicted of child endangerment based on alternative means without jury unanimity; (3) the district court erred in failing to instruct the jury on the lesser included offense of criminal sodomy; and (4) his sentence was enhanced in violation of the Sixth and Fourteenth Amendments based on prior convictions that were not proved to the jury beyond a reasonable doubt.
The Court of Appeals affirmed Jones’ convictions and sentences. With respect to the Confrontation Clause issue, the panel noted that the alcohol and marijuana test results were not part of the KBI forensic investigation; rather, they were obtained from the hospital’s testing in connection with H.F.’s treatment. The panel observed that there was nothing in the record to suggest that the laboratory technician performing the tests would have known the samples came from a minor or a crime victim, and that if the technician would not have anticipated their use in a criminal prosecution, the results would not be testimonial in nature. We granted review.
Right of Confrontation
Jones’ complaint involves nurse Gannon’s brief testimony based upon the hospital’s laboratory report: “There [were] positive results for marijuana and for alcohol both in her drug test.” Because the nurse did not perform the testing, Jones made a hearsay objection at trial, contending that the nurse’s testimony related an out-of-court declaration by the laboratory technician that was offered for the truth of the matter asserted. The district court ultimately overruled the objection, apparently determining that the State had laid sufficient foundation to establish that the laboratory report was a business record, even though no report or record was ever proffered or admitted into evidence.
Jones does not specifically challenge the district court’s ruling on his hearsay objection. Rather, for the first time on appeal, Jones argues that the nurse’s hearsay testimony violated his right to confrontation under the Sixth and Fourteenth Amendments to the United States Constitution, as well as violating § 10 of the Kansas Constitution Bill of Rights. Ordinarily, the failure to specifically base a trial objection on the Confrontation Clause precludes appellate review of that issue. See State v. McCaslin,
In the watershed case of Crawford v. Washington,
Standard of Review
“ ‘We employ an unlimited standard of review when addressing issues pertaining to the Confrontation Clause of the Sixth Amendment to the United States Constitution.’ State v. Leshay,
Analysis
The Crawford, Court did not specifically define testimonial statements, opting instead to identify types of statements that could qualify:
“Various formulations of this core class of‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’. . . ‘extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation omitted]; ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial’ [citation omitted].”541 U.S. at 51-52 .
The Court later refined its Crawford analysis in Melendez-Diaz v. Massachusetts,
At the time we granted review in this case, our decision in State v. Brown,
In Miller, we were asked to decide whether the statements made by a 4-year-old victim of sex crimes to a SANE were testimonial. In doing so, we synthesized the United States Supreme Court’s holdings in Michigan v. Bryant,
Although we acknowledged that, generally, statements made to medical professionals for treatment purposes and recorded in medical records are not testimonial, we discerned that the ultimate determination of a statement’s character rests with the “primary purpose” of the questioning.
Unfortunately, because Jones did not raise the right of confrontation issue at trial, we have no findings relevant to whether tire laboratory results were testimonial in nature. Specifically, we have no findings as to the primary purpose of the hospital technician s laboratory report. That absence precludes us from a proper review on this issue.
As the Court of Appeals opined, there is evidence in the record which would support a finding that the laboratory results in question were generated primarily for medical treatment purposes. Nurse Gannon testified that the doctor directed her to withdraw samples to be used for tests other than the KBI ldt, and she said that the tests were to check the victim’s “basic chemistries to see if she was generally healthy.” In contrast, the nurse testified that she was also assisting law enforcement, and Officer Simmons testified that he encouraged the family to take H.F.to the hospital to “get a rape kit and ... to also check on her medical condition.”
In short, H.F.’s hospital visit accomplished dual purposes, and it is unclear at what point the SANE’s activities might have transitioned from medical treatment to law enforcement purposes. We do not even have a finding on when H.F.’s mother consented to collecting the samples. See Miller,
Without findings, we are handcuffed. See State v. Thomas,
Alternative Means
Next, Jones presents a curious, albeit creative, alternative means argument. He contends that the jury’s verdict on the charge of endangering a child was legally inadequate because the State presented evidence of three alternative means for committing the offense, two of which were legally insufficient because they were multiplicitous with the other charges. Specifically, Jones
‘When a single offense is alleged that may be committed in more than one way, the court is presented with an alternative means case. [Citation omitted.] When several acts are alleged, any of which could constitute the crime charged, the court is presented with a multiple acts case. [Citation omitted.]” State v. Bailey,292 Kan. 449 , 458,255 P.3d 19 (2011).
To convict Jones of endangering a child under K.S.A. 21-3680, the State had to prove that he “intentionally and unreasonably caus[ed] or permitt[ed] a child under the age of 18 years to be placed in a situation in which the child’s life, body or health [might] be injured or endangered.” An alternative means analysis looks at the material elements of the crime, rather than the number of possible factual scenarios that might fit into those elements. For instance, a traditional alternative means argument would go something like this: The defendant could have been convicted of one incident of endangering a child by either causing the child to be placed in a dangerous situation or by permitting the child to be placed in that circumstance, and there was evidence of only one of the means. But that is not the situation here. Rather, Jones argues that there are three factual scenarios, involving three separate and distinct acts, each of which could have formed the basis for a charge of endangering a child.
In other words, Jones describes multiple acts whereby the State could have filed three counts of endangering a child. In that scenario, the concern is whether the State elected the act upon which it was relying or the trial court gave a unanimity instruction. Inexplicably, the parties argue over whether the State’s closing arguments effected an adequate election from among the multiple acts, even though such an election does not save an alternative means case. In short, Jones’ alternative means issue does not fit the facts of this case, and his arguments are without merit.
Lesser Included Offense Instruction
Jones next contends that the district court erred in failing to instruct the jury on simple criminal sodomy, even though Jones did not request the instruction or object to its omission. Accordingly, Jones is not permitted to claim error on appeal unless the failure to give the lesser included offense instruction was clearly erroneous. See K.S.A. 22-3414(3).
Standard of Review
Before we can find that the omission of a lesser included offense instruction was clearly erroneous, we must find that the instruction was legally and factually appropriate. That determination is made through a de novo review. See State v. Williams,
Analysis
A district court is under no duty to provide a lesser included offense instruction if the jury could not reasonably convict the defendant of that lesser included offense based on the evidence presented. State v. McCullough,
Appbendi Challenge
Finally, Jones argues that use of his prior convictions in his criminal history score to enhance his sentences without requiring the State to prove tire convictions to a jury beyond a reasonable doubt is prohibited under Apprendi v. New Jersey,
Affirmed.