No. 96,210
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
EDWARD N. COBURN, SR.,
Appellant.
SYLLABUS BY THE COURT
1. Under K.S.A. 22-3202(1), two or more crimes may be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
2. An appellate court uses the following standards when reviewing the joinder of charges: (1) determine which of the three alternative conditions precedent the trial court relied on under K.S.A. 22-3202(1) (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); (2) determine whether there is substantial competent evidence to support the trial court's findings of fact, using a deferential standard; (3) determine whether the trial court properly concluded that a condition precedent had been met, using a de novo standard; and (4) determine whether the trial court abused its discretion in allowing joinder.
3. Although two offenses may be of the same general character, a trial court should order separate trials when there would inevitably be some jumbling of the two cases at the trial, which would tend to prevent a concentrated consideration of each case that is indispensable in matters of such gravity.
4. The "connected together" language of K.S.A. 22-3202(1) has been applied in the following three situations: (1) when a defendant provides evidence of one crime while committing another; (2) when some of the charges are precipitated by other charges; and (3) when all of the charges stem from a common event or goal.
5. Error due to misjoinder of charges requires reversal only if the error had a substantial and injurious effect or influence in determining the jury's verdict.
6. Under the facts of this case, none of the conditions precedent under K.S.A. 22-3202(1) were met to allow the joinder of the charge of sexual exploitation of a child with the charges of aggravated indecent liberties with a child. Further, the misjoinder of charges did not constitute harmless error because the highly inflammatory evidence used to prove the charge of sexual exploitation of a child was sufficiently prejudicial to deny the defendant a fair trial.
7. Even if one or more of the conditions precedent under K.S.A. 22-3202(1) is established to allow the joinder of charges, the trial court is under a continuing duty to grant a motion for severance to prevent prejudice and manifest injustice to a defendant.
8. Whether a statute is unconstitutional presents a question of law over which an appellate court's review is unlimited.
9. Under New York v. Ferber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), a State may proscribe pornography depicting children regardless of whether the images are obscene. This is because of a State's interest in protecting the children exploited by the production process. Moreover, a State has a particular and compelling interest in prosecuting those who promote the sexual exploitation of children.
10. In this case, the "simulated" nude exhibition language of K.S.A. 1998 Supp. 21-3516(b)(1) does not render the statute unconstitutional.
11. When a defendant challenges the sufficiency of the evidence in a criminal case, an appellate court must consider all of the evidence, viewed in the light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
12. Sufficient evidence was presented at trial to convict the defendant of the charges of sexual exploitation of a child and aggravated indecent liberties with a child.
Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed February 1, 2008. Reversed and remanded with directions.
Janine Cox, of Kansas Appellate Defender Office, for appellant.
Renee S. Henry and Robbin Wasson, assistant district attorneys, Jerome A. Gorman, district attorney, and Paul J. Morrison, attorney general, for appellee.
Before BUSER, P.J., GREEN and CAPLINGER, JJ.
GREEN, J.: Edward N. Coburn, Sr., appeals from his convictions at a jury trial of six counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A) and one count of sexual exploitation of a child in violation of K.S.A. 1998 Supp. 21-3516(a)(2). First, Coburn contends that the trial court erred in denying his motion to sever his charge of sexual exploitation of a child from the six counts of aggravated indecent liberties with a child. We agree. Under K.S.A. 22-3202(1), the legislature has set out three alternative conditions precedent (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan) which must be met before a trial court may exercise its discretion to allow the joinder of charges. Because none of the conditions precedent under K.S.A. 22-3202(1) were met in this case, the charges should not have been joined as a matter of law. Further, the misjoinder of charges did not constitute harmless error because the highly inflammatory evidence used to prove the charge of sexual exploitation of a child was sufficiently prejudicial to deny the defendant a fair trial. Accordingly, we reverse Coburn's convictions and remand for separate trials.
Next, citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 152 L. Ed. 2d 403, 122 S. Ct. 1389 (2002), Coburn argues that K.S.A. 1998 Supp. 21-3516 is unconstitutional under the First and Fourteenth Amendments to the United States Constitution because it criminalizes the possession of simulated nude exhibitions of a person under the age of 18. We disagree. The simulated nude exhibition language of K.S.A. 1998 Supp. 21-3516(b)(1) does not render the statute unconstitutional under Ashcroft.
Finally, Coburn contends that there was insufficient evidence to convict him of the charges of aggravated indecent liberties with a child and sexual exploitation of a child. We disagree. After reviewing the evidence in the light most favorable to the prosecution, we conclude that a rational jury could have found the defendant guilty beyond a reasonable doubt.
In July 2001, Coburn was convicted by a jury of six counts of aggravated indecent liberties with a child and one count of sexual exploitation of a child. The aggravated indecent liberties charges were based on Coburn's lewd fondling or touching of S.W. (date of birth 06-29-89) and J.W. (date of birth 08-26-86) between November 1998 and March 2000. J.W. and S.W. are sisters and the grandchildren of Rose Coburn. Rose was Edward Coburn's girlfriend and later became his wife. The sexual exploitation charge was based on Coburn's possession of pictures on a computer depicting a child under 18 years of age engaging in sexually explicit conduct.
On appeal, this court reversed and remanded for a new trial, determining that the jury instruction that Coburn's flight could be considered in determining guilt was clearly erroneous. See State v. Coburn, 32 Kan. App. 2d 657, 87 P.3d 348, rev. denied 278 Kan. 848 (2004). Before the new trial, Coburn moved to sever the charge of sexual exploitation of a child from the six counts of aggravated indecent liberties with a child. The trial court denied Coburn's motion to sever, determining that the charge of sexual exploitation of a child was of a similar character to the other charges.
At the new trial, J.W. testified that she met Coburn in the summer of 1998 when she and S.W. went to visit their grandmother, Rose, in Maryland. While J.W. and S.W. were staying with Rose, Coburn would wrestle with them and tickle them. J.W. testified that Coburn would tickle their stomachs and then move his hand lower. S.W. testified that Coburn touched her vaginal area under her clothes. J.W. testified that Coburn touched her vagina once while she was visiting Rose in Maryland. According to J.W., this incident occurred around Thanksgiving 1998.
Coburn and Rose moved to Kansas around October 1998 and lived with J.W., S.W., and C.W., J.W. and S.W.'s mother, for several weeks. J.W. testified about an incident that occurred in the living room of her house on Thanksgiving day. J.W. testified that Coburn tackled her to the floor, straddled her, and held her hands above her head. J.W. testified that no inappropriate touching occurred at that time but that Coburn's conduct came close to inappropriate. Nevertheless, when interviewed by a social worker in April 2000, J.W. indicated that Coburn had touched her inappropriately during the incident at her house on Thanksgiving 1998.
Coburn testified that he and Rose moved into their own house around December 1998. The house was located approximately 2 blocks away from where J.W. and S.W. lived. J.W. testified about another incident that occurred in the basement of Rose's house. According to J.W., Coburn straddled her and attempted to put his hand into her pants. J.W. testified that Coburn rubbed her upper thigh on the outside of her clothes within an inch of her vagina.
J.W. initially testified that she did not remember Coburn touching her vagina after he moved to Kansas. Nevertheless, the prosecutor reminded J.W. of her testimony at a previous hearing where she had stated that Coburn had touched her vagina in the basement of Rose's house in Kansas. The prosecutor gave J.W. a minute to think about whether Coburn actually touched her vagina at Rose's house. J.W. then testified that she remembered Coburn touched her vagina under her clothes in the basement of Rose's house in Kansas.
Based on J.W.'s testimony at the new trial, Coburn touched her vagina once in Maryland and once in Kansas. During her interview in April 2000, however, J.W. named several touching incidents that occurred after Coburn moved to Kansas, including one at Thanksgiving, one at Christmas, two during slumber parties at her grandmother's house, and three or four other incidents.
S.W. testified that Coburn inappropriately touched her twice in the living room and once in the basement at Rose's house in Kansas. S.W. testified that she also saw Coburn inappropriately touch J.W. S.W. described an incident that occurred in the living room of Rose's house in Kansas City. According to S.W., Coburn had his arms around both S.W. and J.W. and was touching both of their "private parts."
L.C., who was J.W.'s best friend, testified that J.W. had told her that Coburn would try to touch her chest and private areas. According to L.C., she had seen Coburn try to slide his hand into the girls' shirts or pants when they were wrestling. D.F., who was a friend of S.W., also testified that S.W. had told her that Coburn had tried putting his hands into S.W.'s clothes.
C.W. testified that about a month after Coburn moved to Kansas, S.W. and J.W. became uncomfortable being around Coburn. S.W. later told her mother, C.W., about the touching incidents. C.W. questioned J.W. about whether Coburn had touched her inappropriately. At first, J.W. repeatedly denied that Coburn had touched her inappropriately. Nevertheless, J.W. eventually told her mother about the touching incidents. C.W. filed police reports about the incidents.
On the morning of March 19, 2000, Coburn stole over $10,000 from a safe at a grocery store where he worked as the assistant manager. Coburn left a note for Rose, stating that he had done nothing wrong to S.W. or J.W. Nevertheless, Coburn stated that he was living on borrowed time and that he was going to have fun with the money during the last years of his life. Coburn was later arrested in Las Vegas and brought back to Kansas.
After learning that Coburn had taken the money from the grocery store and left town, C.W. went with her husband and her husband's friend to Rose's house to attempt to determine where Coburn might have gone. While looking on the computer at Rose's house, they discovered an Amtrak train schedule. Moreover, as they were looking at the different sites that Coburn had visited, they saw what appeared to be child pornography. C.W. called the police. The computer was seized by the Kansas City, Kansas, Police Department and was sent to the Federal Bureau of Investigation (FBI).
After copying the hard drive of the computer to disc, Brian Poole, a forensic examiner with the FBI, ran forensic programs on the copy. Poole discovered numerous pornographic web sites on the history of the computer. Poole testified that the earliest date in the history of the computer was January 7, 1994, and that the next date was February 10, 2000. In the "My Documents" folder of the computer, Poole found various graphic files and a web page from a site with young virgins in photographs that appeared to be child pornography. Allison Rodriguez, who worked for the FBI on child exploitation cases, testified that the sites visited on the computer were known for child pornography. Evidence presented at trial revealed that these sites had been visited on dates when Coburn was living in Rose's house. Rodriguez testified that Coburn's name was on the Internet account found on the computer.
Rose testified that they bought the computer at a yard sale after she and Coburn moved to Kansas. Rose testified that she did not use the computer. C.W., S.W., and Rose testified that Coburn was "always" on the computer. J.W. testified that no one else used the computer besides Coburn. Neither S.W. nor J.W. ever saw what Coburn was looking at on the computer. Whenever they would go downstairs, Coburn would turn the screen away from them or turn it off. The computer had been in the spare bedroom, the garage, and the basement of Rose's house.
At trial, Coburn testified that although he had visited adult pornography sites, he had never visited child pornography sites. Further, Coburn denied ever molesting J.W. or S.W.
The jury convicted Coburn of all six counts of aggravated indecent liberties with a child and the one count of sexual exploitation of a child. Coburn was sentenced to 228 months in prison.
I. Motion to Sever
First, Coburn argues that the trial court erred by denying his motion to sever the count of sexual exploitation of a child from the other six counts of aggravated indecent liberties with a child.
The purpose of joining in one complaint, information, or indictment more than one charge is to promote economy and efficiency. K.S.A. 22-3202(1) permits the joinder of charges under the following circumstances:
"Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
As a result, the State may join in one complaint, information, or indictment more than one charge when the offenses are linked, either in terms of (1) consisting of the same or similar character, (2) arising out of the same act or transaction, or (3) composing of two or more acts or transactions connected together or constituting a common scheme or plan.
In State v. Gaither, 283 Kan. 671, Syl. ¶ 4, 156 P.3d 602 (2007), our Supreme Court recently set forth the standard to be applied when reviewing the joinder of charges under K.S.A. 22-3202(1). An appellate court must first determine which of the three alternative conditions precedent the trial court relied on under K.S.A. 22-3202(1): (1) same or similar character; (2) same act or transaction; or (3) two or more acts or transactions connected together or constituting parts of a common scheme or plan. Next, the appellate court must determine whether there is substantial competent evidence to support the trial court's findings of fact, using a deferential standard. The appellate court then determines whether the trial court properly concluded that a condition precedent has been met, using a de novo standard. Once the trial court makes a legal determination about whether one of the conditions precedent apply, K.S.A. 22-3202(1) gives the trial court discretion to decide whether to join the charges. An appellate court reviews the final decision on joinder of the charges for abuse of discretion. Gaither, 283 Kan. at 685.
A. Consisting of the Same or Similar Character
With this understanding, it is appropriate to focus on which condition precedent the trial court relied on under K.S.A. 22-3202(1). In denying Coburn's motion to sever, the trial court specifically found that the sexual exploitation charge was of a similar character to the aggravated indecent liberties charges. Thus, the trial court relied on the "same or similar character" condition precedent of K.S.A. 22-3202(1).
In State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999), our Supreme Court discussed the determination of whether crimes are of the same or similar character to permit joinder:
"This court has on numerous occasions throughout its history addressed the subject of whether crimes are of the same or similar character so as to permit their joinder. In State v. Hodges, 45 Kan. 389, 392, 26 Pac. 676 (1891), we stated:
'Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. [Citations omitted.]'"
The Barksdale court noted that this standard had been reiterated many times by our Supreme Court. 266 Kan. at 507.
Nevertheless, citing State v. Thompson, 139 Kan. 59, 61-62, 29 P.2d 1101 (1934), our Supreme Court in Barksdale noted that it had warned against relying solely on generalities when considering whether joinder was proper:
"'That offenses must be of the same general character is not always a sound test of joinder. In this instance the two crimes charged were of the same general character, in that they both involved force and violence to the person. That, however, would not necessarily be sufficient. To illustrate: As the culmination of a long-standing quarrel about a line fence, a farmer kills his neighbor. He goes to town, and the same afternoon, while in an excited frame of mind, he becomes involved in an altercation about a business matter, and makes an assault with some kind of deadly weapon with intent to kill. While the offenses are of the same general character, there should be separate informations and separate trials. The only reason that is so is, there would inevitably be some jumbling of the two cases at the trial, which would tend to prevent that concentrated consideration of each case which is indispensable in matters of such gravity.'" 266 Kan. at 508.
Here, the trial court made no findings relating to how the sexual exploitation of a child crime and the aggravated indecent liberties with a child crimes were of a same or similar character. Nevertheless, Coburn never objected to the trial court's lack of factual findings on this issue. When a party does not object to the lack of factual findings before the trial court, an appellate court presumes that the trial court made the factual findings necessary to support its decision. Gaither, 283 Kan. at 686. As a result, this court can proceed directly to the legal conclusion regarding whether the crimes were of the same or similar character under K.S.A. 22-3202(1). See 283 Kan. at 686.
Viewing the record in the light most favorable to the State, the similarities among all of the crimes in this case were that they involved minors, that they involved sex offenses, that they allegedly involved sexual gratification, that they were of a lewd nature, and that some of the crimes were alleged to have occurred at Coburn's residence. Nevertheless, the similarities seem to stop there.
Kansas sex offense laws are similar to those found in most states. Rape, sodomy, sexual battery, and indecent liberties with a child are the primary sex offenses. Further, these sex offenses can be broken down into three main categories: (1) sexual intercourse, (2) sodomy, and (3) touching. Coburn's offense of sexual exploitation of a child does not fit within any of these categories. Moreover, Coburn's sexual exploitation charge and aggravated indecent liberties charges are not similar in character.
To illustrate, the offenses involved very different victims: the children involved in the aggravated indecent liberties charges were not the same children depicted in the images involved in the sexual exploitation charge. Further, the aggravated indecent liberties charges involved specific child victims. The same was not true for the sexual exploitation charge. Because this charge involved pornography, society is generally considered the victim of this type of crime. See Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607, reh. denied 414 U.S. 881 (1973) (applying contemporary community standards in determining whether material is pornographic).
Moreover, the victims were not treated similarly. The aggravated indecent liberties with a child charges are assaultive offenses. On the other hand, the sexual exploitation of a child charge is a possession of contraband offense. This offense is concerned with the possession of pornographic computer images. Unlike the aggravated indecent liberties charges, the sexual exploitation charge did not involve any inappropriate touching of the victims.
Further, the severity level of aggravated indecent liberties charges was driven by the nature of the acts involved and the ages of the victims. The same was not true for the sexual exploitation charge. The sexual exploitation charge involved images of children under the age of 18 while the aggravated indecent liberties charges involved children under the age of 14.
Moreover, the evidence necessary to prove the sexual exploitation charge and the aggravated indecent liberties charges was different. Although the State points out that some of the witnesses were the same for all of the charges, there was no real overlapping of proof for the sexual exploitation charge and the aggravated indecent liberties charges. In other words, when proving the sexual exploitation charge, the State's proof did not constitute a substantial proof of the aggravated indecent liberties charges or vice versa. Specifically, the child victims of the aggravated indecent liberties charges and their family members established that Coburn spent a lot of time on the computer and was the only person who accessed it. These witnesses' testimony, however, related only to a small portion of the State's case on the sexual exploitation charge and was different from their testimony relating to the aggravated indecent liberties charges. Moreover, we doubt that the State needed the child victims' testimony to establish Coburn's computer usage.
Consequently, the State could prove the sexual exploitation charge without using any of the evidence needed to prove the aggravated indecent liberties charges. The aggravated indecent liberties charges were proved through the testimony of the child victims and those individuals whom they told about the incidents. On the other hand, the sexual exploitation charge required testimony from an FBI forensic examiner and an FBI agent working in child exploitation cases about the images found on the computer, the web sites that had been visited, and the history of the computer.
As a result, the proof of the sexual exploitation charge depended on a different set of facts from the set of facts needed for proof of the aggravated indecent liberties charges. In short, the sexual exploitation charge depended on different evidence for its proof than the evidence needed for proof of the aggravated indecent liberties charges. As stated earlier, charges of the same or similar character may be joined in the same information when "all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment." (Emphasis added.) Barksdale, 266 Kan. at 507. Here, the same kind of evidence requirement under the same or similar character condition was not met.
Finally, the sexual exploitation charge and the aggravated indecent liberties charges do not belong to the same class of crimes. The possession of pornographic computer images of minors is a crime distinct from the inappropriate touching of minors. As a result, the crimes were not of the same general type. This leads to the legal conclusion that the charges were not of a sufficiently similar character to warrant joinder under K.S.A. 22-3202(1). As a result, the trial court erroneously determined that the "same or similar character" condition precedent under K.S.A. 22-3202(1) applied.
B. Composing of Two or More Acts or Transactions Connected Together or Constituting Parts of a Common Scheme or Plan
Although not explicitly stated in its ruling, the trial court also seemed to rely on the "connected together" language of K.S.A. 22-3202(1). The trial court found that the pictures had been found on the computer when C.W. was trying to determine where Coburn might have fled. These findings are supported by substantial competent evidence in the record. We must now determine, using a de novo review, whether those findings fit the "two or more acts or transactions connected together or constituting parts of a common scheme or plan" condition precedent of K.S.A. 22-3202(1). See Gaither, 283 Kan. at 685.
In State v. Donaldson, 279 Kan. 694, 699, 112 P.3d 99 (2005), our Supreme Court stated that it had broadly construed the connected together language of K.S.A. 22-3202(1) to apply in three situations. The first situation occurs when the defendant provides evidence of one crime while committing another. This situation is illustrated by State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), where during a drug sale to an undercover officer the seller bragged about a murder and robbery. Our Supreme Court in Anthony held that the crimes were connected together by the incriminating statements made during the drug sale. 257 Kan. at 1016-17. Coburn never provided evidence of the sexual exploitation crime while committing the aggravated indecent liberties crimes. Conversely, Coburn never provided evidence of the aggravated indecent liberties crimes while committing the sexual exploitation crime.
The second situation where our Supreme Court has found charges to be connected together under K.S.A. 22-3202(1) occurs when some of the charges are precipitated by other charges. Donaldson, 279 Kan. at 699. Examples of this situation can be found in State v. Dreiling, 274 Kan. 518, 54 P.3d 475 (2002), and State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983). In Dreiling, our Supreme Court affirmed the joinder of first-degree premeditated murder and conspiracy to commit murder with conspiracy to commit perjury because the perjury would have prevented evidence of the defendant's motive for murder. 274 Kan. at 555. In Pondexter, our Supreme Court held that the charges of unlawful possession of a firearm and aggravated assault of a law enforcement officer were properly consolidated with charges of burglary and attempted murder because the intended murder victim was a witness against the defendant for the first two charges. 234 Kan. at 216-17. The instant case is not similar to the circumstances present in either Dreiling or Pondexter. Moreover, there is no showing in the record that Coburn's sexual exploitation charge was precipitated by his aggravated indecent liberties charges or vice versa.
The third situation where our Supreme Court has found charges to be connected together under K.S.A. 22-3202(1) occurs when all of the charges stem from a common event or goal. Donaldson, 279 Kan. at 700. Examples of this situation are found in State v. Simkins, 269 Kan. 84, 3 P.3d 1274 (2000), and State v. Stewart, 219 Kan. 523, 548 P.2d 787 (1976), overruled on other grounds State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984). In Simkins, our Supreme Court affirmed the joinder of first-degree murder and domestic battery charges against two victims because both charges resulted from the victims' previous extramarital affair and the defendant's observation of the victims talking together. 269 Kan. at 91. In Stewart, our Supreme Court upheld the joinder of the charge of aggravated battery against Sanders and the charge of aggravated robbery against Sander's wife because both crimes were based on the defendant's goal of getting Sanders to repay a debt. 219 Kan. at 528. Here, the State presented no evidence that Coburn committed the crime of sexual exploitation of a child based on a common event or goal such as that present in Simkins and Stewart.
The State contends that all of the charges against Coburn involved one basic scheme. Under K.S.A. 22-3202(1), crimes may be joined if they are based on two or more acts or transactions "constituting parts of a common scheme or plan." Nothing presented at trial, however, showed that the child pornography discovered on Coburn's computer was part of his scheme or plan in committing the aggravated indecent liberties crimes. The child pornography was not used during the aggravated indecent liberties acts. This shows that Coburn did not use the pornographic images to entice J.W. and S.W. into submitting to his alleged illegal acts with them. Moreover, J.W. and S.W. never even saw Coburn looking at pornography on the computer. As a result, the sexual exploitation crime was not used to carry out the aggravated indecent liberties crimes.
In summary, the State presented no evidence that the sexual exploitation charge was connected with any act based on the aggravated indecent liberties charges, nor did the State show that the crimes were based on a common scheme or plan. Therefore, we conclude, as a matter of law, that the "two or more acts or transactions connected together or constituting parts of a common scheme or plan" condition precedent under K.S.A. 22-3202(1) has not been met here.
C. Arising out of the Same Act or Transaction
The remaining condition precedent under K.S.A. 22-3202(1) is the "same act or tran