State v. Brown

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,881

STATE OF KANSAS,
Appellee,

v.

CALVIN RAY BROWN,
Appellant.


SYLLABUS BY THE COURT

1.
A party who does not object to the admission of testimony regarding a witness'
prior consistent statements fails to preserve an argument for appeal regarding a claim that
the evidence was prejudicial.

2.
A defendant is entitled to instructions on the law applicable to his or her theory of
defense if there is evidence to support the theory. However, there must be evidence
which, viewed in the light most favorable to the defendant, is sufficient to justify a
rational factfinder finding in accordance with the defendant's theory.

3.
Instructions are clearly erroneous if there is a real possibility the jury would have
rendered a different verdict had the instruction error not occurred.

4.
Although voluntary intoxication is not a defense to general intent crimes, a
voluntary intoxication defense may be used to negate the intent element of specific intent
crimes.

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5.
Aggravated indecent solicitation under K.S.A. 21-3511(a) is a specific intent
crime.

6.
Unless evidence is presented that shows intoxication to the extent that a
defendant's ability to form the requisite intent was impaired, an instruction on the defense
of voluntary intoxication is not required. The defendant has the burden of showing that he
or she was so intoxicated that his or her mental faculties were impaired by the
consumption of alcohol or drugs.

7.
It is fundamental to a fair trial that the accused be afforded the opportunity to
present his or her theory of defense. Under the facts of this case, imposing a defense
upon a defendant which was arguably inconsistent with the one upon which he
completely relied—by providing the jury a defense instruction that neither party
requested—would have been akin to denying the defendant the meaningful opportunity to
present his chosen theory of defense.

8.
Instructing the jury that another trial would be a burden on both sides is error.

9.
Conviction of a defendant for the off-grid offense described in K.S.A. 21-3301
and 21-3504 (attempted aggravated indecent liberties with a child) and imposition of the
enhanced sentencing provisions of K.S.A. 21-4643 require a factual finding that the
defendant was 18 years of age or older. The fact question must be submitted to the jury
and proved beyond a reasonable doubt.

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Appeal from Wyandotte district court; JOHN J. MCNALLY, judge. Opinion filed January 7, 2011.
Sentence vacated and remanded with directions.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Edmond D. Brancart, deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BRAZIL, J.: This is a direct appeal from Calvin Ray Brown's conviction by a jury
for one count of attempted aggravated indecent liberties with a child in violation of
K.S.A. 21-3301 and K.S.A. 21-3504(a)(3)(A) and one count of aggravated indecent
solicitation in violation of K.S.A. 21-3511(a). The trial court sentenced the defendant to
a life sentence under K.S.A. 21-4643 ("Jessica's Law"), without the possibility of parole
for 25 years, for Count I and 32 months to run concurrent with the primary offense for
Count II. Jurisdiction is proper under K.S.A. 22-3601(b)(1).

FACTS AND PROCEDURAL BACKGROUND

In autumn 2007, Brown lived with Nakisha H. and her two daughters, M.H. (age
2) and L.H. (age 10). Brown was, at one time, married to Nakisha's mother, and Nakisha
had a close relationship with him.

On the night of November 3, 2007, Nakisha went out with her sisters to celebrate a
birthday. Brown was babysitting M.H., L.H., and their four male cousins.

The children were on the fold-out sofa bed in the living room, watching television,
and Brown stayed downstairs in his room. At some point, L.H. fell asleep while
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watching T.V. L.H. testified that Brown woke her up by grabbing her arm and taking her
downstairs to his room.

L.H. stated that Brown had L.H. sit on his couch and he stood in front of her and
said, "I know what you and your cousin . . . have been doing. And if you don't do what I
tell you to do, I'm going to tell your mom on you, too." L.H. testified that Brown was
"talking real nasty to me like he wanted to do something with" her. L.H. was scared and
ran up the stairs. She got M.H., who was with one of her cousins, and went to her room.

L.H. testified that Brown followed her to her room and said, "[I]f I can't get
nothing from you, can I just rub on your butt." He asked her several times and she
repeatedly said no.

L.H. then ran around Brown and ran out of the house in her nightclothes, and
across the street to her great-grandmother's house. Her great-grandmother, J. Williams,
lived across the street along with L.H.'s grandmother, D. Moore. L.H. rang Williams'
doorbell and knocked on her door. L.H. also knocked on Moore's window on the ground
floor of the house. No one answered the door, so L.H. ran to her friend's house behind
Williams' home. L.H. testified that Brown was chasing her.

Williams testified that she heard her doorbell ringing and knocking on her front
door in the middle of the night on November 3, 2007. When she opened the door, no one
was there but then Brown came around from the side of her house "mumbling something
like he's got a condom in his billfold."

When L.H. ran to her friend's home, no one answered the door. L.H. saw Brown
standing on the side of Williams' house. She continued to run, and she went up the block
to the home of her uncle, K. Union. Union answered the door and L.H. told him, "[M]y
pawpaw tried to molest me." Union testified that L.H. told him that Brown tried to force
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himself on her and was chasing her down the street. Union did not see anyone in the
street, but he called Nakisha and the police.

The police arrived shortly before Nakisha and her sisters. Officer Darrell M.
Forrest talked to L.H. Officer Forrest testified that L.H. told him that "she was asleep
and her grandfather came and woke her up, grabbed her by the arm and took her
downstairs, began to touch her in the private areas on top of the clothing. . . . And told her
not to say anything. . . . . She said she yelled no, and then she ran upstairs and ran out of
the house."

L.H. also told her mother, Nakisha, what had happened. L.H. told her mother
"that he had tried something with her." Nakisha left L.H. at Union's home and went back
to her house to see Brown. Officer Michael Simmons arrested Brown, testifying that
Brown was mumbling in the back of the patrol car and definitely smelled like he was
intoxicated.

On November 15, 2007, Nakisha took L.H. to Sunflower House where Jennifer
Coughlin, an interview specialist, interviewed her about what happened with Brown on
November 3. L.H.'s interview with Coughlin was videotaped and used by the State at
trial without objection from Brown.

The State initially charged Brown with one count of aggravated indecent liberties
with a child. The information contained Brown's date of birth and stated he was over the
age of 18. The first and second amended information charged Brown with attempted
aggravated indecent liberties with a child and aggravated indecent solicitation of a child.
The amended informations did not include Brown's age.

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At trial, neither party objected to the instructions given or requested any additional
instructions. The instructions relating to the attempted aggravated indecent liberties
charge failed to instruct the jury to find that Brown was over 18 years of age at the time
of the offense. The jury convicted Brown of both counts, and the district court sentenced
Brown to a hard 25 sentence for the primary offense, attempted aggravated indecent
liberties, and 32 months for the aggravated indecent solicitation to run concurrent with
the hard 25 sentence.
ANALYSIS

Prior Consistent Statements Were Not Preserved for Appeal
Brown argues that, before L.H. testified, the jury heard statements she made to
Kevin Union, Nakisha H., and Jennifer Coughlin. Brown did not object at any time
during the testimony of Union, Nakisha, or Coughlin.
On direct examination by the State, Union testified:

"Q. Okay. And did you ask her what she was doing?
"A. Yes.
"Q. Okay. And what happened? What did she say?
"A. She told me that Calvin started or tried to force himself on her.
"Q. Okay.
"A. After that, I stepped outside to look around. Because in the process of
her telling me what's going on, she said that he had chased her up the street.
"Q. Okay.
"A. So I stepped outside. I didn't see anyone. I came back in and started
calling people and had called 911.
. . . .
"Q. Okay. And did you talk to [L.H.] anymore about what had happened?
"A. I asked her again what happened. And she told me the same thing. And
to be honest with you, I didn't want to hear anymore. So I just left it at that and waited
for the police to show up.
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"Q. Okay and when you say to be honest you didn't want to hear anymore,
why was that?
"A. It's not a comfortable thing to hear, especially when you have four
daughters of your own. You don't want to hear something like that."

During cross-examination, Union testified:

"Q. All right. And you didn't talk to — did you talk to [L.H.] about any of
the details?
"A. No.
"Q. You said you didn't want to hear that?
"A. I didn't say it to her.
"Q. Okay.
"A. I just — that's just what I felt.
"Q. Right. And you just decided to call the police and let them handle it.
Correct?
"A. Yes."

Nakisha testified to the following during the State's direct examination:

"Q. Okay. And so you leave that night. And then what's the next thing you
hear from someone—
"A. I get a phone call from Kevin saying you need to come home now, like
now.
"Q. Okay. Did he tell you why?
"A. It had something to do with [L.H.] and Calvin. Come home now, like
come home.
. . . .
"Q. Okay. And so when you responded, you went to Kevin Union's house.
And what did you do there?
"A. I checked on my daughter to make sure — to find out what was going on
and to make sure she was okay.
"Q. Okay. And what did you find out?
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"A. That he had tried something with her.
"Q. Okay. And did you ask her for specific details?
"A. I really didn't. I just heard that part and left the house and went down to
my house where Calvin was."

Lastly, Coughlin did not testify regarding what L.H. told her in her interview at
Sunflower House. Rather, Coughlin testified as to her own expertise and training, and
she provided testimony to lay the foundation for the videotape of L.H.'s interview at
Sunflower House. Thus, Brown's argument that Coughlin's testimony included
inadmissible prior consistent statements is incorrect. It is unclear from Brown's brief
whether he also argues that the jury's viewing of L.H.'s videotaped interview at
Sunflower House was inadmissible as a prior consistent statement. Thus, we do not
consider Brown's arguments related to Coughlin's testimony.

Without a contemporaneous objection, generally, this issue would not be
preserved for appeal. K.S.A. 60-404; see State v. Hollingsworth, 289 Kan. 1250, 1255,
221 P.3d 1122 (2009) (citing State v. Bryant, 285 Kan. 970, Syl. ¶ 6, 179 P.3d 1122
[2008] ["As a general rule, a party must make a timely and specific objection to the
admission of evidence in order to preserve the issue for appeal."]). Brown contends these
prior consistent statements bolstered L.H.'s testimony, implicating his fundamental right
to a fair trial and also prejudicing the jury. See State v. Richmond, 289 Kan. 419, 428,
212 P.3d 165 (2009); State v. Spotts, 288 Kan. 650, 652, 206 P.3d 510 (2009).

Recently, we refused to review an evidentiary issue without a timely and specific
objection even if the issue involves a fundamental right. See State v. Dukes, 290 Kan.
485, 488, 231 P.3d 558 (2010) (citing Richmond, 289 Kan. at 429-30 [expressing concern
that the contemporaneous objection rule "'case-law exceptions would soon swallow the
general statutory rule'"]); Hollingsworth, 289 Kan. at 1256-57; State v. King, 288 Kan.
333, 349, 204 P.3d 585 [2009]; State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208
9

[2004]); see also State v. Johnson, 286 Kan. 824, 839, 190 P.3d 207 (2008) (holding that
a failure to object to the admission of prior consistent statements resulted in the issue not
being preserved for appeal).

This court has stated:

"'The purpose of the rule requiring a timely and specific objection is to give "the
trial court the opportunity to conduct the trial without using the tainted evidence, and thus
avoid possible reversal and a new trial." [Citation omitted.]"' Richmond, 289 Kan. at 429
(citing King, 288 Kan. at 342).

In State v. Johnson, this court considered a similar issue to the one raised by
Brown. There the trial court permitted law enforcement officers to testify about what
witnesses told them before the witnesses testified at trial. 286 Kan. at 838-39. The court
found that, while "a violation of the right to confront witnesses can occur if a statement is
admitted and the witness is not called to testify," but in Johnson, the State did call the
witnesses and the defendant was able to cross-examine them regarding their statements.
286 Kan. at 839.

The Johnson court then went on to note that, with no constitutional issue
implicated, Johnson's argument was actually one of prejudice. Johnson argued that
admission of the consistent statements amounted to bolstering the witnesses' credibility.
The court went on to find:

"An argument based upon potential prejudice does not erase the need for a
contemporaneous objection; in fact, it highlights the policies underlying the rule. The
contemporaneous objection rule is designed to give the trial court the opportunity to
correct or avoid error. State v. Boyd, 257 Kan. 82, 89, 891 P.2d 358 (1995). Additionally,
as applicable to this case, the trial court is in a better position to weigh the probative
versus prejudicial value of evidence. See, e.g., State v. Garcia, 285 Kan. 1, 18-19, 169
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P.3d 1069 (2007). Therefore, it is inappropriate for this weighing to occur for the first
time on appeal." 286 Kan. at 840.

In Kansas, previous statements of persons present at trial are not hearsay and are
admissible if that person is available for cross-examination and the statement would be
admissible if made by the declarant while testifying. K.S.A. 60-460(a); see Johnson, 286
Kan. at 839; State v. Kesselring, 279 Kan. 671, 692, 112 P.3d 175 (2005) (holding
investigator's testimony regarding hearsay statements of various witnesses who were
testifying at trial properly admitted pursuant to K.S.A. 60-460[a]); State v. Whitesell, 270
Kan. 259, 290, 13 P.3d 887 (2000) (finding that witnesses' testimony of prior consistent
statements of victim who testified at trial was not hearsay under K.S.A. 60-460[a]); State
v. Aldrich, 232 Kan. 783, 784, 658 P.2d 1027 (1983) (holding officer's testimony of prior
consistent statements of victim who was testifying at trial properly admitted pursuant to
K.S.A. 60-460[a]); State v. Taylor, 217 Kan. 706, 713, 538 P.2d 1375 (1975) (holding
admission of officers' testimony regarding hearsay statements of victim during
investigation comes "squarely within" K.S.A. 60-460[a]).

Here, Brown did not object to admission of the statements during the testimony of
Union, Nakisha, or Coughlin. As in Johnson, L.H. actually testified at trial and Brown
was able to cross-examine her regarding her statements to Union, Nakisha, and Coughlin.
Under the holding in Johnson, Brown failed to preserve this issue for appeal. Further,
because L.H. was present and testified at trial regarding her statements to Union,
Nakisha, and Coughlin, their prior statements were admissible under K.S.A. 60-460(a).

Voluntary Intoxication Instruction

Brown argues that the district court should have instructed the jury on voluntary
intoxication because the crimes charged against him—aggravated indecent solicitation
and attempted aggravated indecent liberties—required proof of specific intent, and there
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was sufficient evidence that Brown was intoxicated when he committed the crimes, thus
preventing him from forming the requisite intent.

"A defendant is entitled to instructions on the law applicable to his or her theory
of defense if there is evidence to support the theory. However, there must be evidence
which, viewed in the light most favorable to the defendant, is sufficient to justify a
rational factfinder finding in accordance with the defendant's theory." State v. Anderson,
287 Kan. 325, 334, 197 P.3d 409 (2008).

Because Brown failed to object to the district court's failure to give an instruction,
we review the issue under the clearly erroneous standard. State v. Roberson, 272 Kan.
1143, 1153, 38 P.3d 715, cert. denied 537 U.S. 829 (2002). "Instructions are clearly
erroneous if there is a real possibility the jury would have rendered a different verdict had
the instruction error not occurred." State v. Marler, 290 Kan. 119, 124, 223 P.3d 804
(2010) (citing State v. Vasquez, 287 Kan. 40, 51, 194 P.3d 563 [2008]).

Brown's second issue on appeal requires that this court find that attempted
aggravated indecent liberties and aggravated indecent solicitation are specific intent
crimes. Recently this court explained: "The distinction between general intent and
specific intent crimes is 'whether, in addition to the intent required by K.S.A. 21-3201,
the statute defining the crime in question identifies or requires a further particular intent
which must accompany the prohibited acts.' [Citation omitted]." State v. Richardson, 289
Kan. 118, 121, 209 P.3d 696 (2009).

"Although voluntary intoxication is not a defense to general intent crimes, a
voluntary intoxication defense may be used to negate the intent element of specific intent
crimes." State v. Jones, 283 Kan. 186, 209, 151 P.3d 22 (2007) (citing State v. Sterling,
235 Kan. 526, 528, 680 P.2d 301 [1984]; K.S.A. 21-3208(2) (intoxication); State v.
Ludlow, 256 Kan. 139, 144-45, 883 P.2d 1144 [1994]). K.S.A. 21-3208(2) states: "An
act committed while in a state of voluntary intoxication is not less criminal by reason
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thereof, but when a particular intent or other state of mind is a necessary element to
constitute a particular crime, the fact of intoxication may be taken into consideration in
determining such intent or state of mind." (Repealed L. 2010, ch. 136, sec. 307).

Attempt and aggravated indecent liberties are specific intent crimes. K.S.A. 21-
3301(a) ("An attempt is any overt act toward the perpetration of a crime done by a person
who intends to commit such crime but fails in the perpetration thereof" [Emphasis
added.]); K.S.A. 21-3504(a)(3)(A) ("with the intent to arouse"); State v. Gaither, 283
Kan. 671, 692, 156 P.3d 602 (2007); State v. Belcher, 269 Kan. 2, 7, 4 P.3d 1137 (2000).

K.S.A. 21-3511 defines aggravated indecent solicitation of a child as:

"(a) Enticing or soliciting a child under the age of 14 years to commit or to
submit to an unlawful sexual act; or (b) inviting, persuading or attempting to persuade a
child under the age of 14 years to enter any vehicle, building, room or secluded place
with intent to commit an unlawful sexual act upon or with the child."

Brown was charged under K.S.A. 21-3511(a), and the jury was instructed on the elements
of the crime per K.S.A. 21-3511(a). See PIK Crim. 3d 57.13. Only one Kansas case
appears to discuss whether aggravated indecent solicitation under K.S.A. 21-3511(a) is a
specific intent crime. See Richardson v. State, No. 97,995, 2008 WL 1946836, at *3
(Kan. App. 2008) (unpublished decision). There, the Court of Appeals found:

"The specific intent requirement of K.S.A. 21-3511(a) is a requirement that the other
person, in this case a child, commit or submit to an unlawful sex act. See State v.
DePriest, 258 Kan. 596, 604, 907 P.2d 868 (1995); State v. Johnson, 283 Kan. 649, 654-
55, 156 P.3d 596 (2007). There is no requirement in K.S.A. 21-3511(a) that the offender
intend to commit the unlawful sex act with the child, just that the offender intends to
solicit or entice the child to do so." 2008 WL 1946836, at *3.

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In State v. DePriest, when discussing solicitation to commit first-degree murder,
this court stated:

"Solicitation is a specific intent crime under Kansas law. A person is not guilty of
solicitation unless he or she intentionally commits the actus reus of the offense, viz., he or
she commands, encourages, or requests another person to commit a felony with the
specific intent that the other commit the crime he or she solicited. The actus reus of the
solicitation occurs under Kansas law if a person by words or actions invites, requests,
commands, or encourages a second person to commit a crime. The crime is complete
when the person communicates the solicitation to another with the requisite mens rea. No
act in furtherance of the target crime needs to be performed by either person." 258 Kan.
596, 604, 907 P.2d 868 (1995).

We agree with the reasoning in Richardson and find that aggravated indecent
solicitation under K.S.A. 21-3511(a) is a specific intent crime.

Having established that Brown's convictions were for specific intent crimes, we
must now consider whether Brown presented evidence sufficient for a rational fact-finder
to find that Brown's intoxication could negate the intent element of attempted aggravated
indecent liberties and aggravated indecent solicitation.

Insufficient Evidence of Intoxication

In State v. Johnson, 258 Kan. 475, 485-86, 905 P.2d 94 (1995), this court stated:

"Unless evidence is presented that shows intoxication to the extent that a
defendant's ability to form the requisite intent was impaired, an instruction on the defense
of voluntary intoxication is not required. State v. Gadelkarim, 247 Kan. [505,] 508, [802
P.2d 507 (1990)]; see State v. Smith, 254 Kan. 144, Syl. ¶ 2, 864 P.2d 709 (1993); State v.
Shehan, 242 Kan. 127, Syl. ¶ 5, 744 P.2d 824 (1987). The defendant has the burden of
showing that he or she was so intoxicated that his or her mental faculties were impaired
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by the consumption of alcohol or drugs. State v. Keeler, 238 Kan. 356, 360, 710 P.2d
1279 (1985)."

Brown presented evidence of his intoxication to the jury through the testimony of
J. Williams, Officer Simmons, and L.H. During Williams' cross-examination testimony,
Williams stated that she had heard "[t]hrough hearsay" that Brown used drugs and that he
always mumbled. She also stated that she was not close enough to him that night to see
his eyes.

During direct examination by the State, Officer Simmons testified that, when
Brown was in the back of the patrol car, he was mumbling, and "[h]e was definitely
intoxicated." On cross-examination by Brown, Officer Simmons testified that Brown
was under the influence of alcohol and he could smell the alcohol.

L.H. also testified as to Brown's intoxication. During cross-examination by
Brown, L.H. stated that Brown was acting strange all night. She testified that she knew
he was drinking that night. During the State's redirect examination, L.H. testified that she
knew Brown was drinking because she saw him drink and because he was acting strange.

Based on the evidence in the record, it is not apparent that Brown satisfied his
burden to show that he was intoxicated enough so that his mental faculties were impaired.
In Johnson, the testimony before the jury was that the defendant had consumed beer and
was "drunk." 258 Kan. at 486. The court determined that this was insufficient to show
that defendant's consumption of beer impaired his mental faculties so as to render him
unable to form the requisite intent. Likewise, here, there is testimony that Brown smelled
of alcohol and was mumbling, but nothing to support the argument that his mental
faculties were impaired.

Intoxication Was Not One of Brown's Theories
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During opening argument, defense counsel told the jury that the State had to prove
that Brown "intentionally did the acts that they have alleged that he did." Defense
counsel cautioned the jurors to listen to all the testimony, paying particular attention to
any discrepancies. He stated, "We're taking the position that the State just can't prove
that he did these acts and that the testimony – or the acts that they're trying to prove do
not rise to the level of these acts and there's no proof beyond a reasonable doubt."
Defense counsel did not argue during opening remarks that Brown was intoxicated.

During Brown's closing argument, defense counsel pointed out the evidence
before the jury that Brown was "acting strange" and may have been intoxicated at the
time of the crime. Specifically, defense counsel argued:

"And I contend to you that taking into consideration the totality of the
circumstances such as the lighting, . . . or Mr. Brown being intoxicated and mumbling,
whether his actions – you know, she's demonstrating something in a lit room at
Sunflower House where she says she's blocking and she thinks that, you know – she says,
well, that's what I think. That's what I think was happening.
. . . .
"So I just don't believe that there's enough evidence there for you to find that
beyond a reasonable doubt that Mr. Brown did acts which could be considered as an overt
act towards the perpetration of the crime of indecent liberties. That Mr. Brown did not
commit an act of asking or soliciting [L.H.] for the purpose of committing a lewd or – a
lewd fondling or touching."

In State v. Trussell, 289 Kan. 499, 504, 213 P.3d 1052 (2009), the defendant
argued that the trial court should have instructed the jury on self-defense because there
was evidence in the record to warrant the instruction, though defendant did not request
the instruction at trial. But, this court disagreed, noting that, "while inconsistent theories
of defense are permissible, trial courts should not interfere with a defendant's chosen
defense theory by giving an instruction which neither party requested and which may
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undermine defendant's chosen theory." 289 Kan. at 505 (citing State v. Sappington, 285
Kan. 158, 164-65, 169 P.3d 1096 [2007]). The court went on to state "trial courts are not
required to provide instructions for every possible theory of defense just because some
supporting evidence may be produced at trial, if the defendant has not relied on the
particular defense theory." 289 Kan. at 505 (citing Sappington, 285 Kan. at 165).

In State v. Sappington, likewise, this court determined that it saw "no valid reason
to require district courts to instruct juries on every possible theory of defense for which
some evidence has been presented when the defendant has not relied upon that defense."
285 Kan. at 165. In that case, the defendant—who did not request an instruction on
voluntary intoxication at trial—also argued that the trial court should have instructed the
jury on voluntary intoxication. This court acknowledged "that 'it is fundamental to a fair
trial that the accused be afforded the opportunity to present his or her theory of defense,'
State v. Humphrey, 252 Kan. 6, 14, 845 P.2d 592 (1992), and [we] believe that imposing
a defense upon a defendant which is arguably inconsistent with the one upon which he
completely relies—by providing the jury a defense instruction that neither party
requests—is akin to denying the defendant the meaningful opportunity to present his
chosen theory of defense." 285 Kan. at 165.

In this case, Brown's theory of the case was that the State had not satisfied its
burden of proof beyond a reasonable doubt. Brown's argument focused on the
discrepancies between the trial testimony of L.H. and her interview at Sunflower House,
arguing that those discrepancies raised doubt. This theory is potentially inconsistent with
an intoxication defense. Under a voluntary intoxication theory, Brown would have to
argue that, even if the jury does find him guilty, then he was too intoxicated to form the
requisite mental state. Under the holdings of Trussell and Sappington, when a defendant
has not asked for an instruction, it is not the job of the trial court to instruct the jury on a
defense, particularly given this court's concern that the defense may be inconsistent with
the defendant's chosen theory.
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Deadlocked Jury Instruction
Brown did not object to Instruction No. 13 when it was given to the jury prior to
deliberation; therefore, this court reviews the instruction under a clearly erroneous
standard. See State v. Ellmaker, 289 Kan. 1132, 1145, 221 P.3d 1105 (2009). Under this
standard of review, the court must determine whether "[it is] firmly convinced there is a
real possibility the jury would have rendered a different verdict if the error had not
occurred." State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).
Brown argues that the following language is clearly erroneous:
"Instruction No. 13
"Like all cases, this is an important case. If you fail to reach a decision, the
charge is left undecided for the time being. It is then up to the State to decide whether to
resubmit the undecided charge to a different jury at a later time. Another trial would be a
burden on both sides.
"This does not mean that those favoring any particular position should surrender
their honest convictions as to the weight or effect of any evidence solely because of the
opinion of other jurors or because of the importance of arriving at a decision.
"This does mean that you should give respectful consideration to each other's
views and talk over any differences of opinion in a spirit of fairness and candor. If at all
possible, you should resolve any differences and come to a common conclusion.
"You may be leisurely in your deliberations as the occasion may require and take
all the time you feel necessary." (Emphasis added.)
Brown argues that the emphasized language above ("Another trial would be a
burden on both sides.") is reversible error because there is a real possibility that the jury
could have rendered a different verdict without that language.
This court has determined that, if the trial court gives the "deadlocked jury"
instruction (PIK Crim. 3d 68.12) before the jury retires for deliberations, the instruction is
not an error. See State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003); State v.
Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006).
This court has specifically addressed the language at issue in three recent cases. In
State v. Salts, this court held that the language "[a]nother trial would be a burden on both
18

sides" is error because it is misleading and inaccurate; however, it was not reversible
error. 288 Kan. at 266. The Salts court found that, under the clearly erroneous standard,
there was no real possibility that the jury would have returned a different verdict without
the instruction.
In State v. Ellmaker, this court acknowledged that the challenged language was
error, finding it was misleading and inaccurate. But the court, again, found that there was
no real possibility that the jury would have returned a different verdict without the error.
289 Kan. at 1146-47.
Most recently, in State v. Colston, 290 Kan. 952, 235 P.3d 1234 (2010), the court
confirmed its holding in Salts and Ellmaker, finding that the giving of the Allen-type
instruction to the jury prior to deliberations was error, but not reversible error. There the
court found that the jury rendered its verdict within a few hours, and the jury members
were polled and each agreed with the verdict. 290 Kan. at 976.
In Brown's case, the jury returned its verdict exceptionally quick—merely 15
minutes after retiring to the jury room. In addition, the court gave the instruction to the
jury prior to deliberations without objection from Brown. The court did not poll the jury
in this instance, but when asked if he wanted to poll the jurors, Brown said no.
Thus, as in Salts, Ellmaker, and Colston, the giving of the Allen-type instruction
was error. But we find that the evidence against Brown was such that the jury would not
have rendered a different verdict if the error had not occurred.
Defendant's Age

Brown presents two arguments revolving around the issue of his age. First, he
contends that the district court did not have jurisdiction to sentence him under Jessica's
Law because the charging document did not state his age at the time of the offense.
Second, Brown argues that the court erred by failing to instruct the jury to find that he
was 18 years of age or older at the time of the offense because his age was an essential
element of the crime.

19

Brown's arguments address jurisdiction, statutory interpretation, and constitutional
interpretation; therefore, this court's review is unlimited. State v. Bello, 289 Kan. 191,
195-96, 211 P.3d 139 (2009) (citing Foster v. Kansas Dept. of Revenue, 281 Kan. 368,
369, 130 P.3d 560 [2006]; State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 [2007]); State
v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 [2006].

Charging Document

Brown argues that the district court did not have jurisdiction to sentence him under
K.S.A. 21-4643 because the charging document did not allege in any count that Brown
was 18 years of age or older at the time of the offense.

"The Sixth Amendment to the United States Constitution gives an accused the
right to 'be informed of the nature and cause of the accusation'; the Kansas Constitution
Bill of Rights, § 10 mandates that 'the accused shall be allowed . . . to demand the nature
and cause of the accusation against him.' Generally, if a complaint fails to include an
essential element of a crime charged, it is 'fatally defective, and the trial court lacks
jurisdiction to convict the defendant of the alleged offense.'" State v. Gonzales, 289 Kan.
351, 366, 212 P.3d 215 (2009) (citing State v. Moody, 282 Kan. 181, 197, 144 P.3d 612
[2006]).

In Gonzales, this court dealt with the same issue that Brown raises here. In
Gonzales, as here, the defendant did not allege that the complaint was defective. Instead
he argued that the district court did not have jurisdiction because the State failed to allege
a "valid crime" under K.S.A. 21-4643. The Gonzales court noted that it had recently
rejected defendant's argument in State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275
(2009). 289 Kan. at 368.

When the charging document is challenged for the first time on appeal, "the
defendant must show that the alleged defect either: (1) prejudiced the defendant's
20

preparation of a defense; (2) impaired the defendant's ability to plead the conviction in
any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair
trial." Gracey, 288 Kan. at 254; see State v. Hall, 246 Kan. 728, 761, 793 P.2d 737
(1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40
(2003); see also State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006) (applying the
post-Hall analysis); State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004) (same).

In Gonzales, this court held that the defendant was adequately informed of both
the crime charged and the penalty. This court found that "the complaint against Gonzales
listed his date of birth, stated the charge was for an off-grid person felony, and otherwise
specifically listed the elements of aggravated indecent liberties with a child under the age
of 14." 289 Kan. at 369. Further, the court found that Gonzales did not "contend that the
preparation of his defense or his rights to a fair trial were impaired. Nor ha[d] Gonzales
shown that his conviction for aggravated indecent liberties with a child under the age of
14 affected any subsequent prosecution." 289 Kan. at 369.

Applying the findings from Gonzales to Brown's case, the facts are similar. In the
initial information charging Brown with aggravated indecent liberties, the charging
document included within the count that Brown was over the age of 18. But neither the
first amended nor the second amended information contained facts pertaining to Brown's
age. In addition, the initial information and both subsequent amended informations stated
that the charge was for an off-grid person felony and otherwise listed the elements of
attempted aggravated indecent liberties with a child. Brown has not argued that his
preparation of his defense was impaired, nor has he shown how his conviction has
affected any subsequent prosecution. As such, we affirm his conviction.

Jury Instructions

21

Brown argues that this court should reverse his convictions for attempted
aggravated indecent liberties because the trial court failed to instruct the jury to determine
that Brown was over the age of 18 beyond a reasonable doubt. Several recent cases have
dealt with this same issue and similar set of facts. See Colston, 290 Kan. 952; Reyna,
290 Kan. 666; State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009); Gonzales, 289
Kan. 351; Bello, 289 Kan. 191.

Attempted aggravated indecent liberties with a child is an off-grid person felony
under K.S.A. 21-3504(c) and K.S.A. 22-4643(a)(1)(G). Brown's second charge—
aggravated indecent solicitation—is a severity level 5 person felony under K.S.A. 21-
3511(b), and it is not one of the Jessica's Law felonies listed in K.S.A. 21-4643, requiring
a mandatory term of 25 or 40 years in prison.

Brown is correct in his argument that, based on Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), defendant's age at the time of the offense
is an element of the crime if the State seeks to convict the defendant of the more serious,
off-grid level of the offense. Gonzales, 289 Kan. at 371; Bello, 289 Kan. at 199-200. In
Bello, Gonzales, and Morningstar, this court determined that the failure to instruct the
jury to make a finding on defendant's age was error, and the result of that error was to
vacate the sentence and remand for resentencing under the Kansas Sentencing Guidelines
as a grid offense. Morningstar, 289 Kan. at 495; Gonzales, 289 Kan. at 372; Bello, 289
Kan. at 200.

But in the more recent State v. Colston, this court held that "[w]hen a reviewing
court concludes beyond a reasonable doubt that the omitted element was uncontested and
supported by overwhelming evidence, such that the jury verdict would have been the
same absent the error, the erroneous instruction is properly found to be harmless."
Colston, 290 Kan. at 975 (citing State v. Reyna, 290 Kan. 666, Syl. ¶ 10, 234 P.3d 761
[2010]). In Reyna, the court determined that "[c]haracterizing the omission of an element
22

from the instructions to the jury [as an Apprendi-type error, i.e.,] as judicial factfinding of
the omitted element, when that element enhances the maximum applicable sentence, does
not change the harmless error analysis." 290 Kan. 666, Syl. ¶ 11.

In Reyna, the defendant testified at trial and stated his own age. 290 Kan. at 679.
In Colston, sufficient evidence of Colston's age was presented through testimony of his
son who stated he was 29 years old and defendant's daughter was 31. In addition,
Colston's girlfriend testified that she was 31 years old and Colston was about 20 years
older than her. 290 Kan. at 974. In both cases, this court determined that there was
sufficient evidence in the record establishing the defendant's age such that any
instructional error was harmless.

In Bello, Gonzales, and Morningstar, the State failed to present evidence of the
defendant's age at trial. 289 Kan. at 491-92; 289 Kan. at 371; 289 Kan. at 199.

In Brown's case, there was little to no evidence of Brown's age presented to the
jury. Brown did not testify in his own defense; therefore, unlike Reyna, he did not state
his age or date of birth before the jury. The only evidence presented to the jurors from
which they could infer Brown's approximate age was testimony from Nakisha. Nakisha
stated that she was 27 years old at the time of trial. She testified that her mother, Denise
Moore, was married to Brown at one time, but Brown was not Nakisha's father. He was,
however, her sisters' (Janelle and Tamara) father. No evidence was presented as to the
ages of Nakisha's sisters.

We find that, under Bello, Gonzales, and Morningstar, there was insufficient
evidence of Brown's age for this court to find harmless error in this case. Thus, we
vacate Brown's sentence and remand to the district court for resentencing on the
sentencing grid.

23

Because we are remanding Brown's case on the age issue, we decline to address
his remaining argument regarding cruel and unusual punishment.

Sentence vacated and remanded for resentencing.

TIMOTHY E. BRAZIL, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court by art. 3, § 6(f)
of the Kansas Constitution, Judge Brazil was appointed to hear case No. 100,881 to fill the
vacancy on the court created by the retirement of Chief Justice Robert E. Davis.