State v. Portillo (Corrected May 2, 2012)

CORRECTED OPINION

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,558

STATE OF KANSAS,
Appellee,

v.

JOSE A. PORTILLO,
Appellant.


SYLLABUS BY THE COURT

1.
The standard of review for a challenge to the sufficiency of the evidence in a
criminal case is whether, after review of all the evidence, examined in the light most
favorable to the prosecution, the appellate court is convinced that a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. It is the function of the
jury, not an appellate court, to weigh the evidence and to determine the credibility of
witnesses. Those standards are not altered simply because the victim of an alleged rape
has made conflicting statements as to whether the defendant effected penetration.

2.
Under the facts of this case, a videotape of an 11-year-old child's oral statement
that met the requirements of K.S.A. 22-3433 was not rendered inadmissible because it
was cumulative to other testimony.

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3.
The Sixth Amendment to the United States Constitution and §10 of the Kansas
Constitution Bill of Rights both provide an accused with the right to know the nature and
cause of the accusation against the accused.

4.
K.S.A. 22-3502 prescribes a time limit following a verdict or finding of guilty by
which a defendant must file a motion for arrest of judgment. K.S.A. 22-3503 permits a
district court to arrest the judgment without a motion from the defendant whenever the
court becomes aware of the existence of grounds which would require that a motion for
arrest of judgment be sustained, if filed.

5.
If the parties have presented arguments to the district court on the validity of the
charging document and the court has had an opportunity to issue an order arresting
judgment pursuant to K.S.A. 22-3503, the defendant's claim on appeal that the charging
document was defective will not be deemed to have been raised for the first time on
appeal, notwithstanding the defendant's failure to file a motion for arrest of judgment.

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed April 27,
2012. Convictions affirmed, and sentence vacated and remanded for resentencing.

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

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Robbin L. Wasson, assistant
district attorney, Jerome Gorman, district attorney, and Steve Six, attorney general, were on the brief for
appellee.

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The opinion of the court was delivered by

JOHNSON, J.: Jose A. Portillo directly appeals his conviction for one count of rape
of a child under age 14. At sentencing, recognizing that it had failed to properly charge
Portillo with the off-grid version of the crime, the State filed a motion to amend the
presentence investigation report (PSI) to indicate that Jessica's Law applied and that
Portillo was subject to a mandatory minimum hard-25 life sentence. Ultimately, the
district court found that the State's failure to charge Portillo with the off-grid offense
version of the crime was mere clerical error and did not prejudice his defense. As a result,
the district court held that Portillo had been convicted of an off-grid felony. Nevertheless,
the district court departed from the mandatory minimum sentence and imposed a prison
term of 240 months. Portillo appeals, claiming his conviction and sentence violate due
process and that his conviction was not supported by sufficient evidence. We find
sufficient evidence to support a conviction for the on-grid version of the crime but
remand for resentencing.

FACTUAL AND PROCEDURAL OVERVIEW

Portillo was accused of the forcible rape of D.B., the daughter of a woman with
whom Portillo had been having an affair. In an initial interview with the police on the
date of the incident, D.B. said that Portillo had come to the house as usual that morning
but then had asked D.B. to go into her bedroom. She said that when they were inside the
bedroom and Portillo had closed the door, he pulled down her pants, covered her mouth,
pushed her onto the bed, pulled off his pants, got on top of D.B., and "tried to put his
thing in her." When asked whether Portillo had "put it in all the way," D.B. responded,
"Yes, but not all the way in."

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D.B.'s mother opened the bedroom door to discover Portillo on top of D.B. and
D.B.'s underwear and pants below her knees. The mother scuffled with Portillo, before
calling the police. After the police interviewed D.B., her mother took her to the hospital
emergency room.

At the hospital, Dr. Hite performed a sexual assault and gynecological
examination. The doctor testified to finding blood in the general area inside the labia
majora, albeit she could not pinpoint the source of the blood except to rule out that it was
coming from the vaginal canal or the rectum. The doctor could not see any tearing,
lacerations, or scratches with her naked eye, but did notice a "duskiness in the posterior
fourchette," which was consistent with bruising as a result of direct blunt trauma. The
swabs collected from D.B. during the examination and from D.B.'s bedding all tested
negative for Portillo's DNA.

D.B. was forensically interviewed at Sunflower House the day after the incident.
Her recollection of events was consistent in most respects with her statements to the
police the day before, except for her description of penetration. When asked what Portillo
was doing while on top of her, D.B. said that he was "pushing back and forth" with his
private part on top of her private part, which felt "weird." She said that Portillo tried to
get his private part "inside [her] body but [she] kept on moving so he couldn't." At trial,
D.B. testified that Portillo "put his private thing on [her] private thing," but not inside.
When asked about her initial statement to law enforcement, D.B. said that she did not
remember telling the officer that Portillo "got it partway in."

Portillo's theory of defense was that D.B.'s mother had fabricated the rape because
she was mad at Portillo for refusing to commit to their relationship. At trial, the defense
objected to the admission of the videotape of D.B.'s Sunflower House interview as
cumulative, arguing that it constituted the "fourth hearsay telling of what [D.B.] has
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said." The trial court admitted the videotape as being probative of the victim's state of
mind.

The jury was instructed on both rape and attempted rape. The jury found Portillo
guilty on the rape charge.

The initial sentencing hearing was scheduled for March 11, 2009, albeit the
transcript of that hearing is not in the record on appeal. According to a subsequent
pleading, entitled "State's Motion to Amend Presentence Investigation Report," the State
discovered at the initial sentencing hearing that the information had charged Portillo with
severity level 1 rape, rather than the off-grid version. Apparently, the district court
continued the initial sentencing hearing to allow the parties to brief the issue. Ultimately,
the district court agreed with the State's argument that its charging of the on-grid version
of the offense could be considered a clerical error and that the erroneous charging
instrument had not prejudiced Portillo's defense in any way. Accordingly, the district
court determined that it could sentence Portillo for the off-grid version of the crime.

Nevertheless, the district court advised the parties that it had decided sua sponte to
impose a departure sentence. The aggravated term in the appropriate guidelines grid-box
for the severity level 1 version of rape was 165 months. The district court told the parties
that it was "looking at a number between 165 [months] and 25 years." After giving the
parties an opportunity to be heard, the court ultimately imposed a sentence of 240
months.

On June 17, 2009, Portillo obtained leave to docket this appeal out of time. We
have jurisdiction pursuant to K.S.A. 22-3601(b)(1).

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Portillo's brief raises three issues: (1) The State's failure to charge and prove the
defendant's age at trial, along with the district court's failure to instruct the jury on the
element of defendant's age, violated Portillo's Sixth Amendment right to a jury trial when
the district court imposed a sentence as if Portillo had been convicted of an off-grid
offense; (2) the district court erred in permitting the admission of the Sunflower House
interview videotape; and (3) the evidence was insufficient to support the penetration
element of rape. We take the liberty of addressing the issues in reverse order.

SUFFICIENCY OF THE EVIDENCE OF PENETRATION

Standard of Review

To avoid any suggestion that we might be altering our standard of review, we will
resist the temptation to paraphrase the familiar standard and will set forth a complete
recitation:

"'When sufficiency of evidence is challenged in a criminal case, our standard of
review is whether, after review of all the evidence, examined in the light most favorable
to the prosecution, we are convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt.' State v. Prine, 287 Kan. 713, 738, 200 P.3d
1 (2009) (citing State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 [2008]; State v. Morton,
283 Kan. 464, 474, 153 P.3d 532 [2007]). 'In reviewing the sufficiency of the evidence,
this court will not reweigh the evidence. It is the jury's function, not ours, to weigh the
evidence and determine the credibility of witnesses.' State v. Doyle, 272 Kan. 1157,
1162-63, 38 P.3d 650 (2002) (citing State v. Aikens, 261 Kan. 346, 391-92, 932 P.2d 408
[1997])." State v. Cosby, 293 Kan. 121, 133-34, 262 P.3d 285 (2011).

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Analysis

The version of rape for which Portillo was convicted simply required the State to
prove that Portillo had "sexual intercourse with a child who is under 14 years of age."
K.S.A. 21-3502(a)(2). "Sexual intercourse" is defined as "any penetration of the female
sex organ by a finger, the male sex organ or any object. Any penetration, however slight,
is sufficient to constitute sexual intercourse." K.S.A. 21-3501(1). This court has further
refined the analysis of penetration by stating that "actual penetration of the vagina or
rupturing of the hymen is not required; penetration of the vulva or labia is sufficient."
State v. Borthwick, 255 Kan. 899, 914, 880 P.2d 1261 (1994).

Here, the evidence of penetration was conflicting. D.B.'s initial statement to the
investigating officer suggested that Portillo achieved partial penetration. Her Sunflower
House interview suggests that Portillo was moving his penis back and forth on the top of
D.B.'s genitalia, and her trial testimony denied that penetration occurred because her
movements had prevented it. The results of D.B.'s medical examination—blood on the
inside of the labia and blunt force injury bruising—were consistent with penetration, but
not conclusive on that point. Portillo's DNA was not found on the vaginal swabs.

Naturally, Portillo focuses on D.B.'s trial testimony that penetration did not occur.
He "contends that there must be irrefutable medical evidence of penetration or at least
clear and convincing evidence that the victim does not comprehend the legal definition of
sexual intercourse before a jury's rejection of the complaining [witness'] testimony
denying penetration can be upheld on appeal." But, of course, that newly manufactured
standard is nowhere close to our historical test for evidence sufficiency. The trial
attorneys are free to argue which of the victim's statements are more credible, and it is the
jury's function, not ours, to make the final assessment of credibility. Indeed, one might
question whether the criminal defense bar would embrace a rule that would have us
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assessing the victim's testimony as always absolutely credible absent "irrefutable
evidence" to the contrary.

Moreover, this court has previously addressed the circumstance of a victim's
inconsistent statements regarding penetration. In State v. Prine, 287 Kan. 713, 200 P.3d 1
(2009), the victim told an investigating detective that the defendant placed his fingers on
both the inside and outside of her vagina. But at trial, the victim repeatedly testified that
the defendant only touched her on the outside. Based on this conflict, the defendant
argued on appeal that there was insufficient evidence of penetration to support a rape
conviction. 287 Kan. at 738. Despite the victim's denial at trial, this court upheld the
sufficiency of the evidence to support the element of penetration, relying on the overall
consistency of the victim's various statements detailing the alleged events and on other
evidence that allowed for a "common-sense inference of penetration." 287 Kan. at 739-
40.

As in Prine, D.B.'s various statements were consistent, except for the question of
penetration. Even then, D.B.'s Sunflower House statement that Portillo was on top of her,
pushing his penis back and forth, which she said felt weird, would support a common-
sense inference that at least the labia were being penetrated. That inference was bolstered
to some extent by the medical evidence of blood and bruising. Further, Dr. Hite opined
that girls D.B.'s age often do not know particular terms for genitalia so they generalize,
i.e., D.B. might not have known the difference between penetration of the labia and
penetration of the vaginal canal.

On appeal, we are required to give due deference to the jury's factfinding. Without
reweighing the evidence or reassessing the victim's credibility, and viewing the evidence
in a light most favorable to the State, we are constrained to find that a rational jury could
have found beyond a reasonable doubt that Portillo completed the crime of rape by
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effecting penile penetration. In other words, the evidence was sufficient to support the
rape conviction.

ADMISSION OF FORENSIC INTERVIEW VIDEOTAPE

Portillo also complains that the district court should not have permitted the State to
admit the videotape of D.B.'s sexual abuse interview at the Sunflower House. He claims
that the videotape was cumulative hearsay evidence that the trial court admitted for the
irrelevant purpose of showing the victim's state of mind.

Standard of Review

"'"When a party challenges the admission or exclusion of evidence on appeal, the
first inquiry is relevance. Once relevance is established, evidentiary rules governing
admission and exclusion may be applied either as a matter of law or in the exercise of the
district judge's discretion, depending on the contours of the rule in question. When the
adequacy of the legal basis of a district judge's decision on admission or exclusion of
evidence is questioned, an appellate court reviews the decision de novo." State v. Walters,
284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).' State v. Richmond, 289 Kan. 419, 426, 212
P.3d 165 (2009).
"When the more discretionary aspects of an admissibility determination are
challenged, 'the district court's decision will not be overturned on appeal if reasonable
minds could disagree as to the court's decision.' State v. Boggs, 287 Kan. 298, 307, 197
P.3d 441 (2008)." State v. McMullen, 290 Kan. 1, 7, 221 P.3d 92 (2009).

Analysis

At the time of Portillo's trial, K.S.A. 22-3433 was in effect and expressly
authorized the admission of the recorded oral statement of a victim under the age of 13
under certain circumstances. Specifically, the statute provided:

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"(a) In any criminal proceeding in which a child less than 13 years of age is
alleged to be a victim of the crime, a recording of an oral statement of the child, made
before the proceeding began is admissible in evidence if:
(1) The court determines that the time, content and circumstances of the
statement provide sufficient indicia of reliability;
(2) no attorney for any party is present when the statement is made;
(3) the recording is both visual and aural and is recorded on film or videotape or
by other electronic means;
(4) the recording equipment is capable of making an accurate recording, the
operator of the equipment is competent and the recording is accurate and has not been
altered;
(5) the statement is not made in response to questioning calculated to lead the
child to make a particular statement or is clearly shown to be the child's statement and not
made solely as a result of a leading or suggestive question;
(6) every voice on the recording is identified;
(7) the person conducting the interview of the child in the recording is present at
the proceeding and is available to testify or be cross-examined by any party;
(8) each party to the proceeding is afforded an opportunity to view the recording
before it is offered into evidence, and a copy of a written transcript is provided to the
parties; and
(9) the child is available to testify.
"(b) If a recording is admitted in evidence under this section, any party to the
proceeding may call the child to testify and be cross-examined, either in the courtroom or
as provided by K.S.A. 22-3434 and amendments thereto." K.S.A. 22-3433.

Here, D.B. was age 11 and Portillo does not challenge any of the prerequisites set
forth in the statute. Pointedly, the statute does not require the recorded oral statement to
be noncumulative. To the contrary, under K.S.A. 22-3433(b), the child must testify in
person if requested by either party. Accordingly, the statute contemplates that the
recorded statement could well be cumulative to live testimony.

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Further, the statute states that if the prerequisites are met, the recorded statement
"is admissible in evidence." (Emphasis added.) K.S.A. 22-3433(a). That language
suggests that the legislature has declared such statements to be relevant. Nevertheless, we
will address Portillo's relevancy argument.

When the State was responding to the defense objection to the admission of the
Sunflower House videotape, the prosecutor argued that the videotape was probative of
D.B.'s "state of mind very recent to the attack" and said the consistency of the statement
countered the defense claim that D.B. was lying. The point the State appeared to be
making was that the timing of the statement, i.e., the day after the attack, would have
memorialized the victim's fresh recollection of events, which in turn was consistent with
her later statements. Unfortunately, when the court admitted the videotape, it parroted the
prosecutor's poor word choice and said the evidence was probative of "the state of mind
of the victim in this case."

Portillo pounces on the court's stated rationale, contending that the victim's state of
mind was not a disputed material fact in this case. We agree with that assessment to the
extent that "state of mind" refers to what D.B. was thinking during the alleged crime.
However, to the extent the phrase refers to D.B.'s recollection of events during the
Sunflower House interview, it does describe hotly contested matters. Portillo
categorically denied that anything happened, directly contradicting the statements of both
D.B. and her mother. D.B.'s statements during the Sunflower House interview, being
consistent with other statements she made, together with D.B.'s demeanor during the
interview, were probative on the issue of which version of events the jury would
believe—the defendant's or the victim's.

Additionally, Portillo argues that, even if the interview videotape was relevant, its
probative value was outweighed by its prejudicial effect. One might ruminate on just how
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prejudicial a cumulative statement can be. If the jury has already heard the statement,
how earth-shattering could a repeat version be? Nevertheless, here we have part of the
statement's probative value being the fact that it repeats the same version of events that is
given at other times, including at trial. In other words, the statement's probativeness
emanates from its cumulative nature. In short, the district court did not abuse its
discretion in admitting the Sunflower House interview videotape.

OFF-GRID SENTENCING FOR ON-GRID CONVICTION

Although Portillo received a departure sentence, he contends that the district court
erred in finding that the starting point was the mandatory hard-25 life sentence under
Jessica's Law, K.S.A. 21-4643. Instead, he believes that the district court should have
departed downward from his grid-based presumptive sentence for a severity level 1
offense, which listed a mid-term sentence of 155 months. Portillo argues that the off-grid
sentencing was precluded for three reasons: (1) The State did not include the element of
defendant's age in the complaint; (2) the State did not introduce evidence of defendant's
age during the jury trial; and (3) the district court did not instruct the jury on the element
of the defendant's age. Although Portillo refers to a complaint, the applicable charging
document in this case is an information, albeit the distinction does not affect our analysis.

Standard of Review

We will focus on the content of the charging document, or more accurately, the
lack of content in the information. Recently, we suggested that a district court derives its
jurisdiction to convict an accused through the charging document:

"'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
13



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."'" (Emphasis added.) State v.
Inkelaar, 293 Kan. 414, 433-34, 264 P.3d 81 (2011) (quoting State v. Gonzales, 289 Kan.
351, 366, 212 P.3d 215 [2009]).

To the extent we are called upon to determine the existence of jurisdiction, we are
presented with a question of law subject to unlimited review. State v. Ellmaker, 289 Kan.
1132, 1147, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010).

Analysis

K.S.A. 21-3502 is the statute that defines rape, thereby setting forth the essential
elements of the crime. Portillo was charged under the subsection (a)(2) definition of rape,
i.e., "sexual intercourse with a child who is under 14 years of age." The statute also states
that "rape as described in subsection (a)(1) or (2) is a severity level 1, person felony,"
except that "[r]ape as described in subsection (a)(2), when the offender is 18 years of age
or older, is an off-grid person felony." K.S.A. 21-3502(c). In other words, the statute
defining rape makes a defendant's age—18 years or older—an element of the off-grid
version of the crime. See State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761, cert. denied
131 S. Ct. 532 (2010) ("the 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 enhanced
offense"). Likewise, Jessica's Law's mandatory minimum sentencing is only applicable to
"a defendant who is 18 years of age or older." K.S.A. 21-4643(a)(1).

Since the enactment of Jessica's Law, K.S.A. 21-4643, a number of defendants
sentenced under that provision have challenged their charging documents based on the
omission of defendant's age as an element of the crime. See, e.g., Inkelaar, 293 Kan. at
433-35; State v. Huerta-Alvarez, 291 Kan. 247, 254-56, 243 P.3d 326 (2010); State v.
14



Kemble, 291 Kan. 109, 125-30, 238 P.3d 251 (2010); Reyna, 290 Kan. at 674-76; State v.
Gonzales, 289 Kan. 351, 365-69, 212 P.3d 215 (2009); State v. Gracey, 288 Kan. 252,
254-57, 200 P.3d 1275 (2009). In each of those cases, this court examined the entire
charging instrument to locate some indicia of defendant's age or an indication that the
State intended to charge the off-grid version of the crime. See Inkelaar, 293 Kan. at 433-
34; Huerta-Alvarez, 291 Kan. at 254-55 (all three complaints contained defendant's year
of birth in the caption and alleged that at least one of the counts was an off-grid offense);
Reyna, 290 Kan. at 678 (defendant's year of birth in caption and stated charges were for
off-grid felonies); Gonzales, 289 Kan. at 369 (listed date of birth and listed crime as off-
grid); Gracey, 288 Kan. at 254-55 (same).

Portillo contends, the State concedes, and the record confirms that the information
filed in this case specifically alleged that Portillo violated "K.S.A. 21-3502. (Rape,
Severity Level 1, Person Felony)." There is no dispute that the information contains
nothing anywhere on the document that would indicate Portillo's date of birth or age.
Further, the information makes absolutely no reference to Jessica's Law, to the provisions
of K.S.A. 21-4643, to an off-grid classification or off-grid sentence, or to a mandatory
minimum sentence of a hard-25 life sentence. In fact, the prosecutor informed the district
court that the document was generated by a computer macro designed to charge the pre-
Jessica's Law version of the offense.

The State argued below that the error was merely clerical, because the 2006
statutory provisions had clearly changed the rape that Portillo was alleged to have
committed from a severity level 1 offense to an off-grid felony. The apparent suggestion
was that Portillo knew his own age and should have known that the State really intended
to charge the newly-created off-grid version of the offense. What the State fails to
appreciate is that we have said that a prosecutor has essentially unfettered discretion to
ignore a fact that would support a prosecution for a more serious offense and, instead, can
15



merely choose to prosecute the defendant for a lesser offense. See State v. Sandberg, 290
Kan. 980, 987, 235 P.3d 476 (2010) (quoting State v. Campbell, 279 Kan. 1, 14, 106 P.3d
1129 [2005]) ("nothing '"foreclose[s] the prosecutor from deciding in a particular case
that, notwithstanding the presence of one of the aggravated facts, the defendant will still
be prosecuted for the lesser offense"'"). Here, that would mean that the prosecutor had
discretion to ignore the fact that Portillo was age 18 or older and prosecute him for the
severity level 1 version of the offense, which the charging instrument purported to do.
The State does not explain how Portillo should have known that the prosecutor here was
not exercising his or her prosecutorial discretion to intentionally charge the on-grid
version of rape.

If one were to take a straightforward approach, there is no way in which to view
the charging document in this case as having informed Portillo that the nature and cause
of the accusation against him was an off-grid felony, i.e., the information would not pass
constitutional muster. However, we have chosen to resolve these cases by utilizing a
version of the defective complaint test created in State v. Hall, 246 Kan. 728, 764-65, 793
P.2d 737 (1990).

In Hall, the court took the "opportunity to express [its] concern relating to the
number of appeals in Kansas in which the allegation of a defect in the information is
raised for the first time on appeal." 246 Kan. at 753. The court noted that it appeared that
prosecutors were engaging in "the practice of drawing an information without having at
hand the current statute defining the offense." 246 Kan. at 753. Moreover, Hall related
that the number of appeals claiming defects in informations "suggests that certain
prosecutors need to exercise more care in the initial preparation of the charging
document." 246 Kan. at 753. The Hall court then effectively rewarded the State for
employing careless scriveners by creating a rule that makes it more difficult for a
defendant to obtain relief when a prosecutor drafts a defective charging instrument.
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Hall opined that "[t]he proper procedure for a defendant who contends either that
the information does not charge a crime or that the court was without jurisdiction of the
crime charged is to utilize the statutory remedy extended by the legislature for these two
specific situations—a K.S.A. 22-3502 motion for arrest of judgment." 246 Kan. at 760.
The opinion clarified that if a defendant files a timely motion for arrest of judgment, the
district court is to apply the rationale of the pre-Hall cases. That prior rationale included
the bright-line rule "that an information which omits one or more of the essential
elements of the crime it attempts to charge is jurisdictionally and fatally defective and a
conviction on that offense must be reversed. [Citation omitted.]" 246 Kan. at 747.
Further, "the citation to the statue cannot substitute to supply a missing element of the
charge, and . . . incorporations by reference cannot be implied and will not be inferred but
must be explicit. [Citation omitted.]" 246 Kan. at 746.

But for "[i]nformation defect challenges raised for the first time on appeal," i.e.,
where the defendant did not file a motion for arrest of judgment, Hall crafted a new rule
to be applied prospectively. 246 Kan. at 765. The rule has been carried forward and
applied in Jessica's Law cases. See, e.g., Inkelaar, 293 Kan. at 434; Reyna, 290 Kan. at
678. The Hall language which is sometimes paraphrased reads as follows:

"Of paramount importance, we shall look to whether the claimed defect in the
information has: (a) prejudiced the defendant in the preparation of his or her defense; (b)
impaired in any way defendant's ability to plead the conviction in any subsequent
prosecution; or (c) limited in any way defendant's substantial rights to a fair trial under
the guarantees of the Sixth Amendment to the United States Constitution and the Kansas
Constitution Bill of Rights, § 10. If a defendant is able to establish a claim under either
(a), (b), or (c), the defective information claim, raised for the first time on appeal, will be
allowed." 246 Kan. at 765.

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It gives one pause to look closely at how the Hall rule works. During the jury trial,
the charging document would be jurisdictionally and fatally defective if it omitted an
essential element and the trial court would not have jurisdiction to enter any resulting
conviction. However, if the defendant later failed to file a motion for arrest of judgment,
the charging document and resulting conviction would somehow acquire retroactive
validity. That notion appears to run counter to the rule that subject matter jurisdiction
cannot be created by waiver, estoppel, or consent. See Ellmaker, 289 Kan. at 1151.
Likewise, the constraint on raising the jurisdictional issue for the first time on appeal is
inconsistent with our holdings that allow a challenge to the district court's subject matter
jurisdiction to be raised at any time. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546
(2010). Moreover, we recently declared that appellate courts have "no authority to create
equitable exceptions to jurisdictional requirements". Board of Sedgwick County Comm'rs
v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387 (2011). Hall dealt with this
conundrum by suggesting that a defective charging instrument is not really an issue of
subject matter jurisdiction. However, we have not been asked to revisit Hall and our
ultimate resolution will not require the application of that case's restrictive rule.

In its brief, the State argues that, because Portillo did not file a motion for arrest of
judgment, we must apply the post-Hall test, as we did in Reyna. This case poignantly
illustrates the logistical problem of requiring the defendant to file a motion for arrest of
judgment in a circumstance where the State charges and prosecutes the on-grid version of
a crime, but then asks for the off-grid sentence. Indeed, here, the first indication on the
record that the State really had intended to charge the off-grid version of rape was when it
filed a motion to amend the PSI, well after the deadline for a motion for arrest of
judgment had passed. Apparently, the Hall court did not address the potential problem
with timing because it was confused about when the defendant was required to file a
motion for arrest of judgment. The opinion related that the remedy was "available for 10
days after disposition at the trial court level." (Emphasis added.) 246 Kan. at 760.
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However, the two-decades-old statute at the time required the defendant to file the motion
"within 10 days after the verdict or finding of guilty, or after a plea of guilty or nolo
contendere, or within such further time as the court may fix during the 10-day period." L.
1970, ch. 129, § 22-3502. Ordinarily, then, a defendant could not wait until the
disposition of the case was complete at the trial court level because sentencing is usually
scheduled more than 10 days after the guilty verdict. Yet, the defendant, as in this case,
might not know that the charging document was defective, i.e., know that a motion for
arrest of judgment is needed, until the State shows its hand and convinces the court to
sentence defendant for an uncharged, but more severe, version of the crime.

Fortunately, we can avoid the problem of requiring a defendant to file a motion
before he or she knows it is required by looking at the rationale for the Hall rule and
applying the provisions of K.S.A. 22-3503. Hall noted that its requirement of a K.S.A.
22-3502 motion for arrest of judgment "would allow the district court to pass on the
defendant's contentions in timely fashion and to comply with what we deem to be the
procedure intended by the legislature." 246 Kan. at 760. What Hall did not discuss is that
K.S.A. 22-3503 allows the trial court to arrest judgment without a motion by defendant
and without the time constraints of K.S.A. 22-3502. Specifically, K.S.A. 22-3503
provides: "Whenever the court becomes aware of the existence of grounds which would
require that a motion for arrest of judgment be sustained, if filed, the court may arrest the
judgment without motion."

At sentencing, the State asked the district court to amend the PSI to reflect that
Portillo should be sentenced under Jessica's Law for an off-grid felony. While that
maneuver was ineffective to remedy the fact that the information omitted an essential
element of the off-grid version of rape, it did provide the opportunity for the parties to
make the arguments which would have been presented upon a motion for arrest of
judgment. Both parties argued their respective interpretation as to the applicability of this
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court's holding in Gracey. The State, after conceding that its information failed to charge
off-grid rape, also argued that the trial court should apply the post-Hall prejudice test
because Portillo had not timely filed a motion for arrest of judgment. Through the parties'
arguments, the district court was made aware of the existence of grounds which would
require that a motion for arrest of judgment be sustained. Accordingly, the district court
could have ruled on defendant's contentions in a timely fashion and complied with the
procedure intended by the legislature in K.S.A. 22-3503, as Hall envisioned. Therefore,
we will not view the charging document challenge as being raised for the first time on
appeal and will test the information in this case under the pre-Hall standards.

As noted, the State conceded that its information did not charge Portillo with the
off-grid version of rape, and we agree with that concession. The defendant's age being 18
or older is an essential element of the off-grid version of the crime. See K.S.A. 21-
3502(c); Reyna, 290 Kan. at 676. The information did not contain that essential element.
That omission rendered the information fatally defective and deprived the trial court of
jurisdiction to convict Portillo of the off-grid version of rape. See State v. Sanford, 250
Kan. 592, 600-01, 830 P.2d 14 (1992).

The district court's sentence, based upon a conviction for the off-grid person
felony, must be vacated. But Portillo did not challenge the validity of the information
with respect to the on-grid, severity level 1, person felony version of rape. Accordingly,
we remand for resentencing based upon the appropriate grid-box for the severity level 1
person felony. In the event the district court again considers a departure, the provisions of
the sentencing guidelines will govern that procedure.

Convictions affirmed, and sentence vacated and remanded for resentencing.