IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 79,143
STATE OF KANSAS,
Appellee/Cross-appellant,
v.
OMAR JASON SAMPSEL,
Appellant/Cross-appellee.
SYLLABUS BY THE COURT
1. The prohibition of K.S.A. 21-3610 against furnishing alcoholic liquor to a minor applies to minors as well as adults.
2. Under the facts of this case and in accordance with State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), possession of alcoholic liquor is not a lesser included offense of furnishing alcoholic liquor to a minor.
3. A departure sentence is subject to appeal by either the defendant or the State.
4. Sentence review is limited to whether the sentencing court's findings of fact and reasons justifying a departure (1) are supported by the evidence in the record, and (2) constitute substantial and compelling reasons for departure.
5. The burden is on the party claiming error to show a departure sentence resulted from partiality, prejudice, oppression, or corrupt motive.
6. A claim that departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law.
7. K.S.A. 21-4719(b)(1) is interpreted to give appellate courts authority to review the extent of downward durational departure sentences under an abuse of discretion standard of review.
8. The nonexclusive list of statutory mitigating factors that may be considered in determining if substantial and compelling reasons for a departure sentence exist include: Whether the victim was an aggressor or participant in the criminal conduct associated with the crime of conviction and whether the degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense. K.S.A. 1998 Supp. 21-4716(b)(1)(A) and (E).
9. When a sentencing judge departs in setting the presumptive term of imprisonment, the judge shall consider and apply the enacted purposes and principles of the sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender's criminal history.
10. Legislative purposes for enacting the Kansas Sentencing Guidelines Act included (1) reducing prison overcrowding, (2) protecting public safety, and (3) standardizing sentences so similarly situated offenders are treated the same in order to reduce the effects of racial or geographic bias.
11. When a sentencing court relies upon statutory aggravating or mitigating factors to depart, those reasons should be given great deference by a reviewing court.
12. A minor female victim's aggressiveness and actions in leading up to an act of sexual intercourse are not defenses to a charge of aggravated indecent liberties with a child pursuant to K.S.A. 21-3504(a)(1), although such facts may properly be considered by the trial court in imposing punishment.
13. A departure sentence may be supported by one or more substantial and compelling factors.
14. Under the facts of this case, the trial court's downward durational departure was based on facts and reasons supported by evidence in the record that constituted substantial and compelling reasons for departure and was not an abuse of the trial court's discretion.
Appeal from Lyon district court; HERBERT ROHLEDER, Senior Judge assigned. Opinion filed January 28, 2000. Affirmed.
Rebecca E. Woodman, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the briefs for appellant.
Joe E. Lee, county attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: Omar Jason Sampsel was convicted by a jury of aggravated indecent liberties with a child, K.S.A. 21-3504(a)(1), a severity level 3, person felony; battery against a law enforcement officer, K.S.A. 1996 Supp. 21-3413(a)(1), a class A person misdemeanor; and furnishing alcoholic liquor to a minor, K.S.A. 21-3610, a class B person misdemeanor.
In this appeal, Sampsel challenges only the liquor conviction, contending (1) his age of 19 years makes him also a minor who cannot be convicted under the liquor laws, and (2) the trial court erred in failing to instruct the jury on possession of an alcoholic beverage by a minor under K.S.A. 1995 Supp. 41-727 as a lesser included offense of furnishing alcohol to a minor.
The State cross-appeals the trial court's granting of a downward durational departure from 60 months to 40 months, contending (1) the sentencing court did not state substantial and compelling reasons that were supported by the record and (2) the departure was a result of partiality, prejudice, oppression, or corrupt motive.
Facts
In November 1996, in the early evening hours, 14-year-old S.R. and 13-year-old A.C., both inexperienced in the consumption of alcohol, entered a home in Emporia occupied by Randall Ricketts, Chrysanne Tatman (18 years old), Kelly Minor (23 years old), and Omar Sampsel (19 years old).
Tatman testified that while at the residence in the early evening, and while drinking a beer, S.R. asked her if she could have sex with Sampsel. Tatman told S.R. Sampsel was not her boyfriend and she could do whatever she wanted. Tatman testified that before S.R. left the house at 8:30, the girls "were begging for sex, I can tell you that."
Evidence at the trial showed that S.R. and A.C. returned to S.R.'s house for approximately one-half hour but left around 9 p.m. after being told to be home by 11 p.m. After returning to the Ricketts residence, the same individuals were there with the exception of Minor. Trial testimony showed S.R. drank another beer followed by shots of bourbon, two being offered by Tatman, three by Sampsel, and two by S.R., who also drank from an open bottle. S.R. testified this was the first time she had met Sampsel and the first time she had drunk bourbon. She had drunk alcohol on one prior occasion. She remembered kissing Sampsel and that they touched each other. She became dizzy and nauseated.
Tatman testified to seeing S.R. either naked or only wearing her underpants, in the bathroom being assisted by Sampsel, although S.R. had no recall of it. Sampsel advised Tatman that he had had sexual relations with S.R.
S.R.'s next recall was waking up on Tatman's bed with A.C. beside her and vomit on the bed. S.R. had her outer clothes on but later discovered her underwear was missing. She was taken home by two young women.
S.R. and A.C. arrived home at approximately 1:55 a.m. S.R.'s mother and her husband had been out looking for the girls since 11:30 p.m. S.R.'s mother testified that S.R. was giggling and using profanity and that she took her to a hospital where rape tests were performed. The examining physician testified that as a result of his observation of S.R.'s vaginal area, he told police he believed she had been raped.
Officer Paccapaniccia was dispatched to the hospital to investigate the matter. He testified S.R. and A.C. were obviously intoxicated. He informed Detective Schondelmaier of a possible rape and that the girls were under the influence of alcohol.
A search warrant for Ricketts' residence was executed around 8 a.m. the following morning, where S.R.'s undergarments were located. Sampsel was awakened and obviously still intoxicated. After being advised of his rights, Sampsel admitted to consensual sex with a girl whose name he did not remember. Officer Paccapaniccia testified defendant said: "he couldn't even remember the drunk bitch he fucked last night but it's nothing but a chicken wing"; "sex, drugs, and rock and roll"; when a detective picked up the bottle of Virgin Whiskey: "Virgin Whiskey, give that to a virgin and they're not a virgin much longer" (laughing); "If they are old enough to grow hair and bleed, they're old enough to breed and have sex."
Sampsel said a discussion had been held concerning his using protection but the girl was too drunk to know he had not done so. He said she actively participated in sexual intercourse. He said Ricketts had told him that S.R. was 16 years old but he was not sure of her age. Sampsel made a written statement of his version of the events.
Sampsel was charged with aggravated indecent liberties with a child and furnishing alcohol to a minor. The battery against a law enforcement officer charge was precipitated by Sampsel spitting at and on an officer while on the way to incarceration.
After a jury trial, Sampsel was found guilty of all charges.
Sampsel's counsel moved for downward dispositional and durational departures from the Kansas Sentencing Guidelines Act (KSGA), requesting probation because the complainant was a voluntary participant and because the degree of harm was less than typical for such an offense, with medical attention being only necessitated by complainant's voluntary actions. The durational departure was requested to a presumptive sentence of not more than 24 months for the same reasons as made in the request for the dispositional departure.
Sampsel's issues
Can a minor be guilty of furnishing alcohol to another minor under K.S.A. 21-3610?
Sampsel's first contention is that because he is 19 years old and therefore a minor, as defined under K.S.A. 41-102(p), he is among the class of persons intended to be protected by K.S.A. 21-3610 and not subject to punishment thereunder.
This question involves the interpretation of K.S.A. 21-3610, which is a question of law over which our review is de novo. Todd v. Kelly, 251 Kan. 512, 515, 837 P. 2d 381 (1992). Our criminal statutes are construed against the State. State v. Sexton, 232 Kan. 539, 543, 657 P. 2d 43 (1983).
The applicable portion of K.S.A. 21-3610 relating to furnishing liquor to a minor states:
"(a) Furnishing alcoholic liquor to a minor is directly or indirectly, selling to, buying for, giving or furnishing any alcoholic liquor to any minor.
. . . .
"(c) As used in this section, terms have the meanings provided by K.S.A. 41-102 and amendments thereto."
Sampsel is correct that for purposes of the alcoholic liquor laws in Chapter 41 of the Kansas Statutes he is a minor. From this premise he makes the broad leap to argue that because such provisions were designed to prohibit adults from supplying alcohol to minors, it excludes him from the class of parties that can be prosecuted.
This argument and the cases Sampsel cites relating to the public policy against furnishing alcohol to minors fails to recognize the State's much more logical contention that K.S.A. 21-3610 makes it a criminal offense for anyone to furnish alcoholic liquor to a minor. K.S.A. 21-3610(d) does provide defenses to liability for licensed retailers, clubs, drinking establishments or caterers, or other parties with temporary permits who are furnished identification by individuals purporting to be 21 years or older, but there is no mention of limiting the scope of the statute to adults and excluding everyone under the age of 21 years.
There are no cases on this issue, probably because Sampsel's contention is simply erroneous. The language of this statute is clear that anyone serving alcoholic liquor to a minor can be charged with the violation of K.S.A. 21-3610. Sampsel furnished alcoholic liquor to S.R. He was found guilty of doing so by the jury. This argument has no merit.
Sampsel also argues the evidence did not sufficiently show the alcoholic liquor was actually furnished to S.R. by him. The evidence is clear that he poured S.R. several shots of bourbon. Under our standard of review, after we reviewed all the evidence, viewed in the light most favorable to the prosecution, we are convinced that the jury was clearly justified in finding Sampsel guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
The trial court did not err in failing to instruct the jury on possession or obtaining alcoholic beverages by a minor under K.S.A. 1995 Supp. 41-727 as a lesser included offense of furnishing alcoholic liquor to a minor.
The trial court's duty to instruct on lesser included offenses is based on a view of the evidence in the light most favorable to the defendant's theory if it would justify a jury verdict and the evidence does not exclude a theory of guilt on the lesser offense. State v. Moncla, 262 Kan. 58, 73-74, 936 P. 2d 727 (1997).
Sampsel makes a State v. Fike, 243 Kan. 365, 757 P. 2d 724 (1988) argument, contending the two-pronged test under K.S.A. 21-3107(2)(d) applies. Under that test, where the elements of the crime charged and the lesser crime are compared, and the statutory elements of the lesser crime are automatically proved if the State establishes the elements of the crime charged, then the lesser crime is a lesser included crime. If a lesser crime does not satisfy the first prong of Fike, it can still be a lesser included crime if the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence that must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime. Fike, 243 Kan. at 368.
The provisions of K.S.A. 21-3610 have previously been set forth. In alleging K.S.A. 1995 Supp. 41-727 is a lesser included crime, Sampsel points to its provisions that "no person under 21 years of age shall possess, consume, obtain, purchase or attempt to obtain or purchase alcoholic liquor or cereal malt beverage except as authorized by law," as making this a lesser included crime. Sampsel acknowledges that in comparing the two provisions, the statutory elements of K.S.A. 1995 Supp. 41-727 are not automatically proved when the required elements of K.S.A. 21-3610 are also proved. However, Sampsel argues that in order to prove he furnished alcohol to S.R., the State necessarily proved that he purchased, obtained, or possessed the liquor.
The State argues in opposition that the trial court was under no obligation to submit possession of an alcoholic beverage by a minor as a lesser included offense because possession of alcohol does not necessarily have to be proved to show that Sampsel furnished alcohol to S.R. The State also cites State v. Josenberger, 17 Kan. App. 2d 167, 836 P. 2d 11, rev. denied 251 Kan. 941 (1992), as support for its argument.
In Josenberger, the defendant argued that simple possession of marijuana is a lesser included offense of the sale of marijuana. In disagreeing, the Josenberger court held that the factual allegations in the charging document did not allege a lesser crime of possession and the State did not necessarily have to prove the crime of possession in proving sale. 17 Kan. App. 2d at 175.
Under the facts of this case, the alcoholic liquor in question was never strictly in Sampsel's possession because evidence showed it was purchased and made available by someone else. He did clearly furnish the bourbon to S.R., as did others.
It is clear the charging document did not allege a lesser crime of possession, and the State did not have to prove the crime of possession in order to prove the crime of furnishing alcohol to a minor. This was the logic of Josenberger and is equally applicable here. In addition, the charging document did not require the State to prove that Sampsel was a minor to be found guilty under K.S.A. 21-3610, and while he was a minor as defined by K.S.A. 41-102(p), this was not a required element of proof. Under these analyses, the lesser included offense instruction was not required to be given. The conviction of furnishing alcohol to a minor is affirmed.
State's cross-appeal
Did the trial court have substantial and compelling reasons for departure or, in the alternative, was the departure the result of partiality, prejudice, oppression, or corrupt motive?
K.S.A. 21-4721 provides that a departure sentence is subject to appeal by either the defendant or the State. Subsection (d) provides:
"[s]entence review shall be limited to whether the sentencing court's findings of fact and reasons justifying a departure:
(1) [a]re supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure."
It is also proper in any appeal for the appellate court to review a claim that "[a] sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive." K.S.A. 21-4721(e)(1). The Court of Appeals in State v. Starks, 20 Kan. App. 2d 179, 183, 885 P. 2d 387 (1994), relying on State v. Heywood, 245 Kan. 615, 620-21, 783 P.2d 890 (1989), held the burden is on the party making these claims and the scope of review is whether the trial court's discretion is abused. Discretion is abused only when no reasonable person would take the view adopted by the trial court. We have also said that "'if reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.'" State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997).
The landmark Kansas case dealing with downward departures, State v. Favela, 259 Kan. 215, Syl. ¶ 6, 911 P.2d 792 (1996), states: "A claim that the departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law." Favela interpreted K.S.A. 1994 Supp. 21-4719(b)(1) to give appellate courts authority to review the extent of downward durational departures and reasoned that "since the power to review the extent of departures is based on a mere inference, an appellate court should not give itself more power than the legislature intended, and the review should be limited to the weakest type of review--abuse of discretion." Favela, 259 Kan. 215, Syl. ¶ 9.
Sampsel's motion for a dispositional and durational departure from the KSGA sentence of 60 months' imprisonment under a criminal history score of category "G" crime severity level 3, alleged in part:
"(a) The complainant was a voluntary participant in the conduct associated with the crime of conviction. The evidence adduced at Defendant's trial was that the said complainant willingly consumed alcoholic beverages, voluntarily engaged in amorous conduct with Defendant, was not coerced nor forced to engage in sexual intercourse with Defendant and openly expressed her desire to do so.
"(b) That the degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense. The evidence adduced at Defendant's trial established that the aforesaid complainant did not sustain significant injuries during the commission of the offense, and that any medical attention afforded to the said complainant was routine in nature and was necessitated only as a result of complainant's voluntary actions."
Sampsel's motion alternatively asked that if his requested dispositional departure was denied, the presumptive sentence should be reduced to not more than 24 months' incarceration.
These allegations substantially followed the statutory nonexclusive list of mitigating factors that may be considered to determine whether substantial and compelling reasons for a departure exist. This list is set forth in K.S.A. 1998 Supp. 21-4716(b)(1):
"(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
. . . .
"(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense."
K.S.A. 1998 Supp. 21-4716 further provides:
"(c) In determining aggravating or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding,
(2) the presentence report;
(3) written briefs and oral arguments of either the state or counsel for the defendant; and
(4) any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable."
The sentencing judge had heard all the testimony at Sampsel's trial. But, S.R. also testified briefly at the sentencing hearing where she admitted to not having suffered injuries, would not admit to having expressed a desire for sexual contact, showed little recollection of the events, and did not recall having been forced by anyone to have sexual intercourse.
Sampsel's counsel's arguments centered on the two sections of K.S.A. 1998 Supp. 21-4716 recited in his motion and set forth above. First, that the victim was a voluntary and active participant and that she was not physically injured. Community corrections was requested or, alternatively, for a durational departure to not more than 24 months.
At the sentencing hearing, Sampsel stated S.R. did want to have sex and became intoxicated. He admitted to having a drinking problem and apologized for the things he had said.
Sampsel's mother was allowed to make a statement. She made excuses for her son's actions and suggested worse crimes had resulted in less sentences than 5 years.
The county attorney pointed to Sampsel being 19 years old and the victim being 14 years old, contended consent was not an issue, and centered on the results of furnishing alcohol to minors and Sampsel's crude and unfeeling comments at the time of his arrest. The State took issue with Sampsel's counsel's argument that the degree of harm was less than typical for such an offense because HIV testing had been requested and its results were unknown. The county attorney finally argued that the remorse Sampsel has is for the consequences he faces, not his actions, and this was not a case where a departure was justified.
In rebuttal, Sampsel's counsel argued that voluntary participation was shown by S.R. asking for a condom which showed she knew what she was doing and they had met the mitigating factor in the statute.
The sentencing court then stated:
"THE COURT: Well, from my point of view, I believe that -- I've been coming down here for a few months, and I think that this young lady, [S.R.], in one fashion or another has been involved in at least four or five of the jury trials that I've heard. She's either a witness or she's a victim or whatever. I certainly agree with you, Mr. Lee [county attorney], the defendant's behavior at the time of the arrest and thereafter, with all of his smart remarks, and so forth, they don't -- aren't appealing to me.
"But the other thing that doesn't appeal to me is that this law is supposed to protect children, I agree it's supposed to protect them, but when you get a victim like the victim involved in this case, hell, she doesn't want to be protected, she wants to be -- you know, there's too many women in this courtroom or I would use the word -- she wants to go to bed, she wants to have sex, she wants to screw everybody. That's what she wants to do. And so I can't feel any great compassion for her, that's for sure. But I also know what the law is. And, you know, this young man violated that law, right or wrong, and so forth.
"I'm not going to deviate on the departure to the point of Community Corrections, probation, or anything else, but I am going to kick some of the -- the months off of the sentence, and even though I don't like this young man's prior criminal history and prior behavior and the behavior at the time that he was arrested in this case. And the only thing I've got to say about that is, whatever his past criminal history and what he's going to serve as a result of this crime, and looking at his history, he'll come back and he'll be back.
"So I'm going to, if I can go right into what I'm going to do, I'm going to reduce the 60 months down to 40 months. And I want HIV testing. I want whatever else the State might want regarding that. And that's basically the ruling of the Court. And I want him to stay in jail and be shipped off."
The trial court additionally sentenced Sampsel to 6 months in the county jail for furnishing alcohol to a minor to be served concurrent with the indecent liberties sentence. The sentence for battery of a law enforcement officer was set at 12 months in the county jail to be served consecutive to the other sentences.
Sampsel's counsel asked that the battery sentence not be served consecutively, but the trial court said it was a separate incident and suggested that when Sampsel is released from prison someone could then argue on his behalf that the time he had done is sufficient to fulfill the obligation.
The journal entry of judgment entered on the day of sentencing ordered the downward durational departure. The sentencing judge gave the following reasons for the departure: "Duration departure, because of victim behavior, her consent to participate, other activity along this line. Victim was a participant in this matter."
The State makes a two-prong argument in asking for reversal of the trial court: First, that the court failed to state facts that support substantial and compelling reasons for departure. Additionally, the State submits that remarks of the sentencing judge in the present case and remarks made later on the same day in a separate case in Lyon County, State v. Minor, case No. 96CR419, showed prejudice against the victim reflecting bias, partiality, and prejudice.
Sampsel relies on the broad holding of State v. Favela, 259 Kan. 215, pointing out that K.S.A. 21-4728 states the Kansas Sentencing Guidelines Act should "permit a sentence appropriate for each individual case," and argues one of the purposes of sentencing guidelines is to reduce prison overcrowding by reserving space in prison for serious/violent offenders who present a threat to public safety.
Sampsel further contends the factual basis for the existence of the mitigating factors of K.S.A. 1998 Supp. 21-4716(b)(1)(A) of participation was clearly shown. While the State argued that consent was not an issue, it failed to recognize that State v. Rush, 24 Kan. App. 2d 113, 115-16, 942 P.2d 55 (1997), holds that the willing participation of a female victim, while no defense to a charge of statutory rape, may properly be considered in imposing punishment, and constitutes a substantial and compelling reason for departure as a matter of law, Sampsel cited K.S.A. 21-4716(b)(1)(A) and State v. Rush to argue this point.
Sampsel says there is no basis for the State's claim of partiality and prejudice, because comments in a later case on the same day involving a different defendant and a different victim could not be the erroneous cause of a departure sentence previously announced. Sampsel quoted our statement from State v. Gideon, 257 Kan. 591, 623, 894 P.2d 850 (1995), that "the court's comments at the time of sentencing govern as to the reasons for departure." This would prohibit usage of any statements from a case later decided.
Finally, Sampsel argues that his conduct has not been excused. He must serve 3 years and 4 months in prison, followed by 12 months in the county jail. The court refused Sampsel's requested dispositional departure and imposed a prison sentence which was deemed appropriate based on the facts of this case. Sampsel admits some of the court's language was not very articulate and might be considered uncouth, but he argues the actions were within the discretion granted by the sentencing guidelines which was not abused by the trial court.
The result we reach on the State's cross-appeal is in a large part based on our standard of review broadly established in State v. Favela, 259 Kan. 215. In Favela, we reversed a split Court of Appeals decision reported at 21 Kan. App. 2d 202, 898 P.2d 1165 (1995), that had sought to limit a trial court's discretion in entering downward dispositional and durational departures. The Kansas Legislature has met for three sessions following our Favela decision and has not seen fit to reign in or restrict the trial court's discretion relating to dispositional and durational departures, thus Favela is the basis for which we consider the trial court's actions.
Favela involved both a downward durational and dispositional departure of a plea to attempted second-degree murder from a presumptive prison sentence of 51 to 59 months down to 14 months, with Favela placed in community corrections for 36 months. The Court of Appeals held the reasons for departure were not substantial and compelling. 21 Kan. App. 2d at 212. Our court reversed and reinstated the sentence the trial court ordered. In doing so, we spoke broadly concerning the discretion of trial judges to impose "a sentence which was proportionate to the severity of the crime of conviction and the offender's criminal history." 259 Kan. at 244. See K.S.A. 21-4719.
We held in Favela that "'the sentencing court was not required to provide separate reasons for the dispositional and durational departures in this instance.'" 259 Kan. at 221. We also noted the trial court did not usurp the powers of the prosecutor by suggesting all the facts showed was in reality an aggravated assault case which is a level 7 felony with a criminal history of H and computes to the 14 months' sentence entered by the trial court. 259 Kan. at 221.
In reviewing the departure sentence, our Favela opinion looked to the six reasons for departure in the defendant's motions and in response to the State's argument of lack of evidence in the record. It concerned a self-serving statement of defense counsel that pointed out the following broad and expansive wording of K.S.A. 21-4716(c): "'oral arguments of either the state or counsel for the defendant'" and "'any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable.'" 259 Kan. at 228. The statute quoted and the Favela wording specifically allow us not only to consider the testimony at trial as well as at the sentencing hearing, but also the oral arguments of counsel for the defendant.
The reasons alleged by Favela were summarized as relating to his age and his immaturity, his prior record, and the fact that his brother had been stabbed, the victim w