State v. Sprung

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,704

STATE OF KANSAS,
Appellee,

v.

BRYAN DOUGLAS SPRUNG,
Appellant.


SYLLABUS BY THE COURT

1.
Multiplicity is the charging of a single offense in several counts of a complaint or
information. Multiplicity creates the potential for multiple punishments for a single
offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and Section 10 of the Kansas Constitution Bill of Rights.

2.
Whether convictions are multiplicitous is a question of law subject to de novo
review.

3.
In resolving a multiplicity claim, the appellate court first determines whether the
convictions arose from the same conduct. If so, the court next considers whether, by
statutory definition, that conduct constitutes one offense or two. If the conduct constitutes
only one offense, then both components are met and there is a double jeopardy violation.

2



4.
The first component of the multiplicity inquiry requires the court to consider
whether the conduct is discrete or unitary. If the conduct is discrete, the convictions do
not arise from the same offense and there is no double jeopardy violation. But if the
charges arose from the same act or transaction, then the conduct is considered unitary and
the court moves to the second component of the inquiry.

5.
In determining whether a defendant's convictions arose from the same conduct, an
appellate court considers several factors, including whether: (1) the acts occurred at or
near the same time, (2) the acts occurred at the same location, (3) a causal relationship
existed between the acts, in particular whether an intervening event separated the acts,
and (4) a fresh impulse motivated some of the conduct.

6.
In analyzing the second multiplicity component, the appellate court must
determine whether, by statutory definition, the defendant's conduct constitutes one
offense or two.

7.
When a defendant's convictions are based on multiple violations of the same
statute, the unit-of-prosecution test applies. That test requires the court to interpret the
statutory definition of the crime to determine the allowable unit of prosecution intended
by the legislature. Only one conviction can result from each allowable unit of
prosecution.

3



8.
The determination of the allowable unit of prosecution is not necessarily
dependent upon whether there is a single physical action or a single victim. Instead, the
key is the scope of the course of conduct proscribed by the statute.

9.
If the legislature's intent is unclear as to the unit of prosecution defined by a
statute, the rule of lenity applies. Under that rule, statutory silence and ambiguity
regarding the unit of prosecution is construed in favor of the defendant.

10.
Courts apply a two-step analysis to allegations of prosecutorial misconduct
involving improper comments to the jury. First, the court considers whether the
comments were outside the wide latitude allowed the prosecutor in discussing the
evidence. If so, the court next determines whether the improper comments constitute
plain error; that is, whether the statements prejudiced the jury against the defendant and
denied the defendant a fair trial.

11.
The second step of the prosecutorial misconduct analysis requires consideration of
three factors: (1) whether the misconduct was gross and flagrant; (2) whether the
misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of
such a direct and overwhelming nature that the misconduct would likely have had little
weight in the minds of the jurors.

4



12.
The third factor of the second step of the prosecutorial misconduct test may not
override the first two factors unless the State proves beyond a reasonable doubt that the
error complained of did not affect the outcome of the trial in light of the entire record.

13.
Because a district court judge has discretion to order a psychological examination
of the complaining witness in a sex crime case, an appellate court reviews the district
court's denial of such a motion for an abuse of discretion.

14.
A defendant is entitled to a psychological examination of a complaining witness if
the defendant can demonstrate compelling circumstances that would justify such an
examination.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 5, 2009.
Appeal from Cloud District Court; KIM W. CUDNEY, judge. Opinion filed May 4, 2012. Judgment of the
Court of Appeals affirming the district court and dismissing the sentencing challenge issue is affirmed in
part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, and the
sentence is vacated in part.

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

Robert A. Walsh, county attorney, argued the cause, and Steve Six, attorney general, was with him
on the brief for appellee.

The opinion of the court was delivered by

5



MORITZ, J.: We granted Bryan Sprung's petition for review of the Court of
Appeals' decision affirming his jury convictions of one count of aggravated criminal
sodomy, two counts of aggravated indecent liberties with a child, and one count of
criminal threat. Sprung seeks reversal of one of his aggravated indecent liberties
convictions, arguing the convictions are multiplicitous. Further, Sprung claims the
prosecutor committed misconduct during closing argument by commenting on the
credibility of the victim as well as an expert witness and investigator hired by Sprung.
Sprung also contends the district court abused its discretion in denying his motion to
compel a psychological examination of the victim. Finally, Sprung argues the district
court violated his constitutional rights by imposing an aggravated presumptive sentence
for his conviction of aggravated criminal sodomy without a jury determination of the
aggravating factors.

We affirm the Court of Appeals' decision in part, and we reverse in part. We
conclude Sprung's aggravated indecent liberties convictions are multiplicitous because
(1) the charges arose from the same act or transaction; and (2) the plain language of the
charging statute, K.S.A. 21-3504(a)(3)(A), provides only one unit of prosecution rather
than two. Accordingly, we reverse the Court of Appeals' decision affirming both
convictions, we reverse one conviction, and we vacate Sprung's sentence, in part.
Regarding Sprung's claim of prosecutorial misconduct, we agree with the Court of
Appeals' conclusion that the State has demonstrated beyond a reasonable doubt that the
prosecutor's statements regarding the credibility of the victim, Sprung's expert witness,
and Sprung's investigator—even if improper—did not affect the outcome of the trial in
light of the entire record. We also find that the district court did not abuse its discretion in
denying Sprung's motion to compel a psychological examination of the victim. Finally,
we affirm the Court of Appeals' dismissal of Sprung's sentencing claim for lack of
jurisdiction.

6



FACTUAL AND PROCEDURAL BACKGROUND

Sprung's convictions arose from offenses he committed against K.M., a 10-year-
old girl. In early 2006, K.M. attended a weekly youth group, "Friends Club," at the
church where Sprung was pastor, and she occasionally attended Sunday services at the
church. Sprung sometimes gave K.M. rides to and from church. If no one answered the
front door at K.M.'s home on Sunday mornings when he came to pick her up, Sprung
sometimes knocked on K.M.'s bedroom window. Once or twice, Sprung asked for a key
to the house so he would not wake the rest of the family on Sunday mornings.

In April 2006, K.M. disclosed to her mother several incidents of abuse that she
said had occurred in the previous several weeks in Sprung's office after Friends Club.
During the first incident, Sprung motioned for K.M. to sit on his lap and rubbed K.M.'s
crotch area on the outside of her clothing. A few weeks later, while K.M. was waiting for
a ride home, Sprung told K.M. to sit on his lap. Sprung pulled down K.M.'s pants and his
own pants and he digitally penetrated K.M.'s vagina, causing pain to K.M. Several weeks
later as K.M. waited for a ride home from Friends Club, Sprung called her into his office.
Sprung shut the door, sat down, and motioned for K.M. to sit on his lap. After K.M. did
so, Sprung pulled down her pants, then pulled down his own pants, and digitally
penetrated K.M.'s vagina and anus.

Several weeks later, as K.M. waited for a ride home, Sprung again called her into
his office and shut the door. Sprung motioned for K.M. to sit on his lap and after she did
so, he pulled down K.M.'s pants and then pulled down his own pants. Sprung digitally
penetrated K.M.'s vagina and anus. He then pushed K.M. off his lap, placed her hand on
his erect penis, and moved her hand up and down. Sprung also asked K.M. to put his
penis in her mouth but K.M. refused.

7



After this last incident, K.M. reported the abuse to her mother. K.M. decided to
report the abuse because she was afraid that Sprung would "go all the way," which K.M.
explained meant Sprung would "[p]ut his body part inside of [hers]."

Fran Garrison, the former director of Friends Club, offered testimony
corroborating K.M.'s testimony. Garrison testified that one evening after Friends Club in
January 2006, she found the door to Sprung's office closed. Garrison knocked on the door
but did not wait for an answer before walking into Sprung's office. There, she observed
Sprung sitting at a chair at his desk with K.M. on his lap. According to Garrison, Sprung
sat "straight as a board, leaning back with his head back and legs straight out forward,"
while K.M. sat on Sprung's lap facing away from Sprung. Garrison told K.M. to get off
Sprung's lap and asked Sprung what he was doing, to which he responded, "'Giving
hugs.'" Garrison noticed Sprung using his hands to adjust himself in his genital area,
where Garrison could see a bulge about the size of her fist.

Garrison further testified that as she locked up the church one evening after
Friends Club in February 2006, she again found K.M. and Sprung alone in Sprung's
office. Just before she entered Sprung's office, Garrison heard the door being unlocked.
K.M. was playing a game on Sprung's computer but was not sitting on his lap, and
Sprung had his arm around K.M.'s chair. Garrison offered to give K.M. a ride home, but
Sprung told Garrison he would take K.M. home.

Susan Reinert, a sexual assault nurse examiner, testified at trial that she examined
K.M. after K.M. reported the abuse. During the exam, K.M. told Reinert that Sprung
touched K.M.'s vaginal area on more than one occasion and that Sprung had forced K.M.
to touch his penis. K.M. also reported to Reinert that she found blood on her panties and
toilet paper after some of the incidents. Reinert found no signs of scarring or injuries in
K.M.'s vaginal or anal areas.
8




K.M.'s mother (Mother) testified that in January 2006, as K.M. used the bathroom,
she told Mother she had started her period. Mother saw light blood on the toilet paper
used by K.M., but did not believe K.M. had started her period. Mother asked K.M. if
someone had touched her and K.M. said no. A few days later, as Mother did laundry, she
found light blood in K.M.'s panties.

Mother also testified that Friends Club usually ended at about 8 p.m. and, on some
occasions, Sprung did not bring K.M. home until 10 p.m.

Sprung testified at trial that he never inappropriately touched K.M. He maintained
that he had a "close relationship" with K.M.'s family and that he gave K.M. several rides
to Friends Club in the first few months of 2006. However, Sprung recalled taking K.M.
home after Friends Club only once during that time period.

Sprung admitted that he sometimes knocked on K.M.'s bedroom window to get her
attention when he picked her up at her home for Sunday services and that this practice
was unique to K.M.'s family. Sprung also admitted that he asked for, but never received,
a key to K.M.'s home. Sprung explained that he asked for a key because K.M.'s parents,
who had requested he pick up their children for Sunday services, complained that his
knocking woke them up on Sunday mornings.

Sprung recalled Garrison walking into his office in January 2006 as K.M. sat on
his lap. But according to Sprung, he was not acting inappropriately towards K.M; instead
he was just "giving [K.M.] a hug goodbye." Sprung testified that Garrison told him it was
inappropriate for him to have children on his lap, but Sprung responded that by
welcoming children to sit on his lap, he was simply following Jesus' example.

9



The jury convicted Sprung as charged of one count of aggravated criminal
sodomy, two counts of aggravated indecent liberties with a child, and one count of
criminal threat. The sentencing court imposed a controlling prison sentence of 241
months with 36 months' postrelease supervision.

On direct appeal, a panel of the Court of Appeals affirmed Sprung's convictions
and dismissed his sentencing challenge for lack of jurisdiction. State v. Sprung, No.
99,704, 2009 WL 1591397 (Kan. App. 2009) (unpublished opinion). We granted
Sprung's petition for review.

ANALYSIS

Sprung's aggravated indecent liberties convictions are multiplicitous.

In the Court of Appeals, Sprung sought reversal of one of his two convictions for
aggravated indecent liberties with a child, claiming the convictions were multiplicitous.
He argued the charges arose from the same conduct and, by statutory definition, his
conduct constituted only one violation of K.S.A. 21-3504(a)(3)(A). Sprung also raised a
jury unanimity issue. The Court of Appeals panel rejected both the multiplicity and jury
unanimity arguments.

On review, Sprung renews his multiplicity argument but does not seek review of
the panel's unanimity ruling; therefore, we will not address that issue on review.

Multiplicity is the charging of a single offense in several counts of a complaint or
information. Multiplicity creates the potential for multiple punishments for a single
offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United
10



States Constitution and Section 10 of the Kansas Constitution Bill of Rights. State v.
Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).

Whether convictions are multiplicitous is a question of law subject to de novo
review. State v. Sellers, 292 Kan. 117, 127, 253 P.3d 20 (2011).

In resolving a multiplicity claim, we first determine whether the convictions arose
from the same conduct. If so, we then determine whether, by statutory definition, that
conduct constitutes one offense or two. Schoonover, 281 Kan. at 496. If the conduct
constitutes only one offense, then both components are met and there is a double
jeopardy violation. 281 Kan. at 496.

1. Sprung's convictions arose from the same conduct.

The first component of the multiplicity inquiry requires us to determine whether
the conduct is discrete or unitary. 281 Kan. at 496. If the conduct is discrete, the
convictions do not arise from the same offense and there is no double jeopardy violation.
But if the charges arose from the same act or transaction, then the conduct is considered
unitary and we move to the second component of the inquiry. 281 Kan. at 496.

In determining whether Sprung's convictions arose from the same conduct, we
consider several factors, including whether: (1) the acts occurred at or near the same
time, (2) the acts occurred at the same location, (3) a causal relationship existed between
the acts, in particular whether an intervening event separated the acts, and (4) a fresh
impulse motivated some of the conduct. See 281 Kan. at 497. We note that these factors
are the same factors we utilize in determining whether there are multiple acts requiring a
jury unanimity instruction. 281 Kan. at 497.

11



The parties agree that the aggravated indecent liberties charges, Counts II and III,
were based on the final incident described by K.M. The trial court specifically instructed
the jury that Count II related to Sprung's touching of K.M. and Count III related to K.M.'s
touching of Sprung's penis. The jury verdict form reflected that same distinction.

According to K.M.'s trial testimony regarding that incident, Sprung digitally
penetrated her vagina and anus, pushed her off his lap, and placed her hand on his penis.
All of these events occurred on the same night in Sprung's office and at or near the same
time. Further, there is no evidence of an intervening event or suggestion that a fresh
impulse motivated Sprung's act of placing K.M.'s hand on his penis. Instead, Sprung's
acts of touching K.M. and then placing her hand on his penis were unitary rather than
factually separate and distinct. Compare Sellers, 292 Kan. at 130-31 (concluding
defendant's conduct was not unitary when defendant touched victim, left the room for 30
to 90 seconds to check on a barking dog, returned to the room, and touched the victim a
second time, with State v. Colston, 290 Kan. 952, 964, 235 P.3d 1234 (2010)
(determining that defendant's digital penetration and penile penetration of the victim that
occurred at or near the same time, in the same location, and with no suggestion of an
intervening event were not "factually separate and distinct" acts).

Because we have concluded Sprung's two aggravated indecent liberties
convictions arose from the same act or transaction, we now move to the second
component of Schoonover's multiplicity analysis.

2. By statutory definition, Sprung's conduct comprised one violation of K.S.A. 21-
3504(a)(3)(A).

Under the second Schoonover component, we must determine whether, by
statutory definition, Sprung's conduct constitutes one offense or two. See 281 Kan. at
497. Because Sprung's convictions are based on multiple violations of the same statute,
12



the unit-of-prosecution test applies. See 281 Kan. at 497. This test requires that we
interpret the statutory definition of the crime to determine the allowable unit of
prosecution intended by the legislature. 281 Kan. at 497. Only one conviction can result
from each allowable unit of prosecution. 281 Kan. at 497-98.

In Schoonover, 281 Kan. at 472, we pointed out that the determination of the
appropriate unit of prosecution is not necessarily dependent upon whether there is a
single physical action or a single victim. Instead, the key is the scope of the course of
conduct proscribed by the statute.

The statute at issue here, K.S.A. 21-3504(a), prohibits:

"(3) engaging in any of the following acts with a child who is under 14 years of
age:
(A) Any lewd fondling or touching of the person of either the child or the
offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of
either the child or the offender, or both; or
(B) soliciting the child to engage in any lewd fondling or touching of the person
of another with the intent to arouse or satisfy the sexual desires of the child, the offender
or another."

In rejecting Sprung's multiplicity argument, the Court of Appeals reasoned that
K.S.A. 21-3504(a)(3)(A) proscribes lewd acts "with respect to the child or the offender,
therefore either conduct constitutes a unit of prosecution." Sprung, 2009 WL 1591397, at
*5. The panel further noted that the jury instructions and the verdict form clearly
distinguished the units of prosecution for the jury by specifying that Count II related to
Sprung's act of touching K.M. and Count III related to Sprung's act of submitting to
K.M.'s touching of Sprung's penis. 2009 WL 1591397, at *5. The panel's reasoning
mirrored that of another panel in State v. Cramer, No. 96,166, 2008 WL 4416022, at *4
13



(Kan. App. 2008) (unpublished opinion) (noting that several of the incidents underlying
the charges for aggravated indecent liberties involved multiple touchings, but concluding
that the language of K.S.A. 21-3504[a][3][A] "clearly states that either touching the child
or the offender is enough to constitute an offense. The unit of prosecution, thus, is one
such touching of either party.").

In arguing the panel's rationale is faulty, Sprung points out that the legislature in
K.S.A. 21-3504(a)(3) chose to prohibit "engaging in any of the following acts." The
statute then sets out two separate subsections in which those "acts" are defined. The first
subsection, which is at issue here, defines the criminal "act" as "[a]ny lewd fondling or
touching of the person of either the child or the offender." (Emphasis added.) K.S.A. 21-
3504(a)(3)(A). The second subsection makes the criminal "act" the soliciting of the child
to fondle or touch another person. K.S.A. 21-3504(a)(3)(B). That subsection is not at
issue here.

Sprung argues that if the legislature intended for each separate instance of
touching or fondling to constitute a violation of K.S.A. 21-3504(a)(3), it could have
defined aggravated indecent liberties with a child as "any act of lewd fondling or
touching." Instead, the legislature chose to define the criminal "act" as "any lewd
fondling or touching," suggesting that any number of touchings or fondlings could
constitute only one violation of K.S.A. 21-3504.

The State maintains that K.S.A. 21-3504(a)(3) "provides different ways in which
the crime can occur" and maintains that Sprung committed two distinctive acts against
K.M. which may be prosecuted in different counts. The State also notes that the jury
instructions listed "very different and distinctive elements."

14



But in considering the unit of prosecution test, the key is the nature of the conduct
proscribed, not the number of acts or the number of victims. Schoonover, 281 Kan. at
472. As Sprung persuasively argues, the nature of the conduct proscribed by K.S.A. 21-
3504(a)(3) is engaging in "any of the following acts." Subsection (A) then defines one of
those "acts" as "[a]ny lewd fondling or touching of the person of either the child or the
offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of
either the child or the offender, or both." K.S.A. 21-3504(a)(3)(A).

We are persuaded by Sprung's argument that K.S.A. 21-3504(a)(3)(A) creates only
a single unit of prosecution. Had the legislature intended to create one unit of prosecution
when the offender touches the child and a separate unit of prosecution when the child
touches the offender, the legislature could have separated subsection (A) into two
subsections, i.e., one subsection proscribing any lewd fondling or touching of a child by
the offender and one subsection proscribing any lewd fondling or touching of the
offender by the child. Instead, the legislature defined aggravated indecent liberties as
"engaging in any of the following acts," and then provided only two defining subsections,
(A) and (B). See Schoonover, 281 Kan. at 472; see also State v. Thompson, 287 Kan. 238,
246-47, 200 P.3d 22 (2009) (finding that had legislature intended to make possession of
each substance listed in K.S.A. 65-7006[a] a separate offense, legislature could have
explicitly stated as much in the statute).

Further, like the statute at issue in Thompson, K.S.A. 21-3504(a)(3)(A) possesses a
unifying intent—"to arouse or to satisfy the sexual desires"—with the object of that intent
being the child, the offender, or both. See 287 Kan. at 248-52 (discussing the unitary
intent to manufacture methamphetamine specified in K.S.A. 65-7006[a]). The
legislature's inclusion of a unitary intent in subsection (A) lends additional support to our
conclusion that the legislature intended to create a single unit of prosecution for that
subsection.
15




Moreover, even if we were to find the legislature's intent to be unclear as to the
unit of prosecution defined by K.S.A. 21-3504(a)(3)(A), the rule of lenity would mandate
that we construe the statute in favor of the defendant. Under that rule, statutory silence
and ambiguity regarding the unit of prosecution is construed in favor of the defendant.
See Thompson, 287 Kan. at 248-49.

Here, the jury convicted Sprung of the unitary conduct of Sprung's lewd fondling
or touching of K.M. and K.M.'s fondling or touching of Sprung. Further, the plain
language of the applicable subsection of the charging statute for both counts, K.S.A. 21-
3504(a)(3)(A), creates a single unit of prosecution. We conclude Sprung's convictions for
aggravated indecent liberties with a child are multiplicitous, and we reverse the Court of
Appeals' ruling finding otherwise. Accordingly, we affirm one of those convictions,
reverse the second conviction, and vacate the sentence for the second conviction.

The prosecutor's statements, if improper, did not affect the outcome of the trial in light of
the entire record.

Next, Sprung claims the prosecutor committed reversible misconduct when he
commented in closing argument on the credibility of K.M. as well as an expert witness
and an investigator hired by Sprung. Although the Court of Appeals panel found the
prosecutor's comments improper, it affirmed Sprung's convictions because it concluded
the comments were not so prejudicial as to deny the defendant a fair trial. Sprung, 2009
WL 1591397, at *7-8.

During closing argument, the prosecutor commented on K.M.'s credibility in the
following context:

16



"You know, as you go by, it's like falling off a ladder. You fall off the ladder two or three
years ago, you may not remember, as you think back on it, why I was on a ladder in the
first place, or what I was wearing, what time of day it was, may not remember all that,
but you're going to remember when you started to slip, and you're going to remember
how you felt when you're falling, and you're going to remember that fall when you hit.
Those things, you're not going to forget. That's etched in your memory. And what [K.M.]
told you is etched in her memory. And she'll go on past today, but they—will she ever
forget that? She will never forget that, so what she told you, that is the most credible
witness you're going to have." (Emphasis added.)

Immediately after this comment, the prosecutor discussed the testimony of
Sprung's expert witness, Kathie Nichols, Ph.D., and a private investigator hired by
Sprung, Daniel Jablonski. In arguing that "trials are searches for truth," the prosecutor
commented that Nichols had an agenda and wasn't there to tell the truth but "to get
[Sprung] off." The prosecutor also stated Nichols "came up with the purpose of getting
paid, she's paid, and try to get [Sprung] off, and what does she say?"

Next, the prosecutor discussed Jablonski's interview of Sprung, essentially
characterizing it as a sham. The prosecutor reminded the jury that Jablonski testified he
generally recorded "important interviews," but failed to record his interview with Sprung.
The prosecutor then commented that Jablonski was "following instructions from defense
counsel" and that in doing so, his goal was "not to get to the truth, [but to] try to get
[Sprung] off." The prosecutor also reminded jurors that Sprung hired Jablonski, and,
"You could just about disregard anything [Jablonski] said."

Sprung argues the prosecutor improperly commented on the credibility of the
witnesses when he commented: (1) K.M. was the "most credible witness"; (2) Nichols
and Jablonski were paid to lie on Sprung's behalf; (3) the jury could "just about"
disregard anything Jablonski said. The State argues the prosecutor's comments on K.M.'s
17



credibility, when placed in context, were not improper. However, the State concedes the
impropriety of the prosecutor's comments regarding the expert witness and investigator.

We apply a two-step analysis to allegations of prosecutorial misconduct involving
improper comments to the jury. First, we decide whether the comments were outside the
wide latitude allowed the prosecutor in discussing the evidence. If so, we must determine
whether the improper comments constitute plain error; that is, whether the statements
prejudiced the jury against the defendant and denied the defendant a fair trial. State v.
McCaslin, 291 Kan. 697, 715, 245 P.3d 1030 (2011).

This second step requires consideration of three factors: (1) whether the
misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the
prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of the jurors.
291 Kan. at 715. The third factor of the second step of the prosecutorial misconduct test
may not override the first two factors unless the State proves "'beyond a reasonable doubt
that the error complained of … did not affect the outcome of the trial in light of the entire
record.'" State v. Naputi, 293 Kan. 55, 58, 260 P.3d 86 (2011) (quoting State v. Ward,
292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).

Given the State's concession as to the impropriety of the prosecutor's comments
regarding Nichols' and Jablonski's credibility, we will assume without deciding that the
prosecutor also improperly commented regarding K.M.'s credibility. But because we find
the improper comments did not constitute plain error, Sprung's claim ultimately fails.

Sprung suggests the prosecutor's comments demonstrated ill will and bad faith and
that the comments were crucial because witness credibility was the key issue in the case
and the evidence against him was not overwhelming.
18




But the record simply lacks circumstances supporting Sprung's suggestion that the
prosecutor's comments were so egregious as to demonstrate ill will or bad faith. Further,
we note that the prosecutor recognized in closing argument that credibility was a key
issue in the case and reminded the jury that it would make the final decision regarding
credibility.

And the testimony against Sprung was substantial. Significantly, K.M.'s version of
events remained largely consistent from her initial disclosures through trial. And while no
physical evidence corroborated K.M.'s allegations of anal and vaginal penetration, K.M.
and K.M.'s mother both testified that K.M. experienced some light bleeding in January
2006. K.M.'s mother also testified that Sprung often brought K.M. home several hours
after Friends Club was over.

Moreover, other evidence strongly corroborated K.M.'s version of events.
Specifically, Garrison testified that in January 2006 she walked in on Sprung and K.M.
alone in Sprung's office, where K.M. was seated on Sprung's lap facing away from
Sprung and Sprung was sitting "straight as a board, leaning back with his head back and
legs straight out forward." After Garrison ordered K.M. off Sprung's lap, Sprung stood up
and adjusted his genital area, revealing a fist-sized bulge in his pants. Sprung avoided
talking to Garrison and walked into the bathroom.

Although Sprung denied K.M.'s allegations, he admitted Garrison walked into his
office and saw K.M. seated on his lap. But Sprung claimed Garrison merely observed
him "giving hugs" to K.M. and that his practice of "welcoming" children to sit on his lap
was consistent with Jesus' example. Further, Sprung conceded that he sometimes knocked
on K.M.'s bedroom window when he came to pick her up, that he asked for a key to the
house, and that this behavior was unique to K.M. and her family.
19




Under these circumstances, we are convinced that the State has demonstrated
beyond a reasonable doubt that the prosecutor's statements regarding the credibility of
K.M., Nichols, and Jablonski—even if improper—did not affect the outcome of the trial
in light of the entire record.

The district court did not abuse its discretion in denying Sprung's motion to compel a
psychological examination of K.M.

Next, Sprung argues the district court abused its discretion in denying his motion
to compel a psychological examination of K.M. because there was "ample evidence" of
K.M.'s lack of veracity and "little or no" corroborating evidence to support K.M.'s
allegations. The State argues the district court appropriately denied the motion based on
Sprung's failure to present compelling reasons for the examination.

Because a district court judge has discretion to order a psychological examination
of the complaining witness in a sex crime case, we review the district court's denial of
such a motion for an abuse of discretion. State v. Berriozabal, 291 Kan. 568, 580, 243
P.3d 352 (2010); State v. Price, 275 Kan. 78, 83, 61 P.3d 676 (2003); State v. Gregg, 226
Kan. 481, 489, 602 P.2d 85 (1979); see Ward, 292 Kan. at 550 (stating abuse of
discretion standard of review).

A defendant is entitled to a psychological examination of a complaining witness if
the defendant can demonstrate compelling circumstances that would justify such an
examination. See Berriozabal, 291 Kan. at 581; Gregg, 226 Kan. at 489. In Berriozabal,
we stated:

20



"A determination of whether such compelling circumstances exist requires
examination of the totality of the circumstances in the case, with the following
nonexclusive list of factors to be considered:
"(1) whether there was corroborating evidence of the complaining witness'
version of the facts,
"(2) whether the complaining witness demonstrates mental instability,
"(3) whether the complaining witness demonstrates a lack of veracity,
"(4) whether similar charges by the complaining witness against others are
proven to be false,
"(5) whether the defendant's motion for a psychological evaluation of the
complaining witness appears to be a fishing expedition, and
"(6) whether the complaining witness provides an unusual response when
questioned about his or her understanding of what it means to tell the truth." 291 Kan. at
581.

Here, in support of his motion to compel a psychological examination of K.M.,
Sprung cited: (1) the lack of physical evidence to support K.M.'s allegations, (2)
evidence that K.M. had a reputation for lying and had exhibited behavioral problems at
school, and (3) evidence that K.M. made inconsistent statements about blood found in her
underwear.

At the motion hearing, the district court heard testimony from two of K.M.'s
teachers, the elementary school secretary, and one of K.M.'s friends. Karen Reedy,
K.M.'s fourth- and fifth-grade teacher, testified that K.M. had anger problems, would
often lie about her homework, would lie "to keep herself out of trouble," and sometimes
used foul language in the classroom or on the playground. Reedy sent K.M.'s parents a
letter regarding K.M.'s anger problems, but testified she did not believe that K.M.'s anger
problems required professional intervention. Jolana Perkins, the school secretary, testified
K.M. was in the principal's office for behavioral problems on 5 to 10 occasions during the
2005-2006 school year.
21




Janet Fuller, a Title I teacher, who regularly attended the church where Sprung
was pastor and who admitted she and Sprung were very good friends, testified K.M. was
the most ill-behaved and dishonest student in the school. Although Fuller never worked
with K.M. specifically, she offered several instances of conduct to support her
characterization of K.M, including that K.M.: (1) lied about a damaged library book; (2)
tried to hide food in a milk carton at lunch; and (3) became angry at lunch when other
kids would not pass the ketchup. Fuller also said K.M. frequently used foul language.
Fuller opined that K.M. needed psychiatric help for her anger and lying problems.
However, Fuller admitted she never referred K.M. to the school psychologist, but she
stated that several teachers had informally discussed K.M.'s behavior.

Finally, K.M.'s friend and classmate, C.E., testified she recalled talking with K.M.
regarding "blood being in some panties." But C.E. then testified that sometime during the
girls' fourth-grade school year, K.M. "said that [K.M.'s] mom found bloody—a bloody
sock in the bathroom, and [that the sock belonged to K.M.'s] sister [N.M.]." C.E. was sure
the conversation was about a sock and not panties. C.E. denied that K.M. told her the
blood was from K.M. rather than N.M. C.E. testified K.M. told her their conversation
about the bloody sock was a "secret."

Ultimately, the district court found no compelling reasons to justify an
examination and denied the motion. Specifically, the court reasoned that the use of vulgar
language generally is not considered evidence of mental instability, that K.M.'s anger and
lying problems generally related to homework and incidents on the playground, and that
there was no evidence K.M. lied about sexual acts or about her contact with Sprung.

We have generally upheld the denial of motions to compel psychological
examinations of victims under similar circumstances. See, e.g., Berriozabal, 291 Kan. at
22



582 (finding evidence of unstable home environment insufficient to support allegation of
mental instability; one possible incident of lying about defendant's former stepdaughter's
virginity insufficient to support lack of veracity); Price, 275 Kan. at 88 (finding no
compelling reasons to justify examination when evidence indicated victim made
untruthful statement to a friend but statement was unrelated to contact with defendant,
victim made no other false allegations of abuse, victim had engaged in prior sexual
contact with her stepbrother, and victim referred to herself as a liar in a letter to her
mother but later testified she was not lying about her contact with defendant); State v.
McIntosh, 274 Kan. 939, 946, 58 P.3d 716 (2002) (finding victim's bedwetting, diagnosis
of attention-deficit disorder, behavioral problems at school, and resentment for absence
of biological father insufficient to support mental instability).

Here, defendant presented no evidence that K.M. was mentally unstable. And
while there was some evidence K.M. may have made untruthful statements or engaged in
dishonest conduct in the past, those statements did not relate to her contact with the
defendant or to any matter material to the allegations here. Nor is there any evidence that
K.M. made similar charges against others that were later proven to be false. Based on the
totality of the circumstances, we conclude the district court did not abuse its discretion
when it denied Sprung's motion to compel a psychological evaluation of K.M.

Sprung's sentencing claim fails for lack of appellate jurisdiction.

Finally, Sprung challenges the constitutionality of the aggravated presumptive
sentence on his sodomy conviction, arguing the district court improperly imposed the
sentence without requiring the aggravating factors be proven to a jury beyond a
reasonable doubt. Sprung recognizes that State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190
P.3d 207 (2008), controls this issue, but he nevertheless includes the issue to preserve it
for federal review.
23




Under K.S.A. 21-4721(c)(1), appellate courts lack jurisdiction to review
challenges to presumptive sentences. See Johnson, 286 Kan. at 851-52. Therefore, we
affirm the Court of Appeals' dismissal of Sprung's sentencing challenge.

The judgment of the Court of Appeals is affirmed in part and reversed in part. The
judgment of the district court is affirmed in part and reversed in part, and the sentence is
vacated in part.