State v. Trautloff

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,425

STATE OF KANSAS,
Appellee,

V.

MELVIN TRAUTLOFF,
Appellant.


SYLLABUS BY THE COURT

1.
An aggravated habitual sex offender is a person who, on and after July 1, 2006 has been
convicted in this state of a sexually violent crime and prior to the conviction of that sexually
violent felony, has been convicted on at least two prior conviction events of any sexually violent
crime. K.S.A. 21-4642(c)(1).

2.
Courts should construe statutes to avoid unreasonable results and should presume that the
legislature does not intend to enact useless or meaningless legislation.

3.
The language of K.S.A. 21-4642(c)(2) requiring that a prior conviction event includes
more than one conviction "on the same day and within a single count" is meaningless as written
and is a typographical error. The statute is to be read to define a prior conviction event as "one
or more felony convictions of a sexually violent crime occurring on the same day and within a
single court. These convictions may result from multiple counts within an information or from
more than one information." L. 2009, ch. 70, sec. 3.

4.
The wording of a complaint is binding on the State in pursuing its theory before a jury.

2

Appeal from Franklin District Court; THOMAS H. SACHSE, judge. Opinion filed October 9, 2009. Affirmed
in part, reversed in part, and remanded with directions.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for the
appellant.

Chad Sublet, assistant county attorney, argued the cause, and Heather R. Jones, county attorney, and Steve
Six, attorney general, were on the brief for the appellee.

The opinion of the court was delivered by

ROSEN, J.: Melvin Trautloff appeals from his convictions for one count of rape, K.S.A.
21-3502(a)(2), one count of aggravated criminal sodomy, K.S.A. 21-3506(a)(1), one count of
aggravated indecent liberties with a child, K.S.A. 21-3504(a)(3), and one count of sexual
exploitation of a child, K.S.A. 21-3516(a)(6).

J.M. is the mother of R.M., who was born on April 19, 1999. J.M. first met Trautloff in
February 2006, and they developed a romantic relationship. J.M. subsequently arranged to buy a
car through Trautloff, agreeing to pay him $50 every 2 weeks. According to J.M.'s testimony,
Trautloff agreed to reduce the payment by $50 if J.M. "gave him" R.M. for "sexual activity."
J.M. complied, and in July 2006 she "gave" R.M. to Trautloff, leaving the 7-year-old girl with
him at his truck. J.M. testified to additional sexual liaisons involving herself, R.M., and
Trautloff in July and August 2006.

Trautloff was admitted into the Franklin County jail on August 24, 2006, on a parole
violation. He was subsequently transferred to Lansing Correctional Facility on the violation and
was released on November 30, 2006. While he was incarcerated, Trautloff sent a number of
letters to J.M., in which he made frequent graphic references to past and prospective sexual acts
involving R.M.

At the end of April 2007, Trautloff, who was again incarcerated on parole violations,
asked a friend to clean out his truck and house. In the house, the friend found "disturbing"
3

letters, which she turned over to the local police department. Recordings were made of
telephone calls from Trautloff to the friend and to J.M. In the course of these calls, Trautloff
urgently asked the women to recover some items that he deemed to be very important from his
premises. These items later proved to include the correspondence exchanged between Trautloff
and J.M.

The State charged Trautloff with one count of rape, one count of aggravated criminal
sodomy, one count of aggravated indecent liberties with a child, and one count of sexual
exploitation of a child. J.M. pled guilty to rape, aggravated criminal sodomy, and attempted
aggravated indecent liberties with a child. She testified against Trautloff at his trial.

J.M. testified that, following Trautloff's release from Lansing, he had sexual relations
with R.M. some 20 times between December 1, 2006, and April 20, 2007. She recounted in
detail several of the events. In February 2007, J.M. picked R.M. up from school in the morning
and took her to meet Trautloff on at least three occasions. During each of these encounters, J.M.
helped undress R.M., and Trautloff then engaged in digital and oral sex with R.M. before
ejaculating in and on her vagina. At Trautloff's request, J.M. took photographs of some of these
encounters on a cell phone camera and made at least one video recording. J.M. then helped R.M.
clean up and get dressed, drove R.M. to get something to eat, and returned R.M. to school.

Forensic examiners were later able to retrieve sexually explicit photographs from J.M.'s
phone, and these photographs were introduced into evidence. Based on other photographs of
Trautloff and R.M. and based on the testimony of witnesses, several of the photographs are of a
girl who resembles R.M. and of a man who resembles Trautloff. The other photographs are
close-ups of genitalia. At trial, Trautloff contended that he was not the man depicted in the
photographs and that he was merely indulging J.M.'s fantasies in his letters. He denied having
any sexual relationship with R.M.

The jury found Trautloff guilty of all four charged counts, and the district court sentenced
him to life without parole for the rape conviction, life without parole for the aggravated criminal
sodomy conviction, life without parole for the aggravated indecent liberties with a child
4

conviction, and life without parole for the sexual exploitation of a child conviction, with all
sentences running concurrently. He timely appealed.

I. Did The District Court Err When It Sentenced Trautloff To Life In Prison Without The
Possibility Of Parole?

Trautloff initially contends that he did not meet the prerequisite prior convictions
required by statute for enhancing his sentence to life without the possibility of parole. This issue
turns on the meaning of the statutory phrase "prior conviction event."

On July 24, 1996, in case number 96CR122, Trautloff was convicted of one count of
aggravated indecent liberties with a 9-year-old child, one count of aggravated indecent liberties
with an 8-year-old child, and one count of rape of an 8-year-old third child. The Kansas Court of
Appeals affirmed one of the two convictions of aggravated indecent liberties and the rape
conviction but reversed the second aggravated indecent liberties conviction. State v. Trautloff,
No. 77,772, unpublished opinion by the Court of Appeals filed April 24, 1998, rev. denied 265
Kan. 889 (1998).

In the present case, the district court relied on the two prior convictions that were upheld
on appeal to sentence Trautloff to terms of life imprisonment without parole. The question
presented on appeal is whether the prior convictions constituted a single conviction event or
multiple conviction events, as defined by the legislature.

K.S.A. 21-4642(a) provides that aggravated habitual sex offenders "shall be sentenced to
imprisonment for life without the possibility of parole." The statute defines an aggravated
habitual sex offender to be "a person who, on and after July 1, 2006: (A) Has been convicted in
this state of a sexually violent crime . . . ; and (B) prior to the conviction of the felony under
subparagraph (A), has been convicted on at least two prior conviction events of any sexually
violent crime." K.S.A. 21-4642(c)(1).

The statute defines "prior conviction event" as "one or more felony convictions of a
sexually violent crime occurring on the same day and within a single count. These convictions
5

may result from multiple counts within an information or from more than one information."
K.S.A. 21-4642(c)(2). Resolving this issue requires understanding the meaning of the words
"within a single count."

Interpretation of a statute is a question of law over which this court has unlimited review.
State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). An appellate court's first task in
construing a statute is to "ascertain the legislature's intent through the statutory language it
employs, giving ordinary words their ordinary meaning." State v. Stallings, 284 Kan. 741, 742,
163 P.3d 1232 (2007). When a statute is plain and unambiguous, this court will not speculate as
to the legislative intent behind it and will not read the statute to add something not readily found
in it. In that situation, the court does not need to resort to statutory construction. It is only if the
statutory language or text is unclear or ambiguous that the court moves to the next analytical
step, applying canons of construction or relying on legislative history to construe the statute to
give effect to the legislature's intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).

As a general rule, criminal statutes must be strictly construed in favor of the accused.
Any reasonable doubt as to the meaning of the statute is decided in favor of the accused.
Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation
must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan.
658, 662, 175 P.3d 840 (2008).

The difficulty in the present case is the lack of harmony between two parts of the
statutory definition of a prior conviction event. Trautloff's prior convictions were for multiple
felonies involving sexually violent crimes contained in the same information; these convictions
occurred on the same day but not "within a single count." Because it is not possible for more
than one felony conviction to occur within a single count, as the statute posits, it is appropriate to
look into the history of the legislation and to apply the canons of statutory construction to
determine the legislature's intent.

A review of the legislative minutes relating to the enactment of K.S.A. 21-4642 in 2006
reveals no discussion of section (c)(2). It is likely that the legislature drew the "conviction
6

event" language from older versions of the sentencing guidelines. See K.S.A. 1993 Supp. 21-
4703; K.S.A. 1993 Supp. 21-4720(b)(4). K.S.A. 1993 Supp. 21-4720(b)(4) provided in part:
"The total sentence assigned for a current conviction event cannot exceed twice the base
sentence." A conviction event was defined as "one or more felony convictions occurring on the
same day and within a single court. These convictions may result from multiple counts within
an information or from more than one information." (Emphasis added.) K.S.A. 1993 Supp. 21-
4703(c). The legislature deleted these references to conviction events in 1994. See L. 1994, ch.
291, secs. 49 and 59.

As a general rule, courts should read statutes to avoid unreasonable results and should
presume that the legislature does not intend to enact useless or meaningless legislation. Board of
Sumner County Comm'rs v. Bremby, 286 Kan. 745, 754, 189 P.3d 494 (2008). We conclude that
the wording of K.S.A. 21-4642(c)(2) is the product of a typographical error and that the
legislature intended to include convictions occurring on the same day and within a single court.
We are confirmed in this conclusion by the legislature's correction of the statute in L. 2009, ch.
70, sec. 3, changing "count" to "court."

Trautloff clearly has two prior convictions, but the statute specifically addresses
"conviction events," not "convictions." The legislature could have written the statute to define
an aggravated habitual sex offender as an offender convicted of two prior crimes. The legislature
instead chose to define the aggravated habitual sex offender as one who is convicted on at least
two prior conviction events. The language of 21-4642(c)(1) and (c)(2), when the sections are
read together, supports a reading that a conviction on a single day of multiple counts, even
involving multiple victims, constitutes only one prior conviction event. This interpretation is
supported by this court's prior analysis of K.S.A. 1993 Supp. 21-4703(c) in State v. Roderick,
259 Kan. 107, 114, 911 P.2d 159 (1996), holding that repealing the 1993 Supp. 21-4703(c)
same-day, same-court rule changed the "double rule" in sentencing to a same-day, same-
information rule.

7

The State argues that Trautloff failed to object to his criminal history at sentencing.
While it is true that Trautloff conceded at sentencing that he had two prior convictions of sexual
crimes, he did not concede that he had two prior conviction events.

This court may correct an illegal sentence at any time. K.S.A. 22-3504(1); State v.
McCarley, 287 Kan. 167, 172, 195 P.3d 230 (2008). An illegal sentence, as contemplated by
K.S.A. 22-3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does
not conform to the statutory provision, either in the character or the term of the punishment
authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to
be served. State v. Davis, 283 Kan. 767, 769, 156 P.3d 665 (2007).

Trautloff had only one prior conviction event for sexually violent crimes, and the district
court erred in sentencing him to life terms without the possibility of parole. The district court
determined that Trautloff had a criminal history classification of E. The nature of the crimes,
however, will possibly make him subject to K.S.A. 21-4643(b)(1), requiring a life sentence with
a mandatory minimum term of imprisonment of not less than 40 years, subject to certain
mitigating circumstances. Because Trautloff is currently 43 years old, the difference between
mandatory life and mandatory 40-year sentences is unlikely to be great.

II. Was There Sufficient Evidence To Support A Conviction As Charged Of Sexual
Exploitation Of A Child Under The Age Of Fourteen?

Trautloff maintains that the State failed to present sufficient evidence to support his
conviction of sexual exploitation of a child. He specifically contends that the State failed to
provide evidence that he had promoted the sexual exploitation of a child by displaying the
pictures that J.M. and he took.

Although Trautloff bases this issue on the language of the complaint, he does not contend
that the complaint was deficient. He does not argue that the complaint lacked an essential
element; instead, he argues that the complaint was more specific than the statute requires and that
the State failed to prove an element that it included in the complaint.

8

K.S.A. 21-3516(a) sets out six different forms of conduct that constitute sexual
exploitation of a child. K.S.A. 21-3516(a)(6) prohibits "promoting any performance that
includes sexually explicit conduct by a child under 14 years of age, knowing the character and
content of the performance." K.S.A. 21-3516(b)(2) defines "promoting" to mean "procuring,
selling, providing, lending, mailing, delivering, transferring, transmitting, distributing,
circulating, disseminating, presenting, producing, directing, manufacturing, issuing, publishing,
displaying, exhibiting or advertising . . . (B) with intent to arouse or gratify the sexual desire or
appeal to the prurient interest of the offender, the child or another."

Count 4 of the second amended complaint charged Trautloff with sexual exploitation of a
child. The complaint alleged that he promoted the performance of sexually explicit conduct by a
child under 14 years of age "with the intent to arouse and satisfy the sexual desires or appeal to
the prurient interest of the defendant, the child, or another and displayed said picture, an off grid
felony, in violation of K.S.A. 21-3516(a)(6)." (Emphasis added.) The State filed the second
amended complaint on the day the jury trial began. The same language appeared in the previous
two versions of the complaint.

Trautloff maintains on appeal that the complaint correctly charged an alternative form of
promoting, specifically emphasizing the element of displaying a picture or photograph, and the
State failed to present evidence showing that he displayed a photograph. In its response, the
State does not argue that the wording of the information was inadvertent and incorrect; the State
instead contends that the jury heard sufficient evidence to convict Trautloff on a theory of
displaying a picture with intent to arouse or gratify the sexual desire or appeal to the prurient
interest of the offender, the child, or another.

When the sufficiency of the evidence is challenged in a criminal case, this court reviews
all the evidence in the light most favorable to the prosecution to determine whether the court is
convinced that a rational factfinder could have found the defendant guilty beyond a reasonable
doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).

9

The jury heard evidence about how the photographs were utilized after they were taken.
J.M. testified that Trautloff "wanted me to get pictures of [R.M.] and he wanted to see her. . . .
He didn't care how I got them, in panties, T-shirts, nothing on, bras, just however I got them I got
them." J.M. testified that she assisted Trautloff in taking photographs of him engaging in sexual
acts with R.M. "[s]o that he could look at them later and they would excite him." She further
testified that she had observed Trautloff looking at the photographs at the same Village Inn
Motel where the photographs had been shot. In addition, she testified that she took a video of
Trautloff at the Village Inn Motel at the same time that she took still photographs of Trautloff
engaged in sexual conduct with R.M. Her testimony showed that she and Trautloff viewed the
video together.

Webster's Third New International Dictionary 654 (1993) includes in the definition of the
transitive verb "display" the meaning "to spread before the view: exhibit to the sight or mind."
Black's Law Dictionary 471 (6th ed. 1990) defines "to display a work" in the context of
copyright law as "to show a copy of it, either directly or by means of a film, slide, television
image, or any other device or process."

Not every factual nuance is susceptible to direct proof. A jury may rely on the evidence
to make reasonable inferences about the behavior of a defendant. See State v. Tyler, 286 Kan.
1087, 1095, 191 P.3d 306 (2008). A jury that has convicted a defendant is presumed to have
believed the State's evidence and to have drawn from that evidence all inferences favorable to the
State. State v. Aikins, 261 Kan. 346, 392, 932 P.2d 408 (1997).

The evidence showed that Trautloff arranged the settings for the visual recordings and
was specific in his instructions to J.M. on when and of what he wanted the recordings made. The
only evidence that he also "displayed said picture" is that at one point he looked at the videotape
with her. To satisfy this element, it is sufficient to meet the definition of "display" even if the
audience consists of one or two persons. The evidence suffices to establish the element of the
crime that he displayed a picture by exhibiting or showing it with intent to arouse or gratify his
own sexual desire or to appeal to the prurient interest of another.

10

III. Did The District Court Err By Giving A Jury Instruction On Sexual Exploitation Of A
Child That Was Broader Than The Charging Document?

As noted in the discussion above, the State charged Trautloff with promoting the
performance of sexually explicit conduct by a child under 14 years of age "with the intent to
arouse and satisfy the sexual desires or appeal to the prurient interest of the defendant, the child,
or another and displayed said picture, an off grid felony, in violation of K.S.A. 21-3516(a)(6)."
Trautloff argues that the jury was instructed on a theory of sexual exploitation that was broader
than the narrow language of the information charging him with displaying a picture.

The instruction relating to sexual exploitation of a child did not limit the element that the
State had to prove to "displaying." The instruction instead followed the broad language of the
statute: "'Promoting' means procuring, selling, providing, lending, mailing, delivering,
transferring, transmitting, distributing, circulating, disseminating, presenting, producing,
directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising . . . with intent
to arouse or gratify the sexual desire or appeal to the prurient interest of the offender, the child or
another." K.S.A. 21-3516(b)(2).

Trautloff did not object to the instruction as it was presented to the jury. An appellate
court reviewing a district court's alleged erroneous instruction to a jury applies a clearly
erroneous standard where a party did not object to the instruction as given. An instruction is
clearly erroneous only if the reviewing court is firmly convinced there is a real possibility the
jury would have rendered a different verdict if the trial error had not occurred. K.S.A. 22-
3414(3); State v. Salts, 288 Kan. 263, Syl. ¶ 1, 200 P.3d 464 (2009).

A jury instruction on the elements of a crime that is broader than the complaint charging
the crime is erroneous. That error is excusable only where the substantial rights of the defendant
are not prejudiced. State v. Wade, 284 Kan. 527, Syl. ¶ 3, 161 P.3d 704 (2007). It is the long-
established rule in Kansas that instructions should be confined to issues made by the pleadings
and should not be broader or narrower than the information. See State v. Booker, 197 Kan. 13,
15, 415 P.2d 411 (1966). The charging instrument must set out the specific offense alleged
against the defendant in order to inform the defendant of the nature of the accusation against him
11

or her and to protect the defendant from being convicted on the basis of facts that were not
contemplated in the initial charges. See Russell v. United States, 369 U.S. 749, 767, 770, 8 L.
Ed. 2d 240, 82 S. Ct. 1038 (1962).

The State charged Trautloff with the narrow offense of displaying a picture and then
presented extensive evidence of other conduct that had much greater weight and emotional
substance than the limited evidence relating to the display. Yet, the State did not seek to amend
the complaint. The jury was instructed on the broadest possible theory of misconduct under the
statute, and this court cannot rule out the possibility that the jury found Trautloff guilty of
conduct that was not charged in the information.

By including the phrase "displayed such picture" in the complaint, the State limited itself
to a theory that Trautloff committed only that version of the offense. The wording of a
complaint is binding on the State in pursuing its theory before a jury. See, e.g., State v.
Robinson, 27 Kan. App. 2d 724, 728, 8 P.3d 51 (2000) (conviction for aggravated robbery from
the person of another reversed because information and jury instruction omitted words "or
presence"; omission was "unfortunate," because testimony was more than sufficient to support
conviction for aggravated robbery from the "presence" of the victim).

The broad instruction allowed the jury to convict Trautloff of displaying or procuring or
producing a photograph that included sexually explicit conduct by a child under 14 years of age.
It did not compel the jury to find that Trautloff displayed a picture, as alleged in the complaint.
As previously described, the evidence of "procuring" or "producing" a photograph was direct and
overwhelming, while the evidence that Trautloff "displayed" a photograph or video was minimal
and circumstantial. Although Trautloff did not object to the instruction at trial, the instruction
was clearly erroneous because we cannot be confident that the jury convicted him only on the
basis of the single alternative theory charged and instructed upon. There exists a real possibility
that the jury would have rendered a different verdict if the district court had instructed only as to
displaying.

12

IV. Did Trautloff's Sentence Violate Apprendi v. New Jersey Because It was Based On A
Prior Criminal History That Was Not Proven To A Jury Beyond A Reasonable Doubt?

Trautloff challenges the constitutionality of K.S.A. 21-4704(e)(1), which allows a
sentencing court discretion in selecting among the low-, middle-, and high-end sentences based
on mitigating and aggravating factors.

Trautloff was not sentenced under K.S.A. 21-4704(e)(1), which is part of the
sentencing guidelines. He was sentenced under K.S.A. 21-4642, relating to mandatory
life sentences for aggravated habitual sex offenders. The argument, as identified in the
appellant's brief, does not relate to the facts of this case.

It may be that Trautloff intended to argue that K.S.A. 21-4642 is unconstitutional
because it increases a statutory minimum sentence based on facts not proven to a jury. This
court has repeatedly rejected arguments of this nature. See State v. Conley, 287 Kan. 696, 700-
01, 197 P.3d 837 (2008); State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008); State v.
Johnson, 284 Kan. 18, 23, 159 P.3d 161 (2007).

In light of the appellant's argument and the firmly established law in this area, we find no
constitutional violation.

Conclusion

The conviction for sexual exploitation of a child is reversed, and the case is remanded for
a new trial of that count. The sentences for the remaining three counts are reversed, and the case
is remanded for resentencing in conformity with this opinion.