State v. Spear

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,206

STATE OF KANSAS,
Appellee,

v.

EDWARD SPEAR, III,
Appellant.


SYLLABUS BY THE COURT


1.
K.S.A. 2012 Supp. 60-455(d) states an exception to the general rule in K.S.A.
2012 Supp. 60-455(a) prohibiting the admission of other crimes or civil wrongs evidence
for the purpose of proving a propensity to commit a crime. In sex crime prosecutions,
K.S.A. 2012 Supp. 60-455(d) explicitly allows evidence of other acts or offenses of
sexual misconduct to show a propensity and any other matter to which it is relevant and
probative.

2.
In this case, even if the trial judge erred in admitting evidence of uncharged sex
crimes committed by the defendant against the victim, because K.S.A. 2012 Supp. 60-
455(d) would permit admission of the same evidence on retrial to demonstrate the
defendant's propensity to commit the charged crimes, his convictions are not reversible.
There has been no error affecting substantial rights under K.S.A. 60-261.

3.
2

For generic evidence—that is, evidence that outlines a series of undifferentiated
incidents, each of which could support a separate criminal sanction—to be sufficient to
support a conviction on one or more counts, the evidence must: (1) describe the kind of
act or acts committed with sufficient specificity to assure that unlawful conduct has
occurred and to differentiate between various types of proscribed conduct; (2) describe
the number of acts committed with sufficient certainty to support each of the counts
alleged; and (3) establish the general time period in which these acts occurred. Additional
details regarding the times, places, and circumstances of various incidents may assist in
assessing the credibility of the victim's testimony and the State's case, but are not
essential to sustain a conviction.

4.
Under the factors stated in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978),
for determining whether a sentence violates § 9 of the Kansas Constitution Bill of Rights,
a life sentence with a mandatory minimum sentence of 620 months' imprisonment for
committing the crime of aggravated indecent liberties with an 8-year-old child is not a
cruel or unusual punishment where the defendant violated a position of trust, the
defendant committed the offense on multiple occasions, there was evidence of
psychological harm to the victim, the defendant had a significant criminal history, and the
punishment is proportionate to the punishment for other serious crimes in Kansas. This is
true even though the punishment is harsher than that imposed in most other states for the
same crime.

5.
An inmate who has received an off-grid indeterminate life sentence can leave
prison only if the Kansas Prisoner Review Board grants the inmate parole. Therefore, a
sentencing court has no authority to order a term of lifetime postrelease supervision in
conjunction with an off-grid indeterminate life sentence.

3

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed July 5, 2013.
Convictions affirmed in part and reversed in part, and sentences affirmed in part and vacated in part.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause, and was on the brief for
appellant.

Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: A jury convicted Edward Spear, III, of six counts of aggravated
indecent liberties with a child and acquitted him of four counts of aggravated indecent
liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). On appeal, he attacks his
convictions on several grounds, arguing: (1) The trial court erred in admitting evidence
of Spear's prior acts of sexual misconduct for the purpose of proving intent and absence
of mistake or accident; (2) in the alternative, the State failed to present sufficient
evidence to support four of his six convictions of aggravated indecent liberties with a
child; (3) his life sentence with a mandatory minimum sentence of 620 months'
imprisonment violates § 9 of the Kansas Constitution Bill of Rights; and (4) the
sentencing court erred in imposing lifetime postrelease supervision rather than parole.

We conclude any error in the admission of evidence of Spear's prior sexual
misconduct did not affect his substantial rights under K.S.A. 60-261 and, therefore, does
not warrant reversal. We agree, however, with Spear's argument that there is not
sufficient evidence to support four of his six convictions of aggravated indecent liberties
with a child; consequently, we reverse those four convictions. We further hold that his
life sentences for the remaining two convictions of indecent liberties with a child do not
violate § 9 of the Kansas Constitution Bill of Rights, but the sentencing court erred in
imposing lifetime postrelease supervision rather than parole.
4


FACTS AND PROCEDURAL BACKGROUND

In 2002, when L.S. was 3 years old, L.S.'s mother, M.S., married Joey Spear. Joey
had two brothers, Skyler Spear and Edward Spear (Spear), the defendant. Two years after
their marriage, M.S. and Joey divorced, and M.S. began living with Skyler. The couple
lived at various locations in Hutchinson and McPherson until Skyler was imprisoned.

In March 2006, M.S. and L.S. moved to Hutchinson, which is in Reno County, to
live with friends. While there, L.S., who was 7 years of age at the time, told one of the
friends that Spear had inappropriately touched her. This led to M.S. making a report to
Officer Matthew Neal of the Hutchinson Police Department. M.S. repeated L.S.'s
statement to her that Spear had touched L.S.'s "pee pee" when Spear and L.S. had been
alone in a car.

Officer Neal then interviewed L.S., who told him her "Uncle Ed" touched her "pee
pee" when she was left alone in a car with him. She also said that Uncle Ed told her not to
tell anyone or he would hurt her. Neal determined this incident likely happened in
McPherson County.

McPherson Police Department Detective Mark Brinck was contacted to take over
the investigation. Brinck conducted a videotaped interview of L.S. in which she stated,
"One of my uncles touched me on my pee pee." She identified the uncle as Spear and
identified her "pee pee" as her private part, where she would go pee. Brinck asked L.S.
how many times Spear touched her, and she stated that she could not count but that it
happened a lot of times.

The investigation ended when M.S. and her children, including L.S., moved out of
the state in the summer of 2006.
5


In the spring of 2007, M.S. and her children moved back to Hutchinson. Sometime
during the summer of 2007, they moved in with Spear. As a result of the prior incident
with Spear, M.S. initially avoided leaving L.S. alone with Spear. M.S. would even have
Spear take showers with her so Spear and L.S. would not be alone. When school began,
L.S. attended school in McPherson and lived during the week with Mary Spear, the
mother of the three Spear brothers. On weekends, L.S. would return to Hutchinson and
her mother.

About the time school started during August 2007, M.S. started working
approximately 38 hours a week. Her regular shift was from 3 p.m. to 11 p.m., including
Friday and Saturday nights. For three or four weekends, Spear watched M.S.'s children,
including L.S., while M.S. was at work.

On October 12, 2007, the Kansas Protection Center received an anonymous call
regarding the welfare of L.S., and Trooper Mike Robinson with the Kansas Highway
Patrol went to Spear's home to investigate. Robinson visited with L.S. alone, and L.S.
told him she was being hurt, her Uncle Ed kissed her a lot, and he would go up and down
with his finger on her "pee pee" while "mommy" was at work.

In the investigation that followed, L.S. was interviewed by Detective Pat Voth of
the Hutchinson Police Department. L.S. described two incidents where Spear touched
her, one the previous month and one the previous year. Regarding the touching that
occurred the previous month, she said that she was upset with Spear because he kissed
her at least three or four times and touched her. She described the kisses as going
sideways and then Spear would put his tongue in her mouth. She said Spear also put his
finger in her "pee pee." Regarding the touching that occurred the previous year, L.S.
described an occurrence in a car where Spear touched her "pee pee" under her clothes
6

with his finger in a motion that she described as similar to when you would call someone
toward you. She explained that Spear told her he would spank her if she told anyone.

Voth also interviewed Spear, who told him L.S. was jealous of his relationship
with M.S., would call him her boyfriend, and always wanted him to hug and hold her. He
did not admit to any inappropriate touching of L.S.

Special Agent Roger Butler with the Kansas Bureau of Investigation also
conducted a recorded interview with Spear. Spear stated he had learned from L.S. that his
mother, Mary Spear, had told L.S. to say that Spear had touched her. Spear believed that
Mary was mad at him for starting a relationship with M.S. According to Spear, on the
night of the welfare check, M.S. asked L.S. if Spear had done anything; L.S. said, "No."

Butler asked Spear if he had ever had sexual contact with L.S. Spear initially told
Butler that he would wake up and L.S. would be rubbing his crotch with her foot, but it
did not arouse him and he would tell her to stop. Later in the interview, Spear admitted
that when L.S. would rub his crotch with her foot, he would get aroused, but he would
just roll over and go to sleep. Then, he reported that one time he became aroused while
they were lying in bed watching a movie and he went to the bathroom to relieve himself.
When Butler asked Spear if L.S. had ever tried to take his hand and put it between her
legs, Spear responded, "Yes, a couple of times while her mom was at work." When it
would happen, Spear would pull his hand away. When Spear asked L.S. why she wanted
to do it, she said because her brother does it.

When Butler asked about L.S.'s allegation that Spear touched her "pee pee" under
her clothes, Spear admitted to such a touching on one occasion. His version of the
incident was that L.S. had taken a bath, dressed herself, and came into the bedroom to
watch a movie. Usually she wore a shirt and panties, but that time she did not have
panties on. So, when she pulled his hand between her legs, he touched her bare skin.
7


L.S. was taken to see a pediatrician on January 28, 2008. She told him that her
Uncle Edward had hurt her by touching her "pee pee" with his finger. She also told him
that Uncle Edward had kissed her on the lips and on the side of her face. The physician
asked L.S. whether Spear would touch her with other objects, and she reiterated that he
only touched her with his finger. She told him that this happened a lot of times—
sometimes in a bedroom, sometimes in a car. She initially denied seeing Spear's penis but
later described that he had taken her hand and guided it to his penis, and she had held it.
She described Spear's touching by saying he would put his finger on her vaginal area.
L.S. demonstrated how Spear moved his finger by moving a pen in the air; the doctor
reported she moved the pen "back and forth and up and down" or "side to side and up and
down." The doctor performed a physical examination but found no injury.

On May 15, 2008, Spear was charged with one count of aggravated indecent
liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). The complaint described an
incident during which Spear allegedly engaged in lewd fondling or touching of L.S.; it
was alleged this act occurred "on or between August and September 2007." After L.S.
testified at Spear's preliminary hearing that Spear touched her "pee pee" with his finger
"like 10" different times, the State amended the complaint to allege 10 counts of
aggravated indecent liberties with a child.

Defense counsel filed a motion for a bill of particulars, requesting the State to
specify the circumstances of the additional charges. In response, the State filed a bill of
particulars and used the following language for each of the 10 counts:

"That in latter August, 2007, though September, 2007, between the hours of 3:00
p.m. and 11:00 p.m., the Defendant lewdly fondled or touched the vaginal area of 7-year-
old [L.S.], beneath her clothing with his finger and with the intent to arouse or satisfy the
sexual desires of either [L.S.] or himself, while both were inside the residence located at
8

316 W. 15th Ave., Hutchinson, Reno County, Kansas. The touching occurred while the
child's mother, [M.S.], was away from the home and working . . . . The child cannot
remember the specific times of the day or days of the week in which she was touched.
The mother was working a five-day work week that included weekends."

At trial, L.S., who was 11 years old at the time, testified she did not remember
much about the incidents. She said that when she was at home in Hutchinson with Spear
while her mother was at work, she had been "bad touched" by Spear. She could not
remember how many times the touching happened in that house, but she testified that it
happened more than once—"like 11" times. She also testified that Spear touched her in a
car. She told the jury that Spear would touch her "pee pee," which she described as the
area between her legs where she goes "pee," with his finger going up and down. She said
the touching occurred inside her clothes while they were in the bedroom watching
television. She also told the jury that when he would touch her, she would tell him to
stop. She did not tell anyone because he told her not to.

The State also called Officer Neal and Detective Brinck to testify about the 2006
report, and the jury viewed the video recording of Brinck's interview with L.S. The jury
also heard the testimony of Trooper Robinson, Detective Voth, and Special Agent Butler
and watched the video recordings of their interviews of L.S. and Spear. Also, the
pediatrician testified regarding his examination of L.S. and her statements to him. Spear
chose not to testify.

The jury convicted Spear of six counts of aggravated indecent liberties with a
child and found Spear not guilty on four counts. The sentencing judge, who was also the
trial judge, sentenced Spear to six concurrent life sentences.

9

Spear now timely appeals his convictions and sentences. This court has
jurisdiction under K.S.A. 22-3601(b) (maximum sentence of life imprisonment imposed
for off-grid crime; appeal docketed prior to July 1, 2011).

ISSUE 1: Admission of Evidence of Prior Sexual Misconduct Was Not Error

Spear argues the trial judge erred in allowing the admission of his alleged prior
sexual misconduct with the victim, L.S., for the purpose of proving his intent and absence
of mistake or accident. Specifically, Spear asserts that neither intent nor absence of
mistake or accident was a material fact at issue as required for the admission of prior
crimes under K.S.A. 2012 Supp. 60-455. Spear bases these arguments on this court's
decision in State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009) (Prine I). Further, he argues
we must reverse his convictions because of this error. Contrary to this argument, even if
we assume for purposes of our analysis that the trial judge erred in admitting evidence of
Spear's prior sexual misconduct, our recent decision in State v. Prine, 297 Kan. ___, Syl.
¶¶ 3-5, ___, ___ P.3d ___ (2013) No. 103,242, 2013 WL 2364286 (Prine II) leads us to
conclude the purported error was not reversible. To explain, it is helpful to step through
the progression of litigation related to Prine's case.

In Prine I, we found the district judge erred in allowing the State to introduce
evidence of Prine's prior sexual abuse of two young girls other than the victim to prove
intent, absence of mistake or accident, and plan. 287 Kan. at 726-36. Because this
evidence was prejudicial, we reversed Prine's convictions and remanded the case for a
new trial. 287 Kan. at 736.

Soon after our decision in Prine I and before the retrial of Prine's case, the
legislature amended K.S.A. 60-455. L. 2009, ch. 103, sec. 12. This amendment was
effective before Spear's trial as well; hence, the same version of the statute applied to his
10

trial as applied to Prine's retrial. After amendment, K.S.A. 2012 Supp. 60-455 provided,
in relevant part:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person
committed a crime or civil wrong on a specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such
evidence is admissible when relevant to prove some other material fact including motive,
opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or
accident.
. . . .
"(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal
action in which the defendant is accused of a sex offense under articles 34, 35 or 36 of
chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or articles 54, 55 or 56
of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6104, 21-6325, 21-6326 or
21-6418 through 21-6421, and amendments thereto, evidence of the defendant's
commission of another act or offense of sexual misconduct is admissible, and may be
considered for its bearing on any matter to which it is relevant and probative."

Subsections (a) and (b) of this provision are substantively identical to the
provisions in place before the 2009 amendment that was considered in Prine II; the only
alterations are stylistic. The remainder of the amended statute is new. See Prine II, 297
Kan. at ___, slip op. at 20-21.

During the retrial, the State again sought to admit evidence of Prine's prior sexual
abuse of the two girls to show intent, absence of mistake or accident, and plan under
subsection (b); the State did not argue the prior crimes evidence was admissible to prove
Prine's propensity to commit the alleged crimes. Nevertheless, the trial judge allowed the
admission of the evidence, and Prine was again found guilty. He appealed, and we
recently considered his renewed argument that the evidence should not have been
11

admitted and his convictions should be reversed. We held that the evidence was no more
admissible to prove intent, absence of mistake or accident, or plan under the amended
statute than it had been under the prior version of K.S.A. 60-455. Prine II, 297 Kan. at
___, slip op. at 26. But we rejected Prine's argument that he was once again entitled to
have his convictions reversed. We explained: "The problem for the defense is that
subsection (d) necessarily change[s] our calculus on reversibility of this error." Prine II,
297 Kan. at ___, slip op. at 26. This is because subsection (d) allows the evidence to be
admitted on an alternative ground—to prove the defendant's propensity to commit the
crime. We reached this conclusion after reviewing the wording of K.S.A. 2012 Supp. 60-
455(d) and the legislative history related to the 2009 amendment. We held:

"[T]he legislature's intention to relax the prohibition on evidence of other acts or offenses
of sexual misconduct to show propensity, indeed, and 'any matter to which it is relevant
and probative' in sex crime cases is explicit in the statute's new subsection (d). This plain
language could and should have governed the K.S.A. 60-455 issue on retrial of this case."
Prine II, 297 Kan. at ___, slip op. at 21.

Applying that holding to the question of reversibility in light of the erroneous
basis for admitting the evidence, we reasoned:

"As we have already observed, K.S.A. 60-455 evidence relevant to propensity—leaving
aside any constitutionality question not argued in this case—is admissible under new
subsection (d). Because we have no doubt that, on any third trial of Prine, the evidence of
his [prior crimes] . . . would again come before the jury as propensity evidence, see Prine
I, 287 Kan. at 737, and that its probative value would be deemed more weighty than its
threat of undue prejudice, no reversal is required. Although the State's and the district
judge's grasp of the import and workings of the amended statute at retrial was tenuous,
their efforts to protect Prine's rights at retrial went beyond anything to which he would be
entitled after a second reversal. This means that we see no error that affects Prine's
substantial rights under K.S.A. 60-261." Prine II, 297 Kan. at ___, slip op. at 26.

12

As applied to Spear's appeal, our decision in Prine II does two things. First, it
rejects Spear's arguments that the Kansas Legislature failed to accomplish its goal of
expanding the evidence that could be admitted in a sex crime trial to include evidence
that was material only to prove propensity. While we agree with Spear that there is
wording that would have made the legislature's intent clearer, the language of K.S.A.
2012 Supp. 60-455(d) is sufficiently explicit to create an exception to the general rule in
subsection (a) prohibiting the admission of other crimes or civil wrongs evidence for the
purpose of proving a propensity to commit a crime. In sex crime prosecutions, K.S.A.
2012 Supp. 60-455(d) explicitly allows evidence of other acts or offenses of sexual
misconduct to show a propensity to commit such an act or crime and any other matter to
which it is relevant and probative. Second, it establishes that even if we assume error, that
error does not require reversal. As in Prine II, the evidence could have been admitted on
a different ground than to prove intent or absence of mistake or accident. By limiting the
reasons for allowing the evidence to be considered to those two grounds, the trial judge's
rulings, like those of the judge in Prine I, were more restrictive than necessary under the
amended statute. See Prine II, 297 Kan. at ___, slip op. at 26. The trial judge could have
admitted this evidence in Spear's trial under subsection (d).

Thus, as in Prine II, if we were to reverse and remand, the evidence of Spear's
prior alleged sexual misconduct with L.S. would be admissible as propensity evidence
during Spear's retrial. While the trial judge would have to weigh the probative value of
the evidence against its threat of undue prejudice, the trial judge conducted that weighing
in the first trial, albeit on different grounds for admission, and found the evidence could
be admitted. There is no reason to believe a different result would be reached on remand.
Accordingly, we conclude the error, if any, did not affect Spear's substantial rights under
K.S.A. 60-261. Any error was, therefore, not reversible.



13

ISSUE 2: Evidence Relating to Four Counts Was Insufficient

Alternatively, Spear argues the State failed to present sufficient evidence of four
of the six counts of aggravated indecent liberties with a child for which he was convicted.
Spear does not dispute there was sufficient evidence that he committed two counts of
aggravated indecent liberties with a child. Thus, Spear only requests us to reverse four of
his six convictions. It is presumably because success on this issue has little, if any,
practical effect that this issue is presented as an alternative issue. Our decision to reverse
and vacate the convictions and sentences for Counts 3, 4, 5, and 6 does not impact the
convictions for aggravated indecent liberties with a child under age 14 charged in Counts
1 and 2, which are not challenged on appeal. Nor does it have a practical effect on Spear's
controlling sentence because concurrent life sentences were imposed for each of the six
convictions, including the convictions on Counts 1 and 2. And it is the sentence for Count
1 that includes the longer mandatory minimum term of 620 months' imprisonment.
Further, the impact on Spear's criminal history is relatively inconsequential because his
criminal history before counting the two remaining convictions in this case fell within the
most severe category, category A. Nevertheless, we must consider the issue he has raised.

In support of his position, Spear argues the only evidence that he committed any
more than two counts of aggravated indecent liberties is based on L.S.'s "guess" that the
touching occurred "like 11" times and a "guess" is insufficient to support a finding
beyond a reasonable doubt. Spear argues it is impossible to identify six separate instances
of aggravated indecent liberties with a child committed during the time frame identified
in the bill of particulars.

The State responds by arguing that it presented sufficient evidence of each element
of aggravated indecent liberties by establishing multiple counts of a lewd fondling or
touching, of a child under 14 years of age, by an offender 18 years of age or older, with
the intent to arouse or satisfy the sexual desires of Spear or L.S. See K.S.A. 21-
14

3504(a)(3)(A). The State does not identify, however, specific evidence relating to
individual counts. In further support of its argument, the State cites the jury's obvious
effort during deliberations: Deliberations lasted for 9.5 hours; the jury asked to hear read
backs of the testimony of L.S., the mother, and the pediatrician; and the jury submitted a
question about whether French kissing qualified as aggravated indecent liberties with a
child. This diligence led the State to suggest that the jury "obviously dwelled on the
precise number of times the crime had been committed." Nevertheless, other than to point
to L.S.'s guess and some of her vague statements that Spear touched her a lot, the State
does not explain to us the evidence supporting the number of convictions. Similarly, the
State did not assist the jury in identifying 10 acts that supported the 10 counts.

In considering these arguments, our standard of review is well established: We
must determine "whether, after reviewing all the evidence in the light most favorable to
the prosecution, we are convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt." State v. Warren, 295 Kan. 629, 631, 285
P.3d 1036 (2012) (citing State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 [2011]);
State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012) (citing State v. Ward, 292
Kan. 541, 581, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]; State v.
Northcutt, 290 Kan. 224, 231, 224 P.3d 564 [2010]). "The appellate court does not
reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting
evidence." Raskie, 293 Kan. at 920 (citing Ward, 292 Kan. at 581).

Applying this standard and considering the evidence in the light most favorable to
the State, we agree with Spear that the evidence is insufficient to support the four
aggravated indecent liberties convictions he challenges on appeal. As Spear notes, many
courts have observed that "[a] guess is not proof beyond a reasonable doubt." United
States v. Spirk, 503 F.3d 619, 623 (7th Cir. 2007); see, e.g., United States v. McCall, 553
F.3d 821, 834 (5th Cir. 2008) ("a reasonable person would require more than a casual or
unelaborated guess to determine any fact beyond a reasonable doubt"); Woolford v. State,
15

58 S.W.3d 87, 90 (Mo. App. 2001) ("Testimony that the approximate combined value of
the stolen items 'probably' exceeded $750.00 and that the homeowner 'guess[ed] that
would be a fair approximation' is too indefinite to constitute substantial evidence."). We
need not dwell long on this concept, however, because the jury in this case apparently
agreed that L.S.'s "guess" was not sufficient evidence to prove 10 counts beyond a
reasonable doubt; had the jury found this guess sufficient it would have found Spear
guilty on all counts, rather than acquitting him on four counts.

What, then, is the evidence that supports the jury's verdict of guilt on Counts 3, 4,
5, and 6? After an extensive review of the record, we have not found any evidence that
supports these four instances of Spear fondling or touching L.S. in "the vaginal area" "in
latter August, 2007, through September, 2007, . . . [in] Reno County, Kansas."

Our consideration is limited to evidence of Spear touching L.S. in the vaginal area,
during this time period, in Reno County because of the wording of the amended
complaint, the bill of particulars, and the jury instructions and because of venue
restrictions. In part, a combination of instructions leads us to this conclusion, and we
presume the jury followed these instructions. See State v. Tague, 296 Kan. 993, 1008,
298 P.3d 273 (2013).

First, the judge instructed the jury it had to find that Spear "fondled or touched the
person of [L.S.] in a lewd manner." Hence, although L.S. told the pediatrician that Spear
placed her hand on his penis and Spear told Agent Butler that L.S. had rubbed his crotch
with her foot, these acts cannot be a basis for a conviction; the State did not allege and
the judge did not instruct the jury on aggravated indecent liberties with a child by
"submitting to" touching. See K.S.A. 21-3504(a)(3)(A) (stating elements); State v.
Trautloff, 289 Kan. 793, 802, 217 P.3d 15 (2009) (charging document must specify the
offense "in order to inform the defendant of the nature of the accusation . . . and to protect
the defendant from being convicted on the basis of facts that were not contemplated in
16

the initial charges"); see also State v. Rojas-Marceleno, 295 Kan. 525, Syl. ¶¶ 7, 8, 285
P.3d 361 (2012) (when a charging document fails to specify the particulars of the crime
charged, K.S.A. 22-3201[f] permits the court to require the State to furnish the defendant
with a bill of particulars to inform the defendant of the nature of the charges and evidence
to allow for the preparation of a defense and to prevent further prosecution for the same
offense).

The court's instructions also required the jury to find the offenses occurred in Reno
County; consequently, even if the jury believed the car incident occurred during the time
frame covered in the amended complaint and bill of particulars, because the incident
occurred in McPherson County it could not serve as a basis for Spear's convictions. See
K.S.A. 22-2602 ("Except as otherwise provided by law, the prosecution shall be in the
county where the crime was committed.").

Further, because the bill of particulars specified that the charged offenses arose
when Spear touched L.S. in the vaginal area, the judge appropriately instructed the jury,
in response to its question, that the State did not allege in this case that "French kissing"
was an act for which Spear could be convicted. See K.S.A. 22-3201(f) ("At the trial the
State's evidence shall be confined to the particulars of the bill."); State v. Wright, 259
Kan. 117, 126, 911 P.2d 166 (1996) (purpose of restricting State's evidence to particulars
in a bill "'is to prevent the State from charging the defendant with one crime and
convicting him of something else'").

Excluding consideration of the evidence related to anything other than Spear
lewdly fondling or touching L.S's vagina during the specified time period and in the
house in Reno County, we are unable to find evidence on which a rational factfinder
could tally six separate criminal acts of aggravated indecent liberties with a child. The
remaining evidence is simply too generic to support six convictions.

17

We recognize that the evidence in cases of crimes against children, particularly
those involving abuse and sex offenses occurring repeatedly and over a period of time,
will often be generic, outlining a series of undifferentiated incidents, each of which could
support a separate criminal sanction. The nature of generic evidence raises many difficult
issues, and, for a time, there was considerable debate about whether generic evidence
could ever be sufficient to support a conviction. The California appellate courts were
among the first to grapple with this question, and various panels of that state's Court of
Appeals reached conflicting decisions. See United States v. Hawpetoss, 388 F. Supp. 2d
952, 960 (E.D. Wis. 2005) (noting generic evidence issue "has received careful
consideration in the state courts, particularly those of the State of California"). The
California Supreme Court resolved this split of opinion and determined that generic
evidence could be sufficient but, if multiple counts are charged, there must be sufficient
detail to identify each offense. In reaching this conclusion, the court discussed the
practical reality that evidence in cases of sex crimes committed against children will at
times be generic:

"'Multiple sex offenses committed by adults upon immature and inarticulate children over
a long period of time are very likely to result in an amalgamation of the crimes in the
child's mind. The child is unlikely to be able to give any testimony approximating the
date of any one separately describable offense even in the uncomplicated case. Where the
number of offenses is so numerous even an adult would not be able to count them, the
child's testimony will often be reduced to a general, and customarily abbreviated,
recitation of what happened on a continuing basis.' [Citation omitted.]" People v. Jones,
51 Cal. 3d 294, 313, 270 Cal. Rptr. 611, 792 P.2d 643 (1990).

Nevertheless, the court noted it must "balance the defendant's legitimate due process
rights with the interests of the People in securing convictions in appropriate cases." 51
Cal. 3d at 313. In general, the court held that "even generic testimony (e.g., an act of
intercourse 'once a month for three years') outlines a series of specific, albeit
undifferentiated, incidents each of which amounts to a separate offense, and each of
18

which could support a separate criminal sanction." 51 Cal. 3d at 314. But this, the court
concluded, did not answer the question "as to the minimum quantum of proof necessary
to support a conviction on one or more counts based on such generic testimony." 51 Cal.
3d at 314. In answering that question, the court stated:

"The victim, of course, must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed has occurred and to
differentiate between the various types of proscribed conduct (e.g. lewd conduct,
intercourse, oral copulation or sodomy). Moreover, the victim must describe the number
of acts committed with sufficient certainty to support each of the counts alleged in the
information or indictment (e.g., 'twice a month' or 'every time we went camping').
Finally, the victim must be able to describe the general time period in which these acts
occurred (e.g., 'the summer before my fourth grade,' or 'during each Sunday morning after
he came to live with us') to assure the acts were committed within the applicable
limitation period. Additional details regarding the time, place or circumstance of the
various assaults may assist in assessing the credibility or substantiality of the victim's
testimony, but are not essential to sustain a conviction." 51 Cal. 3d at 316.

Other courts have followed the Jones court's lead. See, e.g., Hawpetoss, 388 F.
Supp. 2d at 963 (evidence sufficient to support four convictions when victim testified her
stepfather forced her to put his penis in her mouth up to three times a week, especially
during the winter when it was cold, and each count alleged a time period covering
successive winters); Commonwealth v. Kirkpatrick, 423 Mass. 436, 441-42, 668 N.E.2d
790 (1996) (defendant charged with 10 counts of forcible rape of a child and 10 counts of
indecent assault and battery on a child under 16 years of age; victim's testimony that
defendant had sexual contact with her approximately three times a week for 2-year period
sufficient), overruled on other grounds by Commonwealth v. King, 445 Mass. 217, 834
N.E.2d 1175 (2005); State v. Vance, 537 N.W.2d 545, 550 (N.D. 1995) (defendant
charged with eight counts, each count alleging time frame "in or about" successive
months from February through September of time when victim lived with defendant; 8-
year-old child's testimony regarding defendant's "bad touches" about three times a week
19

sufficient); State v. Hayes, 81 Wash. App. 425, 429, 432-33, 914 P.2d 788 (1996)
(defendant charged with four counts of rape of child during almost 2-year period;
evidence supported seven different acts, and victim presented generic testimony that it
occurred at least four times and up to two or three times a week).

While we do not necessarily agree with some of these courts' analysis of how this
evidence fits with the defendant's right to a unanimous jury—the context in which
Kansas' appellate courts have most often struggled with the difficulties raised by generic
evidence—we agree with the Jones court's statements regarding how to evaluate the
sufficiency of the evidence in multiple count cases. That discussion is in accord with our
general rule that there must be some distinction that enables linking the evidence to
specific counts. See, e.g., State v. Voyles, 284 Kan. 239, 253-55, 160 P.3d 794 (2007)
(evidence revealed "potentially 20 different acts or offenses" that were factually separate,
but defendant was charged with only 8; held State's failure to elect specific acts and
court's failure to instruct on unanimity required reversal). The jurors in Spear's trial were
instructed they "must unanimously agree upon the same underlying act." Hence, a jury
unanimity issue is not presented. Even so, for the evidence to be sufficient, we must be
able to find a basis to tally the number of counts upon which the defendant was
convicted.

Here there is no basis to allow us to make the necessary distinction. In contrast to
the examples from other states, L.S. never testified about the frequency of Spear's acts
other than to tell Detective Voth that one act occurred the previous month and another the
previous year. Then, when asked at trial, she indicated Spear had touched her more than
once in the Reno County house. She was then asked to give the jury an "idea" of how
many times; she "guess[ed] 11." She never said the acts occurred each weekend, almost
every time she was with Spear while her mother was at work, every day her mother was
at work, or anything similar. Further, her description of location (the bedroom), those
present (Spear and herself, although her younger brother was in the house), what she and
20

Spear were doing at the time (watching television), and other circumstances provide no
distinguishing features.

In her statements to the investigating officers, L.S. made comments along the lines
that Spear touched her "a lot." It cannot be determined from such references, however,
whether L.S. was referring to multiple touches that occurred in a manner giving rise to
multiple crimes or to unitary conduct—one instance without an intervening event or a
fresh impulse. Spear can only be punished once for any unitary conduct. See State v.
Schoonover, 281 Kan. 453, Syl. ¶¶ 15-16, 133 P.3d 48 (2006) (defendant cannot be
punished multiple times for unitary conduct; to determine unitary conduct, courts
examine whether the acts occur at the same time and at the same location; whether the
acts were separated by an intervening event; and whether some of the conduct was
motivated by a fresh impulse).

Simply put, the evidence, even in the light most favorable to the prosecution, is
not sufficient for us—or any rational factfinder—to distinguish how, when, where, or if
the crimes charged in Counts 3, 4, 5, or 6 were committed by Spear. And the State has
not assisted us by suggesting a rationale for upholding the jury's verdicts on six counts
when the verdicts clearly reflect the jury rejected L.S.'s "guess" that Spear committed a
total of 11 offenses. Beyond L.S.'s testimony that the acts occurred more than once, the
evidence is simply too generic to identify the separate counts. Accordingly, we reverse
the challenged convictions of aggravated indecent liberties with a child—Counts 3, 4, 5,
and 6—and vacate the sentences for those convictions.

ISSUE 3: Spear's Concurrent Life Sentences Are Not Cruel or Unusual Punishment and
Do Not Violate § 9 of the Kansas Constitution Bill of Rights.

Next, Spear argues his concurrent life sentences are a cruel or unusual punishment
under § 9 of the Kansas Constitution Bill of Rights. In support of this appellate argument,
21

Spear cites the three-factor test in State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950
(1978), and argues his life sentences are disproportionate based on a comparison of his
punishment with punishments assigned to more serious offenses in Kansas and also
disproportionate in light of other states' punishments for the same offense.

In announcing Spear's sentences, the sentencing judge recognized that K.S.A. 21-
4643, commonly known as Jessica's Law, applied because Spear was 18 years of age or
older and had been convicted of aggravated indecent liberties with a child. K.S.A. 21-
4643(a)(1)(C). Jessica's Law provides for a "term of imprisonment for life with a
mandatory minimum term of imprisonment of not less than 25 years" but also defines
several exceptions, one of which the judge found applied in imposing Spear's controlling
sentence.

That exception, stated in K.S.A. 21-4643(a)(2)(B), applies if "the defendant,
because of the defendant's criminal history classification, is subject to presumptive
imprisonment pursuant to the sentencing guidelines grid for nondrug crimes and the
sentencing range exceeds 300 months." If that exception applies, "the defendant is
required to serve a mandatory minimum term equal to the sentence established pursuant
to the sentencing range." K.S.A. 21-4643(a)(2)(B). Spear's criminal history classification
was A, and the applicable guidelines gridbox provided a mid-range sentence of 620
months. K.S.A. 21-4704(a) (presumptive mid-range sentence for severity level 1 felony
with a criminal history score of A is 620 months' imprisonment). Consequently, the judge
imposed a mandatory minimum sentence of 620 months' imprisonment for Count 1, his
base sentence. Because under K.S.A. 21-4720(b)(5) "[n]onbase sentences will not have
criminal history scores applied," the judge imposed a minimum 25-year life sentence for
the remaining, nonbase sentences. The judge did not announce whether the sentences
were consecutive or concurrent, but K.S.A. 21-4608 states, in part, that "[w]henever the
record is silent as to the manner in which two or more sentences imposed at the same
22

time shall be served, they shall be served concurrently, except as provided in subsections
(c), (d) and (e)."

Before sentencing, Spear filed a motion for departure, arguing a Jessica's Law
sentence would be a cruel and/or unusual punishment under the Eighth Amendment to
the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. Under
K.S.A. 21-4643(d), a sentencing judge may depart from a Jessica's Law minimum term of
imprisonment when sentencing a defendant "for a first time conviction" of a Jessica's
Law offense if "the judge finds substantial and compelling reasons, following a review of
mitigating circumstances, to impose a departure."

At the sentencing hearing, the judge made lengthy findings. Although he did not
cite a specific decision or identify his findings as relating to the Freeman factors, he
discussed the substance of the factors. In conclusion, the judge recognized the sentences
were "harsh"; nevertheless, he concluded he had "no problem" in finding the sentences
were not cruel and unusual under the facts of this case. The judge denied Spear's
departure motion.

Despite these findings by the sentencing judge, the State challenges Spear's
preservation of this issue for appellate review, arguing Spear only raised it "incidentally."
We disagree. Although Spear did not specifically cite to the three-factor test in Freeman,
223 Kan. 362, Syl. ¶ 2, Spear did raise a constitutional challenge to Jessica's Law in his
departure motion and cited recent cases concerning preservation of the issue. At the
sentencing hearing, he again raised the issue. Further, the sentencing judge made
extensive findings that are more than adequate for purposes of appellate review.

We do note, however, Spear only raises a state constitutional challenge on appeal,
even though he raised a federal constitutional challenge to his life sentences in his
departure motion. Because he has failed to brief a federal constitutional challenge before
23

this court, any such challenge is deemed abandoned. See State v. Gomez, 290 Kan. 858,
Syl. ¶ 8, 235 P.3d 1203 (2010) (to preserve an issue for appellate review, the party must
present an argument; otherwise, the argument will be deemed abandoned). Consequently,
we consider only Spear's challenge under § 9 of the Kansas Constitution Bill of Rights.

"Under § 9 of the Kansas Constitution Bill of Rights, a punishment may be
constitutionally impermissible, although not cruel or unusual in its method, if it is so
disproportionate to the crime for which it is inflicted that it shocks the conscience and
offends fundamental notions of human dignity." Gomez, 290 Kan. 858, Syl. ¶ 9;
Freeman, 223 Kan. at 367. As we have indicated, in Freeman this court set out three
factors to aid in administering this principle, stating:

"(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;
"(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty is to that extent
suspect; and
"(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense." Freeman, 223 Kan. at 367.

No one factor controls. State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010).
"Ultimately, one consideration may weigh so heavily that it directs the final conclusion,"
but "consideration should be given to each prong of the test." State v. Ortega-Cadelan,
287 Kan. 157, 161, 194 P.3d 1195 (2008).

24

Because an application of these factors requires a sentencing judge to make both
legal and factual determinations, on appeal we employ a "bifurcated standard of review:
without reweighing the evidence the appellate court reviews the factual underpinnings of
the district court's findings under a substantial competent evidence standard, and the
district court's ultimate legal conclusion drawn from those facts is reviewed de novo.
[Citations omitted.]" State v. Woodard, 294 Kan. 717, 720, 280 P.3d 203 (2012).

• First Freeman Factor

The first Freeman factor requires the court to consider the nature of the offense
and the character of the offender. Addressing this factor, the sentencing judge stated:

"Certainly the crime involved is a violent offense causing [lifelong], in the court's
view, suffering to the victims who have, as in this case, or in any case when it involves a
person who is a family member or in such a position to be in a parenting role, causes
distrust and the inability to perform, or have normal relationships with members of the
opposite sex.
"In regards to the presentence report, the victim's statement, certainly the victim
is traumatized and is afraid to be out in public without looking over her shoulders to see
if, in fact, the defendant is present."

Spear attempts to counter these points by noting he did not use violence. While it
is true that there is no evidence that Spear used a weapon, kidnapped, or terrorized, this
court has recognized that aggravated indecent liberties with a child is itself a violent
crime. See K.S.A. 22-3717(d)(2)(C) (defining aggravated indecent liberties with a child
under K.S.A. 21-3504 to be a sexually violent crime); State v. Mossman, 294 Kan. 901,
912, 281 P.3d 153 (2012) (sex crimes against minors are historically considered violent
even if no physical force is used); Woodard, 294 Kan. at 727 (quoting Black's Law
Dictionary 400 [8th ed. 2004] [definition of violent crime]; citing K.S.A. 22-
3717[d][2][C]).
25


In addition, other facts weigh in favor of finding that Spear's sentence is not cruel
or unusual under the first Freeman factor. Spear enjoyed a position of trust in the victim's
life as her uncle and, at times, as the only father figure around. See State v. Conrad, 297
Kan. ___, 298 P.3d 320, 323 (2013); State v. Britt, 295 Kan. 1018, 1033, 287 P.3d 905
(2012). He breached this trust on more than one occasion. Further, it is Spear's significant
criminal history that caused what is essentially a doubling of his minimum sentence; as
discussed, his minimum sentence is what he would have served even if Jessica's Law did
not apply.

Considering the facts surrounding Spear's convictions, Spear's punishment was not
disproportionate to his crime, and the first Freeman factor weighs heavily in favor of
finding Spear's sentences constitutional.

• Second Freeman Factor

Spear concentrated his argument on the second Freeman factor—comparison of
the punishment with punishments imposed in Kansas for more serious offenses. Spear
argues his life sentences for aggravated indecent liberties is disproportionate for two
reasons: (1) He would have received the same sentence had the jury convicted him of the
more severe crime of rape; and (2) he would have received a less severe sentence had he
committed the more severe crime of murder. This court has already addressed and
rejected both of Spear's arguments.

In State v. Newcomb, 296 Kan. 1012, 1017-18, 1019-20, 298 P.3d 285 (2013), we
recognized that rape is a more serious, more invasive crime than aggravated indecent
liberties with a child. Nevertheless, we noted:

26

"[T]hat is not the only requirement before Newcomb can claim § 9 protection under the second
Freeman prong. The more serious crime to which his crime of conviction is compared must be
punished 'less severely,' not exactly the same, as it was here. See Freeman, 223 Kan. at 367.
Accordingly, Newcomb's argument fails." Newcomb, 296 Kan. at 1020.

Likewise, Spear's comparison to the punishment for rape fails.

So does his comparison to homicide crimes under our holding in Woodard. In
Woodard, we considered the different punishments for capital murder, homicide, and
nonhomicide crimes, such as rape and aggravated kidnapping, and concluded that
Woodard's hard 25 life sentence under Jessica's Law for convictions of aggravated
indecent liberties with a child was not disproportionate:

"The fact that the penalty for certain categories of homicide may be less severe than the
penalties for other, nonhomicide crimes does not automatically render the penalties for
the nonhomicide crimes unconstitutional. There is no strict linear order of criminal
activity that ranks all homicides as the most serious crimes and all nonhomicide crimes as
less serious, with the corresponding penalties necessarily ranking in diminishing
durations of imprisonment.
. . . .
"Comparing the penalty under K.S.A. 21-4643(a)(1)(C) with the punishments
imposed for other offenses in Kansas, we do not conclude that the penalty set out in
Jessica's Law is disproportionately harsh." Woodard, 294 Kan. at 723-24.

Spear does not present any new persuasive arguments or any reason we should
reexamine our conclusions in Newcomb and Woodard. Consequently, we agree with the
sentencing court's conclusion that Spear's sentences are not unconstitutionally
disproportionate to other sentences provided for in Kansas statutes.



27

• Third Freeman Factor

Under the third and final Freeman factor, this court compares the penalty under
Jessica's Law for aggravated indecent liberties with a child with the penalties for the
same offense in other jurisdictions. Freeman, 223 Kan. at 367; see State v. Seward, 296
Kan. 979, 988-89, 297 P.3d 272 (2013) (clarifying that the comparison must be between
the "same" offense, not "similar" offenses). Spear provides an extensive review of other
states' statutes to support his argument that Kansas' Jessica's Law statute is "the second-
harshest law in the country and one of the only two states in the nation imposing a life
sentence without the possibility of parole . . . for mere fondling or touching in the
absence of any aggravating factors." Arizona imposes a life sentence with a mandatory
minimum of 35 years. See Ariz. Rev. Stat. Ann. § 13-705(A) (2010). Nevertheless, by
Spear's own admission, Kansas is one of seven states with a Jessica's Law statute that
punishes fondling or touching as harshly as crimes that have an element requiring
penetration, although all but one of those states enacted a sentencing range that is shorter
than the one provided for in Kansas.

The State does not present an argument that the penalty under Kansas' Jessica's
Law statute is comparable to other states' penalties for the same offenses. Thus, we
accept Spear's assertion that Kansas has the second harshest penalty in the nation for
aggravated indecent liberties with a child younger than 14. Accordingly, the third
Freeman factor weighs in favor of Spear's § 9 challenge, although at least one state
imposes a more severe penalty and several other states treat the crime as commensurate
with crimes involving penetration. See Newcomb, 296 Kan. at 1020-21 (finding the third
Freeman factor weighed in favor of defendant's § 9 constitutional challenge because the
State did not respond to defendant's specific contentions and citations about aggravated
indecent liberties).

28

Even though the third Freeman factor weighs in favor of Spear's § 9 challenge, no
one factor is controlling and, therefore, that conclusion does not direct our final
conclusion. Considering all of the factors in combination, we conclude the weight of the
other factors is sufficient to support the sentencing judge's determination that there were
offsetting and compelling sentencing considerations. In particular, Spear repeatedly
abused his position of trust and authority as L.S.'s uncle and primary caregiver while her
mother was at work. Also, while the exact number of times Spear touched or fondled L.S.
is unknown, he stands convicted of committing two sex crimes against L.S.

We hold that Spear's concurrent life sentences do not violate § 9 of the Kansas
Constitution Bill of Rights.

ISSUE 4: The Sentencing Court Erred in Imposing Lifetime Postrelease Supervision.

Finally, Spear contends the sentencing court erred in imposing lifetime postrelease
supervision rather than lifetime parole. On Counts 2 through 6, the sentencing court
imposed a mandatory hard 25 life sentence, which means Spear received a life sentence
(indeterminate life sentence) without the possibility of parole for 25 years. See K.S.A.
21-4643(a)(1); K.S.A. 22-3717(b)(5). On Count 1, based on Spear's criminal history
score A, the trial court imposed a life sentence with a mandatory minimum sentence of
620 months' imprisonment, which means Spear received a life sentence (indeterminate
life sentence) without the possibility of parole for approximately 51 years. See K.S.A.
21-4643(a)(2)(B); K.S.A. 22-3717(b)(5).

As the State concedes, this court has previously decided this issue in Spear's favor.
We concluded that "'[a]n inmate who has received an off-grid indeterminate life sentence
can leave prison only if the [Kansas Prisoner Review] Board grants the inmate parole.
Therefore, a sentencing court has no authority to order a term of [lifetime] postrelease
supervision in conjunction with an off-grid indeterminate life sentence.'" State v.
29

Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (quoting State v. Cash, 293 Kan. 326,
Syl. ¶ 2, 263 P.3d 786 [2011]); see State v. Harsh, 293 Kan. 585, 590, 265 P.3d 1161
(2011) (parole is separate and distinct from the sentence; if defendant with hard 25 life
sentence ever leaves prison, it will be because parole was granted).

Because the sentencing court erred in imposing lifetime postrelease supervision,
that portion of Spear's sentences is hereby vacated.

CONCLUSION

In summary, we affirm Spear's convictions for aggravated indecent liberties with a
child in violation of K.S.A. 21-3504(a)(3)(A) as charged in Counts 1 and 2 of the
amended complaint and affirm the concurrent life sentences imposed for those
convictions. We reverse the remaining four convictions, vacate the corresponding
sentences, and vacate the order of lifetime postrelease supervision.

Convictions affirmed in part and reversed in part, and sentences affirmed in part
and vacated in part.