State v. Naputi

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,354

STATE OF KANSAS,
Appellee,

v.

PATRICK P. L. NAPUTI,
Appellant.


SYLLABUS BY THE COURT

1.
Appellate review of prosecutorial misconduct in closing arguments involves a
two-step analysis. First, the court must determine whether the prosecutor's statements
were outside the wide latitude for language and manner a prosecutor is allowed when
discussing the evidence; second, the court must determine whether the comments
constitute plain error, that is, whether the statements were so gross and flagrant as to
prejudice the jury against the accused and deny him or her a fair trial.

2.
In determining whether prosecutorial misconduct constitutes plain error, three
factors are considered: (1) whether the misconduct was gross and flagrant; (2) whether
the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was
of such a direct and overwhelming nature that the misconduct would likely have had little
weight in the minds of jurors. No individual plain error factor is controlling, and the third
factor of direct and overwhelming evidence may never override the first two factors
unless the State has established beyond a reasonable doubt that the error did not affect the
outcome of the trial in light of the entire record.

2



3.
In a case involving multiple counts of alleged criminal conduct, each charged
crime is a separate and distinct offense. The jury must decide each charge separately
based upon the evidence and applicable law, uninfluenced by its decision on any other
charge.

4.
Juries possess the power to decide a case in a manner which is contrary to the
applicable facts and law, i.e., the power of jury nullification. However, a defendant is not
entitled to have the jury instructed on the power of nullification.

5.
At sentencing, a district court does not have the statutory authority to impose
lifetime electronic monitoring as a condition of parole.

6.
A challenge to a sentence as unconstitutionally cruel and/or unusual must be
initiated and ruled upon in the district court in order to preserve the issue for appellate
review.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed September 2,
2011. Convictions affirmed, sentence vacated in part, and case remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

3



The opinion of the court was delivered by

JOHNSON, J.: In two cases consolidated for trial, a jury convicted Patrick Naputi
on seven counts of aggravated indecent liberties with a child under age 14. The district
court granted Naputi's departure motion and imposed a sentence that included 122
months of incarceration, lifetime electronic monitoring, and lifetime postrelease
supervision. Naputi appeals his convictions and sentences, claiming that (1) the
prosecutor committed misconduct in closing argument; (2) the district court erred in
denying the defense request to modify a jury instruction to reflect the jury's power of
nullification; (3) the district court erred in imposing lifetime electronic monitoring; and
(4) the imposition of lifetime postrelease supervision is cruel and unusual punishment in
violation of the Eighth Amendment to the United States Constitution and Section 9 of the
Kansas Constitution Bill of Rights. We affirm the convictions but vacate the portion of
the sentence ordering lifetime electronic monitoring in accordance with State v. Jolly, 291
Kan. 842, 249 P.3d 421 (2011).

FACTUAL OVERVIEW

The charges against Naputi alleged that he lewdly fondled or touched six boys,
five of whom were in the same fourth grade class where Naputi worked as a
paraprofessional. The allegations in that case, 06 CR 2951, originally surfaced when the
school principal, David Jennings, contacted law enforcement after being informed by
B.S.'s mother that B.S. complained that he had been touched by Naputi on his leg and
under his shorts. In response, Jennings sent a letter to the parents of all the children in
Naputi's classroom informing them of the accusations and encouraging them to discuss
the issue with their children. As a result, four other classmates, P.S., K.P., L.O., and K.K.,
reported having been similarly touched by Naputi.

4



After Naputi was arrested for the alleged classroom incidents, the parents of the
sixth victim, B.N., a Naputi family friend, contacted the police. The parents reported that
B.N. had said that Naputi touched him during a sleepover at the Naputi family home.
Initially, B.N.'s parents believed that B.N. had misconstrued tickling for inappropriate
touching. However, once Naputi was arrested, B.N.'s parents formally reported the
incident, which led to the aggravated indecent liberties with a child charge in case
07 CR 150. The two cases were consolidated for trial.

At trial, Naputi requested that the district court modify the jury instruction on the
State's burden of proof to reflect the jury's power of nullification. The district court
denied that request and gave the standard PIK instruction. The jury convicted Naputi on
all counts.

Thereafter, Naputi filed a motion for new trial claiming three instances of
prosecutorial misconduct during the State's closing argument. Specifically, Naputi
complained that the prosecutor (1) misled the jury as to the definition of specific intent;
(2) improperly shifted the burden of proof by commenting on the defense's failure to call
a therapist as a witness; and (3) made an improper propensity argument in contravention
of K.S.A. 60-455 by encouraging the jury to find that B.N.'s allegations corroborated the
allegations of the five classmates. Following a hearing, the district court overruled the
new trial motion.

At sentencing, Naputi argued for, and was ultimately granted, a downward
departure. However, he now complains, and the State agrees, that the district court erred
in ordering lifetime electronic monitoring as part of the departure sentence. He also
asserts for the first time on appeal that lifetime postrelease supervision constitutes cruel
and unusual punishment in violation of the Eighth Amendment to the United States
Constitution and Section 9 of the Kansas Constitution Bill of Rights.
5




We have jurisdiction over this direct appeal pursuant to K.S.A. 22-3601(b)(1).

PROSECUTORIAL MISCONDUCT

Our review of prosecutorial misconduct claims has followed a now-familiar two-
step analysis, which we have described as follows:

"'"First, the court must determine whether the prosecutor's statements were
outside the wide latitude for language and manner a prosecutor is allowed when
discussing the evidence; second, it must determine whether the comments constitute plain
error, that is, whether the statements were so gross and flagrant as to prejudice the jury
against the accused and deny him or her a fair trial." [Citations omitted.]'

"The second step addresses whether the misconduct is so prejudicial that it denies
the defendant a fair trial and requires a harmlessness inquiry. [State v. Brinklow, 288 Kan.
39, 44, 200 P.3d 1225 (2009)]. Three factors are considered: '(1) whether the misconduct
was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's
part; and (3) whether the evidence was of such a direct and overwhelming nature that the
misconduct would likely have had little weight in the minds of jurors.' [Citation omitted.]
No individual factor is controlling, and the third factor may never override the first two
until both harmlessness tests—K.S.A. 60-261 (prosecutor's statements were inconsistent
with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705,
87 S. Ct. 824 (1967) (error had little, if any, likelihood of changing the outcome of
trial)—have been met. '"'If this can be said, then certainly it will also be true "that the
misconduct would likely have little weight in the minds of jurors."'"' [Citations omitted.]"
State v. Kemble, 291 Kan. 109, 121-22, 238 P.3d 251 (2010).

Recently, this court's decision in State v. Ward, 292 Kan. 541, ___, 256 P.3d 801
(2011), endeavored to clarify our case law defining and applying harmless error
standards, including the two tests described above, i.e., the K.S.A. 60-261 harmlessness
6



test and the Chapman federal constitutional harmless error test. Ward's synthesis and
standardization of harmless error tests did not purport to modify our prior holding that the
Chapman harmless error test applies to prosecutorial misconduct claims. Therefore, the
third factor of the second step of the prosecutorial misconduct test still may not override
the first two factors unless the State has demonstrated "beyond a reasonable doubt that
the error complained of . . . did not affect the outcome of the trial in light of the entire
record." Ward, 292 Kan. 541, Syl. ¶ 6.

Misstatement of Law

Naputi complains of two separate instances where he believes that the prosecutor
misstated the definition of specific intent—an element of the aggravated indecent
liberties offense. K.S.A. 21-3504 requires that the State prove that Naputi engaged in:
"Any lewd fondling or touching of the person of either the child or the offender, done or
submitted to with the intent to arouse or satisfy the sexual desires of either the child or
the offender, or both." Thus, to convict Naputi, the jury had to find both that his touching
of the boys was a lewd fondling or touching and that Naputi's intent in touching the boys
was to arouse or satisfy his or each boy's sexual desires.

Naputi suggests that twice during closing arguments the prosecutor misstated the
law by combining the two statutory requirements into one. In the first challenged remark,
the prosecutor said: "The interpretation of how he touched them, whether there was
specific sexual intent involved is not based upon his brain, but based upon the senses of a
reasonable person." Naputi argues that this statement eliminated the intent element from
the equation by indicating to the jury that his state of mind was irrelevant.

However, reading comments in isolation can frequently be misleading as to the
message that the prosecutor was conveying to the jury. Accordingly, we review
7



challenged remarks in their full context. See State v. Huerta-Alvarez, 291 Kan. 247, 262,
243 P.3d 326 (2010) (quoting State v. Murray, 285 Kan. 503, 511, 174 P.3d 407 [2008])
("'prejudicial nature of alleged errors is analyzed in the context of the trial record as a
whole'"); State v. Magallanez, 290 Kan. 906, 919, 235 P.3d 460 (2010); State v. Becker,
290 Kan. 842, 851, 235 P.3d 424 (2010); State v. Whitaker, 255 Kan. 118, 134, 872 P.2d
278 (1994). The context of the first challenged remark is as follows:

"And then finally that last sentence in that instruction is specifically about sexual
intent. All of that evidence may be considered for the purpose of proving his sexual
intent with respect to [K.P.], [L.O.], [K.K.] and [B.N.]. How come those four. Because it
is [B.S.] and [P.S.] who are actually touched on their genitals. There's no question of
sexual intent with respect to those kids because they were actually touched on their sex
organs. The others were touched on their legs or in between thighs or right on their pubic
bone area. That is why you consider the evidence, all the evidence involved about sexual
intent on those other kids who were actually touched on their privates.
"You will get that even more when you go to the actual definition of lewd
fondling. The interpretation of how he touched them, whether there was specific sexual
intent involved is not based upon his brain, but based upon the sense of a reasonable
person. Lewd fondling or touching may be defined as a fondling or touching in a manner
which tends to undermine the morals of a child which is so clearly offensive as to outrage
the moral senses of a reasonable person. That's you. That's you guys. Not him. Which is
done with the specific intent to arouse or satisfy the sexual desires of either child, the
offender or both." (Emphasis added.)

The context could certainly suggest that the prosecutor was attempting to
enlighten the jury about the act of lewd touching or fondling. Notably, the prosecutor
included the definition for that type of contact, which refers to a reasonable person. See
State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977) (defining lewd fondling or
touching); PIK Crim. 3d 53. Moreover, the prosecutor followed up by stating the specific
intent requirement. Thus, without more, we could find that the context of the first
8



statement keeps it from exceeding the wide latitude afforded a prosecutor during closing
arguments.

However, the prosecutor's second remark counsels against a charitable contextual
interpretation of her statement of the law. During her rebuttal closing argument, the
prosecutor stated:

"Sexual intent, determine it from the place of the touching, and maybe the law on
lewd fondling. The interpretation of intent doesn't come from him (pointing). It comes
from a reasonable person. And that's you. And I ask that you use your common sense and
judgment about determining whether these touches were lewd fondling or not. Find that
they were. Find him accountable of all seven counts."

The remark suggests that the jury's inquiry is reduced to the single determination
of whether a reasonable person would find that Naputi's touching of the boys fit the
definition of lewd fondling. Following the prosecutor's logic, all the State was required to
prove was the fact of the lewd contact, allowing the jury to assume the presence of the
specific intent element from the act of touching. Moreover, the prosecutor specifically
tells the jury not to consider Naputi's subjective intent for touching the boys.
Accordingly, we must conclude that the prosecutor's comment was a misstatement of law
that effectively combined the lewd touching or fondling element with the requisite
specific sexual intent element, both of which are required for a conviction of aggravated
indecent liberties with a child.

Our finding of misconduct sends us to the second step of determining whether
Naputi was denied a fair trial. See State v. Baker, 287 Kan. 345, 365, 197 P.3d 421
(2008); State v. Sappington, 285 Kan. 176, 186, 169 P.3d 1107 (2007). In Baker, we
affirmed the defendant's conviction for felony murder and kidnapping despite the
prosecutor's misstatement of law regarding the intent element of an aiding and abetting
9



charge. 287 Kan. at 366-68. In making a sports analogy during closing arguments, the
prosecutor stated:

"'My daughter plays on a ball team. She's not a starter, she is what we would call a
benchwarmer. She may get in for 40 seconds in a game, she may get in for a minute in
the game and that may be it, but she's part and parcel of that team. . . . Doesn't matter that
she doesn't play the whole time of the game. Doesn't matter that she didn't make a basket,
it doesn't matter that she didn't get into the game, she rises and falls as part of the team.'"
Baker, 287 Kan. at 365.

We found the remark was a misstatement of law because it suggested that mere
association was sufficient to support an aiding and abetting conviction. Yet, ultimately
we concluded that reversal was unwarranted where the prosecutor repeatedly referenced
the correct standard and where the jury received the correct aiding and abetting
instruction. 287 Kan. at 368-70.

Our review of the record in the present case supports a similar conclusion. When
looking for plain error we must first consider whether the prosecutor's comments were
gross and flagrant. Here, the prosecutor twice talked about the act of lewd touching and
the required sexual intent as separate elements for the jury's consideration:

"And then finally that last sentence in that instruction is specifically about sexual
intent. All of that evidence may be considered for the purpose of proving his sexual intent
with respect to [K.P.], [L.O.], [K.K.] and [B.N.]. . . . [Y]ou consider the evidence, all the
evidence involved about sexual intent on those other kids who were actually touched on
their privates.
". . . Lewd fondling or touching may be defined as a fondling or touching in a
manner which tends to undermine the morals of a child which is so clearly offensive as to
outrage the moral senses of a reasonable person. . . . Which is done with the specific
intent to arouse or satisfy the sexual desires of either child, the offender or both.
10



"Then what evidence do you go to determine sexual intent. In just like I was
saying, the place of the touching, the fact it was under the shorts, and for two of the kids
actually on their genitalia.
"And then finally, . . . [l]ewd fondling or touching does not require contact with
the sex organ of one or the other. . . . [L]ewd fondling or touching does not require
actually [sic] contact with the sex organ itself."

Additionally, the jury was given a proper instruction for aggravated indecent
liberties that mirrored the pattern instruction in PIK Crim. 3d 57.06. Where a prosecutor
makes both a misstatement of the law and a correct recitation of the applicable law in a
closing argument, we have been loathe to characterize the misstatement as being gross
and flagrant misconduct. See, e.g., State v. Adams, 292 Kan. 60, 68-69, 253 P.3d 5 (2011)
(comments not gross or flagrant when "the prosecutor only made a passing reference to
the victim and did not dwell on or repeat the point"); State v. Decker, 288 Kan. 306, 316,
202 P.3d 669 (2009); Baker, 287 Kan. at 368-69; State v. Miller, 284 Kan. 682, 719, 163
P.3d 267 (2007) (noting that it is the accumulation of multiple comments which may
render them gross and flagrant). Neither does such a situation support a finding of ill will.
See, e.g., State v. McHenry, 276 Kan. 513, 525, 78 P.3d 403 (2003) (noting that ill will
has been found in cases where the prosecutor expressed indifference to a court's rulings,
mocked the defendant, or engaged in repeated acts of misconduct and that the lack of
such conduct evidences no ill will); State v. Washington, 275 Kan. 644, 672, 68 P.3d 134
(2003) (a few comments included in lengthy transcript does not establish gross and
flagrant conduct or ill will).

Likewise, reviewing the entire record, we determine that the evidence was such
that the misconduct would likely have had little weight in the minds of the jurors. Adams,
292 Kan. at 69; Magallanez, 290 Kan. at 915; State v. Henry, 273 Kan. 608, 619, 44 P.3d
466 (2002). Although the evidence at trial was largely circumstantial, all five classmates
testified that they were touched by Naputi in almost identical ways. Those claims were
11



then bolstered by the fact that B.N., who was not a classmate of the other five, testified to
experiencing similar contact with Naputi. Finally, Naputi's supervisor testified that she
felt Naputi's interactions with the boys were inappropriate.

Under these circumstances we are convinced beyond a reasonable doubt that the
prosecutor's singular and isolated misstatement of the law with respect to specific intent
made no difference in the outcome at trial.

Shifting the Burden of Proof

Naputi next argues that the prosecutor improperly shifted the burden of proof
when she commented during closing arguments on the defense's failure to call a therapist
who had interviewed one of the boys. The prosecutor said:

"It is clear speculation on the part of the defense that these kids have conspired . . . .
Where is the evidence that [B.S.] was angry with him. From the outset in his post
Miranda interview, his first opportunity to explain himself, he doesn't say anything
negative about [B.S.] like he has just said to you today. How did [B.S.] feel. Where is the
therapist to talk about this case. The therapist is not here because guess what.
. . . .
". . . The defense has subpoena power just like the State does. If they wanted to
get the therapist in here to discount the quality of those feelings, they were welcome to do
so and did not."

Naputi contends that State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), is
analogous. There, we found an impermissible attempt to shift the burden of proof to the
defense from the prosecutor's comment: "'"Is there any evidence that the things she told
you didn't happen?"'" 278 Kan. at 92. Again, however, context is the key.

12



Here, the prosecutor's statement was made in response to the defense counsel's
argument focusing on the State's failure to call a witness. In closing, defense counsel
stated:

"The State said that they're going to bring in the counselor, this Kraig Moore.
And he would tell you about the therapy. . . . [L]adies and gentlemen, you may assume by
the State's not putting Mr. Kraig Moore on the stand that you can safely assume that had
Kraig Moore taken an oath to testify to the truth . . . that he certainly would not have
helped the State in the State's position. . . . [O]therwise he would have been up there. You
know that."

In State v. Verge, 272 Kan. 501, 512-14, 34 P.3d 449 (2001), defense counsel
argued for a favorable inference from the fact that the State did not call certain witnesses.
The prosecutor responded by stating: "'And the point is these witnesses were not
unavailable to the defendant, either. . . . Mr. Ney and Mr. Sylvester are two fine
attorneys, and if there's people that can help their client, they know how to get them in
here.'" 272 Kan. at 513. There, we did not find an impermissible burden-shifting, but
rather we determined that the prosecutor was responding in a reasonable manner to
defense arguments that faulted the State for failing to call a witness at trial. Verge
recognized similar holdings in State v. Baker, 249 Kan. 431, 446, 819 P.2d 1173 (1991),
State v. Hanks, 236 Kan. 524, Syl. ¶ 7, 694 P.2d 407 (1985), and State v. Robinson, 219
Kan. 218, 221, 547 P.2d 335 (1976). 272 Kan. at 514.

Here, the defense argued that the jury could assume that the therapist would not
have helped the State's case because the State did not call him as a witness. The
implication, then, is that the witness would have been beneficial to the defense. It is
certainly within the wide latitude given to prosecutors to respond to that purported
inference by pointing out that if the therapist would have been helpful to the defense, the
13



defense could have subpoenaed him. Such a comment, refuting a purported inference, is
not an impermissible shifting of the burden of proof.

Propensity Inference

For his final claim of prosecutorial misconduct, Naputi asserts that the following
statement made by the prosecutor during closing arguments was an improper propensity
inference in violation of K.S.A. 60-455: "Folks, you take [B.N.]'s case and you take the
five kids' cases. Mom, I've got something to tell you, and how—how strongly is it that the
five kids corroborate [B.N.] and that [B.N.] corroborates the five kids." Naputi argues
that the statement implied to the jury that it could find him guilty of aggravated indecent
liberties against the five classmates based on the fact that he also improperly touched
B.N. and vice versa.

K.S.A. 60-455 deals with the admissibility of evidence of other crimes or civil
wrongs. Naputi does not and could not claim that evidence of the crime perpetrated upon
B.N. or evidence of the crimes perpetrated upon the five classmates was inadmissible at
his consolidated trial. Accordingly, we are not presented with a K.S.A. 60-455 violation.

However, the prosecutor's statement, in isolation, does run afoul of the multiple
counts jury instruction, based on PIK Crim. 3d 68.07, which stated in this case:

"Each crime charged against Patrick P.L. Naputi is a separate and distinct
offense. You must decide each charge separately on the evidence and law applicable to it,
uninfluenced by your decision as to any other charge. Patrick P.L. Naputi may be
convicted or acquitted on any or all of the offenses charged."

Nevertheless, we must again view the prosecutor's comments in the context of the
defense arguments. Naputi contended that the five classmates conspired to falsify their
14



allegations of improper touching. The fact that B.N. made a totally unrelated claim that
Naputi engaged in the same type of conduct as the classmates alleged would obviously
tend to refute the defense's conspiracy theory. An argument to that effect would not have
exceeded the bounds of fair play.

Where the prosecutor went awry in this instance was in saying that the victims
corroborated each other, rather than saying the two, separate allegations were inconsistent
with a conspiracy. However, we cannot declare that the misuse of the word "corroborate"
was gross and flagrant misconduct or the product of ill will. Moreover, the jury was
instructed to look at each count separately, uninfluenced by the other charges. We are
firmly convinced, beyond a reasonable doubt, that the error did not affect the outcome of
this trial.

JURY INSTRUCTION

Next, Naputi contends that the district court erred when it declined to modify the
jury instruction on burden of proof to reflect the jury's power of nullification. Despite his
acknowledgement of our 38-year-old holding to the contrary in State v. McClanahan, 212
Kan. 208, Syl. ¶¶ 3, 4, 510 P.2d 153 (1973), Naputi argues that the jury's inherent power
to ignore the rule of law should be reflected in the jury instructions. Curiously, Naputi
also cites to two additional cases that recognize the power of jury nullification, but reject
the idea that a defendant is entitled to have the jury informed of that power. See Silvers v.
State, 38 Kan. App. 2d 886, 890, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008);
People v. Nichols, 54 Cal. App. 4th 21, 23-24, 62 Cal. Rptr. 2d 433 (1997).

We need look no further than McClanahan, where we disapproved of the "do what
you think is fair instruction" that was then set forth in PIK Crim. 51.03. The instruction
informed the jury that its members had the power to consider their own conscientious
15



feelings about what was fair under the circumstances and to acquit the defendant if justice
required such a result. 212 Kan. at 209. We found this instruction improper because it
allowed the jury to ignore legal principles under the guise of a "fair" outcome. 212 Kan.
at 214-15. We declared that "it is the proper function and duty of a jury to accept the rules
of law given to it in the instructions by the court, apply those rules of law in determining
what facts are proven and render a verdict based thereon." 212 Kan. at 217. Accordingly,
we concluded that an instruction enabling the power of jury nullification could not
survive because it undermined the traditional functions of the court and the jury.

Naputi attempts to distinguish McClanahan by suggesting that the severity of the
sentence attached to his crimes is not intuitive. His argument is that ordinarily juries have
a "sense" of the severity of punishment based on the crime, e.g., murder is punished more
harshly than theft. However, he suggests that the sentencing provisions of Jessica's Law
confuse that common-sense approach because juries would not necessarily know that the
act of touching a child on the thigh could result in a hard 25 life sentence, i.e., a more
severe punishment than if the defendant had intentionally killed the child without
premeditation. Accordingly, the jury should be allowed to effectively compensate for that
discrepancy.

While Naputi's proportionality argument is mildly seductive, it is legally
unavailing. It is not the role of the jury to rewrite clearly intended legislation, nor is it the
role of the courts to instruct the jury that it may ignore the rule of law, no matter how
draconian it might be. The instruction given in this case was a correct statement of the
law. The district court did not err in refusing to make the defendant's proffered
modifications.

16



LIFETIME ELECTRONIC MONITORING

Both Naputi and the State agree that the portion of his sentence requiring lifetime
electronic monitoring should be vacated and remanded with instructions to remove that
requirement. We agree. Recently, in State v. Jolly, 291 Kan. 842, Syl. ¶ 5, 249 P.3d 421
(2011), we concluded that, based on the language of K.S.A 22-3717(u), the parole board
has the sole authority to impose the electronic monitoring condition of parole. Jolly, 291
Kan. at 848 (K.S.A 22-3717[u] "plainly states that the parole board shall order electronic
monitoring as a condition of parole. [It] does not also provide authority for a sentencing
court to order electronic monitoring."). Accordingly, we vacate that portion of Naputi's
sentence and remand with instructions to eliminate the electronic monitoring
requirement.

LIFETIME POSTRELEASE SUPERVISION

For his final argument, Naputi contends that the imposition of lifetime postrelease
supervision is cruel and unusual punishment under the Eighth Amendment to the United
States Constitution and Section 9 of the Kansas Constitution Bill of Rights. The State
urges us not to address the issue because the record on appeal is not properly developed.
We find that the issue is not properly preserved for appeal.

We have repeatedly stated that the issue of cruel and/or unusual punishment will
not be reviewed for the first time on appeal because it requires the district court's findings
upon the three-part test established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950
(1978). State v. Garza, 290 Kan. 1021, 1033, 236 P.3d 501 (2010); State v. Easterling,
289 Kan. 470, 486, 213 P.3d 418 (2009); State v. Thomas, 288 Kan. 157, 160-61, 199
P.3d 1265 (2009); State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008).
Granted, in State v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009) (filed 3 months
after the briefs in this case but before oral argument), we faulted both the district court
17



and the defendant for failing to make an adequate record for review, and we remanded to
the district court to apply the Freeman factors. 289 Kan. at 722. However, we cautioned
that such an outcome was an exceptional situation. 289 Kan. at 721. Central to that
decision was the finding that the defendant had adequately raised the issue before the
district court.

Here, Naputi made a one-sentence argument in his motion for departure that "the
'one size fits all' sentencing mandate . . . is unconstitutional in that it amounts to
punishment that is cruel and unusual." Trial counsel argued the issue with respect to the
general sentencing provisions of Jessica's Law and made no mention of lifetime
postrelease supervision. Accordingly, we cannot fault the district court for failing to make
adequate findings on the constitutionality of lifetime postrelease supervision when that
issue was never presented to the sentencing court. Therefore, we decline to consider the
issue for the first time on appeal.

Convictions affirmed, sentence vacated in part, and case remanded with directions.

MICHAEL J. MALONE, 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 Malone was appointed to hear case No.
101,354 to fill the vacancy on the court created by the retirement of Chief Justice Robert
E. Davis.