State v. Smyser

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,077

STATE OF KANSAS,
Appellee,

v.

ROBERT F. SMYSER,
Appellant.


SYLLABUS BY THE COURT

1.
Aggravated criminal sodomy is defined by K.S.A. 21-3506(a)(1) as sodomy with a
child who is under 14 years of age. "'Sodomy' means oral contact or oral penetration of
the female genitalia or oral contact of the male genitalia; anal penetration, however slight,
of a male or female by any body part or object; or oral or anal copulation or sexual
intercourse between a person and an animal." K.S.A. 21-3501(2).

2.
The actus reus of aggravated criminal sodomy under K.S.A. 21-3506(a)(1) is the
defendant's act of sodomy with a child who is under 14 years of age. The definition in
K.S.A. 21-3501(2) creates three alternative means of committing sodomy: (a) oral
contact, (b) anal penetration, and (c) sexual intercourse with an animal.

3.
Within the second alternative means of committing sodomy, i.e., anal penetration,
the definition in K.S.A. 21-3501(2) only presents options within the means, that is,
various factual circumstances that would prove the crime.
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4.
For jury instruction issues, the analytical progression and corresponding standards
of review on appeal are: (a) First, the appellate court considers reviewability of the issue
from both jurisdiction and preservation viewpoints, exercising an unlimited standard of
review; (b) next, the court uses an unlimited review to determine whether the instruction
was legally appropriate; (c) then, the court determines whether there was sufficient
evidence, viewed in the light most favorable to the party requesting the instruction, that
would have supported it; and (d) finally, if the district court erred, the appellate court
must determine whether the error was harmless, using the test, degree of certainty, and
analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶ ¶ 5-6, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).

5.
K.S.A. 22-3414(3) establishes a preservation rule for jury instruction claims on
appeal. It provides that no party may assign as error a district court's giving or failure to
give a particular jury instruction, including a lesser included crime instruction, unless:
(a) that party objects before the jury retires to consider its verdict, stating distinctly the
matter to which the party objects and the grounds for objection; or (b) the instruction or
the failure to give the instruction is clearly erroneous.

6.
To determine whether an instruction or a failure to give an instruction was clearly
erroneous, the appellate 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.


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7.
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.

Appeal from Marion District Court; MICHAEL F. POWERS, judge. Opinion filed April 26, 2013.
Affirmed in part, vacated in part, and remanded with directions.

Meryl Carver-Allmond, of Capital Appellate Defender Office, was on the briefs for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, were on the
briefs for appellee.

The opinion of the court was delivered by

BILES, J.: Robert F. Smyser appeals his conviction for aggravated criminal
sodomy. He asserts four issues: (1) an alternative means argument based upon K.S.A.
21-3501(2), which is the statutory definition for criminal sodomy; (2) whether a jury
instruction incorrectly recited the State's burden of proof; (3) whether the sentencing
court erred by imposing electronic monitoring and an order for no contact with the
victim; and (4) whether the sentencing court erred in imposing BIDS attorney fees
without considering Smyser's ability to pay. We affirm Smyser's conviction. We remand
the BIDS portion of Smyser's sentence to the district court for additional findings and
vacate the electronic monitoring and no contact conditions.

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FACTUAL AND PROCEDURAL BACKGROUND

The facts necessary to consider the arguments on appeal may be briefly stated.
Smyser was charged with the April 2008 aggravated criminal sodomy of his 7-year old
stepdaughter, K.S.

At trial, K.S.'s mother testified that K.S. told her Smyser—whom K.S. referred to
as "daddy"—had slept with her the night before, rubbed lotion on her bottom, and wiped
it off with a washcloth. After noticing K.S.'s bottom was red and had tears around the
rectum, the mother took K.S. to the hospital. An investigating officer who met with K.S.
testified the girl told him her "daddy slept with her, put lotion on her butt, put a blanket
over her head to keep her quiet," and "put his private part in her butt."

A sexual assault nurse examiner performed a SANE/SART exam and testified at
trial. The nurse described how K.S. told her that the night before the exam, when K.S.'s
mother and brothers were sleeping, her dad woke her up, and was "checking my bottom
with his wiener. He was touching me with it on my bottom." The nurse testified that
during the exam she did not find any injury to the child's vagina but found fresh injuries,
including multiple tears, to her anus. The nurse said she concluded these injuries were
consistent with anal penetration.

K.S. also testified at trial, describing how Smyser "put his penis into my penis, and
then he put his penis in my bottom." When asked, K.S. said she knew what her vagina
was and that it was different from her bottom.

Smyser did not testify. The jury found him guilty of aggravated criminal sodomy.
He filed a timely notice of appeal. This court's jurisdiction is proper under K.S.A. 22-
3601(b)(1) (off-grid crime; life sentence).
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ALTERNATIVE MEANS

Smyser argues that because aggravated criminal sodomy, as charged and
instructed in his case, could be committed by (1) anal penetration by a body part or (2)
anal penetration by an object, an alternative means issue is presented. See K.S.A. 21-
3501(2). He asserts there was insufficient evidence to prove penetration by an object, so
he was denied his statutory right to a unanimous jury verdict under K.S.A. 22-3421.

This court addressed, and rejected, an identical argument in State v. Burns, 295
Kan. 951, 963-64, 287 P.3d 261 (2012). In that case, we held that the anal penetration
charged, which was based upon the definition in K.S.A. 21-3501(2), only presents
options within a means—that is, various factual circumstances that would prove the
crime without creating an alternative means problem. 295 Kan. at 964. The jury in
Smyser's case was instructed that Smyser was charged with aggravated criminal sodomy
and was given the elements the State needed to prove to establish that crime. The
applicable instruction read:

"The defendant is charged with aggravated criminal sodomy. The defendant pleads not
guilty.

"To establish this charge, each of the following claims must be proved:

"1. That the defendant engaged in sodomy with a child, to wit: [K.S.], who was under 14
years of age; and

"2. That the defendant was at least 18 years of age when the act of sodomy occurred; and

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"3. That the act occurred on or between the 4th day of April, 2008, and the 7th day of
April, 2008, in Marion County, Kansas.

"Sodomy means anal penetration, however slight, of a male or female by any body part
or object." (Emphasis added.)

Aggravated criminal sodomy is defined by K.S.A. 21-3506(a)(1) as sodomy with a
child who is under 14 years of age. The definition of sodomy in K.S.A. 21-3501(2)
provides that sodomy "means oral contact or oral penetration of the female genitalia or
oral contact of the male genitalia; anal penetration, however slight, of a male or female
by any body part or object; or oral or anal copulation or sexual intercourse between a
person and an animal." (Emphasis added.) The defendant in Burns was charged under the
same statutes as Smyser. In Burns, we rejected the alternative means argument and
explained:

"[E]ach act described within the definition of sodomy is separate and distinct from the
other—the acts are factually different from one another, and one act is not inclusive of
the others. Furthermore, each act is separated by a semicolon, which suggests that the
legislature intended for each act to constitute a specific means of completing the general
act of sodomy.

"The actus reus of aggravated criminal sodomy under K.S.A. 21-3506(a)(1) is
the defendant's act of sodomy with a child who is under 14 years of age. The definition in
K.S.A. 21-3501(2) creates three alternative means of committing sodomy, but within the
second alternative means, the anal penetration charged here, the definition only presents
'options within a means,' that is, various factual circumstances that would prove the
crime.

"In the phrase 'anal penetration, however slight, of a male or female by any body
part or object,' the legislature did not define two or more distinct actus reus for this
crime. The language on which Burns focuses, 'by any body part or object,' merely
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describes different factual circumstances by which a defendant might perpetrate the
required anal penetration. The inclusion of 'by any body part or object' does not state
material elements of sodomy but merely gives a full description of one of the means of
committing sodomy; thus, it does not establish two alternative means of committing anal
sodomy. Instead, the phrase only establishes one means of committing sodomy—anal
penetration. The language 'by any body part or object' does not establish alternative
means, but options within a means. Therefore, the inclusion of this language in the jury
instructions does not make this an alternative means case and does not trigger concerns of
jury unanimity." 295 Kan. at 963-64.

Smyser concedes in his appellate brief that there was evidence of anal penetration
by a body part to support his conviction absent the acceptance of his alternative means
argument. As a result, Smyser is not entitled to reversal of his convictions for aggravated
criminal sodomy based on this argument.

REASONABLE DOUBT JURY INSTRUCTION

Smyser filed a supplemental brief arguing for the first time on appeal that the
district court erred by providing the jury with an instruction that he claims lowered the
State's burden of proof. Smyser asserts this resulted in structural error, relying on the
Court of Appeals opinion in Miller v. State, No. 103,915, 2012 WL 401601 (Kan. App.
2012) (unpublished opinion), rev. granted March 4, 2013, to support this position.

Standard of Review

This court recently explained the analytical framework for instructional issues and
the corresponding standards 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
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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).

A party cannot claim error for the district court's giving or failing to give a jury
instruction unless (1) that party objects before the jury retires to consider its verdict,
stating distinctly the matter to which the party objects and the grounds for objection; or
(2) the instruction or the failure to give the instruction is clearly erroneous. If an
instruction is clearly erroneous, appellate review is not predicated upon an objection to
the trial court. State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012), accord
K.S.A. 22-3414(3).

Smyser concedes he did not object to the challenged instruction at trial, so we
determine whether the challenged instruction was clearly erroneous using a two-step
process. First, the appellate court must "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." Williams, 295 Kan. 506, Syl. ¶ 4. If the court finds error, it moves to the second
step and "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." Williams, 295 Kan. 506, Syl. ¶ 5.

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The challenged instruction in Smyser's case was identical to the pre-2004 PIK
instruction amendment. See PIK Crim. 3d 52.02 (1999 Supp.). It stated:

"The State has the burden to prove the defendant is guilty. The defendant is not
required to prove he is not guilty. You must presume that he is not guilty unless 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. 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.)

Smyser claims this instruction is erroneous because the use of the word
"any" in the final sentence of the instruction communicated to the jury that it could
find Smyser guilty by only finding proof beyond a reasonable doubt of only one of
the claims required to be proved by the State. In other words, Smyser argues he
should have been given the standard instruction recommended at the time of his
trial under PIK Crim. 3d 52.02.

We recently considered this identical argument in State v. Herbel, No. 103,558,
2013 WL 1365348, (April 5, 2013). In that case, we determined that the same instruction,
although not the preferred instruction, was legally appropriate. Herbel, 2013 WL
1365348, at *17. The same is true in Smyser's case.

In Herbel, we rejected the defendant's attempt to compare the instruction language
from Miller with the instruction provided at his trial. In Miller, the trial court transposed
the words "each" and "any" in giving a jury instruction based on the current version of
PIK Crim. 3d 52.02. The instruction in Herbel used "any" in both instances in the
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instruction. We determined these instructions differed sufficiently and that Miller did not
provide an appropriate analytical comparison. Herbel, 2013 WL 1365348, at *16.

Instead, the Herbel court adopted the reasoning employed in State v. Beck, 32
Kan. App. 2d 784, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). In Beck, the defendant
objected at trial to the instruction contained in the then-recommended PIK Crim. 3d
52.02, which used the word "any" in the final sentence of the instruction, claiming it
created ambiguity or could result in a conviction when only one element of the crime
needed to be proved by the State. The Beck panel rejected the argument that the use of
"any" in the context of the instruction "could somehow create ambiguity or result in Beck
being convicted if only one element of the crime is proven." 32 Kan. App. 2d at 787. The
panel further noted that any possible confusion was eliminated by the elements
instruction that provided: "To establish this charge, each of the following claims must be
proved." (Emphasis added.) 32 Kan. App. 2d at 787-88.

Similarly, at Smyser's trial the aggravated criminal sodomy instruction began: "To
establish this charge, each of the following claims must be proved:" (Emphasis added.) In
keeping with Beck and Herbel, we hold that any possible confusion suggested by Smyser
was eliminated by this introductory statement in the aggravated criminal sodomy
elements instruction.

Our court's adoption of the Beck analysis in Herbel as to this issue resolves it
against Smyser. We hold the reasonable doubt jury instruction was legally appropriate
and not error.
SENTENCING ISSUES

Smyser next raises two sentencing issues, both of which the State does not dispute.
First, at the sentencing hearing, the district court imposed several conditions on Smyser's
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sentence, including that he be subject to electronic monitoring and have no contact with
the victim. But this court has previously held that electronic monitoring and no-contact
orders are not among the permitted dispositions. State v. Beaman, 295 Kan. 853, 870, 286
P.3d 876 (2012); State v. Plotner, 290 Kan. 774, 781-82, 235 P.3d 417 (2010). Likewise,
a district court may not impose a no-contact order as part of sentencing, and doing so
constitutes an illegal sentence. Plotner, 290 Kan. at 782. Accordingly, these portions of
Smyser's sentence should be vacated. See 290 Kan. at 782.

Second, the district court imposed $500 in BIDS attorney fees without properly
considering Smyser's ability to pay. At the time of Smyser's sentencing, BIDS fees were
controlled by K.S.A. 21-4603d. District court judges have discretion in determining the
amount of BIDS fees a defendant is assessed, along with discretion to waive part of or all
of the fees. State v. Phillips, 289 Kan. 28, 42, 210 P.3d 93 (2009). But the court should
consider the fees at the time it makes the assessment and must state on the record the
factors it weighed in making its decision. State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132
P.3d 934 (2006).

In this case, the district court did not weigh any reasons for assigning Smyser's
BIDS fees on the record. It simply stated:

"The Court will assess to him, knowing that it's unlikely he's going to have the ability to
pay this, but since we don't know what the future may bring, I think it is appropriate to
assess the court costs in this matter, of $173, the . . . KBI DNA . . . database fee of $100;
the BIDS fee of $100, along with the surcharge. Uh, at the request of the State, I will
assess the $100 Child . . . Advocacy Center fee.

"With regard to attorney's fees, I'm going to assess a token amount, Mr. [defense
attorney], of $500, knowing full well that that's not even close to what . . . your fee will
be, uh, and not to speak to what you will actually be paid. Uh, but in the event that there
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should be some resources available, at least that would be $500 reimbursement to the
State."

This court has held that because BIDS fees are not punitive or part of a sentence,
the issue can be remanded to the district court for further findings in cases when the
district court ordered BIDS attorney fees without considering the defendant's financial
resources or the burden the payment would impose. Phillips, 289 Kan. at 43 (citing other
cases in which this court remanded, including State v. Johnson, 286 Kan. 824, 852, 190
P.3d 207 [2008]; State v. Stevens, 285 Kan. 307, 330-31, 172 P.3d 570 [2007]).

Because the district court did not make proper findings when assessing Smyser's
BIDS fees, the fee order is vacated and the issue is remanded to the district court for
consideration of Smyser's financial situation and the burden payment would impose. See
289 Kan. at 43.

Affirmed in part, vacated in part, and remanded with directions.