State v. Reyna

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,000

STATE OF KANSAS,
Appellee,

v.

ISRAEL REYNA, Appellant.

SYLLABUS BY THE COURT

1.
When a defendant challenges the sufficiency of the evidence in a criminal case,
the standard of review is whether after reviewing all the evidence, viewed 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.

2.
The question of whether a complaint or information is sufficient to give the district
court jurisdiction is a question of law over which this court has unlimited review.

3.
Under the grand jury provision of the Fifth Amendment and the notice and jury
trial provision of the Sixth Amendment to the United States Constitution, any fact other
than a prior conviction that increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a reasonable doubt. The
requirement that such facts be charged in an indictment only applies in federal cases, as
the Fifth Amendment's grand jury provision does not apply to the states through the
Fourteenth Amendment.

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4.
In analyzing whether an information is sufficient, the court applies one of two
tests, depending on when the objection is raised.

5.
When a defendant files a motion for arrest of judgment based on a defective
information, the pre-Hall standard applies. State v. Hall, 246 Kan. 728, 764-65, 793 P.2d
737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d
40 (2003). Under this standard, 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 based on such an information must be reversed.

6.
Under the pre-Hall standard, an information is sufficient if it substantially follows
the language of the statute or charges the offense in equivalent words or others of the
same import, so long as the defendant is fully informed of the particular offense charged
and the court is able to determine under what statute the charge is founded.

7.
When a defendant fails to file a motion for arrest of judgment, the applicable test
for determining whether the information was sufficient is the test set out in Hall, 246
Kan. at 764-65. Under that test the court looks 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
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(a), (b), or (c), the defective information claim, raised for the first time on appeal, will be
allowed.

8.
Any fact, other than the fact of a prior conviction, that enhances a convicted
defendant's sentence beyond the statutory maximum for the crime must be found by a
jury, not by a judge. A defendant's right to a jury trial is violated where the judge makes
the sentence enhancement factfinding rather than the jury.

9.
This court will apply harmless error analysis to the omission of an element from
the instructions to the jury.

10.
When a reviewing court concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error, the erroneous instruction is properly
found to be harmless.

11.
Characterizing the omission of an element from the instructions to the jury as
judicial factfinding of the omitted element, when that element enhances the maximum
applicable sentence, does not change the harmless error analysis.

12.
The admission of expert testimony lies within the sound discretion of the trial
court, and its decision will not be overturned absent an abuse of such discretion.

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13.
Despite facially different methods of stating the standard, the basis for the
admission of expert testimony is necessity, arising out of the particular circumstances of
the case.

14.
Testimony from a qualified expert concerning the characteristic behaviors of child
victims of sexual assault, including such things as failure to report the abuse immediately,
is proper and helpful to the jury and may be introduced to corroborate victim testimony.

15.
It is permissible for an expert to testify that, having examined the victim, the
expert concluded the victim has symptoms consistent with a child who had been sexually
abused.

16.
The purpose of voir dire examination is to enable the parties to select jurors who
are competent and without bias, prejudice, or partiality. Generally the nature and scope of
the voir dire examination is entrusted to the sound discretion of the trial court; however,
in determining whether the trial court has taken sufficient measures to assure that the
accused is tried by an impartial jury free from outside influences, appellate courts have
the duty to make an independent evaluation of the circumstances.

17.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused only when no
reasonable person would take the view adopted by the trial court. 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.
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18.
The constitutionality of a sentence under the Eighth Amendment to the United
States Constitution and § 9 of the Kansas Constitution Bill of Rights is both a factual and
a legal issue, and the defendant's failure to raise the issue below and create a factual
record sufficient for an appellate court's review precludes review on appeal.

19.
The standard of review on the denial of a sentencing departure is abuse of
discretion.

Appeal from Saline District Court; DANIEL L. HEBERT, judge. Opinion filed June 11, 2010.
Affirmed.

Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Amy E. Taylor, assistant county attorney, argued the cause, and Christine Trocheck, assistant
county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Israel Reyna appeals from convictions of four counts of aggravated
indecent liberties with a child under K.S.A. 2006 Supp. 21-3504. He was sentenced to
life with no possibility of parole for 25 years pursuant to K.S.A. 2006 Supp. 21-
4643(a)(C) and (c), commonly known as Jessica's Law. He raises a number of issues on
appeal. This court's jurisdiction is under K.S.A. 22-3601(b)(1).

In December 2006, Reyna lived in Salina with his ex-wife, Kelly. The two had
divorced but later reconciled. Kelly operated a daycare center out of their home. One of
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the children that she routinely cared for was the 6-year-old daughter, B.B., of her brother,
Scott B. B.B. had two brothers. Scott had been seeing a woman named Amber E., who
had two children: a girl, 7-year-old A.E., and a boy.

December 22, 2006, was Scott's 30th birthday and Amber had planned a surprise
party for him at a Salina establishment called "The Scheme." Kelly wanted to attend the
party but had also agreed that Scott's and Amber's children could stay at her house.
Amber dropped the children off around 5:30 p.m.

Kelly left for the party around 8 p.m. Reyna decided not to go because most of
Kelly's family would be there and his relations with them were strained. Kelly indicated
that she did not intend to stay long. Kelly and Reyna's sons, Matt, age 13, and Aaron, age
11, were left in charge of the younger children, with Reyna present as the responsible
adult.

While Kelly was gone, Reyna sat in their upstairs bedroom listening to music,
watching television, and drinking whiskey and Coke. Aaron mostly stayed in his room,
also upstairs near his parents' bedroom. Matt mostly stayed downstairs. The smaller
children, A.E., B.B., and the three boys, apparently ran wild throughout the house,
wrestling, getting into Kelly's makeup, making tents in the upstairs hallway, watching
television, and playing video games with Aaron. A.E. and B.B. also spent some time in
Reyna and Kelly's bedroom with Reyna. While Kelly was gone, a friend of hers called
and talked to Reyna on the phone for 30 to 45 minutes.

As Kelly was leaving the party, Amber asked her if the children could spend the
night at Kelly's so that Amber could continue partying with Scott and friends. Kelly
agreed to keep the children. A.E. and B.B. were excited to learn that they would spend
the night and slept on the living room couch together.

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A.E. returned to school following the holiday break on January 4th. She attended
an after-school care program. That afternoon, the supervisor of the program called Amber
to come to the school. A.E. had told one of the program adults that Reyna had engaged in
inappropriate sexual conduct with her and B.B. Amber called Scott. Scott and Kelly later
brought B.B. from Kelly's house to the house where Amber and Scott were living. On the
way, Scott asked B.B. if there was anything she needed to tell him. After first confessing
that she got in trouble for hitting someone in daycare, she then said that Reyna had
touched her "privates."

Reyna was charged with one count of rape or, in the alternative, aggravated
indecent liberties with each child. He was also charged with a second count of aggravated
indecent liberties with each child. The complaint set out his year of birth, and he testified
at trial that he was 37 years of age; however, the complaint did not allege as part of the
charges of aggravated indecent liberties with a child that he was over the age of 18 at the
time of the offenses, nor was the jury instructed to determine his age.

The State questioned the prospective jurors during voir dire for over an hour.
Shortly into the defendant's voir dire, the trial judge called counsel to the bench and a
discussion was had off the record. Defense counsel resumed questioning of the
prospective jurors but later put on the record that she had felt limited by an admonition
from the judge during the off-the-record discussion.

During trial, the State presented the testimony of a child sexual abuse therapist,
Joni Alberts-Plumer. Prior to trial, the defense objected to the therapist testifying about
her counseling of the victims, reasoning that any testimony that she had counseled them
necessarily implied a finding that they had been sexually abused. The court agreed and
limited the therapist's testimony to general statements concerning the behavior of child
sexual abuse victims. The defense registered a continuing objection to her testimony at
trial.
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Both A.E. and B.B. testified at trial. Although their testimony was a bit sketchy, as
might be expected from a 7- and 6-year old, respectively, they both testified that Reyna
had touched their vaginal areas and made them touch his genitals.

The jury returned guilty verdicts on two counts of aggravated indecent liberties
against A.E. and on both the rape count and the alternative count of aggravated indecent
liberties against B.B., in addition to the stand alone count of aggravated indecent liberties
against B.B. The trial court later dismissed the rape conviction.

The defense filed a posttrial motion for a new trial and a motion for sentencing
under the Kansas Sentencing Guidelines Act (KSGA), alleging that the failure to plead
and prove Reyna's age, an element of the off-grid offense, required sentencing him under
the KSGA rather than treating the convictions as off-grid felonies under K.S.A. 2006
Supp. 21-4643. He also filed a motion for dispositional and durational departure from the
sentence set out in K.S.A. 2006 Supp. 21-4643(d). The trial court denied the motions and
sentenced Reyna to a controlling sentence of life with a hard 25 years. He timely
appealed.

SUFFICIENCY OF THE EVIDENCE

Reyna first argues that there was insufficient evidence to support his convictions.

"When a defendant challenges the sufficiency of the evidence in a criminal case,
the standard of review is whether after reviewing all the evidence, viewed 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." State v.
Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (citing State v. Gutierrez, 285 Kan. 332, 336,
172 P.3d 18 [2007]).

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Reyna was convicted of four counts of aggravated indecent liberties with a child
under K.S.A. 2006 Supp.21-3504(3)(A). In order to convict Reyna of Counts 1 and 3 of
the complaint, the State had to prove, with respect to each of the victims, that:

1. Reyna fondled or touched the person of the victim in a lewd manner, with the intent to
arouse or to satisfy the sexual desires of either the victim, Reyna or both;
2. The victim was under the age of 14; and
3. The act occurred on or about December 22, 2006, in Saline County, Kansas.

In order to convict Reyna of Counts 2 and 4 of the complaint, the State had to
prove, in lieu of the first element above, that Reyna submitted to the lewd fondling or
touching of his person by the children. The complaint alleged that each of these crimes
was an off-grid felony, which would also require the State to show that Reyna was over
the age of 18 at the time the crime was committed. That allegation, and the fact that it
was not alleged or proven by the State at trial, will be addressed separately.

In their respective briefs, Reyna and the State go to great lengths to summarize the
evidence presented and to demonstrate either the inconsistencies or the similarities. It is
clear from the evidence presented that the stories of the two victims were not entirely
consistent over the time between January 4, 2007, when the allegations first came to
light, and July 25, 2007, when they testified at trial. In the interim, they each repeated
their allegations at least four times, and those allegations were in turn relayed through the
testimony of witnesses at trial.

The most significant difference reported in the stories of the victims appears to be
in that of A.E., whose after-school caregivers testified that A.E. originally reported that
the two victims had been made to touch and kiss each other and had been given beer by
Reyna. Other adults who interviewed A.E., including her mother, the investigating
officer, and the sexual assault nurse examiner, testified that A.E. reported that she had
10

been touched on her vagina by Reyna and then made to touch his genitals. The
videotaped interview of A.E. by the investigating officer is consistent with this version.

B.B. appeared to be the less forthcoming of the two victims. Her father, A.E.'s
mother, the investigating officer, and the nurse examiner all testified that she told them
that Reyna had touched "her privates" and had made her touch him.

The victims' stories differed in some details. For instance, A.E. testified that Reyna
had touched her first and then B.B., whereas B.B. testified that she was touched first.
There were some differences in their reports as to who had been where in the room at the
time of the touching. Despite these differences, however, the victims painted a
substantially similar picture of what happened in Reyna's bedroom, i.e., that he touched
each of them on their vaginas and that he made them touch his genitals. There was no real
dispute about where or when the events took place, and none with regard to the victims'
ages.

Reyna points to a conversation that supposedly occurred in a car in which Kelly,
Kelly's mother, and B.B. were riding some time following the events at issue. Kelly
testified that during the conversation, B.B. said that if she had to take a lie detector test
she would end up in jail. Kelly's mother was called to testify about this conversation and
denied ever hearing it take place. In addition, other testimony at trial indicated that Kelly
was attempting to protect her ex-husband and shed doubt on the credibility of her
testimony regarding B.B.'s alleged statement.

Reyna relies upon State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983), to support
his argument that the uncorroborated testimony of the two victims was insufficient to
support the convictions against him. In Matlock, while reaffirming the rule that the
uncorroborated testimony of the prosecutrix in a rape case could support a conviction of
rape, the court found that, under the facts of the case, no rational factfinder could find the
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testimony of the prosecutrix credible and, therefore, it was insufficient to support the
conviction. 233 Kan. at 3-6. The facts in Matlock are similar to this case in that the
alleged attack took place in a home where others were present who testified that they saw
and heard nothing, and the report of the crime by the victim was delayed. All similarities
end there, however. In Matlock, not only was there absolutely no corroborating evidence
for the victim's statement, there was much evidence inconsistent with it.

In this case, Reyna admitted to the victims being in his bedroom during the
evening. The testimony of the others present in the house did not foreclose the possibility
of the crimes having occurred as described by the victims. The testimony of each victim
corroborated the other's on the key details. Most significantly, the testimony of Scott,
B.B.'s father, that B.B. independently corroborated A.E.'s story on the day the allegations
first came to light is strong evidence that the crimes occurred. Notably, Kelly was present
when B.B. made her initial statement to her father and did not contradict his testimony at
trial.

The victims in this case were ages 6 and 7 at the time of the crimes and trial. Their
testimony at trial varied in some detail from that reported by other witnesses to whom
they had earlier told of the events leading to the charges. However, in key details, the
testimony of the victims corroborated each other's from the time the allegations came to
light through the trial. After reviewing all the evidence, viewed in the light most
favorable to the prosecution, a rational factfinder could have found Reyna guilty beyond
a reasonable doubt.

DEFENDANT'S AGE

Reyna makes two arguments based upon the failure of the State to allege or
present evidence of his age at the time of the offenses. First, he argues that his age is an
element of the offense of aggravated indecent liberties with a child under K.S.A. 2006
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Supp. 21-4643 and the failure of the State to allege it in the complaint deprived the
district court of jurisdiction to sentence him to life in prison. Next, he argues that the
failure of the district court to instruct the jury that it must find Reyna was over the age of
18 at the time of the offenses violated his rights under the Sixth Amendment to the
United States Constitution as defined in Apprendi v. New Jersey, 530 U.S. 466, 147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000).

Complaint

Reyna relies on Apprendi to argue that his age at the time of the offenses is the
constitutional equivalent of an element of the enhanced version of aggravated indecent
liberties with a child enacted by K.S.A. 2006 Supp. 21-4643 (commonly called Jessica's
Law) because it increases the penalty for the crime beyond the statutory maximum. He
then maintains that under Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S.
Ct. 1215 (1999), the age element must be set out in the complaint. Because the complaint
did not set out Reyna's age at the time of the offenses, he argues that the district court did
not have jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643. The State argues
that Reyna's age was not an element of the offenses, but rather like a prior conviction, it
was merely a sentencing factor that did not need to be set out in the complaint at all. Both
arguments miss the mark.

The question of whether a complaint or information is sufficient to give the district
court jurisdiction is a question of law over which this court has unlimited review. State v.
Scott, 286 Kan. 54, 62, 183 P.3d 801 (2008). Before addressing the complaint, however,
we turn to Reyna's premise that K.S.A. 2006 Supp. 21-4643 sets out a crime.

Reyna was convicted under K.S.A. 2006 Supp. 21-3504, which provides:

"Aggravated indecent liberties with a child is:
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. . . .
"(3) engaging in any of the following acts with a child who is under 14 years of
age:
(A) 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 to satisfy the sexual desires of
either the child or the offender, or both;
. . . .
"(c) Except as provided further, aggravated indecent liberties with a child as
described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. Aggravated
indecent liberties with a child as described in subsection (a)(2) is a severity level 4,
person felony. When the offender is 18 years of age or older, aggravated indecent
liberties with a child as described in subsection (a)(3) is an off-grid person felony."
(Emphasis added.)

Thus, it is 2006 Supp. K.S.A. 21-3504(c) which sets out that aggravated indecent
liberties with a child is an off-grid crime when the offender is 18 years of age or older.
K.S.A. 2006 Supp. 21-4706(d) provides the sentences for off-grid crimes and states, in
relevant part:

"(d) As identified in K.S.A. . . . 21-3[5]04, . . . and amendments thereto, if the
offender is 18 years of age or older and the victim is under 14 years of age, such
violations are off-grid crimes for the purposes of sentencing. Except as provided in
K.S.A. 2006 Supp. 21-4642, and amendments thereto, the sentence shall be imprisonment
for life pursuant to K.S.A. 2006 Supp. 21-4643, and amendments thereto.

K.S.A. 2006 Supp. 21-4643, under which Reyna was sentenced, provides:

"(a) (1) Except as provided in subsection (b) or (d), a defendant who is 18 years
of age or older and is convicted of the following crimes committed on or after July 1,
2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum
term of imprisonment of not less than 25 years unless the court determines that the
defendant should be sentenced as determined in paragraph (2):
. . . .
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"(C) aggravated indecent liberties with a child, as defined in subsection (a)(3) of
K.S.A. 21-3504, and amendments thereto."

Several of our recent cases have dealt with this statutory scheme. See, e.g., State v.
Gonzales, 289 Kan. 351, Syl. ¶¶ 10-11, 212 P.3d 215 (2009); State v. Bello, 289 Kan.
191, Syl. ¶¶ 3-4, 211 P.3d 139 (2009). In those cases, we have rejected the notion that
K.S.A. 2006 Supp. 21-4643 is a crime-defining statute, pointing out that K.S.A. 2006
Supp. 21-3504 sets out two separate sentencing levels of the offense, the applicable
sentencing level turning on whether the defendant is age 18 or older at the time of the
offense.

Reyna is correct, however, in arguing that our prior opinions have held, based on
Apprendi, that 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.
See Gonzales, 289 Kan. at 366-70; Bello, 289 Kan. at 195-98. The State's argument that
the age issue is merely a sentencing factor that, like a prior offense, may be determined
by the judge at sentencing ignores the full impact of Apprendi.

Next, we address Reyna's contention that this court is required by Jones, 526 U.S.
227, to find that the complaint in this case was insufficient to charge the enhanced
version of aggravated indecent liberties with a child that is subject to off-grid sentencing.
A similar argument was made and rejected in Scott, 286 Kan. at 101- 02:

"Scott argues that under Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S.
Ct. 1215 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.
Ct. 2348 (2000), aggravating factors, as elements of the offense, must be set forth in the
charging document.

"Scott's argument is not persuasive. Jones and Apprendi both stand for the
proposition that, under the grand jury provision of the Fifth Amendment and the notice
15

and jury trial provision of the Sixth Amendment, any fact other than a prior conviction
that increases the maximum penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable doubt. However, Scott fails to
recognize that the requirement that such facts be charged in an indictment only applies in
federal cases, as the Fifth Amendment's grand jury provision does not apply to the states
through the Fourteenth Amendment. See Ring v. Arizona, 536 U.S. at 597 n.4; Apprendi,
530 U.S. at 477 n.3; Hurtado v. California, 110 U.S. 516, 538, 28 L. Ed. 232, 4 S. Ct.
111 (1884)."

Scott also sets out part of this court's standard for evaluating the question of
whether an information is sufficient to give the district court jurisdiction. After stating
that the issue is a question of law, Scott provides:

"In analyzing whether an information is sufficient, this court applies one of two tests,
depending on when the objection is raised. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964
(2001); see State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part
on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). When a defendant
files a motion for arrest of judgment based on a defective information, the pre-Hall
standard applies. Hall, 246 Kan. at 764. Under this standard, 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 based on such an information must be reversed.
State v. Sanford, 250 Kan. 592, 600-01, 830 P.2d 14 (1992). However, even under the
pre-Hall standard, an information is sufficient if it substantially follows the language of
the statute or charges the offense in equivalent words or others of the same import so long
as the defendant is fully informed of the particular offense charged and the court is able
to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192,
197, 747 P.2d 784 (1987)." 286 Kan. at 62-63.

In this case, Reyna failed to file a motion for arrest of judgment. He raises the
argument based on a defect in the complaint for the first time on appeal. Consequently,
the applicable test for determining whether the complaint was sufficient is the test set out
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in State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other
grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003):

"[W]e 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."

This court has applied this test to substantially the same set of procedural facts in
two prior cases: Gonzales, 289 Kan. 351, and State v. Gracey, 288 Kan. 252, 200 P.3d
1275 (2009). As in both Gonzales and Gracey, the charging document in this case set out
Reyna's year of birth in the caption and stated at the bottom of the page that the charges
were for off-grid person felonies. Like Gracey and Gonzales, Reyna has not asserted that
the preparation of his defense was impeded or that his right to a fair trial was impaired by
the complaint. Nor has he shown that the complaint impaired his ability to plead the
convictions in a subsequent prosecution. As in Gonzales and Gracey, we find the failure
to allege Reyna's age in the complaint is not grounds to invalidate his convictions of the
off-grid offense.

Jury Instructions

Reyna relies on Apprendi to argue that the omission of the age element from the
jury instructions violates his right to trial by jury guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and §10 of the Kansas Constitution Bill of
Rights. Apprendi provides that any fact, other than the fact of a prior conviction, that
enhances a convicted defendant's sentence beyond the statutory maximum for the crime
must be found by a jury, not by a judge.
17


In Bello, this court found that "[a] defendant's right to a jury trial is violated where
the judge makes the sentence enhancement factfinding, rather than the jury." 289 Kan. at
199 (citing Cunningham v. California, 549 U.S. 270, 288-89, 166 L. Ed. 2d 856, 127 S.
Ct. 856 [2007]). After noting that the enhanced version of the crime is set out initially in
K.S.A. 21-3504(c), Bello states that Apprendi clarifies "that merely because a state
legislature places a sentence enhancing factor within the sentencing provisions of the
criminal code does not mean that the factor is not an essential element of the offense."
289 Kan. at 199 (citing Apprendi, 530 U.S. at 495). Having failed to address that element
in the trial of Bello, the statutory maximum sentences for the crimes of which he was
convicted were to be found in the KSGA. Bello, 289 Kan. at 199-200. We reached the
same result in State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009), and
Gonzales, 289 Kan. at 370-71. The failure to allege and to instruct on the defendant's age
was error. Thus, this argument must be resolved in favor of Reyna unless some difference
distinguishes this case from those.

This case does differ from Morningstar, Gonzales, and Bello in one significant
way. In those cases, there was no evidence before the jury on which it could have based a
finding of the defendant's age had it been correctly instructed. That is not the case here. In
this case, in response to a question from his own counsel, Reyna stated his age. Thus
there was evidence in front of the jury on which it could have based a finding of his age
at the time of the offenses.

In State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147, cert. denied 543 U.S. 982,
(2004), we reviewed a case in which the district court had inadvertently omitted the
element of bodily harm from the instructions to the jury on a count of aggravated
robbery. After reviewing prior decisions of this court finding erroneous jury instructions
harmless, we considered the United States Supreme Court decision in Neder v. United
States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Neder was a pre-Apprendi
18

case in which the trial court had taken the issue of materiality from the jury in a trial
involving tax fraud. The Supreme Court concluded that refusing to instruct on the
element of materiality on the fraud charges was erroneous. 527 U.S. at 8. Nonetheless,
the Court held the error was not of the type that it had previously found to be "structural
error," the type of fundamental constitutional error which is so intrinsically harmful as to
require automatic reversal. 527 U.S. at 8, 9-16. Thus, the Daniels court concluded:

"Under the Neder test, 'where a reviewing court concludes beyond a reasonable doubt
that the omitted element was uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the error, the erroneous instruction
is properly found to be harmless.' 527 U.S. at 17. Stated another way, the reviewing court
'asks whether the record contains evidence that could rationally lead to a contrary finding
with respect to the omitted element.' 527 U.S. at 19. If the answer to that question is 'no,'
the error may be held harmless." Daniels, 278 Kan. at 62.

Daniels went on to consider an argument identical to the one put forth here by
Reyna; that despite the rule in Neder, under Apprendi, the omission of the element in a
case where that element makes the difference between severity levels of a crime violates
Reyna's constitutional right to trial by jury. The Daniels court noted that this court had
never applied Apprendi in a case involving erroneous jury instructions and held:

"[E]ven if there was Apprendi-type error, which we decline to decide, our analysis would
still be that the evidence of bodily harm was essentially uncontroverted. Accordingly, we
reject Daniels' arguments that the omission of the bodily harm element requires reversal."
Daniels, 278 Kan. at 65.

Since Daniels, the United States Supreme Court has decided a case directly
addressing whether an Apprendi-type error, the failure to submit a sentence-enhancing
factor to the jury, can ever be harmless error. In Washington v. Recuenco, 548 U.S. 212,
165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006), the Court reviewed a case in which the
Washington Supreme Court had based its holding on the premise that an Apprendi-type
19

error could never be harmless. Recuenco was charged with assault with a deadly weapon,
specifically a handgun. The special verdict form returned by the jury found a deadly
weapon involved, but it failed to make the specific finding of a handgun. The trial court
imposed a 3-year sentence enhancement for use of a gun instead of the 1-year sentence
enhancement that applied to use of a deadly weapon. The Washington Court of Appeals
affirmed, but the Washington Supreme Court, relying on Apprendi and Blakely v.
Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), reversed. Blakely
clarified that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. [Citations omitted.]" 542 U.S. at 303. Considering the Apprendi
argument, the Court said:

"The State and the United States urge that this case is indistinguishable from
Neder. We agree. Our decision in Apprendi makes clear that '[a]ny possible distinction
between an "element" of a felony offense and a "sentencing factor" was unknown to the
practice of criminal indictment, trial by jury, and judgment by court as it existed during
the years surrounding our Nation's founding.' 530 U.S., at 478 (footnote omitted).
Accordingly, we have treated sentencing factors, like elements, as facts that have to be
tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only
difference between this case and Neder is that in Neder, the prosecution failed to prove
the element of materiality to the jury beyond a reasonable doubt, while here the
prosecution failed to prove the sentencing factor of 'armed with a firearm' to the jury
beyond a reasonable doubt. Assigning this distinction constitutional significance cannot
be reconciled with our recognition in Apprendi that elements and sentencing factors must
be treated the same for Sixth Amendment purposes. Recuenco, 548 U.S. at 220.

The Court went on to conclude that "[f]ailure to submit a sentencing factor to the jury,
like failure to submit an element to the jury, is not structural error." 548 U.S. at 222.

Thus, Daniels stands for the proposition that this court will apply the harmless
error analysis to the omission of an element from the instructions to the jury when a
20

review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error. And Recuenco stands for the
proposition that characterizing the omission as an Apprendi-type error, i.e., judicial
factfinding of the omitted element when that element enhances the maximum applicable
sentence, does not change that analysis.

The dissent argues that the instructions in this case were not erroneous but that
argument rests on an assumption that Reyna was charged with the severity level 3 crime
and we have just held he was not. While the complaint failed to include the off-grid
element in the individual counts charging the crimes, the complaint overall adequately
charged him with the off-grid offenses. Therefore, the instructions were erroneous in that
they omitted an element of those offenses, specifically, the defendant's age at the time of
the offenses. Moreover, it should be emphasized that Reyna, in his brief to this court,
frames the issue in terms of erroneous instructions.

Our review of the evidence in this case reveals that Reyna testified he was 37
years of age at the time of the trial. There was no conflicting evidence or, indeed, any
other evidence at all concerning his age. Asking whether the record contains evidence
that could rationally lead to a contrary finding with respect to the element that the
defendant was over the age of 18 at the time of the crime, we conclude that it does not
and, further, that the omission of the element from the jury instructions was, therefore,
harmless error. Moreover, for the same reasons, we are convinced that the Apprendi-type
error that occurred when the trial court made the age determination and imposed sentence
on Reyna under K.S.A. 2006 Supp. 21-4643, was harmless. We affirm Reyna's sentence.

EXPERT TESTIMONY

21

Reyna maintains that the trial court erred in admitting the expert testimony of Joni
Alberts-Plumer concerning the behavioral characteristics of children who have been
sexually abused. K.S.A. 60-456(b) governs the admission of expert testimony:

"If the witness is testifying as an expert, testimony of the witness in the form of
opinions or inferences is limited to such opinions as the judge finds are (1) based on facts
or data perceived by or personally known or made known to the witness at the hearing
and (2) within the scope of the special knowledge, skill, experience or training possessed
by the witness."

"Generally, the admission of expert testimony lies within the sound discretion of the trial
court, and its decision will not be overturned absent an abuse of such discretion.
[Citations omitted.]" State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008).

Alberts-Plumer is a licensed clinical marriage and family therapist, who
specializes in children who are sexually abused. Reyna initially objected to Alberts-
Plumer testifying that she had counseled A.E. and B.B. after the alleged assaults on the
grounds that any evidence she had counseled them was tantamount to introducing her
opinion that they had in fact been sexually abused. The trial court agreed such testimony
would be inadmissible but indicated she could testify generally that "children who have
been abused don't always tell a responsible adult that that has happened immediately
when it happens and that that's not unusual." Even so, the judge noted that he was "not
totally convinced that that point is not so obvious to the ordinary person in this day and
age that it really requires expert testimony."

Alberts-Plumer testified that she had treated many sexually abused children, that
she had extensive training, and that she was familiar with the research in the area of
sexual abuse and children. She also testified that she was trained in the "Finding Words"
method of forensic interviewing of sexually abused children and she had trained with one
of the nation's leading experts in the field of sexual abuse and children. On the basis of
22

this testimony, she was qualified as an expert and allowed to testify that a large
percentage of children who have been sexually abused do not report that fact immediately
and that when they do report they are not always focused on the same details that would
be important to an adult investigating the abuse. She further testified the details of the
sexual abuse may come out over a period of time rather than all at once. Reyna preserved
the issue by raising an objection to the testimony at trial.

On cross-examination, counsel for Reyna was able to explore the role of
susceptibility to suggestion in the reports of child sexual abuse victims. She was also able
to elicit testimony that improper questioning could lead to distorted or even false reports.

Reyna complains that the testimony did not meet the prerequisites required for its
admission into evidence because there was no showing of necessity or that the subject
matter was not within the knowledge of an average juror. He points to the trial judge's
own statements casting doubt on the need for the testimony and the fact that many of the
jurors had worked directly with children as grounds for finding that the statute was
erroneously applied. He relies on a line of cases holding that the testimony of an expert
must be outside the common knowledge of a juror to be admissible. In particular, he
quotes from State v. Cooperwood, 282 Kan. 572, 147 P.3d 125 (2006), where this court
noted that it had stated the standard for admission of expert testimony in various ways,
including as strongly as:

"'Expert conclusions or opinions are inadmissible where the normal experiences and
qualifications of lay persons serving as jurors permit them to draw proper conclusions
from given facts and circumstances.' (Emphasis added.) Pullen v. West, 278 Kan. 183,
207, 92 P.3d 584 (2004); State v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002); see
[citations omitted]; Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978)."
Cooperwood, 282 Kan. at 578-79.

23

Despite "facially different" methods of stating the standard, Cooperwood concluded,
quoting Lollis: "'It is obvious that these observations simply state, in a different way, that
the basis for the admission of expert testimony is necessity, arising out of the particular
circumstances of the case.' 224 Kan. at 261." 282 Kan. at 579.

Reyna's theory of the case was to attack the credibility of the complaining
witnesses, implying that the events reported could not have occurred as reported, that the
victims were subjected to poor interviewing techniques which suggested the answers the
adults were looking for, and that the delay and inconsistency in their stories indicated that
the allegations were not true. Because of that strategy, Reyna complains that the
testimony of Alberts-Plumer amounted to an expert opinion vouching for the credibility
of the victims and, therefore, was highly prejudicial.

In State v. McIntosh, 274 Kan. 939, 958-60, 58 P.3d 716 (2002), this court held
that qualified expert witness testimony on common patterns of behavior of sexually
abused children was admissible to establish that the victim in the case exhibited behavior
consistent with sexually abused children. McIntosh, in turn, relied heavily upon State v.
Reser, 244 Kan. 306, 310-15, 767 P.2d 1277 (1989), in which this court undertook an
exhaustive review of cases from both Kansas and other jurisdictions that had considered
expert testimony on the behavioral characteristics of child sexual abuse victims.

McIntosh and Reser both concluded that testimony from a qualified expert
concerning the characteristic behaviors of child victims of sexual abuse, including such
things as failure to report the abuse immediately, was proper and helpful to the jury and
could be introduced to corroborate victim testimony. They also concluded that it was
permissible for the expert to testify that, having examined the victim, the expert
concluded that the victim has symptoms consistent with a child who had been sexually
abused. McIntosh, 274 Kan. at 956; Reser, 244 Kan. at 315.

24

In this case, Alberts-Plumer did not present evidence that she had examined the
victims or that they had symptoms consistent with sexual abuse, both of which, contrary
to the trial court's ruling, would have been permissible. Her testimony was limited to
generalizations, subject to cross-examination, concerning typical behaviors of sexual
abuse victims.

The Court of Appeals recently considered a similar set of facts in State v. Gaona,
41 Kan. App. 2d 1064, 208 P.3d 308 (2009). In that case, the State sought to introduce
the testimony of Kelly Robbins. Although Robbins was "not a psychiatrist, psychologist,
social worker, mental health technician, or family therapist, she had specific training in
child interview techniques and a wealth of experience in the investigation of child sexual
abuse." 41 Kan. App.2d at 1067. Her qualifications were more consistent with her
background as a special agent for the Kansas Bureau of Investigation than with a mental
health care provider or therapist. The court specifically noted that "Robbins was not
asked to provide a medical diagnosis or to relate it to this specific victim, but rather was
confined to a general discussion of common behavioral traits of sexually abused
children." 41 Kan. App. 2d at 1068. The court found it was not an abuse of discretion to
allow Robbins to testify on such a limited basis. 41 Kan. App. 2d 1068-69.

K.S.A. 60-456(c) provides with regard to expert testimony that "[u]nless the judge
excludes the testimony he or she shall be deemed to have made the finding requisite to its
admission." Despite the trial judge's questioning of the need for admission of expert
testimony in this case, case law supports the conclusion that the testimony of general
behavioral traits of sexual abuse victims is helpful to the jury and, therefore, admissible.
Moreover, Reyna was able to take advantage of cross-examination of the witness to
bolster his own theory of the case. Under these circumstances, it is difficult to conclude
that the trial court abused its discretion in admitting the testimony, and we find it did not.

VOIR DIRE
25


Reyna contends that the trial judge unreasonably limited his voir dire of the jury
panel. K.S.A. 22-3408(3) governs the conduct of voir dire and provides:

"The prosecuting attorney and the defendant or his attorney shall conduct the
examination of prospective jurors. The court may conduct an additional examination. The
court may limit the examination by the defendant, his attorney or the prosecuting attorney
if the court believes such examination to be harassment, is causing unnecessary delay or
serves no useful purpose."

With respect to the standard of review on appeal, we have said:

"The 'purpose of voir dire examination is to enable the parties to select jurors
who are competent and without bias, prejudice, or partiality.' State v. Manning, 270 Kan.
674, 691, 19 P.3d 84 (2001). Generally the nature and scope of the voir dire examination
is entrusted to the sound discretion of the trial court. Manning, 270 Kan. at 691.
However, '"[i]n determining whether the trial court has taken sufficient measures to
assure that the accused is tried by an impartial jury free from outside influences, appellate
tribunals have the duty to make an independent evaluation of the circumstances."' State v.
Aikins, 261 Kan. 346, 366, 932 P.2d 408 (1997)." State v. Hayden, 281 Kan. 112, 128-29,
130 P.3d 24 (2006).

In order to consider Reyna's argument, it is necessary to piece together several
segments of the trial. The State questioned the jury panel at length before passing the
panel for cause. Counsel for Reyna began her voir dire by saying, "[T]he good news is
the State has asked a lot of questions that I would have so chances are my portion of the
voir dire, which this process is called, won't take quite so long." Reyna's counsel then
immediately began asking questions of individual jurors. She had questioned three jurors
individually when the court called counsel to the bench and the off-the-record discussion
was held. Following the discussion, counsel resumed questioning jurors individually. In
all, after the discussion at the bench, counsel questioned another 20 jurors individually.
26

She asked only five questions generally of the panel, and one of those resulted in
individual discussions with three additional jurors before she passed the panel for cause.

Peremptory strikes were conducted in chambers. Following that process, Reyna's
counsel stated:

"Judge, I would just ask that when the Court calls counsel up to the bench, that
the Court tries not to scowl or make any kind of—and I'm stating this is because what
happened [sic] I got called up to the bench in voir dire and I will tell the Court that I cut
my voir dire back because I felt like if I was admonished again it was going to have a
negative impact on Mr. Reyna, resulting in not being able to ask many questions of jurors
that said nothing."

The trial judge responded, "Well, that's noted for the record. It's without any basis."

Counsel for Reyna filed a motion for new trial in which she alleged that the State's
voir dire consumed close to 1 and 1/2 hours but the defense was not given an opportunity
to sufficiently voir dire the panel. She alleged that in the discussion at the bench, the trial
court "told defense counsel that she would not be permitted to do an individual voir dire,
that the questions that were being asked were not germane and to move on as there wasn't
time for this." At argument on the motion, counsel again stated that the court had
admonished her that her voir dire questions were not germane, that it had limited her
opportunity to question the potential jurors and, in particular, she had been limited from
delving into their education and the degrees some of them were seeking, which in turn
hampered her ability to select a jury that did not have preconceived notions.

In ruling on the motion, the district judge characterized the off-the-record
conversation this way:

27

"The selection of the jury. In all due respect I think I made one comment to
counsel out of hearing of the jury that I questioned whether it was germane to ask each of
the very young witnesses or potential jurors who said they were in school or going to
school what their major in college was or was going to be. Anybody that's been a parent
and had children go through college knows that statistics that the major change [sic] an
average of four to five times from when they start out and what they end up. That was the
only comment I recall making and I believe that defense counsel had certainly adequate
opportunity to—to question and voir dire. And once again, all due respect, Ms. McKenna,
you've never been timid or reluctant to challenge my ruling in various trials by—by
pushing those limits and asking your questions subject to further admonition. So I believe
that the jury was fairly questioned by both sides and was fairly selected in this case."

The motion for new trial was denied.

Judicial discretion is abused when judicial action is arbitrary, fanciful, or
unreasonable, which is another way of saying that discretion is abused only when no
reasonable person would take the view adopted by the trial court. 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. Ransom, 289 Kan. 373, 389, 212 P.3d
203 (2009); State v. Hayes, 258 Kan. 629, 631-32, 908 P.2d 597 (1995).

Putting together the various segments of the trial at which the voir dire was
conducted and discussed, we cannot conclude that Reyna's counsel was limited in her
questioning of the jury panel in any meaningful way. Following the discussion at the
bench, counsel proceeded to question 20 panel members on an individual basis. Her
questioning resulted in the removal of one juror for cause. While she did leave the topic
of college majors following the discussion at the bench, the trial court's assessment of
that topic hardly seems an abuse of discretion. We pause to note that it was Reyna's
burden to produce an adequate record on this issue and a request to put the conversation
at the bench on the record would have assisted in our review. See State v. Seward, 289
28

Kan. 715, 720-21, 217 P.3d 443 (2009). That said, we also note that it is not a common
practice for a trial judge to sua sponte interrupt voir dire, and our review of the record
indicates no reason it should have been interrupted here. However, our independent
evaluation of the circumstances does not indicate prejudice to Reyna.

CONSTITUTIONALITY OF SENTENCE

Reyna next argues that the hard 25 life sentence imposed upon him under K.S.A.
2006 Supp. 21-4643(a)(C), (c) (Jessica's Law) violates both the Eighth Amendment to the
United States Constitution and § 9 of the Kansas Constitution Bill of Rights in that it is
cruel and unusual and disproportionate to the offense. He concedes, however, that he
failed to raise the constitutional issue in any form before the trial court.

This court has recently considered the same argument in several cases all of which
came to us in substantially the same procedural posture. See State v. Oehlert, 290 Kan.
___, 224 P.3d 561 (2010); State v. Robison, 290 Kan. 51, 220 P.3d 500 (2010); State v.
Mondragon, 289 Kan. 1158, 220 P.3d 369 (2009); State v. Spotts, 288 Kan. 650, 206 P.3d
510 (2009); State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009); State v. Ortega-
Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008). Cf. Seward, 289 Kan. 715. Little would be
gained by repeating what has been repeatedly set out in those cases. This constitutional
argument is both a factual and a legal issue, and Reyna's failure to raise the issue below
and create a factual record sufficient for this court's review precludes our review. Reyna's
argument that his case was tried to a jury, unlike the other cases in which the defendant
entered a plea, and so fact finding has been completed by the jury, does not address the
need for particularized findings of fact addressed to the considerations set out in State v.
Freeman, 223 Kan. 362, Syl. ¶¶ 1-2, 574 P.2d 950 (1978), on which the constitutional
argument turns. The issue is not properly before us.

DEPARTURE MOTIONS
29


Reyna filed a motion and an amended motion for dispositional and durational
departure. The motions sought departure from both the off-grid sentences and the
guidelines sentences applicable to his convictions. The motions were considered and
denied by the district court. He alleges there were substantial and compelling reasons to
grant the motions, see K.S.A. 2006 Supp. 21-4643(d), and, therefore, the trial court erred
in imposing the concurrent hard 25 life sentences.

"Our standard of review on the denial of a sentencing departure is abuse of
discretion. Judicial discretion is abused '"'when no reasonable person would take the view
adopted by the district judge.'"' Thomas, 288 Kan. at 164 (quoting Ortega-Cadelan, 287
Kan. at 165)." Seward, 289 Kan. at 721.

Reyna argues that the degree of harm to his victims was less than in the typical sex
offense case, that a sex offender evaluation found no evidence of pedophilia, and that the
evaluator did not consider him to be a threat to the community if he was properly
supervised, combined with his lack of criminal history, all lead to the conclusion that the
trial court should have granted his departure motions. The trial judge in considering the
motions noted the strong legislative intent behind the sentencing statute, as well as the
difficulty of quantifying the "typical" harm in a case such as this. He also noted that
Reyna was not eligible for sex offender treatment as he maintained his innocence of the
offense. On the other hand, the evaluations did indicate Reyna has an alcohol problem.
The judge's stated reasons for denying any departure were extensive and indicated that he
thoroughly considered the factors argued. In Seward, we said:

"This court has defined 'substantial' as 'something that is real, not imagined;
something with substance and not ephemeral,' while the term '"compelling" implies that
the court is forced, by the facts of a case, to leave the status quo or go beyond what is
ordinary.' State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).

30

"In ruling on Seward's departure motion, the district judge orally reviewed the
mitigating and aggravating factors advanced by Seward and the State, engaging in an
appropriate weighing of the competing considerations. The defense has demonstrated no
abuse of discretion in the district judge's denial of its departure motion." 289 Kan. at 722.

Such is the case here. Reyna's convictions and the concurrent hard 25 life sentences
imposed are affirmed.

Affirmed.
* * *

JOHNSON, J., dissenting: I respectfully disagree with the majority's decision to
affirm Reyna's sentence for the off-grid version of aggravated indecent liberties with a
child under K.S.A. 2006 Supp. 21-3504. I believe Reyna should have been sentenced for
the crime with which he was charged and of which he was convicted by the jury, i.e., the
severity level 3 version of the offense.

First, I believe the majority may have missed the point of appellant's argument
about the charging document when it declares that "Reyna failed to file a motion for
arrest of judgment," and then proceeds to apply the defective complaint test from State v.
Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds
Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Reyna, slip op. at 16. The statute
governing a motion for arrest of judgment provides: "The court on motion of a defendant
shall arrest judgment if the complaint, information or indictment does not charge a crime
or if the court was without jurisdiction of the crime charged." K.S.A. 22-3502. Reyna
made it explicitly clear in his brief that he is not claiming that his complaint was
defective and that he does not believe that Hall is applicable. To the contrary, Reyna
asserts that the complaint against him is absolutely valid in charging the crime of severity
level 3 aggravated indecent liberties with a child and that the district court was definitely
invested with jurisdiction of that charged crime. In other words, the complaint in this case
31

did not fall within the parameters of K.S.A. 22-3502, and the district court could not have
granted relief under the plain language of that statute because the complaint did charge a
crime and the court did have jurisdiction of the crime charged. I understand that Hall may
have purported to change that plain statutory language, but the statute says what it says.

Reyna's principal complaint is that he was sentenced for a different and more
severe crime than the one which was charged in the valid complaint and of which he was
convicted. To clarify his point, Reyna likened his circumstance to a person who was
validly charged with and convicted of intentional second-degree murder but was then
sentenced for premeditated first-degree murder. In that instance, the error would occur at
sentencing.

The majority does not explain the logistics of using a motion to arrest judgment to
correct a sentencing error. Normally, a sentence will be imposed well after the deadline
for filing a motion to arrest judgment, which is 10 days after the guilty verdict. K.S.A.
22-3502. I would not require a defendant to be prescient or so cautious as to file a
prophylactic motion to arrest judgment, simply to guard against the possibility that the
district court might impose an improper sentence. In short, I do not believe that a motion
to arrest judgment was a prerequisite in this instance or that Hall is applicable.

Next, I disagree that the jury instructions in this case were erroneous. They set
forth each and every element of severity level 3 aggravated indecent liberties with a
child. For that crime, which was charged in the complaint, there was no omitted element,
as was the case in State v. Daniels, 278 Kan. 53, 91 P.3d 1147, cert. denied 543 U.S. 982
(2004), upon which the majority relies. If the district court had sentenced Reyna for a
severity level 3 felony, there would be no talk of a defective complaint or erroneous jury
instructions.

32

The problem here is that, after the verdict, the State declares that it intended to
prosecute Reyna for the off-grid version of the offense and, therefore, it should get the
more severe sentence that it wanted. Granted, the complaint does identify the severity
level as an off-grid felony, which would tend to corroborate the State's intention to charge
the more severe crime. However, we have not previously permitted charging by
implication.

"We have held that the citation to the statute cannot substitute to supply a
missing element of the charge. Incorporation by reference cannot be implied or inferred.
It must be explicit. [Citation omitted.] A proper instruction does not remedy the defect in
the complaint. [Citation omitted.]" State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14
(1992).

Again, the error was in sentencing Reyna for a different, and more severe, crime
than that with which he had been charged and convicted. As the majority notes, a Sixth
Amendment violation occurred under Blakely v. Washington, 542 U.S. 296, 303, 159 L.
Ed. 2d 403, 124 S. Ct. 2531 (2004), because Reyna's sentence exceeded the statutory
maximum sentence permitted "'solely on the basis of the facts reflected in the jury
verdict.'" Reyna, slip op. at 20. The strong message conveyed by Apprendi v. New Jersey,
530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and its progeny has been that
judicial factfinding impermissibly usurps the province of the jury, in contravention of a
defendant's right to jury trial.

However, subsequently, in Washington v. Recuenco, 548 U.S. 212, 218, 165 L.
Ed. 2d 466, 126 S. Ct. 2546 (2006), the United States Supreme Court declared that a
Blakely error—failing to submit a sentencing factor to the jury—is not structural error
and, therefore, could be subject to a harmless error analysis. Recuenco relied heavily
upon the Court's prior decision in Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35,
119 S. Ct. 1827 (1999), which found that the failure to submit to the jury an element of
the crime was not structural error, but rather the error could be harmless. The test for
33

harmlessness was stated as whether "the omitted element was uncontested and supported
by overwhelming evidence, such that the jury verdict would have been the same absent
the error." 527 U.S. at 17.

Ironically, under the guise of harmless error, a constitutional error of trial court
factfinding may be cured by performing appellate court factfinding. A reviewing court
cannot declare that the jury would have found the omitted element or sentencing
enhancement factor without doing what we often say that an appellate court cannot do—
make factual findings by reweighing the evidence and passing on the credibility of
witnesses. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009). The very term
"overwhelming evidence" suggests a weighing of the evidence in the record that favors
the fact in issue. Further, a fact which may have been uncontested is not necessarily
credible. For instance, if an 80-year-old rape victim testifies that she was 8 years old at
the time of the rape and the complaint does not charge the defendant with raping a victim
under the age of 14, there would have been no incentive for the defense to challenge the
age testimony because it was both obviously incredible to the jury and irrelevant to the
charges being prosecuted. Yet, if the district court sentences the defendant under Jessica's
Law, see K.S.A. 2006 Supp. 21-4643, we would be compelled to affirm the conviction
and sentence because, in the words of Daniels, the age element was "essentially
uncontested and, as a result, overwhelming." 278 Kan. at 63.

Recently, United States Supreme Court Justice Stevens observed that "imposing
criminal sanctions for nonproscribed conduct has always been considered a hallmark of
tyranny—no matter how morally reprehensible the prosecuted party." United States v.
Marcus, 560 U.S. ___ (No. 08-1341, filed May 24, 2010) (Stevens, J., dissenting) (slip
op. at 2). I would submit that imposing an additional criminal sanction for an uncharged
crime of which the defendant was not convicted is no less tyrannical.

34

Nevertheless, Recuenco and Neder are binding precedent with regard to the
character of a Sixth Amendment violation as not being structural error. However,
Recuenco clarified that its holding did not foreclose the possibility "that, as a matter of
state law, the Blakely . . . error was not harmless." 548 U.S. at 218 n.1. Therefore, I
would find that under the law of this state, the sentencing error in this case was not
harmless.

To start, "[i]n Kansas, all crimes are statutory." Sanford, 250 Kan. at 601. K.S.A.
2006 Supp. 21-3107(2), instructs us that "[u]pon prosecution for a crime, the defendant
may be convicted of either the crime charged or a lesser included crime, but not both."
Here, the off-grid offense was not the crime charged and was not a lesser included crime
of the charged severity level 3 offense. Accordingly, Reyna's conviction for the
uncharged off-grid offense was statutorily prohibited.

Moreover, we have declared that a district court does not have jurisdiction to
convict of an uncharged crime. "'[I]f a crime is not specifically stated in the information
or is not a lesser included offense of the crime charged, the district court lacks
jurisdiction to convict a defendant of the crime, regardless of the evidence presented.'"
(Emphasis added.) State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000) (quoting State v.
Horn, 20 Kan. App. 2d 689, Syl. ¶ 1, 892 P.2d 513, rev. denied 257 Kan. 1094 [1995]). It
seems nonsensical to permit the district court to acquire jurisdiction to convict a person of
an uncharged crime after the trial has concluded based upon a failure to file a motion to
arrest judgment within 10 days after the verdict. Essentially, that creates retroactive
jurisdiction via an implicit postconviction waiver. See Friedman v. Kansas State Bd. of
Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009) ("Parties cannot confer subject
matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court's
jurisdiction does not invest the court with the requisite subject matter jurisdiction."). If, as
I contend, the district court lacked jurisdiction to convict Reyna of the off-grid offense,
this court cannot acquire jurisdiction for the purpose of reviewing the evidence to
35

determine whether the error was harmless. See State v. McCoin, 278 Kan. 465, 468, 101
P.3d 1204 (2004) (if district court lacks jurisdiction, appellate court does not acquire
jurisdiction over subject matter on appeal).

On a different level, we have held that a sentence which does not conform to the
term of imprisonment authorized by the statute is an illegal sentence. See State v. Davis,
283 Kan. 767, 769, 156 P.3d 665 (2007). An illegal sentence may be corrected "at any
time." K.S.A. 22-3504(1). Based upon the elements charged in the complaint and the
elements found by the jury, Reyna's sentence does not conform to the prison term
authorized by the aggravated indecent liberties with a child statute. Such an "any time"
correction cannot be subject to harmless error.

Finally, we have a court-created rule in this state known as the identical offense
sentencing doctrine. Recently, in State v. Thompson, 287 Kan. 238, 258, 200 P.3d 22
(2009), we reiterated that "[i]f the elements in overlapping provisions are identical, the
due process considerations involved in Kansas' identical offense sentencing doctrine
apply and a defendant may only be sentenced to the lesser punishment provided for in the
identical, overlapping provisions." Here, Reyna was actually charged with and convicted
of a lesser included offense of the crime for which he was sentenced. See K.S.A. 2006
Supp. 21-3107(2)(b) (lesser included crime is one where all elements of the lesser crime
are identical to some of the elements of the crime charged). I find it inconsistent and
illogical to heed the due process considerations in the context of an identical offense, but
to ignore the same due process concerns when the defendant is sentenced for an
aggravated degree of a crime after being charged with and convicted of a lesser degree of
that offense. To me, the latter scenario provides less notice and opportunity to be heard
than the identical offense situation, and I would not condone it in this state.

Accordingly, I would find that Reyna was erroneously sentenced pursuant to
Jessica's Law and that the error was not harmless under Kansas state law.
36