IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 79,283
STATE OF KANSAS,
Appellee/Cross-appellant,
v.
KELLY LEE MINOR,
Appellant/Cross-appellee.
SYLLABUS BY THE COURT
1. In reviewing admission into evidence of an accused's custodial statements, the appellate court determines if there is substantial evidence to support the trial court's findings of voluntariness.
2. In determining whether an accused's confession or statement is voluntary, the court looks to the totality of the circumstances, including the duration and manner of the interrogation; the ability of the accused, on request, to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers conducting the interrogation.
3. Under the facts of this case, the written statement of the accused was freely and voluntarily given, and there was substantial competent evidence to support the trial court's refusal to suppress it.
4. A departure sentence is subject to appeal by either the defendant or the State.
5. Review of a departure sentence is limited to whether the sentencing court's findings of fact and reasons justifying the departure (1) are supported by the evidence in the record and (2) constitute substantial and compelling reasons for departure.
6. The burden is on the party claiming error to show a departure sentence resulted from partiality, prejudice, oppression, or corrupt motive.
7. A claim that departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law.
8. K.S.A. 21-4719(b)(1) is interpreted to give an appellate court authority to review the extent of downward durational departure sentences under an abuse of discretion standard of review.
9. The nonexclusive list of statutory mitigating factors that may be considered in determining if substantial and compelling reasons for a departure sentence exist include: Whether the victim was an aggressor or participant in the criminal conduct associated with the crime of conviction and whether the degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense. K.S.A. 1998 Supp. 21-4716(b)(1)(A) and (E).
10. When a sentencing judge departs in setting the presumptive term of imprisonment, the judge shall consider and apply the enacted purposes and principles of the sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender's criminal history.
11. Legislative purposes for enacting the Kansas Sentencing Guidelines Act included (1) reducing prison overcrowding, (2) protecting public safety, and (3) standardizing sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias.
12. When a sentencing court relies upon statutory aggravating or mitigating factors to depart, those reasons should be given great deference by a reviewing court.
13. A minor female victim's aggressiveness and actions in leading up to an act of oral sex are not defenses to a charge of aggravated criminal sodomy with a child pursuant to K.S.A. 21-3506(a)(1), although such facts may properly be considered by the trial court in imposing punishment.
14. A departure sentence may be supported by one or more substantial and compelling factors.
15. Under the facts of this case, the trial court's downward durational departure was based on facts and reasons supported by evidence in the record that constituted substantial and compelling reasons for departure and was not an abuse of the trial court's discretion.
Appeal from Lyon district court; HERBERT ROHLEDER, Senior Judge, assigned. Opinion filed January 28, 2000. Affirmed.
Rebecca E. Woodman, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the briefs for appellant.
Joe E. Lee, county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: Kelly Minor was convicted by a jury of one count of aggravated criminal sodomy, K.S.A. 21-3506(a)(1), a severity level 2 person felony.
Minor appeals his conviction, contending the trial court erred in denying his motion to suppress his statements, claiming they were involuntarily made.
The State cross-appeals the trial court's granting of a downward durational departure from a presumptive sentence of 256 months to a sentence of 72 months' imprisonment. The State contends the sentencing court did not state substantial and compelling reasons that were supported by the record and, alternatively, that the departure was the result of partiality, prejudice, oppression, or corrupt motive.
Facts
In November 1996, 14-year-old S.R. was being interviewed by Detective Mark Schondelmaier of the Emporia Police Department on a different matter when she told him of another criminal event.
S.R. stated that a week previously she had spent the night with her 13-year-old friend, A.C. She stated that A.C. and her younger sister C.C., and C.C.'s friend, J., were in the house without adults being present. Randall Ricketts and Kelly Minor came to the house for a period of time, both left, and then Minor returned alone about 20 minutes later.
S.R. related that she and A.C. were in A.C.'s downstairs bedroom with the younger children upstairs. Before Minor entered the room, S.R. told Detective Schondelmaier, "A.C. told me that she wanted to have sexual intercourse with him and so I went upstairs and let them two be." A short time later, S.R. and the other two children went downstairs and walked into A.C.'s darkened bedroom, and when flipping on the light, S.R. stated: "Kelly was standing up and he was zipping up his pants and A.C. was sitting on the bed wiping her mouth."
Based on this information, Detective Schondelmaier asked Minor to come to the police station. Minor was advised of his Miranda rights, and when Schondelmaier told him he wanted to talk about the incident with A.C., Minor said he would not give a statement until arrested. This ended the first interview.
Detective Schondelmaier then interviewed A.C., who told him Minor had asked her for oral sex and that she had complied for about one minute but the act was not complete when they were interrupted by the other girls. The testimony of Detective Schondelmaier at trial concerning consent was that A.C. had consented to the oral sex, although she had told him that she did not want to do so. Schondelmaier testified he did not believe Minor forced A.C. into the act.
After the interview with A.C., Minor was arrested by Officer Owens, who said Minor was upset but did not appear to be under the influence of alcohol.
Detective Schondelmaier and Detective Cronk interviewed Minor at the Lyon County Jail following his arrest. Minor was advised of his Miranda rights and said he understood his rights and agreed to speak with them.
Minor initially denied the crime, but when informed this was his opportunity to give his version of what happened, admitted to participating in the act. He contended A.C. consented and it was her idea. He testified to engaging in oral sex for a short period, admitted he knew A.C. was 13 or 14 years old, and eventually signed a written statement. In the statement, Minor contended the oral sex was voluntary and consensual, that A.C. turned off the lights and turned the stereo on, and that she was sitting down and he was in front of her and she sucked his penis for a few minutes; then, an ex-boyfriend of A.C.'s showed up, so she ran out to see him. He wrote he knew it was wrong and said "it got carried away."
Neither detective observed any indication that Minor was under the influence of alcohol while they observed him for a period of about an hour.
After Minor was charged, he moved to suppress his statement, contending it was involuntary because he was under the influence of alcohol and he was coerced by the detectives' alleged promises. After a hearing where Detectives Schondelmaier and Cronk and Officer Owens, as well as Minor, testified, the trial court found there was no coercion in the officers' request for Minor to be honest and the statement and confession were voluntary. Looking at the duration and manner of the interrogation, and the age and background of the accused, the trial court found that there was nothing unfair about the interrogation. Minor was properly warned as to his Miranda rights, he was not impaired, and the statement was held to be admissible.
At trial, the evidence was substantially as previously set forth. The only parties testifying were S.R., A.C., and Detective Schondelmaier. Minor was convicted by the jury of one count of aggravated criminal sodomy.
Minor moved for a downward durational departure, contending the victim was a participant in the conduct associated with the crime, that he had played only a minor or passive role in the crime, and that the degree of harm or loss attributed to the current crime was significantly less than typical for such an offense. A downward durational departure to a sentence in the range of 36 months was requested. The trial court did grant a downward departure to a sentence of 72 months' imprisonment from a presumptive sentence of 256 months.
Minor appeals, questioning the voluntariness of his statement. He contends it should have been suppressed. The State cross-appeals, contending the downward durational departure was improperly entered.
Minor's issues
The trial court did not err in denying Minor's motion to suppress his statement.
Minor argues that his written statement to the police in which, in effect, he confessed to the crime charged, should have been suppressed. He contends it was not a product of his free and independent will because he was under the influence of alcohol, and he was coerced by the police into writing the confession.
The State first argues Minor failed to preserve this issue by not objecting to the admission of the statement made to the officers during trial. However, the record reflects an objection to the admission of the written statement. We find this issue was properly preserved.
The State further argues there is substantial competent evidence to support the trial court's determination that the statement was voluntarily made, that Minor was not sufficiently under the influence so that his actions were involuntary, and that the statement was admissible. We agree.
The standard of review of a trial court's determination where an inquiry on the admissibility of a defendant's statement was conducted and the statement was admitted is narrow. The trial court's ruling will be accepted on appeal if it is supported by substantial competent evidence. State v. Goseland, 256 Kan. 729, 731, 887 P.2d 1109 (1994).
In this case, a suppression hearing was held, and the trial court heard the evidence by Detectives Schondelmaier and Cronk and Officer Owens, as well as the testimony of Minor. It therefore becomes our limited duty to determine whether the ruling was supported by substantial competent evidence.
At trial, Minor testified he had drunk 3/4 of a bottle of malt liquor and five or six beers prior to the first interview and nearly a pitcher of beer by himself before the second interview. He testified that the detective told him he needed to be honest and that if he came clean there was a chance that charges would not be filed. He further contended it took 30 minutes for him to write a one-page statement and that he did not become aware of A.C.'s age until after his arrest.
Officer Owens, who arrested Minor, testified he did not observe any signs of intoxication. Detectives Schondelmaier and Cronk, who were both present during the entire interview, both testified there was no evidence of intoxication. They said Minor was promised nothing, although he was encouraged to tell the truth. The trial court heard the witnesses, considered the evidence, and properly determined the statement was voluntarily given.
The law concerning the voluntariness of a confession is set forth in State v. Matson, 260 Kan. 366, 921 P.2d 790 (1996), which states that we must look to the totality of the circumstances, including the duration and manner of the interrogation; the ability of the accused to communicate; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990).
The findings of the trial court on the motion to suppress are based upon substantial evidence. We do not on review substitute our view of the evidence for that of the trial court. It is clear the statement was voluntarily given. The trial court was justified, based upon the testimony of the officers, in finding that Minor's drinking had no effect upon his understanding of the circumstances. Minor was Mirandized twice; there was no showing of any threats or coercement. The statement was clearly and properly admitted into evidence and considered by the jury in determining Minor's guilt. This contention is without merit.
State's Cross-appeal
Did the trial court have substantial and compelling reasons for departure or, in the alternative, was the departure the result of partiality, prejudice, oppression, or corrupt motive?
K.S.A. 21-4721 provides that a departure sentence is subject to appeal by either the defendant or the State. Subsection (d) provides:
"[s]entence review shall be limited to whether the sentencing court's findings of fact and reasons justifying a departure:
(1) [a]re supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure."
It is also proper in any appeal for the appellate court to review a claim that "[a] sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive." K.S.A. 21-4721(e)(1). The Court of Appeals in State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994), relying on State v. Heywood, 245 Kan. 615, 620-21, 783 P.2d 890 (1989), held the burden is on the party making these claims and the scope of review is whether the trial court's discretion is abused. Discretion is abused only when no reasonable person would take the view adopted by the court. We have also said that "'if reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.'" State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997).
The landmark Kansas case dealing with downward departures, State v. Favela, 259 Kan. 215, Syl. ¶ 6, 911 P.2d 792 (1996), states: "A claim that the departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law." Favela interpreted K.S.A. 1994 Supp. 21-4719(b)(1) to give appellate courts authority to review the extent of downward durational departures and reasoned that "since the power to review the extent of departures is based on a mere inference, an appellate court should not give itself more power than the legislature intended, and the review should be limited to the weakest type of review--abuse of discretion." Favela, 259 Kan. 215, Syl. ¶ 9.
Minor's motion for a durational departure was from a Kansas Sentencing Guidelines Act (KSGA) mid-range sentence of 256 months under a criminal history score of category C, crime severity level 2, and substantially alleged:
1. The victim was a participant in the criminal conduct associated with the crime of conviction.
2. The offender played a minor or passive role in the crime.
3. The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.
4. The defendant believed that a downward durational departure would be appropriate in this matter and that a sentence in the range of 36 months would be appropriate for the crime of conviction herein.
These allegations substantially follow portions of the nonexclusive list of mitigating factors that may be considered to determine if substantial and compelling reasons for a departure exist, which are statutorily set forth in K.S.A. 1998 Supp. 21-4716(b)(1):
"(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
"(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor is not sufficient as a complete defense.
. . . .
"(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense."
K.S.A. 1998 Supp. 21-4716 further provides:
"(c) In determining aggravating or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding,
(2) the presentence report;
(3) written briefs and oral arguments of either the state or counsel for the defendants; and
(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable."
The sentencing judge heard the testimony of S.R., A.C., and Detective Schondelmaier at Minor's jury trial. Minor testified at the sentencing hearing. He attempted to excuse his criminal actions because of a drinking problem and being intoxicated. He feigned recollection of the sexual event with A.C., suggested it may have been interrupted before it happened, claimed it was not forced, and stated it was only of a minute or so in duration. He claimed every crime he had been involved with was alcohol related, said he had never committed any violent offenses, and asked to have a chance to live a normal life and raise his son. He realized the presumptive sentence was over 20 years' imprisonment and asked for a reduction to a 36-month sentence.
He was confronted on cross-examination with his written statement in which he indicated he had put his penis into A.C.'s mouth for "a few minutes." He equivocated from the admission in his statement that oral sex with A.C. had occurred. He admitted to a juvenile adjudication for indecent liberties with a 13-year-old girl. He testified at the sentencing that he did not consider A.C. a child. He admitted he knew his acts were against the law. He admitted to being larger and stronger than A.C. He denied entering A.C.'s room with the idea of sexual relations occurring. He contended A.C. turned out the lights, and thereafter his recall became shaky. He went to A.C.'s house because he was "bored" and "couldn't think of anything better to do." He was 23 years old at the time and A.C. was 13 years old.
Immediately after Minor's testimony and before arguments were presented on the departure motion, the court said: "Well, we're taking that kind of--those kind of statements right now, because I can tell you, I'm going to depart."
Minor's counsel, in arguing the victim was a participant in the criminal conduct, pointed to the testimony of S.R. that A.C. had approached Minor about sex and that S.R. and Minor had both indicated it was not a forced act.
Minor's counsel stated he did not believe that when the Kansas Legislature doubled all the sentences for all severity level 1 and 2 crimes effective July 1, 1996, it had meant for a defendant to serve over 20 years' imprisonment in cases like this. He said they were not asking for probation. He argued that consent existed. Defense counsel then stated, "[C]hildren in our society are having sex at younger ages. Look at the number of young men that have been paraded in front of you in this courtroom with these two girls. It's incredible." He admitted that it was a serious crime, regardless of whether the victim consented or not, but said, "256 months, 279 months. It's insane." He said the evidence and the hearing at trial was substantial and compelling to justify the granting of a downward durational departure.
The county attorney stated the legislature knew precisely what it was doing when it increased the crime severity levels. He said the system is set up so we do not have rich or poor, black or white being treated differently. In countering the argument as to participation, he pointed to "[t]he crime of conviction is this man putting his penis in the mouth of a 13-year-old child." At this point, the court said: "[A]nd you think that's worth twenty-some years?"
The county attorney said, "[Y]es, I do," and proceeded to point out it was a severity level 2 crime and the only reason it was 20 years was that this man had done it before. He said Minor knew full well what he was doing as he had been adjudicated for a sex crime previously. He argued the State does not have to show the defendant forced participation by the victim to avoid departure as a matter of law.
As to the claim Minor played a passive role in the crime, the county attorney argued Minor actively participated. He next said the degree of harm was yet to be determined. Minor was not taking care of his wife and child, drinking was not a valid excuse, there were more aggravating factors than mitigating, and there is not one factor that calls for a departure.
At this point, the judge said: "Well, the thing that's unfortunate in this case are the two girls that are putting about four young men in the pen are still running around out on the damned streets, still doing the same thing to more men. That's what's unfortunate."
The State challenged the court's recitation of these facts, pointing out that there was one defendant being sentenced and one victim. At this point, the sentencing judge interjected another criminal case into the sentencing:
"And yesterday we finished a case with [S.], whatever her name was, was the victim, and she sat there like, you know, nothing ever happened to her. And she had been dicked by three or four different guys. And, you know, it's just--and then you're trying to tell me that 270 months are--appropriate in a case like this?
"Mr. Lee [county attorney], unfortunately, I can't agree with you, so--"
The State again pointed out that while S.R. and A.C. were "associated" with each other, the court's statements that these two were continuing to "do it" and they were sending "four or five guys . . . to prison" were inappropriate and inaccurate. The county attorney asked the court to deny the departure motion.
The judge then stated:
"Well, the Court has listened to all of this and I'm ready to sentence the defendant. I'm departing from the standard of 256 months to 72 months for the reasons that, one, the victim was a participant in the criminal conduct associated with the crime; two, that the offender played a minor and passive role in the crime; three, that the degree of harm attributed to the current crime was significantly less than typical. And that, in the Court's mind, are enough findings to lower this down to something more reasonable and livable.
"And were this a black man, yellow man, or whatever, it wouldn't make any difference, because if the legislature set up 256 months for a crime like this then the legislature better look at their Sentencing Guidelines and redo them when they have active participant[s], underage girls that are as much responsible or more so than the men that they are putting in prison.
"Now, I've said my say and I can leave the bench, and it's been nice working with you all.
"Mr. Atherton would you inform your client of the appellate time, et cetera, et cetera, and all the other matters that he needs to be informed of, and his Constitutional rights?"
The State pointed out that it was "not sure that we technically ever separated from the departure motion to the sentencing" and inquired if the court was accepting the presentence investigation report as accurate. Hearing no objection, the court accepted the report.
At this point Mrs. Sampsel stood and, over the State's objections, was allowed to address the court. She was not a relative of either the victim or Minor. The court said, "You've already talked once today. What do you want to talk about now?"
Mrs. Sampsel sought further leniency for Minor, to which the sentencing judge responded:
"Well, ma'am, you heard me rant and rave about the Sentencing Guidelines. And if you feel so strongly, instead of talking to me, go down to Topeka right down the road fifty miles and you walk in and you tell those legislature (sic) what you're telling me. . . . And then I certainly agree with you that, you know, ten days in jail is too much for a blow job from a 13-year-old. Now, if it was coming from a 40-year-old, that might be worth ten days, but from a 13-year-old it wouldn't be worth, you know, a day in jail. But . . . the legislature has made those rules, not the County Attorney, not Mr. Atherton, and I didn't. And I'm sure that Mr. Lee is very disappointed because I reduced what I did because of this young man's prior record. And I don't know that I did the right thing by reducing it as far as I did, but that's--I feel very strongly also about the legislature saying these are worth 20 years or--even without the criminal history he had. The normal is, what, ten years, Mr. Lee, if my sentencing--or arithmetic is right. It was 146 months even if he had come in here with totally clean hands. And that's ten-plus years.
"So you go down and tell the legislature and get your friends and neighbors to go down there and tell them what a bunch of little ladies they got running around and how many men they've got in the penitentiary while they just get to do blow jobs and get no responsibility at all, or take no responsibility at all. But, you know, sure, he needs a father, but he should have thought about that before he did not only this crime but a bunch of other crimes when he was still a teenager. And I gave him the biggest break I could give him."
The journal entry of judgment entered the day of sentencing ordered the downward durational departure and gave the following reasons for the departure: "Victim participation, offender['s] minor or passive role, and degree of harm is less than usual."
The State first argues that since lack of consent is not an element of the offense, the presence of consent is not grounds for departure as a matter of law. Although admitting the sentencing judge "echoed the statutory grounds claimed," the State contends the judge failed to state the facts relied upon. The sentencing judge stated it was excessive to sentence Minor to the guidelines period of time for a "blow job" by a 13-year-old, but the State argues the judge failed to articulate specific facts to show substantial and compelling grounds for the departure.
The State argues the sentencing judge's comments as to A.C. and S.R. show prejudice and the sentiments behind the judge's comments reflect bias, partiality, and prejudice.
Minor relies on the broad holding of Favela. He contends K.S.A. 21-4728 states the KSGA should "permit a sentence appropriate for each individual case," and points out that one of the purposes of the sentencing guidelines was to reduce prison overcrowding by reserving space in prison for serious and violent offenders who present a threat to public safety.
Minor argues the three findings made by the trial court were supported by substantial competent evidence. S.R., A.C.'s friend, testified that A.C. "told me that she wanted to have sexual intercourse with him and so I went upstairs and let them two be." Minor further states Detective Schondelmaier, after interviewing all the parties, testified he did not believe Minor forced A.C. into the act.
Minor contends the State conceded consent but argued voluntary participation by A.C. is not grounds for departure as a matter of law. Minor notes the State failed to cite State v. Rush, 24 Kan. App. 2d 113, 115-16, 942 P.2d 55 (1997), which holds that the willing participation of a female victim, while no defense to a charge of statutory rape, may properly be considered in imposing punishment and constitutes a substantial and compelling reason for departure as a matter of law, citing 21-4716(b)(1)(A).
Minor points out the State's argument at the sentencing hearing that Minor provided alcohol to A.C. at the time of this act is factually wrong and there is no testimony to support this contention. In addition, there was no evidence regarding the presence of the HIV virus, which was the only argument advanced by the State that the harm or loss attributed to the crime was not significantly less than typical.
Minor persuasively points out that A.C.'s willing participation is, by itself, sufficient to support the departure. This argument relies on State v. Zuck, 21 Kan. App. 2d 597, Syl. ¶ 4, 904 P.2d 1005, rev. denied 258 Kan. 863 (1995), which held: "In Kansas, there is no legal requirement that all the reasons given by a sentencing court to support a departure sentence be substantial and compelling if one or more of such factors relied upon is substantial and compelling."
Finally, in response to the State's arguments that the sentiments behind the sentencing court's comments reflect bias, partiality, and prejudice, Minor argues that while some of the judge's comments might be considered uncouth, the only "sentiment" which was being expressed by the court was that the presumptive sentence in this case was excessive, given A.C.'s willing participation in the sexual act. Minor argues that "[c]omments by a judge do not necessarily prove that the sentence was improper," citing State v. Tran, 252 Kan. 494, 509, 847 P.2d 680 (1993).
Finally, Minor maintains his conduct is not excused. He must serve 6 years in prison. He states the court imposed a sentence appropriate on the facts of this case. The court, in evaluating the record and facts, acted within the discretion granted by the KSGA.