State v. Smith

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,245

STATE OF KANSAS,
Appellee,

v.

FRANCIS SMITH,
Appellant.


SYLLABUS BY THE COURT

1.
When considering a challenge to the admission of evidence, the first step is to
determine whether the evidence is relevant. Relevant evidence is evidence having any
tendency in reason to prove any material fact. Relevance is established by a material or
logical connection between the asserted facts and the inference or result they are intended
to establish. Once relevance is established, the second step requires the court to apply the
statutory rules governing admission and exclusion of evidence. These rules are applied
either as a matter of law or in the exercise of the trial court's discretion.

2.
A district court abuses its discretion when: (a) no reasonable person would take
the view adopted by the judge; (b) a ruling is based on an error of law; or (c) substantial
competent evidence does not support a finding of fact on which the exercise of discretion
is based.

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3.
Evidence the defendant possessed legal pornography of any particular sexual
orientation is not probative to rebut or impeach the defendant's claim that he or she does
not actively engage in the particular sexual practice portrayed in the pornography.

4.
Under the nonconstitutional harmless error standard of K.S.A. 60-261, the burden
of demonstrating harmlessness is on the party benefitting from the error. That party must
show there is no reasonable probability the error affected the trial's outcome in light of
the entire record.

5.
A jury instruction directing the jurors that "[y]ou must presume that the defendant
is not guilty until you are convinced from the evidence that [the defendant] is guilty"
should have substituted "unless" for "until." But use of the word "until" was not cause for
reversal.

6.
The district court did not commit error by instructing the jury that "[i]f you have a
reasonable doubt as to the truth of any of the claims required to be proved by the State,
you must find the defendant not guilty. If you have no reasonable doubt as to the truth of
any of the claims required to be proved by the State, you should find the defendant
guilty." While not the preferred instruction, it was legally appropriate.

7.
An illegal sentence is one imposed by a court without jurisdiction; a sentence that
does not conform to the statutory provision, either in character or term of the punishment
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authorized; or a sentence that is ambiguous with regard to time and manner in which it is
to be served.

8.
K.S.A. 22-3717(u) provides that the parole (now prisoner review) board shall
order electronic monitoring as a condition of parole for inmates sentenced to parole for
life.

Appeal from Bourbon District Court; MARK ALAN WARD, judge. Opinion filed June 27, 2014.
Convictions affirmed, sentences vacated in part, and remanded.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Terri L. Johnson, county attorney, argued the cause, and Kristafer R. Ailslieger, deputy solicitor
general, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: Francis Smith directly appeals his convictions of four sex offenses. The
charges stem from an incident during which Smith touched two girls, who were 13 and
15 years old, while photographing them in provocative poses wearing two-piece, bikini-
style bathing suits. Smith orchestrated the photo session and had the teenage girls touch
each other for some of the photographs. He was convicted of two counts of aggravated
indecent liberties with a child and two counts of indecent liberties with a child. A
majority of the court affirms his convictions, but we remand on a sentencing issue.

Smith raises seven issues: (1) whether the trial court erroneously admitted prior
crimes evidence to prove motive and intent; (2) whether the trial court erroneously
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admitted photographs of the covers of pornographic magazines and videos taken from his
house; (3) whether the trial court's jury instruction on burden of proof was clearly
erroneous; (4) whether the sentencing court erroneously used a prior conviction for
multiple sentencing purposes; (5) whether the sentencing court exceeded its authority by
entering orders prohibiting contact with the victims; (6) whether the sentencing court
erroneously ordered lifetime electronic monitoring; and (7) whether the sentencing court
erroneously imposed lifetime postrelease supervision for the off-grid offenses.

FACTUAL AND PROCEDURAL OVERVIEW

Smith was charged with and convicted of two counts of aggravated indecent
liberties with a child against the 13-year-old victim (H.D.) and two counts of indecent
liberties with a child against the 15-year-old victim (M.M.) based on events occurring on
May 20, 2008. That day, H.D. and M.M. skipped school and went to Smith's house.
Smith had become a family friend after meeting H.D.'s father through work. H.D. and her
two older brothers frequently watched movies and played video games at Smith's house.

There is conflicting evidence whether the incident was planned, but Smith took
multiple Polaroid photographs of H.D. and M.M. in their bikini swimsuits, which were
later shown to H.D.'s father, leading to a police investigation. Twenty-four photographs
were admitted into evidence at trial, although some are duplicates. It is necessary to
describe the photos to understand their content and context to the issues discussed.

A few photos are of H.D. and M.M. from the waist up in bikini tops. In the
remaining photos, H.D. and M.M. had removed their pants and are wearing bikini
bottoms. The photos include images of H.D. and M.M. standing with their legs spread
apart; sitting or standing with their arms or legs intertwined while pressing their lips
together or open-mouthed touching tongues; and some show H.D. and M.M. positioned
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with their heads towards a wall while their legs are spread open towards the camera. In
one photo, H.D. and M.M. are on their hands and knees with their legs spread open
towards the camera, their heads turned towards each other with lips pressed together.

A detective interviewed H.D. and M.M. These interviews were recorded and
played for the jury. In her interview, M.M. said Smith had already bought H.D. the bikini
she wore in the photographs and that "Smith told [H.D.] whenever he bought it that he
wanted pictures and [H.D.] said Ok." When asked whether there was anything Smith did
or said that the detective should know about, M.M. said H.D. wanted to wash her hair
before taking the pictures and Smith suggested H.D. shower. When asked what M.M.
thought he meant, M.M. said Smith was not going to leave "[b]ut once we said that we
were just going to wash our hair he said ok I'm going to go to Walgreens." M.M. also said
Smith told them to act like they were kissing and told them "that we were hot a lot." She
explained she and H.D. were "iffy" about the pictures in which Smith had both girls face
the wall so their heads were positioned away from the camera because "he is old and we
are young."

When asked if anything happened besides picture taking, M.M. said Smith would
adjust their bikini bottoms as they were lying on the floor, which she said "would gross
us out" and "it is nasty." When asked whether Smith's hands touched their bottoms, M.M.
said "yes and usually whenever [Smith] would be fixing [H.D.]'s he would pull it up or
whatever and then he would tap her and he'd go back and take a picture."

M.M. also said that after Smith adjusted their swimsuit bottoms for the picture
with them on their hands and knees and their bottoms towards the camera, Smith went
back to take the picture and said, "[Y]eah, [H.D.] knows I like young girls." M.M. told
the detective Smith later took them to Walmart after giving them $50 each. On the way,
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Smith asked the girls if their boyfriends would like the pictures more if they were topless
and offered them $200 to take pictures with their tops off next time.

In her police interview, H.D. said Smith had suggested taking the photographs to
submit to some people in California who could get her and M.M. modeling jobs and that
Smith paid each girl $50 after taking the photographs. H.D. denied Smith touched the
girls during the photo session but amended this statement later at trial and admitted he
had touched them. H.D. said Smith had told her "many times," including "a couple days
ago," that he is "interested in young girls."

After interviewing H.D. and M.M, law enforcement officers went to Smith's
residence. Smith admitted taking pictures of the girls from their waist up but denied
taking the other pictures. He said a lady he did not know, possibly M.M.'s aunt, took the
other photographs. Smith acknowledged he paid the girls $50 but denied the money was
for the photographs. He admitted possessing a set of the photographs but said he had
disposed of those photographs.

Smith consented to a search of his residence, during which officers discovered and
photographed several DVDs and magazines depicting young females in sexual positions
and containing titles such as "Barely Legal," "Teenage Nymphos," "Teach the Young,
Make them Cum," "Just 18," "Just Popped," "Cherry Pop," "Ripe," and "Wild Cherries."
The search also uncovered a DVD entitled "Luxurious," which allegedly depicted a "she-
male." As Smith was being arrested and handcuffed after the search, he said he would not
have engaged in any improper action with the girls because he was gay and liked "he-
shes" or females with male genitalia.

At trial, M.M. testified that Smith began taking the photos in his living room while
she and H.D. were wearing bikini tops and jeans. Smith then proposed they act like they
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were kissing and suggested they take more pictures in an empty bedroom. She said Smith
decided how the girls should pose and instructed them to spread their legs apart. And
when describing how Smith touched the girls, M.M. testified that at various times Smith
"took his finger (indiscernible) [H.D.]'s bottoms and pulled 'em out"; spread their legs
further apart; and spread their legs apart while holding their knees. Discussing the photos
in which the two teenagers were touching, M.M. described how Smith instructed at
different times that she place her leg over H.D.'s, that the girls touch their lips together to
look like they were kissing, or that the girls press their arms together. M.M. testified she
was not sexually aroused by the photos and that it bothered her when Smith touched her
because it was "awkward."

H.D. testified it was Smith's idea to take the pictures and that they had discussed it
beforehand. She also contradicted her earlier statement that Smith did not touch her and
M.M while he took the photographs. She testified Smith adjusted their swimsuit bottoms
and repositioned their legs. When the prosecutor asked, "When you say he adjusted your
bottoms, what part of your swimsuit did he adjust?" H.D. responded, "Around the crotch
area." H.D. said she believed Smith was sexually aroused when the photographs were
taken because of the way he had H.D. and M.M. position themselves. She said Smith told
them not to tell anybody about the photographs; but if anyone asked, they were to say
M.M.'s aunt took the photographs.

H.D. further testified that Smith told her on several occasions he loved her and
was attracted to young girls. She said Smith on an earlier occasion tried to give her a
purple vibrator while she and Smith were alone at his house. She testified Smith said he
did not "know if [H.D.] would appreciate [the vibrator] or not or if [H.D.] would accept
it, but it's worth it." H.D. said she did not accept the vibrator. One of her brothers later
discovered a purple vibrator in Smith's house. Smith also gave H.D. two pair of thong
underwear, which she accepted. She testified Smith gave her the underwear shortly after
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her 13th birthday, explaining that Smith said he "figured since [H.D. was] getting older
[she] would probably be getting into things like that." Her brothers later discovered the
underwear and threw them away.

H.D.'s sister and brother testified about Smith's relationship with H.D. The sister
testified H.D. said she liked going to Smith's house because "he would give her kind of
odd jobs, you know, do the dishes for $20 or . . . he would just give her money a lot."
H.D. testified that Smith would pay her for "[d]oing small chores, like dishes or just
picking up." Smith would also pay H.D.'s brothers money, but H.D. described this as
"[n]ot a lot, to do some outside work once in a while." One of H.D.'s brothers described
Smith as "always kind of flirty after a while" and said Smith "started to get a little bit too
friendly" before he gave H.D. the two thongs.

Smith testified that he took the photographs to give to the girls, who were not
going to see each other over the summer. He denied being sexually aroused while taking
the photographs.

Prior to trial, Smith moved for an order in limine prohibiting admission of any
evidence relating to the pornography discovered at his house, arguing its prejudicial
effect outweighed any probative value. The State argued the pornographic magazines and
videos were relevant to prove Smith's sexual desires, which was an essential element of
the crimes charged. Specifically, the State wanted the evidence to prove Smith was
attracted to young girls to contradict his assertion that he was gay. The district court
denied the motion.

At trial, photographs of the covers of magazine and DVDs were admitted in
conjunction with a detective's testimony about why he took each photograph of this
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material. In the testimony, the detective referenced each publication's title and generally
stated the "woman on the front cover is underdeveloped."

The State filed a pretrial motion to admit Smith's 1993 convictions for aggravated
indecent liberties with a child, aggravated criminal sodomy, and rape. The State argued
these prior crimes were relevant under K.S.A. 60-455 to show motive and intent. At the
hearing on the motion, the State added an argument that the court should follow the
newly amended statute, K.S.A. 2009 Supp. 60-455(d). Smith argued that statute was still
subject to K.S.A. 60-445 constraint in which the value of the prior convictions evidence
was substantially outweighed by the risk of prejudice. In ruling the prior convictions
evidence was admissible, the trial court found the prior convictions both relevant and
probative of intent and motive.

The State's theory for the first aggravated indecent liberties charge was that Smith
"solicited [H.D.] to engage in fondling or touching of the person of another in a lewd
manner, with intent to arouse or satisfy the sexual desires of [H.D.], the defendant or
another." Its theory for the second was that Smith "fondled or touched the person of
[H.D.], in a lewd manner, with intent to arouse or satisfy the sexual desires of either
[H.D.], or the defendant or both." Similarly, the State's theory for the first indecent
liberties charge was that Smith "solicited [M.M.] to engage in lewd fondling or touching
of the person of another with the intent to arouse or to satisfy the sexual desires of
[M.M.], the defendant or another." And the State's theory for the second was that Smith
"fondled or touched the person of [M.M.], in a lewd manner, with intent to arouse or
satisfy the sexual desires of either [M.M.], or the defendant or both." The jury convicted
Smith on all four charges.

The district court imposed a hard 40 life sentence for each aggravated indecent
liberties with a child conviction and ordered they be served consecutively, i.e., Smith
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would not be parole eligible for 80 years. The other two grid-box sentences for indecent
liberties with a child were imposed to run concurrent to each other and to the hard 40
sentences.

Smith timely appealed directly to this court. We have jurisdiction under K.S.A.
22-3601(b)(1) (maximum sentence of life imprisonment imposed for off-grid crime;
appeal docketed prior to July 1, 2011).

PRIOR CRIMES EVIDENCE

Smith begins by challenging the district court's admission into evidence of his
1993 crimes. He argues this prior crimes evidence was not relevant to establish motive
and that, to the extent it was relevant to show his intent, the convictions' remoteness
rendered them more prejudicial than probative. The State counters that the evidence was
properly admitted under K.S.A. 2009 Supp. 60-455(d); the evidence was also admissible
to prove the relevant material issues of motive and intent; and any error in admitting the
prior crimes evidence was harmless.

Standard of Review

Appellate review of a trial court's decision to admit evidence is a two-step process.
First, the appellate court determines whether the evidence is relevant. State v. Phillips,
295 Kan. 929, 947, 287 P.3d 245 (2012). Evidence is relevant if it has a "tendency in
reason to prove any material fact." K.S.A. 60-401(b). "Relevance is established by a
material or logical connection between the asserted facts and the inference or result they
are intended to establish." Phillips, 295 Kan. 929, Syl. ¶ 7. Relevant evidence is both: (1)
material, i.e., the fact has a legitimate and effective bearing on the decision of the case
and is in dispute; and (2) probative, i.e., has "'any tendency in reason to prove'" the fact.
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State v. Boleyn, 297 Kan. 610, 622, 303 P.3d 680 (2013) (quoting State v. Reid, 286 Kan.
494, 505, 186 P.3d 713 [2008]). Materiality is reviewed de novo, while probativity is
reviewed for abuse of discretion. 297 Kan. at 622.

If the evidence is relevant, the court next applies the statutory provisions
governing admission or exclusion of evidence. Phillips, 295 Kan. at 947. "These rules are
applied either as a matter of law or in the exercise of the district court's discretion,
depending on the rule in question." State v. Hughes, 286 Kan. 1010, 1020, 191 P.3d 268
(2008). Whether the probative value of otherwise relevant evidence outweighs its
potential for undue prejudice is reviewed for abuse of discretion. See Phillips, 295 Kan.
at 949; State v. Wilson, 295 Kan. 605, 621, 289 P.3d 1082 (2012).

A district court abuses its discretion when: (1) no reasonable person would take
the view adopted by the judge; (2) a ruling is based on an error of law; or (3) substantial
competent evidence does not support a finding of fact on which the exercise of discretion
is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014). But "[w]hen the
adequacy of the legal basis of a district judge's decision on admission or exclusion of
evidence is questioned, we review the decision de novo." State v. Gunby, 282 Kan. 39,
47-48,144 P.3d 647 (2006).

Analysis

Smith begins his argument by contending "evidence of prior bad acts cannot be
admitted just to show that a defendant has a propensity to commit crimes, but rather, the
prior bad acts must be probative of some other material fact at issue." We are compelled
to point out that in sex crime cases K.S.A. 2009 Supp. 60-455(d) permits admission of
evidence of a defendant's prior sexual misconduct for any relevant and probative matter,
including proving the defendant's propensity to engage in the charged conduct. See State
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v. Bowen, 299 Kan. ___, Syl. ¶ 7, 323 P.3d 853 (2014); State v. Remmert, 298 Kan. 621,
627-28, 316 P.3d 154 (2014) (citing State v. Prine, 297 Kan. 460, Syl. ¶ 3, 303 P.3d 662
[2013] [Prine II]); State v. Spear, 297 Kan. 780, 789, 304 P.3d 1246 (2013); Prine II, 297
Kan. at 476. Nonetheless, because the trial court admitted the evidence for the specific
purpose of proving Smith's intent, we begin by analyzing its ruling on that basis. See
Prine II, 297 Kan. at 479-80 (concluding district court erred in admitting prior sex crime
evidence to prove intent, absence of mistake or accident, or plan).

The evidence was relevant. Each crime charged required the State to prove Smith
acted with the specific intent to arouse or satisfy his own, H.D.'s, or M.M.'s sexual
desires. The charges were based upon his lewd touching of H.D. and M.M. during the
photography session and his directions during the photography session that they lewdly
touch each other.

Smith offered an innocent explanation for his conduct during the photography
session. Accordingly, Smith's intent was a disputed, material fact at issue in the trial. See
State v. Boggs, 287 Kan. 298, 314, 197 P.3d 441 (2008) (intent underlying act critical to
determining its character when act susceptible to both an innocent interpretation and a
criminal one; defendant's proffer of innocent explanation puts intent in dispute). But cf.
State v. Prine, 287 Kan. 713, 727, 200 P.3d 1 (2009) (Prine I) (intent not a disputed fact
in child molestation case when charged acts were criminal in themselves; if crimes
occurred as victim described them, criminal intent would be indisputable). The prior
convictions for sex crimes involving a child had a tendency in reason to prove Smith
committed the acts here with the specific intent to arouse or satisfy his own, H.D.'s, or
M.M.'s sexual desires. That Smith sexually abused a child "in the past, given today's
jurors' common understanding of the psychology of those who commit such crimes,
actually 'shed[s] some light' on the existence of intent in this case." Prine I, 287 Kan. at
726.
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Smith also argues the remoteness of the 15-year-old convictions render them more
unduly prejudicial than probative. But the remoteness of a prior conviction generally
affects the evidence's weight rather than its admissibility. State v. Cross, 216 Kan. 511,
Syl. ¶ 7, 532 P.2d 1357 (1975). This court has stated plainly that "[r]emoteness in time,
standing alone, is insufficient to establish reversible error in the admission of a prior
conviction." State v. Carter, 220 Kan. 16, 20-21, 551 P.2d 821 (1976); see also State v.
Breazeale, 238 Kan. 714, 723, 714 P.2d 1356 (remoteness of 10-year-old convictions
affected weight of prior crimes evidence rather than its admissibility), cert. denied 479
U.S. 846 (1986).

We hold the trial court did not abuse its discretion in finding the scales tipped in
favor of the probative value of this prior crimes evidence. We decline to find error in
admitting the evidence to prove Smith's intent. Accordingly, we need not address Smith's
claim that it was error to admit the evidence to prove motive because error in that regard,
if any, would have been harmless given its admissibility to prove intent. See Prine II, 297
Kan. at 480-81 (error admitting prior sex crime evidence to prove intent harmless when
evidence would have been admissible for another purpose—demonstrating propensity
under K.S.A. 2009 Supp. 60-455[d]).

ADMISSIBILITY OF PORNOGRAPHIC PHOTOGRAPHS

While searching Smith's house, the officers discovered DVDs and magazines in a
closet. The officers photographed the covers of the magazines and DVDs, and the State
presented those photographs at trial. Smith argues the photographs of the covers should
have been excluded.

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Standard of Review

As noted above, we review the district court's decision to admit evidence in two
steps: (1) review of whether the evidence was relevant, assessing materiality de novo and
probativity under an abuse of discretion standard; and (2) review of the application of the
statutory rules governing admission or exclusion of evidence. See Phillips, 295 Kan. at
947. Because it is essential to resolving the claim here, we reiterate that a trial court may
exclude relevant evidence upon finding its probative value is outweighed by its potential
for producing undue prejudice. See K.S.A. 60-445; State v. Leitner, 272 Kan. 398, 415,
34 P.3d 42 (2001). That determination is reviewed for an abuse of discretion. See
Phillips, 295 Kan. at 947; Wilson, 295 Kan. at 621.

Admissibility Analysis

Before trial, Smith filed a motion in limine to exclude the police photographs of
pornographic material found in the residential search, arguing their probative value was
outweighed by their prejudicial effect. At a hearing on the motion, Smith noted law
enforcement officers found the actual material out of plain sight in a bedroom closet; the
material had not been shown to the girls or discussed with them; there was no evidence
the girls had seen the material; and the girls' bikini-clad poses in Smith's photographs did
not replicate or appear to be patterned after poses depicted on the magazine covers. Smith
argued the photographs were irrelevant to the charges against him and would be
extremely prejudicial because the jury might be so offended that it would convict him of
the charged crimes just to punish him for possessing pornography.

The State responded that the pornography was relevant because the State had "to
prove why these pictures [of H.D. and M.M.] were taken." Specifically, the prosecutor
said she would be trying to convince the jury that the pictures "were taken by Mr. Smith
15



for the intent to arouse his sexual desires, or the child's sexual desires." The prosecutor
then pointed out that "in the course of the investigation Mr. Smith claimed he was gay"
and that "he/she's or women with penises, is what aroused him." Therefore, the
prosecutor argued the jury should know what sexual material Smith had in his home to
decide whether "those photographs [of the girls] were taken to appeal to his sexual
desires." The prosecutor argued that if the situation were reversed and the pornography
uncovered in Smith's house had all been "homosexual magazines," then Smith would be
arguing the gay pornography proved he had no heterosexual desire for the girls.

The district court agreed the State needed "to show this intent to arouse" and, upon
the showing at the limine hearing, found the evidence's probative value outweighed its
potential prejudicial effect. But the court cautioned that the evidence might develop
differently at trial, which might prompt a different ruling at that time.

Smith renewed his objection at trial, stating:

"[T]here's comments that the Detective's [sic] made in his report about that the
individuals were—they're illegal or they're underage or they're minors, or makin' any type
of conclusion of the photographs, because there's several of 'em on the covers of the
magazines or the DVD's that simply appear to be younger women with small breasts. I
mean, unless he was present when those photographs were taken, he can't make a
determination whether they're underage or whether the items are illegal or not."

In response, the State argued the photos were relevant to show intent because Smith
repeatedly claimed he was gay and did not like girls. The district court again ruled the
evidence was admissible, while granting defense counsel a standing objection.

The fallacy in the relevancy argument as framed by the State derives from the
prosecutor's fundamental misstatement about what the State had to prove to the jury
16



under what it characterizes in its brief as the unique circumstances of this case. The
prosecutor's declaration that the State had "to prove why these pictures were taken"
certainly advanced the State's argument on the pornography's relevance, but it did not
comport with the manner in which the State was alleging Smith committed the offenses
with which he was charged.

The charging document set forth two ways by which Smith allegedly took
aggravated indecent liberties with the girls, both of which involved fondling or touching.
The prosecution theory on two counts was that when Smith arranged the girls' poses, he
touched them in a lewd manner with the intent to sexually arouse himself or the girls. The
intent to arouse related to Smith's purpose in touching the girls. The second prosecution
theory, applicable to the two counts of indecent liberties, was that when Smith told the
girls to strike provocative poses, he solicited the girls to fondle or touch each other in a
lewd manner with the intent to sexually arouse himself or the girls. Again, the intent to
arouse related to Smith's purpose in directing the girls to touch each other.

Consequently, the act of photographing the girls was not the actus reus of any of
the charged offenses. Rather, all charges emanated from the acts of arranging the poses.
Likewise, the mens rea of the charged offenses required the specific intent to arouse or
satisfy sexual desires be related to the alleged acts of fondling, touching, or soliciting
fondling or touching. Therefore, contrary to the prosecutor's argument for admitting the
pornography, the State did not have to prove the reason Smith took the photographs was
to arouse or satisfy his and/or the girls' sexual desires. Indeed, Smith could have
committed the charged crimes without having any film in his camera. In short, Smith's
motive or purpose for taking photographs was immaterial.

Accordingly, even if Smith's possession of pornography depicting young,
underdeveloped women had some tendency in reason to prove Smith's motive for taking
17



the photographs, that fact was not material and, therefore, not relevant. In addition, the
State mischaracterizes the pornography evidence as being nongraphic and similar to the
pictures taken by Smith. This is not simply true. Some of the pornographic material
admitted into evidence shows genital penetration, while the photos taken of H.D. and
M.M. do not. Also, the pornography evidence includes magazine cover pages with the
provocative written titles of articles inside.

In sum, the disputed material facts were: (1) whether Smith touched the girls in a
lewd manner with the intent to arouse or satisfy his or the girl's sexual desires; and (2)
whether Smith solicited the girls to touch each other in a lewd manner with the intent to
arouse or satisfy his or the girl's sexual desires. The State failed to connect the relevancy
dots between Smith's possession of the pornography admitted into evidence and the
allegations it was seeking to prove.

Likewise, the State's alternate rationale for admitting the pornography—refuting
Smith's declaration that he is gay and did not like girls—is not compelling. Recently, in
Boleyn, 297 Kan. at 621-27, we addressed whether the trial court erred in admitting
homosexual pornography found in the defendant's home for the purpose of impeaching
defendant's declaration that he was not gay. We first noted that "evidence of
homosexuality is generally irrelevant and, thus, inadmissible at a trial involving the
sexual molestation of a child." 297 Kan. at 624.

"'It is no more reasonable to assume that a preference for same gender adult sexual
partners establishes a proclivity for sexual gratification with same gender children than it
is to assume that preference for opposite gender adult sexual partners establishes a
proclivity for sexual gratification with opposite gender children.' State v. Blomquist, 39
Kan. App. 2d 101, Syl. ¶ 2, 178 P.3d 42 (2008)." 297 Kan. at 624.

18



We then discussed that an exception to that general proposition can exist when the
State is offering evidence of the defendant's alleged homosexuality to show the defendant
lied under oath when the defendant testified he or she was not gay. 297 Kan. at 624. "But
we [held] that evidence [the defendant] merely [possessed] homosexual pornography
would not be probative to rebutting or impeaching [the defendant's] claim of not being
gay." 297 Kan. at 626. We found the defendant's possession of homosexual pornography
to be particularly irrelevant in Boleyn because the defendant also possessed heterosexual
pornography. More fundamentally, we cautioned against inferring too much about a
person's actual sexual practices from the pornography he or she possesses, quoting
Weinberg, Williams, Kleiner & Irizarry, Pornography, Normalization, and
Empowerment, 39 Arch. of Sex. Behav. 1389, 1391 (2012):

"'We believe it is unassailable that the central function of pornography is the creation or
enhancement of sexual fantasy and/or arousal. That is, it presents bodies, behaviors, and
situations in a way that is intended to sexually inspire or excite the viewer, regardless of
whether such bodies, behaviors, and situations would be available or even desirable for
the viewer to experience in real life.'" (Emphasis added.) Boleyn, 297 Kan. at 627.

In short, Boleyn held that homosexual pornography discovered in the defendant's
home along with heterosexual pornography was irrelevant and, thus, inadmissible to
prove the defendant lied about being heterosexual, i.e., about not being gay. 297 Kan. at
626-27. In Smith's case, the State seeks a different result for essentially the same
proposition—that heterosexual pornography found in Smith's home was relevant to prove
Smith lied about being gay, i.e., about not being heterosexual.

The State's argument is logically inconsistent with our holding in Boleyn. If
possession of homosexual pornography is not relevant to prove a person's sexual
practices, then possession of heterosexual pornography is likewise not relevant for that
19



purpose. The district court erred in permitting the admission of the pornographic
photographs.

Harmless Error Analysis

Having held it was error to admit the evidence, we must determine next whether
the error was harmless under the statutory, nonconstitutional harmless error rule set out in
K.S.A. 60-261. See 297 Kan. at 627. Under K.S.A. 60-261, this inquiry "requires us to
determine whether there is a reasonable probability that the error affected the outcome of
the trial in light of the entire record." 297 Kan. at 627. The burden of demonstrating
harmlessness under K.S.A. 60-261 is on the party benefiting from the error. State v.
McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).

Notably, the State did little to single out the photographs of the magazine and
DVD covers during its case. The prosecutor mentioned the magazines were found in
Smith's home but were not seen by the victims. The prosecutor said only, "You can look
at the covers and compare them to the photographs taken of the girls. You decide." Later,
the prosecutor referenced the photographs again and said, "He claimed he was gay, but he
had pornographic magazines in his house with titles like 'Pop my Cherry.'"

The only disputed issue in this case was whether the acts were done for the
purpose of arousing or satisfying Smith's sexual desires. The evidence in that regard was
substantial. It included evidence of Smith's prior sexual advances towards H.D.: her
testimony Smith told her he loved her and was attracted to young girls; a detective's
testimony H.D. told him Smith said he "would not make her do anything against her
will"; evidence Smith purchased thong underwear and a vibrator for H.D.; and H.D.'s
brother testifying that Smith "started to get a little bit too friendly" with H.D. and he was
"always kind of flirty after a while."
20




It also included the bulk of the evidence, which centered on what occurred while
Smith was taking the photographs. We start with the content of the Polaroids themselves,
which are strong evidence of Smith's intent when touching or having the girls touch each
other during the picture taking session. And the pictures are of H.D. and M.M. in bikini-
style swimsuits, with the girls striking increasingly sexually provocative poses as the
session progressed. The jury also watched M.M.'s interview with police in which she
described how Smith positioned the girls and encouraged them to "simulate" kissing by
touching their lips and tongues together. M.M. also related how Smith spread their legs
further apart, touched their bottoms when adjusting their swimsuits, and tap H.D.'s
bottom before going back and taking the picture.

Even more damaging was M.M.'s testimony regarding one pose in which Smith
positioned the girls on their hands and knees, with their legs spread apart towards the
camera, and after adjusting their bikini bottoms for this pose, Smith went back to the
camera and said, "[Y]eah, [H.D.] knows I like young girls." Similarly, H.D. testified that
Smith adjusted their swimsuits "[a]round the crotch area" and said she believed Smith
was sexually aroused when taking the pictures because of the way he had the girls pose.
Additional evidence included both H.D. and M.M. testifying that Smith told them not to
tell anyone about the photographs, and M.M. testifying how Smith offered to pay them
$200 to take topless pictures next time.

In addition, the jury heard and saw evidence of Smith's prior crimes—four 1993
convictions that occurred in one case consisting of two aggravated indecent liberties with
a child convictions, one aggravated criminal sodomy conviction, and one rape conviction.
Two of these—the aggravated indecent liberties with a child convictions—were for the
same or similar crimes with which Smith was charged in this case (aggravated indecent
liberties with a child and indecent liberties with a child). And this evidence had to have
21



negatively impacted Smith's credibility, which was at issue because he claimed his
actions during the photography session were innocent.

Taken together, the jury had more than enough evidence to find that Smith
intended to arouse or satisfy his own, H.D.'s, or M.M.'s (or some combination of the
three) sexual desires while touching H.D. and M.M. and directing them to touch each
other during the photo session. In light of the entire trial record, we conclude there is no
reasonable probability the photographs of the pornographic magazine and DVD covers
affected the trial's outcome. See State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012).

We hold the error in admitting photographs of the magazine and DVD covers was
harmless.

REASONABLE DOUBT INSTRUCTION

At trial, the jury was given the following reasonable doubt instruction:

"The State has the burden to prove the defendant guilty. The
defendant is not required to prove he is not guilty. You must presume
that the defendant is not guilty until you are convinced from the evidence
that he is guilty.

"The test you must use in determining whether the defendant is
guilty or not guilty is this:
"If you have a reasonable doubt as to the truth of any of the
claims required to be proved by the State, you must find the defendant
not guilty; or
22



"If you have no reasonable doubt as to the truth of any of the
claims required to be proved by the State, you should find the defendant
guilty." (Emphasis added.)

Smith claims two errors within this instruction require reversal. He argues the use
of the word "until" in the first paragraph was error, and he argues the last two paragraphs
erroneously employed the word "any." As summarized below, this court previously
declined to hold either of the claimed defects amounted to reversible error, and we follow
that precedent again in this case.

Standard of Review

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer,
295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

With regard to the first step, reviewability, Smith did not object to the jury
instruction on either ground. But if after the first step, an appellate court determines the
issue has not been properly preserved, relief may still be granted if the giving or failure to
give an instruction was clearly erroneous. K.S.A. 22-3414(3).

23



"To determine whether an instruction or a failure to give an instruction was
clearly erroneous, the reviewing court must first determine whether there was any error at
all. To make that determination, the appellate court must consider whether the subject
instruction was legally and factually appropriate, employing an unlimited review of the
entire record."

"If the reviewing court determines that the district court erred in giving or failing
to give a challenged instruction, then the clearly erroneous analysis moves to a
reversibility inquiry, wherein the court assesses whether it is firmly convinced that the
jury would have reached a different verdict had the instruction error not occurred. The
party claiming a clearly erroneous instruction maintains the burden to establish the degree
of prejudice necessary for reversal." State v. Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286
P.3d 195 (2012).

A. Use of the word "until" does not create reversible error

Smith claims the following language in the reasonable doubt instruction is
erroneous: "You must presume that the defendant is not guilty until you are convinced
from the evidence that he is guilty."

This same instructional language was issued in State v. Wilkerson, 278 Kan. 147,
158, 91 P.3d 1181 (2004). In that case, Wilkerson objected to the instruction at trial. On
appeal, the court held the instruction "'would have been improved by the substitution of
the word 'unless' for the word 'until.'" 278 Kan. at 158. But the court also held the error
did not require reversal because "[t]he whole of the instructions given in this case, when
read together, accurately stated the law. The jury could not reasonably have been misled
by them, and thus the instructions did not constitute reversible error . . . ." 278 Kan. at
158. This court has continued to adhere to that rule. See State v. Cofield, 288 Kan. 367,
377-78, 203 P.3d 1261 (2009); State v. Anderson, 287 Kan. 325, 342-43, 197 P.3d 409
24



(2008); State v. Davis, 284 Kan. 728, 739, 163 P.3d 1224 (2007) (finding no clear error in
this "oft-made, always rejected" issue).

Smith does not argue the instructions as a whole did not accurately state the law,
and he raises no new arguments as to why the error is clearly erroneous. He appears to
urge the court to find clear error as punishment for trial courts' repeated use of the
instruction despite the caselaw to the contrary. This is not the standard for clear error and
does not serve as a basis for reversal. Smith presents no compelling reason to depart from
this court's precedent. The use of the word "until" was not clear error.

B. The "any" and "any" language is not erroneous

Smith also takes issue with the following language in the reasonable doubt
instruction:

"The test you must use in determining whether the defendant is
guilty or not guilty is this:

"If you have a reasonable doubt as to the truth of any of the
claims required to be proved by the State, you must find the defendant
not guilty; or
"If you have no reasonable doubt as to the truth of any of the
claims required to be proved by the State, you should find the defendant
guilty." (Emphasis added.)

The same "any" and "any" language was challenged in State v. Herbel, 296 Kan.
1101, 1120, 1124, 299 P.3d 292 (2013), which held the instruction was legally
appropriate, although not preferred. See State v. Smyser, 297 Kan. 199, Syl. ¶ 7, 299 P.3d
309 (2013) (same).

25



Smith argues that this language is error by analogy to another reasonable doubt
instruction. In Miller v. State, 298 Kan. 921, 923-930, 318 P.3d 155 (2014), this court
held a district court errs by instructing the jury:

"If you have a reasonable doubt as to the truth of each of the claims required to be proved
by the State, you must find the defendant not guilty. If you have no reasonable doubt as
to the truth of any of the claims required to be proved by the State, you should find the
defendant guilty." (Emphasis added.)

This court held the use of the word "each" in the first sentence of this reasonable
doubt instruction effectively told the jury it may acquit the defendant only if it had a
reasonable doubt as to all of the elements the State was required to prove—rather than
acquitting if it had a reasonable doubt as to any single element. 298 Kan. 921, Syl. ¶ 6.
To support his claim that the instruction was clearly erroneous, Smith relies on language
in the Court of Appeals' decision in Miller v. State, No. 103,915, 2012 WL 401601 (Kan.
App. 2012) (unpublished opinion), aff'd 298 Kan. 921, 318 P.3d 155 (2014), that was
critical of the "any" and "any" reasonable doubt instruction.

But this argument was raised and rejected in Herbel and Smyser. In both cases, we
held that using the words "each" and "any" in the incorrect order in a reasonable doubt
instruction was sufficiently different than the "any" and "any" instruction to preclude an
analytical comparison. Smyser, 297 Kan. at 205-06; Herbel, 296 Kan. at 1122. Consistent
with Herbel and Smyser, we hold the reasonable doubt instruction issued at Smith's trial
was legally appropriate and not clearly erroneous.

26



CRIMINAL HISTORY SCORE

Smith argues his 272-month sentence imposed for Count III, indecent liberties
with a child, is illegal because a prior conviction that had already been considered was
used to enhance his criminal history score, in violation of K.S.A. 21-4710(d)(11). He
seeks remand for resentencing. The State concedes the error but disagrees that remand is
the appropriate remedy. The State argues the error is harmless because the sentence runs
concurrent to the 80-year-to-life aggregate sentence imposed for his aggravated indecent
liberties with a child convictions in Counts I and II. Smith does not address the State's
harmless error analysis.

Standard of Review

"'The question of whether a sentence is illegal is a question of law over which this court
has unlimited review. An illegal sentence is a sentence imposed by a court without
jurisdiction, a sentence which does not conform to the statutory provision, either in
character or the term of the punishment authorized, or a sentence which is ambiguous
with regard to the time and manner in which it is to be served.' [Citation omitted.]" State
v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).

Error Analysis

Smith alleges his sentence violates K.S.A. 21-4710(d)(11), which states:

"Prior convictions of any crime shall not be counted in determining the criminal
history category if they enhance the severity level or applicable penalties, elevate the
classification from misdemeanor to felony, or are elements of the present crime of
conviction. Except as otherwise provided, all other prior convictions will be considered
and scored."

27



Some additional facts are necessary to appreciate the issue. As stated earlier,
Smith had four prior sex offense convictions: two for aggravated indecent liberties with a
child; one for aggravated criminal sodomy; and one for rape. Each prior conviction was
classified as a person felony for criminal history purposes. In this case, Smith's two
aggravated indecent liberties with a child convictions are Jessica's Law offenses under
K.S.A. 21-4643(a)(1)(C). Generally, those convictions carry life sentences with
mandatory minimum prison terms of not less than 25 years. K.S.A. 21-4643(a)(1).

But Smith was sentenced under K.S.A. 21-4643(b)(1) to life imprisonment with a
mandatory minimum of 40 years for each aggravated indecent liberties conviction
because he had previously been convicted of a crime listed in K.S.A. 21-4643(a)(1). The
district court did not specify which prior convictions were used to impose the hard 40
sentences. See LaBelle, 290 Kan. at 538 ("[C]ourts are not required to specify at
sentencing how particular convictions or adjudications are used. . . . [But] we hold that
the preferred judicial practice is to put on the record the specific use for each conviction
or adjudication . . . .").

The district court also ordered the hard 40 sentences to run consecutively,
resulting in a mandatory minimum of 80 years' imprisonment. Smith is not contesting the
district court's authority to enter the hard 40 sentences on Counts I and II. But he argues
the process used to arrive at the sentences is relevant to his sentencing challenge on
Count III because using two prior convictions to impose them precluded the court from
using those priors again when calculating Smith's criminal history score on Count III.
Smith is correct. Imposing the hard 40 sentences left only two prior convictions available
for calculating the sentence for Count III.

One of Smith's remaining prior convictions was used to qualify him as a persistent
sex offender, requiring the district court to double his gridblock sentences on both
28



indecent liberties with a child convictions under K.S.A. 21-4704(j). Using that prior
conviction to classify Smith as a persistent sex offender precluded using it to calculate
Smith's criminal history score. See State v. Moore, 274 Kan. 639, 651, 55 P.3d 903
(2002) (district court erred in failing to remove prior conviction from criminal history
after using it to classify defendant as a persistent sex offender). So Smith had only one
prior adult person felony conviction available for use in calculating his criminal history
score when sentencing him for the indecent liberties with a child conviction in Count III.

But Smith received an "A" criminal history classification, meaning Smith's
criminal history included three or more adult convictions for person felonies. See K.S.A.
21-4709. This resulted in the 272-month sentence Smith now challenges. The State
concedes that this was error, and we agree.

The only remaining question is the appropriate remedy, if any. The State argues
the error was harmless because Smith's sentence on Count III runs concurrent to his 80-
year minimum aggregate life sentence for the aggravated indecent liberties with a child
convictions. In other words, as a practical matter, Smith will be serving those sentences
long after he completes the concurrent sentence for indecent liberties with a child
imposed under Count III.

Prejudice Analysis

The State argues remand is not required based on State v. Riley, 259 Kan. 774,
778, 915 P.2d 774 (1996). There, the defendant was convicted of three offenses and the
sentences were ordered to run concurrently. The court held that the district court properly
calculated the defendant's sentence for the primary crime, which in that case was the
conviction for which the longest sentence was imposed. But it improperly computed the
29



sentences for the other two crimes, so the court concluded remand for resentencing was
unnecessary because the defendant was not prejudiced by the error. 259 Kan. at 780.

The prejudice requirement announced in Riley that precluded remand has been
followed in multiple conviction cases for erroneous nonbase sentences that run
concurrent to controlling base sentences for primary offenses. See, e.g., State v. Bolin,
266 Kan. 18, 25, 968 P.2d 1104 (1998) (declining to remand defendant's multiple
conviction cases for resentencing when sentences for nonbase crimes were erroneous but
sentences for primary crimes were both controlling and correctly calculated). But these
cases do not specifically address whether a defendant is required to show prejudice by
specifically addressing whether an illegal sentence claim is subject to a harmless error
analysis.

"An 'illegal sentence' is: (1) a sentence imposed by a court without jurisdiction;
(2) a sentence that does not conform to the applicable statutory provision, either in
character or the term of authorized punishment; or (3) a sentence that is ambiguous with
respect to the time and manner in which it is to be served." State v. Taylor, 299 Kan. 5, 8,
319 P.3d 1256 (2014). This court has held that a violation of K.S.A. 21-4710(d)(11)
renders a sentence illegal. See LaBelle, 290 Kan. at 534. Illegal sentences, or sentences
imposed without the trial court's jurisdiction, are void. See State v. McCarley, 287 Kan.
167, 175, 195 P.3d 230 (2008). Finally, appellate courts have a clear duty to set aside
void sentences and impose valid ones. See Chambers v. State, 199 Kan. 483, 485, 430
P.2d 241 (1967).

We hold that remand for resentencing on Count III is required even though it will
not affect the time Smith ultimately serves.

30



NO-CONTACT ORDER

At sentencing, the trial court ordered that Smith not have contact with the victims
or the victims' families. On appeal, Smith argues the trial court lacked authority to
impose a no-contact order, and the State concedes it was improper. We agree. See State v.
Bowen, 299 Kan. ___, 323 P.3d 853, 867 (2014); State v. Plotner, 290 Kan. 774, 781, 235
P.3d 417 (2010); State v. Post, 279 Kan. 664, 665-69, 112 P.3d 116 (2005). In those
cases, the appropriate remedy was to vacate the no-contact order but leave the remainder
of the sentence intact. See Bowen, 323 P.3d at 867. Because the no-contact order was
illegal, we must vacate that portion of Smith's sentence.

LIFETIME ELECTRONIC MONITORING SENTENCE

It is unclear from the sentencing hearing transcript whether the trial court ordered
lifetime electronic monitoring at that hearing. It appears the issue was raised by the State,
but the transcript recites that the trial court's response was inaudible. The parties agree
that lifetime electronic monitoring was ordered at sentencing; so we accept their joint
representations.

The State correctly concedes that lifetime electronic monitoring was improper
under State v. Jolly, 291 Kan. 842, 848, 249 P.3d 421 (2011). In Jolly, this court held
K.S.A. 22-3717(u) "plainly states that the parole board shall order electronic monitoring
as a condition of parole." 291 Kan. at 848. We likewise hold it was improper for the trial
court to sentence Smith to lifetime electronic monitoring, and we vacate that portion of
his sentence.

31



LIFETIME POSTRELEASE SUPERVISION SENTENCE

In his last sentencing challenge, Smith argues the district court erred by sentencing
him to lifetime postrelease supervision instead of parole. The sentencing transcript simply
states the court "will order a post-release provision of life" without discussing to which
counts the postrelease order was attached. And the sentencing journal entry lists lifetime
postrelease supervision for all four crimes of conviction. This is pertinent because only
two of those sentences—the aggravated indecent liberties convictions in Counts I and
II—carried indeterminate life sentences. The two convictions for indecent liberties with a
child in Counts III and IV are grid offenses. The State concedes the district court erred by
imposing lifetime postrelease supervision without distinguishing between the aggravated
indecent liberties with a child and indecent liberties with a child sentences.

Both parties are correct that lifetime postrelease supervision cannot be imposed in
conjunction with an indeterminate life sentence. In State v. Harsh, 293 Kan. 585, 265
P.3d 1161 (2011), this court held that there is a distinction between lifetime parole and
lifetime postrelease supervision. And an inmate sentenced to life imprisonment for crimes
occurring after July 1, 2006, under Jessica's Law, K.S.A. 21-4643, is parole eligible after
serving the mandatory minimum sentence. 293 Kan. at 589-90 (citing K.S.A. 2006 Supp.
22-3717[b][5] and [u]). For Counts I and II, Smith was similarly sentenced to life
imprisonment for two Jessica's Law offenses. The district court erred by imposing
lifetime postrelease supervision for these counts, and we vacate that portion of Smith's
sentence.

As we held in Harsh, parole is separate and distinct from the sentence and will be
granted, if at all, by the Kansas Prisoner Review Board (successor to the Kansas Parole
Board). The proper remedy is simply to vacate the lifetime postrelease supervision
imposed on Counts I and II. See 293 Kan. at 590.
32




* * *

JOHNSON, J., dissenting: I disagree with the majority's conclusion that "there is no
reasonable probability the photographs of the pornographic magazine and DVD covers
affected the trial's outcome." In assessing whether the State has met its burden of proving
harmless error, we must evaluate the error "in light of the entire record." State v. Ward,
292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Here, the entire record before us reveals that the State used the erroneously
admitted evidence to entice the jury to convict Smith based upon facts that were not
relevant to the stated elements of the charged crimes. Without the distraction of deciding
Smith's motive and intent in taking the photographs or considering the pornographic
nature of the images depicted in the photographs, one or more rational jurors could
reasonably have decided that Smith touched the girls and directed the girls to touch each
other for the purpose of setting the scene to be photographed. That would not have
constituted the lewd touching with intent to arouse or satisfy sexual desires required by
the charging document, even if we all believe that Smith intended to subsequently use the
resulting photographs as pornography for his sexual arousal or satisfaction. That distinct
probability belies harmless error; just one not guilty vote would have affected the trial's
outcome.

The majority acknowledges that the State misunderstood what it had to prove to
the jury. Indeed, it recites examples of the prosecutor's legally incorrect and potentially
confusing arguments to the jury, e.g., that the jury could decide the case by comparing
the girls' photographs to the pornography photographs or by deciding that Smith was not
gay. Of course, Smith's being aroused by looking at the provocative photographs or even
his being aroused by looking at the underage girls as they posed according to his
33



directions did not make him guilty of lewd touching with an intent to arouse. It is
unfathomable to me that an appellate court would affirm a conviction for lewd touching,
which resulted in an 80-year prison sentence, when the State prosecuted the defendant on
the basis that his prurient motive for photographing underage girls in bathing suits
established his guilt.

It is likewise curious to me that the majority fails to hold the State accountable for
continuing its meritless arguments on appeal. For instance, in the section of its initial
appellate brief arguing that Smith's prior convictions were relevant to this prosecution,
the State asserts that Smith's "motive in taking the pictures was an issue"; that "[t]he
relevant question [was] why did he take the pictures"; and, finally, that "[b]ecause the
State must prove that [Smith] took the photographs with the 'intent to arouse,' evidence as
to the reason why [Smith] took the photographs is material, relevant, and probative."
Then, in arguing the relevance of the pornography photographs, the State again ignores
that the gravamen of the charged offenses is lewd touching, not photography or even
lusting after young girls. There, the State declares that "because the [S]tate must prove
that the photos of the victims were taken with the intent to arouse the sexual desires, Mr.
Smith's sexual desires come into play." Additionally, the State claimed that "the
pornographic photos [were] admitted for the purpose of countering the statement that
[Smith] was gay and didn't like girls."

This court has declared that a party is not permitted to change its theory on appeal.
See Burcham v. Unison Bancorp, Inc., 276 Kan. 393, Syl. ¶ 7, 77 P.3d 130 (2003). Yet,
the majority apparently finds it permissible for this court to sua sponte change the theory
of prosecution on appeal in order to save the State's erroneously obtained convictions.
There is nothing fundamentally fair about that.

34



Moreover, most of the evidence the majority relies upon to find harmlessness
actually just supports the State's theory that Smith took the photographs to use for his
sexual arousal and satisfaction, rather than being probative on the disputed issue of
whether Smith only touched the girls to arrange their poses. See State v. Boleyn, 297 Kan.
610, Syl. ¶ 1, 303 P.3d 680 (2013) ("Evidence is probative if it has any tendency in
reason to prove a fact."). For example, Smith's statement while at the camera that "yeah,
[H.D.] knows I like young girls" simply explains why he was placing the girls in
provocative poses and photographing them. If he wanted to immediately satisfy his
sexual desires through his touching, one would have expected him to do so in a less
innocuous fashion. There was scant actual evidence that had any tendency in reason to
prove Smith touched the girls in a lewd manner or that the touching was done with an
intent to arouse or satisfy sexual desires. To get the convictions, the State had to tie the
inadmissible pornography and the irrelevant arguments on sexual orientation to the
immaterial act of photographing the girls in bikinis striking provocative poses. Proving
that the defendant performed reprehensible acts is not the same as proving that the
defendant performed the charged criminal acts.

In short, I would reverse and make the State try to convict Smith based upon acts
that are actually elements of the crimes with which he is charged.

LUCKERT and BEIER, JJ., join in the foregoing dissenting opinion.