Aftеr considering Marlin Williams’ appeal from a jury conviction for aggravated trafficking in violation of K.S.A. 21-3447(a)(2), the Court of Appeals, in State v. Williams,
On review, we agree with the Court of Appeals, although we occasionally depart from its reasoning, and affirm Williams’ conviction and sentence.
On May 4, 2007, a Dallas, Texas, police detective was patrolling an area known for prostitution activity when he observed a young girl walking along the street. A Ford Explorer, which the detective recognized as the vehicle of a known prostitute, pulled up nеar the young girl, but die young girl kept walking when she spotted the clearly marked patrol car. The girl’s youthful appearance and behavior aroused the detective’s suspicions, causing him to follow her to a gas station where he stopped her and asked for her name and birth date. She offered a birth date that seemed obviously false to the detective, so he continued to talk to her. She eventually told him her real name—L.M.—and her date of birth date—October 10,1991. Upon learning L.M.’s true identity and that she was only 15 years of age, the detective investigated further and discovered L.M. had been reported as a runaway from Wichita, Kansas. L.M. was transported to Dallas police headquarters for an interview. In the interview, L.M. explained she met a pimp in Wichita named “Pressure” in late April or early May. Pressure recruited her to join his prostitution ring and then drove her from Wichita to Dallas so she could work for him. L.M. gave detectives permission to examine the phone she had with her; the detectives found a phone number with a Wichita area code labeled ‘Treasure.”
L.M. was returned to Wichita. Once there, she learned that Pressure’s real name was Marlin Williams. She reported this tо law enforcement officers in Wichita.
After an investigation, the State filed charges against Williams alleging that “on or between the 1st day of April, 2007 and the 5th day of May 2007” Williams unlawfully recruited, harbored, transported, provided, or obtained by any means L.M., a child under 18 years of age, knowing L.M., with or without force, threat or coercion, would be used to engage in sexual gratification of the defendant or another in violation of K.S.A. 21-3447(a)(2).
At trial, L.M. provided details about her first contact with Williams; her first encounter was at a party, and the second was when Williams drove to the place she was living. During this second meeting, Williams, who was accompanied by a female prostitute, recruited L.M. to join in his prostitution ring.
L.M. explained that several weeks before she met Williams she had run away from the Wichita Childrens Home. By the time L.M. met Williams, her living situation was rocky. She was living with a woman who had been unable to pay her rent or utility bills for several months; the water had been shut off, and they were losing electricity that week. “We never really ate much, and if we did, we always went to Save-A-Lot and stole stuff.” Consequently, when Williams asked her to work as a prostitute, she agreed because she “didn’t have no choice; it was just the first choice thаt came up.” She admitted, “I knew what I was getting myself into.”
After L.M. agreed to go with Williams and they drove away in his car, he asked if she wanted to immediately travel to Texas. She agreed but asked to call the woman with whom she had been living and to get her clothes and belongings. Williams refused, fearing she would change her mind. He promised to buy her clothes and whatever she needed once they got to Dallas, although L.M. testified that he never did. He also laid down some rules, telling L.M. that “he didn’t like his girls—which is the word he used; let’s make that clear, girls—to look at any other man. He wanted them to look down and don’t speak unless you’re spoken to unless I say you can respond.”
Before leaving Wichita, Williams stopped at a house. The female prostitute—whom L.M. estimated to be about 20 years of age— and L.M. stayed in the car, and L.M. asked the woman what prostituting was like, whether Williams would buy her condoms, and what he would do if she looked at anyone. Williams then took L.M. and the woman to an apartment where he told L.M. to undress so he could look at her. After the inspection, Williams drove to another location and picked up a man he called “Casper” and then to a hotel where the woman was staying so she сould get her belongings. Before they left Wichita, Williams told L.M. she should not be working the streets because she “is far too pretty for that” and once he had
The woman and Casper accompanied Williams and L.M. to Dallas. Once they got to a hotel, Williams told L.M. to perform oral sex on him. When during the trial L.M. was asked why she obeyed, L.M. responded, “That’s just what you have to do. And I believe he said that to[o], like, . . . You got to do what I say.” Soon after Williams’ demand and within hours of arriving in Dallas, Williams told L.M. the minimum amount she should charge for various sex acts and the minimum she had to make before she returned to the hotel. He then gave her a beeper phone and sent her out to walk the streets.
L.M. testified she and Williams stayed in three hotels over the next several days. After the first day, L.M. worked 10 to 12 hours a day, starting at die times Williams directed. According to L.M., she made about $1,000 per day and she gave all of that money to Williams, except for a relatively small amount of cash she had on her when she was taken into custody by the police. Williams would periodically check on her, asldng her where she was and how much she had made. Every few hours she would return to the hotel to give Williams the money she had been paid and to shower. She only ate when Williams would bring her food; she denied ever using the money she made to buy food or drink.
Managers of two Dallas hotels also testified at trial. One manager testified Williams stayed at his hotel on April 29, 2007, in a one-person room. The other indicated Williams checked into a four-person room and stayed May 3 and 4, 2007.
At trial, Williams testified in his own defense. He told the jury that he stayed at the first hotel on April 29, 2007, with a woman he met in Dallas. He denied going to Dallas with L.M., but he did admit to seeing her as he was leaving his hotel. According to Williams, they simply made eye contact and gestured toward each other. Williams indicated he then returned to Kansas and, on May 3, 2007, drove back to Dallas with his girlfriend, their son, and his girlfriend’s niece for the purpose of shopping for clothes. Williams testified that he again saw L.M., this time at the second hotel’s swimming pool. She walked up and said, “I know you from somewhere.” After some small talk, they realized diey were both from Wichita and the conversation continued from there. L.-M. asked him to get her some liquor, and he took her to the liquor, store. While driving to the liquor store she asked for his phone number, and he gave it to her. He also gavе her his nickname “Pressure.” He testified that L.M. told him she was 19 or 20 years old.
The jury found Williams guilty of aggravated trafficking under K.S.A. 21-3447(a)(2). The district court imposed a downward du-rational departure sentence of 246 months’ imprisonment.
Williams timely appealed his conviction to the Court of Appeals. As noted, that court rejected Williams’ claims and affirmed his conviction and sentence. Williams,
In those issues, which we have reordered and consolidated for purposes of our discussion, Williams asserts: (1) The aggravated trafficking statute is unconstitutionally overbroad because it prohibits constitutionally protected activities such as speech, association, and travel and is unconstitutionally vague because it does not define the terms “used” or “sexual gratification”; (2) tire charged offense of aggravated trafficking is identical to the offense of promoting prostitution, and Williams should have received tire shorter sentence for promoting prostitution under the identical offense sentencing doctrine; (3) the district court erred in entering a conviction for aggravated trafficking when the evidence supported die more specific offense of promoting prostitution; (4) the prosecutor committed misconduct during closing arguments by improperly commenting on the credibility of L. M. and Williams and by shifting the burden of proof to Williams; and (5) the district court erred in increasing his sentence
This court granted Williams’ petition for review under K.S.A. 20-3018(b) and has jurisdiction under K.S.A. 60-2101(b).
Constitutionality of K.S.A. 21-3447(a)(2)
In Williams first two issues on appeal, he contends that the subsection of the aggravated trafficking statute he was convicted under, K.S.A. 21-3447(a)(2), is unconstitutionally overbroad and vague. K.S.A. 21-3447(a)(2) defines the offense of aggravated trafficking as
“recruiting, harboring, transporting, providing or obtaining, by any means, a person under 18 years of age knowing that the person, with or without force, fraud, threat or coercion, will be used to engage in forced labor, involuntary servitude or sexual gratification of the defendant or another.”
Referring to those provisions, Williams argues K.S.A. 21-3447(a)(2) is unconstitutionally overbroad because it infringes on constitutionally protected rights of “speech (recruiting), travel (transporting), or association (providing, obtaining) with a minor knowing that the minor ‘will be used to engage in’ tire sexual gratification of the defendant or another.” As he did before the district court and Court of Appeals, Williams further argues that the statute does not prohibit sexual activity but instead prohibits “thoughts, ones that are sexual in nature, by the defendant or another resulting from the defendant’s actions involving a minor.”
To illustrate the potential constitutional infringements that could arise from enforcement of these provisions, Williams offers several hypothetical examples. First, he suggests the statute infringes on the United States Constitution’s First Amendment speech protection by prohibiting “a person from requesting a ‘date’ with a minor (recruiting) when the person making the request knows that they will be sexually gratified by the experience.” Second, he asserts that even flirting with a minor (recruiting) would be criminal. Additionally, he presents the scenario of a father driving (transporting) his child to the high school prom knowing the child will engage in sexually gratifying activities. Finally, he suggests the statute constitutes an unwarranted and intolerable intrusion into the marital relationship by preventing lawfully married minors from traveling for their honeymoon. These examples, according to Williams, illustrate that K.S.A. 21-3447(a)(2) is overbroad because it criminalizes constitutionally protected activities and is vague because it leaves a person of common intelligence to guess whether the minor was “used” or whether these activities can lead to “sexual gratification.” See State v. Wilson,
1. Does Williams Have StandingP
Before addressing the substance ofWilliams’ arguments, we first consider tire question of whether Williams has standing to argue K.S.A. 21-3447(a)(2) is unconstitutional. This question arises because Williams concedes the conduct L.M. attributed to him clearly falls within the terms of the statute; further, he does not argue that conduct is constitutionally protected. Nevertheless, he suggests other conceivable factual scenarios might impact hypothetical defendants and argues those scenarios illustrate the statute is vague and overbroad.
The State argues Williams lacks standing to assert tire statute is vague, but it does not object to Williams’ standing to argue the statute is overbroad. Some general discussion of standing is necessary to explain the reason for the State’s differentiated response to Williams’ arguments and tire basis for our conclusion that Williams does indeed lack standing to arguе tire statute is unconstitutionally vague but has standing to pursue his arguments regarding the statute’s overbreadth.
Generally, “if there is no constitutional defect in the application of the statute to a litigant, [the litigant] does not have standing
The general rule does not apply, however, when a litigant brings an overbreadth challenge that seeks to protect First Amendment rights, even those of third parties. Instead, an exception has been recognized “because the mere existence of the statute could cause a person not before the Court to refrain from engaging in constitutionally protected speech or expression.” City of Wichita v. Wallace,
Consequently, Williams does have standing to assert on behalf of third parties that K.S.A. 21-3447(a)(2) is overbroad. The exception does not extend to arguments of vagueness, however. Instead, a party asserting vagueness “cannot challenge the cоnstitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court.” Tolen v. State,
We turn to a discussion of whether the statute is overbroad.
2. KS.A. 21-3447(a)(2) Is Not Overbroad
Williams’ argument that K.S.A. 21-3447(a)(2) is overbroad requires us to interpret the statute and presents a question of law, which is subject to unlimited review. State v. Whitesell,
The separation of powers doctrine requires a сourt to presume the statute is constitutional. State ex rel. Morrison v. Sebelius,
Applying the two-part test, the district court, after hearing Williams’ arguments, concluded that Williams had failed to еstablish his proffered hypothetical situations were a significant part of the law’s target. The Court of Appeals agreed, citing Wilson,
In Wilson, the defendants were convicted of endangering a child under K.S.A. 21-3608(a), which prohibits “intentionally and unreasonably causing or permitting a child under the age of 18 years to be placed in a situation in which the child’s life, body or health may be injured or endangered.” On appeal, the defendants argued the statute was unconstitutionally vague because it criminalized parental decisions to allow children to engage in lawful but potentially injurious activities, such as football, and overbroad because it “ ‘regulates and inhibits the manner or mode in which ideas are expressed.’ ”
The Wilson court rejected the defendants’ arguments by declaring that “courts will not give strained meanings to legislative language through a process of imaginative hypothesizing; a common-sense interpretation of the statute is the guiding principle.”
Likewise, K.S.A. 21-3447(a)(2)—the aggravated trafficking provision—covers a broad range of conduct and circumstances in order to protect minors from criminal trafficking. See Minutes, Sen. Judiciary Comm., February 16, 2005 (2005 Judiciaiy Minutes); L. 2005, ch. 200, secs. 2-3. Further, like the child endangerment statute, the aggravated trafficking statute has limiting words. Of particular import in light of Williams’ arguments is the word “used.” Although Williams argues the word is vague, in part because the statute does not define which of the word’s multiple meanings applies, we conclude the word’s context makes its meaning clear, and its meaning limits the scope of K.S.A. 21-3447(a)(2). Specifically, the phrase “used to engage in forced labor, involuntaiy servitude or sexual gratification” indicates the statute is limited to situations where a minor has been exploited. See Webster’s II New College Dictionaiy 1215 (1999) (defining “use” as including “[t]o put to some purpose” and “[t]o exploit for one’s own advantage or gain”).
To the extent there is any question of this interpretation, the legislative history of K.S.A. 21-3446, defining the elements of trafficking, and K.S.A. 21-3447, defining the elements of aggravated trafficking, provides guidance. See Brown,
Several proponents testified before the Senate Judiciary Committee and urged the bill’s adoption. A representative of the Attorney General’s office explained that S.B. 151 as it was originally proposed “deals with taking people against their will for forced labor and involuntary servitude or for sexual exploitation.” 2005 Judiciary Minutes. At the same hearing, however, the Kansas Coalition Against Sexual and Domestic Violence requested an amendment to define aggravated trafficking to include situations in which a child under the age of 18 was the victim, regardless of whether there was evidence of force, fraud, threats, or coercion. 2005 Judiciary Minutes.
Thе Concerned Women’s written testimony also discussed the connection between prostitution and trafficking as well as the vulnerability of women and children, particularly those living in poverty, “runaway girls and others in vulnerable situations [who] are in danger of getting lured into the trap of pimps and johns.” 2005 Judiciary Minutes, attach. 8, p. 4. Likewise, a representative of the United States Department of State also mentioned the plight of “teenage girls .. . who have been trafficked into commercial sexual exploitation . . . [and] forced to service unthinkable numbers of men day after day.” 2005 Judiciary Minutes, attach. 13, p. 2. These two proponents also emphasized that trafficking is not just an international problem but one affecting Kansas, and they referred to a then-recent incident involving a 20-year-old man and his father who “lured” several 13- to-16-year-old girls from a Wichita high school with promises of “ ‘day trips.’ ” The girls were then held in various hotels, given drugs and provocative clothes, and forced to work as prostitutes at truck stops in Oklahoma. 2005 Judiciary Minutes, attach. 8, p. 1; attach. 13, p. 2.
After hearing this testimony, the Senate Judiciary Committee and, later the entire legislature, adopted the proposed amendment rеgarding minors, which was codified at K.S.A. 21-3447(a)(2), and the remainder of S.B. 151. See L. 2005, ch. 200, secs. 2-3. The history suggests the legislature viewed the trafficking of minors, who are especially vulnerable because of age, to be a serious felony—at least a severity level 1 person felony and potentially an off-grid felony if the offender is 18 years of age or older and the victim is less than 14 years of age—even if force, fraud, threat, or coercion is not used. See K.S.A. 21-3447(b). Further, the overall history indicates the statutory aim was to prevent forced labor, involuntary servitude, or sexual exploitation, which the legislature clearly understood to include prostitution. 2005 Judiciary Minutes.
Considering this history and the wording of K.S.A. 21-3447(a)(2) in the context of Williams’ argument, we conclude the clear target of the provision is a situation in which a minor’s vulnerability is exploited through an abuse of power—i.e., where the minor is “used.” Commonsense indicates minors are not exploited or used when they date, flirt, go to their high school prom, or travel with their spouse. As the district court and Court of Appeals aptly determined, Williams’ hypothetical scenarios do not represent a significant part of K.S.A. 21-3447(a)(2)’s target.
Accordingly, we hold that aggravated trafficking as defined in K.S.A. 21-3447(а)(2) is not unconstitutionally overbroad.
Aggravated Trafficking Is Not The Same As, Promoting Prostitution
In two related issues, Williams seeks to have his criminal activity treated as the criminal offense of promoting prostitution, defined in K.S.A. 21-3513, rather than aggravated trafficking. In one argument, he seeks
In making these arguments, Williams points to two portions of the statute defining the offense of promoting prostitution, K.S.A. 21-3513, specifically: “(a)(4) inducing another to become a prostitute” and “(a)(7) procuring transportation for, paying for die transportation of, or transporting a person widiin this state with the intention of assisting or promoting that person’s engaging in prostitution.” Because the aggravated trafficking statute prohibits, among other things, recruiting, transporting, or obtaining a person knowing the person will be used for sexual gratification, Williams argues that portions of die aggravated trafficking and promoting prostitution statutes overlap. He contends tiiat “the term, Tor hire,’ in the promoting prostitution statute encompasses the meaning, ‘obtain the use of,’ which is analogous to the ‘used to engage in’ from the aggravated trafficking statute.” He further notes both statutes involve stimulation of sexual desires. See K.S.A. 21-3512 (defining “prostitution” as [a] performing or [b] offering or agreeing to perform for hire or for an exchange of value any of the following acts: [1] sexual intercourse; [2] sodomy; or [3] manual or other bodily contact stimulation of the genitals of any person with the intent to arouse or gratify the sexual desires of the offender or another).
The State responds that while the provisions overlap, they do not contain identical elements. Under promoting prostitution, the State would have been required to prove that the defendant intended for L.M. to engage in prostitution, which is not required under aggravated trafficking. Thus, the statutes address different conduct, and one is not the more specific version of the other.
We next address Williams’ сontention that the identical offense sentencing doctrine applies.
1. Identical Offense Sentencing Doctrine
This issue was first raised prior to Williams’ sentencing when he filed a motion arguing the district court should apply the identical offense sentencing doctrine and sentence him to the lesser penalty of promoting prostitution. The district court recognized that the two offenses have some similarities but found there are substantial differences in the elements that must be proven for each offense and overruled Williams’ motion. The Court of Appeals agreed, noting that promoting prostitution required proof of prostitution and prohibited transporting a person within the state, while aggravated trafficking does not. Further, aggravated trafficking requires proof of the victim’s age, while promoting prostitution does not. State v. Williams,
On review of these holdings, the question of whether the district court and Court of Appeals erred in failing to apply the identical offense doctrine presents a question of law over which we exercise de novo review. State v. Sandberg,
This court has recognized three types of situations where offenses may have identical provisions:
“(1) where one offense is a lesser included offense of the other; (2) where some provisions in two statutes overlap, the overlapping provisions apply to the charged crime, and the overlapping provisions are identical except for the penalty provisions; and (3) where all provisions in two statutes are identical except for the penalty provisions. The identical offense sentencing doctrine applies to the second and third situations. State v. Campbell, 279 Kan. 1 , 14-15,106 P.3d 1129 (2005) (quoting 4 LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95-99 [2d ed. 1999]).” Snellings,294 Kan. at 152 .
Williams argues this case falls within the second category—overlapping statutes—-and the Court of Appeals agreed. Williams,
As that principle applies in this case, while the fact that L.M. engaged in prostitution in Dallas was one circumstance used to prove the “sexual gratification” element of aggravated trafficking, that factual overlap is not determinative of whether the offenses of aggravated trafficking and promoting prostitution are identical. Rather, “the facts of the case are only relevant to determine which provisions of a statute apply—a preliminary step—not as a final step of examining the record to determine what evidence was used to prove the overlapping elements.” Snellings,
As the State argues and the Cоurt of Appeals concluded, the offense of promoting prostitution requires proof that the defendant induced or transported a person with the intent that the person engage in prostitution, i.e., for the purpose of having the person perform sexual intercourse, sodomy, or any other bodily contact with the intent to arouse or gratify the sexual desires of another “for hire” or “where there is an exchange of value.” K.S.A. 21-3513(a)(4); K.S.A. 21-3513(a)(7); K.S.A. 21-3512. In contrast, the offense of aggravated trafficking only requires proof that the defendant recruited or transported “knowing that the person . . . will be used to engage in . . . sexual gratification of the defendant or another”; the offense does not require proof that the defendant intended the person to perform sexual acts in exchange for something of value. K.S.A. 21-3447(a)(2).
For example, in this case Williams arguably could have been charged with aggravated trafficking based on his act of transporting L.M. to Texas for die purpose of having her perform sexual acts with him. The evidence established he told her to orally stimulate him as soon as they arrived in Dallas, and there is no indication L.M. participated because she agreed tо an exchange for value. Rather, the evidence was that she felt compelled to do as Williams instructed. Thus, there was evidence Williams induced and transported L.M. with the intent to use her for his own sexual gratification, and the State did not have to prove that Williams’ intended for L.M. to engage in prostitution in order to convict him of aggravated trafficking.
The Court of Appeals continued its analysis after holding that the aggravated trafficking provision did not require proof of promoting prostitution by contrasting the two statutes based on whether there was a requirement of travel within the state and proof of the victim’s age. The Court of Appeals’ analysis on these additional points raises several questions. For example, although the Court of Appeals correctly observed
We need not burden this opinion with an extended discussion answering this and the other questions that arise from the Court of Appeals’ analysis, however, because we have already found that one element of the offense of promoting prostitution is not an element of aggravated trafficking. Thus, the Court of Appeals’ ultimate conclusion that promoting prostitution and aggravated trafficking are not identical offenses is correct, and it does not matter if there are additional differences.
In conclusion, the offenses of aggravated trafficking and promoting prostitution are not identical and tire district court properly sentenced Williams for aggravated trafficking under K.S.A. 21-3447(a)(2), a severity level 1 person felony.
2. Promoting Prostitution is Not the More Specific Offense
In the alternative, Williams argues that because his conduct was prohibitеd by both statutes, he could only be convicted of promoting prostitution because it is a more specific offense than aggravated trafficking.
Before addressing the merits of this argument, a preliminary question arises regarding whether Williams preserved this issue for appeal. In his brief before the Court of Appeals, Williams acknowledged that he did not specifically argue the “general/specific offense doctrine” to the district court, but he argued that the issue “may be raised for the first time on appeal because it involves only a question of law and is finally determinative of the case. State v. Shopteese,
In considering the parties’ arguments, the Court of Appeals concluded that Williams’ case is distinguishable from Gibbens because Gibbens “involved an appeal that was solely related to the sentence imposed following the defendant’s plea and he had never previously challenged his convictions at any point.” Williams,
In Gibbens, the defendant pleaded nolo contendere to two counts of rape, and, prior to his appeal, he never sоught to withdraw his pleas or present any type of challenge to his convictions. By entering the pleas, Gibbens waived any defect in the charging of the offenses or his convictions. See State v. Phinney,
Nevertheless, issues not raised below are generally precluded on appeal. State v. Prine,
The rule on which Williams relies—that a general statute should yield to a specific statute covering the same criminal conduct—“is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case.” State v. Helms,
Looking at the elements of the offenses of aggravated trafficking and promoting prostitution, the Court of Appeals panel in this case applied these principles and concluded that “promoting prostitution might be considered a more specific crime than aggravated trafficking in some cases,” but not in this case. Williams,
As the court in Cott noted, when interpreting a statute an appellate court’s first task is to “ ‘ascertain the legislature’s intent through the statutoiy language it employs.’ ” Cott,
In this case, however, the legislative history does provide information regarding legislative intent. As we have discussed, there was repeated testimony during the legislative hearings in which proponents emphasized the need to criminalize trafficking where the victims were used for prostitution. See Minutes, Sen. Judiciary Comm., February 16, 2006 (2005 Judiciary Minutes). Further, the legislature was advised there would be overlap between aggravated trafficking and other criminal offenses but were told the comprehensive aggravated trafficking provision was needed. Then-Professor Kobach, in listing various reasons the Kansas Legislature should adopt state legislation even though there was a federal trafficking statute, indicated that “cases may arise in which human trafficking offenses are part of a larger set of crimes. Prosecution of the defendants for tírese state crimes, along with the trafficking crimes, in a single state jurisdiction may offer the best prosecution strategy.” 2005 Judiciary Minutes, attach. 10, p. 6. The United States Department of State representative also indicated a trafficking crime can
This case is illustrative. Although the State’s evidence may have been sufficient to sustain a charge against Williams for promoting prostitution, his conduct went beyond tire behaviors targeted by that provision and more clearly fall within the scope of conduct the legislature intended to criminalize through the aggravated trafficking statute. As we have noted, Williams himself engaged in sexual activity with L.M. and did so in a manner that left L.M. feeling she had no choice but to comply with his request. Only charging promoting prostitution would not have covered all aspects of Williams’ criminal intent when he recruited and transported L.M.
Additionally, L.M.’s testimony indicated Williams used L.M.’s vulnerability to lure her and to use her to his advantage—-the type of exploitation the legislature determined warranted a harsher punishment. Williams exploited L.M.’s vulnerability as a minor by removing her to a different state where her contacts and resources would be limited and largely controlled by him. Moreover, he strictly controlled her behavior, her access, and her comings and goings. For example, he told her she could not call the woman with whom she lived, and he directed her to look down and only speak when she was given permission or when someone spoke directly to her. He frequently checked on her while she worked the streets and essentially forced her into servicing many men each day.
The level of control exerted by Williams, at least according to L.M.’s testimony, is illustrated by a statement defense counsel made in closing arguments. Defense counsel was pointing out reasons L.M. should not be believed, including the contradictory inferences that could be drawn from her testimony. While suggesting that aspeсts of L.M.’s testimony indicated Williams did not exert the level of control over L.M. that she at other times suggested, defense counsel summarized the inferences favorable to the State’s position, which were that Williams “was the only person that has contact with this girl who can’t get anything to drink by herself, who can’t eat by herself, who apparently has to shower when she asks his permission, who apparently, can only go in or out when [Williams] lets her, and she doesn’t have any clothes, and she can’t do anything without [Williams].” While defense counsel is correct that the jurors could have rejected these inferences that suggest L.M. was being used or exploited, the jurors could accept her testimony and infer that she was “used” by Williams in a manner the legislature determined should be punished as aggravated trafficking and in ways that are broader than those circumstances defined as promoting prostitution. See 2005 Judiciary Minutes.
Further, the analysis adopted by This court in Helms,
Thus, although our reasons vary from those of the Court of Appeals, we hold tiiat promoting prostitution is not a more specific crime under the facts of this case.
Prosecutorial Misconduct
In Williams’ next issue on appeal, he contends the prosecutor committed misconduct. Williams focuses on two comments: (1) a portion of the State’s closing argument in which the prosecutor discussed the credibility of L.M. and Williams and (2) a portion of the State’s rebuttal argument in which the prosecutor told die jurors tiiat the defense had the same subpoena power as the State.
Appellate review of allegations of prosecutorial misconduct, including misconduct occurring during closing arguments, which need not be preserved by a contemporaneous objection, requires a two-step process. First, the appellate court determines whether there was misconduct, i.e., whether the prosecutors comments were outside the wide latitude allowed in discussing tire evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the juiy against the defendant and denied the defendant a fair trial. State v. Bridges,
1. Comments on L.M.’s Credibility
Applying the first step of this analysis, Williams initially focuses on a statement made during the State’s closing argument: The prosecutor emphasized that it was the jurors’ duty to evaluate the credibility of the witnesses, including the weight and credit that should be given to the vastly different versions of events testified to by L.M. and Williams, stating:
“I wasn’t playing [L.M.’s interview] for you to elicit sympathy. You know, you have a juiy instruction that you should not use sympathy in your deliberations. The evidentiary value of that is it corroborates what it is that really happened to her. You know, just in the scheme of things, she does not minimize her own immoral acts of what happenеd in this case. Doesn’t that actually lend credibility to what it is that she’s telling you?
“What about his credibility? . . .
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“His credibility. He can’t come up with the simplest details to fend the basis of the story—his job, his hair, his name, his whereabouts. You go off on reasonable doubt.
“Ladies and gentlemen, in every criminal case, the burden of proof is beyond a reasonable doubt. In order to find tire defendant guilty, you must find the elements of the offenses beyond a reasonable doubt. You may still have a doubt and convict, as long as it’s not a reasonable one. So weight and credit and context. Yes, she has had a horrible life. Doesn’t that make her even more credible, then?” (Emphasis added to challenged statements.)
Williams argues these comments were outside the wide latitude allowed the prosecutor because the comments were the prosecutor’s personal beliefs as to the reliability or credibility of L.M.’s testimony and the lack of Williams’ credibility. The State responds that these comments were not the prosecutor s personal opinion but rather reasonable inferences that the evidence supported L.M.’s credibility. The Court of Appeals agreed with the State. Williams,
Williams points to the end representing a prosecutor’s impermissible expression of his or her opinion about a witness’ credibility. These cases apply the rule that a prosecutor is not allowed to offer a personal opinion on credibility because such a comment
Specifically, Williams relies on State v. Brinklow,
Pointing to the other end of the spectrum, the State relies on cases recognizing that a prosecutor has “ ‘freedom ... to craft an argument that includes reasonable inferences based on the evidence,’ ” and, “ ‘when a case turns on which of two conflicting stories is true, certain testimony is not believable.’ ” State v. King,
In contrast, the prosecutor in this case never stated, “I think” or “she’s credible.” The prosecutor started her discussion about credibility by telling the jurors they “get to evaluate the credibility of witnesses in the case.” The prosecutor continued by drawing the jurors’ attention to specific evidence, the consistency of L.M.’s statements and testimony, and the evidence that corroborated L.M.’s version of events. The prosecutor also discussed evidence that discredited Williams’ testimony. Following the discussion of the evidence, the prosecutor asked the jurors some rhetorical questions: Did the evidence make L.M. credible? Or did it make Williams credible?
This presentation was consistent with our holdings that “a prosecutor may explain the legitimate factors which a jury may consider in assessing witness credibility and may argue why the factors present in the current case should lead to a compelling inference of truthfulness.” Scaife,
Placed in context, the рrosecutor s statements directed the jury to the evidence that boosted or degraded the credibility of L.M. and Williams and were not the prosecutor’s personal opinion about the witnesses’ veracity. Thus, the statements were not outside the wide latitude allowed a prosecutor in discussing evidence and were not misconduct.
Next, Williams objects to a statement the prosecutor made at the start of the State’s rebuttal arguments. To place the prosecutor’s comments and the parties’ arguments in context, we must first recognize a statement made by defense counsel during closing arguments. Defense counsel pointed out that L.M. testified she and Williams had contact with other people who could have corroborated L.M.’s testimony. After pointing out that none of these potential witnesses had testified, defense counsel asked, “[W]hy isn’t there more? Wouldn’t diere be more if it really happened like [L.M.] said?” Defense counsel then concluded by saying, “That’s all the State needed, and they couldn’t produce it. They couldn’t find one witness, even though [L.M.] has told them names that may not even exist.”
In apparent response, the prosecutor started her rebuttal argument by stating:
“Where are all these witnesses? Hе says that if the State had these witnesses with these funky names, they would have brought them in here to testify for you. Guess what, ladies and gentlemen. The defense has subpoena power identical—■
“[Defense Counsel]: The burden is shifting, Your Honor.
“THE COURT: Overruled.
“[Prosecutor]: The defense has subpoena power identical to the State.” (Emphasis added to challenged statements.)
The Court of Appeals panel determined the challenged statements were not misconduct because the prosecutor was “clearly responding to defense counsel.” The panel noted: “ ‘No prejudicial error occurs where the questionable statements by a prosecuting attorney are provoked and made in response to prior arguments or statements by defense counsel.’ ” State v. Williams, 46 Kan. App. 2d 36, 48,
Until recently, two inconsistent lines of cases existed in Kansas caselaw regarding whether a prosecutor s statement is misconduct when the statement is made in response to defense counsel’s argument. In State v. Manning,
After the Court of Appeals’ decision in this case, in Marshall,
Thus, we do not end our discussion as did the Court of Appeals—i.e., by simply noting that the comments were made in response to defense counsel’s statement. Rather, although we consider that context, we must consider whether the prosecutor s statements were an improper attempt to shift the burden of proof. In other words, was therе misconduct?
In applying these principles, several decisions of this court have dealt with comments regarding a party’s subpoena power and have drawn a line indicating a prosecutor cannot suggest a defendant must disprove the State’s case. For instance, in a case Williams cites, Tosh,
In Naputi, the defense argued that the jury could “assume that the therapist would not have helped the State’s case because the State did not call him as a witness. The implication, then, is that the witness would have been beneficial to the defense.”
Likewise, more generally, this court has held a prosecutor does not shift the burden of proof by pointing out a lack of evidence to support a defense or to corroborate a defendant’s argument regarding holes in the State’s case. See, e.g., State v. Wilson,
In this case, the prosecutor’s statements did not call upon the defense to disprove the occurrence of the crime. See Tosh,
Apprendi/Ivory
Finally, Williams contends the district court’s use of his prior convictions in his criminal history score to enhance his sentence without requiring the criminal history to be included in the complaint and proven to a jury beyond a reasonable doubt violated his constitutional rights under Apprendi v. New Jersey,
The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed.